Employment And Labor Law

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Title VII of the Civil Rights Act of 1964

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Legislation that outlawed discrimination in terms and conditions of employment based on race, color, sex, religion or national origin

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disparate treatment

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When an employee is treated differently from others due to race, color, religion, gender or national origin. This is intentional discrimination in terms or conditions of employment.

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bona fide occupational qualification (BFOQ)

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An exception to the civil rights law that allows an employer to hire employees of a specific gender, religion or national origin when business necessity - the safe and efficient performance of the particular job - requires it

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business necessity

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The safe and efficient performance of the business or performance of a particular job requires that employees be of a particular sex, religion or national origin

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disparate impact

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The discriminatory effect of apparently neutral employment criteria. The discriminatory effect of apparently neutral employment criteria or selection devices. It does not require intention to discriminate on the part of the employer.

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Uniform Guidelines on Employee Selection Procedures

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Regulations adopted by the EEOC and other federal agencies that provide for methods of demonstrating a disparate impact and for validating employee selection criteria

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Four-Fifths Rule

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A mathematical formula developed by the EEOC to demonstrate disparate impact of a facially neutral employment practice on selection criteria

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content validity

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A method of demonstrating that an employment selection device reflects the content of the job for which employees are being selected.

Is the selection device or test an accurate sample of the job's requirements?

Employers need to show that the selection device or test reflects important tasks or aspects of the job.

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construct validity

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A method of demonstrating that an employment selection device selects employees based on the traits and characteristics that are required for the job in question

Does the selection device test for traits or characteristics essential for job performance?

Employers must show that they are accurately screening for constructs identified as essential for successful job performance.

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criterion-related validity

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A method of demonstrating that an employment selection device correlates with the skills and knowledge required for successful job performance

Does the employment test identify skills or knowledge necessary for successful job performance?

Employers must show that the test has a high statistical correlation between success on the test and success on the job.

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Equal Pay Act of 1963

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Federal legislation that requires that men and women performing substantially equal work be paid equally. Work is equal when male and female employees perform work involving equivalent skill, effort, responsibilities and working conditions.

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Lilly Ledbetter Fair Pay Act

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Statute that extends time in which an employee may file suit under several federal employment statutes

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Bennett Amendment

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The provision of Section 703(h) that allows pay differentials between employees of different sexes when the pay differential is due to seniority, merit pay, productivity-based pay, or a factor other than sex.

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comparable worth

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A standard of equal pay for jobs of equal value; not the same as equal pay for equal work

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Pregnancy Discrimination Act of 1978

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An act that amended Title VII to include pregnancy discrimination in the definition of sex discrimination

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sexual harassment

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Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that the employee is required to accept as a condition of employment, the employee's response to such conduct is used as basis for employment decisions, or such conduct creates a hostile working environment

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quid pro quo harassment

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Harassment where the employee's response to the harassment is considered in granting employment benefits

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hostile environment harassment

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Harassment which may not result in economic detriment to the victim, but which subjects the victim to unwelcome conduct or comments and may interfere with the employee's work performance

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English-only rules

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Employer work rules requiring that employees speak English in the workplace during working hours

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prima facie case

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A case "on the face of it" or "at first sight"; often used to establish that if a certain set of facts is proven, then it is apparent that another fact is established

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after-acquired evidence

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Evidence, discovered after an employer has taken an adverse employment action, that the employer uses to justify the action taken

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front pay

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Monetary damages awarded to a plaintiff instead of reinstatement or hiring

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Purpose of SEction 703(h) of the Civil Rights Act of 1963

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Immunizes employment actions taken pursuant to a bona fide seniority system

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To be bona fide within the meaning of Section 703(h), the seniority system:

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Must be neutral on its face-apply equally to all groups
Must have its origin free from intentional discrimination
Must have been negotiated and maintained free from intentional discrimination
Must have its basis be reasonable in light of industry practice

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To demonstrate retaliation under Title VII, plaintiffs must show what?

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They were engaged in an activity protected under Title VII or opposed to a practice prohibited by Title VII
They suffered an adverse employment decision or employment action
There was a casual link between the protected activity and the adverse employment decision

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gender stereotyping

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Occurs when a person is treated differently because he/she does not conform to the typical social norms expected of his/her gender

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sex-plus discrimination

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Occurs when a person is treated differently because of additional requirements beyond gender, such as refusing to hire women with preschool-aged children, but hiring men with preschool-aged children

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Family and Medical Leave Act

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Qualified employees may take up to twelve weeks' unpaid leave for the birth and care of a child, adoption or placement of a child into foster care, care for self or spouse or child or parent with serious health condition, or qualifying exigencies arising from the call to active military duty of a spouse, child or parent.

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When are employers liable for sexual harassment under Title VII?

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Employers are liable for employees acting in the course of their employment.
They are always liable for the actions of managers and supervisors.
They are liable for co-workers and non-employees if the employer knew or should have known about the harassment and fails to take action to stop it.

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When are individuals liable for sexual harassment under Title VII?

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Individual harassers are not liable for damages under Title VII. They may face damages under certain state EEO laws or common-law tort claims. Public employees may also be subject to criminal prosecution.

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Employer defenses to sexual harassment claims

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Prevention: Employers should have a policy that defines harassment, outlines penalties and procedures for filing complaints, and protects employees who file complaints from retaliation.
The conduct was aan isolated incident - not frequent or severe enough to cause unreasonable interference with work performance
Employee did not indicate that conduct was unwelcome
"Victim" provoked harassment through his/her own conduct

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Exceptions to discrimination based upon religion

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Constitution protections (First Amendment)
Religion as a BFOQ (Section703(e)(1))
Religions organizations (Section 702(a))
Religiously affiliated educational institutions (Section 703(e)(2))
Religious societies, corporations, associations (Section 702(a))

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Exceptions to discrimination based on age under the ADEA

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Age as a BFOQ
Actions under a bona fide seniority system or benefit plan
Actions based on a "reasonable factor other an age"
Executive exemption
State or local government firefighters or law enforcement officers can be required to retire at age 55

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contract compliance program

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Regulations which provide that all firms having federal government contracts or subcontracts exceeding $10,000 must include a no-discrimination clause in the contract.

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affirmative action plans

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Programs which involve giving preference in hiring or promotion to qualified female or minority employees

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Executive Order 11246

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Federal Contractors (>$10k) must agree not to discriminate on rage, color, religion, sex or national origin
Contractors with >$50k and 50+ employees must have a written affirmative action plan that assesses diversity of the workforce and sets goals and timetables to remedy any underutilization of women and minorities

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suspect class

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A basis of discrimination, classification, or differential treatment - such as race, color, gender, religion or national origin - by government action, for which there is little legitimate justification for treating persons because of such characteristics.

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strict scrutiny test

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A constitutional analysis used by courts hearing equal protection claims involving governmental discrimination based on a "suspect class." This test requires the government to demonstrate that the discriminatory treatment was necessary to achieve a compelling government purpose and that het governmental action was "narrowly tailored" to achieve the compelling purpose.

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non-suspect class

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A basis of discrimination, classification, or differential by government action which is neutral with regard to race, color, gender, religion or national origin, and which is related to legitimate government interests. Examples of non-suspect classes are age, veteran status, or personal achievement.

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honesty tests

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Employment tests used by employers as a screening device to evaluate employees or applicants on various workplace behaviors, such as truthfulness, perceptions about employee theft, admissions of theft, and drug use.