Title VII of Civil Rights Act of 1964 Employers with 15 + Employees No Discrimination in Terms or Conditions of Employment Based on Race, Color, Sex, Religion.

Title VII of Civil Rights Act of 1964

• Employers with 15 + Employees

• No Discrimination in Terms or Conditions of Employment Based on Race, Color, Sex, Religion or National Origin

• Remedies: Reinstatement, Backpay and Benefits, Legal Fees, Compensatory and Punitive Damages (limited - employer size)

• Defenses: BFOQ, Bona Fide Seniority System

NYS Human Rights Law• Employers with 4+ Employees• No Discrimination in Employment Based on:

• Race or Color• Religion• Sex• National Origin• Marital Status• Disability• Age >18• Criminal Record (If Not Job Related)• Sexual Preference or Sexual Orientation

Discrimination under Title VII

• Disparate Treatment -- Intentional discrimination based on race, color, sex, etc.

• Disparate Impact -- discriminatory effect of apparently-neutral criteria that are not job related

• Pattern or Practice -- EEOC or govt. suit for widespread practice

• Retaliation or Reprisals

Disparate Impact Discrimination and Selection Validity

• Sec. 703(k) of Title VII of Civil Rights Act of 1964, as amended

• Disparate Impact -- shown by 4/5th’s Rule or Other Statistical Evidence

• Concern about labor market definition

• Job-related Validity -- Uniform Guidelines on Employee Selection

Seniority & Title VII

• S. 703(h) -- action pursuant to bona fide seniority system not a violation

• Teamsters -- what is a bona fide seniority system?– neutral on its face– origin free from discrimination– basis rational in light of industry– maintained free from discriminatory intent

The Equal Pay Act

• Equal Pay for Equal Work• Equal Work Defined as

– Equivalent Skills, Effort, Responsibility and Working Conditions

• Defenses– Seniority– Merit Pay– Productivity Pay– Factor Other than Sex

Family and Medical Leave Act

• Employers with 50+ employees

• Unpaid leave for employees for:

– birth or adoption of child

– foster care

– serious medical condition for child, spouse, self or parents

• Right to return to same or equivalent position

• May require notice

• “Key employees” exempted

SEXUAL

HARASSMENT

SEXUAL HARASSMENTDefinition: 29 C.F.R. 1604.11

• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

• submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

• such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

QUID PRO QUO HARASSMENT

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual

HOSTILE ENVIRONMENTHarris v. Forklift Systems, 114 S.Ct. 367 (1993)

• When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated

• Reasonable Person or Reasonable Woman?

EMPLOYER LIABILITY

• Supervisory Employees: Agency Principles

• Co-Workers: Did Employer Know, or Should Have Known?

• Non-Employees: Extent of Employer’s Control, and Did Employer Know or

Should Have Known?

EMPLOYER LIABILITY FOR SUPERVISORS’

HARASSMENT• Faragher v. City of Boca Raton, 118 S.Ct.

2275 (1998)

• Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998)

• Does harassment result in tangible employment result?– If so, employer automatically liable

– If not, employer can establish defense

EMPLOYER’S DEFENSE

• Two Parts:– employer must show exercised reasonable

care to prevent & correct promptly sexual harassing behavior; &

– employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer

• Goes to liability & damages

LEGAL REMEDIES FOR SEXUAL HARASSMENT

• Reinstatement, Promotion as appropriate• Damages: Lost Wages & Benefits• Compensatory Damages: Medical or Emotional

Injury, Pain & Suffering• Punitive Damages: Amount Limited Based on

Employer Size• Legal Fees for Plaintiff• Court Injunction: Cease & Desist Order• Possible Tort Liability as well

PREVENTION

• “An employer should take all steps necessary to prevent sexual harassment from occurring” -- EEOC Guidelines

• Educate and sensitize all employees

• Develop policy for dealing with complaints and appropriate sanctions for violations

• Publicize policy

• Take immediate action on complaints

EMPLOYER’S SEXUAL HARASSMENT POLICY

• Define Sexual Harassment (EEOC Guidelines & Practical Examples)

• Make It Clear Such Conduct Will Not Be Tolerated by Anyone

• Specify Penalties -- up to Termination• Specify Procedures for Filing Complaints• Designate Person to Receive and Investigate

Complaints• Protect Complainant from Reprisals or Retaliation

Civil Rights Acts of 1866 :42 U.S.C. 1981 & 1983

• S. 1981: Intentional Discrimination Based on Race

• Covers Employment Discrimination• Suit for Compensatory & Punitive Damages, Legal

Fees

• S. 1983: Deprivation of Rights Protected by Law

• Intentional Discrimination by Public Sector Employers

• Suit for Damages and Legal Fees

Age Discrimination in Employment Act

• Covers Employers with 20+ Employees

• No Discrimination Based on Age > 40

• No Mandatory Retirement Age

• Defenses: • BFOQ

• Executive Exemption

• Bonafide Seniority or Benefit Plan -- Cost Justification

• Factor Other Than Age

Americans with Disabilities Act

• Coverage : 15 or more employees

• 3 Part Definition of Disability

• Reasonable Accommodation of Otherwise Qualified Persons with a Disability

• Defenses: • Direct Threat to Health or Safety

• Job Related Criteria

• Food Handler Defense -- HHS List

• Religious Entities

Rehabilitation Act

• 3 Part Definition of Disability• Protects Otherwise Qualified Individuals

with a Disability• S 503: Federal Contractors (> $10K)

subject to nondiscrimination obligation• S. 504: Activities receiving federal funding

can’t discriminate against otherwise qualified individuals with a disability

E.O. 11246

• Federal Contractors ($10K) must agree not to discriminate on race, color, religion, sex or national origin

• Contractors with $50K and 50+ employees must have written affirmative action plan

• Utilization Analysis of Workforce• Goals and Timetables to remedy

underutilization of women and minorities

STATE EEO LEGISLATION

• Broad Protections -- go beyond Title VII and other federal legislation– Genetic Characteristics or Traits– Criminal Record– Marital or Family Status– Sexual Orientation (15 States + D.C.)

• Other Legislation: Whistleblower laws, Off Duty Conduct