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 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)
Case Example
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 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?
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
Fisher v. UT (oral arguments this fall)
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)
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)
What Counts as a Disability?
Proving Substantial Limitation of a
Major Life Activity
Criteria:
 Average Person Test
 Permanence Test (> 6 months; ADAAA)
Are Possible Correctable Measures Used in
Determning a Substantial Limitation?
 Given the ADAAA, impairments must be assessed without
considering available correctable measures (e.g., medication,
prosthetics, or other devices)
So, impairments (e.g., diabetes, hypertension, epilepsy) must be
evaluated regarding how the disease affects people when
unmedicated (overturned a series of Supreme Court cases in 1999)
~ Summary of the ADAAA (2008) ~
• Impairments must be considered in their “uncorrected state”
• Impairments with a duration (or expected duration) of greater than six months
are considered to be “permanent.”
• Working is a major life activity (Broad range requirement)
• Episodic diseases, such as tuberculosis, must be considered while in their active
state.
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 disabilities 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
PGA v. Martin (cont.)
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
“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.
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)
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