Chapter 24Discrimination in

Employment

I. When is Discrimination Illegal?

Discrimination - different treatment of individuals.

Justified vs. Unjustifieda. Unjustified - judged by membership in certain groups, protected classes often minoritiesb. Justified - workers fairly judged as dependable, skilled, creative, smart of hard-working usually receive more favorable treatment & opportunities

A. Protected Classes

1. Race & Color2. Gender3.

Pregnancy/Pregnancy Intention

4. Age5. Religion6. Disability7. National Origin

B. Scope of Protection?

1. In All Aspects of Employment - hiring, pay, promotions, training, overtime, educational opportunities, travel requirements, shift rotation, fringe layoffs.

“Persons between the agesof 16 - 30 years, please.”

“No black people need apply.”

“MEN ONLY!”

B. Scope of Protection

2. Governing Most Employees:a. 15 or more employees & engage in interstate commerceb. Agencies of state gov’t, employment agencies, & labor unionsc. Congress can legally discriminate without justification

II. Laws That Prohibit Employment

Discrimination?A. Civil Rights Act of 1964 - forbids employers

to discriminate in hiring, paying, training, promoting or firing on the basis of race, color, religion, national origin or sex.Affirmative Action Plan - mandated by courts to remedy past discrimination.

II. Laws That Prohibit Employment

Discrimination?B. Equal Pay Act of 1963 -

women who do the same work as men must be paid at the same rate.

C. Age Discrimination in Employment Act of 1967discrimination against workers over 40 unless for job performanceEx.- firefighter, police

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II. Laws That Prohibit Employment

Discrimination?D. Americans with

Disabilities Act (ADA) - employers that receive federal funding not to discriminate against qualified handicapped persons

E. Pregnancy Discrimination Act - may not fire, refuse to hire or promote, or demote a pregnant women

I. Unequal Treatment Cases

A. Unequal Treatment (disparate treatment) - employer treats a member of a protected class less favorably than other employees.Must be intentional!

1. Direct Evidence - intentional & openExample: “No Irish,” “No Jews need apply,”“I am sorry but we have a policy against hiring women in these positions.”Discrimination is admitted, employee only needs to prove that he/she was not hired because in a protected class.

I. Unequal Treatment Cases

2. Indirect Evidence - employer denies any intention to illegally discriminate.

3. Statisticsa. person was a member of a protected classb. person applies for the job and was qualifiedc. person was rejected; andd. employer held the job open and sought other persons with similar qualification

B. Employer’s Defenses

1. Business NecessityEmployee’s skills or work history was not hired. Advancing business not unjustified discrimination

2. Bona Fide Occupational QualificationJob requirement that compels discrimination against a protected class.Must be truly essential to the businessEx. - actors, male or female models

B. Employer’s Defenses

3. Seniority - rewards employees based on length of employment rather than merit.Ex. - Union members - pays, promotes, or layoffs based on seniority

4. Pretexts – cover for discrimination

II. Disparate Impact Cases

Neutral on its face - makes no reference to a protected class

Disparate Impact - policy eliminates more members of protected class than members of the majority

Specific Employment Practices - identified that statistically excludes members of a protected classEx. - HS grad, aptitude test, height/weight tests

II. Disparate Impact Cases

A. Statistical Proof of Disparate Impact -percentage in the applicant pool (qualified for job) is statistically higher that the percentage in the workforce group (persons actually in workforce).Causation - linking the challenged practice & the difference in percentage of protected class, must be proven.

B. Employer Defenses - challenged practice is justified by business necessity, there is no liabilityEx. - weight lifting

III. Sexual Harassment Cases

1. Quid Pro Quo – one thing is exchanged for another.

2. Hostile Environment - unwelcome sexual, comments, gestures, or contact that interferes with an employees ability to work.**Employer is strictly liable

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