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1、Office of Risk Management Annual Conference EMPLOYMENT DISCRIMINATION Basic concepts of employment discrimination law and case law examples of how it is applied Office of Risk Management Annual Conference Employment Discrimination Broad field of litigation Lots of claims and lawsuits Lots of legisla

2、tive and judicial attention Rapidly changing area of law Employers and supervisors must be informed and proactive Office of Risk Management Annual Conference Employment Discrimination The overview: Federal and state laws forbid discrimination in any aspect of employment based on a prohibited factor

3、State law generally tracks federal law and applies the same standards Office of Risk Management Annual Conference Employment Discrimination What cannot be a motivating factor? Race Age Color Disability/Medical Conditions Religion Pregnancy/Caretakers Gender Sexual orientation National origin Genetic

4、 information Military service Smoking/Non-smoking Office of Risk Management Annual Conference Employment Discrimination The main categories of claims: Failure to Hire or Promote Harassment (sexual or otherwise) Hostile Work Environment Wrongful Termination (including constructive discharge) Office o

5、f Risk Management Annual Conference Employment Discrimination How do claims arise? Disparate treatment: deliberately discriminating against an individual (most claims will fall into this category) Disparate impact:having a neutral policy that has a discriminatory effect Office of Risk Management Ann

6、ual Conference Employment Discrimination Failure to hire or promote: Member of a protected class met job qualifications, applied but did not get the job Position remained open with search for person with same qualifications Legitimate business decisions are usually protected Specific examples from c

7、ase law Office of Risk Management Annual Conference Employment Discrimination Improper conduct based on any protected or prohibited factor (age, race, sex, gender, disability, etc.) can form the basis for a harassment claim Majority of litigated claims involve race, sex, age, and disability Office o

8、f Risk Management Annual Conference Employment Discrimination Sexual harassment: Unwelcome conduct based on sex Conduct a reasonable person would find offensive Effective anti-harassment policy is essential Employee must report and take advantage of preventive or corrective opportunities Specific ex

9、amples from case law Office of Risk Management Annual Conference Employment Discrimination Hostile work environment: Hostile or abusive conduct that alters the terms or conditions of employment and unreasonably interferes with an employees work performance Can be a single act but usually a pattern o

10、f conduct By supervisor, co-employee or customer A high standard to meet Specific examples from case law Office of Risk Management Annual Conference Employment Discrimination Hostile work environment: Effective policy against harassment in the workplace Employee failed to report or take advantage of

11、 preventive or corrective opportunities Employer made prompt and reasonable response Office of Risk Management Annual Conference Employment Discrimination Wrongful termination, including constructive discharge: At-will employment v. protected employment (contract, tenure, civil service, etc.) Must have a legitimate non-discriminatory reason for termination Diffi