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EMPLOYMENT OUTLINE Ask what fed law applied o Are there state laws that may apply – want to file too Disparate impact = bus necessity disparate treatment = BFOQ cts often mix up analysis of disp impact and disp treatment (like 9th Cir did in Raytheon ) Background: Why prohibit discrm b/c of hist of discrm / remedy past hx / o Mutability – characteristics that cannot be controlled o But what about Religion? – moral argument that indivd autonomy is violated when discrm on basis of relig o Can put emplrs in hard positions Why should we NOT prohibit discrm law in economics, economic inefficiencies by forcing anti-discrm and hasn’t worked / taking away choice, rt to free association / hard to prove / applying antidcrm laws can produce anti discrm / sometimes discrm might be rational (old people not having computer skills Not prohibited: sexual orientation (at least at fed level) / appearance (weight) / class (can rise abv) Title VII of the Civil Rights Act of 1964 Prohibits discrm on basis of race, color, sex, religion, or national origin o Prim reason for enactment: provide remedy for blks who were victims of emp discr Meant to make emplymt opportunities equal, but didn’t mean to guarantee job regardless of qualifications ( Griggs ) Cong Intent as articulated in Griggs – “removal of artifical, arbitrary, and unnecessary barriesr to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification” BFOQs (not for race) Title VII does NOT impose a requirement/duty for an employer to adopt hiring practices that that maximize the hiring of minority employees ( Furnco Construction ) Civ Rts Act of 1991 Cong responded to PW , set standards for mixed motive cases (nly applies to Title VII cases, Cong did not amend other statutes) o §703(m) – new provision said it was still an unlawful employment practice if motivated by prohibited criteria, even if there were legitimate factors that also motivated the decision. Provided for more damages under Title VII – codified theory of disparate impact provided for jury trials in Title VII cases (didn’t have before) Unconscious Bias unconscious bias plays a part in making decisions – studying finding 62% of people think blks are less hardworking than whites (Oppenheimer Article) legal remedy? o Yes b/c holds decision makers accountable, might think about why they’re making those decisions o No b/c maybe there were other indicators or reasons (nondiscriminatory) for the decision Enforcement – EEOC responsible for enforcing Ttl VII, ADEA, ADA – applies to all Impt to know about – can win or lose case o Must timely file charge w/ EEOC AND timely file complaint in ct – (unless §1981 or constit claim) EEOC primary enforcement agency o Deferral States (like Colo and most others) Must file within 300 days of when the alleged unlawful emplymt practice occurred 1
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