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Employment Law for Human Resource Practice. Chapter 3 Overview of Employment Discrimination. The Continuing Reality of Employment Discrimination. Progress has been made against discrimination since the passage of Title VII .

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employment law for human resource practice

Employment Law forHuman Resource Practice

Chapter 3

Overview of

Employment Discrimination

the continuing reality of employment discrimination
The Continuing Reality of Employment Discrimination

Progress has been made against discrimination since the passage of Title VII.

While overt discrimination is less frequent, more subtle forms of discrimination continue.

Plaintiff may prove discrimination by direct or circumstantial evidence, but Plaintiff has the burden of proof

Discrimination is inherently difficult to prove.

the concept of employment discrimination
The Concept of Employment Discrimination

Definition:

A limitation or denial of employment opportunity based on protected class characteristics of a person

In essence, “adverse employment actions”

Liability arises not from prejudice alone, but from its effects on employment opportunities.

major federal antidiscrimination statutes
Major Federal Antidiscrimination Statutes

Title VII of Civil Rights Act of 1964

Equal Pay Act

Age Discrimination in Employment Act

Rehabilitation Act

Pregnancy Discrimination Act

Americans with Disabilities Act

other anti discrimination provisions
Other Anti-Discrimination Provisions

US Constitution:

US Code Section 1981 & Section 1983

14th Amendment

For federal contractors:

Executive Order 11246

States, cities & counties also have statutory, constitutional and regulatory antidiscrimination provisions

protected classes federal 1
Protected Classes, Federal 1

Race, Color

Title VII, Civil Rights Act, 42 U.S.C. §1981

Sex

Title VII, Civil Rights Act, Equal Pay Act

National Origin

Title VII, Civil Rights Act, 42 U.S.C. §1981, Immigration Reform and Control Act

Religion

Title VII, Civil Rights Act

protected classes federal 2
Protected Classes, Federal 2

Citizenship (citizens or legal aliens)

Immigration Reform and Control Act

Age 40 and over

Age Discrimination in Employment Act

Disability (qualified individual with a disability)

Americans with Disabilities Act; The Rehabilitation Act

protected classes federal 3
Protected Classes, Federal 3

Pregnancy (pregnancy, childbirth, related)

Pregnancy Discrimination Act

Veterans (military service)

Uniformed Services Employment & Reemployment Rights Act

Genetic information

Genetic Information Nondiscrimination Act

protected classes state
Protected Classes, State

Some protected classes are recognized under state or city law, but not federal law:

Marital status

Sexual orientation

Gender identity

Tobacco/alcohol use

types of discrimination
Types of Discrimination

Disparate treatment

Intentional, unequal treatment

Adverse (Disparate) impact

Facially neutral policy has discriminatory impact

Failure to reasonably accommodate

Applies to religion, disability only (See Chapter 10)

Retaliation

To punish based on employee’s exercise of his legal rights

other discrimination terms 1
Other Discrimination Terms 1

Facially discriminatory policy or practice

But allegedly justified, based on a BFOQ

“Reverse” discrimination

A misnomer typically meaning discrimination against a white male

Pretext

A false reason given to justify a discriminatory employment decision

other discrimination terms 2
Other Discrimination Terms 2

Mixed motives

Decisions based on partly legal, partly illegal motives

Pattern or practice

Statistical evidence reveals discrimination occurring over time

Harassment

A form of disparate treatment

elements of a claim disparate treatment pretext 1
Elements of a Claim –Disparate Treatment – Pretext 1

1) Plaintiff must prove aprima faciecase:

Plaintiff’s relevant protected class characteristic

Applied for the employment opportunity

The employment opportunity was available

Plaintiff was qualified for it

Plaintiff was denied the opportunity

Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics

elements of a claim disparate treatment pretext 2
Elements of a Claim –Disparate Treatment – Pretext 2

2) If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision.

3) If Defendant produces such evidence, Plaintiff may rebut by:

Providing evidence that casts doubt on Defendant’s claimed motive, and/or

Providing other evidence supporting the claim of discriminatory motive

jones v oklahoma city public schools
Jones v. Oklahoma City Public Schools

Facts: Jones was demoted and suffered a reduction in pay after several questions regarding when she would retire. Although she was told her duties would be absorbed by others, a new position was created with “strikingly similar” duties. Jones sued, alleging age discrimination. Summary Judgment was entered against her and she appealed.

Issue: If Plaintiff proves a prima facie case of discrimination and shows the Defendant employer’s given reasons to be pretext, must she also provide further proof of discrimination to avoid summary judgment against her?

Held: Once Plaintiff has proven a prima facie case of age discrimination, and shown the employer’s proffered reasons to be pretext, she need not submit additional evidence of discrimination. Summary

elements of a claim adverse impact 1
Elements of a Claim – Adverse Impact 1

1) Plaintiff must prove a prima facie case:

A “neutral” practice disproportionately limits the employment opportunities of a protected class of which plaintiff is a member.

The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance.

elements of a claim adverse impact 2
Elements of a Claim –Adverse Impact 2

2) If Plaintiff proves a prima facie case, then Defendant must prove that the challenged practice is “job related and consistent with business necessity.”

In age discrimination cases, the employer must show that the practice is a reasonable factor other than age.

3) If Defendant successfully defends the practice, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it.

Does not apply in age discrimination cases.

elements of a claim retaliation 1
Elements of a Claim –Retaliation 1

1) Plaintiff must prove a prima facie case:

Plaintiff engaged in protected activity or opposed discrimination

Plaintiff suffered an adverse employment action

There is a causal link between the activity and the adverse employment action

2) If Plaintiff proves a prima facie case, then Defendant must prove a lawful, non-retaliatory motive for the decision.

elements of a claim retaliation 2
Elements of a Claim –Retaliation 2

3) If Defendant successfully defends the decision, Plaintiff may rebut Defendant’s claims by:

Providing evidence that sheds doubt on the credibility of Defendant’s stated motive; and/or

Providing other evidence that supports the claim that retaliation is the most likely explanation for the adverse action.

collazo v bristol myers squibb
Collazo v. Bristol-Myers Squibb
  • Facts: Collazo sued his former employer alleging he was fired in retaliation for his attempts to assist another employee who was being sexually harassed. The employer contended that Collazo did not verbally protest, and that no sexual harassment had occurred. Summary judgment was entered against him, and he appealed.
  • Issues: Is a Title VII violation required to establish a claim for retaliation? Must an employee verbally oppose the harassment of another, or is conduct in opposition sufficient?
  • Held: A claim for retaliation may be established where employee has a good faith reasonable belief of unlawful activities and opposes them by conduct. Summary