Discrimination in Employment

Melissa Beavers

Andy Coldren

Emily Kreger

Federal Legislation

Title VII of the Civil Rights Act of 1964: Prohibited employment discrimination based on race, color, religion, sex, or national origin

Equal Protection Clause of Fourteenth Amendment: Provides protection against group discrimination and unfair treatment

Used as a vehicle for individuals who seek relief from various forms of discrimination

Equal Protection Provisions of the Fourteenth Amendment and Employment Discrimination

Due process of law includes four aspects: procedural, substantive, Vagueness Test, and Presumption Test

Applied by courts in addressing forms of discrimination

Vagueness Test: protects those who allege discrimination from capricious acts by employer; laws are considered vague if a person of common intelligence has to guess at their meaning

Presumption Test

Presumes innocence until proven guilty Embedded in provisions to the U.S.

Constitution – e.g. right to remain silent and the right to a jury

Supports the belief that legal basis is critical in restricting an individual from his/her constitutional rights

Due Process Standards and Employment Discrimination

Courts operate on a three level balancing test to determine procedural due process: – Test may be applied to determine if person is

actually entitled to a hearing before action is taken– Test may be applied to determine if pre or post

deprivation is needed– Test may be applied to determine the standard

and level of proof necessary to deprive the person

Equal Protection Clause

Pivotal in cases alleging employment discrimination Prohibits state from showing preference to a certain

class of individuals over others Each individual must be treated equally under

Fourteenth Amendment Initial burden rests with plaintiff to determine that a

law is irrational; then shifts to the employer to show reason for the enforcement of the law; courts then balance the plaintiff’s contention against the employer’s argument of a valid reasoning behind their action

Title VII: Discrimination

Civil Rights Act of 1964 Title VII prohibits discrimination in employment based on race, color, religion, sex, or national origin

Law amended in 1972 to apply in educational institutions Amended by Civil Rights Act of 1991: provides for

compensatory damages, punitive damages, and jury trial in situations that involve intentional discrimination

Plaintiff must show that employer’s reasons for the challenged employment decision are false and that the true reason is discrimination – can be very difficult to prove

Retaliation

Title VII prohibits retaliation against a person who filed a discrimination charge, who participated in a discrimination hearing, or who opposed discrimination

Retaliation occurs when employer takes adverse action against employee who was involved in discrimination proceeding (e.g. demotions, termination, negative evaluations, refusal to employ).

Sexual Discrimination

Courts require gender-neutral decision making when employment opportunities are available

Discrimination based on sex is covered by Title VII and Title IX of the Education Amendments Act of 1972, which prohibits sexual discrimination by public and private educational institutions receiving federal funding

Title IX: “No person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

Title IX is administered by the Office for Civil Rights of the Department of Education

The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990

ADA (Americans with Disabilities Act) and IDEA (Individuals with Disabilities Act) protect individuals with disabilities against discrimination and ensures equal access and equal opportunity.

Rehabilitation Act of 1973

Section 504 prohibits discrimination against any otherwise qualified person who has a disability with respect to employment, training, compensation, promotion, fringe benefits, and terms and conditions of employment

Extends beyond the school environment and covers all people who are disabled in any program receiving federal financial assistance.

Qualifications for Employment Employers must make reasonable

accommodations to any know physical or mental impairment of an otherwise qualified individual who has a disability

Based on the law, reasonable accomodations include:– Existing facilities used by employees must be

readily accessible to and usable by individuals with disabilities

– An employer may be exempt if it can be demonstrated that an undue hardship is involved in making a reasonable accomodation

Racial Discrimination Disparate treatment simply means that an

employer treats some people more unfavorably that others regarding employment, job promotion, or employment conditions based on race, color, religion, sex, or national origin.

Disparate impact is merely a showing that a number of people of similar class are affected adversely by a particular employment practice that appears neutral.

Religious Discrimination The First Amendment and Title VII provide

protection to employees against religious discrimination.

Religion is defined by Title VII to include all aspects of religious observances, practices, and beliefs.

Employees are expected to make reasonable accommodations to an employee’s religious observance unless a hardship can be demonstrated.

Religious Discrimination Issues relating to religious discrimination

involve fairness and balance. An employer cannot legally require an

employee to choose between his or her job and religion.

Employees cannot be penalized by a placement that would require that employee to ignore a religious tenet of his or her faith to preserve a job.

Age Discrimination

Age discrimination in public schools primarily affects teachers. In past years, many districts forced teachers to retire when they reached a specified age.

These policies and practices were challenged by teachers under equal protection guarantees and received mixed reviews from the courts.

ADEA Age Discrimination in Employment Act of

1967, as amended in 1978 resulted in all challenges and uncertainties being insignificant.

Amended again in 1986, removed age limit of retirement completely, except for those in public safety positions such as police officers & firefighters.

These acts prohibited forced retirement. They cover teachers and other public employees over the age of 40.

Pregnancy and Public School Employment• Pregnancy Discrimination Act of 1978 (P.L. 95-555)• This law is an amendment to Title VII which protects pregnant

employees against any form of discrimination based on pregnancy.

• Districts may not assume that every pregnant teacher is physically unable to perform her teaching duties and responsibilities effectively because she is at a specific point in her pregnancy.

The courts have been fairly consistent in their rulings regarding issues related to pregnancy.

The intent of the act is to ensure that pregnant employees are treated in the same manner as other employees with respect to the ability to perform their duties.

Under this Act no woman can be dismissed, denied a job, or denied a promotion due to pregnancy.

Family and Medical Leave Act (FMLA)

Passed by congress in 1993; designed to allow eligible employees up to a total of 12 work weeks of unpaid leave during any twelve month period for the following reasons:– Birth and care of new child (of the employee)– Placement with the employee of a son or daughter

for adoption or foster care.– Caring for an immediate family member with a

serious health condition.– Medical leave when the employee is unable to work

due to a serious health condition.

Sexual Harassment Sexual harassment is prohibited by Title

VII and Title IX, however in spite of these prohibitions, incidents still persist.

Cases have remained constant over past years; increasing between 1992 to 1995 and then gradually decreasing after that.

This suggests that training and education on awareness are critical factors in combating harassment in the workplace.

Sexual Harassment, cont.

Sexual harassment was not included in Title VII of the Civil Rights of 1964 until 1980.

Its primary intent is to protect employees from harassment in their work environments.

Harassment is considered to be a form of sex discrimination which can manifest itself in many forms from verbal statements and gestures to overt behaviors.

The victim, as well as the harasser, may be a male or a female, not necessarily of the opposite sex.

Sexual Harassment, cont. More serious levels may involve sexual

coercion or unwanted physical relations. This type behavior quid pro quo is

commonly associated with superior-subordinate relationships in which the victim, for fear of reprisal, will unwillingly participate.

This relationship is best described as a power relationship.

Sexual Harassment, cont. Harassment under this act is broadly defined

to cover most forms of unacceptable behavior.

Any type of sexual behavior or advance that is unwanted or unwelcomed is considered covered under the act.

The person affected by this behavior has an obligation to inform the party that his or her behavior is unwanted or unwelcomed. If they fail to do so it’s difficult to claim harassment.