Which below is illegal?

• A supervisor refuses to hire applicants who are vegetarian

• Two employees are denied promotions because their favorite football team is the New Orleans Saints

• An individual is denied a job because he has a visible tattoo on his neck

Illegal for employers to discriminate (hiring, discharge, compensation, terms, conditions, or privileges of employment) because of:

RaceColorReligionSexNational Origin

Who has to comply? Private (1964) and public (1972) companies with 15 or more employees

Exemptions:

• A bona fide seniority system (BFSS; one that exists without the intention to discriminate)

• A bona fide occupational qualification (BFOQ; one that is reasonably necessary for the successful operation of a business)

Title VII 1964 (Basic Protections)

Original protected groups (others now include age and disability)

Total Charges

40,000

35,000

30,000

25,000

20,000

15,000

10,000

5,000

1,000

Retaliation Race Sex Disability Age National Sexual Religion Pregnancy Equal (Total) Origin Harassment Pay

33,068

EEOC Claims by Discrimination Type in 2013

38,539

25,957

21,396

7,256

10,642

3,541 3,721

1,019

Total EEOC Charges By Year

27,687

In early 2009, a male applicant filed suit against Hooters of America after he was turned down for the position of server at the restaurant chain. His claim is that Hooters is engaging in sex discrimination by only hiring females as wait staff. Many years earlier, Hooters settled a class action suit after being faced with a similar allegation. In the settlement, they agreed to pay $3.75 million and open positions in their restaurants to males. But, under the agreement, the position of servers was limited to only females.

Today (2010), Hooters is facing another lawsuit alleging discrimination based on weight. A server contends that she was fired because she was judged to be overweight and did not look good in the Hooters uniform. The uniform sizes are reportedly extra-extra small, extra small, and small.

Do you think Hooters should be allowed to engage in these practices? Why or why not?

Case Example

Although sex can qualify as a BFOQ, this is relatively rare. In an early case (Dothard v. Rawlinson, 1977), the state of Alabama claimed that sex (and height and weight) was a BFOQ in defending its policy of segregating male and female prison guards. The state lost on the height and weight requirement (it was used as a proxy for strength) but won on sex as a BFOQ, because of the concern for workplace safety of females.

In United Auto Workers v. Johnson Controls (1991), the Supreme Court ruled against the company's defense of sex as a BFOQ. In this case, females of childbearing age were excluded from jobs where exposure to lead was high (a so-called fetal protection policy). But, the concern about fertility was not viewed as a sex-neutral approach by the Court since the policy only affected females, not males. Consequently, the Supreme Court concluded that sex did not meet the requirements of a BFOQ and found Johnson Controls to be guilty of sex discrimination

Case Examples: Sex as a BFOQ

Differential Treatment Discrimination (intentionally treating individuals differently based on their membership in a protected

group. 1) Plaintiff [Standards for a Establishing a Prima Facie Case]

• Applicant belongs to a protected group• Applicant applied and was qualified for a job the employer was trying to fill• Applicant, though qualified, was rejected for the position• Employer continued to seek applicants with applicant’s qualifications

2) Defendant:

A legitimate nondiscriminatory reason exists for the rejection of the person

3) Plaintiff:

The organization's reason for the rejection is a pretext for discrimination

Green laid off as part of a large downssizing effort

Green patricipated in a "stall-in" and "lock-out" aganist the

company – both illegal activities

Company advertised for jobs. One of the jobs was for the

position of "mechanic" --- Green's former position with the company

Green applied for his former job and was rejected

Green filed race discrimination lawsuit

McDonnell Douglas v. Green

1) Green successfully formed a prima facie case: 1) he was a member of a protected group, 2) he applied for and was qualified to perform the job 3) the company refused to hire Green, and 4) the organization continued to seek applicants for the position.

2) Company articulated a legitimate reason for their refusal to rehire Green (e.g., illegal behavior)

3) Green had the option to demonstrate that the company's reason was a pretext for discrimination (e.g., white workers were treated less harshly for performing similar behavior as Green)

Phase 1: Challenger --- Evidence (often statistical) that a specific, identified employment practice disproportionately excludes protected group members (establishment of a prima facie case)

Phase 2: Company --- Proof that the challenged practice is job-related and consistent with business necessity

Phase 3: Challenger --- Proof there is an equally valid, job-related practice with less or no adverse impact

Disparate Impact Process

Promotion Requirements

Pass the Wonderlic Personnel Test and Bennett Mechanical Aptitude Test

Possess a high school diplomaEffects of These Requirements

Tests eliminated roughly 94% of blacks as compared to 43% of whites.

12% of Blacks possessed a high school diploma in NC versus Whites (34%)Race Discrimination Lawsuit Filed

The Supreme Court ruled against the company:

• All tests/equirements must be job related

• Intention to discriminate is not required for discrimination to exist• • All tests must meet acceptable professional guidelines for psychometric worth

• Employment discrimination may result from the effects of one's actions

Griggs v. Duke Power

Basic Adverse Impact Example

Group Applicants Hired Selection ratio (SR)

Non-minority 100 20 .20

Minority 50 ? ?

• Is the selection ratio of minorities less than 4/5 (.80) of the non-minority group?

• If number of minorities hired is 5, is adverse impact present?

• If number of minorities hired is 9, is adverse impact present?

Connecticut required passing a written test for promotion

Blacks who passed the test was 54% compared to 79% for whites (a passing rate for blacks that was 68% less than that of whites). This data suggested an obvious violation of the 4/5 rule________________________

Black candidates who failed the exam sued, arguing that the test was unrelated to the job and resulted in adverse impact.

The state did not question this point. But, argued that the company's final decisions (the bottom line) resulted in a greater percent of blacks (almost 30%) versus whites (13%) being promoted.

The Court ruled in favor of the challengers saying the law protects individual employees and that discrimination can exist even though the group as a whole fared well

All requirements which function to eliminate those from further consideration must be shown to be job-related and not possess adverse impact.

Case Example: Connecticut v. Teal (Bottom Line Defense)

Equal Pay Act (1963)

Must pay males and females, within a given establishment, same rates for jobs requiring equal:

• Skill• Responsibility• Effort• Work conditions

Exemptions (affirmative defenses):

• A seniority system• A merit system • A system which measures earnings by quantity or quality of production • Any factor other than sex (FOS)

Executive Order 11246 (as amended by 11375). The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin.

Affirmative Action

Case Major FindingsCalifornia v. Bakke (1978)--- Medical school admissions

•Use of specific % or number of openings based on race illegal• Race permissible as “plus” factor• Diversity can be a “compelling interest” and justify using race• “Strict scrutiny analysis” advocated

Grutter v. Bollinger (2003)--- Law School admissions

• Diversity is a compelling state interest for university admissions.• Plan was narrowly tailored; Race was one of the many factors• Plan used a highly individualized, holistic review of applicant’s file• Admissions program does not unduly harm nonminority applicants • Goal was to terminate its use of racial preferences as soon as practicable (achieving a “critical mass”)

Gratz et al. v. Bollinger (2003) --- Undergraduate admissions

• Giving 20 points to minorities virtually guaranteed admission (race a decisive factor)• AAP NOT narrowly tailored

Fisher v. University of Texas (2013) --- Undergraduate admissions

Strict scrutiny NOT applied by lower courts. “Strict scrutiny does NOT permit a court to accept a school’s assertion that its admission process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here.

Schette v. BAMN (2014) States (voters) allowed to approve bans on affirmative action in public employment and education (e.g., universities)

Affirmative Action~ Basics of Strict Scrutiny Analysis ~

•Did the university present evidence that a compelling interest was present (the goal of a diverse student body is essential to its mission)?

•Were the means to attain diversity (e.g., specific procedures/processes used) narrowly tailored to the stated goal?

• Is the use of race necessary? Are other, less restrictive (e.g., race-neutral) alternatives available to produce diversity?

Remedial in nature (e.g., past evidence or findings of discrimination)

Narrowly tailored plan

Voluntary (e.g., employer adoption of a AA plan due to underutilization of minorities)

Limited Duration (a temporary time frame exists)

Use of minority status as a "plus" factor (Bakke and Johnson v. Transportation Agency cases; U. Michigan cases --- Grutter (diversity) Yes; Gratz (20 pts.) No

Fisher v. UT

• No harm to those in the majority

• Protection of jobs (e.g., layoffs)

Key Affirmative Action Factors

• Protected group – Individuals 40 years of age or older (employees and job applicants)

Age Discrimination in Employment Act (ADEA)

Basic Protections

Some Defenses in ADEA cases

(1) BFOQ

A) “That the BFOQ is reasonably necessary to the essence of the business” and

B) “That it has reasonable cause, i.e., a factual basis for believing that all or substantially all persons within the protected age group would be unable to perform safely and efficiently the duties of the job involved, or whether it is impossible or impractical to deal with persons in the protected age group on an individual basis” (Usery v. Tamiami Trail Tours, Inc. 1976, pg. 1241-1242).

(2) Reasonable Factor Other Than Age (RFOA)

• Company must offer proof that the factor used was NOT age but another factor that is not unreasonable (even though the “other” factor is related to age such as job tenure)

The ADA: What Counts as a Disability?

Proving Substantial Limitation of a Major Life Activity

Criteria: Average Person Test

Permanence Test (> 6 months; ADAAA)

• Fungus allergy (Byrne v. Bd. of Education, 1992)• Inability to life 25 pounds (Williams v. Channel Master, 1996)• Moderate difficulty in walking (Penny v. UPS, 1997)• Depression & social interactions (Breiland v. Advance Circuits, 1997)• Depression & sexual appetite (Johnson v. NY Medical College, 1997) • Test anxiety (Mcguinnes v. University of New Mexico, 1998)• Breathing/sensitivity to dust and fumes due to pneumonia

(Rinehimer v. Cemcolift, 2002)• Eye problems causing reading difficulties (Szmaj v. AT&T, 2002)

Failures of the Average Person Test:

Assesement of an impairment must be made without consideration of available correctable measures such as medication, prosthetics, or other devices.

So, individuals claiming to be disabled because of a disease (e.g., diabetes, hypertension, epilepsy) must be evaluated regarding how the disease affects them when unmedicated (ADAAA)

Role of Correctable Measures in Determning a Substantial Limitation

Case by Case Assessment of Substantial Limitations

Limitations must be proven by each individual, regardless of how an impairment affects people in general. Thus, if two people are depressed, and the depression is substantially limiting for one but not the other, the substantially limited person is disabled within the meaning of the ADA and the counterpart is not

Caring for oneself (e.g., brushing teeth, washing)

Performing manual tasks

Seeing, hearing, eating, sleeping, speaking, communicating

Learning, reading. concentrating, thinking

Walking, standing, lifting, bending

Working

Operation of bodily functions (e.g., immune and digestive systems, cell growth, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, reproductive)

Examples of Major Life Activities

If Disabled, is the Individual Qualified?

[Must be able to perform essential functions of the job with or without a reasonable

accommodation]

Health & Safety:

The ADA alloows consideration of health and safety concerns in assessing the qualifications of individuals

May be deemed to be unqualified if companies present evidence that they pose a “direct threat” to the health and safety of others

Infectious diseases (nature of risk, duration, severity, likelihood of transmission)

What are essential job functions?

Essential job functions are best determined via a systematic job analysis

What makes an accommodation reasonable?[Cannot impose a direct hardship on an

organization]Some Key Factors:

• Cost of accommodations • Company resources• Nature and structure of organizations

Examples of Reasonable Accommodations:

• Restructuring job tasks• Altering work schedules• Buying or modifying equipment • Modifying exams or training program• Medical leave (must be time-barred)

Organizations are Not required to:

• Reallocate essential job duties• Create a new position• Give peference to disabled applicants/employees• Lower production/quality performance standards• Allow work at home (attendance often ruled as essential)• Give applicants their preferred accommodation

Companies only have to accommodate "known" disabilities (flexible interaction requirement)

• Some disabilities are obvious (e.g., loss of a limb, person seated in a wheelchair)

• Cannot ask if an applicant has a disabilityOFCCP (2014): Contractors (those with at least 10,000 contracts annually) must ask applicants to self-identify any disabilities (applicants can refuse to do so)

• Can ask applicants if they can perform essential, job-related functions and/or to perform essential job duties

>>> An employer may NOT require a job applicant to take a medical examination before making a job offer

Medical Examinations & Inquiries About Disabilities

MMPI and the ADAKarraker v. Rent-A-Center, Inc. 411 F, 3rd 831 (7th Cir.

2005)

The MMPI fits the definition of a “medical examination” --- a “procedure or test that seeks information about an individual’s physical or mental impairments or health.”

The MMPI was designed to reveal mental impairment/disorders --- thus a violation of the ADA.

Example of Essential Job Functions & Resaonable Accommodations

Martin v. PGA

Issue: Martin suffered from a degenerative disorder that made walking difficult and exceptionally painful

Accommodation Request: Martin asked to use a golf cart during PGA Tour events (request denied)

Supreme Court ruled in favor of Martin ---

• Walking was determined to NOT be an essential aspect of golf (as compared to shot-making)

• The use of a cart was reasonable

Key Supreme Court Findings: The ADA prohibits the PGA from denying Martin equal access to its tours on the basis of his disability

Allowing the use of a cart would not significantly alter the game, the key aspect of which is shot making, not walking

PGA v. Martin (cont.)

“There is nothing in the Rules of Golf that either forbids the use of carts, or penalizes a player for using a cart. That set of rules, as we have observed, is widely accepted in both the amateur and professional golf world as the rules of the game. The walking rule that is contained in petitioner’s hard cards, based on an optional condition buried in an appendix to the Rules of Golf is not an essential attribute of the game itself.

Country Duration Job security Amount/duration Recipient

Canada 17 – 41 weeks Yes 60% / 15 weeks Mother

Italy 22 –48 weeks Yes 80% / 22 weeks Mother

Germany 14 – 26 weeks Yes 100% / 14-18 weeks Mother

Sweden 12 – 52 weeks Yes 90% / 36 weeks Mother or Father

Finland 35 weeks Yes 100% / 35 weeks Mother or Father

Austria 18 – 52 weeks Yes 100% / 20 weeks Mother

Chile 18 weeks Yes 100% / 18 weeks Unspecified

United States

0 0 0 0

Maternity and parental leave policies:

A comparative view (before the FMLA)

Family and Medical Leave Act (1993)

• Applies to organizations with 50 or more employees (originally was 15 or more)

• 12 weeks of leave for any 12 month period (leave is unpaid; originally was 26 weeks for medical and 18 weeks for family leave)

• Covers mothers and/or fathers

Leave reasons:

• Birth and caring for a child

• Adoption or foster care for a child

• Care for a spouse, child, or parent with a serious health condition

• Serious health condition of the employee (unable to perform job functions)

• Job security is protected (must be given same or equivalent position) and health care coverage must be maintained

• Husbands and wives who work for the same company are eligible for a total of 12 weeks leave between the two of them

• Key employees not covered (those among top 10% in salary)

1) Quid Pro Quo (sex as a condition of employment or basis for employment decisions)

2) Environmental harassment -- Behavior of a sexual nature that is:

~ Types of Sexual Harassment ~

Unwelcome

Unreasonably interferes with one’s work performance or creates an

intimidating, hostile, or repressive work environment)

• Reasonable person standard

Is it sexual harassment if a female employee engages in consensual sex with a male superior?

Comments and behavior from Harris' supervisor:

~ Harris v. Forklift Systems ~

Alas, a month later: When arranging the signing of a deal with a customer Harris' supervisor said "What did you do, promise the guy --- some [sex] Saturday night? She quit and sued the company

District court found this to be "a close case." They found that the supervisors comments offended Harris (and would offend a "reasonable woman") but did not --- seriously affect her psychological well-being or caused her to suffer injury

"You're a woman, what do you know?""We need a man as the rental manager."Called her "a dumb ass woman."Suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise"Asked Harris (and other female employees) to take coins out of his pants pocketThrew objects on the floor and asked female employees to pick them up

>>> Harris complained to her supervisor, he was surprised, and said he would stop.

• Victims do not have to prove they suffered tangible or severe psychological damage

• Supervisors (agent of company -- circumstances of employment relationship, job functions)

• Co-workers (role of corrective action)

Who can commit acts of sexual harassment?

Responsibility exists regardless of whether the acts complained of were: 1) authorized or even forbidden by the employer (e.g., company policy) and 2)regardless of whether the company knew or should have known of their occurrance

• Clients (extent of company control)

Can an organization be responsible for harassment of its customers/clients?

Are there grounds for sexual harassment if a consensual relationship already existed between two employees?

Is an organization responsible for sexual harassment by its employees if it did not know the behaviors were being committed?

Does having a company policy against sexual harassment protect companies from liability?

Can a company be held liable for harassment that occurs outside of the work environment?

Can men be guilty of sexual harassment against other men?

Are companies automatically liable for "environmental" sexual harassment of its supervisors?Caps on damages (based on company size). Sum of punitive damages and compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses.

15 to 100 employees $50,000 101 to 200 employees $100,000 201 to 500 employees $200,000 501 employees or more $300,000

~ Retaliation ~

Three Prongs in Retaliation Claims

Phase 1 Plaintiff engages in protected activity by (1) complaining about an employer practice or (2) filing a formal claim of discrimination

Phase 2 After engaging in protected activity, plaintiff suffers a materially adverse action (one that deters a reasonable person from engaging in protected activity)

Phase 3 Plaintiff must demonstrate a causal connection between alleged materially adverse action and the protected activity

Retaliation Claims

Summary of Recent Key Retaliation Cases

Versus a showing that an

illegal factor was a

Motivating factor (race,

color, national origin,

religion, sex)

Versus a showing that an

illegal factor was a

Motivating factor (race,

color, national origin,

religion, sex)