Employment Regulation in the
Workplace: Basic Compliance
for Managers
by
Robinson, Franklin, and Wayland
Chapter 3
Intentional Discrimination:
Disparate Treatment
Fall 2009
Two Types of Discrimination


Disparate Treatment (intentional
discrimination).
 Different standards for different
individuals.
Disparate Impact (unintentional
discrimination).
 The same standards with different
outcomes for different groups.
Two Methods of Establishing
Disparate Treatment

A complaining party can prove
discrimination in one of two ways:



He can meet his burden of proof by offering
direct proof of discriminatory intent or,
he can rely on the burden shifting method
of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792.
The latter is based upon circumstantial
evidence.
Discrimination Prohibited in
Advertising Openings

§704 (b) It shall be an unlawful employment practice for
an employer, labor organization, or employment agency to
print or publish or cause to be printed or published any
notice or advertisement relating to employment by such an
employer or membership in or any classification or referral
for employment by such a labor organization, or relating to
any classification or referral for employment by such an
employment agency, indicating any preference, limitation,
specification, or discrimination, based on race, color,
religion, sex, or national origin, except that such a notice
or advertisement may indicate a preference, limitation,
specification, or discrimination based on religion, sex, or
national origin when religion, sex, or national origin is a
bona fide occupational qualification for employment.
Three Stages of a Disparate
Treatment Case
(1). Prima Facie Case (shifts the
burden to the employer)
(2). Employer’s Rebuttal (there is
only a Title VII violation if the
employer’s rebuttal fails)
(3). Complaining Party's Rebuttal
Prima Facie Case (Selection)
(1) Complaining party is a member of a
protected class.
(2) Complaining party was qualified &
applied for (or held) the job in question.
(3) Complaining party was subjected to
an adverse action (not hired or
promoted).
(4) Similarly situated individuals not from
the CP’s protected class (someone with
fewer or equal qualifications) were not
subjected to the adverse action.
Prima Facie Case
(Terminations)
(1) Complaining party was a member
of a protected class,
(2) Complaining party was qualified for
and held the position she lost,
(3) Complaining party suffered an
adverse employment action,
(4)Other similarly situated individuals
not from the complaining party’s
class were more favorably treated.
Whites are a Protected Class
Title VII is not designed to
disadvantage a white
complaining party.
 Whites are entitled to the same
protection under Title VII as any
minority plaintiff. McDonald v.
Santa Fe Trail Transportation Co.,
427 U.S. 273, 280 (1976).

Disparate Treatment:
Employer’s Rebuttal
(1) The respondent's actions are based on
legitimate nondiscriminatory reasons.
Once litigation begins, state your reason
for nonselection and stick with it.
(2) The respondent's actions are based on a
bona fide occupational qualification
(BFOQ).
Legitimate
Nondiscriminatory Reasons

The decision to hire, fire,
promote, or layoff any employee
was based on sound business
rationale and not the individual’s
protected class status.

Bona Fide Seniority Systems - to be
defensible, the seniority system must be
consistently applied to all affected
employees, and it was not adopted for
discriminatory purposes.
Legitimate
Nondiscriminatory Reasons



Merit - to be defensible, it must be based
on objective performance, not subjective,
criteria.
Quality of Production - to be defensible,
It must be based on clearly defined,
measurable and disseminated standards.
Quantity of Production - like quality,
quantity must also be based on clearly
defined, measurable and disseminated
standards.
Legitimate
Nondiscriminatory Reasons




Job-Related Experience - to be defensible,
the experience should enhance job
performance.
Job-Related Training - to be defensible, the
training should be applicable to the
incumbent's current job or a future job.
Job-Related Education - to be defensible,
the education should be applicable to the
incumbent's current job or a future job.
In all cases, this must be documented!

Source: EEOC (1995) Theories of Discrimination: Intentional and
Unintentional Discrimination. p. A22
Disparate Treatment: Fewer
or Equal Qualifications


Caveat: Remember that juries too often
act as ad hoc personnel review
committees.
Juries do not always weigh evidence in a
rational manner. Evidence and proofs
are often ignored.
Source: Millbrook v. IBP, Inc., 280 F.3d 1169 (7th
Cir. 2002).
Bona Fide Occupational
Qualification

BFOQs are specifically authorized by §
703(e) of the Civil Rights Act of 1964:

[I]t shall not be an unlawful employment
practice for an employer to hire and employ
employees ... on the basis of [their] religion, sex,
or national origin in those certain instances
where religion, sex, or national origin is a bona
fide occupational qualification reasonably
necessary to the normal operation of that
particular business or enterprise.

(42 U.S.C. 2000e-2(e)(1))
Bona Fide Occupational
Qualification
 There


are no BFOQs for race.
King v. Bd. Of Regents Univ. of Wisc.
System, 898 F.2d 533, 537 (7th Cir. 1990).
Malhorta v. Cotter & Co. 885 F.2d 1305,
1308 (7th Cir. 1989).

Haynes v. Shelby Memorial Hospital, 726
F.2d 1543,1547 (11th Cir. 1984).

Miller v. Texas Bd. Of Barber Examiners, 615
F.2d 650, 655 (5th Cir. 1980).
Bona Fide Occupational
Qualification
 BFOQs
are permitted only
for:
 Sex
 Religion
 National Origin
Bona Fide Occupational
Qualification

In determining whether or not a BFOQ
can be used, two criteria should be
considered:
(1) The essence of the business operation
would be undermined by not hiring
members of one protected class.
(2) There is a factual basis for believing that
all, or substantially all, members of a class
cannot perform the duties of the job in
question.
Disparate Treatment:
Complaining Party's Rebuttal

The respondent's legitimate
nondiscriminatory reasons is a
pretext.




False information.
Similarly situated employees of a
different class were treated
differently.
Evidence of bias.
Statistical evidence.
Remedies under Disparate
Treatment (Traditional)







Reinstatement
Back pay
Front Pay
Seniority Awards
Attorney's Fees
Court Costs
Injunctive Relief (court order to cease and
desist unlawful practices)

Declaratory Relief
Additional Remedies under
Disparate Treatment

In instances in which it can be
demonstrated that, “... the respondent
engaged in a discriminatory practice
or discriminatory practices with malice
or with reckless indifference to the
federally protected rights of an
aggrieved individual.”
Source: 42 U.S.C. §1981a(b)(1).
Remedies under Disparate
Treatment (CRA 1991)



Compensatory Damages
Punitive Damages
Maximum Punitive and
Compensatory Damages:
15-200
$50,000
201-300 $100,000
301-500 $200,000
>500 $300,000
Civil Rights Act of 1991



“Race norming” is illegal
Provides for jury trail trials, but only
when disparate treatment is alleged.
Provides for extraterritorial
application of Title VII.
Civil Rights Act of 1991



Finality of Consent decrees
Government Employee Rights
(coverage of Congressional
employees)
Places burden of proof on
complaining parties filling disparate
impact charges.
Charge Statistics for
Retaliation 2002-2008
2002 2003 2004 2005 2006 2007 2008
All Statues
Percentage
of Charges 27.0 27.9 28.6 29.5 29.8 32.3 34.3
Title VII
Percentage
of Charges 24.6 25.4 25.5 25.8 25.8
23.2 25.8
Retaliation



Title VII makes it an unlawful employment
practice for an employer to discriminate
against any employee for "making
charges, testifying, assisting, or
participating in enforcement proceedings.”
The employee is protected from any
retaliatory action taken by the employer.
Whistleblower’s clause

(42 U.S.C. section 2000e-3 (a))
Three Elements of Retaliation
(1) Protected activity.


Opposition to unlawful discrimination.
Participation in the EEOC compliant
process
(2) Adverse action
(3) A causal connection between the
protected activity and its adverse
action.
Protected Activities




(1) Filing a charge or complaint
alleging discrimination.
(2) Threatening to file a charge or
complaint alleging discrimination.
(3) Assisting another employee file a
charge or complaint.
(4) Complaining about
discrimination.
Protected Activities


(5) Organizing or participating in a
group which has among its
objectives opposing unlawful
employment discrimination.
(6) Refusing to obey a workplace
order because of a "good faith" belief
that it is unlawfully discriminatory.
Examples of Adverse Actions
(Unlawful Retaliation)
(1) Denying an employee the right to
participate in the EEO process. This includes
threatening to take adverse action against
an employee who:


Files an EEO complaint
Provides testimony or evidence in an EEO
hearing.
(2) Harassment and intimidation.
(3) Denial of employment benefits.
Examples of Adverse Actions
(Unlawful Retaliation)
(4)
(5)
(6)
(7)
(8)
(9)
Discharge.
Discipline.
Demotion.
Reassignment.
Unjustified performance evaluations.
Acceleration of disciplinary action.
Examples of Adverse Actions
(Unlawful Retaliation)
(10) Undeserved negative references for
former employees.
(11) Unwarranted contesting of
unemployment compensation claims.
Common Myths about
Title VII



You must hire unqualified
protected group members.
You cannot discipline or discharge
protected group members.
You must give preferential
treatment to protected group
members.
Common Myths about
Title VII


You must provide federal equal
employment protection to individuals
based upon their sexual preference.
White males under 40 are not
protected by federal law.