Employment Discrimination

Nisha Cleetus

No quote as no individual chapter is present in the Old PPT

Fifth Amendment – Prohibits the federal government from:◦ Depriving individuals of “life, liberty, or property”

without due process of law Fourteenth Amendment – Prohibits state

governments from:◦ Violating an individual’s right to due process and

equal protection

Title VII ◦ Illegal for employers with 15 or more employees

to discriminate on the basis of race, color, religion, sex, or national origin

Prohibited activities◦ Disparate treatment

Step 1 – Plaintiff presents evidence that: He belongs to a protected category He was treated differently from other similar people who

are not protected Prima facie: From Latin, meaning “from its first

appearance,” something that appears true upon first look

Prohibited activities◦ Disparate treatment

Step 2 – Defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons

Step 3 – To win, plaintiff must prove that the employer intentionally discriminated by showing that: Reasons offered were simply pretext Discriminatory intent is more likely than not

Prohibited activities◦ Disparate impact

Step 1 – Plaintiff must present a prima facie case Step 2 – Defendant must offer some evidence that

the employment practice was a job-related business necessity

Step 3 – To win, plaintiff must prove either that: Employer’s reason is a pretext or that other, less

discriminatory, rules would achieve the same results

Prohibited activities◦ Hostile work environment

Sexual harassment – Unwelcome sexual advances Requests for sexual favors Severe verbal or physical conduct of sexual nature that

interfere with an employee’s ability to work Categories:

Quid pro quo: One thing in return for another Hostile work environment

Prohibited activities◦ Hostile work environment

Same-sex harassment Employer liability for sexual harassment

The company is also liable for the employee’s conduct Hostile environment based on race Hostile environment based on color Hostile environment based on national origin

Prohibited activities◦ Retaliation – Employer has done something that

would deter a reasonable worker from complaining about discrimination

Religion◦ Employers cannot discriminate against a worker

because of his religious beliefs Sex

◦ Gender must be irrelevant to employment decisions

Family responsibility discrimination◦ Parenthood is a protected category under Title VII

Sexual orientation◦ Half the states and hundreds of cities have

statutes that prohibit discrimination based on sexual orientation

Gender identity◦ Discriminating against someone for being

transgender is a violation of Title VII

Merit◦ Defendant is not liable if he shows that the person

he favored was the most qualified Seniority

◦ Legitimate seniority system is legal even if it perpetuates past discrimination

Bona fide occupational qualification (BFOQ):◦ Employer is permitted to establish discriminatory

job requirements if they are essential to the position in question

◦ Employers consider customer preference in such situations Safety Privacy Authenticity

Affirmative action – Goal is to remedy the effects of past discrimination◦ Sources

Litigation Voluntary action Government contracts

Employee may not be paid at a lesser rate than employees of the opposite sex for equal work◦ Equal work – Tasks that require equal skill, effort,

and responsibility under similar working conditions

An employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant

An employer with 20 or more workers may not fire, refuse to hire, fail to promote or otherwise: ◦ Reduce a person’s employment opportunities

because he is 40 or older Plaintiff can show discrimination in:

◦ Disparate treatment◦ Disparate impact◦ Hostile work environment

Step 1 – Plaintiff must show that:◦ He is 40 or older◦ He suffered an adverse employment action◦ He was qualified for the job for which he fired or

not hired◦ Replaced by younger person

Step 2 – Employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons

Step 3 – Plaintiff must show that employer’s reasons are a pretext

Step 1 – Plaintiffs must present a prima facie case that employment practice excludes a number of people 40 and older

Step 2 – Employer wins if decision was based on “reasonable factor other than age”

Bona fide occupational qualification◦ To set a maximum age, employer must show that:

Age limit is necessary to the essence of business Virtually everyone that age is unqualified for the job Age is the only that an employer can determine who

is qualified

Rehabilitation Act of 1973◦ Prohibits discrimination on the basis of disability

by: Executive branch of the federal government Federal contractors Entities that receive federal funds

Disability◦ Disabled person is:

Someone with a physical or mental impairment that limits a major life activity

Someone who is regarded as having such an impairment

Accommodating the disabled worker◦ Reasonable accommodation – Employers are

expected to: Make facilities accessible Permit part-time schedules Acquire or modify equipment Assign a disabled person to an open position that he

can perform◦ Can perform essential functions of the job◦ Accommodation is not reasonable if it would

create undue hardship for the employer

Medical exams – Three stages◦ With applicants, employer may not require

medical exam, interviewer may ask: Whether an applicant can perform the work Applicant to demonstrate the work What accommodation applicant would need

◦ With entering employees, medical test must be: Required of all employees Treated as confidential

◦ With existing employees, medical exam are required to determine: If a worker is still able to perform the existing

function of the job

An employer may not discriminate against someone because of his relationship with a disabled person

Physical and mental abilities are to be treated the same

Disparate treatment and disparate impact Hostile work environment

Employers with 15 or more workers may not require:◦ Genetic testing or discriminate against workers

because of their genetic makeup Health insurers may not use such

information to decide coverage or premiums

Constitutional claims◦ People bringing a claim under the Constitution

must file a suit on their own Civil Rights Act of 1866

◦ Advantages over Title VII Four-year statute of limitations Unlimited compensatory and punitive damages Applicability to all employers

Rehabilitation Act of 1973◦ Statute is enforced by the EEOC, Department of

Labor, and Department of Justice Other statutory claims

◦ EEOC responsible for enforcing: Title VII Equal Pay Act Pregnancy Discrimination Act ADEA ADA GINA

Nisha Cleetus

As it is not present as an individual chapter wsa not sure which quote to insert over here