Download Sexual Harassment

• Generally, what kind of conduct is
prohibited by Title VII of the Civil Rights
Act of 1964, as amended?
• What is the difference between
disparate-treatment discrimination and
disparate-impact discrimination? 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
2
• What remedies are available under Title
VII of the 1964 Civil Rights Act, as
amended?
• What federal acts prohibit
discrimination based on age and
discrimination based on disability?
• What are three defenses to claims of
employment discrimination?
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
3
• Title VII prohibits discrimination in
employment on the basis of race,
sex, color, religion, and national
origin. “Sex” now includes
pregnancy.
–Applies to employers involved with
interstate commerce with 15 or more
employees.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
4
• In addition to prohibiting religious
discrimination, employers must
reasonably accommodate an
employee’s religious practices.
• Equal Employment Opportunity
Commission: monitors compliance with
Title VII.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
5
• Intentional and Unintentional
Discrimination.
–Intentional (Disparate-Treatment)
Discrimination. Applicant must prove:
• She is member of a protected class;
• Applied, qualified and rejected for job; and
• Employer continued to seek applicants.
• Burden then shifts to employer who must
articulate a legal reason for not hiring.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
6
• Intentional and Unintentional
Discrimination (cont’d).
–Unintentional (Disparate Impact)
Discrimination.
• Occurs when a protected group of people
is adversely affected by an employer’s
practices, procedures, or tests, even
though they do not appear to be
discriminatory. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
7
• Intentional and Unintentional
Discrimination (cont’d).
–Unintentional (Disparate Impact)
Discrimination.
• Pool of Applicants Test: plaintiff shows
percentage of the protected class in
employer’s workforce does not reflect
percentage in local labor market. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
8
• Intentional and Unintentional
Discrimination (cont’d).
–Unintentional (Disparate Impact)
Discrimination.
• Rate of Hiring: plaintiff compares selection
rates of members of protected class with
nonmembers in employer’s workforce.
According to EEOC, less than 80% may
show disparate impact.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
9
• Discrimination Based on Race, Color,
and National Origin.
–Title VII prohibits employment policies
or intentional/ negligent discrimination
on basis of race, color or national origin.
• Policies that discriminate are illegal, unless
(except for race) they have a substantial
demonstrable relationship to realistic
qualifications for job. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
10
• Discrimination Based on Race, Color,
and National Origin (cont’d).
–“Reverse” Discrimination: discrimination
against majority group individuals, such
as white males.
• Ricci v. DeStefano (2009) : Supreme Court held City
of New Haven’s testing and promotion procedures
were race-conscious and discriminatory against
white firefighters, violating Title VII.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
11
• Discrimination Based on Race, Color,
and National Origin (cont’d).
–Potential “Section 1981” Claims.
• Discrimination Based on Religion.
– Employers must reasonably accommodate
the sincerely held religious practices of its
employees, unless to do so would cause
undue hardship to employer’s business.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
12
• Discrimination Based on Gender.
–Employers are prohibited from classifying
jobs based on gender, unless employer
can prove gender is essential to the job.
• Pregnancy Discrimination Act.
• Equal Pay Act (1963).
• Lilly Ledbetter Fair Pay Act (2009).
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
13
• Constructive Discharge.
–Employer causes working conditions to
be so intolerable that reasonable person
would feel compelled to quit.
• An employee can be “constructively
discharged” but still leave voluntarily.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
14
• Constructive Discharge (cont’d).
–Proving Constructive Discharge.
• Plaintiff must present objective proof of
intolerable working conditions, which
employer knew about and failed to correct.
• Employee’s resignation must be a
foreseeable result of working conditions.
–Applies to all Title VII discrimination.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
15
• Sexual Harassment.
–The Supreme Court has interpreted
Title VII’s prohibition against sex
discrimination to include prohibitions
against sexual harassment. There are
currently two forms of sexual
harassment:
• Quid Pro Quo. 
• Hostile Work Environment. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
16
• Sexual Harassment (cont’d).
– Quid pro quo: demands for sexual favors are
demanded in return for job opportunities,
promotions, salary, increases or other tangible
benefits.
– Hostile Work Environment: workplace is
permeated with discriminatory intimidation,
ridicule, insult so severe that working
conditions are abusive to employee.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
17
• Sexual Harassment (cont’d).
–Harassment by Supervisors: For employer
to be liable for a supervisor’s sexual
harassment, a supervisor must have taken a
tangible employment action against the
employee.
– Employer’s Affirmative Defense.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
18
• Sexual Harassment (cont’d).
–The Ellerth / Faragher Affirmative
Defense is based on two 1998 Supreme
Court decisions. Defense has two
elements:
• (1) Employer must have taken reasonable
care to prevent and promptly correct any
sexually harassing behavior, and 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
19
• Sexual Harassment (cont’d).
–The Ellerth / Faragher Defense (cont’d).
• (2) Plaintiff-employee must have
unreasonable failed to take advantage of
preventative or corrective opportunities to
avoid harm.
• If an employer can prove both elements,
he will not be liable for supervisor’s
harassment
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
20
• Sexual Harassment (cont’d).
–Retaliation by Employers against
employees that complain about sexual
harassment or other Title VII violations.
–Harassment by Coworkers and
Nonemployees.
• Employer generally liable only if employer
knew or should have known and failed to
take action. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
21
• Sexual Harassment (cont’d).
–Harassment by Coworkers and
Nonemployees (cont’d).
• Notice to supervisor is sufficient under
agency law. Employers may also be liable
for harassment by non-employees.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
22
• Sexual Harassment (cont’d).
–Same-Gender Harassment.
• In 1998, Supreme Court held in Oncale v.
Sundowner Offshore Services that Title VII
prohibitions against sexual harassment extended
to same-sex harassment.
–Proof of Same-Gender Harassment.
• Easier to prove when harasser is homosexual, but
sexual orientation is not necessarily the same as
“sex” (gender).
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
23
• Online Harassment.
–Hostile work environment created using
company chat, blogs, email.
• Employers can avoid liability with prompt
remedial action.
• Employees may be discharged for using
company computers to distribute offensive
material to coworkers.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
24
• Remedies under Title VII.
–Liability may be extensive. Plaintiff may
receive:
• Reinstatement.
• Back Pay.
–Retroactive Promotions; and
–Damages.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
25
• The Age Discrimination in
Employment Act (ADEA) protects
individuals over the age of 40 from
workplace discrimination that favors
younger workers. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
26
• Procedures under the ADEA.
–Plaintiff must show discrimination was
THE reason for adverse employment
action.
–CASE 30.1 Mora v. Johnson Memorial
Foundation, Inc. (2010). What was
the ‘disputed question of material
fact’ the court referred to?
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
27
• Procedures (cont’d).
–To establish a prima facie case, the
employee must provide that the
discrimination was based on age bias.
The bigger the age gap the more likely
the bias.
• State Employees Not Covered by the
ADEA.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
28
• The Americans with Disability Act
(ADA) requires employers to offer
“reasonable accommodation” to
employees or applicants with a
disability who are otherwise qualified
for the job they hold or seek.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
29
• Procedures under the ADA.
–To prevail plaintiff must show she:
• Has a “disability.”
• Is otherwise qualified for the employment
in question; and
• Was excluded from employment solely
because of the disability.
–Plaintiff must first exhaust her claim
through the EEOC process.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
30
• 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. 
•
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
31
• What is a Disability? (cont’d)
–Supreme Court’s Narrow Definition.
From 1999-2007, the Court made it
harder for employees to establish a
disability. 
•
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
32
• What is a Disability? (cont’d)
–2008 Amendments Reverse Prior
Supreme Court Cases.
• CASE 30.2 Rohr v. Salt River Project
Agricultural Improvement and Power
District (2009). Diabetes is a disability if it
significantly restricts eating.
•
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
33
• Reasonable Accommodation.
–Undue Hardship. 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. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
34
• Reasonable Accommodation.
–Job Applications and Preemployment
Physical Exams.
• Modifications to applications and
selection process so those with
disabilities can compete.
• Employers are restricted on pre-hiring
questions and physical exams.
•
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
35
• Reasonable Accommodation.
–Substance Abusers: Only FORMER drug
users completed or going through
supervised drug rehabilitation programs
qualify as “disabled.”
• Employers can fire an alcoholic is he poses
substantial risk.
–Health Insurance Plans: equal access to
health care.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
36
• Association Discrimination.
–Protects individuals based on an
identified disability of another person
they are associated with.
–To prevail, plaintiff must show she:
• (1) was qualified for the job, (2) was subjected
to an adverse employment action, and (3) was
known by her employer to have a relative or an
associate with a disability. 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
37
• Association Discrimination (cont’d).
–CASE 30.3 Francin v. Mosby, Inc.
(2008). What factors helped Francin’s
claim of association discrimination?
• Hostile-Environment Claims under the
ADA.
•
–Plaintiff must show defendant’s conduct
was sufficiently severe that conditions of
employer were altered.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
38
• There are four basic types of
defenses to employment
discrimination claims. 
–Business Necessity.
–Bona Fide Occupational Qualification.
–Seniority Systems.
–After-Acquired Evidence.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
39
• Business Necessity.
–Requires the employer to demonstrate
that a job qualification is reasonably
necessary to the legitimate conduct of
the employer’s business.
–Business necessity is a defense to
disparate impact discrimination.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
40
• Bona Fide Occupational Qualification.
–BFOQ defense requires an employer to
show that an particular skill is necessary
for the performance of a particular job.
–The BFOQ defense is used in cases of
disparate treatment discrimination.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
41
• Seniority Systems.
–Conditions the distribution of job
benefits on the length of time one has
worked for an employer.
–Can be a defense only if it is a bona fide
system, not designed to evade the
effects of the anti-discrimination laws.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
42
• After-Acquired Evidence.
–Refers to evidence of misconduct,
committed by an employee who is suing
an employer for employment
discrimination.
• Uncovered during the process of discovery
conducted in preparation for a defense against
the suit.
• Not an absolute defense for employer.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
43
• Designed to “make up” for past
patterns of discrimination by giving
preferential treatment to protected
classes.
• Constitutionality of Affirmative Action
Programs.
–May violate 14th Amendment. (Adarand
Constructors case). 
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
44
• Constitutionality (cont’d).
–Affirmative action program is
constitutional only if it attempts to
remedy past discrimination and does
not make use of quotas or preferences.
• Affirmative Action in Schools.
–Generally, program that automatically
awards minority students specified
number of points is unconstitutional.
© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.
45