discrimination law
e eBook Collection
643
Part
>> The Employer-Employee Relationship
Consistent with the property theme of
this text, it is important to understand
that employment and labor laws affect
the property interest you have in selling your
labor. This final section discusses the complexity
of those relationships. As you study these chapters,
consider the historical development of the
law, including how it must continually evolve
to address technology developments, changing
social values and economic issues affecting the
workplace. Employment and labor laws reflect
the constant need for balance between the rights
and responsibilities of employers and employees.
Because the United States enjoys a diverse
population, it is important to ensure that workers
are not discriminated against, including in
the hiring, promoting, and firing process. Chapter
20 details federal laws prohibiting workplace
discrimination, specifically discussing the prohibitions
on employment discrimination based on
race, sex, national origin, color, pregnancy, age,
and disabilities. This chapter focuses on what constitutes
illegal discrimination in the workplace,
including employment practices—even those that
may seem well intentioned on their face—that
may be challenged as discriminatory. In addition
to federal protections, this chapter notes that
state laws may offer additional protection against
workplace discrimination. Taken together, these
laws form the framework for fair competition in
a workplace free of unlawful discrimination.
Chapter 21 describes other major employment
laws, including rules regarding minimum
wage and overtime, mass layoffs, family and
medical leave, workplace safety & workers’
compensation, as well as the limits of employee
privacy at work. All of these laws provide important
protections for workers and further define
the employer–employee relationship. The scope
of the employment-at-will doctrine is also presented,
along with ways an employer can protect
itself from an unjustified lawsuit.
The final chapter in the text, Chapter 22,
focuses on labor laws that permit employees to
organize their labor through unions. Although
they have been met with challenges in the twentyfirst
century, unions continue to play an important
role in the U.S. labor market. The development of
labor law in the U.S. illustrates the long history of
seeking to protect workers. This chapter presents
the major labor laws and helps students to identify
unfair labor practices by management and
unions. This chapter also incorporates current
issues important to unions. Many unions maintain
active political agendas on behalf of their
members, including the role of being high-profile
advocates during political elections and on laborrelated
topics such as international trade. Labor
advocates are very vocal about the kinds of provisions
that could be incorporated into trade agreements
to allow U.S. workers to compete on a
level playing field. For example, a number of free
trade agreements discussed in Chapter 12, such as
NAFTA, DR-CAFTA, and trade agreements with
Korea, Colombia, and Panama, faced vocal opposition
from some labor unions. •
FIVE
Learning Objectives
In this chapter you will learn:
20-1. To discuss the general provisions of Title VII, enforcement
procedures, and the differences between disparate treatment and
disparate impact.
20-2. To understand the specific kinds of discrimination prohibited by
Title VII.
20-3. To discuss employment practices that may be challenged.
20-4. To apply other federal statutes protecting against employment
discrimination.
20-5. To realize that state laws may offer additional protection against
workplace discrimination.
Discrimination
in Employment 20
645
L aws prohibiting discrimination exist at
both the federal and state levels. The
opening sections of the chapter focus on
antidiscrimination laws at the federal level. Title
VII of the Civil Rights Act of 1964 (including its
amendments) is the principal such law. It prohibits
certain discrimination based on race, sex, color,
religion, and national origin. Next, employment
practices that may be challenged as discriminatory
are considered. Other antidiscrimination laws
covered are the Civil Rights Act of 1866 (referred
to as Section 1981), the Age Discrimination in
Employment Act, Americans with Disabilities
Act, the Genetic Information Nondiscrimination
Act and the Uniformed Services Employment and
Reemployment Act. The chapter concludes with
a discussion of trends in employment discrimination
litigation and a section on employment discrimination,
corporate governance, and the broad
sense of property.
646 PART 5 The Employer-Employee Relationship
>> The Civil Rights Act of 1964
“That all men are created equal” was one of the “self-evident” truths recognized
by the Founding Fathers in the Declaration of Independence. However,
equality among all our citizens clearly has been an ideal rather than a fact.
The Constitution itself recognizes slavery by saying that slaves should count
as “three fifths of all other Persons” for determining population in House of
Representatives elections. And of course, that all men are created equal says
nothing about women, who did not even get a constitutionally guaranteed
right to vote until 1920.
Nowhere have effects of inequality and discrimination been felt more
acutely than in the area of job opportunity. Historically, common law permitted
employers to hire and fire virtually at will, unless restrained by contract
or statute. Under this system, white males came to dominate the job market in
their ability to gain employment and their salaries and wages.
Although the Civil Rights Act of 1866 contains a provision that plaintiffs
now widely use in employment discrimination cases, such use is relatively
recent. Passage of labor law in the 1920s and 1930s marks the first significant
federal limitation on the relatively unrestricted right of employers to hire and
fire. Then, in connection with the war effort, President Franklin D. Roosevelt
issued executive orders in 1941 and 1943 requiring a clause prohibiting racial
discrimination in all federal contracts with private contractors. Subsequent
executive orders in the 1950s established committees to investigate complaints
of racial discrimination against such contractors. Affirmative action requirements
on federal contracts followed from executive orders of the 1960s.
The most important statute eliminating discriminatory employment practices,
however, is the federal Civil Rights Act of 1964, as amended by the
Equal Employment Opportunity Act of 1972, the Pregnancy Discrimination
Act of 1978, and the Civil Rights Act of 1991.
1. GENERAL PROVISIONS
The provisions of Title VII of the Civil Rights Act of 1964 apply to employers
with 15 or more employees, labor unions, and certain other employers. The
major purpose of these laws is to eliminate job discrimination based on race,
color, religion, sex, or national origin. Discrimination for any of these reasons
is a violation of the law, except that employers, employment agencies, and
labor unions can discriminate on the basis of religion, sex, or national origin
where these are bona fide occupational qualifications (BFOQs) reasonably
necessary to normal business operations. Title VII also permits discrimination
if it results unintentionally from a seniority or merit system.
The types of employer action in which discrimination is prohibited
include:
• Discharge.
• Refusal to hire.
• Compensation.
• Terms, conditions, or privileges of employment.
Employment agencies are prohibited from either failing to refer or from
actually referring an individual for employment on the basis of race, color,
LO 20-1
Historically, common
law permitted
employers to hire
and fire at will.
At-will employment
still applies today
unless modified by
legislation.
Don’t forget that a
defense to intentional
discrimination is that
such discrimination is
a BFOQ.
According to the
Seventh Circuit Court
of Appeals, denial
of overtime can
constitute an adverse
employment action
sufficient to trigger
Title VII.
CHAPTER 20 Discrimination in Employment 647
religion, sex, or national origin. This prohibition differs from the law binding
employers, where it is unlawful only to fail or refuse to hire on discriminatory
grounds—the affirmative act of hiring for a discriminatory reason is
apparently not illegal. For example, assume that a contractor with a government
contract seeks a qualified African American engineer and requests
an employment agency to refer one. The agency complies with the request.
Unless a white applicant was discriminated against, the employer likely did
not break the law; but the employment agency, by referring on the basis of
color, unquestionably did violate Title VII.
Employers, unions, and employment agencies are prohibited from discriminating
against an employee, applicant, or union member because he or
she has made a charge, testified, or participated in an investigation or hearing
under the act or otherwise opposed any unlawful practice.
Note that regarding general hiring, referrals, advertising, and admissions
to training or apprenticeship programs, Title VII allows discrimination only on
the basis of religion, sex, or national origin and only where these considerations
are bona fide occupational qualifications. For example, it is legal for a Baptist
church to refuse to engage a Lutheran minister. EEOC guidelines on sex discrimination
consider sex to be a bona fide occupational qualification, for example,
where it is necessary for authenticity or genuineness in hiring an actor or actress.
The omission of race and color from this exception must mean that Congress
does not feel these two factors are ever bona fide occupational qualifications.
Additional exemptions exist with respect to laws creating preferential
treatment for veterans and hiring based on professionally developed ability
tests that are not designed or intended to be used to discriminate. Such tests
must bear a relationship to the job for which they are administered, however.
2. ENFORCEMENT PROCEDURES
The Civil Rights Act of 1964 created the Equal Employment Opportunity
Commission (EEOC). This agency has the primary responsibility of enforcing
the provisions of the act. The EEOC is composed of five members, not more
than three of whom may be members of the same political party. They are
appointed by the president, with the advice and consent of the Senate, and
serve a five-year term. In the course of its investigations, the EEOC has broad
authority to hold hearings, obtain evidence, and subpoena and examine witnesses
under oath.
Under the Equal Employment Opportunity Act of 1972, the EEOC can
file a civil suit in federal district court and represent a person charging a
violation of the act. However, it must first exhaust efforts to settle the claim.
Remedies that may be obtained in such an action include reinstatement with
back pay for the victim of an illegal discrimination and injunctions against
future violations of the act by the defendant. See Figure 20.1 for a breakdown
of charges received by the EEOC.
The 1991 Amendments In 1991 Congress amended the Civil Rights
Act to allow the recovery of compensatory and punitive damages of up to
$300,000 per person. These damages are in addition to other remedies such
as job reinstatement (depending on the size of the employer) and back pay or
front pay. Compensatory damages include damages for the pain and suffering
of discrimination. Punitive damages are appropriate whenever discrimination
Discriminating in
employment on the
basis of race or color
can almost never be
a BFOQ.
Under Title VII, a plaintiff
can recover up to
$300,000 in punitive
and compensatory
damages for intentional
discrimination.
Back pay damages
can further add to that
amount.
“[M]ajor American
businesses have made
clear that the skills
needed in today’s
increasingly global
marketplace can
only be developed
through exposure to
widely diverse people,
cultures, ideas, and
viewpoints.”
–Justice Sandra Day
O’Connor , Grutter v.
Bollinger , 539 U.S.
306, 330 (2003)
648 PART 5 The Employer-Employee Relationship
occurs with “malice or with reckless or callous indifference to the federally
protected rights of others.” The 1991 amendments allow compensatory and
punitive damages only when employers are guilty of intentional discrimination.
In enacting Title VII of the Civil Rights Act of 1964, Congress made it
clear that it did not intend to preempt states’ fair employment laws. Where
state agencies begin discrimination proceedings, the EEOC must wait 60 days
before it starts action. Furthermore, if a state law provides relief to a discrimination
charge, the EEOC must notify the appropriate state officials and wait
60 days before continuing action.
An employee must file charges of illegal discrimination with the EEOC
within 180 days after notice of the unlawful practice. If the employee first
filed in a timely fashion with a state fair employment practices commission,
the law extends the time for filing with the EEOC to 300 days.
Winning a Title VII Civil Action To win a Title VII civil action,
a plaintiff must initially show that steps taken by the employer likely had
an illegally discriminatory basis, such as race. Generally, the plaintiff must
prove either disparate (unequal) treatment or disparate impact. In proving
disparate treatment , the plaintiff must convince the court that the employer
intentionally discriminated against the plaintiff. If discrimination is a substantial
or motivating factor, an employer’s practice is illegal even though other
factors (such as customer preference) also contributed. Even if the plaintiff
proves disparate treatment, the defendant can win by showing that all or substantially
all members of the plaintiff’s class cannot perform the duties of the
job. This defense is the BFOQ defense mentioned in Section 1 of this chapter.
In a disparate impact case the plaintiff must prove that the employer’s
practices or policies had a discriminatory effect on a group protected
by Title VII. The employer can defeat the plaintiff’s claim by proving the
Do remember that
the three types of
cases permitted under
Title VII are for
(1) disparate
treatment, (2)
disparate impact, and
(3) retaliation.
Figure 20.1 What Kinds of Claims Are Being Filed with the EEOC?
Source: EEOC Charge Statistics FY1997–2010, www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
20
15
10
25
30
35
40 Percentage of Charges Received by the EEOC
Percentage
In 1997, the EEOC received 80,680 total charges, in 2006, it received 75,768 charges, and in 2010, it received 99,922 charges.
Race Sex National
Origin
Religion Retaliation
(all statutes)
Retaliation
(Title VII only)
Age Disability Equal
Pay Act
GINA
1997
2006
2010
CHAPTER 20 Discrimination in Employment 649
business necessity defense . This defense requires that the employer prove that
the practices or policies used are job related and based on business necessity.
However, the plaintiff can still establish a violation by showing that other policies
would serve the legitimate interests of business necessity without having
undesirable discriminatory effects.
A third type of discrimination case concerns retaliation . It is illegal for
employers to retaliate against employees for making discrimination charges,
giving testimony in a discrimination case, or in any way participating in a
discrimination investigation. Such retaliation discrimination involves employers
taking “adverse employment actions” against employees, such as firing
employees or transferring them to less desirable jobs.
What are ways a company can avoid retaliation claims? As illustrated in
Figure 20.1 , retaliation claims are on the rise. There are a number of steps an
employer can take to address allegations of discrimination without triggering
a retaliation claim:
• Treat complaints seriously as soon as they are made.
• Investigate the complaint.
• Be sure managers and other employees know and follow the company’s
policies on discrimination, including harassment.
• Follow-up with the complainant, including explaining how the company
will address the problem.
• Create an atmosphere in which the complainant and others with information
feel comfortable coming forward with information or other
complaints.
• Never take adverse action against a complainant or witnesses, based on
information obtained in the investigation.
These straightforward steps go a long way to create an atmosphere of fairness
and head off additional claims based on retaliation.
Before the 1991 Civil Rights Act amendments, employees or the EEOC
sometimes claimed that proving racial or gender statistical imbalances in a
workforce established illegal discrimination. They claimed that such imbalances
showed illegal discrimination, much like disparate impact discrimination,
even in the absence of proof of an employer’s discriminatory intent.
However, the 1991 amendments state that the showing of a statistically imbalanced
workforce is not enough in itself to establish a violation of Title VII.
If an employee who
complains about
discrimination is
transferred to the
night shift, even
without a loss of pay,
he may have a claim
for retaliation under
Title VII. Burlington
Northern and Santa Fe
Railroad Co. v. White,
548 U.S. 53 (2007).
case 20.1 >>
THOMPSON v. NORTH AMERICAN STAINLESS, LP
562 U.S. __ (2011)
After petitioner Thompson’s fiancée, Miriam Regalado,
filed a sex discrimination charge with the Equal
Employment Opportunity Commission (EEOC)
against their employer, respondent North American
Stainless (NAS), NAS fired Thompson. He filed his
own charge and a subsequent suit under Title VII of
the Civil Rights Act, claiming that NAS fired him to
retaliate against Regalado for filing her charge. The
District Court granted NAS summary judgment on
the ground that third-party retaliation claims were not
650
permitted by Title VII, which prohibits discrimination
against an employee “because he has made a [Title VII]
charge.” The en banc Sixth Circuit affirmed, reasoning
that Thompson was not entitled to sue NAS for
retaliation because he had not engaged in any activity
protected by the statute. By a vote of 8-0, the Supreme
Court overturned the Court of Appeals. (Justice Kagan
took no part in the consideration of the case.)
SCALIA, J.: Until 2003, both petitioner Eric
Thompson and his fiancée, Miriam Regalado, were
employees of respondent North American Stainless
(NAS). In February 2003, the Equal Employment
Opportunity Commission (EEOC) notified NAS that
Regalado had filed a charge alleging sex discrimination.
Three weeks later, NAS fired Thompson.
Thompson then filed a charge with the EEOC.
After conciliation efforts proved unsuccessful, he sued
NAS in the United States District Court for the Eastern
District of Kentucky under Title VII of the Civil Rights
Act of 1964,78 Stat. 253, 42 U. S. C. §2000e et seq.,
claiming that NAS had fired him in order to retaliate
against Regalado for filing her charge with the EEOC.
The District Court granted summary judgment to NAS,
concluding that Title VII “does not permit third party
retaliation claims.” 435 F. Supp. 2d 633, 639 (ED Ky.
2006). After a panel of the Sixth Circuit reversed the
District Court, the Sixth Circuit granted rehearing en
banc and affirmed by a 10-to-6 vote. 567 F. 3d 804
(2009). The court reasoned that because Thompson did
not “engag[e] in any statutorily protected activity, either
on his own behalf or on behalf of Miriam Regalado,”
he “is not included in the class of persons for whom
Congress created a retaliation cause of action.” . . .
Title VII provides that “[i]t shall be an unlawful
employment practice for an employer to discriminate
against any of his employees . . . because he has made
a charge” under Title VII. 42 U. S. C. §2000e–3(a). The
statute permits “a person claiming to be aggrieved” to
file a charge with the EEOC alleging that the employer
committed an unlawful employment practice, and, if
the EEOC declines to sue the employer, it permits a
civil action to “be brought . . . by the person claiming
to be aggrieved . . . by the alleged unlawful employment
practice.” §2000e–5(b), (f)(1). It is undisputed
that Regalado’s filing of a charge with the EEOC was
protected conduct under Title VII. In the procedural
posture of this case, we are also required to assume
that NAS fired Thompson in order to retaliate against
Regalado for filing a charge of discrimination. This
case therefore presents two questions: First, did NAS’s
firing of Thompson constitute unlawful retaliation?
And second, if it did, does Title VII grant Thompson
a cause of action?
With regard to the first question, we have little difficulty
concluding that if the facts alleged by Thompson
are true, then NAS’s firing of Thompson violated Title
VII. In Burlington N. & S. F. R. Co. v. White, 548 U. S. 53
(2006), we held that Title VII’s antiretaliation provision
must be construed to cover a broad range of employer
conduct. We reached that conclusion by contrasting
the text of Title VII’s antiretaliation provision with its
substantive antidiscrimination provision. . . . Title VII’s
antiretaliation provision prohibits any employer action
that “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
Id., at 68 (internal quotation marks omitted).
We think it obvious that a reasonable worker might
be dissuaded from engaging in protected activity if she
knew that her fiancé would be fired. Indeed, NAS does
not dispute that Thompson’s firing meets the standard
set forth in Burlington. Tr. of Oral Arg. 30. NAS raises
the concern, however, that prohibiting reprisals against
third parties will lead to difficult line-drawing problems
concerning the types of relationships entitled to protection.
Perhaps retaliating against an employee by firing
his fiancée would dissuade the employee from engaging
in protected activity, but what about firing an employee’s
girlfriend, close friend, or trusted co-worker? . . .
Although we acknowledge the force of this point,
we do not think it justifies a categorical rule that thirdparty
reprisals do not violate Title VII. As explained
above, we adopted a broad standard in Burlington
because Title VII’s antiretaliation provision is worded
broadly. We think there is no textual basis for making
an exception to it for third-party reprisals, and
a preference for clear rules cannot justify departing
from statutory text. We must also decline to identify
a fixed class of relationships for which third-party
reprisals are unlawful. We expect that firing a close
family member will almost always meet the Burlington
standard, and inflicting a milder reprisal on a mere
acquaintance will almost never do so, but beyond that
we are reluctant to generalize. . . .
The more difficult question in this case is whether
Thompson may sue NAS for its alleged violation of
Title VII. The statute provides that “a civil action may
be brought . . . by the person claiming to be aggrieved.”
“. . . to be aggrieved” to bring “a civil action.” It is arguable
that the aggrievement referred to is nothing more
than the minimal Article III standing, which consists
of injury in fact caused by the defendant and remediable
by the court. See Lujan v. Defenders of Wildlife,
504 U. S. 555, 560–561 (1992). But Thompson’s claim
undoubtedly meets those requirements, so if that is
indeed all that aggrievement consists of, he may sue. . . .
We hold that the term “aggrieved” in Title VII
incorporates this test, enabling suit by any plaintiff with
[continued]
651
[continued]
an interest “arguably [sought] to be protected by the
statutes,” National Credit Union Admin. v. First Nat.
Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal
quotation marks omitted), while excluding plaintiffs
who might technically be injured in an Article III sense
but whose interests are unrelated to the statutory prohibitions
in Title VII. Applying that test here, we conclude
that Thompson falls within the zone of interests
protected by Title VII. Thompson was an employee of
NAS, and the purpose of Title VII is to protect employees
from their employers’ unlawful actions. Moreover,
accepting the facts as alleged, Thompson is not an
accidental victim of the retaliation—collateral damage,
so to speak, of the employer’s unlawful act. To the contrary,
injuring him was the employer’s intended means
of harming Regalado. Hurting him was the unlawful
act by which the employer punished her. In those circumstances,
we think Thompson well within the zone
of interests sought to be protected by Title VII. He is a
person aggrieved with standing to sue.
Reversed and remanded.
>> CASE QUESTIONS
1. What are the key facts of this case?
2. What were the two issues before the Supreme Court?
3. What did the Court decide? What is the rationale for the decisions?
3. DISCRIMINATION ON THE BASIS OF RACE OR COLOR
The integration of African Americans into the mainstream of American society
is the primary objective of the Civil Rights Act of 1964. Title VII, which
deals with employment practices, is the key legal regulation for achieving this
goal. Without equal employment opportunities, African Americans can hardly
enjoy other guaranteed rights, such as access to public accommodations.
Title VII prohibits discriminatory employment practices based on race or
color that involve recruiting, hiring, and promotion of employees. Of course,
intentional discrimination in these matters is illegal, but, as previously stated,
policies with disparate impact are also forbidden. Such discrimination arises
from an employer’s policies or practices that apply equally to everyone but
that discriminate in greater proportion against minorities and have no relation
to job qualification.
Examples of disparate impact on race include:
• Using personnel tests that have no substantial relation to job qualification,
which have the effect of screening out minorities.
• Denying employment to unwed mothers, when minorities have a higher
rate of illegitimate births than whites.
• Refusing to hire people because of a poor credit rating, when minorities
are disproportionately affected.
• Giving hiring priority to relatives of present employees, when minorities
are underrepresented in the workforce.
Often at issue in disparate impact cases is whether a discriminatory policy
or practice relates to job qualification. Courts require proof, not mere
assertion, of job relatedness before upholding an employer’s discriminatory
personnel test or other practice.
LO 20-2
Lockheed Martin
settled a race
discrimination and
retaliation lawsuit for
$2.5 million in 2008.
The case alleged a
racially hostile work
environment at several
job sites, including
threats of lynching
and the use of the
“N-word.”
652 PART 5 The Employer-Employee Relationship
Researchers revealed racial bias in hiring based on an applicant’s name.
The study tracked response rates to resumes sent to 1,300 help-wanted ads.
The authors found that white-sounding names (such as Anne, Emily, Allison,
Neil, Todd, and Matthew) are 50 percent more likely to get called for
an initial interview than applicants with African American-sounding names
(such as Tamika, Latoya, Latonya, Tyrone, Tremayne, and Rasheed). Additionally,
race affects the degree to which applicants benefit from having more
experience and credentials. The study showed that white applicants with
higher-quality resumes received 30 percent more callbacks than whites with
lower-quality resumes. By contract, African American applicants experienced
only 9 percent more callbacks for the same improvement in credentials.
It is important to appreciate that Title VII prohibits employment discrimination
against members of all races. In one recent case, a federal court jury
awarded a white senior air traffic official $500,000 in damages against the
Federal Aviation Administration. The official charged the FAA had demoted
The State of New
York has outlawed the
display of a noose as
a threat, punishable
by up to four years in
prison.
The law also prohibits discrimination in employment conditions and
benefits. EEOC decisions have found such practices as the following to be
violations:
• Permitting racial insults in the work situation.
• Maintaining all-white or all-black crews for no demonstrable reasons.
• Providing better housing for whites than blacks.
• Granting higher average Christmas bonuses to whites than blacks for reasons
that were not persuasive to the commission.
John Hithon and Anthony Ash, African American
men, worked at a Tyson Foods plant in Alabama.
When two supervisor positions opened up, they were
passed over for promotion and two white men from
other plants were hired. Believing that the failure to
be promoted resulted from racial prejudice, Hithon
and Ash filed an employment discrimination claim
against their employer.
As part of their case, the plaintiffs produced
evidence that their white boss used the term “boy”
when referring to them. Is the use of the term boy
racially discriminatory?
In 2002, an Alabama jury awarded Hithon and
Ash $250,000 each in compensatory damages and
$1.5 million in punitive damages. After a magistrate
overruled the jury’s verdict, Hilton and Ash appealed.
On appeal, the 11th Circuit determined that an adult
African American man being called “boy” alone was
not discriminatory unless it was preceded by “black”
or “white.”
The U.S. Supreme Court unanimously reversed
the 11th Circuit’s decision, stating:
Although it is true that the disputed word will not
always be evidence of racial animus, it does not follow
that the term, standing alone, is always benign . . .
The speaker’s meaning may depend on various factors
including context, inflection, tone of voice, local
custom and historical usage.
Thereafter, another Alabama jury found in favor of
Hithon, awarding him $35,000 in back pay, $300,000
in compensatory damages for his mental anguish
and $1 million in punitives. The District Court vacated
the punitive damage award. Both sides appealed. On
appeal, the 11th Circuit voted 2-1 entering a judgment
in favor of Tyson Foods. The majority said that
the evidence did not support Hithon’s argument.
>> sidebar 20.1
Hithon v. Tyson Foods, Inc.: The Use of the Word “Boy”
CHAPTER 20 Discrimination in Employment 653
him and replaced him with an African American following complaints that
blacks were underrepresented in senior management levels. Note that this
case did not involve affirmative action.
case 20.2 >>
RICCI v. DESTEFANO
557 U.S.__ (2009)
New Haven, Conn. (City), uses objective examinations
to identify those firefighters best qualified for
promotion. When the results of such an exam to fill
vacant lieutenant and captain positions showed that
white candidates had outperformed minority candidates,
a rancorous public debate ensued. Confronted
with arguments both for and against certifying the
test results—and threats of a lawsuit either way—the
City threw out the results based on the statistical racial
disparity. Petitioners, white and Hispanic firefighters
who passed the exams but were denied a chance
at promotions by the City’s refusal to certify the test
results, sued the City and respondent officials, alleging
that discarding the test results discriminated against
them based on their race in violation of, inter alia, Title
VII of the Civil Rights Act of 1964. The defendants
responded that had they certified the test results, they
could have faced Title VII liability for adopting a practice
having a disparate impact on minority firefighters.
The District Court granted summary judgment for
the defendants, and the Second Circuit affirmed. Justice
Sotomayor was on the Second Circuit at the time
of that decision. Justice Kennedy wrote the majority
opinion in which Chief Justice Roberts, and Justices
Scalia, Thomas and Alito joined.
Justice Ginsburg filed a dissenting opinion in
which Justices Stevens, Souter and Breyer joined. In
her dissent, Justice Ginsburg notes that firefighting is
“a profession in which the legacy of racial discrimination
casts an especially long shadow” and that the
facts of this case should be assessed “against this backdrop
of entrenched inequality.”
KENNEDY, J.: In the fire department of New Haven,
Connecticut—as in emergency-service agencies throughout
the Nation—firefighters prize their promotion to
and within the officer ranks. An agency’s officers command
respect within the department and in the whole
community; and, of course, added responsibilities
command increased salary and benefits. Aware of the
intense competition for promotions, New Haven, like
many cities, relies on objective examinations to identify
the best-qualified candidates. In 2003, 118 New
Haven firefighters took examinations to qualify for
promotion to the rank of lieutenant or captain. Promotion
examinations in New Haven (or City) were
infrequent, so the stakes were high. The results would
determine which firefighters would be considered for
promotions during the next two years, and the order
in which they would be considered. Many firefighters
studied for months, at considerable personal and
financial cost.
When the examination results showed that white
candidates had outperformed minority candidates,
the mayor and other local politicians opened a public
debate that turned rancorous. Some firefighters
argued the tests should be discarded because the
results showed the tests to be discriminatory. They
threatened a discrimination lawsuit if the City made
promotions based on the tests. Other firefighters said
the exams were neutral and fair. And they, in turn,
threatened a discrimination lawsuit if the City, relying
on the statistical racial disparity, ignored the test
results and denied promotions to the candidates who
had performed well. In the end the City took the side
of those who protested the test results. It threw out the
examinations.
Certain white and Hispanic firefighters who likely
would have been promoted based on their good test
performance sued the City and some of its officials.
Theirs is the suit now before us. The suit alleges that,
by discarding the test results, the City and the named
officials discriminated against the plaintiffs based on
their race, in violation of both Title VII of the Civil
Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S.
C. §2000e et seq., and the Equal Protection Clause of
the Fourteenth Amendment. The City and the officials
defended their actions, arguing that if they had certified
the results, they could have faced liability under
Title VII for adopting a practice that had a disparate
654
impact on the minority firefighters. The District Court
granted summary judgment for the defendants, and
the Court of Appeals affirmed.
We conclude that race-based action like the City’s
in this case is impermissible under Title VII unless
the employer can demonstrate a strong basis in evidence
that, had it not taken the action, it would have
been liable under the disparate-impact statute. The
respondents, we further determine, cannot meet that
threshold standard. As a result, the City’s action in discarding
the tests was a violation of Title VII. In light
of our ruling under the statutes, we need not reach the
question whether respondents’ actions may have violated
the Equal Protection Clause. . . .
Title VII of the Civil Rights Act of 1964, 42 U. S.
C.§2000e et seq., as amended, prohibits employment
discrimination on the basis of race, color, religion, sex,
or national origin. Title VII prohibits both intentional
discrimination (known as “disparate treatment”) as
well as, in some cases, practices that are not intended
to discriminate but in fact have a disproportionately
adverse effect on minorities (known as “disparate
impact”). . . . The Civil Rights Act of 1964 did not
include an express prohibition on policies or practices
that produce a disparate impact. But in Griggs v. Duke
Power Co., 401 U. S. 424 (1971), the Court interpreted
the Act to prohibit, in some cases, employers’ facially
neutral practices that, in fact, are “discriminatory in
operation.” Id., at 431. The Griggs Court stated that
the “touchstone” for disparate impact liability is the
lack of “business necessity”: “If an employment practice
which operates to exclude [minorities] cannot be
shown to be related to job performance, the practice
is prohibited.” . . . Twenty years after Griggs, the Civil
Rights Act of 1991, 105 Stat. 1071, was enacted. The
Act included a provision codifying the prohibition
on disparate-impact discrimination. That provision is
now in force along with the disparate-treatment section
already noted. Under the disparate-impact statute,
a plaintiff establishes a prima facie violation by
showing that an employer uses “a particular employment
practice that causes a disparate impact on the
basis of race, color, religion, sex, or national origin.”
42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may
defend against liability by demonstrating that the
practice is “job related for the position in question
and consistent with business necessity.” Ibid. Even
if the employer meets that burden, however, a plaintiff
may still succeed by showing that the employer
refuses to adopt an available alternative employment
practice that has less disparate impact and serves the
employer’s legitimate needs. . . . Petitioners allege that
when the CSB refused to certify the captain and lieutenant
exam results based on the race of the successful
candidates, it discriminated against them in violation
of Title VII’s disparate-treatment provision. The City
counters that its decision was permissible because
the tests “appear[ed] to violate Title VII’s disparate
impact provisions.” . . . The same interests are at work
in the interplay between the disparate-treatment and
disparate-impact provisions of Title VII. Congress has
imposed liability on employers for unintentional discrimination
in order to rid the workplace of “practices
that are fair in form, but discriminatory in operation.”
Griggs, supra, at 431. But it has also prohibited employers
from taking adverse employment actions “because
of” race. §2000e–2(a)(1). Applying the strong-basis-inevidence
standard to Title VII gives effect to both the
disparate-treatment and disparate-impact provisions,
allowing violations of one in the name of compliance
with the other only in certain, narrow circumstances.
The standard leaves ample room for employers’ voluntary
compliance efforts, which are essential to the
statutory scheme and to Congress’s efforts to eradicate
workplace discrimination. See Firefighters, supra,
at 515. And the standard appropriately constrains
employers’ discretion in making race-based decisions:
It limits that discretion to cases in which there is a
strong basis in evidence of disparate-impact liability,
but it is not so restrictive that it allows employers to
act only when there is a provable, actual violation.
Resolving the statutory conflict in this way allows
the disparate-impact prohibition to work in a manner
that is consistent with other provisions of Title
VII, including the prohibition on adjusting employment-
related test scores on the basis of race. . . . The
racial adverse impact here was significant, and petitioners
do not dispute that the City was faced with a
prima facie case of disparate-impact liability. On the
captain exam, the pass rate for white candidates was
64 percent but was 37.5 percent for both black and
Hispanic candidates. On the lieutenant exam, the pass
rate for white candidates was 58.1 percent; for black
candidates, 31.6 percent; and for Hispanic candidates,
20 percent. The pass rates of minorities, which were
approximately one half the pass rates for white candidates,
fall well below the 80-percent standard set by
the EEOC to implement the disparate-impact provision
of Title VII. . . .
There is no genuine dispute that the examinations
were job-related and consistent with business necessity.
. . . On the record before us, there is no genuine
dispute that the City lacked a strong basis in evidence
to believe it would face disparate-impact liability if it
certified the examination results. In other words, there
is no evidence—let alone the required strong basis
in evidence—that the tests were flawed because they
were not job-related or because other, equally valid
[continued]
655
[continued]
and less discriminatory tests were available to the City.
Fear of litigation alone cannot justify an employer’s
reliance on race to the detriment of individuals who
passed the examinations and qualified for promotions.
The City’s discarding the test results was impermissible
under Title VII, and summary judgment is appropriate
for petitioners on their disparate-treatment claim.
. . . Many of the candidates had studied for months,
at considerable personal and financial expense, and
thus the injury caused by the City’s reliance on raw
racial statistics at the end of the process was all the
more severe. Confronted with arguments both for and
against certifying the test results—and threats of a
lawsuit either way—the City was required to make a
difficult inquiry. But its hearings produced no strong
evidence of a disparate-impact violation, and the City
was not entitled to disregard the tests based solely on
the racial disparity in the results.
Reversed.
>> CASE QUESTIONS
1. Explain how the case involved both issues of disparate treatment and disparate
impact?
2. If you were representing the City of New Haven, would you have certified the test
results? Why or why not?
3. What is the basis for the Supreme Court’s holding?
4. DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN
Title VII’s prohibition against national origin discrimination protects various
ethnic groups in the workplace. In a recent case, the court ruled that
Title VII had been violated when a bakery employee of Iranian descent was
called “Ayatollah” in the workplace by the assistant manager and other
employees. After he complained, he was fired. In 2005, the EEOC reported
that employees of Middle Eastern descent had filed almost a thousand
Approximately 1.2
million Americans
are of Middle Eastern
or Arab descent,
according to the U.S.
Census.
In 2005, Abercrombie & Fitch (A&F) settled a discrimination
lawsuit with over 10,000 class members.
The suit alleged hiring discrimination against Latino,
African American, and Asian American applicants.
The checks ranged from several hundred to several
thousand dollars each, totaling $40 million. The settlement
agreement also requires A&F to:
• Set “benchmarks” (not quotas) for hiring and
promotion of women, Latinos, African Americans,
and Asian Americans.
• Stop targeting fraternities, sororities, or specific
colleges for recruitment.
• Hire 25 recruiters who will focus on seeking
women and minority employees.
• Implement a new internal complaint procedure.
• Create marketing materials reflecting diversity.
What is A&F saying about diversity now? According
to Mike Jeffries, A&F’s Chairman and CEO, “Diversity
and inclusion are key to our organization’s
success.”
In 2011, Abercrombie was sued again for discrimination.
This time, a Muslim woman claims
that she was fired for refusing to remove her hijab
at work.
>> sidebar 20.2
Abercrombie & Fitch’s $40 Million Diversity Lesson
656 PART 5 The Employer-Employee Relationship
discrimination complaints against employers since the terrorist bombings of
in September 11, 2001.
Discrimination concerning the speaking of a native language frequently
causes national-origin lawsuits under Title VII. For instance, courts have ruled
illegal an employer’s rule against speaking Spanish during work hours when
the employer could not show a business need to understand all conversations
between Hispanic employees. On the other hand, some courts have held that
if jobs require contact with the public, a requirement that employees speak
some English may be a business necessity.
Direct foreign investment in the United States has doubled and redoubled
in recent years. This increasing investment has presented some unusual issues of
employment discrimination law. For instance, many commercial treaties with
foreign countries give foreign companies operating in the United States the
right to hire executive-level employees “of their choice.” Does this mean that
foreign companies in the United States can discriminate as to their managerial
employees on a basis forbidden under Title VII? The Supreme Court has partially
resolved this issue by ruling that the civil rights law applied to a Japanese
company that did business through a subsidiary incorporated in this country.
Don’t forget that
a policy requiring
employees to speak
English will violate
Title VII as disparate
impact unless it is
justified by business
necessity.
The EEOC brought a lawsuit on
behalf of Mexican immigrant workers
at Sam’s Club who claimed
they were harassed about their national origin
by a co-worker who is Mexican American.
Among the allegations:
• At least nine female workers of Mexican descent
and one woman married to a Mexican were subjected
to ethnic slurs and derogatory remarks.
• The insults were made on a “near daily” basis,
including being called “f----n’ wetbacks” and references
to Mexicans only being good to clean
the harasser’s home.
• The harasser also threatened to report three of
the victims to immigration authorities, despite
their legal status.
• The victims complained about the hostile work
environment but this “only intensified the
harassment and led to intimidation.”
Wal-Mart Stores agreed to pay $440,000 to settle
this case.
Source: EEOC Press Release, Wal-Mart to Pay $440,000 to Settle EEOC
Suit for Harassment of Latinos, April 14, 2011, www.eeoc.gov/eeoc/
newsroom/release/4-14-11.cfm
>> sidebar 20.3
National Origin Discrimination: Problematic Ethnic Slurs
5. DISCRIMINATION ON THE BASIS OF RELIGION
Note that religious corporations, associations, or societies can discriminate in
all their employment practices on the basis of religion, but not on the basis of
race, color, sex, or national origin. Other employers cannot discriminate on
the basis of religion in employment practices, and they must make reasonable
accommodation to the religious needs of their employees if it does not result
in undue hardship to them.
In one case the Supreme Court let stand a lower court ruling that employees
cannot be required to pay union dues if they have religious objections
to unions. The case determined that a union violated Title VII by forcing a
CHAPTER 20 Discrimination in Employment 657
company to fire a Seventh Day Adventist who did not comply with a collective
bargaining agreement term that all employees must pay union dues. The
union argued unsuccessfully that it had made reasonable accommodation to
the worker’s religious beliefs by offering to give any dues paid by him to
charity. However, in another case the Supreme Court ruled that a company
rightfully fired an employee who refused to work on Saturdays due to religious
belief. The Court said that the company did not have to burden other
employees by making them work Saturdays.
A growing source of religious discrimination lawsuits concerns employees
who for religious reasons refuse to perform some task required by the
employer. For example, in one case a vegetarian bus driver refused to distribute
hamburger coupons on his bus, asserting religious beliefs. When his
employer fired him, he sued. The parties settled the case for $50,000. Note
that even if an employer wins such a lawsuit, it can be extremely expensive
to defend.
As mentioned earlier, since the 9/11 bombings religious discrimination
against Muslim employees has risen steeply. In 2003 the EEOC settled a complaint
by four Muslim machine operators against Stockton Steel of California
for $1.1 million. The four operators claimed they were given the worst
jobs, ridiculed during their prayers, and called names like “camel jockey” and
“raghead.”
UPS paid $46,000
to settle a religious
discrimination
case for failing to
accommodate the
Rastafarian religious
beliefs of an employee
whose religious beliefs
prohibited him from
cutting his hair or
shaving his beard
to comply with UPS
policy.
In the case of
employees of Arab
descent, note the
close connection
between national
origin discrimination
and religious
discrimination.
About 25 percent of the religious discrimination
claims filed with the EEOC are brought by Muslims,
even though Muslims make up only 2 percent of the
U.S. population. Complaints include:
• Somali immigrants working at a meatpacking
company who were cursed for being Muslim;
had blood, meat, and bones thrown at them; and
were interrupted during prayer breaks.
• Dress policies forbidding headwear, prohibiting
Muslim women from wearing headscarves, also
called hijabs.
• Name-calling, including: “terrorist,” “Osama,”
“camel jockey,” and “towel head.”
What steps should employers take to accommodate
Muslims in the workplace? If it will not cause
undue hardship, employers should consider allowing
the following kinds of accommodations:
• Prayer breaks with the understanding that Muslims
pray five times a day for approximately five
to 15 minutes.
• Headscarves for women if they do not create a
safety issue.
• Facial Hair for men.
• Vacation days for religious holidays such as Eid
al-Fitr and Eid al-Adha.
Overall, as is the case with any form of illegal discrimination,
employers should be vigilant and take
action to ensure that the workplace is free from discriminatory
animus.
>> sidebar 20.4
Workplace Discrimination Against Muslims
6. DISCRIMINATION ON THE BASIS OF SEX
Historically, states have enacted many laws designed supposedly to protect
women. For example, many states by statute have prohibited the employment
of women in certain occupations such as those that require lifting heavy
objects. Others have barred women from working during the night or more
658 PART 5 The Employer-Employee Relationship
than a given number of hours per week or day. A federal district court held
that a California state law that required rest periods for women only was in
violation of Title VII. Some statutes prohibit employing women for a specified
time after childbirth. Under EEOC guidelines, such statutes are not a defense
to a charge of illegal sex discrimination and do not provide an employer
with a bona fide occupational qualification in hiring standards. Other EEOC
guidelines forbid employers:
• To classify jobs as male or female.
• To advertise in help-wanted columns that are designated male or female,
unless sex is a bona fide job qualification.
Similarly, employers may not have separate male and female seniority lists.
Whether sex is a bona fide occupational qualification (and discrimination
is thus legal) has been raised in several cases. The courts have tended to
consider this exception narrowly. In the following instances involving hiring
policy, no bona fide occupational qualification was found to exist:
• A rule requiring airline stewardesses, but not stewards, to be single.
• A policy of hiring only females as flight cabin attendants.
• A rule against hiring females with preschool-age children, but not against
hiring males with such children.
• A telephone company policy against hiring females as switchers because
of the alleged heavy lifting involved on the job.
In the telephone company case, the court held that for a bona fide occupational
qualification to exist, there must be “reasonable cause to believe, that
is, a factual basis for believing, that all or substantially all women would be
unable to perform safely and efficiently the duties of the job involved.” The
Supreme Court has indicated that for such a qualification to exist, sex must
be provably relevant to job performance.
Other examples of illegal sex discrimination include:
• Refusing to hire a female newscaster because “news coming from a
woman sounds like gossip.”
• Allowing women to retire at age 50, but requiring men to wait until
age 55.
• Failing to promote women to overseas positions because foreign clients
were reluctant to do business with women.
The much-talked about Hooters restaurant case involved a lawsuit filed by
men in Illinois and Maryland who were denied jobs. Hooters paid $3.75 million
to settle the lawsuit. The settlement allows Hooters to continue employing
voluptuous and scantily clad female “Hooters Girls,” but they must create
and fill a few other support jobs, like bartenders and hosts, without regard to
gender.
The largest gender discrimination case was brought as a class action
against Wal-Mart and Sam’s Club. In 2011, the U.S. Supreme Court refused
to certify the class. For more information about this case, see Case 4.2 in
Chapter 4.
Query: Could Victoria’s
Secret stores legally
hire only women for
certain positions?
CHAPTER 20 Discrimination in Employment 659
Here are some examples of gender bias cases brought
by women against major U.S. firms:
• Novartis Pharmaceuticals Corp.—After finding
discrimination against women employees in pay,
promotion and pregnancy policies, a New York
jury awarded the plaintiffs $3,367,250 in compensatory
damages and $250 million in punitive
damages. In his closing argument, the plaintiffs’
lawyer told the jury that the evidence proved that
Novartis “tolerated a culture of sexism, a boys’
club atmosphere.” Novartis subsequently settled
the remaining gender bias claims, agreeing to a
settlement of approximately $152.5 million to
current and former female sales representatives.
• Morgan Stanley—In 2004, the firm agreed to
pay $54 million to settle a gender discrimination
suit brought by a former bond saleswoman.
• Goldman Sachs Group, Inc.—Three former
female employees have sued Goldman Sachs in
2010, alleging “systemic” violations of female
employees’ rights, including allegations of
excluding women from golf outings and other
work-related social events, push-up contests,
and retaliation after complaining about being
groped by a male colleague after an outing at a
topless bar. The suit alleges that the decentralized
structure gives managers “unchecked discretion”
in assigning pay and responsibilities.
• Citigroup—Six current and former female
employees sued Citigroup alleging that it
engages in “pervasive discrimination and retaliation”
against female employees during the 2008
layoffs. Calling the firm an “outdated ‘boys’
club,’” it allegedly systematically discriminates
against women at all levels.
>> sidebar 20.5
Gender Bias in Corporate America
Sexual Harassment A common type of illegal sex discrimination in
the workplace is sexual harassment . The typical sexual harassment case
involves a plaintiff who has been promised benefits or threatened with loss
if she or he does not give sexual favors to an employment supervisor. Such
a case is also called a quid pro quo (this for that) case. Under Title VII and
agency law, an employer is liable for this sex discrimination.
Another type of sexual harassment is the hostile work environment ,
one in which co-workers make offensive sexual comments or propositions,
engage in suggestive touching, show nude pictures, or draw sexual graffiti.
The Supreme Court in Meritor Savings Bank v. Vinson ruled that Title VII
prohibits “an offensive or hostile working environment,” even when no economic
loss occurs. By so ruling, the Court acknowledged that the work environment
itself is a condition of employment covered by Title VII.
The Supreme Court also addressed the hostile work environment issue
in Harris v. Forklift Systems, Inc. Specifically, the Court was asked to determine
whether, before a person could sue under Title VII, a hostile work environment
had “to seriously affect [his or her] psychological well-being” or
“cause injury.” The Court ruled that illegal sexual harassment goes beyond
that which causes “injury.” It includes any harassment reasonably perceived
as “hostile and abusive.”
Is all sexually offensive conduct between employees illegal? The answer
is no, although an employee’s company may choose to forbid and punish all
Think of sexual
harassment
discrimination in
terms of (1) quid
pro quo cases and
(2) hostile work
environment cases.
Well-known talk show
hosts Maury Povich
and Bill O’Reilly both
have been accused
of sexual harassment
in multimillion-dollar
lawsuits. O’Reilly
settled the case for an
undisclosed amount.
660 PART 5 The Employer-Employee Relationship
such conduct. In 2005 the Supreme Court in Clarke County School District v.
Breeden summarized when offensive sexual conduct becomes illegal:
[S]exual harassment is actionable under Title VII only if it is so severe or pervasive
as to alter the conditions of the victim’s employment and create an abusive working
environment.
The Court continued:
Workplace conduct is not measured in isolation; instead, whether an environment
is sufficiently hostile or abusive must be judged by looking at all the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.
It is not uncommon for a discrimination lawsuit to involve multiple kinds of
claims. A good example of this is a recent case against Cracker Barrel, in which
the restaurant agreed to pay $2 million to settle a lawsuit alleging sexual harassment,
racial harassment, and retaliation by 51 current or former employees. On
behalf of the workers, the EEOC alleged that male co-workers and managers
subjected female workers to unwelcome and offensive sexual comments and
touching. According to the EEOC, “Black employees said that they experienced
racially charged language in the workplace, including ‘spear chucking porch
monkey,’ ‘you people,’ and the ‘n-word.’” In addition to the monetary settlement,
Cracker Barrel must train all employees in its stores about harassment.
16.4% of all sexual
harassment claims—or
2,094 claims—were
filed by men in 2009.
Can vulgar language, even if it is not specifically
directed at an individual, be actionable as sexual
harassment under Title VII? Yes—according to the
11th Circuit Court of Appeals. The plaintiff, Ingrid
Reeves, worked at a sales company, C.H. Robinson.
Reeves alleged that she was subjected to hearing her
male co-workers call other women names such as
“b***h,” “wh**e” and “c**t” on a daily basis. She also
claimed that there were repeated vulgar discussions
about female body parts and a pornographic image
of a woman in the office. Reeves complained to her
co-workers, her supervisor, and top company executives,
but the offensive conduct was “accepted and
tolerated.”
According to the 11th Circuit, “if Reeves’s account
is to be believed, C.H. Robinson’s workplace was more
than a rough environment—indiscriminately vulgar,
profane, and sexual. Instead, a just reasonably could
find that it was a workplace that exposed Reeves to
disadvantageous terms or conditions of employment
to which members of the other sex were not exposed.”
Moreover, the court stated that it was no defense to
assert “that the workplace may have been vulgar and
sexually degrading before Reeves arrived.”
For more information, see, Reeves v. C.H. Robinson Worldwide, Inc.,
07-10270 (11th Cir. Jan. 20, 2010), available at www.ca11.uscourts.gov/
opinions/ops/200710270op2.pdf.
>> sidebar 20.6
Vulgar Workplace Language & Sexual Harassment
Employer’s Defense to Hostile Environment Is an employer always
liable when fellow employees create a hostile environment based on gender?
The answer is that the employer is not always legally responsible for a hostile
environment. The employer may have a defense. Courts have ruled that an
employer is liable to a plaintiff employee for a hostile working environment
created by fellow employees only when the employer knows of the problem
and fails to take prompt and reasonable steps to correct it, such as by moving
the harassers away from the plaintiff employee. The employer can defend
CHAPTER 20 Discrimination in Employment 661
itself by proving the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer.
Remember Title VII says that an employer is liable for discriminatory
practices only if an employee files a complaint concerning them with the
EEOC within 180 days of their happening (within 300 days if the employee
has first filed with a state fair employment practices commission). Employers
are liable for acts that occurred before 180 days of EEOC filing if they are
part of a single hostile environment that continued within the 180-day period.
Pregnancy Discrimination Act The Pregnancy Discrimination
Act amended the Civil Rights Act in 1978. Under it, employers can no longer
discriminate against women workers who become pregnant or give birth.
Thus, employers with health or disability plans must cover pregnancy, childbirth,
and related medical conditions in the same manner as other conditions
are covered. The law covers unmarried as well as married pregnant women. It
also states that an employer cannot force a pregnant woman to stop working
until her baby is born, provided she is still capable of performing her duties
properly. And the employer cannot specify how long a leave of absence must
be taken after childbirth. Coverage for abortion is not required by the statute
unless an employee carries to term and her life is endangered or she develops
medical complications because of an abortion. If a woman undergoes
an abortion, though, all other benefits provided for employees, such as sick
leave, must be provided to her.
Note that sex discrimination applies to discrimination against men as
well as women. For example, under the Pregnancy Discrimination Act the
Supreme Court ruled unlawful an employer’s health insurance plan that covered
the pregnancies of female employees but did not cover the pregnancies of
male employees’ wives.
Don’t forget that
employers are liable
if plaintiffs prove quid
pro quo harassment.
But employers may
have a defense to
hostile environment
harassment.
Men as well as
women may be
subject to illegal sex
discrimination.
The EEOC reports that pregnancy-related claims are
consistently increasing:
YEAR CLAIMS RECEIVED
1997 3977
2000 4160
2003 4649
2007 5587
2010 6119
What does a woman need to bring a successful
claim? She must prove that her pregnancy or her
status as a mother motivated the employer’s adverse
action.
In 2007, the EEOC sued Bloomberg LP, the news
and financial services company, alleging discrimination
against women who became pregnant and took
maternity leave. The complaint alleges that Bloomberg
engaged in a pattern of demoting and reducing
the pay of women after they were pregnant.
Other allegations included that some women were
subjected to stereotyping about their abilities to do
work while they were tending to family and caregiver
responsibilities.
For more information, see www.eeoc.gov/types/
pregnancy.html.
>> sidebar 20.7
Pregnancy Discrimination: Claims on the Rise
662 PART 5 The Employer-Employee Relationship
Equal Pay Act Historically, employers have paid female employees less
than males, even when they held the same jobs. In 1964, women earned only
59 cents for every dollar earned by males. By 2008, female employees earned
just 77 cents for every dollar earned by males.
Federal legislation prohibits sex discrimination in employment compensation
under both Title VII and the Equal Pay Act of 1963. Administered
by the EEOC, the Equal Pay Act prohibits an employer from discriminating
on the basis of sex in the payment of wages for equal work performed. For
jobs to be equal, they must require “equal skill, effort, and responsibility”
and must be performed “under similar working conditions.” Discrimination
is allowed if it arises from a seniority system, a merit system, a piecework
production system, or any factor other than sex.
The focus of Equal Pay Act cases is whether the male and female jobs
being compared involve “equal” work. Courts have recognized that equal
does not mean identical; it means substantially equal. Thus, courts have ruled
“equal” the work of male barbers and female beauticians and of male tailors
and female seamstresses. Differences in male and female job descriptions will
not totally protect employers against charges of equal-pay infractions. The
courts have held that “substantially equal” work done on different machines
would require the employer to compensate male and female employees
equally.
The Supreme Court has ruled that discriminatory male and female pay
differences can also be illegal under Title VII. In County of Washington v.
Gunther, the Court decided that plaintiffs can use evidence of such pay differences
to help prove intentional sex discrimination, even when the work performed
is not substantially equal. Relying on the Gunther case, at least one
lower court has held that women must be paid equally with men who perform
comparable work. A federal district court ruled that the state of Washington
discriminated against secretaries (mostly women) by paying them less than
maintenance and other personnel (mostly men). However, the comparable
worth theory is highly controversial, and other courts have not agreed with
the theory. Equal Pay Act cases tend to rely heavily on statistical analysis of
disparities.
In a landmark Equal Pay Act decision, Ledbetter v. Goodyear Tire &
Rubber Co., Inc. (2007), a sharply divided Supreme Court rejected the proemployee
paycheck-accrual theory of pay discrimination previously accepted
by many courts. Simply stated, employees must file an EEOC charge within
180 or 300 days (depending on their state) after each discriminatory pay
decision or forever lose their claim. For more details about the controversial
Ledbetter case, see Sidebar 20.8.
Examples of successful Equal Pay Act cases include one against Wal-Mart
and another against the New York Corrections Department. In the first case,
a pharmacist who claimed Wal-Mart fired her after asking to be paid the
same as her male colleagues won nearly a $2 million award against Wal-
Mart. Wal-Mart argued that it fired the pharmacist for leaving the pharmacy
unattended and allowing a technician to use her computer security code to
issue prescriptions, including a fraudulent prescription for a painkiller. Countering
this argument, the pharmacist argued that the prescription incident
According to the
census statistics,
women earned
77 cents on the male
dollar in 2008. April
20th is now Equal
Pay Day in the U.S. to
highlight awareness
of this ongoing
discrepancy.
One court ruled that
an employer could
pay male physician
assistants more
than female nurses
because the physician
assistants had
administrative duties
that nurses did not
have to perform.
CHAPTER 20 Discrimination in Employment 663
took place 18 months before her termination and more severe infractions by
her male counterparts were unpunished. In the second case, the EEOC settled
an Equal Pay Act suit against the New York Department of Corrections for
nearly $1 million. The EEOC alleged that female employees were receiving
less benefits than their male counterparts.
Sexual Orientation Discrimination Title VII does not prohibit
discrimination against employees based on their sexual orientation, or
whether they are gay, lesbian, bisexual, transgendered, or heterosexual. The
word sex in Title VII refers only to gender, whether someone is female or
male. A quarter of the states, however, and numerous cities do forbid discrimination
based on sexual orientation, and Congress could amend Title VII
to protect employees from such discrimination. Already, thousands of companies
ranging from American Express, Coca-Cola, and J. P. Morgan Chase
Bank to Ford, General Motors, and Chrysler, offer domestic partner benefits
to all employees without regard to sexual orientation.
Although the House of Representatives voted 235–184 to pass the
Employment Non-Discrimination Act of 2007, banning employment discrimination
on the basis of sexual orientation, it has not yet become federal
law. See Sidebar 20.9 for other developments in sexual orientation laws and
protections.
Lilly Ledbetter worked for Goodyear for nearly
20 years. During that time, Ledbetter and other
salaried employees received or were denied raises
based on their supervisors’ evaluation of their performance.
Near the end of her tenure at Goodyear,
Ledbetter discovered that her pay was significantly
less—as much as 40 percent less—than her male
counterparts. Ledbetter then filed a charge with
the EEOC.
>> PROCEDURAL HISTORY
The district court allowed Ledbetter to present evidence
of her entire 19-year career at Goodyear. A
jury found in her favor, awarding both compensatory
and punitive damages. The Eleventh Circuit reversed
and the Supreme Court (5–4) affirmed the decision
that a Title VII pay discrimination claim cannot be
based on any pay decision that occurred outside of
the EEOC charging period.
>> DISSENTING VIEWS
Justice Ruth Bader Ginsberg wrote a spirited dissent
(joined by Justices Stevens, Souter, and Breyer) arguing
that “[p]ay disparities often occur . . . in small
increments” and “cause to suspect that discrimination
is at work develops only over time.” She continued,
asserting that discriminatory disparities in
pay, like hostile work environment claims, rest not
on “one particular paycheck, but on ‘the cumulative
effect of individual acts.’” Incensed about the majority
opinion, Justice Ginsberg read her dissent aloud
from the bench.
>> LEGISLATIVE RESPONSE
The first piece of legislation President Obama signed
into law was the Lilly Ledbetter Fair Pay Act of 2009.
The Ledbetter Act extends the time for employees to
bring gender discrimination claims challenging pay
or promotion decision.
>> sidebar 20.8
Did the Supreme Court Get It Wrong? Fallout Over the Ledbetter Case
664 PART 5 The Employer-Employee Relationship
Although there is no federal protection prohibiting
sexual orientation in the workplace based on sexual
orientation, many private employers—especially
those who operate in many states—have company
policies prohibiting sexual orientation discrimination.
Consider these facts and legal developments:
• The majority of Fortune 500 companies provide
health insurance for domestic partners of their
employees.
• According to Human Rights Campaign, a gay
political group, more than 7,000 employers offer
domestic partner benefits.
• State laws. Twenty states and the District of
Columbia have laws that currently prohibit sexual
orientation discrimination in private employment:
California, Colorado, Connecticut, Hawaii, Illinois,
Iowa, Maine, Maryland, Massachusetts, Minnesota,
Nevada, New Hampshire, New Jersey, New Mexico,
New York, Oregon, Rhode Island, Vermont, Washington,
and Wisconsin. Some of these states also
specifically prohibit discrimination based on gender
identity.
• Local laws. More than 180 cities and counties
nationwide prohibit sexual orientation discrimination
in at least some workplaces.
For more information and a state-by-state list
of antidiscrimination laws, including city and county
ordinances, see the Lambda Legal Defense and Education
Fund website at www.lambdalegal.org.
>> sidebar 20.9
Sexual Orientation Discrimination: State and Local Laws
>> Employment Practices That May
Be Challenged
In studying the Civil Rights Act, we can usefully consider several specific
employment practices that employees or job applicants may challenge as discriminatory.
These practices include:
• Setting testing and educational requirements.
• Having height and weight requirements for physical labor.
• Maintaining appearance requirements.
• Practicing affirmative action.
• Using seniority systems.
The following sections take a close look at these practices.
7. QUESTIONNAIRES, INTERVIEWS, TESTING,
AND EDUCATIONAL REQUIREMENTS
Employers have used a number of tools to help them find the right person for
the right job. Among these tools are questionnaires, interviews, references,
minimum educational requirements (such as a high school diploma), and
personnel tests. However, employers must be extremely careful not to use
tools that illegally discriminate. For example, Rent-A-Center, a Dallas-based
appliance-rental company, agreed to pay more than $2 million in damages
to more than 1,200 job applicants and employees who were asked questions
LO 20-3
CHAPTER 20 Discrimination in Employment 665
about their sex lives and religious views in a 500-item true-false questionnaire.
Plaintiffs claimed the questionnaire discriminated illegally on the basis
of gender and religion and that it violated their privacy.
Interviews can also discriminate illegally, and personnel interviewers must
be well trained. One study indicated that interviewers can be biased even if
they are not aware of it. The study showed that the interviewers tended to
select males over females for sales positions because the interviewers subconsciously
related sales success with height, and males are on the average taller
than females. References may not be so reliable, either. A previous employer’s
letter may reflect personal biases against an applicant that were not related to
job performance.
At the other extreme, an employer may give a poor employee a top recommendation
because of sympathy or fear of a lawsuit in case the letter
is somehow obtained by the employee. Advocates of personnel tests in the
selection process feel they are very valuable in weeding out the wrong persons
for a job and picking the right ones. They believe reliance on test results
eliminates biases that interviewers or former employers who give references
may have.
Tests, however, can have a disparate impact on job applicants, discriminating
on the basis of race, sex, color, religion, or national origin. Setting
educational standards such as requiring a high school diploma for employment
can also have a disparate impact. To avoid discrimination challenges,
employers must make sure that all testing and educational requirements are
job related and necessary for the business.
In the past, some employers have “race normed” employment tests. Race
norming is the practice of setting two different cutoff test scores for employment
based on race or one of the other Title VII categories. For example, on a
race-normed test, the minimum score for employment of white job applicants
might be set at 75 out of 100. For minority applicants, the minimum score
might be set at 65. The Civil Rights Act amendments of 1991 specifically prohibit
the race norming of employment tests.
8. HEIGHT AND WEIGHT REQUIREMENTS
Minimum or maximum height or weight job requirements apply equally to
all job applicants, but if they have the effect of screening out applicants on
the basis of race, national origin, or sex, the employer must demonstrate that
such requirements are validly related to the ability to perform the work in
question. For example, maximum size standards would be permissible, even
if they favored women over men, if the available work space were too small
to permit large persons to perform the duties of the job properly. Most size
requirements have dictated minimum heights or weights, often based on a stereotyped
assumption that a certain amount of strength that smaller persons
might not have probably was necessary for the work. In one case, a 5-foot,
5-inch, 130-pound Hispanic won a suit against a police department on the
basis that the department’s 5-foot, 8-inch minimum height requirement discriminated
against Hispanics, who often are shorter than that standard. He
was later hired when he passed the department’s physical agility examination,
which included dragging a 150-pound body 75 feet and scaling a 6-foot wall.
Most employment
practices that
discriminate illegally
do so because of their
disparate impact.
Don’t forget that for
employers to racenorm
employment
tests violates Title VII.
666 PART 5 The Employer-Employee Relationship
9. APPEARANCE REQUIREMENTS
Employers often have set grooming standards for their employees. Those regulating
hair length of males or prohibiting beards or mustaches have been
among the most common. Undoubtedly, motivation for these rules stems from
the feeling of the employer that the image it projects to the public through its
employees will be adversely affected if their appearance is not “proper.” It
is unclear whether appearance requirements are legal or illegal, since there
have been rulings both ways. However, in 2000 the EEOC filed a lawsuit
in Atlanta against FedEx Corporation for firing a bearded delivery driver
who refused to shave in violation of a company policy that permitted beards
only when medically necessary. The driver’s Islamic beliefs required males to
wear beards, and the lawsuit alleged that FedEx’s policy constituted religious
discrimination.
In another case, a black employee argued that he was wrongfully fired for
breaking a company rule prohibiting beards. Dermatologists testified that the
plaintiff had a condition called “razor bumps” (which occurs when the tightly
curled facial hairs of black men become ingrown from shaving) and that the
only known cure was for him not to shave. Although the federal appeals court
found that the plaintiff was prejudiced by the employer’s regulation, it held in
favor of the company, ruling that its slight racial impact was justified by the
business necessity it served. A conflicting opinion in still another case upheld
an employee’s right to wear a beard because of razor bumps.
10. AFFIRMATIVE ACTION PROGRAMS
AND REVERSE DISCRIMINATION
Since the 1940s, a series of presidential executive orders have promoted nondiscrimination
and affirmative action by employers who contract with the
federal government. The authority for these orders rests with the president’s
executive power to control the granting of federal contracts. As a condition
to obtaining such contracts, employers must agree contractually to take affirmative
action to avoid unlawful discrimination in recruitment, employment,
promotion, training, rate of compensation, and layoff of workers.
The affirmative action requirement means that federally contracting
employers must actively recruit members of minority groups being underused
in the workforce. That is, employers must hire members of these groups when
there are fewer minority workers in a given job category than one could reasonably
expect, considering their availability. In many instances, employers
must develop written affirmative action plans and set goals and timetables
for bringing minority (or female) workforces up to their percentages in the
available labor pool.
The Labor Department administers executive orders through its Office
of Federal Contract Compliance Programs (OFCCP). The OFCCP can terminate
federal contracts with employers who do not comply with its guidelines
and can make them ineligible for any future federal business. For instance, it
required Uniroyal, Inc., to give its female employees an estimated $18 million
in back pay to compensate for past employment discrimination. The alternative
was elimination of $36 million of existing federal contracts and ineligibility
for future federal business.
Walt Disney World has
detailed instructions
for employees on
“The Disney Look,”
including eyewear,
body piercing, earlobe
expansion, facial
hair, fingernails,
hear length, and
sideburns. The goal
is to look “friendly,
approachable, and
knowledgeable.”
The burden of proof
in a disparate impact
case requires the
employer to prove
that appearance is a
business necessity.
It is not unusual
for an employment
ad to state that
the company is an
“affirmative action/
equal opportunity
employer.” Some ads
also state: “Women
and underrepresented
minorities are
encouraged to apply.”
CHAPTER 20 Discrimination in Employment 667
The Labor Department has eased OFCCP regulations on 75 percent of
the firms that do business with the federal government. Firms with fewer than
250 employees and federal contracts of under $1 million no longer must prepare
written affirmative action plans for hiring women and minorities. The
OFCCP has also begun to limit its use of back pay awards to specific individuals
who can show an actual loss due to violation of OFCCP guidelines.
Private Employer Affirmative Action Not all affirmative action
programs arise under federal contracting rules. Courts also impose affirmative
action on private employers to overcome a history of prior discrimination.
Sometimes private employers voluntarily adopt affirmative action or agree
to it with unions. These affirmative action programs can give rise to claims
of reverse discrimination when minorities or women with lower qualifications
or less seniority than white males are given preference in employment
or training. Even though such programs are intended to remedy the effects of
present or past discrimination or other barriers to equal employment opportunity,
white males have argued that the law does not permit employers to
discriminate against them on the basis of race or sex any more than it allows
discrimination against minorities or women.
In United Steelworkers of America v. Weber, the Supreme Court ruled
legal under Title VII a voluntary affirmative action plan between an employer
and a union. The plan required that at least 50 percent of certain new work
trainees be black. The Court noted that the plan did not require that white
employees be fired or excluded altogether from advancement. It was only a
temporary measure to eliminate actual racial imbalance in the workforce.
Note the difference between taking affirmative action and setting a
“quota.” Affirmative action is taken to help correct historic workforce imbalances
and usually has target goals that are pursued for a limited time. On the
other hand, quotas set rigid standards for various groups, such as that 50 percent
of the workforce must be female. The 1991 Civil Rights Act amendments
prohibit the setting of quotas in employment.
The EEOC has issued guidelines intended to protect employers who set
up affirmative action plans. These guidelines indicate that Title VII is not violated
if an employer determines that there is a reasonable basis for concluding
that such a plan is appropriate and the employer takes reasonable affirmative
action. For example, if an employer discovers that it has a job category
where one might expect to find more women and minorities employed than
are actually in its workforce, the employer has a reasonable basis for affirmative
action.
In Adarand Constructors, Inc. v. Pena, the Supreme Court emphasized
that government-imposed affirmative action plans are subject to strict judicial
scrutiny under equal protection guaranteed by the Fifth and Fourteenth
Amendments. To be constitutional, such plans must now be supported by a
compelling interest. The Adarand decision will make it constitutionally difficult
to justify some government-imposed affirmative action plans. Much litigation
has followed that tests the constitutionality of various plans.
In California voters approved the controversial Proposition 209. In
relevant part it says that “the state shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in the operation of public employment,
Do remember that
the justification for
affirmative action
is the historic
discrimination against
protected groups.
In 2005, a federal
jury found that the
New Orleans district
attorney discriminated
against 43 white
employees by firing
them and replacing
them with African
Americans.
Voluntary affirmative
action plans by private
employers may violate
Title VII but do not
violate constitutional
equal protection
because they are not
“state action.”
668 PART 5 The Employer-Employee Relationship
public education, or public contracting.” The Supreme Court refused to hear
an appeal from a lower court decision that upheld Proposition 209 against
constitutional challenge and the assertion it violated federal civil rights law.
Although Proposition 209 does not affect private employer affirmative action
plans required by federal law, it does illustrate the current opposition that
many Americans have to affirmative action. Polls show that almost threefourths
of the general population disapproves of affirmative action. Nearly
50 percent of African Americans also oppose it.
11. SENIORITY SYSTEMS
Seniority systems give priority to those employees who have worked longer
for a particular employer or in a particular line of employment of the
employer. Employers may institute seniority systems on their own, but in a
union shop they are usually the result of collective bargaining. Their terms are
spelled out in the agreement between the company and the union. Seniority
systems often determine the calculation of vacation, pension, and other fringe
benefits. They also control many employment decisions such as the order in
which employees may choose shifts or qualify for promotions or transfers to
different jobs. They also are used to select the persons to be laid off when an
employer is reducing its labor force. As a result of seniority, the last hired are
usually the first fired. Decisions based on seniority have been challenged in
recent years as violating the laws relating to equal employment opportunity.
Challenges often arose when recently hired members of minority groups were
laid off during periods of economic downturn. Firms with successful affirmative
action programs often lost most of their minority employees.
Section 703(h) of the Civil Rights Act of 1964 provides that, in spite of
other provisions in the act, it is not an unlawful employment practice for an
employer to apply different employment standards under a bona fide (goodfaith)
seniority system if the differences are not the result of an intention to
discriminate. In Memphis Fire Dept. v. Stotts the Supreme Court ruled that
discrimination resulting from application of a seniority system was lawful
even when it affected minorities hired or promoted by affirmative action.
>> Other Statutes and Discrimination
in Employment
Although the Civil Rights Act of 1964 is the most widely used antidiscrimination
statute, there are other important antidiscrimination laws. They include
the Civil Rights Act of 1866, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, and various state and local laws. The following
sections examine these laws.
12. CIVIL RIGHTS ACT OF 1866
An important federal law that complements Title VII of the 1964 Civil Rights
Act is the Civil Rights Act of 1866. One provision of that act, known as
Section 1981 (referring to its U.S. Code designation, 42 U.S.C. §1981),
Title VII specifically
allows employers
to adopt seniority
systems even when
they may operate to
discriminate against
protected groups.
LO 20-4
CHAPTER 20 Discrimination in Employment 669
provides that “all persons . . . shall have the same right to make and enforce
contracts . . . as enjoyed by white citizens.” Since union memberships and
employment relationships involve contracts, Section 1981 bans racial discrimination
in these areas.
The courts have interpreted Section 1981 as giving a private plaintiff
most of the same protections against racial discrimination that the 1964 Civil
Rights Act provides. In addition, there are at least two advantages to the
plaintiff who files a suit based on Section 1981. First, there are no procedural
requirements for bringing such a suit, whereas there are a number of fairly
complex requirements plaintiffs must follow before bringing a private suit
under Title VII. For instance, before a plaintiff can file a lawsuit against an
employer, the plaintiff must file charges of discrimination with the EEOC
and obtain a notice of right to sue from the agency. By using Section 1981, a
plaintiff can immediately sue an employer in federal court without first going
through the EEOC.
Unlimited Damages A second advantage to Section 1981 is that
under it the courts can award unlimited compensatory and punitive damages.
There are no capped limits as there are under Title VII. As a practical matter,
parties alleging racial discrimination usually sue under both Section 1981 and
Title VII.
Note that Section 1981 does not cover discrimination based on sex,
religion, national origin, age, or handicap. As interpreted by the courts, this
section applies only to racial discrimination. However, what is race? The
Supreme Court has held that being of Arabic or Jewish ancestry constitutes
“race” as protected by Section 1981. The Court stated that when the law was
passed in the nineteenth century, the concept of race was much broader than
it is today. Race then included the descendants of a particular “family, tribe,
people, or nation.” Has the Court opened the door for a white job applicant
to sue a black employer for discrimination under Section 1981?
In Patterson v. McLean, the Supreme Court interpreted Section 1981 to
apply only to the actual hiring or firing of employees based on race. Under
this interpretation, Section 1981 did not offer protection against discrimination
such as a hostile working environment. But the Civil Rights Act
amendments of 1991 redefined Section 1981 to include protection against
discrimination in “enjoyment of all benefits, privileges, terms and conditions
of the contractual relationship.” Thus Section 1981 now also protects
against hostile environment discrimination. In 2008, the Supreme Court also
extended Section 1981 to claims of retaliation for complaining about race
discrimination.
13. DISCRIMINATION ON THE BASIS OF AGE
The workforce is “graying.” The U.S. Census Bureau projects that by 2010
over 51 percent of the workforce will be 40 years of age or older. As percentages
of older workers rise in coming years, so will the increase in complaints
about age discrimination.
Neither the Civil Rights Act nor the Equal Employment Opportunity
Act forbids discrimination based on age. However, the Age Discrimination
in Employment Act (ADEA) does. It prohibits employment discrimination
Denny’s restaurants
have been repeatedly
sued for black
customers claiming
Denny’s violated their
civil rights. Denny’s
has paid more than
$54 million to settle
the lawsuits.
Don’t forget that
Section 1981 is why
racial discrimination
is subject to damages
far in excess of the
$300,000 limit
imposed on individuals
under Title VII.
Under Section 1981,
“race” includes ethnic
or national groups.
“Age bias is still a
persistent problem
in the 21st century
workplace.”
–Spencer H. Lewis,
EEOC district director
670 PART 5 The Employer-Employee Relationship
against employees ages 40 and older, and it prohibits the mandatory retirement
of these employees. Only certain executives and high policymakers of
private companies can be forced into early retirement. Specifically, “bona
fide” executives and high-level policy makers age 65 and older who are entitled
to receive annual retirement benefits of at least $44,000 a year are subject
to mandatory retirement policies. The ADEA applies to employers with
20 or more employees. The ADEA also invalidates retirement plans and labor
contracts that violate the law.
Types of Age Discrimination The ADEA recognizes both disparate
treatment and disparate impact discrimination. The Supreme Court has
upheld a jury’s finding of disparate treatment in an age discrimination case. The
employer had said the employee “was so old [he] must have come over on the
Mayflower” and that he “was too damn old to do his job.” When the employer
later fired the employee, the jury found for the employee in spite of the employer’s
assertion that it had fired the employee for reasons other than age.
The Supreme Court has also stated that the ADEA recognizes disparate
impact in age discrimination cases. The city of Jackson, Mississippi, had
awarded pay raises to junior ranks of police officers that were substantially
higher than the pay raises given to more senior ranks. These raises had the
impact of discriminating on the basis of age. Older officers received lower pay
raises because they were mostly in senior ranks.
However, the Supreme Court stated that disparate impact alone did not
prove illegality under the ADEA. The city of Jackson was merely attempting
to match the salaries offered to junior officers in nearby cities, which was a
“reasonable factor other than age.” See Sidebar 20.10 for an example of illegal
mandatory retirement policy.
Employer Defenses in ADEA Cases The employer defenses to
age discrimination, disparate treatment, and disparate impact differ slightly
from the defense in Title VII cases.
For instance, under the ADEA age is seldom recognized as the basis for
a bona fide occupational qualification. It is recognized that as people grow
older, their physical strength, agility, reflexes, hearing, and vision tend to
diminish in quality. However, this generally provides no legal reason for discriminating
against older persons as a class. Although courts will uphold
job-related physical requirements if they apply on a case-by-case basis, they
frequently find as illegal those policies that prohibit the hiring of persons
beyond a maximum age or that establish a maximum age beyond which
employees are forced to retire for physical reasons. Thus, one court ruled that
a mandatory retirement age of 65 was illegally discriminatory as applied to
the job of district fire chief. In an exception to the general rule, one court has
ruled that age can be a BFOQ in a case where the airlines imposed a maximum
age for hiring new pilots. The court observed that the Federal Aviation
Administration mandated a retirement age for pilots.
The ADEA also does not require the employer to prove a “business necessity”
in order to successfully defend an age discrimination case of disparate
impact. All the employer need do is establish that a “reasonable factor other
than age” accounted for the discriminatory impact. Further, unlike under Title
VII, the employer’s defense of a reasonable factor other than age cannot be
Willful violations of the
ADEA allow courts to
impose double damage
awards against
employers.
CHAPTER 20 Discrimination in Employment 671
defeated by the employee’s showing of a less discriminatory way of achieving
the employer’s purpose.
Remedies under the ADEA Courts have disagreed on whether remedies
for violation of the ADEA include, in addition to reinstatement and
wages lost, damages for the psychological trauma of being fired or forced to
resign illegally. One federal district court awarded $200,000 to a victim of
age discrimination who was an inventor and scientist, for the psychological
and physical effects suffered from being forced into early retirement at age 60.
Also awarded were out-of-pocket costs of $60,000 and attorneys’ fees of
$65,000. Note that willful violations of the act permit discrimination victims
to be awarded double damages.
Note an important exception to this general rule about remedies under
the ADEA. In accordance with the Supreme Court case Kimel v. Florida Board
of Regents (2000), a plaintiff cannot recover money damages against a state
entity. State law, however, may offer additional remedies for age discrimination
perpetrated by a state.
The EEOC filed a lawsuit against Sidley Austin Brown
& Wood (“Sidley Austin”), a major Chicago-based
international law firm, alleging that it violated the
ADEA when it selected 32 “partners” for expulsion
from the firm on account of their age or forced them
to retire.
After over two years of litigation, Sidley Austin
agreed to pay $27.5 million to the former partners.
The firm also agreed to refrain from “terminating,
expelling, retiring, reducing the compensation of or
otherwise adversely changing the partnership status
of any partner because of age” or “maintaining any
formal or informal policy or practice requiring retirement
as a partner or requiring permission to continue
as a partner once the partner has reached a
certain age.”
Source: EEOC Press Releases.
>> sidebar 20.10
Did You Read the Law? A Law Firm Runs Afoul of the ADEA
14. DISCRIMINATION ON THE BASIS OF DISABILITIES
According to a Harris poll, two-thirds of all disabled Americans between the
ages of 16 and 64 are not working, even though most of them want to work.
To help those with disabilities obtain work, Congress in 1990 passed the
Americans with Disabilities Act (ADA). Thereafter, the U.S. Supreme Court
rendered a number of employer–friendly decisions restricting the scope of
the ADA’s protection. Responding to criticism that the U.S. Supreme Court
unreasonably restricted the ADA’s scope, Congress passed the ADA Amendments
Act of 2008, effective January 1, 2009 and, in 2011, the EEOC released
its final regulations. The ADA is now expanded to protect a broader group of
individuals.
To prevent disability discrimination, the ADA prohibits employers from
requiring a preemployment medical examination or asking questions about
the job applicant’s medical history. Only after a job offer has been extended
It is now easier to
establish a “disability”
within the definition
of the ADA and
employers need
to be prepared to
make reasonable
accommodations.
672 PART 5 The Employer-Employee Relationship
can the employer condition employment on the employee’s responses to job
related medical questions.
The ADA prohibits employer discrimination against job applicants or
employees based on (1) their having a disability, (2) their having a disability
in the past, or (3) their being regarded as having a disability. The ADA
defines disability as “any physical or mental impairment that substantially
limits one or more of an individual’s major life activities.” “Substantially limits”
now requires a lower degree of limitation than was previously applied by
the courts.
“Physical and mental impairment” includes physical disorders and conditions,
disease, disfigurement, amputation affecting a vital body system,
psychological disorders, mental retardation, mental illness, and learning disabilities.
An individual can demonstrate that he or she is “regarded as” having
a disability by establishing that he or she has been subjected to an action
prohibited by the ADA “because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a
major life activity.”
“Major life activities” include such activities as “caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating and working.” The definition also includes the
operation of any major body function, including functions of the immune
system, normal cell growth, and digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive functions.
The determination of whether an impairment substantially limits a major
life activity must be made without regard to the “ameliorative effects of
mitigating measures”—that is, individuals who use medications, artificial
limbs, or hearing aids qualify for protection under the ADA, even though
those measures may overcome the limiting effects of an impairment. (Ordinary
eyeglasses and contact lenses are specifically excluded from this list by
the amendments to the ADA.) The ADA also states that an individual with
an impairment that is “transitory and minor,” defined as having an actual
or expected duration of six months or less, does not fall under the ADA.
However, individuals with impairments that are episodic or in remission,
such as epilepsy, diabetes, or cancer are not barred from coverage under
the ADA.
Not included by the ADA as protected disabilities are homosexuality,
sexual behavior disorders, compulsive gambling, kleptomania, and disorders
resulting from current drug or alcohol use. The emphasis on current drug or
alcohol use means that employees who have successfully recovered or are
successfully recovering from drug or alcohol disabilities are protected from
employment discrimination.
The ADA prohibits employers of 15 or more employees (also unions with
15 or more members and employment agencies) from discriminating against
the qualified disabled with respect to hiring, advancement, termination, compensation,
training, or other terms, conditions, or privileges of employment.
Qualified disabled are defined as those with a disability who, with or without
reasonable accommodation, can perform the essential functions of a particular
job position. Employers must make reasonable accommodation only
for the qualified disabled.
The concept of
“disability” includes
mental disabilities and
diseases as well as
physical impairment.
Impairments, such
as cancer, that are
substantially limiting
when active remain
so despite being in
remission.
According to the
American Bar
Association’s Mental
& Physical Disability
Law Reporter,
employers prevailed
in 94.5 percent
of 327 disability
discrimination cases
decided in federal
courts across the
United States in 2002.
Individuals with HIV
or AIDS are protected
by the ADA. Persons
who are discriminated
against because they
are regarded as being
HIV-positive are also
protected.
CHAPTER 20 Discrimination in Employment 673
Reasonable Accommodation under the ADA The ADA does
not require employers to hire the unqualified disabled, but they must make
reasonable accommodation so qualified disabled employees can succeed in
the workplace. Reasonable accommodation is the process of adjusting a job
or work environment to fit the needs of disabled employees. It may include:
• Making the work facilities accessible and usable to disabled employees.
• Restructuring jobs or modifying work schedules.
• Purchasing or modifying necessary equipment for use by the disabled.
• Providing appropriate training materials or assistance modified to fit the
needs of disabled employees.
Note that an employer need make only reasonable accommodation for
disabled employees. The employer can plead undue hardship, defined as “an
action requiring significant difficulty or expense,” as a reason for not accommodating
the needs of disabled employees. The ADA specifies that in evaluating
undue hardship, the cost of the accommodation, the resources of the
employer, the size of the employer, and the nature of the employer’s business
be considered.
Businesses must reasonably accommodate not only employees for their
disabilities under the ADA but also customers and others who use public
facilities such as hotels, restaurants, theaters, schools (even private ones),
most places of entertainment, offices providing services, and other establishments
doing business with the public. The Supreme Court ruled that the Professional
Golf Association had to accommodate golfer Casey Martin, who
suffered a walking disability because of a circulatory disorder, by allowing
him to use a golf cart in PGA tournaments. The Court held (1) that PGA tournaments
were open to any member of the public who paid a qualifying fee
and participated successfully in a qualifying tournament and (2) that accommodating
Casey Martin by allowing him to use a golf cart while other golfers
walked a tournament course did not “fundamentally alter the nature” of PGA
tournament events.
The ADA prohibits discrimination in employment
and in public accommodations.
Maurizio Antoninetti, a patron of the Chipotle
Mexican Grill, complained that a 45-inch
barrier at Chipotle restaurants blocked his view of the
counter, preventing him from inspecting each dish,
choosing his order, and watching it be prepared.
Chipotle argued that it accommodated the
needs of customers in wheelchairs by bringing them
spoonfuls of their preferred dish for inspection before
ordering.
This fell short of being adequate. The Ninth Circuit
Court of Appeals held that the barrier “subjects
disabled customers to a disadvantage that non-disabled
customers do not suffer.” The U.S. Supreme
Court denied certiorari. Chipotle is retrofitting its
restaurants with new counters to eliminate concerns
regarding wheelchair accessibility.
>> sidebar 20.11
Chipotle Mexican Grill: Must Accommodate Disabled Patrons
674 PART 5 The Employer-Employee Relationship
Remedies under the ADA Remedies under the ADA are basically
the same remedies available under the Civil Rights Act, including hiring,
reinstatement, back pay, injunctive relief, and compensatory and punitive
damages. As with the Civil Rights Act, a plaintiff must first seek administration
remedies with the EEOC. Compensatory and punitive damages are not
available for policies that mere have disparate impact. They are available
for intentional discrimination and for other employer actions such as failing
to make reasonable accommodation for known job applicant or employee
disabilities.
The ADA replaces the Rehabilitation Act of 1973 as the primary federal
law protecting the disabled. However, the Rehabilitation Act, which applies
only to employers doing business with the government under a federal contract
for $2,500 or more, still requires that such employers have a qualified
affirmative action program for hiring and promoting the disabled.
15. GENETIC DISCRIMINATION
The Genetic Information Nondiscrimination Act (GINA) , effective November
2009, prohibits covered employers from firing, refusing to hire, or
otherwise discriminating against individuals on the basis of their genetic
information, and from discriminating against employees and applicants on
the basis of a family member’s genetic information. Genetic information
includes information about an individual’s genetic tests; genetic information
about genetic tests of an individual’s family members; information about
the manifestation of a disease or disorder in an individual’s family history;
request for or receipt of genetic services; and genetic information of a fetus
and the genetic information of any embryo held by the individual or a family
member.
“Covered employers” is defined as all employers subject to Title VII. The
act further prohibits the limitation, segregation, or classification of employees
in such a way “that would deprive or tend to deprive any employee of
employment opportunities or otherwise adversely affect the status of the
employee as an employee, because of genetic information with respect to
the employee.”
Under GINA, it is unlawful for an employer to “request, require, or purchase
genetic information with respect to an employee or the family member
of an employee,” with limited exceptions.
GINA also has ramifications for group health plans and health insurance
companies. Although many states have already enacted similar legislation,
GINA establishes a federal baseline for protection against employment discrimination
based on genetic information.
In November 2010, the EEOC published final regulations implementing
Title II of GINA, which protects applicants for employment, current employees,
former employees, apprentices, trainees and labor organization members
against discrimination based on their genetic information. The EEOC regulations,
which became effective on January 11, 2011, are intended to:
• Prohibit the use of genetic information in employment decisions
• Restrict employers from requesting, requiring, or purchasing genetic
information
The remedies under
the ADA are basically
the same remedies
available under Title VII.
CHAPTER 20 Discrimination in Employment 675
• Require that genetic information be maintained as a confidential medical
records and place strict limits on the disclosure of genetic information
• Provide remedies for individuals whose genetic information is acquired,
used or disclosed in violation of GINA
Tests that are considered to be “genetic tests” under GINA include:
• Tests that might determine if a person is genetically disposed to breast
cancer, colon cancer or Huntington’s Disease
• Amniocentesis and newborn screening
• Carrier screening for cystic fibrosis, sickle cell anemia, spinal muscular
dystrophy, and fragile X syndrome
• DNA testing to detect genetic markers associated with ancestry
information
Employers should incorporate the following language
into FMLA and other forms to establish a defense to
any claim that it wrongfully obtained genetic information
in response to an otherwise lawful request for
medical information:
The Genetic Information Nondiscrimination Act of
2008 (GINA) prohibits employers and other entities
covered by GINA Title II from requesting or requiring
genetic information of an individual or family member
of the individual, except as specifically allowed
by this law. To comply with this law, we are asking
that you not provide any genetic information when
responding to this request for medical information.
‘Genetic information’ as defined by GINA, includes an
individual’s family medical history, the results of an
individual’s or family member’s genetic tests, the fact
that an individual or an individual’s family member
sought or received genetic services, and genetic information
of a fetus carried by an individual or an individual’s
family member or an embryo lawfully held
by an individual or family member receiving assistive
reproductive services.
>> sidebar 20.12
Protecting Against Inadvertent Acquisition of Medical Information in Violation of GINA
16. DISCRIMINATION IN GETTING AND KEEPING
HEALTH INSURANCE
A new act prohibits group health plans and health insurance issuers from discriminating
against employees based on certain factors. The Health Insurance
Portability and Accountability Act (HIPAA) forbids group plans and issuers
from excluding an employee from insurance coverage or requiring different
premiums based on the employee’s health status, medical condition or history,
genetic information, or disability.
The act primarily prevents discrimination against individual employees
in small businesses. Before the act, individual employees with an illness like
cancer or a genetic condition like sickle cell anemia were sometimes denied
coverage in a new health plan. The small size of the plan deterred insurers
from covering individual employees whose medical condition might produce
676 PART 5 The Employer-Employee Relationship
large claims. The act denies insurers the right to discriminate on this basis. It
also guarantees that insured employees who leave their old employer and join
a new employer are not denied health insurance. As of this writing, the exact
meanings of many HIPAA provisions are still unclear.
Note, however, that the act only applies to prevent discrimination in
group health insurance plans. It does not apply to individuals who purchase
individual health insurance. Congress is considering legislation to extend
HIPAA’s antidiscrimination provisions to individual insurance. Behind
HIPAA and proposals for new legislation is the concern that new forms of
genetic testing will allow insurers and employers to identify and discriminate
against individuals who may in the future develop certain medical
conditions.
17. OTHER FEDERAL LEGISLATION
Other federal legislation dealing with employment discrimination includes
the National Labor Relations Act of 1936. The National Labor Relations
Board has ruled that appeals to racial prejudice in a collective bargaining representation
election constitute an unfair labor practice. The NLRB has also
revoked the certification of unions that practice discriminatory admission or
representation policies. Additionally, employers have an obligation to bargain
with certified unions over matters of employment discrimination. Such
matters are considered “terms and conditions of employment” and are thus
mandatory bargaining issues.
Finally, various other federal agencies may prohibit discriminatory
employment practices under their authorizing statutes. The Federal Communications
Commission, for example, has prohibited employment discrimination
by its licensees (radio and TV stations) and has required the submission
of affirmative action plans as a condition of license renewal.
18. STATE ANTIDISCRIMINATION LAWS
Federal laws concerning equal employment opportunity specifically permit
state laws imposing additional duties and liabilities. In recent years,
fair employment practices legislation has been introduced and passed by
many state legislatures. When the federal Equal Employment Opportunity
Act became effective, 40 states had such laws, but their provisions varied
considerably. A typical state act makes it an unfair employment practice for
any employer to refuse to hire or otherwise discriminate against any individual
because of his or her race, color, religion, national origin, or ancestry.
If employment agencies or labor organizations discriminate against an individual
in any way because of one of these reasons, they are also guilty of an
unfair employment practice. State acts usually set up an administrative body,
generally known as the Fair Employment Practices Commission, which has
the power to make rules and regulations and hear and decide charges of violations
filed by complainants.
State antidiscrimination laws sometimes protect categories of persons not
protected by federal law. For example, some protect persons from employment
discrimination based on weight.
LO 20-5
State antidiscrimination
laws may permit
discrimination lawsuits
against employers
of fewer than 15
employees, the
minimum number for
a lawsuit under federal
Title VII.
According to a study
by the Rudd Center
at Yale University,
discrimination against
overweight people,
particularly women, is
as common as racial
discrimination.
CHAPTER 20 Discrimination in Employment 677
As discussed earlier, state and local law may prohibit sexual orientation
discrimination in the workplace (see Sidebar 20.9). Other state
and local laws prohibit employment discrimination based on weight
(e.g., Michigan; Santa Cruz and San Francisco, California; and Washington
DC). Michigan’s antidiscrimination discrimination law also includes height
and weight.
State law may also supplement Title VII, offering remedies to victims of
sexual harassment. In New York, for example, former Knicks team executive
Anucha Browne Sanders sued the owner of the New York Knicks and Madison
Square Garden for discrimination using Title VII, as well as New York
State Human Rights Law, New York Executive Law §296, and the Administrative
Code of the City of New York §8-107, which prohibit unlawful discriminatory
practices. After hearing testimony about crude racial and sexual
insults and unwanted advances from coach Isiah Thomas, a jury awarded
Sanders $11.6 million.
As indicated in Chapter 10 on torts, discrimination plaintiffs can also
sue employers under various state common law causes of action, like negligence,
assault, battery, intentional infliction of mental distress, invasion
of privacy, and defamation. Under common law, plaintiffs may be able to
receive unlimited compensatory and punitive damages, and greater numbers
of plaintiffs seem to be suing under common law. In Las Vegas a jury
awarded over $5 million against the Hilton Hotel and in favor of a plaintiff
who had been sexually groped at an aviators’ Tailhook convention. The jury
determined that the hotel had been negligent in failing to provide adequate
security.
19. TRENDS IN EMPLOYMENT DISCRIMINATION
AND LITIGATION
Several current trends in employment discrimination and litigation will
require close attention from managers in the coming years. These trends highlight
the fact that the workforce is increasingly diverse and that new managers
must be alert to the full impact of antidiscrimination laws. They also show
the effects of new technology.
Surge in Private Lawsuits Private lawsuits alleging discrimination
in employment surged in recent years, more than tripling. Several factors
account for the rapid increase. The 1991 revision of the Civil Rights
Act to support punitive and compensatory damages has encouraged
employees to sue their employers. The passage of the Americans with Disabilities
Act has led to a new area of discrimination lawsuits, and some
50 million Americans, according to a conservative estimate, may legally
qualify as disabled. Finally, as the large generation of baby boomers ages
in the workforce, more lawsuits arise under the Age Discrimination in
Employment Act. In the new century, these trends continue, making it ever
more important for business managers to understand the law prohibiting
discrimination in employment. See Sidebar 20.13 for an interesting study
about female CEOs.
Do remember
that discrimination
lawsuits can be based
on multiple causes
of action, including
common law ones.
678 PART 5 The Employer-Employee Relationship
The clear answer is, unfortunately, “Yes” according to
a study by Lyda Bigelow and Judi McLean Parks at
the Olin School of Business, Washington University
in St. Louis.
Bigelow and McLean Parks created a prospectus
for a fictitious company about to go public, along with
a set of qualifications for the company’s CEO. To determine
if gender played a role in the decision, they gave
half of the potential investors information with a female
CEO and the other half a male CEO—the qualifications,
however, were the same. Only the name and gender
were different. They then asked individuals with a background
in finance to consider investing in the company.
The researchers found that the CEO’s gender
clearly affected potential investors. For example, the
study showed that the participants were inclined to
invest up to three times more with the company with
the male CEO. Executive compensation was also an
issue. The participants in the study indicated that
they would pay the female CEO 14 percent less than
her male counterpart.
Perhaps even more disturbing, female CEOs were
evaluated more harshly in other very subjective categories.
Although the only difference given in the study was
gender, participants deemed female CEOs as less competent
leaders in a variety of realms, including handling a
crisis and dealing with the company’s board of directors.
Overall, the study showed that participants
viewed male CEOs as more favorable representatives
of the company in the public eye.
Source: U.S. News and World Report, www.usnews.com/usnews/
biztech/articles/060508/8investment_bias.htm.
>> sidebar 20.13
Is It Important to Investors If the CEO Is a Man or a Woman?
Arbitration in Employment Discrimination Disputes Arbitration
is usually cheaper, quicker, and less public than litigation. Accustomed
to using arbitration clauses in contracts with customers and suppliers, many
employers also have begun placing arbitration clauses in employment contracts
and personnel handbooks. These clauses require arbitration in employment
discrimination disputes and with other employment controversies.
The Federal Arbitration Act (see Chapter 5) prefers arbitration over litigation,
but that act may not apply to certain employment contracts. The
EEOC has issued a policy statement concluding that “agreements that mandate
binding arbitration of discrimination claims as a condition of employment
are contrary to the fundamental principles” of antidiscrimination laws.
However, without specifically discussing the EEOC’s policy statement,
the Supreme Court has upheld arbitration clauses in certain employment discrimination
cases. In Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001),
the Supreme Court decided that the Federal Arbitration Act did not prohibit
enforceability of the following arbitration provision, which an employee had
signed in his job application:
I agree that I will settle any and all previously unasserted claims, disputes or controversies
arising out of or relating to my application or candidacy for employment,
employment and/or cessation of employment with Circuit City, exclusively by final
and binding arbitration before a neutral arbitrator. By way of example only, such
claims include claims under federal, state, and local statutory or common law, such
as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, as amended, including the amendments of the Civil Rights Act of 1991, the
Americans with Disabilities Act, the law of contract and the law of tort.
Congress may ultimately decide whether binding arbitration as a condition
of working for an employer is an acceptable part of the employment
CHAPTER 20 Discrimination in Employment 679
contract. In the meantime, employers who wish to have employment disputes,
including discrimination disputes, arbitrated should consider the following:
• Paying employees separately from the employment contract to sign arbitration
agreements.
• Ensuring that arbitration agreements allow for the same range of remedies
contained in the antidiscrimination laws.
• Allowing limited discovery in arbitration, which traditionally has no discovery
process.
• Permitting employees to participate in selecting neutral, knowledgeable
professional arbitrators instead of using an industry arbitration panel.
• Not requiring the employee to pay arbitration fees and costs.
These steps should go far toward eliminating many of the objections to the
arbitration of employment discrimination disputes.
Proper arbitration agreements should continue to be considered as a business
response to discrimination in employment disputes. Interestingly, at least
one study has found that employees alleging discrimination win more often
before arbitration panels than before juries and only two-thirds of the time.
Insuring against Employment Discrimination Claims
Employers commonly insure against many potential liabilities. However, the
general liability policies carried by many businesses, which cover bodily injury
and property damage, often do not insure against intentional torts. Intent is
a key element in many employment discrimination claims. In addition, general
policies may not cover the back pay or damages for mental anguish that
many discrimination plaintiffs seek. As a result, employers are beginning to
ask for and get employment practices liability insurance, a type of insurance
aimed specifically at discrimination claims.
Even with the availability of the new insurance, not all types of employment
discrimination can be insured against in every state. States like New
York and California do not permit companies to insure against “intentional
acts.” Disparate treatment discrimination is an example of such an act. Similarly,
some states do not permit companies to insure against punitive damages
that can arise in intentional violations of Title VII. Managers should also be
aware that what the new policies cover and what they exclude vary widely.
Insurance policies are
more likely to insure
against disparate
impact claims rather
than disparate
treatment claims. Do
you understand why?
Unless bona fide occupational qualifications or business
necessity can be proved, federal law prohibits
recruiting, hiring, promoting, and other employment
practices that involve disparate treatment or produce
a disparate impact on the basis of:
Race or color.
National origin.
Religion.
Sex.
Test scores and educational requirements.
Height and weight.
Appearance.
Age.
Disabilities.
concept >> summary
Illegal Employment Practices
680
>> Key Terms
Affirmative action 666
Bona fide occupational
qualifications (BFOQs) 646
Business necessity defense 649
Comparable worth 662
Disability 672
Disparate impact 648
Disparate treatment 648
Genetic Information
Nondiscrimination Act
(GINA) 674
Hostile work environment 659
Qualified disabled 672
Reasonable
accommodation 673
Retaliation 649
Reverse discrimination 667
Section 1981 668
Seniority system 668
Sexual harassment 659
>> Review Questions and Problems
The Civil Rights Act of 1964
1. General Provisions
Martel, a competent male secretary to the president of ICU, was fired because the new president
of the company believed it is more appropriate to have a female secretary.
(a) Has a violation of the law occurred?
(b) Assume that a violation of the law has occurred and Martel decided to take an extended
vacation after he was fired. Upon his return seven months later, Martel filed suit in federal
district court against ICU, charging illegal discrimination under the Civil Rights Act of
1964. What remedies will be available to him under the act?
2. Enforcement Procedures
Muscles-Are-You, Inc., a bodybuilding spa targeted primarily toward male bodybuilders,
refused to hire a woman for the position of executive director. The spa’s management stated
that the executive director must have a “macho” image to relate well with the spa’s customers.
Discuss whether it is likely that the spa has violated Title VII.
3. Discrimination on the Basis of Race or Color
Does Title VII prohibit employment discrimination against members of all races? Explain.
4. Discrimination on the Basis of National Origin
Ace Tennis Co. hires only employees who speak English. Does this policy illegally discriminate
against Hispanic job applicants who speak only Spanish? Discuss.
5. Discrimination on the Basis of Religion
Ortega, an employee of ABC, Inc., recently joined a church that forbids working on Saturdays,
Sundays, and Mondays. Ortega requested that his employer change his work schedule from
eight-hour days, Monday through Friday, to ten-hour days, Tuesday through Friday. Ortega’s
request was refused because the employer is in operation only eight hours per day, five days
a week. After a month during which Ortega failed to work on Mondays, he was fired. The
employer stated that “only a full-time employee would be acceptable” for Ortega’s position.
What are Ortega’s legal rights, if any?
6. Discrimination on the Basis of Sex
A male supervisor at Star Company made repeated offensive sexual remarks to female employees.
The employees complained to higher management, which ignored the complaints. If the company
does not discharge or otherwise penalize the employee, has it violated Title VII? Discuss.
Employment Practices That May Be Challenged
7. Questionnaires, Interviews, Testing, and Educational Requirements
Jennings Company, which manufactures sophisticated electronic equipment, hires its assembly
employees on the basis of applicants’ scores on a standardized mathematics aptitude test. It
has been shown that those who score higher on the test almost always perform better on the
job. However, it has also been demonstrated that the use of the test in hiring employees has the
681
effect of excluding African Americans and other minority groups. Is this practice of the Jennings
Company prohibited by the Civil Rights Act of 1964?
8. Height and Weight Requirements
(a) An employer hires job applicants to wait tables in the Executive Heights Restaurant only if
they are over 6 feet tall. Does this policy likely violate Title VII? Explain.
(b) If a class of job applicants under 6 feet sues the employer, will it likely get compensatory and
punitive damages? Explain.
9. Appearance Requirements
Silicon Products requires all male employees to wear their hair “off the collar.” Does this policy
violate Title VII? Discuss.
10. Affirmative Action Programs and Reverse Discrimination
Kartel, Inc., found that historically African Americans had been significantly underrepresented
in its workforce. It decided to remedy the situation and place African Americans in 50 percent
of all new job openings. Discuss the legality of Kartel’s action.
11. Seniority Systems
Are seniority systems in the workplace legal under Title VII if in fact they discriminate on the
basis of gender or race? Explain.
Other Statutes and Discrimination in Employment
12. Civil Rights Act of 1866
When is it an advantage for a plaintiff to use Section 1981 as the basis for discrimination litigation
as contrasted with using Title VII?
13. Discrimination on the Basis of Age
Cantrell, the controller of Xylec’s, Inc., was forced to retire at age 58 due to a general company
policy. Although Cantrell has a company pension of $50,000 per year, she believes that her
lifestyle will soon be hampered due to inflation, since the pension provides for no cost-of-living
increases. What are Cantrell’s rights, if any?
14. Discrimination on the Basis of Disabilities
Ralph is a systems analyst for the Silicon Corporation, a major defense contractor. When
Ralph’s co-workers learn that he has AIDS, six of them quit work immediately. Fearing that
additional resignations will delay production, the company discharges Ralph. Discuss whether
or not the company acted legally.
15. Genetic Discrimination
Amy learns that she has the “breast cancer gene.” Devastated, she shares the news with her
supervisor. A few days later, Amy receives a harsh employment evaluation—the first of her
career—criticizing her handling of a client matter. Two weeks later, Amy is fired. Amy cannot
understand how she went from being a model employee with strong performance reviews to
unemployed in such a short time. Does she have any claim against her employer?
16. Discrimination in Getting and Keeping Health Insurance
Why does Title VII not apply to preventing discrimination in the getting and keeping of health
insurance?
17. Other Federal Legislation
Do employers have an obligation to negotiate with groups of employees over issues of discrimination?
Explain.
18. State Antidiscrimination Laws
Explain how state antidiscrimination laws protect workers in situations where federal laws do not.
19. Trends in Employment Discrimination and Litigation
Can arbitration agreements be used to keep employees from litigating discrimination issues?
Discuss.
682
1. When Maria Suarez got her new job, she was happy. As an oil rigger, she would
make enough money to support herself and her two children. But after a week
of working with a primarily male crew, her happiness was gone. Her co-workers
were the reason. At first the men made unwelcome comments about her body.
Then sexual graffiti mentioning her name appeared. When she came to work one
morning a nude female picture was pinned to one of the rigs. Her name had been
scrawled across the bottom. Maria complained to the crew foreman, who referred
her to the site manager. “Let’s ignore it for a while,” he told Maria. “It’s just good
fun. The men are testing you. You’ve got to fit in.”
What are Maria’s legal rights in this situation?
What would you do if you were the site manager?
Do you think Maria should just try to “fit in”?
2. Delivery Quik, Inc., delivers packages to small retail stores from a central
distribution point in a major metropolitan area. Drivers both load and unload their
packages, some of which weigh close to 100 pounds. Although equipment helps
the drivers in their tasks, there is still considerable lifting necessary. Delivery Quik
has a policy that drivers must stand at least 6 feet tall and weigh no less than 180
pounds. All drivers must retire at age 45 and have at least a high school education.
Does the height, weight, age, and education policy discriminate illegally?
How would you change the policy?
If your customers prefer male drivers, does their preference mean that the
company can hire only males as drivers?
business >> discussions
