employment law 1
TRANSCRIPT
Employment Employment LawLaw
By: Travis EckBy: Travis EckSenior Business Process AnalystSenior Business Process Analyst
DiscriminationDiscrimination
Gender DiscriminationGender Discrimination Gender = Sex (Courts)Gender = Sex (Courts) Dress Codes & Grooming – OK if “equal or similar”Dress Codes & Grooming – OK if “equal or similar” BFOQ – must be job performance relatedBFOQ – must be job performance related Stereotyping – discrimination may NOT be result of Stereotyping – discrimination may NOT be result of Gender + - must apply equally to gendersGender + - must apply equally to genders Pay discriminationPay discrimination
Must pay equal pay for equal work based on:Must pay equal pay for equal work based on: Equal workEqual work Equal effortEqual effort Equal skillEqual skill Equal responsibilityEqual responsibility Same working conditionsSame working conditions
Discrimination Cont.Discrimination Cont.
Defenses:Defenses: A bona-fide seniority systemA bona-fide seniority system A merit pay systemA merit pay system A productivity-based pay systemA productivity-based pay system A “factor other than sex”A “factor other than sex”
Shift differential – provided it doesn’t cause Shift differential – provided it doesn’t cause sex discrimination by disallowing one gendersex discrimination by disallowing one gender
May not isolate duties – must evaluate as “part May not isolate duties – must evaluate as “part of the entire job”of the entire job”
Discrimination Cont. Discrimination Cont. ““Comparable Worth” (as differentiated from “work”)Comparable Worth” (as differentiated from “work”)
Not required by Title VIINot required by Title VII Some states adopt and enforceSome states adopt and enforce
Gender based Pension PlansGender based Pension Plans May NOT discriminate – even if supported by such credible May NOT discriminate – even if supported by such credible
evidence as “mortality tables”.evidence as “mortality tables”. Pregnancy DiscriminationPregnancy Discrimination
Pregnancy Discrimination Act of 1978Pregnancy Discrimination Act of 1978 Added to Title VII prohibitions against discriminations for Added to Title VII prohibitions against discriminations for
pregnancy, childbirth or related medical conditionspregnancy, childbirth or related medical conditions May not use “hazardous” working condition as a reason for May not use “hazardous” working condition as a reason for
discrimination against pregnant women. Decisions must be discrimination against pregnant women. Decisions must be left to the individual.left to the individual.
Discrimination Cont.Discrimination Cont.
The Family and Medical Leave Act The Family and Medical Leave Act (1993) – Clinton Administration(1993) – Clinton Administration No discrimination because of “serious No discrimination because of “serious
illness”illness” Provides for “leave” of up to twelve weeks Provides for “leave” of up to twelve weeks
each 12 months (rolling) for birth, each 12 months (rolling) for birth, adoption, foster care, or care of child, adoption, foster care, or care of child, spouse or parent.spouse or parent.
Covers employers of 50 or more (private) Covers employers of 50 or more (private) and all public employers.and all public employers.
HarassmentHarassment
Sexual HarassmentSexual Harassment Quid pro quoQuid pro quo
Requests of sexual favor for employment Requests of sexual favor for employment benefit (by supervisor)benefit (by supervisor)
Hostile EnvironmentHostile Environment Causing discomfort of employee to the extent Causing discomfort of employee to the extent
that work performance is affected.that work performance is affected. Not required to involve supervisor involvement Not required to involve supervisor involvement
nor offer of benefitnor offer of benefit
Harassment Cont.Harassment Cont.
Standards for hostile environment determinationStandards for hostile environment determination Reasonable Person Reasonable Person Reasonable WomanReasonable Woman Reasonable VictimReasonable Victim Objective Reasonable WomanObjective Reasonable Woman
Employer Liability for Sexual HarassmentEmployer Liability for Sexual Harassment Agency – usuallyAgency – usually Supervisory – most of the timeSupervisory – most of the time For co-workers – if knew or should haveFor co-workers – if knew or should have For Third Parties – if fails to prevent For Third Parties – if fails to prevent
Individual Liability – not under Title VIIIndividual Liability – not under Title VII
Harassment Cont.Harassment Cont. Employer responses:Employer responses:
PreventPrevent DefendDefend
Not “unwelcome” due to actions, appearance or words of Not “unwelcome” due to actions, appearance or words of victimvictim
Was “provoked”Was “provoked” Must be “of a sexual nature”Must be “of a sexual nature” May be same sexMay be same sex
RemediesRemedies InjunctionInjunction Lost wages and benefitsLost wages and benefits Compensatory and punitive damages (for intentional Compensatory and punitive damages (for intentional
conduct)conduct) Legal fees and reinstatementLegal fees and reinstatement
Protected GroupsProtected Groups
Sexual orientation or Sexual Preference DiscriminationSexual orientation or Sexual Preference Discrimination No protection for homosexuals or lesbiansNo protection for homosexuals or lesbians No protection for transvestites or transsexualsNo protection for transvestites or transsexuals Neither of above can qualify as “disability” under that actNeither of above can qualify as “disability” under that act
Constitutional Protection under the equal protection Constitutional Protection under the equal protection provisions of the U. S. Constitution should NOT be provisions of the U. S. Constitution should NOT be overlookedoverlooked
Protected GroupsProtected Groups
Discrimination based on Religion and Discrimination based on Religion and National Origin under Title VIINational Origin under Title VII Includes “all aspects of religious Includes “all aspects of religious
observance and practice, as well as beliefobservance and practice, as well as belief Includes “moral or ethical beliefs as to Includes “moral or ethical beliefs as to
what is right or wrong which are sincerely what is right or wrong which are sincerely held with the strength of traditional held with the strength of traditional religious views”.religious views”.
Does Not include political or social Does Not include political or social ideologies.ideologies.
Title VII ExceptionsTitle VII Exceptions
Exceptions:Exceptions: Religion as a BFOQReligion as a BFOQ Educational Institutions Educational Institutions Religious organizationsReligious organizations
Limited to “when carrying out duties that are rationally Limited to “when carrying out duties that are rationally related to the legitimate religious purpose of the related to the legitimate religious purpose of the organization”.organization”.
Reasonable Accommodation (RA)Reasonable Accommodation (RA) Employee may not be protected if employer is unable to Employee may not be protected if employer is unable to
make RA without undue hardship to the employer’s make RA without undue hardship to the employer’s businessbusiness
Public Sector employees also protected by U.S. Public Sector employees also protected by U.S. Constitution First AmendmentConstitution First Amendment
National OriginNational Origin Discrimination based on National OriginDiscrimination based on National Origin
May be excepted if BFOQMay be excepted if BFOQ Includes:Includes:
By marriageBy marriage By association or membership in an organizationBy association or membership in an organization By attendance to Church, School, Temple, or MosqueBy attendance to Church, School, Temple, or Mosque Name or Spouse nameName or Spouse name
Disparate ImpactDisparate Impact Height or Weight (could effect National Origin Discrimination)Height or Weight (could effect National Origin Discrimination) English Only – unless a clear business need is presentEnglish Only – unless a clear business need is present
CitizenshipCitizenship Title VII Protects both citizens and non-citizensTitle VII Protects both citizens and non-citizens Immigration Reform and Control Act of 1986 - Preference is Immigration Reform and Control Act of 1986 - Preference is
permitted in employment practices of citizen over nonpermitted in employment practices of citizen over non Applies to employers with more than three employeesApplies to employers with more than three employees
EEOC CommissionEEOC Commission
The Equal Employment Opportunity Commission The Equal Employment Opportunity Commission (EEOC)(EEOC) Five membersFive members Appointed by the President of the U. S.Appointed by the President of the U. S. Senate ConfirmationSenate Confirmation General Counsel (also appointed by Pres)General Counsel (also appointed by Pres) Does NOT adjudicate claimsDoes NOT adjudicate claims Investigates filed claims and attempts to settleInvestigates filed claims and attempts to settle If unable to settle, may file suitIf unable to settle, may file suit May initiate complaint if “pattern or practice” is May initiate complaint if “pattern or practice” is
suspected.suspected.
ProceduresProcedures
Procedures under Title VIIProcedures under Title VII Complex and require precise timingComplex and require precise timing Interact with State proceduresInteract with State procedures Determination of Occurrence of Violation Determination of Occurrence of Violation
is criticalis critical Burdens of ProofBurdens of Proof
Shift between parties as procedure Shift between parties as procedure followedfollowed
Complex and require professionalism.Complex and require professionalism.
Procedures Cont.Procedures Cont.
Alternative Resolution ProceduresAlternative Resolution Procedures Mediation – as name implies, an effort to Mediation – as name implies, an effort to
reach settlement, without “power” to decide or reach settlement, without “power” to decide or enforceenforce
Arbitration – by agreement between the Arbitration – by agreement between the parties, arbitrator has “power” to decide and parties, arbitrator has “power” to decide and enforceenforce
Unless agreement is directly between the parties, Unless agreement is directly between the parties, Courts have refused to block appeal to courtsCourts have refused to block appeal to courts
Procedures Cont.Procedures Cont.
Remedies under Title VIIRemedies under Title VII Back Pay Back Pay Front Pay (in lieu of reinstatement or hiring)Front Pay (in lieu of reinstatement or hiring) Compensatory and Punitive DamagesCompensatory and Punitive Damages
Limited under mixed motive discrimination – if same result Limited under mixed motive discrimination – if same result would have occurred without the discriminationwould have occurred without the discrimination
Punitive limited to cases where employer acted “with malice Punitive limited to cases where employer acted “with malice or with reckless indifference”.or with reckless indifference”.
Remedial SeniorityRemedial Seniority Legal FeesLegal Fees Class Actions – specific and detailed requirementsClass Actions – specific and detailed requirements
ADEAADEA
The Age Discrimination in Employment ActThe Age Discrimination in Employment Act (ADEA) 1967(ADEA) 1967 Coverage – “affect commerce with 20 or more Coverage – “affect commerce with 20 or more
employees”employees” 40 years old and older40 years old and older Employers – Including employers of American workers in a Employers – Including employers of American workers in a
foreign countryforeign country Labor Unions – if operate a “hiring hall” or 25 or more Labor Unions – if operate a “hiring hall” or 25 or more
members and represent an employer coveredmembers and represent an employer covered Employment AgenciesEmployment Agencies
ADEA Cont.ADEA Cont.
Provisions (of ADEA)Provisions (of ADEA) Main affect is prohibition of forced early retirementMain affect is prohibition of forced early retirement Defenses:Defenses:
BFOQBFOQ Factors other than ageFactors other than age Executive Exemption – must be entitled to a non-forfeitable Executive Exemption – must be entitled to a non-forfeitable
retirement benefit of at least $44,000/annum.retirement benefit of at least $44,000/annum. Exemptions:Exemptions:
State or Local Government Firefighters (if mandatory age of State or Local Government Firefighters (if mandatory age of retirement was set prior to March 3, 1983 – but if after retirement was set prior to March 3, 1983 – but if after September 30, 1996 then age set must be 55 or older.September 30, 1996 then age set must be 55 or older.
Early retirement workforce reductions – if by agreementEarly retirement workforce reductions – if by agreement After-acquired EvidenceAfter-acquired Evidence
May not change outcome, but may affect remediesMay not change outcome, but may affect remedies
ADEA Cont.ADEA Cont.
Remedies under ADEARemedies under ADEA Back PayBack Pay Legal FeesLegal Fees An added amount in liquidated damages An added amount in liquidated damages
equal to the back pay – if employer equal to the back pay – if employer acted “willfully or with reckless acted “willfully or with reckless disregard”disregard”
ADAADA
Discrimination because of DisabilityDiscrimination because of Disability The Americans with Disabilities Act of 1990The Americans with Disabilities Act of 1990
CoverageCoverage Private and Public Sector employersPrivate and Public Sector employers 15 or more employees15 or more employees Does NOT apply to most federal government employers, Does NOT apply to most federal government employers,
American Indian Tribes or bona fide private membership clubs.American Indian Tribes or bona fide private membership clubs. Supreme Court excluded statesSupreme Court excluded states
ProvisionsProvisions Prohibits discrimination against “otherwise qualified”Prohibits discrimination against “otherwise qualified” Prohibits retaliation for reporting an unlawful practice or act Prohibits retaliation for reporting an unlawful practice or act
under ADAunder ADA
ADA Cont..ADA Cont..
ADA provisions – continuedADA provisions – continued DefinitionsDefinitions
Qualified with a disabilityQualified with a disability A person who, with or without reasonable accommodation, can A person who, with or without reasonable accommodation, can
perform the essential functions of the position.perform the essential functions of the position. DisabilityDisability
Very broad definitionVery broad definition Not included:Not included:
Illegal drug usageIllegal drug usage Infectious or contagious diseasesInfectious or contagious diseases Homosexuality, bisexuality or sexual behavior disorders Homosexuality, bisexuality or sexual behavior disorders
such as:such as:exhibitionism, transsexuals, compulsive gambling, exhibitionism, transsexuals, compulsive gambling, kleptomania, pyromania, psychoactive substance use.kleptomania, pyromania, psychoactive substance use.
ADA Cont.ADA Cont.
Defenses to ADA ClaimsDefenses to ADA Claims Individual’s disability poses a “direct threat” to Individual’s disability poses a “direct threat” to
other employeesother employees BFOQBFOQ Food handlers special requirementsFood handlers special requirements Religious groundsReligious grounds
Enforcement Enforcement By EEOCBy EEOC
ADA Cont.ADA Cont.
The Rehabilitation Act of 1973The Rehabilitation Act of 1973 ProvisionsProvisions
Extends coverage of ADAExtends coverage of ADA CoverageCoverage
Federal Employers (Section 501)Federal Employers (Section 501) Federal Contractors (Section 503)Federal Contractors (Section 503) Federally assisted programs (Section 504)Federally assisted programs (Section 504) AIDs and HIV positive are protectedAIDs and HIV positive are protected
Neither ADA nor RA (nor any other Federal Neither ADA nor RA (nor any other Federal Legislation) prohibit employer drug testing – removes Legislation) prohibit employer drug testing – removes this testing from “medical testing” definitionthis testing from “medical testing” definition