Employment discrimination
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EMPLOYMENT DISCRIMINATION. Basic concepts of employment discrimination law and case law examples of how it is applied. Employment Discrimination . Broad field of litigation Lots of claims and lawsuits Lots of legislative and judicial attention Rapidly changing area of law

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EMPLOYMENT DISCRIMINATION

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Employment discrimination

EMPLOYMENT DISCRIMINATION

Basic concepts of employment discrimination law and case law examples of how it is applied


Employment discrimination1

Employment Discrimination

Broad field of litigation

Lots of claims and lawsuits

Lots of legislative and judicial attention

Rapidly changing area of law

Employers and supervisors must be informed and proactive


Employment discrimination2

Employment Discrimination

The overview:

Federal and state laws forbid discrimination

in any aspect of employment based on a

prohibited factor

State law generally tracks federal law and applies

the same standards


Employment discrimination3

Employment Discrimination

What cannot be a motivating factor?

Race Age

Color Disability/Medical Conditions

Religion Pregnancy/Caretakers

Gender Sexual orientation

National origin Genetic information

Military service Smoking/Non-smoking


Employment discrimination4

Employment Discrimination

The main categories of claims:

Failure to Hire or Promote

Harassment (sexual or otherwise)

Hostile Work Environment

Wrongful Termination

(including constructive discharge)


Employment discrimination5

Employment Discrimination

How do claims arise?

Disparate treatment: deliberately discriminating against an individual (most claims will fall into this category)

Disparate impact:having a neutral policy that has a discriminatory effect


Employment discrimination6

Employment Discrimination

Failure to hire or promote:

Member of a protected class met job qualifications, applied but did not get the job

Position remained open with search for person with same qualifications

Legitimate business decisions are usually protected

Specific examples from case law


Employment discrimination7

Employment Discrimination

Improper conduct based on any protected or prohibited factor (age, race, sex, gender, disability, etc.) can form the basis for a harassment claim

Majority of litigated claims involve race, sex, age, and disability


Employment discrimination8

Employment Discrimination

Sexual harassment:

Unwelcome conduct based on sex

Conduct a reasonable person would find offensive

Effective anti-harassment policy is essential

Employee must report and take advantage of preventive or corrective opportunities

Specific examples from case law


Employment discrimination9

Employment Discrimination

Hostile work environment:

Hostile or abusive conduct that alters the terms or conditions of employment and unreasonably interferes with an employee’s work performance

Can be a single act but usually a pattern of conduct

By supervisor, co-employee or customer

A high standard to meet

Specific examples from case law


Employment discrimination10

Employment Discrimination

Hostile work environment:

Effective policy against harassment in the workplace

Employee failed to report or take advantage of preventive or corrective opportunities

Employer made prompt and reasonable response


Employment discrimination11

Employment Discrimination

Wrongful termination, including constructive discharge:

At-will employment v. protected employment (contract, tenure, civil service, etc.)

Must have a legitimate non-discriminatory reason for termination

Difficult for plaintiffs to prevail on constructive discharge claims

Specific examples from case law


Employment discrimination12

Employment Discrimination

QUESTIONS?


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