discrim emplmt/hardison/schl law 10-11-121 discrimination in employment presented by: catherine...

Discrim Emplmt/Hardison/Schl Law 10-11-12 1

Discrimination in Employment

Presented by:

Catherine Hardison, JD, PhD

And

Charles Wheaton, PhD


Civil Rights Act, 1964 Title VII 1972 = School districts included Based on race, color, sex, or national origin cannot

Fail, refuse to hire or discharge any individual with respect to compensation, terms or conditions of employment

Limit, segregate or classify employees or applicants for employment opportunities or otherwise adversely affect his status as an employee

Fail or refuse to refer for employment


Civil Rights Act, 1964 Title VII Amended in 1991 (PL 102-166)

Allowed for compensatory and punitive damages, back pay, reinstatement for disparate treatment

Steps: File complaint with EEOC with 180 days of alleged

discrimination OR within 300 days if individual has filed a claim with local or state civil rights agency

If don’t meet timeline, then lose standing (meaning?)


Civil Rights Act, 1964 Title VII To succeed, Plaintiff must demonstrate employers reason for

denying employment is false and actual reason is discrimination.

Example: Application made Person is qualified for position Not given fair consideration for position Demonstrate prima facie case, then burden shifts

to school district to prove employment decision is not based on a discriminatory practice


Civil Rights Act, 1964 Title VII McDonnell Douglas Corp v. Green (1973) &

Furnco Construction Corp v. Waters (1978) Plaintiff carries initial burden of establishing a prima facie

case (sufficent evidence) of employment discrimination Burden shifts to D to refute prima facie case--demo

legitimate nondiscriminatory reason for decision If D is successful, the plaintiff then must prove D’s actions

are a mere pretext for discrimination.


Civil Rights Act, 1964 Title VII What if…has district violated title VII

A district passes over a female who has equal or more impressive credentials than a male for administrative positions?

An African American female was not promoted because she lacked interpersonal skills and had an abrasive personality?

A female teacher showed discrimination in hiring, but the district showed that she would not have been promoted had she been a man?


Sexual Discrimination Also covered under Title IX of Education

Amendments Act of 1972 Administered by OCR Also has a provision for sexual distinctions in

employment where sex is a bona fide occupational qualification

Violations can mean a loss of federal funds for an entire district


Rehab Act of 1973 and Amer with Disabilities Act of 1990 ADA + IDEA

Protects individuals against discrimination and

Assures equal access and opportunity Can you think of a place that is not accessible? How would you make it more accessible?


Rehab Act of 504 Section 504 of Rehab Act

Prohibits Discrimination against any “otherwise qualified” person who has a disability with respect to:

• Employment • Promotion• Training • Compensation• Fringe Benefits• Terms & Conditions of Employment

“No otherwise qualified individual with handicaps… shall solely by reason of his or handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”


ADA and 504 ADA protects students and any person who

“has a physical or mental impairment that substantially limits one or more major life

activities” Caring for oneself, performing manual tasks, hearing,

seeing, speaking, breathing, walking, learning and working

Has a record of such impairment Or is regarded by others as having such an

impairment


ADA and 504 Employers (school districts) must make reasonable accommodations:

Existing facilities used by employees must be readily accessible/usable by disabled individuals

Accommodations include Job restructuring Part time, modified work schedules Reassignment to a vacant position Acquisition/modification of equipment, devices Appropriate adjustment or modifications of examinations,

training materials, or policies Provision of qualified readers/interpretators


Qualifications for Employment BUT, Employer can claim undue hardship, meaning. . .

Significant difficulty or expense in light of:

Nature and cost of accommodations Overall financial resources of facility/ies needing accommodation, #

people employed, effect on expenses or resources Overall financial resources of covered entity Type of operation, composition, structure, and functions of the work

force, geographic separateness, administrative, or fiscal relationship of the facility/ies to covered entity

Burden of proof is with the employer


Scope of Protection: 504 (Rehab) & ADA

Complaint can be filed with Dept of Education, federal funds can be terminated, (subject to judicial review)

Can seek relief in court Injunction Monetary damages (if evidence of

malicious intent or bad faith)


Scope of Protection: 504 (Rehab) & ADA

Contagious Diseases 9th Circuit (Chalk v US District Court,

Central District of California, 1988) Person with AIDS is “otherwise qualified” under

Section 504 of Rehab Act, therefore afforded full protection under the provisions of the Act


Scope of Protection: 504 (Rehab) & ADA However, courts will allow:

Districts to balance rights of employees with contagious diseases against the risk their presence might create health hazards for those who MUST come in contact with them.

Test: expert medical advice, then everyone’s rights are preserved


Gender Discrimination Employer’s conduct does not have to be

independently egregious for plaintiff to be awarded punitive damages

Therefore, egregious conduct not required to pursue punitive damages

Why is this important?

Sexual Harassment Title VII and Title IX prohibits Continuum of behaviors

Verbal: sexual comments about person’s anatomy or clothing, repeated requests for dates, refusing to accept “no” answers

Can even be comments like, babe, sweetheart, honey, sexual jokes or stories

Physical: hugging, kissing, stroking, patting, massaging neck and shoulders


Sexual Harassment Key is that the behavior is unwanted or

unwelcomed (have to tell the person) Quid quo pro (this for that) Non quid pro quo (hostile work

environment) District must know or should have

known-should have known is this fair?



Racial Discrimination If cannot prove discriminatory intent, plaintiffs will not

succeed in claims of discrimination Disparate treatment:

Employer treats some people more unfavorably than others in regards to

Employment, job promotion, or employment conditions Based on:

Race, color, religion, sex, or national origin


Racial Discrimination Disparate Impact

Numbers of a similar class affected adversely by A particular employment practice that appears neutral

Difference is that disparate impact suits are different because they do not allege OVERT discriminatory action

Facially neutral, but employment practices do fall more heavily on one protected group


Racial Discrimination School districts will have a hard time

proving nondiscriminatory purposes once a plaintiff has shown either intent or impact

BEST PRACTICE: Monitor practices for discriminatory intent (easiest) or impact.

Age Discrimination What do you think the age one must

reach before he/she can sue for age discrimination?

Guesses on whiteboard



Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA)

Primary effect is on teachers As of 1986, there is no age limit for hiring,

dismissal, and other terms and other conditions of employment

Early incentive to retire are allowed Can non-renew a teacher, so long as not

related to age


Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA) Protects individuals over 40 Burden is on plaintiff to establish a prima facie case

of age discrimination Then district must demo a legitimate state interest for

its action (age cannot be the sole criterion that motivates a board decision to discriminate against school personnel)

Act is very clear, cannot discriminate!


Pregnancy & Public School Employment

Teachers protected by Pregnancy Discrimination Act of 1978 Amendment to Title VII Protects any form of discrimination based on

pregnancy Cleveland Board of Education v. LaFleur (1974)

district’s mandatory maternity cut-off dates met no legitimate state interest in maintaining a continuous and orderly instructional program


Pregnancy & Public School Employment

Cannot assume every pregnant teacher is unable to perform duties beyond a certain date

Scope of Act limited to policies that have an impact on or treat medical conditions relating to pregnancy and childbirth less favorably than other disabilities


Discrimination in Employment-BEST PRACTICES-Essex

Do not, in any fashion, discriminate against employees based on race, color, religion, gender, or national origin

If prima facie evidence is presented by an employee, already be prepared to show a compelling educational interest as the motivation (think ahead!)

Do not discriminate (retaliate against) an employee who opposes unlawful discriminatory practices or who participates in an investigation


Discrimination in Employment-BEST PRACTICES-Essex If aware of discrimination or harassment, take care of

the problem, or you will be liable Do not coerce a person to retire due to age, or deny

any rights or privileges afforded other employees Remember race discrimination affects all employees Even if employers conduct in an employment

discrimination case is not egregious, punitive damages can still be awarded


Discrimination in Employment-BEST PRACTICES-Essex Differential employment criteria that appear

neutral can still have an illegal disparate impact

Employment examinations must have a rational relationship to actual job performance criteria

In teacher RIF situations, racial or statistical quotas are not legally defensible

Scenario—Time to Work?


discrim emplmt/hardison/schl law 10-11-121 discrimination in employment presented by: catherine...

Documents