1. Termination, Compensation, & Leave
Hiring, Promotion,
Sport Law: A
Managerial
Approach-
Chapter 6
By:
Alexandra
Sutter
for
Sport
Law
at
Endicott
College

2. Chapter 6
§ Safeguarding
against
employment
discrimination
is
critical
for
human
resources
§ Chapter
6
explores
hiring,
promoting,
and
terminating
employees
in
a
way
that
does
not
involve
intentional
discrimination
or
use
of
policies
that
can
put
an
entire
group
at
a
disadvantage

3. Title VII
§ Part
of
Civil
Rights
Act
of
1964
§ Focuses
on
employment
discrimination
§ Only
applies
to
employers
that
impact
interstate
commerce
and
that
have
15
or
more
employees
who
work
at
least
20
calendar
weeks
in
a
given
year
§ Only
protects
employees
based
on
race,
color,
religion,
sex,
and
national
origin
§ Does
not
cover
citizenship
or
sexual
orientation
§ Equal
Employment
Opportunity
Commission
(EEOC)
administers
and
enforces
Title
VII
§ Title
VII
outlines
remedies
for
when
the
law
is
violated

4. Proof of
Discrimination
§ Often
very
difTicult
to
prove
§ 2
theories
of
liability
to
determine
Title
VII
cases
1. Disparate
treatment
(Direct
evidence):
an
employer
intentionally
discriminated
against
a
member
of
a
protected
class
2. Disparate
treatment
(Inference):
often
direct
evidence
is
hard
to
come
by
so
use
the
inferential
McDonnell
Douglas
test

5. BFOQ Defense
§ One
type
of
defense
in
a
gender
discrimination
case
is
a
bona
Tide
occupational
qualiTication
§ “The
employer
must
show
that
the
alleged
discrimination
was
justiTied
because
members
of
the
excluded,
protected
class
could
not
effectively
perform
the
essential
job
functions”
(Sharp
et
al.,
p.109)
§ Viewed
narrowly
and
rarely
successful
§ Customer
preference
usually
does
not
count
but
religion
often
does

6. Title IX-1972
“No
person
in
the
United
States
shall,
on
the
basis
of
sex,
be
excluded
from
participation
in,
be
denied
the
bene9its
of,
or
be
subjected
to
discrimination
under
any
educational
program
or
activity
receiving
federal
9inancial
assistance.”

7. Equal Protection
Clause
§ Applicable
when
a
branch
of
the
state
or
federal
government
is
the
employer
§ Applicable
only
when
the
government
PURPOSELY
deprives
someone
of
a
right
but
not
when
a
law
has
UNINTENDED
discriminatory
effects
§ “Similarly
situated
people
must
be
treated
similarly
under
the
law
unless
there
is
a
constitutionally
permissible
reason
to
do
otherwise”
(Sharp
et
al.,
p.111)
§ 3
tests
to
determine
if
a
violation
of
clause
has
occurred:
strict
scrutiny
(race),
intermediate
scrutiny
(gender),
rational
basis
review
(group
classiTications)

8. Age
Discrimination
§ Becoming
more
problematic
as
companies
cut
costs
§ Older
employees
are
protected
by
the
Age
Discrimination
in
Employment
Act
(ADEA),
passed
in
1967
§ Employees
over
the
age
of
40
are
protected
§ No
upper
age
limit
§ ADEA
protects
older
workers
who
face
stereotypes
about
their
ability
or
willingness
to
perform
§ ADEA
also
contains
good
cause
and
reasonable
factors
other
than
age
defenses
for
when
employers
have
a
legitimate
reason
for
letting
go
older
workers

9. Discriminatio
n based on
Disability
§ About
22.9%
of
the
workforce
is
made
up
of
people
with
disabilities
(2009)
§ 2
major
legislations
to
protect
these
people
1. Section
504
of
the
Rehabilitation
Act
of
1973-­‐applies
only
to
recipients
of
federal
funding
2. Americans
with
Disabilities
Act
of
1990
(ADA)-­‐applies
to
the
private
sector
§ “These
laws
prohibit
discrimination
against
a
qualiTied
individual
with
a
physical
or
mental
impairment
that
substantially
limits
one
or
more
major
life
activities,
if
the
individual,
with
or
without
reasonable
accommodation,
can
perform
the
essential
duties
of
the
job”
(Sharp
et
al.,
p.
117)
§ If
an
employee
requires
an
accommodation,
it
must
be
reasonable
in
scope
and
cost
and
not
impose
an
undue
hardship
on
the
employer
§ Provisions
set
in
place
so
abuses
of
the
policy
are
aren’t
commonplace

10. Elements of a
disability claim
§ Plaintiff
has
a
covered
disability
§ The
disability
substantially
limits
a
major
life
activity
(caring
for
oneself,
hearing,
seeing,
eating,
etc.)
§ Plaintiff
was
discriminated
against
on
the
basis
of
the
disability
(rather
than
other
factors)
§ No
reasonable
accommodation
was
made
§ most
necessary
accommodations
cost
employers
nothing

11. Defending a
disability claim
§ Employers
needs
to
demonstrate
that
their
actions
were
not
solely
based
on
the
plaintiff’s
disability-­‐rather
it
was
job
related
§ Employers
can
also
show
that
the
action
was
due
to
the
inability
of
the
employee
to
meet
the
main
functions
of
the
position
§ Employers
cannot
require
a
medical
examine
prior
to
hiring
an
employee
§ If
employers
can
prove
that
the
employee
creates
an
undue
burden
on
them
or
that
the
disability
requires
a
fundamental
alteration
to
the
business,
they
have
grounds
to
defend
a
disability
claim

12. Compensation
Discrimination
§ Many
claims
result
from
gender
inequity
in
coaching
salaries
§ Claims
fall
under
jurisdiction
of
Title
VII,
Title
IX,
and
the
Equal
Pay
Act
of
1963
§ Equal
Pay
Act:
requires
women
to
receive
the
same
pay
as
men
for
doing
similar/equal
work
§ Equal
work
=
“equal
skill,
effort,
and
responsibility,
which
is
performed
under
similar
working
conditions”
§ Coaching
skills
and
effort
generally
are
not
disputed
§ Cases
usually
arise
because
of
issues
regarding
differences
in
coaching
responsibilities
(ex.
revenue
generation,
public
speaking,
fund
raising,
etc.)
§ Stanley
v.
University
of
Southern
California

13. Compensation
Discrimination cont.
§ In
1997
EEOC
put
forth
the
Enforcement
Guidelines
on
Sex
Discrimination
in
the
Compensation
of
Sports
Coaches
in
Educational
Institutions
§ These
are
not
laws
but
help
persuade
courts
to
follow
the
intent
of
compensation
discrimination
laws
§ Guidelines
have
also
encouraged
many
universities
with
substantial
women’s
sports
programs
to
provide
equitable
salaries
for
female
coaches

14. Employee Leave
§ 1978:
Title
VII
was
amended
to
include
Pregnancy
Discrimination
Act
(PDA)
due
to
increasing
number
of
women
who
were
Tired
once
they
became
pregnant
§ Maternity
leave
is
not
a
huge
issue
in
sport
organizations,
but
in
general
pregnancy
claims
increased
by
31%
from
1992-­‐2005
§ PDA
states
that
employers
have
to
treat
maternity
leave
like
any
other
temporary
leave/
inability
to
work
§ Must
also
allow
pregnant
women
to
take
leave
§ Does
not
allow
employers
to
use
pregnancy
as
a
reason
for
an
adverse
employment
action

15. Family Leave
§ Family
and
Medical
Leave
Act
of
1993:
guarantees
12
weeks
of
unpaid
leave
per
year
§ Leave
can
be
used
for
childbirth,
adoption,
or
to
care
for
a
sick
family
member
§ Also
requires
employers
to
provide
the
same
job
or
an
equivalent
one
upon
the
employee’s
return