A transsexual is a person whose gender identity does not match the sex that was assigned at birth. Some transsexuals get medical treatment (surgery or hormones or both) in order to bring their body into alignment with their gender identity.
Title VII:
Title VII forbids discrimination "because of sex," and one legal question is whether this forbids discrimination because a person is a transsexual.
The bulk of the courts to address this issue hold that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."
A recently-developed theory discussed in some cases is that transsexuals are victims of "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989). The difficulty with this theory is that a person who came into life identified as female and is now male often acts in a typical male fashion, so there really is no "sexual stereotyping" involved.
A third theory is that transsexuals simply are being discriminated against "because of sex." This theory is new, not well developed, and has not been used by many courts. One example is Schroer v. Billington (D DC 03/31/2006).
I've suggested a fourth theory: I reason by analogy to religion discrimination. If an individual changes from being a Mormon to being a Baptist, and that's the reason the person gets fired (or not hired), then I think that would be a clear-cut case of discrimination "because of religion." If someone changes from being a man to being a woman, and that's the reason the person gets fired (or not hired), then that should constitute discrimination "because of sex." I don't know of any courts that have adopted this idea, and I can't figure out why.
The Americans with Disabilities Act (ADA):
The ADA, which protects against discrimination because an individual's disability, specifically excludes protection from discrimination on the basis of being a transsexual, or having a gender identity disorder or sexual behavior disorder.
State laws:
The laws of some states and some local governments do provide protection against transsexual discrimination.
]]>|
|
Title VII does not prohibit discrimination because of an individual's sexual orientation. Although Title VII prohibits discrimination because of sex, the word sex is interpreted as meaning gender (that is, being male or being female), and has nothing to do with sexuality or sexual conduct. This same idea is extended to discrimination because an individual is a transsexual or transvestite.
Sexual harassment can violate Title VII. Although most sexual harassment involves a male and a female, same-sex harassment is also illegal if it takes place because of sex (meaning gender). It should not matter that the victim (or the perpetrator) is heterosexual or homosexual, so long as the harassment is because of the victim's sex.
Title VII has been interpreted as barring employers from relying on "sexual stereotypes" such as a woman being too macho or too aggressive, when men are allowed to be that way.
Also, homosexuals, heterosexuals, and bisexuals alike enjoy the same protections against discrimination because of their sex, race, religion, national origin, disability, age, and so on.
The Americans with Disabilities Act (ADA), which protects against discrimination because an individual's disability, specifically excludes protection from discrimination on the basis of being a homosexual, bisexual, transvestite, transsexual, or having a gender identity disorder or sexual behavior disorder.
State laws: Although federal law provides no protection against discrimination because of sexual orientation, the laws of some states and some local governments do provide such protection. Some of these laws are similar to Title VII and prohibit employers from discriminating because of sexual orientation. Some of these laws require employers to provide employees' domestic partners with the same benefits (such as health insurance) that are provided for spouses. Some do both.
]]>|
|
Make whole relief. In general, the idea will be to provide "make whole" relief, which essentially means to put the plaintiff back into the situation she would have been in if the discrimination had not occurred.
Reinstatement and hiring. If the plaintiff was discharged unlawfully, the court should order her to be reinstated, with no loss of seniority. If the employer unlawfully refused to hire her, the court should order that she be hired, and credited with the seniority she would have earned if she had been hired earlier. If there truly is no vacancy, then the court will order "front pay" instead of reinstatement or hiring. The amount of front pay will be based on an estimate of how much she would have earned in the future.
Back pay. The court will order payment of back pay from the date of discrimination to the date of the court judgment. In order to make the plaintiff whole, this will include wages, probable overtime payments, sick leave, vacation, pension benefits, health insurance, and anything else that has a monetary value. The court will then reduce that amount by the amount that the plaintiff earned (or with reasonable effort should have earned) during the same period of time.
Compensatory damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). This will include things that are somewhat imprecise and don't always have a clear monetary value such as humiliation, emotional distress, inconvenience, loss of reputation.
Punitive damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). These damages are designed to punish past wrongdoing and deter future wrongdoing, and the plaintiff must prove that the employer acted with "malice" or in reckless disregard for federally protected legal rights. There are lots of detailed rules about exactly how and when an employer can be required to pay punitive damages, as well as rules as to how much these damages can be.
Caps on damages. Most federal statutes have caps (upper limits) on how many dollars can be recovered for compensatory damages and punitive damages. These caps range from $50,000 to $300,000 (based on the compensatory and punitive damages combined), depending on how many employees an employer has. Two forms of damages are excluded from the caps: back pay and front pay.
Liquidated damages. Three statutes allow a court, in specific circumstances, to award liquidated damages equal to the amount of back pay: Equal Pay Act, Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA).
Attorney fees. A prevailing plaintiff can recover attorney fees under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). In addition, prevailing parties recover "costs" which include filing fees, transcripts, and other items.
Coming next: Discrimination because of sexual orientation #32: Employment Law 101
]]>|
|
Protected employee activity. There are two kinds of employee activity that are protected: (1) participation and (2) opposition.
Participation. "Participation" includes filing a charge with EEOC or with a relevant state agency, testifying, providing documents, giving a deposition, or otherwise being actually involved in an EEOC or court case. Any testimony that an employee gives is absolutely protected, even if it turns out to be false.
Opposition. "Opposition" includes making internal complaints, writing to a newspaper, complaining to a labor union, or even organizing a boycott. "Opposition" does not have absolute protection. The opposition must be "reasonable," so some activity will not be protected. Examples: interfering with the work of co-workers, blocking access to buildings, saying bad things about the employer's products or services, taking or copying the employer's confidential information or documents. One important thing that is not protected is making false statements.
Opposing "unlawful" practices. The statute says the employee must be opposing a practice that is "unlawful." Sometimes the employee believes the practice is unlawful, but it really is not. (Example: sexual harassment might not be severe or pervasive enough to be illegal.) Even so, the opposition will be protected if (1) the employee actually believes in good faith that the practice is unlawful and (2) a reasonable person would believe the practice is unlawful.
There are many examples of cases in which an employee complained about alleged discrimination that turned out not to exist, but then the employer retaliated against the employee for making the complaint. The employee can win on a retaliation claim even though she loses on the underlying discrimination claim.
"Because of." The employee must prove that the employer discriminated against the employee because of her opposition. This requires that the employee prove cause-and-effect. That is, the employee must prove that it was the opposition that caused the employer's reaction.
What is "retaliation"? Many types of "adverse actions" by an employer can be retaliation. According to a June 2006 US Supreme Court decision, it is not limited to on-the-job events such as demotions. It can include off-work events such as filing false criminal charges.
Most important is that it includes employer actions that "would have been materially adverse to a reasonable employee or job applicant." This excludes minor annoyances, but can include changes in job responsibilities that do not involve a loss of pay. The court will look at the employer's actions from "the perspective of a reasonable person in the plaintiff's position."
Coming next: Remedies for Discrimination #31: Employment Law 101
]]>|
|
The next step is to find out whether the employer is going to be liable for that harassment under Title VII. Remember that individuals (even supervisors and managers) are not personally liable under Title VII. Only "employers" are. So that's why we must ask whether the employer (the corporation, company, partnership, or whatever) is liable. (As an aside, remember that individuals sometimes can be liable under state law.)
Look at two things: (1) What kind of harassment (either quid-pro-quo or hostile environment. (2) Who is the harasser (manager, supervisor, co-worker, customer).
Quid-pro-quo harassment. If the employer denies the employee a "tangible job benefit" (such as a promotion, pay raise, getting fired, not being hired) because of sex, then that's called quid-pro-quo harassment. The employer will be liable even if the employer has a policy against harassment and management was not aware of what was happening.
Hostile environment harassment.
Hostile environment harassment done by senior officers of the company, the employer is usually liable even if there was a policy prohibiting harassment.
Hostile environment harassment done by a supervisor, the employer will be liable unless the employer can prove an affirmative defense by proving both of the following:
Reasonable care to prevent harassment. The employer has to use reasonable care both (a) to prevent and (b) to promptly correct by having a non-harassment policy. The policy should be widely disseminated, brought to the attention of employees, include a complaint process that includes a method for bypassing the offending supervisor, and management should monitor supervisors' behavior.-- and --
Failure to take advantage of anti-harassment policy. The employer can prove that the employee failed to take advantage of the employer's anti-harassment policy. For example, the employee knew about the policy but did not notify her supervisor or manager that she was being harassed.
Hostile environment harassment done by a co-worker or a customer, the liability of the employer is proved in a different way. The employee must show that the employer knew the harassment was happening (or reasonably should have known) and then failed to take prompt and effective steps to make it stop.
Coming next: Retaliation #30: Employment Law 101
]]>|
|
Federal law forbids an employer to engage in certain harassment that takes place because of the employee's sex, race, religion, disability, or other protected status. Take sexual harassment as an example. Probably the best way to look at it is that sexual harassment is one form of sex discrimination.
I will be discussing sexual harassment here, as the law has developed under Title VII. However, the same general principles will apply to racial harassment, national origin harassment, religious harassment, disability harassment, and age harassment. Also, state laws often have similar protections against harassment.
Basic definition. Sexual harassment exists when, because of an individual's sex, the employer causes the workplace to have intimidation, ridicule, and insult that is so severe or pervasive that it alters the conditions of an individual's employment. The original source of the harassment can be management, a supervisor, co-workers, or customers.
Traditionally, lawyers have divided harassment into two categories: (1) quid-pro-quo and (2) hostile environment.
Quid-pro-quo harassment. If the employer denies the employee a "tangible job benefit" (such as a promotion, pay raise, getting fired, not being hired) because of sex, then that's a violation. For example, Jane gets fired because she refused to have a sexual relationship with her supervisor. In these cases the employer is liable even if the employer had a policy against sex harassment and even if upper management did not know about it.
Hostile environment harassment is more complex. The hostile working conditions must be both objectively and subjectively offensive, and must be so pervasive or severe that they alter the employee's working conditions.
Assuming sexual harassment can be proved, is the employer liable? Under Title VII no statutory liability attaches to individuals such as supervisors or managers. So the question is whether the employer (the corporation or partnership) is liable. If it was quid-pro-quo (involving a tangible employment action), then the employer will be liable even if it was only a supervisor that took the action. However, things are much more complicated when dealing with hostile environment cases. That will be the subject of the next lesson.
Coming next: Employer liability for harassment #29: Employment Law 101
]]>|
|
The individual also must be "qualified" for the job in question, which means she is able to perform essential functions with or without a reasonable accommodation. And an employer has an affirmative obligation to provide a reasonable accommodation unless that would be an undue hardship for the employer.
The burden will be on the employee (or applicant) to show that a reasonable accommodation exists, and then the burden will shift to the employer to show that the accommodation would impose an undue hardship.
Identifying a reasonable accommodation requires a particularized inquiry into the exact nature of the individual's disability and the details of the job in question. One must not generalize because not every hearing impaired person is the same, individuals who use wheel chairs are not all the same, and so on. The focus has to be on the individual, and not on disabled people generally or on hearing impaired people generally.
One way to accommodate is to break the job down into essential and non-essential functions. The ADA says a person has to be able to do the essential functions, so an employer is not going to be required to change those functions or do away with them. However, and employer may be required to change or eliminate non-essential functions.
First look to see whether the individual can perform the essential functions without any other accommodation. If so, she is qualified. If not, then look to see whether she could perform the essential functions with an accommodation, and whether that accommodation is a reasonable one. (If there is more than one accommodation that is reasonable, the employee does not have a legal right to pick the best one.)
Undue hardship. If the employer proves that an accommodation (even a reasonable one) would impose an undue hardship, then the employer does not have to make that accommodation. Factors to consider include the cost of the accommodation, financial resources of the employer and of the facility, the impact on the employer's operations, and the impact on other employees.
Interactive process. According to the EEOC, the employee and employer should engage in an interactive process. The employee should first request an accommodation and supply whatever personal information is needed. The employee should also suggest any accommodation she knows about. Then the employer should respond with suggestions and ideas. Failure of the employer to do so can create a presumption that the accommodations suggested by the employee were reasonable. Likewise, if the employee does not cooperate in this process there can be a presumption of unreasonableness.
Direct threat to health or safety. An individual is not qualified if she creates a direct threat to the health or safety of others or to herself.
Coming next: Harassment #28: Employment Law 101
]]>|
|
The ADA's definition of "disability" is somewhat complex, and it is this definition that determines whether an individual is protected by the ADA. Most states have statutes that are similar to the ADA, but many of them define "disability" in a somewhat different way - often to the advantage of the employee.
The ADA says a person has a disability if that person (1) actually has a disability, or (2) has a record of having a disability (even if not currently disabled), or (3) is regarded as having a disability (even if not currently, or ever, disabled).
An individual has a disability if that individual:
Let's look at each one of these:
Physical or mental impairment. The idea of an "impairment" is that there must be a medically recognized condition that impairs the individual's ability to function. On the physical side, these can be diseases (contagious or not), malformations, or absence of limbs. Excluded are common characteristics such as left-handedness, baldness, and other things that don't effect the ability to function. On the mental side, it includes psychological disorders and mental disorders, including learning disabilities, mental illnesses, and mental retardation. Excluded are things like being overly aggressive or argumentative, or having poor judgment.
Some things are specifically excluded by the ADA, such as homosexuality, pedophilia, kleptomania, and others.
Major life activity. Some things are clearly "major life activities," such as walking, breathing, hearing, caring for one's self, seeing, speaking, reproducing, eating. Others clearly are not major life activities, such as playing the piano, lifting heavy boxes.
Although work is a "major life activity," it is not enough to show that the individual is unable to perform a specific job. The courts require that the individual be precluded from working in a wide range of job or classifications of jobs in the geographical area, based on that person's skills, knowledge, and abilities. Expert testimony often is required in order to prove this.
Substantially limits. The impairment must substantially limit one of the major life activities. Courts do not simply look at the impairment and call it a disability. For example, it is not enough that the individual has cancer, is diabetic, or has a mental disorder. The court will look at the individual's unique situation to see whether there is a substantial limitation of a major life activity. The limitation must be frequent and must be either permanent or long-term. Thus, a person who has a broken bone or major illness that totally incapacitates her for a short period is not disabled under the ADA.
Corrective measures. Some conditions can be corrected by taking medication or using appliances such as spectacles. The US Supreme Court has held that courts are required to decide whether a person is disabled based on their situation when they are using their medication or appliance. For example, a person had very bad vision (20/400) but could have good vision (20/20) by wearing glasses. The court will hold that this person's vision, as corrected, does not substantially limit that person's abilities, so the person does not have a disability and is not protected by the ADA. Many diseases can be controlled by medication, and some conditions such as deafness can be helped by certain appliances such as hearing aids, so individuals in those situations are not disabled under the ADA.
Able to perform essential functions with or without accommodation. Even if a person is disabled, she still must be qualified for the job in question. This means she must be able to perform the essential functions of the particular job. However, the ability to perform is measured on the assumption that the employer has reasonably accommodated the employee. For example, the employer might need to eliminate some of the "non-essential" functions or duties of the job.
Harassment because a person has a disability is a form of disability discrimination.
Over 19 percent of the charges filed with the EEOC involve claims of disability discrimination.
Coming next: Reasonable accommodation of disability #27: Employment Law 101
]]>|
|
What does "age" mean under the ADEA? It includes individuals who are 40 years old or older. There is no upper limit. State statutes sometimes specify different ages, such as 18.
So, age discrimination is treating people in a different manner because they are 40 years old or older.
Examples:
Age means chronological age, and employers are not prohibited from making distinctions based on how many years an employee has worked for the company, even though that may correlate with age.
Age differences. In order to make out a prima facie case of age discrimination there usually must be proof that there was a "substantially younger" person who got better treatment. For example, showing that a 60-year-old was fired and a 59-year-old wasn't would not be enough of an age difference. There is no "bright line" number of years for measuring what "substantially younger" means.
Favoring older workers. It is not a violation of the ADEA to favor older workers as against younger workers.
Harassment because of age is a form of age discrimination.
Disparate impact. In 2005 the US Supreme Court decided that the disparate impact theory can be used in age discrimination cases. However, these age cases are extremely difficult for employees to win for two reasons. First is that the 1991 legislation that makes things easier for plaintiffs in Title VII impact cases does not apply. Second is that the Age Discrimination in Employment Act specifically permits any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age." In the 2005 case a City gave police officers with less than five years service greater pay raises than more experienced officers. Obviously this had a negative impact on the 40-and-over group. The Court pointed out that the City based its decision on seniority, which was a "reasonable factor other than age." Therefore, the City won.
BFOQ. In rare cases an employer can defend a case of age discrimination on the ground that it is a "bona fide occupational qualification." A special section of the statute allows age distinctions to be made for the hiring and retirement ages of law enforcement and firefighter employees.
Waivers of rights. An employee can waive his or her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program. However, the ADEA, as amended by the Older Workers Benefit Protection Act (OWBPA), sets out minimum standards that must be met in order for a waiver to be valid. Among other requirements, a valid ADEA waiver must:
Over 22 percent of the charges filed with the EEOC involve claims of age discrimination.
Coming next: Disability discrimination #26: Employment Law 101
]]>|
|
What does "religion" mean under Title VII? It includes "all aspects of religious observances and practices as well as belief." It includes believers, atheists, and agnostics. It includes those who belong to an organized religion and those who do not.
So, religion discrimination is (1) treating people in a different manner because of their religious beliefs, or observances, or practices, or (2) refusing to reasonably accommodate an employee's religious practices or observances.
Examples of religious observances or practices (assuming each of these is something the individual considers to be a religious duty, even though a formal "church" does not require it):
Religious harassment is a form of religion discrimination.
Reasonable accommodation. Title VII requires employers to reasonably accommodate an employee's religious observances and practices unless to do so would be an "undue hardship." For example, this might require an employer to modify schedules to allow someone a day off for a holy day, or require an employer to allow the wearing of religious buttons. However, it is often easy for an employer to show that such an accommodation is not "reasonable" or that it would be an "undue hardship."
Only about 3 percent of the charges filed with the EEOC involve claims of religion discrimination.
BFOQ. In rare cases an employer can defend a case of religion discrimination on the ground that it is a "bona fide occupational qualification."
Coming next: Age discrimination #25: Employment Law 101
]]>|
|
What does "national origin" mean under Title VII? It means the country from which a person came, or from which that person's ancestors came.
"National origin" is often confused with "citizenship," but they are two different concepts. A person can be a US citizen and have Polish national origin. A person can be a citizen of Mexico and have Mexican national origin or Cuban national origin. If someone is labeled a "Mexican" or "Japanese" it is hard to know whether that refers to the person's citizenship or national origin. Or perhaps both.
"National origin" is sometimes confused with "race." If someone is labeled a "Mexican" or "Japanese" it is hard to know whether that refers to the person's race or national origin. Or perhaps both.
So, national origin discrimination is treating people in a different manner because of where they or their ancestors came from.
About 10 percent of the charges filed with the EEOC involve claims of national origin discrimination.
The EEOC puts it this way:
National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality.
National origin harassment is a form of national origin discrimination.
BFOQ. In rare cases an employer can defend a case of national origin discrimination on the ground that it is a "bona fide occupational qualification."
Coming next: Religion discrimination #24: Employment Law 101
]]>|
|
Another federal statute, 42 USC Section 1981, prohibits race discrimination when making or performing a contract. The relationship between an employer and employee is a contract, so this federal statute also applies. Section 1981 is especially important because (1) it has a longer statute of limitations than Title VII, (2) an employee does not need to first file a charge with the EEOC, (3) the employee might get greater damages, and (4) Section 1981 applies to even the smallest employers.
What does "race" mean under these statutes? The concept of "race" is not limited to Afro-Americans and whites. It includes Asians, Native Americans, and so on. There are cases that say "race" includes being Polish-American, German-American, and so on.
So, race discrimination is treating people in a different manner because of their race.
It is unlawful to discriminate because a person is black. It is equally unlawful to discriminate because a person is white or any other race.
About 35 percent of the charges filed with the EEOC involve claims of race discrimination.
The EEOC puts it this way:
It is unlawful to discriminate against any employee or applicant for employment because of his/her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.
Examples:
Racial harassment is a form of race discrimination.
BFOQ. An employer cannot defend a case of race discrimination on the ground that it is a "bona fide occupational qualification."
Coming next: National origin discrimination #23: Employment Law 101
]]>|
|
What does "sex" mean under Title VII? It means gender, that is male and female. It has nothing to do with sexuality, sexual practices, sexual orientation, or anything else other than gender.
So, sex discrimination is treating people in a different manner because of their sex, meaning gender.
It is unlawful to discriminate against women. It is equally unlawful to discriminate against men.
Over 30 percent of the charges filed with the EEOC involved claims of sex discrimination.
The EEOC puts it this way:
It is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job related.
Examples of sex discrimination:
Sexual harassment is a form of sex discrimination.
"Sex plus" is a concept used when an employer couples sex with something else. For example, the employer hires men with pre-school children but not women with pre-school children.
Pregnancy. Title VII says that "sex" includes "pregnancy, childbirth, and related conditions." Therefore, it is unlawful for an employer to discriminate on the basis of whether a woman is pregnant, refuse to hire because a woman is pregnant, or discharging a woman because she got an abortion or refused to get an abortion.
BFOQ. In rare cases, an employer will be allowed to discriminate when sex is a "bona fide occupational qualification."
Coming next: Race discrimination #22: Employment Law 101
|
|
Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.
A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.
The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."
Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."
The disparate impact theory can be used whenever there is a large impact based on race, sex, religion, age, or other unlawful factor.
Disparate impact cases are complex (and expensive) because they require the use of experts and involve sophisticated statistical methods.
Age cases: In 2005 the US Supreme Court decided that the disparate impact theory can be used in age discrimination cases. However, these age cases are extremely difficult for employees to win for two reasons. First is that the 1991 legislation that makes things easier for plaintiffs does not apply. Second is that the Age Discrimination in Employment Act (ADEA) specifically permits any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age."
In the 2005 case a City gave police officers with less than five years service greater pay raises than more experienced officers. Obviously this had a negative impact on the 40-and-over group. The Court pointed out that the City based its decision on seniority, which was a "reasonable factor other than age." Therefore, the City won.
Coming next: Sex discrimination #21: Employment Law 101
]]>|
|
A BFOQ can be a defense for an employer that has engaged in intentional discrimination. The burden is on the employer to prove a BFOQ, and it is a difficult burden.
Title VII and the Age Discrimination in Employment Act (ADEA) prohibit discrimination because of:
The BFOQ defense is available only in cases of discrimination because of:
As Title VII puts it: Discrimination is OK "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."
No BFOQ for race or color discrimination.
Examples:
Coming next: Disparate impact #20: Employment Law 101
|
|