Quiz Equal Employment Equal Employment Opportunities Note Packers tie John Stone – Fired for wearing a Packers tie in Chicago • 2 Hours Instead of 1 ½ Hours • Same sheet of notes as last time • Can use computer for answers but must agree to delete after exam
Litigation Nation • What’s the #1 source of concern for in-house attorneys? • Product Liability? • Other torts? • Contract disputes? • Employer discrimination/wrongful termination? • Administrative agency enforcement? Equal Employment Opportunities Smoking Article Is it ok for employer to have a policy against smoking – even if the smoking occurs off the job in the employee’s home? What do you think the rule should be? Weyco fires for smoking Starty here last daty
Group Presentation – Casey Martin CaseGroup 6 – On side of Martin • Group 7 – On side of PGA Casey Martin
Overview of Civil Rights Legislation • Section 1981: Prohibits racial discrimination by public and private Employers in contracting. Amended in 1981 to prohibit racial discrimination in hiring, promoting, terminating, and in working conditions. • Equal Pay Act of 1963: Requires equal pay for equal work without regard to gender in companies with more than 20 employees. • Title VII of the Civil Rights Act of 1964: Prohibits discrimination based on race, religion, sex (now includes pregnancy, childbirth and medical conditions). • Age Discrimination in Employment Act of 1967: cannot discriminate against people who are 40 years old or older based on age. • Vietnam Era Veterans’ Readjustment Assistance Act of 1972/1974: requires affirmative action to employ disabled Vietnam-era veterans. • Vocational Rehabilitation Act of 1973: Prohibits discrimination against the physically and mentally disabled. • Veterans Re-Employment Act: Employees have the right to be reinstated if they left to serve in the military, and the right to not be discharged (without cause) for one year after reinstatement. • Americans with Disabilities Act of 1990 (ADA): Prohibits discrimination based on disability and requires Employers to make “reasonable accommodation” of disability without “undue hardship.” Disabled have access to employment, transportation, public accommodations, and telecommunications services. • Civil Rights Act of 1991: legislatively overruled parts of several Supreme Court cases that hindered employment discrimination cases for plaintiffs. • Family and Medical Leave Act of 1993: time off for family responsibilities. • Genetic Information Nondiscrimination Act of 2008
Enforcement • The Equal Employment Opportunity Commission (EEOC) is the primary enforcer of civil rights legislation in the United States. • What is an “Adverse Employment” Action? • Remedies.
Title VII of the Civil Rights Act of 1964 • Prohibits employment discrimination based on • race, • Color, • national origin, • religion, • or gender. • Procedures under Title VII • Employees must file a claim with the EEOC. The EEOC may sue the employer on the employee’s behalf; if not, the employee may sue the employer directly.
Race, National Origin, Religion • Claims regarding race, color, national origin, and religion are evaluated according to the Harris v. Forklift Systems rule. • CASE 13.2 Green v. Franklin National Bank of Minneapolis (2006). • Does repeated use of the word “monkey” create a prima facie case of racial harassment? Approx 8 times • Howard said Green had a “Funny shaped head” • Bank warned Howard, a second warning and then terminated him. • Held: not extreme enough and proper action taken
Prima Facie Case Title VII • 15 or more employees • Disparate-Treatment Discrimination • Member of protected class • applied and was qualified • rejected • continued to seek or filled with a non-protected class employee • Disparate Impact Discrimination • April 2009 Supreme Court Case – New Haven Fire Department. • Fire department dismissed test because of poor showing of Blacks and Hispanics. • Lead plaintiff studied up to 13 hours a day, had dyslexia and paid $1,000 for study materials. St. Paul Fire Department Test
Religious Discrimination • 9 Somali Workers Sue Gold’n Plump (Cold Spring, MN 2006) • Muslim faith requires 5 prayers a day • Employee – “followed to the restroom … to make sure she did not pray” • What do you think? What is the law? # of Religious Discrimination Lawsuits = 4,515 Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business. Oct 2008: JBS fired 200 Muslim Somali workers who walked off the job over prayer disputes.
Duty to Accommodate Religious Beliefs • Growing litigation area. • Includes claims involving refusal to hire based on religion and inflexible work schedules that can accommodate beliefs and practices. • CASE 13.3Endres v. Indiana State Police (2003). • Assigned to Gaming Commission at a casino. • He requested a change based on religious grounds • Held: Impractical for police to refuse assignments without undue hardship on employer.
Group Presentation – Question 5, p. 508 • Group 8 - On side of LyleGroup 9 – On side of Friends
Gender Discrimination • Cannot advertise for males (or females) Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. • Gender was a determining factor in hiring, firing or lack of promotion. • Pregnancy • Carey v. Mount Desert Island Hospital (1998) • Michael Carey was fired by Leslie Hawkins, Mountain Desert Island Hospital CEO, for “lack of confidence.” Carey filed a suit against MDI for gender discrimination. The court awarded Carey more than $300,000 in damages. • “we have different standards for men and women” • “it’s about time we get a women for this [CEO] position.” • Is it possible for jurors and judges to overcome their prejudices in deciding cases in which gender plays a key role?
Pregnancy Discrimination Act • Protect infertility treatments? • Employer Concerns • Cannot travel • Interferes with planning • A lot of time off • Men do not have these issues
Gender Discrimination • Two types of sex discrimination: • Differential treatment. • Sexual harassment, which itself, exists in two varieties: • Hostile Work Environment. • Quid Pro Quo. Harrah’s requires women to wear make-up article
Same Sex Harassment • Same-Sex Sexual Harassment: actionable under Title VII. Oncale v. Sundowner, 510 U.S. 17 (1999). • Sexual Orientation and Transgender Harassment: Generally, no Title VII protection.
2007 Transgender case • Spring Arbor University – a evangelical college • Prof Nemecek – wants to be called Julie – not John • Rules requiring men to dress as male
Harassment by Supervisors: Quid Pro Quo • Quid Pro Quo harassment • involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. • no need for employer to know if “tangible employment action.” • Tangible Employment Action
Sexual Harassment - Hostile Environment • Offensive Conduct.Conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment • Interferes with Work. Conduct that has the purpose or effect of unreasonably interfering with performance • Impact Employment Opportunities.Conduct that otherwise adversely affects an individual’s employment opportunities • Permeated with Intimidation.Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment. • Reasonable Person Standard.The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive. • 2007 EMC Salesperson Case • Taking customers to strip clubs • Unequal pay • Recruited heavily from former athletes
Harassment by Co-Workers • Employer Knew or Should Have Know. Employer generally liable only if employer knew or should have known and failed to take action. • Employee notice to supervisor is notice to Employer under agency law. • Non-Employee Harassment. Employers may also be liable for harassment by non-employees. • Same Sex. Same-sex harassment violates Title VII.
Sexual Harassment in Other Nations • Sexual harassment in the workplace is not only a problem in the U.S. It is a world-wide problem for women workers. In many other countries, there is no legal protection against any form of employment discrimination. Even in those countries that do have laws prohibiting discriminatory employment practices, including gender-based discrimination, those laws often do not specifically include sexual harassment as a discriminatory practice. • Why do you think U.S. corporations are more aggressive than European companies in taking steps to prevent sexual harassment in the workplace?
Supreme Court Guidelines on Liability for Sexual Harassment • Sexual Harassment Policies/Handbooks. Employers have an affirmative defense against liability for their supervisors’ harassment of employees: • Reasonable Care. If they show they have taken “reasonable care to prevent and correct promptly any sexually harassing behavior” (by policies and complaint procedures). • Employee Failed to Follow Policies. The employee suing for harassment failed to follow these policies and procedures.
Retaliation • Employers may be liable of retaliation against Employees who have complained to the Company or EEOC. • Sexual Stereotyping under Title VII - impermissible and actionable. • CASE 13.4Burlington Northern & Santa Fe Railway Co. v. White (2006). • How harmful must the “adverse employment” actions be to fall within scope of Title VII • Transferred from fork lift to standard track laborer – is this an adverse change/retaliation?
Remedies under Title VII • Plaintiff may receive: • Reinstatement. • Back Pay. • Retroactive Promotions; and • Damages. • Caps on Liability: Any party to a case for damages can demand a jury trial, but the court may not inform the jury of the caps on damage awards. • Punitive Damages: Complainant must show “malice” or “reckless indifference.”
Defenses to Employment Discrimination • Business necessity. • Bona fide occupational qualification. • Seniority Systems. • After-acquired evidence of employee misconduct.
Discrimination Based on Age • 40 years old or older -- The Age Discrimination in Employment Act (ADEA) of 1967 • EEOC. Similar procedures to bringing a case under Title VII. • Prima Facie Case • member of protected class • qualified for job • discharge gives inference to discrimination • burden then shifts to employer to show cause Mars, Inc. Age 20-30. Office Depot. Age 18-35 Blockbuster. Age 18-24 GM age 18-28 End-of-Chapter Q: 4 – not assigned. Cullen, 49, laid off. Cahill, the president, said some employees were “old fashioned” and that “older people have trouble with change and they were gonna have to learn to go with the change or conform or they were going to be out.”
Disability DiscriminationWSJ Article on deaf drivers • UPS will not hire deaf drivers • UPS sued by a deaf driver • Holding?
Disability Discrimination Target settles for $6 million Mini golf course not accessible – “I’ll paint some lines in the parking lot and put some cups out there…” amusement park rides, fishing piers, bowling lanes… • ADA of 1990 • has a disability • is otherwise qualified • was excluded from employment solely because of the disability • Must Pursue Claim First Through EEOC WSJ Article – Wal-Mart – All jobs require physical activity. E.g. require cashiers to do cart gathering.
ADA: What is a “Disability”? • ADA defines disability as: • Physical or mental impairment that “substantially limits one or more of major life activities; or • A record of such impairment; or • Being regarded as having such an impairment. • Determination is decided on a case-by-case basis. Blindness, AIDs, alcoholism, heart disease, cancer paraplegia, diabetes, morbid obesity
ADA: “Reasonable Accommodation” • Reasonable Accommodation. If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. • Examples: wheelchair ramps, flexible working hours, improved training materials.
Reasonable Accommodation • Accommodation. Employers are required to reasonably accommodate the needs of persons with disabilities. • Alter Work Space. Reasonable accommodations may include altering job-application procedures, modifying the physical work environment, and permitting more flexible work schedules. • Cannot Accommodate All. Employers are not required to accommodate the needs of all workers with disabilities. • Health and Safety Risks. For example, employers need not accommodate workers who pose a definite threat to health and safety in the workplace or those who are not otherwise qualified for their jobs. Surgeon with Aids
Disability Discrimination • ADA Exclusions: ADA specifically excludes homosexuality, bisexuality, sexual-behavior disorders, compulsive gambling, kleptomania and others. • Definition of “Major Life Activity”: Sexual impotence is a disability (Bragdon v. Abbott) while having a full functioning cardiovascular system is not (Weber v. Strippit). • Must “Substantially Limit” major life activity. • See Toyota Motor Mfg. v. Williams (2001) – rejected by 2008 amendments – future slide covers definition. • Carpal tunnel – could not work but could garden, brush teeth, etc.
ADA: Defenses • Reasonable Accommodation Without Undue Hardship: accessible work facilities, modified work schedules, equipment and training modifications, and providing readers or interpreters as needed. • Undue Hardship: when a reasonable accommodation is not required; for example, the cost of the accommodation and the size of the business. • Business Necessity: discrimination is warranted if applicant cannot do the job.
Sutton v. United Airlines, Inc. Case Holding Rejected by New ADA Amendment 2008 • Facts. • Wear Glasses. Karen and Kimberly Sutton, without corrective lenses, can’t see well enough to do things such as drive, watch T.V., or shop, but with corrective measures, each functions identically to individuals without similar impairment. • Applied to Work as Pilots for United Airlines. In 1992, they applied to United Airlines, Inc. (UA), for employment as commercial airline pilots. • Met All Requirements Except Vision. They met all requirements except the UA’s minimum vision requirement. The Suttons filed a suit alleging discrimination under the ADA. The court dismissed their complaint. • Is United’s Requirement OK? • Comment for Consideration. When the ADA went into effect, the courts were faced with the challenge of interpreting the act’s provisions. Should Congress pay more attention to details when it drafts legislation? Is it appropriate for the courts to assume such “lawmaking’ responsibilities?
2008 Amendments to ADA • Broader Interpretation -“shall be construed in favor of broad coverage of individuals under this Act…” • Rejected Toyota case “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s lives.” • Sutton Rejected – “ordinary eyeglasses or contacts lenses” are not mitigating measures – “low-vision devices” are.
Family and Medical Leave Act of 1993 • Must Allow Leave. Employer must allow an employee leave time for certain family situations – care of spouse, parents, kids or birth or adoption. . • 12 Months and 1,250 Hours. Employee must have worked for at least 12 months and at least 1,250 hours of employment. • 12 Weeks Unpaid Leave. Eligible employees may receive up to 12 weeks of unpaid leave per year. • Return to Same Position. If Plaintiff prevails, Employer is required to restore the employee to same position or equivalent with same benefits, pay, etc.
Veterans’ Reemployment Rights • Uniformed Services Employment and Reemployment Rights Act (1994). • Protects civilian jobs. • Requires employer to rehire covered employees, including those in federal and state government.
Extraterritorial Reach of American Employment Law • 1991 Congress amended Title VII to protect U.S. citizens in a foreign country. • ADA and ADEA also apply extraterritorially. • EEOC provides guidance.
MI Amends constitution to “bans public institutions from using affirmative-action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin from public employment, education or contracting purposes.” Affirmative Action Jennifer Gratz • Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. • Bakke– Intermediate scrutiny – quotas not permitted • Adarand– strict scrutiny • Gratz v. Bollinger (2003) Undergraduate College. – automatic 20 points for minority students – not permitted • Grutter v. Bollinger (2003) Law School.Can consider minority status as a “plus factor” permitted “Preference for Alumni Children in College Admission Draws Fire” … “Overwhelmingly the legacy preferences benefit whites” WSJ