Equal%20Employment%20Opportunity

1
Equal Employment Opportunity

• Principles of Discrimination Law

2
Summary Discrimination Law

• What is discrimination and who is protected?
• Equal Achievement vs Equal Opportunity
• Why do these laws exist? Are they still needed?
• How does a plaintiff build a prima facie case?
• How does an employer defend itself?

3
Two Doctrines of Fairness

• Equal Achievement
• Equal Opportunity
• Even a true generalization about a class cannot
  justify class-based treatment (Supreme Courts
  Norris decision, 1983)

4
Unemployment Trends
5
Earnings by Race
2006
6
Building a Prima Facie Case

• Disparate treatment
• McDonnell Douglas v. Green
• Disparate (Adverse) Impact
• Griggs v. Duke Power

7
Proving Disparate Treatment

• 1. In general show differential treatment based
  on protected characteristics
• 2. McDonnell-Douglas v. Green rule
• Possess protected characteristic
• Applied for job
• Met job qualifications requirements
• Rejected/job remained open

8
Proving Disparate Impact

• 1. Disparate rejection rates
• Male rejection rate vs. female rejection rate
• 2. Disparate potential rejection rates
• 3. Population comparisons
• Males in firm/qualified males in market
• vs
• Females in firm/qualified females in market

9
The Four-fifths Rule

• A selection rate for any race, sex or ethnic
  group which is less than four-fifths (4/5) (or
  eighty percent) of the rate for the group with
  the highest rate will generally be regarded by
  the Federal enforcement agencies as evidence of
  adverse impact....

10
Defenses to Disparate Treatment

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Defenses to Disparate Impact

• Business Necessity
• that which is reasonably necessary to the safe
  efficient operation of the business
• legitimate and overriding business
  considerations
• Job Relatedness
• demonstrating a relationship between a
  requirement and job performance

12
Title VII Remedies

• Agreement to cease practice
• Reversal of adverse decision
• Affirmative Action Program
• Monetary
• Back pay (up to 2 years)
• Litigation costs
• Punitive damages (if intentional)
• Compensatory damages (if malicious)

13
Summary Discrimination Law

• Why these laws exist
• Equal Achievement vs Equal Opportunity
• What is discrimination and who is protected?
• Evidence and Proof
• Disparate Impact vs. Disparate Treatment
• Plaintiffs burden prima facie evidence
• Employers defense

14
Equal Employment Opportunity

• Primary Anti-Discrimination Laws

15
EEO Legal Constraints

• U.S. Constitution
• 5th 14th Amendments particularly
• Statutory (Legislative) Law
• Federal, State, Municipal
• Case (Common) Law
• Executive Orders
• ltRegulatory agency guidelinesgt

16
Primary Federal EEO Laws

• Equal Pay Act (1963)
• Title VII, CRA (1964/72/91)
• Vocational Rehabilitation Act (1967)
• Age Discrimination in Empl. Act (1967/86)
• Pregnancy Discrimination Act (1978)
• Immigration Reform/Control Act (1986)
• Americans with Disabilities Act (1990)

17
Title VII

• Part of Civil Rights Act (1964/72/91)

• Established protected characteristics
• Created Equal Employment Opportunity Comm
• Create guidelines (e.g. Uniform Guidelines on
  Selection)
• Enforce Title VII
• Collect compliance data (Form EEO-1)
• Basis for other EEO laws
• Pregnancy Discrimination Act (1978)
• Age Discrimination in Employment Act (1967, 1986)

18
Americans with Disabilities Act

• Prohibits discrimination against qualified
  individuals with a disability
• Who are qualified individuals?
• A person with a disability who, with or without
  reasonable accommodation, can perform the
  essential functions of the job

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Some ADA Statistics

• 43 million Americans may be covered
• 90,000 lawsuits filed (as of 11/98)
• Plaintiffs have lost 90 of cases that have gone
  to court
• Costs 100K to defend

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What is a Disability?

• A physical or mental impairment which
  substantially limits one or more of lifes major
  activities
• communication, ambulation, self-care,
  socialization, education, vocational training,
  employment, transportation...with primary
  attention given to those life activities that
  affect employability
• A record of such impairment
• Being regarded as having such an impairment

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Reasonable Accommodation

• Employers must change job conditions, tasks, or
  requirements in order to allow otherwise
  qualified employees to do the job
• This also includes the application process
• But accommodation should not represent an undue
  hardship

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Undue Hardship?

• any accommodation that would be unduly costly,
  extensive, substantial, or disruptive or that
  would fundamentally alter the nature of the
  operation of the firm
• based on resources of individual site
• decided on case-by-case basis

23
What are Essential Functions?

• Primary job duties that are intrinsic to the
  employment position
• time spent doing
• criticality
• ability of others to cover
• Should be determined before hiring decision
• Be sure to include obvious KSAs

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Hiring Implications of ADA

• Determine essential functions
• Remove recruitment barriers
• Applicants may need to be accommodated
• Treat applicants equally
• Pre-employment medical exams only after job offer
• Allow applicant to identify self as disabled
• Accommodation of job requirements

25
Review Primary Federal EEO Laws

• Equal Pay Act (1963)
• Title VII, CRA (1964/72/91)
• Vocational Rehabilitation Act (1967)
• Age Discrimination in Empl. Act (1967/86)
• Pregnancy Discrimination Act (1978)
• Immigration Reform/Control Act (1986)
• Americans with Disabilities Act (1990)

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EEO Law Multinationals

• American employees of US corporations can sue
  under Title VII, ADEA or ADA even if working
  overseas
• But this applies only to US citizens, not foreign
  citizens working for US companies
• Does not apply to Fair Labor Standards Act
• Foreign Laws Defense
• Exemption allowed if complying with US laws would
  cause violation of local laws
• Does NOT include customs or preferences