Have you ever been, or do you know someone, who has been the victim of any form of discrimination?
Sports Programs • Boston University eliminates funds for Men’s golf, diving, and rowing. Adds women’s field hockey, rowing, and tennis. • Canisius College eliminates men’s baseball, track, and football. Adds women’s Tennis, softball and field hockey • Pepperdine University funds division 1 women’s soccer not men’s soccer. • West Virginia cuts 9 football grants-in-aid to expand women’s sports programs per Title IX • Does anyone care what happens to the poor male participants at these schools?
Title IX • No person, on the basis of sex, shall be excluded from participation in, denied benefits of, or be subjected to discrimination under any education program receiving federal financial assistance.
What do you think about the State of Texas meritocracy program for high school graduates?
3-2 The Emergence of EEO Economic Status of Women and Minorities EEO Role of Government Regulation Changes in Societal Values
3-3 EEO Laws and Regulations:Title VII of the 1964 Civil Rights Act • Discrimination with regard to any employment condition, including hiring, firing, promotion, transfer, compensation, and admission training programs • Defined protected categories or classes • Further clarifications by subsequent court cases and the 1991 Civil Rights Act
3-4 EEO Laws and Regulations:Forms of Discrimination DISPARATE TREATMENT (Intentional) DISPARATE OR ADVERSE IMPACT (Unintentional)
3-5 Forms of Discrimination:Disparate Treatment • Applying different standards to different groups from protected categories or classes • Bona fide occupational qualification (BFOQ) may justify discrimination • must be a legitimate nondiscriminatory reason (see Diaz v. Pan Am World Airways) • courts have applied the BFOQ defense very narrowly • Retaliation prohibitions apply
Disparate Treatment • Intentional discrimination • Employers apply different standards or treatment to different groups of employees or applicants based upon a protected category • Key U.S. Supreme Court case: • McDonnell Douglas v. Green • Plaintiff must first establish a prima faciecase proving disparate treatment • Applied, was qualified, was denied, job open
3-6 Forms of Discrimination:Disparate Impact • Employment practices that disproportionately exclude groups based upon a protected category (See Griggs v. Duke Power Co.) • Occurs when a racially neutral employment practice has the effect of disproportionately excluding a group based upon a protected category • Four-fifths rule often used to evaluate potential disparities • Showing validation or business necessity may justify discrimination • Retaliation prohibitions again apply
Four-Fifths Rule • Used to evaluate whether disparate impact exists • Discrimination typically occurs if the selection rate for one group is less than 80 percent (4/5) of the selection rate for another group
Retaliation • Federal EEO laws prohibit retaliation against employees who: • oppose discriminatory practices, or • participate in a protected investigation, proceeding, or hearing • Retaliation includes: • termination • denial of promotion or job benefits • demotion, suspension, or threats
Whadd’ya mean discriminatory practices????? • Any employment practice applied unfairly against a protected group • Testing • Recruiting • Promotions • Salary increases • training
Bona Fide Occupational Qualification (BFOQ) Disparate Treatment Retaliation Four-fifths Rule Disparate Impact Discrimination
3-7 Workplace Discrimination:Special and Contemporary Issues TITLE VII AND SEXUAL HARASSMENT • Sexual harassment is considered a form of sex discrimination • Two forms of sexual harassment exist: • Quid pro quo: exchanging sexual favors for job benefits. • Hostile work environment: creating an offensive work environment. • See Meritor Savings Bank v. Vinson • Recent developments broaden employer responsibility • See Faragher v. City of Boca Raton and Burlington v. Ellerth
3-8 Workplace Discrimination:Special and Contemporary Issues Title VII and Pregnancy Discrimination • Pregnancy Discrimination Act of 1978 amendment Title VII and Religious Minorities • Focuses on hours worked and working conditions Title VII and “English-Only” Rules • Potential for disparate impact claims • Showing business necessity may justify discrimination
3-9 Workplace Discrimination:Special and Contemporary Issues Civil Rights Act of 1991 amended Title VII • Provided additional remedies and expanded its scope Executive Order 11246 • Extends Title VII-like requirements to federal contractors
Workplace Discrimination:Special and Contemporary Issues 3-10 Equal Pay Act of 1963 • Prohibit pay differentials between men and women Age Discrimination in Employment Act of 1967 • Protects individuals 40 years of age or older Americans with Disabilities Act of 1990 (ADA) • Covers “qualified individuals” • Requires “reasonable accommodations” • Courts decide who’s “disabled” and what is “reasonable”
3-11 Workplace Discrimination:Regulatory Enforcement FEDERAL OFFICES AND AGENCIES • Equal Employment Opportunity Commission (EEOC) • Enforces most Federal employment discrimination laws • Office of Federal Contract Compliance Programs (OFCCP) • Enforces Executive Order 11246 STATE OFFICES AND AGENCIES THE COURTS
EEO is the law and not voluntary Applies to everyone Is colorblind Protects against discrimination based on race, religion, sex, national origin, and age Affirmative Action is voluntary Is temporary Designed to correct past injustices. EEO and Affirmative Action
Designed to eliminate past imbalances Must not unnecessarily trammel the rights of the majority (known as reverse discrimination) Must be temporary Must not provide for set aside positions Analyze under-representation and availability Set goals Specify how goals are to be attained 3-13 Workplace Discrimination:Affirmative Action Plans Voluntary Plans Involuntary Plans
3-12 Workplace Discrimination:Affirmative Action • Designed to overcome past imbalances based upon a protected group category • Commonly equated with preferences and special treatment • Legality depends on its source • Involuntary or Court Mandated EO 11246 requirement or court ordered • Voluntary Considerable court scrutiny (see United Steelworkers v. Weber and Johnson v. Transportation Agency) • The debate lives on in court
Sexual Harassment • Any form of conduct a reasonable person would find offensive; physical, verbal or environmental. • Unwelcome sexual advances. • Request for sexual favors. • Other verbal or physical contact of a sexual nature when any of following apply........
Sexual Harassment...continued. • Submission to such conduct is made explicitly or implicitly a term or condition of one’s employment • Submission to or rejection of such conduct is used as basis for decisions affecting employment • The conduct has purpose of unreasonable interfering with performance, or.......
Sexual Harassment....continued • Has a purpose of creating an intimidating, hostile, or offensive work environment. • Burden is on employer to remove offensive items or stop offensive behavior. May also extend to off-duty and off-premises conduct.
Sexual Harassment, EmployerResponsibility • Develop a policy against sexual harassment. • Promptly and thoroughly investigate all complaints. • Properly discipline all offenders
Contents of Sexual harassmentPolicy • Define sexual harassment. • Encourage people to come forward with complaints. • Promise confidentiality. • Alternative channel for filing complaints. • Promise prompt & thorough investigation.
Contents of Sexual harassmentPolicy • Promise the company may take interim steps pending full investigation. • Appropriate disciplinary action against offenders. • Assure that there will be no retaliation or punishment for complaining.
ADA Disability Definition • An individual who has a physical or mental impairment that substantially limits one or more of the major life activities, who has a record of such impairment or who is regarded as having an impairment.
ADA Prohibited Questions • Do you have aids? Asthma? Mental Condition? • Do you have a disability that would interfere with your ability to perform this job? • What prescription drugs are you taking
Permissible Questions UnderADA • Can you perform the functions of this job with or without reasonable accommodation? • Please describe or demonstrate how you would perform these functions.
Permissible Questions UnderADA • Can you meet the attendance requirements of this job? • How much do you weigh? Height? • Do you regularly eat three meals a day? ( Be careful here, Why do you need info?)
Reasonable Accommodation • Unless employer can prove undue hardship the term reasonable accommodation may include following. • Make existingfacilities readily accessible and usable by disabled. • Restructurejob; part-time or modified work schedules; reassign to vacant position; acquire or modify equipment; provide qualified readers or interpreters.
Pre-employment Medical Exams • No medical exam before conditional offer of employment. • Physical agility / fitness tests O.K. • Certain psychological tests measuring ability to perform O.K. • Drug and Alcohol tests O. K.
How to proceed safely under ADA • Assume the employee is disabled if so claimed and try to determine reasonable accommodation. • Initiate an interactive discussion with employee about accommodation. • Do as much as you can and then a little more.
Title VII of the Civil Rights Act of 1964 • Prohibits discrimination against employees on the basis of (protected categories): • race • color • religion • sex • national origin • Prohibits discrimination with regard to any employment condition
Title VII of the Civil Rights Act of 1964 (continued) • Covered entities include: • Private employers with 15 or more employees • Labor organizations with 15 or more members • Employment agencies • Federal, state, and local government employers • Exempt entities include: • Private membership clubs • Native American tribes
Sexual Harassment (1 of 2) • Considered a form of sex discrimination under Title VII of the Civil Rights Act of 1964 • is actionable when it occurs between same as well as opposite sex individuals • Forms of sexual harassment: • Quid pro quo – exchange of sexual favors for job benefits • Hostile work environment – creation of an offensive working environment
Sexual Harassment (2 of 2) • Key U.S. Supreme Court cases: • Pease v. Alford Photo Industries, Inc. • Meritor Savings Bank v. Vinson • Faragher v. City of Boca Raton • Burlington Industries v. Ellerth
Five elements for “quid pro quo.” • Plaintiff is a member of protected class • Plaintiff was subject to unwelcome SH from supervisor • Harassment claimed was based on sex • Submission was an implied condition to receiving some form of job benefit. • Employer knew or should have known
What can an employer do? • Have a written policy on Sexual harassment. • Publicize the policy • Prohibit relation for reporting Sexual harassment • Multiple channels for reporting complaints • Assure prompt investigation and remidial action. • Provisions of confidentiality
Pregnancy Discrimination Act of 1978 • Amended Title VII to protect pregnant women from employment discrimination • Prohibits employers from discrimination in providing employee benefits such as: • vacation time • sick leave • health insurance • Pregnancy to be treated on same basis as any other medical problem or disability
Other Title VII Issues Religious Discrimination “English-Only” Rules Chapter 1
Civil Rights Act of 1991 (1 of 3) • Amends Title VII • Allows plaintiffs to seek compensatory and punitive damages for intentional discrimination • Allows plaintiffs to demand jury trial for intentional discrimination claims • Reverses the U.S. Supreme Court’s decision in the Wards Cove Packing Co. v. Atonio case
Civil Rights Act of 1991 (2 of 3) • Prohibits adjusting test scores or using different cutoff scores on the basis of a protected category • Clarifies the concept of mixed motive in disparate treatment cases • Extends the coverage of Title VII and the Americans with Disabilities Act to U.S. citizens employed by covered entities operating in foreign countries
Civil Rights Act of 1991 (3 of 3) • Charges the EEOC with the tasks of providing technical assistance, education, and outreach • Expands the coverage of Title VII to the U.S. House of Representatives and agencies of the legislative branch • Encourages the use of alternate dispute resolution to resolve employment discrimination disputes.
Executive Order 11246 (1965) • Federal contractors, subcontractors, and federally assisted construction projects must: • develop a written plan of affirmative action • establish numerical goals and timetables to achieve integration and equal opportunity
Equal Pay Act of 1963 • Established the concept of equal pay for equal work • Prohibits wage differentials based on gender between men and women performing the same work in organizations