Question 1

What is banding? When is it lawful and unlawful?

Accepted Answer

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 2

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

Accepted Answer

Based on three court rulings, it was established that:The employee must identify policy conflicting with sincere religious belief and request reasonable accommodationThe employees and the employer must flexibly interact in identifying potential accommodationsAny accommodation that overcomes the barrier posed by the sincere belief is reasonableHardships that are more than de minimis are sufficient to satisfy the undue hardship defense

Question 3

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

Accepted Answer

An employer could justify speak-English-only rules if the workers were in a situation that threatened their safety or the safety of others For example, if a law enforcement officer was announcing commands in a dangerous situation, such as a shoot-out or hostage situation Another example would be on a dangerous construction site where a supervisor would need to keep his communication in English if speaking to workers who only spoke the English language

Question 4

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

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Question 5

What recommendations were made for avoiding passive recruitment?

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Question 6

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

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Question 7

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

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Question 8

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

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Question 9

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

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Question 10

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

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Question 11

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

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Question 12

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

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Question 13

What are the implications of Title VII of noncitizen status?

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Question 14

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?

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Question 15

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

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Question 16

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

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Question 17

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

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Question 18

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

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Question 19

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

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Question 20

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

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Exam 3: Major Title Vii Protected Classes