1
Q
Civil Rights Act History
A
1963, the year before this law was passed. John F. Kennedy is the president in 1963, lifelong democrat, from the north, from a very powerful political family. Lyndon B. Johnson is the vice president – he knew that southerners are not as in favor of giving civil rights as northerners. Kennedy was in Dallas, TX on a campaign trail to try to garner support for this bill when he was assassinated. This bill was passed quickly after his assassination (more so than it might have had he not died) – a positive from the situation.
2
Q
Protected Classes Under Title VII and the Civil Rights Act of 1964
A
1.Race
2.Color
3.National Origin
4.Religion
5.Sex/Gender
3
Q
Titles
A
TITLE I – Voting Rights
TITLE II – Public Accommodations
TITLE IX – Educational Opportunities and Activities
TITLE VII – EMPLOYMENT
4
Q
Title VII of the CRA prohibits discrimination in the entire employment arrangement including:
A
hiring, firing, promotions, disciplinary procedures, benefits, etc. (more than just hiring or firing!!! Discrimination can occur at all levels of employment)
5
Q
Employer must have 15 or more employees before they can be sued for violation of CRA – Title VII
A
-Interstate commerce is effected with 15 or more employees
-Not hugely relevant in real life – tricky for tests
-TX State laws doesn’t have a threshold in the Texas Human Rights Act
6
Q
Anti-retaliation Provisions
A
- If you as a worker are using the rights afforded to you at law, and are given negative treatment, that is retaliation (retaliation is not allowed)
7
Q
Remedies to Title VII
A
Statutory damages (back pay, etc.) reinstatement, retroactive seniority, etc. attorney’s fees, costs of court, and if the discrimination is intentional compensatory and punitive damages (subject to caps except in a race case)
- Very attractive to the plaintiff
8
Q
Procedures under Title VII
A
Employee must file claim with the EEOC first
9
Q
EEOC
A
The gate keepers of discrimination claims, before you can file a discrimination case in court, you have to go through the EEOC
10
Q
Proof of exhausted EEOC procedure:
A
- EEOC files the case on your behalf
- EEOC issues you a right to sue letter
11
Q
If the EEOC doesn’t take your case does it mean that you don’t have a “good” case?
A
No. The EEOC is an agency and has limited resources
12
Q
What does Griggs v. Duke Power teach?
A
Supreme court says the CRA prohibits not only overt discrimination, but also practices that are fair in form but discriminatory in operation
13
Q
Griggs v Duke Power
A
- Gives us a different perspective on discrimination
- Unintentional forms of discrimination was not covered prior to this case
- Duke Power, prior to 1964, had a policy that if you were African-American, they would hire you, but you had to work in the labor department, and that is all (manual, custodial jobs, etc.)
- New policy after Civil Rights Act: to be hired in any department except the labor department, you must have a high school diploma, and need to pass two generalized knowledge tests
- Mr. Griggs sues Duke Power because there was a gap between African-American and the general public in education – they cannot pass the tests
14
Q
Does Griggs v Duke Power prevent employers from using educational tests in the interviewing process?
A
This case is not saying that you cannot have educational requirements for a job, employer has the burden to show that the policies in place are connected to the job
15
Q
Disparate Treatment (Intentional) Plaintiff’s Burden of Proof
A
- Plaintiff is a member of a protected class;
- Plaintiff applied and was qualified for the job;
- Plaintiff was rejected by the employer;
- Employer continued to seek applicants for the position or filled the position with a person not in a protected class
16
Q
If the plaintiff meets the burden of proof, the plaintiff still may not win
A
If the employer can justify what has gone on as non-discrimination, the plaintiff cannot win, the employer has the opportunity to defend themselves
17
Q
Disparate Treatment (Intentional) Employer’s Burden of Proof
A
Legitimate reason for not hiring a plaintiff:
- More experience, better performance reviews, etc.
- BFOQ: a protected class trait is essential for the job (GENDER AND RELIGION)
18
Q
If a Catholic Church is hiring a new priest do they have to hire a Baptist pastor that applies?
A
No. They can hire a Catholic Priest. BFOQ.
19
Q
Maximum security male only prison…
A
Women cannot be guards. Women win the prima facie case, BUT employer argues that they are more likely to be attacked because the sex offenders, if the women were attacked more guards would be at risk, inmates are at risk if that were to happen. The employer can prove that the BFOQ guards need to be men.
20
Q
Bryan police department is hiring. Weight requirement: 185 lbs. Would the weight requirement have an unintentional impact on a protected class?
A
Yes: women. Weight requirement is a neutral policy, applied neutrally, but a significant adverse effect on women. Good argument. Employer would argue “job related reason” (not saying you win the argument, but best argument)
- To take down criminals you need to be a larger person
21
Q
Disparate Impact (Unintentional) Prima Facie Case
A
Plaintiff proves
1. The employer has a facially neutral employment practice or job requirement;
2. Policy is neutrally applied; and
3. Policy has a significantly adverse impact on a protected class
22
Q
Disparate Impact (Unintentional) Employer’s Burden of Proof
A
- Job-related reason
- Business necessity
- Insubordination
- Lack of work experience
- Seniority system
23
Q
Can an employer use the defense that they did not intend to discriminate?
A
NO
24
Q
Mr. Gregory is a sheet metal worker. He has applied to work at litom systems. The application asked “have you ever been arrested?” – and then another blank on “how many times?” Mr. Gregory says “Yes” and “14 times” the employer sees that and was not hire. Is this discrimination?
A
YES. African-American males are more likely to be arrested than anyone else. Arrests are not the same things as convictions, you could be arrested and still be innocent. Mr. Gregory won the case. EEOC came out with a position that asking about arrest records on a intro application is PER SE DISCRIMINATION.
25
Chang v AAMU
Prima Facie:
1. Member of a protected class
2. Qualified for the job
3. Suffered adverse employment action
4. Replaced by someone outside his protected class (Non-Asian)
BOP to AAMU
- Chang argued with a VP and refused to comply with her instructions
- Legitimate firing - INSUBORDINATION (not liable for discrimination)
26
Race
Interpreted broadly to apply to the ancestry or ethnic characteristics of a group of persons, such as Native Americans
27
National Origin
Refers to discrimination based on a person's birth in another country or ancestry or culture, such as Hispanic
28
English Only Policies
policy that the only language that can be spoken in the workplace is English. EEOC says that if you have an (absolute) policy that says “ONLY English at ALL times” that is disparate treatment.
29
Reverse Discrimination
Prohibited by Title VII. Discrimination against members of a majority group (out of favor term)
White men winning cases
30
Religious Discrimination - Accommodation by Employer
The employer must accommodate the employee's religious observances, practices, and beliefs, unless it would be an undue hardship on the employer
31
Employer's obligation is to offer an accommodation that removes the conflict between religion and the job. Does the employer have to give an employee EVERYTHING that they ask for?
No. They just need to REASONABLY accommodate.
32
Accommodations are balanced against an Undue Hardship
Employer doesn't have to put an undue hardship on the business
33
Manager at a AT&T kiosk at the mall. The manager is required to work on the weekends. He has converted to a 7th day Adventist. He goes to his employer and says that he cannot work on Saturday’s because of his religion. 2 suggestions: you can take a demotion, or you can stay a manager and rotate with other managers and not have to work every Saturday. He was fired after not showing up. Is this religious discrimination?
The court sided with the employer, they offered solutions – the employer cannot actually accommodate. Any accommodation at all would have been an undue hardship for them.
34
Undue Hardship
(generally viewed by the courts) excessively expensive to do, causing the employer to violate their own personnel policies, causing the employer to violate the law.
35
Gender discrimination is a court creation.
In the proposed bill, gender was not a protected class. After the assassination of Kennedy, gender was added to the Civil Rights Bill (added as a writer) as a protected class.
36
Discrimination based on Sex/Gender
1. Employers cannot classify jobs as male/female unless gender is a BFOQ
2. Height, weight, physical ability requirements can have disparate impact on women
3. But, is it discrimination to have separate physical ability standards for men and women?
37
Traditionally “sex” is interpreted to be the plain meaning of the word – biological sex. Being discriminated against because of sex… because the plaintiff is a man/woman. Routinely referred to today as “gender.”
- Right after COVID happened, Bostock v Clayton Co, Georgia
- Sexual preferences are protected under the Civil Rights Act as of 2020
38
Bauer v Lynch
A practice is discriminatory when, but for a person’s sex, their treatment would have been different. A practice is not discriminatory if it applies an equal burden of compliance to both sexes. The Court then reasoned that men and women are physically different, and thus a man and a woman who are equally fit may show different results on a fitness test. Thus, a fitness test would discriminate on the basis of sex if it asked men and women to demonstrate different levels of fitness. On that basis, the Fourth Circuit held that the equally burdensome test of Gerdom was the correct test to apply to the PFT. The Fourth Circuit thus vacated the district court’s grant of summary judgment to Bauer, and sent the case to lower courts for reconsideration.
39
Can employers have separate seniority lists?
NO, but you could have a single seniority list that has the EFFECT of promoted men over women or vice versa (not discriminatory)
40
Brinkley v. Harvey REC Center
"A differential based on any other factor than sex"
Brinkley is the general manager for the REC center. She’s paid $50,000. She has worked there a year and in that year the club has lost $160,000, which is not happy. They offer her a demotion to the restaurant, she refuses the demotion, and they fire her. They offer a male the job for $75,000. She proves discrimination. Burden shifts to the employer. The male has 11 years of experience at the REC center (where he was making $74,000). Employment history and salary history. The employer wins the case.
41
Pregnancy Discrimination Act of 1978
Amended Title VII. Expanded the definition of gender discrimination to include discrimination based on pregnancy, child birth or related medical conditions
42
Is the Pregnancy Discrimination Act of 1978 an affirmative action to give benefits to pregnant women?
No
43
Discrimination
Treating someone differently based on unfair conditions
44
Pregnancy Discrimination Disabled Policy Example
If you are disabled while pregnant and the employer does not have a disability policy, they don’t have to give you disability benefits. But if the employer does have a policy and don’t give you benefits if disabled while pregnant, they are entitled to give you the benefits.
45
Peggy Young is a UPS driver. To be a UPS driver you have to be able to lift 70 lbs. Half way through her pregnancy, the doctor tells her that she cannot lift more than 20 lbs. The supervisor decides she is no longer qualified to be a driver. UPS has a light duty for injury categories. The supervisor does not offer the light duty assignment. Is this pregnancy discrimination?
Yes. She won the claim.
46
Equal Pay Act of 1963 (Amendment to the FLSA)
Requires equal pay for male and female employees working at the same establishment doing similar work. ONLY GENDER!
47
Substantially Equal Test
Jobs do not have to be identical, just “substantially equal” for the Act to apply. Courts look at job content, not the job description in applying the test.
48
4 exceptions: apply under CRA Title VII cases
BOP For Employers fighting Wage Discrimination claims
B1. Seniority system
2. Merit system: promoting based on merit (evaluations)
3. A system that measures earnings by quantity/quality of production; OR
4. A differential based on any factor other than sex
49
Bostock v. Clayton Co. Georgia (US 2020)
The US Supreme Court in June of 2020 held for the first time in history that sex discrimination under the CRA of 1964, Title VII includes discriminating against a worker based on their being transgendered or based on them being homosexual.
50
Constructive Discharge
Employees who leave their jobs voluntarily can claim that they were "constructively discharged" (as opposed to wrongfully discharged) if the employer (through supervisors or the employer himself) causes the employee's working conditions to be so intolerable that a reasonable person would be compelled to quit - usually involves sexual harassment cases
51
The Supreme Court has recognized Sexual harassment as a form of sex discrimination since
1986
52
Are plaintiffs allowed to sue if they quit?
Yes. Otherwise, employers are incentivized to create intolerable workplaces.
53
2 types of Sexual Harassment
1. Quid Pro Quo
2. Hostile Working Environment
54
Quid Pro Quo
"This for that" tangible employment results from refusal to submit to a sexual demand. Employer is strictly liable (without regard for policies). The court views Quid Pro Quo as the employer's ABSOLUTE responsibility (they control the workplace) and the supervisor acts within the authority of the company to cause economic injury to the victim
55
Hostile Working Environment
No tangible economic loses are present but the victim suffers from an environment at work which is hostile based on sex (propositions, touching, joking, and innuendo severe enough to make the workplace hostile. Employer is liable but has an affirmative defense.
56
Affirmative Defenses for Employers - Hostile Working Environments
1. Employer took reasonable care to prevent and promptly correct the behavior AND
2. Employee unreasonably failed to take advantage of the corrective opportunities
57
Meritor Savings v Vinson
Vinson works at the bank. First time the Supreme Court has defined Sexual Harassment and that it is under the Civil Rights Act.
Vinson says Taylor has successfully had sexual activities over 40 times. Supreme Court gives rules and they send back to trial court level. Settlement.
58
Meritor Savings v Vinson Issue
Is voluntariness the standard for determining whether sexual harassment has occurred?
NO
59
Meritor Savings v Vinson
Unwelcomeness
The court sets the standard by explaining that "whether the victim by her own conduct, indicated that the alleged sexual advances were unwelcome is the question; not whether her actual participation was voluntary".
60
Meritor Savings v Vinson
Totality of the Circumstances
Unwelcomeness is determined by the totality of the circumstances test. Does the victim based on the totality of circumstances invite or accept the sexual harassment? Everything about the victim is relevant: speech, dress, activities, etc. even silence
61
Silence
Silence can be interpreted to mean acceptance or unwelcomeness. Therefore, the victim has a DUTY TO OBJECT based on the severity of the conduct
62
Farther v City of Boca Raton
How hostile hostile has to be to be actionable
4 factors:
1. Severity
2. Frequency
3. Whether physically threatening/humiliating
4. Unreasonably interferes with your ability to do work
63
Retaliation by Employers
- Top 3 of EEOC complaints
- Additional claim to a complaint against a protected class
- Happens more often with harassment claims than other things
64
Employer Liability for Co-Worker Sexual Harassment
- Employer is liable…if the Plaintiff can prove that the employer knew or should have known and failed to take prompt reasonable corrective actions
- Once they become aware of it they need to do something corrective
- This situation can create a hostile workplace
65
Employer Liability for Sexual Harassment by Nonemployees
Employer is liable…if the Plaintiff can prove the employer knew or should have known and failed to reasonable measures to prevent it
66
Hooters. Who are potential nonemployees that can harass your employees? A group of waitresses are suing Hooters because they are over the handsy customers. Customers were touching the waitresses. They claimed that this is sexual harassment and that Hooters are not protecting them. Hooters says that the waitresses “assumed the risk” when they took the job, they knew what the uniform was. What is reasonable?
Nationwide after this settlement they hired new managers. “Bouncer” types. Hands off policy. If the customer touches you, you report to the manager, they discuss with the customer and will be removed. This is preventative.
67
Same-Gender Harassment
In other words does it matter if the harasser and the alleged victim are the same gender?
Even before the Bostock decision from 2020 – the answer was the same…does the conduct create an environment that a reasonable person in the plaintiff’s position would find abusive or hostile?
68
Oracle v Sundowner Offshore Services, Inc
Does the conduct create an environment that a reasonable person in the plaintiff’s position would find abusive or hostile?
If the answer is yes – it is sexual harassment
Mr. Onacle is a male, and he is attacked multiple times. The worst thing: he is attempted to be raped in the shower by other men. Sexual orientation is not a part of the case
69
Remedies Under Title VII
1. reinstatement;
2. back pay;
3. retroactive promotions;
4. front pay
5. compensatory damages if intentional;
6. punitive damages if malice or reckless indifference.
70
Age Discrimination in Employment Act of 1967
Prima Facie Case
1. Plaintiff was a member of the protected age group;
2. Plaintiff was qualified for the position from which he was discharged;
3. Plaintiff was discharged under circumstances that give rise to an inference of discrimination.
Prohibits discrimination in employment on the basis of age against persons age 40 and older
* Note: if the ADEA is based on firing replacement, the plaintiff does not have to be replaced by someone younger than age 40 to win a case
71
Age Discrimination in Employment Act of 1967
Burden of Proof
Employer has to prove that an older employee was fired for a legitimate reason. Insubordination, or bad performance reviews for several quarters/years in a row
72
Stever v US Bancorp, Inc
Jerry Stever was a financial adviser at U.S. Bancorp, Inc. He was terminated at age sixty-eight for "deficient performance." Stever sued U.S. Bancorp in federal court alleging age discrimination and claiming that deficient performance was a pretext. The plaintiff proved that he was in the protected age group (over forty) and was qualified for the position, but he lacked proof that he had been discharged because of his age.
Stever argued that two younger financial advisers had received more favorable treatment from the company than he had. The court found no evidence of preferential treatment, however. One of the men had generated considerably more revenue than Stever, and the other man differed from Stever in terms of seniority and prior performance. Stever also claimed that his manager had made the comment, "We old dogs had to earn new tricks." The district court found that this single stray remark was not sufficient to demonstrate age discrimination.
73
Americans with Disabilities Act of 1990
Prohibits discrimination against a qualified individual on the basis of a disability
- Does not require employer to take steps to employ disabled workers
- In spite of the fact that they are qualified, they are discriminated against
74
A “qualified individual” with a disability:
Who with or without reasonable accommodations is qualified to perform the essential functions of the job
Don’t have to put an undue hardship on an employer to hire all disabled employees who apply
75
Americans with Disabilities Act of 1990
Plaintiff's BOP
To establish a violation of the ADA, Plaintiff must prove he/she:
1. Plaintiff has a disability (fits one of three definitions);
2. Is “otherwise qualified” for the job (with or without reasonable accommodations); AND
3. Is excluded due to discrimination based on the disability
76
Definition of Disability
1. Any physical or mental impairment that substantially limits a major life activity;
2. Having a record of “Any physical or mental impairment that substantially limits a major life activity”; OR
3. Being regarded by others as having “Any physical or mental impairment that substantially limits a major life activity”
77
Major Life Activities
Include but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, learning, reading, concentrating, working
Also include an impairment in major bodily functions like immune system, reproductive system, respiratory system (employer may not have knowledge, but you qualify under the definition)
78
“Substantially limits”: materially restricts
If an impairment is episodic or in remission: (Episodic Ex: Epilepsy, diabetes, asthma, bipolar, skitsophrinia) (Remission Ex: tuberculosis, cancer) the question is whether the impairment would substantially limit the individual when such impairment is active. However, remember the plaintiff must be qualified to the job
79
Corrective Measures
Whether plaintiff fits a definition of disability is determined without regard to corrective measures (like medicine or hearing aides)
80
What is an exception to corrective measures?
Glasses or contact lenses for ordinary vision impairments
81
Being "regarded as having such an impairment"
The plaintiff needs to prove he has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit major life activities
82
Disclosure of Confidential Medical Information
ADA provisions also require employers to keep their employees' medical information confidential. employee who discovers that an employer has disclosed his or her confidential medical information has a right to sue the employer- even if the employee was not technically disabled. The prohibition against
disclosure also applies to other employees acting on behalf of the employer.
83
What if other employees are asking why Joe gets that fancy new desk or other device that they don't get?
#1 way to deal with that is to refer them to HR, backup way to deal with it “if you have some specific need that YOU have in the workplace I would be happy to talk about that, but I am not going to discuss joe with you.”
84
Reasonable Accommodations (Employer's Burden of Proof)
1. Employers must reasonably accommodate employees with disabilities
2. If an applicant/employee with disabilities, with reasonable accommodations, can perform essential job function, the employer MUST make the accommodation
85
Employer's obligation under ADA
1. Make existing facilities accessible and usable (something additional could be necessary, other than the standard faculty requirements)
2. Job restructuring, modified work schedules, additional tools (adjusting work times, allowing more breaks, adjustable desks)
86
Undue Hardship
Employer is not required to accommodate if said accommodation puts an undue hardship on the business
1. Excessive financial cost
2. Causing the employer to violate their own personnel policy
3. Causing the employer to violate another law
87
Substance Abusers
1. Drug addiction is considered a disability; casual users are not protected as they are not addicts
2. ADA only protects FORMER drug abusers - those who have completed or are in supervised rehab programs
3. Alcoholics are also protected as disabled
4. However, employers prohibit the use of alcohol at work. Employees should not be under the influence of alcohol at work.
88
Larson v Koch Refining Co
Mr. Larson is an alcoholic. He is a supervisor. He is fired from the job after he is arrested for drunk driving, criminal assault, and many absences. Mr. Larson does have a disability under the law, but he is not protected from his behavior that is an effect of his disease. Mr. Larson tries to argue discrimination, not valid.
89
Wallace v VA Hospitals
Mrs. Wallace was addicted to Narcotics. Her doctor says that she is not supposed to prescribe narcotics. She is a former drug abuser (treated as disabled) – she is disabled. Employer could have accommodated her, the employer didn’t even attempt to accommodate her. (less than 2% of her job would have been prescribing/administering narcotics to patients) The employer is responsible for disability discrimination
90
What accommodations could VA Hospitals offered Mrs. Wallace?
Maybe reduce pay slightly, assign non-liver and heart patients to another nurse, not crazy burden on the scheduling nurse, schedule someone else to administer the narcotics
91
Defenses to Employment Discrimination
1. Business Necessity/Job Related Reason
2. Bona Fide Occupational Qualification (GENDER AND RELIGION)
3. Seniority System
92
Discrimination based on Military Statutes (USERRA) 1994
Protects civilian job rights and benefits for members of the military, former military personnel, and reservists
- Vets can only be fired for cause
- Public and private employers, even if have as few as 1 employee
- Supervisors/managers have personal liability for violations (Your personal assets are at risk as a supervisor if you engage in discrimination against a veteran (as well as the employer/company))
93
Johnson v FedEx
Cathalene Johnson, an African American woman, was a senior service agent for Federal Express Corporation (FedEx). After working for FedEx for more than seventeen years, she resigned and filed a suit against the company for discrimination based on race and gender, as well as for violation of the Equal Pay Act. Johnson claimed that FedEx had paid a white male co-worker about two dollars more per
hour than she had received for basically the same position. FedEx argued that the man had seniority. He had worked for FedEx for seven years longer, was the most senior employee at the station where Johnson worked, and had been a courier in addition to being a service agent. The court ruled that FedEx's seniority system was fair and provided a defense to Johnson's claims.
