Employment Discrimination. Discrimination Definition - being treated differently than others. This...

Employment DiscriminationEmployment Discrimination

DiscriminationDiscrimination

• Definition - being treated differently than others. This is LEGAL in Tennessee so long as the employee is NOT being treated differently because of age, race, sex, religion, national affiliation, union.

• Can treat discriminate for ANY other reason

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Title VII Civil Rights ActTitle VII Civil Rights Act

• Title VII of the Civil Rights Act of 1964 (Title VII)

• race, religion, sex, or national origin

• 15 or more employees

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RemediesRemedies

• A charge must be filed with EEOC within 180 days of violation

• EEOC investigates and then makes a decision

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• Prima Facie case – what must the Plaintiff prove to even start to have a discrimination case:

• 1. Member of protected class –

• 2. Adverse job action

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Quit/Constructive Discharge Quit/Constructive Discharge

• Just because an employee quit does not mean they cannot have a discrimination claim.

ADEA7

BINDING ARBITRATION ADEABINDING ARBITRATION ADEA

GILMER v. INTERSTATE/JOHNSON CORP.•Registered securities representative sued his employer ADEA.•Employer filed motion to compel arbitration.

• The Supreme Court compelled arbitration pursuant to arbitration agreement in securities registration application.

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ADEAADEA

• The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older

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Number of Employees - ADEANumber of Employees - ADEA

• The ADEA applies to employers with 20 or more employees, including federal, state and local governments –

• Must file with EEOC within 180 days of the potentially unlawful action

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•EQUAL PAY ACT

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EQUAL PAY ACTEQUAL PAY ACT

• prohibits discrimination based on sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

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EQUAL PAY ACTEQUAL PAY ACT

• Equal Pay Act a lawsuit must be filed within two years

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Lilly Ledbetter Fair Pay ActLilly Ledbetter Fair Pay Act• Lilly Ledbetter Fair Pay Act: Statute that extends time in

which an employee may file suit under several federal employment statutes

• Each paycheck reflecting the discriminatory pay policy is a new and separate violation of Title VII

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Part IIPart II

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•PROVING DISCRIMINATION

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• Prima Facie case – what must the Plaintiff prove to even start to have a discrimination case:

• 1. Member of protected class –

• 2. Adverse job action

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Employer Liable If: Employer Liable If:

• Employer generally liable only if employer knew or should have known and failed to take action.

– Employee notice to supervisor is notice to Employer under agency law.

Disparate TreatmentDisparate Treatment

• Disparate treatment – employee subject to an adverse job action

• Intentional – meant to discriminate

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Disparate ImpactDisparate Impact

an employment practice, policy that has the unintended AFFECT of discriminating

•Unintentional

•Facially neutral policy –

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80% Test

EEOC's Uniform Guidelines on Employee Selection Criteria, which finds an adverse impact if members of a protected class are selected at a rates less than four fifths (80 percent) of that of another group.

Disparate Impact DiscriminationDisparate Impact Discrimination

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Discrimination Based on GenderDiscrimination Based on Gender

• Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job.

Disparate Impact Griggs v. Duke Power (1971).

– Doesn’t matter what company’s intent was.

– If you have a test or other requirement that creates a disparate impact, you have to have a business necessity for doing so.

• Example:

• Ad – Office looking for secretary. Must type 120 wpm and be over 6’ tall.

• Effect of this ad???

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Employers Defenses to Disparate Impact Employers Defenses to Disparate Impact

Defense -

Business necessity –An employer may assert "business necessity" or legitimate, job-related purpose

Business NecessityBusiness Necessity

The U.S. Marshal required “natural hearing” to get the job. Plaintiff wears hearing aid.

US Marshal argues that wearing a hearing aid would not work because the hearing aid could fall out, or malfunction, causing safety risks for their customers.

Is it a Business Necessity?

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Business Necessity ExampleBusiness Necessity Example

• Opening for pilot. Must be 6 feet tall

• Employer shows that the aircraft can be safely and efficiently operated only by persons who can easily reach all of the controls in the cockpit. Passenger safety is the prime concern, and pilots must be a certain height to operate the aircraft.

• Business necessity?

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Business NecessityBusiness Necessity

AD - A high school has an opening for a vice-principal in charge of discipline and they have a height requirement.

The school argues that tall people are seen as power figures.

Is it a business necessity?

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Business Necessity- Business Necessity-

• FAA says must be over 60 years of age to apply as airline captain.

• FAA argues a pilot's skills have deteriorated with age and that the safety of the crew and passengers depend most heavily on the captain.

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• A company selling religious books might be allowed to insist on hiring sales people of the particular religion involved.

• The company, however, could not refuse to hire a janitor because of his religion, as it would not be 'reasonably necessary' to the operation of the business

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• “EEOC investigated Hooters restaurants for the company's refusal to hire men as servers, and for restricting the position of "Hooters Girls" to females.

• Hooters argued that being female was a business necessity for being a Hooters girl.”

Business Necessity Business Necessity • A battery manufacturer had a policy which prohibited

women who were pregnant or capable of bearing children from being placed in jobs involving lead exposure to protect against any risk of harm to fetuses.

• Fertile women were as efficient in the manufacturing of batteries as anyone else.

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Business NecessityBusiness Necessity

• The Toledo Police Department used a physical ability test in its selection of patrol officers. The test had four parts, of which applicants were required to complete three in order to pass. The parts were: 15 push-ups; 25 sit-ups; 6-foot standing broad jump; and a 25-second obstacle course.

• The physical ability test had a disparate impact on women.

• Business Necessity?

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Business NecessityBusiness Necessity• A pre-employment test for firefighter candidates required that "...while

wearing a custom-tailored self-contained breathing apparatus, candidates must drag two lengths of standard 2 1/2" hose 180 feet (90 feet one way, drop coupling, run to the other end of the hose, pick up and return 90 feet, drop coupling in designated area), run 75 feet to pumper, remove a one-person ladder (approximately 35 lbs.) from the side of the pumper, carry the ladder into the fire tower, place it against the back rail of the first landing and continue up the inside stairwell to the fifth floor where a monitor observes the candidate's arrival. Then candidates return to the first landing, retrieve the ladder and place it on the pumper.“

• The firefighter test eliminated, for practical purposes, every female candidate.

• Discrimination?

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•EXAMPLE

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Abbey applies for a job with Taco Bell. Manager informs Abbey that if offered the position he will have to cut his hair

Abbey - long hair would not cut his hair. Native American religion.

Taco Bell said health issues.

Title VIITitle VII

• Abbey must prove against Taco Bell (Family Foods Inc.)

– Member of a protected class. – actual religion and not just an excuse

– Policy has an adverse impact on people of his religion – fired for religion/hair

• Is this an example of:

• 1. Disparate Impact OR

• 2. Disparate Treatment?

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Disparate ImpactDisparate Impact

A “neutral” employment practice has an adverse impact on a protected class

Taco Bell DefenseTaco Bell Defense

• Once Plaintiff proves discrimination, then

• Taco Bell must prove - business necessity.

• Then Plaintiff has chance to prove that Defendant’s reason is pretext (fake)

• What would you look at?

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Religious Accommodation in

the Workplace

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Discrimination Based on ReligionDiscrimination Based on Religion

• Religion – BROAD DEFINITION - sincerely held religious practices

– 1. Cannot discriminate AND– 2. Must make “reasonably accommodate” unless

– 3. Undue burden

• Employer may make a limited inquiry into employee’s claim that a sincerely held brief and gives rise to the need for the accommodation.

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• Employers may not treat employees more or less favorably because of their religion.

• Employers must take steps to prevent religious harassment of their employees.

• Employers may not retaliate against employees for religion.

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Requested AccommodationsRequested Accommodations• EX. - an employee may need a particular day off

each year for a religious holiday; or to wear religious attire; or to have a place to pray.

• An employer may require an employee to use their paid time off, such as personal or vacation days, to meet an employee’s required accommodation.

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• Costco - Employee had a eyebrow ring. Costco had policy no body art visible. She belong to Church of Body Modification. Costco said she could wear band aid over it.

• Red Robin – religious tattoos on wrist. ER said family oriented. Ct said ER failed to show reasonable accommodations

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• Sylvia wears several tattoos and has recently had her nose and eyebrows pierced.

• A newly hired manager implements a dress code that requires that employees have no visible piercings or tattoos.

• Sylvia says that her tattoos and piercings are religious because they reflect her belief in body art as self-expression and should be accommodated.

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• Patricia works as a steel mill laborer. Because of her religion (Pentecostal) she notifies her supervisor that her faith prohibits her from wearing pants.

• She requests reasonable accommodation to wear a skirt.

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• Rachel, who worked as a ticket agent at a sports arena, asked not to be scheduled for any Friday night or Saturday shifts, to permit her to observe the Jewish Sabbath from sunset on Friday through sunset on Saturday.

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Sexual HarassmentSexual Harassment

• Title VII - sex-based discrimination, including sexual harassment - 15 or more employees.

• EEOC – 180 days

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Sexual harassment:

•Hostile Work Environment.

•Quid Pro Quo.

Discrimination Based on GenderDiscrimination Based on Gender

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Hostile Work EnvironmentHostile Work Environment

• STANDARD - must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

• Online -

Harris v. Forklift Systems Harris v. Forklift Systems

• Harris works for Charles Hardy.

• “You’re a woman, what do you know?” Called her a “dumb-ass woman” “Go to the Holiday Inn to negotiate [her] raise” Hardy throws things on the ground; asks women employees to pick them up; makes sexual comments about clothing

• Harris quits & sues, claiming a “hostile work environment”

• U.S. Supreme Court reverses: “Employee’s psychological well-being is relevant” to determine if the environment is abusive and has a discouraging effect on the employee’s staying on job

• General Principles:

• 1) an employer is responsible for the acts of its supervisors, and

• 2) employers should be encouraged to prevent harassment

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Supervisor -

1. When the harassment leads to an employment action, such as demotion, firing…,

the employer's liability is absolute.

Supervisor Harassing…

• NOT SUPERVISORS HARASSING - An employer is liable for harassment if the employer was “negligent in failing to prevent harassment from taking place.”

• Look at:1. Did Employer have a Sexual Harassment Policy

2. What did employer do to prevent or stop harassment

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OTHERS HARASSING…

• 1. Co worker making sexual comments to or around Jane and the employer had a policy– EMPLOYER ONLY LIABLE IF EMPLOYEE REPORTED IT AND NOTHING WAS DONE

• 2. Co worker making sexual comments to or around Jane and the employer did NOT have a policy – EMPLOYER LIABLE

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  The law requires those in positions of authority to take action if they know or should have known of sexual harassment.

This means you should not wait for a complaint to be filed before taking action.

Supervisors’ Responsibilities

QuestionsQuestions

• Jane and John work on a day shift production line. Jane comes to you and says John is sexually harassing her. What is the first step you take?

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QUESTIONQUESTION

• Scenario: An employee reports harassment to his/her supervisor and says, “I don’t want you to do anything about this. I just want you to listen and be aware of what is going on.”

• How should the supervisor respond?

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Jeffrey Pittman - Employment Law for Business 62

The Pregnancy Discrimination Act - part of Title VII

15 or more employees

EEOC - 180 days

Jeffrey Pittman - Employment Law for Business 63

Possible PDA ViolationsPossible PDA Violations

• Refusing to hire an applicant because she is pregnant

• Firing an employee after learning of her pregnancy

• Refusing a request to grant light work to a pregnant employee, where the employer has provided such accommodations to other employees with short-term disabilities

Jeffrey Pittman - Employment Law for Business 64

Boyd v. Harding Academy of Memphis Boyd v. Harding Academy of Memphis

• Harding Academy is a religious school affiliated with the Church of Christ

• All faculty members are required to be Christians• Boyd was hired as preschool teacher• Boyd was not married, got pregnant

RETAILIATION RETAILIATION

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Retaliation for making a claimRetaliation for making a claim

• Bartenders at Coyote Ugly filed a Fair Labor Standards Act lawsuit.

• Then came the retaliation claims.

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• First, Liliana Lovell, the founder and president of Coyote Ugly, wrote about one of the bartenders who was part of the FLSA lawsuit on Facebook

• “This particular case will end up pissing me off cause it is coming from someone we terminated for theft,” Lovell wrote.

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• Then Coyote Ugly’s director of operations, Huckaby, was sitting at the bar, when he posted on Facebook about the bartender in front of him whom he knew was a plaintiff in the FLSA suit: “Dear God, please don’t let me kill the girl that is suing me.”

• The next night Huckaby was back at the bar yelling “Why does everyone sue? I’m tired of all these bi***es taking their issues out on our company. They’re f***ing idiots.”

• He made these remarks directly in front of Stone, who quit the next day.

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•TENNESSEE DISCRIMINATION LAWS

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• Remember difference in when Federal Law Applies and State Law

• Also could be both!!

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THRATHRA

Tennessee Human Rights Act (THRA) is comparable to Title VII of the Civil Rights Act but includes AGE

Applies to Employers with 8 or more persons

Discrimination: race, religion, sex, age or national origin."

Tenn. Code § 4-21-401(a).

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TN AGE DISCRIMINATIONTN AGE DISCRIMINATION

• THRA - are at least forty (40) years of age but less than seventy (70) years of age.

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THRA REMEDIESTHRA REMEDIES

• 1. file a complaint with the Tennessee Human Rights Commission with 180 days of the unlawful employment action OR

• 2. file a lawsuit within one year of the discriminatory event.

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New Tennessee Law Limits Scope of Employment Discrimination July 1, 2014

New Tennessee Law Limits Scope of Employment Discrimination July 1, 2014

Tennessee has drastically changed law:

Limits what employees can receive

08 – 14 employees                $25,000

15 – 100 employees              $50,000

101 – 200 employees            $100,000

201 – 500 employees            $200,000

501+ employees                    $300,000

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Tennessee Disability ActTennessee Disability Act

• The Tennessee Disability Act prohibits employment practices that discriminate on the basis of physical, mental, or visual disability, including the use of a guide dog. Effective July 1, 2014, the law covers the state, its political subdivisions, and private employers with eight or more employees (TN Code Sec. 8-50-103).

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• The Tennessee Disability Act ("TDA") prohibits private employers from discriminating

• unless such disability to some degree prevents the applicant from performing the duties required by the employment sought or impairs the performance of the work involved."

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• Reasonable accommodation. State law does not require employers to provide applicants or employees with reasonable accommodation for a disability.

• How many employees?

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