EMPLOYMENT DISCRIMINATION

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EMPLOYMENT DISCRIMINATION

• Basic concepts of employment discrimination law
  and case law examples of how it is applied

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Employment Discrimination

• Broad field of litigation
• Lots of claims and lawsuits
• Lots of legislative and judicial attention
• Rapidly changing area of law
• Employers and supervisors must be informed and
  proactive

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Employment Discrimination

• The overview
• Federal and state laws forbid discrimination
• in any aspect of employment based on a
• prohibited factor
• State law generally tracks federal law and
  applies
• the same standards

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Employment Discrimination

• What cannot be a motivating factor?
• Race Age
• Color Disability/Medical Conditions
• Religion Pregnancy/Caretakers
• Gender Sexual orientation
• National origin Genetic information
• Military service Smoking/Non-smoking

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Employment Discrimination

• The main categories of claims
• Failure to Hire or Promote
• Harassment (sexual or otherwise)
• Hostile Work Environment
• Wrongful Termination
• (including constructive discharge)

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Employment Discrimination

• How do claims arise?
• Disparate treatment deliberately
  discriminating against an individual (most claims
  will fall into this category)
• Disparate impact having a neutral policy that
  has a discriminatory effect

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Employment Discrimination

• Failure to hire or promote
• Member of a protected class met job
  qualifications, applied but did not get the job
• Position remained open with search for person
  with same qualifications
• Legitimate business decisions are usually
  protected
• Specific examples from case law

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Employment Discrimination

• Improper conduct based on any protected or
  prohibited factor (age, race, sex, gender,
  disability, etc.) can form the basis for a
  harassment claim
• Majority of litigated claims involve race, sex,
  age, and disability

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Employment Discrimination

• Sexual harassment
• Unwelcome conduct based on sex
• Conduct a reasonable person would find offensive
• Effective anti-harassment policy is essential
• Employee must report and take advantage of
  preventive or corrective opportunities
• Specific examples from case law

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Employment Discrimination

• Hostile work environment
• Hostile or abusive conduct that alters the terms
  or conditions of employment and unreasonably
  interferes with an employees work performance
• Can be a single act but usually a pattern of
  conduct
• By supervisor, co-employee or customer
• A high standard to meet
• Specific examples from case law

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Employment Discrimination

• Hostile work environment
• Effective policy against harassment in the
  workplace
• Employee failed to report or take advantage of
  preventive or corrective opportunities
• Employer made prompt and reasonable response

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Employment Discrimination

• Wrongful termination, including constructive
  discharge
• At-will employment v. protected employment
  (contract, tenure, civil service, etc.)
• Must have a legitimate non-discriminatory reason
  for termination
• Difficult for plaintiffs to prevail on
  constructive discharge claims
• Specific examples from case law

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Employment Discrimination

• QUESTIONS?