Discrimination in Employment:
Understanding the Legalities
Employment Law • Dale J. Dwyer, Ph.D. • 2008
Discrimination in Employment:
Understanding the Legalities
In this session we will:
> Look at how discrimination spurred the
legislation in the 1960’s and 1970’s that
created the notion of Equal Opportunity.
> Examine several landmark cases and the
resulting laws that employers must abide by.
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History of EEO Legislation
• Before 1964, there was a history of discrimination in
the U.S., primarily against people of color and
women.
• Dr. Martin Luther King, Jr., Rosa Parks, and the cities
of Selma and Birmingham (AL), and Memphis (TN)
played pivotal roles in bringing racial discrimination to
the attention of U.S. lawmakers and President John F.
Kennedy.
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What is the General Intent Of EEO Law?
• After President Kennedy’s assassination,
President Johnson signed the Civil Rights Act of
1964 into law. This law was intended to address
societal beliefs that people are different (or not
equal) because of physical characteristics.
• As employers, we want to hire, develop, and
retain excellent employees. However, we cannot
assess a person’s performance by looking at
their physical appearance.
• We can get an idea of potential job performance
only by using valid tests that assess the abilities
needed for the task.
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Common Mistakes in Hiring
• Asking interview questions about:
– A candidate’s national origin.
– Marital status.
– Perceived or obvious disabilities.
• Making assumptions about:
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Job abilities based on gender, race or age.
The commitment of a parent (particularly mother) to a job.
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Questions that Illicit Information that Could Be
Used in a Discriminatory or Illegal Manner
• “This job requires a lot of overtime. Will that
conflict with your childcare arrangements?”
• “Have you ever had attendance or performance
problems in your previous position because of
your [sight, hearing, physical] impairment?”
• “We have mostly men in that position. Do you
foresee having trouble with establishing your
authority with them because you’re a woman?”
• “Have you ever filed a workers’ compensation
claim?”
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What Is A “Test”?
• A “test” is anything that is used to make a
decision about an employee or a potential
employee
• For this class, a “test” is anything an employer
may use to make a decision about hiring,
promotion, discipline, termination, salary or
wages, training participants, etc.
• All employment decisions (“tests”) are subject to
EEO laws and enforced by the EEOC.
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Relevant Anti-Discrimination Laws
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Equal Pay Act of 1963
Title VII of Civil Rights Act of 1964
Age Discrimination in Employment Act of 1967
Vietnam Era Vets Readjustment Act of 1974
Pregnancy Discrimination Act of 1978
Americans with Disabilities Act of 1990
Revision of the Civil Rights Act (1991) (including
references to unlawful harassment)
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Who the Laws Apply To
1-14 Employees:
• All wage orders
• State anti-discrimination laws
15-25 Employees:
• Federal anti-discrimination laws
• ADA
• Drug Free Workplace Act
• COBRA
50+ Employees:
• Filing EEO
• Executive Order 11246 (Affirmative Action)
• Rehab Act of 1973
• FMLA
100+ Employees:
• Affirmative action plan (government contractor)
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What Does the Law Say About This?
• Karen Logan comes into her supervisor’s office,
complaining that she’s been excluded from the
rotation schedule for driving the supply truck. Ed,
her supervisor, is surprised and says that he
figured she wouldn’t want to be included. “Why
not?” Karen asks. “Well, it’s a big truck and I
thought it might be too much for you to handle. I
mean, driving a big truck isn’t exactly a job for a
woman, is it?” asks Ed.
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What Does the Law Say About This?
• Helen Thomas is meticulous about enforcing her
department’s attendance policy, and has fired more
than one employee for repeated violations of the
rules. She recently fired Jeff Lewis, an AfricanAmerican employee, for excessive absences, and
Lewis sued the company for racial discrimination.
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Discrimination Terms
• Adverse impact (Also “disparate impact”):
Unintentional effect on protected group.
• Adverse treatment (Also “disparate treatment”):
Intentional effect on a member of a protected group.
• Bona fide occupational qualification: A
characteristic that is necessary to successfully
perform the job.
• Business necessity: An overriding business purpose
for the discriminatory practice.
• Prima facie case: Presenting enough evidence to
suggest a discriminatory practice occurred.
• Burden of proof: The party who has to prove that the
practice is discriminatory or non-discriminatory.
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How to Develop a Disparate Impact Case
Prima facie case is
made by the plaintiff,
who:
• Points to a specific
test; AND
• Shows that there is
under-representation
of relevant labor
market (“stock
statistics”); AND/OR
• Shows violation of the
“4/5 rule” (“flow
statistics”).
©SHRM 2007
Burden of proof is on
the defendant, who:
• Rebuts with data
showing compliance
with either adequate
representation of
relevant labor market
or “4/5 rule”; AND/OR
• Rebuts with BFOQ or
Business necessity
defenses; AND/OR
• Rebuts with test
validity data.
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How to Develop a Disparate Treatment Case
Prima facie case is
made by the plaintiff,
who demonstrates
the following:
1. Membership in a
protected group; AND
2. Applied and was
qualified for job; AND
3. Was rejected despite
qualifications; AND
4. Employer continued
with applicant search.
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Burden of proof is on
the defendant, who:
• Rebuts with a
legitimate, nondiscriminatory reason
for the rejection (had
better provide
objective data!) or
establishes a BFOQ;
AND/OR
• Rebuts with test
validity data.
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Let’s Practice
• For the next class, you will be given a summary
of a real discrimination case to read.
• You will be assigned as either the plaintiff or the
defendant in that case.
• Prepare the prima facie case (if you are the
plaintiff) or the rebuttal (if you are the defendant)
for the type of case you believe it is (either
disparate impact or disparate treatment).
• You will be given three minutes for your case-inchief and one minute to rebut the other side’s
claims.
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