Employment Discrimination The Costs of Discriminating

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Employment Discrimination The Costs of Discriminating Powered By Docstoc
					Employment Discrimination


      Chapter 16
            Historical Movement to the
                  Present Laws
• Historically, employers could discriminate on race, sex or other
  personal characteristics
• Jim Crow laws supported segregation & labor market
  discrimination
• National Civil Rights Movements in the 1960s began the change
• 1963 Equal Pay Act (first employment discrimination legislation)
• Title VII of the Civil Rights Act of 1964
• 1972 Equal Employment Opportunity Act (created the EEOC)
• 1978 Pregnancy Discrimination Act
• 1991 Civil Rights Act
• EEOC established to enforce all of them
“Hand Me A Lawsuit on a Silver Platter”, p. 525
 Lawsuit under the 1978 Pregnancy Discrimination Act



                           • Thompson (cook & van
                             driver) is fired from La Petite
                             Academy after she became
                             pregnant
                           • She and her supervisor,
                             Joanne Berns, don’t get along
                           • Berns says “ . . .your attitude
                             has changed since you have
                             become pregnant”; need to be
                             more “perky”; is “low
                             energy”
                           • Held: Motion to dismiss the
                             case is denied. There is
                             evidence of discharge due to
                             pregnancy discrimination.
            Title VII of the 1964 Civil Rights Act
             Amended by Equal Employment
                  Opportunity Act of 1972

• Employers/unions with 15 or more employees/members are
  subject to the law
• CANNOT discriminate based on
   – Race (Whites also protected)
   – Color
   – Religion (reasonable accommodation of religious practices w/o
     undue hardship on the employers
   – Sex (does not apply to sexual preference or identity)
   – National origin
• Reverse discrimination (preferential treatment to members of a
  protected class) is also illegal
   – McDonald v. Santa Fe Trail, p. 523
       • African-American employee reprimanded, but kept job;
         the white employee was fired. Held: Illegal under Title VII.
                 Sexual Harassment
                     Under Title VII

• Unwelcome sexual advances        •  Quid pro quo: Promise of
• Requests for sexual favors         reward or threat of
• Verbal or physical conduct of      punishment in exchange for
  a sexual nature                    providing sexual favors
• Purpose: to promote, change      • Hostile environment:
  condition of employment,            – discussing sexual activities
  salary, place on project, etc.      – commenting on physical
• Submission is the basis for           attributes
  the employment decision             – unnecessary touching or
• See “Your E-Mail Is Your              gestures
  Boss’s E-Mail”, p. 526              – crude, demeaning,
   – Concerns of sexual                 offensive language
      harassment through the          – displaying sexually
      use of interoffice e-mail         suggestive pictures
        Harris v. Forklift Systems, p. 526

• Teresa Harris is a rental manager; her boss, Charles Hardy,
  insults her in front of others--she is a target of sexual suggestions
• “You’re a woman, what do you know?”
• Called her a “dumb-ass woman”
• “Go to the Holiday Inn to negotiate [her] raise”
• “What did you do, promise the guy . . . [sex] Saturday night?”
• Hardy asks women to get coins from his front pants pocket
• Hardy throws things on ground; asks women employees to pick
  them up; makes sexual comments about clothing
• Harris quits & sues, claiming a “hostile work environment”
• Lower courts: Say there is no sexual harassment
• US Supreme Court reverses: “Employee’s psychological well-being
  is relevant” to determine if the environment is abusive and has a
  discouraging effect on the employee’s staying on job
              Reverse Sexual Discrimination
                          and
                Same-Sex Discrimination

• “It Works Both Ways,             • Oncale v. Sundowner Offshore
  Ladies”, p. 528                    Services, Inc. (in text, p. 527)
• David Papa as manager of         • Male-on-male sexual
  Dominos Pizza was harassed         harassment
  by his supervisor, Beth          • Held: Same-sex harassment is
  Carrier                            prohibited
• She squeezed his buttocks;       • Prohibition of sexual
  made comments on his body          harassment is not based on
• He said to quit; she fired him     asexuality or androgyny in
• Domino’s is ordered to pay         the workplace
  $237,257; post a sexual          • Use common sense
  harassment policy in the         • Use sensitivity
  stores; hold programs as to      • Courts use the “reasonable
  how to deal with such matters      person” standard in cases
            1967 Age Discrimination In
             Employment Act (ADEA)
• Prohibits discrimination in     • May not require a physical
  persons over 40                   exam as condition of
• All employers with 20+            continued employment
  employees must comply             (unless it is necessary for job
• Applies to hiring, promoting,     performance)
  terminating                     • May not choose a younger
• May not assign older workers      worker because an older one
  duties that restrict their        will retire soon
  ability to compete              • May not cut health-care
• May not force retirement          benefits for workers over 65
                                    because they are eligible for
• May not indicate age              Medicare
  preference in advertising
                                  • See Johnson v. Minnesota
                                    Historical Society, p. 528
      Johnson v. Minnesota Historical
              Society, p. 528

• Johnson is employed 23 years in the restoration of historical sites
• Fired in 1986 at age 54
• Had a permanent back injury; blind in 1 eye; cataract in the other
• Company reorganizes; fires 2 workers; 1 is Johnson
• Employees called him“blind old bat”/“dirty old man”
• Called him “old coot”/”blind old coot”
• His posture and walk were mimicked by his supervisor
• He files an age discrimination suit; the District Court grants a
  summary judgment for the Society; Johnson appeals
• Held: Dismissal of the suit is vacated.
• Case is remanded for further proceedings.
• The trier of fact should decide the issues concerning age
  discrimination.
   Procedure for filing under Title
           VII or ADEA
• First Step: Must file with a     • If the EEOC finds merit with
  state or federal EEO Office        the complaint, it issues a
• Within 180 days of alleged         right-to-sue letter to the
  discrimination                     employee (in order to bring
• Sometimes state laws have          the action in federal court)
  further requirements             • Sometimes the EEOC will sue
• EEOC then notifies the             the employer
  employer of the case &           • 100,000 complaints per year
  investigates the claim           • Takes about 1 year to resolve
• EEOC agent hears both
  parties’ sides of the incident
• If no settlement, the EEOC
  informs the parties of the
  result of the investigation
    Types of Discrimination Cases

• Imposing differential standards on employees
• Illegal compensation differentials
• Segregation in the workplace
• Constructive discharge due to harassment
• Disparate treatment (intentional discrimination)
   – See Price Waterhouse v. Hopkins, p. 532
• Disparate impact (unintentional discrimination)
   – See Griggs v. Duke Power Company,p. 534
           Price Waterhouse v. Hopkins, p. 532

• Hopkins worked at Price Waterhouse (PW) as a senior manager;
  was the only woman proposed for a partner, along with 87 males
• Her candidacy was put on hold for a year; she was not
  renominated
• She had secured a $25 million contract and had been praised for
  her excellent work
• However, she was considered aggressive and abrasive--”unduly
  harsh, difficult to work with; “impatient with staff”; was profane
• Was advised to act and dress more feminine, wear make-up, etc.
• She sued under Title VII, claiming sex discrimination
• Wins at District Court & Court of Appeals; WP appeals
• Held: Remanded for further proceedings.
• Gender cannot be the motive of promotion; employer must show a
  legitimate reason for non-promotion at trial.
  Griggs v. Duke Power Company, p. 534

• Prior to the 1964 Civil Rights   • 58% whites passed aptitude
  Act, Duke was segregated           tests; only 6% African-
• African-Americans held only        Americans
  low-level jobs                   • Plaintiffs claimed there was a
• After Title VII was passed         discriminatory impact on
  Duke took applications by          hiring
  minorities, but required         • District Court and Court of
   – High school diploma &           Appeals said there was no
      certain scores on tests        discriminatory motive
• Requirements appeared            • Held: The requirements have
  neutral on their face              a discriminatory impact
• 34% white men had a H.S.         • Do not bear a relationship to
  diploma in North Carolina;         successful performance of the
  12% African-American men           jobs offered
     Defenses Under Title VII

• Business Necessity: related to job
   – Physical requirements/lifting boxes?
   – Flight attendants must be certain heights?
• Professionally-Developed Ability Tests
   – Must predict work ability
• Bona Fide Seniority or Merit System
   – Cannot take away seniority or merit, even though
     applied discriminatively in the past
• BFOQ: Bona Fide Occupational Qualification
   – Only female guards at women’s prisons?
   – Male models for female clothing?
                  “We’re Spreading Love All
                     Over Texas”, p. 537

• Southwest Airlines (operating in the 1970s) hired only women
  flight attendants/ticket agents; men sued for sex discrimination
• Southwest defended that hiring was based on a business necessity
• Southwest ads promised
   – “In-flight love”
   – “Love bits” (roasted almonds)
   – “Love potions (cocktails)
   – Attendants wore hot-pants
   – Ticketing system featured a “quickie machine” that provided
      “instant gratification”
• Said their hiring reflected the ads and promotion of their service
• Held: Court struck down hiring. This is not a business “where
  vicarious sex entertainment is the primary service provided.”
     Age Discrimination Defenses
• Good cause
• Bona fide occupational qualification (BFOQ)
• Reasonable factors other than age (performance
  evaluations; employee’s performance has deteriorated)
• Seniority (a younger worker has seniority over an older
  worker and the older worker is laid off first. “Last in-
  first out” rule)
• Bona fide employee benefit plans (which encourage
  voluntary early retirement)
            Remedies
(Courts Have Broad & Flexible Powers)
                  • Injunction
                  • Reinstatement/promotion
                  • Hiring employees, with or
                    without back pay
                  • Equitable relief
                  • Intentional discrimination
                    relief:
                     – Back wages
                     – Punitive damages
                     – Payment for
                        psychotherapy or medical
                        treatment
    Affirmative Action Programs

• Purpose? To Remedy past        • Programs are monitored and
  discriminatory practices         enforced by the Office of
• Correct underrepresentation      Federal Contract Compliance
• Adopted ONLY on race or          Programs (OFCCP)
  sex (not color, religion,      • Courts may require
  national origin or age)          affirmative action as a
• Pres. Johnson’s Executive        remedy in discrimination case
  Order 11246 in 1965:           • See Johnson v. Transportation
  government contractors must      Agency, Santa Clara County,
  adopt affirmative action         CA, p. 541
• Companies may voluntarily
  adopt a plan under Executive
  Order 11246
Johnson v. Transportation Agency, Santa Clara
              County, CA, p. 541
     (Is Affirmative Action Program Lawful?)

                         • Program to hire & promote
                           female employees
                         • Johnson (a man), Joyce (a
                           woman) apply for a job
                         • He scores 75% at interview;
                           she 73%
                         • Taking into account her sex,
                           Joyce is hired over Johnson
                         • District Court said that the
                           affirmative action plan was
                           illegal with no clear goals;
                           Court of Appeals reversed
                         • Held: Affirmed. Use of the
                           plan assists in long-term goals
     “International Discrimination in
        Europe and Japan,” p. 540

• These countries are behind      • Japan: Women are kept out
  the US in treatment of women      of higher-level jobs and are
  and minorities                    not paid as much for equal
• Europe: Employees can be          work
  forced to retire between the    • Both: Generous maternity
  ages of 55 and 65                 benefits encourage employers
• Japan: First sexual               not to hire women because of
  harassment case in 1992--         high costs of such benefits
  remedy was for only $12,500,
  but considered a landmark
  case
• Europe: Immigrants are
  treated as 2nd-class citizens
          1990 Americans With Disabilities Act
         (ADA) and the 1973 Rehabilitation Act

• Applies to all employers with     • Examples of disabilities
  15+ employees                        – History of alcohol or drug
• Cannot discriminate against a           abuse
  person with a disability that        – Disfigurements
  “limits a major life activity,”      – Have had heart attacks
  or has a record of or
  regarded to have ”an                 – Must use a wheelchair
  impairment”                          – Are hearing- or vision-
   – Manual tasks                         impaired
   – Walking/seeing                    – Fear of heights NOT
                                          covered
   – Hearing/speaking
                                       – Being left-handed NOT
   – Breathing/learning                   covered
   – Working                        • AIDS and illnesses are “hot
                                      issues” in this law
      Requirements Under ADA

• Employers must make a
  “reasonable accommodation”
  BUT need not take on an
  “undue hardship”
• Special equipment & training
  for the disabled
• Modified work schedules?
  Yes
• Redesign the entire assembly
  line to accommodate
  wheelchair employees? No
• Readers for blind? Yes
• Completely revamp a
  computer system? No
         School Board of Nassau County v.
                Arline, p. 543

• Arline was hospitalized with tuberculosis in 1957; Disease was in
  remission for 20 years
• 1977-78 tests showed the disease was active again, with small
  chance of spreading to schoolchildren
• The school board suspends Arline with pay for two years; then
  dismisses her; she claims protection under the Rehabilitation Act
• District court holds against her saying a contagious disease is not
  a disability; the Court of Appeals reverses, saying the school board
  should consider the risk and assign her away from school children
• The school appeals
• Held: Affirmed and remanded. Court should 1) evaluate if Arline
  is qualified for her job as a teacher and 2) decide if the employer
  could reasonably accommodate her in light of the medical findings
  about her case.
              1995 ADA Enforcement Guidance:
               Preemployment Disability-Related
             Questions and Medical Examinations

• ADA prohibits employers asking disability-related or requiring
  medical exams before the job is offered
• See examples of illegality, p. 545
• What you may and may not ask of applicants must relate to the job
• Once a job offer is made, an employer may ask 1) for
  documentation of a disability and 2) more questions about
  reasonable accommodations
• Can you ask?
   – Age? No
   – Computer skills if applicant won’t use them? No
   – Married? Children? No
   – Sexual Preference? No
   – Been in therapy? No
“Get the Women Out of My Class”, p. 545

                    • Winston (teacher) was fired
                      over sexual misconduct
                    • He kissed an 18-year-old
                      female student “after a
                      sexually suggestive
                      conversation”
                    • Winston sues the school,
                      claiming he had a “mental
                      handicap of sexual addiction”
                    • Held: Complaint dismissed
                    • ADA excludes “sexual
                      behavior disorders” from the
                      term disability
  “Can Race Discrimination Be Justified to Help
         Minority Businesses?”, p. 547

• First Impressions sends white
  “front man” to white clients
• Judy Wiles, owner, says she
  has lost 20 jobs because of
  clients’ preconceived notions
  of Blacks
• Mel Farr (owner of fifteen
  automobile franchises) uses a
  white stand-in for TV spots
• Others do the same disguising
• Some disagree on ethical
  grounds
• Others say it’s just realistic
  business practices

				
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