DIVERSITY TRAINING

224

What is Diversity Training?, 3Why agents should embrace Diversity Training, 3Diversity and Ethics, 7 Diversity in the Marketplace, 14Diversity in the Workplace, 23

iPad and Tablet Users See DEMO & Links Above

2

INDEX Age Discrimination Act 31 Agents and diversity 3 American Disabilities Act 36 American With Disabilities Act 38 Bullying 18 Credit score discrimination 22 Discrimination, gender identity 17 Diversity 3 Diversity and ethics 7 Diversity and Inclusion 4 Diversity definition 3 Diversity in the marketplace 14 Diversity in the workplace 23 Diversity programs 6 Diversity training, what is it? 3 Ethics are not laws 13 Ethics defined 7 Gender identity, discrimination 17 Inclusion 4 Insurance discrimination 8 Intolerance 5 Moral compass 11 Moral distress 11 Motherhood penalty 23 Politics on the job 45 Racial bias 15 Redlining 19 Religious discrimination 18 Right to refuse service 15 Shades of grey 8 Stakeholder 11 Stereotyping 23 Tolerance 4 Unlawful employment practices 26 Workplace discrimination laws 25

3

DIVERSITY TRAINING

WHAT IS DIVERSITY TRAINING? Virtually everyone has been treated unfairly at some point. But many in society experience this treatment simply by virtue of their racial, ethnic, disability, gender, class, age and/or sexual identity. While racial-bias garners most of the attention, there are equally severe and lasting effects that accrue in the presence of sexual harassment, bullying, and other intolerant behaviors. Intolerance can happen in the marketplace (stores, movies, parks, public venues, phone and internet transactions, etc) or at the workplace (office, phone, internet, meetings, etc.) Do we remedy or at least mitigate this behavior by simply not discriminating? That's part of it. But diversity training is more. As a matter of fact, some believe that society can prevent discrimination by maximizing the benefits of diversity. WHY INSURANCE AGENTS SHOULD EMBRACE DIVERSITY TRAINING The results are in! The world is culturally, demographically and socially different today. If you don't embrace the changes, you will likely not participate in all the new business. Virtually every major carrier now has a diversity task force that collaborates with multicultural industry groups and state associations to create awareness of the opportunities and benefits to be had by embracing diversity and encouraging change at the agency level to survive and flourish. Let's look at the role diversity training, inclusion and tolerance play in this bright new future . . . DIVERSITY The definition of diversity is ever changing, but it mostly encompasses the presence and participation of people who differ by age, color, ethnicity, gender, national origin, race, religion, and sexual orientation; and includes those with disabilities and from various socio-economic backgrounds. It encompasses not only individuals and groups, but also thoughts and attitudes.

1

4

The ever-expanding diversity in this country is now a fact of life. It is part of our society's fabric and, as you will see, part of doing business as an insurance agent. INCLUSION Diversity and inclusion are the NOT the same thing. In reality, simply because you practice diversity doesn't mean you subscribe to inclusion. Diversity advocate Verna Myers puts it this way, “Diversity is being invited to the party. Inclusion is being asked to dance.”

Example: A large insurance firm does business with many companies in Chile. One of their most valued employees is Peruvian, a man who is respected, well-paid, and included in the leadership team’s decision-making discussions. Yet in a confidential interview, he confided that he saw no future for his ambitions at that firm. “I know they value me,” he said, “but I am an indigenous person, and they are white, legacy, and Spanish. They will never make me a partner, because of my color and background.”

Example: Women are never promoted at Company XYZ because the owners believe they are traditionally the ones pulled away from their jobs and careers to take care of children or aging parents. Employees with inclusive managers, however, are more likely to feel that the potential of these women is unlocked when they are promoted or allowed flexible work options to help them meet the responsibilities(like children and aging parents) that others are unwilling to take on.

In essence, diversity without inclusion is also a story of missed opportunities where employees are so used to being overlooked that they no longer share ideas and insights. But diversity with inclusion provides a potent mix of talent retention and engagement.

Inclusion requires that we reexamine the ways in which difference has been constructed, access denied, stereotypes perpetuated and exclusion justified. Inclusion also demands a radical rethinking of how we create institutions and communities in which differences flourish, power-based inequities are contested and democratic participation is supported and encouraged. Finally, inclusion requires us to redress the political, structural, historic, economic and prejudicial forces that have systematically facilitated and justified marginalization. TOLERANCE Dr. John Achrazoglou, director of the Education Technology Center and co-chair of the Charter Committee on Diversity at the University of Iowa, contends that diversity needs to go beyond tolerance. "Tolerance is a first step. It is much better than conflict. Tolerance implies that the tolerator has the power to not tolerate".

5

On the surface, tolerance seems to be a nod to acceptance. But do people of color or gender minorities simply want to be tolerated? Does a parent tolerate his kids? Does a wife tolerate her husband? Tolerance alone is not a good basis for a relationship.

Diversity is an effort of inclusiveness. So, when a company decides to ensure that diversity happens, it should not be within the context of tolerance of people, but in valuing and appreciating individuals that will add to the fabric of a company's culture. In lieu of tolerance, agents should see their goal as creating welcoming environments, understanding and appreciating differences.

Millennials have already signed-up! These young adults are the most tolerant of any generation on social issues like immigration, race and sexual preference. They have no problem with a family member marrying someone of African, Hispanic or Asian descent. This compares with Baby Boomers where only about half think the same way.

In the United States, minority populations are growing more than 11 times faster than White populations. California, Hawaii, New Mexico and Texas now have majority-minority populations. Clearly, diversity, inclusion and tolerance is a reality to embrace.

OVERCOMING INTOLERANCE While a good diversity program begs for a welcoming atmosphere, it cannot succeed if there is wholesale intolerance. What are some ways to overcome prejudice and intolerance? The American Psychological Association suggests many methods: Intergroup contact: Contact between groups effectively reduced intergroup bias and prejudice, although more so for majority than for minority group members (Tropp & Pettigrew, 2005). Cooperative learning: People from different racial/ethnic groups became experts on different and essential parts of a lesson. After the class reassembled, each person shares his or her particular expertise with the others. Hence, each person was cooperatively interdependent with others from different racial/ethnic groups so as to facilitate learning the entire lesson Cross-group friendships: Intergroup contact that leads to interpersonal interactions provides an opportunity for members of one group to develop positive emotional reactions and recognize individual attitudes, talents and interests among people in the other group. In a university setting, kids and older adults were put together to learn. Compared with the beginning of the course, 10 weeks later these students believed that older adults were less set

6

in their ways, less meddlesome, less old-fashioned, less intolerant, and more physically active and optimistic. . Cognitive retraining: To the extent that stereotypes are learned associations, it is possible to combat stereotyping by unlearning and reversing those associations. Research has shown that repeated efforts to control activation of implicit biases can result in the individual's ability to inhibit these biases. Motivating self-regulation: When people are shown they have responded in a biased way that violates their personal nonprejudiced standards, this recognition initiates a basic self-regulatory process. They experience feelings of guilt (compunction) and attempt to inhibit further bias. Inducing empathy for targets of prejudice: Inducing empathy for an out-group member could reduce bias toward members of that group. For example, Batson, Polycarpou, Harmon-Jones, Imhoff, Michener, Bednar, Klein, and Highberger) found that asking individuals to take the perspective of a person with AIDS improved attitudes toward all AIDS patients. WHY SOME DIVERSITY PROGRAMS FAIL & SUCCEED Frank Dobbin, a professor of sociology at Harvard University, co-wrote an published in the July/August 2016 issue of Harvard Business Review on the subject. Their finding? Merely working to eliminate bias often fails. Why? The very nature of diversity training forces people to think in terms of categories. In the end, we are more likely to dehumanize people than to see them as individuals. "The most effective diversity programs yield strong employee engagement, increased contact among different groups within organizations and a strong desire to succeed in the estimation of colleagues and leadership", says, Dobbin. “Some of the most effective solutions aren’t even designed with diversity in mind.” By focusing on problem solving and creating iterative learning environments, organizations yield greater results and, sometimes as a byproduct, yield more diverse business cultures. Mentor programs appear to be very effective. These programs help people at all levels by giving them access to the decision makers. These one-on-one mentorships are generally better accepted than training programs, possibly because they are available to everyone, not just specific groups. Another good approach to diversity training is to put one person or a group of people in charge, acting as a diversity manager or task force. Managers and task forces can be effective because they focus on identifying both specific problems and remedies.

7

DIVERSITY TRAINING

DIVERSITY & ETHICS Diversity and ethical practice training are important to almost any insurance agency that wants to gain the loyalty of employees and the trust of consumers. Diversity training strives to make people of all socio-economic backgrounds feel comfortable working within the organization and the marketplace. Ethics training encourages employees to live according to basic moral guidelines and conduct themselves properly at work and in the field. Unethical behavior can cripple the company's ability to attract consumers and new staff, diverse or not, putting a severe damper on growth and progress. ETHICS DEFINED Ethics is defined as a set of values that constantly guides our values. These values are typically aligned with what society considers correct and positive behavior within legal boundaries. Ethics is also the balancing of an individual's good with the good of the whole. Example: Let's say you develop a seminar series on "asset protection". At the event, you have a person pass around a clipboard asking people if they would like to be informed of future seminars. The real purpose of this exercise, however, is to create a mailing list to market insurance products and to "weed out" lower income people. Smart marketing? Or, breach of ethics? Are you really concerned with your clients education (the whole) or only what you will get out of their business (the one)? Is discriminating based on income the way to grow your business? The authentically ethical person would have simply disclosed the purpose of the clipboard or simply buy a mailing list from someone else. Respect for privacy would be honored and remembered Balancing the good of the one with the good of the whole is not as easy any more. The whole that we have to consider is everybody, not just a competing agent down the street or in the next town. Survival is important, but not at any cost. True survival requires long-term, successful relationships with customers and companies, as well employees, co-workers and competitors. When people do not understand their role in the "whole" and are completely self and survival oriented, it throws the ethical system we once knew out of whack.

2

8

INSURANCE DISCRIMINATION Discrimination in insurance transaction is particularly egregious since insurance is essential to most consumers. Without consumer access to insurance, banks and other financial institutions will not and cannot make loans. Automobiles cannot be sold or driven. Assets can be lost if a major surgery is not covered by a health plan. In essence, a society without insurance is a society in financial trouble. No matter how ethical insurers and their agents care to be, the industry faces a large obstacle in the form of adverse selection. In simple terms, it means that people are more likely to buy insurance if they think they are going to need it.

Where insurers are not allowed to discriminate through underwriting, the cost of insurance risk, which is intended to be spread among an entire class of people (the law of large numbers), becomes a better deal for higher-risk people. This, in turn, stifles profits.

Today, through more and more regulation, the opportunities to share insurance risk are fewer and fewer, e.g., health insurers MUST accept applicants with pre-existing conditions; rates for auto and homeowner policies are close scrutinized to eliminate the possibility of "redlining", etc.

All of this makes it tougher to competitively price and sell insurance. When markets get competitive, people tend to cut corners. Less than ethical agents, for example, having a limited menu of costlier products, are more likely to sell policies consumers cannot afford, do not need, or policies with gaps in coverage. Unfortunately, much of this neglect can dump on unfortunate consumers who do not understand insurance or do not have the means or resources to stand up for themselves when they have been damaged by faulty coverage or insurance that simply does not pay.

While these practices are typically limited to a few, rather than the majority of law-abiding insurance agents, it presents as a shortfall in ethics for the overall industry.

Let's explore some more concepts that will help mitigate this from happening.

SHADES OF GREY One of the problems with ethics today is that we have so many different mores or values that guide our society. The values that guide each individual and/or company can vary tremendously, therefore an individual or company may be ethical according to their values and not to yours or the definition above. Several major shifts in right or wrong standards means that we are faced with more and more grey areas in our personal and professional lives.

9

The shifts are occurring at such a pace that they may even hinder our ability to cope and process the changes. MORAL AND MARKET VALUES The American economy depends on ethical standards upheld by responsible business leaders. Unfortunately, this unwritten rule was violated in recent ethics scandals occurring in many corporate boardrooms. Respected companies lost credibility and innocent investors lost millions in the late 1990's and early 2000's. Cheating became rampant because it was the norm. It was no longer seen as wrong. In fact, at the peak of the problem, much of our economy resembled a giant pyramid scheme, taking in money from new suckers to pay those who invested earlier. A so-called bubble economy developed where businessmen willing to gamble with other people's money were rewarded handsomely. Stock prices were rising so fast that if you cut corners to meet projected numbers, you probably thought you were doing your shareholders a favor. And, there was always new money pouring in to make up the difference. The insurance industry is not without its own horror stories. Take the case of Joseph and Annette Cooper. They purchased a "vanishing premium" life insurance policy insuring the lives of himself and his wife Annette Cooper. Agents Steinhardt and Fish , whom Cooper had known for many years, and considered to be trustworthy friends, told Cooper that they were highly skilled insurance experts who understood complex insurance projects, and encouraged him to rely on their expertise and prior relationship of trust in choosing a policy. Steinhardt and Fish recommended a $ 1 million Berkshire "disappearing premium" policy, and told Cooper he would have to pay the annual $ 9,000 premium for nine years. "Neither Steinhardt nor Fish showed him a 'Supplemental Footnote Page' or anything else that indicated the disappear-year was not guaranteed." To the contrary, they specifically told him that he would not have to pay any premiums beyond the illustrated disappear-year. Even though Cooper thought it was too good to be true, he decided to buy two policies, one for the Trust, with a $1.5 million death benefit, and a second, with a $1 million death benefit for the Associated to endow a charitable fund. About six years later, the Coopers learned for the first time that they would have to pay premiums for many years longer than the insurance agents originally represented. Fish disclosed this to Cooper during presentation of a "Life Insurance Policy Reprojection" as part of a meeting that he scheduled to sell them additional financial products. The Coopers asserted that the assumptions underlying Berkshire's illustrations of the premiums that the Coopers would have to pay were

10

inconsistent with Berkshire's own internal forecasts and estimates, and were based on abnormally high dividends that, to the defendants' knowledge, Berkshire could not sustain. If the illustration had been based on Berkshire's real investment earnings rate, the Coopers claim, it would have shown the "disappear year" to be later than the ten years represented to Cooper. An "expert in the field of life insurance and actuarial science was brought in to testify to this conclusion. His opinion was that the ten year premium illustration was materially misleading at the time it was used to sell the policy to the Coopers because, contrary to Berkshire's claim, the illustration did not accurately reflect current company experience. He also stated that the agents should have known that the disappear date portrayed in its sales illustrations were false and that the actual "disappear date" would be later. . . . Based Berkshire's Net Investment Yield during the five years before the Coopers purchased their policies (i.e., 1985-89). In fact, it was steadily declining. Thus, it was not realistically possible for Berkshire to continue paying dividends as represented in the illustrations while increasing their book of business. In short, Berkshire and the agents knew or should have known in 1990 that the Coopers would have to pay more premiums than illustrated. The court agreed that a reasonable jury could find that the illustration constituted a materially misleading and inaccurate representation regarding the prospect of a ten year "disappear date" for the Coopers, and that the Coopers reasonably relied on that misleading illustration in deciding to purchase the Berkshire policy. In insurance as well as the corporate world, people who rely on your word can be sucked in during times of market sensitivity. When interest rates are crashing down, for example, people will be intently interested in your interest rate programs. Some agents could take advantage of this enthusiasm. What about hard markets where a certain sectors of the industry refuse to insure. Insurers often play the game by offering higher commissions on the less attractive programs. The hope is that it does not get out of hand. During the bubble period, for instance, the economy resembled a giant pyramid scheme, taking in money from suckers to pay those who invested earlier. Will tougher laws and longer prison sentences be a deterrent. It can't hurt. But, the fact is bubbles burst quicker than a business climate can change. If a crooked practice doesn't pay off, a lot fewer people will take the risk of using them. So, the real challenge is to create a new business culture that matches the market. Think about a system that rewards and reinforces the honest and careful agents and businessmen just like the bubble economies made heroes out of the gamblers.

11

MORAL COMPASS During times of fundamental change, values that were previously taken for granted may be strongly questioned. These are the times when the attention to business ethics is critical. Leaders, workers and agents must sensitize their actions -- they must maintain a strong moral compass. John Kennedy Jr's last flight went wrong because he lost sight of land. In the growing dark around him, the horizon line became blurred and he became disoriented eventually flying his place right into the ocean. When nothing is stable or dependable, you also can lose your own sense of moral direction. When it happens, you start accepting ambiguity as real. You begin making up your own rules. You cut corners. This is exactly how things started going bad at Enron. Accountants simply made-up their own accounting standards. They lied, cheated and waffled because it was to their economic advantage. Over time, they began justifying their unethical behavior as acceptable. A strong moral compass is maintained by having a strong, unfailing sense of what is right and stay focused on it at all times. It's called integrity. When you have it, it allows others to trust you, even when things go bad. MORAL DISTRESS Have you ever thought about why people make bad decisions? One reason is dissatisfaction with your work or how about near impossible objections. Moral distress occurs when a person experiences growing pressure to engage in unethical behavior. You are left in a situation where every decision must weigh your own survival against the care and attention you give your client. The end results is that shortcuts will be taken or you become frustrated, resentful, angry or guilty about your bad decisions. What can you do? Stakeholders: Experts suggest that, among other things, you adopt a long-term stakeholder mentality, and, to be ethical under social justice theories you should be fair to all stakeholders. What does this mean? A stakeholder is anybody that can be affected by your actions. Your client is a stakeholder in that he depends on you and your insurance products to protect his economic well-being. Your insurer is a stakeholder in you representing product fairly and within the scope of the law. The shareholders who have invested in the insurance company are also stakeholders and when it comes down to it, you are a stakeholder yourself. That’s right! You owe it to yourself to survive in your chosen field. And, as we have already described, the best way to do this is long-term, with integrity and respect for others and all stakeholders.

12

Remember, customers ultimately pay your commissions and insurers enable you to make a living. That's something that should be important to you. So, how could you be a bystander and watch either of them be injured in any way by your actions? Pace Yourself: Another way to reduce moral distress is to operate at a reasonable pace. We have already explained that when you cut corners it promotes unethical practices. For instance, if you fail to budget time to read a client's policy, they go out without being reviewed raising ethical questions and moral distress. What about when you forgot to get a client's initial on an application. It's awful tempting to sign it yourself when you know the client will approve it anyway rather than drive 30 miles back out to meet the client a second time. Again, moral distress raises its ugly head. Of course, the solution is to allow more time the first time out. But, this will mean less production which creates economic stress. At times like this, you have to assure yourself that you are in this for the long-term. Being genuine and ethical means that you live by the choice to do what is right, even when it is not pleasurable. You could also look at it in more positive terms. Why not make a client for life by taking that 30 mile drive and explaining why you did it! A Tolerance For Problems: When you succeed at something, it's normally because you are doing something that other people do not want to do. In a sense, you have to "tune-up" your instincts to be satisfied at meeting objectives that others find hard to take or when people don't want you to succeed. What does this have to do with moral distress. A lot, because you can reduce your level of moral distress by increasing your tolerance for problems. Think about it. You can convince yourself that external forces are never-ending anyway, so there is no reasons to sweat it so much. The fact is, you're in the problem solving business and you're a pro! Just remember the immortal words of Saturday Night Live's Rosanna Rosanna Danna -- "It's always something!" ETHICS FROM EDUCATION The customer can’t understand what the salesperson can’t explain. Further, a customer who understands a product is much less vulnerable to deceptive selling. Both statements stress the importance and need for more education. A recent study by the Insurance Institute found that four out of every five people don’t understand their insurance policies. And, if the agent doesn’t understand his product the company and client are at risk. Agents end up concentrating on a “comfort zone” product or service B even if it is not the most appropriate one because he is uncertain about newer, more complex products. Constant training is the answer from the company’s perspective, as well as making a long-term effort to demystify products. One solution is the

13

translating of legalese into easily understandable, everyday English. This includes brochures, advertising, applications and the policies themselves. The process of educating ethics is also the responsibility of our schools. Currently, there is a glaring lack of attention to the selling disciplines. Besides learning the nuances of every product and the marketing behind them, young people could be taught the importance and responsibilities associated with being a salesperson. Like the athlete who trains long hours to prepare for the moment of action, salespeople can be groomed to do the right thing. ETHICS ARE NOT LAWS Many agents believe that ethics and the law are the same. It is important to realize that ethics are not laws, yet they can be guided by laws. Proof of this exists in the fact that you can be unethical yet still operate within limits of the law. A perfect example of this is the insurance client who fears he has physical problem yet he is allowed to withhold disclosing it on an application. He has no duty to disclose his "fears" of a medical condition. It's legal, but not too ethical. Laws in the United States are abundant, growing in numbers every day. The courts attempt to legislate protections from those without values or with values in opposition to what most of us would consider right and wrong. We have more laws than any one lawyer can ever know. And more and more lawyers seem to be necessary to handle the litigation that results from what seems to be a trend in "making others pay". When this law was debated in Congress, consumer advocates argued unsuccessfully for an opt-in provision. This stronger standard would have prevented the sharing or sale of the customer data unless the consumer affirmatively consented. The opt-in standard did not prevail. Therefore the burden is on the consumer to protect his financial privacy.

14

DIVERSITY ETHICS TRAINING

DIVERSITY IN THE MARKETPLACE As marketplace diversity heightens, the danger of consumers being harmed or treated unfairly, increases as well. And, an agent's ignorance or incompetence of diversity issues places him at risk of loss of reputation, loss of business and/or litigation. Example: Lois, a new customer who is hearing impaired, arrives at your office to buy coverage for a new home. She brings her friend Martha since they will be going to lunch afterwards. Your agent starts to help with the application but becomes frustrated when the process takes extra time as Lois cannot hear. Instead of working through the situation, your agent turns to the friend and suggests she help Lois answer the questions. The assumption is that someone without appreciable hearing is unable to speak for herself or manage her own financial needs . . . a major embarrassment and belittlement of Lois. Example: Mark is a man of color who randomly stops by your office because he needs to use the restroom. Your manager explains that your restrooms are private and only for the use of employees and customers. On his way out of the office, Mark overhears a white lady asking to use the same restroom, but she is given permission. This is an extreme case of racial bias. Example: Bill, a "legally blind" consumer, comes to your office to buy a enters policy. He brings his guide dog, but over hears someone talking about how unsanitary it is and dogs should be barred form offices and stores. Very insensitive. To add insult to injury, the insurance application you give him requires a driver's license, which of course he does not have. Your office assistant makes it sound like this is the first time ever that someone does not have a drivers license. George is embarrassed and feels less than normal. What Should You Do In These Scenarios? Refusing to help anyone of the above parties is rude and a clear violation of the Civil Rights Act and/or Americans With Disabilities Act. Businesses and marketers are required and should want to accommodate ALL consumers. After all, they're paying customers too or it's just the right thing to do.

3

15

REFUSAL OF SERVICE Instances where an insurance agent refuses to do business with a customer are few. Of course, in the case where the consumer brings in a suitcase full of cash brings up potential anti-money-laundering issues you would be justified in refusing that business, or at least be extra cautious. In most instances, however, it is doubtful you will want to or be able to refuse service. But, what if you do? Refusal-of-service laws apply to private businesses like insurance agencies because your business is considered a "public accommodation". So, even though insurance offices, restaurants, stores, and swanky rooftop bars are operated on private property, they still qualify as public accommodations and are thus subject to the service regulations set forth by federal and state laws. Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation based on a patron’s race, color, religion, or national origin, and the Americans with Disabilities Act prevents discrimination on the basis of physical, mental, or emotional impairments. Additionally, some (but not all) state laws extend their anti-discrimination policies to protect customers from refusals of service based on other criteria, including age, gender, sexual orientation, and military status. Posting a Right to Refuse Service sign in an insurance office does not absolve you from abiding by federal and state laws that deem certain refusals of service unlawful and discriminatory. When would you be able to refuse service to someone? How about situations where a customer’s presence would put the safety and welfare of the customer herself and/or others at risk, such as:

• The patron lacks adequate personal hygiene (extreme body odor, excess dirt, etc.)

• An intoxicated consumer • A rowdy consumer that is causing trouble • The patron’s presence would overfill venue capacity • There is good reason to believe the patron will not be a paying

customer • The patron has chosen not to abide by a venue’s neutral dress

requirements, in a manner that is somehow within the patron’s control That last point is important. It’s why although “no shirt, no shoes, no service” policies are rarely mandated by law, they are also rarely illegal, because they don’t discriminate against any particular category of person.

16

The recent supreme court case involving the Colorado baker, who refused to make a wedding cake for a gay couple, demonstrates that the law is not always predictable. The Colorado courts sided with the gay couple, while the supreme court said this is wrong because it is an assault on the baker's religion. The next case, where religion is not an issue would favor the gay couple. In a perfect world, all parties would exercise an equal amount of tolerance so as to mitigate legal confrontations that sometimes serve to divide our culture. RACIAL BIAS The recent Starbucks incidence if evidence that bias, in many forms, continues to exist. Two men of color were denied access to the restrooms because they did not make a purchase. They were eventually arrested. As it turns out, the two were planning to meet a friend who happened to be late for their coffee meetup. In another Starbucks incident, a man of color was denied access unless he purchased something. After he agreed to buy a coffee, he witnessed another customer was allowed access to the restroom without making a purchase Racial Bias Training by Starbucks received national intention when it was learned all stores would be shut down for several hours to train employees to handle any personal biases they may bring to their job. As part of the training, employees learned about the history of racial discrimination, in particular against African-American people in public spaces, starting with the Civil Rights Movement. Employees were shown a documentary which illuminated the experiences of black people in this country—including the extra steps (such as making direct eye contact, or saying ‘thank you’) that they often take to protect themselves from the suspicions of people in power. Employees were given notebooks in which they explored the similarities and differences between themselves and Starbucks customers, in the hopes of learning to celebrate, appreciate, and understand “what makes me, me, and you, you.” The company insists that this is all part of a longer-term effort, which will include future anti-bias trainings, to once again prove that Starbucks can be “a welcoming and safe [place] for everyone.” Don't let this sort of thing happen to your business. People of color represent more than one-third of all consumers. They work just as hard as you and deserve to be treated the same as your other customers.

17

GENDER DISCRIMINATION

Sex discrimination involves treating someone unfavorably because of that person's gender or sexual identity. Discrimination because of gender identity, including transgender status, or because of sexual orientation is a violation of Title VII of the Civil Rights Act.

Gender-specific pejorative terms intimidate or harm another person because of their gender. Sexism can be expressed in language with negative gender-oriented implications, such as condescension.

Example: You sell a fair amount of business coverage to Cathy, the owner of a nearby factory. While you may think it is endearing term to say thanks for your business, girl, using the word "girl" implies that she is subordinate or not fully mature.

Other examples include obscene language. Some words are offensive to transgender people, including "tranny", "she-male", or "he-she". Intentional misgendering (assigning the wrong gender to someone) and the pronoun "it" are also considered pejorative.

Health Care

Under the Affordable Care Act, gender discrimination pricing in health insurance products is banned.

However, new short-term health insurance plans can factor in gender and pre-existing conditions into underwriting. Likewise, short-term plans don't have to offer comprehensive coverage. Typically, they don't provide free preventative care or maternity, prescription drugs and mental health benefits. They can also impose annual or lifetime limits, meaning they may only pay out a set amount -- often $1 million or less -- leaving the policyholder on the hook for the rest. And, unlike Obamacare policies, they don't have to cap consumers' cost-sharing burden at $7,350 for 2018.

Life Insurance

Unlike health insurance, life insurance cost is determined by a number of factors and premiums are still determined by issues related to age, lifestyle, past and current health, family medical history and gender.

Women, on average, have a longer life expectancy than men, which means insurance providers see them as a less risky client. This means lower premiums. Also, the younger you apply for insurance, the cheaper it will be.

Auto Insurance

Like life insurance, auto rates are a function of age, lifestyle, history and gender. Young males generally pay more than their female counterparts as they are known to drive faster and therefore deemed a higher risk. As you

18

will see below (insurance redlining), the legislation here applies specifically to discrimination by race, religion and ancestry. BULLYING Bullying is unwanted, aggressive behavior that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. People who are bullied and who bully others may have serious, lasting problems. In order to be considered bullying, the behavior must be aggressive and include:

• An Imbalance of Power: People who bully use their power—such as physical strength, access to embarrassing information, or popularity—to control or harm others. Power imbalances can change over time and in different situations, even if they involve the same people.

• Repetition: Bullying behaviors happen more than once or have the potential to happen more than once.

Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose. It can happen at school, on the job or in the marketplace.

There are many warning signs that may indicate that someone is affected by bullying—either being bullied or bullying others. Recognizing the warning signs is an important first step in taking action against bullying. Not all who are bullied or are bullying others ask for help.

It is important to talk with people, especially children, who show signs of being bullied or bullying others. Bullying can lead to other issues or problems, such as depression or substance abuse. Talking to the child or person can help identify the root of the problem.

RELIGIOUS DISCRIMINATION Not much is said about discrimination based on religious differences. Discriomination in these situations may have less to do with a person’s beliefs and more to do with misinformation or negative perceptions about how someone expresses that belief. For example, Muslim women who wear hijabs (head scarves), Sikh people who wear patka or dastaar (turbans), and Jewish men who wear yarmulkes report being targeted because of these visible symbols of their religions. These items are sometimes used as tools to bully Muslim, Sikh, and Jewish when they are forcefully removed by others.

19

Reports also indicate a rise in anti-Muslim and anti-Sikh bullying over the past decade that may have roots in a perceived association of their religious heritage and terrorism. When bullying or discrimination based on religion is severe, pervasive, or persistent, the Department of Justice’s Civil Rights Division may be able to intervene under Title IV of the Civil Rights Act. Often, religious harassment is not based on the religion itself but on shared ethnic characteristics. When harassment is based on shared ethnic characteristics, the Department of Education’s Office for Civil Rights may be able to intervene under Title VI of the Civil Rights Act. REDLINING Redlining is the systematic denial of various services to residents of mostly racially associated neighborhoods or communities, either directly or through the selective raising of prices. Redlining is illegal. While the best known examples of redlining have involved denial of financial services such as banking or insurance, other services such as health care or even supermarkets have been denied to residents. In the case of retail businesses like supermarkets, purposefully locating impractically far away from said residents results in a redlining effect. In the 1960s, sociologist John McKnight coined the term "redlining" to describe the discriminatory practice of fencing off areas where banks would avoid investments based on community demographics. During the heyday of redlining, the areas most frequently discriminated against were black inner city neighborhoods. Example: In Atlanta in the 1980s, a Pulitzer Prize-winning series of articles by investigative reporter Bill Dedman showed that banks would often lend to lower-income whites but not to middle- or upper-income blacks. The use of blacklists is a related mechanism also used by redliners to keep track of groups, areas, and people that the discriminating party feels should be denied business or aid or other transactions. In the academic literature, redlining falls under the broader category of credit rationing. Reverse redlining occurs when a lender or insurer targets particular neighborhoods that are predominantly nonwhite, not to deny residents loans or insurance, but rather to charge them more than in a non-redlined neighborhood where there is more competition. Example: In the movie titled Rainmaker, a corrupt insurance company specifically target poor neighborhoods to sell health insurance policies. They would collect premiums in cash, every week. When a claim was filed, it was routinely denied. The premise was that poor folks did not have the resources to fight the insurer. So, premiums were collected, but claims were never

20

paid. In the movie, a young, black man died as a result of the claim denial. His mother and a socially responsible attorney sued the insurer and won. Like other forms of discrimination, the history of insurance redlining began in conscious, overt racial discrimination practiced openly and with significant community support in communities throughout the country. There was documented overt discrimination in practices relating to residential housing—from the appraisal manuals which established an articulated "policy" of preferences based on race, religion and national origin. to lending practices which only made loans available in certain parts of town or to certain borrowers, to the decision-making process in loans and insurance which allowed the insertion of discriminatory assessments into final decisions about either. Insurance Redlining

Some believe that race continues to affect the policies and practices of the insurance industry. Racial profiling or redlining has a long history in the property-insurance industry in the United States. From a review of industry underwriting and marketing materials, court documents, and research by government agencies, industry and community groups, and academics, it is clear that race has long affected and continues to affect the policies and practices of the insurance industry.

Example: Your office hires telemarketers to prospect for people needing new or more home insurance. The office manager advises the marketers to try to assess the ethnicity of a potential customer just by telephone. If they sound "black or hispanic", she says, don't waste your time, because "they never buy from us since they don't own anything". This type of discrimination is called linguistic profiling.

Homeowner & Renters Insurance

Discrimination in the provision of housing insurance may have important consequences for the vitality of America's neighborhoods. Recent studies by interest groups, independent researchers, and government agencies indicate that homeowners in heavily minority neighborhoods are less likely to have private home insurance, are more likely to have policies that provide more limited coverage in case of a loss, and are likely to pay more for comparable policies. These differences in outcomes might be caused in part by discrimination in the policies or practices of the home insurance industry.

Property insurance discrimination is the unequal treatment of people in obtaining property insurance without regard to legal rights or ability based on: redlining or discrimination based on race, sex, or religion. A victim of property insurance discrimination has a number of options including:

• Reporting violations to the Housing and Urban Development (HUD) • Consulting with an attorney about filing a claim under the FHA

21

• Legal enforcement by the Department of Justice In order to state a claim under the Fair Housing Act, discrimination can be shown by one of two ways:

• By showing that the insurance company employed a policy that created affected people of different race, sex or religion differently

• By showing that the insurance company purposefully discriminated against the individual on account of his race, sex or religion

Automotive Insurance Redlining

Alleged redlining discrimination in the automotive insurance industry has led to the passage of Section 11628 of the California Insurance Code.

Section 11628 a) No admitted insurer, licensed to issue and issuing motor vehicle liability policies as defined in Section 16450 of the Vehicle Code, shall fail or refuse to accept an application for that insurance, to issue that insurance to an applicant therefore, or issue or cancel that insurance under conditions less favorable to the insured than in other comparable cases, except for reasons applicable alike to persons of every race, language, color, religion, national origin, ancestry, or the same geographic area; nor shall race, language, color, religion, national origin, ancestry, or location within a geographic area of itself constitute a condition or risk for which a higher rate, premium, or charge may be required of the insured for that insurance.

As used in this section "geographic area" means a portion of this state of not less than 20 square miles defined by description in the rating manual of an insurer or in the rating manual of a rating bureau of which the insurer is a member or subscriber. In order that geographic areas used for rating purposes may reflect homogeneity of loss experience, a record of loss experience for the geographic area shall include the breakdown of actual loss experience statistics by ZIP Code area (as designated by the United States Postal Service) within each geographic area for family owned private passenger motor vehicles and lightweight commercial motor vehicles, under 11/2-ton load capacity, used for local service or retail delivery, normally within a 50-mile radius of garaging, and which are not part of a fleet of five or more motor vehicles under one ownership.

A record of loss experience for the geographic area, including that statistical data by ZIP Code area, shall be submitted annually to the commissioner for examination by each insurer licensed to issue and issuing motor vehicle liability policies, motor vehicle physical damage policies, or both. Loss experience shall include separate loss data for each type of coverage, including liability or physical damage coverage, underwritten. That report shall include the insurer's statewide loss ratio, loss adjustment expense ratio, expense ratio, and combined ratio on its assigned-risk business. An insurer may satisfy its obligation to report statistical data under this subdivision by providing its loss experience data and statewide expense ratio and combined ratio on its assigned-risk business to a rating 84 or advisory organization for submission to the commissioner. This data shall be made available to the

22

public by the commissioner annually after examination. However, the data shall be released in aggregate form by ZIP Code in order that no individual insurer's loss experience for any specific geographic area be revealed. Differentiation in rates between geographical areas shall not constitute unfair discrimination.

CREDIT SCORE DESCRIMINATION

Insurance companies have a long history of using credit history to decide whether or not to offer auto, homeowners, life or health insurance. Not only was the type of insurance restricted, the premiums charged were different among different classes of people.

Insurers call this practice credit-based insurance scoring. The idea is that consumers with poor credit are considered a higher risk. With some insurance companies, a consumer with the worst credit score, can pay two, three or four times as much as a consumer with best credit score. Where a consumer refuses to allow the use of his credit score in an insurance application, some insurers quote higher than normal premiums

California prohibits insurers from using consumer credit information for any insurance application or quote. In other states, state or federal law requires the insurance company to provide some important notifications – the most important of which is the federal Fair Credit Reporting Act (FCRA) Adverse Action Notification. The FCRA requires any user of a credit report to notify the consumer if the use of that report resulted in an adverse action, which, in the case of insurance, would be denial of coverage or a higher premium than a consumer with an average insurance credit score. These adverse action notices come with your policy or policy renewal information, but may be hard to identify because insurers don’t like to use the word “adverse!” If a consumer gets an adverse action notice, it should list up to four reasons why your insurance score was not better.

23

DIVERSITY ETHICS TRAINING

DIVERSITY IN THE WORKPLACE DOES DISCRIMINATION IN THE WORKPLACE STILL EXIST? Discrimination in the workplace continues to be a reality. Whereas the workforce is made up of 48 percent women and 34 percent minorities, only 38 percent and 20 percent, respectively, are “officials and managers” in U.S. corporations (U.S. Equal Employment Opportunity Commission). People with disabilities suffer from more unemployment and lower pay when they are employed relative to the nondisabled (Bureau of Labor Statistics), and older individuals are less likely to receive job training and career counseling relative to their younger counterparts (Pitt-Catsouphes, Smyer, Matz-Costa, & Kane). Discrimination can be both subtle and nonintentional processes as well, for example, the glass ceiling, in which a lower percentage of individuals with stigmatized identities (e.g., being female or minority) is represented in upper management positions relative to the more general workforce; the glass cliff, whereby minorities and women who are promoted to management positions are essentially set up to fail; and the motherhood penalty, where mothers, compared with nonparent females, are rated as less competent and less committed and usually recommended for lower salaries. Fathers, compared with nonparent males, suffered no such disadvantage. STEREOTYPING, PREJUDICE, DISCRIMINATION Stereotypes consist of the characteristics attributed to categories of people. They have roots in the history of relations between groups and are transmitted through socialization agents, including the mass media. Stereotypes are all too often overgeneralized, inaccurate, and negative. The stereotypes of members of one group (the in-group) about the members of other groups (the out-group) typically reveal contempt and a failure to recognize the diversity within out-groups. As good people and good insurance agents, we need to learn to embrace the differences between people to prevent supporting prejudicial stereotypes and discrimination.

4

24

How do we develop stereotypical behavior? There can be many sources or origins that create a good or bad bias. Stereotyping can come from what we learn from our parents, the media, significant others, peers and more. Sometimes, what we learn from others grows to be negative attitudes towards social groups. This, in turn, can become prejudice. Prejudice occurs when individuals are prejudged and disliked based on their group memberships. Prejudice can be founded on any group-based characteristics: race, ethnicity, national origin, sex, age, social class, caste, disability, sexual orientation, religion, language, and region. Unfortunately, the presence or attitude towards prejudice grows to become discrimination and even oppression “a selectively unjustifiable behavior towards members of a target group.” Consider the following: Example: Tran, a Vietnamese American insurance agent is new to your office. He has been working in the industry for several years. He speaks English fluently but has an accent. Sometimes, when Tran assists clients, he needs to ask you or another agent in the office to help out by answering the client's question. At first, Tran thought his co-workers were trying to be helpful, but one day he overheard a co-worker tell the other staff: “I don’t know how anyone can understand him. We don’t have time to explain things over and over again to clients. Perhaps Tran should be assigned to an area where he does not have to speak with customers.” Example: Maria, a Latina lesbian, is a new personal lines agent in the office. She appreciated the owner of the office giving her a chance to get her insurance licnese and learn the business form the ground up. Then, one day her partner came to pick her up and several people in the office commented about “her.” Soon after, Maria began to notice that co-workers in the office did not want to sit with her at lunch time, and others ignored her completely or suddenly stopped talking to her. What could you do regarding the Tran and Maria examples? For one thing. understand that workplace diversity involves exploring the benefits and rewards of a diverse workplace by sharing ideas and embracing others’ differences, and, respecting those differences. If you do nothing, the problem can get worse. Experts also suggest the following:

• Do not assume your interpretation is correct • Share your experience honestly • Acknowledge any discomfort, hesitation or concern • Practice appropriate communication

25

• Give your time and attention when communicating • Do not evaluate or judge

WORKPLACE DISCRIMINATION LAWS THE CIVIL RIGHTS ACT OF 1964 -- TITLE VII Title VII prohibits employment discrimination based on race, color, religion sex and national orgin. The Civil Rights Act of 1991 amends several sections of Title VII 42 U.S.C. 1981 provides for the recovery of compensatory and punitive damages in cases of intenetioanl violations of Title VII 42 U.S.C. 2000e

Who is an Employer The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year The term does not include (1)the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive services (as defined in section 2102 of title 5 [of the United States Code], or (2) a bona fide priveate membership club (other than a labor organization) which is exempt from taxation under section 501 (c) of title 26 [the Internal Revenue Code of 1954]. Who is an Employee The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State of political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such tem includes an individual who is a citizen of the United States. What is meant by religion The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstates that he is unable to resonably accommodate to an employee’s or propective

26

employee’s religious observance or practice withour undue hardship of conduct of the employer’s business. What does the Term “Because of Sex” or “On the Basis of Sex Mean” The terms “because of sex” or “ on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affectyed by pregnancy, childbirth, or related medical conditions shall be treated the same for all emplyment-related purposes, including receipt of benefits under fringe benefits programs, as other persons not so affected bu similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not rquire an emplyer to pay for health insurance benefits for abottion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an emplyer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. Exemptions SEC. 2000e-1. [Section 702] This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. UNLAWFUL EMPLOYMENT PRACTICES SEC. 2000e-2 A. It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

27

B. It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin. C. It shall be an unlawful employment practice for a labor organization (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. D. It shall be an unlawful employment practice for any employer, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training. E. Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a

28

particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. F. As used in this subchapter, the phrase ``unlawful employment practice'' shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist action or Communist front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.]. G. Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if- (1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement. H. Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of

29

section 206(d) of title 29 [section 6(d) of the Fair Labor Standards Act of 1938, as amended]. I. Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. J. Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. K. (1) (A) An unlawful employment practice based on disparate impact is established under this title only if- (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice. (B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.

30

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity. (2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this title. (3) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin. L. It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. M. Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. OTHER UNLAWFUL EMPLOYMENT PRACTICES SEC. 2000e-3. [Section 704] (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. (b) It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor management committee

31

controlling apprenticeship or other training or retraining, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment. AGE DISCRIMINATION ACT OF 1967 The Age Discrimination in Employment Act of 1967 (ADEA), as amended, is in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimination against persons 40 years of age or older. STATEMENT OF FINDINGS AND PURPOSE SEC. 621. [Section 2] (a) The Congress hereby finds and declares that- (1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; (2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; (3) the incidence of unemployment, especially longterm unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; (4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce. (b) It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

32

PROHIBITION OF AGE DISCRIMINATION SEC. 623. [Section 4] (a) It shall be unlawful for an employer- (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age.

(c) It shall be unlawful for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opp ortunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age;

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or partici pated i n any manner in an investigation, proceeding, or litigation under this chapter.

33

(e) It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or r eferral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

(f) It shall not be unlawful for an employer, employment agency, or labor organization-

(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located;

(i) It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken-

(1) with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and

(2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

(j) (1) Except as otherwise provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits-

(A) in the case of a defined benefit plan, the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual, because of age, or

(B) in the case of a defined contribution plan, the cessation of allocations to an employee's account, or the reduction of the rate at which amounts are allocated to an employee's account, because of age.

34

(1) It shall not be a violation of subsection (a), (b), (c), or (e)of this section solely because- (A) an employee pension benefit plan (as defined in section 1002 (2) of this title [section 3(2) of the Employee Retirement Income Security Act of 1974]) provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits; or (B) a defined benefit plan (as defined in section 1002(35) of this title [section 3(35) of such Act]) provides for- (i) payments that constitute the subsidized portion of an early retirement benefit; or (ii) social security supplements for plan participants that commence before the age and terminate at the age (specified by the plan) when participants are eligible to receive reduced or unreduced oldage insurance benefits under title II of the Social Security Act (42 U.S.C. 401 et seq.), and that do not exceed such old age insurance benefits. AGE LIMITATION

SEC. 631. [Section 12]

(a) The prohibitions in this chapter [except the provisions of section 4(g)] shall be limited to individuals who are at least 40 years of age.

(b) In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title [section 15], the prohibitions established in section 633a of this title [section 15] shall be limited to individuals who are at least 40 years of age.

(c) (1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2 year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profitsharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000.

The ADEA doesn’t apply to states. Must use state statues, of any. In Kimel v. Florida Board of Regents, the Supreme Court hold that States (and political subdivision thereof), as employers, are immune from employee ADEA claims because Congress’ abrogation of the States’ Eleventh Amendment immunity was invalid under the Fourteen Amendment, therefore leaving employees of the States to claims and remedies under their respective state discrimination statutes.

35

These claims can be expensive.

Damages for lost ages and benefits are also increase by the fact that it is harder for older workers to find new employment. When an employee brings a wrongful termination case, he or she must find new employment. When an employee brings a wrongful termination case, he or she must “mitigate” damages. That is, he or she must make reasonable efforts to replace the job that was lost. It is more difficult for a high-level, highly paid employee to replace a lost job with a similar job. This is more likely to be the situation with an older worker. Second, older workers have more difficulty getting a job. Older workers suffer from the common discrimination that goes on all the time, whether on the basis of age, race, or something else: people often hire people who are “ like” themselves.

In an age discrimination case, the employee can sue for emotional distress and punitive damages. There are subjective, and are really u to the jury. Here, the jurors’ emotions are the most important factor.

Empathy is important to jurors. A juror who can see herself in the same position as the person suing is understandably more likely to award higher damages. A man may not be able to put himself in the place of sexually harassed woman. A white can’t empathize with an African-American.

RECENT CHANGES TO THE LAW

Companies can be sued for discrimination in two ways:

1) “Disparate Treatment,” where the employee is discriminated against because the employer doesn’t like the employee because of age, race, gender, etc.

2) “Disparate Impact,” where the employer isn’t motivated by any particular bias, but uses a facially neutral employment policy, which adversely affect employees on the basis of age, race, gender, etc. An example: applicants to be firefighters are required to be able to lift 150 pounds. Fewer female applicants are hired, because women generally can’t lift as much. This is “ disparate impact.” It’s perfectly legal, as long as the 150-pound lifting requirement is really necessary. If that’s absolutely required, there’s no problem. If it’s not necessary, or fewer pounds are really required to be lifted, then there is illegal disparate impact.

The federal Age Discrimination in Employment Act (ADEA) provides that workers over the age of 40 cannot be arbitrarily discriminated against because of age in any employment decision. Perhaps the single most important rule under the ADEA is that no worker can be forced to retire

The bottom line is this: it is more common and more understandable that an older worker who is fired will never work again at a comparable pay and position. That means that damages for future lost wages will be higher. That

36

means a higher cost to the employer, whether they settle the case or lose at trial.

The ADEA only applies to employees age 40 and older – and to workplaces with 20 or more employees. The ADEA applies to federal employees, private sector employees, and labor union employees. It does not, however, apply to state employees, as described below.

There are several other exceptions to the broad protection of the ADEA:

Executives or people “in high policy making positions” can be forced to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.

There are special exceptions for police and fire personnel, tenured university faculty and

Certain federal employees having to do with law enforcement and air traffic control If you are in on of these categories, check with your personnel office or benefits plan office for details.

An exception is made when age is an essential part of a particular job – referred to by the legal jargon of a “bona fide occupational qualification” (BFOQ). For example, if an employer needs to hire an actor to play the role of a teenager, or a children’s clothing store needs models, youthfulness is clearly a nece3ssary part of the job.

Age Bias Suits Are On The Rise

Age-discrimination lawsuits are beginning to outnumber sex-discrimination suits in the U.S. as large companies trim their work forces.

A class action suit filed by the Equal Opportunity Commission on behalf of 250 workers age 40 or above who were dismissed by a former Westinghouse defense unit is now one of the Commission’s largest pending cases.

Labor and legal experts say dismissed employees are more likely to sue if they feel they were treated in a degrading manner – rather than feeling they were discriminated against.

A number of companies soften the blow and shield themselves legally by offering consulting contracts and severance bonuses in exchange for a waiver of the right to sue.

AMERICAN WITH DISABILITIES ACT

Title I covers employment

37

Title II Part A covers public entities: state and local government

Title II Part B covers public transportation provided by public entities.

Title III covers private entities: public accommodations, commercial facilities, examinations and courses related to licensing or certification, and transportation provided to the public by private entities.

Title IV contains miscellaneous provisions.

Title I – Employment

Title I covers obligations of employers. It became effective July 26, 1992 for employers with 25 or more employees and July 26, 1994 for employers with 15 or more employees, and is enforced by the Equal Employment Opportunity Commission (EEOC).

Disability The ADA has a three-part definition of “disability.” This definition, based on the definition under the Rehabilitation Act, reflects the specific types of discrimination experienced by people with disabilities. Accordingly, it is not the same as the definition of disability in other laws, such as state workers’ compensation laws or other federal or state laws that provide benefits for people with disabilities and disabled veterans. Under the ADA, an individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or

more major life activities; • Has a recode of such an impairment; or • Is regarded as having such impairment.

Physical and Mental Impairments

A physical impairment is defined by the ADA as:

“Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respirator (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.” This list is not inclusive. Mental impairment is defined by the ADA as: "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

38

Again, this list is not inclusive. An impairment under the ADA is a physiological or mental disorder; simple physical characteristics, therefore, such as eye or hair color, left-handedness, or height or weight within a normal range, are not impairments. A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be art impairment. Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments. Example: A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because she dropped out of school is not an individual with a disability, because lack of education is not an impairment. "Stress" and "depression" are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder. Example: A person suffering from general "stress" because of job or personal life pressures would not be considered to have an impairment. However, if this person is diagnosed by a psychiatrist as having an identifiable stress disorder, s/he would have an impairment that may be a disability. A person who has a contagious disease has an impairment. Example: Infection with the Human Immunodeficiency Virus (HIV) is an impairment. The Supreme Court has ruled that an individual with tuberculosis which affected her respiratory system had an impairment under Section 501 of the Rehabilitation Act. Substantially Limits Under the American With Disabilities Act, an impairment is a "disability" only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population. The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity:

• Its nature and severity; • How long it will last or is expected to last; • Its permanent or long term impact, or expected impact.

39

Examples: A person with a minor vision impairment, such as 20/40 vision, does not have a substantial impairment of the major life activity of seeing. A person who can walk far 10 miles continuously is not substantially limited in walking merely because, on. the eleventh mile, he or she begins to experience pain, because most people would not be able to walk eleven miles without experiencing some discomfort. These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness, deafness, HIV infection or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities. Example: Although cerebral palsy frequently significantly restricts major life activities such as speaking, walking and performing manual tasks, an individual with very mild cerebral palsy that only slightly interferes with his ability to speak: and has no significant impact on other major life activities is not an individual with a disability under this part of the definition. The determination as to whether an individual is substantially limited must always be based on the effect of an impairment on that individual's life activities. Examples: An individual who had been employed as a receptionist-clerk sustained a back injury that resulted in considerable pain. The pain permanently restricted her ability to walk, sit, stand, drive, care for her home, and engage in recreational activities. Another individual who had been employed as a general laborer had sustained a back injury, but was able to continue an active life, including recreational sports, and had obtained a new position as a security guard. The first individual was found by a court to be an individual with a disability; the second individual was found not significantly restricted in any major life activity, and therefore not an individual with a disability. Sometimes, an individual may have two or more impairments, neither of which by itself substantially limits a major life activity, but that together have this effect. In such a situation, the individual has a disability. Example: A person has a mild form of arthritis in her wrists and hands and a mild form of osteoporosis. Neither impairment by itself substantially limits a major life activity. Together, however, these impairments significantly restrict her ability to lift and perform manual tasks. She has a disability under the ADA. Substantially Limits-Additional Considerations

40

Whether a person has a disability is assessed without regard to the availability of mitigating measures such as reasonable modifications, auxiliary aids and services, services and devices of a personal nature, or medication. Example: A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg may be considered to have a disability, even if the medicine or prosthesis reduces the impact of that impairment. [Notice the discrepancy between the, epilepsy example and the prior cerebral palsy example.] Temporary impairments may or may not be disabilities under the ADA.. How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment "substantially limits" one or more major life activities. This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities. Example: Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months would not be a disability under the ADA. However, if a broken leg took significantly longer than the normal healing period to heal, and during this period the individual could not walk, s/he would be considered to have a disability. Or, if the leg did not heal properly, and resulted in a permanent impairment that significantly restricted walking or other major life activities, s/he would be considered to have a disability. Major Life Activities To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty. Examples include walking, seeing, hearing, speaking, breathing, learning, performing manual tasks, caring for oneself, working. These are examples only. Other activities such as sitting, standing, lifting, or reading are also major life activities. Record of Such an Impairment This part of the definition protects people who have a history of a disability from discrimination, whether or not they currently are substantially limited in a major life activity. It protects people with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled or in remission. It also protects people with a history of mental illness. This part of the definition also protects people who may have been misclassified or misdiagnosed as having a disability. It protects a person who

41

may at one time have been erroneously classified as having mental retardation or having a learning disability. This person has a record of disability. If an employer relies on any record (such as an educational, medical or employment record) containing such information to make an adverse employment decision about a person who currently is qualified to perform a job, the action is subject to challenge as a discriminatory practice. Examples of individuals who have a record of disability, and of potential violations of the ADA if an employer relies on such a record to make an adverse employment decision:

• A job applicant was a patient at a state institution. When very young she was misdiagnosed as being psychopathic and this misdiagnosis was never removed from her records. If this person is qualified for a job, and an employer does not hire her based on this record, the employer has violated the ADA.

• A person who has a learning disability applies far a job as secretary/receptionist. The employer reviews records from a previous employer indicating that he was labeled as "mentally retarded." Even though the person's resume shows that he meets all requirements for the job, the employer does not interview him because he doesn't want to hire a person who has mental retardation. This employer has violated the ADA

• A job applicant was hospitalized for treatment for cocaine addiction several years ago. He has been successfully rehabilitated and has not engaged in the illegal use of drugs since receiving treatment. This applicant has a record of an impairment that substantially limited his major life activities. If he is qualified to perform a job, it would be discriminatory to reject him based on the record of his former addiction.

In the last example above, the individual was protected by the ADA because his drug addiction was an impairment that substantially limited his major life activities. However, if an individual had a record of casual drug use, s/he would not be protected by the ADA, because casual drug use, as opposed to addiction, does not substantially limit a major life activity. [So if you use drugs or alcohol to an excess you are protected.] To be protected by the ADA under this part of the definition, a person must have a record of a physical or mental impairment that substantially limits one or more major life activities. A person would not be protected, for example, merely because s/he has a record of being a "disabled veteran," or a record of "disability" under another federal statute or program unless this person also met the ADA definition of an individual with a record of a disability. Regarded As Having Such an Impairment An individual may be protected under this part of the definition in three circumstances:

42

The individual may have an impairment: that is not substantially limiting but is perceived by the covered entity as constituting a substantially limiting impairment. Examples: An individual with mild diabetes controlled by medication; is barred by the staff of a private summer camp from participation in certain sports because of her diabetes. Even though the individual does not actually have an impairment that substantially limits a major life activity, she is protected under the ADA because she is treated as though she does. An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled. The individual may have an impairment that is only substantially limiting because of the attitudes of others toward the impairment. Examples: An employee has a prominent facial disfigurement and has not been hired for a job which he is qualified. He is an individual with a physical impairment that substantially limits his major life activities only as the result of the attitudes of others toward him impairment. An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person. The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation. The individual may have no impairment but be regarded by the employer or other covered entity as having a substantially limiting impairment. Example: An employer discharged an employee based on a rumor that the individual had cancer. This person did not have any impairment, but was treated as though she had a substantially limiting impairment. This part of the definition protects people who are "perceived" as having disabilities from discriminatory decisions based on stereotypes, fears, or misconceptions about disability. Such protection is necessary because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments." Exclusions A person who currently illegally uses drugs is not protected by the ADA, as an "individual with a disability," when the covered entity acts on the basis of

43

such use. However, an individual who is engaged in or has completed drug rehabilitation and is no longer illegally using drugs is protected under the ADA. Homosexuality and bisexuality are not impairments and therefore are not covered by the ADA. The Act also states that the term "disability" does not include the following: sexual and behavioral disorders: transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs. Qualified Individual with a Disability - Title I To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified. An employer is not required to hire or retain an individual who is not qualified to perform a job. The regulations define a qualified individual with a disability as a person with a disability who: "satisfies the requisite work, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation can perform the essential functions of such position." There are two basic steps in determining whether an individual is "qualified" under the ADA: 1. Determine if the individual meets necessary prerequisites for the job, such as: education, skills, experience licenses training certificates, job-related requirements, such as good judgment or ability to work with other people Examples: The first step in determining whether an accountant: who has significant vision loss is qualified for a certified public accountant job is to determine if the person is a licensed CPA. If not, he is not qualified. It is a company's policy that all its managers have at least three years' experience working with the company, an individual with a disability who has worked for two years for the company would not be qualified for a managerial position. This first step is sometimes referred to as determining if an individual with a disability is "otherwise qualified." Note, however, that if an individual meets all job prerequisites except those that she cannot meet because of a disability, and alleges discrimination because he is "otherwise qualified" for a job, the employer would have to show that the requirement that screened out this person is "job related and consistent with business necessity." 2. Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation.

44

The second step has two parts:

• Identify the "essential functions of the job" • Consider whether the person with a disability can perform these

functions, unaided or with a "reasonable accommodation." The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job. Example: A file clerk position description may state that the person holding the job answers the telephone, but if in fact the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees, a person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position. If an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability, the employers, in assessing whether the person is qualified to do the job, must consider whether there are modifications or adjustments that would enable the person to perform these functions. Such modifications are called "'reasonable accommodations." Qualified Individual with a Disability Protections under Title II and Title III are afforded to qualified individuals with disabilities. Not every person with a disability is necessarily qualified. For purposes of determining eligibility for participation in the services and programs offered by a public or private entity, a person with a disability is considered to be qualified if the individual meets the essential eligibility requirements with or without:

• Reasonable modifications to rules, policies or practices; • Auxiliary (communications) aids or services; or • Removal of architectural, communications or transportation barriers.

The "essential eligibility requirements " for participation in many activities may be minimal. Example: Most public and private entities provide information about their programs, activities and services upon request. In such situations the only 'eligibility requirement' for receipt of such information would be the request of it. However, under other circumstances, the "essential eligibility requirements" imposed by a public entity may be quite stringent.

45

Example: A medical school may require those admitted to its programs to have successfully completed specified undergraduate science courses. Association Public and private entities may not discriminate against an individual or entity because of the known disability of a person with whom the individual or entity has a relationship. Examples: A county recreation center may not refuse admission to a summer camp program to a child whose brother has tuberculosis; a local government could not refuse to allow a theater company to use a school auditorium on the grounds that the company has recently performed at a hospice for people with HIV. If a private sports arena refuses to admit an individual with a mobility disability and her sister, due to the individual's mobility disability, the arena would be illegally discriminating against both individuals. People without disabilities are not entitled to reasonable accommodation, modifications to policies, practices and procedures, or other accommodations. Retaliation or Coercion Individuals who exercise their rights under the ADA or individuals who assist others in exercising their rights are protected against retaliation or coercion. POLITICS ON THE JOB

"Private-sector employers may generally impose broad limits on employees' political activities and discussions during working hours, even if other types of personal activities are permitted," says Dan Prywes, partner in the District of Columbia office of the law firm Bryan Cave.

However, federal law protects employees' right to discuss labor issues – wages and working conditions – with each other. So, employers can't ban you from urging co-workers to support Candidate X "because she supports higher wages." But can stop you from discussing the candidates issues not connected to labor issues.

Federal law prohibits employers from coercing employees to vote a certain way or contribute money to candidates or political action committees. And they're prohibited from threatening to discipline or fire the employee of they don't. Some states, such as New Jersey and Oregon, also have laws that prevent employers from compelling employees to participate as a "captive audience" in employer-sponsored political events.

46

However, with the Supreme Court's Citizen United decision in 2010, employers have a greater ability to communicate their political views and preferences to employees, and spend money to support a candidate, as long as that is not coordinated with a political campaign.

California, does not allow an employer from discriminating on the basis of his or her political views. So, Trump supporter could not get more favorable hours than a Clinton supporter.

47

INDEX Age Discrimination Act 31 Agents and diversity 3 American Disabilities Act 36 American With Disabilities Act 38 Bullying 18 Credit score discrimination 22 Discrimination, gender identity 17 Diversity 3 Diversity and ethics 7 Diversity and Inclusion 4 Diversity definition 3 Diversity in the marketplace 14 Diversity in the workplace 23 Diversity programs 6 Diversity training, what is it? 3 Ethics are not laws 13 Ethics defined 7 Gender identity, discrimination 17 Inclusion 4 Insurance discrimination 8 Intolerance 5 Moral compass 11 Moral distress 11 Motherhood penalty 23 Politics on the job 45 Racial bias 15 Redlining 19 Religious discrimination 18 Right to refuse service 15 Shades of grey 8 Stakeholder 11 Stereotyping 23 Tolerance 4 Unlawful employment practices 26 Workplace discrimination laws 25