Law and Justice
1. Federal Discriminatory Statutes
- 3 primary prohibit employment discrimination
a. Title VI: Civil Rights Act of 1964
b. Age Discrimination in Employment Act (1967)
c. Americans w/Disabilities Act (1990) ‘ADA’
(1) Taken together:
- prohibit discrimination
- race / color / gender / national origin /
age / disability
(2) Many federal / state statutes
- regulate aspects of employment
- over-lap primary federal rules
2. Title VII
- employers / employment agencies / labor
organizations
- state / local government agencies (15 or more)
a. Prohibits discrimination against employees
- hiring / discharge
- compensation / terms / conditions / privileges
- race / color / gender / natural origin / religion
b. 3 types of behavior are actionable:
(1) First: disparate treatment
- blatant discrimination / protected group
- refuse to hire / promote
- discriminatory motive must be proven
(2) Second: disparate impact
- test / policy / other selection criteria
- appears neutral
- adverse effect on protected group
(3) Third: religion
c. Gaining access to courts
- exhaust administrative remedies
(1) State / local anti-discriminatory agency
- claim filed in timely manner
- 60 days to resolve
(a) After expiration
- file with EEOC (90 days)
(b) 180 days to investigate
- choose to dismiss
- try to eliminate problem
- initiate court proceedings
(c) EEOC does not initiate
- obtain “Right to Sue” letter
- 180 days after claim filed
(2) Once in court
- disparate treatment action
(a) Plaintiff member of protected class
(b) Applied for / qualified for position
(c) Rejected by employer
(d) Employer continued seek applicants /
filled with person not of protected class
(3) Prima facie case proven
- burden shifts to employer
- show legitimate reason: hiring/promoting
(4) Disparate impact: once employed
- connection: policy / selection practice /
discriminatory effect
(a) Based on gender
- applies due to:
- pregnancy/sexual harassment
(b) Not discriminatory
- same level those not pregnant
(c) Discriminatory
- deny pregnant temporary leave
- others w/disabling condition
2. Two types sexual harassment actionable
- take legal action under Title VI
a. First: “quid pro quo”
- promotions / raises / other job benefits
- offered in return for sexual favors
b. Second: “hostile environment”
- exposed to sexual conduct / comments
- employee finds offensive
(1) Two tests for “offensive” must be met:
- objective test: “reasonable person”
- subjective test: offensive to plaintiff
(2) Quid pro quo actions
- employer held strictly liable
- managers / supervisors
- had / should have had knowledge
- not relevant
(3) Hostile environment actions
- hold employers liable
- only if had / should have had knowledge
- of harassment / failed to take action
3. Title VII before 1998
- unclear protected same-sex harassment
a. Oncale vs. Sundowner Offshore Services
- US Supreme Curt
- Title VII applies to all
b. Court allowed “affirmative action” plans
- no preferential treatment for any group
- commitment to equal opportunities:
- recruitment / selection / employment /
training
Age Discrimination
1. Age Discrimination in Employment Act (1967) ADEA
- prohibits at least 40 years old
- upper cap 70 / 1987 Congress removed
a. Protects older people
- minors (under 18) do not enjoy
(1) Regulates all aspects of work environment
- hiring / promotion / assignments / firing /
wages / working conditions
(2) EEOC responsible for enforcement
- modeled after Title VII
- investigate / file in court / issue ‘Right to Sue’
(3) Covers all employers / labor unions / employment
agencies / government agencies w/20 employees
(a) Applies to those 40 years old
- ad to hire 25 to 35 years / violation
- ad to hire 40+ years / not discriminatory
- younger not a protected class
(b) State laws violation to discriminate: 18 older
- leave ‘age’ undefined to protect all people
(c) Title VI: protect against reverse discrimination
2. Disparate treatment / disparate impact
- actions brought by ADEA
- Bonafide Occupational Qualification Defense
- can excuse disparate impact violations
a. Against elderly
- prohibited in public accommodations
- provision of government services
b. Housing laws
- prohibit against 55 or older
- ban insurance companies / refuse-cancel / due to age
3. Disability / illness discrimination
 A. Prior laws prohibited discrimination
- people with disabilities
- ADA enacted in 1990
- most comprehensive / remedial legislation
(1) Prohibits= “any qualified individual with a disability”
- defined: “a physical or mental impairment that
substantially limits one or more of the major life
activities of an individual”
(2) Major life activities
- seeing / hearing / speaking / breathing / learning /
caring for oneself / working
(3) ADA also prohibits discrimination if:
- record of having physical impairment
- no longer has impairment
(a) also applies:
- if employer “regards” person as having
- even though does not actually have
B. To be protected by ADA
- must have disability
- show as “qualified individual”
- can perform “essential functions”
- with / without “reasonable accommodations”
(1) Employer may decline:
- undue burden
- too expensive
- hire extra person
(2) Reasonable accommodations
- modifying work schedule
- additional unpaid leave / vacation = medical
- moving to vacant position / light duty
- assigning “non-essential duties” to another
Gay and Lesbian Rights
1. Last decade saw increased effort
- enactment / protection of civil rights
- increased attention
A. Congress not passed law prohibiting
- sexual orientation / preference
- states / local governments have
- discrimination prohibited in employment / housing
/ public accommodations
B. Romer v. Evans (1996)
- struck down Colorado amendment
- prohibited local government protection
(1) Violated equal protection clause
- identified people of particular trait
- denied them protection of the law
(2) Gay / lesbian rights activists
- decision a critical step
- universal equal rights
C. Prior to Romer v. Evans