Chapter 43 Employment Discrimination Copyright © 2017 McGraw-Hill Education All rights reserved No reproduction or distribution without the prior written consent of McGraw-Hill Education Overview • LO43-1: When may an employee be legally fired? • LO43-2: What are the federal laws governing employment situations? • LO43-3: What are the legal requirements for a charge of sex discrimination? • LO43-4: What is the difference between discrimination based on disparate • • • • • • • treatment and discrimination based on disparate impact? LO43-5: What are the legal requirements for a charge of sexual harassment? LO43-6: What is Title VII, and what are the employers' defenses to a charge under Title VII? LO43-7: What are the legal requirements for a charge of age discrimination? LO43-8: What is the Equal Pay Act? LO43-9: May an employer discriminate on the basis of sexual orientation? LO43-10: May employers discriminate against smokers? LO43-11: May employers use social media in employment decisions? 43-2 Chapter 43 Hypothetical Case • Sherrod Alexander is excited about his employment prospects Via a job posting site, he found a human resource management position at a local home improvement store, Residence Repository USA, Inc With a master's of business administration (MBA) degree from the University of Florida and six years of experience in human resources with progressive advancement, Alexander believes he is the ideal candidate for the job He is proud of his career accomplishments thus far, particularly in light of the fact that he is only 29 years old Alexander reports to Residence Repository for his job interview, which is led by one of the company's lead recruiters, Nigel Hammond Alexander believes he performs well during the interview, outlining the many ways he would add value to the company He is troubled, however, by Hammond's closing statement: "Sherrod, I am impressed with your credentials I am a huge Gators fan, and I really believe your work experience is excellent, but to be honest, we are looking for an older person to fill this position This role involves direct supervision of 12 employees with an average age of around 35, and we believe a supervisor in his early- to mid-40s would receive quite a bit more respect I'm sorry, son, but you're just too darn young for this job." Residence Repository does not hire Alexander for the position; instead, the company hires a 43-year-old person with less formal education (a four-year business degree from a small college in upstate New York) and human resource-related work experience (five years) than Alexander • Alexander believes he is the victim of age discrimination He feels he has a viable claim against Residence Repository, Inc for refusing to hire him for the position Advise Alexander on the likelihood of winning such a lawsuit 43-3 Chapter 43 Hypothetical Case • Scooters Restaurant is a popular dive in Key Largo, Florida, with 29 employees It primarily attracts male bikers en route to sunny, subtropical Key West Although the testosterone-charged motorcyclists claim they stop at Scooters for its delicious buffalo wings and adult beverages, their wives and girlfriends believe the real reason they patronize the restaurant is the waitstaff Scooters only hires drop-dead gorgeous female waitresses ranging in age from 18 to 28, with uniforms of white, midriff-baring halter tops and key lime-green short shorts Male waiters need not apply at Scooters Five male plaintiffs who were denied waitstaff employment at Scooters have filed a civil lawsuit against the restaurant, alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964 The plaintiffs uniformly claim that although they were offered significantly lower-paying cook and dishwasher positions at Scooters, they were denied waitstaff positions on the basis of their gender The eatery has defended itself on the basis of the bona fide occupational qualification (BFOQ) defense The restaurant alleges that its female-only waitstaff hiring practice is reasonably necessary for the success of its business, based on the contention that its typical customer (a burly, bearded man in bike leather) expects to be served only by an attractive waitress • Is Scooters Restaurant liable for gender discrimination, or should the court accept the defendant's BFOQ defense? 43-4 Employment-at-Will • Means that any employee not employed under a contract/collective • bargaining agreement may quit for any reason/no reason at all, with no required notice to employer Also means employer may fire employee at any time, with no notice, for almost any reason 43-5 Federal Employment Laws • Provide minimum level of protection for employees • States may give employees more rights, but not less rights, than they have under federal law (federal supremacy) 43-6 Title VII of the Civil Rights Act (1964, Amended 1991) • Protects employees against discrimination based on: • Race • Color • Religion • National origin • Sex 43-7 Disparate-Treatment versus Disparate-Impact Discrimination • • Disparate-treatment discrimination: In all aspects of human resource management (hiring, firing, promotions, etc.), if candidate/employee discriminated against based on membership in a protected class, employee has actionable claim based on intentional discrimination Disparate-impact discrimination (also referred to as unintentional discrimination): Occurs when plaintiff establishes that while employer's policy/practice appears to apply to everyone equally, its actual effect is to disproportionately limit employment opportunities for a protected class 43-8 Requirements: Establishing Disparate-Treatment Discrimination Case • Plaintiff-employee must demonstrate a prima facie case of discrimination • Defendant-employer must articulate a legitimate, nondiscriminatory • business reason for the action Plaintiff-employee must demonstrate that the reason given by the defendant-employer is a mere pretext 43-9 Disparate Treatment and Disparate Impact: Burden-Shifting • • Disparate treatment (intentional discrimination) • • • Burden on employee-plaintiff: Demonstrate prima facie case of discrimination Burden on employer-defendant: Articulate legitimate, nondiscriminatory business reason for action Burden on employee-plaintiff: Show reason given by employer is mere pretext Disparate impact (unintentional discrimination) • • • Burden on employee-plaintiff: Establish statistically that rule restricts employment for those in protected class Burden on employer-defendant: Articulate why policy or practice is business necessity Burden on employee-plaintiff: Show that alleged business necessity is mere pretext 43-10 Sexual Harassment • Includes unwelcome sexual advances, requests for sexual favors, and other verbal/physical conduct of a sexual nature that implicitly/explicitly: • • • Makes submission a term/condition of employment Makes employment decisions related to individual dependent on submission to such conduct (quid pro quo sexual harassment) Has the purpose/effect of creating an intimidating, hostile/offensive work environment (hostile work environment sexual harassment) 43-11 Pregnancy Discrimination Act of 1987 • Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy 43-12 Defenses to Claims Under Title VII of The Civil Rights Act • Bona fide occupational qualification (BFOQ): Allows employer to discriminate in hiring on basis of sex, religion, or national origin (but not race/color) when doing so is reasonably necessary for performance of job • • Merit Seniority system legitimate if: • • • • System applies equally to all persons Seniority units follow industry practices Seniority system did not have its genesis in discrimination System maintained free of any illegal discriminatory purpose 43-13 May a BFOQ Be Based on … • Race? • Sex (i.e., gender)? • Religion? • Color? • National origin? • Customer preference? • Exception: Sexual privacy No Yes Yes No Yes No 43-14 Procedure for Filing a Claim under Title VII of the Civil Rights Act • Charge filed with EEOC • EEOC conciliation attempts • EEOC right-to-sue letter 43-15 Age Discrimination in Employment • • Age Discrimination in Employment Act of 1967 (ADEA): Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on basis of employee/applicant being age 40 or older Proving a prima facie case of age discrimination involving termination of employment: • Plaintiff must establish facts sufficient to create reasonable inference that age was a determining factor in termination; Plaintiff raises inference by demonstrating that he/she: • • • Belongs to statutorily protected class (those individuals 40 years old or older) Was qualified for the position Was terminated under circumstances giving rise to an inference of discrimination 43-16 Americans with Disabilities Act (ADA) • • • Americans with Disabilities Act (ADA): Prohibits discrimination against employees and job applicants with disabilities A disabled individual is defined for purposes of ADA as person who meets one of the following criteria: • • • Has a physical/mental impairment that substantially interferes with one or more major life activities Has a record of such impairment Is regarded as having such an impairment To bring a successful claim under ADA, plaintiff must show he/she meets all of the following: • • • Had a disability Was otherwise qualified for the job Was excluded from the job because of disability 43-17 Equal Pay Act of 1963 • Prohibits an employer from paying workers of one gender less than wages • paid to employees of opposite gender for work that requires equal skill, effort, and responsibility Defenses to an Equal Pay Act lawsuit: • Bona fide seniority system • Bona fide merit system • Pay system based on quality or quantity of production • Any other factor(s) other than sex 43-18 Employment Discrimination Internationally • Civil Rights Act of 1991 extended protections of Title VII and ADA to U.S • citizens working abroad for U.S employers These laws also apply to foreign corporations controlled by a U.S employer 43-19 Chapter 43 Hypothetical Case • Ben Kerrigan and Allison LaCroix have worked together for five years Although he has kept it to himself, Kerrigan adores LaCroix, hanging on every word she says and watching every move she makes Ben feels considerable guilt for his amorous emotions, since he has been married to his wife Jeannie for seven years, and since LaCroix is also married From LaCroix's perspective, her association with Kerrigan is purely professional, although she does consider him a dear friend She enjoys his sense of humor, shares with him many of her daily experiences, and seeks comfort from him when life is unkind On Friday morning, Kerrigan asks LaCroix to join him for a quick lunch He tells her, "You drive, and I'll buy." They choose a local delicatessen and are seated at a table for two Aware that life is short, and weakened by five years of keeping a torturous secret, Kerrigan confesses all to LaCroix over turkey subs and tomato soup Ben proclaims, "Allison, I am tired of living a lie You are not just the woman of my dreams, you are real, and I want you for my own I worship you, and I want to share my life with you You are the most beautiful and intelligent woman I have ever met, and I am willing to leave Jeannie for you I hate to hurt your husband, but I love you more than he does As far as work goes, we can try our best to keep it a secret; if not, I am willing to find another job Tell me how you feel, Allison." 43-20 Chapter 43 Hypothetical Case (cont'd) • At first, LaCroix is speechless Her face reddens and she finds the words: "Ben, I thought you were my friend, but instead, you are a lusty stalker I feel violated For crying out loud, Ben, we are both married Don't you understand the true meaning of family values?" LaCroix immediately rushes from the restaurant, and Kerrigan wonders if he has said too much The following Monday, Kerrigan is called into the office of his supervisor, Alex Friedman Friedman informs Kerrigan that, much to his regret, LaCroix has filed a sexual harassment claim against him, and that although she would like to resolve the matter internally, she will file a claim with the Equal Employment Opportunity Commission if the incident is not addressed satisfactorily Friedman has scheduled an internal hearing in two weeks The supervisor states that if LaCroix's claim holds, Kerrigan will be terminated in light of the company's zerotolerance anti-sexual harassment policy • Do Kerrigan's statements constitute sexual harassment? 43-21 Chapter 43 Hypothetical Case • George Ladoff is a frequent Facebook user He is an ardent supporter of a particular political party, and he has posted many comments deriding the candidates and platforms of the opposing political party Ladoff is interviewing for a position with a plastics recycling firm The firm's human resources director, Lorraine Feeley, has scanned social media to find out as much as she can about Ladoff before the firm makes him an offer Feeley doesn't like what she sees on Ladoff's Facebook page and determines that he will not be a good fit with the company She sends him a message letting him know the company has decided to go in a different direction • Is Feeley's research of Ladoff's social media accounts fair and legal? Is she discriminating against Ladoff on the grounds of his politics? 43-22 ... 43-5 Federal Employment Laws • Provide minimum level of protection for employees • States may give employees more rights, but not less rights, than they have under federal law (federal supremacy)... Burden on employer-defendant: Articulate why policy or practice is business necessity Burden on employee-plaintiff: Show that alleged business necessity is mere pretext 43-10 Sexual Harassment • Includes... position; instead, the company hires a 43-year-old person with less formal education (a four-year business degree from a small college in upstate New York) and human resource-related work experience