Employment Discrimination

Chapter 43Employment DiscriminationCopyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.43-2“Employment-At-Will”Means that any employee not employed under a contract/collective bargaining agreement may quit for any reason/no reason at all, with no required notice to employerAlso means employer may fire employee at any time, with no notice, for almost any reason43-3Federal Employment LawsProvide minimum level of protection for employeesStates may give employees more rights, but not less rights, than they have under federal law (federal supremacy)43-4Title VII of the Civil Rights Act (1964, As Amended by the Civil Rights Act of 1991) Protects employees against discrimination based on:RaceColorReligionNational OriginGender43-5“Disparate Treatment” Versus “Disparate Impact” Discrimination“Disparate Treatment” Discrimination: In all aspects of human resource management (hiring, firing, promotions, etc.), if candidate/employee discriminated against based on membership in a protected class, employee has actionable claim based on intentional discrimination“Disparate Impact” Discrimination (also referred to as unintentional discrimination): Occurs when plaintiff establishes that while employer’s policy/practice appears to apply to everyone equally, its actual effect is to disproportionately limit employment opportunities for a protected class43-6Requirements For Establishing A “Disparate Treatment” Discrimination CasePlaintiff-employee must demonstrate a “prima facie” case of discriminationDefendant-employer must articulate a legitimate, non-discriminatory business reason for the actionPlaintiff-employee must demonstrate that the reason given by the defendant-employer is a “mere pretext”43-7Disparate Treatment and Disparate Impact: Burden-ShiftingDisparate Treatment (Intentional Discrimination)Burden on Employee-Plaintiff: Demonstrate prima facie case of discriminationBurden on Employer-Defendant: Articulate legitimate, non-discriminatory business reason for actionBurden on Employee-Plaintiff: Show reason given by employer is “mere pretext”Disparate Impact (Unintentional Discrimination)Burden on Employee-Plaintiff: Establish statistically that rule restricts employment for those in protected classBurden on Employer-Defendant: Articulate why policy or practice is “business necessity”Burden on Employee-Plaintiff: Show that alleged “business necessity” is “mere pretext”43-8Sexual HarassmentIncludes unwelcome sexual advances, requests for sexual favors, and other verbal/physical conduct of a sexual nature that implicitly/explicitly makes submission a term/condition of employment;Makes employment decisions related to individual dependent on submission to such conduct (“quid pro quo” sexual harassment); orHas the purpose/effect of creating an intimidating, hostile/offensive work environment (“hostile work environment” sexual harassment)Pregnancy Discrimination Act of 1987Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy43-943-10Defenses to Claims Under Title VII of The Civil Rights ActBona Fide Occupational Qualification (BFOQ): Allows employer to discriminate in hiring on basis of gender, religion, or national origin (but not race/color) when doing so is “reasonably necessary” for performance of jobMeritSeniority: Seniority system legitimate if:System applies equally to all personsSeniority units follow industry practicesSeniority system did not have its genesis in discrimination; andSystem maintained free of any illegal discriminatory purpose43-11Exhibit 43-3: Bona Fide Occupational QualificationMay a BFOQ be based onRace?Gender?Religion?Color?National Origin?Customer Preference? (Exception: Sexual Privacy)NoYesYesNoYesNo43-12Procedure For Filing A Claim Under Title VII of the Civil Rights ActCharge Filed With EEOCEEOC Conciliation AttemptsEEOC “Right-to-Sue” LetterAge Discrimination in Employment Act of 1967 (ADEA)Prohibits employers from refusing to hire, discharging, or discriminating in “terms and conditions” of employment on basis of employee/applicant being age 40 or older43-1343-14Proving A “Prima Facie” Case of Age Discrimination Involving Termination of Employment Plaintiff must establish facts sufficient to create reasonable inference that age was a determining factor in termination; Plaintiff raises inference by demonstrating that he/she:Belongs to statutorily protected class (those individuals 40 years old or older)Was qualified for the positionWas terminated under circumstances giving rise to an inference of discriminationAmericans With Disabilities Act (ADA)Prohibits discrimination against employees and job applicants with disabilities43-1543-16Who Is Protected Under ADA? A disabled individual is defined for purposes of ADA as person who meets one of the following criteria:Has a physical/mental impairment that substantially interferes with one or more major life activitiesHas a record of such impairmentIs regarded as having such an impairment43-17Requirements For Bringing A Successful Claim Under ADA Plaintiff must show he/she meets all of the following:Has a disabilityWas “otherwise qualified” for the jobWas excluded from the job because of disabilityEqual Pay Act of 1963Prohibits an employer from paying workers of one gender less than wages paid to employees of opposite gender for work that requires equal skill, effort, and responsibility43-1843-19Defenses To An Equal Pay Act LawsuitBona fide seniority systemBona fide merit systemPay system based on “quality or quantity” of productionAny other factor(s) other than genderEmployment Discrimination Internationally Civil Rights Act of 1991 extended protections of Title VII and ADA to U.S. citizens working abroad for U.S. employers; these laws also apply to foreign corporations controlled by a U.S. employer43-20