Employment Discrimination
Copyright © 2013 - Jeffrey Pittman
The Heart of an Organization
The keys to success for any company – the
employees
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Employment Lifecycle
An employee is:
 Hired by the employer
 Works for the employer
 Leaves the employer
◦ Voluntarily
◦ Involuntarily - fired
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Wrongful Discharge
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Being fired from a job is a legally and emotionally
significant event
An employee who wishes to challenge losing his/her job
does so with a wrongful discharge lawsuit
Wrongful discharge lawsuits outnumber failure to hire
lawsuits approximately 4 to 1, in the Unites States
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The Employment Relationship
Employment at will (EAW)
 EAW is a doctrine which provides that a
contract of employment for an indefinite
term is terminable at the will of either
party
 Under EAW, an at-will employee may be
discharged for good cause, no cause, or
even a morally wrong cause
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Ending the Employment Relationship
Federal exceptions to employment at will
 Federal civil rights laws create a major
modification to employment at will
◦ Civil rights protections exist against discharge based
on age, race, gender, disability, religion, national origin,
or color
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Federal Civil Rights Protected Characteristics
Color
 Age
 Race
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Disability
 Origin
 Religion
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Sex
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Ending the Employment
Relationship
State exceptions to employment at will
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State law also limits employment at will by requiring
employers to follow any contractual
commitments entered into, and by not allowing
employee firings that violate fundamental public
policy
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Major Federal Civil Rights
Legislation
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The Equal Pay Act of 1963 (EPA), which protects men
and women who perform substantially equal work in
the same establishment from sex-based wage
discrimination
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Major Federal Civil Rights
Legislation

Title VII of the Civil Rights Act of 1964 (Title VII)
prohibits employment discrimination based on race,
color, religion, sex, or national origin
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Major Federal Civil Rights
Legislation

The Age Discrimination in Employment Act of 1967
(ADEA) protects individuals who are 40 years of age or
older
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Major Federal Civil Rights
Legislation
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The Americans with Disabilities Act (ADA) prohibits
employment discrimination against qualified individuals
with disabilities
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Possible Civil Rights Violations
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Failure to hire
Termination
Denial of promotion
Undesirable reassignment
Awards
Leave decisions
Compensation
Benefits
Training
Retaliation
Referral practices
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The EEOC
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The U.S. Equal Employment Opportunity Commission
(EEOC) is the primary government agency charged with
enforcement of federal civil rights laws
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Disparate Treatment
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The simplest form of illegal discrimination is disparate
treatment.
A basic question to test for disparate treatment is this:
Would the employment decision in question change if the
employee’s race, color, religion, national origin, sex, age, or
disability was different?
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Prima Facie Discrimination
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A prima facie case is a presumption that discrimination
did take place, if logically possible
The presumption of discrimination disappears after the
plaintiff has completed the discovery process
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Proving Discrimination
Disparate Treatment
Evidence at Trial
 Employee proves, with a
preponderance of the
evidence, discrimination
based on CAR DORS, or
Employee loses
 If Employee is successful,
Employer must prove
discrimination is a BFOQ, or
Employer loses
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Prima Facie
(Shifting the burden of proof)
Employee establishes prima facie evidence
of discrimination based on CAR DORS, or
Employee loses
Employer counters with legitimate
reasons for the action taken
Employee argues Employer’s reasons
are a pretext for discrimination
After discovery, the case proceeds
following “Evidence at Trial” column (unless
one party has failed to raise genuine issues
of material facts, leading to summary
judgment)
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Disparate Impact
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Also labeled unintentional discrimination, disparate
impact violations of the law may come about through
inadvertent error on the part of the employer
The basic component of disparate impact is proof that
some employment practice, policy, or decision affects one
class of employee more harshly than it affects another class
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Proving Discrimination
Disparate Impact
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Employee proves a “neutral” employment practice has an
adverse impact on a protected class, or Employee loses. If
successful,
Employer proves employment practice is job-related and
a business necessity, or Employer loses. If successful,
Employee counters that there is a less restrictive
alternate employment practice
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Sexual Harassment Theories
Sexual harassment involves unwelcome sexual advances or
other harassing conduct directed toward an employee
because of that employee’s gender, and
Quid Pro Quo
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A supervisor conditions
a term of employment
upon agreeing to sexual
advances
Hostile Environment
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The harassing conduct is
sufficiently severe or
pervasive as to 1) create an
intimidating or offensive
working environment or 2)
unreasonably interfere with
job performance
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Employer Liability for Sexual
Harassment
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Employer liability for gender harassment by coemployees or customers. Employers are liable for
gender harassment directed at an employee from coemployees or customers where the employer’s agents
or supervisory employees know or should know
about the harassment, and fail to take immediate and
appropriate corrective action.
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Employer Liability for Sexual
Harassment
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Employer liability for gender harassment by
supervisory employees - An employer has automatic
liability for gender harassment directed at an employee
if the harassment comes from a supervisor with
immediate (or higher) authority over the victimized
employee.
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Affirmative Defense
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The employer may be released from this automatic
liability only if the employer can prove all three
elements of the following affirmative defense:
◦ 1. No tangible employment actions were taken against the
victimized employee, and
◦ 2. The employer exercised reasonable care to prevent
and correct promptly any harassing behavior, and
◦ 3. The employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by
the employer.
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Affirmative Action Analysis
(Re: Plans Based on Race)
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Government Plans - Equal
Protection from the US
Constitution requires:
◦ The affirmative action plan
must be narrowly tailored
to meet the objective, and
◦ There must be a
compelling state interest
for the plan (usually
meaning that there must
be past discrimination by
the entity involved)
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Private Plans - Requirements
under the 1964 CRA:
◦ Plan must be based on past
discrimination or other
persuasive rationale, and
◦ There is no unnecessary
“trammeling” of rights, e.g.,
 No firing, layoffs, or hiring
quota limits for nonminority
workers, and
 The plan is temporary
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