Ch 42

Employment Discrimination

TESTS OF DISCRIMINATION- Title VII, Civil Rights Act

· Employment Discrimination: Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability.

· Disparate-Treatment Discrimination: Intentional discrimination by an employer against employees and/or applicants who are members of a protected class (e.g., over 50, Hispanics, females, disabled persons). To prevail on a disparate-treatment claims, a plaintiff must prove that:

(1) he or she is a member of a protected class;

(2) he or she applied and was qualified for, or was employed in, the position in question;

(3) he or she was rejected, demoted, or terminated by the employer; and

(4) the employer subsequently filled a person not in a protected class.

· Disparate-Impact Discrimination: Discrimination resulting from practices or procedures which, although not facially discriminatory, have the effect of discriminating against members of a protected class. (i.e, educational requirements, or other hiring practices)

DISCRIMINATION: RACE, COLOR,

NATIONAL ORIGIN, AND RELIGION

· A company's standards or policies for hiring or promoting employees that discriminate on the basis of race are illegal.

· Standards or policies for hiring or promoting employees that discriminate on the basis of color and/or national origin are illegal unless the discriminatory policies or procedures have a substantial, demonstrable relationship to realistic qualifications for the job in question. i.e, Job tests relevant to actual work.

· Discrimination against employees, on the basis or race, color, and/or national origin, with regard to employment conditions and/or benefits is illegal.

· Employers are required to reasonably accommodate their employees' religious beliefs, unless doing so would cause undue hardship to the employer's business.

· An employee's religious beliefs need not be based on the tenets or dogma or a particular church, sect, or denomination, as long as it is sincere.

DISCRIMINATION: GENDER

· Federal law prohibits employers from:

(1) Discriminating against applicants and employees on the basis of gender,

(2) Classifying jobs as "male" and "female," or

(3) Advertising jobs in help-wanted columns designated "male" or "female,"

unless the employer can prove that the gender of the applicant or employee is essential to the job in question. i.e, certain clothing sales.

· Pregnancy: Federal law also requires employers to treat women who are pregnant, have recently given birth, and/or have a medical condition related to pregnancy or childbirth the same as any other employee who is temporarily unable to perform some or all of his or her job functions.

· Equal Pay Act: Federal law prohibits gender-based differences in wages paid for equal work on jobs whose performance requires equal skill, effort, and responsibility under similar conditions.

SEXUAL HARASSMENT

· Types of Harassment

· Quid-Pro-Quo Sexual Harassment: Granting employment, job promotions, or other benefits in return for sexual favors, or refusing (or threatening refusal) to hire, promote, or extend other employment benefits if sexual favors are refused. In other words, you give me “something”, I give you a job or raise or you get to keep your job, etc.

· Hostile Environment Harassment: Language or conduct that is so sexually offensive that it creates a hostile working environment.

· Sources of Harassment

· Managers or Supervisors: Employers are generally liable for sexual harassment by managers and supervisory employees regardless of the employer' s knowledge of the harassment.

· Co-Workers: By contrast, employers are generally liable for sexual harassment by an employee's coworkers ONLY if the employer knew or should have known about the harassment and failed to take remedial action.

DISCRIMINATION: AGE

· Age Discrimination in Employment Act ("ADEA"): 1967 federal law prohibiting (i) employment discrimination on the basis of age against persons 40 years of age and older, and (ii) mandatory retirement for non-managerial employees.

· In order to prevail on an age discrimination claim, a plaintiff must show that he or she:

(1) was, at the time of the employment decision, a member of the protected age group,

(2) was qualified for the position from which he or she was discharged, for which he or she was denied employment, or to which he or she was denied promotion, and

(3) was discharged, denied employment, or denied promotion under circumstances giving rise to a reasonable inference of discrimination (e.g., the position was filled by a person under 40 years of age).

DISCRIMINATION: DISABILITIES

· Americans with Disabilities Act ("ADA"): Federal law prohibiting discrimination in hiring, promotion, and discharge against persons with disabilities.

· The ADA defines a "disability" as

(1) a mental or physical impairment that substantially limits one or more major life activities (e.g., breathing, speaking, seeing, etc.),

(2) a record of such impairment, or

(3) being regarded as having such an impairment.

· Employers are required by the ADA to reasonably accommodate the disability(-ies) of current employees and job applicants who are otherwise qualified for the job in question.

· Employers are not required to hire or retain applicants or employees whose disability(-ies) constitute a direct threat to the health and safety of their co-workers or customers. For example, employers are NOT required to accommodate drug or alcohol abuse. However, a history of abuse and/or addiction alone will not support discharge.

DISCRIMINATION: DEFENSES

· Once a plaintiff establishes that discrimination has occurred, the burden shifts to the employer to justify' the discriminatory policy or practice. Common defenses include:

· Business Necessity: The discriminatory policy or practice is related to job performance (e.g., a law degree is a prerequisite to acting as a lawyer, notwithstanding that minorities are less likely to hold law degrees).

· Bona Fide Occupational Qualification ("BOFQ"): Identifiable characteristics -- such as gender, national origin, or religious belief -- are reasonably necessary to the normal operation of a business (e.g., a women's swimwear company is permitted to hire only female models).

· Seniority: The employer has in place a system in which those who have worked longest for the company are first in line for promotions, raises, and other benefits, and those with the least seniority are the first to be laid off if the work force must be reduced.

· Undue Hardship: An employer may not be required to accommodate a particular employee's or applicant's disability if doing so would cause the employer "significant difficulty or expense."

AFFIRMATIVE ACTION

· Affirmative Action: Hiring and promotion policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination.

· Over the past few years, affirmative action programs --particularly those used by public-sector employers --have come under increasing scrutiny in the courts.

New cases on the subject;

BAKKEE case- reverse discrimination- quota system outlawed

Hopwood- 5^th District only- cannot use race as a means of obtaining diversity.

Adaradan Constructors- US Supreme Court held that any federal, state or local affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to strict scrutiny by the courts- in essence, it can’t use quotas or preferences, and once it achieves the goal of alleviating past or current discrimination, it must be dropped.

Who knows the result? The Supreme court is taking on the challenge as we speak. Maybe finally we will get clarification of all of this.