A.    Equal Pay Act (1963)--Prohibits employers from discriminating between men and  women on the basis of sex in the payment of wages where they perform substantially equal work under similar working conditions in the same establishment.

B.    Title VII of the Civil Rights Act of 1964

1.    covers private employers with 15 or more employees, federal/state/local governments, educational institutions, employment agencies, and unions

2.    protected classifications: race, national origin, color, sex (including pregnancy and sexual harassment), and religion

C.    Executive Order 11246 (1965)

1.    covers federal government contractors with contracts exceeding  $10,000

2.    protected classifications: race, national origin, color, sex, and religion

D.    Age Discrimination in Employment Act (1967)

1.    covers private employers with 20 or more employees, federal/state/local governments, educational institutions, employment agencies, and labor unions

2.    protected classification: age (40 and over)

E.    Rehabilitation Act (1973)

1.    covers federal government employers and federal contractors with contracts in excess of $2500

2.    prohibits discrimination based upon disability

A.    Disparate treatment discrimination

1.  Prima facie case

a.    protected classification
b.    currently holds/applied/was considered for a job
c.    harm (discharged, not selected, etc.)
d.    job remains open, or someone from a different group benefitted

2.   Employer defenses

a.   BFOQ

·    Safety-- limited to situations in which sex or pregnancy interferes with an employees’ ability to perform the job
·    Authenticity-- may be allowed if the job requires that an employee be of one sex and if that requirement is reasonably necessary to the essence of the employers’ business.  The focus is on the company’s inability to perform its primary function, not its ability to compete.
·    Privacy-- customer desires related to personal privacy and modesty.  The employer must show that no selective system of job assignments could be made which would protect privacy and allow the employment of both sexes.

b.    legitimate nondiscriminatory reason

3.  Plaintiff’s rebuttal—show pretext

a.    disprove nondiscriminatory reason

b.    sex stereotyping, statistics, past discriminatory practices

c.    mixed motive

B.    Adverse Impact

1.    Plaintiff’s prima facie case—facially neutral employment practice had a   significantly discriminatory impact.  Compare jobs at issue with the qualified labor market using applicant flow or census data.

2.    Defenses—validation (cognitive abilities test, personality test), business necessity (height, weight requirements).

3.    Plaintiff—equally valid, less discriminatory practice is viable

C.  Retaliation

1.  Protected activity

a.    Opposition—threats to file a claim, refusing to obey an order because of a reasonable good faith belief that it is discriminatory.

b.    Participation—filing a charge, participating in an investigation (regardless of whether discrimination actually occurred).

2.  Adverse employment decision (retaliatory conduct)

3.  Causal connection—direct evidence, proximity in time, etc.

A.    Sexual Harassment (Title VII)

1.    Quid Pro Quo

a. definition—unwelcome sexual advances made by a supervisor to a subordinate in which the supervisor either (a) makes submission to the advances a term/condition of the subordinate’s employment or (b) uses submission to or rejection of the advances a basis for employment decisions.

b. employer liability—under agency theory, employers are almost always held vicariously liable for quid pro quo sexual harassment

2.    Hostile Work Environment

a.    definition-- unwelcome conduct of a sexual nature which is sufficiently severe or pervasive that it has the effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

b.    Employer liability (nonsupervisory relationship)—liability exists if the employer negligently or recklessly allowed the harassing conduct to occur.

c.    Employer liability (supervisory relationship)—employers are held vicariously liable but can claim an affirmative defense:

·    the employer exercised reasonable care to prevent/correct harassment
·    the employee unreasonably failed to take advantage of the employer’s preventive/corrective measures

B.    Americans with Disabilities Act (ADA)

1.    Covered entities include: private sector employers with 15 or more employees, state and local government employers, and the U.S. Congress.

2.    Prohibits employment discrimination against a qualified individual with a disability.  An individual is classified as having a disability if he or she:

a.    has a physical or mental impairment that substantially limits one or more of the major life activities;

b.    has a record of such an impairment; or

c.    is regarded as having such an impairment

3.    A qualified individual with a disability is someone who can perform essential job functions either with or without reasonable accommodations

4.    Requires employers to make reasonable accommodations for known disabilities

5.    Recent decisions regarding controlled conditions

6.    Exercise 14: Understanding the Americans with Disabilities Act (pp. 55-57)

C.    Civil Rights Act of 1991

1.    Allows plaintiffs to seek compensatory and punitive damages when an organization engages in intentional discrimination with malice or reckless indifference.

2.    Allows plaintiffs to demand a jury trial for claims involving intentional discrimination.

3.    Prohibits adjusting test scores or using different cutoff scores on the basis of a protected category.

4.    Clarified the concept of mixed motive in disparate treatment cases, stating that when a plaintiff proves intentional discrimination but the respondent proves that it would have taken the same action for a legitimate reason, the plaintiff may recover only declaratory and injunctive relief, and attorney’s fees.

5.    Extended the coverage of Title VII and the ADA to U.S. citizens employed by covered entities operating in foreign countries.

6.    Charged the EEOC with the tasks of providing technical assistance training, education, and outreach.

7.    Expanded the coverage of Title VII to the House of Representatives and agencies of the legislative branch.

8.    Encourages the use of alternative dispute resolution including negotiation, facilitation, mediation, factfinding minitrials, and arbitration to resolve employment discrimination disputes.

A.    Revised Order No. 4—any employer having a contract with the federal government of at least $50,000 and employing at least 50 people must have a written AAP.

1.    Utilization analysis—comparison of the percentage of protected group members in the employer’s workforce with those in the available labor market.

2.    Goals and timetables—required for underutilized areas, specifies percentage of jobs to be filled by protected group members and a target date.

3.    Action steps—organizational actions to reduce underutilization including publicizing the AAP, communicating top management’s support for the program, removing barriers to employment, and validating selection tools.

B. Voluntary Affirmative Action Plans

1.    The plan’s objective must be to eliminate imbalances in traditionally segregated job categories where there is an indication of underutilization protected group(s).

2.    The plan must be temporary and eliminated when affirmative action goals are met.

3.    The plan cannot unnecessarily interfere with the rights of nontargets—no discharge and replacement with protected group members, no bars to nontarget promotions, no set-asides.

4.    The protected group classification must be only one of many other job-related factors considered in employment decisions.

5.    All candidates should possess at least the minimum qualifications for the positions.

6.    Enforcement mechanisms and grievance procedures should be in place.

A.    Strategic Choices

1.    proactive vs. reactive

2.    breadth

3.    depth

4.    link to strategic plan

5.    formality

B.    Managing Workplace Diversity

1.    research

2.    exemplary companies

C. Management Guidelines (pg. 191)