Chapter 21: employment discrimination

Question 1

discrimination

Answer 1

being treated differently than others

this is LEGAl in TN

as long as employee is NOT being treated differently because of age, race, sex, religion, national affiliation, union

can treat discriminate for ANY other reason

Question 2

Title VII of the Civil Rights Act of 1964 (Title VII)

Answer 2

protects against race, religion, sex, pregnancy, and national origin discrimination

15 or more employees - must be filed with the Equal Employment Opportunity Commission within 180 days of a violation

Question 3

what are the only markers of discrimination

Answer 3

ADA, ADEA, Title 7

any other reason of firing someone is legal

Question 4

EEOC procedure - handling complaints

Answer 4

severe respondent notice of complaint within 10 days

EEOC conducts investigation

reasonable cause for complaint?

if yes:
- attempts to settle through voluntary procedures
- EEOC may file in a federal district court

if no:
- right to sue letter issued to complainant
- complainant must file within 90 days of right to sue

Question 5

age discrimination in employment act (1967)

Answer 5

ADEA protects 40 and over

20 or more employees must be filed with EEOC within 180 days of violation

can discriminate against people under 40

Question 6

equal pay act

Answer 6

prohibits discrimination based on sex in payment of wages/benefits when working for similar skill

lawsuit must be filed in court within 2 yrs

Question 7

Lilly Ledbetter Fair Pay Act

Answer 7

resets time in which an employee may file an EPA lawsuit

each paycheck rests the beginning point for statue of limitations purposes

Question 8

Religious Accommodation in the workplace (Title 7)

Answer 8

religion - sincerely held religious practices

1) cannot discriminate and
2) must make “reasonable accommodate” unless
3) undue burden

Question 9

how to know if a religion is a sincerely held belief?

Answer 9

you make a limited inquiry into the employee’s claim that the practice at issue is religious

ex: written materials, publications

Question 10

undue burden - religion vs disability

Answer 10

religion - undue burden means “more than de minimis or slight” cost or burden”

note that this a lower standard than:

ADA - undue burden means - significant difficulty or expense

Question 12

requested accomodations

Answer 12

employee may need a particular day off each year for a religious holiday, to wear religious attire or have place to pray

employer may require an employee to use their paid time off (personal or vacay days) to meet required accommmodations

Question 13

Kroger example of RA

Answer 13

female employee in floral dpt is Pentecostal and her religion requires her to wear a skirt not pants

notifies her supervisor that her faith prohibits her from wearing pants

RA - allow her to wear skirt

Question 14

slide 18: US Steel did not hire an applicant after he refused to give hair from his scalp for a pre-employment drug test requiring a hair follicle sample ????

Answer 14

example: Mr Butcher not wanting to have biometric scanner placed in hand because violated his religious beliefs due to believing in the “mark of the beast”

RA - find another way for him to clock in

Question 15

proving discrimnation

Answer 15

1) quit/constructive discharge
2) prima facie case
3) disparate treatment
4) disparate impact

Question 16

quit/constructive discharge

Answer 16

just because an employee quit does not mean they cannot have a discrimination claim

some are harassed/discriminated/hours taken away because of above three give up and quit

Question 17

prima facie case

Answer 17

bare min employee must prove

what the plaintiff must prove to even start to have a discrimination case:

1) member of protected class - (age, race, sex, national origin, disability, union)
2) adverse job action - is not hired, fired, demoted not promoted

Question 18

disparate treatment

Answer 18

employee subject to an adverse job action

intentional - meant to discriminate

Question 19

disparate treatment example

Answer 19

ADEA situation

Question 20

disparate impact

Answer 20

unintentional discrimination

if an employer requires a certain qualification that is not necessary to perform the job and that qualification leads to eliminating most people of a protected class, that is disparate impact

look at job applicants

if the qualification excludes 80% that protected class and that qualification is not necessary (business necessity), then this is discrimination (disparate impact)

Question 21

disparate impact example

Answer 21

hiring for a secretary for a plastic ssurgeon’s office

applicants cannot have any gray in their hair or wrinkles

is having no gray/wrinkles a business necessity or required qualification of the job?

Question 22

what are employer defenses to disparate impact

Answer 22

BFOQ

Business Necessity

Question 23

business necessity

Answer 23

an employer may assert “business necessity” or legitimate, job related purpose

Question 24

proving case

Answer 24

plaintiff must prove prima facie case

defendant proves not discrimination by business necessity or BFOQ

Plaintiff turn to prove that the defendant business necessity defense is pretextual and not true

Question 25

business necessity example: Bull Gun Shooting and Range company

Answer 25

company requires natrural hearing due to firing a gun. plaintiff wear hearing aid (ADA) plaintiffs prima facie case: 1) protected class - ADA 2) adverse job - did not get job now employers turn to prove business necessity

Question 26

business necessity example: high school hiring VP

Answer 26

opening for VP in charge of discipline and must be 6' tall, the school argues that tall people are aseen as power figures plaintiffs prima facie case: 1) protected class - female, sex 2) adverse job - did not get job now employer's turn to prove business necessity - no short females can be powerful

Question 27

business necessity example opening for a Bible sale and applicant must be Christian

Answer 27

plaintiffs prima facie case: 1) protected class 2) adverse job - did not get job now employer's turn to prove business necessity - business necessity to require an employee who sells Bibles to be a Christian

Question 29

business necessity example - opening for a janitor at a Christian bookstore, and the applicant must be a Chrsitian

Answer 29

plaintiff's prima facie case: 1) protected class - 2) adverse job - did not get job now employer's turn to prove business necessity - not a business necessity to be a Christian to be a janitor

Question 30

sexual harassment - Title 7

Answer 30

employer cannot require employees to sign mandatory arbitration clauses for sexual assault or sexual harassment claims

Question 32

types of sexual harassment

Answer 32

1) hostile sexual environment - standard must be offensive to a reasonable person as well as to the victim and it must be severe and pervasive 2) quid pro quo - in exchange (give and take)

Question 33

online harassment

Answer 33

- company email systems - posting sexually explicit images or jokes on co. computer systems, screen savers, etc. - employees will generally not be liable if prompt action taken

Question 34

supervisors

Answer 34

an employer is responsible for the acts of its supervisors

Question 35

co-workers harassing (not supervisors)

Answer 35

1) did employer have a sexual harassment policy 2) what did employer do to prevent or stop harassment

Question 36

co workers harassing

Answer 36

no policy - employer liable if NOT reported policy - ONLY liable if do not stop harassment once reported --> need to have employees sign policies at least once a year

Question 37

retaliation

Answer 37

every employment law whether state or federal has a retaliation clause most claims are related to this

Question 38

pregnancy discrimination - Title 7

Answer 38

retracting an offer when employer finds out applicant is pregnant

Question 39

TN Pregnant Workers Fairness Act

Answer 39

TN employers with at least 15 employees where does an employee file: TN Dpt of Labor and Workforce Development Legal Obligation: to make a reasonable accommodation for an employee's medical needs arising from pregnancy, childbirth, related medical conditions

Question 40

THRA

Answer 40

TN Human Rights Act (THRA) - race, religion, sex, national origin, and AGE employer's 8 or more persons TN Human Rights Commission (THRC) within 180 days THRA - age 40-69 of age

Question 41

TN Disability Act

Answer 41

8 employees - prohibits discriminating on the basis of physical, mental, or visual disability, including the use of a guide dog TN law does not require reasonable accommodations for a disability

Question 42

important notes

Answer 42

if less than 8 employees --> do not have a case on exam will see if asking for federal or state law if has 100 employees federal or state because both apply if 10,11,12 prob state law