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Download Bona fide occupational qualification (BFOQ)
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Employment Discrimination Fifth Amendment – Prohibits the federal government from: ◦ Depriving individuals of “life, liberty, or property” without due process of law Fourteenth Amendment – Prohibits state governments from: ◦ Violating an individual’s right to due process and equal protection Title VII ◦ Illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin Prohibited activities ◦ Disparate treatment Step 1 – Plaintiff presents evidence that: He belongs to a protected category He was treated differently from other similar people who are not protected Prima facie: From Latin, meaning “from its first appearance,” something that appears true upon first look Prohibited activities ◦ Disparate treatment Step 2 – Defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons Step 3 – To win, plaintiff must prove that the employer intentionally discriminated by showing that: Reasons offered were simply pretext Discriminatory intent is more likely than not Prohibited activities ◦ Disparate impact Step 1 – Plaintiff must present a prima facie case Step 2 – Defendant must offer some evidence that the employment practice was a job-related business necessity Step 3 – To win, plaintiff must prove either that: Employer’s reason is a pretext or that other, less discriminatory, rules would achieve the same results Prohibited activities ◦ Hostile work environment Sexual harassment – Unwelcome sexual advances Requests for sexual favors Severe verbal or physical conduct of sexual nature that interfere with an employee’s ability to work Categories: Quid pro quo: One thing in return for another Hostile work environment Prohibited activities ◦ Hostile work environment Same-sex harassment Employer liability for sexual harassment The company is also liable for the employee’s conduct Hostile environment based on race Hostile environment based on color Hostile environment based on national origin Prohibited activities ◦ Retaliation – Employer has done something that would deter a reasonable worker from complaining about discrimination Religion ◦ Employers cannot discriminate against a worker because of his religious beliefs Sex ◦ Gender must be irrelevant to employment decisions Family responsibility discrimination ◦ Parenthood is a protected category under Title VII Sexual orientation ◦ Half the states and hundreds of cities have statutes that prohibit discrimination based on sexual orientation Gender identity ◦ Discriminating against someone for being transgender is a violation of Title VII Merit ◦ Defendant is not liable if he shows that the person he favored was the most qualified Seniority ◦ Legitimate seniority system is legal even if it perpetuates past discrimination Bona fide occupational qualification (BFOQ): ◦ Employer is permitted to establish discriminatory job requirements if they are essential to the position in question ◦ Employers consider customer preference in such situations Safety Privacy Authenticity Affirmative action – Goal is to remedy the effects of past discrimination ◦ Sources Litigation Voluntary action Government contracts Employee may not be paid at a lesser rate than employees of the opposite sex for equal work ◦ Equal work – Tasks that require equal skill, effort, and responsibility under similar working conditions An employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant An employer with 20 or more workers may not fire, refuse to hire, fail to promote or otherwise: ◦ Reduce a person’s employment opportunities because he is 40 or older Plaintiff can show discrimination in: ◦ Disparate treatment ◦ Disparate impact ◦ Hostile work environment Step 1 – Plaintiff must show that: ◦ He is 40 or older ◦ He suffered an adverse employment action ◦ He was qualified for the job for which he fired or not hired ◦ Replaced by younger person Step 2 – Employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons Step 3 – Plaintiff must show that employer’s reasons are a pretext Step 1 – Plaintiffs must present a prima facie case that employment practice excludes a number of people 40 and older Step 2 – Employer wins if decision was based on “reasonable factor other than age” Bona fide occupational qualification ◦ To set a maximum age, employer must show that: Age limit is necessary to the essence of business Virtually everyone that age is unqualified for the job Age is the only that an employer can determine who is qualified Rehabilitation Act of 1973 ◦ Prohibits discrimination on the basis of disability by: Executive branch of the federal government Federal contractors Entities that receive federal funds Disability ◦ Disabled person is: Someone with a physical or mental impairment that limits a major life activity Someone who is regarded as having such an impairment Accommodating the disabled worker ◦ Reasonable accommodation – Employers are expected to: Make facilities accessible Permit part-time schedules Acquire or modify equipment Assign a disabled person to an open position that he can perform ◦ Can perform essential functions of the job ◦ Accommodation is not reasonable if it would create undue hardship for the employer Medical exams – Three stages ◦ With applicants, employer may not require medical exam, interviewer may ask: Whether an applicant can perform the work Applicant to demonstrate the work What accommodation applicant would need ◦ With entering employees, medical test must be: Required of all employees Treated as confidential ◦ With existing employees, medical exam are required to determine: If a worker is still able to perform the existing function of the job An employer may not discriminate against someone because of his relationship with a disabled person Physical and mental abilities are to be treated the same Disparate treatment and disparate impact Hostile work environment Employers with 15 or more workers may not require: ◦ Genetic testing or discriminate against workers because of their genetic makeup Health insurers may not use such information to decide coverage or premiums Constitutional claims ◦ People bringing a claim under the Constitution must file a suit on their own Civil Rights Act of 1866 ◦ Advantages over Title VII Four-year statute of limitations Unlimited compensatory and punitive damages Applicability to all employers Rehabilitation Act of 1973 ◦ Statute is enforced by the EEOC, Department of Labor, and Department of Justice Other statutory claims ◦ EEOC responsible for enforcing: Title VII Equal Pay Act Pregnancy Discrimination Act ADEA ADA GINA
