13
Employment Law II: Discrimination
McGraw-Hill/Irwin
©2007 by the McGraw-Hill Companies, Inc. All rights reserved.
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
Other Provisions:
• Civil Rights Act of 1866 forbids all forms of racial bias arising out of
contract
• Civil Rights Act of 1991 specifies that Title VII and the ADA 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
Civil Rights Enforcement
Equal Employment Opportunity Commission (EEOC): Federal
agency responsible for enforcing federal discrimination in
employment laws; it investigates discrimination claims;
attempts to resolve disputes via mediation and conciliation;
and, if necessary, engages in litigation
Litigation: After investigating, EEOC may file civil suit or issue right-tosue letter to the grievant; many disputes are resolved in
arbitration; when litigated, plaintiffs prevail only about 30% of
the time
Remedies: May include job reinstatement, back pay, seniority relief,
compensatory damages and punitive damages; EEOC often
negotiates consent decrees that may require new procedures
to correct wrongful practices
Employment Discrimination Analysis:
Disparate Treatment
Disparate treatment exists where an employer intentionally treats some people
less favorably because of race, color, religion, sex or national origin
1. Plaintiff’s (employee’s) prima facie case:
• Plaintiff belongs to protected class
• Plaintiff applied for a job for which the defendant was seeking
applicants
• Plaintiff was qualified
• Plaintiff was denied the job
• The position remained open and employer continued to seek applicants
2. Defendant’s (employer’s) case: If plaintiff succeeds 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 reason offered by defendant
was false, merely a pretext to hide discrimination
Employment Discrimination Analysis:
Disparate Impact
Disparate impact exists where employer uses legitimate employment standards
that, despite apparent neutrality, work a heavier burden on protected class than
on other employees
1. Plaintiff’s (employee’s) case:
• Plaintiff must identify specific employment practice or policy that caused
alleged disparate impact
• Plaintiff must prove (often statistically) that protected class is suffering an
adverse or disproportionate impact caused by employment practice or
policy
2. Defendant’s (employer’s) case: If plaintiff succeeds above, defendant must
demonstrate the employment practice is both job related and consistent with
business necessity
3. Plaintiff’s response: Plaintiff must demonstrate an alternative, less
discriminatory business practice is available and employer refuse to adopt it
Example: Griggs v. Duke Power Co. (S. Ct. 1971)
Statutory Defenses
Seniority: Employer may lawfully apply different standards of
compensation or conditions of employment pursuant to a bona
fide (good faith) seniority system, provided not the product of an
intent to discriminate
Employee Testing: Only job-related tests supported by detailed,
statistical evidence as to their scientific validity are lawful
The Four-Fifths Rule: Employer generally presumed noncompliant if
selection rate for protected class is less than 80% of rate for
group with highest rate, unless employer can prove job
relatedness of employment practice and demonstrate a good
faith effort was made to find a selection procedure that lessened
disparate impact on protected classes
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…”)
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:
• Proof of nexus between classification and job performance
and
• “Necessity” of classification for successful performance
and
• That job performance affected by the classification is the
“essence” of the employer’s business operation
Example: Pietras v. Farmingville Fire District (2d Cir. 1999)
Equal Pay
Equal Pay Act of 1963 forbids discrimination on basis of sex;
in general, women must receive 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
Sexual Harassment—Part I
Sexual harassment: Unwelcome sexual advances,
requests for sexual favors and other verbal or physical
conduct of a sexual nature
Plaintiff’s (employee’s) case:
• 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
Sexual Harassment—Part II
Defendant (employer) liable if:
• Wrongdoer was coworker and employer unreasonably failed
to prevent or remedy harassment where management knew
or should have known about it
• Wrongdoer was supervisor and employee suffered tangible
employment action (e.g., demotion) because of 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
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)
Affirmative Action
Affirmative Action: Means of remedying past discriminatory wrongs
and preventing future wrongs; affirmative action plan seeks out
minorities for hiring and promotion and often employs goals and
timetables to measure progress
In United Steelworkers of America v. Weber (S. Ct. 1979), the
Court upheld affirmative action where:
• It was part of a plan
• Plan designed to “open employment opportunities for
Negroes in occupations which have been traditionally closed
to them”
• Plan was temporary
• Plan did not unnecessarily harm rights of white employees
Example: Reynolds v. City of Chicago (7th Cir. 2002)
Religious Discrimination
Title VII forbids discrimination on basis of religion;
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 employer
need only bear a de minimus cost to
accommodate religious differences, more than
that is considered an undue hardship for
employers
Americans with Disabilities Ace (ADA)
ADA: Forbids discrimination in employment, public accommodations,
public services, transportation and telecommunications against
disabled
Rehabilitation Act of 1973: Protects disabled workers in the public sector
“Disabled” means:
• Has a physical or mental impairment that substantially limits one
or more major life activities
• Has a record of such impairment or
• Is regarded as having such an impairment
An employer may not discriminate against a qualified person; qualified
person is one who can perform essential functions of the job;
employers must make reasonable accommodations for disabled
employees and applicants
Example: Toyota v. Ella Wiliams (S. Ct. 2002)
Age Discrimination in Employment Act
(ADEA)
• Age discrimination is established under disparate treatment
(intentional discrimination) or disparate impact analysis
• 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
• Employer may defend by showing 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