Question #3
You have been hired as a consultant to provide training to a group of general managers on the “basics of
fair employment practice law.” Provide an outline of the coverage for an excellent workshop, including
the statues that should be covered along with the basic employer obligations for each and other basic
information that general managers should know about these statutes.
1.Title VII of the Civil Rights Act of 1964
A.
prohibits employers from discriminating with respect to any employment practice on the basis
of:
a. Race
b. Religion
c. Sex/gender (no Federal protection for sexual orientation, transgender, etc)
d. Color
e. National origin
B. Coverage
a. Employers with 15 or more employees (FT or PT)
b. Labor unions with 15 or more employees
c. Employment agencies
C. Enforcement – EEOC
D. Disparate Treatment - Intentionally treating an employee less favorably on the basis of race,
religion, sex, color, national origin
a. To establish a Prima Facie (“first fact”) case (shift burden of proof to employer) the
plaintiff must demonstrate:
i. She belongs to a protected group
ii. She applied for and was qualified for the job in question
iii. Despite qualifications, she was rejected
iv. The employer actively sought candidates after the rejection (or ultimately filled
the position)
b. Once plaintiff shifts burden of proof to employer:
i. Employer must provide legitimate, nondiscriminatory excuse for its actions
1. Other than race, religion, sex, color or national origin
2. Acceptable: “the person is a jerk!”
c. McDonnell Douglas vs. Green rule: employer should have specific job description
i. Vague gets you in trouble!
E. Disparate (Adverse) Impact - Adverse effect of a practice or standard that is neutral and nondiscriminatory in its intention but, nonetheless, disproportionately affects individuals having a
disability or belonging to a particular group based on their age, ethnicity, race, or sex.
(BusinessDictionary.com)
a. BFOQ – Bona Fide Occupational Qualification
i. Best to establish before hiring
ii. Reasonably necessary for operation of enterprise
1. Is it essential?
a. Authenticity
b. Safety
c. Moral reasons
2. Is it crucial for the essence of the organization?
a. Does not include customer preference
b. Initially, plaintiff must provide statistical evidence of adverse impact (data that suggests
that one or more protected groups are being adversely affected by an employment
practice) in order to shift burden of proof to the employer
i. 3 common types
1. Restrictive policy
a. Demographic/statistical evidence suggests that protected group
members are excluded disproportionately (ex: 5’8” or taller
disqualifies 80% of women)
2. Four-fifths rule
a. “Are we hiring and/or promoting protected group members in
reasonable proportion to majority group members?”
i. Reasonable proportion = 4/5 or 80%
b. Step 1: Calculate the selection rate
i. Divide # of individuals selected/promoted by # of
qualified individuals who applied (or were qualified for
promotion) by protected group
c. Step 2: Identify Majority Group = group with the highest
selection rate
d. Step 3: Divide selection rate for each minority group by the
selection rate of the majority group
e. Applying Four-fifths rule:
i. If result < 4/5 or 80% this constitutes evidence of
adverse impact and shifts burden of proof to employer
f. Important Notes:
i. 4/5 rule applies only to larger organizations (insufficient
data for smaller organizations)
ii. Collecting applicant flow data is not easy
3. Labor force analysis
a. Availability Analysis – are we hiring what’s available?
i. Qualified relevant labor market = % of qualified protected
group members in geographic reason where organization
would recruit for a particular occupational group
b. Utilization Analysis – who are we utilizing?
i. Law requires organizations to utilize a close approximation
to the percentage of qualified individuals available
1. if there is not a close match between who is utilized
and who is available, this constitutes evidence of
adverse impact
F. Title VII Religious Discrimination Cases
a. TWA vs. Hardison: employers must accommodate religious beliefs up to the point of
undue hardship
b. Many rely on 2 questions:
i. Did the employer attempt to accommodate?
ii. Was the accommodation reasonable? (doesn’t need to be optimal)
G. Sex Discrimination Cases (definitions from Abanet.org)
a. Hostile environment harassment - employee subjected to sexual comments, offensive
sexual materials or unwelcome physical contact as regular part of work environment
i. Is conduct both serious and frequent?
b. Quid Pro Quo harassment - Job benefit directly tied to employee submitting to
unwelcome sexual advances
H. Pregnancy Discrimination Act amending Title VII requires that pregnancy be treated like any
other temporary disability
***does not include any of the eeoc presentations – perhaps we can share the power points from each
team?***