19 - 141 - 1 © 2007 prentice hall, business law, sixth edition, henry r. cheeseman chapter 33 equal...

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman 19 - 141 - 1

Chapter 33Equal Opportunity in

Employment


Equal Opportunity in Employment

• The right of all employees and job applicants:

1. To be treated without discrimination, and

2. To be able to sue employers if they are discriminated against.


Equal Employment Opportunity Commission

(EEOC)• The federal administrative

agency responsible for enforcing most federal anti-discrimination laws.

• The EEOC is empowered to:– Conduct investigations– Interpret the statutes– Encourage conciliation

between employees and employers

– Bring suit to enforce the law


Title VII of the Civil Rights Act of 1964

• Intended to eliminate job discrimination based on five protected classes:– Race– Color– Religion– Sex– National Origin


Scope of Coverage of Title VII• Title VII applies to:

– Employers with 15 or more employees

– All employment agencies– Labor unions with 15 or more

members– State and local governments

and their agencies– Most federal government

employment


Scope of Coverage of Title VII (continued)

• Title VII applies to any term, condition, or privilege of employment including, but not limited to:– Hiring and firing– Work rules– Promotion and demotion – Payment of compensation and

benefits– Availability of job training

opportunities


Forms of Title VII Actions

Disparate Treatment

Discrimination• Occurs when an

employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion.

Disparate Impact Discrimination

• Occurs when an employer discriminates against an entire protected class.

• Often, this is proven through statistical data about the employer’s employment practices


Procedure for Bringing a Title VII Action

• Private complainant must file a complaint with the EEOC.

• The EEOC is given the opportunity to sue the employer on the complainant’s behalf.

• If the EEOC chooses not to bring suit, it will issue a right to sue letter to the complainant.

• Complainant now has the right to sue the employer.


Remedies for Violations of Title VII

• A successful plaintiff in a Title VII action can recover back pay and reasonable attorneys’ fees.


Race, Color, and National Origin Discrimination

• Title VII was primarily enacted to prohibit employment discrimination based on race, color, and national origin.– Race: refers to broad categories

such as Black, Asian, Caucasian, and Native American

– Color: refers to the color of a person’s skin

– National Origin: refers to the country of a person’s ancestors or cultural characteristics


Sex Discrimination• Discrimination against a person

solely because of his or her gender.

– Applies equally to men and women.

– Overwhelming majority of Title VII sex discrimination cases are brought by women.


Sexual Harassment• Refusing to hire or promote

someone unless he or she has sex with the manager or supervisor is sex discrimination that violates Title VII.

• Other forms of conduct, such as lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature, constitute sexual harassment and violate Title VII.


Sexual Harassment (continued)

• Title VII prohibits sexual harassment that causes a hostile work environment.

• The circumstances that create a hostile work environment include:– Frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.


Same-Sex Discrimination

• The U.S. Supreme Court has held that same-sex sexual harassment is actionable under Title VII.

• State and local laws also prohibit this form of discrimination.


Religious Discrimination• Title VII prohibits employment

discrimination based on a person’s religion or religious practices.

• Under Title VII, an employer is under a duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship on the employer.


Defenses to A Title VII Action

MeritMerit

SenioritySeniority

Bona Fide Occupational Bona Fide Occupational Qualification (BFOQ)Qualification (BFOQ)


Bona Fide Occupational Qualification (BFOQ)

• Employment discrimination based on a protected class (other than race or color) is lawful if it is:– Job related, and a– Business necessity

• This exception is narrowly interpreted by the courts.


Civil Rights Act of 1866

• Enacted after the Civil War that says all persons “have the same right to make and enforce contracts as is enjoyed by white persons”; prohibits racial and national origin employment discrimination.


Equal Pay Act

• Protects both sexes from pay discrimination based on sex.

• The act prohibits disparity in pay for jobs that require:– Equal skill– Equal effort– Equal responsibility– Similar working conditions


Criteria That Justify a Differential in Wages

• The Equal Pay Act expressly provides four criteria that justify a differential in wages:– Seniority– Merit– Quantity or quality of product– Any factor other than sex

• The employer bears the burden of proving these defenses.


Age Discrimination in Employment Act

• Prohibits age discrimination in all employment decisions, including:– Hiring– Promotions– Payment of compensation– Other terms and conditions of

employment• The Older Workers Benefit

Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits.


Age Discrimination in Employment Act (continued)

• ADEA applies to employees who are 40 years of age and older.

• Covered employers cannot establish mandatory retirement ages for their employees.

• ADEA is administered by the EEOC.


Americans with Disabilities Act

• The ADA imposes on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities.

• Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities.


Title I of the ADATitle I of the ADA requires an requires an employer to makeemployer to make reasonable reasonable accommodationsaccommodations to individuals to individuals with disabilities that do not causewith disabilities that do not cause undue hardshipundue hardship to the employer.to the employer.


Reasonable Accommodation Under ADA

• Reasonable accommodations may include:– Making facilities readily

accessible– Providing part-time or

modified work schedules– Acquiring equipment or

devices– Modifying examination and

training materials– Providing qualified readers or

interpreters


Qualified Individual with a Disability

• A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds.


Qualified Individual with a Disability (continued)

A disabled person is someone who:1. Has a physical or mental

impairment that substantially limits one or more of his or her major life activities,

2. Has a record of such impairment, or

3. Is regarded as having such impairment.


Forbidden Conduct

• Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability.

• Pre-employment medical examinations are forbidden before a job offer.


Procedure and Remedies• Aggrieved person must first

file charge with EEOC– EEOC may choose to take

action– EEOC may permit individual to

pursue private action

• Relief– Injunction– Reinstatement with back pay– attorney’s’ fees– Compensatory and punitive

damages


Affirmative Action

• Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision.

• Key issues:– Reverse discrimination– Race norming


Reverse Discrimination

• Title VII protects members of majority class

• Affirmative action plans may not have preestablished numbers of quotas

• Majority class members may sue – May recover damages– Other remedies


State and Local Government Anti-discrimination Laws

• Many state and local governments have adopted laws that prevent discrimination in employment.– Usually include classes

protected by federal equal opportunity laws

– Also include classes of persons not protected by federal laws (e.g., homosexuals)


International Reach of U.S. Anti-discrimination Laws

• Civil Rights Act (1991) expressly protects U.S. citizens employed in a foreign country by U.S.-controlled employers.

• Foreign operations not controlled by U.S. employers are not covered.

• The law contains an express exception that protects U.S.-controlled employers from conflicting foreign laws.

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