Employment Law (Mgmt 445)

1. Employment Law (Mgmt 445) Professor Charles H. Smith Gender and Family Issues Legislation: Title VII and Other Legislation (Chapter 4) Fall 2006

2. Gender Discrimination • Title VII prohibits employment discrimination on the basis of gender. • Dress codes and grooming requirements – need not be identical for men and women; must be related to commonly accepted social norms and reasonably related to legitimate business needs; case study – Case Problem 5 (page 110). • Can gender be a BFOQ? – Yes per section 703(e) of Title VII, if the safe and efficient performance of the job requires it; employer inconvenience or added cost, or customer or co-worker preference, will not justify BFOQ based on gender. • Case study – Diaz v. Pan American World Airways (pages 71-72).

3. Gender Discrimination cont. • Gender stereotyping – can some characteristics which are “acceptable” for men considered to be “unacceptable” for women? • Example – man who acts tough is considered good for business, but woman is considered “too masculine” or “a bitch.” • Case studies – Price Waterhouse v. Hopkins (pages 73-76) and Case Problems 4 and 6 (page 110).

4. Equal Pay Act of 1963 • Covers all employers and employees engaged in interstate commerce; no minimum number of employees like Title VII. • Look to “equal” work, effort, skill, responsibility and working conditions. • Defenses – bona fide seniority system or “factor other than sex.” • Remedies – back pay and liquidated damages, but punitive damages not allowed. • “Comparable worth” – compensation can be set per “market” wages. • Gender-based pension benefits • Case studies – Laffey v. Northwest Airlines (pages 80-82), City of Los Angeles v. Manhart (pages 85-87) and Case Problem 3 (page 109).

5. Pregnancy Discrimination • General Electric case in 1976 – no Title VII violation where company refused to include pregnancy or relation conditions in sick-pay plan even though male-specific disabilities such as vasectomies were covered. • Pregnancy Discrimination Act of 1978 – amendment to Title VII to clarify that “because of sex” or “on the basis of sex” include pregnancy, etc. • Pregnancy and hazardous work conditions – restrictions by company intended to “protect” against birth defects violate Title VII; “[d]ecisions about the welfare of future children must be left to parents . . . rather than to the employers who hire those parents.”

6. Family and Medical Leave Act • Serious health condition – illness, injury or condition that requires inpatient hospital care, or lasts more than 3 days and requires continuing health-care provider treatment, or involves pregnancy, or long-term or permanently disabling health condition. • 12 weeks of leave can be taken all at once or intermittently in some situations. • Covers private sector employers with 50 or more employees and all public sector employers; employee must be employed by employer for at least 12 months and worked 1,250 hours during those 12 months except for employer-designated “key employees” (no leave since employer would have to replace employee to prevent substantial and grievous economic injury to the company; must be in highest 10% paid employees). • Case study – Price v. Marathon Cheese Corp. (pages 90-92).

7. Sexual Harassment • Sexual harassment in the workplace involves sex but is really about the employer’s power trip/abuse of authority; can be man harassing woman, woman harassing man or same-sex harassment. • Two types of sexual harassment • Quid pro quo – typically shown by request by employer/supervisor for sex in exchange for employee’s getting or keeping job, promotion, etc. • Hostile environment – usual situation is atmosphere of comments, conduct, decorations, etc. of sexual nature in the workplace; case study – Harris v. Forklift Systems, Inc. (pages 97-98).

8. Sexual Harassment cont. • How to analyze whether sexual harassment has occurred? Should court use “reasonable person” or “reasonable victim” standard? • “Reasonable person” – more objective; focus on how a reasonable person (not man or woman) would react. • “Reasonable victim” – more subjective; focus on how a reasonable victim (including whether victim is a man or woman) would react. • Courts currently lean toward reasonable person standard but still take subjective factors into account.

9. Sexual Harassment cont. • Employer liability if employee commits sexual harassment • Supervisor – employer liable if supervisor acting within course and scope of employment in quid pro quo case; employer liable in hostile environment case under standard stated in Faragher v. City of Boca Raton (pages 99-101) • Co-workers – employer liable if it knows or should have known of harassment and failed to take reasonable steps to stop it. • Clients/customers – employer liable if had some control over harasser and failed to take reasonable steps to stop harassment once employer became aware of or should have become aware of harassment. • Individual liability for employee who commits sexual harassment – no liability under Title VII, but public employee can be liable under other federal civil rights statutes.

10. Sexual Harassment cont. • Defenses • Prevention – see Faragher standard. • Conduct of a sexual nature must be “unwelcome” to be harassment; consensual conduct is not harassment. • Provocation – did victim instigate harassment through own dress, comments or conduct? Can show that “harassment” was not “unwelcome.” • Conduct of a sexual nature – tasteless or abusive conduct is not harassment if not of a sexual nature. • Remedies – injunction against further harassment, compensatory and punitive damages, attorney’s fees and reinstatement.

11. Sexual Orientation or Preference Discrimination • While the protection of Title VII is wide-ranging, it does not protect against some types of discrimination that could be considered related to gender discrimination, such as discrimination against gays, lesbians, transvestites and transsexuals. • However, state discrimination statutes (including California) and 14th Amendment equal protection clause can provide this protection. • Case studies – Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (page 106), Lawrence v. Texas, 123 S.Ct. 2472 (2003) (page 107) and Case Problem 10 (pages 111-12).