can some one help me with this exam .i will attach all the notes that you need to answer the questions.

“What people have always sought is equality of rights before the law. For rights that were not open to all equally would not be rights.”

Cicero

I. Teacher to Teacher Dialogue

Discrimination and equal opportunity are hard materials to present to students. As instructors, we need to be careful to first clearly define the terms illustrated by the two sides of the word “discrimination.” Second, be sure to present both sides of every argument. This is especially important in the most controversial areas such as affirmative action. After all arguments have been listed, be sure to have students engage in open debate, allowing all sides to be heard, not just the politically correct ones. If the class as a whole wants to take only one side, we owe it to fair inquiry and academic freedom to put forward opposite views, even if we personally do not support those views. Teaching these materials is never easy, but remains always exciting. As the Rev. Martin Luther King Jr. once said, “It may be true that the law cannot make a man love me. But it can keep him from lynching me, and I think that’s pretty important.”

Few American legal issues are inflamed with more controversy than discrimination in the workplace. The genesis of our nation’s heritage is rooted in a diversity of peoples who immigrated to the New World in order to flee the royalist, class, or caste systems that so often predestined their opportunities for social and economic advancement. The U.S. Declaration of Independence, and the government founded on it, became the first major system of self-governance premised on the assumption that all persons are born equal and should be treated equally in the eyes of the law. As we all know, that equality has often been a hope rather than a reality for many. For all of the rhetoric in the early days of the United States, freedom and equality meant equality only for free or freed men, not women, and slavery still existed in many of the states.

The same diversity that has been a source of national pride has also been the basis of disparate treatment of persons in the workplace for many years. The term “discriminate” has within it two distinct and opposite meanings. On the positive side, discrimination is simply a fact of life. We are not all equal in all ways. We have different talents, strengths, levels of training, and abilities. Employers, in turn, should be allowed and expected to seek utilization of these divergent talents and strengths in their own best interests. To discriminate in the positive sense is to reward ability and merit on its face. The positive aspect of discrimination really says that uniqueness should be discerned, differentiated, distinguished, and rewarded in the workplace. In the end, economic marketplace factors are blind to any other factors but job performance. Like it or not, positive discrimination is a simple economic necessity that is no different than the laws of nature and cannot be ignored. For example, you cannot expect the average man on the street to play golf as well as Tiger Woods. He, in turn, is duly rewarded for these talents.

The negative side of discrimination is found in wrongful selection processes. For a society founded on a premise of equality, we have certainly had more than our share of unequal treatment in the workplace. The negative side of discrimination is inequality of treatment based on wrongful motive, justifications, or rationalizations. Each choice not based on talent, ability, and merit is a step away from the inherent basis of equality before the law. Wrongful discrimination is like cancer. Sooner or later, once it is allowed to grow unchecked, it will kill. None of us can afford to look the other way and say: “It’s not my problem.” Wrongful discrimination against any group is a wrong upon the society at large. Almost everyone appreciates that fact intuitively, if not intellectually.

One element that provides hope for positive change is goodwill. Where people of goodwill cling to the basic rightness of equity before the law, that equity will eventually result in a changed culture. Until then, law and our courts will continue to be the testing grounds for this monumental change in the social order. It may sound corny, but we all must do our part to live and let live.

I like to point out to my students that within the next 5 to 10 years, Caucasians will become a minority, as the Latin population continues to soar. Shifts in the work force as more women get degrees and seek employment will further affect the current job situations.

II. Chapter Objectives

1. Describe the scope of coverage of Title VII of the Civil Rights Act of 1964.

2. Identify race, color, and national origin discrimination that violates Title VII.

3. Identify and describe gender discrimination and sexual harassment.

4. Describe the scope of coverage of the Age Discrimination in Employment Act.

5. Describe the protections afforded by the Americans with Disabilities Act.

III. Key Question Checklist

• What type of discrimination is being alleged?

• What statutory remedies are available?

• Which remedy is most suitable for your case?

IV. Text Materials

Introduction to Equal Opportunity in Employment

Starting in the 1960s, Congress began enacting a comprehensive set of federal laws that eliminated major forms of employment discrimination. These laws, which were passed to guarantee equal opportunity in employment to all employees and job applicants, have been broadly interpreted by the federal courts, particularly the U.S. Supreme Court. States have also enacted antidiscrimination laws.

Equal Employment Opportunity Commission (EEOC)

The EEOC is the federal administrative agency responsible for enforcing most of the federal antidiscrimination laws.

Complaint Process – A complainant must first file a complaint with the EEOC. Based on whether a violation is found or not, it will decide whether to sue the employer. If a state has a Fair Employment Practices Agency (FEPA), the complainant may file his or her claim with the FEPA instead of the EEOC.

Lilly Ledbetter Fair Pay Act of 2009 – The act provides that each discriminatory pay decision restarts the statutory 180-day clock. The act provides that a court can award back pay for up to two years preceding the filing of the claim if similar violations occurred during the prior two-year time period.

Title VII of the Civil Rights Act of 1964

In the 1960s, Congress enacted several major federal statutes that outlawed employment discrimination against members of certain classes. One of the main statutes is Title VII of the Civil Rights Act of 1964.

Landmark Law: Title VII of the Civil Rights Act of 1964

The Fair Employment Practices Act was passed to eliminate job discrimination in the hiring, maintaining, and termination of employees based on the protected classes of race, color, national origin, sex, and religion.

Scope of Coverage of Title VII – Title VII applies to employers of 15 or more employees, all employment agencies, labor unions with 15 or more members, state and local governments, and most federal agencies. Any employee, including undocumented aliens, may bring an action under Title VII.

Critical Legal Thinking – Title VII was passed based upon where the country stood at the time, and in many parts of the country, where the country still stands today. It was very common to have companies, workplaces, unions, and positions segregated by religion, sex, color, etc. While this still happens in 2014, perhaps in more subtle ways, in the 1960s, employers were closed en masse to many different ethnic minorities. This federal statute reinforced Constitutional Rights in particular economic ways.

Disparate-Treatment Discrimination – Title VII prohibits both disparate-treatment and disparate-action discrimination. Disparate-treatment is the situation in which an employer treats a specific individual less favorable based on their race, color, national origin, sex, or religion.

Disparate-Impact Discrimination – Disparate-impact discrimination is when an employer discriminates against an entire protected class. To prove disparate-action, the plaintiff must show a causal link.

Remedies for Violations of Title VII – A successful plaintiff may recover back pay, reasonable attorneys’ fees, and equitable remedies. The court can award punitive damages if the employer shows malice or reckless indifference. The sum of compensatory and punitive damages is capped at different amounts of money, depending on the size of the employer.

Race and Color Discrimination

Title VII protects against discrimination based on broad categories of race, the color of one’s skin, and the country of a person’s ancestry.

Race Discrimination – Race refers to broad categories such as African American, Asian, Caucasian, Native American, etc.

Color Discrimination – Color refers to the color of one’s skin. Discrimination by an employer based on color violates Title VII.

Critical Legal Thinking – In many parts of the country, there is race discrimination in employment. So no, I do not believe that race discrimination would have been remedied without Title VII because I think in many parts of the United States, there is significant race discrimination which still exists in 2014.

Case 33.1 Race Discrimination: Bennett v. Nucor Corporation

656 F.3d 802, 2011 U.S. App. Lexis 19395 (2011), United States Court of Appeals for the Eighth Circuit

Facts: Nucor runs manufacturing plants and many of the plants have issues with racial slurs and offensive racial harassment.

Issue: Is Nucor liable for race discrimination?

Decision: Yes.

Ethics Questions: A zero human resources policy regarding hate related speech and racial slurs would let workers know that this type of talk will not be tolerated in the workplace if management actually executes on the policy and terminates people using racial slurs.

Civil Rights Act of 1866 – This federal act provided African Americans with the right to make contracts. The Civil Rights Act of 1866 was enacted after the Civil War. Section 1981 expressly prohibits racial discrimination; it has also been held to forbid discrimination based on national origin.

National Origin Discrimination

This refers to discrimination based on the country of a person’s ancestors.

Contemporary Environment: English-Only Requirement in the Workplace

Title VII permits employers to adopt English-only rules under certain circumstances. The Equal Employment Opportunity Commission (EEOC) states that an English-only rule that is justified by “business necessity” is lawful.

Gender Discrimination

Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on gender.

Gender Discrimination – Also known as sex discrimination, this is applied equally to both men and women. But the overwhelming majority of Title VII sex discrimination cases are brought by women.

Pregnancy Discrimination – The Pregnancy Discrimination Act forbids discrimination because of pregnancy or the potential for becoming pregnant.

Sexual Harassment – Sexual harassment in the workplace includes lewd remarks, touching, intimidation, posting indecent materials, verbal and physical conduct of a sexual nature, among other behaviors. The courts will look to see if the work environment is hostile or abusive, as opposed to being merely an offensive utterance, and whether the action unreasonably interferes with work performance.

Sexual Harassment

The U.S. Supreme Court has held that sexual harassment that creates a hostile work environment violates Title VII.

Employer’s Defense to a Charge of Sexual Harassment – The U.S. Supreme Court has held that an employer is not strictly liable for sexual harassment, and can offer up affirmative defenses by proving that it has exercised reasonable care to prevent or correct the behavior or that the employee failed to take advantage of any preventive or corrective opportunities provided.

Same-Sex Discrimination – The Supreme Court has held that same-sex discrimination violates Title VII.

Other Forms of Harassment – A hostile work environment can also be found if harassment is based on a person’s race, color, national origin, religion, age, disability, genetic information, and other factors. Same sex harassment also constitutes harassment under Title VII.

Case 33.2 Sexual Harassment: Waldo v. Consumers Energy Company

726 F.3d 802, 2013 U.S. App. Lexis 16555 (2013), United States Court of Appeals for the Sixth Circuit

Facts: Waldo was a female line worker for an electrical company. She was called names during work and excluded and ostracized by the group of workers. She complained to management which did not address the concerns.

Issue: Is the company liable for sex harassment?

Decision: Yes, and a significant punitive damages award was rendered against the company.

Ethics Questions: The answers to these questions are self-evident.

Digital Law: Offensive E-Mails Constitute Sexual Harassment

E-mail harassment tends to be subtle and insidious, and e-mail has greatly increased the potential for sexual harassment.

Religious Discrimination

Although religious discrimination is prohibited under Title VII, the right of an employee to practice his religion is not absolute. Employers must make reasonable accommodations for religious observances and practices, as long as they do not pose an undue hardship.

Defenses to a Title VII Action

Employers can refute claims of discrimination by proving that they selected or promoted employees based on merit or seniority. Further, the courts allow discrimination based on protected classes if it can be shown to be a bona fide occupational qualification (BFOQ). Employers can promote based upon work, education, experience, and professionally developed ability tests. Seniority systems are acceptable.

Bona Fide Occupational Qualification – A BFOQ must be both job related and a business necessity.

Equal Pay Act

The Equal Pay Act protects both sexes from pay discrimination based on sex, covering all private, state, and local employees, but not federal employees. Pay disparity is not allowed if the jobs require equal skill, effort, responsibility, and similar working conditions.

Criteria That Justifies a Differential In Wages – It is allowed in payment systems based on seniority, merit, quantity or quality of product, and shift differentials. Employees may bring a private action seeking back pay and liquidated damages. The successful employee will have their pay raised to the level of the other worker.

Age Discrimination

ADEA prohibits discrimination against employees who are age 40 or older. It covers all nonfederal employers with at least 20 employees, labor unions with at least 25 members, employment agencies, and most state, local, and federal employees. The Older Workers Benefit Protection Act extended this protection to employee benefits. Originally, ADEA covered workers between 40 and 65; it has been extended twice to cover all employees over 40. Successful plaintiffs can recover back pay, attorneys’ fees, and equitable remedies.

Physically Challenged Person Discrimination

The Americans with Disabilities Act (ADA), which was signed into law July 26, 1990, is the most comprehensive piece of civil rights legislation since the Civil Rights Act of 1964.

Landmark Law: Americans with Disabilities Act

This act prohibits discrimination against individuals with qualified disabilities, and covers employers with 15 or more employees, with the exception of the federal government, corporations wholly-owned by the U.S., and bona-fide tax-exempt private clubs. Title 1 requires employers to make reasonable accommodations for employees with disabilities if it does not cause an undue burden on the employer.

Qualified Individual with a Disability – Any person who, with or without reasonable accommodation, can perform the essential functions of a job, is considered to be a qualified individual with a disability. To be disabled, one must have an impairment that substantially limits a major life activity, have a record of the impairment, and be regarded as being impaired.

Limits on Employer Questions – Title 1 restricts an employer from asking about the disability, but may query the applicant’s ability to perform job-related functions. Medical examinations may be given only after an offer has been extended, but may be a condition of starting work, provided all employees are subject to the same test.

Reasonable Accommodation – If an employer makes a reasonable accommodation to accommodate an individual’s disability, there is no violation of the ADA.

Undue Hardship – Employers are not obligated to provide accommodations that would impose an undue hardship.

Uncovered Conditions – Temporary or nonchronic impairments of short duration with little or no residual effects usually are not considered disabilities.

Genetic Information Discrimination

Genetic information can be misused, possibly by employers if they have access to or knowledge of an applicant’s or an employee’s genetic information or his or her family’s genetic information. Such misuse is called genetic information discrimination.

Genetic Information Nondiscrimination Act (GINA) – Title II of GINA makes it illegal for an employer to discriminate against job applicants and employees based on genetic information.

Protection from Retaliation

Acts of retaliation include dismissing, demoting, harassing, or other methods of reprisal.

Case 33.3 Employer Retaliation: Thompson v. North American Stainless, LP

131 S.Ct. 863, 2011 U.S. Lexis 913 (2011), Supreme Court of the United States

Facts: Thompson sued NAS, alleging third-party retaliation, in violation of Title VII. The U.S. District Court granted summary judgment to NAS, concluding that Title VII does not permit third-party retaliation claims. An en banc hearing of the U.S. Court of Appeals upheld this decision. The Court of Appeals reasoned that Thompson, as a third party, was not included in the class of persons who could bring a retaliation case under Title VII. Thompson appealed to the U.S. Supreme Court.

Issue: Does Title VII permit third-party retaliation claims against an employer?

Decision: The U.S. Supreme Court held that Title VII grants a third party the right to file a claim against his or her employer for retaliation. Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

Ethics Questions: Federal antidiscrimination laws prohibit employers from engaging in retaliation against an employee for filing a charge of discrimination or participating in a discrimination proceeding concerning race, color, national origin, gender, religion, age, disability, genetic information, and other forms of discrimination. If Title VII did not permit retaliation claims there would exist no protection for an employee from retaliation. This might even provoke the employee to retaliate further, which may lead to violence.

Affirmative Action

The U.S. Supreme Court upheld the use of affirmative action to make up for egregious past discrimination, particularly based on race.

Affirmative Action Plan – It provides that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when making employment decisions.

Reverse Discrimination – The courts have held that if an affirmative action plan is based on pre-established numbers or percentage quotas for hiring or promoting minority applicants, then it causes illegal reverse discrimination.

Contemporary Environment: Veterans and Military Personnel Employment Protections (USERRA)

This federal law was amended in 2010 and applies to all civilian and government employers in the U.S. and U.S. employers operating in foreign countries. This law prohibits discrimination against military veterans.

V. Key Terms and Concepts

• Affirmative action—Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision.

• Affirmative action plan—Employers often adopt an affirmative action plan, which provides that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when making employment decisions.

• Affirmative defense—An employer may raise an affirmative defense against liability by proving that the employer exercised reasonable care to prevent, and promptly correct, any sexual harassing behavior, and that the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

• Age Discrimination in Employment Act—A federal statute that prohibits age discrimination practices against employees who are 40 years and older.

• Americans with Disabilities Act (ADA) of 1990—Imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities.

• Americans with Disabilities Act Amendments Act of 2008—A federal act that amends the ADA by expanding the definition of disability, requiring that the definition of disability be broadly construed, and requiring commonsense assessments in applying certain provisions of the ADA.

• Bona fide occupation qualifications (BFOQ)—Employment discrimination based on a protected class (other than race or color) is lawful if it is job related and a business necessity. This exception is narrowly interpreted by the courts.

• Civil Rights Act of 1866—This law was enacted to give African Americans, just freed from slavery, the same right to contract as whites.

• Color discrimination—Employment discrimination against a person because of his or her color, for example, where a light-skinned person of a race discriminates against dark-skinned person of the same race.

• Discrimination—The EEOC has jurisdiction to investigate charges of discrimination based on race, color, national origin, gender, religion, age, disability, and genetic information.

• Disparate-impact discrimination—Occurs when an employer discriminates against an entire protected class. An example would be where a facially neutral employment practice or rule causes an adverse impact on a protected class.

• Disparate-treatment discrimination—Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion.

• E-mail harassment—E-mail harassment differs from many other incidents of harassment because it is subtle and insidious. E-mail has increased sexual or racial harassment on the job, and it has also become a smoking gun that undermines a company’s attempt to defend such cases.

• Equal Employment Opportunity Commission (EEOC)—The federal administrative agency responsible for enforcing most federal antidiscrimination laws.

• Equal opportunity in employment—The right of all employees and job applicants (1) to be treated without discrimination and (2) to be able to sue employers if they are discriminated against.

• Equal Pay Act of 1963—Protects both sexes from pay discrimination based on sex extends to jobs that require equal skill, equal effort, equal responsibility, and similar working conditions.

• Fair Employment Practices Agency—If a state has a Fair Employment Practices Agency (FEPA), the complainant may file his or her claim with the FEPA instead of the EEOC.

• Gender discrimination—Discrimination against a person because of his or her gender.

• Genetic information discrimination—Discrimination based on information from which it is possible to determine a person’s propensity to be stricken by diseases.

• Genetic Information Nondiscrimination Act—An federal statute that makes it illegal for an employer to discriminate against job applicants and employees based on genetic information.

• Hostile work environment—The U.S. Supreme Court has held that sexual harassment that creates a hostile work environment violates Title VII.

• Lilly Ledbetter Fair Pay Act of 2009—A federal statute that permits a complainant to file an employment discrimination claim against an employer within 180 days of the most recent paycheck violation and to recover back pay for up to two years preceding the filing of the claim if similar violations occurred during the two-year period.

• Mental or psychological disorders—Impairment also includes mental or psychological disorders, such as intellectual disability (e.g., mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

• National origin discrimination—Employment discrimination against a person because of his or her heritage, cultural characteristics, or the country of the person’s ancestors.

• Older Workers Benefit Protection Act—A federal statute that prohibits age discrimination regarding employee benefits.

• Physiological impairments—A physiological impairment includes any physical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

• Pregnancy Discrimination Act—Amendment to Title VII that forbids employment discrimination because of “pregnancy, childbirth, or related medical conditions.”

• Punitive damages—A court can award punitive damages against an employer in a case involving an employer’s malice or reckless indifference to federally protected rights.

• Qualified individual with a disability—A person who (1) has a physical or mental impairment that substantially limits one or more of his or her major life activities, (2) has a record of such impairment, or (3) is regarded as having such impairment.

• Quid pro quo sex discrimination—Title VII also prohibits any form of gender discrimination where sexual favors are requested in order to obtain a job or be promoted. This is called quid pro quo sex discrimination.

• Race discrimination—Employment discrimination against a person because of his or her race.

• Reasonable accommodation for disability—Under Title I of the ADA, an employer’s duty to reasonably accommodate an individual’s disability if doing so does not cause an undue hardship on the employer.

• Reasonable accommodation for religion—Under Title VII, an employer’s duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer.

• Religious discrimination—Discrimination against a person solely because of his or her religion or religious practices.

• Retaliation—Acts of retaliation include dismissing, demoting, harassing, or other methods of reprisal.

• Reverse discrimination—Discrimination against a group that is usually thought of as a majority.

• Right to sue letter—A letter that is issued by the EEOC if it chooses not to bring an action against an employer that authorizes a complainant to sue the employer for employment discrimination.

• Same-sex harassment—The Supreme Court held that an employee who has been harassed by members of his or her own sex can sue for sexual harassment.

• Section 1981 of the Civil Rights Act of 1866—Section 1981 of this act states that all persons “have the same right . . . to make and enforce contracts . . . as is enjoyed by white persons.”

• Sex-plus discrimination—In this form of discrimination, an employer does not discriminate against a class as a whole but treats a subset of the class differently.

• Sexual harassment—Lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature that occur on the job.

• Supervisor—Employer is strictly liable for a harassing supervisor’s conduct if a tangible employment action is taken against a victim. The employer is vicariously liable for a harassing supervisor’s conduct where no tangible employment action is taken against a victim and the employer cannot prove an affirmative defense.

• Title I of the ADA—A title of a federal statute that prohibits employment discrimination against qualified individuals with disabilities in regard to job application procedures, hiring, compensation, training, promotion, and termination.

• Title II of GINA—Title II of GINA makes it illegal for an employer to discriminate against job applicants and employees based on genetic information.

• Title VII of the Civil Rights Act of 1964 (Fair Employment Practices Act)—Intended to eliminate job discrimination based on five protected classes: race, color, religion, sex, or national origin.

• Undue hardship—Under Title VII, an employer is under a duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer.