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Chapter 9: Discrimination in Employment

CHAPTER 9 OVERVIEW

EQUAL PROTECTION PROVISIONS OF THE FOURTEENTH AMENDMENT AND


EMPLOYMENT DISCRIMINATION
Due Process of Law includes four aspects:
Procedural
Substantive
Vagueness Test
Presumption Test
Presumption Test
Essentially presumes innocence until proven guilty
DUE PROCESS STANDARDS AND EMPLOYMENT DISCRIMINATION
Three level balancing test to determine procedural due process
First, test may be applied to determine if person is actually entitled to a hearing
Second, test may be applied to determine if pre- or post-deprivation is necessary
Third, test may be used to determine the standard and level of proof needed to deprive an
individual
Primary test applied to substantive due process is the Vagueness Test
Equal protection clause is pivotal in cases alleging employment discrimination
Prohibits the state from showing preference to a particular class of individuals
Each person must be treated equally when circumstances are similar under Fourteenth
Amendment
Discrimination cases - Court attempts to balance the plaintiffs contention against the
employers ability to establish a compelling reason for its action
TITLE VII: DISCRIMINATION
Civil Rights Act of 1964
Shall be an unlawful employment practice for any employer or employment agency
To fail/refuse to hire/discharge any individual to discriminate or to limit, segregate/classify
employees/applicants based on individuals race, color, religion, sex or national origin
1972 amendment included discriminatory employment practices in educational institutions
Civil Rights Act of 1991
Provides for compensatory and punitive damages and jury trial in cases involving intentional
discrimination
Equal Employment Opportunity Commission (EEOC)
Individual files complaint with EEOC
Retaliation
Title VII prohibits retaliation against an individual who filed a discrimination charge, who
participated in a discrimination hearing or who opposed discrimination.
Schools and Transgender Teachers
Employment Non-Discrimination Act of 2013 (passed by the Senate) effectively prohibits
discrimination on the basis of sexual orientation or gender identity
Unwed Pregnant Teachers
Courts carefully weigh all aspects of each case considering the teachers overall performance,
impact of the teachers actions on students and the extent to which the teachers actions

Chapter 9: Discrimination in Employment


adversely affect her effectiveness as a teacher - also may consider community standards and to
what degree the teachers conduct violates the ethics of the community
Sexual Discrimination
Courts simply require gender-neutral decision making when employment opportunities are
available
TITLE IX
Administered by Office for Civil Rights (OCR) of the Department of Education
Makes a provision for sexual distinctions in employment where sex is a bona fide occupational
qualification
THE REHABILITATION ACT OF 1973 AND THE AMERICANS WITH DISABILITIES
ACT OF 1990 (p. 230-239)
What each does
Americans with Disabilities Act (ADA) protects individuals with disabilities against
discrimination and ensures equal access and equal opportunity.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against any otherwise
qualified person who has a disability with respect to:
Employment, training, compensation, promotion, fringe benefits, and terms and conditions of
employment.
Qualifications for Employment
If with or without reasonable accommodations he or she
can perform the core functions of the position

Scope of Protection
Teachers, staff, and students with disabilities are
protected under both acts.
Gender Discrimination
U.S. Supreme Court held that an employers
conduct need not be independently egregious to satisfy requirement for punitive
damages award
Racial Discrimination
No remedial action was attached to the equal
protection clause, unless there was clear evidence that segregation was caused by:
de jure- official and
deliberate laws or policies to promote segregation
Brown vs. Board of
Education
Desegregation of schools
Religious Discrimination
Religion is defined as observances, practices, and beliefs
Estate of Thornton vs. Caldor, Inc.
Accomodate religious practices
Transworld Airlines Inc. v. Hardison
Employer cannot legally require an employee to choose between his or her job and religion.
Age Discrimination

Chapter 9: Discrimination in Employment


Discrimination on basis of age with respect to hiring, dismissal, and other terms and conditions
of employment
No maximum age for retirement unless a police officer or firefighter
Genetic Information Discrimination
Genetic Information Nondiscrimination Act of 2008 - illegal to discriminate against employees
or applicants because of genetic information
Prohibits use of genetic information in making employment decisions, as well as from employers
(and such) from requesting, requiring or purchasing genetic information, strictly limits disclosure
of genetic information
PREGNANCY AND PUBLIC SCHOOL EMPLOYMENT
Pregnancy Discrimination Act 1978
Protects pregnant employees from having to leave their positions due to pregnancy. Protects
them against being dismissed, denied a job, or denied promotions due to pregnancy.
Pregnancy must be treated like a temporary disability, thus female employees get the same
provisions of disability benefits, sick leave, and insurance coverage.
SEXUAL HARASSMENT
Prohibited by:
Title VII
Title IX
Forms:
Verbal Statements
Gestures
Overt Behavior
According to EEOC, sexual harassment charges decreased slightly from 1997-2008.
Variety of levels of whats considered harassment
Verbal
Nonverbal
Unwanted Physical Contact
Definition of harassment: Under the act, any type of sexual behavior or advance that is unwanted
or unwelcomed is considered to be covered.
EEOC guidelines cover two types of sexual harassment:
Quid pro quo: Employee exchanges sexual favors for job benefits, promotion, or continued
employment.
Non -quid pro: Also known as hostile harassment, the employee is subjected to a sexually hostile
and intimidating work environment that psychologically affects the employees well-being and
has an adverse effect on job performance.
LANDMARK CASES
Cleveland Board of Education v. LaFluer
Mandatory maternity termination specifying the number of months before childbirth violates
equal protection clause of the 14th amendment. No more cut-off dates prior to childbirth decided
from the district.
Oncale v. Sundowner Offshore Services
Held same-sex harassment is illegal and is a violation of Title VII

Chapter 9: Discrimination in Employment


Victim may not be the person harassed and economic injury is not necessary to bring a successful
case of harassment.
Meritor Savings Bank v. Vinson
Held that unwelcome sexual advances that create an offensive or hostile work environment
violate Title VII
Employers are not automatically liable for sexual harassment committed by their supervisors,
absence of notice does not automatically insulate the employers from liability in such cases.
Ledbetter v. Goodyear Tire and Rubber Company
Statute of limitations for presenting an equal pay lawsuit begins at the date in which the pay was
agreed on rather than the date of the most recent paychecks
Grove City College v. Bell
College sought to preserve its autonomy as a private institution by failing to accept state and
federal financial assistance
Students attending that college accepted BEOGs from the govt US Dept of Ed concluded that
the college was a recipient of federal financial assistance and would have to comply with Title IX
regulations
APPLICATION FOR ADMINISTRATORS AND SCHOOL DISTRICTS

Discrimination
School districts will not be supported by the courts when there is evidence that district
discriminated against employees on the basis of race, color, religion, gender, or national origin.
Once prima facie evidence is presented by the employee affected, school officials must
demonstrate that a compelling educational interest motivated their decisions.
School districts may not discriminate against employees because employees opposed practices
made unlawful under discrimination laws or participated in an investigation regarding
employment discrimination.
School officials may be held liable in adn cases involving discrimination or harassment when it
is determined that they were aware of these actions
No employee may be coerced to retire from employment based on age, not may the employee
be denied rights and privileges afforded other employees based on age, such as promotion and
other benefits
Race discrimination affects all employees, not merely minority employees.
Punitive damages may be awarded in employment discrimination cases if the employer's
conduct is not viewed as egregious.
Differential employment criteria may not be used that have an adverse affect on a special group
of employees, even though the criteria appear to be neutral.
Employment examinations, if used, must bear a rational relationship to performance
requirements for the position sought by the prospective employee.
Racial or statistical quotas are legally indefensible in rendering decisions regarding reduction of
teaching staffs, unless mandated by court orders.