01 Oct Visit the following three websites. Explore them thorough. Go out, take a tour, and tell us where it leads you… Can this information help to fill the knowle
visit the following three websites. Explore them thorough. Go out, take a tour, and tell us where it leads you… Can this information help to fill the knowledge gap among professionals since most managers and personnel practitioners have not had formal training in the application of new employment laws to the workplace?
- HG.org: Employment Law
https://www.hg.org/employ.html - U.S. Department of Labor Website
https://www.dol.gov/ - U.S. Small Business Administration: Hire and Manage Employees
https://www.sba.gov/business-guide/manage-your-business/hire-manage-employees
Employment Law for Business
Chapter 3
Title VII of the Civil Rights Act of 19 64
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Learning Objectives 1
Explain the history leading up to passage of the Civil Rights Act of 19 64.
Give examples of the ways that certain groups of people were treated differently before passage of the Civil Rights Act.
Discuss what is prohibited by Title VII.
Recognize who is covered by Title VII and who is not.
State how a Title VII claim is filed and proceeds through the E E O C administrative process.
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Learning Objectives 2
Determine if a Title VII claimant is able to proceed after receiving a "no reasonable cause" finding.
Distinguish among the various types of alternative dispute resolution used by E E O C.
Explain the post–Civil War Statutes, including what each is and what it does.
Discuss what management can do to ensure compliance with Title VII.
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Statutory Basis
Title VII of the Civil Rights Act of 19 64.
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. sec. 2000e et seq., sec. 703 (a).
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1961 Employment Want Ad
Exhibit 3.1: June 1961 (Pre–Title VII) Newspaper Want Ad.
This exhibit, taken from a newspaper published in June 1961, is typical of the index to want ads from the classified section found in newspapers in the United States before Title VII was passed in 1964. Note the separation of employment opportunities based on race and gender.
| INDEX TO WANT ADS. |
| Announcements. |
| 1—Funeral Notices. 2—Funeral Notices, Colored. |
| Male Employment. |
| 14—Male Help Wanted. 15—Male Employment Agencies. 16—Situations Wanted, Male. 17—Male, Female Help Wanted. |
| Female Employment. |
| 22—Female Help Wanted. 23—Female Employment Agencies. 24—Situations Wanted, Female. |
| Colored Employment. |
| 26—Help Wanted Male, Colored. 27—Employment Agency Male, Colored. 28—Situations Wanted Male, Colored. 29—Help Wanted Female, Colored. 30—Employment Agency Female, Colored. 31—Situations Wanted Female, Colored. |
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An Historic Rights Act
Primary focus is race.
Milestone in a centuries-long struggle for equality.
Abolitionism through Emancipation, Jim Crow laws, de jure and de facto segregation, many struggles of the post-War civil rights movement.
The other protected characteristics had discrimination histories in American culture: religion, ethnicity, sex.
Broad coverage: prohibits discrimination in housing, education, employment, public accommodations, and the receipt of federal funds on the basis of race, color, gender, national origin, or religion.
Employment (“Title VII’) included at JFK’s insistence; LBJ drove passage as President.
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Title VII of the Civil Rights Act of 19 64 1
Title VII is the employment section of the Act.
Prohibits workplace discrimination on the basis of race, color, gender, religion, and national origin.
Applies to hiring, discharge, compensation, terms, conditions, or privileges of employment. Forbids segregation, unequal opportunities.
E E O C regs predating Supreme Court’s 2020 Bostock decision, adding transgender (2012) and sexual orientation (2015).
Many states passed similar laws, some with broader coverage.
State laws also govern conduct of smaller firms that federal jurisdiction may not reach.
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Title VII of the Civil Rights Act of 19 64 2
Amendments to the Act.
Equal Employment Opportunity Act 19 72.
Extension to government employees, strengthened E E O C.
Pregnancy Discrimination Act 19 78.
Extends US Supreme Court interpretation of intended coverage (sex includes pregnancy).
Civil Rights Act of 19 91.
Jury trials, compensatory damages, punitive damages.
Limited ‘reverse discrimination actions.
‘Extra-territorial’ application: US employers abroad.
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Title VII of the Civil Rights Act of 19 64 3
Landmark Court and Agency Decisions.
Green and Griggs cases framing Disparate Treatment and Disparate Impact claims.(discussed in Chapter 2)
Meritor Savings case (19 86) establishing Harassment as a form of discrimination, including Hostile Work Environment and quid pro quo claims in sexual context.
EEOC extends ‘sex’ discrimination protections to transgender (2012) and sexual orientation claims (2015).
Bostock case (2020), US Supreme Court also recognizes that ‘sex’ includes transgender and sexual orientation.
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Evolution of Title VII
Emphases and Interpretations have changed since 19 64.
Early emphasis on hiring-related cases; more recent concerns for compensation, promotion.
Harassment law develops as subset of disparate treatment.
Religion claims change as more are brought by Muslims post-9/11, and religious workplace activism grows.
Retaliation claims rise.
Rise of concerns for diversity, equity and inclusion.
Recent focus on ‘Unconscious Bias’, pay gaps.
Concerns for discriminatory impacts in pandemic, AI contexts.
Catalyst to broaden common law ‘at-will’ exceptions generally.
E E O C Initiatives on other chronic issues.
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Claims Filed with E E O C, 2021
Exhibit 3.4: EEOC Charges for Fiscal Year 2021 by Category.
This chart shows the types of discrimination charges filed with the E E O C in Fiscal Year 2021 under Title VII as well as the Americans with Disabilities Act, Age Discrimination in Employment Act, the Equal Pay Act and the Genetic Information Nondiscrimination Act, additional antidiscrimination in employment legislation enforced by the E E O C.
Retaliation: 34,332 (56.0 percent of all charges filed).
Gender: 18, 762 (30.6 percent).
Disability: 22,843 (37.2 percent).
Race: 20,008 (34.1 percent).
Age: 12,965 (21.1 percent).
National Origin: 6,213 (10.1 percent).
Color: 3,516 (5.7 percent).
Religion: 2,111 (3.4 percent).
Equal Pay Act: 885 (1.4 percent).
Genetic Information: 342 (0.4 percent) The percentages add up to more than 100 because some charges allege multiple bases. E E O C, Charge Statistics (Charges Filed with the E E O C) FY 19 97 through FY 2021.
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‘Birdcage’ Barriers Metaphor
Why the struggle for equal opportunity continues …
Exhibit 3.5: Cages.
Dr. Marilyn Frye of Michigan State University likens discrimination issues to a wire birdcage. If you look at each wire individually, then you may wonder why a bird can’t just fly around it, but if you widen your gaze, then you find that the wire you are viewing is only one of many interconnected wires that form an impenetrable cage that keeps the bird in place. With discrimination, each little piece may not seem very significant, but put them together and they form a different existence for one group than another, which keeps the group from progressing like those without the barriers.
Source: The Systemic Birdcage of Sexism by Marilyn Frye. https://cpt.org/sites/default/files/2019-04/US%20 -%20Bird%20Cage%20of%20Sexism.pdf.
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Structure of Title VII 1
Applies to promote equal opportunity in the fundamentals of employment relationship.
Exhibit 3.6: The VII Provisions.
An employer cannot discriminate on the basis of:
Race.
Color.
Gender, including:
Sexual harassment.
Pregnancy Sexual orientation (as interpreted by the E E O C).
Gender identity (as interpreted by the E E O C).
Religion.
National origin.
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Structure of Title VII 2
In making decisions regarding:
Hiring.
Firing.
Training.
Discipline.
Compensation.
Benefits.
Classification.
Or other terms or conditions of employment.
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Structure of Title VII 3
Who Must Comply?
Exhibit 3.7: Who Must Comply.
Employers engaged in interstate commerce if they have.
Fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
Labor organizations of any kind that exist to deal with employers concerning labor issues engaged in an industry affecting commerce.
Employment agencies that, with or without compensation, procure employees for employers or opportunities to work for employees.
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Structure of Title VII 4
Employees Covered by Title VII: Undocumented workers.
Employment discrimination against undocumented workers is illegal.
E E O C does not ask claimant status.
Policy debate re interplay of immigration, employment regs.
Undocumented workers may not be eligible for certain forms of relief, such as reinstatement and back pay (Hoffman Plastics case, 2002).
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Structure of Title VII 5
Employees NOT Covered by Title VII.
Employers having fewer than 15 employees.
Employers who may be engaged in interstate commerce, but do not employ 15 or more employees for each of 20 or more calendar weeks in the current or preceding calendar year.
Non-U.S. citizens employed outside the United States.
U.S. citizens employed elsewhere, if local law specifically forbids compliance.
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Structure of Title VII 6
Employees NOT Covered by Title VII, continued.
Employees of religious institutions, associations, or corporations hired to perform work connected with carrying on religious activities.
Members of Communist organizations.
Native American employees living in or around Native American reservations.
Note: Recall that independent contractors are not ‘employees.’
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Filing Claims Under Title VII
Claimant/charging party: The person who brings an action alleging violation of Title VII. (no filing fee).
Respondent/responding party: Person alleged to have violated Title VII, usually the employer.
E E O C Investigator: Employee of E E O C who reviews Title VII complaints for merit.
Record keeping and reporting requirements.
E E O C requires personnel records relating to a filed charge be kept until final disposition. Other E E O C records retention regs also exist.
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Statute of Limitations
Statute of limitations – relatively brief.
Limitations period: time between alleged act and filing claim.
Nonfederal government employees have 180 days and federal employees have 45 days to file a claim after the discriminatory event.
‘continuing violations’ claims may consider actions outside limitations period. (but continuous discriminatory paychecks not counted, per Ledbetter v. Goodyear Tire (2007)).
Lilly Ledbetter Fair Pay Act: limitations period resets with every discriminatory paycheck.
Scenario 2.
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State Law Interface in the Filing Process
706 agency – State and local enforcement.
Work-sharing agreement with the E E O C.
Receives and process claims of discrimination.
Expanded filing time from 180 days to 300 days.
If the claim is not satisfactorily disposed of, it may be taken by the E E O C for litigation.
Note that similar but independent state laws exist, and that their coverage and procedures may vary Title VII.
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Proceeding Through the E E O C
Generally, Title VII – resolution by ‘conciliation’ preferred.
Attempts to reach agreement on a claim through investigation and negotiation, without resort to litigation.
E E O C Process:
Within 10 days of the claim, the E E O C serves notice of the charge to the employer.
Title VII includes anti-retaliation provisions.
It is a separate offense for employers to retaliate against an employee under Title VII.
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Mediation
Attempt to streamline the E E O C case-handling process: parties engage mediator to facilitate settlement.
Mediator seeks to facilitate settlement, but may not impose an outcome on the Parties.
“Referral-back” program – Private sector employment discrimination claims are sent back to employer for mediation.
E E O C universal mediation agreements encourage employer participation.
Participation is voluntary, process confidential and settlement agreements reached are binding.
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E E O C Investigation
Investigator determines reasonable cause/no reasonable cause.
If ‘no reasonable cause’, claimant given dismissal and ‘Notice of Rights’, known as a ‘right-to-sue letter.’
Employee can file suit against employer in federal court within 90 days.
If ‘reasonable cause’, Parties meet with E E O C investigator to conciliate/settle the claim.
If no settlement, E E O C can file suit on behalf of claimant in federal court. Agency has high rate of court success.
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Judicial Review
Judicial review: Court review of E E O C’s decision in federal district court.
Jury trial if requested by either party.
‘De novo’ review: Completely new look at claim by the reviewing court, via trial of case – no presumptions based on Agency findings.
Normal post-verdict appeals process, including availability of Supreme Court review.
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Mandatory Arbitration Effects
Arbitration (private judging) popular with employers as alternative to E E O C/Court processes.
Requirement usually included in employment offer.
Less expensive, quicker, final (no appeals), success rate favors employers (who are source of future cases).
Claimants forced to arbitrate if proper agreement terms do not poison the process by tilting the playing field.
Traditional E E O C hostility as barrier to agency’s mission.
Agency may bring independent claim on employee’s behalf.
Political football between Administrations. 2021 bill removes sex-based claims from arbitration requirements.
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The Reconstruction Civil Rights Acts 1
Exhibit 3.10: The Reconstruction Civil Rights Acts.
42 U.S.C. SECTION 1981. EQUAL RIGHTS UNDER THE LAW (1866).
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.
42 U.S.C. SECTION 1983. CIVIL ACTION FOR DEPRIVATION OF RIGHTS (1871).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.
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The Reconstruction Civil Rights Acts 2
42 U.S.C. SECTION 19 85. CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS— PREVENTING OFFICER FROM PERFORMING DUTIES (“KU KLUX KLAN ACT”) (1871).
Depriving persons of rights or privileges . . .
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any rights or privileges of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
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The Reconstruction Civil Rights Acts 3
Post-Civil War laws prohibit denial of civil rights.
Alternatives to Title VII.
Direct court access, fees, no agency process.
Some current use when outside limitations period, or versus government employer.
Case: Patterson v. McLean Credit Union.
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Important Notes
Discrimination claims must be proved just as any other lawsuit.
Employee has burdens of proof and persuasion via ‘preponderance of evidence’ standard (50+% probability).
Case: Ali v. Mount Sinai Hospital – offensive employer conduct not sustainable via Title VII claim, but hospital had to defend expensive case.
Proper staff training can prevent these unproductive, expensive cases.
Employers do well against these charges if they have a system and work it: consistently treating employees in a protected class just as they would those of any other similarly situated employees.
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Management Tips
Make sure that all employees understand:
What Title VII is, what it requires, and to whom it applies.
How the employees’ actions can bring about liability for the employer.
What kinds of actions will be looked at in a Title VII proceeding.
That all employees have a right to a workplace free of illegal discrimination and the employer will not allow Title VII violations.
That Employer will be proactive in prevention, and diligent in including all employees in decision-making processes.
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Chapter Summary
Title VII prohibits employers, unions, joint labor–management committees, and employment agencies from discriminating in any aspect of employment on the basis of race, color, religion, gender, or national origin.
Title VII has a full statutory scheme including a federal agency and administrative structure for bringing workplace discrimination claims.
Where appropriate, the law allows for jury trials.
Title VII claims can be judically reviewed de novo after exhaustion of administrative remedies.
The post–Civil War statutes add another area of potential liability for the employer and have a much longer statute of limitations and unlimited compensatory and punitive damages.
The employer’s best defense is a good offense. A strong, top-down policy of nondiscrimination can be effective in setting the right tone and getting the message to managers and employees alike that discrimination in employment will not be tolerated.
Strong policies, consistently and appropriately enforced, as well as periodic training and updating as issues emerge and even as a means of review are most helpful.
To the extent that an employer complies with Title VII, it can safely be said that workplace productivity will benefit, as will the employer’s coffers, because unlawful employment discrimination can be costly to the employer in more ways than one.
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End of Main Content
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Employment Law for Business
Chapter 1
The Regulation of Employment
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written consent of McGraw Hill LLC.
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Learning Objectives 1
Describe the balance between the freedom to contract and the current regulatory environment for employment.
Identify who is subject to which employment laws and understand the implications of each of these laws for both the employer and employee.
Delineate the risks to the employer caused by worker misclassification.
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Learning Objectives 2
Explain the difference between an employee and an independent contractor and the tests that help us make that determination.
Articulate the various ways in which the concept “employer” is defined by the various employment-related regulations.
Describe the permissible parameters of non-compete agreements.
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Introduction to the Regulatory Environment 1
Freedom to contract is crucial to marketplace freedom.
Employment is an agreement: a reciprocal exchange of labor for compensation.
An employee may choose to work or not-to-work for a given employer.
An employer may choose to hire or not-to-hire a given applicant. System is theoretically symmetrical.
Government enacts laws to resolve power imbalances between employer and employees. Examples:
Set minimum wage.
Anti-discrimination laws based on race, gender, other characteristics.
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