Final Material - Chapter 20

Front 1

True or False: Title VII applies to employers with 15 or more employees

Back 1

True

Front 2

What is the purpose of the Civil Rights Act of 1964

Back 2

Purpose: to eliminate job discrimination based on race, color, religion, sex, or national origin in connection with:

Refusal to hire
Compensation
Terms, conditions, or privileges of employment
Discharge

Front 3

True or False: Sexual orientation is federally protected.

Back 3

False; Sexual orientation is not federally protected.

Front 4

List the exception to the Civil Rights Act of 1964

Back 4

Exception: Employers can discriminate on the basis or religion, sex, or national origin (*not race or color) where there is a “bona fide occupational qualification” (BFOQ) which is reasonably necessary to normal business operations

• Employment agencies are prohibited from either failing to refer or from actually referring an individual for employment on the basis of race, color, religion, sex, or national origin.

Front 5

True or False: Title VII permits discrimination if it results unintentionally from a seniority or merit system.

Back 5

True

Front 6

Name the enforcement commission created by the Civil Rights Act of '64.

Back 6

Equal Employment Opportunity Commission (EEOC).

• Agency has the primary responsibility of enforcing the provisions of the act.

2. An employee must file charges of illegal discrimination within 180 days after the unlawful practice occurred

3. After exhausting efforts to settle the claim, the EEOC can file a suit in federal court and represent a person charging a violation of the act

Front 7

What happens when the EEOC fails to act?

Back 7

4. If the EEOC fails to act, the employee may file suit in federal court against the employer

Front 8

What does a plaintiff need to prove to prevail under Title VII.

Back 8

- Actions by the employer were likely based on an illegally discriminatory basis

- Plaintiff must prove either:
Disparate Treatment or Disparate Impact

Front 9

Define Disparate Treatment.

Back 9

that the employer intentionally discriminated against the plaintiff.

o One individual being singled out. (or a small amount of individual).

Front 10

Define Disparate Impact.

Back 10

that the employer’s policies had a discriminatory effect on a group protected by Title VII

o Culling out a whole group of people. (black firefighters did not get promotion but whites and hispanics did). No other groups are using such a test… than its not justifiable. Whenever there is a test that culls out another group than there may be an issue of disparate impact.

Front 11

How can an employer defend against claims regarding the civil rights act?

Back 11

Employer can state that it was a business necessity.

The employer must prove that the policies used on the job are job related and based on business necessity.

Prove that it was job related.

Front 12

Define the claim of retaliation.

Back 12

it is illegal for an employer to retaliate against employees for making discrimination charges, giving testimony in a retaliation case, or participating in a discrimination investigation.

EX: Firing employees or transferring them to less desirable jobs.

Front 13

Remedies from claims:

Back 13

- Reinstatement with back pay;
- Injunctions against future violations
- Attorney’s fees and costs (don’t come with torts)
- If the employer is guilty of intentional discrimination, the employee may be awarded:
- Compensatory damages, including damages for pain and suffering

- Punitive damages up to $300,000 per person if the defendant acted with Amalice or with reckless or callous indifference to the federally protected rights of others (300k cap)

Front 14

What are examples of practices found to violate the Title VII:

Back 14

- Permitting racial insults in the workplace
- Maintaining all-white or all-black crews for no demonstrable reason
- Providing better housing for whites than blacks
- Granting higher average Christmas bonuses to whites than blacks

Front 15

True or False: Title VII prohibits discriminatory employment practices based on race or color that involve recruiting, hiring, and promotion of employees. Intentional discrimination is illegal, policies with disparate impact are also forbidden.

Back 15

True;

Front 16

Define 'Reverse Discrimination'

Back 16

damages may be awarded to white employees who are discriminated against when minorities or women with lower qualifications or less seniority are given preference

Front 17

Purpose of the prohibition of discrimination on the basis of national origin.

Back 17

To protect ethnic groups in the workplace.

Language issues: a requirement that employees speak some english may be a BFOQ.

Front 18

True or False: Religious corporations, associations, and societies can discriminate in employment practices on the basis of religion (but not on the basis of race, color, sex or national origin).

Back 18

True; Other corporations must make reasonable accommodations to the religious needs of their employees if it does not result in undue hardship to them

Front 19

List some general classic examples of illegal sex discrimination.

Back 19

- classifying or advertising jobs as male or female, unless sex is a BFOQ
- requiring female airline attendants to be single
- hiring only women to be airline flight attendants
- rule against hiring females with preschool-age children
- a telephone company policy against hiring females as switchers because of the alleged heavy lifting involved on the job.

Can't discriminate on gender unless it is a BFOQ (i.e. going off of a "theme")

Front 20

List the two forms of sexual harassment.

Back 20

1) Quid Pro Quo (this for that) - when an employee is promised benefits or is threatened with loss if he or she does not give sexual favors to an employment supervisor

2) Hostile Work Environment - an environment where co-workers make offensive sexual comments or propositions, engage in suggestive touching, show nude pictures, draw sexual graffiti.

Front 21

True or False: Title VII prohibits an "an offensive or hostile working environment" even when no economic loss occurs (meritor case)."

Back 21

True; - If the hostile environment seriously affects [the employee's] psychological well-being or causes injury, it is actionable
- It includes any harassment reasonably perceived as “hostile and abusive”

- Moreover, under the Supreme Court case Harris v. Forklift Systems, illegal sexual harassment includes any harassment perceived as hostile and abusive

Front 22

When is an employer liable for hostile or abusive sexual harassment?

Back 22

only when the employer knows of the problem and fails to take prompt and reasonable steps to correct it (such as by moving harassers away from the plaintiff employee).

Front 23

How can an employer defend himself against sexual harassment claims?

Back 23

An employer can defend itself by proving:

(i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and


(ii) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.

Front 24

Define the Pregnancy Discrimination Act

Back 24

- Employers can no longer discriminate against women workers who become pregnant or give birth

- Employers with health or disability plans must cover pregnancy, childbirth and related medical conditions in the same manner as other conditions are covered

- Employers cannot force a pregnant woman to stop working until her baby is born (as long as she can still perform her duties properly)

- Employer cannot specify how long a leave of absence must be take after childbirth

- Law applies to married and unmarried pregnant women

Front 25

Define the Equal Pay Act of 1963

Back 25

prohibits an employer from discriminating on the basis of sex in the payment of wages for equal work: “Equal pay for equal work”

- “Equal” means that they require “equal skill, effort and responsibility and must be performed under similar working conditions”

- Equal does not mean identical; it means substantially equal

Front 26

True or False: thus far, courts have not interpreted Title VII to prohibit discrimination against employees based on sexual orientation

Back 26

True; • The courts have not interpreted Title VII to prohibit discrimination against employees based on their sexual orientation, or whether they are gay, lesbian, bisexual, or heterosexual.

Front 27

What are other employment practices that may be challenged?

Back 27

Employment practices that employees or job applicants may challenge as discriminatory:
Setting testing and educational requirements, having height and weight requirements for physical labor, maintaining appearance requirements, practicing affirmative action, using seniority systems

Front 28

How should an employer go about avoiding liability with Questionnaires, Interviews, testing, and Educational Requirements?

Back 28

- To avoid liability, employers should make sure that all testing and educational requirements are job related and necessary to the business

- Note that some tests and requirements can have a disparate impact on job applicants on the basis of race, sex, color, religion or national origin

Front 29

True or false: Minimum and maximum height or weight requirements apply equally to to all applicants.

Back 29

True; if there's a disparate impact, employer must demonstrate that such requirements must validly relate to the ability to perform the work in question.

• If they have the effect of screening out applicants on the basis of race, national origin, or sex, the employer must demonstrate that such requirements are validly related to the ability to perform the work in question.

Front 30

True or False; Grooming standards may or may not be legal

Back 30

True; Is there a business necessity?

• Motivation for these rules stems from the feeling of the employer that the image it projects to the public through its employees will be adversely affected if their appearance is not “proper.”
• The burden of proof in a disparate impact case requires the employer to prove that appearance is a business necessity.

Front 31

Define 'Affirmative Action'

Back 31

- Affirmative Action: “positive steps taken in order to alleviate conditions resulting from past discrimination or from violations of a law”

• Affirmative action requirement means that federally contracting employers must actively recruit members of minority groups being underused in the workforce.
o Employers must hire members of these groups when there are fewer minority workers in a given job category than one could reasonably expect, considering their availability.

Front 32

Define 'Reverse Discrimination'

Back 32

• Reverse discrimination – when minorities or women with lower qualifications or less seniority than white males are given preference in employment or training.
• Firing white employees and replacing them with African Americans.

Front 33

Define the role of seniority systems

Back 33

- Give priority to those employees who have worked longer for a particular employer or in a particular line of employment of the employer

- Last hired, first fired (result of seniority)

Front 34

Define the Civil Rights Act of 1866 - Section 1981

Back 34

provides that all persons . . . shall have the same right to make and enforce contracts . . . as enjoyed by white citizens (1981 only applies to customers… not employees)

Some courts have interpreted Section 1981 as giving a private plaintiff most of the same protections against racial discrimination as the 1964 Act

Only applies to racial discrimination.

Front 35

Advantages to the Section 1981 (Civil rights act of 1866)

Back 35

- there are no procedural requirements (no need to file a claim with the EEOC); can sue immediately
- courts can award unlimited compensatory and punitive damages
- there are no caps

Front 36

Define the ADEA (age discrimination in employment act)

Back 36

- Prohibits employment discrimination against employees 40 and older

- Prohibits mandatory retirement
- Exception: bona fide executives and high policy makers of private companies can be forced into early retirement

- Exception: if age is a BFOQ
• Invalidates retirement plans and labor contracts that violate the act.

- **Cannot bring an action v. state for damages under this federal law (there may be state law protection for age discrimination).

Front 37

Remedies for violation of ADEA

Back 37

- reinstatement or front pay for future earnings
- back pay
- injunctions
- attorney’s fees

Front 38

Define Discrimination on the Basis of Disabilities and the Americans with Disabilities Act (ADA)

Back 38

The ADA prohibits employer discrimination against job applicants or employees based on:
1) their having a disability
2) their having a disability in the past
3) their being regarded as having a disability

Front 39

What is protected as a disability?

Back 39

Any physical or mental impairment that substantially limits one or more of an individual’s major life activities.

Physical and mental impairment includes phsical disorders or conditions, disease, disfigurement, amputation affecting a vital body system, psychological disorders, mental retardation, mental illness, and learning disabilities.

Front 40

What is a "major life activity?"

Back 40

Any physical or mental impairment that substantially limits one or more of an individual’s major life activities.
Physical and mental impairment includes phsical disorders or conditions, disease, disfigurement, amputation affecting a vital body system, psychological disorders, mental retardation, mental illness, and learning disabilities.

Front 41

Give examples of issues that would not be protected as a disability.

Back 41

Not protected as “disabilities”: homosexuality, sexual behavior disorders, compulsive gambling, kleptomania, disorders resulting from current drug or alcohol use
• Employees who have successfully recovered or are successfully recovering from dug or alcohol disabilities are protected from employment discrimination.

Front 42

Is AIDS protected as a disability? Yes or No.

Back 42

Yes; • Employee who has it is disabled. Disabled in the sense that others’ fear of them can interfere with their ability to work, which is a major life activity.

Front 43

Define a Qualified Disabled.

Back 43

- “Qualified Disabled” means those with a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job position

Front 44

What are remedies for the ADA

Back 44

- ADA Remedies:
- hiring
- reinstatement
- back pay
- injunctive relief
- compensatory damages*
- punitive damages*
* these damages are for intentional discrimination, not disparate impact

• Compensatory and punitive damages are not available for policies that merely have disparate impact. Available for intentional discrimination and for other employer actions such as failing to make reasonable accommodation for know job applicant or employee disabilities.

Front 45

Explain the GINA act.

Back 45

Genetic Information Nondiscrimination Act (GINA)
- Effective November 2009 – prohibits covered employees from firing, refusing to hire, or otherwise discriminating against individuals on the basis of their genetic information or a family member’s genetic information.

- Covered Employees are those employees who are covered under Title VII