Chapter 41
Employment Discrimination
Learning Objectives
 Generally, what kind of conduct is
prohibited by Title VII of the Civil Rights
Act?
 What is the difference between disparatetreatment discrimination and disparateimpact discrimination? And what
remedies are available under Title VII?
 What are three defense to claims of
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.
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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Disparate Treatment vs.
Impact Discrimination
“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.
“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.
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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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Discrimination
Based on Gender
 Title VII prohibits sex discrimination in the
work place.
 Employers are prohibited 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.
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Discrimination
Based on Gender
Two types of sex discrimination:
Differential treatment.
Sexual harassment, which itself,
exists in two varieties:
• Hostile Work Environment.
• Quid Pro Quo
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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:
Quid Pro Quo
Hostile Work Environment.
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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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Harassment by Supervisors
Quid Pro Quo harassment involves the
demands for sexual favors by a supervisor from
a subordinate, in exchange for some workplace
benefit.
 See Faragher v. City of Boca Raton (1998) and
Burlington Industries v. Ellerth (1998).
Under certain conditions, an employer may be
liable for the quid pro quo harassment
committed by its supervisory employees.
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Harassment by Co-Workers
Employer generally liable only if employer
knew or should have known and failed to take
action.
 Employee notice to supervisor is notice to Employer
under agency law.
Employers may also be liable for harassment
by non-employees.
Same-sex 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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Equal Pay Act of 1963
The EPA amends the Fair Labor
Standards Act to prohibit gender-based
discrimination in wages paid for similar
jobs performed under similar conditions.
Pay differentials for jobs with the same
or similar jobs can be justified on the
basis of seniority, merit, a piece-work
system, or any factor other than gender.
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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 “Disability” (ADA)
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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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.
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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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.
 Job Applications and Pre-Employment
Physical Exams.
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Defenses to Claims
of 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
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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Bona Fide Occupational
Qualification
The bona fide occupational qualification
(BFOQ) 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 Systems
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 antidiscrimination laws.
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After-Acquired Evidence
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).
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The Hopwood Case
In 1996, two white law school applicants sued
the University of Texas at Austin when they
were denied admission based on race. The Fifth
Circuit opined:
 “Diversity fosters, rather than minimizes, the use of
race. It treats minorities as a group, rather than as
individuals. It may further remedial purposes but, just
as likely, may promote improper racial stereotypes, thus
fueling racial hatred.” Hopwood v. State of Texas, 84
F.3d 720 (5th Cir. 1996).
The U.S. Supreme Court denied certiorari and
so the opinion stands.
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