Federal Labor Law Lecture by Brian Farrington

Introduction

• Brian Farrington, head of the employment law section at Kohl's in Thompson
• Topic: Federal labor law, specifically discrimination

Understanding Discrimination

• Definition: Adverse employment action based on membership in a protected group by Statute
• Example: Disliking someone's clothing isn't illegal but firing them for being part of a protected group is

Protected Groups

• Title VII of the Civil Rights Act of 1964 prohibits discrimination based on:
  • Race
  • Color
  • Religion
  • Sex
  • National Origin

Historical Context

• Passage of the Civil Rights Act:
  • Longest filibuster in Senate history
  • Public accommodations part of the Civil Rights Movement
  • Title VII continues to be a key employment law

Amendments and Developments

• Pregnancy Discrimination Act (1978)
  • Added discrimination protections for pregnancy, childbirth, or related medical conditions
• Bona Fide Occupational Qualification (BFOQ)
  • Narrow interpretation, examples include gender-specific jobs like fitting bras or specific dangerous jobs like Johnson Controls (lead exposure)

Sexual Harassment

• Types of Sexual Harassment:
  • Quid pro quo: Job favors for sexual favors, strictly company liability
  • Hostile or offensive environment: Unwelcomed verbal/physical conduct of a sexual nature, linked to protected group membership
• Hostile Environment:
  • Must be Objectively and Subjectively offensive
  • Serious or pervasive conduct

Employer Responsibilities & Liabilities

• Must protect against third-party harassment
• Liability for Harassment: Strict for quid pro quo, selective for hostile environment based on if the company knew about it

Recent Developments in Sexual Harassment Law

• Employees can't be forced into arbitration for sexual harassment complaints
• Non-Disclosure Agreements (NDAs): Settlements involving sexual harassment may lose tax deductibility if bound by confidentiality clauses
• Texas Law: Supervisors can be personally liable, no 15 employee minimum for sexual harassment claims

Other Forms of Discrimination

• Same-Sex Harassment: Recognized by the Supreme Court (Oncale v. Sundowner)
• LGBT Protections: Bostock v. Clayton County expanded Title VII to protect against discrimination based on sexual orientation and gender identity
• Religious Discrimination: Must accommodate unless causes more than minimal hardship (TWA v. Hardison)

Age Discrimination

• Protected group: 40 and up
• No mandatory retirement: Except safety roles like airline pilots
• Claims: Often involve replacement by a significantly younger person

Americans with Disabilities Act (ADA)

• General Rule: No discrimination against qualified individuals with a disability
• Must provide reasonable accommodation unless it causes undue hardship
• Qualifications: Present, past, or perceived disabilities

Practical Applications

• Hiring: Avoid unnecessary personal questions. Focus on job-related qualifications and abilities
• Terminations: Document thoroughly, act consistently, and avoid comments that can lead to claims

Responding to Discrimination Charges

• Process: Charge filed with EEOC, investigation via submissions, potential mediations, and position statements
• Evidence and Defense: Burden shifts from employee to the employer and back, depending on the evidence and reasonableness of actions taken

Conclusion

• Summary of key points
• Emphasis on the importance of understanding discrimination laws and thorough documentation in HR practices