Transcript Which below is illegal? • A supervisor refuses to hire applicants who are vegetarian • Two employees are denied promotions because their.

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
Title VII 1964 (Basic Protections)
Illegal for employers to discriminate (hiring, discharge, compensation, terms, conditions, or
privileges of employment) because of:
Race
Color
Religion
Sex
National Origin
Original protected groups (others
now include age and disability)
Who has to comply? Private (1964) and private (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)
Case Example
In early 2009, a male applicant filed suit against Hooters of America after he
was turned down for the position of server. 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.
In 2010, two separate lawsuits were filed against alleging weight discrimination
(Convery v. Hooters of Roseville; Smith v. Hooters of Roseville). Two past servers
contend that they were fired because they were 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. (These suits also claim that Hooters weight
requirements represent per se gender discrimination).
Do you think Hooters should be allowed to engage in these practices? Why or
why not?
Case Examples: Sex as a BFOQ
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 socalled 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
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]
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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
McDonnell Douglas v. Green
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
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)
Disparate Impact Process
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
Griggs v. Duke Power
Promotion Requirements
 Pass the Wonderlic Personnel Test and
Bennett Mechanical Aptitude Test
 Possess a high school diploma
Effects 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
Basic Adverse Impact Example
Group
Non-minority
Minority
Applicants
Hired
Selection ratio (SR)
100
20
.20
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?
Case Example: Connecticut v. Teal (Bottom Line Defense)
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.
Key Affirmative Action Factors
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
No harm to those in the majority
• Protection of jobs (e.g., layoffs)
Equal Pay Act (1963)
Must pay males and females, within a given establishment, same rates for jobs
requiring equal:
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Skill
Responsibility
Effort
Work conditions
Exemptions (affirmative defenses):
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A seniority system
A merit system
A system which measures earnings by quantity or quality of production
Any factor other than sex (FOS)
Age Discrimination in Employment Act (ADEA)
Basic Protections
• Protected group – Individuals 40 years of age or older (employees and job
applicants)
Two Basic 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)
What is the Legal Definition of A Disability?
Disabiliity and Qualification Requirements
Being Disabled
Prong 1
Current physical or mental impairment that substantially
limits a major life activity
Prong 2
A record of such an impairment
Prong 3
Being regarded as having such an impairment
Being Qualifed
Prong 1
Possession of KSAs need to perform essential job
functions (or duties)
Prong 2
Performance of all essential duties with or without
reasonable accommodation
Proving Substantial Limitation of a
Major Life Activity
Criteria:
 Average Person Test
Failures of the Average Person Test:
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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)
 Permanence Test (> 6 months; ADAAA)
Unconditional Exclusions Under the ADA
 Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting from physical impairments, or other
sexual impairments or other sexual behavior disorders
 Compulsive gambling, kleptomania, or pyromania
Psychoactive substance use disorders resulting from current illegal use of drugs
Role of Correctable Measures in Determning a
Substantial Limitation
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
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
Examples of Major Life Activities
 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)
If Disabled, is the Individual Qualified?
[Must be able to perform essential functions of the job with or
without a reasonable accommodation]
What are essential job functions?
Essential job functions are best determined via a systematic job analysis
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 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:
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Restructuring job tasks
Altering work schedules
Buying or modifying equipment
Modifying exams or training program
Medical leave (must be time-barred)
Companies only have to accommodate "known" disabilities
(flexible interaction requirement)
• Some disabilties are obvious (e.g., loss of a limb, person seated in a wheelchair)
• Cannot ask if an applicant has a disability
• Can ask applicants if they can perform essential, job-related functions and/or to
perform essential job duties
Organizations are Not required to:
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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
Medical Examinations & Inquiries About Disabilities
>>> An employer may NOT require a job applicant to take a medical
examination before making a job offer
MMPI and the ADA
Karraker 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
Maternity and parental leave policies:
A comparative view (before the FMLA)
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
Unspecifie
d
United
States
0
0
0
0
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)
~ Types of Sexual Harassment ~
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:
 Unwelcome
Is it sexual harassment if a female employee engages in consensual sex with a male
superior?
 Unreasonably interferes with one’s work performance or creates an
intimidating, hostile, or repressive work environment)
What determines unwelcome sexual behavior?
•
A complaint at the time of the offense strengthens a claim, but it is
NOT required
•
Victim's non-verbal conduct may indicate that the behavior is
unwelcome (e.g., being visibly upset, angry)
•
Corroboration is helpful (e.g., testimony from eyewitnesses, victim
told others of the harassing behavior); but evidence can come solely
from the victim
How is a hostile work environment
established?
• Reasonable person/woman/victim standard
• Repeated offenses
• Behavior of supervisors are more likely to be viewed as creating a hostile
environment. [Seen as an "agent" of the company]
• Victims do not have to prove they suffered tangible or severe psychological
damage (e.g., Harris v. Forklift Systems)
Who can commit acts of sexual harassment?
• Supervisors (agent of company -- circumstances of employment relationship,
job functions)
• Co-workers (role of corrective action)
Are there grounds for sexual harassment if a consensual relationship already existed between two
employees?
Can an organization be responsible for harassment of its customers/clients?
• Clients (extent of company control)
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?
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
 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
101 to 200 employees
201 to 500 employees
501 employees or more
$50,000
$100,000
$200,000
$300,000
Legitimate to admit evidence of alleged victim's "provocative behavior and dress."
[From Supreme Court decision in Meritor Savings v. Vinson]
Role of Context in Assessing Sexual Harassment Claims
• Totality of circumstances
Nature of sexual
advances (behavior)
• Record as a whole
• Case by case assessment
From Oncale v. Sundowner:
"... careful consideration of the social context in which the particular behavior
occurs and is experienced by the target"
"The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed."