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THEORIES OF DISCRIMINATION
There are two basic theories utilized when proving an employment
discrimination case. One theory is Disparate Treatment. In a Disparate
Treatment case the Plaintiff or the Government has the burden of proving
that the defendant had the specific intent to discriminate against an
individual or a class of individuals. The second theory is Disparate
Impact. In a Disparate Impact case it is necessary to prove that a
uniformly applied criteria has the effect of screening out a class of
individuals. It is not necessary to prove intent in a disparate impact case.
The classic
example is a height requirement that would have the tendency to screen
out females. The Government also advances theories of systemic discrimination
using statistical inferences to prove class disparity.
Which type of theory applied becomes critical when
calculating remedy.
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AMERICANS WITH DISABILITIES ACT (ADA)
Can you perform all of the job functions? How would you
perform the job functions? Can you meet attendance
requirements? Do you currently use illegal drugs? What are
your professional credentials?
These questions are permissible to ask a potential new
employee according to the EEOC. There are those questions
seemingly innocuous that are impermissible however.
What is a disability in light of recent U.S. Supreme Court
decisions? When does the ADA apply and who does it apply
to? Companies need to be cognizant of recent developments
in ADA law.
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OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP)
The OFCCP enforces Executive Order 11246, as amended. This Executive Order signed by
Lyndon Baines Johnson in 1965, requires supply and service and construction contractors
and subcontractors to take Affirmative Action in employment. While the OFCCP enforces
Affirmative Action compliance, the agency focuses to a greater extent on CLASS ACTION
DISCRIMINATION - THIS IS WHAT COSTS A COMPANY MONEY!
With recent development in OFCCP procedures, there are
now several different audits the OFCCP may initiate including compliance
checks and EEO surveys.
The OFCCP audit is initiated by a scheduling letter sent to the
contractor informing them that they have 30 days to submit their
Affirmative Action Plan and Personnel Activity. The Audit is then
assigned to a Compliance Officer who initiates the "Desk Audit" stage of
the Compliance Review. The Compliance Officer may eventually initiate
an onsite investigation.
Issues that arise from the Affirmative Action Plan are typically
technical questions about the formations of Job Groups, methods of
determining utilization and the demonstration of good faith efforts.
Issues that arise from the Personnel Activity are usually indicators of
potential discrimination.
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SEXUAL HARASSMENT PREVENTION
Employers should strive to prevent any and all sexual harassment in the workplace.
By being proactive and taking affirmative steps towards prevention, employers limit
their risk of liability if the conduct does occur.
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