Religion
• Religion “includes antipathy to religion. And so
an atheist . . . cannot be fired because his
employer dislikes atheists. If we think of
religion as taking a position on divinity, then
atheism is indeed a form of religion.” Reed v.
Great Lakes Cos., 330 F.3d 931 (7th Cir. 2003)
Abercrombie’s “Look Policy”
• Promote Abercrombie’s brand and exemplify “a
classic East Coast collegiate style of clothing”
• Sales floor employees are “Models”
• Regulates fingernail length, hair color
• Black clothing and “caps” are prohibited
Samantha Elauf
Religion
• EEOC v. Abercrombie & Fitch (U.S. 2015)
• “An employer may not make an applicant’s
religious practice, confirmed or otherwise, a
factor in employment decisions.”
• Title VII gives religious practices “favored
treatment” and “requires otherwise-neutral
policies to give way to the need for an
accommodation.”
Abercrombie & Fitch (cont.)
• Case settled
• Elauf paid $25,670.53 in damages, $18,983.03
in court costs
Religion
• Title VII Sec. 702: “This subchapter shall not
apply . . . to a religious corporation, association,
educational institution, or society with respect to
the employment of individuals of a particular
religion to perform work connected with the
carrying on by such corporation, association,
educational institution, or society of its
activities.”
The Religion Clauses
• “Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof . . .” U.S. Const. amend. I (1791)
Religion
• Hosanna-Tabor Evangelical Lutheran Church
and School v. EEOC (U.S. 2012)
▫ Facts; issue
• The “ministerial exception” and the “unwanted
minister”
• Held: the ministerial exception bars the
plaintiff’s ADA suit
Sex Discrimination
•
•
•
•
Title VII Sec. 703(a)
Bona fide occupational qualifications
Title VII Sec. 704(b)
“Sex” “Gender”
Sex Discrimination—Compensation
Differentials
• The Equal Pay Act of 1963, 29 U.S.C. Sec.
206(d): no employer “shall discriminate . . .
between employees on the basis of sex by paying
wages to employees in such establishment at a
rate less than the rate at which he pays wages to
employees of the opposite sex in such
establishment . . . for equal work on jobs the
performance of which requires equal skill, effort,
and responsibility, and which are performed
under similar working conditions . . .”
Sex Discrimination—Compensation
Differentials
• The Equal Pay Act exceptions: “payment is made
pursuant to (i) a seniority system; (ii) a merit
system; (iii) a system which measures earnings
by quantity or quality of production; or (iv) a
differential based on any other factor other than
sex . . .” 29 U.S.C. Sec. 206(d)
Sex Discrimination—Compensation
Differentials
• Title VII Sec. 703(h) and the Bennett
Amendment: not unlawful “to differentiate upon
the basis of sex in determining the amount of the
wages or compensation paid or to be paid to
employees . . . if such differentiation is
authorized by the provisions of section 206(d) of
title 29.”
Sex Discrimination—Compensation
Differentials
• County of Washington v. Gunther (U.S. 1981)
▫ Facts; issue
• The purpose of the Bennett Amendment
• The two parts of the Equal Pay Act:
▫ The “purely prohibitory” part 1, and the
affirmative defenses in part 2
• Held: discriminatory undercompensation claims
are not barred by Sec. 703(h) merely because the
plaintiffs did not perform work equal to work
performed by male guards
Gunther (cont.)
• Justice Rehnquist’s dissent
• Congress intended to “require all sex-based wage
discrimination claims, whether brought under
the Equal Pay Act or under Title VII, to satisfy
the ‘equal work’ standard.”
• “Comparable work” is not “equal work”
Equal Pay Act
• 29 U.S.C. Sec. 206(d)
• “[A]n employer who is paying a wage rate
differential in violation of this subsection shall
not, in order to comply with the provisions of
this subsection, reduce the wage rate of any
employee.”
Sex Discrimination—Compensation
Differentials
• Ledbetter v. Goodyear Tire & Rubber Co. (U.S.
2007)
• The Lilly Ledbetter Fair Pay Act (amending Title
VII Sec. 706(e)(3)(A))
Sex Discrimination—Comparable Worth
• AFSCME v. State (9th Cir. 1985)
▫ Facts; issue
• Comparable work theory
• Disparate impact claim?
▫ The “case does not involve an employment
practice that yields to disparate impact analysis.”
▫ Number of complex factors, multi-faceted
assessment
AFSCME (cont.)
• Disparate treatment claim?
• The Willis study and relying on market rates in
setting salaries
• “Neither law nor logic deems a free market
system a suspect enterprise.”
• No indication that Congress intended to
“abrogate fundamental economic principles such
as the laws of supply and demand . . .”
AFSCME (cont.)
• Court: after receiving the Willis study, the state
did not have to implement a comparable pay
system
• Holding
• Agree or disagree?
Sex Discrimination—Compensation
Differentials
• City of Los Angeles, Dept. of Water & Power v.
Manhart (U.S. 1978)
▫ Facts; defined benefit plan; issue
• “Women, as a class, do live longer than men.”
• Determining “discrimination”: class
characteristics or individual characteristics?
• The Bennett Amendment
Manhart (cont.)
• The employer’s General Electric v. Gilbert argument
• No Title VII cost-justification defense
• Held: the Department violated Title VII
▫ Note: defined contribution plans are not unlawful
▫ The retroactive relief issue
• Justice Blackmun: life expectancy is “a
nonstigmatizing factor”; Chief Justice Burger:
longevity is “an other factor other than sex”
• Justice Marshall: would order refund of excess
contributions
Sex Discrimination—Compensation
Differentials
• Arizona Governing Comm. v. Norris (U.S. 1983)
(per curiam)
▫ Facts; pay-out options; issue
• Held: practice violates Title VII’s is sex
discrimination prohibition
• Held: benefits made from post-decision
contributions must be calculated without regard
to sex
Norris (cont.)
• Justice Marshall’s opinion
• Unlawful to discriminate on the basis of sex at
the pay-out stage of a retirement plan
• Employer is legally responsible for the
discrimination because it chose the companies
participating in the plan
Norris (cont.)
• Retroactive relief issue
• (1) Benefit disparity attributable to postManhart contributions: female retirees’ raising
benefits must be raised to the level paid to
similarly situated male employees
Norris (cont.)
• (2) Benefit disparity attributable to pre-Manhart
contributions
▫ If the employer could have applied sex-neutral
actuarial tables without violating male employee’s
contractual rights, a female retiree’s benefit
coming due after the district court’s judgment
must be supplemented
▫ If the employer could not have applied sex-neutral
tables without violating contractual rights of male
employee, relief should not be awarded