Discrimination Theories

Front 1

Discrimination

Back 1

Giving unfair advantage or disadvantage to members of a particular group in comparison to members of other groups.

Disadvantage (usually adverse impact) usually results in denial or restriction of employment opportunities or inequality in terms of benefits of employment.

Front 2

Employment Relationship

Back 2

-Employee vs. Independent Contractor
-Duties Employees Owes Employer
-Duties Employer Owes Employee
-General Rights of Employees
-Employment Contract
-Employment at Will

Front 3

Protected Group Members (PGM)

Back 3

-Race
-Color
-Gender
-National Origin
-Religion
-Aleutians, Pacific Islanders, Eskimos, Native Americans
-Disability
-Age >= 40
-Veteran's Status

What laws are the PGM covered?

-Race, color, gender, national origin, religion, Aleutians, Pacific Islanders, Eskimos, Native Americans are covered by Title VII under the CRA of 1964, 1991.

-Disability is covered under the Vocational Rehab. Act of 1972, ADA 1990, ADAA 2009 (Americans with Disabilities Act 1990 and Americans with Disabilities Act Amendment 2009)

-Age >= 40: ADEA (Age Discrimination in Employment Act)

-Veteran's status: VEVRA (Vietnam Era Veterans Readjustment Act)

Front 4

What connection does the theories of discimination, employment relationship, and protected group membership have?

Back 4

The connection is in order to understand employment discrimination you must have all three (PGM, employment relationship, theory/type of discrimination) and to look at these three from a federal law perspective

Front 5

Theories/Types of Discrimination

Back 5

-Continuation of Past Effects
-Retaliation
-Failure to Accomodate
-Disparate Treatment
-Adverse Impact

Front 6

Define disparate treatment discrimination

Back 6

Occurs when a person is treated differently because of that person's race, religion, sex or national origin.

Direct discrimination: intention, conscious cover or over act; prejudiced act.

Front 7

Continuation of Past Effects

Back 7

Maintaining in the present a policy, procedure or technique that maintains a historical pattern of discrimination

1) Word of mouth advertising
2) Dual salary structure

Front 8

Retaliation

Back 8

Coercion, intimidation or any other action directed against any person because he or she opposed discriminatory practices, made charges or any manner reguarding alleged unlawful discriminatory practices

Front 9

Failure to Accommodate

Back 9

Two protected groups are "owed" reasonable accommodation by the employee: Religious accommodation and disability accommodation. An employer could be guilty of discrimination if it refuses to make reasonable accommodation to the known physical or mental limitations or religious practices of an individual unless to do so would impose an undue hardship.

Front 10

Failure to accomodate continued (religion)...

Back 10

Religion-CRA 1964, 1991

Who is covered or to qualify for religious accommodation:

-Plaintiff must establish deeply held belief
-Must demonstrate the belief
-Must inform the employer
-Employer must accomodate or show undue hardship

Front 11

Failure to accommodate continued (disability)...

Back 11

Disability-under the ADA 1990

1.) A physical or mental impairment that has an impact on the life of the individual such as talking, sitting, standing, breathing, seeing, ADHD....

2) Record of the imparirment

3) Perceived as having an impairment

-GINA- Genetic Information Nondiscrimination Act (2008)

Physical/mental accommodations that would be made for someone that has a disability:
-workload
-provide additional technology or breaks
-Provide some assistance
-seeing eye dogs
-Rails
-Modify computer/desks

Front 12

Disparate Treatment

Back 12

-This kind of treatment is INTENTIONAL and the CRA to deal with.

There are two ways to prove disparate treatment discrimination:
-Percy Green proof- Percy Green vs. McDonnell Douglas
-Ann Hopkins Proof-Ann Hopkins vs. Price Waterhouse
-MUST establish a prima facie case under each proof

Front 13

Disparate Treatment continued (Percy Green Proof)...

Back 13

STEP 1:
First establish a prima facie:

1. Must be a member of a PGM
2. Must have applied for a job, promotion, raise, etc. for which qualified.
3. Must have been turned down/rejected
4. Continued to look for similar applicants or qualifications

STEP 2:
-Defendant rebuts- plausible reason

STEP 3:
-Plaintiff gives direct or comparative evidence and states that the defendant's plausible reason is pretext.

Afterwards, the court will decide...

Front 14

Disparate Treatment continued Dual Motive (Ann Hopkins Proof)

Back 14

STEP 1:
Must first establish a prima facie

1. Must be a member of a PGM
2. Denied some aspect of employment
3. Showed that the company used impermissable evidence

STEP 2:
Company (defendant) rebuts saying if they had used permissable evidence, they would have some decision or same results

STEP 3:
U.S. Supreme Court says no and CRA 1991 expressly forbids use of this defense.

Front 15

Adverse Impact

Back 15

1. Facially neutral policy
2. No intention to discriminate
3. Administered the same to everyone
4. Different outcomes

To establish a prima facie case:
1. PGM
2. 4/5's workforce utilization
3. (Step 2): Defendant rebuts-Business necessity
Step 3: Plaintiff-Alternate Method
Step 4: Courts decide

Front 16

Adverse Impact continued...

Back 16

# Hired/# Applied= Hiring Rate

100 jobs

Adverse Impact:

Asian: Applied: 300 Hired: 60---.20
Cacu.: Applied: 200 Hired 30---0.15
Afr. Am: Applied: 30 Hired: 4---0.13
Hisp. Applied: 50 Hired: 3---0.06
N. Am Applied: 20 Hired 3---0.15

*Hiring Rate of least hired groups must be >= 80% of hiring rate of highest hired group which in this case is the Asian group (.20)...so .20*.8= 160

Front 17

Workforce utilization

Back 17

Want the company to mirror whats in the labor force

Front 18

Relevant Labor Market (RLM)

Back 18

Geographical location from which it means business and practical sense to recruit and hire individuals

Factors that impact RLM:
-Training and experience
-Certification
-Licensure

Front 19

Basic defenses under adverse imapct

Back 19

-Job relatedness
-BFOQ
-Bona fide seniority system
-Testing
-Preferential treatment
-Veteran's preference rights are not repealed or modified in any way
-National Security