A.    Equal Pay Act (1963)

B.    Title VII of the 1964 Civil Rights Act

1.    Employer coverage

a.    applies to private and government employers with 15 or more employees as well as labor unions and employment agencies
b.    exemptions--private membership clubs, Indian tribes, religious employers

2.    Protected groups

a.    race
b.    national origin (Case Questions #5 and #11)
c.    color
d.    religion
e.    sex, sexual harassment, pregnancy

C.    Age Discrimination in Employment Act (ADEA)  

1.    Employer coverage

a.    applies to private and government employers with 20 or more employees as well as labor unions and employment agencies
b.    exemptions--private membership clubs and Indian tribes

2. Protected groups—individuals 40 and over

A.    Prima facie case

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

B.    Employer defenses

1.    BFOQ

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

2.    legitimate nondiscriminatory reason

C.    Plaintiff’s rebuttal

1.    attack nondiscriminatory reason
2.    mixed motive

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

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

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

A.    Protected activity

1.    Opposition—threats to file a claim, refusing to obey an order because of a reasonable good faith belief that it is discriminatory.
2.    Participation—filing a charge, participating in an investigation (regardless of whether discrimination actually occurred).  

B.    Adverse employment decision (retaliatory conduct)

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

A. Quid Pro Quo

1.    Plaintiff was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors from a supervisor or individual with authority over the plaintiff;
2.    Harassment complained of was based on sex;
3.    Submission to the unwelcome advances was an express or implied condition for receiving some form of job benefits, or refusal to submit to sexual demands resulted in a tangible job detriment.

B. Hostile Work Environment

1.    Plaintiff was subjected to unwelcome sexual harassment such as sexual advances, requests for sexual favors, sexually oriented jokes or comments, displaying sexually oriented calendars or posters, and touching of a sexual nature by a supervisor, peer, subordinate, or customer.
2.    Harassment complained of was based on sex;
3.    The harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
4.    The employer knew or should have known of the harassment and failed to take appropriate remedial action.
5.    Employers are vicariously liable for a hostile work environment created by a supervisor unless:

a.    the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
b.    the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer

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

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

1.    has a physical or mental impairment that substantially limits one or more of the major life activities;
2.    has a record of such an impairment; or
3.    is regarded as having such an impairment

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

D.  Requires employers to make reasonable accommodations for known disabilities

E.  Recent decisions regarding controlled conditions

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

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

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

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

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

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

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

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

A.    Mandatory affirmative action

1.    Executive Order 11246—requires employers having a contract with the federal government of at least $50,000 and employing at least 50 people to develop a written affirmative action plan.
2.    Court decisions may also require AAPs to remedy past discrimination.

B.    Voluntary affirmative action

1.    the AAP must exist to eliminate past imbalances based upon a protected group category
2.    the AAP must not unnecessarily trammel the rights of the majority
3.    the plan must be temporary
4.    the plan must not provide for set aside positions