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CIVIL RIGHTS

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									CIVIL RIGHTS

 Brief Legal History of
Civil Rights Legislation
          List of Statues
   The following list of statues will be
    organized in the following manner:
    – First the Date
    – Name of the Statue
    – Provisions
    – (and at times comments)
 Under the Andrew Johnson and
  Ulysses S. Grant administration the
  following two acts were passed by
  Congress and signed by the President:
 1866 and 1877

 Civil Rights Acts of 1866 and 1870
    Civil Right Acts 1866
           and 1870
   Provisions:
    – Prohibited intentional discrimination
      based on race, color, national origin or
      ethnicity.
    – Permitted Lawsuits
   Comment:
    – Key is the word intentional
    – No gender
           Equal Pay Act
   1963, signed by John F. Kennedy
   Equal Pay Act
   Passed as an amendment to Wages and
    Hours Act, passed by the U.S. Congress in
    1938 to establish minimum living standards
    for workers engaged directly or indirectly in
    interstate commerce, including those
    involved in production of goods bound for
    such commerce.
           Equal Pay Act
   Provisions:
    – Prohibits paying workers of one sex
      different wages from the other when the
      job involves substantially similar skills,
      effort, and responsibility
    – Wage and Hour Division of the
      Department of Labor enforces the law
      Equal Pay Act
– Private Lawsuits with double damage
  recovery for up to three years plus
  attorney's fees.
                  Civil Rights Act
 1964, signed by Lyndon B. Johnson
 Civil Rights Act

 Provisions:
    – Outlaws all employment discrimination on
      the basis of race, color, religion, sex, or
      national origin.
    – Applies to:
        hiring
    Civil Rights Act, 1964
   Provisions (Continuation)
    – Applies to (continuation):
        pay

        working  conditions
        promotion

        discipline

        and discharge

    – Enforcer
        Equal   Employment Opportunity Commission
    Civil Rights Act, 1964
   Enforcer
       Created  the Equal Employment Opportunity
        Commission (EEOC)
       The EEOC is composed of five members, not
        more than three of whom shall be members
        of the same political party. Members of the
        Commission shall be appointed by the
        President by and with the advice and consent
        of the Senate for a term of five years.
    Civil Rights Act, 1964
   Lawsuits
    – Attorney fees and costs recoverable
   Lots more on this act after all the other
    acts are discussed
    Age Discrimination in
      Employment Act
 1967, also signed by Johnson
 Provisions:
    – Prohibits employment discrimination
      because of age against employees over
      40 and mandatory retirement restrictions
     Equal Employment
      Opportunity Act

   1972, signed by President Richard M. Nixon
   Amended Title VII to broaden it and to
    provide EEOC greater ability to bring
    enforcement action in the courts.
   Discrimination charges could be brought by
    organizations on behalf of aggrieved
    individuals, as well as by employees and job
    applicants themselves.
               Rehabilitation Act
 Prohibits Employment Discrimination
  on the basis of a handicap.
 Comments:
    – It specifically indicates that none of the
      following will be considered Handicap:
        The term "individual with a disability" does not
        include an individual who is currently
        engaging in the illegal use of drugs
               Rehabilitation Act
   Comments (continuation):
    – It specifically indicates that none of the
      following will be considered Handicap
      (Continuation):
        theterm "individual with a disability"does not
        include an individual on the basis of
        homosexuality or bisexuality
                Rehabilitation Act
   Comments (continuation):
   the term"individual with a disability" does not
    include an individual on the basis of
          (i) transvestism, transsexualism,
           pedophilia,exhibitionism, voyeurism, gender identity
           disorders not resulting from physical impairments, or
           other sexual behavior disorders;
          (ii) compulsive gambling, kleptomania, or pyromania;
           or
          (iii) psychoactive substance use disorders resulting
           from current illegal use of drugs.
                 Pregnancy
         Discrimination Act
 1978, signed by President Jimmy
  Carter
 Prohibits discrimination on the basis of
  pregnancy, childbirth, or related illness
  in employment opportunities, health or
  disability insurance programs, or sick
  leave plans.
                                Pregnancy
                            Discrimination
                                       Act
   Specifically:
    – Prohibits termination or refusal to hire or
      promotion of women solely because they
      are pregnant.
    – Bars fixed pregnancy leave conditions.
    – Protects reinstatement rights of women
      on pregnancy leave.
    – Treats pregnancy as any other disability
      under fringe benefit plans
                              Pregnancy
                          Discrimination
                                     Act

   Specifically:
    – If an employee is temporarily unable to
      perform her job due to pregnancy, the
      employer must treat her the same as any
      other temporarily disabled employee; for
      example, by providing modified tasks,
      alternative assignments, disability leave
      or leave without pay.
                               Pregnancy
                           Discrimination
                                      Act

   Specifically:
    – Pregnancy related benefits cannot be
      limited to married employees. In an all-
      female workforce or job classification,
      benefits must be provided for pregnancy
      related conditions if benefits are provided
      for other medical conditions..
                                   Pregnancy
                               Discrimination
                                          Act
   Specifically:
    – If an employer provides any benefits to workers
      on leave, the employer must provide the same
      benefits for those on leave for pregnancy related
      conditions.
    – Employees with pregnancy related disabilities
      must be treated the same as other temporarily
      disabled employees for accrual and crediting of
      seniority, vacation calculation, pay increases and
      temporary disability benefits.
                    American with
                    Disability Acts
   1990, signed by President George Bush
   No covered entity shall discriminate against
    a qualified individual with a disability
    because of the disability of such individual in
    regard to job application procedures, the
    hiring,advancement, or discharge of
    employees, employee compensation, job
    training, and other terms, conditions, and
    privileges of employment.
                     American with
                     Disability Acts
   The term discrimination is to mean:
        limiting, segregating, or classifying a job
         applicant or employee in a way that adversely
         affects the opportunities or status of such
         applicant or employee because of the
         disability of such applicant or employee
        excluding or otherwise denying equal jobs or
         benefits to a qualified individual because of
         the known disability of an individual with
         whom the qualified individual is known to
         have a relationship or association
                     American with
                     Disability Acts
   The term discrimination is to mean
    (continuation):
        notmaking reasonable accommodations to
        the known physical or mental limitations of an
        otherwise qualified individual with a disability
        who is an applicant or employee, unless such
        covered entity can demonstrate that the
        accommodation would impose an undue
        hardship on the operation of the business of
        such covered entity
                     American with
                     Disability Acts
   The term discrimination is to mean
    (continuation):
        denying  employment opportunities to a job
        applicant or employee who is an otherwise
        qualified individual with a disability, if such
        denial is based on the need of such covered
        entity to make reasonable accommodation to
        the physical or mental impairments of the
        employee or applicant
                     American with
                     Disability Acts
   The term discrimination is to mean
    (continuation):
        using qualification standards, employment
        tests or other selection criteria that screen out
        or tend to screen out an individual with a
        disability or a class of individuals with
        disabilities unless the standard, test or other
        selection criteria, as used by the covered
        entity,is shown to be job-related for the
        position in question and is consistent with
        business necessity
                          American with
                          Disability Acts
   The term discrimination is to mean
    (continuation):
          failing to select and administer tests concerning
           employment in the most effective manner to ensure
           that, when such test is administered to a job applicant
           or employee who has a disability that impairs
           sensory,manual, or speaking skills, such test results
           accurately reflect the skills, aptitude, or whatever other
           factor of such applicant or employee that such test
           purports to measure, rather than reflecting the impaired
           sensory, manual, or speaking skills of such employee
           or applicant (except where such skills are the factors
           that the test purports to measure).
Civil Rights Act of 1991
   Expanded the Civil Rights Act of 1964 and
    was also signed by President Bush
   Main Purposes:
    – Extended punitive damages and jury trials to
      victims of employment discrimination.
    – Put women on equal basis with victims of race-
      based discrimination.
    – Put more of the burden of proof of non-
      discrimination on the employer
                               Act of 1991
– Extended punitive damages and jury trials to
  victims of employment discrimination.
      Determination of punitive damages. - A complaining
       party may recover punitive damages under this section
       against a respondent(other than a government,
       government agency or political subdivision) if the
       complaining party demonstrates that the respondent
       engaged in a discriminatory practice or discriminatory
       practices with malice or with reckless indifference to
       the federally protected rights of an aggrieved individual
                               Act of 1991
– Put women on equal basis with victims of race-
  based discrimination.
– Set up a "Glass Ceiling Commission"
      to focus attention on, and complete a study relating to,
       the existence of artificial barriers to the advancement of
       women and minorities in the workplace, and to make
       recommendations for overcoming such barriers. The
       Commission is to be composed of 21 members, with
       the Secretary of Labor serving as the Chairperson of
       the Commission. This title does not directly impose
       any responsibilities or obligations on the EEOC except
       to provide information and technical assistance as
       requested by the new Commission.
                        Act of 1991

– Put more of the burden of proof of non-
  discrimination on the employer
– It was a reaction to two cases that had
  gone before the Supreme Court
   Griggs   v. Duke Power Co., 401 U.S. 424
    (1971)
   Wards Cove Packing Co. v. Antonio, 490 U.S.
    642 (1989)
   More about this later…….
                        Act of 1991

   In Essence:
    – Companies had used a loop-hole in the
      1964 Act and subsequent acts which
      allowed them to establish “business-
      related” and “job related” conditions to
      continue to discriminate.
    – Mainly, because it was up to the
      employee to prove they were being
      discriminated against
           Charge Statistics by the EEOC
             FY 1992 Through FY 2000

           FY 1992    FY 1994    FY 1996    FY 1997    FY 1998    FY 1999    FY 2000
Total
Charges      72,302     91,189     77,990     80,680     79,591     77,444     79,896
             29,548     31,656     26,287     29,199     28,820     28,819     28,945
Race
            40.90%     34.80%     33.80%     36.20%     36.20%     37.30%     36.20%
             21,796     25,860     23,813     24,728     24,454     23,907     25,194
Sex
            30.10%     28.40%     30.60%     30.70%     30.70%     30.90%     31.50%
National      7,434      7,414      6,687      6,712      6,778      7,108      7,792
Origin      10.30%      8.10%      8.60%      8.30%      8.50%      9.20%      9.80%
              1,388      1,546      1,564      1,709      1,786      1,811      1,939
Religion
             1.90%      1.70%      2.00%      2.10%      2.20%      2.30%      2.40%
          Direct Suits by EEOC
Litigation Statistics,
FY92 through FY99           FY 92   FY 94   FY 96   FY 97   FY 98   FY 99   FY 2000
All Suits Filed              447     425     193     338     405     465      327
Direct Suit                  347     357     167     305     366     439      291
                Title VII    242     235     106     175     229     324      222
 American Dissability                34      38      80      79      54       24
    Age Discrimination       84      74      13      36      36      40       27
        Equal Payment         2       0       1       0       2       4        3
            Concurrent       19      14       9      14      20      17       15

Subpoena Actions             100     68      26      33      39      26       36
        Resolutions Obtained
              by EEOC
                           FY 92   FY 94   FY 96   FY 97   FY 98   FY 99   FY 2000
All Resolutions             626     469     296     231     312     317      428
Direct Suits and
Interventions               532     408     278     208     290     294      402
               Title VII    360     266     175     118     183     176      304
                   ADA               9      52      46      64      65       51
                  ADEA      130     109     35      33      33      36       34
                   EPA      11       3       0       0       1       0        4
           Concurrent       31      21      16      11       9      17        9

Subpoena Actions            94      65      18      23      22      23       26
        Resolutions Obtained
              by EEOC
                        (NOTE:
     Concurrent where more than one act was in issue)
                           FY 92    FY 94    FY 96    FY 97     FY 98    FY 99    FY 2000
Monetary Benefits ($
in millions)               $71.10   $39.50   $50.80   $112.30   $92.20   $96.90   $46.90
               Title VII    14.7     23.6     18.8      93.6     60.5     46.9     32.1
                   ADA               0.4      2.5       1.2      3.1      3.1       3
                  ADEA      55.5      15      10.5      17.1     27.3     43.3     11.2
                   EPA      0.2      0.04       0        0       0.2       0       0.2
            Concurrent      0.7      0.5       19       0.4      1.3      3.6      0.4
Civil Rights Act of 1964
   Application of Title VII
    – Groups Covered
        Employers   with at least 15 workers daily for at
         least for 20 weeks in current of previous year
        Labor union with 15 members or more

        Employment agency procuring worker for
         employers covered
        Labor union/agencies with at least 15
         employees
        State and local agencies
Civil Rights Act of 1964
   Application of Title VII
    – Groups NOT Covered:
        Employment     of Aliens Outside the U.S.
        Religious corporations associations,
         educational institutions, or societies are
         exempt when the employment of individuals
         of a particular religion is connected with the
         activities of such corporations, associations,
         educational institutions, or societies
          – ISSUE: Funding for faith based organizations
            proposed by President Bush
Civil Rights Act of 1964
   Application of Title VII
    – Groups NOT Covered (continuation):
          Congress is exempt from Civil Rights Act of 1964
          Federal Government and Corporations owned by the
           Federal Government are exempt from Title VII.
           However, some prohibitions in other statues have been
           implemented by the Federal Government
          American Indian Peoples and departments and
           agencies in Washington D.C.
    Civil Rights Act of 1964

   Employment Procedures Covered
    – Hiring, compensation, training programs,
      promotion, demotion, transfer, fringe
      benefits, employer rules, working
      conditions, and dismissals
    – If the agency is a employment agency,
      then also included are referrals
    Civil Rights Act of 1964

   Theories of Discrimination under the
    Title VII Act
    – Disparate Treatment
    – Disparate Impact
    – Pattern or Practiced of Discrimination
                                  Disparate
                                 Treatment
   Differential Treatment with the Intention to
    Discriminate
    – RESPONDENT, BLACK CIVIL RIGHTS ACTIVIST, ENGAGED
      IN DISRUPTIVE AND ILLEGAL ACTIVITY AGAINST
      PETITIONER AS PART OF HIS PROTEST THAT HIS
      DISCHARGE AS AN EMPLOYEE OF PETITIONER'S AND THE
      FIRM'S GENERAL HIRING PRACTICES WERE RACIALLY
      MOTIVATED. WHEN PETITIONER, WHO SUBSEQUENTLY
      ADVERTISED FOR QUALIFIED PERSONNEL, REJECTED
      RESPONDENT'S RE-EMPLOYMENT APPLICATION ON THE
      GROUND OF THE ILLEGAL CONDUCT, RESPONDENT FILED
      A COMPLAINT WITH THE EQUAL EMPLOYMENT
      OPPORTUNITY COMMISSION (EEOC) CHARGING
      VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
                                     Disparate
                                    Treatment
   Differential Treatment with the
    Intention to Discriminate
    – Neither the EEOC, nor the lower court, nor the appeals
      court would stand for Mr. Green since the block of traffic
      encouraged by Mr. Green was not covered under the Title
      VII
    – The Supreme Court send it back to Congress so that
      changes would be made to the law.
                                           Disparate
                                          Treatment
   Differential Treatment with the
    Intention to Discriminate
    – From then on, this has become the prima facie for
      discrimination:
          Plaintiff belongs to a Minority
          Plaintiff applied for and was qualified for the job
          Plaintiff despite job qualifications is rejected
          Job remains OPEN and employer still seeking
                                 Disparate
                                    Impact
   Practice or practices that have a
    disproportionately adverse effect on women
    or minorities. In one case it was due to a
    hiring practice
   Wards Cove Packing V. Antonio
   At issue were jobs at a Alaskan salmon
    canneries of two kinds:
    – unskilled "cannery jobs" on the cannery lines,
      which are filled predominantly by nonwhites;
    – and "non-cannery jobs," most of which are
      classified as skilled positions and filled
      predominantly with white workers
                                Disparate
                                   Impact
   Wards Cove Packing V. Antonio
    (continuation):
    – The Court of Appeals erred in ruling that a
      comparison of the percentage of cannery
      workers who are nonwhite and the percentage of
      non-cannery workers who are nonwhite makes
      out a prima facie disparate-impact case.
    – Rather, the proper comparison is generally
      between the racial composition of the at-issue
      jobs and the racial composition of the qualified
      population in the relevant labor market.
                             Disparate
                                Impact
   Wards Cove Packing V. Antonio
    (continuation):
    – From this case it appeared as if the
      business demonstrated justification for
      the discriminatory practice then
    – The employee had to disprove the
      justification and present an alternative
                              Disparate
                                 Impact
   Wards Cove Packing V. Antonio
    (continuation):
    – The Civil Right Act of 1991 changed that
      to:
       Employee  had to show impact of operation
       Business how to show why operation was a
        “business necessity”
       The Act did not reverse the statistical
        approach suggested by the Supreme Court
                                Disparate
                                   Impact
   GRIGGS V. DUKE POWER CO.
    – At issue whether Duke could require a high
      school diploma or an intelligence test which
      mostly discriminates against a particular ethnic
      or racial group
    – The Civil Rights Act of 1991 prohibited test
      whose main purpose was to discriminate against
      particular groups and if it was not related the
      skills needed for the job
    Pattern or Practice of
       Discrimination
 Here the discrimination is not against
  an individual BUT against a covered
  group
 Tools used in this type of
  discrimination are:
    – Circumstantial evidence
    – Statistical discrimination
Specific Applications of
        Title VII
   Sex Discrimination
    – Policies that injure a gender over an other
    – Examples:
        An Alabama penitentiary required officers to
         be at least 5’2 feet tall
        State or county regulations which prohibit
         women from working certain hours to ensure
         they are available for their kids
     Sexual Harassment
        Background
 72% of US Employers have Romance
  Policies, 1997 data
 Sexual Harassment Cases Filed:
    – 1991: 1,221 cases
    – 1997: 15,889 cases
    – An increase of 1,201%
    – Filed by women in 1997: 88.4%
    – 4.7% deemed by EEOC to have merit
     Sexual Harassment
   Person and Employer are liable when
    Sexual Harassment occurs
    – There are two forms of sexual
      harassment:
       QuidPro Quo
       Atmosphere
                            Sexual
                        Harassment
   Quid Pro Quo
    – Employee is required to provide sexual
      favors in order to remain employed,
      secure a promotion, or obtain a raise
   Atmosphere of Harassment
    – Language, pictures, suggestions, etc. that
      is so pervasive as to become a hostile
      environment
                            Sexual
                        Harassment
   In August of 1999, the EEOC and Long
    Prairie Packing Company, Inc. (LLP)
    (Minnesota) announced that they reached a
    voluntary $1.9 million settlement that
    resolved all claims in an EEOC lawsuit filed
    on behalf of a class of current and former
    LPP male employees who were alleged to
    have been subjected to a pattern and
    practice of sexual harassment
                          Affirmative
                               Action
 Not Explicitly stated in Title VII
 Pros:  Supreme Court sanctioned it
  as a method to bring equal footing for
  women and minorities
    – Method of improving societal’s
      discrimination
    – Method of “correcting” past discrimination
      practices
                        Affirmative
                             Action
   Cons: Leads to reverse discrimination
    – Psychological impact
       Whites  feel not rewarded
       Minorities or women wonder if reward is
        due mainly to their demographics rather
        than their abilities
       Groups that face
      Affirmative Action
   Executive Action
    – State and local agencies, University and
      College which receive federal funds
    – Government Contractors
    – Business that work on Federal Projects
           instance, the requirement that 10% of the
        For
        subcontractors be minority or women owned
       Groups that face
      Affirmative Action
   Court ordered to remedy for past
    discrimination
    – FACT:
        Quotashave been rare or minimal specially
        when considering the public attention they
        have received
                       Enforcement
                         of Title VII
   Bring Complaint to EEOC or EEOC
    approved state agency
     – About 180 days (and at times 300 days if
       filing was done first at a state or local
       level or 30 days after being notified by
       them that the case was terminated, which
       ever comes first ) from the time the event
       occurred to filing claim
   EEOC or approved state agency has 10
    days to provide firm with notification of
    complaint
                  Enforcement
                    of Title VII
 EEOC has 180 days for negotiation or
  settlement
 If in those 180 days, EEOC does not
  obtain action it will give employee a
  “right to sue letter”

								
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