Chapter 18: Employment
Discrimination
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Introduction
 The most important federal antidiscrimination laws are:
• Title VII of the Civil Rights Act of 1964.
• The Age Discrimination in Employment
Act.
• The Equal Pay Act.
• The Americans with Disabilities Act.
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Title VII of the
Civil Rights Act of 1964
 Title VII prohibits discrimination in
employment on the basis of race, sex,
color, religion, and national origin.
“Sex” now includes pregnancy.
• Applies to employers involved with
interstate commerce with 15 or more
employees.
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Title VII of the
Civil Rights Act of 1964
 In addition to prohibiting religious
discrimination, employers must
reasonably accommodate an
employee’s religious practices.
 EEOC: monitors compliance with Title
VII.
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Title VII of the
Civil Rights Act of 1964
 Intentional Discrimination.
• “Disparate-Treatment” Discrimination.
Applicant must prove:
• Is a member of a protected class;
• Applied, qualified , rejected for job;
• Employer continued to seek applicants.
• Burden then shifts to employer who must
articulate a legal reason for not hiring.
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Title VII of the
Civil Rights Act of 1964
 Unintentional Discrimination.
• “Disparate Impact” Discrimination:
• Occurs when a protected group of people
is adversely affected by an employer’s
practices, procedures, or tests, even
though they do not appear to be
discriminatory. 
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Title VII of the
Civil Rights Act of 1964
 Unintentional Discrimination.
• Pool of Applicants Test: plaintiff shows
percentage of the protected class in
employer’s workforce does not reflect
percentage in local labor market.
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Title VII of the
Civil Rights Act of 1964
 Unintentional Discrimination.
• Rate of Hiring: plaintiff compares
selection rates of members of
protected class with nonmembers in
employer’s workforce. According to
EEOC, less than 80% may show
disparate impact.
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Title VII of the
Civil Rights Act of 1964
 Discrimination Based on Race, Color,
and National Origin.
• Title VII prohibits employment policies
or intentional/ negligent discrimination
on basis of race, color or national
origin. 
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Title VII of the
Civil Rights Act of 1964
 Discrimination Based on Race, Color,
and National Origin.
• Reverse” Discrimination: Title VII also
protects against discrimination against
majority group individuals, such as
white males. Ricci v. DeStefano (2009).
• Potential “Section 1981” Claims.
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Title VII of the
Civil Rights Act of 1964
 Discrimination Based on Religion.
• Employers must “reasonably
accommodate” the “sincerely held”
religious practices of its employees,
unless to do so would cause undue
hardship to employer’s business.
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Title VII of the
Civil Rights Act of 1964
 Discrimination Based on Gender.
• Employers are prohibited from
classifying jobs based on gender, unless
employer can prove gender is essential
to the job.
• Pregnancy Discrimination Act.
• Equal Pay Act (1963).
• Lilly Ledbetter Fair Pay Act (2009).
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Title VII of the
Civil Rights Act of 1964
 Constructive Discharge.
• Occurs when an employer causes
working conditions to be so intolerable
that a reasonable person would feel
compelled to quit.
• An employee can be “constructively
discharged” but still leave voluntarily.

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Title VII of the
Civil Rights Act of 1964
 Constructive Discharge.
• Proving Constructive Discharge.
• Plaintiff must present objective proof of
intolerable working conditions, which
employer knew about and failed to correct.
• Employee’s resignation must be a
foreseeable result of working conditions.
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment: Title VII protects
employees against sexual
harassment in the workplace.
• Two forms of sexual harassment:
• Quid Pro Quo. 
• Hostile Work Environment. 
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Quid Pro Quo sexual harassment
involves demands for sexual favors are
demanded in return for job
opportunities, promotions, salary,
increases or other tangible benefits.
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Hostile Work Environment. Occurs
when workplace is permeated with
discriminatory intimidation, ridicule,
insult so severe to alter the conditions
of the victim’s employment and create
an abusive working environment.
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Harassment by Supervisors.
• Usually involves a quid pro quo.
• For employer to be liable for a supervisor’s
sexual harassment, a supervisor must have
taken a tangible employment action
against the employee. 
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Harassment by Supervisors.
• The Ellerth / Faragher Affirmative Defense
is based on two 1998 Supreme Court
decisions. Defense has two elements:
–(1) Employer must have taken
reasonable care to prevent and
promptly correct any sexually harassing
behavior, and 
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Harassment by Supervisors.
• The Ellerth / Faragher Affirmative Defense.
–(2) Plaintiff-employee must have
unreasonable failed to take advantage of
preventative or corrective opportunities
to avoid harm.
• If an employer can prove both elements, he
will not be liable for supervisor’s harassment.
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Harassment by Supervisors.
• Retaliation by Employers: action would have
dissuaded a reasonable worker from making
or supporting a discrimination claim.
• CASE 18.1 THOMPSON V. NORTH AMERICAN
STAINLESS, LP (2011). How could NAS have
protected themselves from this claim?
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Harassment by Co-Workers and Others.
Employer generally liable only if employer
knew or should have known and failed to
take action.
• Notice to supervisor is sufficient under
agency law. Employers may also be liable for
harassment by non-employees.
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Title VII of the
Civil Rights Act of 1964
 Sexual Harassment.
• Same Gender Harassment.
• In 1998, Supreme Court held in Oncale v.
Sundowner Offshore Services that Title VII
prohibitions against sexual harassment
extended to same-sex harassment. Easier to
prove when harasser is homosexual.
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Title VII of the
Civil Rights Act of 1964
 Online Harassment.
• Hostile work environment created using
company chat, blogs, email.
• Employers can avoid liability with
prompt remedial action.
• Employees may be discharged for using
company computers to distribute
offensive material to coworkers.
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Title VII of the
Civil Rights Act of 1964
 Remedies under Title VII.
• Liability may be extensive. Plaintiff may
receive:
• Reinstatement.
• Back Pay.
• Retroactive Promotions; and
• Damages.
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Discrimination Based on Age
 The Age Discrimination in
Employment Act (ADEA) protects
individuals over the age of 40 from
workplace discrimination that favors
younger workers. 
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Discrimination Based on Age
 Procedures under the ADEA.
• Plaintiff must show discrimination was
THE reason for adverse employment
action.
• CASE 18.2 MORA V. JOHNSON MEMORIAL
FOUNDATION, INC. (2010). What was the
‘disputed question of material fact’ the
court referred to?
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Discrimination Based on Age
• Replacing Older Workers with Younger
Workers. Employee must prove that
discrimination was based on age bias.
The bigger the age gap the more likely
the bias.
• State Employees Not Covered by the
ADEA.
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Discrimination based on Disability
 The Americans with Disability Act
(ADA) requires employers to offer
“reasonable accommodation” to
employees or applicants with a
disability who are otherwise qualified
for the job they hold or seek.
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Discrimination based on Disability
 Procedures Under the ADA.
• To prevail, plaintiff must show:
• She has a “disability.”
• She is otherwise qualified for the
employment in question; and
• She was excluded from employment solely
because of the disability.
• Plaintiff must first exhaust her claim
through the EEOC process.
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Discrimination based on Disability
 What Is A “Disability”?
• ADA defines disability as:
• Physical or mental impairment that
“substantially limits one or more of major
life activities; or
• A record of such impairment; or
• Being regarded as having such an
impairment. 
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Discrimination based on Disability
 What Is A “Disability”?
• 2008 Amendments reverse Supreme
Court’s narrow definition of disability.
• CASE 18.3 ROHR V. SALT RIVER PROJECT
AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT (2009). Diabetes is a disability if it
significantly restricts eating.
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Discrimination based on Disability
 Reasonable Accommodation.
• Undue Hardship:
• If an employee can perform the job with
reasonable accommodation, without undue
hardship on the employer, the
accommodation must be made.
• Examples: wheelchair ramps. 
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Discrimination based on Disability
 Reasonable Accommodation.
• Job Applications and Physical Exams.
• Modifications to applications and selection
process so those with disabilities can
compete.
• Employers are restricted on pre-hiring
questions and physical exams.
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Discrimination based on Disability
 Reasonable Accommodation.
• Substance Abusers: only FORMER drug
users completed or going through supervised
drug rehabilitation programs qualify as
“disabled.”
• Health Insurance Plans: equal access to
health care.
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Discrimination based on Disability
 Association Discrimination.
• Protects individuals based on
associations with other disabled
persons. To prevail, plaintiff must show
she was:
• (1) qualified for the job, (2) subjected to an
adverse employment action, and (3) known by
her employer to have a relative or an associate
with a disability.
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Defenses to Employment
Discrimination
 There are four basic types of
defenses to employment
discrimination claims. 
• Business Necessity.
• Bona Fide Occupational Qualification.
• Seniority Systems.
• After-Acquired Evidence.
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Defenses to Employment
Discrimination
 Business Necessity.
• Requires employer to demonstrate a
job qualification is reasonably
necessary to the legitimate conduct of
the employer’s business.
• Business necessity is a defense to disparate
impact discrimination.
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Defenses to Employment
Discrimination
 Bona Fide Occupational
Qualification.
• BFOQ defense requires an employer to
show a particular skill is necessary for
the performance of a particular job.
• The BFOQ defense is used in cases of
disparate treatment discrimination.
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Defenses to Employment
Discrimination
 Seniority Systems.
• Conditions the distribution of job
benefits on the length of time one has
worked for an employer.
• Can be a defense only if it is a bona fide
system, not designed to evade the effects
of the anti-discrimination laws.
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Defenses to Employment
Discrimination
 After-Acquired Evidence.
• Evidence of misconduct, committed by an
employee who is suing an employer for
employment discrimination.
• Uncovered during the process of discovery
conducted in preparation for a defense against
the suit.
• Not an absolute defense for employer.
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Affirmative Action
 Designed to “make up” for past
patterns of discrimination by giving
preferential treatment to protected
classes.
 Constitutionality of Affirmative Action
Programs.
• May violate Fourteenth Amendment’s equal
protection.
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Affirmative Action
 Constitutionality (cont’d).
• Affirmative action program is
constitutional only if it attempts to
remedy past discrimination and does
not make use of quotas or preferences.

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Affirmative Action
 Affirmative Action in Schools.
• Generally, program that automatically
awards minority students specified
number of points is unconstitutional.
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