Proving disparate treatment:1.Explicit Exclusionary Policy: Bona fide occupational qualification (BFOQ): necessary for doing the job Race cannot be BFOQ1.Evidence of Intentional Discrimination2.Circumstantial Evidence: draw an inference that there was an underlying discriminatory motivationStage 1- Prima Facie Case: established when the EEOC or an individual plaintiff proves facts that permit an inference that intentional discrimination on the basis of race, national origin, gender, or religion was the employer's motivationExample for hiring: (1) Applicant within protected class; (2) available job applied for; (3) applicant is qualified; (4) applicant not hired; (5) opposite person hiredStage 2- Employer's Rebuttal: bring forth evidence of a legitimate, nondiscriminatory reason for plaintiff's rejectionStage 3 - Pretext: cover up for intentional discrimination Harassment as a Special Case of Disparate TreatmentDo not follow prima facie-rebuttal-pretext model Sexual Harassment: namely, slurs, taunts, epithets, or other abuses that create a hostile, intimidating, or offensive working environment 1.Quid Pro Quo harassment: situation in which continued employment, afavorable review, promotion, or some other tangible job benefit is explicitly or
implicitly conditioned upon an employee's positive response to a requested sexual favor 2.Hostile Environment Sexual harassment: occurs when a supervisor, manager, or co-worker engages in sexually oriented language or conduct that is unwelcome and is sufficiently "severe and pervasive" to alter the terms and conditions of employment for an employee who has been targeted 3.Employer Liability for Sexual Harassment: employer is a "supervisor" or supervisor knows and fails to take prompt action to stop and prevent from happeningDisparate Impact: "discriminatory impact" although subtle, actually has an unequal impact on a protected group. (ex. height and weight requirements, standardized test or educational requirement) oSeniority Systems Seniority: refers to the length of time an employee has worked for a company (provide rights and privilegesbased on seniority) Exempted from Title VIIoAffirmative Action in Employment: giving preferences to minorities and women in the hiring process Equal Pay Act: prohibits an employer from paying an employee of one sex less than an employee of the opposite sex, when the two are performing jobs that require "equal skill, effort, and responsibility" and "under similar working conditions" oMerit and legitimate seniority systems are available defenses Age Discrimination in Employment Act (ADEA): prohibits discrimination based on age against anyone age 40 and overoInvolve disparate treatment; minimum of 20 employees; only age of the victim of discrimination is relevant Discrimination Against Persons with Disabilities (ADA): provides comprehensive protection against discrimination to persons with disabilities *All laws provide protection from retaliationProtection of Safety and Welfare
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