- Course: Employment Law 101
- Module: Discrimination
- Lesson Type: Video
- Lesson Duration: 9:49
Okay we're gonna continue our conversation about Title VII of the Civil Rights Act of 1964 which is as we described in the prior lecture, prohibits discrimination. What's discrimination? How do you define that? I think that students generally define it as treating an individual different because they're a member of a protected class.
And in just about every class that I've asked this general sort of basic question that's the response that I get and it's not a wrong answer it's just that under the law there is more than one type of discrimination. What most people think of is referred to as disparate treatment. And that is where an employer is motivated to treat people less favorable because of a protected status. That is what most people understand to be discrimination but there's another type of discrimination as well and that is called disparate impact. A disparate impact is a situation where a business may undergo a policy, a procedure using a hiring tool, something that on it's face appears facially neutral and, yet, it has an impact that treats one protected category different than all others. So it could be an admissions test for applicants coming to the business, it could be a policy where the impact of implementing that policy or using that tool has an adverse impact upon a certain protected class and it puts that protected class at a disadvantage. This is a more difficult type of discrimination to prove, usually it's done through statistics and through measurements, expert witnesses and things of that nature. But the bottom line is, that you could discriminate against an individual based upon their differences or you can create a policy that will have the impact of excluding or treating people less favorably because, they're in a protected category. And even if that policy or that admissions tool and disparate impact was not intended to have that impact that still qualifies as discrimination. In other words, with disparate impact, the intent of the business or employer has no part of the analysis. It's whether the Policy, or the tools implemented and used, and created an impact that treated people less favorably based upon some type of protected category.
The next slide talks about a concept called “mixed motive” and “mixed motive” is an important part of the legal analysis of discrimination Ultimately, if you have a candidate and they have lots of strikes against them with regards to hiring them but one of those those strikes is that they belong for a protected category, well, that still qualifies as discrimination. In other words a person that has, this problem and that problem and this problem on the application but you don't select them because they’re this, this, this, and a woman and you’re not going to consider women, that is still discrimination. So, because you have more than one motive and some of them maybe legitimate and have a solid basis for not hiring that person or for letting that person go, if part of your analysis is found to be discriminatory then discrimination has occurred.
Now this is important for a number of reasons. One is that there are two critical areas in which mixed motive is not the standard being used. One is age discrimination, the standard under age discrimination is what we call “but for causation”. In other words, the sole reason for the discrimination has to be age not other factors. Additionally, the but for causation standard applies to retaliation. So retaliation has to be strictly because of that employee engaging in a protected activity and that's the only reason that you've undergone whatever action you have as an employer that is being deemed as adverse to the employee.
But we're talking about Title VII now so I'm gonna set age and retaliation aside for a minute. The standard that applies here is called mixed motive. Mixed motive means that a candidate or an employee may have a number of valid reasons for the employer taking an adverse action. But if any of those reasons include also discrimination then the mixed motive analysis applies and it is a situation in where discrimination can be found.
Okay, here's another concept that's kind of confusing for people. We call it bona fide occupational qualification, or BFOQ. I'm gonna read right off the slide here. It says that Section 703(e) states that discrimination is not unlawful In those certain circumstances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. Whoa. What we're saying is there might be certain circumstances in which discrimination will be permitted.
And this is actually an affirmative defense discrimination but the business has the burden of demonstrating that circumstances exist in which such a distinction should be made. This is a very difficult concept for students to understand but I think when you get some examples, it helps to clarify the idea of BFOQ, or bona fide occupational qualification.
So let's think about these, let's give some examples. What about pilots and bus drivers that are required by law to retire at certain ages? I think for pilots it's 65. Well, the purpose of this is not that we don't want older people to be treated differently in the workplace. It's because that at a certain age, we have shown that it becomes less and less safe for people that are operating things like cars and planes and buses, and there are other lives at stake. So for those purposes those regulations exist and those are examples where we would treat somebody different and say they are not qualified because they don't meet the requirement of the job. In other words, your age is so high that we're gonna say that you're not qualified to fly a plane, or drive a bus where others are potentially at harm.
Another example is advertising male models for male models to model men's clothing. The models need to be male, they're men's clothing and that's what's required.
Another example might be with religious schools. You can say that we want people of a certain denomination to be teaching in religious schools. But I'll tell you that most of the case law says that the positions need to be secular. In other words, they need to be related to the religion.
A janitor or a secretary in a Catholic school, you cannot likely be able to argue successfully that they have to be Catholic. They could be Protestant, or they could be another religion, or Jewish. However, with regards to teaching theology classes, it is permissible for that theology teacher to be required to be a particular denomination.
Okay, this is some interesting concepts and legal concepts for us to talk about. So now you should have a better feel for discrimination in terms of there being two types. Disparate Treatment, which I think most of us intuitively understand, and disparate impact. You also have a better understanding of mixed motive, and you also have a better understanding of BFOQ, of bona fied occupational qualifications, where certain circumstances In which the discrimination is promoted unto the law.
We acknowledge this discrimination but it's permitted for public safety purpose or for the normal operations of a specific business.
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...Mark's Full Bio
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Setting The Foundation
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