Discrimination in Employment
Presented by:
Catherine Hardison, JD, PhD
And
Charles Wheaton, PhD
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Civil Rights Act, 1964 Title VII
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1972 = School districts included
Based on race, color, sex, or national origin cannot
 Fail, refuse to hire or discharge any individual with
respect to compensation, terms or conditions of
employment
 Limit, segregate or classify employees or
applicants for employment opportunities or
otherwise adversely affect his status as an
employee
 Fail or refuse to refer for employment
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Civil Rights Act, 1964 Title VII
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Amended in 1991 (PL 102-166)
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Allowed for compensatory and punitive damages,
back pay, reinstatement for disparate treatment
Steps:
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File complaint with EEOC with 180 days of alleged
discrimination OR within 300 days if individual has
filed a claim with local or state civil rights agency

If don’t meet timeline, then lose standing (meaning?)
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Civil Rights Act, 1964 Title VII

To succeed, Plaintiff must demonstrate employers reason for
denying employment is false and actual reason is discrimination.
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Example:
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Application made
Person is qualified for position
Not given fair consideration for position
Demonstrate prima facie case, then burden shifts
to school district to prove employment decision is
not based on a discriminatory practice
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Civil Rights Act, 1964 Title VII

McDonnell Douglas Corp v. Green (1973) &
Furnco Construction Corp v. Waters (1978)
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Plaintiff carries initial burden of establishing a prima facie
case (sufficent evidence) of employment discrimination
Burden shifts to D to refute prima facie case--demo
legitimate nondiscriminatory reason for decision
If D is successful, the plaintiff then must prove D’s actions
are a mere pretext for discrimination.
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Civil Rights Act, 1964 Title VII

What if…has district violated title VII
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A district passes over a female who has equal or
more impressive credentials than a male for
administrative positions?
An African American female was not promoted
because she lacked interpersonal skills and had
an abrasive personality?
A female teacher showed discrimination in hiring,
but the district showed that she would not have
been promoted had she been a man?
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Sexual Discrimination

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Also covered under Title IX of Education
Amendments Act of 1972
Administered by OCR
Also has a provision for sexual distinctions in
employment where sex is a bona fide occupational
qualification
Violations can mean a loss of federal funds for an
entire district
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Rehab Act of 1973 and Amer
with Disabilities Act of 1990

ADA + IDEA
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Protects individuals against discrimination
and
Assures equal access and opportunity

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Can you think of a place that is not accessible?
How would you make it more accessible?
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Rehab Act of 504
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Section 504 of Rehab Act
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Prohibits Discrimination against any “otherwise qualified”
person who has a disability with respect to:
• Employment
• Promotion
• Training
• Compensation
• Fringe Benefits
• Terms & Conditions of Employment
“No otherwise qualified individual with handicaps… shall solely
by reason of his or handicap be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal financial
assistance”
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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ADA and 504
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ADA protects students and any person who
“has a physical or mental impairment that
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substantially limits one or more major life
activities”
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Caring for oneself, performing manual tasks, hearing,
seeing, speaking, breathing, walking, learning and
working
Has a record of such impairment
Or is regarded by others as having such an
impairment
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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ADA and 504
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Employers (school districts) must make reasonable accommodations:
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Existing facilities used by employees must be
readily accessible/usable by disabled individuals
Accommodations include
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Job restructuring
Part time, modified work schedules
Reassignment to a vacant position
Acquisition/modification of equipment, devices
Appropriate adjustment or modifications of examinations,
training materials, or policies
Provision of qualified readers/interpretators
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Qualifications for Employment
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BUT, Employer can claim undue hardship, meaning. . .
Significant difficulty or expense in light of:
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Nature and cost of accommodations
Overall financial resources of facility/ies needing accommodation, #
people employed, effect on expenses or resources
Overall financial resources of covered entity
Type of operation, composition, structure, and functions of the work
force, geographic separateness, administrative, or fiscal
relationship of the facility/ies to covered entity
Burden of proof is with the employer
Discrim Emplmt/Hardison/Schl
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Scope of Protection:
504 (Rehab) & ADA
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Complaint can be filed with Dept of
Education, federal funds can be terminated,
(subject to judicial review)
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Can seek relief in court
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Injunction
Monetary damages (if evidence of
malicious intent or bad faith)
Discrim Emplmt/Hardison/Schl
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Scope of Protection:
504 (Rehab) & ADA
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Contagious Diseases

9th Circuit (Chalk v US District Court,
Central District of California, 1988)

Person with AIDS is “otherwise qualified” under
Section 504 of Rehab Act, therefore afforded
full protection under the provisions of the Act
Discrim Emplmt/Hardison/Schl
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Scope of Protection:
504 (Rehab) & ADA
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However, courts will allow:
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Districts to balance rights of employees
with contagious diseases against the risk
their presence might create health hazards
for those who MUST come in contact with
them.
Test: expert medical advice, then
everyone’s rights are preserved
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Gender Discrimination
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Employer’s conduct does not have to be
independently egregious for plaintiff to
be awarded punitive damages
Therefore, egregious conduct not
required to pursue punitive damages
Why is this important?
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Sexual Harassment
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Title VII and Title IX prohibits
Continuum of behaviors
 Verbal: sexual comments about person’s anatomy or
clothing, repeated requests for dates, refusing to accept “no”
answers
 Can even be comments like, babe, sweetheart, honey,
sexual jokes or stories
 Physical: hugging, kissing, stroking, patting, massaging neck
and shoulders
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Sexual Harassment
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Key is that the behavior is unwanted or
unwelcomed (have to tell the person)
Quid quo pro (this for that)
Non quid pro quo (hostile work
environment)
District must know or should have
known-should have known is this fair?
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Racial Discrimination
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If cannot prove discriminatory intent, plaintiffs will not
succeed in claims of discrimination
Disparate treatment:
 Employer treats some people more unfavorably
than others in regards to
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Employment, job promotion, or employment conditions
Based on:
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Race, color, religion, sex, or national origin
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Racial Discrimination
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Disparate Impact
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Numbers of a similar class affected adversely by
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A particular employment practice that appears neutral
Difference is that disparate impact suits are
different because they do not allege OVERT
discriminatory action

Facially neutral, but employment practices do fall more
heavily on one protected group
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Racial Discrimination

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School districts will have a hard time
proving nondiscriminatory purposes
once a plaintiff has shown either intent
or impact
BEST PRACTICE: Monitor practices for
discriminatory intent (easiest) or impact.
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Age Discrimination
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What do you think the age one must
reach before he/she can sue for age
discrimination?
Guesses on whiteboard
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Age Discrimination Act of 1967,
Amended in 1978, 1986 (ADEA)
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Primary effect is on teachers
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As of 1986, there is no age limit for hiring,
dismissal, and other terms and other
conditions of employment
Early incentive to retire are allowed
Can non-renew a teacher, so long as not
related to age
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Age Discrimination Act of 1967,
Amended in 1978, 1986 (ADEA)
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Protects individuals over 40
Burden is on plaintiff to establish a prima facie case
of age discrimination
Then district must demo a legitimate state interest for
its action (age cannot be the sole criterion that
motivates a board decision to discriminate against
school personnel)
Act is very clear, cannot discriminate!
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Pregnancy & Public School
Employment

Teachers protected by Pregnancy
Discrimination Act of 1978
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Amendment to Title VII
Protects any form of discrimination based on
pregnancy
Cleveland Board of Education v. LaFleur (1974)
district’s mandatory maternity cut-off dates met no
legitimate state interest in maintaining a
continuous and orderly instructional program
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Pregnancy & Public School
Employment
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Cannot assume every pregnant teacher
is unable to perform duties beyond a
certain date
Scope of Act limited to policies that
have an impact on or treat medical
conditions relating to pregnancy and
childbirth less favorably than other
disabilities
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Discrimination in EmploymentBEST PRACTICES-Essex
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Do not, in any fashion, discriminate against
employees based on race, color, religion, gender,
or national origin
If prima facie evidence is presented by an
employee, already be prepared to show a
compelling educational interest as the motivation
(think ahead!)
Do not discriminate (retaliate against) an employee
who opposes unlawful discriminatory practices or
who participates in an investigation
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Discrimination in EmploymentBEST PRACTICES-Essex
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If aware of discrimination or harassment, take care of
the problem, or you will be liable
Do not coerce a person to retire due to age, or deny
any rights or privileges afforded other employees
Remember race discrimination affects all employees
Even if employers conduct in an employment
discrimination case is not egregious, punitive
damages can still be awarded
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Discrimination in EmploymentBEST PRACTICES-Essex
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Differential employment criteria that appear
neutral can still have an illegal disparate
impact
Employment examinations must have a
rational relationship to actual job performance
criteria
In teacher RIF situations, racial or statistical
quotas are not legally defensible
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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Scenario—Time to Work?
Discrim Emplmt/Hardison/Schl
Law 10-11-12
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