BCOR 3000 1nd Edition Lecture 23 Outline of Last Lecture I. Brown vs. BoardII. EEOCIII. Title VIIIV. Equal Pay ActV. Constructive DischargeVI. Sexual HarassmentVII. Hostile EnvironmentVIII. Age DiscriminationOutline of Current LectureI. DisabilityII. 2008 ADA ChangesIII. Reasonable AccommodationsIV. Defenses for EmployersV. BFOQVI. Affirmative ActionsCurrent LectureDisability is (the actual disability):1.) “Condition that affects major life function”—this is the original languageThese notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.2.) NOW: “a physical or mental impairment that substantially limits one or more major life activities” (must bewidely construed).Disability to get pregnant—precedent case of it not being a disability has been reversed and is now allowed to be a disability if you are of a certain age.Insomnia—TODAY is considered a disability.3.) A record of having such a conditionThere is a record of someone having really bad insomnia. Do not fire b/c of that. Now there is discrimination against someone without knowing if their disability still exists or not.4.) Being regarded as having such a condition, even if one does not actually have one2008 ADA Changes- Major life activities are listed (non-exhaustive)- Whether a condition is a disability or nor is determined before ant ameliorative effects are factored in (except ordinary eyeglasses) - If w/o a (i.e. brace or medication) there is a disability- Having to wear eye glasses is not a visual disabilityReasonable Accommodations- Employer can be required to spend money to adapt a job- Not required if would cause “undue hardship”- Could be due to high cost- Could be due to other difficulties in making the accommodation(s)- BFOQ applies here as well- If someone perhaps has to take “cat naps”—it might be that the employer allows them to come in from 8am-9pm and can take naps instead of 8am-5pm…if not hard to implement it can be allowed. However, for example, if it was retail that would be harder to implement.- Bona Fide Occupation Qualification—the need to be able/required to do things can be used and allowed to make business decision when it comes to hiring. Not based on condition of the person, but rather on what the person can do based on the job.- i.e.: Morbid Obesity—is considered to be a disability if you are 2x your recommended weight- If recovering from substance abuse—cannot discriminate- If using on the job—cannot use itDefenses for Employers1. Business Necessity2. Merit—past performance; test results; anything related to anything you can do for the job3. Seniority—fire those who are new hires; promotions based on those who have been there longer4. BFOQ—“Bona Fide”—there are qualifications for the job; gender is a BFOQBona Fide occupational Qualification- Allows discrimination if the category is legitimate qualification for employment- Mainly used with gender and sometimes religion- National origin?- Never can be applied to race or color—however employers can get around it by saying you have “to look like a certain person”- Exceptions to everything based on the particular type of job- Have to look at the particular job/service when deciding if it is a BFOQ- Height, weight, gender, skills requirementsExample Case: Guys apply to Hooter’s girls…is gender is BFOQ to wait tables at Hooter’s. Guys argument: serving beer and wings. Hooter’s Case: sexual fanaticizing. EEOC settled the matter. Affirmative Action- unclear/conflicting rulings- Bakke: intermediate scrutiny- Adarand: no, strict scrutiny, no quotas; ends when probably is over- Two 2003 Michigan schools cases:- 20 point adjustment illegal- Considering race legal- 2009: wrong to ignore test results to use affirmative action- Can’t ignore test results even if you want to achieve something elseJune 24, 2013 Decision on Affirmative ActionSup. Crt. Remanded caseStrict scrutiny with governmentPrivate