Chapter 25: Employment Discrimination
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Learning Objectives
• Generally, what kind of conduct is prohibited by
Title VII of the Civil Rights Act of 1964?
• What is the difference between disparatetreatment discrimination and disparate-impact
discrimination?
• What remedies are available under Title VII of the
1964 Civil Rights Act, as amended?
• What federal law prohibits discrimination based
on age and discrimination based on disability?
• What are the three defenses to claims of
employment discrimination?
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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.
• In addition to prohibiting religious
discrimination, employers must
reasonably accommodate an
employee’s religious practices.
• Enforcement of Title VII by EEOC.
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Intentional vs. Unintentional Discrimination
• Intentional (“Disparate-Treatment”)
Discrimination. For prima facie case,
applicant must prove:
– She is member of a protected class;
– Applied, qualified and rejected for job; and
– Employer continued to seek applicants.
• Unintentional (“Disparate Impact”)
Discrimination.
– No-protected applicant sues Employer who
tries to integrate members of protected
classes into workplace.
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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.
• Company policies that discriminate are
illegal, unless (except for race) they have a
substantial demonstrable relationship to
realistic qualifications for job.
• Reverse Discrimination: discrimination
against “majority” such as white males.
– See Richi v. Destefano (2009) involving white New
Haven firefighters who were discriminated against by
fire department be throwing out a promotion test.
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Discrimination Based on Religion
• Accommodation: 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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Discrimination Based on Gender
• Title VII prohibits employers from classifying
jobs as male or female or from advertising
such, unless employer can prove gender is
essential to the job.
• Plaintiff must show gender was determining
factor in hiring, firing or lack of promotion.
• 2009 “Lilly Ledbetter Fair Pay Act” Equal Pay
Legislation: removed time limits to file suit.
• Constructive Discharge.
– Voluntarily leaves because conditions “intolerable.”
– Applies to all Title VII discrimination.
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Sexual Harassment
• U.S. Supreme Court has interpreted
Title VII’s prohibition against sex
discrimination to include a prohibition
against sexual harassment.
• There are currently two forms of
recognized sexual harassment:
– Hostile Work Environment. 
– Quid Pro Quo.
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Hostile Work Environment
• Hostile environment occurs when
workplace is “permeated” with
discriminatory intimidation, ridicule,
insult so severe to alter the conditions
of the victim’s employment.
• The conduct in the workplace must be
offensive to a reasonable person as
well as to the victim, and it must be
severe and pervasive.
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Quid Pro Quo : Harassment by Supervisors
• Involves demands for sexual favors by a
supervisor from a subordinate, in
exchange for some workplace benefit.
• Must have “tangible employment action”
for employer liability.
• Ellerth/Faragher Affirmative Defense. 
• Retaliation by Employers: 2006:
employer’s retaliatory actions may be
evidence of harassment. 2009: protection
for speaking out about another’s complaint.
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The Ellerth/Faragher Affirmative Defense
The Ellerth/Faragher cases (1998) gave
employers a defense against sexual
harassment claims that absolves them
from liability IF the employer can prove:
1. The employer has taken reasonable care to prevent
and promptly correct any sexually harassing
behavior (by establishing effective antiharassment
policies and complaint procedures, for example),
AND
2. The plaintiff-employee unreasonably failed to take
advantage of any preventive or corrective
opportunities provided by the employer to avoid
harm.
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Sexual Harassment Issues
• Co-Workers: employer generally liable
only if it knew, or should have known,
about harassment and failed to take
immediate action.
– Employee notice to supervisor is notice to
employer under agency law.
• Non-Employees: employers may also be
liable for harassment.
• Same-Gender harassment also
violates Title VII.
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Online Harassment
• Company email systems.
• Company chat rooms.
• Posting sexually explicit images on
company computer systems, screen
savers, etc.
• Employees will generally not be liable
if prompt action taken.
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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.
• Plaintiff must show:
– He was member of protected age group,
– Was qualified for the position from which he
was discharged, and
– Was discharged under circumstances that
inferred discrimination.
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Discrimination Based on Age
• Replacing Older Workers with Younger
Workers.
Case 25.1 Sprint/United Management
Co. v. Mendelsohn.
Testimony of company’s attitude towards age was not per
se admissible and inadmissible.
• State Employees Not Covered by ADEA. U.S.
Supreme Court cases:
– Kimel v. Florida Board of Regents (2000).
– Tennessee v. Lane (2004).
• Federal Employees Explicitly Covered by the
ADEA. Gomez-Perez v. Potter (2008).
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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.
• The duty of reasonable
accommodation ends at the point at
where it becomes an undue hardship.
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Procedures under ADA
• To prevail on a claim under ADA,
plaintiff must show she:
– Has a “disability.”
– Is otherwise qualified for the employment in
question; and
– Was excluded from employment solely
because of the disability.
– Workforce must be more than 15 employees
• Plaintiff must first exhaust
administrative relief with EEOC.
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ADA: 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.
• Determination is decided on a case-bycase basis.
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2008 Amendments
• 2008 Congressional Amendments reverse
prior Supreme Court cases:
– Reverse Supreme Court’s restrictive interpretations
of disability, and
– Prohibit employers from considering mitigating
measures or medications when determining if an
individual has a disability. In other words, disability is
now determined on a case-by-case basis.
Case 25.2 Rohr v. Salt River Project Agricultural
Improvement and Power District.
Diabetes is a disability if it significantly restricts an
individual’s eating (a major life activity).
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ADA: ‘Reasonable Accommodation’
• If an employee with a disability can
perform the job with reasonable
accommodation, without undue hardship
on the employer, the accommodation
must be made.
– Examples: wheelchair ramps, flexible
working hours, improved training materials.
(Does not include carpel tunnel syndrome.)
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ADA Issues
• Reasonable Accommodation:
– Job Applications and Pre-Employment Physical Exams.
– Substance Abusers (ADA only protects former users).
• Association Discrimination.
– Adverse actions based on stereotypes.
Case 25.3 Francin v. Mosby, Inc.
Plaintiff has a claim under ADA based on his
association with someone (his wife) who had a
disability.
• Does ADA allow ‘Hostile Environment’
claims?
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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 of employee
misconduct. 
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Business Necessity Defense
• The business necessity defense
requires the employer to demonstrate
that the imposition of 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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B.F.O.Q. Defense
• The bona fide occupational
qualification defense requires an
employer to show that an 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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Seniority System Defense
• A seniority system is one that
conditions the distribution of job
benefits on the length of time one has
worked for an employer.
• A seniority system 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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After-Acquired Evidence of
Employee Misconduct
• After-acquired evidence refers to evidence
of misconduct, committed by an
employee who is suing an employer for
employment discrimination, that is
uncovered during the process of
discovery conducted in preparation for a
defense against the suit.
• While it may serve to limit employee
recovery, it does not act as an absolute
defense for the employer.
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Affirmative Action
• Affirmative action programs go one step
beyond non-discrimination: they are
designed to “make up” for past patterns of
discrimination by giving preferential
treatment to protected classes.
• AA has led to “reverse discrimination” cases
which violate equal protection.
– University of California v. Bakke (1978).
– Adarand Constructors v. Pena (1995).
– Hopwood v. State of Texas (1996).
– Recent Supreme Court decisions
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Latest Supreme Court Decisions
• Gratz v. Bollinger (2003). Awarding 20 points
to underrepresented minorities violated equal
protection clause.
• Grutter v. Bollinger (2003). Considering race
as a flexibile ‘plus’, however, is
constitutional. Distinction: Grutter was
flexible, not mechanical.
• 2007: Parents Involved in Community
Schools v. Seattle School District: racial
classifications in student assignment plans was
necessary to achieve diversity.
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