EMPLOYMENT DISCRIMINATION I TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 Prohibits discrimination against employees applicants and union members on the basis of race color national origin religion and gender at any state of employment A The Equal Employment Opportunity Commission If the EEOC decides not to investigate a claim the victim may bring his or her own lawsuits against the employer B Intentional and Unintentional Discrimination The article prohibits both intentional and unintentional discrimination 1 Intentional Discrimination Disparate treatment discrimination to prove disparate treatment on the basis of discrimination plaintiff must prove He she is a member of a protected class Applied and was qualified for job in question Was rejected by employer Employer continued to seek applicants for the position or filled the position with someone that was not in a protected class If plaintiff succeeds in proving these requirements then a prima facie case of illegal discrimination has been established plaintiff has met initial burden of proof and employer can only win if presents legally acceptable defense 2 Unintentional Discrimination Disparate impact discrimination occurs when a protected group of people is adversely affected by an employer s practices procedures or tests even though they do not appear discriminatory Pool of applicant test plaintiff can prove disparate impact by showing that the percentage of the protected class in the employer s workforce does not reflect the percentage of that group in the pool of qualified individuals Plaintiff must then prove a causal link C Discrimination based on Race Color and National Origin Race ethnic heritage national origin place of birth 1 Reverse Discrimination Discriminating against majority groups individuals 2 Potential Section 1981 Claims This section prohibits discrimination on the basis of race and ethnicity in the formation or enforcement of contracts Employers must reasonably accommodate and employee s sincerely held religious beliefs D Discrimination based on Religion E Discrimination based on Gender Exception when gender is essential to the job Pregnancy Discrimination Act of 1978 extended gender discrimination protections to pregnant affected by childbirth or such women 1 Equal Pay Act For requirements to apply male and female employees must work at the same establishment doing similar work equal in skill effort responsibility and working conditions Courts look at job content not job description 2 2009 Equal Pay Legislation Paycheck fairness act clarifies the defenses that employers may offer and prohibits the use of gender based differentials in assessing an employee s education training or experience F Constructive Discharge Employer causes the employee s working conditions to be so intolerable that a reasonable person in employee s position would feel compelled to quit 1 Proving Constructive Discharge Plaintiff must present objective proof of intolerable working conditions which employer knew about and failed to correct Employee demotion is one of the main causes 2 Applies to All Title VII Discrimination G Sexual Harassment Two forms of sexual harassment Quid pro quo occurs when sexual favors are demanded in return for job opportunities promotions salary increases etc Hostile environment harassment workplace is permeated with discriminatory intimidation ridicule and insult that is sufficiently severe to alter conditions of victim s employment 1 Harassment by Supervisors Tangible employment action significant change in employment status or benefits and only a supervisor or someone with that kind of authority can cause that sort of harm 2 The Ellerth Faragher Affirmative Defense An employer is liable for a supervisor s harassment of employees even though employer is unaware of the behavior Defense has two elements Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior policies procedures etc Plaintiff employee must have unreasonably failed to take advantage of preventive or correcting opportunities provided by employer to avoid harm Employer must prove both 3 Retaliation by Employers Demotion fire change terms and conditions of employment etc Article VII prevents retaliation by employers and employees can sue their employers when it occurs through a retaliation claim 4 Harassment by Co workers and Others Employer is held liable only if he knew or should have known about the harassment and failed to take immediate action 4 Same Gender Harassment Protection under article extends to same gender harassment H Online Harassment By taking prompt remedial action employers can escape liability from this type of harassment II DISCRIMINATION BASED ON AGE Age Discrimination in Employment Act Prevents discrimination against individuals 40 years or older also prohibits mandatory retirement for non managerial workers For restrictions to apply company must have 20 or more employees and be involved in interstate commerce A Procedures under the ADEA A plaintiff must show that the unlawful discrimination was not just a reason but THE reason for the adverse employment action employee has burden of proof To establish prima facie case the employee must show Membership of protected age group Qualified for the position from which he or she was discharged Discharged because of age discrimination B Replacing Older Workers with Younger Workers Plaintiff does not need to prove that a person outside the protected class replaced him or her as long as replacement worker is younger C State Employees not Covered by ADEA Under eleventh amendment states are immune to lawsuits brought by private individuals Exception when fundamental rights are at stake III DISCRIMINATION BASED ON DISABILITY Americans with Disabilities Act requires that employers reasonably accommodate the needs of persons with disabilities unless to do so would cause the employer to suffer undue hardship A Procedures under the ADA Plaintiff must prove Has a disability Was excluded from the employment solely because of the disability Must pursue claim through EEOC Is otherwise qualified for the employment in question B What is a Disability Person with physical or mental impairments that substantially limit their everyday activities Health conditions considered a disability under federal law blindness alcoholism heart disease cancer muscular dystrophy cerebral palsy paraplegia diabetes AIDS HIV and obesity 1 An Initial Narrow
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