- Laws governing employment and agencies that enforce the laws - 13th and 14th Amendments o 13th prohibits slavery & involuntary servitude o discrimination may be considered incident of slavery, liable to legal action o 14th guarantees equal protection of the law o both amendments give congress power to enact legislation to enforece - Civil Rights acts of 1866 and 1971 o Provisions of 13th and 14th amendments o 1866 grants all citizens the right to make and enforce contracts for employ o 1871 grants all citizens the right to sue in fed court if they feel deprived of rights or privileges does not extend to overseas discrimination o used to be to solve reconstruction-era racial problems o now governs how to deal with racial discrimination in private employment o 1991 CRA amended 1866 so workers are protected from intentional discrim in all aspects, not hiring and promotion only includes harassment o 1866 allows for jury trials and compensatory + punitive damages for victims o also used to broaden racial discrimination (original for blacks) - Equal Pay act of 1963 o Requires men and women working for same establishment be paid the same rate of pay for work that is substantially equal in skill, effort, responsibility, and working conditions o Differentials are legal if based on seniority, merit, quality/quantity of work, or any other factor other than sex o Thousands of equal-pay suits filed since the act, 1000 a year received by EEOC - Title VII of CRA of 1964 o CRA of 1964 divided into sections dealing with specific facet of discrim o Title VII most relevant because it prohibits discrimination of race, color, religion, sex or national origin o Most important bc it has broadest coverage, prohibitions, and remedies o Law passed to guarantee people would be considered for jobs on basis of abilities and talents o 1972 Title VII expanded to include all public & private employers w/ more than 15 employees EXCEPT private clubs, religious organizations, Indian reservations also prevent denial, termination, or suspension of gov contracts if employer followed an affirmative action plan o Affirmative action = actions to overcome effects of past/present policies, practices, or barriers to equal employment opportunity o If a woman filed Title VII claim in 2008, matter should continue til 2013, she’s entitled to as much as 7 years back pay from 2006 (2 years before charge) til when matter is resolved o Exemptions Bona fide occupational qualifications Discrimination permissible when prohibited factor is a BFOQ Meaning, when it’s considered “reasonably necessary to the operation of the business or enterprise” Burden of proof on employer Preferences are irrelevant and do not constitute BFOQ BFOQ =/= viable defense to Title VII race claim Seniority systems Title VII explicitly permits bona fide seniority systems Pre-employment inquiries Inquiries about race, sex, ethnic group are permissible as long as they are job related Even if not, some inquiries (voluntarily provided) are necessary to meet reporting requirements Testing Employer may give professionally developed ability test If results impact against a protected group, test must be shown to be job related Preferential treatment Title VII =/= require granting of preferential treatment to protected groups i.e. don’t maximize hiring of minority employees National Security Discrim permitted when deemed necessary to protect nat’l sec o Litigating claims under Title VII Step 1: establish prima facie case of discrim Body of facts presumed to be true until proven otherwise Evidence differs depending on the case i.e. alleged adverse impact on all members of a class means prima facie ev is presented when adverse impact is shown to exist like showing selection rate for group is less than 80% of the dominant group (white males) plaintiff demonstrates the following: he/she asserted basis protected by Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act He/she was harmed or disadvantaged He/she was qualified to do the job Similarly situated individual was treated more fairly than the plaintiff Burden of proof shifts back and forth from plaintiff to defendant Employer given opportunity to articulate legitimate reason for practice Plaintiff has to show employer’s reason is illegal - CRA of 1991 o Overturned 6 supreme court decisions from 1991 Monetary Damages and Jury Trials Expanded remedies in discrimination cases Victims can ask for compensatory damages for pain and suffering & punitive damages May demand jury trial o In the past, only age discrim cases had right to demand a jury Compensatory and punitive damages available only from nonpublic employers (public employers subject to compensatory damages up to $300,000) and not for adverse impact (unintentional discrimination) cases Also not awarded in ADA (Americans with Disabilities Act) case when employer has good faith efforts to accommodate disability Kolstad v. American Dental Association held that punitive damages depend on motive of discriminator, not nature of conduct Adverse Impact (Unintentional Discrimination) Cases CRA 1991 clairifes that plaintiff must identify specific practice as a cause of adverse impact cases Burden of producing evidences shifts to employer if plaintiff succeeds Protection in foreign countries Protection extended to US citizens employed in a foreign facility owned/controlled by a US company However, employer doesn’t comply with US discrim law if doing so violates law of the foreign country Racial Harrasment Act amended 1866 CRA so workers protected in all aspects of employ Challenges to consent decrees Once court order is entered to resolve a lawsuit, nonparities cannot challenge the enforcement actions Mixed-motive cases Mixed motive case employment decision based on combination of job-related AND unlawful factors Employer is guilty if it can be shown that prohibited consideration was a motivating factor, even though other factors are lawful BUT in Gross v FBL Financial Services the SC ruled that it’s not enough for plaintiff to prove age is a motivating factor (instead must prove that w/o his age, adverse action wouldn’t have occurred) Seniority Systems Seniority system that intentionally discrims can be challenged within 180 days when system is adopted, when individual becomes subject to system, when person is injured by system Race-Norming and Affirmative action Act makes it unlawful to adjust scores based on race, color religion, sex, national origin” “race norming” had been used to adjust test scores of minority candidates to make them comparable to nonminorities percentile score was computed relative to only others in his/her race/ethnic group Extension to US Senate and Appointed officials Act extends protection from discrim on race color religion etc. to employees of US Senate, political appointees of the president, staff members by elected officials o Age Discrim in Employment act of 1967 (ADEA) Amended 1986, prohibits discrim in pay for employees 40 or over Winning this is difficult since 2009 SC ruling requires an employee to prove that age was determining factor in layoff Workers can waive right to sue for this law, but even after if you are 40 and over you can sue for age discrim o Immigration Reform and Control act of 1986 (IRCA) Applies to every employer in the US and every employee 1. Employers may not hire or employ “unauthorized aliens” 2. Employers must verify the identity and work authorization of every new employee they may not require documentation but must examine documents showing identity and work authorization sign I-9 attesting that employee is lawfully eligible to work in the US 3. Employers with 4-14 employees may not discriminate on basis of citizenship those with 15 or more already prohibited by Title VII penalties for noncompliants are severe o The Americans with Disabilities Act of 1990 (ADA) 1/5 people in US have at least one disability (broad definition) employment rate for ppl with disabilities remains less than half of those without disabilities (19.1% vs 68.5%) Title 1 of the ADA protects 86% of the workforce ADA prohibits employer from discrim against “qualified individual with a disability” Qualified able to perform essential funcitons of job w/ or w/o accommodation Disability mental or physical impairment that substantially limits one or more major life activities People protected if currently have impairment & record of that impairment Rehabilitated drug and alcohol abusers are protected ADA Amendments of 2008 broadened disability by expanding the term “major life activities” List now includes conditions like cancer, diabetes, depression, epilepsy Companies do not have to lower work standards, tolerate misconduct, or give someone a make-up cjob Implications Any building has to be accessible to those with physical abilities o “expensive” aint an excuse employers must make reasonable accommodations o qualified job applicants must be considered o partner with public/private disability agents, provide info and outreach, mandate increased awareness and education, use tech to redesign jobs (walgreens replaced keyboards with touch screens), establish pipelines to recruit people with disabilities pre-employment physcials permissible if all employees are subject to them o cannot be given until employment offer is made conditional upon passing of the physical o not permitted to ask about past compensation claims or disabilities in general o can’t ask “do you have back problems” but can ask “can you lift equipment weighing 50 pounds at least once every hour” medical info on employees must be separate from other info drug-testing rules are intact train supervisors, HR prof, anyone else o keep focus on performance and behavior without speculating about cause of deficiency Enforcement EEOC (equal employment opp commission) enforces the ADA Individuals with disabilities may be awarded compensatory and punitive damages up to $300,000 o Family and Medical leave Act of 1993 (FMLA) Covers all private-sector employers with 50 or more employees Also part-timers who work 1250 hours a year Law gives workers up to 12 weeks unpaid leave each year for birth, adoption, foster care within a year of the child’s arrival; care for a spouse parent, or child with health condition OR employee’s own serious health condition Employers can require medical certification and second medical opinion Can exempt from FMLA key salaried employees who are among highest-paid 10 percent Employers must maintain health insurance benefits and give workers their previous jobs when leaves are over Includes military families in 2008 26 weeks of unpaid leave to employees who provide care to wounded US military personnel 12 weeks to immediate family members of military w/ qualifying exigency (overseas assignments, active duty) o Uniformed Services employment and Reemployment Rights of 1994 Requires both public and private employers to reemploy individuals returning from unified service in the position they would’ve occupied and seniority they would’ve enjoyed had they never left Employee must provide advance notice Employers need not rehire always (i.e. if employee was dishonorably discharged) - Federal Enforcement agencies: EEOC and OFCCP o EEOC is independent regulatory agency whose five commissioners are appointed by the president and confirmed by senate for terms of 5 years o No more than 3 commissioners from same political party o Gets involved if issue cannot be resolved internally o Three-step process of investigation, conciliation, and litigation o Can serve as a mediator o Can refer complaints to state agency charged with enforcement of laws o EEOC Guidelines On discrim bc of religion, national origin, gender, pregnancy On affirmative action programs, employment tests/ selection procedures o Information Gathering Each organization in the US with 100 or more employees must file an annual report (EEO-1) detailing numbers of employees by job category and by ethnicity, race, gender EEOC then identifies braod patterns of discrimination (systemic discrimination) and attacks them through class actions o Office of Federal Contract Compliance Programs Contract compliance means that contractors and subcontractors must meet EEO and affirmative action requirements Companies with federal contracts employee nearly a quarter of the US workforce In jobs where women and minorities are underrepresented relative to their availability in the labor force, employers must establish goals and timetables for hiring and promotion Compliance review by the OFCCP that do indicate problems cause conciliation agreements to be reached with the employer Agreement includes back pay, seniority credit, recruitment offers and special promotions o Affirmative action remedies SC found that congress endorsed non-victim-specific racial hiring goals to achieve compliance SC noted the benefits of flexible, not rigid, affirmative action - EMPLOYMENT CASE LAW o Courts interpret the laws and determine how they will be enforced (case law) o Sex Discrimination Run an organization with 238 managerial positions filled by men Two-point difference in test scores separates best-qualified man and woman If you promoted woman, you’re invited a lawsuit by the man If you promoted the woman to correct past discrim, you acknowledge past bias and invite class suits by women NO LONGER. SC ruled that qualified woman can be promoted over a marginally better qualified man to promote balanced representation Many employers have not been proven guilty of past discrim but still have underrepresentation of women Puts pressure on employers to institute voluntary AFF ACTION programs o Pregnancy EEOC says “written/unwritten employment policy which excludes from employement bc of pregnancy, childbirth, or related medical conditions is prima facie violation of Title VII” Each year 4000 complaints related to pregnancy 2013- 3580 complaints and $17 million recovered in monetary benefits employer never REQUIRED to give pregnant employees special treatment but must comply to maternity leave determined by physician o Reproductive Hazards Sex discrim perpetuated by barring women from competing in jobs w/ occupational hazards to reprodutvie systems “fetal protection” policies are no a form of illegal sex discrim (UAW v. Johnson Controls Inc) once used by GM, DuPont, Olin, Firestone Johnson Controls excluded women of childbearing age (unless sterile) from jobs involving exposure to lead SC said “Women capable of doing jobs… may not be forced to choose having a child over having a job” So businesses jshould just warn about fetal health risks and urge physician consultations before signing up o Sexual Harrassment More about absue of power than sex Females more than males suffer sexual abuse than work 27000 complaints filed to the EEOC, $126.8 million recovered for chargingin parties 90% of Fortune 500 companies dealt with complaints, 1/3 sued at least once Sexual harassment unwelcome sexual advances, requests for sexual favors, verbal/physical conduct of sexual nature that affects individual’s employment & work performance as well as creates a hostile work environment “Unwelcome” is key, and offender has to know that the behavior is unwelcome plaintiff must prove that he/she told perpetrator to back off unless the action was so offensive that the offender had to already know to back off 1. Quid pro quo harassment harassment is a condition of employment Barnes v. Costle, plaintiff rebuffed director’s sexual overtures o Ignored advice that intimacy improved career path, and director abolished her job Burlington Industries INc. v Ellerth & Faragher v. City of Boca Raton o SC held that employers are liable for supervisor’s sexual misconduct, even if they knew nothing about it 2. Hostile-environment harassment defined by Meritor Savings Bank v. Vinson o vinson’s boss abused her verbally and sexually o but vinson was making good career progress so district court said relationship with voluntary and had nothing to do with employment o SC disagreed, saying that voluntary relationhip was irrelevant o Key is “unwelcome” which menas it’s “severe and abusive” Case expanded def of harassment to include conduct that creates intimidating, hostile, or offensive environment o Preventive Actions by Employers Firmly state that harassment is not tolerated Workable def of sexual harassment publicized in orientation, staff meetings, handbooks Include concrete examples of such behavior Create effective complaint procedure to include multiple ways to complain Clear statement of sanctions for violators and protection for those who charge Prompt, confidential investigation no matter how trivial Preservation of all investigative information, with records in central location Regular training of all managers and supervisors, even top managers, to model appropriate behavior and respond to complaints Follow up to see if harassment stopped o Age Discrimination EEOC guidelines emphasize that to defend action, employer must demonstrate business necessity To establish prima facie case 1. Show that he/she is 40 years or older 2. He/she is doing satisfactory work 3. He/she was discharged despite satisfactory work 4. Positioned was filled by person younger than person replaced aggrieved employees have 78% success rate at state and local jury trials 2013, 21,000 charges of age discrim filed, $97.6 million recovered o “Overqualified” job applicants sometimes employers don’t hire individual who has the most experience for an entry level job assume individual will be bored but appeals court ruled that rejection of older worker bc of overqualification may be a pretext to mask rejection for employee’s age define overqualified and give applicants a realistic preview of what job will be o Seniority Connotes length of employment Seniority system scheme that allots to employees ever-improving employment rights and benefits as length of employment increases Impact of seniority systems on programs designed to ensure equal employment opportunity Employers work hard to hire and promote members of protected groups But if layoffs are necessary, those individuals may be lost because of low seniority SC ruled that employer may not protect jobs of recently hired black employees at the expense of whites who have more seniority Firefighters Local Union No. 1784 v Stotts & Wygant v Jackson BOE What about the ADA? US Airways v Barnett SC ruled that employers not required to grant employee with disability a job to replace employee w/ more seniority Seniority does not always trump ADA, such a question must be resolved on a case-by-case basis o Testing and Interviewing Title VII sanctions use of professionally developed ability tests 1. Prohibits not only open and deliberate discrim but practices that are fair in form but discriminatory in operation i.e. having adverse impact on protected groups i.e. organization that wants to use prior arrests as basis for selection o arrests are neutral practice but if arrests cannot be shown to be job related and blacks are arrested more than whites, use of arrests can be discriminatory 2. Employer bears burden of proof that requirement for employment is related to job performance 3. not necessary for plaintiff to prove that discrim was intentional; intent is irrelevant 4. Job-related tests and other procedures are legal and useful o Personal History Must be related to job performance Neutral practices that have been struck down by the courts on the basis of non- job relevance Recruitment practices based on present employee referrals Heigh and weight requirements Arrest records bc they only show that person was accused, not guilty of it Conviction records unless conviction is related to work (i.e. person convicted of embezzlement applying as bank teller) o Preferential selection Ideal world will have color blind selection and promotion decisions Reverse Discrimination (discrimination of whites in favor of protected groups) is unacceptable How to make things fair for oppressed groups WHILE treating ppl equally?? 1. Courts may order affirmative action plans to address problems of women and minorities. Individuals not parties to original suit may not reopen court-approved AA settlements 2. plans need not be directed to identified victims o f discrim 3. courts will never approve plan that results in white people losing their jobs, but may sanction plans that impose limited burdens on whites in hiring and promotions