Transcript Discrimination in Employment

Discrimination in Employment
Chapter 23
Goals
Recognize the difference between legal
and illegal employment discrimination
 List the various statues governing
employment discrimination

Legal versus Illegal
Discrimination
23-1
What’s Your Verdict?
Clare has been working at Rich Manufacturing for three years. Lisa
has been working there for two months. They both operate
computerized machine-tooling equipment. The machines perform
many operations, such as drilling, cutting threads, turning,
deburring, and surfacing metal objects. Lisa is faster. When a
promotion opportunity came along, it was given to Lisa. Clare
protested, saying that she was being discriminated against. She
was angry because Lisa would be earning almost 30 percent
more money than she would. Is Clare correct? Is she a victim of
unjustified discrimination?
Clare is being discriminated against justifiably. If the employer
has a good reason for the treatment the discrimination is justified.
When is discrimination illegal

Discrimination is a part of everyday life.
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In the work environment it must be objectively justified.
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Employment discrimination – defined as treating
individuals differently on the basis of race, color,
gender, pregnancy, age, religion, disability and
national origin.
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Justified discrimination – judging on dependability,
skills, creativity, smarts, and hard work usually receive
more favorable treatment.
Protected Classes

Group characteristics that employers may not
consider when making employment decisions.
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Race and Color
Gender
Pregnancy
Age
Religion
Disability
National Origin
Race and Color
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Includes all persons who are not white.
So African Americans, Asians, Filipinos,
Hispanics, Native Americans and others
Gender
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Employers may not discriminate against
females or males based on their gender.
In addition, sexual harassment is illegal.
Pregnancy
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cannot discriminate because of a
person’s childbearing condition or plans
Age
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People over the age of 40 are protected
Religion
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People who have religious beliefs of any
kind are members of a protected class.
This category could include everyone
Disability
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Physically or mentally disabled are
afforded limited protection against
discrimination.
National Origin
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based on their country of origin. Those
who do not speak English or who are not
citizens of the United States are
protected to a limited extent.
Scope of Protection
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Against Unjustified Conditions of
Employment
illegal to discriminate in hiring and also any
unjustified discrimination in any “term
condition, or privilege of employment”
 Any protected class protected in any aspect
of the job.
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Scope of Protection
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Governing Most Employers –
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Employers that have more than 15
employees and are engaged in interstate
commerce are subject to federal
employment discrimination laws.
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State gov. agencies, employment agencies,
and labor unions also.
Checkpoint
Name the bases for unjustified discrimination in
employment
Race, color, gender, and pregnancy, age, religion,
disability, national orgin
Question
Jannette was employed in a glass factory. Her job was
to inspect and pack glass jars in cartons. Men were
employed in the same capacity, and they were
required occasionally to lift the packed cartons. The
women were paid 10% less than the men were. Is the
difference in pay illegal?
The court would hold that Jannette and the other women were entitled
to equal pay for equal work and the “equal work” did not mean identical
duties.
Laws that Prohibit Employment
Discrimination
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Title VII of the Civil Rights Act of 1964
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forbids employers from discrimination in
hiring, paying, training, promoting, or
discharging employees on the basis or race,
color, national origin, religion or sex.
Laws that Prohibit Employment
Discrimination
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Title VII of the Civil Rights Act of 1964 created
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Equal Employment Opportunity Commission (EEOC)
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authority to investigate and settle complaints of job discrimination. It can
prosecute offenders.
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If an employer has discriminated in the past the cours may mandate an
affirmative action plan
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A plan to remedy the past discrimination.
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Positive steps aimed at offsetting past discrimination by brining the % of
minorities and women in the workforce up to their corresponding % in
the pool of qualified applicants.
Employers that contract with the federal government must submit an
affirmative action plan.
Laws that Prohibit Employment
Discrimination
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Equal Pay Act of 1963
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Prohibits wage discrimination based on sex. Equal
pay for equal work.
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Differences are allowed if based on
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Merit system
Seniority System
System basing pay on quantity or quality of production.
System based on any factor other than gender.
Laws that Prohibit Employment
Discrimination
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Americans with Disabilities Act
requires that employers not engage in
unjustified discrimination against disabled
persons on the basis of their disability.
 A disability substantially limits a major life
activity. It can be physical or mental.
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Use of illegal drugs is not a disability
 Homosexuality not a disability
 Contagious Disease not a disability unless court
says so on a case by case basis.
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Laws that Prohibit Employment
Discrimination

Americans with Disabilities Act
a qualified individual with a disability who can
perform the essential functions of the job or who
could perform those with a reasonable
accommodation.
 A reasonable accommodation not required if it
would produce an undue hardship. (Cost to
employer)
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Laws that Prohibit Employment
Discrimination
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Pregnancy Discrimination Act
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it is illegal to discriminate because of pregnancy,
childbirth, or related medical conditions.
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Employer may not hire, fire, refuse to promote,
or demote a woman because they are pregnant.
May not discriminate in providing of fringe
benefits (cannot carry a policy that covers
everything except pregnancy)
Checkpoint
Name the laws discussed in this section that prohibit
unjustified discrimination in employment
Title VII of the Civil rights Act of 1964
Equal Pay act of 1963
Age Discrimination in Employment act of 1967
Americans with Disabilities Act
Pregnancy Discrimination Act
Question
Sven immigrated to the United States at age 12 and
obtained citizenship at age 18. He speaks with a thick
accent. When he applied for a job as a bank clerk,
someone else was selected because the other person
was more accurate in counting money. Has Sven
been the subject of discrimination? Was the
discrimination justified or unjustified?
Yes – Sven has been the subject of Discrimination
The discrimination, however, was justified.
Question
“We Wash Windows” is a company that washes windows
in a commercial building where many windows are six
or seven feet off the ground. Taller people can wash
these windows more quickly. Atushi is Japanese.
When he applied for a window washer job the
company told him they don’t hire Japanese because
most Japanese people are short. Atushi is six feet,
four inches tall. Has Atushi been the subject of
discrimination? Was the discrimination justified or
unjustified?
Yes. Atushi has been the subject of discrimination. The discrimination
was unjustified.
Question
When Quality Furniture Manufacturing Company faced
financial difficulties it began laying off employees. The
majority were over the age of 40, although they
constituted only 5% of the workforce. Young workers in
their twenties were immediately hired to fill the jobs of
those discharged. Quality justified this action by noting
that increased health insurance costs were the
overwhelming reason for its financial problems. As
insurance coverage for older employees, especially
those 50 and older, costs two to three times what
coverage for younger employees cost, it only made
common sense to discharge the older employees first.
Is this ethical? What statute, if any was violated?
The Age discrimination in Employment would have been violated.
Question
Irene was a Mormon. She believed that other members
of her religion were more honest than the general
population. When she was asked to hire a bank teller
for her employer, she advertised the job as one
available only for members of her religion. Is Irene’s
action legal? Would it be legal if Irene could prove in
court that members of her religion were in fact more
honest?
No, Irene’s action is not legal. The Civil Rights act of 1964 forbids
employers from discrimination in hiring on the basis of religion. Irene’s
action would still not be legal even if she could prove that members of
her religion were more honest.
Proving Illegal Discrimination
23-2
Goals
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Discuss how a case based on unequal
treatment is proven
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Describe how a case based on disparate
impact is proven.
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Recognize the forms of sexual
harassment.
Unequal treatment
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Sometimes called disparate treatment
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employer intentionally treats members of a
protected class less favorably than other
employees
Evidence of Unequal Treatment
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Cases based on direct Evidence –
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treatment intentional and open
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Example: Men only
To win only need to prove that denied
employment because you’re a member of a
protected class.
Evidence of Unequal Treatment
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Cases based on Indirect Evidence
Most of today’s cases are these
 To establish case against employer
employee must show the following:
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The person was a member of protected class.
 The person applied for the job and was qualified.
 The person was rejected.
 The employer held the job open and sought
other persons with similar qualifications.
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Evidence of Unequal Treatment
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Cases based on Statistics –
Gov. can initiate proceedings against
company for employment discrimination
when there is evidence of a pattern and
practice of discrimination.
 Gov. must show a statistically significant
difference between protected class
composition of the pool of qualified
applicants and the workforce.
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Question
Geraldo, an Hispanic, had 10 years of experience as a finish
carpenter. He applied for a job with a local construction company
but was turned down. The company continued advertising the
position and eventually hired Jake, who was white. He did not
have as much experience as Gerldo. Geraldo filed a
discrimination suit against the company. At the trial, the company
was not able to justify its decision to hire Jake instead of Geraldo.
Will a court find in favor of Geraldo or the company?
Geraldo, a member of a protected class. The court presumed that the
discrimination was intentional and Geraldo won the suit.
Employer’s Defenses
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Business Necessity –
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Employer’s actions were meant to advance
the business rather than to create
unjustified discrimination
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Unequal treatment was justified by a reason
that is legal.
Employer’s Defenses
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Bona Fide Occupational Qualifications –
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a job requirement that compels
discrimination against a protected class.
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Example: Actor for male part in play
Must be essential to the business.
Employer’s Defenses
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Seniority –
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A Bona fide seniority system rewards
employees based on length of employment
rather than merit and is not intended to
discriminate. (Is Justified Discrimination)
Employer’s Defenses
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Pretexts
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Assert that discrimination is a business
necessity or BFOQ (Bona fide occupational
qualifications)
Checkpoint
What are the three main bases for unequal treatment of
cases?
Direct evidence, indirect evidence and statistics
Question
Sharon’s machine Shop manufactures fire hydrants. When
finished, each hydrant weighs approximately 175
pounds. Part of the job description for hydrant
assemblers states that a person hired for this job be able
to lift 175 pounds ten times in two minutes. This
requirement is similar to the actions required to
assemble the hydrants. Is this job requirement a form of
illegal employment discrimination?
Sharon’s weight-lifting test is neutral on its face. It can be statistically
shown, however, that a smaller proportion of women will pass the test.
Therefore, it has a disparate impact. However, the test is justified by
the business necessity because it is clearly job-related.
Disparate Impact Cases

Many companies have policies that are neutral
on its face. (makes no reference to a protected
class)
 Disparate impact – the policy eliminates more
members of protected classes than members
of the majority.

To win the employee must show statistically that the
practice excludes members of a protected class.
For the business to win it must show it is a
legitimate business necessity.
Disparate Impact Cases
By Statistical Proof
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Employee to win must establish that fewer members qualified for a job when
the challenged employment practice is used. They Use:
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The Applicant pool – those qualified for the job without regard to the
challenged practice.
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The Workforce pool – persons actually in the employer’s workforce.
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The % of the protected class in the applicant pool is statistically higher then
the % in the workforce group. This suggests disparate impact.
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Causation – must be proven and this must link the challenged practice and
the difference in % of protected class persons.
Checkpoint
What does disparate impact mean?
The employment policy eliminates more members of
protected classes than members of the majority
class.
Sexual Harassment Cases
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Two Forms –
Quid Pro Quo
 Hostile Environment
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Sexual Harassment Cases
Quid Pro Quo
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One thing is exchanged for another
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The employer may offer any term,
condition, or privilege of employment
such as a raise or favorable evaluation.
Question
Ben delivered the internal mail at the headquarters of Antiona’s, a
national chain of lingerie shops. Everyday when he entered the
product design section, several female employees would whistle at
him and call him “honey doo” and other similar terms of endearment.
Occasionally, a female worker in the section would pinch him or
caress him. Ben mentioned to their manager that the attention
made him uncomfortable, but she refused to correct it. What form of
sexual harassment is taking place here? Would the company be
liable for what is done by its employees and manager?
A hostile environment is here? Generally, the employer is liable for the
conduct of non-supervisory employees only when the harassment is
either know or should have been known. Here the manager knew
about the harassment and therefore Antiona’s will be liable if Ben
brings a hostile environment lawsuit.
Sexual Harassment Cases
Hostile Environment
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Unwelcome sexual comments, gestures, or contact
interfere with an employee’s ability to work.
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When supervisor harasses a subordinate the employer
is strictly liable.
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Employer liable for non-supervisory employee only
when the harassment is either known or should have
been known to supervisors and they failed to act
effectively to prevent further occurrences.
Checkpoint
What are the two forms of sexual harassment?
Quid pro quo and hostile environment
Question
Pablo interviewed people to serve as clerks at his dry-cleaning
business. Pablo thought that he would get more repeat business if
he hired attractive male clerks. He advertised and told females that
he was only interested in male clerks so they need not bother with
an interview. Would this form of discriminating be proved directly or
indirectly? Would the case be one based on disparate impact or
disparate treatment?
This would be proved directly
Pablo openly admitted that he is only interviewing men
This would be based on disparate treatment. He is treating members
of a protected class less favorably than others.
Question
Finance America reimbursed employees for their job-related
educational expenses. Janice applied for reimbursement for a
course, but was told, “This isn’t job related.” She learned that
another employee Gail, had been turned down, too. Later, Janice
met four men with similar jobs who had taken the same course and
had been reimbursed. What type of discrimination occurred? What
defense is Finance America most likely to employ in this case?
Disparate treatment is the type of discrimination that occurred in this
case.
Women were not reimbursed for the same course. Finance America is
most likely to employ a defense of business necessity.
Question
As a condition of employment, Duke Moving required a high school
education or a satisfactory score on a general intelligence test. Both
requirements were designed to improve the quality of the workforce
but neither requirement was shown to improve job performance.
Griggs claimed that the test discriminated against him. He said that,
as a minority member, he had to had the educational opportunity
afforded others. Moreover, he said, the test did not relate to skills
and qualifications that were necessary for employment at Duke.
Was Griggs legally correct? If he was sued, what type of
discrimination would Griggs claim?
Griggs is legally correct. If he sued, he would be claiming disparate
impact discrimination.
Question
When Debbie won the job of administrative assistant to Toby Main, the
president of Condoroama, a time share company, she was told the
position involved a lot of traveling with the president. Every week,
Main flew to various places in the United States, and the Caribbean.
After a few weeks of this travel several of her fellow employees
stated implying that Debbie was being intimate with her boss, which
she was not. The gossip, however, made her very uncomfortable,
and she was considering quitting her job as a consequence. What
options are open to her instead of quitting?
She should report the situation to her boss. He must then take
effective means to prevent the recurrence of the hostile environment.
If the steps taken are not effective, even if taken in good faith, Debbie
can sue for sexual harassment.
Question
The problem eliminated, Debbie decides to stay on. Eventually, Toby
Main retires and his son, Randy, takes over the business. On their
last trip to Barbados, Toby made it clear that, unless Debbie granted
him sexual favors, he would fire her and replace her with someone
who would. What would you advise Debbie to do?
Debbie has grounds fro a quid pro quo sexual harassment claim.
However, she must secure proof of Randy’s behavior to win.