Employment Discrimination
Chapter 17
Historical Development
• Historically, employers could freely discriminate based on 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
• Age Discrimination in Employment Act 1967
• 1972 Equal Employment Opportunity Act (created the EEOC)
• 1978 Pregnancy Discrimination Act
• Civil Rights Act of 1991
• Americans with Disabilities Act 1992
• States may go beyond federal requirements
Title VII of the 1964 Civil Rights Act
Amended by Equal Employment
Opportunity Act of 1972 and 1991 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.)
(Continued)
Title VII of the 1964 Civil Rights Act
Amended by Equal Employment
Opportunity Act of 1972 and 1991 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
• Reverse discrimination (preferential treatment to members of a
protected class) is also illegal
– McDonald v. Santa Fe Trail
• African-American employee reprimanded, but kept job; the white
employee was fired. Held: Illegal under Title VII.
• Many states have their own civil rights acts modeled on Title VII
– Some states prohibit discrimination based on sexual orientation
• Some cities have civil rights laws extending discrimination coverage
– SF prohibits employment discrimination based on height or weight
Religion
• 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 such as for
safety reasons.)
• 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.
Pregnancy Discrimination
• Title VII was amended by the Pregnancy
Discrimination Act.
• Cannot discriminate against women because of
pregnancy, childbirth or related medical conditions.
• Women must be treated the same for all purposes
including fringe benefit programs.
• 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 form working
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 works for Charles Hardy. He 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
• Hardy 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
•
•
•
•
•
•
•
•
•
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
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
Supreme Court says use common sense
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 or Disabilities Act
• Amended by Lily Ledbetter
Fair Pay Act of 2009
• 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
Forms of Discrimination
•
•
•
•
•
Imposing differential standards on employees
Illegal compensation differentials
Segregation in the workplace
Constructive discharge due to harassment
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.)
Possibility of Retaliation for
Expression of Rights
• Retaliation for complaints
of discrimination is
prohibited.
• Employers who retaliate
will be punished.
• This occurs in about 1/3 of
discrimination complaints
that are filed.
Lewis v. Heartland Inns of
America, L.L.C.
•
•
•
•
•
•
•
•
•
•
Brenda Lewis began working for Heartland Inns in July 2005.
Was promoted; received two merit pay increases; mangers praised her
work and the “good impression” she made on customers.
Shortly 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
so she 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.
Three days later Lewis was fired and 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)
Lewis v. Heartland Inns of America
•
•
•
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.
Prima facie case requirements;
–
–
–
–
•
•
•
•
•
•
•
•
1) She was a member of a protected group
2) She was qualified to perform the job
3) She suffered adverse employment action
4) Circumstances permit an inference of discrimination
Burden returned to Lewis to prove that the reason for firing was pretextual.
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.
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 manger (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.
Burlington Industries, Inc.
v. Ellerth
• Ellerth worked for 15 months in sales for Burlington. She claimed
that Slovik, a manager, made sexually offensive remarks. She
inferred threats to her job.
• 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.
• ER may then raise defense that includes 1) that ER exercised
reasonable care to prevent or correct harassing behavior and 2)
the EE 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 demonstrate strength.
• 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)
EEOC v. Dial Corp., cont.
• 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.
Statutory Defenses Under Title VII
• Business Necessity: job related
– 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?
• Early Retirement Plans (which encourage voluntary
early retirement)
Remedies in Discrimination Cases
(Courts Have Broad & Flexible Powers)
•
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 began (can include fringe benefits)
– Employees must mitigate damages by seeking other work
•
Front pay – if employee was unlawfully fired
– If ex-employee finds a new job with less % pay, old employer must provide the
difference for the rest of employee’s career
•
Damage to career; inconvenience; loss of reputation (N/A in ADEA cases)
•
Reinstatement/promotion/hiring
•
Punitive damages (capped from $50,000 to $300,000 depending on firm size
(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)
• Programs are monitored and
enforced by the Office of Federal
Contract Compliance Programs
(OFCCP) in Dept. of Labor
• Companies may voluntarily
adopt a plan under Executive
Order 11246
• 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.
– Being expanded to include
disabled persons (7%)
1990 Americans With Disabilities Act
(ADA) (& 1973 Rehabilitation Act)
Most states also have laws
• Prima Facie Case:
forbidding disability
– 1) Individual has disability
discrimination
within meaning of the
– May apply to employees
statute
not covered by federal
– 2) Employer had notice of
law or may have
disability
different procedural
– 3) Could perform essential
rules
function of job with
• Compliance is in the same
reasonable accommodation
way discrimination suits
– 4) Employer refused to
are brought under Title VII
accommodate
– file with EEOC
• Applies to all employers
with 15+ employees
ADA
• 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”
– Manual tasks
– Walking/seeing
– Hearing/speaking
– Breathing/learning
– Working
• Examples of disabilities
– History of alcohol or
drug abuse
– Disfigurements
– Had heart attacks/cancer
– Must use a wheelchair
– Are hearing- or visionimpaired
– Fear of heights NOT
covered
– Being left-handed NOT
covered
Level of Disability
• 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.
Gretillat v. Care Initiatives
•
•
•
•
•
•
•
•
•
•
•
Gretillat worked in food service at nursing home.
She had to stoop, kneel, crouch or crawl as part of job movements.
After 10 years, began to suffer pain in right knee – hard to walk.
Supervisor said she no longer had to make rounds – reduced 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.
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 does not amount to a disability.
Medical diagnosis of an impairment does not qualify as a disability
per se.
Reasonable Accommodation
• 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
• 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
Preemployment 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/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.
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 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?
– Past addiction is a disability; current use of illegal drugs are not
– Current alcoholism is protected disability – applicant may not be asked re:
drinking habits (can ask if person has been arrested for DUI)
•
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
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