Chapter
13
Employment Law II:
Discrimination
Key Points
• Identify legal provisions prohibiting discrimination and
the available remedies
• Know elements of disparate treatment and disparate
impact claims and available defenses
• Understand the additional provisions applicable to sex, or
gender, discrimination
• Understand the concept of affirmative action
Anti-Discrimination Laws
The Constitution: Discrimination by government prohibited by the Equal
Protection and Due Process Clauses of the 5th and 14th Amendments.
Civil Rights Act of 1964: Title VII forbids discrimination in employment because
of race, color, religion, sex or national origin. It applies to private-sector
employers with 15 or more employees, state and local governments and most of
the federal government. Private clubs are exempt.
Other Provisions:
 The Civil Rights Act of 1866 forbids all forms of racial bias arising out of
contract.
 The Civil Rights Act of 1991 specifies that, in general, Title VII and the
ADA are to apply to U.S. citizens working abroad for American-owned or
controlled companies.
 Americans with Disabilities Act (ADA)
 Equal Pay Act
 Age Discrimination in Employment Act
 Executive Order 11246 forbids discrimination by firms doing business with
the federal government and, in some instances, requires affirmative action.
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Civil Rights Enforcement
Equal Employment Opportunity Commission (EEOC): The federal agency
responsible for enforcing federal laws forbidding discrimination in
employment. The EEOC investigates discrimination claims; attempts to
resolve disputes via mediation and conciliation; and, if necessary,
engages in litigation. Approximately 80,000 complaints are filed
annually with the EEOC.
Litigation: After investigating, the EEOC may file a civil suit or issue a
right-to-sue letter to the grievant. The EEOC filed only 291 suits in
2000. Many disputes are resolved in arbitration. When litigated,
plaintiffs prevail in only about 30% of the suits.
Remedies: May include job reinstatement, back pay, seniority relief,
compensatory damages, and punitive damages in some instances.
Additionally, the EEOC often negotiates consent decrees that may
require new procedures to correct wrongful practices.
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Employment Discrimination Analysis:
Disparate Treatment
Disparate treatment exists where an employer intentionally treats some people less
favorably than others because of their race, color, religion, sex or national
origin.
1. Plaintiff’s (Employee’s) Prima Facie Case:
 Plaintiff belongs to a protected class.
 Plaintiff applied for a job for which the defendant was seeking
applicants.
 Plaintiff was qualified for the job.
 Plaintiff was denied the job.
 The position remained open and the employer continued to seek
applicants.
2. Defendant’s (Employer’s) Case: If plaintiff succeeds with the above,
defendant must “articulate some legitimate, nondiscriminatory reason for
the employee’s rejection” (for example, greater work experience).
3. Plaintiff’s Response: Plaintiff must then show that the reason offered by
defendant was false and merely a pretext to hide discrimination.
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Employment Discrimination Analysis:
Disparate Impact
Disparate impact exists where an employer uses legitimate employment
standards that, despite their apparent neutrality, work a heavier burden
on a protected class than on other employees.
1. Plaintiff’s (Employee’s) Case:
 Plaintiff must identify the specific employment practice or policy that
caused the alleged disparate impact.
 Plaintiff must prove (often statistically) that the protected class is
suffering an adverse or disproportionate impact caused by that
employment practice or policy.
Defendant’s (Employer’s) Case: Assuming plaintiff succeeds,
defendant must demonstrate that the employment practice is both
job related and consistent with business necessity.
3. Plaintiff’s Response: Plaintiff must demonstrate that an alternative,
less discriminatory business practice is available and employer
refuses to adopt it.
Example: Griggs v. Duke Power Co. (S. Ct. 1971)
2.
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Statutory Defenses
Seniority: An employer may lawfully apply different standards of
compensation or different conditions of employment pursuant to a bona
fide (good faith) seniority system, provided such differences are not the
product of an intent to discriminate. Further, when layoffs are necessary
the legal system may not protect newly hired workers by interfering with
legitimate seniority systems.
Employee Testing: Only job-related tests supported by detailed,
statistical evidence as to their scientific validity are lawful.
The Four-Fifths Rule: An employer will generally be presumed in
noncompliance if the selection rate for any protected class is less than
80% of the rate for the group with the highest rate, unless the employer
can prove the job relatedness of the employment practice and
demonstrate that a good faith effort was made to find a selection
procedure that lessened the disparate impact on protected classes.
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National Origin and Racial Harassment
Title VII forbids employment discrimination, including
harassment, based on national origin.
The Supreme Court has held that certain phrases in the
employment setting cannot be excused as mere rudeness and
may, in the totality of the circumstances, add up to
discrimination so severe that it creates an abusive work
environment. Other illegal harassment may include use of a
hangman’s noose or use of code phrases (e.g., “Your type,”
“You people don’t understand…”)
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Sex Discrimination and the Bona Fide
Occupational Qualification (BFOQ)
 Disparate treatment or impact support a sex discrimination
claim.
 An employer can prevail by establishing a BFOQ defense,
including:
1. Proof of a nexus between the classification and job
performance, and
2. “Necessity” of the classification for successful performance,
and
3. That the job performance affected by the classification is the
“essence” of the employer’s business operation.
 Example: Pietras v. Farmingville Fire District (2d Cir.
1999)
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Equal Pay
The Equal Pay Act of 1963 forbids discrimination on the basis of sex. In
general, women must receive the same rate for equal work on jobs
requiring equal skill, effort and responsibility and performed under
similar working conditions.
Unequal wage is lawful if paid pursuant to:
A seniority system,
A merit system,
A system that measures earnings by quantity or quality of production,
or
A differential based on “any … factor other than sex.”
Lowering the pay of the favored sex to create equal pay violates the Act.
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The Law of Sexual Harassment
Sexual harassment consists of unwelcome sexual advances, requests for sexual
favors and other verbal or physical conduct of a sexual nature.
1. Plaintiff’s (Employee’s) Case: Plaintiff must prove—



2.
Unwanted harassment,
Harassment based on sex and
Harassment that affected a term, condition or privilege of employment,
sufficiently severe and pervasive as to unreasonably interfere with work
performance or create a hostile, abusive work environment.
Defendant (Employer) is liable:

If wrongdoer was a coworker and employer unreasonably failed to prevent or
remedy the harassment where management knew or should have known about it.
 If wrongdoer was a supervisor and employee suffered a tangible employment
action (e.g., demotion) because of the harassment.
 If wrongdoer was supervisor but no tangible employment action was suffered,
employer can avoid liability by proving both that it exercised reasonable care to
prevent and correct the harassment promptly and that employee unreasonably
failed to take advantage of those measures.
Example: EEOC v. R&R Ventures, d/b/a Taco Bell (4th Cir. 2001)
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Affirmative Action
Affirmative action is a means of remedying past discriminatory wrongs and
preventing future discriminatory wrongs. An affirmative action plan consciously
seeks out minorities for hiring and promotion opportunities and often employs
goals and timetables to measure progress toward a workforce representative of
the qualified labor pool.
In United Steelworkers of America v. Weber (S. Ct. 1979), the Court upheld
affirmative action where:
 It was part of a plan.
 The plan was designed to “open employment opportunities for Negroes in
occupations which have been traditionally closed to them.”
 The plan was temporary.
 The plan did not unnecessarily harm the rights of white employees.
From the late ’80s to present, a series of judicial decisions have raised great
uncertainty about both the legality and wisdom of affirmative action.
Example: Reynolds v. City of Chicago (7th Cir. 2002)
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Religious Discrimination
Title VII forbids discrimination on the basis of religion. That
religious faith must be sincere and meaningful, not merely a
sham to achieve advantages.
Employers must take reasonable steps to prevent and remedy
religious harassment. But a employer need only bear a de
minimus cost to accommodate religious differences, more
than that is considered an undue hardship for employers.
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Americans with Disabilities Act (ADA)
The ADA forbids discrimination in employment, public accommodations, public
services, transportation and telecommunications against the disabled. Small
businesses with fewer than 15 employees are exempted from the employment
portions of the ADA.
The Rehabilitation Act of 1973 protects disabled workers in the public sector.
A disabled person:
1. Has a physical or mental impairment that substantially limits one or more
major life activities,
2. Has a record of such an impairment or
3. Is regarded as having such an impairment.
An employer may not discriminate against a qualified person with a disability. A
qualified person is one who can perform the essential functions of the job.
The Act requires employers to make reasonable accommodations for disabled
employees and applicants.
Example: Toyota v. Ella Williams (S. Ct. 2002)
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Age Discrimination in Employment Act
(ADEA)
Age discrimination under the ADEA is established under disparate
treatment analysis (intentional discrimination), but to date the federal
courts are split on the question of applying disparate impact reasoning.
An ADEA plaintiff must show that he or she is 40 or older, qualified for
the position, and not hired or was terminated or demoted while a
younger person received more favorable treatment.
The employer may defend by showing that the termination was based on
a legitimate, nondiscriminatory reason or that age is a bona fide
occupational qualification (BFOQ)—that is, that only employees of a
certain age can safely and/or efficiently complete the work in question.
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