Fin240 Employment Discrimination Final Exam

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employment at will

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what it means is you don’t have a contract to work for…3-4 years. Some ECO have contract but not everyone. That means they can lay you off at any time for any reason provided that it’s not discrimination… even if you’re the best worker. It works both ways…they can lay you off in the low times, but in the good times, they can’t keep you if you don’t want to be there…you can find a better job.
Exceptions:
Imply contract

Public policy

“implied covenant of good faith and fair dealing” between employer and employee

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The traditional “American rule” of employment
-That a contract of employment for an indeterminate term is terminable at will by either party
-If the contract does not specify a length it can be terminated at any time for any reason
-Its fair because:
1.) The right of the employer to control his or her property and
2.) The grounds that it is fair because both employer and employee have the equal right to terminate the relationship

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employment at will; exception:

Imply contract

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there’s no contract, but the court might imply a contract. Ex. the employment paper said you’re a family. Or when there’s a layoff and the CFO tells an employee that he’ll always have a job at a party… but the company laid him off anyways…and he sued.

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employment at will; exception:

Public policy

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where the law creates a public policy where a company can not fire a whistle blower.

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An exception to the employment-at-will doctrine that makes it unlawful to dismiss an employee for taking certain actions in the public interest. (43 States)

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employment at will; exception:

“implied covenant of good faith and fair dealing” between employer and employee

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supposed your boss comes to you and said that you need to finish a project by the end of the month. He wants you do come in weekends and nights to finish the project for the good of the company. You say yes and worked hard then at the end, the boss said since you’ve down the job…you’re now fired cause he doesn’t need you. Is that fair? No, cause you went out of your way for the company…and it’s not fair…or good faith. California have this and some other states. This is a broad and confusing area

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An exception to the employment-at-will doctrine that is based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other. (11 States)

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equal pay act of 1963

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motivation for this was the fact that corporate America favor men more and they were getting paid more than women. Back then the culture saw that women were homemakers. Therefore, equal pay is for equal work. What is equal work? Looking at different perspective, skills. Do they have the same skills for the job. Say you’re gonna pay bobby to work on computers more because he has more skills…he’s a computer expert. Now if the job is running a forklift and giving bobby more money because he’s good at computer is wrong because the job has nothing to do with computers

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Equal work is based on four factors:
• SKILL- experience, education, training and ability required to do the job
• EFFORT- physical or mental exertion needed for performance of the job
• RESPONSIBILITY- measured by the economic and social consequences that would result from a failure of the employee to perform the job duties in question
• WORKING CONDITIONS- safety hazards, physical surroundings, and hours of empoyment

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equal pay act of 1963:

what does equal work mean

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Equal work means skills…but to specific job. Also… efforts… you’re gonna pay bob more because he can do more…say, he’s a wrestler and can pick up a lot of things; however, strength have to be related to the job. Or you could pay by responsibly. Also if the man works nigh shift…u can play him more, but you must offer the same deal to the woman. Can pay someone more for extra duties. However, say taking attendant at a meeting and getting paid $5000 is not okay.

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equal pay act of 1963:

defenses

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--Seniority system
--Merit system
--Factors other than sex
--Performance based

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equal pay act of 1963; defenses:

Seniority system

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lots of company have this… lets say we have a company that pays ppl who worked there more than 5 years get an increase and another increase for 10 years…etc. For a while they didn’t have any women…so now when the women works, they get pay less… is that unfair?? No…because it’s by seniority…it’s consistence.

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equal pay act of 1963; defenses:

Merit system

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paid on a salary base… let’s say there’s an assembly line and everyone gets pay at the same rate…but if you can inspect the widgets faster and more…you get more $$

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Civil Rights Act of 1964:

Title VIII (7)

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prohibits employers from hiring, firing , or otherwise discriminating in terms and conditions of employment, and segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex or national origin. (also imposes recordkeeping and reporting requirements (EEO-1))

It covers a lot… ex. segregate employees…two teams are separated…and one team is not doing well… if you’re on the team not doing well…then you will most likely not be promoted because the team is pulling you down… you’re lumped to the team and therefore discriminated.

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The statue that prohibits discrimination in hiring, firing, or other terms and conditions of employment on the basis of race, color, religion, sex or national origin
-15 or more employees and are engaged in a business that affects interstate commerce.
-also includes record keeping and reporting requirements on the employment agencies.

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Civil Rights Act of 1964: Title VIII (7):

EE0-1

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a form you have to fill out if you’re under title 7 regulation about your employees background…ex. what group your employee falls in…black/white..etc. And then group them into management vs. labors so that somebody at the equal employment commission can see the EE0-1 and see if there might be a problem. Ex. a company with 50/50 men and women, but in the management v. labor… it's 95/5… it doesn’t mean there’s discrimination… but an indicator where one can investigate.

one of the statue for small company where you can stay under the radar

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Civil Rights Act of 1964;

Proof in Employment Discrimination Cases

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1. Disparate Treatment (importance of the burden of proof at different stages)
2. Disparate Impact (“seemingly neutral policy has discriminatory effect) – using those statistics! [Fickling v. NY]
3. Harassment (quid pro quo and hostile environment)

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases:

Disparate treatment

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you individually have been discriminated…not a group…just you. How do you bring such case:
You have to prove a prima facie… in other words, it seem obvious on its face… how do you do that? Being the plaintiff you’ll have to prove that you’re in one of the protected classes. Ex. gender, race, national origin ..etc. there was a promotion and you didn’t get it. Now that you’ve proven the prima facie…it still doesn’t mean that you win the case…it just means that the evidentially burden now shifts to the employer to explain why you didn’t get the promotion. Evidentially burden is big…it usually stays with the plaintiff, but in this case…once you establish a prima facie the burden shifts to the employer… and it better be a non discriminator reason…this means that the employer have to keep good records…of why you didn’t get the promotion and why the other person did…ex. cause the other ppl has higher scores… better worker. Just because you’re a woman doesn’t mean you’ll get a preference what it means is that you cant be discriminated against. However, so many companies fall short of their record keeping and when they go to court…they have no prove as to why the other person got the promotion or why the plaintiff didn’t get the promotion. With no explanation…they’ll probably assumed you’re discriminating. Now supposed, the employer said that the woman didn’t get the promotion because she was absent most of the time… the plaintiff can defend this with pretext for discrimination …it’s an excuse… it’s not the truth cause the woman can prove that she’ve attend work everyday. Review of trial: a. burden starts with the plaintiff, then shifts to the defendant where they give a reason where it’s not discriminating, then shifts back to the plaintiff to show that the so called reason is a pretext for discrimination. It goes back and forth.

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occurs when one individual is treated less favorably than another because of color, race, religion, sex or national origin.
-The key in such cases is proving the employer’s unlawful discriminatory motive (prima facie case)
-For this case the plaintiff must establish:
1) The plaintiff is within one of the protected classes
2) He or she applied for a job for which the employer was seeking applicants for hire or promotion
3) The plaintiff possessed the minimum qualifications to perform that job
4) The plaintiff was denied the job or promotion
5) the employer continued to look for someone to fill the position

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases; Disparate treatment:

prima facie

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in other words, it seem obvious on its face… how do you do that? Being the plaintiff you’ll have to prove that you’re in one of the protected classes. Ex. gender, race, national origin ..etc. there was a promotion and you didn’t get it

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The key in such cases is proving the employer’s unlawful discriminatory motive

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases; Disparate treatment:

pretext for discrimination

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it’s an excuse for the company to say that it's not being discriminating but they really are. Plaintiff can use this by providing to the court with evidents that the defendant's reason was not true.

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases:

Disparate impact

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it’s a class action…where a facially neutral policy is really a pretext for discrimination…a policy that you have for example, if you want to be promoted from laborer to supervisor… the policy says that you have to have a high school diploma. Now lets say the job of the laborer is to push a wheelbarrow and the supervisor job is to keep track of wheelbarrows being dump… so all they have to do is check things off. The question is… does the supervisor job need high school?? Probably not… cause the job doesn’t need high school education.

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-Disparate Impact-cases in which the employer’s facially neutral policy or practice has a discriminatory effect on employees who belong to a protected class.

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases:

Harassment

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sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which explicitly or implicitly makes submission a term or condition of employment or creates an intimidating, hostile or offensive environment.

One of the distinction with hostile environment is that the employer isn’t automatically liable for the hostile working environment. So how does an employer avoid liability for someone in the working place… the employer is not liable if they take reasonable steps to prevent and correct the harassment behavior once they are aware of it. So how can they prevent such thing? Training… to let ppl know what’s acceptable and what’s not. Can also put up posters on bulletin not to harass employees…but that’s not enough…if you want to reach the employee… u’ll have to make a training. Secondly…once you find out… u have to correct it. How do you correct it??? You put up a system where ppl will not feel uncomfortable to talk to…need a neutral party…say in HR where ppl who feels harassed can go to.

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases: Harassment:

Quid pro quo

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indicates a more-or-less equal exchange or substitution of goods or services… sexual favors

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when a supervisor makes sexual demands on someone of the opposite sex and is perceived as a term or condition

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Civil Rights Act of 1964; Proof in Employment Discrimination Cases: Harassment:

Hostile environment

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a little hard to prove… because of the harassment, it’s difficult for the ppl to work…it’s uncomfortable. The court however, does not expect a perfect working atmosphere. However, there are limits for example….

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creates a hostile work environment

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Fickling v. NY

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Civil Rights Act of 1964: Disparate Impact

a mental institution where if you want to be promoted from trainee examiner to supervisor examiner you’ve to pass a test that composed of math skills and reading comprehension. That’s fair right? Well tests can be rigid if you want to discriminate. When looking at the job…it required a good social interaction with ppl… it’s an interviewing job… so then…do you need math to have this job??…No… therefore, it’s discriminating.

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Harris v. Forklift system

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Civil Rights Act of 1964: Harassment

Harris' boss used to say to her in front of ppl… “I need some change out of my pocket, could you get it for me.” then at another meeting he said “it’s about time for our annual review, let’s have it at a holiday inn this year.” this created a hostile working environment for her so she sued. The case went all the way up to the supreme court…So the question is…what is the limit? Judge O’connor said that it isn’t necessary that the female suffer a nervous break down and be hospitalized… all that is required is that it’s pervasive…there’s no escape from it and as a result you cant concentrate and cant do your job…therefore Harris won the case.

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(Sexual Harassment creating a Hostile Work Environment)- Harris was a manager for Defendant Company and was repeatedly insulted by defendant’s president and because of her gender subject to sexual innuendos. Asked to remove money from his pocket for him and they would negotiate salary at the Holiday Inn. Defendant won because the comments were not so serious as to severely affect her psychological well-being or to interfere with her work performance.

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Statutory Defenses to Title VII Action

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1. Bona Fide Occupational Qualification
2. Merit (criterion, content and construct valid)
3. Seniority System

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Statutory Defenses to Title VII Action:

Bona fide occupational qualification

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ex. if you want to be a flight attendant, you have to be 5’2” it uses to be that woman wasn’t as tall as man…so it could be a form of discrimination…but then flight attendant needs to reach the overhead compartment.
Another example…Working in the bank in San Diego and the job required you to be bilingual.

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the BFOQ defense allows an employer to discriminate in hiring on the basis of sex, religion, or national origin when such a characteristic is necessary for the performance of the job.

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Statutory Defenses to Title VII Action:

Merit (criterion, content and construct valid)

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unrelated to sex, gender, color…etc… perfectly valid as long as the merit is legitimate where the requirement is required for the job.

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Merit- most merit claims involve the use of tests. Using a professionally developed ability test, which is not designed, intended or used to discriminate is legal but must be manifestly related to job performance. Tests must have
-criterion-related validity (statistical relationship between test scores and objective criteria of job performance),
-content validity (isolates some skill used on the job and directly tests that skill),
-construct validity (wherein a psychological trait needed to perform the job is measured)

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Statutory Defenses to Title VII Action; Merit:

construct validity

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is psychological… where a person is psychologically equip. Ex. only women put cows to the side of the trailer…cause you need to be really patient and caring??…characters in which most men doesn’t have.

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wherein a psychological trait needed to perform the job is measured

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Statutory Defenses to Title VII Action; Merit:

criterion-related validity

*note: is on ppt slide but teacher didn't directly mention it

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statistical relationship between test scores and objective criteria of job performance

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Statutory Defenses to Title VII Action:

Seniority system

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where those who have been in the company for a long time gets priority

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in which employees are given preferential treatment based on their length of service. May perpetuate discrimination that occurred in the past. These cases are deemed unlawful if:
-The system applies equally to all persons
-The seniority units follow industry practices
-The seniority system did not have its genesis in discrimination
-The system is maintained free of any illegal discriminatory purpose

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five classes are protected under Title VII

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1) Race and color
2) National Origin
3) Religion
4) Sex
5) Pregnancy Discrimination Act

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Title VII Enforcement

*note: he didn't talk much about this...he spent about 30sec. on it.

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on ppt slide:
Aggrieved Party files a “charge” with EEOC
EEOC notifies alleged violator of the charge
EEOC investigates to determine whether reasonable cause to believe violation occurred.
If reasonable cause, attempt to resolve through conciliation
If conciliation fails party may file suit in federal district court (“right to sue letter”)

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• The Charge- file a charge (sworn statement)with the state agency responsible for enforcing fair employment laws (a state EEOC) or if no such agency exists with the federal EEOC
• Conciliation and Filing Suit- once EEOC receives the charge, it must notify the alleged violator of the charge within 10 days then the EEOC investigates the matter. If EEOC decides not to sue it notifies the plaintiff of his or her right to file an action and issues the plaintiff a right-to-sue letter.

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Age Discrimination Act of 1967

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similar to Title VII except that it pertains to age (disparate treatment or impact based on age – 40+)

To prove a prima facie case:
40+
Qualified for position held
Terminated
Replaced with younger person

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-Prohibits employers from refusing to hire, discharging, or discriminating against people in terms of conditions of employment on the basis of age.
-Applicability of the statute- applies to companies with twenty or more employees and that affects interstate commerce. It also applies to unions that have at least 25 members or operate a hiring hall.
-Proving Age Discrimination-proved in the same ways that discrimination is proved under the Title VII: by the plaintiff showing disparate treatment or disparate impact. For a prima facie case of age discrimination involving a termination the plaintiff must establish facts sufficient to create a reasonable inference that age was a determining factor in the termination. Must show that he/she:
-Belongs to the statutorily protected age group (40+)
- Was qualified for the position held
- Was terminated under circumstances giving rise to an inference of discrimination

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Age Discrimination Act of 1967:

Statutory Defenses

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Bona Fide Occupational Qualification-requires the defendant to establish that he or she must hire employees of only a certain age to safely and efficiently operate the business in question
-Executive exemption- exemption to the ADEA that allows mandatory retirement of executives at age 65
-After-Acquired Evidence of Employee Misconduct-

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Western Airlines v. Criswell

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Age Discrimination Act of 1967

airline let pilot go at a certain age because they assumed that once a person reached a certain age, they'll have a hard time flying…is it right? NO…they have to give them a test.

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Reeves v. Sanderson Plumbing

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Age Discrimination Act

they wanted to get rid of Reeves. He has been with Sanderson Plumbing for a long time. They wanted to get rid of them so they said because of absentee. However, reeves prove pretext for discrimination that what they said about him was not true. Since he was able to prove it…he won the case

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Civil Rights Act of 1964:

Review of trial...what happens in a trial dealing with civil rights act of 1964.

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Review of trial:
a. burden starts with the plaintiff
b. then shifts to the defendant where they give a reason where it’s not discriminating
c. then shifts back to the plaintiff to show that the so called reason is a pretext for discrimination

It goes back and forth.

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Americans With Disabilities Act of 1991

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it means that you have to hire disable ppl. If they can do the job with reasonable accommodation…u’ll have to hire them. Ex. of not discrimination.. there’s a job for administrator position where the person will need to type a lot. Now there’s a disable person and he can type faster than the normal person… the company hires the normal person…and it’s okay… not discrimination. You can design tests…but be aware…test can be rigid to discriminate.

What is reasonable accommodation mean? It means that you don’t have to remake your office for an employee…but it does mean that you have to make some kind of accommodation. For example… a wheel chair ramp. Or a fat person can’t type because they have fat fingers…can you hire someone else or can accommodate them? You could buy a keyboard with big buttons. It’ll cost you some money… but u’ll accommodation.

What if someone is epileptic? How can you accommodate that person? They can work for an hr. sleep then work again.

applies to all employers with 15 or more employees
Purpose: prevent employers from discriminating against employees and applicants with disabilities by requiring employers to make reasonable accommodations to the known physical or mental disabilities of an otherwise qualified person – unless the effect would be to impose an undue burden on the employer’s business.

“Disability” –
1) a physical or mental impairment which substantially limits one or more major life activities,
2) a record of such impairment, or
3) being regarded as having such impairment.

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Intended to prevent employers from discriminating against employees and applicants with disabilities by requiring employers to make reasonable accommodations to the known physical or mental disabilities of an otherwise qualified person with a disability unless the necessary accommodation would impose an undue burden on the employer’s business.
-Covers all employers of 15+ persons
COVERED INDIVIDUALS
1) One who has a physical or mental impairment, which substantially limits one or more of such person’s major life activities.
2) A record of such impairment
3) Being regarded as having such an impairment
- Covers people with cancer, epilepsy, heart disease, HIV, blind, deaf, former alcoholics and drug users people with mental disabilities, intellectual disabilities
- Typical accommodations include providing a private office, flexible work schedule, restructured job, or time off for treatment.
-a person is considered to have an intellectual disability when
1) the person’s intellectual functioning level (IQ) is below 70-75
2) the person has significant limitations in adaptive skill areas (refers to the basic skills needed for every day life and includes communication, self-care, home living, social skills, leisure, health, and safety, self-direction, functional academics and work) as expressed in conceptual, social and practical adaptive skills
3) the disability originated before the age of 18
-a major difficulty employers face under the ADA is ensuring that they do not violate the law during the interview process. The EEOC issues guidelines to help. Questions need to be designed to focus on whether a potential employee can do the job, not on the disability, but its hard to know what violates the act. (violating these rules could mean substantial liability)