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Sex Discrimination and Sexual Harassment in the Work Place. - Product Image

Sex Discrimination and Sexual Harassment in the Work Place.

  • ID: 2131585
  • October 2014
  • Region: United States
  • 1312 Pages
  • ALM Media, LLC

Sex Discrimination and Sexual Harassment in the Work Place provides complete coverage of legal and practical problems from both employers' and employees' points of view. It is a must-have source that attorneys and human resources professionals can turn to for up-to-date information.

You'll learn how employers can protect themselves against the numerous pitfalls that could result in litigation, what human resources professionals can do to develop policies and procedures to reduce the risk of liability and how attorneys for both sides can develop a winning trial strategy.

Sex Discrimination and Sexual Harassment in the Work Place covers such important topics as: the Family and Medical Leave Act; the development of sex discrimination and sexual harassment statutes; how federal and state legislation affects attorneys and clients; “glass ceiling” and “glass wall” issues in professional and academic settings; pregnancy discrimination, childcare leave and benefits, including the certification requirements an employer may impose; precondition for, duration of, and reinstatement after a leave; the scope and application of the Equal Pay Act; the Federal Arbitration Act; attorneys' fees and attorney-client privilege; the scope of the retaliation prohibition; the effect of DOMA and state statutes permitting same-sex marriage; the Rape Shield statute; the Title VII ministerial exemption; tenure statute of limitations problems; “continuing violation” standards; and EEOC complaint verification.

Sex Discrimination and Sexual Harassment in the Work Place features analysis of current concerns, accompanied by tips, tricks and traps for plaintiffs' and defendants' counsel and human resource managers.

CHAPTER 1 Introduction and General Overview
- 1.01 Historical Overview
- 1.02 Sources and Unusual Characteristics of Sex Discrimination Law
- 1.03 Sexual Harassment
- 1.04 Limits on Upward Mobility
- 1.05 Pregnancy and Related Matters
- 1.06 The “Sex Plus” Concept
- 1.07 Height, Weight, Agility and Appearance
- 1.08 Equality of Pay
- 1.09 Sex Discrimination in Benefits
- 1.10 Unions and Sex Discrimination
- 1.11 Seniority Systems
- 1.12 Federal and Congressional Employees
- 1.13 Federal EEOC Administrative Procedures
- 1.14 Damages
- 1.15 Attorney's Fees
- 1.16 Human Resources Considerations
- 1.17 Ethical and Practice Concerns

CHAPTER 2 Overview of Statutes Affecting Sex Based Discrimination
- 2.01 Introduction to General Statutory Context
- 2.02 Federal Statutes
[1] Civil Rights Act of 1964, Title VII
[2] Civil Rights Act of 1871
[3] Civil Rights Attorney's Fees Awards Act of 1976
[4] Civil Rights Act of 1991
[5] National Labor Relations Act
[6] Family and Medical Leave Act of 1993
[7] Equal Pay Act (Amendment to Fair Labor Standards Act)
[8] Bennett Amendment Incorporating EPA Defenses into Title VII
[9] Title VII and the Immigration Reform and Control Act (IRCA)
[10] Treaties
[11] Airline Deregulation Act and State F.E.P. Laws
[12] Federal Arbitration Act
[13] The Defense of Marriage Act (DOMA) and Domestic Partners
[14] Gender Motivated Violence Act (GMVA)
[15] Congressional Accountability Act of 1995 (CAA)
[16] Executive Branch Accountability Act (EBAA)
[17] Title IX of the Educational Amendments of 1972
[18] Statute Setting Limitations Period
[19] Federal Reserve and National Bank Acts—State Law Preemption
- 2.03 State and District of Columbia Statutes
[1] Overview of State Statutes
[2] Patterns of State Sex Discrimination Statutes
[3] State and District of Columbia Comprehensive Fair Employment Practices Statutes
- 2.04 Tips, Tricks and Traps
- 2.05 Summary

CHAPTER 3 Sexual Harassment and the Law
- 3.01 Introduction and Overview of Sexual Harassment
- 3.02 Equal Employment Opportunity Commission (EEOC) Guidelines on Sexual Harassment and Related Matters
[1] Guidelines on Sexual Harassment
[2] Guidelines on Employer Liability
[3] Guidelines on Harassment Directed at Caregivers
- 3.03 Meritor Savings Bank, FSB v. Vinson
[1] Issues Presented
[2] Is “Hostile Environment” Sexual Harassment Actionable Under Title VII?
[3] Voluntary v. Unwelcome Behavior
[4] Employer Liability
- 3.04 Meritor Savings Bank, FSB v. Vinson: The Relationship Between “Quid Pro Quo” and “Hostile Work Environment” Harassment
[1] “Quid Pro Quo” Sexual Harassment
[2] “Hostile Work Environment” Sexual Harassment
[3] Constructive Discharge and “Quid Pro Quo“ Harassment
[4] Other “Actionable” Conduct
[5] EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors
[6] Boorish Behavior and Sexual Harassment
- 3.05 Burden of Proof and Standard of Proof in Sex Discrimination and Sexual Harassment Cases
[1] The Burden of Proof
[2] Comparative Evidence in Discrimination Cases
[3] The Reasonable Victim Standard
[4] The Objective/Subjective Standard
[5] Standards of Proof and Constructive Discharge
[6] Sex Discrimination in Hiring
[7] Denial of Promotion or Discriminatory Transfer
- 3.06 Retaliation
[1] Defined
[2] Standard of Proof
[3] Co-Worker Retaliation Claims
[4] The Elements of a Prima Facie Retaliation Claim
[5] Priority Processing and Temporary Protection
- 3.07 Damages
- 3.08 Interim Relief
- 3.08A Sufficiency of Pleadings
- 3.09 Strategies of Prevention, Avoidance and Defense
[1] First Prong of Affirmative Defense: Employer's Duty to Exercise Reasonable Care
[2] Second Prong of Affirmative Defense: Employee's Duty to Exercise Reasonable Care
- 3.10 Tips, Tricks and Traps

CHAPTER 4 The Glass Ceiling Problem
- 4.01 Introduction
- 4.02 Office of Federal Contract Compliance Guidelines
- 4.03 Congressional Action Regarding the Glass Ceiling
- 4.04 Judicial Decisions Involving Glass Ceiling Issues
[1] Partnerships
[2] Academic Tenure and Refusal to Hire in Higher Education
[3] Pretext and Mixed Motive in Glass Ceiling Cases
- 4.05 “Glass Walls” as a Comparable Worth Analog
- 4.06 Term Appointments and Sex Discrimination
- 4.07 Tips, Tricks, and Traps
- 4.08 Summary

CHAPTER 5 Pregnancy; Childbirth; Childrearing and Parental Leave
- 5.01 Introduction
- 5.02 Pregnancy Discrimination Act (PDA) of 1978
[1] Employment Policies Relating to Pregnancy and Childbirth
[2] Equal Treatment vs. Equal Opportunity
- 5.03 Employee Pregnancy and Childbirth Leave and Benefits
[1] Pregnancy and Related Disability Leave
[2] Employee Benefits Related to Pregnancy and Childbirth
- 5.04 Childrearing and Parental Leave
[1] EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities
[2] Parental Leave and Reinstatement
[3] Family and Medical Leave Act
- 5.05 Pregnancy and Hazardous Conditions
- 5.06 State Law Considerations
- 5.07 Tips, Tricks and Traps

CHAPTER 6 Sex Plus
- 6.01 Introduction
- 6.02 Sex Plus Marriage and Fraternization Policies
[1] “No-Marriage Rules”
[2] Anti-Fraternization Policies
[3] Favoritism and Sexual Harassment
- 6.03 Sex Plus Motherhood
[1] Motherhood
[2] Unwed Mothers
[3] Unlawful Gender Role Stereotyping of Working Women
[4] Effects of Stereotyping on Subjective Assessments of Work Performance
[5] Discrimination Against Male Caregivers
- 6.04 Sex Plus Grooming and Appearance Policies
[1] Grooming Requirements
[2] Height and Weight Standards
[3] Dress and Clothing Requirements
[4] Sexual Preference and Orientation
[5] Sexual Stereotyping and Gender Dysphoria
- 6.05 Sex Plus Race
- 6.06 Pre-Employment Interviews
- 6.07 Tips, Tricks and Traps

CHAPTER 7 Height, Weight, Strength, Physical Agility, and Appearance
- 7.01 Introduction
- 7.02 Height and Weight Requirements
- 7.03 Strength and Physical Agility Requirements
- 7.04 Appearance
- 7.05 State Law Considerations
- 7.06 Tips, Tricks and Traps
- 7.07 Summary and Conclusions

CHAPTER 8 Equal Pay
- 8.01 Introduction
[1] Background
[2] The Equal Pay Act
- 8.02 Coverage Under the Equal Pay Act
- 8.03 Equal Skill, Effort and Responsibility; Similar Working Conditions
[1] Equal Skill, Effort and Responsibility
[2] Similar Working Conditions
- 8.04 Affirmative Defenses to Equal Pay Act Claims
[1] Seniority System Defense
[2] Merit System Defense
[3] Quantity or Quality (Piece Work or Incentive System) Defense
[4] Factor Other Than Sex Defense
- 8.05 Relationship of Equal Pay Act to Title VII
[1] The Bennett Amendment to Title VII
[2] Decisions of the Courts Concerning the Equal Pay Act and Title VII
- 8.06 Comparable Worth
- 8.07 State Law Considerations
[1] California
[2] Georgia
[3] Illinois
[4] Iowa
[5] Maine
[6] Michigan
[7] Minnesota
[8] Montana
[9] New Jersey
[10] New York
[11] Ohio
[12] Pennsylvania
[13] Washington
- 8.08 The Equal Pay Act and Issues of Federalism
[1] Eleventh Amendment
[2] Removal of EPA Actions
- 8.09 Tips, Tricks and Traps
- 8.10 Summary

CHAPTER 9 Sex Discrimination and “Fringe” Benefits
- 9.01 Introduction
- 9.02 Applicable Federal Statutes and EEOC Guidelines
[1] Title VII
[2] Equal Pay Act
[3] Employee Retirement Income Security Act (ERISA)
[4] National Labor Relations Act (NLRA)
[5] The Civil Rights Act of 1871 (Section 1983)
[6] McCarran-Ferguson Act
[7] EEOC Guidelines
[8] The Defense of Marriage Act
- 9.03 Retirement Plans and Unisex Tables
- 9.04 Health Care and Head of Household Policies
- 9.05 Preemption and State Law Considerations
[1] Issues Arising from Sex Discrimination in Benefits and ERISA
[2] Relevant Statutory Provisions
[3] Partial Preemption of State Fair Employment Practices Laws
[4] Preemption of Disability, Workers' and Unemployment Compensation
[5] No Preemption of Federal Nondiscrimination Statutes
[6] ERISA Preemption of Certain Domestic Partner Benefits
- 9.06 Domestic Partner Benefits
- 9.07 Tips, Tricks and Traps
- 9.08 Summary

CHAPTER 10 Unions and Sexual Discrimination
- 10.01 Introduction
- 10.02 Applicable Statutes and Executive Orders
- 10.03 General Content of the Railway Labor and National Labor Relations Acts
- 10.04 National Labor Acts and Sex Discrimination
[1] Sex Discrimination Under the RLA and NLRA, 1935 to 1964
[2] Sex Discrimination Under the RLA and NLRA after 1964
- 10.05 Sources and Importance of the Duty of Fair Representation
[1] Origins of the Duty of Fair Representation
[2] Employer Liability for Breaches of the Duty of Fair Representation
[3] Sex Discrimination Cases Involving Breach of the Duty
- 10.06 Preemption and Waiver of Sex Discrimination Cases
[1] Private Sector
[2] Federal Employees
- 10.07 Relationship of Title VII to NLRA and RLA
- 10.08 Limitations on Minority Representation
- 10.09 Consent Decrees Modifying Labor Agreements
- 10.10 Liability of Nonsignatory International Unions
- 10.11 Discrimination in Hiring and Hiring Halls
- 10.12 Duty to Provide Information to Unions
- 10.13 Unions as Employers
- 10.14 Labor Contracts are No Defense to Civil Rights Discrimination Charges
- 10.15 Discrimination and Protected Concerted Activities Under NLRA
- 10.16 Unions Under the Equal Pay Act
- 10.17 Tips, Tricks and Traps—The Practical Guide
- 10.18 Summation

CHAPTER 11 Separate Lines of Progression and Seniority Systems
- 11.01 Introduction
[1] Seniority Defined
[2] EEOC Guidelines: Gender Discrimination; Separate Lines of Progression and Seniority Systems
[3] The Civil Rights Act of 1964: Seniority or Merit Systems
- 11.02 Title VII, Section 703(h) Immunity
[1] Bona Fide Seniority Systems
[2] Seniority Systems Lacking Immunity
[3] EEOC Investigations
- 11.03 Remedies for Violation of Section 703(h)
[1] “Rightful Place” Theory
[2] Other Remedies Available
[3] Affirmative Action Plans
[4] Union Liability
- 11.04 Timeliness and The Civil Rights Act of 1991 (CRA 1991)
- 11.05 Tips, Tricks and Traps

CHAPTER 12 Federal, Congressional, and Previously Exempt Employees
- 12.01 Overview
[1] Introduction
[2] The Government Employee Rights Act of 1991
[3] Presidential Appointees
[4] Coverage of Previously Exempt State Employees
[5] The Congressional Accountability Act of 1995
[6] The Presidential and Executive Office Accountability Act
- 12.02 Administrative Remedies
[1] Equal Employment Opportunity Commission
[2] Merit System Protection Board
[3] Office of Senate Fair Employment Practices
[4] Employees Covered by Collective Bargaining Agreements
- 12.03 Litigation
[1] Timing and Exhaustion
[2] Remedies
[3] Payments by the President or a Member of the Senate
- 12.04 Bona Fide Private Membership Clubs
- 12.05 Tips, Tricks and Traps

CHAPTER 13 Federal EEOC Administrative Procedures
- 13.01 The Purpose and Powers of the Equal Employment Opportunity Commission
[1] Purpose of the EEOC
[2] Powers of the EEOC
[3] The EEOC's Charge Processing Procedures
- 13.02 Charging Parties and Respondents
[1] Charging Parties
[2] Respondents
- 13.03 Procedures for the Preparation and Filing of an EEO Charge
[1] The Contents of an EEO Charge
[2] Filing an EEO Charge and Time Limitations
[3] Service of an EEO Charge
[4] Processing of Systemic Cases
- 13.04 EEOC Investigation, Authority and Procedures
[1] Access to, and Production of, Evidence
[2] Witnesses: Subpoena Power
- 13.05 EEOC Determinations
[1] Reasonable Cause Determinations
[2] No Cause Determinations
[3] Dismissal
[4] Negotiated Settlements
- 13.06 Confidentiality
- 13.07 Conciliation Process
- 13.08 Withdrawals
- 13.09 Notice of “Right-to-Sue”
- 13.10 Tips, Tricks and Traps

CHAPTER 14 Damages
- 14.01 Overview
[1] General Considerations
[2] Federal Statutory Remedies Available
[3] General View of Federal Guidelines on Damages
[4] General View of Federal Guidelines on Evidence in Light of the Civil Rights Act of 1991
- 14.02 Compensatory Damages
[1] Introduction
[2] Past Pecuniary Loss
[3] Future Pecuniary Loss
[4] Nonpecuniary Damages
[5] Forensic Examinations, Discovery and Evidence
[6] Jury Trials
[7] Personal Liability
- 14.03 Punitive Damages
[1] The Civil Rights Act of 1991 [CRA] and Punitive Damages
[2] EEOC Standard Required for Determining Punitive Damages
[3] Financial Wealth of Defendants
- 14.04 Mitigation of Damages
[1] Mitigation of Damages and Burden of Proof
[2] Model Jury Instruction on Mitigation of Damages
- 14.05 After-Acquired Evidence Doctrine
- 14.06 Tax Implications
- 14.07 Prejudgment Interest
- 14.08 Settlement Considerations
[1] Guideline Suggestions
[2] FRCP Rule 68 Offering
[3] Tax Considerations
[4] Attorney's Fees
- 14.09 State Law Remedies

CHAPTER 15 Attorney's Fees in Sex Discrimination Cases
- 15.01 Introduction
- 15.02 Why Attorney's Fees and Certain Costs May Be Shifted
- 15.03 Who May Recover Attorney's Fees and Costs
[1] Plaintiff's Rights to Recover Fees
[2] Defendant's Rights to Recover Fees
[3] Fees and Intervenors
[4] Plaintiffs in Arbitration
- 15.04 Expert Witness Fees
- 15.05 How Statutory Fees are Calculated
[1] The Lodestar Concept
[2] Relationship of Statutory and Private Fee Arrangements
[3] Reasonable Hours, Inclusions and Exclusions
[4] Reasonable Rates
[5] Adjustments to the Lodestar
[6] Post-Judgment Interest on Attorney's Fees
[7] Impact of Taxation on Attorney's Fees and Settlements
- 15.06 Timing and Method for Fee Petitions
- 15.07 Recovery of Fees from Courts, Boards and Agencies
- 15.08 Rule 68 Offers and Settlement Agreements
[1] Rule 68 Offers of Judgment
[2] Settlement Agreements That Waive Attorney's Fees
- 15.09 State Laws on Fee Shifting for Agency Level Work
- 15.10 Loss of Fees
- 15.11 Enhancements to Lodestar Attorney's Fees
- 15.12 Tips, Tricks and Traps
- 15.13 Summation

CHAPTER 16 Human Resources Considerations
- 16.01 Introduction
- 16.02 Policy Manuals and Complaint Procedures
- 16.03 Investigations of Discrimination Allegations
- 16.04 Potential for Conflict of Interest Between Employer and Accused
- 16.05 Labor Unions, Collective Bargaining and Discrimination
- 16.06 Employee Selection and Testing
- 16.07 Multilocation Human Resources Administration
- 16.08 Model Nondiscrimination and Sexual Harassment Policies
- 16.09 Human Resources Concerns in Schools, Colleges and Universities
- 16.10 Public Nature of Litigation
- 16.11 Non-Fraternization Policies
- 16.12 Class Action Litigation or Arbitration
- 16.13 Temporary or Term Employees

CHAPTER 17 Ethical and Practice Concerns for Sex Discrimination Law
- 17.01 Overview
- 17.02 Mediation and the Unauthorized Practice of Law
[1] Facilitative vs. Evaluative Mediation
[2] Early Prohibitions on Non-Attorneys
[3] Defining the Practice of Law
[4] Determining the Unauthorized Practice of Law
[5] Avoiding the Unauthorized Practice of Law
[6] Formal Rules Guidelines for Mediators
[7] The Virginia Guidelines
[8] Written Mediation Agreements
[9] Conclusions
- 17.03 Ethics for Attorney-Neutrals in Discrimination Cases
[1] Proposed Model Rule
[2] Other Concerns
- 17.04 Ethics and Electronic Discovery

Index

Henry S. Kramer



Henry S. Kramer is an Attorney-Consultant at ConsultKramer of Ithaca, New York. ConsultKramers training, consulting, and legal client list includes a wide range of Fortune 1000 organizations. Mr. Kramer is also a Visiting Fellow at Cornell Universitys New York State School of Industrial and Labor Relations, where he has taught collective bargaining and labor law. He has been involved in the practice of human resources and labor law throughout his managerial career, including serving as Cornell Universitys Director of Employee Relations, and as Corporate Manager of Labor Relations and Legal Services and as Human Resources In-house Counsel for BASF Wyandotte. Mr. Kramer has frequently served as Chief Spokesman in labor contract negotiations.

Lawrence Solotoff



Lawrence Solotoff is a Fellow of the College of Labor and Employment Lawyers. He represents employers and employees and acts as lead trial counsel in all aspects of labor and employment law litigation. He has also been an Adjunct Professor of Sex Discrimination at Touro Law School and of Labor and Employment Law at the Graduate School of Industrial and Labor Relations (ILR) at the New York Institute of Technology. Mr. Solotoff was an active member and CLE Regional Co-Chair of the American Bar Association Labor and Employment Law Section, Committee on Equal Employment Opportunity, Mr. Solotoff was an American Bar Association EEO Liaison Officer in the New York region. He was also a member of the National Employment Lawyer Association and the New York State Bar Association Labor Law Committee, and has been Chairman of the Labor and Employment Committee of the Nassau County Bar Association and is Chair of the NCBA, Recognition Committee. Mr. Solotoff has served on the New York State Governor's Task Force on Sexual Harassment, and has lectured and spoken at professional conferences locally, regionally and nationally.

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