Title VII, Discrimination, Harassment, and YOU

1. Title VII, Discrimination, Harassment, and YOU A Presentation to the 2008 CTA Equity and Human Rights Conference, Irvine, California

2. Presented by Kenneth R. Mackie, Esq. • B.A. (Music) 1977, CSU, Stanislaus • M.A. (Education, Administration and Supervision), 2000, CSU, Stanislaus • J.D. with Distinction, 2006, University of the Pacific, McGeorge School of Law. • Admitted to the California State Bar, February, 2007.

3. Teacher • 3rd Grade • 8th Grade, Social Studies, Language Arts and Remedial Reading • Band Director, Jr. High and High School

4. Lawyer • Represented teachers in harassment, discrimination cases • Represented guardian’s interest in Special Education hearing • Interned at Public Employment Relations Board handling unfair labor practice charges • General practice

5. Official Disclaimer • Points of view or opinions expressed in these pages are those of the speaker. • They have not been adopted or endorsed by California Teachers Association. • Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations.

6. Title VII, Discrimination, Harassment, and YOU It all starts here:

7. The United States Constitution

8. 14th Amendment Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,without due process of law;nor deny to any person within its jurisdiction theequal protection of the laws.

9. TITLE VII It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

10. Prima Facie Case • 1. member of a protected class. • 2. there was an adverse action • 3. the circumstances give rise to an inference of discrimination.

11. TITLE VII • Title VII prohibits discrimination against any one in a protected class in ALL conditions of employment, not just hiring and firing. Dress, pay, harassment in the workplace when based on protected class, gender (sex), race, religion. Harassment is treating someone differently based on their gender, race or religion.

12. TITLE VII • Covers all employers with 15+ employees • Race • Sex/Gender/Pregnancy • National Origin • Color • Religion • Age: see Age Discrimination Act (40+) • Disability: See Americans with Disabilities Act Note: if you’re in a really small school district with between 5 and 15 employees, then you would be covered under California Statutes, and would file a complaint with DFEH.

13. TITLE VII Note: Everybody is a member of the protected classes: every one has a gender, race, color, national origin and religion (or no religion).

14. TITLE VII TITLE VII IS NOT AN AFFIRMATIVE ACTION STATUTE In most cases Title VII prohibits affirmative action.

15. Title VII and Affirmative Action United Steel Workers v. Weber • Title VII’s prohibition against racial discrimination is not violated by affirmative action plans which, • 1. Have purposes that mirror those of the statute, and • 2. Do not unnecessarily trammel the interests of the non-minority employees. • Affirmative action is ok when • 1. There has been a history of discrimination by that employer, and • 2. The plan cannot unreasonably affect the interests of the non-minority employees. Note: This area of the law is undergoing constant change.

16. 42 U.S.C. § 1981 • Equal rights under the law • (a)Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

17. 42 U.S.C. § 1981 • prohibits any action based on an individual’s race or color, in contract, which includes the employment contract. • §1981 does not have the administrative exhaustion requirements, nor the short statute of limitations of VII. • No cap on damages. • If you have a claim with race or color as a component, file both § 1981 and Title VII.

18. Sex/Gender/Pregnancy Discrimination • “Sex” is either a noun or a verb, depending on context. • “Gender” is a noun. • “Pregnancy” is a condition. Note: everyone has a “gender” and may be discriminated against because of gender. More on sexual harassment later….

19. Title VII and Religion • Private employer, focus would be just on Title VII. • Public employer, focus on both Title VII and 1st Amendment.

20. Title VII and Religion • Religion is treated differently under Title VII: employers must provide reasonable accommodation for their employee’s reasonably held religious belief unless to do so would create an undue hardship for the employer. • The most common accommodations; • work time, • time off, or • attire.

21. Title VII and Religion • What is an undue hardship? • Money is a factor, as is the impact on other employees. • Courts are reluctant to require an accommodation that is more than a de minimus cost.

22. Title VII and Religion One nation, “under God,” … Implicates both Title VII and 1st Amendment issues of free speech and separation of church and state. Currently working its way back up to the U.S. Supreme Court.

23. Title VII and National Origin • The scope of the protection is VERY broad. • Protects the individual’s national origin, also associated interests, employee’s spouse, membership in a group (Polish-American lodge for example).

24. Title VII and National Origin Fragante v. City & County of Honolulu The Prima facie case: • 1. member of a protected class. • 2. qualified for the position. • 3. there was an adverse action • 4. the circumstances give rise to an inference of discrimination.

25. Title VII and National Origin Fragante v. City & County of Honolulu Here, Fragrante scored highest on the civil service exam, but was denied the job because of his accent. The court reasoned that he met the prima facie case, because if accent alone were sufficient to defeat a claim, no one with an accent would ever have a claim for national origin discrimination.

26. Disparate Treatment/Disparate Impact TWO TYPES OF CASES, REGARDLESS OF WHAT THE PROTECTED CLASS IS: • Disparate Treatment • When an employer makes an employment decision based solely on the protected class. • Disparate Impact • Where an employer has a practice, requirement or qualification which, while neutral on its face, results in a protected class or classes being disproportionately disqualified from a job or a class of jobs.

27. TITLE VII • Must exhaust administrative remedies prior to filing lawsuit. • CA: Fair Employment and Housing Commission. • Fed: Equal Employment and Opportunity Commission

28. TITLE VII Statute of limitations: 180 days to file with the appropriate administrative agency

29. TITLE VII • Damages: in general, “make whole” relief. • Back pay • From the date of termination to the date of adjudication • Front pay • From the judgment date and likely date to get a new job (it’s a guess) • Also available if the claim is for discrimination in the hiring process • Injunctive relief • An order telling the employer to stop discriminating • Reinstatement. • Courts are reluctant to order reinstatement, litigants are reluctant to accept reinstatement. Would you want to continue working for an employer who discriminated against you and whom you sued and won?

30. TITLE VII • Damages, continued: • In 1991, courts got the power to order general and punitive damages. Pain and suffering, etc. Must have a showing of fault. Sliding scale for cap. More employees, the higher the cap. • See also: Workers’ Compensation – Stress injuries.

31. Walking through the minefield: DISPARATE TREATMENT The classic formulation of disparate treatment: McDonnell Douglass Corp v. Green • Plaintiff’s prima facie case: • 1. Plaintiff is a member of a protected class. • 2. Plaintiff is qualified for the job in question. • 3. Plaintiff was not hired/adverse action taken. • 4. Must show circumstances that support an inference of discrimination. • Burden shifts to defendant to show non-discriminatory basis for the action. • Defendant is required to put forward enough evidence to defeat a motion for summary judgment. • Could be any reason, as long as it is not discriminatory: found someone better qualified, poor interview; • Burden shifts back to plaintiff to show pretext.

32. BFOQ Bona Fide Occupational Qualification Where the person’s membership in the protected class is a requirement of the job (Boys/Girls P.E. teacher, for example) • NOTE: Color can never be a BFOQ (except, perhaps, in the performing arts). • This is not what the employer would prefer, nor what the parents would prefer, but the job function itself.

33. Age Discrimination • Covered under the ADEA, Age Discrimination in Employment Act. • You must show that the employer took the adverse action because of age. • Although there is a correlation between less experience and age, the fact is that people with less experience are given preference because they could be paid less. • With age, you have to prove a causal link, no contributory factors. I.e. that you were discriminated against solely because of your age. Period. Virtually any other factor defeats an age discrimination claim.

34. Americans with Disabilities Act • ADA covers physical and mental disabilities. • Qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation.

35. Americans with Disabilities Act Qualified Disability: • 1) a physical or mental impairment that substantially limits one or more major life activities, i.e. walking, hearing, etc.; or • 2) a record of having such an impairment; or • 3) being regarded as having such an impairment.

36. Americans with Disabilities Act Sutton v. United Air Lines, Inc. • Supreme court says, because they have glasses which corrects their vision, they are not disabled. • Post Sutton: you have to analyze the person in a corrected state. If your glasses correct your vision to 20/20, you are not disabled based on vision. • So, Sutton limited the group of people who are “disabled”.

37. Americans with Disabilities Act • Do you: • have a covered disability; and • meet the minimum qualifications of the job? • If so, can you perform the essential functions of the job with or without reasonable accommodations? • If so, the employer has an affirmative obligation to change the workplace to accommodate the person, unless to do so would constitute an undue hardship.

38. Americans with Disabilities Act UNDUE HARDSHIP: • Look at the cost and nature of the accommodation. • The resources and size of the business as a whole. • The type of business. • The impact on the business as a whole. • General rule of thumb, the larger the employer, the less the impact…generally speaking.

39. Sexual Harassment Welcome to California!

40. The right to work in an environment free from discrimination or harassment is a civil right. Gov. Code, § 12921(a)

41. No “general civility code for the American workplace.”

42. What is sexual harassment? • Unwanted sexual advances • Offering employment benefits in exchange for sexual favors • Making/threatening reprisals after a negative response to sexual advances. Cal. Code Regs, tit.2, § 7287.6

43. “Because of” sex/gender • Crosses gender lines: • Male v. male • Female v. male • Male v. female • Female v. male Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416. Can include “other” gender classifications as well!

44. “Reasonable person” standard Severity of the harassment is judged from the perspective or a reasonable person in the victim’s position, considering all of the surrounding circumstances and factors such as his/her:

45. Age • Gender • Work experience • Education • Life experience

46. Two Types of Sexual Harassment Tangible employment action (Fed.) Quid pro quo (Calif.) • “Something for something” • Receipt of employment benefit depends on submission to demands or propositions.

47. Harasser has control over victim’s working conditions • Job benefit implicitly or explicitly be conditioned upon acceptance of offer

48. Unwelcome, not involuntary • California, Actual loss of tangible job benefit or adverse employment NOT necessary to make prima facie showing.

49. Hostile Work Environment • Unwelcome behavior • Severe or pervasive • Because of sex/gender • Interferes with ability to perform job, i.e. makes work environment abusive, toxic, intimidating, repugnant

50. Hostile Work Environment • Victim need not be the target! • Must have perceived the behavior