Title VII of Civil Rights Act of
1964
• Employers with 15 + Employees
• No Discrimination in Terms or Conditions
of Employment Based on Race, Color, Sex,
Religion or National Origin
• Remedies: Reinstatement, Backpay and
Benefits, Legal Fees, Compensatory and
Punitive Damages (limited - employer size)
• Defenses: BFOQ, Bona Fide Seniority
System
NYS Human Rights Law
• Employers with 4+ Employees
• No Discrimination in Employment Based on:
•
•
•
•
•
•
•
•
•
Race or Color
Religion
Sex
National Origin
Marital Status
Disability
Age >18
Criminal Record (If Not Job Related)
Sexual Preference or Sexual Orientation
Discrimination under Title VII
• Disparate Treatment -- Intentional
discrimination based on race, color, sex,
etc.
• Disparate Impact -- discriminatory effect
of apparently-neutral criteria that are not
job related
• Pattern or Practice -- EEOC or govt. suit
for widespread practice
• Retaliation or Reprisals
Disparate Impact Discrimination
and Selection Validity
• Sec. 703(k) of Title VII of Civil Rights Act
of 1964, as amended
• Disparate Impact -- shown by 4/5th’s
Rule or Other Statistical Evidence
• Concern about labor market definition
• Job-related Validity -- Uniform
Guidelines on Employee Selection
Seniority & Title VII
• S. 703(h) -- action pursuant to bona fide
seniority system not a violation
• Teamsters -- what is a bona fide seniority
system?
–
–
–
–
neutral on its face
origin free from discrimination
basis rational in light of industry
maintained free from discriminatory intent
The Equal Pay Act
• Equal Pay for Equal Work
• Equal Work Defined as
– Equivalent Skills, Effort, Responsibility and
Working Conditions
• Defenses
–
–
–
–
Seniority
Merit Pay
Productivity Pay
Factor Other than Sex
Family and Medical Leave Act
• Employers with 50+ employees
• Unpaid leave for employees for:
– birth or adoption of child
– foster care
– serious medical condition for child, spouse, self or
parents
• Right to return to same or equivalent position
• May require notice
• “Key employees” exempted
SEXUAL
HARASSMENT
SEXUAL HARASSMENT
Definition: 29 C.F.R. 1604.11
• Unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature constitute sexual
harassment when:
• submission to such conduct is made either explicitly or implicitly a
term or condition of an individual’s employment,
• submission to or rejection of such conduct by an individual is used
as the basis for employment decisions affecting such individual,
or
• such conduct has the purpose or effect of unreasonably interfering
with an individual’s work performance or creating an
intimidating, hostile or offensive working environment.
QUID PRO QUO
HARASSMENT
• Submission to such conduct is made
either explicitly or implicitly a term or
condition of an individual’s employment,
or
• Submission to or rejection of such
conduct by an individual is used as the
basis for employment decisions affecting
such individual
HOSTILE ENVIRONMENT
Harris v. Forklift Systems, 114 S.Ct. 367 (1993)
• When the workplace is permeated with
discriminatory intimidation, ridicule and
insult that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an
abusive working environment, Title VII is
violated
• Reasonable Person or Reasonable
Woman?
EMPLOYER LIABILITY
• Supervisory Employees: Agency
Principles
• Co-Workers: Did Employer Know, or
Should Have Known?
• Non-Employees: Extent of Employer’s
Control, and Did Employer Know or
Should Have Known?
EMPLOYER LIABILITY
FOR SUPERVISORS’
HARASSMENT
• Faragher v. City of Boca Raton, 118 S.Ct.
2275 (1998)
• Burlington Industries, Inc. v. Ellerth, 118
S.Ct. 2257 (1998)
• Does harassment result in tangible
employment result?
– If so, employer automatically liable
– If not, employer can establish defense
EMPLOYER’S DEFENSE
• Two Parts:
– employer must show exercised reasonable
care to prevent & correct promptly sexual
harassing behavior; &
– employee unreasonably failed to take
advantage of any preventative or corrective
opportunities provided by employer
• Goes to liability & damages
LEGAL REMEDIES FOR
SEXUAL HARASSMENT
• Reinstatement, Promotion as appropriate
• Damages: Lost Wages & Benefits
• Compensatory Damages: Medical or
Emotional Injury, Pain & Suffering
• Punitive Damages: Amount Limited Based on
Employer Size
• Legal Fees for Plaintiff
• Court Injunction: Cease & Desist Order
• Possible Tort Liability as well
PREVENTION
• “An employer should take all steps
necessary to prevent sexual harassment
from occurring” -- EEOC Guidelines
• Educate and sensitize all employees
• Develop policy for dealing with
complaints and appropriate sanctions for
violations
• Publicize policy
• Take immediate action on complaints
EMPLOYER’S SEXUAL
HARASSMENT POLICY
• Define Sexual Harassment (EEOC Guidelines
& Practical Examples)
• Make It Clear Such Conduct Will Not Be
Tolerated by Anyone
• Specify Penalties -- up to Termination
• Specify Procedures for Filing Complaints
• Designate Person to Receive and Investigate
Complaints
• Protect Complainant from Reprisals or
Retaliation
Civil Rights Acts of 1866 :
42 U.S.C. 1981 & 1983
• S. 1981: Intentional Discrimination
Based on Race
• Covers Employment Discrimination
• Suit for Compensatory & Punitive Damages,
Legal Fees
• S. 1983: Deprivation of Rights Protected
by Law
• Intentional Discrimination by Public Sector
Employers
• Suit for Damages and Legal Fees
Age Discrimination in
Employment Act
•
•
•
•
Covers Employers with 20+ Employees
No Discrimination Based on Age > 40
No Mandatory Retirement Age
Defenses:
• BFOQ
• Executive Exemption
• Bonafide Seniority or Benefit Plan -- Cost
Justification
• Factor Other Than Age
Americans with Disabilities Act
• Coverage : 15 or more employees
• 3 Part Definition of Disability
• Reasonable Accommodation of Otherwise
Qualified Persons with a Disability
• Defenses:
• Direct Threat to Health or Safety
• Job Related Criteria
• Food Handler Defense -- HHS List
• Religious Entities
Rehabilitation Act
• 3 Part Definition of Disability
• Protects Otherwise Qualified Individuals
with a Disability
• S 503: Federal Contractors (> $10K)
subject to nondiscrimination obligation
• S. 504: Activities receiving federal
funding can’t discriminate against
otherwise qualified individuals with a
disability
E.O. 11246
• Federal Contractors ($10K) must agree
not to discriminate on race, color,
religion, sex or national origin
• Contractors with $50K and 50+
employees must have written affirmative
action plan
• Utilization Analysis of Workforce
• Goals and Timetables to remedy
underutilization of women and minorities
STATE EEO LEGISLATION
• Broad Protections -- go beyond Title VII
and other federal legislation
–
–
–
–
Genetic Characteristics or Traits
Criminal Record
Marital or Family Status
Sexual Orientation (15 States + D.C.)
• Other Legislation: Whistleblower laws,
Off Duty Conduct