U.S Employment Law 2

Race and Color Discrimination:

42 USC Section 1981 arguably the most important category guarantees law to make and enforce contracts.

Civil Rights Act 1991 overturned the decision making it to prevent discrimination during the performance of the contract.

Section 1983 gives protection to citizens of their constitutional rights under state law.

The EEOC guidelines to determine race is:

Ancestry;

Physical characteristics;

Race linked illness;

Culture;

Perception;

Association.

Disparate treatment can be shown by direct or indirect evidence.

Disparate impact may be more difficult to discern.

It shall be unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of race or color.

Section 1983 applies to public employees and to those associated with a governmental entity.

Prohibits a conspiracy to interfere with civil rights;

Addresses conspiracies to interfere with or deprive the civil rights of others.

Color:

An employer may be liable for racial harassment, would have to show that:

It was unwelcome;

Based on race;

So severe that it altered the condition of employment.

Proper management can avoid these cases;

Race discrimination may occur to any protected group and is equally protected;

Employer must put a top down message that you will not tolerate racism;

Provide a forum for people to talk to;

If it is a misunderstanding treat it as that.

Constantly monitor workplace hiring, termination, training, promotion, raises and discipline to ensure that they are fair and even-handed.

National Origin:

Language claims are brought as National Origin discrimination.

Title 7 prohibits any employment decisions based on national origin –

Plaintiff must make a prima facie case;

The burden will then shift to the defendant to rebut;

Plaintiff must prove pretext.

Harassment is determined to be so severe and pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive;

A hostile environment can be made by supervisors, employees and consumers.

Factors in evaluating harassment:

Whether the conduct was physically threatening or intimidating;

Frequency;

Whether it was hostile or patently offensive;

Context;

Response from management.

Failure to take appropriate steps to prevent or correct harassment makes an employer liable for unlawful harassment.

Unlawful harassment by a supervisor will make the employer liable, unless:

The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and;

The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

National origin claims may involve language issues.

An employer may only base an employment decision on accent if:

Effective oral communication in English is required to perform job duties and;

The individual’s foreign accent materially interferes with his or her ability to communicate orally in English.

A fluency requirement is permissible only if required for the effective performance of the position for which it is imposed not requiring a greater fluency than necessary for the relevant position.

ENGLISH-ONLY rules may raise issues of national…