PowerPoint Slides to Accompany

CONTEMPORARY BUSINESS
AND
ONLINE COMMERCE LAW
5th Edition
by Henry R. Cheeseman

Chapter 35
Equal Opportunity in
Employment
Slides developed by
Les Wiletzky
Wiletzky and Associates

Copyright 2006 by Pearson Prentice-Hall. All rights reserved.

Equal Opportunity in
Employment
The right of all employees and job
applicants:
1.
2.

To be treated without discrimination; and

To be able to sue employers if they are
discriminated against

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Equal Employment
Opportunity Commission
(EEOC)
The federal administrative agency
responsible for enforcing most federal
antidiscrimination laws
The EEOC is empowered to:
Conduct investigations
Interpret the statutes
Encourage conciliation between employees
and employers
Bring suit to enforce the law

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Title VII of the Civil

Rights Act of 1964
Intended to eliminate job discrimination

based on five protected classes:

1.

Race

2.

Color

3.

Religion

4.

Sex

5.

National Origin

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Scope of Coverage of Title

VII (1 of 2)
Title VII applies to:
Employers with 15 or more employees
All employment agencies
Labor unions with 15 or more members
State and local governments and their
agencies
Most federal government employment
Indian tribes and tax-exempt private clubs

are expressly excluded from coverage

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Scope of Coverage of Title

VII (2 of 2)
Title VII applies to any term, condition, or

privilege of employment including, but not

limited to:
Hiring and firing
Work rules
Promotion and demotion
Payment of compensation and benefits
Availability of job training opportunities

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Forms of Title VII Actions

Disparate
Disparate
DisparateTreatment
Treatment
DisparateImpact
Impact
Discrimination
Discrimination
Discrimination
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Procedure for Bringing a

Title VII Action
Private complainant must file a complaint

with the EEOC

The EEOC is given the opportunity to sue
the employer on the complainants behalf
If the EEOC chooses not to bring suit, it
will issue a right to sue letter to the
complainant
Complainant now has the right to sue the
employer
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Remedies for Violations of

Title VII
A successful plaintiff in a Title VII action

can recover back pay and reasonable

attorneys fees
The courts also have broad authority to
grant equitable remedies
A court can award punitive damages
against an employer in cases involving an
employers malice or reckless indifference
to federally protected rights
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Race, Color, and National

Origin Discrimination
Title VII was primarily enacted to prohibit

employment discrimination based on

race, color, and national origin
Race: refers to broad categories such as
Black, Asian, Caucasian, and Native
American
Color: refers to the color of a persons skin
National Origin: refers to the country of a
persons ancestors or cultural characteristics

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Sex Discrimination
Discrimination against a person solely

because of his or her gender

Applies equally to men and women
Overwhelming majority of Title VII sex
discrimination cases are brought by women

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Pregnancy Discrimination
Act (1978)
Amendment to Title VII
Forbids employment discrimination

because of pregnancy, childbirth, or

related medical conditions
Work rules that prohibit the hiring of

pregnant women violate Title VII

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Sexual Harassment

(1 of 2)

Refusing to hire or promote someone

unless he or she has sex with the

manager or supervisor is sex
discrimination that violates Title VII
Other forms of conduct, such as lewd
remarks, touching, intimidation, posting
pinups, and other verbal or physical
conduct of a sexual nature, constitute
sexual harassment and violate Title VII
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Sexual Harassment

(2 of 2)

Title VII prohibits sexual harassment that

causes a hostile work environment

The circumstances that create a hostile
work environment include:

Frequency of the discriminatory conduct; its

severity; whether it is physically threatening
or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employees work performance.

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The Reasonable Woman

Standard

In
In most
most cases,
cases, the
the courts
courts use
use aa reasonable
reasonable

person
person standard
standard toto determine
determine whether
whether certain
certain
conduct
conduct violates
violates the
the norms
norms ofof society
society

For
For cases
cases involving
involving sexual
sexual harassment,
harassment, several
several

courts
courts have
have adopted
adopted the
the reasonable
reasonable woman
woman
standard
standard

i.e., evaluating the severity and pervasiveness of sexual

i.e., evaluating the severity and pervasiveness of sexual

harassment
harassmentfrom
fromthe
theperspective
perspectiveofofthe
thevictim.
victim.

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Same-Sex Discrimination
The U.S. Supreme Court has held that

same-sex sexual harassment and

discrimination violate Title VII
Many state and local laws also prohibit

this form of discrimination and

harassment in the workplace

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Affirmative Defense in
Sexual Harassment Cases
The Supreme Court has determined that

an employer may raise an affirmative

defense against liability or damages by
proving two elements:
1.
2.

The employer exercised reasonable care to prevent

and correct promptly any sexual-harassing behavior
The plaintiff employee unreasonably failed to take
advantage of any preventive or corrective
opportunities provided by the employer or to avoid the
harm

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E-Mail Can Create a Hostile

Work Environment (1 of 2)
E-mail has increased the exposure of

businesses to sexual and racial

harassment
E-mail often sets the social tone of an
office and has been permitted to be
slightly ribald
At some point e-mail conduct becomes
impermissible and crosses the line to
actionable sexual or racial harassment
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E-Mail Can Create a Hostile

Work Environment (2 of 2)
E-mail differs from many other incidents of

harassment because it is subtle and

insidious
The standard of whether e-mail creates
an illegal hostile work environment is the
same as that for measuring harassment in
any other context:
The offensive conduct must be severe, and
Cannot consist of isolated or trivial remarks
and incidents

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Religious Discrimination
Title VII prohibits employment

discrimination based on a persons

religion or religious practices
Under Title VII, an employer is under a

duty to reasonably accommodate an

employees religious practices,
observances, or beliefs if it does not
cause an undue hardship on the employer
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Defenses to a Title VII

Action: Merit
Employers can select or promote

employees based on merit

Merit decisions are often based on work,

educational experience, and

professionally developed ability tests

To be lawful under Title VII, the

requirement must be job related

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Defenses to a Title VII

Action: Seniority
An employer may maintain a seniority

system that rewards long-term employees

e.g., higher wages, fringe benefits, and other

preferential treatment

Such systems are lawful if they are not

the result of intentional discrimination

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Defenses to a Title VII Action:

Bona Fide Occupational
Qualification
(BFOQ)

Employment discrimination based on a

protected class (other than race or color)
is lawful if it is:
Job related; and a
Business necessity

This exception is narrowly interpreted by

the courts
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Civil Rights Act of 1866

Section 1981 of the Civil Rights Act of

1866 expressly prohibits racial

discrimination
It has also been held to forbid

discrimination based on national origin

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Equal Pay Act of 1963

Protects both sexes from pay

discrimination based on sex

The act prohibits disparity in pay for jobs
that require:
Equal skill
Equal effort
Equal responsibility
Similar working conditions

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Criteria That Justify a

Differential in Wages
The Equal Pay Act expressly provides

four criteria that justify a differential in

wages:
Seniority
Merit
Quantity or quality of product
Any factor other than sex

The employer bears the burden of proving

these defenses
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Age Discrimination in
Employment Act (ADEA) of
1967
(1 of
2) discrimination in all
Prohibits
age
employment decisions, including:

Hiring
Promotions
Payment of compensation
Other terms and conditions of employment

The Older Workers Benefit Protection Act

(OWBPA) amended ADEA to prohibit age

discrimination with regard to employee
benefits

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Age Discrimination in
Employment Act (ADEA) of
1967
of 2) to employees who are 40
ADEA (2
applies
years of age and older
Covered employers cannot establish

mandatory retirement ages for their

employees
ADEA is administered by the EEOC
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Americans with Disabilities

Act (ADA) of 1990
The ADA imposes on employers and

providers of public transportation,

telecommunications, and public
accommodations to accommodate
individuals with disabilities
Title I of the ADA prohibits employment

discrimination against qualified individuals

with disabilities
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Title I of the ADA requires an

employer to make reasonable
accommodations to individuals
with disabilities that do not cause
undue hardship to the employer.

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Reasonable Accommodation
Under ADA
Reasonable accommodations may

include:
Making facilities readily accessible
Providing part-time or modified work
schedules
Acquiring equipment or devices
Modifying examination and training materials
Providing qualified readers or interpreters

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Qualified Individual with a

Disability
(1 of 2)

A person who, with or without reasonable

accommodation, can perform the

essential functions of the job that person
desires or holds

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Qualified Individual with a

Disability
(2 of 2)

A disabled person is someone who:

1. Has a physical or mental impairment
that substantially limits one or more of
his or her major life activities,
2. Has a record of such impairment, or
3. Is regarded as having such impairment

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Forbidden Conduct Under

Title I of ADA
Employers are forbidden from asking a

job applicant about the existence, nature,

and severity of a disability
Pre-employment medical examinations

are forbidden before a job offer

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International Reach of U.S.

Anti-discrimination Laws
Civil Rights Act (1991) protects U.S.

citizens (but not foreign nationals)

employed in a foreign country by U.S.controlled employers
Foreign operations not controlled by U.S.
employers are not covered
The law contains an express exception
that protects U.S.-controlled employers
from conflicting foreign laws
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Affirmative Action
Policy that provides that certain job

preferences will be given to minority or

other protected class applicants when an
employer makes an employment decision
Key issues:
Affirmative action plans
Reverse discrimination
Race norming

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State and Local Government

Anti-discrimination Laws
Many state and local governments have

adopted laws that prevent discrimination

in employment
Usually include classes protected by federal
equal opportunity laws
Also include classes of persons not protected
by federal laws

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