Employment Laws

Employment Discrimination Laws seek to prevent discrimination based on protected characteristics like race, age, sex, disability, and other personal characteristics.

Discrimination practices can occur in hiring, promotion, job assignment, termination, compensation, retaliation, and various types of harassment

The regulatory model of EEO:

1. societal probelms
2. law and executive order
3. regulatory agency
4. regulatory actions
5. management responses

Regulations

The Title VII of Civil Rights Act of 1964 prohibits employment discrimination because of race, color, sex, national origin, and religion. This applies to employers with 15 or more employees, and prohibits retaliation for opposing discrimination, filing a complaint, or participating in a related proceeding.

• Been amended several times since 1964 to strengthen and expand coverage to educational and governmental agencies.
• 1978 amendments prohibits discrimination based on pregnancy and childbirth
• Exemptions: tax-exempt private clubs and religious organizations, individuals denied employment due to national security reasons, state and local elected officials and their personal staff, Native American tribes and reservations.

LGBTQ discrimination history: discrimination against someone being homosexual or transgender is discriminating based on sex.

Executive Order 11246 prohibits the same discriminatory acts as Title VII, but is was amended in 2014 to include sexual orientation and gender identity. This required contractors to develop affirmative action plans.

Civil Rights Act of 1991: provides the recovery of compensatory and punitive damages in actions under Title VII and the Americans with Disabilities Act. It addresses other aspects of discrimination law, including disparate impact claims, mixed motive cases, seniority systems, coverage of US Citizens employed abroad by American corporations and expert witness fees.

• Importance: makes it unlawful for an employer to use race-norming techniques (i.e., adjust scores or use different cut scores).
• Requires plaintiffs to identify the particular selection practice at question and demonstrate an adverse impact
• codified principles of proof and essentially nullified the Wards Cove decision that the plaintiff bore the major burden of proof throughout trial.

Age Discrimination in Employment Act of 1967: prohibit employment discrimination because of age against persons age 40 or older. Exempts public safety (firefighters, police, commercial aircraft pilots, and emergency personnel).

• applies to employers with 20+ employees
• prohibits retaliation for opposing age discrimination, filing a complaint, or participating in a related hearing.

Americans With Disabilities Act of 1990, Titles I and V prohibits employment discrimination because of mental and physical disabilities that substantially limit a life activity; or having a record of a disability; or being regarded as having a disability.

• Applies to employers with 15 or more employees
• Requires reasonable accommodation for qualified with mental and physical disabilities
• Substantial impairment are hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.
• An individual with a disability must be qualified to perform the essential functions of the job without reasonable accommodation, so they must satisfy your job requirements and be able to perform tasks essential to the job.

ADA Amendment Act of 2008: This legislation was in response to several Supreme Court decisions that were interpreted as overly restrictive and burdensome for the plaintiff

• The law prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining whether an impairment substantially limits a major life activity.
• Broadens the scope of who is considered an individual with a disability, provided more examples of “major life activities that substantially limits” and also changed the EEOC’s strict interpretation of what constitutes “substantially limit

Rehabilitation Act of 1973, Sections 501 and 505 prohibits employment discrimination against disabled persons who are employed by: federal government agencies, federal contractors, and recipients of federal financial assistance.

• Requires federal contractors to use affirmative action in recruiting and employing disabled persons.

Genetic Information Nondiscrimination Act of 2008: this law makes it illegal to discriminate against employees or applicants because of genetic information, which includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as info about any disease, disorder or condition of an individual's family members (i.e., family medical history).

• applies to employers with 15+ employees
• also illegal to retaliate

Immigration and Nationality Act's (INA) anti-discrimination provision, 8 U.S.C. § 1324b makes it illegal to discriminate against employees and employers based on national origin and citizen status.

• Protection from discrimination applies to employees or applicants who are: (A) a citizen or national of the United States, or (B) is an alien who is lawfully admitted for permanent residence; is granted the status of an alien lawfully admitted for temporary residence; is admitted as a refugee under section 1157 of this title; or is granted asylum under section 1158 of this title.
• Applies to employers with 4+ employees
• Also illegal to retaliate

Federally protected classes include:

• Age over 40 (ADEA)
• Disability (ADA, Rehab)
• Pregnancy (pregnancy discrimination)
• Citizenship status (immigration and nationality act)
• Vietnam veterans (VE veterans rehab act)
• National origin, race, color, religion, sex protected by (CRA)

Some local, state, or case law has expanded the protected classes too.

Equal Employment Opportunity Commission

The U.S. EEOC was created by the Title VII of the Civil Rights Act of 1964 to implement the law.

• Responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex, national origin, age, disability or genetic information.
• Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases).

The EEOC Complaint Process steps:

1. alleged discriminatory act
2. complaint filed with EEOC within 6 months (180 days)
3. Employer notified of complaint within 10 days
4. EEOC offers mediation tot he parties. If either side declines, EEOC investigates the charge(s).
5. Investigation is supposed to be completed within 180 days (current average is 10mo-2yrs).

If reasonable cause is found

• attempt to setter with employer (i.e., a conciliation process)
• if no settlement resulting in a consent decree, EEOC can file suit
• consent decree can be agreed to by any time before judicial determination

Reasonable cause NOT found:

• dismissal and right to sue letter issued to employee (note: employees can request a letter if investigation has been 6+ months)
• employee has 90 days to file suit

Fact: discrimination may occur up to 33% of EEOC cases.

EEOC Uniform Guidelines on Employee Selection Procedures

• guidelines on discrimination in employee selection procedures issued jointly by the US Employment Opportunity Commission, Department of Labor, Department of Justice.
• Developed and published in 1978 as a response to 1971 Griggs vs Duke Power Company SupremeC Court decision.

The Uniform Guidelines have changed employment testing more than any other event.

• Describes what evidence will be considered in discrimination cases
• Describes how an employer may defend selection programs.

Griggs v Duke

Griggs v. Duke Power (1971)

• high school diploma and equivalency was required of all candidates.
• selection method had a disproportionate negative effect on black applicants.
  • lack of discriminatory intent is not a sufficient defense by employers
  • selection devices must be job-related if there is demonstrated adverse impact.
  • employers bears the burden of proof if prima facie ("at first site") evidence of adverse impact exists.

Establishing prima facie case. To establish a prima facie case of discriminatory discharge one must show:

1. she is member of protected class
2. she was qualified for the position at issue
3. she was subjected to an adverse employment action; and
4. some additional evidence that would allow an inference of discrimination

How do you show evidence of illegal discrimination? What serves as the additional prima facie evidence as discrimination? To approaches:

• disparate treatment: different standards are applied to different groups of people. E.g., only Hispanic applicants are required to take a language test
• disparate impact (adverse impact): the same standards are applied uniformly to all candidates, but there is a different result for different groups. E.g., height requirements, diploma requirements.

The 4/5th rule. If the ratio of two indices is less than 80% then a prima facie case of disparate impact discrimination exists.

Adverse impact occurs when the selection rate for the minority group in a protected class is less than 80% of the selection rate for the majority group in a protected class.

For for example if 40% of males were hired but 33% of women were hired, then 33/40 = .83, which is higher than 80%, so there is no adverse impact.

What are legitimate defenses to prima facie evidence of discrimination?

• Bona Fide Occupational Qualification (BFOQ)
• valid job-related employment tests
• seniority system
• matters of national security
• legally exempt groups

A Bona Fide Occupational Qualification (BFOQ): "bona fide occupational qualification reasonable necessary to the normal operation of that particular business or enterprise". Only members of a particular class can perform the job, there can be no exceptions.

According to the courts:

• race/color can never be BFOQ
• religion has been (e.g., nun, priest)
• gender seldom is
• age can be considered for public safety positions
• customer preference does not matter, employer desire for safety does not matter.

Why adopt an Affirmative Action (AAP)

• government contractor: utilization analysis, setting goals and timetables, action plan
• lost court discrimination case/consent decree (remedy past situation with preferential treatment)
• voluntarily implmeneting EEO principes (initiated without requirement is controversial, AAP program must be narrowly tailroed, strict scrutiny by courts)