Employment Discrimination and Harassment in the Workplace

Employment Discrimination and Harassment in the Workplace
OVERVIEW
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Week 3 provides an overview of current laws governing workplace discrimination. It covers not only
those types of discrimination barred by the 1964 Civil Rights Act, but also more recent amendments
dealing with areas such as age and disability discrimination. Reasonable accommodation and sexual
harassment are addressed along with some of the tactics and strategies used by employers to defend
against accusations of workplace discrimination. Topics include discussing the major categories of
prohibited employment discrimination, identifying some of the “protected classes” of applicants or
employees, recognizing ways in which the original 1964 Civil Rights Act has been amended, and explain
how BFOQ’s may operate as narrow exceptions to the general rules governing employment
discrimination
Completing the readings, discussions, activities, and assignments will help you identify the questions and
inquiries that are legal or permissible—as well as those that may violate state or federal law.
Employment Discrimination Overview (https://www.law.cornell.edu/wex/employment_discrimination )
Employment Discrimination laws seek to prevent discrimination based on race, sex, sexual orientation,
religion, national origin, physical disability, and age by employers. Discriminatory practices include bias
in hiring, promotion, job assignment, termination, compensation, retaliation, and various types of
harassment. The main body of employment discrimination laws consists of federal and state statutes.
The United States Constitution and some state constitutions provide additional protection when the
employer is a governmental body or the government has taken significant steps to foster the
discriminatory practice of the employer.
The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal
and state governments to discriminate. The Fifth Amendment has an explicit requirement that the
federal government not deprive individuals of “life, liberty, or property” without due process of the law.
It also contains an implicit guarantee that each person receive equal protection of the laws. The
Fourteenth Amendment explicitly prohibits states from violating an individual’s rights to due process
and equal protection. In the employment context, the right of equal protection limits the power of the
state and federal governments to discriminate in their employment practices by treating employees,
former employees, or job applicants unequally because of membership in a group (such as a race or
sex). Due process protection requires that employees receive a fair process before termination if the
termination relates to a “liberty” (such as the right to free speech) or property interest. State
constitutions may also afford protection from employment discrimination.
The Constitution does not directly constrain discrimination in the private sector, but the private sector
has become subject to a growing body of federal and state statutes.
Week 3 Discussions
Discussion Topic #1 Harassment in the Workplace
This morning the Boss entered your office and told you that he wanted you to prepare a termination for
an employee, John. He said that he just found out that John was previously Jane, and that this
knowledge ate at the core of his religious beliefs, and he would not tolerate such aberrant behavior in
his organization. As the HR Leader, what would you tell your Boss regarding this matter? And by the
way, your Boss is the CEO of the Church of Natural Theolog’s Medical Clinic and John is a Licensed Nurse
Practitioner for the Clinic and a lay minister in the Church.
Use at least one HR/legal reference.
Here are a few references to get you going:
http://www.nolo.com/legal-encyclopedia/fighting-sexual-harassment-29532.html
https://www.nolo.com/legal-encyclopedia/same-sex-harassment-know-your-rights.html
https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
SHRM Article on Avoiding LGBTQ Discrimination in your Benefits Program
SHRM Article on What Does the High Court’s LGBTQ Ruling Mean for Employee Benefits
Discussion Topic #2 Discrimination based on BFOQ & Business Necessity
Watch Video: https://www.youtube.com/watch?v=LEb7tUySdkY
BFOQ’s and “business necessity” sometimes serve as exceptions to the rule that you cannot discriminate
in employment decisions.
1. Briefly discuss the difference between BFOQ and Business Necessity defenses.
2. Locate one real life case from a court or other tribunal where a BFOQ argument carried the day–
or did not. Summarize the case. Do you agree or not with the decision? Why or why not?
3. Locate one real life case where the argument “business necessity” carried the day – or did not.
Summarize the case. Do you agree or not with the decision? Why or why not?
Use at least one HR/legal reference and here are a few to get you started.
Here are some references for you to consider:
Definition of BFOQ from
https://www.law.cornell.edu/wex/bona_fide_occupational_qualification_(bfoq)
https://scholarship.law.edu/cgi/viewcontent.cgi?article=2259&context=lawreview
http://www.nolo.com/legal-encyclopedia/fighting-race-national-origin-discrimination-29672.html
http://www.nolo.com/legal-encyclopedia/reasonable-accommodation-religious-beliefs.html