Bagley 5th Ed.

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CHAPTER 13 Civil Rights andEmployment
Discrimination
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Overview of Civil Rights Legislation

• Section 1981 Prohibits racial discrimination by
  public and private Employers in contracting.
  Amended in 1981 to prohibit racial discrimination
  in hiring, promoting, terminating, and in working
  conditions.
• Equal Pay Act of 1963 Requires equal pay for
  equal work without regard to gender in companies
  with more than 20 employees. 

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Overview of Civil Rights Legislation

• Title VII of the Civil Rights Act of 1964
  Prohibits discrimination based on race, religion,
  sex (now includes pregnancy, childbirth and
  medical conditions).
• Age Discrimination in Employment Act of 1967
  cannot discriminate against people who are 40
  years old or older based on age.

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Overview of Civil Rights Legislation

• Veterans Re-Employment Act Employees have the
  right to be reinstated if they left to serve in
  the military, and the right to not be discharged
  (without cause) for one year after reinstatement.
• Americans with Disabilities Act of 1990 (ADA)
  Prohibits discrimination based on disability and
  requires Employers to make reasonable
  accommodation of disability without undue
  hardship. Disabled have access to employment,
  transportation, public accommodations, and
  telecommunications services.

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Overview of Civil Rights Legislation

• Civil Rights Act of 1991 legislatively overruled
  parts of several Supreme Court cases that
  hindered employment discrimination cases for
  plaintiffs.
• Family and Medical Leave Act of 1993 time off
  for family responsibilities.
• Definition of Adverse Employment Action.

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Enforcement

• The Equal Employment Opportunity Commission
  (EEOC) is the primary enforcer of civil rights
  legislation in the United States.

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Title VII

• Scope prohibits all employers with 15 or more
  employees from making employment decisions based
  on race, color, religion, sex, or national origin.

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Title VII

• Legal Theories under Title VII.
• Disparate Treatment employee must prove
  intentional discrimination against him or her in
  employment based on a proscribed factor (pretext
  not enough).
• Disparate Impact a facially neutral employment
  practice has a discriminatory impact on a
  protected class.

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Sexual Harassment

• Types
• Quid Pro Quo job benefits in exchange for sexual
  favors.
• Hostile Work Environment workplace is poisoned
  by conduct that causes an employee to be less
  productive or unproductive.
• Same-Sex Sexual Harassment actionable under
  Title VII. Oncale v. Sundowner, 510 U.S. 17
  (1999).

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Sexual Harassment

• Defining a Hostile Work Environment severe or
  pervasive.
• Frequency and Severity of discriminatory conduct
• Whether conduct is physically or psychologically
  threatening and
• Whether conduct unreasonable interferes with
  employees work performance.

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Sexual Harassment

• Vicarious Liability for Hostile Environment
  under respondeat superior employers can be liable
  for sexual harassment in the workplace.
• Negligence.
• Harassment in the Virtual Office.
• Aided in the Agency Relation or Supervisor
  Harassment. See Burlington v. Ellerth and
  Faragher v. City of Boca Raton.
• Case 13.1 Hill v. American General Finance
  (2000).

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Sexual Harassment

• BUT
• Employer can raise an effective Affirmative
  Defense to the claim when no Tangible Employment
  Action is taken against complainant and it can
  show
• A. That the employer exercised Reasonable Care
  to prevent and correct promptly the harassing
  behavior.
• AND
• B. The plaintiff/employee unreasonably failed to
  take advantage to any preventive or corrective
  opportunities provided by the employer or to
  avoid harm otherwise.

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Duty to Accommodate Religious Beliefs

• Growing litigation area.
• Includes claims involving refusal to hire based
  on religion and inflexible work schedules that
  can accommodate beliefs and practices.
• Defense Reasonable Accomodation
• Case 13.2 Endres v. Indiana State Police (2003).

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Retaliation

• Employers may be liable of retaliation against
  Employees who have complained to the Company or
  EEOC.

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Special Applications of Title VII

• Pregnancy Discrimination since pregnancy is
  considered a disability, it must be treated
  like other disabilities by employers.
• English-Only Laws potential national origin
  discrimination.
• Dress Codes proxy for religion discrimination.

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Defenses Under Title VII

• Defenses under Title VII.
• Bona Fide Occupational Qualification (BFOQ).
  Employer may discriminate on prohibited
  classifications if the factor is job-related and
  necessary.
• Seniority and Merit Systems, barring intentional
  harm, this is not covered under Title VII.
• After-Acquired Evidence.

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Remedies under Title VII

• Generally, Employers may be liable for lost wages
  and benefits, front pay, injunctive relief, and
  (sometimes) compensatory and punitive damages.
• Caps on Liability Any party to a case for
  damages can demand a jury trial, but the court
  may not inform the jury of the caps on damage
  awards.
• Punitive Damages Complainant must show malice
  or reckless indifference.

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Age Discrimination

• ADEA applies to employers with 20 or more
  employees and who are involved in interstate
  commerce. Employers cannot discriminate against
  employees 40 years old or older.
• Older Workers Benefit Protection Act prohibits
  age discrimination in employee benefits.
• Defenses BFOQ, age not a factor, bona fide
  seniority system, and action were taken for good
  cause.

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Disability Discrimination

• Under the ADA, an Employer cannot discriminate in
  employment against a qualified person because of
  a disability.
• Enforcement and Remedies treated like Title VII
  the EEOC investigates claims.
•  Impermissible Discrimination ADA prohibits
  intentional and unintentional discrimination
  against disabled people.

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Disability Discrimination

• Definition of Disability a person with a
  disability is (i) a person with a physical or
  mental impairment that substantially limits one
  or more of that persons major life activities
  (such as work), (ii) a person with a record of a
  physical or mental impairment that substantially
  limits one or more of that persons major life
  activities, or (iii) a person who is regarded as
  having such an impairment.

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Disability Discrimination

• Physical or Mental Impairment ADA test is
  functional to what extent is the individual
  actually impaired. Conflicting outcomes.
• Obesity as a Disability -litigation, but no
  standards yet.
• Cancer a disability?
• Correctable Myopia a disability?

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Disability Discrimination

• ADA Exclusions ADA specifically excludes
  homosexuality, bisexuality, sexual-behavior
  disorders, compulsive gambling, kleptomania and
  others.
• Definition of Major Life Activity. Sexual
  impotence is a disability (Bragdon v. Abbott)
  while having a full functioning cardiovascular
  system is not (Weber v. Strippit).
• Must Substantially Limit major life activity.
• See Toyota Motor Mfg. v. Williams (2001).
• Case 13.3 Sutton v. United Air Lines, Inc.
  (1999).

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ADA Defenses

• Reasonable Accommodation Without Undue Hardship
  accessible work facilities, modified work
  schedules, equipment and training modifications,
  and providing readers or interpreters as needed.
• Undue Hardship when a reasonable accommodation
  is not required for example, the cost of the
  accommodation and the size of the business.
• Business Necessity discrimination is warranted
  if applicant cannot do the job.

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ADA Defenses

• Permissible Exclusion because of the disability,
  the employee cannot perform the essential
  function of the job, or if the employment causes
  health or safety risks to others.
• Inability to Perform Essential Functions.
• Direct Threat to Safety of Others.
• Case 13.4 Echazabal v. Chevron USA, Inc.
  (2002).

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Disability Discrimination

• HIV Discrimination Supreme Court ruled that HIV
  is a disability under the ADA. Bragdon v.
  Abbott, 524 U.S. 64 (1998).
• Dealing with HIV in the Workplace.
• Employers cannot discriminate.
• Genetic Discrimination approximately 18 states
  have legislation against using this type of
  information to discriminate in employment or
  insurance.

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Family and Medical Leave Act of 1993

• Employer must allow an employee leave time for
  certain family situations. Employee must have
  worked for at least 12 months and at least 1,250
  hours of employment. Eligible employees may
  receive up to 12 weeks of unpaid leave per year.
  If Plaintiff prevails, Employer is required to
  restore the employee to same position or
  equivalent with same benefits, pay, etc.

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Affirmative Action

• Generally remedial in nature to correct past
  wrongs.
• Executive Order 11246 requires federal
  government contractors to include in every
  government contract not exempted by the order
  provisions whereby the contractor agrees
• not to discriminate in employment on the basis of
  race, color, religion, sex, or national origin.
• to take affirmative steps to prevent
  discrimination.
• to file equal opportunity surveys every other
  year.

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Affirmative Action

• VOLUNTARY
• GOALS O.K.
• QUOTAS Not O.K.
• SENIORITY Protected
• INVOLUNTARY/MANDATORY
• FEDERAL (Contracts) (Executive Order 11246)
• EGREGIOUS HISTORY/COURT ORDER

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Affirmative Action

• According to Adarand v. Pena, 515 U.S. 200
  (1995), government mandated affirmative action
  plans are subject to strict scrutiny.
• Lutheran Church-Missouri Synod v. FCC (1998),
  Court struck down FCCs rules for affirmative
  action requirements for TV and radio licenses.
• Taxman v. Board of Education (1996), Court struck
  down school boards affirmative-action plan.

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Extraterritorial Reach of American Law

• 1991 Congress amended Title VII to protect U.S.
  citizens in a foreign country.
• ADA and ADEA also apply extraterritorially.
• EEOC provides guidance.