Employment Discrimination
Concepts
Jody Blanke
Distinguished Professor of Computer
Information Systems and Law
Mercer University
Title VII
 Prohibits discrimination on the basis
of:
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Race
Color
Gender
Religion
National origin
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Theoretical Bases for Title VII
Lawsuits
 Disparate Treatment
 Disparate Impact
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Disparate Treatment
 Employee’s Prima Facie Case:
 Employee is a member of the class of
persons protected by Title VII,
 Employee applied for and was qualified for a
job for which the employer was seeking
applicants,
 That despite these qualifications, employee
was rejected, and
 After this rejection, the position remained
open and the employer continued to seek
applicants with those same qualifications.
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Disparate Treatment
 Employer’s Defense:
 Employer can defend by showing that it had a
legitimate, nondiscriminatory reason for its
decision.
 Employee’s Counter:
 Employee must prove that the grounds offered by
the employer were merely a pretext for its actions
and that discrimination was the real reason.
 McDonnell Douglas Corp. v. Green, p. 93
 Black civil rights activist protested after being laid
off and was not rehired when new position became
available. Supreme Court remanded case to give
Green a chance to prove pretext.
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Disparate Treatment
 Employer may defend by showing that there is
a bona fide occupational qualification
(BFOQ) that is reasonably necessary to the
employer’s business
 Available only in cases involving gender, religion and
national origin (not for race or color)
 The basis for preferring one group over another goes
to the essence of what the employer is in business to
do
 Predominant attributes of the group discriminated
against are inconsistent with that business
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Disparate Treatment
 BFOQ examples
 Airlines and bus companies can have maximum age
requirements
 Airlines cannot hire only females as flight attendants
 Wilson v. Southwest Airlines, p. 95
 Playboy can hire only females as Playboy Bunny
servers
 Essence of business – male entertainment
 Hooters cannot hire only females as Hooters servers
 Essence of business – serving spicy chicken wings
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Disparate Impact
 Discrimination can be established by proving that an
employment practice, although neutral on its face,
disproportionately affects a protected group in a
negative way.
 Courts have determined the that the following screening
devices have a disparate impact:
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Educational requirement – race, e.g., Griggs v. Duke
Power, p. 94
Credit status – gender, race
Arrest record – race
Height and weight requirements – gender, national origin
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Disparate Impact
 The Four-Fifths Rule is a rule of thumb that permits a
20% margin between the outcomes of the majority and
the minority under a given screening device
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i.e., disparate impact is statistically demonstrated when the
rate for a protected group is less than 80% (or four-fifths)
of the higher scoring majority group
 Employer can rebut the employee’s prima facie case by
showing the existence of a business necessity
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e.g., requirement of credit history may result in fewer
women hired, but handling large sums of money may
warrant credit check
 Employee would then have to prove that there is a
means of addressing the issue that has less of an
adverse impact
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