CLARKSON MILLER CROSS CHAPTER 35 EMPLOYMENT DISCRIMINATIONAND DIVERSITY

CLARKSON MILLER CROSS CHAPTER 35: EMPLOYMENT DISCRIMINATIONAND DIVERSITY © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

§ 1: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Applies to employers involved with interstate commerce with 15 or more employees. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Equal Employment Opportunity Commission. Monitors compliance with Title VII. Limits on Class Actions. WAL-MART STORES, INC. V. DUKES (2011). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Intentional Discrimination. Disparate-Treatment Discrimination. Prima Facie case: • Plaintiff a member of a protected class; • Applied, qualified for job, • Rejected by employer; and • Employer sought other applicants. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Intentional Discrimination. Disparate-Treatment Discrimination. • Once prima facie case proved, burden of proof shifts to employer who must present defense and evidence. • CASE 35. 1 DEES V. UNITED RENTALS NORTH AMERICA, INC. (2013). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Unintentional Discrimination. Disparate-Impact Discrimination. • Occurs when a protected group of people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Unintentional Discrimination. Disparate-Impact Discrimination. • Pool of Applicants Test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Unintentional Discrimination. Disparate-Impact Discrimination. • Rate of Hiring: plaintiff compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Discrimination Based on Race, Color, and National Origin. Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Discrimination Based on Race, Color, and National Origin. Policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Discrimination Based on Race, Color, and National Origin. “Reverse” Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Discrimination Based on Religion. Employers must “reasonably accommodate” the “sincerely held” religious practices of its employees, unless to do so would cause “undue hardship” to employer’s business. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Discrimination Based on Gender. Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. • Pregnancy Discrimination. • Wage Discrimination: Lilly Ledbetter Fair Pay Act (2009). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Constructive Discharge. Employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit. Applies to all Title VII discrimination. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Constructive Discharge. Proving a case: • Plaintiff must present objective proof of intolerable working conditions which employer knew about, failed to correct. • Employee’s resignation must be a foreseeable result of working conditions. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. The Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include prohibitions against sexual harassment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. There are currently two forms of sexual harassment: • Quid Pro Quo. • Hostile Work Environment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Quid Pro Quo. • Involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Hostile Work Environment. • Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment and create an abusive working environment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment by Supervisors. • For employer to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. The Ellerth / Faragher Affirmative Defense has two elements: • (1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. The Ellerth / Faragher Affirmative Defense has two elements: • (2) Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. The Ellerth / Faragher Affirmative Defense: • If an employer can prove both elements, he will not be liable for supervisor’s harassment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Retaliation by Employers. • Tangible employment action against employee that complains about sexual harassment or other Title VII violations. • CASE 35. 2 MORALES-CRUZ V. UNIVERSITY OF PUERTO RICO (2012). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment by Co-Workers. • Employer generally liable only if employer knew or should have known and failed to take action. • Notice to supervisor is sufficient under agency law. Employers may also be liable for harassment by non-employees. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Same-Gender Harassment. • In 1998, Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment. Easier to prove when harasser is homosexual. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Sexual Orientation. • Title VII does not prohibit discrimination based on orientation. Online Harassment. • Hostile work environment created using company chat, blogs, email. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Online Harassment. • Employers can avoid liability with prompt remedial action. • Employees may be discharged for using company computers to distribute offensive material to coworkers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Sexual Harassment. Remedies. Liability may be extensive. Plaintiff may receive: • Reinstatement. • Back Pay. • Retroactive Promotions; and • Damages. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

§ 2: DISCRIMINATION BASED ON AGE The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

ADEA Procedures under the ADEA. Plaintiff must show discrimination was THE reason for adverse employment action. CASE 35. 3 MORA V. JOHNSON MEMORIAL FOUNDATION, INC. (2010). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

ADEA Replacing Older Workers with Younger Workers. Discrimination must be based on age bias; the bigger the age gap, the more likely the bias. State Employees Not Covered by the ADEA. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

§ 3: DISCRIMINATION BASED ON D ISABILITY The Americans with Disability Act (ADA) requires employers to offer “reasonable accommodation” to employees or applicants with a disability who are otherwise qualified for the job they hold or seek. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

DISCRIMINATION BASED ON D ISABILITY ADA Procedures. Plaintiff must show she: Has a “disability. ” Is otherwise qualified for the employment in question; and Was excluded from employment solely because of the disability. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

DISCRIMINATION BASED ON D ISABILITY What Is a “Disability”? Physical or mental impairment that “substantially limits one or more of major life activities; or A record of such impairment; or Being regarded as having such an impairment. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

DISCRIMINATION BASED ON D ISABILITY What Is A “Disability”? 2008 Amendments Broaden Definition. • Reversed Supreme Court’s narrow definition of disability. • Now determined on a case-by-case basis. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

DISCRIMINATION BASED ON D ISABILITY Reasonable Accommodation. If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

DISCRIMINATION BASED ON D ISABILITY Reasonable Accommodation. Job Applications and Physical Exams. • Modifications to applications and selection process so those with disabilities can compete. • Employers are restricted on pre-hiring questions and physical exams. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39

DISCRIMINATION BASED ON D ISABILITY Reasonable Accommodation. Substance Abusers: only applies to FORMER drug users completed or going through supervised drug rehabilitation. Employers can fire an alcoholic is he poses substantial risk. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40

DISCRIMINATION BASED ON D ISABILITY Reasonable Accommodation. Health Insurance Plans: equal access to health care. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41

§ 4: DEFENSESTO EMPLOYMENT DISCRIMINATION Four basic types of defenses: Business Necessity. Bona Fide Occupational Qualification. Seniority Systems. After-Acquired Evidence. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42

DEFENSESTO EMPLOYMENT DISCRIMINATION Business Necessity. Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of employer’s business. Business necessity is a defense to disparate impact discrimination. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

DEFENSESTO EMPLOYMENT DISCRIMINATION BFOQ. Requires an employer to show a particular skill is necessary for the performance of a particular job. Used in cases of disparate treatment discrimination. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

DEFENSESTO EMPLOYMENT DISCRIMINATION Seniority Systems. Conditions distribution of job benefits on length of time one has worked for an employer. Defense only if it is a bona fide system, not designed to evade effects of discrimination laws. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45

DEFENSESTO EMPLOYMENT DISCRIMINATION After-Acquired Evidence of misconduct, committed by employee who is suing an employer for employment discrimination. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 46

DEFENSESTO EMPLOYMENT DISCRIMINATION After-Acquired Evidence. Uncovered during the process of discovery conducted in preparation for a defense against the suit. Not an absolute defense for employer. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 47

§ 5: AFFIRMATIVE ACTION Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48

AFFIRMATIVE ACTION Constitutionality of Affirmative Action Programs. May violate 14 th Amendment. (Adarand Construction case). Constitutional only if attempts to remedy past discrimination and does not use of quotas or preferences. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 49

AFFIRMATIVE ACTION Affirmative Action in Schools. Generally, an admissions program that automatically award minority students extra “points” is unconstitutional. • See Fisher v. University of Texas (2013). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 50