Discrimination in employment 2013

Discrimination in
Employment
Melissa Beavers
Andy Coldren
Emily Kreger

Federal Legislation
 Title VII of the Civil Rights Act of 1964:
Prohibited employment discrimination based
on race, color, religion, sex, or national origin
 Equal Protection Clause of Fourteenth
Amendment: Provides protection against
group discrimination and unfair treatment
 Used as a vehicle for individuals who seek
relief from various forms of discrimination

Equal Protection Provisions of the
Fourteenth Amendment and
Employment Discrimination
 Due process of law includes four aspects:
procedural, substantive, Vagueness Test, and
Presumption Test
 Applied by courts in addressing forms of
discrimination
 Vagueness Test: protects those who allege
discrimination from capricious acts by employer;
laws are considered vague if a person of
common intelligence has to guess at their
meaning

Presumption Test
 Presumes innocence until proven guilty
 Embedded in provisions to the U.S.
Constitution – e.g. right to remain silent
and the right to a jury
 Supports the belief that legal basis is
critical in restricting an individual from
his/her constitutional rights

Due Process Standards and
Employment Discrimination
 Courts operate on a three level balancing test
to determine procedural due process:
– Test may be applied to determine if person is
actually entitled to a hearing before action is taken
– Test may be applied to determine if pre or post
deprivation is needed
– Test may be applied to determine the standard
and level of proof necessary to deprive the person

Equal Protection Clause
 Pivotal in cases alleging employment discrimination
 Prohibits state from showing preference to a certain
class of individuals over others
 Each individual must be treated equally under
Fourteenth Amendment
 Initial burden rests with plaintiff to determine that a
law is irrational; then shifts to the employer to show
reason for the enforcement of the law; courts then
balance the plaintiff’s contention against the
employer’s argument of a valid reasoning behind
their action

Title VII: Discrimination
 Civil Rights Act of 1964 Title VII prohibits discrimination in
employment based on race, color, religion, sex, or national
origin
 Law amended in 1972 to apply in educational institutions
 Amended by Civil Rights Act of 1991: provides for
compensatory damages, punitive damages, and jury trial in
situations that involve intentional discrimination
 Plaintiff must show that employer’s reasons for the challenged
employment decision are false and that the true reason is
discrimination – can be very difficult to prove

Retaliation
 Title VII prohibits retaliation against a person
who filed a discrimination charge, who
participated in a discrimination hearing, or
who opposed discrimination
 Retaliation occurs when employer takes
adverse action against employee who was
involved in discrimination proceeding (e.g.
demotions, termination, negative evaluations,
refusal to employ).

Sexual Discrimination
 Courts require gender-neutral decision making when
employment opportunities are available
 Discrimination based on sex is covered by Title VII and Title IX
of the Education Amendments Act of 1972, which prohibits
sexual discrimination by public and private educational
institutions receiving federal funding
 Title IX: “No person in the United States shall on the basis of
sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any educational program
or activity receiving federal financial assistance.”
 Title IX is administered by the Office for Civil Rights of the
Department of Education

The Rehabilitation Act of 1973
and the Americans with
Disabilities Act of 1990
 ADA (Americans with Disabilities Act)
and IDEA (Individuals with Disabilities
Act) protect individuals with disabilities
against discrimination and ensures
equal access and equal opportunity.

Rehabilitation Act of 1973
 Section 504 prohibits discrimination against
any otherwise qualified person who has a
disability with respect to employment,
training, compensation, promotion, fringe
benefits, and terms and conditions of
employment
 Extends beyond the school environment and
covers all people who are disabled in any
program receiving federal financial
assistance.

Qualifications for Employment
 Employers must make reasonable
accommodations to any know physical or
mental impairment of an otherwise qualified
individual who has a disability
 Based on the law, reasonable accomodations
include:
– Existing facilities used by employees must be
readily accessible to and usable by individuals
with disabilities
– An employer may be exempt if it can be
demonstrated that an undue hardship is involved
in making a reasonable accomodation

Racial Discrimination
 Disparate treatment simply means that an
employer treats some people more
unfavorably that others regarding
employment, job promotion, or employment
conditions based on race, color, religion, sex,
or national origin.
 Disparate impact is merely a showing that a
number of people of similar class are affected
adversely by a particular employment practice
that appears neutral.

Religious Discrimination
 The First Amendment and Title VII provide
protection to employees against religious
discrimination.
 Religion is defined by Title VII to include
all aspects of religious observances,
practices, and beliefs.
 Employees are expected to make
reasonable accommodations to an
employee’s religious observance unless a
hardship can be demonstrated.

Religious Discrimination
 Issues relating to religious discrimination
involve fairness and balance.
 An employer cannot legally require an
employee to choose between his or her
job and religion.
 Employees cannot be penalized by a
placement that would require that
employee to ignore a religious tenet of his
or her faith to preserve a job.

Age Discrimination
 Age discrimination in public schools
primarily affects teachers. In past years,
many districts forced teachers to retire
when they reached a specified age.
 These policies and practices were
challenged by teachers under equal
protection guarantees and received
mixed reviews from the courts.

ADEA
 Age Discrimination in Employment Act of
1967, as amended in 1978 resulted in all
challenges and uncertainties being
insignificant.
 Amended again in 1986, removed age limit of
retirement completely, except for those in
public safety positions such as police officers
& firefighters.
 These acts prohibited forced retirement. They
cover teachers and other public employees
over the age of 40.

Pregnancy and
Public School Employment
• Pregnancy Discrimination Act of 1978 (P.L. 95-555)
• This law is an amendment to Title VII which protects pregnant
employees against any form of discrimination based on
pregnancy.
• Districts may not assume that every pregnant teacher is
physically unable to perform her teaching duties and
responsibilities effectively because she is at a specific point in
her pregnancy.
 The courts have been fairly consistent in their rulings regarding
issues related to pregnancy.
 The intent of the act is to ensure that pregnant employees are
treated in the same manner as other employees with respect to
the ability to perform their duties.
 Under this Act no woman can be dismissed, denied a job, or
denied a promotion due to pregnancy.

Family and Medical Leave Act
(FMLA)
 Passed by congress in 1993; designed to allow
eligible employees up to a total of 12 work weeks of
unpaid leave during any twelve month period for the
following reasons:
– Birth and care of new child (of the employee)
– Placement with the employee of a son or daughter
for adoption or foster care.
– Caring for an immediate family member with a
serious health condition.
– Medical leave when the employee is unable to
work due to a serious health condition.

Sexual Harassment
 Sexual harassment is prohibited by Title
VII and Title IX, however in spite of
these prohibitions, incidents still persist.
 Cases have remained constant over
past years; increasing between 1992 to
1995 and then gradually decreasing
after that.
 This suggests that training and
education on awareness are critical
factors in combating harassment in the
workplace.

Sexual Harassment, cont.
 Sexual harassment was not included in Title
VII of the Civil Rights of 1964 until 1980.
 Its primary intent is to protect employees from
harassment in their work environments.
 Harassment is considered to be a form of sex
discrimination which can manifest itself in
many forms from verbal statements and
gestures to overt behaviors.
 The victim, as well as the harasser, may be a
male or a female, not necessarily of the
opposite sex.

 More serious levels may involve sexual
coercion or unwanted physical
relations.
 This type behavior quid pro quo is
commonly associated with superior-
subordinate relationships in which the
victim, for fear of reprisal, will unwillingly
participate.
 This relationship is best described as a
power relationship.

 Harassment under this act is broadly defined
to cover most forms of unacceptable
behavior.
 Any type of sexual behavior or advance that
is unwanted or unwelcomed is considered
covered under the act.
 The person affected by this behavior has an
obligation to inform the party that his or her
behavior is unwanted or unwelcomed. If they
fail to do so it’s difficult to claim harassment.

Discrimination in employment 2013

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