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PSYCH 339 (27)

Legal Lecture PSYCH 339

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Richard Ennis

DISCRIMINATION AND THE LAW Good Discrimination *Categorization *THE function of recruitment & selection *Categorize (group) applicants on basis of KSAO’s or proper things *“Have’s” and “Have not’s” *E.g. university education, experience, vision, dependability, coping, etc *Bona Fide Occupational Requirements (BFOR’s) – secret to a good discrimination *Criteria for job performance *Basis for inclusion and exclusion of categories BFOR’s *Essential KSAO’s become BFOR’s *Must demonstrate: *That BFOR is reasonably necessary to the job & the essence of your business *A factual basis for believing that substantially ALL people in excluded groups are incapable of performing the job efficiently or safely *Exclusions are imposed in good faith and without foreseeable discriminatory intent or adverse effect Bad Discrimination *Stereotypes *A necessary but not sufficient condition for discrimination *Prejudice *A sufficient but not necessary condition for discrimination Direct Discrimination: With Prejudice *Discriminating on categorization that is irrelevant to job *E.g. no women, no Catholics, no immigrants *Intent is foreseeable Indirect Discrimination: Without Prejudice *Without intent *But still discriminating on categorization that is irrelevant to job *“Adverse Effect” discrimination Adverse Effect O’Malley v. Simpson-Sears, 1985 “ employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work group.... An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.” Adverse Effect O’Malley v. Simpson-Sears, 1985 The complainant first must establish a prima facie case of discrimination. The onus then shifts to the employer to show that they have taken such reasonable steps to accommodate the employee as are open to them without undue hardship. Here, the employer did not discharge the onus of showing that they had taken reasonable steps to accommodate the complainant. Supreme Court Justice McIntyre (O’Malley v. Simpson-Sears, 1985)
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