The Employment Law Toolkit (Chapter
2, pages 62-76, 85-89, 91-92 & 94-95 only); Title VII of the Civil Rights Act of
1964 (Chapter 3, pages 96-112 & 120-
34 only)
Professor Charles H. Smith
Spring 2012

• Title VII of the Civil Rights Act of 1964 was the leading piece of legislation shaping and defining employment law rights in the U.S.
• The statute covers several types of traditional areas of discrimination but its main motivator was racial discrimination against African-
Americans – see Exhibit 3.1 on page 99.
• Before we move on, let’s review “Opening
Scenarios” on page 97.

• Title VII and other discrimination laws simply remove matters such as race, etc. from the employment decision-making equation.
• These laws do not provide “extra” rights or give anyone an “advantage” in the employment arena.

• Title VII covers discrimination based on
– Race – ethnicity, not country of origin (Chapter 6).
– Color – skin (Chapter 6).
– National origin – country of origin, not citizenship; can include
U.S.A. (Chapter 7).
– Religion – beliefs or practices (Chapter 11).
– Gender (including sexual harassment) – male, female
(Chapters 8-10).
• Note that discrimination based on matters such as age, disability and sexual orientation are not covered by Title VII though they are covered by many other federal and state statutes.

• Who must comply?
– See Exhibit 3.8 on page 111.
• Title VII covers all levels and types of employees.
• U.S. citizens employed anywhere in the world by
American employers are protected by Title VII.
• However, non-U.S. citizens employed by
American employers are covered by Title VII only in the U.S.

• Title VII does not govern just fundamental employment decisions such as hiring or firing; it governs many decisions about all terms and conditions of employment.
• See Exhibit 3.7 on page 110.

• There are many exemptions in Title VII – see Exhibit 3.9 on page 112 and address the following questions and case study in small group discussions
– How can these exemptions be justified?
– Do you agree with these exemptions? Why or why not?
– Case study – Petruska v. Gannon University (pages
130-31).

• Employee/applicant alleges that employer treats him/her differently than others similarly situated.
• Case study – McDonnell Douglas Corp. v. Green (pages 91-92) provides the three-step analysis to be followed
– Plaintiff presents his/her prima facie case.
– Defendant must show some legitimate, nondiscriminatory reason for adverse employment action (e.g., termination, not being hired) vs. plaintiff.
– Plaintiff can then prove defendant’s reason was a pretext for discrimination.

• Plaintiff must present evidence as to all elements of the prima facie case or judgment will be entered in favor of defendant
– Plaintiff belongs to protected Title VII group,
– Plaintiff applied and was qualified for the job for which defendant was seeking applications,
– Despite qualifications, plaintiff’s application was rejected, and
– After rejection, job remained open and defendant continued to seek applicants from people of plaintiff’s qualifications.
• This standard is adjusted if, e.g., termination or discipline instead of rejection; case study – Ali v. Mount Sinai Hospital on pages 133-34.

• Defendant can show that adverse employment action vs. plaintiff is based on legitimate, nondiscriminatory reason such as
– At-will employment rule – but how well would a “whim” termination play in front of a jury?
– Good cause – much stronger.
– BFOQ (aka “business necessity”) – otherwise discriminatory policy/qualification OK if legally necessary for defendant’s business; case studies – Chapter-End Question 9 (page 82) and
Wilson v. Southwest Airlines (pages 92-93); student examples.
• Plaintiff can then rebut by showing this reason is a pretext for discrimination.

• Employee/applicant alleges employer’s facially neutral policy/qualification has an adverse impact on protected
Title VII group; see if protected groups more adversely impacted than majority groups.
• Be careful to look at the real-life effect of a job qualification, company policy, etc. since no intent is needed for a disparate impact case.
• Note – “protected” group can be any group adversely impacted; e.g., men or women can be protected group in a gender discrimination case.

• How to show disparate impact?
– Four-fifths rule – minority group must do at least 80% as well as majority group on job screening device or presumption of disparate impact arises; can be rebutted by defendant’s legitimate business necessity; keep in mind this is not a strict rule but only a guideline.
– Case study – Griggs v. Duke Power Co. on pages 94-95; note that Griggs was briefly overturned by U.S. Supreme Court in
1989, but then reinstated by Civil Rights Act of 1991.
– Student examples.

• The Civil Rights Act of 1964 was not the first federal civil rights statute.
• In fact, some civil rights statutes were enacted just after the Civil War, such as 42 U.S.C. § 1983 (1871) which outlaws deprivation of a person’s rights done “under color of state law” (applies to public sector employment only).
• Even though these statutes were enacted long ago, they saw little use due to conflicting state “Jim Crow” laws, custom, and acts and threats of violence.

• See Exhibits 2.9 and 2.10 on page 75.
• Discuss the relatively recent addition of compensatory and punitive damages in 1991
– Compensatory damages made up of what is often called general damages which are quality of life matters such as emotional distress, pain and suffering, loss of consortium, etc.
– difficult to prove with precision and can vary widely from case to case.
– Punitive damages – money awarded plaintiff to be paid by defendant as punishment; not based on general damages or special damages (e.g., lost income, medical bills).
– Query – should a person who is a victim of a Title VII violation be entitled to compensatory or punitive damages?