Which below is illegal?

• A supervisor refuses to hire applicants who are vegetarian

• Two employees are denied promotions because their favorite football team is the Atlanta Falcons

• An individual is denied a job because he has a visible tattoo on his neck

~ Six Dimensions for EEO Laws ~

• D1: Which classes are protected?• D2: Which entities are covered?• D3: Which practices are prohibited?• D4: How is the law administered?• D5: What are the remedies?• D6: What are the judicial scenarios?

Title VII of the Civil Rights Act1) Protected Classes:

CRA 1964: Race, color, religion, sex, and national originTIP article regarding inclusion of sex (http://www.siop.org/tip/jan11/12highhouse.aspx)CRA 1972: Added public sector coverage, gave EEOC power to sue, reduced entities covered from 25 to 15, increased timeframe to file EEOC suit (90 to 180 days in non-deferral states, one’s without EEO laws; 210 to 300 days in deferral states; one’s with EEO laws)

See: EEOC Timeliness page

CRA 1978: Reorganization Plan (e.g., EEOC given authority to enforce anti- discrimination laws for civilian federal workforce and coordinate federal equal employment opportunity programs, passed the PDA, enforcement of EPA and ADEA transferred to EEOC (from DOL)

CRA 1991: Clarified burden of proof in adverse impact scenarios, reversed several controversial SC cases, banned test score adjustment based on minority status, allowed jury trials and coverage for expert witness fees

2) Covered Entities: Private, state, local, and federal organizations with 15 or more employees (worked 20 weeks in current or prior year).

Was “Sex” Introduced Into Title VII as a joke or to defeat the Bill?

The amendment to add sex to Title VII was introduced 2 days before the vote by Representative Howard W. Smith (he was opposed to civil rights for Blacks and voted against the CRA)

In 1979, in a interaction with Congresswoman Martha Griffiths, who worked to pass the amendment, the retired Smith reportedly said: “Well, of course, you know I offered it as a joke.”

But, when he was in the Senate, Smith had:

• a close relationship with the National Women’s Party• endorsed a sex amendment since 1956• supported and Equal Rights Amendment since the early 1940s• expressed concerns that White women would be disadvantaged by Title VII Either way, the sex stipulation was rarely discussed during the 83-day debate in the Senate

Little legislative history or guidance on sex discrimination/harassment

EEOC not prepared to handle sex-based discrimination cases (esp. harassment)

Who Counts As An Employee?

The term “employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year

Key is the existence of an “employment relationship” between the organization and the worker (e.g., company is responsible for setting work schedules, altering job assignments, supervision)

• All employees, including part-time and temporary workers, are counted for purposes of determining whether an employer has a sufficient number of employees.

• The existence of an employment relationship is most readily (but not exclusively) shown by a person's appearance on the employer's payroll.

• Independent contractors are not counted as employees. This is because the work they perform is based on an independent contractual relationship, not an employment relationship.

3) Covered Practices: (Non-discrimination – “Trilogy”)

• Terms and conditions of employment (e.g. hiring, promotion, firing)

• Segregation or classification (and separate seniority)

• Retaliation

4) Administrative Procedures:Primarily by EEOC

Title VII of the Civil Rights Act (cont.)

5) Remedies:

Equitable Relief: (to restore what was lost) --- e.g., reinstatement, back pay for up to 2 years, lost benefits, lawyer fees

Legal Relief:

Compensatory damages -- pain and suffering (e.g., mental anguish, inconvenience, loss of enjoyment of life, medical expenses)

Punitive Damages (punish companies for egregious violations; those with malice or indifference). Restricted to private organizations

Prior to CRA-91, only equitable relief was available and decision were limited to judges (jury trials now allowed)

Title VII of the Civil Rights Act (cont.)

Caps for Compensatory and Punitive* Damages

Company size (# employees) Damage Cap

15-100 $50,000

101-200 $100,000

201-500 $200,000

501 and more $300,000

* Punitive damages only available in private sector

6) Judicial Scenarios: Disparate treatment, adverse impact, pattern or practice, statutory defenses (e.g., BFOQ, BFSS)

Major EEOC Responsibilities

Enforcement of the following laws:

• Title VII of the CRA (http://www.eeoc.gov/laws/statutes/titlevii.cfm)• PDA (http://www.eeoc.gov/laws/statutes/pregnancy.cfm)• Equal Pay Act (http://www.eeoc.gov/laws/statutes/epa.cfm)• The ADEA (http://www.eeoc.gov/laws/statutes/adea.cfm)• The ADA (http://www.eeoc.gov/laws/statutes/ada.cfm)• GINA (http://www.eeoc.gov/laws/statutes/gina.cfm)• Workplace retaliation

Investigates charges of alleged discrimination (and issues findings) Settles charges through conciliation or other informal methods Files lawsuits Issues interpretive guidelines on various laws http://www.eeoc.gov/laws/guidance/subject.cfm Develops procedural regulations (http://www.eeoc.gov/laws/regulations/index.cfm) Conducts prevention efforts via education and technical assistance programs

OFCCP has become aggressive in pursuing “class actions‟

• This enforcement has has focused on hiring practices and resulted in record financial settlements. Likely that more I-Os folks are dealing with OFCCP enforcement today than in the past

Useful site: OFCCP Blog Spot

More on OFCCP in Chapter 7 (Affirmative Action)

~ OFCCP Relevance ~Branch of Department of

Labor• Main purpose is to gain voluntary compliance from federal

contractors

• Administers EO 11246 (Affirmative Action)

• Has authority to impose remedies on contractors prior to court action

Civil Procedures

*** 3 phase burden-shifting process

1) Plaintiff must establish a prima facie case Prima facie ”at first look," or "on its face." A lawsuit in which the evidence is sufficient to prove the case

2) Defense offered (non-discriminatory reason - DT, or job-relatedness - AI)

3) Plaintiff rebuttal (pretext - DT, or alternative practice available - AI)

Other Key Points

• Preponderance of evidence standard (not beyond reasonable doubt – criminal cases)

• Summary judgments (e.g., SJD; summary judgment for the defendant)

• Class certification; 1) numerosity (large enough; individual claims impractical), 2) commonality (harm common to class), 3) typicality (similar claims among members of class), and 4) protection of class interest (plaintiffs will adequately represent class interests [Class size of ½ million females; Wal-Mart v. Dukes]

Constitutional Amendments and EEO Law

• No amendments were designed to relate to EEO laws

• Amendments offer broader coverage than Title VII

• Some advantages to using amendments (e.g., less restrictions, damages); they fill gaps in Title VII coverage

• Amendments often combined with Title VII suits if constitutional claims exist

Amendment I:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Amendments & EEO Law

Amendment IV:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

>>> Used for discrimination against religion

>>> Used in cases regarding drug testing

Amendment V:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Amendments & Discrimination Law (cont.)

>>> Protects employees from discrimination by Federal government employers on the basis of race and other classifications

Amendment XIII:Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. Enforced via the CRA of 1866, 1871 (below)§ 1981. Equal rights under the law (CRA of 1871)

(a) Statement of equal rightsAll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Example: Patterson v. McClean Credit Union (racial harassment covered under 13th Amendment; CRA ‘91)>>> Primarily used in cases of race discrimination (although it’s been interpreted very broadly to include national origin. Sex not included as a protected group

• No back pay limitations (vs. 2-years under Title VII)• No minimum requirement of # employees (vs. 15 under Title VII)• Only covers disparate treatment only (need to generate proof of discriminatory intent)• Applies only to private organizations

The Amendments & Discrimination Law (cont.)

Amendment XIV:Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

>>> Permits employees to sue state and local government; often used to sue municipal agencies (police and fire departments; e.g., Ricci v. DeStefano) for race and sex discrimination in hiring and promotion decisions) and for reverse discrimination suits

§ 1983. Civil action for deprivation of rights (CRA of 1871 or KKK Act)

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.