Equal Opportunity in Employment

Equal Opportunity in Employment

Chapter 21

EQUAL OPPORTUNITY

IN EMPLOYMENT

Why is discrimination wrong?

I. Overview

No single American legal issue is inflamed with more controversy than discrimination in the workplace. The genesis of our nation's heritage is rooted in a diversity of peoples who immigrated to the New World in order to flee the royalist, class, or caste systems that so often predestined their opportunities for social and economic advancement. The U.S. Declaration of Independence, and the government founded on it, was the first major system of self-governance premised on the assumption that all persons are born equal and should be treated equally in the eyes of the law. As we all know, that equality has often been a hope rather than a reality for many.

The same diversity that has been a source of national pride has also been the basis of disparate treatment of persons in the workplace for many years. The term discriminate has within it two distinct and opposite meanings. On the positive side, discrimination is simply a fact of life. We are not all equal in all ways. We have different talents, strengths, levels of training, and abilities. Employers, in turn, should be allowed and expected to seek utilization of these divergent talents and strengths in their own best interests. To discriminate in the positive sense is to reward ability and merit. The positive aspect of discrimination really says that uniqueness should be discerned, differentiated, distinguished, and rewarded in the workplace. In the end, economic marketplace factors are blind to any other factors but job performance. Like it or not, positive discrimination is a simple economic necessity which is no different than the laws of nature and cannot be ignored.

The negative side of discrimination is found in a wrongful process of selection. For a society founded on a premise of equality, we have certainly had more than our share of unequal treatment in the workplace. The negative side of discrimination is inequality of treatment based on wrongful motive, justifications, or rationalizations. Each choice not based on talent, ability, and merit is a step away from the inherent basis of equality before the law. Wrongful discrimination is like cancer. If it is allowed to grow unchecked, it will kill. None of us can afford to look the other way and say: "It's not my problem." Wrongful discrimination against any group is a wrong upon the society at large. Most everyone appreciates that fact intuitively, if not intellectually. Why is discrimination wrong? Yes it is unfair, but in an economic sense it may force us to avoid hiring the best person for the job. This is why businesses must avoid unfair discrimination.

It is difficult to legislate fairness but it has been clear that something must help if diversity is to be fostered. When it is left up to the law, the participants often attempt to find shortcuts. Hiring the best person for the job often gets lost in the shuffle. Yet can we leave such an important issue to individual consciences alone? This is how the concept of affirmative action was born.

Consider the dilemma posed by affirmative action. Past history provides vivid proof that patterns of discrimination have deep roots and will continue unless some sort of corrective social engineering takes hold in the workplace. Yet, is the cure worse than the disease? Can reverse discrimination really be justified? Is it any wonder that every day this quandary seems to get deeper? It is like kicking in quicksand—the more you try to move, the faster you sink.

One element that provides hope for positive change is goodwill. Where people of goodwill cling to the basic rightness of equity before the law, that equity will eventually result in a changed culture. Until then, law and our courts will continue to be the testing grounds for this monumental change in the social order.

II. Hypothetical Multi-issue Essay Question

An item recently appeared on the news wires:

"Major department store says no to Santa!"

A person who had been working for a major New York City department store was seeking to be reinstated into his seasonal job assignment as a Santa for the holidays. He had performed this job satisfactorily for a number of years.

He was denied reinstatement because he tested positive for HIV since the last holiday season. The department store was concerned that the health and safety of children sitting on Santa's lap would be placed in jeopardy. Even if the risk to health was minimal, the department store argued that the fear of parents to bring their children to a person known to have been tested positive for HIV would cost the store much lost business and damage its goodwill.

"Santa" decides to file a complaint with the EEOC. What will result?

III. Outline

Title VII of the Civil Rights Act of 1964 (administered by the EEOC) – as amended by the Equal Employment Opportunity Act of 1972.

Disparate treatment discrimination

Discrimination against a specific individual because that person belongs to a protected class

Disparate impact discrimination

Discrimination that occurs where a neutral-looking employment rule causes discrimination against a protected class

Discriminatory harassment

Discrimination that is unwelcome, severe, pervasive and has a detrimental effect on working conditions.

*Employer could be liable for harassment by co-workers and outsiders if they knew or should have known and took no immediate action.

*Employer is liable for supervisor harassment if adverse consequences or if no adverse consequences and a policy does not exist or training is not provided.

*These are basically the same as the liability imposed under hostile environment sexual harassment. See below.

Defenses and Remedies

Defenses

Merit

Seniority

Bona fide occupational qualification (BFOQ) (Narrowly interpreted)

Remedies

Court may order payment of 2 years back pay, issue an injunction, and award reinstatement, fictional seniority, other equitable remedy, or punitive damages for undue or reckless indifference.

EEOC is first place for filing a complaint

Covered Employers and Employment Decisions

Employers who

Have 15 or more employees

All employment agencies

Labor unions with 15 or more members

State and local governments

Most federal agencies

Decisions regarding

Hiring

Promotion

Demotion

Payment of salaries, wages, and fringe benefits

Dismissal

Job training and apprenticeships

Work rules

Any other term, condition, or privilege of employment

Protected Classes  race, color, national origin, sex, religion:

RACE and COLOR  never a BFOQ; residency requirements, testing and education should be reviewed for possible disparate impact discrimination.

NATIONAL ORIGIN U.S. citizenship might be a valid job requirement depending on the job; legal aliens are protected from discrimination based on national origin in other circumstances; U.S. Patriot Act may have an effect.

RELIGION  Employer has duty to reasonably accommodate; religious organizations can give preference to individuals of a particular religion; includes traditional religions, other religions that recognize a supreme being and religions based on ethical or spiritual tenets.

SEX  applies equally to men and women; include pregnancy; does not include sexual preference; includes sexual harassment:

Quid Pro Quo  requests for sexual favors in return for some job preference.

Hostile Environment  see above note * under discussion of discriminatory harassment in the section on types of discrimination for characteristics and employer’s duties; can include lewd remarks, touching, intimidation, posting pinups and other verbal pr physical conduct of a sexual nature; a reasonable woman standard is applied; e-mail can be a source of problems; defenses of employers can include using reasonable care to prevent harassment and employee unreasonably failing to take advantage of preventive opportunities; same-sex sexual harassment is actionable.

Other Statutes Affecting Equal Opportunity in Employment

Equal Pay Act of 1963

Criteria that justify a differential in wages

Seniority

Merit

Quantity or quality of product

Any factor other than sex

Age Discrimination in Employment Act of 1967

Prohibits age discrimination practices against employees who are 40 and older

Rehabilitation Act of 1973

Prohibits discrimination against handicapped persons by an employer who receives federal contracts or assistance

Civil Rights Act of 1866

An act enacted by the Civil War that states that all persons “have the same right to make and enforce contracts … as is enjoyed by white persons”

Prohibits racial and national origin employment discrimination

Americans with Disabilities Act of 1990

Imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities

Definition of a disability  either a physical or mental impairment substantially limiting one or more major life functions or having record of such impairment or being regarded as having such impairment.

Only reasonable accommodation is required.

Administered by the EEOC and applies to employers with 15 or more employees.

Employer cannot inquire about a disability but may inquire about ability to do a job. Pre-employment medical exams forbidden before an offer.

Affirmative Action

Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision to give equal opportunity to qualified individuals, undo past wrongs to a minority group, and where there was a history of past discrimination.

IV. Objective Questions

Terms:

1.The right of all employees and job applicants (1) to be treated without discrimination and (2) to be able to prosecute employers if they are discriminated against is generally known as ______.

2.The five-member federal agency responsible for enforcing most federal antidiscrimination laws is called the ______.

3. ______discrimination is the type of discrimination that occurs where a neutral-looking employment rule causes discrimination against a protected class.

4. An employer must try to make a ______for an employee’s religion.

5.The practice of refusing to hire or promote someone unless she has sex with the manager or supervisor is illegal and is called ______discrimination.

6.The duty that employers owe employees to accommodate (1) the occurrence of religious practices, observances, or beliefs if it does not cause undue hardship to the employer or (2) a handicapped person's special requirements in the workplace is known as the duty of ______.

7.The selection or promotion qualification that is based on work, educational experience, and professionally developed ability tests is called ______selection or promotion.

8.Discrimination based on sex, religion, and national origin is permitted if there is a legitimate reason for such discrimination and if it can be shown to be based on ______.

9.A hiring policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision is called ______.

10.Discrimination against a group that is usually thought of as a majority by a group that is usually thought of as a minority is generally referred to as ______.

True/False:

1.____ Religions are permitted to hire only members of their religions for jobs within their organizations.

2.____ Discriminatory harassment is treated as actionable discrimination.

3.____ Back pay, liquidated damages, and overtime pay are all remedies available under the Equal

Pay Act.

4.____ Under Title VII, a private complainant must first file a complaint with the EEOC before

bringing suit against the employer.

5.____ When the EEOC decides to bring suit on behalf of a complainant, it issues a right to sue

letter.

6.____ Both monetary damages and extensive equitable remedies are available to prevailing

complainants in Title VII cases.

7.____ Only women are protected from sex discrimination under Title VII.

8.____ Title VII, like many local ordinances, prohibits discrimination based on a person's sexual

preference.

9.____ Because of the Age Discrimination In Employment Act of 1967, most nonfederal employers

cannot establish mandatory retirement ages for their employees.

10.____ CaseyMartin was permitted to use a cart on the PGA tour under the ADA of 1990.

Multiple Choice:

1. Affirmative action:

1. May cause reverse discrimination.
2. Is to help undo past wrong.
3. Can be used where there is a history of past discrimination.
4. All of the above.

2. Duties and/or liability of the employer with respect to sexual harassment include:

1. Liability always for co-worker harassment.
2. Liability for supervisor harassment if no adverse tangible consequences and a policy exists.
3. Liability for supervisor harassment if tangible adverse consequences.
4. None of the above.

3. Which of the following would be considered a disability under the ADA of 1990?

1. Left-handedness.
2. Deafness.
3. Broken arm.

D. None of the above.

4.Infuriated Irene, a well-qualified computer programmer, applied for a position with Computer Corp. (CC). However, CC denied her the position and sought other applicants with Irene's qualifications to fill the position. Irene wants to bring a suit against CC under Title VII. What type of discrimination should Irene base her case on?

A.Disparate impact discrimination.

B.Pattern or practice discrimination.

C.Disparate treatment discrimination.

D.Any of the above.

5.Assume the same facts as in question 4. Also assume Irene prevails in her suit against CC. What remedies may Irene receive?

A.Reasonable attorney fees.

B.An injunction to compel hiring.

C.Both of the above.

D.None of the above. Irene can only receive punitive damages.

6.Discouraged Doug believes he has been fired from his job with Narrow-Minded Manufacturers (NMM) because of his homosexuality. Doug wants to sue NMM. Under what authority should Doug bring his case?

A.Title VII of the Civil Rights Act.

B.The Equal Pay Act.

C.A local ordinance forbidding such discrimination.

D.None of the above.

7.Employee Edgar believes Youthful Ventures, Inc. (YVI) has discriminatorily fired him because of his age. If Edgar wants to bring suit against YVI under the Age Discrimination in Employment Act, which of the following requirements must be met?

A.YVI must have at least 20 nonseasonal employees.

B.Edgar must be at least 40 years old.

C.YVI must be a nonfederal employer.

D.All of the above.

8.Assume the same facts as in question 7. Also, assume Edgar prevails in his suit against YVI. What remedies may Edgar receive?

A.Unpaid back wages.

B.Attorney's fees.

C.Reinstatement.

D.All of the above.

9.Regarding the Rehabilitation Act of 1973, which of the following is incorrect?

A.People with a history of alcoholism have been held to be handicapped under the Act.

B.The Labor Department administers the nonfederal aspects of the Act.

C.Private plaintiffs cannot recover damages.

D.People with diabetes are considered handicapped under the Act.

10.Regarding the Americans with Disabilities Act of 1990, which of the following is correct?

A.Employers must make reasonable accommodations to accommodate people with disabilities.

B.Preemployment medical examinations are forbidden before a job offer.

C.Title I of the ADA is administered by the EEOC.

D.All of the above.

V.Answers to Objective Questions

Terms:

1.Equal opportunity. This simple sounding phrase raises some of the most vexing legal issues of our day.

2.Equal Employment Opportunity Commission. Justice Thomas was once the head of this agency.

3. Disparate Impact. This could include the use of residency requirements.

4. Reasonable Accommodation. The term “reasonable” is key. The burden on the employer should be considered.

5.Quid pro quo. In Hollywood parlance, this is known as the casting couch.

6.Reasonable accommodation. There are limits on how much the employer can be expected to do based on undue hardship.

7.Merit. This is the best qualification of all.

8.Bona fide occupation qualification. The burden of proof is on the employer.

9.Affirmative action. Debate on this issue will not end in the foreseeable future.

10.Reverse discrimination. Two wrongs do not make a right.

True/False:

1.True. This is considered a form of BFOQ.

2.True. This is actionable if unwelcome, severe, pervasive, and detrimental to working conditions.

3.False. While back pay and liquidated damages are available remedies under the EPA, overtime pay is not.

4.True. Under Title VII, a private complainant must first file a complaint with the EEOC. If the EEOC decides not to bring suit on behalf of the complainant, it will issue a right to sue letter.

5.False. A right to sue letter is issued by the EEOC when it decides not to bring suit on behalf of the complainant.

6.True. The remedies granted can be one or both.

7.False. Both men and women are protected from sex discrimination under Title VII. However, women bring the vast majority of the cases.

8.False. Though many local ordinances do prohibit discrimination based on sexual preference, Title VII does not.

9.True. There are still some exceptions such as airline pilots.

10.True. This case was just settled by the Supreme Court and shows how walking is not a substantial element of playing professional golf.

Multiple Choice:

1. D. These are all part of the explanation of affirmative action.

2. C. “A” only applies if the employer knew or should have known while “B” is the opposite of what is correct. “C” is the right answer.

3. B. Deafness is definitely a life function limiting physical impairment. “A” is only a characteristic and “B” is temporary.

4.C. Disparate treatment discrimination occurs when an employer treats a person less favorably than another because of that person's race, color, national origin, sex, or religion. A and B are incorrect because they are types of discrimination that affect a whole class, not just one specific person.

5.C. Under Title VII, a successful plaintiff can recover up to two years' back pay, reasonable attorney's fees and, where appropriate, compensatory damages. In addition, several equitable remedies are available including an injunction to compel hiring. D is incorrect because punitive damages are seldom awarded and are certainly not the only remedy available.

6.C. At present, none of the acts discussed in this chapter protect employees from discrimination because of sexual preference. An employee's only option is to sue under a local ordinance, if there is one. A and B are incorrect because these acts do not protect employees from discrimination based on sexual preference.

7.D.These are all threshold tests for bringing a lawsuit under the ADEA.

8.D.All three remedies are provided under the ADEA.