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What is Discrimination?

What is Discrimination?. First question, is all discrimination illegal? Answer: No. . Employment at Will Doctrine. Whose will? In general, employers are free to hire and fire, in other words, no reasons are needed. Good cause, no cause, bad cause. Who are “at will” employees?.

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What is Discrimination?

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  1. What is Discrimination? First question, is all discrimination illegal? Answer: No.

  2. Employment at Will Doctrine • Whose will? • In general,employers are free to hire and fire, in other words, no reasons are needed. • Good cause, no cause, bad cause

  3. Who are “at will” employees? • Essentially anyone without a written contract • Best way to deal with concept of discrimination is in terms of exceptions to the at-will doctrine: • Protected classes of employees race, color, national origin, religion, sex, pregnancy, disability, age • Protected types of activities harassment, medical leave, concerted activities (organizing)

  4. Hiring Discrimination • Failure to hire • Non-valid employment tests • Discriminatory pre-hiring ads • Discriminatory Referrals (hiring halls)

  5. Discriminatory Conditions of Employment • Wages and benefits • Promotion • Pay raises • Performance reviews • Work assignments • Leaves of absence • Seniority • Training opportunities

  6. Dismissals • Layoffs • Post-employment references • Constructive discharge cases

  7. Other Issues • Affirmative action (voluntary remedies for effects of past disc.) • Sharing burden for past discrimination • Whistleblowing protection

  8. Americans with Disabilities Act • Discrimination on basis of physical or mental disability • Asking applicants about past or current medical conditions • Pre-employment medical exams • Creating or maintaining workplaces with substantial physical barriers

  9. Statutory standards that require interpretation: • Reasonable accommodation • Qualified workers

  10. Who is Disabled?Very Broad Definitions • Substantial limits on major life activities (HIV) • Record of impairment • Regarded as having an impairment

  11. One way to resolve these issues is to look at job descriptions, the functional analyses of job components. Essential function questions: • Are employees in this position required to do this function? • Does position exist to perform the function? • How many people are available to do the function? • How much expertise is required? • How much time is spent performing the function?

  12. Undue Hardship Considerations • Nature and cost of accommodation • Employer’s financial resources • Nature of business • Accommodation costs already incurred

  13. Activism • Analyze job and write down essential functions • List precisely what job-related limitations imposed by condition • Note how limitations can be overcome by accommodations • Identify potential accommodations and assess their effectiveness • Document all aspects including cost and availability accomodation

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