After reading this chapter, you will be able to answer the following questions: When may an employee be legally fired? What are the federal laws governing employment situations? What are the legal requirements for a charge of sex discrimination? What is the difference between discrimination based on disparate treatment and discrimination based on disparate impact? What are the legal requirements for a charge of sexual harassment?
Chapter 43 Employment Discrimination Copyright © 2015 McGrawHill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGrawHill Education “EmploymentAtWill” 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 employer Also means employer may fire employee at any time, with no notice, for almost any reason 432 Federal Employment Laws Provide minimum level of protection for employees States may give employees more rights, but not less rights, than they have under federal law (federal supremacy) 433 Title VII of the Civil Rights Act (1964, As Amended by the Civil Rights Act of 1991) Protects employees against discrimination based on: Race Color Religion National Origin Gender 434 “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 class 435 Requirements For Establishing A “Disparate Treatment” Discrimination Case Plaintiffemployee must demonstrate a “prima facie” case of discrimination Defendantemployer must articulate a legitimate, non discriminatory business reason for the action Plaintiffemployee must demonstrate that the reason given by the defendantemployer is a “mere pretext” 436 Disparate Treatment and Disparate Impact: BurdenShifting Disparate Treatment (Intentional Discrimination) Burden on EmployeePlaintiff: Demonstrate prima facie case of discrimination Burden on EmployerDefendant: Articulate legitimate, non discriminatory business reason for action Burden on EmployeePlaintiff: Show reason given by employer is “mere pretext” Disparate Impact (Unintentional Discrimination) Burden on EmployeePlaintiff: Establish statistically that rule restricts employment for those in protected class Burden on EmployerDefendant: Articulate why policy or practice is “business necessity” Burden on EmployeePlaintiff: Show that alleged “business necessity” is “mere pretext” 437 Sexual Harassment Includes 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); or Has the purpose/effect of creating an intimidating, hostile/offensive work environment (“hostile work environment” sexual harassment) 438 Pregnancy Discrimination Act of 1987 Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy 439 Defenses to Claims Under Title VII of The Civil Rights Act Bona 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 job Merit Seniority: Seniority system legitimate if: System applies equally to all persons Seniority units follow industry practices Seniority system did not have its genesis in discrimination; and System maintained free of any illegal discriminatory purpose 4310 Exhibit 433: Bona Fide Occupational Qualification May a BFOQ be based on… Race? No Gender? Yes Religion? Yes Color? No National Origin? Yes No Customer Preference? (Exception: Sexual Privacy) 4311 Procedure For Filing A Claim Under Title VII of the Civil Rights Act Charge Filed With EEOC EEOC Conciliation Attempts EEOC “RighttoSue” Letter 4312 Age 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 older 4313 Proving 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 position Was terminated under circumstances giving rise to an inference of discrimination 4314 Americans With Disabilities Act (ADA) Prohibits discrimination against employees and job applicants with disabilities 4315 Who 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 activities Has a record of such impairment Is regarded as having such an impairment 4316 Requirements For Bringing A Successful Claim Under ADA Plaintiff must show he/she meets all of the following: Has a disability Was “otherwise qualified” for the job Was excluded from the job because of disability 4317 Equal Pay Act of 1963 Prohibits 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 responsibility 4318 Defenses To An Equal Pay Act Lawsuit Bona fide seniority system Bona fide merit system Pay system based on “quality or quantity” of production Any other factor(s) other than gender 4319 Employment 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. employer 4320 ... notice, for almost any reason 432 Federal Employment Laws Provide minimum level of protection for employees States may give employees more rights, but not less rights, than they have under federal law (federal supremacy)... Protects employees against discrimination based on: Race Color Religion National Origin Gender 434 “Disparate Treatment” Versus “Disparate Impact” Discrimination “Disparate Treatment” Discrimination: In all aspects of human resource ... 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