Equal Employment Opportunity
Principles of Discrimination Law
Summary: Discrimination Law
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What is “discrimination” and who is protected?
Equal Achievement vs Equal Opportunity
Why do these laws exist? Are they still needed?
How does a plaintiff build a prima facie case?
How does an employer defend itself?
Two Doctrines of Fairness
• Equal Achievement
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• Equal Opportunity
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• “Even a true generalization about a class cannot
justify class-based treatment” (Supreme Court’s Norris decision,
1983)
Unemployment Trends
1973
1982
1991
2001
2005
White Black Hispanic
4.3% 9.4%
7.7%
8.6% 18.9% 13.8%
6.6% 12.5% 10.0%
4.2% 9.3%
6.6%
4.4% 10.0% 6.0%
Earnings by Race
White
Black
Hispanic
Men
$ 47,814
$ 34,480
$ 27,490
Women
$ 35,151
$ 30,398
$ 24,738
2006
Building a Prima Facie Case
• Disparate treatment
• McDonnell Douglas v. Green
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• Disparate (Adverse) Impact
• Griggs v. Duke Power
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Proving Disparate Treatment
1. In general: show differential treatment based on
protected characteristics
2. McDonnell-Douglas v. Green rule
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Possess protected characteristic
Applied for job
Met job qualifications requirements
Rejected/job remained open
Proving Disparate Impact
1. Disparate rejection rates
• Male rejection rate vs. female rejection rate
2. Disparate potential rejection rates
3. Population comparisons
• Males in firm/qualified males in market
vs
• Females in firm/qualified females in market
The Four-fifths Rule
“A selection rate for any race, sex or ethnic
group which is less than four-fifths (4/5) (or
eighty percent) of the rate for the group with the
highest rate will generally be regarded by the
Federal enforcement agencies as evidence of
adverse impact....”
Defenses to Disparate Treatment
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Defenses to Disparate Impact
• Business Necessity
• “that which is reasonably necessary to the safe
& efficient operation of the business”
• “legitimate and overriding business
considerations”
• Job Relatedness
• demonstrating a relationship between a
requirement and job performance
Title VII Remedies
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Agreement to cease practice
Reversal of adverse decision
Affirmative Action Program
Monetary
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Back pay (up to 2 years)
Litigation costs
Punitive damages (if intentional)
Compensatory damages (if malicious)
Summary: Discrimination Law
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Why these laws exist
Equal Achievement vs Equal Opportunity
What is “discrimination” and who is protected?
Evidence and Proof
• Disparate Impact vs. Disparate Treatment
• Plaintiff’s burden: prima facie evidence
• Employer’s defense
Equal Employment Opportunity
Primary Anti-Discrimination Laws
EEO Legal Constraints
• U.S. Constitution
• 5th & 14th Amendments particularly
• Statutory (Legislative) Law
• Federal, State, Municipal
• Case (Common) Law
• Executive Orders
• <Regulatory agency guidelines>
Primary Federal EEO Laws
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Equal Pay Act (1963)
Title VII, CRA (1964/72/91)
Vocational Rehabilitation Act (1967)
Age Discrimination in Empl. Act (1967/86)
Pregnancy Discrimination Act (1978)
Immigration Reform/Control Act (1986)
Americans with Disabilities Act (1990)
Title VII
• Part of Civil Rights Act (1964/72/91)
• Established protected characteristics
• Created Equal Employment Opportunity Comm
• Create guidelines (e.g. Uniform Guidelines on Selection)
• Enforce Title VII
• Collect compliance data (Form EEO-1)
• Basis for other EEO laws
• Pregnancy Discrimination Act (1978)
• Age Discrimination in Employment Act (1967, 1986)
Americans with Disabilities Act
• Prohibits discrimination against “qualified
individuals with a disability”
• Who are “qualified individuals”?
• A person with a disability who, with or without
reasonable accommodation, can perform the
essential functions of the job”
Some ADA Statistics
• 43 million Americans may be covered
• 90,000 lawsuits filed (as of 11/98)
• Plaintiffs have lost 90% of cases that have gone
to court
• Costs $100K to defend
What is a “Disability”?
• “A physical or mental impairment which
substantially limits one or more of life’s
major activities”
• “communication, ambulation, self-care, socialization, education,
vocational training, employment, transportation...with primary
attention given to those life activities that affect employability”
• “A record of such impairment”
• “Being regarded as having such an
impairment”
Reasonable Accommodation
• Employers must change job conditions, tasks, or
requirements in order to allow otherwise
qualified employees to do the job
• This also includes the application process
• But accommodation should not represent an
“undue hardship”
“Undue Hardship”?
• “any accommodation that would be unduly
costly, extensive, substantial, or disruptive or
that would fundamentally alter the nature of the
operation of the firm”
• based on resources of individual site
• decided on case-by-case basis
What are Essential Functions?
• “Primary job duties that are intrinsic to the
employment position”
• time spent doing
• criticality
• ability of others to cover
• Should be determined before hiring decision
• Be sure to include “obvious” KSAs
Hiring Implications of ADA
• Determine essential functions
• Remove recruitment barriers
• Applicants may need to be accommodated
• Treat applicants equally
• Pre-employment medical exams only after
job offer
• Allow applicant to identify self as disabled
• Accommodation of job requirements
Review: Primary Federal EEO Laws
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Equal Pay Act (1963)
Title VII, CRA (1964/72/91)
Vocational Rehabilitation Act (1967)
Age Discrimination in Empl. Act (1967/86)
Pregnancy Discrimination Act (1978)
Immigration Reform/Control Act (1986)
Americans with Disabilities Act (1990)
EEO Law & Multinationals
• American employees of US corporations can
sue under Title VII, ADEA or ADA even if
working overseas
• But this applies only to US citizens, not foreign
citizens working for US companies
• Does not apply to Fair Labor Standards Act
• “Foreign Laws Defense”
• Exemption allowed if complying with US laws
would cause violation of local laws
• Does NOT include customs or preferences