Chapter 19 Management of Employee Welfare Its Legal, Ethical, and Global Environment Marianne M. Jennings Business 11th Ed. ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 0 19-1 Employee Welfare: The Federal StatutesStatuteDateProvisionsWorker’s Compensation Social Security Act 42 U.S.C. § 301 Fair Labor Standards Act 29 U.S.C. § 201 Equal Pay Act 29 U.S.C. § 206 Occupational Safety and Health Act 29 U.S.C. § 651 Employment Retirement Income Security Act; 29 U.S.C. § 441 Family and Medical Leave Act 29 U.S.C. § 26011900 1935 1938 1963 1970 1974 1993Absolute liability of employers for employee injury; no common law tort suits by employees against employers FICA contributions, unemployment compensation, retirement benefits Minimum wages, child labor restrictions, equal pay Amendment to FLSA; equal pay for equal work Safety in the workplace, employee rights, employer reporting, inspections Disclosure of contributions, investments, loans, employee vesting, employee statements Protection of job after family leave (for pregnancy, child care, adult illness, elderly care) Click to edit Master text styles Second level Third level Fourth level Fifth level ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 19-2 Fair Labor Standards Act (FLSA) Often called “the minimum wage law” All covered employees must be paid minimum wage 1 1/2 time pay for overtime Overtime pay for anything over 40 hours/week Wages and Hours Protection ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 2 19-3 FLSA: All Businesses Covered that Affect Interstate Commerce Exemptions Independent contractors Agriculture, fishing, and domestic service White-collar management Executive, administrative, and professional people Ongoing litigation RE: interns FLSA ©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use. 3 Wages & Hours Protection Overtim.

1. Chapter 19
Management of
Employee Welfare
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
0
19-1
Employee Welfare: The Federal
StatutesStatuteDateProvisionsWorker’s Compensation
Social Security Act
42 U.S.C. § 301
Fair Labor Standards Act
29 U.S.C. § 201
Equal Pay Act

2. 29 U.S.C. § 206
Occupational Safety and Health Act
29 U.S.C. § 651
Employment Retirement Income Security Act; 29 U.S.C. § 441
Family and Medical Leave Act
29 U.S.C. § 26011900
1935
1938
1963
1970
1974
1993Absolute liability of employers for employee injury; no
common law tort suits by employees against employers
FICA contributions, unemployment compensation, retirement
benefits
Minimum wages, child labor restrictions, equal pay
Amendment to FLSA; equal pay for equal work

3. Safety in the workplace, employee rights, employer reporting,
inspections
Disclosure of contributions, investments, loans, employee
vesting, employee statements
Protection of job after family leave (for pregnancy, child care,
adult illness, elderly care)
Click to edit Master text styles
Second level
Third level
Fourth level
Fifth level
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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system for classroom use.
19-2
Fair Labor Standards Act (FLSA)
Often called “the minimum wage law”
All covered employees must be paid minimum wage
1 1/2 time pay for overtime
Overtime pay for anything over 40 hours/week
Wages and Hours Protection
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed

4. with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
2
19-3
FLSA: All Businesses Covered that Affect Interstate Commerce
Exemptions
Independent contractors
Agriculture, fishing, and domestic service
White-collar management
Executive, administrative, and professional people
Ongoing litigation RE: interns
FLSA
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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3
Wages & Hours Protection
Overtime Threshold Regulations (2016)
Employees who earn up to $47,476 (salaried or hourly) are
eligible for overtime pay over 40 hours per week
Wage threshold is also indexed – will increase every three years
Affects professionals such as academics and lab technicians
They will be required to track hours and lose flex time
19-4

5. ©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
19-5
Child Labor Protections
Age 18 and over − any jobs
16-17 − any non-hazardous job, unlimited hours (hazardous −
mining, logging, roofing, excavation)
14-15 − any non-hazardous, non-manufacturing, and non-mining
job during non-school hours; limits on hours
Record keeping
Employers must keep records of hours and wages
Fines for not doing so
FLSA
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or in part, except for use as permitted in a license distributed
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5
19-6
FLSA
Enforcement of FLSA
Can begin by complaint filed with U.S. Labor Department

6. Employer can seek interpretation from Department of Labor
Labor Department can initiate its own investigation
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6
19-7
FLSA
Violations of FLSA
Corporation is liable
Officers can be held individually liable
Fines − $10,000 first conviction
$10,000 and or six months for second violation
Employees cannot be fired for reporting violations
©2017 Cengage Learning®. May not be scanned, copied or
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7
19-8
Liability for Wage Taxes

7. Case 19.1 Chao v. Hotel Oasis, Inc. (2007)
Who is responsible for the wage taxes?
Why is the corporate structure not relevant for purposes of wage
tax liability?
©2017 Cengage Learning®. May not be scanned, copied or
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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19-9
Illegal to Pay Different Wages to Men and Women Doing the
Same Jobs
Equal Pay Act is Not a Comparable Worth Statute
Comparable worth requires equal pay for jobs that require equal
skill, effort, and responsibility
Comparable worth changes the free marketplace concept that we
as a society have adopted
Merit and Seniority Systems are Exceptions
Equal Pay Act
©2017 Cengage Learning®. May not be scanned, copied or
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or in part, except for use as permitted in a license distributed
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9
19-10

8. Occupational Health and Safety Act (OSHA)
Passed to ensure workplace safety precautions
OSHA was agency created to enforce it
Employers covered − all with one or more employees
Also created Occupational Safety and Health Review
Commission (OSHRC) and the National Institute for
Occupational Health and Safety (NIOSH)
OSHA: Workplace Safety
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10
19-11
OSHA Coverage and Duties
Familiarize themselves with OSHA’s requirements
Post employee rights
Require protective gear
Keep records of injuries
Report fatalities and hazards causing them
Post OSHA citations
OSHA
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9. system for classroom use.
11
19-12
OSHA Responsibilities
Promulgate workplace safety regulations
Can award variances for certain employers
Inspections
OSHA
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12
19-13
OSHA PenaltiesType of OffenseDescriptionPenaltyWillful
Serious
Nonserious
De minimis

10. Failure to correctEmployer aware of danger or a repeat violator
Violation is a threat to life or could cause serious injury
No threat of serious injury
Failure to post rights
Citation not followedUp to 10% above the maximum fine of
$126,000 and/or six months imprisonment
Sliding scale of $3,000-$12,600
Up to $12,500 per violation
Up to $12,600 per violation
Up to $12,600 per day
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Second level
Third level
Fourth level
Fifth level
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13

11. 19-14
Fine and Imprisonment Escalate With Seriousness of Violation
Many Employers Negotiate a Consent Decree After a Citation
If No Consent Decree, There is a Hearing Before an
Administrative Law Judge (ALJ)
ALJ Makes Recommendations and OSHRC Decides
Can Then Be Appealed to a Court
OSHA Penalties
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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14
19-15
State OSHA Programs
States share responsibility for safety with Feds
Secretary of Labor must approve state’s plan
State OSHA
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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system for classroom use.

12. 15
19-16
Impairment and Employees
Employment Impairment and Testing Issues
If safety is an issue, U.S. Supreme Court has authorized testing
by government employer without warrant and without probable
cause
Private employers generally free to require drug testing
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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19-17
Social Security Act of 1935
Every employee contributes to Federal Insurance Contributions
Act (FICA)
Benefits under Social Security depend on work and salary range
Pensions, Retirement, and
Social Security
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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13. 17
19-18
Private Retirement Plans: Employment Retirement Income
Security Act (ERISA)
Applies to employers in interstate commerce
Applies to medical, retirement, or deferred income plan
Requirements
Must give employees an annual report
Must disclose loans made from the fund
ERISA does not require pension plans, only regulates employers
who offer them
Pensions, Retirement, and
Social Security
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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18
19-19
Private Retirement Plans: Employment Retirement Income
Security Act (ERISA)
ERISA employee rights: employees get vesting rights in their
pensions
FASB 106 retirees and pensions: requires corporation to
expense cost of benefits for retired employees
Pensions, Retirement, and
Social Security

14. ©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
19
19-20
Pension Protection Act
Passed in Response to a Number of Large Corporate
Bankruptcies That Released Employers From Pension
Obligations
Pension Plans Were Funded to Correct SEC Disclosure Levels,
But Not According to Real Needs of Plan
Stricter Funding Requirements Imposed
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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19-21
State-Administered Program
Employers Pay FUTA Taxes and States Administer Programs
Amount is Controlled by Wages and Time Working
Requirements
Must have been involuntarily terminated
Must be able and available for work

15. Must be seeking employment
Unemployment Compensation
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or in part, except for use as permitted in a license distributed
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21
19-22
Principles
Employees injured in scope of employment are covered
Fault is immaterial
Independent contractors are not covered
Benefits include expenses, lost wages, and injury compensation
Workers’ Compensation
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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22
19-23
Principles

16. Employees do not have right of common law suit
Third parties can be sued to indemnify employers
Administrative agency handles program
Every employer must carry insurance or be self-insured
Workers’ Compensation
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23
19-24
Types of Employee Injuries
Primarily accidental
Definition has been expanded
Back problems from lifting
Medical problems − heart attacks and nervous breakdowns
Stress
Co-worker injury
Covered if arises within scope of employment
Issue of rape is a problem; employer can be sued for the failure
to screen employees adequately
Workers’ Compensation
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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17. system for classroom use.
24
19-25
Disability Benefits
Partial disability − listed on schedule by rate
Example: 50 percent of wages
Total disability − generally 2/3 of salary
Unscheduled injuries are determined by board
Death benefits paid to family
Forfeiture of Right to Suit
The majority of states require employees to forfeit all other
lawsuit rights in exchange for workers' compensation benefits
Workers’ Compensation
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or in part, except for use as permitted in a license distributed
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25
19-26
Third-Party Suits
Can sue product manufacturers, other third parties, but recovery
must first go to reimburse employer
Administrative Agency
Each state has an agency for administration of benefits and
insurance

18. Insurance: Employers Must be Financially Responsible
Workers’ Compensation
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26
19-27
Case 19.2 Hopkins v. Uninsured Employers’ Fund (2011)
What are the issues related to whether Hopkins was a volunteer?
What impact does the use of drugs have on the court’s decision?
Workers’ Compensation
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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27
19-28
Problems in Workers’ Compensation Systems
Extent of injuries covered
Fraud
Nature of injuries changing from manufacturing injuries to

19. stress, heart disease, and repetitive motion
Long-term hazards
Relationship between Americans with Disability Act and
workers’ compensation
Workers’ Compensation
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28
19-29
Labor Unions
History and Development of Labor Legislation
Courts were very harsh at common law
Treated unions as conspiracies and allowed them to be
prosecuted for such action
Strikes were perceived as intimidation techniques
Railway Labor Act of 1926
First federal legislation, but limited to railroad industry
Allowed railroad employees to unionize
Still in effect today with addition of airline employees
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20. 29
19-30
Norris-LaGuardia Act of 1932 (Anti-Injunction Act)
Stopped federal courts from issuing injunctions to stop union
strikes
Wagner Act − National Labor Relations Act (NLRA) of 1935
Gave employees the right to unionize
Prohibited employers from firing or discriminating against
union members
Established NLRB
Labor Unions: Statutes
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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30
19-31
Taft-Hartley Act − Labor Management Relations Act of 1947
Lists unfair labor practices for unions
Addresses secondary boycotts
Provides president with authority to have pre-strike cooling-off
period when public health and safety are at issue; has been used
in coal and transportation strikes
Labor Unions: Statutes

21. ©2017 Cengage Learning®. May not be scanned, copied or
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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31
19-32
Landrum-Griffin Act − Labor Management Reporting and
Disclosure Act of 1959
Regulates union officials
Gives union members a bill of rights
Establishes penalties for misconduct
Labor Unions: Statutes
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32
Employers, Employees, and Cyberlaw
Employers are Held Accountable for Electronic Content
Criminal Cases are Built from E-mails
Harassment Cases are Built from E-mails
19-33

22. ©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
Employers, Employees, and Cyberlaw
Electronic Communications Privacy Act
Applies to live communications
Stored Communications Act
Probably covers e-mail
May not cover live interactions – “Tweeting”
19-34
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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Employers, Employees, and Cyberlaw
Case 19.3 City of Ontario v. Quon (2010)
What were the officers warned about?
Did the city use the last restrictive means for reviewing content
of messages?
19-35
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duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
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23. system for classroom use.
Employers, Employees, and Cyberlaw
Employer’s Right of Access to E-mails
Disclosure to employees
Sign-off by employees
Privacy disclaimers do not apply
19-36
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
E-Mails and Organizing
NLRB Memo Explains When Employees are Protected in Their
E-mail and Online Communications
Actual Court Decisions on Protections and What Constitutes
Organizing are Varied
19-37
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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19-38
Union Organizing Efforts
Selecting a union
Petition for union representation filed

24. Election
Certified union
Once selected, union represents all employees
Labor Unions: Organizing
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38
Labor Unions: Organizing
Case 19.4 United Food and Commercial Workers Union Local
24 v. NLRB (2007)
Evaluate the statements made by management
Explain what the court decides in terms of management
statements
19-39
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19-40
Union Certification

25. ©2017 Cengage Learning®. May not be scanned, copied or
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with a certain product or service or otherwise on a password-
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40
19-41
Union Contract Negotiations
Must bargain in good faith − 8(d) of NLRA
Try to get employer contract − collective bargaining agreement
Mandatory or compulsory subject matters: “wage hours and
other terms and conditions of employment”
Wages • Pay days
Hours • Insurance
Overtime • Pensions
Vacation • Seniority
Leaves • Two-tier wage structure
Labor Unions: Good Faith
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41

26. 19-42
Union Contract Negotiations
Permissive subjects for collective bargaining
Strike roles
Not unfair to refuse to bargain it
Cannot bargain away statutory rights
Example: Cannot agree to have a closed shop (refusing to hire
nonunion people)
Failure to bargain in good faith
Constitutes an unfair labor practice
Can be the basis of a charge and complaint
Labor Unions: Subject Matter for Negotiations
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42
19-43
Mandatory Topics
Recognition of the Union
Wages
Work Hours
Vacations
Sick Leave
Seniority
Insurance
Pension/Retirement Plans
Employee Grievances
Length of Agreement/Expiration Date

27. Incentive Plans
Union Announcements (Bulletin Board Rights)
Definition of Terms
Leaves of Absence
Drug Testing
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or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
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19-44
Union “Concerted Activities” − Economic Pressure
NLRA gives union right to engage in concerted activities
Picketing − legal
Strike − legal economic weapon
Advertising
The Shareholders
Unions have contacted shareholders for clout
Allowed shareholders to bring public attention to the issues
Labor Unions’ Activities
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44

28. 19-45
Unfair Employee Practices
Slowdown
Not a strike or stoppage
Employees refuse to do certain work or use certain equipment
Featherbedding
Payment for work not actually done
Unfair labor practice
Labor Unions’ Activities
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45
19-46
Employer Rights
Freedom of speech
So long as speech is accurate and not an unfair labor practice
Right-to-work laws; prohibit closed shops
Right to an enforceable collective bargaining agreement
Labor Unions and Employer Rights
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with a certain product or service or otherwise on a password-
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system for …

29. Chapter 20
Management:
Employment Discrimination
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, in whole
or in part, except for use as permitted in a license distributed
with a certain product or service or otherwise on a password-
protected website or school-approved learning management
system for classroom use.
0
20-1
Employment Discrimination – Federal
LawStatuteDateProvisionsCivil Rights Acts of 1866 and 1870
42 U.S.C. § 1981
Equal Pay Act
29 U.S.C. § 206
Civil Rights Act of 1964

30. 42 U.S.C. § 19811866
1870
1963
1964Prohibited intentional discrimination based on race, color,
national origin, or ethnicity; permit lawsuits
Prohibits paying workers of one sex different wages from the
other when the jobs involve substantially similar skill, effort,
and responsibility; Wage and Hour Division of Department of
Labor enforces; private lawsuits permitted; double damage
recovery for up to three years’ wages plus attorney fees
Outlaws all employment discrimination on the basis of race,
color, religion, sex, or national origin; applies to hiring, pay,
work conditions, promotions, discipline, and discharge; EEOC
enforces; private lawsuits permitted; costs and attorney fees
recoverable
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Second level
Third level
Fourth level
Fifth level
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31. with a certain product or service or otherwise on a password-
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system for classroom use.
20-2
Employment Discrimination – Federal
LawStatuteDateProvisionsAge Discrimination in Employment
Act
42 U.S.C. § 6101
Equal Employment Opportunity Act
42 U.S.C. § 2000
Rehabilitation Act
29 U.S.C. § 701
Pregnancy Discrimination Act
42 U.S.C. § 2000e1967
1972
1973
1975Prohibits employment discrimination because of age
against employees over 40 and mandatory retirement
restrictions; EEOC enforces; private lawsuits permitted;
attorney fees and costs recoverable

32. Expanded enforcement power of EEOC
Prohibits employment discrimination on the basis of handicaps
Prohibits discrimination on the basis of pregnancy and
childbirth
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Second level
Third level
Fourth level
Fifth level
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20-3
Employment Discrimination – Federal
LawStatuteDateProvisionsAmericans with Disabilities Act
29 U.S.C. § 12101
Civil Rights Act of 1991
42 U.S.C. § 1981
Glass Ceiling Act
42 U.S.C. § 2000e

33. Family and Medical Leave Act
29 U.S.C. § 2601
Lilly Ledbetter Fair Pay Act
42 USC § 2000a1990
1991
1991
1993
2009Prohibits discrimination against the handicapped
Clarifies disparate impact suit requirements; clarifies the
meaning of “business necessity” and “job related”; changes
some Supreme Court decisions (Wards Cove); punitive damage
recovery
Creates commission to study barriers to women entering
management and decision-making positions
Establishes 12 weeks of leave for medical or family reasons
Changes the recovery period for back pay
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34. Second level
Third level
Fourth level
Fifth level
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20-4
No Protection Under “At-Will” Employment Doctrine
Civil Rights Act of 1866
Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964
Prohibited discrimination in employment on the basis of race,
color, religion, sex, or national origin (amended by the Equal
Employment Opportunity Act of 1972)
History
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4
20-5
Title VII of the Civil Rights Act of 1964
EEOC created

35. Federal courts given jurisdiction for suits
Equal Employment Opportunity Act of 1972 expanded power of
EEOC
Amended in 1975 by the Pregnancy Discrimination Act
Prohibited discrimination on the basis of pregnancy or
childbirth
History
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5
20-6
Age Discrimination Act of 1967
Expanded Title VII protections to include age
Rehabilitation Act of 1973
Prohibits federal contractors from discriminating against the
handicapped
Americans with Disabilities Act of 1990
Provides protection for workers with disabilities and imposes
requirements for access
History
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36. system for classroom use.
6
20-7
Family and Medical Leave Act
Provides family member with right to 12 weeks unpaid leave
Executive Orders: Apply to Agencies and Federal Contractors
History
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7
Employment Discrimination – Federal Law
Title II of the Genetic Information Nondiscrimination Act of
2008
Prohibits employers from discriminating on the basis of genetic
information
Lilly Ledbetter Fair Pay Act
Effect is to change U.S. Supreme Court decision that imposed a
180-day statute of limitations on pay discrimination cases
20-8
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37. duplicated or posted to a publicly accessible website, in whole
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20-9
Prohibits Discrimination on Basis of
Race
Color
Religion
National origin
Sex
Pregnancy
Title VII Civil Rights Act
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9
20-10
Application of Title VII
Employers with 15 or more employees (for at least 20 calendar
weeks)
Labor unions with 15 members and/or a hiring hall
Employment agencies that work for covered employers
State and local agencies
Title VII Civil Rights Act

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10
20-11
Noncovered Employers
Employment of aliens outside the United States
Religious corporations, when hiring for religious positions
Congress
Federal government (they have a separate scheme)
Indian tribes
Title VII Civil Rights Act
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11
20-12
Employment Procedures Covered
Hiring – Fringe benefits
Compensation – Rules
Training – Working conditions

39. Promotion – Dismissals
Demotions – Employment
– Transfers agencies referrals
Title VII Civil Rights Act
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12
20-13
Treating Employees or Potential Employees Differently on the
Basis of Race
McDonnell Douglas v. Green Established the Required
Elements
Plaintiff belongs to a minority group
Plaintiff applied for and was qualified for job
Plaintiff was rejected (despite qualifications)
Job remained open
Employer’s burden of proof to show nondiscriminatory reason
for the non-hire
Disparate Treatment
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40. protected website or school-approved learning management
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13
20-14
Case 20.1 Chescheir v. Liberty Mutual Ins. Co. (1983)
What employer rule is at issue?
Were there examples of disparate use of the rule?
Is there a prima facie case?
Disparate Treatment
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14
20-15
Not Intentional Discrimination
Rule Results in Different Effect on Groups
Example: Dothard v. Rawlinson − minimum height and weight
requirement for prison guards had the effect of eliminating
women
Mostly Statistical Cases Showing Impact
In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme
Court put greater burdens of proof on Title VII plaintiffs
Disparate Impact

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15
20-16
Civil Rights Act of 1991
Key provisions of the bill include a provision for jury trials in
discrimination cases
Provides compensatory damages whereas now the only remedies
are back pay and reinstatement
Employers required to carry the burden of business necessity in
establishing a defense to a Title VII case
1991 Amendments also require the plaintiff employee to show
causation between the practice of the employer and the
disparate impact
Disparate Impact
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16
Disparate Impact
Case 20.2 Ricci v. DeStefano (2009)

42. Deals with use of testing
Tests must be validated
Once used, cannot be ignored
20-17
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20-18
Pattern or Practice of Discrimination
Generally involves a statistical comparison
Example: 38 percent of work force in a community is black; 6
percent of an employer’s work force is black
Specific Applications
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18
20-19
Specific Applications
Sex Discrimination: “Protective” Legislation is Prohibited
Examples: Lifting (30 lbs.) restrictions, safety restrictions,
height/weight requirement; ads cannot specify male or female

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20-20
Covered by EEOC Guidelines
Employers Must Have Policies on Harassment
Possible Liability for
Demands for sexual favors − “quid pro quo”
Environment of sexual suggestion
Hostile conduct for refusal to provide sexual favors
Verbal or physical suggestions
Sexual Harassment
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20
20-21
Cannot be Fired for Refusal to Accept Sexual Advances
Managers and Companies Have Liability for Failure to Take
Action on Complaints of Sexual Harassment
Sexual Harassment

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21
20-22
Case 20.3 Burlington Industries, Inc. v. Ellerth (1998)
When will an employer be held liable for sexual harassment
despite a lack of knowledge?
What major issues does the dissenting opinion raise?
Vicarious Liability
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22
20-23
Pregnancy Discrimination Act
Coverage and protections
Cannot require pregnant employee to quit
Cannot demote upon return to work
Cannot refuse to allow employee to return to work

45. Same sick rules for pregnancy as other ailments
Same insurance coverage
No promotion or hiring refusals because of pregnancy
Specific Applications
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23
20-24
Case 20.4 International Union v. Johnson Controls, Inc. (1991)
Are circumstances given when sex is a BFOQ?
What is the Court’s position on tort liability of the company
with respect to the fetus?
Sexual Discrimination
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24
20-25
Permitted When Religious Organization is Hiring People as

46. Pastors or for Religious Duties
Employers Must Make Reasonable Accommodations for
Employees
Case 20.5 EEOC v. Abercrombie & Fitch Stores, Inc. (2015)
How could Abercrombie & Fitch have accommodated the
Plaintiff?
Religious Discrimination
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25
20-26
What is Affirmative Action?
Affirmative action is a remedial step taken to ensure that those
who have been victims of discrimination in the past are given
the opportunity to get work
It is neither required nor prohibited under Title VII
Any employer can have an affirmative action program; cannot
use quotas, but can set goals
Affirmative Action
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47. 26
20-27
Who is Required to Have Affirmative Action Programs?
Those who have been subject to court orders or consent decrees
Those who are state and local agencies, colleges and
universities receiving federal funds
Those who are government contractors
Those who are businesses that work on federal projects
Affirmative Action
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27
20-28
Preparing an Affirmative Action Program
Begin with equal employment opportunity statement
Appoint an affirmative action officer
Conduct an internal audit
Establish overall goals and even goals for certain areas
Affirmative Action
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48. with a certain product or service or otherwise on a password-
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28
20-29
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
The opposite decisions in the case left affirmative actions in
admissions in confusion
Fischer v. University of Texas at Austin (2013)
Court sent the case back after holding that universities had a
compelling state interest in creating a diverse student body
Affirmative Action: Backlash
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29
20-30
Bona Fide Occupational Qualification (BFOQ)
Qualification of sex or religion is necessary for job
Examples: Pastor of Methodist churches must be Methodist,
actors and actresses for parts
Customer preference is not a BFOQ
Defense: BFOQ

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30
20-31
Seniority
Sometimes a valid defense to Title VII
Must be bona fide
Must apply to all employees
Origins of the system cannot be discriminatory
Cannot be used to perpetuate discrimination
Defense: Seniority
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31
20-32
Aptitude
Tests must be validated
Job-related
Do not eliminate certain races

50. Validate by following employees for correlation between test
scores and job performance
Defense: Aptitude
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32
20-33
Misconduct
Defense that there was a valid reason for termination or
different treatment
Employer could even use misconduct by employee discovered
after termination
Defense: Misconduct
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33
20-34
Case 20.6 McKennon v. Nashville Banner Publishing Co.

51. (1995)
Does Banner deny discriminatory intent?
Is reinstatement a remedy?
Misconduct Limits
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34
20-35
EEOC is Responsible
Five-member commission
Appointed by president/approved by Senate
No more than three from same party
Title VII Enforcement
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35
20-36
Steps in an EEOC Case

52. Complaint
Filed by employee
Must be done within 180 days from the violation
Filed with EEOC or state agency
Employer is notified of the charge
EEOC has 180 days from filing of complaint to take action
If case not settled within 180 days, employee gets right-to-sue
letter
180 days from discriminatory act, and each paycheck is an act –
Lily Ledbetter law
Title VII Enforcement
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36
20-37
Remedies
Injunctions
Back pay
Punitive damages
Affirmative action
Attorneys’ fees
Title VII Enforcement
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53. with a certain product or service or otherwise on a password-
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37
20-38
Age Discrimination in Employment Act of 1967
Applies to employers with 20 or more employees
Protects those who are 40+ years of age
Case 20.7 Gonzalez v. El Dia, Inc. (2002)
What remarks were made about Ms. Gonzalez related to her
age?
Why was it not discrimination?
Other Antidiscrimination Laws
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38
Other Antidiscrimination Laws
Equal Pay Act of 1963
Equal pay for equal work
Communicable Diseases in the Workplace
Arline case held that employer could not discriminate on the
basis of tuberculosis
20-39

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20-40
Rehabilitation Act of 1973
Protection for handicapped
Enforced by Labor Department
Must make reasonable accommodations for handicapped
Employers covered:
Federal contacts over $2,500
States and municipalities
Covers: Diabetes, epilepsy, heart diseases, cancer, retardation,
blindness, deaf persons, former drug addicts and alcoholics
Other Antidiscrimination Laws
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40
20-41
Americans with Disabilities Act
Applies to employers with 15 or more employees
Required to make reasonable accommodations for handicapped

55. Cost, size of work force, nature of operations
Cannot use tests to screen out handicapped applicants
Local governments required to make transportation available to
handicapped
Other Antidiscrimination Laws
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41
20-42
ADA Obligations
Minimizing an Employer’s ADA Risks
1. Post notices describing the provisions of the ADA in your
workplace.
2. Review job requirements to ensure that they bear a direct
relationship to the ability to perform the essential functions of
the job in question.
3. Identify, in writing, the "essential functions" of a job
before advertising for or interviewing potential candidates.
4. Before rejecting an otherwise qualified applicant or
terminating an employee on the basis of a disability, first
determine that (a) the individual cannot perform the essential
duties of the position, or (b) the individual cannot perform the
essential duties of the position without imminent and substantial
risk of injury to self or others, and (c) the employer cannot
reasonably accommodate the disability.
5. Articulate factors, other than an individual's disability,
that are the basis of an adverse employment decision.

56. Document your findings and the tangible evidence on which a
decision to reject or terminate was based; make notes of
accommodations considered.
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20-43
ADA Obligations
Minimizing an Employer’s ADA Risks (Cont’d)
6. Ask the disabled individual for advice on accommodations.
This shows the employer's good faith and a willingness to
consider such proposals.
7. Institute programs of benefits and consultation to assist
disabled employees in effectively managing health, leave, and
other benefits.
8. Check with insurance carriers regarding coverage of
disabled employees and attempt (within economic reason) to
maintain provided coverage or arrange for separate coverage.
9. Keep disabled individuals in mind when making structural
alterations or purchasing office furniture and equipment.
10. Document all adverse employment actions, including
reasons for the employment action with respect to disabled
employees; focus on the employee's inability to do the job
effectively rather than any relation to the employee's disability.
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