Chapter 3 - Important Terms

CHAPTER 3 - IMPORTANT TERMS

Affirmative action - The extent to which employers make an effort through their personnel practices to attract, retain, and upgrade members of protected classes or persons with disabilities.

Affirmative defense - An employer may not be responsible for harassment when there is no tangible employment action if it can be shown that the employer exercised ‘reasonable care’ in preventing and correcting the harassing behavior and the plaintiff failed to take advantage of corrective opportunities that were available.

Age as the determinative factor - The critical question in ADEA litigation is whether age was the "determinative factor" in a personnel decision.

Bona fide occupational qualifications (BFOQ) - Discriminatory practices whenever these practices are “reasonably necessary to the normal operation of the organization.”

Class action - A judge certifies a class of people who make “common” claims against a company (e.g., African-Americans who failed to pass a selection test) .

Discrimination - Defined as employment decision making or working conditions that are advantageous (or disadvantageous) to members of one group compared to members of another group.

Disparate impact - The unintentional but illegal discrimination based on the disproportionate negative effect on members of a protected group. Can be used in Title VII and ADEA cases.

Disparate treatment - The intention to discriminate in treatment of a group of persons based on race, religion, national origin, or sex.

EEO-1 form - A required form used by the EEOC to identify possible patterns of discrimination in particular organizations or segments of the workforce (for employers with 100 or more employees).

US Equal Employment Opportunity Commission (EEOC) - An agency of the US Department of Labor created to monitor and enforce compliance with several laws, including Title VII, ADEA, the ADA.

Employment-at-will - When both the employer and employee can terminate a working relationship at any time and for any reason other than what is covered under law. Extraterritoriality - Means that an American working for an American company on foreign soil is covered under EEO law.

Four-fifths rule - The yardstick recommended by EEOC to determine disparate or adverse impact. Refers to selection rate for a protected group that cannot be less than 4/5th or 80% of the group with the highest selection rate.

Glass ceiling - Refers to lack of women and minorities in top managerial positions.

Harassment - Unwelcomed conduct that is based on race, color, sex, religion, national orgin, disability, and/or age.

Implied contract - What exists by the actions or statements of an employer (in this chapter, refers to implied employment contract).

Job related - Related to performance on the job. Simailr to “validity” of practice.

Prima facie case - Means “presumed to be true until proven otherwise” must show a high likelihood that a violation of EEO law has occurred.

Punitive damages - CRA of 1991 provides for compensatory and punitive damages (in addition to back pay) of $300,000 for companies with over 500 employees.

Quid pro quo - The causal relationship between sexual advances and a specific personnel action.

Race/gender norming - An attempt to avoid statistical adverse impact by interpreting test scores based on the ethnicity/gender of the test taker. Prohibited by CRA of 1991.

Reasonable Accommodations - Changes to a disabled person unessential job functions that include reassignment, part-time works, flexible schedule, readers, interpreters, assistants, etc.

Retaliation - In context of this chapter, special form of disparate treatment due to filing an EEO claim.

Sexual harassment - Defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature explicitly or implicitly as a condition of employment, or submission or rejection of such affect employment decisions, or interferes with performing work. CHAPTER 3 - COURT CASES

Albemarle Paper Company v. Moody - Clarified job-relatedness defense, requiring a careful job analysis to identify the specific knowledge, skills, and abilities necessary to perform the job or study correlating scores on a procedure with job performance. Also required employer to use specific criteria on which to evaluate job performance in showing job relatedness.

Connecticut v. Teal - "Job-relatedness” argument must be applied to all steps of a multiple- hurdle staffing procedure.

Farley v. American Cast Iron Pipe (1997) - a good harassment policy (any type of harassment) can give an employer legal protection. Employee must use an effective anti-harassment policy.

General Dynamics Land Systems vs. Cline - the ADEA does not prohibit an employer from practicing ‘reverse age discrimination’ where older workers are favored over younger workers who are over 39.

Gratz v. Bollinger (2004); Grutter v. Bollinger (2004) - The Court ruled that race can be a factor in college admissions since a social value may be derived from greater “diversity” in the classroom (Grutter v. Bollinger). However, race cannot be an “overriding” factor in admissions decisions (Gratz v. Bollinger). While these twin decisions involving the University of Michigan only directly applied to public universities, the decisions are likely to have implications for private schools, other governmental decisions-making and perhaps the business world.

Griggs v. Duke Power - Disparate impact illegal if employment practice is not job-related.

Harris v. Forklift - Supreme Court ruled Harris does not have to present evidence of psychological damage/effects to constitute harassment. Only a ‘reasonable person’ needed to find it hostile or abusive.

Johnson v. Santa Clara Transportation - First time that Supreme Court explicitly ruled that women as well as blacks and other minorities could receive preferential treatment. Organizations may adopt voluntary programs to hire and promote qualified minorities and women to correct a "manifest imbalance" in their representation in various job categories, even when there is no proven evidence of past discrimination. Selection must be from pool of equally qualified candidates.

Meacham v. Atomic Power - ADEA allows disparate impact theory putting the burden of proof on the employer in disparate impact cases. McDonnell Douglas v. Green - Disparate treatment: Plaintiffs must show that an employer treats one or more members of a protected group differently.

Meritor Savings Bank v. Vinson - Any workplace conduct that is "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment" constitutes illegal sexual harassment.

Diaz v. Pan Am World Airways (1971) - Employers cannot argue BFOQ based on customer preference.

Smith v. Jackson (2005) - employers must show an age-neutral “business necessity” for their actions. The Court thus shifted the burden to employers once evidence is presented, usually statistical, showing “prima facie” discrimination. But as Fortune Magazine put it so delicately, “there usually is a ‘business necessity’ for dumping workers over 50.” That “business necessity” is cost reduction. Older workers tend to make more money than what it would cost the employer to get the same work done today.

Toyota v. Williams - analyzed only a limited class of manual tasks and failed to ask whether respondent’s impairments prevented or restricted her from performing tasks that are of central importance to most people’s daily lives.

United Steelworkers v. Weber - Approved Kaiser Aluminum's voluntary affirmative action plan because it did not unnecessarily trammel the interests of majority employees and because it was a temporary measure that would cease when blacks reached parity with their representation in the labor market. It is acceptable to use affirmative action programs to remedy "manifest racial imbalance" regardless of whether an employer had been guilty of discriminatory job practices in the past.

Watson v. Ft. Worth Bank & Trust (1988) - Clara Watson was denied a promotion based on an interview. The critical question that the Supreme Court ultimately addressed was whether “impact” theory could be used in “subjective” employment practices such as interviews and performance appraisals. In a unanimous decision, the Court allowed “disparate impact” theory for subjective employment practices. CHAPTER 3 – LEGISLATION

Age Discrimination in Employment ACT of 1967, Amended in 1978 & 1986 - The ADEA’s broad ban against age discrimination for people 40 years and older.

Americans with Disabilities ACT of 1990 - The ADA prohibits discrimination on the basis of disability in all employment practices.

Civil Rights Act of 1991 - made major changes to CRA of 1964 against employment discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. Prohibits race/gender norming. The Act authorizes compensatory and punitive damages in cases of intentional discrimination and provides for obtaining attorneys’ fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.

Equal Pay ACT - prohibits discrimination on the basis of sex in the payment of wages of benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

Genetic Information Nondiscrimination ACT (GINA) 2008 - The legislation is designed to address concerns that workers could be denied employment or job benefits due to predisposition for a genetic disorder.

Pregnancy Discrimination ACT of 1978 - Prohibits employment practices that discriminate on the basis of pregnancy, childbirth, or related medical conditions (e.g., abortion).

Title VII of the 1964 US Civil Rights ACT - Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

Work and Family Leave Act of 1994 - For this chapter, This law provides additional protection related to pregnancy