Civil Rights Law‘Discrimination’

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