David Walsh
EMPLOYMENT LAW FOR
HUMAN RESOURCE
PRACTICE, 5E
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Overview of
Employment Discrimination
Chapter 3
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service or otherwise on a password-protected website for classroom use.
Chapter Outline
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The Continuing Reality of Employment
Discrimination
The Concept of Employment Discrimination
Types of Discrimination
Disparate Treatment: A Closer Look
Adverse Impact: A Closer Look
Retaliation: A Closer Look
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
The Continuing Reality of Employment
Discrimination
Progress has been made against
discrimination since the passage of The Civil
Rights Act of 1964.
 But rooting out subtle discrimination may
be more difficult than confronting the overt
discrimination of the past
 Discrimination is inherently difficult to
prove.

◦ Glass Ceiling: invisible, artificial and attitudinal
barriers in the workplace
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
The Concept of
Employment Discrimination (1 of 2)
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Major Anti-discrimination Laws
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Title VII of Civil Rights Act of 1964
Equal Pay Act
Age Discrimination in Employment Act
Rehabilitation Act
Pregnancy Discrimination Act
Americans with Disabilities Act
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
The Concept of
Employment Discrimination

Employment discrimination defined:
◦ A limitation or denial of employment
opportunity based on protected class
characteristics of a person
 In essence, “adverse employment actions”
◦ Liability arises not from prejudice alone, but
from its effects on employment opportunities
◦ Unfair treatment must be based on or related to
the protected class characteristics of people
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service or otherwise on a password-protected website for classroom use.
Concept of Employment Discrimination
Protected Classes (1 of 4)
Federal Antidiscrimination Statutes:
 Race, Color
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◦ Title VII, Civil Rights Act, 42 U.S.C. §1981
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Sex
◦ Title VII, Civil Rights Act, Equal Pay Act
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National Origin
◦ Title VII, Civil Rights Act, 42 U.S.C. §1981,
Immigration Reform and Control Act

Religion
◦ Title VII, Civil Rights Act
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Concept of Employment Discrimination
Protected Classes (2 of 4)
Federal Antidiscrimination Statutes:
 Citizenship (citizens or legal aliens)
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◦ Immigration Reform and Control Act
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Age - 40 and over
◦ Age Discrimination in Employment Act
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Disability “Qualified individual with a
disability”
◦ Americans with Disabilities Act; The
Rehabilitation Act
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Concept of Employment Discrimination
Protected Classes (3 of 4)
Federal Antidiscrimination Statutes:
 Pregnancy (pregnancy, childbirth, related)
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◦ Pregnancy Discrimination Act
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Military Service
◦ Uniformed Services Employment &
Reemployment Rights Act

Genetic information
◦ Genetic Information Nondiscrimination Act
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Concept of Employment Discrimination
Protected Classes (3 of 4)
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Some protected classes are recognized
under state or city law, but not federal law:
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Marital status
Sexual orientation
Gender identity
Tobacco/alcohol use
Others
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Types of Discrimination
Four types of discrimination:
 Disparate treatment
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◦ Requires discriminatory intent
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Adverse (Disparate) impact
◦ Facially neutral policy has discriminatory
effects
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Failure to reasonably accommodate
◦ Applies to religion, disability only (See Chapter 10)

Retaliation
◦ To punish based on employee’s exercise of his
legal rights
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Types of Discrimination
Practical Advice…
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Don’t make employment decisions based on the
protected class characteristics of employees
Strive to be fair and to treat all situations alike,
regardless of the protected class characteristics of the
employees involved
Closely scrutinize factors used in making employment
decisions for their potential to exclude protected class
groups
Be flexible in accommodating the needs of employees
who are disabled and employees whose religious
practices conflict with workplace requirements
Exercise care with employees who have filed charges
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Types of Disparate Treatment Cases (1 of 2)
 Facially Discriminatory Policy or
Practice (intentional)
◦ Defense: bona fide occupational
qualification (BFOQ)
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Reverse Discrimination
◦ A misnomer; results when white male believes
hiring of woman or person or color constituted
discrimination to him

Pretext
◦ Employer’s stated reason for decision for
decision is not the real one, employee believes
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Types of Disparate Treatment Cases (2 of 2)
 Mixed Motives
◦ Both legal and illegal motives; Employer can limit
damages if it can prove decision would have
been made anyway
◦ Mixed motives analysis not available for disability,
retaliation or age discrimination
◦ In those cases, employee must prove that
discrimination was the “but-for” cause

Pattern or Practice
◦ Systematic, affecting many employees; statistics

Harassment
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service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Pretext-Indirect Method of Analyzing (1 of 2)
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1) Plaintiff must prove a prima facie case:
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Plaintiff’s relevant protected class characteristic
Applied for the employment opportunity
The employment opportunity was available
Plaintiff was qualified for it
Plaintiff was denied the opportunity
Defendant-Employer continued to interview, or
hired one with contrasting protected class
characteristics
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service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Pretext-Indirect Method of Analyzing (2 of 2)
2) If Plaintiff proves a prima facie case, then
Defendant must produce evidence of lawful
motive for the employment decision.
 3) If Defendant produces such evidence,
Plaintiff may rebut by:

◦ Providing evidence that casts doubt on
Defendant’s claimed motive, and/or
◦ Providing other evidence supporting the claim of
discriminatory motive
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Direct Method of Analyzing (1 of 2)
Direct evidence (the “smoking gun”) may
also be used to prove disparate treatment
 Circumstantial evidence hints at the
possibility of discrimination, but is not
sufficient by itself to prove it
 Comparative evidence shows the employer
to have treated the plaintiff worse than
another employee under the same
circumstances

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Disparate Treatment: A Closer Look
Direct Method of Analyzing (2 of 2)

Subordinate Bias (Cat’s Paw) theory
may apply when there is evidence of a
discriminatory motive by a supervisor or
other manager, but not on the part of the
official who makes the decision
◦ The discriminatory motive of a lower level
employee can result in liability even though the
decision-maker is someone else
◦ Practical advice: Carefully select & train supervisors
& closely review disciplinary actions
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Adverse Impact: A Closer Look
Elements of a Claim (1 of 2)
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1) Plaintiff must prove a prima facie case:
◦ A neutral requirement disproportionately
limits the employment opportunities of a
protected class of which plaintiff is a member.
◦ The difference in outcomes across protected
class groups is large enough that it is unlikely to
exist by chance.
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Adverse Impact: A Closer Look
Elements of a Claim (2 of 2)
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2) If Plaintiff proves a prima facie case, then
Defendant must prove that the challenged
requirement is job related and consistent
with business necessity.
◦ In age discrimination cases, the employer must show
that the requirement is a reasonable factor other
than age.
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3) If Defendant successfully defends the
requirement, Plaintiff may still prevail by showing
that a feasible, less discriminatory, practice exists,
but the employer refuses to adopt it. (Does not
apply in age discrimination cases.)
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Analyzing Adverse Impact Cases (1 of 2)
Sometimes a combination of factors combine to
adversely impact employment decisions
 These sometimes have had adverse impact:
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A variety of written employment tests
Height and weight requirements
Language requirements
Physical strength tests
Military service, type of discharge
Limitation of employment based on arrests &
convictions
◦ Educational attainment requirements
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Analyzing Adverse Impact Cases (2 of 2)
If plaintiff proves a prima facie case,
employer must show that the requirement
is job-related and consistent with business
necessity
 Age-based cases handled differently

◦ Employer has burden of showing that the
challenged requirement is a reasonable factor
other than age
 A more lenient standard
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Retaliation: A Closer Look
Retaliation focuses on the employee’s
protected activity rather than on the
employee’s protected class characteristics
 Two broad classes of protected activity:
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◦ Participation
 Involvement in the enforcement of an
antidiscrimination law
◦ Opposition
 Resisting or speaking out against discrimination apart
from participating in formal enforcement procedures
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Retaliation: A Closer Look
Elements of a Claim (1 of 2)
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1) Plaintiff must prove a prima facie case:
◦ Plaintiff engaged in protected activity or
opposed discrimination
◦ Plaintiff suffered a materially adverse
(employment) action
◦ There is a causal link between the activity and
the adverse employment action

2) If Plaintiff proves a prima facie case, then
Defendant must prove a lawful, nonretaliatory motive for the decision.
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Retaliation: A Closer Look
Elements of a Claim (2 of 2)
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3) If Defendant successfully defends the
decision, Plaintiff may rebut the claims by:
◦ Providing evidence that sheds doubt on the
credibility of Defendant’s stated motive; and/or
◦ Providing other evidence that supports the claim
that retaliation is the most likely explanation for
the adverse action.
◦ Also prohibited: employer’s adverse action
against someone close to the employee, a thirdparty retaliation
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
What Would You Do?

You are the VP of Human Resources; the
Director of Human Resources reports to
you.You have received a complaint from a
Muslim employee in the IT department, who
says that his manager has written him up for
“trumped-up” charges in an effort to build a
case for terminating him because of his
religion, and that the Director of HR (who
reports to you) is cooperating with the
manager. What would you do?
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Next:
Chapter 4 – Recruitment
 How can recruiting, applications and
interviewing get your firm into trouble?

◦ What questions should you NOT ask in a job
interview?
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The answers to these questions and more
are next.
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.