MARIANNE M. JENNINGS
7th Ed.
Its Legal, Ethical, and
Global Environment
Chapter 20
Employment Discrimination
Copyright ©2006 by West Legal Studies in Business
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History
• No Protection Under Common Law due
to the “at-will” employment doctrine.
• Civil Rights Act of 1866.
• Equal Pay Act of 1963.
• Title VII of the Civil Rights Act of 1964.
– Prohibited discrimination in employment on
the basis of race, color, religion, sex, or
national origin (Amended by the Equal
Employment Opportunity Act of 1972).
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History
• Title VII of the Civil Rights Act of 1964.
– EEOC created.
– Federal courts given jurisdiction for suits.
– Equal Employment Opportunity Act of 1972
expanded power of EEOC.
– Amended in 1975 by the Pregnancy
Discrimination Act.
• Prohibited discrimination on the basis of
pregnancy or childbirth.
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History
• Age Discrimination Act of 1967
expanded Title VII protections to include
age.
• Rehabilitation Act of 1973: prohibits
federal contractors from discriminating
against the handicapped.
• Americans with Disabilities Act of 1990:
provides protection for workers with
disabilities and imposes requirements for
access.
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History
• Executive Orders: apply to agencies
and federal contractors.
• Family and Medical Leave Act:
– Provides Family member with right to
12 weeks unpaid leave
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Title VII Civil Rights Act
• Prohibits Discrimination on Basis of:
– Race.
– Color.
– Religion.
– National origin.
– Sex.
– Pregnancy.
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Title VII Civil Rights Act
• Application of Title VII:
– Employers with 15 or more employees
(for at least 20 calendar weeks).
– Labor unions with 15 members and/or a
hiring hall.
– Employment agencies that work for
covered employers.
– State and local agencies.
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Title VII Civil Rights Act
• Non-covered Employees:
– Employment of aliens outside the
United States.
– Religious corporations, when hiring
for religious positions.
– Congress.
– Federal government (they have a
separate scheme).
– Indian tribes.
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Title VII Civil Rights Act
• Employment Procedures Covered:
– Hiring.
– Compensation.
– Training
.conditions.
– Promotion.
– Employment
agencies referrals.
– Demotions .
– Transfers.
– Fringe benefits.
– Rules.
– Working
– Dismissals.
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Disparate Treatment
• Treating employees or potential employees
differently on the basis of race.
• McDonnell Douglas v. Green established
the required elements.
–
–
–
–
–
Plaintiff belongs to a minority group.
Plaintiff applied for and was qualified for job.
Plaintiff was rejected (despite qualifications).
Job remained open.
Employer’s burden of proof to show.
nondiscriminatory reason for the non-hire.
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Disparate Treatment
• Case 20.1 Chescheir v. Liberty
Mutual Ins. Co. (1983).
– What employer rule is at issue?
– Were there examples of disparate use of
the rule?
– Is there a prima facie case?
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Disparate Impact
• Not intentional discrimination.
• Rule results in different effect on groups.
– Example: Dothard v. Rawlinson—minimum
height and weight requirement for prison
guards had the effect of eliminating women.
• Mostly statistical cases showing impact.
– In Wards Cove Packing Co., Inc. v. Atonio
(1989), the Supreme Court put greater
burdens of proof on Title VII plaintiffs.
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Disparate Treatment
• Civil Rights Act of 1991.
– Key provisions of the bill include a provision for
jury trials in discrimination cases.
– Provides compensatory damages whereas now
the only remedies are back pay and
reinstatement.
– Employers required to carry the burden of
business necessity in establishing a defense to a
Title VII case.
– 1991 Amendments also require the plaintiff
employee to show causation between the practice
of the employer and the disparate impact
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Specific Applications
• Pattern or Practice of Discrimination.
– Generally involves a statistical comparison.
Example: 38 percent of work force in a
community is black; 6 percent of an
employer’s work force is black.
• Sex Discrimination: “protective”
legislation is prohibited.
– Examples: Lifting (30 lbs..) restrictions,
safety restrictions, height/weight requirement.
Ads cannot specify male or female
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Vicarious Liability
• Case 20.2 Burlington Industries,
Inc. v. Ellerth (1998).
– When will an employer be held liable for
sexual harassment despite a lack of
knowledge?
– What major issues does the dissenting
opinion raise?
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Sexual Harassment
• Covered by EEOC guidelines.
• Employers must have policies on
harassment.
• Possible Liability for:
• Demands for sexual favors—“quid pro quo”.
• Environment of sexual suggestion.
• Hostile conduct for refusal to provide sexual
favors.
• Verbal or physical suggestions.
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Sexual Harassment
• Cannot be fired for refusal to accept
sexual advances.
• Managers and companies have
liability for failure to take action on
complaints of sexual harassment.
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Specific Applications
• Pregnancy Discrimination Act of 1974.
– Coverage and protections:
•
•
•
•
•
•
Cannot require pregnant employee to quit.
Cannot demote upon return to work.
Cannot refuse to allow employee to return to work.
Same sick rules for pregnancy as other ailments.
Same insurance coverage.
No promotion or hiring refusals because of
pregnancy.
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Sexual Discrimination
• Case 20.3 International Union v.
Johnson Controls, Inc. (1991).
– Are circumstance given when sex is a
BFOQ?
– What is the Court’s position on tort
liability of the company with respect to
the fetus?
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Religious Discrimination
• Permitted when religious
organization is hiring people as
pastors or for religious duties.
• Employers must make reasonable
accommodations for employees.
– Case 20.4 Buonanno v. AT&T
Broadband, LLC (2004).
• How could AT&T have accommodated
the Plaintiff?
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Affirmative Action
• What is Affirmative Action?
– Affirmative action is a remedial step taken to
ensure that those who have been victims of
discrimination in the past are given the
opportunity to get work.
– It is neither required nor prohibited under Title
VII.
– Any employer can have an affirmative action
program. Cannot use quotas but can set goals.
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Affirmative Action
• Who is Required to Have Affirmative
Action Programs?
– Those who have been subject to court orders
or consent decrees
– Those who are state and local agencies,
colleges and universities receiving federal
funds.
– Those who are government contractors
– Those who are businesses that work on federal
projects
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Affirmative Action
• Preparing an Affirmative Action
Program:
– Begin with equal employment
opportunity statement.
– Appoint an affirmative action officer.
– Conduct an internal audit.
– Establish overall goals and even goals
for certain areas.
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Affirmative Action: Backlash
• Case 20.5
(2003).
• Case 20.6
(2003).
Grotz v. Bollinger
Grutter v. Bollinger
– What are the guiding principles in these
cases?
– Is race-based admissions criteria still
allowed?
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Defense: BFOQ
• Bona Fide Occupational Qualification
(BFOQ).
– Qualification of sex or religion is
necessary for job.
• Examples: Pastor of Methodist churches
must be Methodist, actors and actresses for
parts.
– Customer preference is not a BFOQ.
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Defense: Seniority
•
•
•
•
Sometimes a valid defense to Title VII.
Must be bona fide.
Must apply to all employees.
Origins of the system cannot be
discriminatory.
• Cannot be used to perpetuate
discrimination.
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Defense: Aptitude
•
•
•
•
Tests must be validated.
Job-related.
Do not eliminate certain races.
Validate by following employees for
correlation between test scores and
job performance.
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Defense: Misconduct
• Defense that there was a valid reason
for termination or different treatment.
• Employer could even use misconduct
by employee discovered after
termination.
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Misconduct Limits
• Case 20.7 McKennon v. Nashville
Banner Publishing Co. (1995).
– Does Banner deny discriminatory intent?
– Is reinstatement a remedy?
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Title VII Enforcement
• EEOC is Responsible.
– Five-member commission.
– Appointed by president/approved by
Senate.
– No more than three from same party.
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Title VII Enforcement
• Steps in an EEOC Case:
– Complaint.
• Filed by employee.
• Must be done within 180 days from the violation.
• Filed with EEOC or state agency.
– Employer is notified of the charge.
– EEOC has 180 days from filing of complaint
to take action.
– If case not settled within 180 days, employee
gets right-to-sue letter.
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Title VII Enforcement
• Remedies:
– Injunctions.
– Back pay.
– Punitive damages.
– Affirmative action.
– Attorneys’ fees.
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Other Antidiscrimination Laws
• Age Discrimination in Employment Act of
1967:
– Applies to employers with 20 or more
employees.
– Protects those who are 40 years of age.
• Equal Pay Act of 1963: Equal pay for equal
work.
• Communicable Diseases in the Workplace.
– Arline case held that employer could not
discriminate on the basis of tuberculosis.
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Other Antidiscrimination Laws
• Rehabilitation Act of 1973.
– Protection for handicapped.
– Enforced by Labor Department.
– Must make reasonable accommodations for
handicapped.
– Employers covered:
• Federal contacts over $2,500.
• States and municipalities.
– Covers: Diabetes, epilepsy, heart diseases,
cancer, retardation, blindness, deaf persons,
former drug addicts and alcoholics.
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Other Antidiscrimination Laws
• Americans with Disabilities Act:
– Applies to employers with 15 or more
employees.
– Required to make reasonable accommodations
for handicapped.
• Cost, size of work force, nature of operations.
– Cannot use tests to screen out handicapped
applicants.
– Local governments required to make
transportation available to handicapped.
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Other Antidiscrimination Laws
• Case 20.8
(2001).
PGA Tour v. Martin
– Why does Martin wish an
accommodation?
– Is Martin seeking a public or employee
accommodation?
– Will the game of golf be changed?
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Other Antidiscrimination Laws
• Family and Medical Leave Act.
– Twelve weeks’ unpaid leave each year
for birth or adoption of child, illness of
spouse, parent, or child.
– Must return to same job or equivalent.
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The Global Work Force
• Companies Must Follow Restrictions
of Host Country.
– UN treaties support equal pay and
nondiscriminatory treatment.
– EU follows all the treaties.
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