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Chapter. 3. The Legal Context of Employment Decisions. Discrimination. Disparate Treatment Adverse Impact. Disparate Treatment. Intentional McDonnell Douglas vs. Greene Types Direct Evidence Circumstantial Evidence Mixed Motive. Adverse Impact. Unintentional Discrimination

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Chapter

Chapter

3

The Legal Context of Employment Decisions


Discrimination

Discrimination

  • Disparate Treatment

  • Adverse Impact


Disparate treatment

Disparate Treatment

  • Intentional

  • McDonnell Douglas vs. Greene

  • Types

    • Direct Evidence

    • Circumstantial Evidence

    • Mixed Motive


Adverse impact

Adverse Impact

  • Unintentional Discrimination

  • Griggs vs. Duke Power Co.

  • Standards unrelated to job

    • High School Diploma

    • Wunderlich Test


Answering charges of discrimination

Answering Charges of Discrimination

  • Questions to ask about the charges filed against your company

    • Was the charge filed within the time allowed?

    • Does the charge name the proper employer?

    • Is your company subject to federal anti-discrimination statutes?


Hostile environment

Hostile Environment

  • Meritor Savings Bank vs. Vinson

  • Employers liable for actions of customers (e.g. Accounting firms)

  • Exercise reasonable care / act promptly


Quid pro quo harassment

Quid Pro Quo Harassment

  • Burlington Industries vs. Ellerth

  • Employer liable for Supervisor misconduct even when unaware.

  • Defense – Reasonable steps to prevent harassment.


Sexual harassment

Sexual Harassment

  • Hostile Environment

    • Intimidating, hostile or offensive environment; Unwelcome advances.

  • Quid Pro Quo

    • You give me this: I’ll give you that.


Preparing a response to charges of discrimination

Preparing a Response to Charges of Discrimination

  • When preparing a response you should consider the following:

    • Agree to mediate the charge

    • Make a settlement offer to the charging party

    • Prepare a company position statement

  • The position statement should include the following:

    • Brief description of the company’s business

    • Brief description of your understanding of the charging party’s position

    • Brief description of rules, policies, or procedures you think are relevant

    • Chronological description of all events leading up to and including the event


Discriminatory practices

Discriminatory Practices

Job applicants may not be rejected based on the following

  • Race

  • National Origin

  • Age

  • Sex

  • Physical Disability


B f o q

B F O Q

  • Examples?

    • Seamstress

    • Spa Attendant

    • Sperm Donor

    • Wet Nurse

  • Discrimination for Gender OK when necessary for the operation of the enterprise.


Eighty twenty rule

Eighty / Twenty Rule


Federal enforcement agencies

Federal Enforcement Agencies

  • The EEOC and the OFCCP enforce federal discrimination policy

    • EEOC (Equal Employment Opportunity Commission)

      • Headed-up by five members

      • Only three can be from the same political party

      • Positions appointed by the United States President

      • Serve five year terms

    • OFCCP (Office of Federal Contract Compliance Programs)

      • Uses and enforces many of the same policies and procedures as the EEOC


Eeoc guidelines

EEOC Guidelines

  • EECO Complaints are considered under the following criteria:

    • Does the complaint fall with 180 days of alleged discrimination

    • Was the complaint resolved within 60 days

    • Was there are voluntary reconciliation of the complaint

    • Is the company a public employer


Make up of primary discrimination case law

Make up of Primary Discrimination Case Law

  • Employment Case Law

  • Unfair discrimination based on race, sex, age, religion, or national origin

  • Seniority

  • Testing and interviewing

  • Personal history information

  • Preferential Selection


Beyond the position statement

Beyond the Position Statement

  • The following courses of action may be taken by the EEOC or other governing body following the position statement of a company

    • Make a determination without requesting additional information from the company

    • Request additional documentation or other information from the company

    • Hold a fact finding conference, usually during an investigation on the company’s premises


Eeoc findings

EEOC Findings

  • If the company is not found in violation

    • A no cause finding is issued

    • The accusing employee has 90 days to file a law suit in court

  • If the company is found in violation

    • A cause finding is issued

    • The at fault company will be invited to a conciliation


A complete list of discrimination acts and laws

A Complete List of Discrimination Acts and Laws

  • Thirteenth and fourteenth amendment to the Constitution

  • Civil Right Acts of 1866 and 1871

  • Equal Pay Act of 1963

  • Title VII of the Civil Rights Act of 1964

  • Age Discrimination and In Employment Act of 1967 (as amended in 1996)

  • Immigration Reform and Control Act of 1986

  • American with Disabilities Act of 1990

  • Civil Right Act of 1991

  • Family and Medical Leave Act of 1993

  • Executive Order 11246, 11375, and 11478

  • Rehabilitation Act of 1973

  • Uniform Service Employment and Re-employment Rights Act of 1994


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