CHAPTER 33 EQUAL OPPORTUNITY IN EMPLOYMENT 2010 Pearson

CHAPTER 33 EQUAL OPPORTUNITY IN EMPLOYMENT © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 1

Equal Opportunity in Employment Right of all employees and job applicants: – To be treated without discrimination, and – To be able to sue employers if discriminated against. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 2

Title VII of the Civil Rights Act of 1964 • Outlaws job discrimination based on five protected classes: – Race – Color – National origin – Sex – Religion © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 3

Scope of Coverage of Title VII • Title VII applies to: – Employers with 15 or more employees – All employment agencies – Labor unions with 15 or more members – State and local governments and their agencies – Most federal government employment © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 4

Scope of Coverage of Title VII (continued) • Title VII prohibits discrimination in: – Hiring and firing – Work rules – Promotion and demotion – Payment of compensation and benefits – Availability of job training opportunities – Any other term, condition, or privilege of employment © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 5

Forms of Discrimination Disparate Treatment • Employer discriminates against specific individual because race, color, national origin, sex, or religion. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall Disparate Impact • Employer discriminates against an entire protected class. • Often proven by statistical data about employer’s employment practices. 6

Equal Employment Opportunity Commission (EEOC) • Federal administrative agency responsible for enforcing most federal antidiscrimination laws. • Empowered to: – Conduct investigations – Interpret statutes – Encourage conciliation between employees and employers – Bring suit to enforce law © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 7

Procedure for Bringing Title VII Action • Private complainant must file complaint with EEOC within 180 or 300 days of discrimination (depending on state). • EEOC is given the opportunity to sue the employer on the complainant’s behalf. • If EEOC chooses not to bring suit, it will issue a right to sue letter. • Complainant now may sue employer. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 8

Remedies for Violations of Title VII • Successful plaintiff can recover: – Back pay and reasonable attorneys’ fees. – Possible equitable relief, including reinstatement and seniority. – Punitive damages for intentional discrimination. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 9

Race, Color, and National Origin Discrimination – Race: refers to broad categories such as Black, Asian, Caucasian, and Native American. – Color: refers to the color of a person’s skin. – National Origin: refers to the country of a person’s ancestors or cultural characteristics. • E. g. , Hispanics, persons of Middle Eastern descent. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 10

Sex Discrimination • Discrimination against a person solely because of his or her gender. – Applies equally to men and women. – Overwhelming majority of Title VII sex discrimination cases are brought by women. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 11

Sexual Harassment – Lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature. • E. g. , supervisor offering positive review in exchange for sex. – Hostile work environment. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 12

Sexual Harassment (continued) • Employer may defend by showing that • employer exercised reasonable care to prevent and correct harassing behavior, and • That plaintiff failed to take advantage of employer’s programs or to otherwise avoid harm. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 13

Other Actionable Sex Discrimination • Discrimination because of “pregnancy, childbirth, or related medical conditions. ” • Same-sex discrimination. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 14

Religious Discrimination • Discrimination based on a person’s religion or religious practices. – Includes nontraditional religions. • Employer has duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship for employer. – E. g. , try to arrange schedule to give Sabbath as day off. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 15

Defenses to Title VII Action Merit Seniority Bona Fide Occupational Qualification (BFOQ) © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 16

Bona Fide Occupational Qualification (BFOQ) • Employment discrimination based on a protected class (other than race or color) is lawful if it is: – Job related, and a – Business necessity. • E. g. , only a woman can work as a wet nurse. • Exception is narrowly interpreted by the courts. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 17

Civil Rights Act of 1866 • All persons “have the same right to make and enforce contracts as is enjoyed by white persons. ” • Prohibits racial and national origin employment discrimination. • Procedural requirements of Title VII do not apply. • No cap on damages. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 18

Equal Pay Act • Protects both sexes from pay discrimination based on sex. • The act prohibits disparity in pay for jobs that require: – Equal skill – Equal effort – Equal responsibility – Similar working conditions © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 19

Criteria That Justify a Differential in Wages • Four criteria that justify a differential in wages: – Seniority – Merit – Quantity or quality of product – Any factor other than sex • Employer bears the burden of proving these defenses. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 20

Age Discrimination in Employment Act • ADEA applies to employees who are 40 years of age and older. • Administered by EEOC. • Successful plaintiff may recover back wages, attorney fees, and equitable relief. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 21

Age Discrimination in Employment Act (continued) • Prohibits age discrimination in all employment decisions, including: – Hiring – Promotions – Payment of compensation – Employee benefits – Other terms and conditions of employment • Prohibits mandatory retirement ages. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 22

Americans with Disabilities Act • Employers and providers of public transportation, telecommunications, and public accommodations must accommodate individuals with disabilities. • Employers may not discriminate against qualified individuals with disabilities. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 23

Title I of the ADA requires an employer to make reasonable accommodations to individuals with disabilities that do not cause undue hardship to the employer. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 24

Reasonable Accommodation Under ADA • Reasonable accommodations may include: – Making facilities readily accessible – Providing part-time or modified work schedules – Acquiring equipment or devices – Modifying examination and training materials – Providing qualified readers or interpreters © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 25

Qualified Individual with a Disability • A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 26

Qualified Individual with a Disability (continued) A disabled person is someone who: • • • Has a physical or mental impairment that substantially limits one or more of his or her major life activities, Has a record of such impairment, or Is regarded as having such impairment. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 27

Forbidden Conduct • Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability. • Pre-employment medical examinations are forbidden before a job offer. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 28

ADA Procedure and Remedies • Aggrieved person must first file charge with EEOC. – EEOC may choose to take action, or – Issue right to sue letter. • Successful plaintiff can recover: – Back pay and reasonable attorneys’ fees. – Possible equitable relief, including reinstatement and seniority. – Punitive damages for intentional discrimination. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 29

Affirmative Action • Certain job preferences given to minority, female, or other applicants when employer makes an employment decision. • May be voluntarily adopted, undertaken to settle discrimination action, or ordered by courts. • Legal if narrowly tailored to achieve compelling interest. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 30

Reverse Discrimination • Title VII protects members of majority class. • Affirmative action plans may not have preestablished quotas. • Majority class members may sue for damages. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 31

Retaliation • Employers may not retaliate against employee for filing charge of discrimination or participating in proceeding brought under Title VII, ADEA, or Section 1981. • E. g. , dismissing, demoting, harassing. © 2010 Pearson Education, Inc. , publishing as Prentice-Hall 32