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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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The Legal Context of Employment Decisions

  • 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
  • Examples?
    • Seamstress
    • Spa Attendant
    • Sperm Donor
    • Wet Nurse
  • Discrimination for Gender OK when necessary for the operation of the enterprise.
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