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Discrim Emplmt/Hardison/Schl Law 10-11-12 1
Discrimination in Employment
Presented by:
Catherine Hardison, JD, PhD
And
Charles Wheaton, PhD
Discrim Emplmt/Hardison/Schl Law 10-11-12 2
Civil Rights Act, 1964 Title VII 1972 = School districts included Based on race, color, sex, or national origin cannot
Fail, refuse to hire or discharge any individual with respect to compensation, terms or conditions of employment
Limit, segregate or classify employees or applicants for employment opportunities or otherwise adversely affect his status as an employee
Fail or refuse to refer for employment
Discrim Emplmt/Hardison/Schl Law 10-11-12 3
Civil Rights Act, 1964 Title VII Amended in 1991 (PL 102-166)
Allowed for compensatory and punitive damages, back pay, reinstatement for disparate treatment
Steps: File complaint with EEOC with 180 days of alleged
discrimination OR within 300 days if individual has filed a claim with local or state civil rights agency
If don’t meet timeline, then lose standing (meaning?)
Discrim Emplmt/Hardison/Schl Law 10-11-12 4
Civil Rights Act, 1964 Title VII To succeed, Plaintiff must demonstrate employers reason for
denying employment is false and actual reason is discrimination.
Example: Application made Person is qualified for position Not given fair consideration for position Demonstrate prima facie case, then burden shifts
to school district to prove employment decision is not based on a discriminatory practice
Discrim Emplmt/Hardison/Schl Law 10-11-12 5
Civil Rights Act, 1964 Title VII McDonnell Douglas Corp v. Green (1973) &
Furnco Construction Corp v. Waters (1978) Plaintiff carries initial burden of establishing a prima facie
case (sufficent evidence) of employment discrimination Burden shifts to D to refute prima facie case--demo
legitimate nondiscriminatory reason for decision If D is successful, the plaintiff then must prove D’s actions
are a mere pretext for discrimination.
Discrim Emplmt/Hardison/Schl Law 10-11-12 6
Civil Rights Act, 1964 Title VII What if…has district violated title VII
A district passes over a female who has equal or more impressive credentials than a male for administrative positions?
An African American female was not promoted because she lacked interpersonal skills and had an abrasive personality?
A female teacher showed discrimination in hiring, but the district showed that she would not have been promoted had she been a man?
Discrim Emplmt/Hardison/Schl Law 10-11-12 7
Sexual Discrimination Also covered under Title IX of Education
Amendments Act of 1972 Administered by OCR Also has a provision for sexual distinctions in
employment where sex is a bona fide occupational qualification
Violations can mean a loss of federal funds for an entire district
Discrim Emplmt/Hardison/Schl Law 10-11-12 8
Rehab Act of 1973 and Amer with Disabilities Act of 1990 ADA + IDEA
Protects individuals against discrimination and
Assures equal access and opportunity Can you think of a place that is not accessible? How would you make it more accessible?
Discrim Emplmt/Hardison/Schl Law 10-11-12 9
Rehab Act of 504 Section 504 of Rehab Act
Prohibits Discrimination against any “otherwise qualified” person who has a disability with respect to:
• Employment • Promotion• Training • Compensation• Fringe Benefits• Terms & Conditions of Employment
“No otherwise qualified individual with handicaps… shall solely by reason of his or handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”
Discrim Emplmt/Hardison/Schl Law 10-11-12 10
ADA and 504 ADA protects students and any person who
“has a physical or mental impairment that substantially limits one or more major life
activities” Caring for oneself, performing manual tasks, hearing,
seeing, speaking, breathing, walking, learning and working
Has a record of such impairment Or is regarded by others as having such an
impairment
Discrim Emplmt/Hardison/Schl Law 10-11-12 11
ADA and 504 Employers (school districts) must make reasonable accommodations:
Existing facilities used by employees must be readily accessible/usable by disabled individuals
Accommodations include Job restructuring Part time, modified work schedules Reassignment to a vacant position Acquisition/modification of equipment, devices Appropriate adjustment or modifications of examinations,
training materials, or policies Provision of qualified readers/interpretators
Discrim Emplmt/Hardison/Schl Law 10-11-12 12
Qualifications for Employment BUT, Employer can claim undue hardship, meaning. . .
Significant difficulty or expense in light of:
Nature and cost of accommodations Overall financial resources of facility/ies needing accommodation, #
people employed, effect on expenses or resources Overall financial resources of covered entity Type of operation, composition, structure, and functions of the work
force, geographic separateness, administrative, or fiscal relationship of the facility/ies to covered entity
Burden of proof is with the employer
Discrim Emplmt/Hardison/Schl Law 10-11-12 13
Scope of Protection: 504 (Rehab) & ADA
Complaint can be filed with Dept of Education, federal funds can be terminated, (subject to judicial review)
Can seek relief in court Injunction Monetary damages (if evidence of
malicious intent or bad faith)
Discrim Emplmt/Hardison/Schl Law 10-11-12 14
Scope of Protection: 504 (Rehab) & ADA
Contagious Diseases 9th Circuit (Chalk v US District Court,
Central District of California, 1988) Person with AIDS is “otherwise qualified” under
Section 504 of Rehab Act, therefore afforded full protection under the provisions of the Act
Discrim Emplmt/Hardison/Schl Law 10-11-12 15
Scope of Protection: 504 (Rehab) & ADA However, courts will allow:
Districts to balance rights of employees with contagious diseases against the risk their presence might create health hazards for those who MUST come in contact with them.
Test: expert medical advice, then everyone’s rights are preserved
Discrim Emplmt/Hardison/Schl Law 10-11-12 16
Gender Discrimination Employer’s conduct does not have to be
independently egregious for plaintiff to be awarded punitive damages
Therefore, egregious conduct not required to pursue punitive damages
Why is this important?
Sexual Harassment Title VII and Title IX prohibits Continuum of behaviors
Verbal: sexual comments about person’s anatomy or clothing, repeated requests for dates, refusing to accept “no” answers
Can even be comments like, babe, sweetheart, honey, sexual jokes or stories
Physical: hugging, kissing, stroking, patting, massaging neck and shoulders
Discrim Emplmt/Hardison/Schl Law 10-11-12 17
Sexual Harassment Key is that the behavior is unwanted or
unwelcomed (have to tell the person) Quid quo pro (this for that) Non quid pro quo (hostile work
environment) District must know or should have
known-should have known is this fair?
Discrim Emplmt/Hardison/Schl Law 10-11-12 18
Discrim Emplmt/Hardison/Schl Law 10-11-12 19
Racial Discrimination If cannot prove discriminatory intent, plaintiffs will not
succeed in claims of discrimination Disparate treatment:
Employer treats some people more unfavorably than others in regards to
Employment, job promotion, or employment conditions Based on:
Race, color, religion, sex, or national origin
Discrim Emplmt/Hardison/Schl Law 10-11-12 20
Racial Discrimination Disparate Impact
Numbers of a similar class affected adversely by A particular employment practice that appears neutral
Difference is that disparate impact suits are different because they do not allege OVERT discriminatory action
Facially neutral, but employment practices do fall more heavily on one protected group
Discrim Emplmt/Hardison/Schl Law 10-11-12 21
Racial Discrimination School districts will have a hard time
proving nondiscriminatory purposes once a plaintiff has shown either intent or impact
BEST PRACTICE: Monitor practices for discriminatory intent (easiest) or impact.
Age Discrimination What do you think the age one must
reach before he/she can sue for age discrimination?
Guesses on whiteboard
Discrim Emplmt/Hardison/Schl Law 10-11-12 22
Discrim Emplmt/Hardison/Schl Law 10-11-12 23
Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA)
Primary effect is on teachers As of 1986, there is no age limit for hiring,
dismissal, and other terms and other conditions of employment
Early incentive to retire are allowed Can non-renew a teacher, so long as not
related to age
Discrim Emplmt/Hardison/Schl Law 10-11-12 24
Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA) Protects individuals over 40 Burden is on plaintiff to establish a prima facie case
of age discrimination Then district must demo a legitimate state interest for
its action (age cannot be the sole criterion that motivates a board decision to discriminate against school personnel)
Act is very clear, cannot discriminate!
Discrim Emplmt/Hardison/Schl Law 10-11-12 25
Pregnancy & Public School Employment
Teachers protected by Pregnancy Discrimination Act of 1978 Amendment to Title VII Protects any form of discrimination based on
pregnancy Cleveland Board of Education v. LaFleur (1974)
district’s mandatory maternity cut-off dates met no legitimate state interest in maintaining a continuous and orderly instructional program
Discrim Emplmt/Hardison/Schl Law 10-11-12 26
Pregnancy & Public School Employment
Cannot assume every pregnant teacher is unable to perform duties beyond a certain date
Scope of Act limited to policies that have an impact on or treat medical conditions relating to pregnancy and childbirth less favorably than other disabilities
Discrim Emplmt/Hardison/Schl Law 10-11-12 27
Discrimination in Employment-BEST PRACTICES-Essex
Do not, in any fashion, discriminate against employees based on race, color, religion, gender, or national origin
If prima facie evidence is presented by an employee, already be prepared to show a compelling educational interest as the motivation (think ahead!)
Do not discriminate (retaliate against) an employee who opposes unlawful discriminatory practices or who participates in an investigation
Discrim Emplmt/Hardison/Schl Law 10-11-12 28
Discrimination in Employment-BEST PRACTICES-Essex If aware of discrimination or harassment, take care of
the problem, or you will be liable Do not coerce a person to retire due to age, or deny
any rights or privileges afforded other employees Remember race discrimination affects all employees Even if employers conduct in an employment
discrimination case is not egregious, punitive damages can still be awarded
Discrim Emplmt/Hardison/Schl Law 10-11-12 29
Discrimination in Employment-BEST PRACTICES-Essex Differential employment criteria that appear
neutral can still have an illegal disparate impact
Employment examinations must have a rational relationship to actual job performance criteria
In teacher RIF situations, racial or statistical quotas are not legally defensible
Scenario—Time to Work?
Discrim Emplmt/Hardison/Schl Law 10-11-12 30