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Equal Employment Opportunity PowerPoint PPT Presentation


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Equal Employment Opportunity. Principles of Discrimination Law. Summary: Discrimination Law. What is “discrimination” and who is protected? Equal Achievement vs Equal Opportunity Why do these laws exist? Are they still needed? How does a plaintiff build a prima facie case?

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Equal employment opportunity l.jpg

Equal Employment Opportunity

Principles of Discrimination Law


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Summary: Discrimination Law

  • What is “discrimination” and who is protected?

  • Equal Achievement vs Equal Opportunity

  • Why do these laws exist? Are they still needed?

  • How does a plaintiff build a prima facie case?

  • How does an employer defend itself?


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Two Doctrines of Fairness

  • Equal Achievement

  • Equal Opportunity

    • “Even a true generalization about a class cannot justify class-based treatment” (Supreme Court’s Norris decision, 1983)


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Unemployment Trends


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Earnings by Race

2006


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Building a Prima Facie Case

  • Disparate treatment

    • McDonnell Douglas v. Green

  • Disparate (Adverse) Impact

    • Griggs v. Duke Power


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Proving Disparate Treatment

1. In general: show differential treatment based on protected characteristics

2. McDonnell-Douglas v. Green rule

  • Possess protected characteristic

  • Applied for job

  • Met job qualifications requirements

  • Rejected/job remained open


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Proving Disparate Impact

1. Disparate rejection rates

  • Male rejection rate vs. female rejection rate

    2. Disparate potential rejection rates

    3. Population comparisons

  • Males in firm/qualified males in market

    vs

  • Females in firm/qualified females in market


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The Four-fifths Rule

“A selection rate for any race, sex or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact....”


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Defenses to Disparate Treatment


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Defenses to Disparate Impact

  • Business Necessity

    • “that which is reasonably necessary to the safe & efficient operation of the business”

    • “legitimate and overriding business considerations”

  • Job Relatedness

    • demonstrating a relationship between a requirement and job performance


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Title VII Remedies

  • Agreement to cease practice

  • Reversal of adverse decision

  • Affirmative Action Program

  • Monetary

    • Back pay (up to 2 years)

    • Litigation costs

    • Punitive damages (if intentional)

    • Compensatory damages (if malicious)


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Summary: Discrimination Law

  • Why these laws exist

  • Equal Achievement vs Equal Opportunity

  • What is “discrimination” and who is protected?

  • Evidence and Proof

    • Disparate Impact vs. Disparate Treatment

    • Plaintiff’s burden: prima facie evidence

    • Employer’s defense


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Equal Employment Opportunity

Primary Anti-Discrimination Laws


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EEO Legal Constraints

  • U.S. Constitution

    • 5th & 14th Amendments particularly

  • Statutory (Legislative) Law

    • Federal, State, Municipal

  • Case (Common) Law

  • Executive Orders

  • <Regulatory agency guidelines>


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Primary Federal EEO Laws

  • Equal Pay Act (1963)

  • Title VII, CRA (1964/72/91)

  • Vocational Rehabilitation Act (1967)

  • Age Discrimination in Empl. Act (1967/86)

  • Pregnancy Discrimination Act (1978)

  • Immigration Reform/Control Act (1986)

  • Americans with Disabilities Act (1990)


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Title VII

  • Established protected characteristics

  • Created Equal Employment Opportunity Comm

    • Create guidelines (e.g. Uniform Guidelines on Selection)

    • Enforce Title VII

    • Collect compliance data (Form EEO-1)

  • Basis for other EEO laws

    • Pregnancy Discrimination Act (1978)

    • Age Discrimination in Employment Act (1967, 1986)

  • Part of Civil Rights Act (1964/72/91)


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Americans with Disabilities Act

  • Prohibits discrimination against “qualified individuals with a disability”

  • Who are “qualified individuals”?

    • A person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job”


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Some ADA Statistics

  • 43 million Americans may be covered

  • 90,000 lawsuits filed (as of 11/98)

  • Plaintiffs have lost 90% of cases that have gone to court

  • Costs $100K to defend


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What is a “Disability”?

  • “A physical or mental impairment which substantially limits one or more of life’s major activities”

    • “communication, ambulation, self-care, socialization, education, vocational training, employment, transportation...with primary attention given to those life activities that affect employability”

  • “A record of such impairment”

  • “Being regarded as having such an impairment”


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Reasonable Accommodation

  • Employers must change job conditions, tasks, or requirements in order to allow otherwise qualified employees to do the job

  • This also includes the application process

  • But accommodation should not represent an “undue hardship”


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“Undue Hardship”?

  • “any accommodation that would be unduly costly, extensive, substantial, or disruptive or that would fundamentally alter the nature of the operation of the firm”

  • based on resources of individual site

  • decided on case-by-case basis


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What are Essential Functions?

  • “Primary job duties that are intrinsic to the employment position”

    • time spent doing

    • criticality

    • ability of others to cover

  • Should be determined before hiring decision

  • Be sure to include “obvious” KSAs


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Hiring Implications of ADA

  • Determine essential functions

  • Remove recruitment barriers

    • Applicants may need to be accommodated

  • Treat applicants equally

  • Pre-employment medical exams only after job offer

  • Allow applicant to identify self as disabled

  • Accommodation of job requirements


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Review: Primary Federal EEO Laws

  • Equal Pay Act (1963)

  • Title VII, CRA (1964/72/91)

  • Vocational Rehabilitation Act (1967)

  • Age Discrimination in Empl. Act (1967/86)

  • Pregnancy Discrimination Act (1978)

  • Immigration Reform/Control Act (1986)

  • Americans with Disabilities Act (1990)


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EEO Law & Multinationals

  • American employees of US corporations can sue under Title VII, ADEA or ADA even if working overseas

    • But this applies only to US citizens, not foreign citizens working for US companies

    • Does not apply to Fair Labor Standards Act

  • “Foreign Laws Defense”

    • Exemption allowed if complying with US laws would cause violation of local laws

    • Does NOT include customs or preferences


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