Chapter 11 - Employment Discrimination and Diversity Flashcards Preview

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Flashcards in Chapter 11 - Employment Discrimination and Diversity Deck (59):
1

affirmative action

- job-hiring policies that give special consideration to members to protected classes in an effort to overcome present effects of past discrimination

2

bona fide occupational qualification (BFOQ)

- identifiable characteristics reasonably necessary to the normal operation of a particular business
- these characteristics can include gender, national origin, and religion, but not race

3

business necessity

- a defense to allegations of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance

4

constructive discharge

- a termination of employment brought about by making an employee's working conditions so intolerable that the employee reasonably feels compelled to leave
- Proving Constructive Discharge
-the employee must present objective proof of intolerable working conditions, which the employer knew or had reason to know about yet failed to correct within a reasonable time perio
- courts also require the employee to show causation - that the employer's unlawful discrimination caused the working conditions to be intolerable
- when constructive discharge is claimed, the employee can pursue damages for loss of income, including back pay
- these damages ordinarily are not available to an employee who left a job voluntarily

5

disparate-impact discrimination

- a form of employment discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect

6

disparate-treatment discrimination

- a form of employment discrimination that results when an employer intentionally discriminates against employees who are members of a protected class

7

employment discrimination

- treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability; prohibited by federal statutes

8

prima facie case

- a case in which the plaintiff has produced sufficient evidence of his or her conclusion that the case can go to a jury
- a case in which the evidence compels the plaintiff's conclusion if the defendant produces no evidence to disprove it

9

protected class

- a class of persons with identifiable characteristics who historically have been victimized by discriminatory treatment for certain purposes
- depending on the contest, these characteristics include age, color, gender, national origin, race, and religion

10

seniority system

- in regard to employment relationships, a system in which those who have worked longest for the company are first in line for promotions, salary increases, and other benefits; they are also the last to be laid off if the workforce must be reduced

11

sexual harassment

- in the employment context, the granting of job promotions or other benefits in return for sexual favors or conduct that is so sexually offensive that it creates a hostile working environment

12

tangible employment action

- a significant change in employment status, such as firing or failing to promote an employee, reassigning the employee to a position with significant ally different responsibilities, or effecting a significant change in employment benefits

13

SAMPLE TEST QUESTIONS
1. Sara believes that she was rejected for a position at Trek n' Travel Agency on the basis of her race. Sara files a suit against Trek n' Travel under the Civil Rights Act of 1964. To establish a prima facie case of employment discrimination, Sara must show all of the following except :
a. she is a member of a protected class
b. she applied and was qualified for the job in question
c. she was rejected for a position at Trek n' Travel
d. other persons of her race hold similar positions with other similar employers

ANSWER :
(D)
CORRECT :
(D) other persons of her race hold similar positions with other similar employers

14

SAMPLE TEST QUESTIONS
2. Iago believes that he is a victim of a form of employment discrimination that falls under the Civil Rights Act of 1964. Compliance with this statute is monitored by :
a. employees and job applicants, not an administrative agency
b. employers and businesses, not an administrative agency
c. the courts and Congress, not an administrative agency
d. the Equal Employment Opportunities Commission

ANSWER :
(D)
CORRECT :
(D) the Equal Employment Opportunities Commission

15

SAMPLE TEST QUESTIONS
3. Neville, a member of a protected class, applies for a job with Origami Paper Products Corporation, but fails the company's employment test and is not hired. Neville believes that the test has an unintentionally discriminatory effect. If so, this is :
a. reverse discrimination
b. disparate-impact discrimination
c. disparate-treatment discrimination
d. not discrimination

ANSWER :
(B)
CORRECT :
(B) disparate-impact discrimination

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SAMPLE TEST QUESTIONS
4. Buena files a suit against Credit Services Corporation under the Civil Rights Act of 1964, alleging employment discrimination on the basis of gender on a disparate-impact theory. To succeed, Buena must show the Credit Services hires fewer women than the percentage of :
a. qualified women in the local labor market
b. qualified women in the United States
c. women in Credit Services's state
d. women who apply to Credit Services for work

ANSWER :
(A)
CORRECT :
(A) qualified women in the local labor market

17

SAMPLE TEST QUESTIONS
5. Melanie files an employment discrimination suit against Natural Resources Industries Corporation under the a Civil Rights Act of 1964 on a disparate-impact theory. To succeed, Melanie must show that members of a protected class are adversely affected by any of the following except the employer's :
a. practices
b. procedures
c. tests
d. seniority system

ANSWER :
(D)
CORRECT :
(D) seniority system

18

SAMPLE TEST QUESTIONS
6. Insurance Sales Corporation gives preferential treatment in hiring and promotion to the members of all protected classes. This treatment results in discrimination against members of the majority. This is :
a. disparate-impact discrimination
b. gender discrimination
c. not discrimination
d. reverse discrimination

ANSWER :
(D)
CORRECT :
(D) reverse discrimination

19

SAMPLE TEST QUESTIONS
7. Conrad and Delilah are employees of EcoCrop Feed & Seed. Under the Equal Pay Act, EcoCrop can legitimately pay different wages on the basis of :
a. seniority
b. job descriptions
c. substantial equality of skill, effort, and responsibility
d. gender

ANSWER :
(C)
CORRECT :
(A) seniority

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SAMPLE TEST QUESTIONS
8. Ruta is a supervisor for Subs & Suds, a restaurant. Tim is a Subs employee. The owner announces that some employees will be discharged. Ruta tells Tim that for sexual favors she will give him an excellent performance review and recommend a raise. This is :
a. harassment in the basis of sexual orientation
b. hostile-environment harassment
c. not harassment
d. quid pro quo harassment

ANSWER :
(D)
CORRECT :
(D) quid pro quo harassment

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SAMPLE TEST QUESTIONS
9. Emylee, an employee of Farm Supplies, Inc., files a sexual-harassment suit against Gowan, her supervisor. Emylee wins. Farm Supplies may also be liable if it had effective harassment policies and complaint procedures, and :
a. none of the employees followed them
b. Emylee followed them
c. all of the employees were aware of them
d. Gowan followed them

ANSWER :
(B)
CORRECT :
(B) Emylee followed them

22

SAMPLE TEST QUESTIONS
10. Elsa participates in an investigation into possible violations and of the Civil Rights Act of 1964 at Fabrication Foundry, Inc., where she works. As a result, Elsa's employer demotes her. Elsa can file a :
a. harassment complaint
b. retaliation claim
c. constructive discharge claim
d. disparate-impact claim

ANSWER :
(B)
CORRECT :
(B) retaliation claim

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SAMPLE TEST QUESTIONS
11. Boni, the owner of Cafe Rico, know about, but does not take any action to prevent, the sexual harassment of employees. Bond and the cafe may be liable for such harassment by :
a. an employee's previous employer
b. a customer or co-worker
c. an employee's spouse or other close relative
d. none of the choices

ANSWER :
(C)
CORRECT :
(B) a customer or coworker

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SAMPLE TEST QUESTIONS
12. Lisa brings a successful lawsuit against her employer Metal Mold & Die Corporation for unlawful discrimination. Lisa may be awarded :
a. back pay, but not retroactive promotions
b. retroactive promotions, but not back pay
c. damages, but not back pay
d. back pay, retroactive promotions, and damages

ANSWER :
(D)
CORRECT :
(D) back pay, retroactive promotions, and damages

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SAMPLE TEST QUESTIONS
13. Free-Flo Pipes & Plumbing Corporation is a private employer involved in an employment discrimination suit under the Civil Rights Act of 1964. Punitive damages may be recovered against Free-Flo only if the employer :
a. acted with malice or reckless indifference
b. can easily afford to pay the amount
c. has one hundred or more employees
d. consents

ANSWER :
(A)
CORRECT :
(A) acted with malice or reckless indifference

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FACT PATTERN 11-1B
Kyla replaces Lomax in his job at Motor Vehicle Manufacturing Corporation (MVMC)

-----

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FACT PATTERN 11-1B
14. Refer to Fact Pattern 11-1B. Lomax believes that he has been discriminated against on the basis of his age. For the Age Discrimination in Employment Act to apply :
a. Kyla must be forty years of age or under
b. Kyla must be forty years of age or over
c. Lomax must be forty years of age or older
d. Lomax must have been MVMC's employee for at least forty years

ANSWER :
(C)
CORRECT :
(C) Lomax must be forty years of age or older

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FACT PATTERN 11-1B
15. Refer to Fact Pattern 11-1B. To succeed with an age-discrimination claim against MVMC, Lomax will have to show that :
a. Kyla is not qualified for Lomax's job
b. Lomax is qualified for his job
c. MCMV's qualifications for Lomax's job are too high
d. no one could do Lomax's job as well as he could

ANSWER :
(B)
CORRECT :
(B) Lomax is qualified for his job

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SAMPLE TEST QUESTIONS
16. Helene, a disabled person, applies for a job at Industrial Engineering Applications, Inc., for which she is well qualified, but for which she is rejected. Industrial Engineering continues to seek applicants and eventually fills the position with a person who is not disabled. Helene is most likely to succeed is a suit against Industrial Engineering for discrimination under the Americans with Disabilities Act if she can show that :
a. she was not hired solely because of her disability
b. she can function well with corrective devices or on medication
c. her disability causes her undue hardship
d. she could not perform the job even with reasonable accommodation

ANSWER :
(A)
CORRECT :
(A) she was not hired solely because of her disability

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SAMPLE TEST QUESTIONS
17. Merlin is a drug addict who has completed a supervised drug-rehabilitation program. Nabil used drugs casually in the past. Both work for Omni Insurance & Investments Inc. Considered to have a disability under the American with Disabilities Act of 1990 :
a. are Merlin and Nabil
b. is Merlin only
c. is Nabil only
d. none of the choices

ANSWER :
(B)
CORRECT :
(B) Merlin only

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SAMPLE TEST QUESTIONS
18. Satin, Silk & Swimwear, a women's clothing store, employs female attendants who assist customers is the dressing rooms. Toribio, a forty-one-year-old male, applies for an attendant's job, but is not hired. In Toribio's suit against Satin, Silk & Swimwear for employment discrimination under the Civil Rights Act of 1964, the store has :
a. no defense
b. a bona fide occupational qualification defense
c. a business necessity defense
d. no defense

ANSWER :
(C)
CORRECT :
(B) a bona fide occupational qualification defense

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SAMPLE TEST QUESTIONS
19. Solar Power Panels Corporation requires its employees to have a high school diploma, claiming a connection between a high school education and job performance. In a suit against Solar Power under the Civil Rights Act of 1964, this is shown to have a discriminatory effect. Solar Power has :
a. an affirmative action defense
b. a bona fide occupational qualification defense
c. a business necessity defense
d. no defense

ANSWER :
(B)
CORRECT :
(C) a business necessity defense

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SAMPLE TEST QUESTIONS
20. Lumbar Mill, Inc., is a private employer with more than twenty employees. It's employment practices do not indicate a past pattern of discrimination. It is located in Metro City, which has recently seen an increase in the number of its citizens who are members of protected classes. Under the Civil Rights Act of 1964, Lumbar Mill is :
a. required to promote diversity in its workplace, but not to implement an affirmative action policy
b. not required to implement an affirmative action policy
c. required to implement an affirmative action policy until the number of its minority employees is proportional to the number of minority individuals in Metro's labor pool
d. required to implement an affirmative action policy that considers race merely as a plus factor

ANSWER :
(B)
CORRECT :
(B) not required to implement an affirmative action policy

34

Title VII of the Civil Rights Act of 1964

- prohibit job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion,band gender at any stage of employment
- prohibits discrimination in the hiring process, discipline procedures, discharge, promotion, and benefits
- applies to employers with fifteen or more employees, labor unions with fifteen or more members, labor unions that operate hiring halls (to which members go regularly to assigned jobs as they become available), employment agencies, and state and local governing units or agencies
- the United States Supreme Court has ruled that an employer with fewer than fifteen employees is not automatically shielded from a lawsuit filed under Title VII
- the act prohibits discrimination in most federal government employment
- when Title VII applies to the employer, any employee - including an undocumented (alien) worker - can bring an action for employment discrimination
- prohibits both intentional and unintentional discrimination

35

Equal Employment Opportunity Commission (EEOC)

- monitors compliance with Title VII
- an employee alleging discrimination must file a claim with the EEOC before a lawsuit can be brought against the employer
- the EEOC may investigate the dispute and attempt to obtain the parties' voluntary consent to an out-of-court settlement, if a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf
- EEOC generally only takes "priority cases," such as cases that may affect many workers and those involving retaliatory discharge (firing an employee in retaliation for submitting a claim to the EEOC)
- if the EEOC rides not to investigate a claim, the employee may bring his or her own lawsuit against the employer

36

Intentional Discrimination

- intentional discrimination by an employer against an employee is known as disparate-treatment discrimination
- because intent may sometimes be difficult to prove, courts have established certain procedures for resolving disparate-treatment cases

37

Unintentional Discrimination

- employers often use interviews and tests to choose from among a large number of applicants for job openings
- minimum educational requirements are also common
- some employer practices, such as those involving educational requirements, may have an unintended discriminatory impact on a protected class
- 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 to be discriminatory
- in a disparate-impact discrimination case, the complaining party must first show statistically that the employer's practices, procedures, or tests are discriminatory in effect
- once the plaintiff has made out a prima facie case (based on first impressions, accepted as correct until proven otherwise), the burden of proof shifts to the employer to show that the practices or procedures in question were justified
- Pool of Applicants
- a plaintiff can prove a disparate impact by comparing the employer's workforce to the pool of qualified individuals available in the local labor market and must show :
1. As a result of educational or other job requirements or hiring procedures,
2. The percentage of nonwhites, women, or members of other protected classes in the employer's workforce,
3. Does not reflect the percentage of that group in the pool of qualified applicants
- if plaintiff can show a connection between the practice and disparity, he or she has made out a prima facie case and need not provide evidence of discriminatory intent
- Rate of Hiring
- a plaintiff can also prove disparate impact discrimination by comparing the selection rates of whites and nonwhites (or members of another protected class), regardless of the racial balance in the employer's workforce
- when an educational or other job requirement or hiring procedure excludes members of a protected class from an employer's workforce at a substantially higher rate than for nonmembers, discrimination occurs
- under EEOC guidelines, a selection rate for a protected class that is less than four-fifths, or 80 percent, of the rats for the group with the highest rate of hiring generally will be regarded as evidence of disparate impact

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Discrimination Based on Race, Color, and National Origin

- Title VII prohibits employers from discriminating against employees or job applicants on basis of race, color, or national origin
- race is interpreted broadly to apply to the ancestry or ethnic characteristics of a group of persons, such as Native Americans
- national origin refers to discrimination based on a person's birth in another country or his or her ancestry or culture, such as Hisoanic
- if an employer's standards or policies for selecting of promoting employees have a discriminatory effect on employees or job applicants in these protected classes, then a presumption of illegal discrimination arises
- to avoid liability, the employer must show that it's standards or policies have substantial, demonstrable relationship to realistic qualifications for the job in question
- Reverse Racism
- Title VII protects against reverse racism - discrimination against majority group individuals, such as white males
- Potential Section 1981 Claims
- victims of racial or ethnic discrimination may also have a cause of action under 42 U.S.C. Section 1981
- this section, which was enacted as part of the Civil Rights Act of 1866 to protect the rights of freed stages, prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts

39

Discrimination Based on Religion

- Title VII of the Civil Rights Act of 1964 also prohibits government employers, private employers, and unions from discriminating against persons because of their religion
- employers cannot treat their employees more or less favorably based on their religious beliefs or practices and cannot require employees to participate in any religious activity (or forbid them from participating in one)
- Reasonable Accommodation
- an employer must "reasonably accommodate" the religious practices of its employees, unless to do so would cause undue hardship to the employer's business
- an employee's religion might prohibit him or her from working on a certain day of the week, or at a certain type of job
- the employer must make a reasonable attempt to accommodate the employee's sincerely held religious belief
- reasonable accommodation is required even if the belief is not based on the doctrines of a traditionally recognized religion, such as Christianity or Judaism, or of a denomination, such as Baptist
- Undue Hardship
- a reasonable attempt to accommodate does not necessarily require the employer to make every change requests or to make a permanent change for an employee's benefit
- an employer is not required to make an accommodation that would cause the employer undue hardship

40

Discrimination Based on Gender

- Under Title VII and other federal acts, employers are forbidden from discriminating against employees on the basis of gender
- employers are prohibited from classifying or advertising jobs as male or female unless the employer can prove that the gender of the applicant is essential to the job
- employers also cannot have separate male and female seniority lists or refuse to promote employees based on their gender
- Gender Must Be a Determining Factor
- to succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a determining factor in the employer's decision to hire, fire, or promote him or her which involves looking at all of the surrounding circumstances

41

Pregnancy Discrimination Act

- amended Title VII and expanded the definition of gender discrimination to include discrimination based on pregnancy
- women affected by pregnancy, childbirth, or related medical conditions must be treated - for all employment related purposes, including the receipt of benefits under employee benefit programs - the same as other persons not so affected but similar in ability to work

42

Wage Discrimination

- Equal Pay Act
- requires equal pay for male and female employees working at the same establishment doing similar work (a barber and a hair stylist, for example)
- to determine whether the Equal Pay Act has been violated, a court will look to the primary duties of the two jobs - the job content rather than the job description controls
- if a court finds that the wage differential is due to "any factor other than gender," such as a seniority or merit system, then it does not violate the Equal Pay Act
- Lilly Ledbetter Fair Pay Act passed in 2009
- made discriminatory wages actionable under federal law regardless of when the discrimination began
- act countered a previous decision by the United States Supreme Court that had limited the time period in which plaintiffs could file a wage discrimination complaint to 180 days after the employer's decision
- today, if plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is practically unlimited

43

Sexual Harassment

- Title VII protects employees against sexual harassment in the workplace
- sexual harassment can take two forms :
1. Quid pro quo : occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits. Quid pro quo is a Latin phrase that is often translated as "something in exchange for something else."
2. Hostile-environment : harassment occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it. In the words of the United States Supreme Court, hostile-environment harassment exists when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
- if the employee who is alleging sexual harassment has signed an employment interact containing an arbitration clause (in the event of dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court), he or she will most likely be required to arbitrate the claim
- Harassment by Supervisors
- for an employer to be held liable for a supervisor's sexual harassment, the supervisor normally must have taken a tangible employment action against the employee
- a tangible employment action is a significant change in employment status or benefits, such as when an employee is fired, refused a promotion, demoted, or reassigned to a position with significantly different responsibilities
- only a supervisor, or another person acting with the authority of the employer, can cause this sort of harm
- a constructive discharge also qualifies as a tangible employment action
- Retaliation by Employers
- can take many forms
- an employer might demote or fire the person, or otherwise change the terms, conditions, and benefits of employment
- Title VII prohibit is retaliation, and employees can sue their employers when it occurs
- in a retaliation claim, an individual asserts that he or she has suffered harm as a result of making a charge, testifying, or participating in Title VII investigation or proceeding
- plaintiffs do not have to prove that the challenged at ion adversely affected their workplace or employment, instead, plaintiffs must show that the action would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination
- protection also extends to an employee who speaks out about discrimination against another employee during an employer's internal investigation

44

Ellerth/Faragher Affirmative Defense

- in 1998, the United States Supreme Court issued several important rulings that have had a lasting impact on cases involving alleged sexual harassment by supervisors
- the Court held that an employer (a city) was liable for a supervisor's harassment of employees even though the employer was unaware if the behavior
- although the city had a written policy against sexual harassment, it had not distributed the policy to its employees and had not established any complaint procedures for employees who felt that they had been sexually harassed
- in another case, the Court held that an employer can be liable for a supervisor's sexual harassment even though the employee does not suffer adverse job consequences
- Ellerth/Faragher affirmative defense to charges of sexual harassment has two elements :
1. The employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior (by establishing effective harassment policies an complaint procedures, for instance)
2. The plaintiff-employee must have unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.
- an employer that can prove both elements normally will not be held liable for a supervisor's harassment

45

Harassment by Co-Workers an Others

- when the harassment of coworkers, rather than supervisors, creates a hostile working environment, an employee may still have a cause of action against the employer
- normally, though, the employer will be held liable only if it knew or should have known about the harassment and failed to take immediate remedial action

46

Same-Gender Harassment

- in Oncale vs. Sundowner Offshore Services, Inc., the United States Supreme Court held that Title VII protection extends to individuals who are sexually harassed by members of the same gender
- proving that the harassment in same-gender cases is "based on sex" can be difficult
- it is easier to establish a case of same-gender harassment when the harasser is homosexual

47

Sexua, Orientation Harassment

- federal law (Title VII) does not prohibit discrimination or harassment based on a person's sexual orientation
- nonetheless, a growing number of states have enacted laws that prohibit sexual orientation discrimination in private employment
- some states, such as Michigan, explicitly prohibit discrimination based on a person's gender identity or expression
- many companies have also voluntarily established Nondiscrimination policies that include sexual orientation

48

Remedies Under a Title VII

- if the plaintiff successfully proves that unlawful discrimination occurred, he or she may be awarded reinstatement, back pay, retroactive promotions, and damages
- compensatory damages are available only in cases of intentional discrimination
- punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifferent to an individual's rights
- statute limits the amount of compensatory and punitive damages that plaintiffs can recover from specific employers, spending on the the size of the employer
- these is a $50,000 cap on damages from employers with one hundred or fewer employees

49

Age Discrimination in Employment Act (ADEA)

- prohibits employment discrimination on the basis of age against individuals forty years of age or older
- prohibits mandatory retirement for nonmanagerial workers
- United States Supreme Court has ruled that the ADEA encompasses not only claims of age discrimination, but also claims of retaliation for complaining about age discrimination
- ADEA protects federal and private-set of employees from retaliation based on age-related complaints
- for the act to apply, an employer must have twenty or more employees, and the employer's business activities must affect interstate commerce
- the EEOC administers the ADEA, but the act also permits private amuses of action employers of age discrimination

50

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
- the employee has the burden of establishing but for causation - that is, "but for" the employee's age, the action would not have been taken
- to establish a prima facie case, the plaintiff must show that he or she :
1. Was a member of the protected age group
2. Was qualified for the position from which he or she was discharged
3. Was discharged because of age discrimination
- then the burden shifts to the employer
- if the employer offers a legitimate reason for its action, the plaintiff must show that the stated reason is only a pretext for the employer's decision

51

Replacing Older Workers with Younger Workers

- numerous age discrimination cases have been brought against employers who, to cut costs, replaced older, higher-salaried employees with younger, lower-salaried workers
- a plaintiff must prove that the discharged was motivated by age bias
- the plaintiff does not need to prove that he or she was replaced by a person "outside the protected class" (under the age of forty years), as long as the replacement worker is younger than the plaintiff

52

State Employees Not Covered by the ADEA

- generally, the states are immune (under the Eleventh Amendment of U.S. Constitution) from lawsuits brought by private individuals in federal court - unless a state consents to the suit
- this immunity stems from the United States Supreme Court's interpretation of the Eleventh Amendment but is not always absolute
- in some situations, such as when fundamental rights are at stake, Congress has the power to abrogate (abolish) state immunity to private suits through legislation that unequivocally shows Congress's intent to subject states to private suits
- generally, the Court has found that state employers are immune from private suits brought by employees under the ADEA (for age discrimination), the Americans with Disabilities Act (for disability-based discrimination), and the Fair Labor Standards Act
- state employers are not immune from the requirements of the Family and Medical Leave Act

53

Americans with Disabilities Act (ADA) of 1990

- prohibits disability based discrimination in all workplaces with fifteen or more workers
- an exception is state government employers, who are generally immune under the Eleventh Amendment
- basically, the ADA requires that employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship"

54

Procedures under the ADA

- to prevail in a claim under the ADA, a plaintiff must show that he or she :
1. Has a disability
2. Is otherwise qualified for the employment in question
3. Was excluded from employment solely because of the disability
- the EEOC may decide to investigate an perhaps even sue the employer on behalf of the employee
- the EEOC can bring a suit on behalf of the employee under the ADA even if the employee signed an arbitration agreement with the employer
- plaintiffs in lawsuits brought under the ADA may seek remedies such as reinstatement, back pay, a limited amount of compensatory and punitive damages (for intentional discrimination), an certain other forms of relief
- repeat violators may be ordered to pay fines of up to $10,000

55

What is a Disability?

- the ADA is broadly drafted to cover persons with physical or mental impairments that "substantially limit" their everyday activities
- specifically the ADA defines a disability to include any of the following :
1. A physical or mental impairment that substantially limits one or more of the major life activities of the affected individual.
2. A record of having such an impairment
3. Being regarded as having such an impairment

56

Types of Disability

- health conditions that have been considered disabilities under federal law ink due blindness, alcoholism, heart disease, cane, muscular dystrophy, acquired immune deficiency syndrome (AIDS), testing positive for the human immunodeficiency virus (HIV, the virus that causes AIDS), and morbid obesity (which exists when an individual's weight is twice the normal weight for his or her height)
- the ADA includes a separate provides that prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities
- an employer cannot, for instance, refuse to hire the parent of a child with a disability based on the assumption that the person will miss work too often or be unreliable

57

Reasonable Accommodation under ADA

- the employer must make an accommodation if a a job applicant or an employee with a disability, with reasonable accommodations, can perform essential job functions
- Required modifications may include installing ramps for a wheelchair, establishing flexible working hours, creating or modifying job assignments, and designing or improving training materials an procedures
- generally, employers should give primary consideration to employees' preferences in deciding what accommodations should be made unless the accommodation would cause the employer undue hardship
- Substance Abusers
- drug addiction is considered a disability under the ADA because it is a substantially limiting impairment
- does not protect individuals who a actually using illegal drugs
- instead, the ADA protects only persons with former drug addictions - those who have completed or who are nor in a supervised drug rehabilitation program
- individuals who have used drugs casually in the past Also are not protected because they are not considered addicts and therefore do not have a disability

58

Defenses to Employment Discrimination

- first line of defense for an employer charged with employment discrimination is to assert that the plaintiff has failed to meet his or her burden of proving that discrimination occurred
- once a plaintiff succeeds, the burden shifts to the employer to justify the discriminatory practice
- possible justifications include that discrimination was a result of a business necessity (unintentional) a bona fide occupational qualification (essential to the job) or seniority system

59

Affirmative Action

- programs that attempt to "make up" for past patterns of discrimination by giving members of protected classes preferential treatment in hiring or promotion
- promote diversity in schools and workplaces
- Title VII neither requires nor prohibits affirmative action
- have been controversial particularly when they result in reverse discrimination against members of a majority group, such as white makes