Deck 3: Major Title Vii Protected Classes

Question 1

What is subgroup norming? When is it lawful and unlawful?

Answer 1

Subgroup norming involves using different interpretations of test scores based on group membership Subgroup norming can be defined as the utilization of different cutoff scores for different minority groups, adding points to minority scores, or altering scores in any way For example, in the early 1980s, the USES used subgroup norming to eliminate adverse impact in job referrals by requiring lower percentile scores on the GATB for referral of minority applicants This and similar practices were prohibited in Sec 106 1 of CRA-91, which makes it unlawful to: "adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment-related tests on the basis of race, color, religion, sex or national origin" However, this clause holds no implications for the practice of adjusting scores for veterans of military service Additionally, subgroup norming remains legal in the event that moderation by group membership can be demonstrated empirically However the necessary evidence to support such a claim rarely occurs in practice

Question 2

What is banding? When is it lawful and unlawful?

Answer 2

Bands are ranges within which test scores are treated as being statistically equal In a race-neutral approach, selections are made randomly from within bands, rather than using a strict rank-ordered process For example, if the band was from 90-100, an applicant with a score of 95 and another with a score of 99 would be considered statistically equal While this form of banding has thus far been universally upheld, race-conscious banding has had limited success in court Specifically, the second form of the practice involves the use of group membership as a decision criterion within bands Although the sole use of group membership has largely been rejected, the use of this criterion in conjunction with other relevant factors has received some legal supportIn 1991, Cascio et al proposed that adverse impact could be reduced with the utilization of sliding bands and minority preference Sliding bands occur when the band slides down after the top scorer in that band is selected In Bridgeport Guardians v City of Bridgeport 1991, the 2ndCircuit court upheld a banding procedure in which nine secondary criteria could be used to break ties One of the criteria was minority status In the 9 Circuit, a proposal was rejected in which rank ordering would be used for the first 100 promotions and minority preference would be used for the additional 15 promotions Courts look down on sliding band procedures that utilize minority preference as the only basis for score adjustment Also, any use of minority preference must survive charges of reverse discrimination To summarize, there are some instances where restricted forms of race conscious banding have been supported by the courts, particularly those featuring consent decrees

Question 3

What is passive recruitment?

Answer 3

Passive recruitment is word-of-mouth recruitment, generally by existing employees, friends, or nepotism, coupled with walk-in hiring practices that may consist of vague, subjective hiring criteria With passive recruitment, there is no advertisement of a position These practices can lead to workplace imbalances and gross statistical disparities between the workforce and relevant labor pool that, in turn, can lead to pattern or practice cases

Question 4

What are the typical characteristics of passive recruitment that may create liability for the employer?

Question 5

What is the strong-basis-in-evidence standard, and what role does it play in adverse impact cases?

Question 6

Under what circumstances does the undue hardship statutory defense apply in discrimination based on religion?

Question 7

Three significant court rulings delineated three principles that apply to reasonable accommodation by the employer in religious cases. List the three principles.

Question 8

List the four general rules that apply to Title VII exemptions by which religious institutions may discriminate.

Question 9

What are the implications of Title VII of noncitizen status?

Question 10

What is meant by surrogate criteria?

Question 11

What are the two types of sexual harassment, and what are the employer liabilities for them?

Question 12

What is an affirmative defense? When is it available to employers?

Question 13

What is the reckless disregard standard for co-worker and third-party harassment?

Question 14

What role does the "welcomeness" or "voluntariness" of a behavior play in the determination of sexual harassment?

Question 15

What is constructive discharge? What type of liability does it create for an employer?

Question 16

What is sex-based harassment?

Question 17

What is sex-plus discrimination? Give an example.

Question 18

What, in your opinion, are legal versus illegal methods of reducing or minimizing adverse impact?

Question 19

What are the conditions in which passive recruitment may make employers vulnerable to Title VII charges?

Question 20

What are the similarities and differences in hostile racial and hostile sexual harassment?

Question 21

What are some of the more subtle causes of adverse impact based on race?

Question 22

What is the Title VII definition of sincerely held religious belief?

Question 23

What are the obligations of the employer and applicant or employee in developing reasonable accommodations?

Question 24

What is it that religious affiliated institutions are permitted to do and not do when considering religion as a basis for selection decision?

Question 25

What are the prescriptions and proscriptions for exclusion based on citizenship requirements?

Question 26

What are the conditions in which exclusion based on communications and/or accents can be justified?

Question 27

What jobs and what situations do you think an employer could justify speak-English-only rules based on safety reasons?

Question 28

Why do you think that in the 1970s, district courts had a difficult time recognizing sexual harassment when there was prior case law recognizing racial harassment?

Question 29

What distinguishes the "reasonable person" viewpoint from the "reasonable victim" viewpoint?

Question 30

What are the major difficulties in ascertaining whether same-sex harassment is "because of sex?"

Question 31

What is the affirmative defense to hostile harassment by supervisors?

Question 32

What is constructive discharge, and how is it judged as compared to hostile harassment cases in which employers have an affirmative defense?

Question 33

What were the ultimate fates for state protective laws, height and weight criteria, and differential application of retirements to men and women?

Question 34

How was the issue of fetal protection ultimately decided in accordance with the BFOQ defense?

Question 35

What is sex-plus discrimination, and what are the conditions under which it applies or does not apply?

Question 36

What employer actions are proscribed and what actions are permitted in accordance with the Pregnancy Discrimination Act of 1978?

Question 37

What was the major recommendation made for using ability tests that are likely to produce adverse impact?

Question 38

What recommendations were made for avoiding passive recruitment?

Question 39

What does the EEOC recommend for preventing and quickly correcting harassment in the workplace?

Question 40

Why is it not a good idea for a front-line supervisor to investigate harassment complaints?

Question 41

Why is it a good idea to generalize a harassment policy to other potential forms of employment discrimination?