LAW, BUSINESS, &

SOCIETY
11th
Edition

McGraw-Hill

2015 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not
authorized for sale or distribution in any manner. This document may not be copied, scanned, duplicated,
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Learning Objectives
Discuss the purpose and history of legal
protections against employment
discrimination
Compare and contrast the protections
offered under the federal statutes
prohibiting employment discrimination:
Title VII of the Civil Rights Act of 1964;
the Equal Pay Act; the Americans with
Disabilities Act; and the Age
Discrimination in Employment Act

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Learning Objectives

Explain the role of the Equal Employment

Opportunity Commission (EEOC) in
enforcing federal statutes prohibiting
employment discrimination
Identify remedies available to victims of
unlawful employment discrimination
Distinguish the primary forms of
employment discrimination analysis:
disparate treatment and disparate impact
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Learning Objectives

Identify when unlawful sexual

harassment has occurred
Identify when employers are liable for
unlawful sexual harassment
Describe protections against retaliation
offered under the federal statutes
prohibiting employment discrimination

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Learning Objectives

Discuss the purposes and development

of affirmative action
Describe the concept of reasonable
accommodation as applied to religiousand disability-based discrimination
claims
Discuss the current status of
protections against sexual orientation
discrimination in the workplace
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Continuing Discrimination

Employers compare, distinguish, and

choose among applicants based on
many factors
Equal Employment Opportunity (EEO)
laws
Forbid considerations that would

undermine equal employment opportunity

Prohibited factors
Employees race, color, and gender
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Employment Discrimination:
History

Civil Rights Act, 1866

Provided the newly freed black slaves with

the same right enjoyed by white citizens

Fair Employment Practice Committee

Brown v. Board of Education
Supreme Court forbade separate but equal

schools

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Employment Discrimination:
Foundation in Law

Civil Rights Act of 1964

Title VII forbids discrimination in

employment on the basis of race, color,

religion, sex, or national origin

Other legislation and orders

Americans with Disabilities Act, 1990 (ADA)
Age Discrimination in Employment Act, 1967

(ADEA)
Equal Pay Act, 1963
Civil Rights Act, 1991
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Employment Discrimination:
Foundation in Law

Constitution
Fourteenth Amendment protects citizens

from discrimination via state government

action
Due Process Clause of the Fifth
Amendment forbids discrimination by
federal government

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Employment Discrimination
Enforcement

Equal Employment Opportunity

Commission (EEOC)
Authority to issue regulations and

guidelines to receive, initiate, and

investigate charges of discrimination
against employers

State fair employment practice

agencies
Expands the antidiscrimination protections

in federal statutes
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Employment Discrimination
Enforcement: Litigation

Victim files a complaint within a limited

period of time with EEOC or state fair
employment practices agency
Many lawsuits are resolved in
arbitration

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Remedies

Title VII and Americans with Disabilities

Act provides compensatory and
punitive damages in cases
EEOC negotiates consent decrees
requiring new procedures to correct
wrongful practices

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Types of Illegal Employment

Discrimination

Disparate treatment
Disparate impact
Harassment

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Disparate Treatment

Provided by Title VII of the 1964 Civil

Rights Act
Addresses intentional discrimination by
an employer
Plaintiffs must prove employers intent
to discriminate with direct or indirect
evidence

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Disparate Treatment

Tests in which the claims rely on

indirect evidence
Plaintiffs (employees) prima facie case
Defendants (employers) case
Plaintiffs response

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Disparate Impact

Provided by Title VII of the 1964 Civil

Rights Act
Claims arise from unintentional
discrimination
Analysis involves situations in which
employers use legitimate employment
standards
Impose a heavier burden on a protected

class
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Analysis Requirements

Plaintiff needs to identify specific

employment practice or policy
Plaintiff needs to prove that protected
class is suffering an adverse impact
caused by the employment policy

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Analysis Requirements

Plaintiff triumphs unless the defendant

demonstrates the employment policy
is:
Job related
Consistent with business necessity

Employer wins unless plaintiff

demonstrates that an alternative, less
discriminatory business practice is
available
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Case: Disparate Impact

Analysis

Case
Griggs v. Duke Power Co.
401 U.S. 424 (1971)
District court

Issue
Plaintiff, group of Negro employees alleged

that Duke Company instituted certain

requirements to qualify for transfer from
Labor or Coal Handling department

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Statutory Defenses of Title VII

Seniority - Bona fide seniority system

permits differences in wages and
conditions of employment
Job-related employee testing - Used in
making hiring and promotion decisions
Four-fifths rule and disparate impact Protected class selection rate is less
than 80 percent of the highest
selection rate group
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National Origin

Employment discrimination reflects

social issues that influence workplace
relations
Harassment is the subject of more
recent national origin discrimination
complaints
Speak English only rules in the
workplace have generated controversy
and national origin discrimination claims
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Racial Harassment

Hangmans noose
Hurtful and disgraceful expression of racism
Appeared in recent racial harassment cases

Conflict among federal courts

Question of whether racially charged

workplace conduct rises to the level of

unlawful harassment

Use of subtle code words constitute

racial and/or national origin harassment
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Sex Discrimination

Gender equality
Gender inequality in the workplace begins

with the gender-wage gap

Womens perception of gender bias is high

Prejudice about glass ceiling prevent

women from roles of power and career
advancement

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Analysis of Sex
Discrimination: Current Issues

Sex discrimination claims under Title

VII include:
Disparate treatment, disparate impact
Sexual harassment

Employee training and policies

targeting sex discrimination is common
in the American workplace

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Case: Sex Discrimination and

Disparate Impact

Case
Pietras v. Farmingville Fire District
180 F.3d 468 (2d Cir.1999); cert. den. 528

U.S. 948 (1999)

District court

Issue
Pietras filed suit alleging Farmingville had

violated Title VII of the Civil Rights Act by

instituting a physical agility test that had a
disparate impact on women
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Bona Fide Occupational

Qualification (BFOQ)

Involved in inquiries of intentional sex

discrimination cases
Discrimination is lawful where sex,
religion, or national origin is a BFOQ
necessary to the normal operation of
business

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Bona Fide Occupational

Qualification (BFOQ)

Race and color are excluded

Essence
Employer can lawfully insist on a specific

gender to fill a specific role due to the

essence of the job

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Work-Life Balance and Sex

Discrimination

Antidiscrimination law - Allows women to

pursue careers
Pregnancy Discrimination Act (PDA) Discrimination with respect to pregnancy
is treated as a form of sex discrimination
Family Responsibilities Discrimination
(FRD) - Against the stereotype that
mothers with young children neglect
their careers
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Equal Pay Act

Forbids discrimination on paying wages

to employees on the basis of sex
Unequal wage payments are lawful if
paid pursuant to a:
Seniority system
Merit system
System that measures earnings by

quantity or quality of production

Differential based on factors other than sex
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Sexual Harassment: Title VII

Provides protection for both men and

women
Strives to maintain equal opportunity in
the workplace
Women in authority are susceptible to
harassment

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Sexual Harassment

Verbal or physical conduct of a sexual

nature that:
Becomes a condition of employment
Becomes a basis for employment decisions
Unreasonably interferes with work

performance
Creates a hostile working environment

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Sexual Harassment

Types
Quid pro quo
Hostile work environment

Steps in analysis
Proof of sexual harassment
Employer liability and affirmative defense

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Case: Law of Sexual

Harassment

Case
McCormack v. Safeway
2014 U.S. Dist. LEXIS 17805 (D. Ariz. 2014)

Issue
Plaintiff filed a sexual harassment claim

against Safeway under Title VII of the Civil

Rights Act of 1964 for sexually harassing
conduct by a co-worker

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Law of Sexual Harassment

Plaintiffs in same-sex harassment

cases must show that behavior was
motivated by:
Sexual desire
General hostility to one or other gender
Victims failure to conform to sexual

stereotypes

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Retaliation

Antiretaliation provision of Title VII

Prohibits an employer from discriminating

against an employee for engaging in a

protected activity

ADA, ADEA and Civil Rights Act of 1866

offer protections against retaliation

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Prima Facie Case

Requirements

Participation in a protected activity

Employment action disadvantaging the
plaintiff
Causal connection between the
protected activity and the adverse
employment action

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Ways of Affirmative Action

Courts order the implementation of

action after a finding of wrongful
discrimination
Employers voluntarily adopt action
plans
Certain statutes require action
Employers adopt action to do business
with government agencies
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Early Affirmative Action Law

United Steelworkers of America v.

Weber, 1979
Detailed the qualities that allow a

voluntary affirmative action plan in the

private sector

Johnson v. Transportation Agency, 1987

Extended affirmative action to women

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Case: Affirmative Action

Case
Ricci v. DeStefano
129 S.Ct. 2658 (2009)
District court

Issue
White and Hispanic firefighters alleged that

city officials discriminated against the

plaintiffs based on their race by discarding
the test results
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Considerations to Evaluate
Affirmative Action

Plan addresses a compelling interest

Plan is temporary
Plan is narrowly tailored to minimize
layoffs and other burdens

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Religious Discrimination

Title VIIs protections include

employers duty to reasonably
accommodate employees religious
beliefs and practices
Employers need not accommodate an
employees religious practice if it
creates an undue hardship on the
workplace

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Americans with Disabilities

Act (ADA)

Seeks to remove barriers to a full,

productive life for persons with
disabilities
Forbids discrimination in:
Employment, public accommodations
Public services, transportation
Telecommunications

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Americans with Disabilities

Act (ADA)

Americans with Disabilities

Amendments Act (ADAAA)
Established broader definitional guidelines

under the ADA

Defining disabilities
Defined broadly in offering protection from

employment discrimination

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Americans with Disabilities

Act (ADA)

Regarded as having a disability

Employer incorrectly assuming and

discriminating an employee on the basis of

a disability violates the ADA

Accommodating individuals with

disabilities
ADA requires employers to make

reasonable accommodations for disabled

employees and applicants
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Americans with Disabilities

Act (ADA) in Practice

Companies have made efforts to

increase the presence of individuals
with disabilities in recent years
Tax credits and reductions provide
incentives for employers to hire and
retain employees with disabilities

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Genetic Testing

EEOC addresses genetic testing and its

discriminatory effects
Genetic Information Nondiscrimination
Act (GINA)
Prohibits employers from discriminating

because of genetic information

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Age Discrimination

Age Discrimination in Employment Act

(ADEA)
Protects 40 years and older employees from

employment discrimination based on age

Permits to bring disparate treatment and
harassment claims

Defenses
Termination based on a legitimate,

nondiscriminatory reason
Age is a BFOQ
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Sexual Orientation
Discrimination

Not protected by federal law

Employment Non-Discrimination Act
(ENDA)
Passed the Senate but not enacted

Certain states prohibit employment

discrimination based on sexual
orientation

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Gender Identity
Discrimination

Several states prohibit employment

discrimination based on gender
identity
Transgender discrimination complaints
are treated as sex discrimination
claims

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