Employment Discrimination
Chapter 17
Historical Movement to the
Present Laws
• Historically, employers could discriminate on race, sex or other
personal characteristics
• Jim Crow laws supported segregation & labor market
discrimination
• National Civil Rights Movements in the 1960s began the change
• 1963 Equal Pay Act (first employment discrimination
legislation)
• Title VII of the Civil Rights Act of 1964
• 1972 Equal Employment Opportunity Act (created the EEOC)
• 1978 Pregnancy Discrimination Act
• 1991 Civil Rights Act
• 1990 Americans with Disabilities Act
• EEOC established to help enforce these statutes
• Discrimination in employment still exists – not as overt – more
subtle
Title VII of the 1964 Civil Rights Act
• Employers/unions with 15 or more employees/members are
subject to the law
• CANNOT discriminate based on
– Race (Whites also protected)
– Color
– Religion (reasonable accommodation of religious practices
w/o undue hardship on the employers)
– Sex (does not apply to sexual preference or identity)
– National origin (does not apply to noncitizens/aliens
employed or seeking employment is the U.S.)
• Reverse discrimination (preferential treatment to members of a
protected class) is also illegal
– See McDonald v. Santa Fe Trail (in text)
Some Examples re: Religion
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Employer has strict dress code to give company a certain ”look”.
Code need not be modified to allow certain employees to wear
religious garb, such as headdress.
– However, if an employer does not have a strict code, then
cannot tell an employee NOT to wear religious garb. (There
are exceptions in extreme situations.)
Employer need not make other employees change their work
schedule to accommodate the religious holiday preferences of an
employee.
– BUT if accommodations can be made at no cost, giving
opportunity of employees to switch work days, then only
minimal cost is incurred.
Baylor University, a Baptist school, may wish to hire only Baptists
to teach in its theological seminary to train ministers.
– However, it cannot require a math instructor to be Baptist,
since there is no specific religious purpose in teaching math.
Sexual Harassment
Sex Discrimination Under Title VII
• Quid pro quo:
- Unwelcome sexual advances; requests for sexual favors
- Verbal or physical conduct of a sexual nature
- Purpose: to promote, change condition of employment, salary,
place on project, etc.
- Submission is the basis for the employment decision
- Promise of reward or threat of punishment in exchange for
providing sexual favors
• Hostile environment:
– Discussing sexual activities; commenting on physical
attributes
– Unnecessary touching or gestures; crude, demeaning,
offensive language
– Displaying sexually suggestive pictures
– Trivial, isolated incidences usually do not qualify as
harassment
Harris v. Forklift Systems
• Teresa Harris is a rental manager; her boss, Hardy, insults her in
front of others--she is a target of sexual suggestions
• “You’re a woman, what do you know?” Called her a “dumb-ass
woman.” “Go to the Holiday Inn to negotiate [her] raise” “What
did you do, promise the guy . . . [sex] Saturday night?”
• Hardy asks women to get coins from his front pants pocket. He
throws things on the ground; asks women employees to pick
them up; makes sexual comments about clothing
• Harris quits & sues, claiming a “hostile work environment”
• Lower courts: Say there is no sexual harassment
• U.S. Supreme Court reverses: “Employee’s psychological wellbeing is relevant” to determine if the environment is abusive
and has a discouraging effect on the employee’s staying on job
Reverse Sexual Discrimination
and
Same-Sex Discrimination
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Oncale v. Sundowner Offshore Services, Inc. (in text)
Male-on-male sexual harassment
Male worker sued his employer
Suffered verbal and physical abuse of sexual nature, by other
male workers
Held: Same-sex harassment is prohibited
Prohibition of sexual harassment is not based on asexuality or
androgyny in the workplace
Title VII forbids behavior so offensive as to “alter the
‘conditions’ of the victim’s employment”
Distinguish between simple teasing or roughhousing vs.
conduct that is severely hostile or abusive
Court says use common sense; Use sensitivity
Courts use the “reasonable person” standard – Would “a
reasonable person in the plaintiff’s position . . .” find the
behavior “severely hostile or abusive?”
1967 Age Discrimination In
Employment Act (ADEA)
• About 22% of
discrimination claims, or
17,000/year, are in this
category
• Prohibits discrimination in
persons over 40
• All employers with 20+
employees must comply
• Applies to hiring,
promoting, terminating
• May not force retirement
• May not indicate age
preference in advertising
• May not require a physical
exam as condition of
continued employment
(unless it is necessary for
job performance)
• May not choose a younger
worker because an older
one will retire soon
• May not cut health-care
benefits for workers over 65
because they are eligible for
Medicare
Procedure for filing under Title
VII or ADEA
• First Step: Must file with a state
or federal EEO Office
• Under federal law, within 180
(states usually extend to 300)
days of alleged discrimination
• Sometimes state laws have
further requirements
• EEOC then notifies the employer
of the case & investigates the
claim
• EEOC agent hears both parties’
sides of the incident
• If no settlement, the EEOC
informs the parties of the result
of the investigation
• If the EEOC finds merit with
the complaint, it issues a
right-to-sue letter to the
employee (in order to bring
the action in federal court)
• Sometimes the EEOC will
sue the employer
• 75,000 complaints per year
• Takes about 1 year to
resolve
• See Exhibit 17.2 – Usual
Steps
Types of Discrimination Cases
Imposing differential standards on employees
Illegal compensation differentials
Segregation in the workplace
Retaliation for complaints of discrimination is
prohibited
• Constructive discharge due to harassment
• Disparate treatment (intentional discrimination)
– See Burlington Industries, Inc. v. Ellerth
• Disparate impact (unintentional discrimination)
– See EEOC v. Dial Corp.
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Burlington Industries
v. Ellerth
• Ellerth worked for 15 months in sales for
Burlington. She claimed that Slovik, a
manager, made sexually offensive remarks,
asked for liberties, & made threats to deny her
of job benefits.
• She refused his advances. There was no
retaliation against her. She never told anyone
about the problem until lawsuit was filed.
• District Court granted summary judgment for
Burlington; Appeals Court reversed. Burlington
appealed.
Burlington Industries v. Ellerth
• HELD: Reversed and case remanded back to
District Court.
• Ellerth focused her lawsuit on quid pro quo
claims. The District Court may decide if it is
appropriate to allow Ellerth to amend her
pleading to claims of a hostile work
environment.
• Burlington may then raise defense that
includes 1) that it exercised reasonable care to
prevent or correct harassing behavior and 2)
Ellerth unreasonably failed to take advantage
of those opportunities or to avoid harm.
EEOC v. Dial Corp.
• Workers at Dial plant needed to lift 35 lbs. of sausage at a time
to a height from 30 to 60 inches.
• Doing this over and over meant injuries to some workers.
• Company began a Work Tolerance Screen (WTS) test for
potential employees. Candidates had to show strength ability.
• Usual work force was ½ men and ½ women. After WTS
introduced, number of women hired dropped to 15%.
• One applicant took test, passed it, but wasn’t hired.
• She complained to EEOC.
• EEOC brought suit on behalf of 54 women who applied at Dial
and were rejected despite passing WTS.
• Trial Court said Dial did not demonstrate that WTS was a
business necessity.
• Awarded back pay to women ranging from $920 to $120,000.
• Dial appealed.
EEOC v. Dial Corp.
• HELD: Affirmed.
• Expert testimony indicated that WTS was more difficult
than the sausage-making jobs.
• In WTS, the applicants had to perform 4x as many lifts as
the current employees were doing and had no rest breaks.
• Dial claimed WTS resulted in decreased injuries.
• However, sausage plant injuries started decreasing before
WTS was implemented.
• Aan the injury rate for women employers was lower than
that for men in 2 of the 3 years BEFORE Dial implemented
the WTS.
• Defense did not prove that WTS was related to the
specific job and the required skills and physical
requirements of the position.
Machinchick v. PB Power
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Machinchick hired by PB Power in 1996 – develop new clients.
Received “excellent” evaluations; promoted in 1998.
In December 2001, Knowlton became his new supervisor.
In January 2002, PB changed tactic – to “hand-pick employees
whose mindset resides in the 21st Century.”
April 7, Knowlton e-mailed plans to “strategically hire some
younger engineers and designers” to execute new plan.
April 9, he e-mailed PB’s human resources department,
explaining Machinchick’s problems. April 17, Knowlton told
Machinchick he was fired due to poor performance – ignoring
PB’s policy that supervisors discuss problems with employees.
Machinchick (age 63) was given no warning. Replaced by Betz
(age 42). Machinchick sued for age discrimination.
PB moved the case to federal district court.
Court granted summary judgment in favor of PB.
Machinchick v. PB Power
• Machinchick appealed. He presented prima facie case of age
discrimination:
Knowlton’s e-mail indicated intent to assemble a younger
workforce.
Knowlton’s use of “age stereotyping remarks”, describing
Machinchick having “low motivation to adapt”, “inflexible”, “not
adaptable,” possessing “business-as-usual attitude” are indirect
references to age, saying employee needed to look “sharp” and
was unable to “adapt” to change.
PB Power terminated Machinchick, retaining younger employee,
Betz
Following first meeting with Knowlton, he was asked when he
planned on retiring
• Burden is shifted to PB to show non-discriminatory basis for firing.
• HELD: Reversed and remanded for trial
Defenses Under Title VII
• Early Retirement Plans (which encourage voluntary early
retirement)
• Business Necessity: related to job
– Physical requirements/lifting boxes?
– Flight attendants must be certain heights?
• Professionally-Developed Ability Tests
– Must predict work ability
• Bona Fide Seniority or Merit System
– Cannot take away seniority or merit from some workers,
even though applied discriminatorily in the past
• BFOQ: Bona Fide Occupational Qualification
– Only female guards at women’s prisons?
– Male models for female clothing?
Remedies
(Courts Have Broad & Flexible Powers)
• Actual and compensatory damages
• Equitable remedies
• Place the plaintiff in the position he/she would have enjoyed
but for the discrimination
• Back Pay – to the date the discrimination began (can include
fringe benefits)
• Front pay – if employee was unlawfully fired
• Damage to career; inconvenience; loss of reputation (not
available in ADEA cases)
• Injunction
• Reinstatement/promotion/hiring
• Punitive damages (capped at maximum of $300,000 for
employers with more than 500 employees; not available in
ADEA cases)
• Emotional distress/medical treatment
• Attorneys fees, court costs
Affirmative Action Programs
• Purpose? To Remedy past
discriminatory practices
• Correct underrepresentation
• Adopted ONLY on race or sex
(not color, religion, national
origin or age)
• Pres. Johnson’s Executive
Order 11246 in 1965:
government contractors must
adopt affirmative action
• Companies may voluntarily
adopt a plan under Executive
Order 11246
• Programs are monitored and
enforced by the Office of
Federal Contract
Compliance Programs
(OFCCP)
• Courts may require
affirmative action as a
remedy in discrimination
case
“Employment Discrimination in Europe
and Japan”
• These countries are behind the
U.S. in treatment of women
and minorities
• Europe: Employees can be
forced to retire between the
ages of 55 and 65
• Japan: First sexual harassment
case in 1992--remedy was for
only $12,500, but considered a
landmark case
• Europe: Immigrants treated as
2nd-class citizens, i.e.
immigrants in France face
blatant discrimination in job
market
• Japan: Women traditionally
have been kept out of higherlevel jobs and are not always
paid as much for equal work
• Both: Generous maternity
benefits encourage employers
not to hire women because of
high costs of such benefits
1990 Americans With Disabilities Act
(ADA) and the 1973 Rehabilitation Act
• Applies to all employers with
• Examples of disabilities:
15+ employees
– History of alcohol or drug
• Cannot discriminate against
abuse
a person with a disability
that “limits a major life
– Disfigurements
activity,” or has a record of
– Have had heart attacks
or regarded to have ”an
– Must use a wheelchair
impairment”
– Manual tasks
– Are hearing- or visionimpaired
– Walking/seeing
– Hearing/speaking
– Fear of heights NOT covered
– Breathing/learning
– Being left-handed NOT
– Working
covered
Gretillat v. Care Initiatives
• Gretillat worked in food service at nursing home.
• At times she had to stoop, kneel, crouch or crawl as
part of physical movements to her job.
• After 10 years, began to suffer pain in right knee –
hard to walk. Supervisor said she no longer had to
make rounds -- reduced her walking.
• Three years later, she had knee replacement
surgery. After surgery, she had pain from standing
long periods of time. Could not squat, kneel, crouch,
crawl, etc.
• Manager said to resign or be terminated, as she did
not have the physical requirements for her job.
• She resigned; sued for disability discrimination and
failure to accommodate her disability.
Gretillat v. Care Initiatives
• Trial court held for nursing home.
• Gretillat appealed.
• HELD: Affirmed. Care Initiatives entitled to
summary judgment.
• Although walking and standing are “major
life activities,” limited standing ability
does not amount to a disability.
• Medical diagnosis of an impairment does
not qualify as a disability per se.
Compliance Process Under ADA
• Employers must make a
“reasonable accommodation”
BUT need not take on an
“undue hardship”
– See Issue Spotter:
“Accommodating
Disabilities”
• Special equipment & training
for the disabled? Yes
• Modified work schedules? Yes
• Redesign the entire assembly
line to accommodate
wheelchair employees? No
• Readers for the blind? Yes
• Completely revamp a
computer system? No
ADA Enforcement Guidance: re:
Employment Disability-Related
Questions & Medical Examinations
• ADA prohibits employers asking disability-related questions or
requiring medical exams before the job is offered
• What you may ask of applicants must relate to the job
• If disability is obvious or applicant volunteers information,
questions may be asked about reasonable accommodations.
• Once a job offer is made, an employer may ask 1) for
documentation of a disability and 2) more questions about
reasonable accommodations
• Other Questions: Can you ask?
– Age? No
– Computer skills if applicant won’t use them? No
– Married? Children? No
– Sexual Preference? No
– Been in therapy? No
Questions That Are Illegal
During A Job Interview
• Do you have AIDS?
• Have you ever been treated for mental health
problems?
• Have you ever filed for workers’ compensation
benefits?
• Do you have a disability that would interfere with
your ability to perform the job?
• How many sick days were you out last year?
• Have you ever been unable to handle work-related
stress?
• Have you ever been treated for drug addiction or
drug abuse?
Violations by Employers
• Using standardized employment tests that screen
out people with disabilities
• Refusing to hire applicants due to history of alcohol
abuse rather than currently alcohol abusers
• Rejecting a job applicant because he/she is HIVpositive
• Asking job applicants if they have disabilities, rather
than asking if have ability to perform the job
• Limiting advancement opportunities for employees
due to their disabilities
• Not hiring a person with a disability because the
workplace does not have a bathroom to
accommodate wheelchairs