Please outline the meaning of disparate treatment and impact? Include an example?
There are generally two types of employment discrimination claims, disparate treatment or disparate impact.
Disparate treatment Disparate Impact
-the worker seeks to prove the employer's discriminatory motive -there need not be proof of intentional discrimination
-recognized under the federal Title VII of the Civil Rights Act and have been used to challenge employment practices while on their face neutral, disparately impact those of certain race or gender
For example, requiring a high school diploma for some manual labor jobs has in the past been found to have a discriminatory disparate impact on ...view middle of the document...
The Court found that the ADEA does not protect against employment practices which have a disparate impact on older workers.
In summary, if older workers have insufficient proof that an employer's practices intended to treat them worse than younger workers because of their age, they are not left with a fall back position that the practices have a disparate impact upon them because of their age.
When an employer is faced with a policy that in fact may be treating older workers worse than younger workers, it is best to seek legal counsel to determine the best way to minimize liability under state and federal age employment discrimination laws.
2 What is a BFOQ? Please outline why this comes into play and include an example?
A BFOQ is a legal exception to an otherwise discriminatory hiring practice that is "reasonably necessary to the normal operation of a particular business." The BFOQ may be requested if "the essence of the business operation would be undermined if the business eliminated its discriminatory policy." Note that allowing a company to hire employees based on their religion, gender, or national origin where those factors are reasonably necessary to the normal operation of that particular business or enterprise does not permit religion-based, gender-based or national origin-based differences in pay to those holding the same job. With a BFOQ the burden of proof always lies with the employer.
Three principles to keep in mind if an employer is requesting a BFOQ.
o Applies only to qualifications that affect employee's ability to perform job
o Romantic paternalism not allowed (for example denies women jobs that are dirty, dangerous, strenuous, but higher paying).
o Cannot argue BFOQ for customer preference.
o Authenticity (e.g. Male models).
2. All or substantially all persons of class cannot perform essential duties job duties.
3. Third party risk (e.g. pregnant workers judged individually, not as class).
RACE: The law specifically states that it is unlawful to discriminate on the basis of religion, gender, or national origin, except where any of these factors is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." However, the law says that race can NEVER be a bona fide occupational qualification.
RELIGION: Besides the exemptions given religious organizations and educational organizations directed toward the propagation of a particular religion, religion could be considered a bona fide occupational qualification when membership in a certain religion is reasonably necessary to the performance of a job. For example, a company selling religious articles or books might be allowed to insist on hiring sales people of the particular religion involved. But the company could not refuse to hire a janitor because of his religion, as it would not be "reasonably necessary" to the operation of the business. (Note: This is a hypothetical...