Preface and Acknowledgements 11 results (showing 5 best matches)
- This Nutshell is designed assist four groups: (1) students enrolled in employment discrimination or employment law courses, either in law schools or in similar courses in business or management schools, (2) attorneys not regularly working in this area who need a refresher or “big picture” overview, (3) non-attorney professionals, such as human resource managers, EEO officers, and union officials, who seek relatively plain English overviews of the area, and finally (4) lay persons, such as employees, who seek a relatively easy-to-read condensation and explanation of the federal law in this area.
- Federal Law:
- After the introductory overview and coverage in chapters 1–4, Chapter 5 defines the basic elements of liability: “employment,” “terms and conditions of employment,” “discrimination,” and “because of.” Part II defines the classes protected, and not protected, by the core employment discrimination statutes. Part III begins the focus on these basic principles as applied to employee Part IV focuses on discrimination in their compensation, insurance plans, pensions and retirement, leaves and job reassignment. Finally, chapter 25 examines the miscellaneous distinctions that constitute “terms or conditions of employment,” in particular the creation of a “hostile work environment”––aka “harassment”––and the important protection against retaliation. Part V concludes the work with an overview of remedies and enforcement.
- In the generation since publication of the first edition of this work, employment discrimination law has evolved to where few observations made in 1976 remain enact. And just when one thinks the pace of change begins to slow, there are seismic shifts. Such change has happened in the relatively short time since the 6th Edition.
- My full, often unnamed, partner in this and other works is my spouse Jeanne M.L. Player, now retired from years as an employment law litigator, and more recently as an EEOC administrative judge. Here, as elsewhere, Jeanne has contributed ideas and text, provided corrective direction, served as a sounding board, and has been my editor for words, style, and content. I must acknowledge, too, the indirect contribution of Professor Martin H. Malin, of Chicago Kent College of Law, my co-author of the West Casebook,
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Chapter 1. “Employment Discrimination” Definition 9 results (showing 5 best matches)
- State employment discrimination statutes tend to mirror federal statutory language, and where the language is similar, state courts usually are guided by federal precedents. However, many states add classes of protection not found in the federal statutes, such as prohibiting discrimination because of marital status and sexual orientation. State statutes may prohibit forms of age or disability discrimination not proscribed by federal law, and often provide more expansive coverage, reaching smaller employers, than does federal law. States may have more efficient administrative mechanisms and allow different remedies, such as no-cap damages, for successful plaintiffs.
- “Employment discrimination” occupies the wide, ill defined region between “civil rights” and “labor law.” The subject has historical and ideological civil rights roots in that it promises individuals a right to be free from invidious, class-based discrimination in the work place. Nonetheless, discrimination in the work place deals with the employment relationship, or “labor law,” which has been regulated for generations by evolving common law principles, and since the early 20th Century by federal labor relations statutes.
- The focus of this work is upon
- It is generally accepted that the three statutes administered by the federal Equal Employment Opportunity Commission (EEOC) form the core of employment discrimination law: (1)
- There are three general categories of “employment law”—labor relations, employee rights, and work place discrimination—which overlap and contribute to each other. While the complete practitioner of employment law needs to be knowledgeable in all three areas, the practicalities of teaching and learning require that each must be considered and studied separately. This work focuses on invidious work place discrimination.
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Chapter 3. Overview and History 24 results (showing 5 best matches)
- The roots of the ADA lie in the Rehabilitation Act of 1973 which was a sweeping statute designed to provide “handicapped” persons with rehabilitation services, full access to federally sponsored programs, such as education and research, and architectural access to public buildings. It also proscribed discrimination in employment (Sections 501, 503 and 504), but with operative language much different from Title VII and the ADEA. Section 503 of the Act (29 U.S.C. 793) requires that most contracts with the federal government contain a provision that “in employing persons to carry out such contract * * * [the contracting entity] shall take affirmative action to employ and advance in employment qualified handicapped individuals.” Section 504 (29 U.S.C. 794) provides that “no otherwise qualified handicapped individual * * * shall solely by reason of his handicap * * * be subjected to discrimination under any program receiving federal financial assistance or under any program or activity...
- Enforcement of the substantive rights created by the core statutes usually depends on individual victims initiating the process by filing charges of discrimination and “exhausting” administrative processes of the Equal Employment Opportunity Commission (EEOC) and any state enforcement agency. Upon exhaustion of the state and federal administrative process, enforcement requires a law suit filed either by the EEOC or the charging party.
- Employment discrimination law is a patchwork of prohibitions and protections found in three core and at least six supplemental and occasionally overlapping statutory schemes. The statutes do not create a code requiring general fairness. They prohibit discrimination because of particular classes identified for protection (
- The EEOC is the federal agency created by Title VII of the Civil Rights Act of 1964 to interpret and enforce that statute. That authority has been expanded to include the Age Discrimination in Employment Act (ADEA), the Americans With Disabilities Act (ADA), and the Equal Pay Act (EPA). Regional offices of the EEOC are located in major cities. The EEOC has six functions:
- B. THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 (ADEA)
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Chapter 5. Principles of Actionable “Discrimination” 37 results (showing 5 best matches)
- 42 U.S.C. 1981 broadly prohibits race discrimination in the making and enforcing of be an “employer” and the discrimination need involve an “employment” relationship. Discrimination in both employment contracts and the treatment of independent contractors on the basis of is proscribed. Similarly, claims against governments for violating rights protected by the Constitution are not dependent on an employee/employer relationship and may be enforced through 42 U.S.C. 1983.
- It is an appealing oversimplification to assume that treating all employees alike is not “discrimination.” Ostensibly neutral rules or policies applied equally to all employees are “discriminatory” against the individuals actually affected by the policy. Standing alone, that “discrimination” does not violate the statutes. The “discrimination” must be “because of” class membership. Thus, a job related employment test given to all applicants resulting in the rejection of some, is discrimination against those who fail the test. The discrimination will violate Title VII if plaintiff can demonstrated that the test was adopted for the purpose of disadvantaging minority applicants. , 422 U.S. 405 (1975). Setting aside the results of a test is discrimination against those who passed it. If “discrimination” was “because of race,” it violates Title VII. , 557 U.S. 557 (2009). Moreover, if the test has an adverse impact on a class protected by the statutes and is not justified as being “job...
- In its capacity as a of workers, the statutes specify three kinds of union discrimination: (1) excluding or expelling from union membership or otherwise discriminating in the of the organization such as eligibility for union office, voting rights, etc.; (2) for employment or segregating or classifying individuals in a way that tends to deprive individuals of employment opportunities; (3) causing or attempting to cause “employers” to discriminate in a way that violates the statues. 42 U.S.C. 2000e–2(c).
- Similar to labor organizations, employment agencies with the requisite number of employees will be subject to the obligations of an “employer” in its relationship with its “employees.” The statutes proscribe agency actions in their: (1) failure or refusal to refer for employment, otherwise discriminate, or classify individuals in a manner that would interfere with employment; (2) honoring discriminatory requests by an employer; and (3) segregation of files in a way that permits others to discriminate. 42 U.S.C. 2000e–2(b). However, so long as the agency refers individuals on a non-discriminatory basis and takes no action to aid discrimination by an employer, the agency has no affirmative duty to police the hiring practices of employers to which it refers individuals.
- “Discrimination” requires action that denies “equal employment .” “Discrimination” does not consist of a passive failure to insure equality of to remedy past societal patterns of discrimination.
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Title Page 4 results
Chapter 14. “Because of:” Motive–Based Disparate Treatment Liability 19 results (showing 5 best matches)
- Illegally motivated discrimination consists of two factual elements: (1) an actor’s state of mind, and (2) whether that state of mind , ___ U.S. ___, 131 S.Ct. 1186 (2011), involved the Uniformed Services Employment and Reemployment Act (38 U.S.C. 4301), which uses operative language similar to the core statutes. Plaintiff claimed that his discharge was motivated by hostility to his ongoing military service obligations. Plaintiff’s immediate supervisor had expressed such hostility, but did not disclose this hostility in recommending that plaintiff be discharged. The supervisor’s recommendation allegedly gave false, but facially legitimate, reasons for recommending discharge, hoping that his negative recommendation would be accepted by the decision-maker. The decision-maker considered the recommendation, but also reviewed plaintiff’s personnel file and made some independent inquiries. Ultimately the decision-maker accepted the supervisor’s recommendation to discharge the ...of...
- Proof of [illegal motive] is always difficult. Defendants of even minimal sophistication will neither admit animus nor leave a paper trail demonstrating it; and because most employment decisions involve an element of discretion, alternative hypotheses (including that of simple mistake) will always be possible and often plausible. Only the very best workers are completely satisfactory, and they are not likely to be discriminated against—the cost of discrimination is too great. The law tries to protect average and even below average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difficulty in achieving this goal because it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote or denying a pay raise to a worker who is not superlative.
- The core statutes proscribe discrimination “because of” a protected class. This Chapter addresses application of that term to discrimination in hiring, promotion, discipline, and discharge where there is no facially discriminatory policy. In such cases, plaintiff’s ultimate burden is to prove the fact of defendant’s motivation in making the decision by a “preponderance of the evidence.”
- Discrimination “because of” an individual’s protected trait does not require an invidious purpose to harm or disadvantage. , 482 U.S. 656 (1987), accepted that union “leaders were favorably disposed toward minorities” and that the union’s decision not to process racial discrimination claims of black employees was a good faith attempt to better serve all workers—including racial minorities—by not antagonizing the employer with charges of racism. Nonetheless, because the union made decisions based on the race of the employee, this was discrimination “because of race.”
- While [the employer] may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be applied alike to members of all races. * * * [W]hat ever factors the mechanisms of compromise may legitimately take into account in mitigating discipline of some employees, under Title VII, race may not be among them.
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- Regardless of the nature of the discrimination violation of the statutes require application of the basic principles discussed in Chapter 5 (“discrimination” in “terms or conditions of employment” “because of”), and membership in one of the protected classes which were defined in PART 2. PART 3 will focus on applying these principles to the practical problems of employees. Hiring, promotion, discipline, and discharge all present similar models of proof. Workplace discrimination employees, including compensation, assignments, leaves, and miscellaneous intangible “terms and conditions of employment” involve distinct issues of proof that will be the focus of PART 4
- Hiring, promotion and dismissal discrimination falls within one of three categories: (1) Facial classifications and their justifications (Chapters 12–14), (2) Improperly motivated discrimination (“disparate treatment”) (Chapter 15–17), and (3) Discrimination produced by neutral policies that have an adverse impact on a protected class (“disparate impact”) (Chapter 14).
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Chapter 8. Sex 41 results (showing 5 best matches)
- The laws of at least 29 states and hundreds of municipalities specifically proscribe discrimination based on sexual orientation. Presidential Order 13160 prohibits such discrimination against federal employees. However, the courts agree that discrimination based on sexual orientation, practices, or preferences is not facial sex discrimination under Title VII. , 502 F.3d 1215 (10th Cir. 2007). Thus, harassing a worker because he is perceived to be homosexual does not, on its face, constitute sex discrimination. , 679 F.3d 464 (6th Cir. 2012). These courts have rejected as “bootstrapping” the argument, accepted in race discrimination cases, that discriminating against an individual because of the sex of a spouse, companion, or friends is “sex” discrimination.
- Nevertheless, Title VII generally will not reach claims of non-harassed “bystander” employees based simply on favoritism shown to another employee because the favored employee has a sexual relationship with the employer. , 339 F.3d 376 (5th Cir. 2003). The discrimination is seen as discrimination based on a “special place” the favored person has in the heart of the employer that equally disadvantages all other employees regardless of their sex. , 147 F.3d 1298 (11th Cir. 1998). Not only is favoritism for a paramour not “sex” discrimination, complaints by female co-workers about such favoritism has been held not to be protected “opposition” to perceived illegal discrimination. , 716 F.3d 10 (2d Cir. 2013). Some authority suggests, however, that a male employee should have a claim of sex discrimination when female employees are favored because of the female employees’ sexual relationship with the employer in that such decision-making excluded male employees of “employment...
- An argument once made, but rejected, was that sexual advances toward an individual because of a desire to have a sexual relationship was not because of sex, but because of a desire to form a physical relationship. As the sex (male or female) of the employee played a critical role in motivating the employer’s denial of a tangible job benefit, such as a promotion, a salary increase, or continued employment, the individual’s refusal to consent to a sexual relationship is actionable “sex discrimination.”
- The PDA also prohibits discrimination based on “related medical conditions” directly associated with pregnancy, such as cramping, dizziness, “morning sickness” nausea, the birth itself, and the necessary post-delivery recovery. A pregnant woman thus may not be denied employment based on any such pregnancy-related conditions. Menstruation, “a normal aspect of the female physiology,” is sufficiently related to pregnancy that discrimination based on a woman’s post-pregnancy menstrual cycle may constitute sex discrimination. Similarly, in reversing a trial court decision to the contrary, , 717 F.3d 425 (5th Cir. 2013), held that lactation, the natural production of milk, was a “related medical condition” of being pregnant and bearing a child. Consequently, terminating the employee based on her to use a breast pump while at work was prima facie discrimination based on pregnancy and childbirth. (The court reserved the question of whether the employer would be required to make an... ...of...
- The EEOC’s position is that exclusion of contraception coverage from an employer’s prescription drug benefit program is sex discrimination because it interferes with a woman’s decisions relating to pregnancy, and because such an exclusion imposes on women additional, out-of-pocket health financial costs and unique health care risks, not faced by men. State or federal policies mandating inclusion of contraceptives in employee health care plans does not violate the constitutional rights of religious organizations engaged in secular activities.
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Chapter 7. National Origin 9 results (showing 5 best matches)
- IRCA mandates employer discrimination against “undocumented” aliens and requires employers to verify the employment eligibility under U.S. law of all new hires, but it also prohibits discrimination against “protected individuals” because of national origin or “citizenship status.” “Protected individuals” include: (1) citizens of the U.S., (2) lawfully admitted “aliens” who are (a) permanent residents, (b) temporary residents admitted under specified amnesty provisions, or (c) residents granted asylum.
- , held that “national origin” did not encompass discrimination based on of U.S. citizenship (or “alienage”). Lower courts have found that discrimination because of U.S. citizenship, that is discrimination against U.S. citizens in favor of citizens of another nation, is proscribed “national origin” discrimination.
- The primary language one speaks has been seen as an immutable characteristic of the country or region from which the speaker or his/her forebears came. Thus, using language as a basis for discrimination may be considered “national origin” discrimination. Just as hair texture is an immutable characteristic of race, the Spanish language is seen as an immutable characteristic of Latino “national origins.” , 500 U.S. 352 (1991) (non-Title VII), 29 C.F.R. 1606.7. In this view, discrimination based on one’s “foreign accent and restrictions on language use, such as requirements that employees speak only English, are facial national origin discrimination justified only if defendant establishes that the policy is a bona fide occupational qualification. , Chapter 12. Other courts are reluctant to reach a conclusion, and view enforcement of restrictive language rules merely as evidence of invidious “national origin” motivation. ...9th Cir. 1993). Such rules also may be shown to create a...
- Discrimination against Native Americans (“Indians”) will be considered race discrimination. However, if the discrimination is based solely upon tribal membership this may constitute national origin discrimination in that native American tribes are recognized as semi-sovereign “nations.” , 154 F.3d 1117 (9th Cir. 1998) (non-tribal employer discriminating against Native Americans because they were not members of a particular tribe). ( from the definition of
- “National origin” discrimination is proscribed, but not defined, by Title VII. , 840 F.2d 667 (9th Cir. 1988). However, discrimination in favor of residents of a particular state, region, or city in the United States is not based on “national origin.”
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Index 274 results (showing 5 best matches)
Chapter 27. Retaliation (“Reprisal”) for “Participation” or “Opposition” 41 results (showing 5 best matches)
- The core statutes make unlawful, discrimination because the individual “ any practice made unlawful.” 42 U.S.C. 2000e–3(a). The language has not been interpreted to require that the practice opposed be found to violate the law. The statutes protect opposition to “practices” that could as unlawful. “When an employee communicates to her employer a belief that the employer has engaged in * * * a form of employment discrimination, that communication virtually always constitutes opposition to the activity. It is true that one can imagine exceptions, * * * but these will be eccentric cases.”
- The protection against retaliation requires only “discrimination” because of protected activity. It is not necessary for the “discrimination” to adversely affect a “term or condition of employment.” The standard is whether the employer’s retaliatory action “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” , ___ U.S. ___ 131 S.Ct. 863 (2011). Personal slights or minor adjustments of job duties would not be “discrimination” as they would not dissuade a worker from engaging in protected activity. However, assignment of an employee to a different, less prestigious, and somewhat more arduous job could be a deterrent, and thus would be actionable “discrimination.”
- In some instances discrimination against an individual for the protected activity of others is proscribed, even though the plaintiff himself did not file or support a charge of discrimination. Shortly after a fellow employee, who was plaintiff’s fiancée, filed an EEOC charge, plaintiff was discharged. Although the adverse action was not taken against the fiancée—the person who filed the charge—plaintiff was “aggrieved by the alleged unlawful employment practice” under 42 U.S.C. 2000e–5(b)(f)(1), and thus had standing to sue. Plaintiff stated a claim because his discharge could reasonably dissuade his co-workers, including his fiancée, from filing charges or supporting protected activity. The Court sketched the parameters of the protection: “[F]iring a close family member will almost always meet this standard [of dissuading a reasonable employee from making or supporting a charge], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we...
- Lawful opposition also must be reasonable under the circumstances. An employer may dismiss an employee if it has a good faith belief that the employee consciously misstated a material fact. In sum, lies about an employer are not protected opposition. , 221 F.3d 1171 (11th Cir. 2000). Maligning the quality of the employer’s —to be contrasted with an attack on its employment practices—is fundamental employee disloyalty that is unprotected. , 545 F.2d 222 (1st Cir. 1976). Protected opposition does not extend to “dubious self-help tactics or work-place espionage in order to gather evidence of discrimination.”
- Opposition to the employer’s actions outside of the
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Chapter 29. Enforcement Procedures in the Public Forum: Non–Federal Defendants 77 results (showing 5 best matches)
- Under the ADEA, when the state has an age discrimination enforcement agency the Act simply requires the filing of a charge with the EEOC within 300 days of the discriminatory act and the filing of a state agency charge either before, after, or simultaneously with the EEOC charge. (Filing with the EEOC must come within 180 days of the discrimination in states with no age discrimination enforcement agency.) The ADEA imposes a 60 day waiting period after a timely EEOC charge and 60 days after the filing of a state charge. After those 60 day waiting periods, a suit may be filed. The mandatory 60–day waiting period to allow state and federal agency action can run concurrently.
- The parameters of the complaint, public or private, and thus the litigation, are set by the original charge. , 29.02. Only parties named in the charge may be named defendants, and only the precise form of discrimination alleged in the charge may be litigated, unless the claims raised in the litigation are so closely related to those in the charge that the new or expanded claims would reasonably flow from an EEOC investigation. For example, a charge asserting age discrimination would not allow a complaint that the plaintiff was also a victim of sex discrimination. , 336 F.3d 520 (7th Cir. 2003). The discrimination involved two distinct statutes, and an EEOC investigation would be unlikely to explore possible sex discrimination. A charge that asserts only “age” discrimination may not allow pleading that a neutral factor had an unlawful adverse on plaintiff’s age group. The nature of the discrimination—impact—would not necessarily flow from an investigation into a general allegation
- administrative prerequisites to filing a law suit. The EPA has a simple two year statute of limitation for recovering back wages (3 years if plaintiff can prove the violation to be “willful”). Race discrimination claims under 42 U.S.C. 1981 involving job benefits such as harassment have a four year statute of limitation. 28 U.S.C. 1658(a). under the Reconstruction Era Civil Rights Acts are subject to no explicit federal statute of limitations, but federal courts impose state law limitations applicable to civil rights actions.
- The time to file a charge for dismissal and disciplinary action is measured from the date the employee is informed of the employer’s decision and is aware of facts that would put a reasonable person on notice of possible illegality. The critical date is necessarily the employee’s last day of work or the date that the discipline was actually imposed. The critical date is the one on which the employee learns of the employer’s , 449 U.S. 250 (1980), illustrates. An untenured college faculty member was notified that his application for tenure would be denied, and according to college policies, he would be terminated at the end of the next following academic year. Upon receiving the notice of denial, the faculty member filed an internal grievance which, if successful, would have resulted in the reversal of the decision and the grant of the requested tenure. The grievance was unsuccessful, and the grievant was so notified. Plaintiff completed the school year and soon thereafter filed a...of
- Enforcement of the core statutes is begun by the victim filing an administrative charge. This is a mandatory obligation, “impervious to judicial discretion.” , 536 U.S. 101 (2002). The statutes require the charge to be in writing, under oath, and contain such information as the EEOC requires. 42 U.S.C. 2000e–5(b). By regulation the EEOC requires that a charge: (1) name the person charging discrimination and the entity allegedly discriminating; (2) outline the nature of the action taken against the charging party ( , hiring, firing, compensation, harassment); (3) state the basis of the alleged discrimination ( religion, age, disability), and (4) set the time and place of the alleged discrimination.
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- The prohibitions found in the core statutes include discrimination in “compensation.” “Compensation” is not limited to salary, but includes bonuses, commissions, stock options, insurance coverage, expense allowances, vacation and sick leave, and similar fringe benefits, as well as current allocation of benefits to be received upon retirement. , 463 U.S. 1073 (1983). The statues sweep even more broadly to encompass other “terms and conditions of employment” and thus “strike[ ] at the entire spectrum of disparate treatment.” , 477 U.S. 49 (1986). Proving illegal work place discrimination presents issues different from those when the alleged discrimination is in the selection of the work force. The Equal Pay Act presents a distinct and alternative vehicle for establishing illegal sex discrimination in pay.
- ISCRIMINATION IN THE
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Chapter 25. IntangIble “Terms and Conditions” 69 results (showing 5 best matches)
- The core statues broadly prohibits discrimination that affects adversely “the individual’s status as an employee” as to his/her “terms, conditions, and privileges of employment” (42 U.S.C. 2000e–(a)(1) and (2)). The prohibition is not limited to tangible job benefits. Discrimination need not cause physical or psychological injury nor affect adversely the employee’s job performance. , 510 U.S. 17 (1993). However, regardless of the bigoted motivation for the treatment, the statutes “do not reach genuine but innocuous differences.” , 5.02. Distinguishing between unprotected “innocuous differences” and discrimination rising to the level of adversely affecting “terms and conditions of employment” is a primary issue.
- In addition to the disparate treatment rising to the level of adversely affecting terms and conditions of the individual’s employment, the adverse treatment of the plaintiff must be shown to be “because of” her protected class. A man badgering a woman because of personal animosity is not proscribed sex discrimination..
- “If the supervisor’s harassment culminates in a tangible employment action the employer is strictly liable.” Even if the employer was unaware of the discriminatory motive behind the supervisor’s actions or had in place policies expressly forbidding such discrimination and had made reasonable efforts to monitor its policies, the supervisor’s discrimination in allocating tangible job benefits is attributed to the employer. It is no defense that the supervisor had engaged in a “lark or frolic” of his own for which the employer received no benefit.
- An otherwise legitimate rule imposed on one class but not on others that significantly limits access of that class to employment opportunities is proscribed. For example, a no-marriage policy applied only to women is sex discrimination.
- A grooming code that requires men to have short hair and women to have long hair and requires women, but not men, to wear facial make up and high heeled shoes does not violate Title VII because the rule is not so burdensome that it undermines either a basic right (such as marriage) or employment opportunities of classes when with relative ease the employee can comply with the employer’s rule. However, when a grooming code drawn along sex lines is not an “innocuous difference,” but places a significant burden on one sex, it constitutes proscribed discrimination. , 444 F.3d 1104 (9th Cir. 2006). Thus, a draconian grooming code, requiring employees to be svelte, not wear eyeglasses, and dress according to a strict standard, if imposed because of the class of employees, is sex discrimination even if all members of the workforce are women.
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Chapter 30. Federal Employee Enforcement 15 results (showing 5 best matches)
- The federal employee or applicant must first contact an Equal Employment Opportunity (EEO) Counselor
- Complainants who receive unfavorable final decisions from the employing agency may file a lawsuit in federal district court without seeking a review with the EEOC. The complaint against the agency head must be filed within 90 days from the receipt of the employing agency’s final decision.
- Disability discrimination claims are brought under the Rehabilitation Act of 1973, not the ADA, but use the procedures prescribed by Title VII. The ADEA makes administrative exhaustion optional. While the EPA sets forth no administrative prerequisites to exhaust, an EPA complainant may invoke Title VII procedures.
- to do is notify the EEOC of an intent to sue the employing agency within 180 days of the discriminatory act, and wait 30 days. After 30 days have passed and the allegation has not been resolved, the complainant may file the suit. There is no expressed time limit within which suit must be filed.
- Enforcement procedures available to federal executive department employees are dramatically different from those used in claims against non-federal employers. 29 C.F.R. Part 1614, and www.eeoc.gov. The essential difference is that the takes and investigates the initial complaint and ultimately may render a final decision that is subject to judicial challenge. The involvement of the EEOC is through its administrative judges who serve as neutral fact finders where the complainant requests a hearing prior to the employing agency’s final decision on the complaint. Time limitations, too, are different from those applicable to non-federal complainants.
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Chapter 12. Facial Exclusions and the Bona Fide Occupational Qualification Defense 20 results (showing 5 best matches)
- As the BFOQ does not apply to race discrimination, it would seem to violate Title VII to honor demands of customers or patients not to be served by members of a particular race, if such discrimination reaches the level of affecting adversely a “term or condition of employment.” , 454 F.2d 234 (5th Cir. 1971) (customer segregation). Even demands of nursing home patients to be tended by persons of their race did not justify segregation of black workers. , 534 U.S. 499 (2005) (segregating prisoners by race in a penitentiary violates 14th Amendment).
- A classification that on its face excludes from employment members of a protected class truncates any need to prove motivation or impact. The classification establishes that discrimination brought about by the policy’s application is “because of” plaintiff’s class membership. Examples: an airline refuses to employ flight crew members over age 60. , 472 U.S. 400 (1985). An employer denies women, but not men, jobs that expose them to toxic chemicals. , 499 U.S. 187 (1991). An employer refuses to hire a non-Muslim to work in an Islamic nation.
- The mere inability of the excluded class to perform peripheral, secondary job duties is insufficient to establish the “reasonable necessity” of the exclusion. For example, even if female airline flight attendants offer a more “soothing cabin atmosphere” than would male attendants, the element of “soothing atmosphere” is tangential to the essential job duties of safely and efficiently transporting passengers, and thus the female sex cannot be a BFOQ for the job of a flight attendant. , 442 F.2d 385 (5th Cir. 1971). Assuming that language fluency is a form of national origin discrimination, the ability to communicate with supervisors, co-workers, or customers may make fluency essential, and thus a BFOQ. , 888 F.2d 591 (9th Cir. 1989). Speaking English without a “foreign” accent is national origin discrimination and rarely can be considered “essential.” , 487 F.3d 1001 (6th Cir. 2007). However, for jobs such as language teachers and radio announcers, “accent-free” speech may be a BFOQ.
- Nonetheless, in extreme situations the customer “preference” may be so strong, or be of such a nature, that class members are prohibited from performing, as where persons of a different faith would be prohibited by law from entering a place where the employee must enter in order to perform her job. , 577 F.Supp. 1196 (N.D.Tex. 1983). Established privacy rights of “customers” may require limiting access of one sex to jobs that would compromise those rights, such as providing intimate care or full body searches to members of the opposite sex or having a necessary presence in baths or locker rooms.
- If the employer cannot establish that “all or substantially all” members of the excluded class could not safely perform essential job duties, the employer may exclude members of the protected class when it introduces substantial evidence that: (1) “Some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class” and (2) “It is impossible or highly impractical to deal with members of that class on an individualized basis” in a way that would reduce the safety risk to acceptable levels through individual evaluations of fitness. In , 472 U.S. 400 (1985), the employer disqualified certain non-pilot airline flight crew members who reached the age of 60. The employer justified the rule as being a reasonable safety precaution. The Court found that notwithstanding the “reasonableness” of the exclusion, the employer ...age 60 was a BFOQ. First, it...
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- Nutshell Series, In a Nutshell
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Chapter 10. Age: The Age Discrimination in Employment Act (ADEA) 12 results (showing 5 best matches)
- Using operative language similar to Title VII, discrimination because of “age” is proscribed by the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. The statute qualifies the prohibition by providing that only individuals the age of 40, or favor an applicant who is age 20 over one who is 35. No longer does the ADEA place upper age limits on protection for those over age 40. The Act further specifies that seniority systems or employee benefit plans may not require or permit involuntary retirement because of age or justify the failure to hire an individual over age 40 because of age. 29 U.S.C. 623(f)(2)(A) and (B).
- In , 540 U.S. 581 (2004), the employer facing financial problems removed health benefits for younger employees when they retired, while retaining existing health care benefits upon retirement for workers over age 50. Lower courts concluded that this discrimination against workers between ages 40 and 50 in favor of workers over 50 was proscribed age discrimination. The Court disagreed reasoning that the word “age” was ambiguous. It could mean, as the lower courts held, an individual’s .” The Court resorted to legislative history to resolve the perceived ambiguity. While legislative comments suggested that younger workers would be protected against age discrimination under the same standards as older workers, the Court concluded that the problem identified and addressed by the ADEA was discrimination against older workers, and thus the statute should not be construed to prohibit discrimination that older workers. Only discrimination
- Replacing a higher paid worker, who happened to be older, with a younger worker who was paid less was not age discrimination. “Wage rates,” like years in service, are “analytically” distinct from an employee’s age. , 13 F.3d 1120 (7th Cir. 1994). Similarly, it is not age discrimination to offer higher salaries to entry level workers (who tend to be younger), based on the economic demands of the marketplace, than the salaries currently paid to incumbent workers (who tend to be older).
- Smith v. City of Jackson
- , firefighters, police, and corrections officers) provided that such programs include job performance tests through which older workers can qualify for employment if they demonstrate their physical fitness for duty. However, if the program allows exceptions, which often are granted, a refusal to rehire a 42 year old former police officer because he was above the maximum hiring age, could not be justified as part of a bona fide plan.
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Chapter 19. Seniority: Impact and Motive 17 results (showing 5 best matches)
- , presumably illegal, sex discrimination against an employee who was rehired after the defendant had revoked its discriminatory policy. The collective bargaining agreement provided that an employee’s seniority would be lost by any significant break of service, and that the seniority of rehired employees would be measured only from the date of their re-employment. Economic conditions resulted in lay-offs, and plaintiff was laid off based on her lack of seniority as measured by the system. Plaintiff argued that the provision in the seniority system that resulted in her loss of seniority for a break in service could not be bona fide, because it perpetuated the effects of the employer’s discrimination. The Court, however, saw no meaningful distinction from
- , upheld a seniority system even though it perpetuated racial discrimination in the employer’s job assignments. , involved the power of trial courts to order employers to rehire victims of discrimination and to grant full seniority credits which they would have earned had it not been for the illegal discrimination. The employer argued that the earned seniority of incumbent employees was preserved by the 703(h) seniority proviso, and that a court order of artificial, remedial seniority undermining such seniority expectations was prohibited. The Court disagreed, holding that the remedial obligations imposed on the courts by 42 U.S.C. 2000e–5(g), required courts to “make whole” victims of illegal discrimination, which, in all but extraordinary cases, included ordering seniority credits running from the date of the illegal refusal to hire or discharge.
- The Court applied this principle to a system that classified employees as “permanent” only after they had worked a minimum of 45 weeks in any year, and “temporary” if they worked fewer than 45 weeks per year. “Temporary” employees were laid off before “permanent” employees, regardless of their respective total lengths of employment. Most of the “permanent” employees were white males. The industry had suffered an economic decline resulting in recently hired women and minorities remaining “temporary” even though many “temporary” employees had longer overall periods of employment than some “permanent” employees. Layoffs were primarily among “temporary” employees, producing an adverse impact on women and minorities. The Court held that the “permanent”/“temporary” distinction was ancillary to the time-based system and thus protected against impact-based liability.
- “Seniority” is defined as a “scheme that, alone or in tandem with non-’seniority’ criteria allots ever improving employment rights or benefits as the [employees’] relative lengths of pertinent employment increases. * * * The principal feature of any and every ‘seniority system’ is that preferential treatment is dispensed on the basis of some measure of time.”
- To be preserved against impact challenges, the seniority being adopted or applied must be part of a “system.” A “system” need not be in a binding contractual commitment, but it must be regularized and predictable to the extent that it creates legitimate expectations of ever improving employment opportunities measured in defined and increasing lengths of time. Seniority is not part of a “system” if it is little more than decisions that take into account in some imprecise way length of service, relies on weak, non-binding guidelines frequently ignored, or contains numerous exceptions regularly invoked.
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Chapter 11. Discrimination Based on “Impairments:” The Americans With Disabilities Act 37 results (showing 5 best matches)
- Discrimination against persons with disabilities is proscribed by the Americans With Disabilities Act. 42 U.S.C. 12101 et. seq. (ADA). Employment rights of individuals with disabilities is but one part of the ADA, with other parts establishing a broad range of rights including public facilities and transportation access, education, rehabilitation services, etc. The ADA, as it relates to employment, has two thrusts. First, similar to Title VII and the ADEA, the ADA simply prohibits discrimination against persons with mental and physical “ .” Second, and most significantly, it imposes an obligation on employers to make “reasonable accommodations” for “individuals with 42 U.S.C. 12102(A), which will be discussed suffer from an impairment have no claim under the ADA if an employer favors, or makes accommodations for, persons with perceived impairments regardless of whether the adjustment is required by the statute.
- An employer that terminates an employee because of a minor condition, such as a superficial cut, which in fact is “transitory and minor,” based on a mistaken belief that the employee’s minor injury may be a symptom of a “serious” or long term condition such as leukemia or HIV infection, has illegally discriminated against the employee because the employee was “regarded as” suffering from a defined impairment. An employee with minor angina pain, or a temporary “shortness of breath” but is believed by the employer to be suffering from heart disease is “regarded as” having an impairment. Similarly, an employee with an unusual personality but who is perceived, mistakenly, by the employer to have a bi-polar disorder, and discharged for this reason, is a victim of disability discrimination.
- The Act excludes from protection even addicts “currently engaging in the illegal use of drugs when the covered entity acts on the basis of such use.” 42 U.S.C. 12114(a). Moreover, the ADA specifically permits a covered entity to: (1) prohibit the use of illegal drugs or any use of alcohol at the workplace, (2) require employees not be under the influence of alcohol or illegal drugs while at the workplace (even if consumed while not at work and are the result of addiction), and (3) hold the person who is an alcoholic or an addict “to the same qualification standards for employment or job performance and behavior that such entity holds for other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee * * *.” 42 U.S.C. 12114(c).
- In , 540 U.S. 44 (2003), plaintiff had been legally dismissed for his failure to pass an employer-administered drug test. Plaintiff, admittedly an addict, successfully completed a drug rehabilitation program, remained drug free for an extended period of time, and thereafter applied for reinstatement. Defendant denied plaintiff’s application, allegedly based on a long-standing policy not to rehire any former employee who had been dismissed “for cause.” The lower court concluded that such a policy was directly, or indirectly discrimination because of plaintiff’s impairment as an addict. The Court reversed, holding that reliance on defendant’s “no-rehire” policy, even when applied to persons with disabilities, was a legitimate reason, absent evidence that the policy itself was instituted for the purpose of excluded individuals with disabilities or that it was used in this case as a pretext to exclude the plaintiff because of his particular impairment.
- The line between an unprotected trait and a protected impairment can be unclear. For example, in one case an “overweight” plaintiff five feet, four inches tall and weighing over three hundred pounds was held not to suffer from an “impairment.” , 856 P.2d 1143 (Cal. 1993). In another, the plaintiff with a similar height and weight was considered to meet the medical definition of “morbidly obese,” and thus discrimination against her was prohibited.
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Chapter 20. The Equal Pay Act 39 results (showing 5 best matches)
- The EEOC and some courts hold that a “factor” must derive from either the personal characteristics of the workers (such as education, training, or experience) or from special needs connected to the employer’s business. , 841 F.2d 1567 (11th Cir. 1988). Legitimate special employer needs would include: (1) temporary vs. permanent employment; (2) full-time v. part-time employment; (3) participation in bona fide, structured training programs; (4) probationary period; (5) salary matching that reflects market requirements to attract or retain employees ( (6) maintenance of the pay of a higher paid worker while temporarily performing normally lower paying job duties in response to an emergency or other exigencies (“red circling”). “Red circling” that maintains a rate originally established on sex-based job cannot be a “factor other than sex.” , nights, week-ends, holidays, etc.). The night shift premiums involved in , failed as a defense because they were based on the employer’s past
- The “seniority systems” defense in the EPA will be satisfied if the “system” meets the standards required by Title VII. ( , Chapter 19) in that it systematically allocates ever increasing benefits based on ever increasing time of employment. A system is not “bona fide” if it is facially based on sex, had its genesis in sex discrimination (such as sex segregated units), or was adopted for the purpose of disadvantaging women. However, the fact that a facially neutral system disadvantages one sex does not deprive the system of its bona fides. Thus, an employer may use relative seniority as a wage setting factor even though the more senior, and thus higher paid, workers are men.
- Even a factor neutral on its face is not “other than sex” if the factor perpetuates past illegal sex discrimination or segregation. An employer that granted a “shift differential” in pay for night work when women were excluded from night work, and then “red circled” a higher rate of pay for male employees previously holding a higher paying night position cannot be a “factor other than sex.” , “past pay” is not a “factor other than sex” because it perpetuates this employer’s past discriminatory practices. , 478 U.S. 375 (1974) (Title VII, race discrimination). However, simply because a factor in lower pay for one sex does not deprive the factor of its necessary bona fides. For example, basing a starting salary for new employees on the salary earned at can be a bona fide factor. ...(9th Cir. 1982). That socio-economic factors often result in women generally being paid less than men does not preclude the employer from using prior salary, or other factors such as experience,... ...of...
- Where work is in fact not “equal” because different duties have been assigned to male and female employees, there can be no EPA violation. Discriminatory job assignments or work load discrimination, if based on the sex of the employee, will violate Title VII, but not the EPA.
- The equal work of the two employees must be performed in the same “establishment.” “Establishment” is more narrow than “employer” and generally refers to a distinct physical location of a covered “employer.” A single employer may have many “establishments.” For example, a retail enterprise may have five stores selling identical products, each in a different neighborhood. Presumably, each store of this employer would be a different “establishment,” and thus different pay rates of the distinct stores cannot be compared. Separate physical locations of an employer may constitute a single “establishment” if: (1) there is central authority for hiring and maintaining employee relations, (2) records are centrally maintained and administered, and (3) there is movement of employees between the physical locations. 29 C.F.R. 1620.9. Thus, if the five stores of a retail enterprise were centrally managed and employees moved freely between stores, the five stores would constitute the same “...
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Outline 141 results (showing 5 best matches)
- b. The Age Discrimination in Employment Act of 1967 (ADEA)
- PART 4. DISCRIMINATION IN THE WORK PLACE: COMPENSATION AND OTHER “TERMS AND CONDITIONS OF EMPLOYMENT”
- Chapter 10. Age: The Age Discrimination in Employment Act (ADEA)
- Chapter 1. “Employment Discrimination” Definition
- 1.01: “Employment Discrimination:” Boundaries
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Chapter 24. Leaves and Reassignments 77 results (showing 5 best matches)
- In addition to prohibiting discrimination because of military service obligations, USERA requires prompt reemployment of “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services.” 38 U.S.C. 4312(a). Thus, an employee whose military obligations in the reserve require that he attend drill one week-end per month and train full time for three weeks per year must be allowed to fulfill those obligations, and the employer may not retaliate against the employee because of his current, past, or future military commitments.
- “sex”) discrimination. 42 U.S.C. 2000e–(k). Even if leaves are not normally granted for illness or injury, Title VII makes it proscribed sex discrimination to deny a woman leave that is necessitated by the birth of her child. It is not sex discrimination, however, to deny a father leave to participate in the birth of his child, simply because the statutory right is granted to mothers.
- the complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the [employer] fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. 42 U.S.C. 2000e–2(k)(1)(A).
- Normal assignment of daily duties and true “lateral” transfers to similar jobs with the same benefits and similar working conditions generally are not deemed to adversely affect a “term or condition of employment.” , 37 F.3d 379 (8th Cir. 1994). However, transfers to jobs that entail more onerous duties, have less prestige, and limit future job opportunities will affect “conditions of employment,” even though the transfer involved no loss in salary or other tangible benefit. , 548 U.S. 53 (2006) (Alito concurring). Even if job duties are no more onerous, permanent reassignment to a job with significantly less responsibility, to work under the supervision of persons holding lower grade levels may adversely affect “terms and conditions of employment.” , 687 F.3d 397 (D.C. Cir. 2012). Allowing or denying vacation, setting annual leave, or allocating medical leave along proscribed lines is a facial violation of the core statues.
- These courts also have shown a reluctance to find any “discrimination” in the application of employers’ leave or job assignment policies. For example, , 656 F.2d 540 (7th Cir. 2011), held that granting an accommodation to employees suffering from a physical “disability” as defined by the ADA, while denying an accommodation to women whose pregnancy necessitated a similar accommodation, was not discriminatory because normal pregnancy is not a disability under the ADA. , 707 F.3d 437 (4th Cir. 2013), found that denying an accommodation to physical manifestations of pregnancy was not discriminatory even when employees who suffered from non-disabling impairments were accommodated when the impairment was “job related.” As pregnancy impairments were not “job related,” there was no “discrimination” against pregnancy.
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Chapter 4. Coverage of the Core Statutes 43 results (showing 5 best matches)
- To be covered the agency must also satisfy a non-statutory, common sense conception of the term in that its primary purpose is that of procuring employees for an employer or employers. Thus, a newspaper which prints “help wanted” advertisements is not considered an employment agency. , 4 FEP Cases 548 (N.D.Ill. 1972). Professional certification agencies, such as bar associations or medical boards, are not considered employment agencies. While an academic institution incidentally may aid its students or graduates in finding employment, the institution will not, , be an employment agency. However, the placement or career service office dedicated to procuring employment prospects will be an “employment agency” even though it
- The statutes cover American incorporated companies and their subsidiaries operating abroad as to their treatment of U.S. citizens working at a foreign site. The core statutes do not apply to non-citizens (aliens) employed and working outside of the United States. Moreover, U.S. law is not applied to an employer’s extra-territorial employment actions if compliance with U.S. employment law would violate the law of the host nation.
- noted that applying the “ministerial exemption” for non-ministers is not subject to formulaic generalizations. In making the necessary case-by-case evaluation courts have balanced two factors: (1) duties of the employee, and (2) doctrine of the religion. The religion cannot claim First Amendment protection against race, sex, national origin, age, or disability discrimination in the purely secular of the religion, such as operating hospitals or retirement centers.
- As “employer” coverage depends upon the number of “employees,” it is necessary to determine whether the individuals performing services for the employer are doing so as “employees.” Individuals performing non-employment services, such as “independent contractors,” are not “employees” of the employer. , 538 U.S. 440 (2003), directed that in making the determination of whether a worker was an “employee” courts must apply the common law standard which depends heavily on the “right of control” as to the manner and means of the worker’s performance. , involved physicians who were shareholders working in a professional corporation that provided medical services for patient/customers. The trial court had applied a version of an “economic realities” standard that focused on the economic dependence of the worker on the corporation. The court of appeals affirmed on the grounds that as the defendant had adopted a business model that treated its shareholder/physicians as “employees” of the...
- The statutes define “employment agencies” as “any person regularly undertaking, with or without compensation, to procure employees for an employer.” Coverage of employment agencies is not dependent upon the number of employees of the agency, but upon the agency’s relationship to covered “employers.” Thus, even a large agency that is covered in its employment relations as an “employer” but limits its placement activity to referrals to individuals not covered as “employers” (such as baby sitters or home health care workers) will not be covered in its referral activity. Moreover, referring independent contractors (such as “handyman” or security services) to “employers” is not covered as the agency is not referring “employees” for “employment.”
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Chapter 31. Private, Non–Judicial Resolution 17 results (showing 5 best matches)
- Although the FAA exempts from its coverage “contracts of employment,” , 532 U.S. 105 (2001), held that the exemption was applicable only to seamen, railroad employees, and employees engaged in interstate transportation. Moreover, , held that the FAA pre-empted state law to the extent that state law broadly declared agreements in employment contracts to waive access to courts a violation of state public policy.
- A waiver not meeting these statutory standards cannot be enforced against the employee, even if the employee retains the consideration paid by the employer in return for the release. , 552 U.S. 422 (1998). Failure of the employer to establish these elements of a “voluntary” waiver only prohibits reliance on the waiver as a defense to liability. Securing a waiver that fails to meet the statutory standards is not itself a violation of the law, nor does it establish that the employer engaged in illegal age discrimination.
- , held that the FAA preempted a blanket declaration that were unenforceable, the Court allowed that state contract law would determine whether
- decisions. The Court held that if the language of a collective bargaining agreement included claims under the employment discrimination statutes, covered by the collective agreement would be precluded from seeking judicial remedies for statutory violations. That is, the union could waive the individual’s access to the courts to protect individual rights that are granted by federal statutes. The employee could protect his federal statutory rights only through the agreed arbitration forum (which would be controlled by the union, subject only to the union’s general “duty of fair representation” of employee interests imposed by the labor relations statutes).
- Agreements to arbitrate are routinely enforced by the courts, and judicial review of arbitration awards is extremely limited. Typically, the arbitration contract provides that the arbitrator’s award will be “final,” and thus the parties ostensibly waive the right to file lawsuits on issues covered by the arbitration contract. Requiring employees, as a condition of their employment, to agree to arbitrate discrimination claims is neither
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Chapter 13. Affirmative Action 44 results (showing 5 best matches)
- It shall be an unlawful employment practice for a [covered entity] in connection with the selection or referral of applicants or candidates for employment or promotions, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex or national origin. 42 U.S.C. 2000e–(2)(
- The identified imbalance must reach the level of being “conspicuous. The dissent in behavior could justify racially conscious remedies. The concurring opinion suggested that racially conscious affirmative action needs to be premised on an imbalance sufficient to create a of illegal discrimination. The majority specifically rejected the standard of a prima facie illegality in favor of the imprecise term of “conspicuous imbalance,” which presumably means that the imbalance must be clear, but need not reach the level of being statistically “significant.”
- The required “compelling interest” also is present when a defendant employer has been found to have engaged in “pervasive” or “egregious” illegal discrimination. Judicial imposition on guilty employers of a requirement to use race or sex in making future hiring decisions based on a reasonable hiring or promotion ratio similar to the 1–1 ratio sanctioned in , does not violate the equal protection rights of disappointed white applicants.
- , and forcefully argued that extensive legislative history made Title VII applicable to the “reverse discrimination” practiced by defendants. Conceding that these arguments were “not without force,” the Court nonetheless found that the pervasive underlying “spirit” behind Title VII was to increase the employment opportunities of minorities which would be undermined if the literal language were applied to prevent reasonable voluntary attempts to increase job opportunities for minorities. Looking to other Titles of the 1964 Civil Rights Act, the Court opined that it would be of little use to have access to restaurants, housing, and public accommodations if racial minorities had no job allowing them to pay for such access.
- must be distinguished: (1) The discrimination against the white plaintiff there, unlike , was not made pursuant to any pre-existing plan to remedy identified underrepresentation of black workers, but was merely an response to a particular event with at most only vague affirmative action concerns, and (2) of an employee. The plaintiff in was an applicant frustrated in his hope to fill a vacant position. The impact on the white plaintiff discharged in
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Chapter 18. Disparate Impact Liability 104 results (showing 5 best matches)
- Title VII provides that “Nothing contained in [the Act] shall be construed to repeal or modify any Federal, state, territorial or local law creating special rights or preferences for veterans” (42 U.S.C. 2000e–11), thus permitting discrimination individuals because of their past military service or present military obligations.
- Applicant pool analysis examines the relative percentages of persons, by class, in a pool of applicants (the “pool”) who possess the required criteria. This data often is drawn from census or official statistical information. When the data show that a significantly higher percentage of one class lacks the qualifying criterion, courts that this employer’s use of the challenged device has an adverse impact on employment opportunities of that class. Pool analysis is commonly used to measure the impact of required objective credentials, such as education levels (degrees, diplomas, etc.) and physical requirements, such as height and weight minima. In , census data from the state of North Carolina, where the employer was located, disclosed that 34% of white males had diplomas compared to 12% of black males. This difference was sufficient to hold, as a matter of law, that at this employer the requirement of a high school diploma as a condition of employment had an adverse impact on blacks.
- When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which disproportionately discriminates against minorities. * * * On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job related.
- Finally, even a demonstrated difference must be shown to have a “significant” effect on the employment of those in the protected class. A rule prohibiting men from wearing beards may be shown to affect some blacks, but virtually no whites, because some black men suffer from a skin condition unique to the race that makes shaving painful and occasionally dangerous. However, the percentage of black men suffering from this condition is very small, the impact of the no-beards policy on employment opportunities of black males as a class may be insignificant. , 635 F.2d 188 (3d Cir. 1980). Similarly, a maximum height of 6’7” would disqualify a few men, but virtually no women. However, since this height maximum would disqualify such a small percentage of the male population, the requirement did not impose a significant barrier to the employment of men.
- It shall be an unlawful employment practice for [a covered entity] * * * to adjust scores of, use different cut-off scores, or otherwise alter the results of employment related tests on the basis of [protected classifications]. 42 U.S.C. 2000e–2(l).
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Chapter 2. Common Law Context 19 results (showing 5 best matches)
- In the United States, unless restricted by statute or regulated by contract, the employment relationship is “at will.” As an “at-will” relationship, employment may be entered or , 81 Tenn. 507 (1884). This “American Rule” was contrary to the English common law. See, Blackstone’s “
- Representations in the employment context now are analyzed in light of general objective principles of contract law, judged for their enforceability as any other alleged “promise” (that is, would a reasonable person believe that a binding legal obligation was being offered). , 457 N.Y.Supp.2d 193, 433 N.2d 441 (1982). The notion that distinct, additional consideration must be provided by the employee other than undertaking and remaining in that employment is being abandoned. , 1 P.3d 615 (Wyo. 2000). Courts today also are willing to apply traditional concepts of promissory estoppel to find that when the offeree/employee reasonably relies to her detriment on a promise of permanent employment by leaving her current employment or by moving long distances, the promisor/employer is estopped to deny the promise. , 685 P.2d 1081 (Wash. 1984). Finally, implied-in-fact promises to discharge a worker only for good cause can be drawn from a pattern of past performance and relationships.
- The “at will” doctrine, founded on “liberty of contract,” was so embedded that until the late 1930s legislative attempts to limit the ability of employers to hire and dismiss employees was deemed to be a violation of the 5th and 14th Amendments to the Constitution. Ultimately, the power to limit private employers’ common law “right” to discharge employees was sustained in , 301 U.S. 1 (1937). Congress is now deemed to have the power to regulate discrimination in the work place under the Constitution’s Article I “commerce power.” To the extent the statutes regulate invidious discrimination, such as race or sex, Congress is granted plenary power under section 5 of Amendment 14.
- Traditional contract law provides that, “Every contract imposes on each party a duty of good faith and fair dealing in its performance and enforcement.” Rest. Contracts 2nd, sec. 205. This implied-in-law duty is breached by failing to act with honesty in fact, unreasonably, or outside the reasonable expectations of the parties. Most courts have rejected the application of this doctrine to employment contracts. “Were we to adopt such a rule, we fear that we would tread perilously close to abolishing completely the at-will doctrine which employees can and should get , 710 P.2d 1025 (Ariz. 1985). Courts will apply the “good faith and fair dealing” doctrine to situations where an employer dismisses the employee to payment of obligations such as profit sharing or pension benefits.
- Common law is important because it provides: (1) where the statutes have no application, state common law defines the rights of the parties, and can serve as a (2) to both state and federal statutory law by creating additional rights and remedies.
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Chapter 28. Remedies 57 results (showing 5 best matches)
- As immigration law forbids the employment of undocumented workers a court, not only may not, but must not, order the hiring or back pay for individuals not entitled to legal employment.
- The person aggrieved, * * * so far as possible, [must] be restored to a position where they would have been were it not for the unlawful discrimination. * * * It follows that, given a finding of unlawful discrimination, back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination * * * and making persons whole for injuries suffered * * *.
- Many public law statutes that depend on individual enforcement initiatives, including the anti-discrimination statutes, authorize a prevailing plaintiff to recover from defendant reasonable attorneys’ fees and related costs of the litigation. The ADEA allows only prevailing
- Any amounts actually earned through alternative employment prior to reinstatement or an unconditional offer of employment will be deducted from the gross amount of back pay liability otherwise due. 42 U.S.C. 2000e–5(g)(1). The nature of plaintiff’s alternative employment is immaterial. “Collateral source” benefits such as social security, unemployment, welfare benefits, or income from investments are not “interim earnings” that must be deducted. , 17 F.3d 1104 (8th Cir. 1994). Uncertainty or difficulty in calculating the amount of a back pay award does not warrant its denial or reduction. Doubts are resolved in favor of the injured employee.
- The grant of any remedy appears to be based on a judicial finding that discrimination is “intentional.” However, “intentional” has been construed to mean that the activity found to be discriminatory was not accidental. Remedial powers are not dependent upon proof that defendant intentionally violated the law.
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Chapter 15. Proving Motive Though Expressions of Prejudice 12 results (showing 5 best matches)
- Written or spoken indications of animus against a protected class (“smoking gun evidence”) present evidentiary issues on four levels that intertwine rules of evidence with principles of employment discrimination. First, is the proffered evidence admissible? Issues of relevance and other evidence rules such as hearsay, “best evidence,” document authentication, etc. must be addressed. Second, credibility? If plaintiff alleges that a decision maker (or one influencing a decision maker) made statements indicating hostility toward plaintiff’s class, and the alleged speaker denies having made such statements, there will be a threshold factual issue of witness credibility as to whether the words were actually spoken. This critical preliminary issue must be resolved by the fact finder. a verdict for plaintiff? This is an issue of law for the court to resolve that will arise before trial on a motion for summary judgment, at the close of testimony on a motion for directed verdict, or after a...
- The inconsistency in outcomes as to when indirect evidence is sufficient to support a jury verdict is illustrated by two cases. One held that an angry outburst, “I hate having fucking women in the office” was insufficient to support a finding that a female plaintiff was a victim of sex discrimination, (
- Since the words themselves established the motivation for the action, unambiguous direct evidence not only permits, but may require a judgment for the plaintiff. , 512 F.3d 1286 (11th Cir. 2008) (notation on interview file that the rejected plaintiff was “too old for this job; we need a younger person” compels a finding of age discrimination.).
- To have probative value words attributed to defendant must be “evaluative” of a protected class, not merely “descriptive.” Identifying an employee as a “bright young man” was merely “descriptive” and thus was not evidence of sex or age animus. , 930 F.2d 1348 (8th Cir. 1991). By contrast, a comment, “looking for a bright young star,” is an evaluative indication of prejudice favoring younger applicants. , (E.D. Tenn. 5/8/13) 81 USLW 1632. Reporting that an incident involved “a large, strong, muscular black man” attempting to intimidate “three smaller white men” was merely “descriptive” of the event and not indicative of a racial animus against the black plaintiff.
- Expressions made by persons who played no role in the challenged decision have little, if any, probative value ( , 701 F.3d 434 (5th Cir. 2012). Utterances by a decision-maker (or one influencing a decision) made at a time or in a context sufficiently removed from the challenged employment decision that their probative value, balanced against the potential to unduly inflame the jury, may be so weak that the trial court, in its discretion, may exclude them from jury consideration. For example, defendant uttering a single racial curse four years prior to the challenged decision was so remote that the inflammatory curse was seen as a “stray comment” that could be excluded from evidence. , 332 F.3d 874 (5th Cir. 2003). A single critical, even blasphemous, reference to an employee’s religion may be dismissed as “stray,” and thus insufficient to support an inference of religious motivation.
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Chapter 22. Insurance 14 results (showing 5 best matches)
- While Title VII does not require employers to provide employees with health benefit programs, distinctions in employer sponsored programs that are drawn along class lines violate the Act. The Pregnancy Discrimination Act (PDA) amendments to Title VII state specifically: “Women affected by pregnancy, childbirth, or related conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. 2000e(k).
- A health care plan that excludes from coverage, or provides reduced benefits to, conditions that include persons with an identified disability or a discrete group of disabilities is suspect and may violate the ADA. For example, a plan that places lower caps for the treatment of HIV positive than it places on other viral conditions would lack bona fides in that the distinction is a facial discrimination against a defined disability. The EEOC has indicated that to justify discriminatory treatment of a particular disability employers must demonstrate the “business necessity” of such discrimination. A mere reasonable, cost-based justification for the discrimination will not suffice. Courts, however, have permitted employers to use otherwise bona fide plans even if the plan limits the amount of benefits to some disabilities if the limitation is based on industry accepted actuarial data.
- The employer that provides access to the insurance as part of its employee benefit package does not avoid liability because a participating independent underwriter created the discriminatory policy. The employer offering the insurance to its employees coupled with the employer’s contractual relationship with the underwriter is sufficient to attribute discrimination in the insurance policies to the “employer.”
- Certain distinctions in the benefits paid by insurance plans based on actuarial costs associated with , that would violate Title VII if made on the basis of race or sex, are authorized by the ADEA. Health plans may reduce benefits paid to workers based on their age where the amount of payment or costs incurred by the employer on behalf of the older worker is no less than the costs incurred on behalf of younger workers. Employers may not, however, require older workers to pay greater amounts in order to participation in a plan that permits older workers to receive benefits equal to that of younger workers by increasing the contribution from older workers to the extent the increased contribution reflects actual increased cost to the employer of providing the equal coverage. 29 U.S.C. 623(i). Maintaining equal benefits for older workers even though costs for them are increasing does not constitute age discrimination against younger workers.
- , 534 F.3d 644 (7th Cir. 2008), and must be covered in an employer-provided health benefit plan. The EEOC also has concluded that contraception to prevent pregnancy falls within “pregnancy and childbirth,” and thus contraception coverage must be included in any such policies.
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Chapter 16. Proving Motive With Circumstantial Evidence 75 results (showing 5 best matches)
- [Such proof] is probative of intentional discrimination, and it may be quite persuasive. [However] this is not to say that such a showing * * * will to sustain a jury’s finding of liability. * * * If the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent.
- Suspicious discriminatory treatment against others of plaintiff’s class might suggest an animus toward the class that may have influenced the adverse action against plaintiff. Such “me too” evidence of discrimination against third parties raises dangers that a trial court must confront: (1) straying from the issue to collaterally litigate whether non-parties were in fact victims of illegal discrimination, which could lead to, (2) undue complexity that could confuse the jury, and (3) the possibility that the jury would place undue weight on such evidence by concluding that defendant was a “bad person” who should be punished.
- Courts have held that when objective credentials of the candidates are similar and defendant makes a selection based on properly structured subjective criteria, this precludes minor objective differences in the candidates’ credentials from creating an inference that the decision was improperly motivated.
- , addressed a complaint of a black former employee of defendant who applied for and was denied re-employment. In this context the Court stated:
- If you find that plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason. If you find that defendant’s treatment was motivated by both gender and lawful reasons * * * [t]he plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.
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Chapter 26. Advertisements, Interviews, Inquiries and Medical Examinations 20 results (showing 5 best matches)
- The ADA severely limits inquires about potential medical conditions and the administering of medical examinations. Restrictions apply to three categories: (1) Applicants, (2) Post
- The Genetic Information Non–Discrimination Act, 42 U.S.C. 2000ff (GINA), makes it unlawful “for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee.” This prohibition applies to individuals regardless of whether they suffer from an impairment, disability, or any particular genetic condition. This prohibition has a number of qualifications and exceptions that include the purchase of commercially and publicly available documents, other than medical data bases or court records, “inadvertent requests” for a medical history pursuant to the employer providing health care services, and securing information authorized or required under federal or state family and medical leave statutes, such as FMLA. Thus, requiring an employee seeking leave to care for her own illness or that of a child, spouse or parent to provide a physician’s certification of the medical condition is not a proscribed inquiry.
- Questions asked of applicants, on applications or during interviews, are not covered by the above restraints on “notices and advertisements.” However, when questions are directed at women, but not men, minorities but not whites, and the applicant’s response is used to make the job decision, this action constitutes illegal discrimination. To illustrate, in , 726 F.2d 1529 (11th Cir. 1984), the employer asked black, but not white applicants about their criminal background. When the background information secured by the inquiry was the basis for the black applicant’s rejection, the rejection was discrimination because of race. Similarly, asking women applicants whether they are, or are planning to become, pregnant, will be pregnancy discrimination if the woman applicant is not selected based on her response. Even questions asked of all applicants, such as “family plans,” number of children, and child care responsibilities may suggest that in rejecting a woman the employer made...
- After an applicant is tendered a firm offer of employment an employer may require a medical examination as a condition of the offeree commencing employment if all new employees are subjected to the examination, results and information are kept confidential, and the information is not used in a manner inconsistent with the ADA. This means, for example, that all persons who have been offered truck driver jobs now may be given reasonable hearing and eye sight examinations, and that the offer may be revoked for those who fail. Applicants offered pipefitters jobs may be given a examination discloses that an offeree could not lift 100 lb., the offer may be revoked on the basis of the examination if, but only if, the ability to lift 100 lbs was an essential duty of a pipefitter.
- While citizenship status inquiries are required, the Act makes it illegal for an employer to discriminate against applicants on the basis of national origin or their “citizenship status.” “Citizenship status” protects only U.S. citizens and “intending citizens” against discrimination. “Intending citizens” are defined as lawfully admitted resident non-citizens who have applied for citizenship “on a timely basis” and are “actively pursuing” U.S. citizenship. , 7.02. Immigration reform is currently pending in Congress.
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Chapter 6. Race and Color 9 results (showing 5 best matches)
- Discrimination against a white job applicant because of the black race of the applicant’s is racial discrimination against the applicant in that had plaintiff been of a different race ( , the race of
- Color discrimination is also proscribed by Title VII. “Color” is ill-defined, but has been applied to discrimination by a supervisor who does not discriminate against blacks generally, or against whites, but favors persons of African heritage with dark skin over persons of African heritage with lighter skin.
- Eradicating racial discrimination in the workplace was perhaps the key purpose behind the enactment of Title VII. The term “race” has been broadly construed to reach perceived racial origins such as Africa, Asia, Middle East, Pacific Islands, and the Americas, including Native Americans (“Indians”). “Race” is not limited to so-called racial minorities. Individuals with European ancestry (“whites”) are protected under the same standards as are racial minorities. , 427 U.S. 273 (1976). Discriminating against a person because of perceived immutable physical characteristics of a racial class, such as hair texture or eye color, is “race” discrimination. However, discriminating on the basis of an individual’s clothing or hair is not race discrimination simply because a particular style currently is favored by an identifiable racial group. , 527 F.Supp. 229 (S.D.N.Y. 1981)(prohibiting corn row hair style worn by black employee was not “race” discrimination).
- This 1866 Act provides that “all persons shall have the same right to make and enforce contracts as is enjoyed by white citizens.” Its origins are in the 13th Amendment which outlawed slavery and authorized implementing legislation to remove “badges and incidents” of slavery. Its broad language was expanded and clarified in 1991 to make it applicable to all aspects of the employment contract—hiring, promotion, discharge, compensation, and harassment. While originally intended to guaranty newly freed slaves equal contract rights as “enjoyed by white citizens,” it has been construed to prohibit racial discrimination against whites.
- This Act allows for a broader range of remedies than does Title VII, including compensatory and punitive damages without statutory caps. Moreover, it imposes no administrative exhaustion obligations on claimants and has more generous time limitations on filing an enforcement suit. Accordingly, complaints of race discrimination should pursue both Title VII and 1981 remedies.
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Chapter 17. Proving Motive With Statistics Systemic “Pattern or Practice” Discrimination 40 results (showing 5 best matches)
- , 989 F.2d 165 (5th Cir. 1993), involved food service jobs at defendant’s ice cream shops which were located throughout the greater Houston, Texas metropolitan area. Plaintiff presented census data showing that 25% of all food service and preparation workers in the greater Houston area were black compared to defendant’s total workforce which was only 8% black. Defendant countered with evidence focusing on individual shops in different neighborhoods, and demonstrated that 1/2 of the employees in its shops lived within one mile of the shop, and 80% of them lived within three miles, coupled with expert analysis that “most persons willing to accept positions are young, seeking part-time employment, and residing within a very short distance.” Individual shops had a fair racial composition when compared to the neighborhood population in which each shop was located. This was sufficient to refute plaintiff’s broad metro-wide basis for a comparison.
- Most cases relying on statistical disparities are brought by the government as a “pattern or practice” claim or by private parties as class actions under Rule 23, Fed. R. Civ. Proc. Some authority has indicated that even when a single plaintiff alleges individual disparate treatment, illegal motive can be established through a statistical showing. , 613 F.2d 957 (D.C.Cir. 1979). However, to avoid the implications of Title VII, 42 U.S.C. 2000e–2(j), suggested that liability cannot be based “solely” on an employer’s imbalanced work force, and indicated that plaintiff satisfied its burden by also presenting some evidence of individual discrimination. Thus, it would seem that a non-class plaintiff must establish a prima facie showing of improper motive either through direct, verbal, or circumstantial evidence using the model. Defendant then articulates a reason for its disparate treatment of plaintiff. At this point plaintiff may use statistical proof to demonstrate the “pretext” of...
- The working premise of , was: “[A]bsent explanation, it is ordinarily expected that nondiscriminatory hiring practices will, in time, result in a work force more or less representative of the population in the community from which employees are hired.” Where the employer’s workforce is not “representative of the population in the community” a proper inference is that the imbalance is produced by a pattern of improper motivation.
- Where there are few experiences, a relatively large difference in observed and expected outcomes will be necessary to eliminate chance as an explanation for the outcome. For example, in , 943 F.2d 1230 (10th Cir. 1991), a total of 21 employees were in the pool eligible for reassignment, 8 male and 13 female. Seven of the 8 male employees were reassigned. Only 2 of the 13 females were reassigned. Nonetheless, the small numbers of observed outcomes was inadequate to disprove the null hypothesis that each case was not a product of random choice or unique special circumstances. A minor shift in these raw numbers would have produced a dramatic shift in the percentages.
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Chapter 23. Pensions and Retirement 9 results (showing 5 best matches)
- No pension or retirement plan “shall excuse the failure to hire any individual and no such * * * plan shall permit the involuntary retirement of any individual because of his age.” 29 U.S.C. 623(f)(2)(B). While generally prohibiting age discrimination in pension programs, the ADEA specifically authorizes plans to set a minimum age as a condition for eligibility to receive retirement benefits, to calculate benefits based on the number of years of participation in the plan, and impose a maximum amount of retirement benefits an employee may accrue. 29 U.S.C. 623( )(1)(a) and 29 U.S.C. 623(f)(2)(B).
- Los Angeles Dep’t of Light & Power v. Manhart
- “Voluntary” retirement programs often are conditioned upon the eligible employee executing a waiver of any age discrimination claims. Such waivers will be enforced against the employee if, but only if, they meet seven specific statutory standards. 29 U.S.C. 626 (f). ( , 31.01 outlines the standards). A waiver not meeting these requirements cannot be enforced against the employee, even if the employee failed to return the consideration paid by the employer to secure the waiver. , 522 U.S. 422 (1998). An employer’s failure to satisfy the statutory standards required for an enforceable waiver does not establish that the employee’s retirement was involuntary.
- When a plan makes an age distinction that disadvantages older workers, the employer has the burden of proving the bona fides of the plan and its application to plaintiff. To be a qualifying “plan” using such an age distinction it must be accurately described in writing and provide benefits in accordance with the written terms. The Act includes complex and detailed provisions as what is required in those terms to be considered bona fide.
- Except for certain bona fide executives over age 65, employees may not be forced to retire because of their age, and retirement plans cannot be used to force retirement. The ADEA does, however, permit “voluntary early retirement incentive programs” as long as the plan does not disadvantage older workers. 29 U.S.C. 623(f)(2)(B)(ii). It violates the ADEA to offer early retirement benefits to younger workers greater than those offered older workers if the difference is based on age. However, incentives based solely on an employee’s years of service or salary are analytically distinct from proscribed age discrimination (
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Chapter 21. Direct Compensation Under Title VII, ADA, and ADEA 13 results (showing 5 best matches)
- As Title VII requires discrimination “because of sex,” the motive behind differences in compensation between sexes is key. Title VII attempts a reconciliation with the EPA in a provision known as the “Bennett Amendment,” which allows employers to make pay distinctions “if such differentiation is
- Salary scales drawn along class lines carry their own indicia of illegal motive. Basing raises on prior illegal discrimination perpetrates the motivation originally held by the defendant. , 478 U.S. 385 (1986). Verbal (or “direct”) evidence, such as “women do not deserve the same pay as men” or “old deadwood shouldn’t be paid as much as young bucks,” would tend to prove that any difference was influenced by improper motive. Ostensibly neutral distinctions, such as those resulting from the application of a seniority system will violate Title VII only if plaintiff proves that defendant adopted the system to disadvantage a protected class.
- County of Washington v. Gunther
- Some courts, ignoring the implications of
- It is difficult to establish illegal motive for pay differences with statistics. Mere elimination of chance as a hypothesis for differences is largely meaningless in that there are a large number of legitimate variables used to determine individual salaries, such as education, past experience, former salary, length of service, work history, and past performance evaluations. That one class of workers earns less than workers of another class, even in the same or similar job categories, does little to demonstrate that the difference was improperly motivated. 682 F.2d 721 (8th Cir. 1982). Nevertheless, sophisticated statistical techniques, such as “multiple regression analysis” can account for the numerous variables used to set salaries and statistically conclude that the only reason that consistently accounts for the observed pay difference is membership in a protected class.
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Part 2. Protected Classes 1 result
Chapter 9. Religion 21 results (showing 5 best matches)
- , 4.09, Title VII specifically permits religious organizations to discriminate on the basis of religion in all of its activities, religious as well as secular.
- The employer can justify discrimination based on the employee following sincerely held religious beliefs or practices if the employer demonstrates that it “is unable to reasonably accommodate to an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. 2000e–(j).
- An employer’s obligation not to discriminate because of religious observances and practices goes beyond non-discrimination, but requires steps to accommodate uniformly applied rules to the employee’s religious observances and practices. 42 U.S.C. 2000e–(j). The most common forms of religious observances and practices where accommodation is requested are the adjustment of work schedules to enable the employees to observe their Sabbath or Holy days, modification of the employer’s dress or grooming codes to permit employees to wear clothing (such as head covering) or hair styles (such as beards) required by their religious beliefs, or to permit employees to display at their work-place symbols of their faith (such as a scripture, a Christian cross, or star of David).
- Title VII does not define “religion” other than to specify that it includes “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. 2000e–(j). “Religion” implicitly includes the teachings or traditions of established faiths, such as Roman Catholic, Judaism, Islam, Hindu, or Buddhist, subdivisions and schisms, such as Orthodox, Sunni, Eastern, and the various branches of Protestantism, such as Methodist, Baptist, Lutheran. “Religion” includes non-traditional faiths and practices that are sincerely held with the strength of traditional religious views, such as Native American spiritualism, and even the unorthodox such as Wicca (“witchcraft”). , 134 F.3d 375 (7th Cir.1998). Discrimination against atheists or agnostics is religious discrimination as it is based on the absence of religious belief.
- , 638 F.3d 975 (8th Cir. 2011). While an accommodation will not be “reasonable” if it places a significant hardship on co-workers, moving a staff appreciation day to accommodate one employee’s religious observances is reasonable and does not constitute religious discrimination against other employees who are asked to attend the rescheduled meeting simply because the timing may
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, Washington & Lee University School of Law
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- Publication Date: September 11th, 2013
- ISBN: 9780314285355
- Subject: Employment Discrimination
- Series: Nutshells
- Type: Overviews
- Description: This text is designed to help students – both law and undergraduate – achieve a basic understanding of this complex area of the law and provide practitioners with an up-to-date review. The text focuses on Title VII of the Civil Rights Act of 1964 (race, national origin, sex, and religious discrimination), the Age Discrimination in Employment Act, and the Americans with Disabilities Act as applied to the workplace. The book addresses the method of proving violations, both disparate treatment and disparate impact analysis, including a brief primer of statistical proof, as well as the defenses to the express use of proscribed classifications. Finally, the book provides a quick reference to the complex procedural and remedial provisions of the statutes.