EMPLOYMENT
DISCRIMINATION
Chapter 16
Meiners, Ringleb & Edwards
The Legal Environment of Business, 12th Edition
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ORIGINS OF DISCRIMINATION LAW

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

EEOC established to enforce all of them

Discrimination in employment still exists – not as overt – more
subtle
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TITLE VII OF THE 1964 CIVIL RIGHTS ACT


Employers with 15 or more employees/members are subject
to the law
Protected Classes (CANNOT discriminate based on)
 Race: Black or African American; White; American Indian
or Alaska Native; Native Hawaiian or other Pacific
Islander; and Asian
 Color: Shade of skin
 Religion (reasonable accommodation of religious practices
w/o undue hardship on employer/employee )
 Sex (does not apply to sexual preference or identity)
 National Origin
 Example: Require English spoken at all times may be
discriminatory unless for reasons of safety, productivity
or legitimate job requirement
(Continued)
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TITLE VII OF THE 1964 CIVIL RIGHTS ACT



May bring an action for more than one type of discrimination
affecting an individual through certain actions by employers
Affirmative Action Programs designed to remedy past
discriminatory practices (see later slides)
Reverse discrimination (preferential treatment to members of a
protected class) is also illegal


Some states have expanded Title VII protections


McDonald v. Santa Fe Trail: African-American employee reprimanded,
but kept job; the white employee was fired. Held: Illegal under Title VII.
Some states prohibit discrimination based on sexual orientation
Some cities also have civil rights laws extending to discrimination
coverage

Prohibition against discrimination based on sexual orientation

San Francisco prohibits employment discrimination based on height or weight
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CYBER LAW
“YOUR E-MAIL IS YOUR BOSS’S E-MAIL”






Usually, e-mail sent on company computers are available for
company inspection
CASE: Sports writer for Chicago newspaper was told to quit
sending unwanted e-mail to female coworker
He didn’t quit
Employer transferred to write to another department
Federal Court HELD: Paper was within its rights
 Employee cannot complain about interference with his e-mail
 Cannot claim sex discrimination
 Employer “was obviously trying to make the best of a difficult
situation”
CASE: Chevron paid $2.2 million to settle sexual harassment
claims of women re: dirty jokes transmitted around the office.
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PREGNANCY DISCRIMINATION
o
Title VII was amended by the Pregnancy Discrimination Act.
o
Cannot discriminate against women because of pregnancy, childbirth
or related medical conditions.
o
Women must be treated the same for all purposes including fringe
benefit programs.
o
Examples:
•
Denying a woman a job, assignment or promotion because she is
pregnant or has children
•
Requiring a pregnant woman to go on leave, when she can still do her
job
•
Treating maternity differently than other leaves for temporary disabilities
•
Discriminating re: fringe benefits, such as health insurance, that
discourages women of childbearing age from working
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SEXUAL HARASSMENT
Quid Pro Quo
o
o
o
o
o
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
o
Discussing sexual activities
o
Commenting on physical
attributes
o
Unnecessary touching or
gestures; crude, demeaning,
offensive language
o
Displaying sexually suggestive
pictures
o
Trivial, isolated incidences
usually do not qualify as
harassment
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CASE
HARRIS V. FORKLIFT SYSTEMS
o
Teresa Harris was a rental manager; her boss, Charles Hardy, insulted her in
front of others
o
She is a target of sexual suggestions
o
“You’re a woman, what do you know?”
o
Called her a “dumb-ass woman”
o
“Go to the Holiday Inn to negotiate [her] raise”
o
“What did you do, promise the guy . . . [sex] Saturday night?”
o
Hardy asks women to get coins from his front pants pocket
o
Hardy throws things on the ground and asks women employees to pick them
up; makes sexual comments about clothing
o
Harris quits & sues, claiming a “hostile work environment”
o
Lower courts: Say there is no sexual harassment
o
U.S. Supreme Court Reverses: “Employee’s psychological well-being is
relevant to determine if the environment is abusive and has a discouraging
effect on the employee’s staying on job.”
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AGE DISCRIMINATION
o
1967 Age Discrimination In Employment Act (ADEA)
About 23% of discrimination claims are in this category
Prohibits discrimination in persons over 40
All employers with 20+ employees must comply
Applies to hiring, promoting, terminating
o
May not
o
o
o
o
•
Force retirement
•
Require older works to pass physical exam as a condition of continued
employment
•
Indicate age preference in advertising such as “Young, Dynamic Person
Wanted”
•
Require a physical exam as condition of continued employment (unless
it is necessary for job performance)
•
Choose a younger worker because an older one will retire soon
•
Cut health-care benefits for workers over 65 because they are eligible for
Medicare
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DISCRIMINATION BASED ON MILITARY
SERVICE
o
Uniformed Services Employment and Reemployment
Rights Act of 1994
o
Based on Person’s membership in or “obligation to
perform service in a uniform service . . .” it is Illegal for
employer to deny “employment, reemployment, retention
in employment, promotion, or any benefit of
employment”
o
Straub v. Proctor Hospital
•
Hostility to a member of the military was improper and is a tort
under federal law
•
Is a form of discrimination that does not follow EEOC process.
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GENETIC INFORMATION DISCRIMINATION

Genetic Information Nondiscrimination Act (GINA; 2009)

Illegal to discriminate in employment based on genetic
information

Genetic tests or those of person’s family member
(including medical history)

May not be obtained by employer

May not be used in any way re: suitability for
employment

Illegal for person to suffer harassment or retaliation

EEOC enforces statute

Same procedure as for Title VII
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BRINGING A DISCRIMINATION CHARGE
o
Amended by Lily Ledbetter Fair
Pay Act of 2009
o
EEOC agent hears both parties’
sides of the incident
o
First Step: Must file with a state
or federal EEOC Office
o
o
Under federal law, within 180
(states usually extend to 300)
days of alleged discrimination
event
If no settlement, the EEOC
informs the parties of the result of
the investigation
o
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)
o
Sometimes the EEOC will sue an
employer
o
100,000 complaints per year
o
Sometimes state laws have
further requirements
o
Dubious claims can be dismissed
o
EEOC then notifies the employer
of the case & investigates the
claim
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FORMS OF DISCRIMINATION
o
o
o
o
o
o
Imposing differential standards on employees
Illegal compensation differentials
Harassment may result in constructive discharge
Plaintiff must establish a Prima Facie Case
• Burden then shifts to defendant to present evidence
that claim is untrue
• After employer offers non-discriminatory reason for
employment decision, burden shifts back to plaintiff to
show that defendant had illegal motives.
Disparate treatment (intentional discrimination)
Disparate impact/adverse impact (unintentional
discrimination but the EFFECT is discriminatory. Proof of
intent not required.)
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CASE
LEWIS V. HEARTLAND INNS OF AMERICA, L.L.C.
o
o
o
o
o
Brenda Lewis began working for Heartland Inns in July 2005.
Successfully filled several positions. Was promoted; received two merit
pay increases; mangers praised her work and the “good impression”
she made on customers.
After promoted in December 2006, Director of Operations, Barbara
Cullinan, saw Lewis for the first time. Told Lewis’s supervisor she didn’t
think Lewis was a “good fit” for front desk – lacked “Midwestern girl
look.” Said front desk girl should be “pretty” and Lewis was not.
January 2007, Lewis’s supervisor refused to remove Lewis from front
desk. That supervisor was fired. Cullinan then met with Lewis to
interview her for position she already held, and told here there must be
a 2nd interview – never happened.
Lewis was fired. She sued for violation of Title VII.
Contended she was terminated for not conforming to sex stereotypes &
in retaliation for opposing discriminatory practices. District court granted
summary judgment for Heartland Inns. Lewis appealed.
(Continued)
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CASE
LEWIS V. HEARTLAND INNS OF AMERICA, L.L.C.


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HELD: Reversed and remanded for further proceedings.
Lewis presented sufficient evidence to make a prima facie case on
her claims for sex discrimination and retaliation. S. Ct. has said that
cases of sex discrimination do not compel a women to prove that
men were not subjected to same challenged discriminatory conduct.
For instance: “employer who discriminates against a women
because they won’t wear dresses, or make-up, engages in sex
discrimination, because it has to do with victim’s sex.”
Heartland procured video equipment so Cullinan could inspect a
front desk applicant “look” before any hiring.
Termination letter to Lewis relied on January 23 meeting with
Cullinan. Later then Heartland alleged poor job performance to justify
the termination.
Heartland did not follow its own written termination procedure –
conducting investigation, looking at previous disciplinary record
(Lewis had none), etc.
Ample evidence to support Lewis’s claims.
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KEY DEFENSE FOR EMPLOYERS

Employer should have a clear, effective policy and
procedures to reduce likelihood of discrimination cases.

Without policies, an employer may have a more difficult
defense.

If manager (agent) is involved with wrongful termination,
employer may be liable under vicarious liability.

Employer must have effective procedure to allow
employees to make complaints about perceived
discrimination.

Greater likelihood of punitive damages imposed on
employer if shows lack of good-faith efforts to prevent
discrimination.
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CASE
BURLINGTON INDUSTRIES, INC. V. ELLERTH

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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.
HELD: Reversed & 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.
Employer may then raise defense that includes
1) That Employer exercised reasonable care to prevent or correct
harassing behavior and
2) The Employee unreasonably failed to take advantage of those
opportunities or to avoid harm.
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EFFECTIVE COMPANY POLICY
To claim that employee failed to take advantage of inhouse protections against discrimination & harassment:
 Firm must have credible program in place.
 Knowledgeable person or staff in place to hear
complaints
 Process is secure and separate from normal internal
communication changes
 Employees believe program is trustworthy
 To further reduce sexual harassment claims:
 Some companies have policies against romances
between employees.
 What starts as consensual may end badly
 Result: Claim of harassment.

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CASE
EEOC V. DIAL CORP.
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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 demonstrate 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.
(Continued)
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CASE
EEOC V. DIAL CORP.

HELD: Affirmed.

Expert testimony indicated that WTS was more difficult than the
sausage-lifting 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.

AND 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.
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STATUTORY DEFENSES UNDER TITLE VII


Business Necessity: job related

Physical requirements/lifting boxes?

Flight attendants must be certain heights?
Professionally-Developed Ability Tests


Bona Fide Seniority or Merit System



Must predict work ability
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?
Early Retirement Plans (which encourage voluntary early
retirement)
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REMEDIES IN DISCRIMINATION CASES
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Actual and compensatory damages
Equitable remedies, Injunction
Place the plaintiff in the position he/she would have enjoyed but for the
discrimination
Back Pay – to the date the discrimination
 Employees must mitigate damages by seeking other work
Front pay – if employee was unlawfully fired
Compensatory damages
Such as: Emotional distress/medical treatment, job-hunting costs,
loss of reputation
Reinstatement/promotion/hiring
Attorneys fees, filing fees, expert witness fees, etc.
Punitive damages (capped from $50,000 to $300,000 depending on
firm size (not available in ADEA cases)
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AFFIRMATIVE ACTION

Purpose? To Remedy past
discriminatory practices

Correct underrepresentation

Adopted ONLY on race or sex
(not color, religion, national origin
or age)

Programs are monitored and
enforced by the Office of Federal
Contract Compliance Programs
(OFCCP) in Dept. of Labor

Courts may require affirmative
action as a remedy in
discrimination cases

Pres. Johnson’s Executive
Order 11246 in 1965:
government contractors must
adopt affirmative action

$50,000 in federal contracts &
50 or more employees have to
have written affirmative action
program

Workforce analysis: For each
job in the organization

Underutilization analysis:
Comparing % of minorities &
women in community in each
job category with % employed
by contractor.
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INTERNATIONAL PERSPECTIVE
“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, plus an apology, 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 higher-level
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.
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DISABILITY DISCRIMINATION
o
1990 Americans With Disabilities
Act (ADA) and the 1973
Rehabilitation Act
o
Compliance is in the same way
discrimination suits are brought
under Title VII – file with EEOC
o
Applies to all employers with 15+
employees
o
Prima Facie Case:
•
1) Individual has disability within
meaning of the statute
•
2) Employer had notice of
disability
•
3) Could perform essential
function of job with reasonable
accommodation
•
4) Employer refused to
accommodate
o
o
Cannot discriminate against a
person with a disability that “limits
a major life activity,” or has a
record of or regarded to have ”an
impairment”
Examples: Major manual tasks;
Walking/seeing;
Hearing/speaking;
Breathing/learning; Working
Examples of disabilities
• History of cancer; Severe
disfigurements; Have had heart
attacks/cancer; Must use a
wheelchair; Are hearing- or
vision-impaired; Fear of heights
not covered; Being left-handed
not covered
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LEVEL OF DISABILITY
o
o
o
o
o
o
o
ADA cases involve individual evaluation of circumstances of what
constitutes a disability in relationship to particular employment.
Disabilities are major life condition.
Tough standard to meet.
Partially impaired, need not mean person is considered disabled.
For those disabled, employers need only make a reasonable
accommodation.
Employers need not retain employees who can no longer perform
their jobs.
Ex: One dock worker over 400 lbs. was dismissed – morbid obesity
is not an impairment.
•
He couldn’t go up and down ladders as needed.
•
Could not perform the job.
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REASONABLE ACCOMMODATION

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
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Employers must make a “reasonable accommodation” BUT need not
take on an “undue hardship”
Making existing facilities accessible? Yes
Job restructuring? Yes, if no undue hardship on employer or other
workers
Special equipment & training for the disabled? Yes
Changing test, training materials or policies? Usually yes
Part-time or modified work schedules? Yes
Acquiring or modify equipment? Yes, if reasonable expense
Redesign the entire assembly line to accommodate wheelchair
employees? No
Redesigning one work station for several thousand dollars? Yes
Readers or interpreters? Yes
Completely revamp a computer system? No
Reassignment to a vacant position? Yes, if person is qualified
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CASE
KEITH V. COUNTY OF OAKLAND
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Nicholas Keith has been deaf since birth; cannot speak verbally but
can communicate using American Sign Language (ASL). Applied for
employment as lifeguard.
Took and passed all portions of county’s lifeguard training. Head of
hiring, Stavale, approved employment subject to accommodation that
Keith requested, the presence of an ASL interpreter at staff meetings
Keith passed a physical exam, but physician said Keith would require
constant accommodation.
Matters delayed – consultant was called
Consultant was dubious about Keith’s ability to perform, but had no
experience regard ability of deaf people to work as lifeguards
Stavale was sure Keith could do the job. Gave accommodation plan.
Consultant was concerned the plan might not work.
Offer of employment was withdrawn.
Keith sued for disability discrimination.
Trial Court: Summary judgment to County. Keith appealed.
(Continued)
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CASE
KEITH V. COUNTY OF OAKLAND

HELD: Reversed and remanded

Keith is disabled under the ADA.

Issues: Whether Oakland County made an individualized inquiry. Whether
Keith is otherwise “qualified for the position with or without reasonable
accommodation.” Whether Oakland County engaged in interactive process

People with disabilities “ought to be judged on basis of their abilities . . . not
judged . . . based on unfounded fear, prejudice, ignorance or mythologies . . . .”

ADA requires employers to make decisions that are NOT based on stereotypes
& generalizations.

There is evidence that jury could find he can communicate effectively despite
his deafness. He can adhere to 10/20 standard of zone protection – scanning
technique. Scan in 10 seconds; reach a part of their zone in 20 seconds.

Ability to hear is unnecessary to perform essential lifeguard functions.

He is “otherwise qualified” to perform the job.

World record for most lives saved (900) – Leroy Colombo -- a deaf man
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PRE-EMPLOYMENT GUIDANCE

ADA Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations

ADA prohibits employers asking disability-related questions or requiring
medical exams before the job is offered.

What you may and may not 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.

If physical exam is given to new employees, similar exams must be given to
all employees in same job category.

Results must be kept confidential.

Exams must be related to ability to do the job – not to screen out employees
with potential health problems.

When applicant is qualified for employment, may need a professional
assessment of limitations and accommodations.
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EXAMPLES OF 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 HIV-positive

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
©2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.