SOME USEFUL EQUAL EMPLOYMENT OPPORTUNITY TERMS AND DEFINITIONS
Complainant/Charging Party - The "Complainant" or "Charging Party" is the person or employee who brings the charge of discrimination. He or she is the person who raises the issue of discrimination against the "Respondent" (employer).
Invidious (Illegal) Discrimination - This refers to employment actions taken as a result of a person belonging to a protected class/group as defined by Title VII of the Civil Rights Act of 1964 and Fort Wayne General Ordinance G-21-78.
Protected Class/Group - A "protected Class/group" includes all persons of every race, ancestry, national origin, color, sex, sexual orientation, religion, disability, familial status, age 40 or over, or other enumerated basis of discrimination listed under Title VII of the U.S. Civil Rights Act of 1964 or Ordinance G-21-78
Title VII Related Issue - An issue which pertains to a "possible" violation of Title VII of the U.S. Civil Rights Act of 1964. A "Title VII issue" is an issue which alleges that a particular "act of harm" occurred because of an employee’s race, ancestry, national origin, color, sex, sexual orientation, religion, disability (including AIDS and HIV diagnosis), age 40 or over, medical condition (rehabilitated cancer and genetic characteristics), refusal of family care leave, refusal of leave for an employee's serious health condition, denial of pregnancy leave, or retaliation for engaging in protected activity.
Disparate Impact/Adverse Impact - "Disparate impact" or "adverse impact" results from neutral employment policies and practices that are applied evenly to all employees, but in operation fall more harshly on one group than another. For example, consider the situation in which an employer denies short term medical leave to ALL employees regardless of what the condition is. It is possible for all male employees to perform their job duties without the need for a short term medical leave. It is also possible for all female employees to perform their duties without the need for a short term medical leave. But it is also easily conceivable that some female employees may require short term medical leave for pregnancy related matters or for child birth. This policy, while neutral on its face, may have an adverse effect on female employees. The employer would thus have to show that the policy is job related and consistent with business necessity, and the female employees would have to counter that the employer could have achieved its “business necessity” goal by using less adverse measures.
Disparate Treatment - "Disparate treatment" exists when an employer intentionally treats some individuals differently or less favorably than others AND the different treatment occurs because of the individual’s "protected status" (e.g. race, sex, disability, etc.). Disparate treatment alleges intentional discrimination, i.e. that the decision-maker’s actions were motivated or influenced by bias because of race, sex, disability, etc.
EEOC - The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency which enforces Title VII of the U.S. Civil Rights Act, which prohibits discrimination because of race, color, religion, sex, or national origin, as well as other related statutes, such as the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination, the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are age 40 or older; and Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. Further information about the EEOC and its complaint process may be found on the Internet at www.eeoc.gov.
Evidence - "Evidence" is something that demonstrates a fact. In most discrimination complaints, evidence takes the form of either (1) statements of persons about the fact that are based on their knowledge about it, or (2) documents that in some way demonstrate the fact.
Respondent - The "Respondent" is the employer who is accused of discrimination by the "Complainant" or "charging party" (employee).
Sexual Harassment - The EEOC defines "sexual harassment" as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes harassment of a person of the same sex as the harasser. The following is a partial list: Unwanted sexual advances, offering employment benefits in exchange for sexual favors, making or threatening reprisals after a negative response to sexual advances; visual conduct, e.g., leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons, or posters; verbal conduct, e.g., making or using derogatory comments, epithets, slurs and jokes; verbal sexual advances or propositions; verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations; and, physical conduct, e.g. touching, assault, impeding or blocking movements.
Statute of Limitations - The "statute of limitations" for filing a complaint of discrimination with the EEOC under Title VII of the Civil Rights Act of 1964 is 180 days of the alleged discriminatory act, and 180 days under the City ordinance G-21-78. The time is expanded to 300 days when the act occurs in a jurisdiction that has a work sharing agreement with the EEOC. Metro has such an agreement. When a complaint is not filed in a timely manner under state or federal law, Metro or the EEOC will not initiate an investigation of the complaint.
Act of Harm - The "act of harm" is the adverse action, which the Complainant alleges occurred. For example, termination, failure to hire, denial of promotion, denial of transfer, denial of disability or pregnancy leave, work environment sexual or racial harassment are typical acts of harm which are alleged in employment discrimination cases.
Affirmative Defense - An "affirmative defense" is a legally permissible reason for basing an employment decision on an individual’s protected basis. For example, it permits an employer to admit that he did not promote an individual because of his/her disability as long as the employer can prove that its conduct is excused by a special provision in the law.
Bona Fide Occupational Qualification (BFOQ) - The "BFOQ Defense" is used to justify a practice that, on its face, excludes an entire group of persons on a basis protected by the law (e.g., all women). The BFOQ defense is available where the employer can "prove that the [discriminatory] practice is justified because all or substantially all of the excluded persons are unable to safely and efficiently perform the job in question and because the essence of the business operations would otherwise be undermined." Remember that stereotyped impressions of male and female roles do not qualify gender as a BFOQ. Stereotyped customer preferences do not justify a sexually discriminatory practice.
Comparative Data/Evidence - Disparate treatment claims are proven by the use of "comparative data." For example, in a sex discrimination claim, an analysis of the decision-maker’s treatment of male employees compared to female employees is made to draw an inference of discrimination. An inference of discrimination exists where employees under the same decision-maker are supposed to have the same job duties, yet only female employees are assigned the additional duties of answering telephones and filing.
Causal Connection Test - In most discrimination cases, the key question is whether the employer (or Respondent) was motivated to take some "adverse action" against the employee (or Complainant) because of the Complainant’s "protected status" (race, sex, etc.). The "causal connection test" asks whether there is a "causal connection" between the Complainant’s "protected status" and the "adverse action" inflicted by the Respondent. To this question, the Complainant answers "Yes" and the Respondent answers "No."
Essential Job Functions - "Essential job functions" are the fundamental job duties of the employment position. "Essential job functions" does not include the marginal functions of a position.
Legitimate Non-Discriminatory Reason - A "legitimate non-discriminatory reason" is that reason which is supported by credible witness testimony and documentation that is put forth by the employer for the personnel decision being challenged.
Preponderance of the Evidence - The "preponderance of the evidence" is that degree of evidence required to establish the existence or nonexistence of a fact in dispute. In discrimination cases, the law requires that the Complainant prove by a "preponderance of the evidence" or by the greater weight of the overall evidence that the discrimination occurred, i.e. to prove that there is a "causal connection" between the "act of harm" and the "protected basis."
Reasonable Accommodation - Under the theory of "reasonable accommodation," a claim is asserted that the employer failed in its "affirmative duty" to assist in preserving an individual’s employment status when an employee’s religion, disability, or pregnancy requires an employer’s assistance. For example, an Office Assistant with a neck and back problem requires a telephone headset in order to alleviate the aggravation of his or her neck and back condition. The employer is required to reasonably accommodate the Office Assistant by providing the telephone headset. The only defense for failing to provide the device is that it would cause an "undue hardship" for the employer.
Retaliation - The theory of "retaliation" is used when an employee asserts that he or she is experiencing reprisal for complaining about discrimination, for opposing practices prohibited by Title VII of the U.S. Civil Rights Act or the City Ordinance or for participating in a EEOC or Metro investigation. Retaliation complaints may also assert that an individual is being treated poorly for refusing unwanted sexual advances, or for refusing to participate in discriminatory conduct. Retaliation investigations compare how an individual was treated before he/she complained of discrimination or engaged in protected activity. The timing of the retaliatory act is a crucial piece of evidence. A "causal connection" must be demonstrated between the "act of harm" and the "charging party’s" earlier complaint of discrimination. Retaliation for reasons other than for filing or opposing practices prohibited by state or federal anti-discrimination statutes is not a "protected activity."
Similarly Situated - The analysis of whether discrimination occurred must necessarily include an examination of how "similarly situated" persons were treated under the same decision-makers. "Similarly situated" persons are those persons or employees under the same decision-maker in the same or similar job classification as the Complainant. For example, if the Complainant alleges he or she was terminated from his job as an Eligibility Worker because of his race (Black), the "Case Analysis" system requires that an evaluation of how other Eligibility Workers, Blacks and non-Blacks, under the same decision-maker(s) were treated.