Unit 2.1 - Employment Discrimination Flashcards
What is the Early Civil Rights Act of 1866 (Section 1981)?
Founded on the premise to prohibit discrimination on the basis of
age, race, religion, sex, or disability
Section 1981
* Applies to racial discrimination in employment relationships
* Guarantees all persons to the same rights across the country to enter and enforce contracts
* Statue of limitations: up to four years from the violation
What is Title VII of the Civil Rights Act of 1964?
It’s an amendment to the first civil right act - matters more
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin.
Applies to employers with 15+ employees, employment agencies, labor organizations, state and local governments, and educational institutions
Employers can discriminate on the above factors when it’s a BFOQ (bona fide occupational qualification)
The act also established the EEOC
What is the Civil Rights Act of 1991 and the 6 clarifications?
Defines which actions are discriminatory and what procedures should be followed in prosecuting them
Clarifications -
- Shifting the Burden of Proof - the burden of proof shifts to the employer once the plaintiff demonstrates a prima facie case of the employer’s disparate treatment
- Particularity - when job applicants claim a hiring process is discriminatory, they have to identify the specific practice which is causing discrimination (ex. culturally biased personnel test)
- Foreign Practices - extends protection to US citizens working for US companies in foreign countries (expatriates)
- Race Norming - prohibits adjusting test scores or altering results on the basis of race, sex, etc.
- Motivating Factors - even if there are multiple motives (some of which are valid) for an employment decision, if one of them is proven discriminatory, the decision is discriminatory
- Remedies - introduces jury trials, with the possibility of punitive and compensatory damages (doesn’t apply to disparate impact)
What is a Bona Fide Occupation Qualification (BFOQ)?
Permits discrimination on the basis of religion, sex, or national origin ONLY when these attributes are reasonably necessary for the operation of the business.
Examples -
* Religion - sacrifice the rights of other workers, break collective agreements, suffer loss of work efficiency, de minimus actions
* Sex - social norm (ex. women guarding the bathroom), authenticity (like a male actor playing Elvis), biological equipment (wet nurses)
* National origin - “business essence” (ex. language immersion schools), impairment of business operation
Customer preference isn’t a valid reason and race is never a legitimate BFOQ
What is disparate treatment vs. disparate impact?
Disparate Treatment:
- Person is treated differently because of their race, religion, sex or national origin
- Intentional BUT must be proven through cohort analysis (involves a comparison of treatment of similarly situation groups or individuals) or prima facie
Disparate Impact:
- Involves unintentional discrimination
- Proven via 1. Burden of Proof (from the complaining party) or 2. Adverse Impact (4/5’s rule)
Define the glass ceiling
Attitudinal and organizational barriers that prevent women from advancing in the company
Define the EEOC
The Equal Employment Opportunity Commission (EEOC) was created to
enforce Title VII of the 1964 Civil Rights Act
Additional Responsibilities
* Age (ADEA)
* Pregnancy (PDA)
* Disabilities (ADA)
* Genetic Information (GINA)
Priority: Systemic Discrimination
Outline the EEOC procedure for handling discrimination cases
- A charge is filed by the employee (within 180, sometimes 300 days in CA)
- Attempt at mediation and settlement
- Investigation by the EEOC
- Either the EEOC determines no reasonable cause and issues a Dismissal and Notice of Rights letter to employee, and the employee can request a Right to Sue letter (go to civil court instead, out of EEOC’s hands), OR
- EEOC determines there is reasonable cause and issues a Letter of Determination to both parties
- Attempt to resolve through conciliation
- EEOC reviews case for litigation (see if they’re gonna go to court)
- EEOC either recommends against litigation and issues Notice of Right-to-Sue to employee, or, recommends for litigation and initiates legal action
What is the adverse impact / 4/5’s rule?
A selection rate for any race, sex, or ethnic group which is less than
4/5th of the rate for the group with the highest rate will be regarded
as evidence of adverse impact
highest pass rate (from a fraction) * 4/5 (.8)
vs.
minority race in question * 4/5 pass rate
If the minority race has lower pass rate (for a promotional exam), adverse impact exists
When adverse impact exists, employees have to either show that the selection process is valid (related to job performance), stop using it, or find an alternative process that has a less discriminatory effect
Explain the EEO report
The Civil Rights Act requires employers to make and keep records that demonstrate their compliance with the law.
EEO-1 (aka) Standard Form 100:
* The EEO-1 Form is an annual compliance survey mandated by federal law and regulations.
* The Survey data requires employer employment data to be categorized by race/ethnicity, gender, and job category.
* The form provides a basic demographic summary of the employer.
* Employers who have a minimum number of employees (private - 100+, federal - 50+) are required to submit this information annually.
* Self-identification is the preferred method of obtaining ethnic and racial information. If employees don’t self identify, employers must report using visual identification
- School systems have to submit an EEO-5 (15+ employees)
What is the OFCCP?
The Office of Federal Contract Compliance Program (OFCCP) was created by Executive Order 11246, and it is an agency within the US Department of Labor. The OFCCP is responsible for monitoring Affirmative Action Plans in government contractors and sub-contractors
Monitors compliance with -
* Executive Order 11246 (aka) Order #4 (most important for reducing racial discrimination, also protects sex, religion, etc.) for federal contractors
* Vietnam Era Veterans Readjustment Assistance Act, 1974
* Rehabilitation Act, Section 503, 1973
* Americans with Disabilities Act (has shared responsibility with EEOC)
What is an Affirmative Action Program?
Executive Order 11246 (Order #4) prohibits employment discrimination by federal contractors and subcontractors “from discriminating in employment on the basis of race, color, religion, sex or national origin” and requires affirmative action plans.
Components of an AAP:
* Organizational Profile / Workforce Analysis - helps identify org units where women and minorities are underrepresented
* Placement Goals - addressing underutilization and keeping track of progress
* Job Group Analysis - list of job titles for each job group
* Designation of Responsibility - there must be an official responsible for EEO and the AAP
* Placement of Incumbents - identifying percentage of women and minorities in each job group
* Identification - analysis of employment process to identify impediments
* Determining Availability
* Action-oriented Programs
* Utilization Analysis - availability vs. employed/incumbency
* Auditing
What is reverse discrimination and its BFOQs?
Many white males complain that AAPs have made them victims of reverse discrimination.
BFOQs
* Manifest imbalance - the representation of protected class group members in a specific occupational grouping or grade level in the workforce is substantially below its representation in the labor force
* Rights are not unnecessarily limited
* Preference has limited duration for attainment
What is the ADEA?
The Age Discrimination in Employment Act (ADEA) protects employees 40 years of age or older from arbitrary & aged-based discrimination in hiring, promoting, training, benefits, compensation, discipline, & terminations.
- Applies to private employers with 20+ employees, governmental employers, and employment agencies.
- Applies to labor unions with 25+ members
What are Early Retirement Programs?
Early retirement programs provide a convenient way for an employer to
achieve a satisfactory reduction in force, but they must not violate the
ADEA.
Shouldn’t be a way to bait older employees out of the organization
Guidelines:
* ERISA coordination - Employees should receive a summary plan description for the benefits they will be offered
* Eligibility requirements should be clear and rational
* Incentive - should be fair and sufficient to attract enough employees
* Employee acceptance - participation must be “knowing and voluntary”
