11397

Pages: 10 pages ( 2750 words, Double spaced

Slides: 2

Subject or discipline: Law

Title: Employment Law Cases

Number of sources: 3

Paper instructions: ATTACHED

Assignment Instructions

Week 6 Project Assignment 

Individual Paper- Each student will choose three cases, each from a different chapter, from the readings in weeks 3 and 4 (Chapters 7, 8, 9, 10, 11, and 12). No students on a team will choose the same cases and there should be no duplicate cases.  A Reference page should be provided.

· Your responses should be well-rounded and analytical, and should not just provide a conclusion or an opinion without explaining the reason for the choice. For full credit, you need to use the material from the week’s lectures, text and/or discussions when responding to the questions.

· Utilize the case format below:

1. Read and understand the case. Show your Analysis and Reasoning and make it clear you understand the material. Be sure to incorporate the concepts of the chapter we are studying to show your reasoning. Dedicate at least one sub-heading to each following outline topic:

· Facts [Summarize only those facts critical to the outcome of the case]

· Issue [Note the central question or questions on which the case turns]

· Explain the applicable law(s). Use the textbook here. The law should come from the same chapter as the case. Be sure to use citations from the textbook including page numbers.

· Holding [How did the court resolve the issue(s)? Who won?]

· Reasoning [Explain the logic that supported the court’s decision]

2. Dedicate 1 sub-heading to each of the case questions immediately following the case. First, restate the question and then fully answer.

3. Conclusion. This should summarize the key aspects of the decision and also your recommendations on the court’s ruling

4. Include citations and a reference page with your sources. Use APA style citations and references.

Group Presentation- The group will meet and create a team presentation using narrated power point (or live for onsite classes). This will be a summary in order to contrast and compare the various cases selected by all team members and the law applied. Each student should participate in the Narrated Power Point. This requires each group member to pick a legal argument and use a case from the cases you have worked on to give context for your legal argument. Requires only two PPT slides. The legal concept you will use is Title VII to defend religious discrimination from chapter 11.

Chapter 7 Case: Vega v. Hempstead Union Free Sch. Dist.

Chapter 9 Case: Faragher v. City of Boca Raton

Chapter 11 Case: Trans World Airlines, Inc. v. Hardison (PPT case)

Paper Rubric: 100 points (Each student graded separately).

Category Points Description:

· Use of Case Format: 60 Points (20 points per case). Paper is clear and fully contains the facts, issues, applicable law, holding, reasoning and conclusion. The presentation contains well rounded and analytical, and should not just provide a conclusion or an opinion without explaining the reason for the choice. The paper incorporates the concepts of the chapter from which the case was chosen.

·  Case Questions: 30 Points (10 points per case). Dedicates 1 subheading to each of the case questions immediately following the case. Restates the question and then fully answers.

· APA Format: 10 Points.  Includes citations and a reference page with your sources. Use APA style citations and references

Presentation Rubric (50 points). Group Grade will be assigned.

Category Points Description:

· Learning Points Presentation: 30 Points. 10 Points per learning point or concept.  Presentation is clear, concise, professional, and easy to follow.  The presentation is well-rounded and the analysis reflects higher order thinking. The presentation should not just provide a conclusion or an opinion without explaining the reason therefore.

· Research:10 Points
Incorporate the concepts of the chapters we are studying and demonstrates research based on Internet and/or DeVry Library resources.

· Project Format: 10 Points
Presentation contains no spelling, grammar, typographical or formatting errors, graphics and charts are clear and legible. Writing quality is excellent – clear, organized and professional.

Guide to Reading Cases

Thank you very much to the several students who have contacted us and asked that we improve your understanding by including a guide to reading and understanding the cases. We consider the cases an important and integral part of the chapters. By viewing the court decisions included in the text, you get to see for yourself what the court considers important when deciding a given issue. This in turn gives you as a decision maker insight into what you need to keep in mind when making decisions on similar issues in the workplace. The more you know about how a court thinks about issues that may end up in litigation, the better you can avoid it.

We provide the following in order to help you better understand the cases so that you can use them to their fullest. In order to tell you about how to view the cases, we have to give you a little background on the legal system. Hopefully, it will only be a refresher of your previous law or civics courses.

Stare Decisis and Precedent

The American legal system is based on stare decisis, a system of using legal precedent. Once a judge renders a decision in a case, the decision is generally written and placed in a book called a law reporter and must be followed in that jurisdiction when other similar cases arise. The case thus becomes precedent for future cases.

Most of the decisions in the chapters are from federal courts since most of the topics we discuss are based on federal law. Federal courts consist of trial courts (called the “U.S. District Court” for a particular district), courts of appeal (called the “U.S. Circuit Court” for a particular circuit), and the U.S. Supreme Court. U.S. Supreme Court decisions apply to all jurisdictions, and once there is a U.S. Supreme Court decision, all courts must follow the precedent. Circuit court decisions are mandatory precedent only for the circuit in which the decision is issued. All courts in that circuit must follow the U.S. Circuit Court precedents. District court decisions (precedent) are applicable only to the district in which they were made. When courts that are not in the jurisdiction are faced with a novel issue they have not decided before, they can look to other jurisdictions to see how they handled the issue. If such a court likes the other jurisdiction’s decision, it can use the approach taken by that jurisdiction’s court. However, it is not bound to follow the other court’s decision if that court is not in its jurisdiction.

Understanding the Case Information

With this in mind, let’s take a look at a typical case included in this book. Each of the cases is an actual decision written by a judge. The first thing you will see is the case name. This is derived from the parties involved—the one suing (called plaintiff at the district court level) and the one being sued (called defendant at the district court level). At the court of appeals or Supreme Court level, the first name generally reflects who appealed the case to that court. It may or may not be page xliithe party who initially brought the case at the district court level. At the court of appeals level, the person who appealed the case to the court of appeals is known as the appellant and the other party is known as the appellee. At the Supreme Court level they are known as the petitioner and the respondent.

Under the case name, the next line will have several numbers and a few letters. This is called a case citation. A case citation is the means by which the full case can be located in a law reporter if you want to find the case for yourself in a law library or a legal database such as LEXIS/NEXIS or Westlaw. Reporters are books in which judges’ case decisions are kept for later retrieval by lawyers, law students, judges, and others. Law reporters can be found in any law library, and many cases can be found on the Internet for free on websites such as Public Library of Law (plol.org) or FindLaw.com.

Take a minute and turn to one of the cases in the text. Any case will do. A typical citation would be “72 U.S. 544 (2002).” This means that you can find the decision in volume 72 of the U.S. Supreme Court Reporter at page 544 and that it is a 2002 decision. The U.S. reporters contain U.S. Supreme Court decisions. Reporters have different names based on the court decisions contained in them; thus, their citations are different.

The citation “43 F.3d 762 (9th Cir. 2002)” means that you can find the case decision in volume 43 of the Federal Reporter third series, at page 762 and that the decision came out of the U.S. Circuit Court of Appeals for the Ninth Circuit in the year 2002. The federal reporters contain the cases of the U.S. Circuit Courts of Appeal from across the country.

Similarly, the citation “750 F. Supp. 234 (S.D. N.Y. 2002)” means that you can find the case decision in volume 750 of the Federal Supplement Reporters, which contain U.S. district court cases, at page 234. The case was decided in the year 2002 by the U.S. District Court in the Southern District of New York.

In looking at the chapter cases, after the citation we include a short blurb on the case to let you know before you read it what the case is about, what the main issues are, and what the court decided. This is designed to give you a “heads up,” rather than just dumping you into the case cold, with no background on what you are about to read.

The next line you see will have a last name and then a comma followed by “J.” This is the name of the judge who wrote the decision you are reading. The “J” stands for “judge” or “justice.” Judges oversee lower courts, while the term for them used in higher courts is “justices.” “C. J.” stands for “chief justice.”

The next thing you see in looking at the chapter case is the body of the decision. Judges write for lawyers and judges, not for the public at large. As such, they use a lot of legal terms (which we call “legalese”) that can make the decisions difficult for a nonlawyer to read. There are also many procedural issues included in cases, which have little or nothing to do with the issues we are providing the case to illustrate. There also may be many other issues in the case that are not relevant for our purposes. Therefore, rather than give you the entire decision of the court, we instead usually give you a shortened, excerpted version of the case containing only the information relevant for the issue being discussed. If you want to see the entire case for yourself, you can find it by using the citation provided just below page xliiithe name of the case, as explained above. By not bogging you down in legalese, procedural matters, and other issues irrelevant to our point, we make the cases more accessible and understandable and much less confusing, while still giving you all you need to illustrate our point.

The last thing you will see in the chapter cases is the final decision of the court itself. If the case is a trial court decision by the district court, it will provide relief either for the plaintiff bringing the case or for the defendant against whom the case is brought.

If a defendant makes a motion to dismiss, the court will decide that issue and say either that the motion to dismiss is granted or that it is denied. A defendant will make a motion to dismiss when he or she thinks there is not enough evidence to constitute a violation of law. If the motion to dismiss is granted, the decision favors the defendant in that the court throws the case out. If the motion to dismiss is denied, it means the plaintiff’s case can proceed to trial.

The parties also may ask the court to grant a motion for summary judgment. This essentially requests that the court take a look at the documentary information submitted by the parties and make a judgment based on that, as there is allegedly no issue that needs to be determined by a jury. Again, the court will either grant the motion for summary judgment or deny it. If the court grants a motion for summary judgment, it also will determine the issues and grant a judgment in favor of one of the parties. If the court dismisses a motion for summary judgment, the case proceeds to trial.

If the case is in the appellate court, it means that one of the parties did not like the trial court’s decision. This party appeals the case to the appellate court, seeking to overturn the decision based on what it alleges are errors of law committed by the court below. Cases cannot be appealed simply because one of the parties did not like the facts found by the lower court. After the appellate court reviews the lower court’s decision, the court of appeals will either affirm the lower court’s decision, which means the decision is allowed to stand, or it will reverse the lower court’s decision, which means the lower court’s decision is overturned. If there is work still to be done on the case, the appellate court also will order remand. Remand is an order by the court of appeals to the lower court telling it to take the case back and do what needs to be done based on the court’s decision.

It is also possible that the appellate court will issue a per curiam decision. This is merely a brief, unsigned decision by the court, rather than a long one.

Following the court’s decision is a set of questions that are intended to translate what you have read in the case into issues that you would likely have to think about as a business owner, manager, or supervisor. The questions generally are included to make you think about what you read in the case and how it would impact your decisions as a manager. They are provided as a way to make you think critically and learn how to ask yourself the important questions that you will need to deal with each time you make an employment decision.

The opening scenarios, chapter cases, and case-end questions are important tools for you to use to learn to think like a manager or supervisor. Reading the courts’ language and thinking about the issues in the opening scenarios and case-end questions will greatly assist you in making solid, defensible workplace decisions as a manager or supervisor.

(Bennett-Alexander xli-xliii)

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

The citation provided is a guideline. Please check each citation for accuracy before use.

Chapter 9: Sexual Harassment

Opening Scenarios

SCENARIO 1

A female employee tells her supervisor that she is disturbed by the workplace display of nude pictures, calendars, and cartoons. He replies that, if she is bothered, she should not look. The employee suspects this is a form of sexual harassment. Do you agree? Why or why not?

SCENARIO 2

An employee routinely compliments colleagues about their appearance, hair, and body. Is this sexual harassment? Why or why not?

SCENARIO 3

A male and female employee have engaged in a two-year consensual personal relationship, which ends. The male continues to attempt to get the female to go out with him on dates. When she does not, she is eventually fired by the male, who is her supervisor. She sues, alleging sexual harassment. Who wins and why?

Statutory Basis

It shall be unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex [gender] . . . . [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e2(a).]

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. [Source: 29 C.F.R. § 1604.11 (a) (EEOC Sexual Harassment Guidelines).]

Since Eden . . . and Counting

Introduction

Imagine your boss whacking you over the head with his naked penis, then the same day, lifting your shirt and masturbating on you while he held you down, and ejaculating on you. That is precisely what happened in an Aaron’s Rents case in St. Louis. The jury awarded the employee a whopping $95 million against the national rent-to-own chain. It is one of, if not the largest, single sexual harassment awards in history.1 Experience tells us that of all the chapters you will read in this book, this is probably the single most perplexing. Why in the world would someone engage in such an unnecessary act that can have such wide-ranging negative consequences for the employer? Why would an employer permit it? You will page 427probably find yourself asking this over and over as you go through the chapter. You will likely find yourself asking how this could ever be worth it to an employer when it is so purely personal?

No matter what the workplace, whether employees are practicing law, serving customers, hosting a television show, being the president of the United States, running a medical clinic, or being a professor, the fact that it is a workplace means we presume a certain standard for our interaction with co-workers. It may be loosely defined, but we know it is there. Just picture what you think your workplace will be like when you graduate. You worked long and hard to get that diploma; you shlep from one interview to another in a race to obtain a job before graduation; you step out into the workplace feeling a degree of trepidation and uncertainty but knowing that, if given a chance, you’ll be able to work hard and make your dreams come true. You take a job where it is a given that you will have dignity and respect and be allowed to contribute your time and energies to the productivity of your employer. Without even giving it much thought, you may expect there to be some unpleasant personalities and even jerks in your workplace, but you still expect a certain level of decorum.

With this picture in mind, we guarantee that the following situations do not comport with your idea of a workplace you would like to step into. Keep in mind that these incidents are only a few from many, many in the last few years. They are provided in order for you to see the varied ways in which this issue is manifested in the workplace so you will be more likely to recognize it when you see it. These are not easy issues to talk about, and they are not always for the faint of heart. This is especially so sitting in a class with others. But, it is what it is—we are all grown-ups and it is the law and these things happen, so you need to know. As someone who will likely be faced with this issue as a manager, you cannot afford to be shy. Sexual harassment in the workplace happens and more frequently than you would think and one of the main ways the cases go farther than they need to is because of the hesitation managers have in addressing the issue. Backing away from it will not help you learn what you need to in order to prevent liability. These cases are not provided for purposes of sensationalism or titillation. They are far too sad. They are cases that arise in the workplace and cause great consternation and distress not only to the harassee, but also to those who witness it, those who must address it, those who must pay for it, those whose family members must see their loved one suffer, and those who are employed at the workplace and are embarrassed by the negative publicity. The impact on the workplace in terms of embarrassment, loss of time in dealing with the issue, the cost of litigation and judgments or settlements, and loss of productivity is simply not worth it. This is especially so for us, as taxpayers who have to pay out about $1 million a year to sexually harassed staffers of legislators on Capitol Hill.2

•Roger Ailes, 76-year-old chair of Fox News, stepped down in 2016 soon after anchor and reporter Gretchen Carlson accused him of sexual harassment. Reporter Megyn Kelly soon followed with similar allegations. Then others came forward. The company spent millions of dollars settling the suits. It was said that Ailes’s actions had been going on for a very long time and because of the culture at Fox and his position, he was not stopped.3page 428

•Fox News celebrity Bill O’Reilly also settled a case with reporter Juliet Huddy for sexual harassment, with Huddy alleging he repeatedly called her, including while on vacation, gave her a key to his hotel room, tried to kiss her, repeatedly propositioned her, and had “highly inappropriate and sexual” conversations with her, at times sounding like he was masturbating.4

•The director of the Federal Communications Commission’s Office for Communications Business Opportunities allegedly not only had sex with a Washington Post reporter in his office, but management refused to act when a male employee repeatedly invited other male employees to watch pornography with him in the cubicle next to that of a female employee, with a male keeping watch, while the female employee would “hear groans—mmm, mmm, ahh—” in response to their viewing.5

•When a Deutsche Bank employee alleged he experienced sexual harassment by his supervisor, he said top managers pressured him to rescind the claims, which took him months to bring forward for fear of no confidentiality since the bank had a policy not allowing employees to talk critically about someone unless the person was present. Their Principal No. 11: “Never say anything about a person you wouldn’t say to him directly. If you do, you are a slimy weasel.”6

•A Chicago court found for a female employee in a suit against Custom Companies, a trucking company in Northlake, Illinois, when it determined that the founder and top managers in the company engaged in “reprehensible conduct” against three female sales representatives by repeatedly touching; groping; making sexually explicit comments using lewd language; and exposing them to pornography, jokes, sexual advances, and a sexually charged atmosphere, which included making them take clients to strip clubs and other places of adult entertainment. In sharply criticizing the harassers in a 50-page memorandum opinion, among other things, the court enjoined Custom from further engaging in such activity and ordered them to send a letter to their clients notifying them of the court’s decision.7

•A male lawyer sued his ex-firm for trying to bully him into going to an all-male weekend retreat that could involve naked participants passing around a wooden phallus in a circle and describing their sexual experiences, and becoming “extremely hostile” and refusing to pay him because of his refusal.8

•A female employee was awarded $1.7 million after her employer spanked her in front of co-workers in what the employer called a “camaraderie-building exercise” that pitted sales teams against each other, with winners throwing pies at the losers, feeding them baby food, making them wear diapers, and spanking them.9

•Lutheran Medical Center in Brooklyn, New York, agreed to pay nearly $5.5 million to settle a sexual harassment case in which a hospital doctor allegedly subjected more than 50 female employees to invasive touching and intrusive questions about their sex life during mandatory physical exams. He threatened to delay or deny their employment if they did not cooperate.10

•A former Delta Airlines pilot filed suit alleging Delta ignored her complaints about being sexually harassed while in the cockpit then shunned by page 429her fellow pilots refusing to talk to her during flight operations when she reported it.11

•A University of Alabama student sued Best Buy claiming that Geek Squad Technical Support staff members circulated nude photos of her from her computer after taking it in for repairs.12

•Superman, Flashdance, and The Color Purple film producer, Jon Peters, was ordered to pay $3 million to his former assistant after the jury found she was subjected to sexual harassment through, among other things, Peters fondling her and climbing into bed with her in a hotel room. Peters had already been sued by a male co-worker for touching him or touching himself and the year before by a maid who claimed he tried to touch her breasts and push her onto his bed while he was naked.13

•Powerful New York “kingmaker” assemblyman Vito Lopez was censured by the New York Assembly after “alarming” complaints of sexual harassment against women who worked in his office.14

•The dog groomer for a New York socialite sued for sexual harassment after repeatedly being subjected to sexual advances by his employer as he tried to train her dogs.15

•Burger King settled a claim for sexual harassment of seven female employees, six of whom were high school students, after the manager subjected them to repeated groping, vulgar sexual comments, and demands for sex. Nothing was done when this was reported to assistant managers at the restaurant or to the district manager.16

•A New Hampshire judge was convicted of assault on five women who were victim’s advocates of his court after groping them at a conference on sexual assault and domestic violence. Late-night partying at the conference also led to the attorney general’s resignation after an investigation into his inappropriate touching of a woman while dancing.17

•Donald D. Thompson, a federal district court judge, married and the father of three grown children, was disbarred and sentenced to four years in prison after allegations that he habitually masturbated with a penis pump under his robe at trial. The claim was bolstered by semen samples on his robe, chair, and carpet and behind the bench; as well as witnesses such as the court reporter, lawyers who heard the “whooshing” sound made by the pump, and police officers who took photos of the pump under the desk during a break in a murder trial after seeing a piece of plastic tubing disappear under the judge’s robe. It was expected that a number of defendants would appeal, alleging the judge was not paying sufficient attention while presiding over their trials. It was reported, “During one trial, the judge seemed so distracted that some jurors thought he was . . . tying fishing lures behind the bench.”18

We could go on, but we will stop here. You get the message. From The Price Is Right game show host Bob Barker,19 to governor and actor Arnold Schwarzenegger (who, after being dogged by allegations of sexual misconduct with up to 16 women page 430during his campaign for governor of California, underwent a voluntary course in preventing sexual harassment after his election)20; from the founder of Habitat for Humanity, to conservative talk show host Bill O’Reilly (in a different case),21 to a sitting president (Bill Clinton, who was governor at the time the event occurred), no one seems to be immune from engaging in sexual harassment. (See Exhibit 9.1, “Even a Professor. . . .”) Sexual harassment suits are still far more frequent an occurrence than we would like them to be, if for no other reason than they cost the employer totally unnecessary time, effort, energy, bad press, and money for purely personal reasons of the harasser.

Exhibit 9.1 Even a Professor . . .

No doubt you have heard about President Bill Clinton’s sexual encounter with White House intern Monica Lewinsky. This situation involved a student who evidently resembled Ms. Lewinsky and the professor who kept reminding her of that fact in front of other students.

Inbal Hayut, a female student of political science professor Alex Young at the University of New York at New Paltz, sued Professor Young for nicknaming her “Monica” and subjecting her to harassment about it over the course of the semester. Hayut apparently resembled Monica Lewinsky, the White House intern who had an affair with then-President Bill Clinton and was much in the news at the time. Professor Young opened virtually every class session by asking Hayut in front of the entire class, “How was your weekend with Bill?” Hayut alleged that twice in class Professor Young told her, “Be quiet, Monica. I’ll give you a cigar later.” She asked Professor Young to stop referring to her as “Monica” but was ignored. Classmates mockingly addressed Hayut as “Monica” outside class.

Hayut said the comments affected her deeply, humiliated her in front of her classmates, and made it difficult for her to sleep or concentrate at school or work. She barely passed her courses that semester, received failing grades the next term, withdrew from the school, and had to complete a year of remedial work before she could transfer to another school.

Hayut sued the university, the professor, and several school administrators for, among other things, violating the Title IX Educational Amendments of 1972, which prohibit gender discrimination in any education program or activity receiving federal financial assistance. Professor Young, who had been teaching for 30 years, admitted making the statements, but said they were a joke. He retired a month after school administrators met to decide what to do about the situation.

In the lawsuit, the school claimed the actions by Professor Young did not amount to sexual harassment. The court ruled that Professor Young, as “a teacher at a state university, was a state actor vested with considerable authority over his students.” His comments were severe and pervasive enough to transcend the bounds of propriety and decency and became actionable harassment, and Hayut’s academic performance suffered as a result. [Hayut v. SUNY at New Paltz, et al., 352 F.3d 733 (2d Cir. 2003).]

In 1991, the first sexual harassment class action was approved in Jenson v. Eveleth Taconite, Inc.22 Leading up to the class action certification proceedings there was much speculation in the legal community as to whether such a thing could be done, or even if it really needed to be done. How frequently could there possibly be a case with so many charges that a class action suit was necessary? Unfortunately, in the years since, many such cases have been brought, involving both men and women. Few are brought to trial. The risk to the employer is too great. Sexual harassment page 431class action trials (actual trials, not lawsuits filed) have been called “a white buffalo” by one lawyer because so few are seen.23 Many cases are filed, but they are settled rather than litigated as a means of avoiding bad publicity and the possibility of even greater damages if the matter goes to trial. Keep in mind that at trial the jury would hear employee after employee take the witness stand and under oath tell similar stories, generally of a grossly inappropriate-for-the-workplace, graphic sexual nature, often from the employer’s offices all over the country. To think that there would be enough employees experiencing sexual harassment at a workplace to even be certified as a class action (no small feat!) ought to give you cause for concern as a future manager, supervisor, or business owner.

The Eveleth case became the inspiration for the Academy Award–nominated movie North Country, starring Charlize Theron, detailing the very ugly situation the employee faced in trying to do something about the sexual harassment of herself and other female employees. The film was based on the book Class Action by Clara Bingham and Laura Leedy Gansler.24 In addition to the class action suits set forth above, consider these:

•CB Richard Ellis, a $1.6 billion, publicly traded commercial real estate brokerage firm with 17,000 employees in 300 offices around the world, was sued by female employees whose affidavits alleged management condoned and perpetuated discrimination and sexual harassment against women through such things as its decades-old, much-touted, annual “Fight Night” event in Atlanta. This was characterized as a “rowdy, black-tie Vegas-style boys night out of cigar smoke, boxing, and women on display.” Female employees were chosen to wear evening clothes and serve them and their clients drinks and cigars. At work, female employees across the country alleged they were subjected to groping, degrading comments, and vulgar discussions about sex and women’s body parts. Male employees also exposed themselves to female employees. The plaintiffs alleged daily circulation of offensive, lewd, and pornographic emails; granting or withholding permission to interface with customers based on a female employee’s looks; viewing of pornographic websites and videos in the office; and the display of offensive, lewd, and pornographic pictures and calendars in the office. The real estate brokerage firm eventually settled the case for an undetermined amount that included, among other things, $3.4 million in attorney fees and a $400,000 donation to a women’s real estate trade group for scholarships.25

•The EEOC brought a class action suit against Red Lobster in Salisbury, MD, for “egregious sexual harassment” including the culinary manager pressing his groin against them, grabbing and groping them, and making sexually offensive comments such as frequent remarks about the female employees’ bodies and about his genitals.26

•In the EEOC’s longest discrimination suit in the history of its Chicago office, a class action suit on behalf of more than 100 women against International Profit Associates, Inc., was settled with the employer admitting to “an unlawful pattern or practice of tolerating sexual harassment.”27

•page 432A Las Vegas real estate developer subjected a class of women to sexual propositions, touching, and even threats at gunpoint.28

•Merchant Management Systems Resources, Inc., subjected a class of female employees to “egregious” sexual harassment and retaliation if they complained, including sexual comments and touching, up to coerced sexual intercourse.29

•Dial Corporation, maker of Dial soap, entered into a consent decree with the EEOC to settle a class action by 91 women who alleged that the Dial Corporation’s soap factory in Montgomery, Illinois, had a sexually abusive environment for years and management either participated in the activities or did nothing when it was reported. Harassing activity included everything from grabbing female employees and fondling their breasts, to sexual comments and propositions, to placing a sanitary napkin doused with ketchup beside a female employee’s tool box, as well as a life-sized penis carved from pink soap.30

•Thirty-two female employees at the U.S. Mint’s Denver plant, nearly one-third of the females, filed suit alleging they were subjected to sexist comments, treated more favorably if they had sex with some managers, disciplined more harshly than men, discouraged from complaining about the treatment, and ignored after they met with Mint officials. Until they met with higher authorities at the U.S. Treasury Department, the harassment continued. The Mint director was female.31

•You most likely heard about the 2017 episode of the private Facebook group, Marines United, in which thousands of Marines, without permission, posted nude “revenge porn” photos of fellow female Marines and others. The investigation soon spread to the Army and Navy.32 In 2010, nearly 50,000 male veterans screened positive for “military sexual trauma” at the Department of Veterans Affairs, up from just over 30,000 in 2003. The Pentagon began to acknowledge the rampant problem of sexual violence as both males and females came forward in unprecedented numbers. Experts said that male-on-male assault in the military is not motivated by sexual orientation, but by power, intimidation, and domination.33

•The EEOC sued Kraft on behalf of a class of male employees who were subjected to “egregious” same-sex harassment and retaliation by their male supervisor in Birmingham, Alabama. The employees were subjected to sexual comments and propositions, touching, grabbing, and sexual assaults by a male supervisor for Nabisco.34

•The EEOC filed for class action certification in an action against Federal Express Corp. for same-gender sexual harassment in Kankakee, Illinois. One of the employees alleged that he repeatedly complained to management about the harassment by another male employee, but he was told to “act like a man” and that “nothing can be done.”

Can you think of a good reason an employer would watch millions of hard-earned dollars go out of a business’s coffers for such unnecessary, avoidable, and totally useless actions? Impeachment of a president, resignation of multi-starred generals and other high-level military personnel, resignation of company and page 433university presidents and long-term legislators, and embarrassing televised hearings of a U.S. Supreme Court nominee all have been a part of our national consciousness and abrupt introduction to, and education in, the area of sexual harassment. It is frustrating to see the same thing over and over again, while liability is so avoidable if employers will only take a few steps we will discuss.

But before we do that, let’s get a bit of context. Sexual harassment may have been something you are used to realizing existed, but it really is of pretty recent vintage. It seems like such a short time ago that most of us were totally unaware that the legal cause of action of sexual harassment even existed. Though it had been around for more than 10 years, most people knew very little about it. Until, that is, it was thrust into the limelight when then–University of Oklahoma law professor Anita Hill took her seat at a table before the Senate Judiciary Committee in the confirmation hearings for associate justice of the U.S. Supreme Court, Clarence Thomas. Hill had worked for Thomas when he was head of the EEOC about 10 years before. When Thomas came up for confirmation, friends of Hill reported to the Judiciary Committee that she had at one time revealed to them details of unprofessional encounters with Thomas that could have amounted to sexual harassment. The committee contacted Hill and made clear that she would either testify about the matter and set the record straight herself or leave them to their own devices of discovery. Hill very reluctantly chose to testify after being subpoenaed by the Judiciary Committee, and the country hasn’t been the same since. The historic situation is now the basis of the 2016 Emmy-nominated HBO docudrama, Confirmation, and the 2014 documentary, Anita: Speaking Truth to Power, that played to packed Sundance Film Festival audiences.

Hill’s testimony over the next several days, and Thomas’s barely concealed anger about it, were painful for the millions of Americans who sat glued to their television sets during those unbelievable autumn days in 1991. People who had never even heard the term sexual harassment now had implacable opinions about it. From barber shops to executive suites, and everywhere in between, everyone discussed the pros and cons of not only Hill’s and Thomas’s assertions, but also the concept of sexual harassment itself. Men who had thought nothing of what they considered harmless sexually suggestive jokes, comments, gestures, propositions, and even touching suddenly felt themselves looked upon as virtual lechers. Women who had found themselves on the uncomfortable receiving end of such unwanted attentions now discovered that those attentions might be not just uncomfortable, but actually illegal under Title VII. Eight months after the Hill–Thomas hearings, sexual harassment complaints filed with the EEOC increased by more than 50 percent. Ninety percent of the charges were from women. In the elections of 1992, called the “Year of the Woman,” unprecedented numbers of female politicians rode the backlash wave of women who wanted to change “politics as usual” after witnessing what they perceived as the Senate’s poor treatment of Hill during the hearings and Thomas’s confirmation despite Hill’s revelations. Ironically, at the time he engaged in the alleged activity, Thomas was head of the EEOC, the very agency charged with enforcing sexual harassment claims.

page 434Much happened in the wake of the Hill–Thomas fiasco. Almost overnight, the country’s offices and workplaces went from friendly to foul. Sexual harassment captivated the national consciousness, only there was an immediate, acerbic, often acrimonious air to it. Lines were drawn in offices, bars, schools, universities, churches, and homes all across the country, and people took their places on one side or the other and held their ground.

As you can see, sexual harassment law is not something that has been around forever or that we’ve grown accustomed to and learned to live with over hundreds of years or even in the 50+ years since Title VII was born. Even though it may seem like old hat today, it is still pretty new in the legal sense. It is still evolving. The U.S. Supreme Court did not hear its first sexual harassment case until 1986, and the next one did not come until six years later in 1992. And of course, as we saw earlier, despite making it clear that sexual harassment is a type of gender discrimination and a violation of Title VII, as you can see from the recent examples, there are still too many who don’t yet “get it.”

We also told you the background of sexual harassment because there is a lot of baggage that comes with the issue. Often, managers, supervisors, and employees don’t recognize sexual harassment when it occurs. Our society preaches sexual permissiveness on the one hand, through music, movies, television, advertising, acculturation, and so forth, but when it comes to the workplace, the rules are different and some people don’t make the transition very well.

Despite this, is sexual harassment something with which we really should be concerned? Is it that big a deal? Well, let’s take a look. In one of the first and still one of the most comprehensive studies ever conducted on the issue, the U.S. Merit Systems Protection Board in 1980 found that over 40 percent of federal employees had reported incidents of sexual harassment; seven years later, the results were nearly the same (42 percent). A survey by Working Woman magazine of 160 of the Fortune 500 companies showed that nearly 40 percent of the companies had received at least one sexual harassment complaint in the previous 12 months. A New York Times poll found that 4 of every 10 women reported having experienced sexual harassment. The National Law Journal reported that 60 percent of female attorneys nationally said they had experienced some form of sexual harassment. A Parade Magazine poll discovered that 70 percent of the women polled who served in the military said they had been sexually harassed, as had 50 percent of the women who worked in congressional offices on Capitol Hill. Despite the numbers, only about 5 percent of the incidents of sexual harassment were reported. Those who experience sexual harassment “pay all the intangible emotional costs inflicted by anger, humiliation, frustration, withdrawal, [and] dysfunction in family life.”

In Robinson v. Jacksonville Shipyards, Inc.,36 the court found, based on expert testimony, that

victims of sexual harassment suffer stress effects from the harassment. Stress as a result of sexual harassment is recognized as a specific, diagnosable problem by the American Psychiatric Association. Among the stress effects suffered is “work performance stress,” which includes distraction from tasks, dread of work, and page 435an inability to work. Another form is “emotional stress,” which covers a range of responses, including anger, fear of physical safety, anxiety, depression, guilt, humiliation, and embarrassment. Physical stress also results from sexual harassment; it may manifest itself by sleeping problems, headaches, weight changes, and other physical ailments. A study by the Working Women’s Institute found that 96 percent of sexual harassment victims experienced emotional stress, 45 percent suffered work performance stress, and 35 percent were inflicted with physical stress problems.

Sexual harassment has a cumulative, eroding effect on the victim’s well-being. When women feel a need to maintain vigilance against the next incidence of harassment, the stress is increased tremendously. When women feel that their individual complaints will not change the work environment materially, the ensuing sense of despair further compounds the stress.

Regarding tangible costs, according to the classic 1988 MSPB update study, sexual harassment cost the federal government $267 million from May 1985 to May 1987 for losses in productivity, sick leave costs, and employee replacement costs. A Working Woman magazine survey found the actual cost of sexual harassment in the responding companies to be $6.7 million in low productivity, absenteeism, and employee turnover. In addition, along with the nontangible price they pay, the MSPB found that employees who are sexually harassed pay medical expenses, litigation expenses, and job search expenses, and lose valuable sick leave and annual leave. In the 2016 Final EEOC Select Task Force on the Study of Harassment in the Workplace, issued after an 18-month study of the issue by a select committee that included not only lawyers, but also sociologists, psychologists, trainers, and workplace representatives, the EEOC noted that what brought about the call for the study in the first place was the fact that in the 30 years since sexual harassment had been used as a cause of action, the prevalence of the incidences of the activity was still so very high. Despite this, the report found that over 90 percent of employees who experience such harassment fail to report it for, among other things, fear of not being believed or retaliation.37

Whether it occurs through joking, e-mails, touching, gestures, staring, unwanted requests for dates, denials of job opportunities, negative comments based on gender, the display or showing of pornography, or some other means, sexual harassment is not just kidding or a joke or workplace fraternization. It is an illegal form of gender discrimination that violates Title VII of the 1964 Civil Rights Act. But it is not only illegal: Given the toll it takes on the workplace, it is simply not good business. Since it is purely personal on the part of the harasser, it makes little sense for an employer not to take simple steps to prevent this totally unnecessary liability. It has become even less justifiable in the face of the 1991 Civil Rights Act amending Title VII to permit jury trials and compensatory and punitive damages.

The Civil Rights Act was passed in 1964, but it was the mid-to-late 1970s before courts began to seriously recognize sexual harassment as a form of gender discrimination under Title VII. In 1980, soon after the first few significant sexual harassment cases were decided, the EEOC issued guidelines on sexual harassment. The guidelines, quoted in the opening of this chapter, are not law in the sense of Title VII but carry a great deal of weight when it comes to how courts will view and analyze the issue.

Where Do Sexual Harassment Considerations Leave the Employer?

It is important to note that the intent of the law is not that the workplace either become totally devoid of sexuality on the one hand or be given completely over to employees who would misuse the law on the other. Consensual relationships are not forbidden under the law, and employees may date consistent with company policy. It is only when the activity directed toward an employee is unwelcome and imposes terms or conditions different for one gender than another that it becomes a problem. For instance, a female employee might be required as a condition of employment to date her supervisor, while male employees have no such condition imposed. Most workplaces have sexual harassment policies (see Exhibit 9.2, “Example of a Sexual Harassment Policy”) to govern this workplace issue. Recently, California joined Maine and Connecticut and took it a step further and mandated at least two hours of training every other year for supervisors in any U.S. firm with 50 (15 for Maine) or more employees if it has at least one supervisor based in the state. The EEOC recommended that employers not only have such things as policies and training, but also that they go further and take a broader proactive approach that includes workplace civility training.

Exhibit 9.2 Example of a Sexual Harassment Policy

Often the employer doesn’t really know what is appropriate to include in a sexual harassment policy. In the Jacksonville Shipyards case, as part of the court’s order, it required the employer to adopt a sexual harassment policy, which it included in an appendix. In order for you to see what one actually looks like and make the theoretical more practical for you, it is reproduced below, with changes as appropriate to generalize the policy (rather than have it be specific to JSI). It is important to check state laws in your area, as they may vary from the federal. For instance, some state laws mandate postings, some do not, many begin coverage if the employer has only one employee while others track the federal law’s 15, and some specify what must be in any posting that is provided by the employer.

XYZ COMPANY SEXUAL HARASSMENT POLICY

Statement of Policy

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, gender, religion, or national origin. Sexual harassment is included among the prohibitions.

Sexual harassment, according to the federal Equal Employment Opportunity Commission (EEOC), consists of unwelcome sexual advances, requests for sexual favors, or other verbal or physical acts of a sexual or sex-based nature where (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) an employment decision is based on an individual’s acceptance or rejection of such conduct; or (3) such conduct interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.

It is also unlawful to retaliate or take reprisal in any way against anyone who has articulated any concern about sexual harassment or discrimination, whether that concern relates to harassment of or discrimination against the individual raising the concern or against another individual.

Examples of conduct that would be considered sexual harassment or related retaliation are set forth in the

Statement of Prohibited Conduct

, which follows. These examples are provided to illustrate the kind of conduct proscribed by this policy; the list is not exhaustive.

page 437XYZ Company and its agents are under a duty to investigate and eradicate any form of sexual harassment, gender discrimination, or retaliation. To further that end, XYZ Company has issued a procedure for making complaints about conduct in violation of this policy and a schedule for violation of this policy.

Sexual harassment is unlawful, and such prohibited conduct exposes not only XYZ Company but individuals involved in such conduct to significant liability under the law. Employees at all times should treat other employees respectfully and with dignity in a manner so as not to offend the sensibilities of a coworker. Accordingly, XYZ’s management is committed to vigorously enforcing its Anti-sexual Harassment Policy at all levels within the company.

Statement of Prohibited Conduct

The management of XYZ Company considers the following conduct to represent some of the types of acts which violate XYZ’s Anti-sexual Harassment Policy:

A. Physical assaults of a sexual nature, such as:(1)

rape, sexual battery, molestation, or attempts to commit these assaults; and(2)

intentional physical conduct, which is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee’s body, or poking another employee’s body.

B. Unwanted sexual advances, propositions, or other sexual comments, such as:(1)

sexually oriented gestures, noises, remarks, jokes, or comments about a person’s sexuality or sexual experience directed at or made in the presence of any employee who indicates or has indicated in any way that such conduct in his or her presence is unwelcome;(2)

preferential treatment or promise of preferential treatment to an employee for submitting to sexual conduct, including soliciting or attempting to solicit any employee to engage in sexual activity for compensation or reward; and (3)

subjecting, or threats of subjecting, an employee to unwelcome sexual attention or conduct or intentionally making performance of the employee’s job more difficult because of that employee’s gender.

C. Sexual or discriminatory displays or publications anywhere in XYZ’s workplace by XYZ’s employees, such as:(1)

displaying pictures, posters, calendars, graffiti, objects, promotional materials, reading materials, or other materials that are sexually suggestive, sexually demeaning, or pornographic, or bringing into the XYZ work environment or possessing any such material to read, display, or view at work.

 A picture will be presumed to be sexually suggestive if it depicts a person of either gender who is not fully clothed or in clothes that are not suited to or ordinarily accepted for the accomplishment of routine work in and around the workplace and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body;(2)

reading or otherwise publicizing in the work environment materials that are in any way sexually revealing, sexually suggestive, sexually demeaning, or pornographic; and(3)

displaying signs or other materials purporting to segregate an employee by gender in any area of the workplace (other than restrooms and similar semiprivate lockers/changing rooms).

D. Retaliation for sexual harassment complaints, such as:(1)

disciplining, changing work assignments of, providing inaccurate work information to, or refusing to cooperate or discuss work-related matters with any employee because that employee has complained about or resisted harassment, discrimination, or retaliation; and(2)

intentionally pressuring, falsely denying, lying about, or otherwise covering up or attempting to cover up conduct such as that described in any item above.

E. Other acts:(1)

The above is not to be construed as an all-inclusive list of prohibited acts under this policy. (2)

Sexual harassment is unlawful and hurts other employees. Any of the prohibited conduct described here is sexual harassment of anyone page 438at whom it is directed or who is otherwise subjected to it. Each incident of harassment, moreover, contributes to a general atmosphere in which all persons who share the victim’s gender suffer the consequences. Sexually oriented acts or gender-based conduct have no legitimate business purpose; accordingly, the employee who engages in such conduct should be and will be made to bear the full responsibility for such unlawful conduct.

Schedule of Penalties for Misconduct

The following schedule of penalties applies to all violations of this policy, as explained in more detail in the Statement of Prohibited Conduct.

Where progressive discipline is provided for, each instance of conduct violating the policy moves the offending employee through the steps of disciplinary action. In other words, it is not necessary for an employee to repeat the same precise conduct in order to move up the scale of discipline.

A written record of each action taken pursuant to the policy will be placed in the offending employee’s personnel file. The record will reflect the conduct, or alleged conduct, and the warning given, or other discipline imposed.

A. Assault:

Any employee’s first proven offense of assault or threat of assault, including assault of a sexual nature, will result in dismissal.

B. Other acts of harassment by coworkers:

An employee’s commission of acts of sexual harassment, other than assault, will result in nondisciplinary oral counseling upon alleged first offense; written warning, suspension, or discharge upon the first proven offense, depending upon the nature and severity of the misconduct; and suspension or discharge upon the second proven offense, depending upon the nature and severity of the misconduct.

C. Retaliation:

Alleged retaliation against a sexual harassment complainant will result in nondisciplinary oral counseling. Any form of proven retaliation will result in suspension or discharge upon the first proven offense, depending upon the nature and severity of the retaliatory acts, and discharge upon the second proven offense.

D. Supervisors:

A supervisor’s commission of acts of sexual harassment (other than assault) with respect to any employee under that person’s supervision will result in nondisciplinary oral counseling upon alleged first offense, final warning or dismissal for the first offense, depending upon the nature and severity of the misconduct, and discharge for any subsequent offense.

Procedures for Making, Investigating, and Resolving Sexual Harassment and Retaliation Complaints

A. Complaints:

XYZ Company will provide its employees with convenient, confidential, and reliable mechanisms for reporting incidents of sexual harassment and retaliation. Accordingly, XYZ designates at least two employees in supervisory or managerial positions to serve as investigative officers for sexual harassment issues. The names, responsibilities, work locations, and phone numbers of each officer will be routinely and continuously posted so that an employee seeking such name can enjoy anonymity and remain inconspicuous to all of the employees in the office in which he or she works.

The investigative officers may appoint “designees” to assist them in handling sexual harassment complaints. Persons appointed as designees shall not conduct investigations until they have received training equivalent to that received by the investigative officers. The purpose of having several persons to whom complaints may be made is to avoid a situation where an employee is faced with complaining to the person, or a close associate of the person, who would be the subject of the complaint.

Complaints of acts of sexual harassment or retaliation that are in violation of the sexual harassment policy will be accepted in writing or orally, page 439and anonymous complaints will be taken seriously and investigated. Anyone who has observed sexual harassment or retaliation should report it to a designated investigative officer. A complaint need not be limited to someone who was the target of harassment or retaliation. Only those who have an immediate need to know, including the investigative officers and/or his/her designee, the alleged target of harassment or retaliation, the alleged harasser(s) or retaliator(s), and any witnesses who will or may find out the identity of the complainant. All parties contacted in the course of an investigation will be advised that all parties involved in a charge are entitled to respect and that any retaliation or reprisal against an individual who is an alleged target of harassment or retaliation, who has made a complaint, or who has provided evidence in connection with a complaint is a separate actionable offense as provided in the schedule of penalties. This complaint process will be administered consistent with federal labor law when bargaining unit members are affected.

B. Investigations:

Each investigative officer will receive thorough training about sexual harassment and the procedures herein and will have the responsibility for investigating complaints or having an appropriately trained and designated XYZ investigator do so.

All complaints will be investigated expeditiously by a trained XYZ investigative officer or his/her designee. The investigative officer will produce a written report, which, together with the investigation file, will be shown to the complainant upon request within a reasonable time. The investigative officer is empowered to recommend remedial measures based upon the results of the investigation, and XYZ management will promptly consider and act upon such recommendation. When a complaint is made, the investigative officer will have the duty of immediately bringing all sexual harassment and retaliation complaints to the confidential attention of the office of the president of XYZ, and XYZ’s EEO officer. The investigative and EEO officers will each maintain a file on the original charge and follow up investigation. Such files will be available to investigators, to federal, state, and local agencies charged with equal employment or affirmative action enforcement, to other complainants who have filed a formal charge of discrimination against XYZ, or any agent thereof, whether that formal charge is filed at a federal, state, or local law level. The names of complainants, however, will be kept under separate file.

C. Cooperation:

An effective anti-sexual harassment policy requires the support and example of company personnel in positions of authority. XYZ agents or employees who engage in sexual harassment or retaliation or who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation may be severely sanctioned by suspension or dismissal. By the same token, officials who refuse to implement remedial measures, obstruct the remedial efforts of other XYZ employees, and/or retaliate against sexual harassment complainants or witnesses may be immediately sanctioned by suspension or dismissal.

Procedures and Rules for Education and Training

Education and training for employees at each level of the workforce are critical to the success of XYZ’s policy against sexual harassment. The following documents address such issues: the letter to be sent to all employees from XYZ’s chief executive officer/president; the Anti-sexual Harassment Policy; Statement of Prohibited Conduct; the Schedule of Penalties for Misconduct; and Procedures for Making, Investigating, and Resolving Sexual Harassment Complaints. These documents will be conspicuously posted throughout the workplace at each division of XYZ, on each company bulletin board, in all central gathering areas, and in every locker room. The statements must be clearly legible and displayed continuously. The anti-sexual harassment policy under a cover letter from XYZ’s president will be sent to all employees. The letter will indicate that copies are available at no cost and how they can be obtained.

XYZ’s anti-sexual harassment policy statement will also be included in the Safety Instructions and General Company Rules, which is issued in page 440booklet form to each XYZ employee. Educational posters using concise messages conveying XYZ’s opposition to workplace sexual harassment will reinforce the company’s policy statement; these posters should be simple, eye-catching, and graffiti resistant.

Education and training include the following components:

1.For all XYZ employees: As part of the general orientation, each recently hired employee will be given a copy of the letter from XYZ’s chief executive officer/president and requested to read and sign a receipt for the company’s policy statement on sexual harassment so that they are on notice of the standards of behavior expected. In addition, supervisory employees who have attended a management training seminar on sexual harassment will explain orally at least once every six months at general meetings attended by all employees the kind of acts that constitute sexual harassment, the company’s serious commitment to eliminating sexual harassment in the workplace, the penalties for engaging in harassment, and the procedures for reporting incidents of sexual harassment.

2.For all female employees: All women employed at XYZ will participate on company time in annual seminars that teach strategies for resisting and preventing sexual harassment. At least a half-day in length, these seminars will be conducted by one or more experienced sexual harassment educators, including one instructor with work experience in the trades for skilled employees in traditionally male-dominated jobs.

3.For all employees with supervisory authority of any kind over other employees: All supervisory personnel will participate in an annual, half-day-long training session on gender discrimination. At least one-third of each session (of no less than one and one-half hours) will be devoted to education about workplace sexual harassment, including training (with demonstrative evidence) as to exactly what types of remarks, behavior, and pictures will not be tolerated in the XYZ workplace. The president of XYZ will attend the training sessions in one central location with all company supervisory employees. The president will introduce the seminar with remarks stressing the potential liability of XYZ and individual supervisors for sexual harassment. Each participant will be informed that they are responsible for knowing the contents of XYZ’s anti-sexual harassment policy and for giving similar presentations at meetings of employees.

4.For all investigative officers: The investigative officers and their designees, if any, will attend annual full-day training seminars conducted by experienced sexual harassment educators and/or investigators to educate them about the problems of sexual harassment in the workplace and the techniques for investigating and stopping it.

Sexual Harassment in General

There are two theories on which an action for sexual harassment may be brought: quid pro quo sexual harassment and hostile environment sexual harassment. The first generally involves the employer requiring some type of sexual activity38 from the harassee as a condition of employment or workplace benefits. page 441The second addresses an offensive work environment to which one gender is subjected but not the other. (See Exhibit 9.3, “Wanted?”) While there are two different types of sexual harassment and each has its own requirements, the U.S. Supreme Court has said that the distinction need not be rigid. In Burlington Industries, Inc. v. Ellerth, the supervisor made threats to the harassee but did not carry them out. The harassee brought suit on the theory of quid pro quo sexual harassment, but rather than deny relief because there had been no loss of a tangible job benefit necessary for quid pro quo sexual harassment, the Court said that the terms quid pro quo and hostile environment are not controlling for purposes of determining employer liability for harassment by a supervisor. Rather, they are helpful in making rough demarcations between Title VII cases in which sexual harassment threats are carried out and where they are not or are absent altogether (see Burlington Industries, Inc. v. Ellerth at the end of this chapter).

quid pro quo sexual harassment: Sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits.

hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee.

Exhibit 9.3 Wanted?

One of the requirements of sexual harassment is that the activity be unwelcome. Take a look at these cases and see if this is what you think the law had in mind.

EEOC v. Bon Secours DePaul Med. Ctr., Civil Action No. 2:02cv728 (E.D. Va. 2002)

A jury awarded over $4 million to a hospital administrator who sued for retaliation under Title VII for being forced to resign when she attempted to prevent sexual harassment in the hospital’s operating room. There were complaints of a nurse hugging, kissing, embracing, and rubbing doctors and other staff. The administrator verbally warned the nurse that this was inappropriate behavior. The nurse complained to doctors and staff about unfair treatment and quit. Several doctors complained about the administrator and a prominent doctor threatened to leave the hospital unless the administrator was terminated and the nurse reinstated. The administrator, given the choice to resign or be terminated for “breach of confidentiality,” left. Six days later the nurse returned.

Miller v. Department of Corrections, 36 Cal. 4th 446, 115 P.3d 77 (2005)

The California Supreme Court held that an employee can sue a supervisor engaging in consensual sexual conduct with other employees when it has the effect of creating a “widespread atmosphere of sexual favoritism in the workplace.” This decision forces employers to closely monitor employee relationships.

Statistically speaking, most sexual harassment takes place between males and females, with the male as the harasser and the female as the harassee. But the gender of the harasser need not be male and the gender of the parties does not matter. Males can be sexually harassed also. (See Exhibit 9.4, “Playing Catch Up.”) Keep in mind the statistics provided above about the incidents of male sexual harassment in the military. Unfortunately, because society views males and sex so differently from females and sex, many males do not bring cases for fear of ridicule. Males who are being sexually harassed and wish to put a stop to it often find themselves the object of workplace jokes, teasing, and questioned sexuality, so they forgo filing claims. Even so, EEOC statistics show that claims by men have been increasing, beginning during the 2008–2009 recession.39

Exhibit 9.4 Playing Catch Up

In 1993, when a 10-woman, 2-man jury awarded Sabino Gutierrez more than $1 million in damages for sexual harassment by his boss, Maria Martinez of Cal-Spas, a hot tub manufacturing company in California, it was the largest award in history for a male sexual harassee. Given the rarity of men bringing sexual harassment suits at the time (the harassing events of fondling, kissing, pressure for sex and eventually demotion, began in 1986 and continued for six years), it is almost certain that the novelty of a male suing for sexual harassment played some role in the case and jury award amount.

In the years since, however, such cases have been on the rise and are becoming more common. According to the EEOC, male victims accounted for 12 percent of claims in 1999. By 2009, a decade later, they accounted for 16.4 percent of sexual harassment claims filed with the EEOC. This uptick has been even greater since the country’s 2008–2009 financial crisis resulted in a higher percentage of men losing their jobs. According to the Bureau of Labor Statistics, from September of 2008 to January of 2010, women lost 2.3 million jobs, versus 4.4 million for men. While male victims of sexual harassment may have previously simply quit and found another job, that is not as possible in this economy. As a result, the data indicate that sexual harassment claims rose more in states with higher unemployment rates.

For years, men were hesitant to come forward about sexual harassment in the workplace because it often made them the butt of jokes. There were questions about their sexual orientation, loyalty, character, and toughness once they brought such claims forward. However, once the U.S. Supreme Court ruled in Oncale v. Sundowner Offshore Drilling, Inc., that males could be the victims of sexual harassment by other males in violation of Title VII’s proscription on gender discrimination via sexual harassment, claims by males being sexually harassed began to increase.

Overall, only about 6 percent of sexual harassment cases are ever actually litigated in court, and the harassee wins about one-third of the time, according to a study by the American Bar Foundation.

Sources: Bill Hewitt and Nancy Matsumoto, People Weekly, 1993. Alissa Figueroa, “Workplace Harassment: Same-Sex Sexual Harassment Cases Are on the Rise,” The Christian Science Monitor, 7/21/2010, http://www.csmonitor.com/Business/new-economy/2010/0721/Workplace-harassment-Same-sex-sexual-harassment-cases-are-on-the-rise Sarah Herman, “Male Sexual Harassment on the Rise,” HRM, 6/21/10, http://www.hrmreport.com/news/male-sexual-harassment-claims-rising/.

As a final preliminary matter, the words of Title VII itself do not protect employees from discrimination on the basis of sexual orientation, but since 2015, the EEOC has interpreted it to be a type of gender discrimination due to gender stereotyping. However, well before this the U.S. Supreme Court held in Oncale v. Sundowner Offshore Services Inc. that even though both the harasser and the harasee are the same gender, a harassee can still bring a sexual harassment claim and be protected by Title VII.40 Thus, there is no longer a presumption that if both parties are the same gender, the claim is not covered by Title VII as was the case with many courts before.

Quid Pro Quo Sexual Harassment

In quid pro quo sexual harassment, the employee is required to engage in sexual activity in exchange for workplace entitlements or benefits such as promotions, raises, or continued employment. This is the more obvious type of sexual harassment and is not generally difficult to recognize. (See Exhibit 9.5, “Jones v. Clinton.”) In order for there to be an exchange for some workplace benefit, the harasser generally must have some sort of workplace power or position. The exchange of sex for workplace benefits will often leave a paper trail that can be followed. For instance, if an employee receives a raise, there is usually a basis for it and the paper trail should show whether or not it was justified. The same with a promotion, or more favorable hours or benefits.

Exhibit 9.5 Jones v. Clinton*

Demonstrating that no one seems to be exempt from claims of sexual harassment, in what is probably the most famous sexual harassment case in history, Paula Jones, a former Arkansas state employee, filed suit against a state trooper and a sitting president of the United States. Jones claimed that she was the victim of a sexual advance from President Bill Clinton while he was serving as governor of Arkansas prior to his presidency. The decision of whether the sexual harassment case could be brought against a sitting president went all the way to the U.S. Supreme Court, and the Court saw no impediment to Jones’s bringing the suit. In the end, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of Jones’s case. The court held that the facts alleged by Jones, even if taken to be true, were insufficient to establish a basis for either quid pro quo or hostile work environment sexual harassment. In the court’s view, the president’s dropping his trousers, fondling his penis, and asking Jones to kiss it, and then backing off when she said no, while boorish, was not sufficiently severe or pervasive to constitute a violation of the statute.

*138 F.3d. 758 (8th Cir. 1998).

In 2013, in a pair of cases brought under Title VII on other bases, the U.S. Supreme Court issued decisions with far-reaching implications for sexual harassment cases. In Ball State University v. Vance,41 the Court rejected the EEOC’s interpretation of who can be considered a supervisory employee for Title VII purposes. The Court determined that for Title VII purposes, a supervisor must have the ability to hire and fire rather than merely to direct work assignments, as had been the case here. In the other Title VII decision issued the same day, Texas Southwestern Medical Center v. Nassar,42 discussed earlier in the Toolkit Chapter section on retaliation, the Court determined that for liability to attach for retaliation under Title VII, the retaliatory act would not have occurred but for the supervisor’s desire to retaliate. The decisions, taken together, were interpreted by Justice Ruth Bader Ginsburg to be so wrongheaded that she took the unusual step of reading aloud in the courtroom her dissent in both cases and called on Congress to overturn the Court’s decisions. It has not done so.

An employer can limit a supervisor’s ability to abuse power by choosing supervisory employees carefully and having in place a system with adequate monitors page 444and checks. It greatly decreases morale, and thus lowers workplace productivity, for other employees to witness quid pro quo harassment by the supervisor. In fact, it has even been held that the other employees witnessing such activity may bring a cause of action of their own.

Hostile Environment Sexual Harassment

The more difficult sexual harassment issues have been in the area of hostile environment because the activity may not be so clear-cut or leave a paper trail. Part of the difficulty lies in the fact that many of the causes that may serve as a basis for liability have historically gone unchallenged. However, a closer look at what courts have held to constitute a hostile environment lends more predictability.

To sustain a finding of hostile environment sexual harassment, it is generally required that

•The harassment be unwelcomed by the harassee.

•The harassment be based on gender.

•The harassment be sufficiently severe or pervasive to create an abusive working environment.

•The harassment affects a term, condition, or privilege of employment.

•The employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action.

In light of these requirements, it becomes clear why simply giving polite compliments as in Opening Scenario 2 is not, in and of itself, sexual harassment. Sexual harassment involves much more.

Meritor Savings Bank, FSB v. Vinson was the first sexual harassment case to reach the U.S. Supreme Court. In the case, which is provided at the conclusion of the chapter, the branch manager of a bank engaged in sexually harassing activity with the harassee, up to and including sex in the bank vault. The harassee finally took a leave of absence and was terminated for excessive leave. When she sued for sexual harassment, the employer argued that since she engaged in the sexual activity, the activity did not meet the “unwanted” requirement of the guidelines. The Supreme Court disagreed. In addition, the employer argued that since the harassee lost no raises or promotions, she lost no tangible job benefits, so it was not quid pro quo sexual harassment. Read the case and see if you can now distinguish between quid pro quo and hostile environment sexual harassment.

In Meritor, it is clear that the supervisor’s actions changed the terms and conditions of Vinson’s employment. There is a big difference between the ongoing, pervasive actions of Vinson’s supervisor and merely giving someone an occasional nonsexual compliment as in Opening Scenario 2. In a hostile environment action, the activity must be more than someone committing a boorish, stupid, inappropriate act. The act must come up to the standards the courts and the EEOC have set forth for the cause of action. Contrary to what you may have been led to believe by the press or other information you’ve received, not every act, even if page 445it is unwanted or offensive, will meet that standard; thus, not every act, though considered offensive by the employee, constitutes sexual harassment as set forth by law. (See Exhibit 9.5, “Jones v. Clinton.”)

Unwelcome Activity

The basis of hostile environment sexual harassment actions is unwanted activity by the harasser. (See Exhibit 9.6, “Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment.”) If the activity is wanted or welcome by the harassee it is consensual and there is no sexual harassment. If the activity started out being consensual and one employee calls a halt to it and the other continues, it can become sexual harassment at the time the activity is no longer consensual, as in Opening Scenario 3.

Exhibit 9.6 Comparison between Quid Pro Quo and Hostile Environment Sexual Harassment

QUID PRO QUO SEXUAL HARASSMENT

•Workplace benefit promised, given to, or withheld from harassee by harasser

•In exchange for sexual activity by harassee

•Generally accompanied by a paper trail (for example, promotion, raise, or termination paperwork)

HOSTILE ENVIRONMENT SEXUAL HARASSMENT

Activity by harasser, toward harassee that

•Is unwanted by the harassee.

•Is based on harassee’s gender.

•Creates for harassee a hostile or abusive work environment.

•Unreasonably interferes with harassee’s ability to do his or her job.

•Is sufficiently severe and/or pervasive.

•Affects a term or condition of harassee’s employment.

In making the determination of whether the harasser’s activity was welcome, the actions used as a basis for the determination can be direct or indirect. For instance, in McLean v. Satellite Technology Services, Inc.,43 based on the employee’s previous conduct, the court had no trouble in determining that the harassee welcomed the activity of the harasser, if, in fact, it took place at all. The female employee engaged in a good deal of sexually tinged behavior at work such as pulling up her shirt to show a scar, having sexual conversations on the phone with clients even after being asked not to do so, and being away from her desk at a business conference having sex with people she met there. After being terminated upon return from the conference, she alleged that her supervisor tried to touch her leg and kiss her while they were on the business trip and she was in his room dressed in a bikini (while he was dressed in street clothes). It also demonstrates that there is more to winning a sexual harassment case than simply alleging that sexual harassment occurred.

Of course, there also may be a finding that the harassee did not welcome the activity by the harasser. Evidence can be direct, such as the harassee telling the harasser to discontinue the offending activity, or indirect, such as the harassee using body language, eye signals, and the like to show disapproval of the harasser’s actions. Employees should be told to make it clear to a harasser that the activity is unwelcome; otherwise, the signals may become confused and the harasser may think his or her actions are wanted by the harassee. In Exhibit 9.7, “Wanna Fool Around?” you can see how some employers are trying to address the issue in novel ways.44

Exhibit 9.7 Wanna Fool Around? Sign on the Dotted Line, Please . . .

In the face of increasingly expensive and embarrassing sexual harassment litigation, there have been all sorts of attempts to lessen employer liability. See how you like this workplace idea. You may recall hearing about a similar plan imposed on the students by the administration at a large midwestern university a few years ago to prevent date rape.

“LOVE CONTRACTS” HELP FEND OFF HARASSMENT SUITS

No matter how many training sessions or awareness workshops they conduct, companies still find themselves facing sexual harassment claims. Alarmingly, claims keep going higher up the chain of command, increasingly hitting CEOs. And when such a suit reaches a top executive, it’s not just a department in trouble, but the entire company itself.

The latest trend in fending off sexual harassment suits is a “love contract.” Teresa Butler, managing partner in the Atlanta office of employment law firm Littler Mendelson, explains.

CAN YOU TALK ABOUT THE “LOVE CONTRACT” AND HOW IT WORKS?

It’s really only intended for higher-level executives. This isn’t something we advise employers to put in their handbooks, and we don’t recommend that all supervisors issue them to subordinates. We talk about this for CEOs and officers, top-level executives, and maybe directors; that’s a judgment call for the company. It’s basically for people who have broad power in the workplace—not the average first-level supervisor.

WHAT’S INCLUDED IN THE CONTRACT?

The love contract does three things. First, it restates the voluntary nature of the relationship. The CEO, or whoever is in this situation, issues the agreement to a subordinate employee, basically explaining to the individual, “I want to have this relationship with you. My understanding is you want to have this relationship with me. But I’m concerned that over time you might believe that the continuation of this relationship—even though you don’t want it anymore—might be necessary for you to be successful here. As you know, we have a harassment policy, and I want you to understand that I’m aware of that policy and would never allow [the end of the relationship] to influence my decision making with regard to your employment.” So the agreement is actually a formal contract. It restates the voluntary nature of the relationship.

WHAT ELSE SHOULD A LOVE CONTRACT DO?

Second, it affirms that the parties will use the company’s sexual harassment policies if a problem arises, and it confirms the existence of those policies and [procedures]. It also states that if the policies aren’t used, it’s fair to assume there isn’t a problem. And third, the parties agree if work-related disputes arise, they’ll resolve their differences using alternative dispute resolution (ADR) rather than resorting to the courts. Some might want to use that third piece and some might not, but we recommend ADR from a legal standpoint.

HOW ARE THESE CONTRACTS USEFUL?

Often these relationships go bad at some point; one party wants to end it and the other doesn’t. And then there’s retaliatory conduct by the other, sometimes by the subordinate in the form of a sexual harassment complaint. So, this contract is a method for the top-level executives to just say out loud what is actually the case. It’s assurance for the company and the individuals that everybody understands what the rules are.

HOW LEGALLY DEFENSIBLE IS A LOVE CONTRACT?

The first response we typically hear, especially from lawyers, is: How could this possibly be enforceable? The idea is this person can always come back and say this was coerced, that he or she was forced to sign this agreement. That’s a risk you take with any contractual relationship because an employee is always in a subordinate role to the employer. If you take that to its logical end, you might as well say you could never have an enforceable contract with an employee.

SO, CAN THEY RAISE THAT ISSUE?

Of course, they can. But are you better off with the contract than without it? Yes. I think it’s a pretty tough argument for an individual who signs this agreement to say that he or she was coerced into having this consensual relationship that you’ll be able to [prove] the person had. There’s usually evidence in these cases of a consensual relationship: You’ve got birthday cards, receipts for dinner, letters and other types of communications that the subordinate employee has clearly engaged in on a voluntary basis.

“LOVE CONTRACT” SAMPLE LETTER

Dear [Name of Object of Affection]:

As we discussed, I know that this may seem silly or unnecessary to you, but I really want you to give serious consideration to the matter as it is very important to me. [Add other materials as appropriate]

I very much value our relationship and I certainly view it as voluntary, consensual, and welcome, and I have always felt that you feel the same. However, I know that sometimes an individual may feel compelled to engage in or continue in a relationship against their will out of concern that it may affect the job or working relationships.

It is very important to me that our relationship be on an equal footing and that you be fully comfortable that our relationship is at all times fully voluntary and welcome. I want to assure you that under no circumstances will I allow our relationship or, should it happen, the end of our relationship, to impact on your job or our working relationship. Though I know you have received a copy of [our company’s name] sexual harassment policy, I am enclosing a copy [Add specific reference to policy as appropriate] so that you can read and review it again. Once you have done so, I would greatly appreciate your signing this letter below, if you are in agreement with me.

[Add personal closing]

Very truly yours,

[Name]

I have read this letter and the accompanying sexual harassment policy, and I understand and agree with what is stated in both this letter and the sexual harassment policy. My relationship with [name] has been (and is) voluntary, consensual, and welcome. I also understand that I am free to end this relationship any time, and doing so will not adversely impact on my job.

[Signature of Object of Affection]

Source: Teresa Butler, Littler Mendelson, Atlanta, 888- LITTLER; Gillian Flynn, Workforce Magazine, March 1999, pp. 106–108.

In another type of welcomeness issue, the Hooters restaurant chain was involved in several cases that, among other things, brought up the question of unwelcomeness parameters. As discussed in the previous chapter, Hooters is a chain of over 430 restaurants in 44 states and 28 countries. It is noted for its buffalo chicken wings and scantily clad female servers. Several lawsuits have been filed by female servers who were allegedly illegally fired or forced to quit because of sexual harassment.

The suits alleged that the environment created by management for female servers was hostile, starting with the name “Hooters,” which is a slang term for women’s breasts. Servers (a position for which Hooters only hires females), who are required to wear uniforms of revealing shorts and T-shirts, alleged that they were required to endure an atmosphere of sexually offensive remarks, touching, and other conduct by both management and customers. For example, the sign on entering Hooters reads, “Men: no shirt, no shoes: no service. Women: no shirt: free food.”

An important issue in the lawsuits was whether, as the company argued, the women assumed the risk of the activities directed at them by agreeing to work for the company—that is, whether the conduct was welcomed by the fact that the servers worked for a company whose concept encouraged such behavior. What do you think? Should it matter if, as it turns out, the uniform requirement is illegal under Title VII? Check out the Hooters website and Wikipedia entry and see if you agree, as Hooters argued, that it is merely a neighborhood restaurant (previously it had argued it was a family restaurant), complete with a children’s menu. There is at least some truth to the family restaurant claim. One of our students said his Little League baseball coach took the all-male team to Hooters to celebrate his 12th birthday and they loved it. The coach was his dad. :-/

Severe and Pervasive Requirement

One of the most troublesome problems with hostile environment is determining whether the harassing activity is severe and/or pervasive enough to amount to an unreasonable interference with an employee’s ability to perform. (See Exhibit 9.3, “Wanted?”) Built into the elements of hostile environment sexual harassment is a requirement that the offending activity be sufficiently severe and/or pervasive. That is, the activity is not an isolated occurrence that is not serious enough to warrant undue concern. The more frequent or serious the occurrences, the more likely it is that the severe and/or pervasive requirement will be met. If it is egregious enough, one time may meet the severity requirement, for example, in the case of rape.

severe and/or pervasive activity: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability.

In Ross v. Double Diamond, Inc.,45 events over a two-day period were determined to meet the requirement for severity. Within hours of being hired, a female employee endured groping, sexually suggestive comments and jokes, a demand that she pull up her dress and allow her legs to be photographed, and a photo being taken up her dress as she reached across a desk to deliver a message in an all-male meeting.

Regarding the “unreasonable interference” requirement, in the U.S. Supreme Court decision in Harris v. Forklift Systems46 the company owner constantly infused sexual comments and actions into the workplace by, for instance, making female employees dig in his front pockets for change, or throwing it on the floor and making them bend down and pick it up so he could see their backsides. The employee finally left after the owner promised not to continue this behavior yet after she made a profitable deal, he said in front of other employees that she must have negotiated it in the Holiday Inn. The U.S. Supreme Court decided that sexual harassment claims do not require findings of severe psychological harm to be actionable. The Court said that “so long as the environment would reasonably page 449be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.”

Whether an environment is hostile or abusive must be determined by looking at all the circumstances. These may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. According to the Court, no single factor is determinative. (See Exhibit 9.8, “Is ‘Discomfort’ Enough?”)

Exhibit 9.8 Is “Discomfort” Enough?

Students often think that merely feeling uncomfortable about something going on in the workplace is sufficient to sustain a claim under Title VII for hostile environment sexual harassment. As you can see from this situation, this is far from the case—or is it?

A male sales representative for Canon, Inc., had, as part of his territory, a store owned by a woman, his client. At a Christmas party, the female store owner/client was inappropriately touched, hugged, and kissed on the face and forehead by the sales rep’s immediate supervisor. The client decided she did not want to complain about it. The sales rep complained to the company anyway. When the supervisor to whom the complaint was made called the client to discuss it as part of the investigation of the claim, the client again said she did not want to pursue the matter. When the sales rep was told this, he called the client and left a voice mail message expressing his anger at her refusal to corroborate his claims against his supervisor. In a “loud, rapid” voice, he used abusive language, told her he was “pissed off,” accused her of lying to Canon, and said that he was going to “lose his f-ing job” and she needed to back up his claim of the harassment against her. Because of the message, the client was so afraid of the sales rep that she would no longer allow him in her store. When the company found out about the voice mail message, the sales rep was fired. Canon, Inc., told him his conduct toward the client was unprofessional and unacceptable and would not be tolerated under any circumstances. The employee filed suit for retaliation under Title VII, claiming that the company terminated his employment because he complained about the sexual harassment of his client. Canon said the termination was for sufficient cause based on his actions toward the client.

As part of his claim, the employee alleged that the sexual harassment action against the client presented a hostile environment for him because he was “made uncomfortable” by his boss’s alleged advances toward his client.

The court did not agree. The court said “feelings of ‘discomfort’ cannot support a hostile environment claim. Instead, such a claim is stated only where plaintiff alleges that the conditions of his workplace were so permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.” [Kunzler v. Canon, USA, Inc., 257 F. Supp. 3d 574 (E.D.N.Y. 2003).]

On the other hand, in August 2003, the Minneapolis Public Library entered into a settlement agreement with its employees for $435,000 after the employees accused the library administration of subjecting them to a hostile environment by leaving them exposed to patrons’ displays of explicit websites.*

Do the two square for you?

*“Minneapolis Librarians Reach Settlement,” University of Minnesota Silha Center for the Study of Media Ethics and Law Bulletin, Summer 2003, http://www.silha.umn.edu/news/summer2003.php?entry5200797.

Perspective Used to Determine Severity

For many years the determination of whether the harasser’s activity was sufficiently severe and pervasive was generally based on a reasonable person standard, which is supposed to be a gender-neutral determination. That is, the activity would be judged as offensive (or not) based on whether the activity would offend a reasonable person under the circumstances. Since this “neutral” standard generally turned out to be instead a male sensibility standard, the EEOC issued a policy statement by which it required that the victim’s perspective also must be considered so as not to perpetuate stereotypical notions of what behavior is acceptable to those of a given gender. This notion, labeled the “reasonable woman” or reasonable victim standard, has been used increasingly by courts and should be given serious consideration when evaluating harassing activity. If the victim is a male, it would, of course, be a reasonable man standard.

reasonable person standard: Viewing the harassing activity from the perspective of a reasonable person in society at large (generally tends to be the male view).

reasonable victim standard: Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors.

In Ellison v. Brady, provided for your review at the end of this chapter, the court adopted a reasonable woman standard for analyzing whether the harasser’s behavior was severe and pervasive enough to create a hostile work environment. It explains why viewing severity and pervasiveness from this perspective may render different results. The U.S. Supreme Court has not addressed the reasonable victim versus reasonable person dichotomy as a direct issue, but in Oncale v. Sundowner Offshore Services Inc.,47 the Court’s first case involving same-gender sexual harassment, it said “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.” The Ellison v. Brady case was the basis for the movie Hostile Advances, starring Rena Sofer and Victor Garber.

“Sexual” Requirement Explained

While the harassment of the employee must be based on gender, it need not involve sex, requests for sexual activity, sexual comments, or other similar activity. Even today, a female entering a workplace with few or no other females is often verbally harassed about “doing men’s work,” “taking away the job a man should have,” or simply inappropriately working at a traditionally male job. It is no coincidence that the Marines’ nude photo scandal occurred in a traditionally alpha male environment. Despite the lack of sexual overtones (though the comments are obviously based on gender), this could well constitute sexual harassment. In the case of Andrews v. City of Philadelphia,48 the sexual activity was only a small part of what the females who came into the traditionally male job of police officers were subjected to. They were called very derogatory names, their property was vandalized, their files were stolen or ripped, officers who were supposed to help them would not, their cars were vandalized, soda was poured into their typewriters, obscene phone calls were made to their unlisted numbers, a caustic substance was poured into one officer’s locker and she received severe burns on her back when she put on a shirt from the locker, and pornographic material was put in their desks and male officers would gather around to see their reaction. When they reported it to their supervisor, he did nothing.

Notice how little of what they went through conforms to what we usually think of as sexually based hostile environment. This “non sex” requirement is also one page 451of the reasons it is better to use the term gender in sexual harassment discussions so that sex in the traditional sense, and gender, meaning whether one is male or female, are clearly differentiated and the discussion less confusing. The Andrews case gives you a good example of how serious hostile sentiments can become.

A common element of hostile environment sexual harassment cases that may lack an actual sexuality factor is antifemale animus exhibited by the harasser toward those of the harassee’s gender. This is manifested through, for instance, the use of derogatory terms when referring to women or making negative comments about their fitness or ability to do the job. Courts also have found antifemale animus in derogatory statements to or about women in the context of their jobs, such as “women have shit for brains,” “should be barefoot and pregnant,” “should not be surgeons because it takes them too long to bathe and put on makeup,” “could never stand up to union representatives,” “are unstable when they are ‘in heat’ [having their menstrual cycle, said to a female doctor],” or “all she needs is a good lay.” Often antifemale animus is accompanied by sexually based activity, but need not be. A manager should not dismiss a harassee’s complaint simply because it does not involve sexually related activity. (See Exhibit 9.9, “All in Good Fun? Just Joking . . . .”)

antifemale animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions.

Exhibit 9.9 All in Good Fun? Just Joking . . .

A number of sexual harassment cases arise from situations having nothing to do with “sex” as we ordinarily think of it. It has to do instead with gender— more specifically, antifemale animus, or feelings against women who are in male-dominated or traditionally male jobs such as truck driving, construction, firefighting, trash collection, and so on. Even when males are in traditionally female jobs, they rarely are subjected to the same kind of actions directed toward them that women in traditionally male fields are. And often, when men in a traditionally female job are subjected to harassing activity, it is by other males who tease, joke, make derogatory comments, and more. Case law indicates that male nurses generally do not get hassled by female nurses or male kindergarten teachers by female kindergarten teachers.

Students, and even managers and supervisors in the workplace, often comment that “it’s only joking” and that women who complain are being “overly sensitive.” What they don’t understand is that rarely is the ribbing or joking an isolated event. Rather, it is usually accompanied by other indicators in the workplace that one gender is being treated differently, less well, than another. Rarely will you find women progressing as they should in a workplace when the atmosphere exhibits antifemale animus through jokes, ribbing, and derogatory gender-based comments. It all goes together and creates a certain environment that is less likely to allow women to progress. The thought is parent to the act. Antifemale animus manifested through jokes, comments, and ribbing is very likely also to be manifested in lack of full participation in the workplace for women through pay, training, discipline, and advancement. It’s never “just jokes.” That is why it is such a serious matter.

As a manager or supervisor, how you handle these events as they occur can make all the difference in the world for your employer. It may seem like only joking, ribbing, or all in good fun, but as a manager, you ignore it at the peril of your company. Heaped on an employee day after day, this harassing activity places upon them different terms page 452or conditions of employment than it does other employees of the other gender who do not have to contend with this hostile environment.

The Los Angeles City Council awarded a female member of the city’s canine unit $2.25 million for the harassment she suffered in the unit. She alleged the men took items from her desk and the women’s locker room, used her shower and hygiene products, exposed their genitalia, made offensive and sexually explicit remarks, excluded her from training exercises and other opportunities, barred her from “cigar” meetings held to discuss training issues and practices, blew cigar smoke in her face, and was told another officer rubbed his penis on her phone. When she reported these events, the harassment worsened. The week before her settlement, an officer who was demoted and suffered retaliation when he defended her was awarded $3.6 million.

Source: Joanna Linn, “LAPD Officer Awarded $2.25 Million in Harassment Case,” The Los Angeles Times, 11/20/2008, http://articles.latimes.com/2008/nov/20/local/me-harass20.

In analyzing hostile environment claims, keep in mind that it can be accomplished also by electronic means. Claims involving sexual harassment through workplace email, bulletin boards, chat rooms, and social websites have increased dramatically in the past few years. Think about the Marines United situation. It is best to be aware of the potential for liability. Again, there need not be a sexual element involved in order for it to constitute sexual harassment. It is a good idea to have a well-enforced workplace policy giving guidelines for this kind of activity and to keep up with any technological changes that may result in new ways for liability to occur.

Employer Liability for Sexual Harassment

The U.S. Supreme Court has been wrestling with the issue of employer liability for sexual harassment since it decided the first case on the subject in 1986 (Meritor, discussed earlier in the chapter). In its Ellerth case, also discussed in this chapter, the Court said that it was hearing the case in order to assist in defining the relevant standards of employer liability since “Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law.” Without trying to drag you into the legal mire that has surrounded the issue, we will give you some general rules with which to operate and leave the intricacies for the courts to continue to unravel.

Supervisor toward Employee (Tangible Employment Action)

This is generally going to be quid pro quo sexual harassment (for instance, the employee’s supervisor denies the employee a raise or promotion because she refuses to have sex with him), but the courts have said that the categories are not cast in stone. An employer is strictly liable for the tangible acts of its supervisors regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. Since the supervisor is, in effect, the employer, the supervisor’s acts are considered those of the employer.

page 453The employer has a measure of control of the situation by carefully choosing supervisory employees. As discussed, in a tangible job action there is usually a paper trail involved, so it also gives the employer a measure of control by keeping up with what is going on in the workplace and monitoring for actions that may violate the law. For instance, if an employee is precipitously terminated or demoted, not given a raise if it is expected, or given a raise if none is expected, there will be a paper trail and the law holds the employer responsible for knowing what is going on in the employer’s workplace. The law says the employer cannot engage in sexual harassment, so doing so through a supervisor is tantamount to the employer doing it and the employer is strictly liable for the harassment. You can thus see why even though Justice Ginsburg dissented mightily over the Court’s decision in Ball State University v. Vance, the decision actually very much reflected the Court’s previous positions. While the Court had not specifically said that a supervisor must have the authority to hire and fire, its language could be said to be consistent with that conclusion. However, as Justice Ginsburg noted, such a holding does not reflect the reality of the workplace since employers often have employees to whom they give important authority over other employees that falls short of the authority to hire and fire.

Supervisor toward Employee (No Tangible Employment Action)

If there is no tangible employment act by a supervisor, such as termination, and instead there is activity by a supervisor causing a severe and/or pervasive hostile environment resulting in harm to the harassed employee (for instance, the supervisor may constantly ask the employee out on dates and make sexual comments, but still give the employee her usual raises and promotions), the employer is not strictly liable. This is also true of a constructive discharge. As you will see below, in constructive discharge, the workplace becomes so unbearable, objectively speaking, that the employee has no real option except to leave. In these situations, the harassed employee can bring a claim, but there is no virtually automatic liability like there is for strict liability offenses. Here, the employer has an affirmative defense available. The employer can use the Ellerth/Faragher defense to show that the employer had a reasonable sexual harassment policy to prevent and address sexual harassment and the harassed employee unreasonably failed to use it. This defense is not permitted in a case where there is a tangible unfavorable job action by a supervisor.

Co-Worker Harassment or Third-Party Harassment of Employee

When the harassment is by (1) one employee toward another on the same level (rather than by a supervisory employee to a subordinate) or (2) someone who is not employed by the employer, such as a client or someone who comes in to service the machinery at the employer’s business, the employer is liable if the employer knew or should have known of the acts of the harasser and took no immediate corrective action.

For instance, if the computer repairer comes to service computers and regularly feels the employee’s legs while working with wires under the desk or makes page 454inappropriate and suggestive sexual comments, the employer would be liable even though the repairer does not work for the employer. The employee would usually have to make the employer aware of the situation and the employer would have to take no steps to remedy the situation before liability would attach. If the employer saw what was happening and saw that the employee was clearly upset by the situation, the employer would-be put-on notice that something should be done and liability could attach. The same is true with co-workers. That is why it is so important for managers and supervisors to be aware of what is going on around them in the workplace and deal with it effectively. The law will hold the employer responsible through the acts of the supervisory employees who were aware and took no action to rectify the situation.

In Faragher v. City of Boca Raton, for your review at the end of this chapter, the U.S. Supreme Court discussed employer liability for sexual harassment. The case involved sexual harassment of lifeguards who were stationed in a remote (from the main office) location, which resulted in less supervision of what was occurring. The Court provided employers not only with a defense they could use when sued by an employee who had not acted reasonably in seeking to avoid harm (the Ellerth/Faragher affirmative defense) but also with ammunition for an employee who could allege that the employer did not use reasonable measures to prevent sexual harassment.

Sometimes, the employee is not terminated but instead believes the harassment is so unbearable that he or she must quit his or her job without going through the employer’s sexual harassment complaint process. This is constructive discharge. In Pennsylvania State Police v. Suders,49 the Supreme Court addressed what to do if a supervisor’s actions result in a constructive discharge for an employee and whether such a discharge is loss of a tangible job benefit, resulting in strict liability for the employer. The Court said that when there is no official act resulting in the constructive discharge, and thus, no way for an employer to be made aware that there was an issue resulting in the constructive discharge, rather than strict liability attaching to the employer, the employer is able to use the Ellerth and Faragher affirmative defense to show how it tried to avoid liability.

In Robinson v. Jacksonville Shipyards, Inc., which we mentioned earlier in the context of sexual harassment policies, the court provided important information as to how sexual harassment cases should be handled. It is the basis for Opening Scenario 1. The case involved nude pictures, magazines, plaques, and posters in the workplace. When the employee complained, she was told she simply should not look. The court said this was not an appropriate response by the employer, as this type of paraphernalia creates a hostile environment for which the law will hold the employer liable.

Remember that it is a defense to liability if an employer can show that the harassee unreasonably failed to avail himself or herself of a mechanism the employer had in place for preventing or correcting sexual harassment. Likewise, it is helpful to a harassee if he or she can show that the employer had unreasonable means of preventing or correcting sexual harassment (for instance, the only one to whom claims are reported is the harasser). This makes it more important than ever for an employer to page 455have a strong sexual harassment policy as well as effective training, monitoring, and reporting of sexual harassment. The EEOC has determined that since harassment of any kind is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, that limitation is to be narrowly construed.

Other Important Considerations

There are several other important miscellaneous matters you should be aware of that are often at issue in sexual harassment claims.

Determining the Truth of Allegations

The number one problem managers have in responding to sexual harassment complaints (other than their discomfort in dealing with such matters) is determining the truth of sexual harassment allegations. We cannot tell you how many times we have heard employers and managers say, “We don’t know who to believe! How are we supposed to know who is telling the truth? We don’t want to wreck someone’s career if we don’t have to!” Appropriate investigation should provide the employer a basis on which to decide and to appropriately respond. Both parties, as well as any witnesses, should be questioned. The investigator’s objective is to find out the “who,” “what,” “when,” “where,” and “how” of the allegations as quickly and as discreetly as possible. Employees should be involved only on a “need to know” basis. When all appropriate evidence is gathered, much like the members of a jury, the employer must determine the facts. The employer bases the determination on who seems most credible, whose version of the alleged incidents is more likely to be closer to the truth, what interests the parties have in telling their version of the events, and any credible corroboration presented. The common problem of the employer’s discomfort with making judgments should not, as it so often does, prevent moving quickly and appropriately on complaints. We have often seen that the main discomfort actually stems from preferring not to have to deal with the issue at all. Once it is clear that the activity may be illegal, there is no choice. It must be done. It is not a choice, any more than it would be in a rape case, which rarely has witnesses to what occurred.

The EEOC’s Policy Guidance on Harassment provides insight into how credibility determinations are to be made. According to the EEOC, while none of the following is necessarily determinative, factors to consider in deciding credibility include

•Inherent plausibility. Is the testimony believable on its face? Does it make sense?

•Demeanor. Did the person seem to be telling the truth or lying?

•Motive to falsify. Did the person have a reason to lie?

•Corroboration. Is there witness testimony (such as testimony of eyewitnesses, people who saw the person soon after the alleged incidents or people who discussed the incidents with him or her at or around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

•Past record. Did the alleged harasser have a history of similar behavior in the past?

page 456We wish there was more we could tell you, but the truth is, there isn’t much more that can be said. It can be uncomfortable, but investigating and making a decision must be done, and there are no special tools to do it, much like a jury has no special tools when deciding a murder case. They just come in, listen carefully to the evidence, observe carefully, and make a determination using their best judgment based on what they have taken in. There is no magic, no easy way to do it. Responding quickly, taking the matter seriously, using your best judgment to evaluate what you find, and going where the information leads you are the best tools you can use in determining the truth of the matter.

Retaliation and Employee Privacy

Often harassees report sexual harassment and, out of fear of retaliation, want the employer to provide relief without informing the alleged harasser of the complaint or of the harassee’s identity. Harassees should be informed that the alleged harasser must be told of the complaint for the employer to effectively address it but that retaliation will not be tolerated, as the law has separate retaliation provisions. Alleged harassers are not required to play hide-and-seek with claims and claimants. As uncomfortable as the claimant may be in coming forward, the alleged harasser must be notified.

According to the EEOC, there has been a dramatic increase in the number of retaliation claims in recent years. In 2016 they were the number one claim reported. The EEOC has been clear in reiterating that it takes such cases very seriously. Courts and juries have been clear in sending the message that they do not like retaliation by employers for employees pursuing their legal rights under the law. Punitive damages are likely to be granted in such cases since retaliation, in a manner of speaking, adds insult to injury and is much more deliberate. It is important to energetically pursue retaliation claims because the law protecting employees is meaningless if those who need the law cannot use it for fear of what may happen to them if they do. Who would want to take the risk?

Corrective Action

The EEOC guidelines state that the employer must take “immediate and appropriate corrective action” to remedy sexual harassment. The most appropriate thing to do under the specific circumstance depends on the facts. Consideration should be given to such factors as the employment position of the employees, the activity involved, the duration of the actions, the seriousness of the actions, the employer’s sexual harassment policy and other methods used to deter sexual harassment, the alleged harasser’s prior history of sexual harassment, and so on. While the remedy must be calculated to stop the harassment and must not have the effect of punishing the harassee, neither should it be out of proportion to the act. Make sure the punishment fits the crime. Every act of sexual harassment need not result in automatic termination, the “capital punishment” of the workplace. In its 2016 Task Force Report on Workplace Harassment, the report took the position that this is why “zero tolerance” policies should be discouraged. They promote the idea that all sexual harassment is the same and should have the same consequences. That makes no sense. Telling an inappropriate off-color joke should not be page 457treated the same as locking someone in a storeroom and sticking your hand down his or her pants. Zero tolerance policies may seem to make the issue easier to deal with, but it does little to create the sexual harassment-free workplace an employer wants.

With all this in mind, the good news is that there is now a more formalized purpose to all this. For years, courts admonished employers to take claims seriously and respond accordingly, but this had no consistent, formalized result for the employer. Employers could do the best they could and still get into trouble with the law. That is no longer so for certain cases. Through two cases you have already been introduced to in this chapter, Faragher and Ellerth, the U.S. Supreme Court created the Ellerth/Faragher affirmative defense we spoke of earlier, which employers can use to protect themselves from liability when they have tried to consistently obey the law. In Burlington Industries, Inc. v. Ellerth, the Court outlines that defense and provides employers with a good deal of control over avoiding and/or limiting liability for violations of Title VII when there is no loss of tangible job benefits because of a harasser’s action. Keep in mind that the defense can only be used where there was no tangible employment action by a supervisor.

Damages and Jury Trials

We discussed these issues in Chapter 2, “The Employment Law Toolkit,” but due to the sensitive nature of this area, we thought it was worth reiterating. Under the Civil Rights Act of 1991, based on the number of employees employed by the employer, an employee suing for sexual harassment can ask for up to $300,000 in compensatory and punitive damages (and unlimited medical damages) and request a jury trial. Both these factors greatly increase the employer’s potential liability for sexual harassment and make avoiding liability for this unnecessary activity even more imperative.

As you can imagine, after the 1991 amendments allowed damages and jury trials, Title VII claims increased dramatically. It finally made economic sense to go through the time-consuming, arduous process of suing, for both claimants and their attorneys. Of course, this was not a welcome event for employers. In sexual harassment cases in particular, jury trials can be very damaging. The nature of the activities constituting the claim can be quite emotional for a jury to hear, not to mention the stress it puts on the employee and the embarrassment for the employer. That is why it is even more important not to let things get that far unless the employer is certain of victory—which is virtually unknown since juries are unpredictable.

In response to our country’s exploding litigation dockets, the use of alternative dispute resolution, or ADR, for settling disputes went from a backwater alternative to litigation to one of the most-used methods. As we discussed in the chapter on Title VII, the EEOC has now institutionalized the use of ADR in its proceedings in several ways and has gotten employers to do the same, using their own extensive, in-house ADR resources. Among other things, the EEOC conducts mediation on appropriate claims filed with them, and in 2003, it began pilot or start-up programs for handling its own internal complaints, a program to have Fair Employment Practice Agencies mediate private-sector claims, and a program in which national employers handle claims of their employees informally before handing it over to the EEOC (if it is necessary to do so). Many attorneys and court systems now also offer ADR as a part of their services.

page 458

Management Tips

Sexual harassment doesn’t have to be the employer’s worst nightmare. Don’t ever expect to have absolute control over every employee in the workplace, but following the tips below can substantially decrease the chances of a recalcitrant employee causing liability.

Seriously dealing with the issues, both in word and deed, should be the rule. The EEOC and courts take the position that the best thing an employer can do to effectively keep sexual harassment complaints to a minimum—and to minimize liability for sexual harassment complaints that do occur—is to take a preventive approach. This may include the following:

•Adopt an anti-sexual harassment policy discouraging such activity. This should be separate from the general antidiscrimination policy, and every employee should be aware of it.

•Make sure, from the top down, that all employees understand that sexual harassment in the workplace simply will not be tolerated. Period.

•Create and disseminate information about an effective reporting mechanism for harassees, including alternatives when the harasser is the one who would normally be the one to whom to report.

•After adopting the policy, don’t let it sit in a drawer somewhere. Use it. Consistently remind employees of it.

•Provide employees with training and/or information apprising them of what sexual harassment is and of what specific activities are appropriate and inappropriate in the workplace. This will go a very long way toward decreasing potential liability for the employer.

•Ensure that reported incidents of sexual harassment are taken seriously by supervisors and others involved in reporting. Do not tell the employee to “get over it,” or that it is to be expected because of where they work or the job they hold.

•Ensure that the training employees receive is effective and answers their questions and concerns and that the training is interactive and engaging.

•Keep in mind that creating an atmosphere in which sexual harassment is not tolerated is a big part of what the EEOC and courts want employers to do. Operationalize this on a real-life basis. That is, when employees engage in activity that helps to create an atmosphere that accepts harassing activity, challenge it. Don’t tolerate the jokes, sneers, leers, teasing, gestures, and so forth.

•Promptly investigate all sexual harassment claims and circulate information only on a need-to-know basis.

•Keep an eye out for antifemale animus that also may constitute sexual harassment.

•If investigation warrants discipline for the harasser, ensure that immediate, appropriate corrective action is taken. Make sure the corrective action is commensurate with the policy violation. Immediate termination is not the response to every sexual harassment claim.

•Work to keep the workplace friendly and open. Having a workplace free of sexual harassment does not mean employees can’t still work in a pleasant, respectful atmosphere.

page 459ADR is a much less acrimonious, expensive, time-consuming alternative that also has the bonus of not being on the public record, for the most part, or precedent setting, in the formal sense. If you are an employer or employee, it would probably be in your best interest to try this route before going to court. You have little to lose and a host of benefits to gain.

Tort and Criminal Liability

In addition to bringing an action under Title VII, harassees also may bring civil actions in state court—or, if permitted, federal court—based on state laws that also may be violated by the actions of the alleged harasser. Recall that in Meritor, the first sexual harassment case to come before the U.S. Supreme Court, the bank manager was alleged to have fondled the plaintiff in public, followed her to and entered the ladies’ restroom with her, and engaged in unwelcome sexual intercourse, including while in the bank’s vault. These acts, while constituting sexual harassment under Title VII, also could form the basis for various tort actions including:

Assault: Intentionally putting the victim in fear or apprehension, or both, of immediate unpermitted bodily touching.

Battery: Intentional unpermitted bodily touching.

Infliction of emotional distress: An intentional outrageous act that goes outside the bounds of common decency, for which the law will provide a remedy.

False imprisonment: Intentionally preventing the harassee’s exit from a confined space.

Interference with contractual relations: Intentionally causing the harassee to be unable to perform her employment contract as agreed upon.

These cases are generally heard by juries, with the possible result of unlimited compensatory and punitive damages. In addition, the harasser’s action could form the basis of criminal prosecution for, at a minimum, criminal assault, battery, and rape. Of course, the criminal cases would be against the harasser, rather than the employer, and would result in punishment for the harasser, rather than money damages to the harassee (unless the state has a victim assistance or restitution program). In Miller v. Washington Workplace,50 the employee was assaulted and battered by her boss after simply asking for the company’s sexual harassment policy!

Chapter Summary

•Consensual activity is not a violation of Title VII.

•Unwelcome sexual advances that cause one gender to work under conditions or terms of employment different from those of the other gender constitute sexual harassment for which the employer may be liable.

•Employers will be responsible only if the sexual harassment is severe and pervasive.

•Activity need not be sexual in nature to constitute sexual harassment. page 460

•Employers should treat all sexual harassment complaints seriously and act on them quickly.

•Prevention is imperative to avoid sexual harassment claims and lessen liability. The employer must make it clear that sexual harassment will not be tolerated. This should be clearly stated and followed up and monitored by appropriate mechanisms.

•Employers need a strong anti-sexual harassment policy that is vigorously enforced.

Chapter-End Questions

1.Employer uses the “f

***

” word frequently in the workplace and makes statements to employee such as, in regard to an installer, he was always confused and bet that as a baby he “probably didn’t know which tit to suck”; and in discussing a motorcycle seat, cupped his hands and said he would be “glad to fit employee’s ass for the right size seat.” Is this likely to be successful as a sexual harassment suit? [LaPorte v. Fireplace and Patio Center, Inc., 2004 U.S. Dist. LEXIS 2113 (W.D. Ill. 2004).]

2.Employee, a 33-year-old unmarried male, is frequently teased by the other males in his plant about being unmarried and still living at home with his mother. Is this sexual harassment? [Goluszek v. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988).]

3.Employee sues employer for sexual harassment because her supervisor once touched her on her back and made an “untoward” statement to her. Will she win? Explain. [Strickland v. Sears, Roebuck and Co., 693 F. Supp. 403 (E.D. Va. 1988).]

4.Two employees, Marge and Ben, are having a relationship that later turns sour. When Marge does not get the promotion she goes up for, she sues the employer for sexual harassment, alleging it was committed by her ex-boyfriend Ben, who has, since their breakup, left Marge alone. Will Marge win her suit? [Koster v. Chase Manhattan Bank, 687 F. Supp. 848 (S.D.N.Y. 1988).]

5.Dennis comes up to his supervisor, Mae, at a Christmas party and tells Mae he wants to sue for sexual harassment. Mae asks what happened. Dennis says that Linda came over to him and tweaked his cheek and called him sweetie. Dennis pursues the case. Does he win? Why or why not? [Facts from business consulting session attendee.]

6.An employer asks an employee to go to dinner and drinks and said they could “see what happen(ed) after that.” Is this enough for a sexual harassment claim? [Mireault v. Northeast Motel Assocs., LP, 20 Mass. L. Rep. 614; 2006 Mass. Super. LEXIS 65 (2006).]

7.A female employee has an operation on her breast, and when she returns to work, a male employee “jokingly” asks to see the scar. Actionable sexual harassment? [Keziah v. W. M. Brown Son, Inc., 683 F. Supp. 542 (W.D.N.C. 1988).]

8.Joan, a female manager, asks Margaret, one of her subordinates, out on a date. When Margaret refuses, Joan becomes mean to her at work and rates Margaret’s work poorly on her next evaluation. Margaret wants to bring a sexual harassment claim but feels she cannot do so since her boss is female. Is Margaret correct?

9.A truck driver trainer sexually harassed a trainee and she brought suit for sexual harassment. The trainer claimed to have power over the trainee, but in reality, the trainer was not a supervisory employee. Is it possible for her to make her claim of quid pro quo sexual harassment if the trainer actually is not a supervisor? [Vernarsky v. Covenant Transport, Inc., 2003 U.S. Dist. LEXIS 18330 (E.D. Tenn. 2003).]page 461

10.Trudy comes to Pat, her supervisor, and tells her that Jack has been sexually harassing her by making suggestive remarks, comments, and jokes; constantly asking her for dates; and using every available opportunity to touch her. Pat has been friends with Jack for a long time and can’t imagine Jack would do such a thing. Pat is hesitant to move on Trudy’s complaint. What should Pat do?

End Notes

1. Mandell, Nina, “St. Louis Woman Awarded $95 Million after Former Boss Allegedly Masturbated on Her,” The New York Daily News (June 10, 2011), http://articles.nydailynews.com/2011-06-10/news/29663292_1_verdict-harassment-runaway-jury.

2. Newsweek (July 26, 2010), p. 16.

3. Talbot, Margaret, “Fox News and the Repercussions of Sexual Harassment,” The New Yorker (August 19, 2016), http://www.newyorker.com/news/daily-comment/fox-news-and-the-repercussions-of-sexual-harassment.

4. Steel, Emily, and Michael S. Schmidt, “Fox News Settled Sexual Harassment Allegations Against Bill O’Reilly, Documents Show,” The New York Times (January 10, 2017), https://www.nytimes.com/2017/01/10/business/media/bill-oreilly-sexual-harassment-fox-news-juliet-huddy.html

5. Campbell, Fred, “The Real Story Behind the FCC Sex Scandal,” Forbes, (October 20, 2016), https://www.forbes.com/sites/fredcampbell/2016/10/20/the-real-story-behind-the-fcc-sex-scandal/#6fd17514498c

6. Levine, Matt, “Successful Algorithms and Rude CFOs,” Bloomberg View (August 11, 2016), https://www.bloomberg.com/view/articles/2016-08-11/successful-algorithms-and-rude-cfos.

7. “Final Judgment in EEOC Sexual Harassment Case Against Custom Companies Tops $1.1M: Federal Judge Cites Involvement of Top Management in Permitting Harassment and in Retaliating Against Victims,” EEOC press release (March 8, 2007); and EEOC v. Custom Companies, Inc., et al., Nos. 02-C-3768, 03-C2293, Mem. Op. & Order (N.D. Ill. March 8, 2007).

8. “Lawyer Sues Ex-firm for Naked Male Retreat,” News.com (September 28, 2010), http://www.news.com.au/business/business-smarts/lawyer-sues-ex-firm-for-naked-male-retreat/story-e6frfm9r-1225930875532.

9. “Woman Spanked at Work Awarded $1.7M: Alarm Company Employee Found Camaraderie-Building Exercise Humiliating,” MSNBC (April 28, 2006), http://www.msnbc.msn.com/id/12534543/ns/us_news-life/.

10. Loomis, Tamara, “Record $5.5M Accord Reached in Doctor Harass Case,” Law.com (April 10, 2003), http://www.law.com/jsp/article.jsp?id=900005534973&slreturn=1&hbxlogin=1.

11. Seward, Christopher, “Ex Delta Pilot Files Sex Discrimination Suit,” The Atlanta Journal & Constitution (August 23, 2013), http://www.ajc.com/news/business/ex-delta-pilot-files-sex-discrimination-suit/nZZsz/.

12. Abramson, Alana, “Ala. Student Sues Best Buy’s Geek Squad after Circulation of Nude Photos,” ABC News (August 14, 2013), http://news.yahoo.com/ala-student-claims-best-buy-circulated-nude-photos-033351982–abc-news-topstories.html;_ylt=A0LEV1kxvPtScG4AIRRXNyoA;_ylu=X3oDMTEzOWFyOXZ1BHNlYwNzcgRwb3MDMwRjb2xvA2JmMQR2dGlkA1ZJUDI4MF8x.page 462

13. “Film producer ordered to pay $3 million in sex case,” Today.com Entertainment (August 27, 2011), http://entnews.today.com/_news/2011/08/27/7494695-film-producer-ordered-to-pay-3-million-in-sex-case.

14. Dolnick, Sam, and Danny Hakim, “Women Employed by New York Lawmaker Describe Sexually Hostile Office,” The New York Times (August 29, 2012), http://www.nytimes.com/2012/08/30/nyregion/women-employed-by-vito-j-lopez-describe-sexually-hostile-office.html?pagewanted=all&_r=0.

15. “Reverse Sexual Harassment under Investigation by New York Civil Rights Violation Lawyer Following Dog Trainer’s Accusations,” EIN Presswire (September 9, 2011), http://www.einpresswire.com/247pr/233963.

16. “Burger King Franchise Pays $400,000 for Alleged Sexual Harassment of Teens,” EEOC press release (December 6, 2004), http://www.eeoc.gov/eeoc/newsroom/release/12-6-04b.cfm.

17. Timmins, Annmarie, “Judge’s Victims Feel Violated by System: ‘Public Support for Him Is Cronyism,’ They Say,” The Concord Monitor (January 8, 2005), http://www.concordmonitor.com/article/judges-victims-feel-violated-by-system.

18. “Penis Pump Judge Gets 4-Year Jail Term,” USA Today (August 18, 2006). http://www.usatoday.com/news/nation/2006-08-18-judge-sentenced_x.htm.

19. Keck, William, “The Time Is Right for Barker,” USA Today (May 14, 2007), http://www.usatoday.com/life/people/2007-05-13-bob-barker_N.htm.

20. “Arnold Apologizes for ‘Bad Behavior,’” Fox News (October 3, 2003), http://www.foxnews.com/story/0,2933,98883,00.html.

21. Johnson, Lauren, “O’Reilly Settles Sex Harass Suit: Lawyer for Fox News Announces Settlement with Fox Producer,” CBS News (October 28, 2004), http://www.cbsnews.com/stories/2004/10/20/entertainment/main650282.shtml.

22. 139 F.R.D. 657 (D. Minn. 1991).

23. Hechler, David, “A White Buffalo,” National Law Journal (March 28, 2003).

24. Clara Bingham and Laura Leedy Gansler, Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law (New York: Doubleday, 2002).

25. Chapman, Parke, “C B Richard Ellis Denies Sexual Harassment Claims,” National Real Estate Investor (November 1, 2004), http://nreionline.com/mag/real_estate_cb_richard_ellis_16/; and “Settlement: Real Estate Brokerage Harassment,” lawyersand settlements.com (October 16, 2007), http://www.lawyersandsettlements.com/settlements/09555/real-estate-brokerage-harassment.html.

26. “EEOC Sues Red Lobster for Sexual Harassment,” EEOC press release (September 30, 2013), http://www1.eeoc.gov//eeoc/newsroom/release/9-30-13f.cfm?renderforprint=1.

27. Sachdev, Ameet, “After nearly 10 years, sex-harassment suit may finally be settled: Buffalo Grove–based International Profit Associates admits pervasive sexual harassment in the workplace,” Chicago Law (February 22, 2011), http://articles.chicagotribune.com/2011-02-22/business/ct-biz-0222-chicago-law-20110222_1_eeoc-sexual-harassment-individual-class-members.

28. “Lakemont Homes to Pay $267,000 to Settle EEOC Sexual Harassment, Retaliation Suit,” EEOC press release (November 30, 2011), http//www1.eeoc.gov//eeoc/newsroom/release/11-30-11.cfm?r.

29. “MMS Resources/Merchant Management Systems to Pay $365,000 to Settle EEOC Sex Harassment Suit,” EEOC press release (November 21, 2011), http://www.eeoc.gov/eeoc/newsroom/release/11-21-11a.cfm.page 463

30. “Dial Settles Sexual Harassment Lawsuit for $10M,” HR.BLR.com (May 1, 2003), http://hr.blr.com/HR-news/Discrimination/Sexual-Harassment/Dial-Settles-Sexual-Harassment-Lawsuit-for-10M/.

31. Mulkern, Anne C., “Mint Chief: No Tolerance for Sexual Harassment,” The Carlsbad Current-Argus (September 15, 2006), http://www.currentargus.com/ci_4339904.

32. Keller, Jared, “Nude Photo Scandal Reveals Marines’ Culture of Misogyny,” Newsweek (March 16, 2017), http://www.newsweek.com/nude-photo-scandal-exposes-marines-culture-misogyny-569104

33. Ellison, Jesse, “The Military’s Secret Shame,” Newsweek (April 11, 2011), p. 40.

34. “EEOC Sues Kraft Foods of North America for Same Sex Harassment of Men,” EEOC press release (October 25, 2002), http://www.eeoc.gov/eeoc/newsroom/release/10-25-02.cfm.

35. Ellison v. Brady, 924 F.2d 872, 881, n.15 (9th Cir. 1991), quoting from the MSPB update study, U.S. Merit Systems Protection Board, Sexual Harassment in the Federal Government: An Update (Washington, DC: U.S. Government Printing Office, 1988), p. 42.

36. 760 F. Supp. 1486, 1506–07 (M.D. Fla. 1991).

37. “EEOC Select Task Force on the Study of Harassment in the Workplace,” EEOC (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report .

38. Notice that we do not use the term “sexual favors.” It hardly makes sense to do so when the activity is unwanted. Making the “request” sound more palatable only masks the truth. We choose to simply call it what it is: a request for sexual activity of some kind.

39. Mattioli, Dana, “More Men Make Harassment Claims,” The Wall Street Journal (March 23, 2010), http://online.wsj.com/article/SB10001424052748704117304575137881438719028.html.

40. 523 U.S. 75 (1998).

41. No. 11-556, issued June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/11-556_11o2 .

42. No. 12-484, issued June 24, 2013, http://www.supremecourt.gov/opinions/12pdf/12-484_o759 .

43. 673 F. Supp (1458 E.D. Mo 1987).

44. Heathfield, Susan M., “The Scoop on Love Contracts: Do Dating Co-workers Need to Sign Love Contracts?” http://humanresources.about.com/od/glossaryl/qt/love_contract.htm.

45. 672 F. Supp. 1205 (D.R.I. 1991).

46. 510 U.S. 17 (1993).

47. 523 U.S. 575 (1998).

48. 895 F.2d 1469 (3d Cir. 1990).

49. 542 U.S. 129 (2004).

50. 298 F. Supp. 2d 364 (E.D. Va 2004).

Faragher v. City of Boca Raton 524 U.S. 775 (1998)

A former city lifeguard sued the city under Title VII for sexual harassment based on the conduct of her supervisors. The Supreme Court held that an employer is subject to vicarious liability under Title VII for actionable discrimination caused by a supervisor, but the employer may raise an affirmative defense that looks to the reasonableness of the employer’s conduct in seeking to prevent and correct harassing conduct and to the reasonableness of the employee’s conduct in seeking to avoid harm. The Court held that the employer was vicariously liable here because it failed to exercise reasonable care to prevent harassing behavior.

This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.

Souter, J.

***

Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher’s immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action page 470against Terry, Silverman, and the City, asserting claims under Title VII, and Florida law. The complaint alleged that Terry and Silverman were agents of the City, and that their conduct created a “sexually hostile atmosphere” that amounted to discrimination in the “terms, conditions, and privileges” of her employment at the beach by repeatedly subjecting Faragher and other female lifeguards to “uninvited and offensive touching,” by making lewd remarks, and by speaking of women in offensive terms.

Throughout Faragher’s employment with the City, Terry served as Chief of the Marine Safety Division, with authority to hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards’ work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline. Silverman and Gordon were captains and responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training. The lifeguards and supervisors were stationed at the city beach. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent.

In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. In May 1990, the City revised the policy and reissued a statement of it. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it.

Faragher did not complain to higher management about Terry or Silverman. In April 1990, however, two months before Faragher’s resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City’s Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without pay or the forfeiture of annual leave.

Since our decision in Meritor, Courts of Appeals have struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees. While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive.

A “master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Restatement § 219(1). This doctrine has traditionally defined the “scope of employment” as including conduct “of the kind [a servant] is employed to perform,” occurring “substantially within the authorized time and space limits,” and “actuated, at least in part, by a purpose to serve the master,” but as excluding an intentional use of force “unexpectable by the master.”

A justification for holding the offensive behavior within the scope of Terry’s and Silverman’s employment was well put in Judge Barkett’s dissent: “[A] pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer’s benefit or detriment, including subjecting the employer to Title VII liability.”

It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem in the workplace. An employer can, in a general sense, reasonably anticipate the possibility of such conduct occurring in its workplace, and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim. As noted, developments like this occur from time to time in the law of agency.

We agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority. The agency relationship affords contact with an employee subjected to a supervisor’s sexual harassment, and the victim may well be reluctant to accept the risks of blowing the whistle on a superior. When a person with supervisory authority discriminates in the terms and conditions of subordinates’ employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor’s abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose “power to supervise—[which may be] to hire and fire, and to set work schedules and pay rates—does not disappear . . . when he chooses to harass through insults and offensive gestures rather than page 471directly with threats of firing or promises of promotion.” Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim’s employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.

In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Applying these rules here, it is undisputed that these supervisors “were granted virtually unchecked authority” over their subordinates, “directly controll[ing] and supervis[ing] all aspects of [Faragher’s] day-to-day activities.” It is also clear that Faragher and her colleagues were “completely isolated from the City’s higher management.”

While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The City entirely failed to disseminate its policy against sexual harassment among the beach employees and its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The City’s policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct. Unlike the employer of a small workforce, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. REVERSED and REMANDED.

Case Questions

1.How could the city have avoided this outcome? Explain.

2.Do you think that it would have made sense for the city to consider the particulars of the circumstances here, such as that these were lifeguards, in a remote location, who by the nature of the job would be dressed in fairly little clothing, and who, because of the environment (the beach and recreational facilities) might need a different approach to sexual harassment than, say, office employees? Explain.

3.What do you think of the Court’s affirmative defense given to employers and employees? What are the pros and cons?

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

The citation provided is a guideline. Please check each citation for accuracy before use.

Chapter11: Religious Discrimination

Opening Scenarios

SCENARIO 1

Mohammed, a member of the Sikh religion, wears a turban as part of his religious mandate, including at work. His supervisor tells him the turban makes his co-workers uncomfortable. Must he stop wearing it?

SCENARIO 2

In his preemployment interview, Mosley stated that he would not work on Saturdays because that is the day of his Sabbath. As a result, he is not hired. Is this religious discrimination?

SCENARIO 3

Three months after coming to work for Steel Bank, Jon joins a religious group whose Sabbath is on Tuesdays. Members of the religion are not to work on the Sabbath. Jon refuses to work on Tuesdays. He is terminated. Jon sues the employer, alleging religious discrimination. The employer defends by saying that (1) Jon was not of this religion when he was hired, (2) Tuesday is not a valid Sabbath day, and (3) any religious group that celebrates a Sabbath on Tuesday is not a valid religion and the employer does not have to honor it. Are any of the employer’s defenses valid?

Statutory Basis

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion . . . or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s religion . . . [Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. § 20002-2(a).]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . [First Amendment to the U.S. Constitution.]

This Is Not Your Parents’ Religious Discrimination

•A medical services company paid out $170,000 to settle a religious discrimination suit filed by employees required to spend at least half their workdays in courses that involved Scientology religious practices such as screaming at ashtrays, staring at someone for eight hours without moving, or being connected to an “E-meter,” which Scientologists believe measures religious devotion.1

•The owner of a logistics company took an employee to lunch and told her that she needed “to examine her walk with Jesus” and be a better Christian. She was later demoted and her job given to a younger man with no experience.2

•After a seven-year investigation, major shipping company J.B. Hunt entered into a settlement agreement with four of its employees to address complaints from Sikh truck drivers about religious discrimination stemming from them not being hired or being terminated when, in conformity to their religious page 533dictates, they declined to remove their turbans or cut their hair for pre-employment drug tests, when other drug tests were available that would not go against their faith.3

•A hospital employee sues her employer for religious discrimination when she is terminated for refusing to take a required flu shot because she said she was vegan.4 Another employee sought EEOC guidance as to whether an employer could require verification from clergy or others who could attest that the religious belief for seeking to be excused from the flu requirement was sincerely held (the answer was yes, an employer could seek this information).5

•The EEOC sued an employer for terminating an employee of over 35 years who repeatedly told the company that the use of its new biometric hand scanner to track employee time and attendance violated his religious beliefs as an Evangelical Christian and the company refused to consider alternate means of tracking time and attendance even though it would have been easy and they were doing it for employees without fingers.6

•A California car dealership agreed to pay $400,000 to five Afghan-American employees who were singled out in a staff meeting and called names by the general manager, who threatened to “blow them up with a grenade.” When they reported this to upper management, they were met with further harassment and job scrutiny. After quitting, several joined the U.S. military.7

•A Home Depot employee sues his employer for terminating him after the employee refuses to stop wearing a button he had worn for over a year that said “One nation, under God, indivisible” in honor of his brother who was in the National Guard and set to report for a second tour of duty in Iraq.8

•Grammy-winning musician Carlos Santana (“You’ve Got to Change Your Evil Ways”) is sued for unjust dismissal by a former personal assistant who claims Santana and his wife made the employee visit a chiropractor to be tested for his “closeness to God.” Mrs. Santana said that when prospective employees were being evaluated for hire, she had the chiropractor “calibrate” them, as the more the chiropractor “enlightened” employees through treatments, the closer to God they became and the better employees they become.9

•An employee sues to have the court impose an injunction allowing her to say “have a blessed day” in written communications to clients and customers.10

•A Starbucks server sues Starbucks for retaliation after she refuses to remove her Wiccan symbol necklace and her hours are reduced, she is not promoted or transferred, and her tardiness is scrutinized.11 The same thing happens at Google.12

•An employee sues after being terminated for eating a bacon, lettuce, and tomato sandwich (BLT) at work, in violation of the “no pork or pork products” rule put in place in deference to Muslim employees and clients.13

•Seven female employees at Belmont Abbey College, a small Catholic institution in North Carolina, claim discrimination against them due to the college’s refusal to cover prescription contraceptives in its health insurance plan.14

•page 534As more Muslim employees enter the workplace, they are running into trouble as dictates of their faith conflict with workplace duties, policies, and the other non-Muslim employees there. For instance, the BBC in London found that job seekers with English-sounding names were offered three times the number of interviews than those with Muslim names.15 And two Muslim truckers were awarded $240,000 after they were fired for refusing to deliver beer because Muslims are forbidden from handling alcohol.16 A Muslim ExpressJet flight attendant was suspended for refusing to serve alcohol on a flight.17 A Muslim employee in Michigan won nearly $1.2 million from a jury after being taunted, harassed, and discriminated against at work because of his religion, race, and his long beard.18 In Minnesota, the Metropolitan Airports Commission cracks down on Muslim taxi drivers (about one-third) for refusing to pick up passengers carrying alcohol they say violates their religion.19

•General Motors wins a lawsuit by an employee who wants to form a Christian group at work like other affinity groups, claiming it is religious discrimination to allow those and not the Christian one. The court held that GM had no religious groups, so refusal to have a Christian one was not religious discrimination.20

•Pharmacists with religiously based objections to premarital sex or abortion are disciplined for refusing to fill prescriptions for birth control pills or the morning after pill.21

•An Indiana state police officer is terminated for refusing a casino detail, saying gambling or being around it is against his religion.22

•Employees whose religion requires them to “witness” or proselytize sue for the right to do so to their fellow employees in the workplace.23

•The New York Police Department previously found liable for religious discrimination for banning the wearing of a turban on the job by Sikhs, decides to allow the wearing of their beards and turbans.24 The Army also cannot require special testing of a Sikh officer.25

•Alabama Supreme Court Chief Justice Roy S. Moore is removed from office for refusing a court’s order to remove a 5,280-pound granite carving of the Ten Commandments from the courthouse rotunda.26

•Oklahoma City agrees to pay $20,000 in attorney fees for two employees who filed a lawsuit over Christmas decoration policies requiring them to remove a religious decoration on a filing cabinet, remove a Bible from a break room, and cancel an annual break-room Christmas party that included an opening prayer.27

•A television producer is fired for complaining about the company including biblical scriptures inside paycheck envelopes and promoting office Bible study.28

•Muslim Target cashiers in Minneapolis are shifted to other jobs as a religious accommodation after refusing to scan pork products because it conflicts with their religion’s ban on pork.29

•A soldier sues the Army, saying that his atheism led to threats in a culture that tilts heavily toward evangelical Christianity.30

•page 535An AT&T employee is terminated for refusing to sign a “Certificate of Understanding” requiring him to adhere to the company’s diversity policy that conflicted with the employee’s religious beliefs about homosexuality.31

•At Hewlett-Packard, in the same situation, an employee is terminated for refusing to remove biblical scriptures he placed on an overhead bin in his workplace cubicle, hoping his LGBT co-workers would see them, be hurt, repent, and be saved.32

•Minnesota employees who bring their Bibles to the diversity session on working with LGBT employees sue their employers, saying punishing them for this was a violation of their constitutional rights.33

•The EEOC sues Grand Central Partnerships on behalf of four Grand Central Station security guards who said the policy requiring them to tuck their dreadlocks under their uniform caps discriminates against their Rastafarian beliefs.34

•An employee belonging to the World Church of the Creator that teaches that “all people of color are savages who should go back to Africa and the Holocaust never happened and if it did, Nazi Germany would have done the world a tremendous favor” sues his employer after being terminated for giving a newspaper interview espousing these views. He wins.35

The face of religious discrimination has changed dramatically in just the past few years. Of course, in each of these situations, the employer argued that he or she had a workplace policy against religious discrimination and that they never engage in such discrimination. Without guidance, it can be difficult to know. And those were just examples of religious issues in the workplace. That doesn’t even include recent issues outside the workplace that also form a part of the religious landscape. Examples include things like the “Trump effect” causing a national security concern for the military because members of the military have formed a group of extreme Christians who are harassing, bullying, and otherwise mistreating Catholics, Jews, and other religious groups36; the armed forces settling a lawsuit by agreeing to add to the 38 existing religious symbols it permits on military burial monuments the Wiccan pentagram symbol37; the speedy removal (after a “firestorm of criticism”) of a New York billboard promoting a budget brand of vodka implying Jews were cheap (complete with a long-haired dog wearing a yarmulke and a smaller dog wearing a Santa hat) by stating: “Christmas quality, Hanukkah pricing”38; the Colorado high school student who quit the high school choir over an Islamic song praising Allah included for diversity purposes39; the Catholic schoolteacher who was terminated because she and her husband underwent in vitro fertilization treatment, which the church said was against its teachings40; a New York restaurant allegedly discriminating against Jews dressed in religious garb by requiring them to pay a $25 minimum per person to sit at the bar, complete with code words to alert the maitre d’ of such people asking to be seated41; Louisiana State University administrators taking heat for removing images of the Christian crosses worn by several members of the Painted Posse fans42; the Kountze County, Texas, school district administrators’ ban on cheerleaders holding banners bearing Bible verses during athletic events43; the U.S. Supreme Court case challenging the pledge of page 536allegiance phrase “One nation under God”44; the Supreme Court’s decision on the exhibition of Ten Commandment monuments on federal or state premises45; the Amish challenging the use of the bright orange triangles on their buggies for safety purposes, whose color and shape deeply offend their religious sensibilities46; the University of Georgia Jewish cheerleader (one of our students) who alleged that the Christian cheerleading coach did not appoint her to the prestigious football cheering squad because she did not participate in pregame prayers or attend Bible studies held in the coach’s home47; the female Muslim University of South Florida basketball player who voluntarily resigned from the team after the coach refused to allow her to wear a uniform with long pants, long sleeves, and a head scarf in conformity with her religious dictates48; on the other hand, the March 2017 issue of Oprah magazine contained a story on a new line of activewear hijabs for Muslim female basketball players.49 There are many more we could add, but one thing is for sure: religious discrimination is no longer the backwater issue of Title VII that it once may have been perceived to be.

Religious discrimination has certainly come a long way from what was likely envisioned by our forefathers when they wrote its protection into our Constitution. As a nation of immigrants, the United States has always had a diversity of religions among its people. However, with the change in immigration laws causing a growing influx of even more types of people from around the world, each expecting the freedom of religion that the Pilgrims left England for and the founding fathers felt strongly enough about to include in the constitution of its fledging republic, the face of what many of us have come to expect when we think of religious discrimination has changed. (See Exhibits 11.1, “Major Religions of the World—Ranked by Number of Adherents,” and 11.2, “Major Religions and Denominations in the United States.”)

Exhibit 11.1 Major Religions of the World—Ranked by Number of Adherents

Sizes shown are approximate estimates and are here mainly for the purpose of ordering the groups by size, not to provide a definitive number. (This list is sociological/statistical in perspective.)

“Major Religions of the World,” adherants.com, 2014. Copyright © 2014 by

adherants.com

. All rights reserved. Reprinted by permission.

Exhibit 11.2 Major Religions and Denominations in the United States

Top Organized Religions

Christianity76.5%

Judaism 1.3

Islam 0.5

Buddhism 0.5

Hinduism 0.4

Unitarian Universalist 0.3

Wiccan/Pagan/Druid 0.1

Largest Denominational Families

Catholic24.5%

Baptist16.3

Methodist 6.8

Lutheran 4.6

Pentecostal 2.1

Presbyterian 2.7

Mormon 1.3

Nondenominational Christians 1.2

Church of Christ 1.2

Episcopal/Anglican 1.7

Assemblies of God 0.5

Congregational/United Church of Christ 0.7

Seventh Day Adventist 0.3

“Major Religions of the World,” adherants.com, 2014. Copyright ©2014 by adherants.com. All rights reserved. Reprinted by permission.

Religion has unique significance in our country’s creation and development. In the 16th century, when the Catholic Church did not allow King Henry VIII to divorce his wife, Catherine of Aragon, to marry Anne Boleyn, Henry broke with Rome. This led to the establishment of a separate national church in England under the supreme headship of the king. Henry VIII was allowed to divorce Catherine (he eventually took six wives) and marry Anne, whom he ordered beheaded in 1536.

The aftermath of Henry’s maneuvers was that the church became inextricably woven into the government, and religious freedom was virtually nonexistent in the government from which America was born. The right to practice religion freely and not be required to blindly accept the government’s state-imposed religious beliefs was a large part of what made the Pilgrims break away from Great Britain and its Church of England more than a century later.

Of course, this is only a simplified version of a very long and complex developmental process for our relationship as a country with religion. But the end product was that, rejecting the tyranny of this state-imposed religion, religious freedom was included in the U.S. Constitution, and freedom of religion has since always been highly valued and closely held, and has enjoyed a protected position in American law.

Title VII embodies this protection in the employment arena by prohibiting employment discrimination based on religious beliefs or practices. While litigation on the basis of religious discrimination may not occur as frequently as some of the other categories, or have as high a profile, it is just as important a concern for employers. The percentage of claims may seem small, but the more important factor is that there has been a steady increase in claims since 1993 and an absolute spike after the terrorist events of September 11, 2001. In FY 2016, religious discrimination accounted for 4.2 percent of charges filed with the EEOC. That was 3,825 charges, compared to 32,309 for race (35.3 percent) and 26,934 for gender (29.4 percent). In 1997, the percentage was 2.1 with 1,709 charges. In just under twenty years the number of charges has more than doubled.50

However, religious discrimination is no less important. It is clear that this issue has taken on an even more pressing note since the tragic events of September 11, 2001. According to the EEOC, federal, state, and local fair employment practice agencies documented a significant increase in the number of charges of workplace harassment and discrimination claims based on national origin (with those perceived to be of Arab and South Asian descent being the target) and religion (Muslims, Sikhs) since then. Employment discrimination claims increased by 4.5 percent from 2001 to 2002, with much of that increase coming from ethnicity and religion after 9/11. According to the Tanenbaum Center for Interreligious Understanding’s annual survey of American Workers and Religion in 2013, 20 years ago the anti-Muslim discrimination primarily involved dress codes or policies on religious holidays. Today the conflicts are more personal, such as name calling or offending jokes; it’s typically personal prejudices between employees or between an employee and a supervisor.51 A Carnegie Mellon University experiment involving dummy résumés and social media profiles found that between 10 and 33 percent of U.S. firms searched social networks for information on job applicants early in the hiring process and candidates whose public Facebook profiles indicated page 539they were Muslim were less likely to be called for interviews (2 percent) than Christian applicants (17 percent).52 We also earlier mentioned the British study, which would, in all likelihood have similar results here in the United States, that applicants with Muslim-sounding names would be far less likely to have their résumés chosen for an interview. In fact, in issuing a new comprehensive directive on religious discrimination for the EEOC Compliance Manual in 2008, the EEOC noted that claims of religious discrimination had doubled between 1992 and 2007 and that as religious pluralism has increased, questions about religious discrimination have increased.53

But diversity consultants agree that employers who adapt and reduce conflict, improve morale and performance “by attracting the best talent from a broad range of backgrounds that can help the company appeal to a larger customer base.”54 All this at a time when the Pew Research Center said that in their 2014 Religious Landscape Study, the number of atheists went up from 1.6 percent in a similar study in 2007, to 3.1 percent in 2014. Another 4 percent say they are agnostic, up from 2.4 percent in 2007. The proportion of Americans who say they are religious has fallen from 78.4 percent in 2007 to 70.6 percent in 2014. Eighty-three percent identify as Christian. The most growth was in non–Christian faiths and those who were unaffiliated. Non–Christian went up from 4.7 percent in 2007 to 5.9 percent in 2014.55

Actually, the increase in litigation involving religious issues began when issues of workplace activities and harassment issues surrounding religious practices became more prominent in the late 1980s and early 1990s with the rising popularity of Fundamentalist Christianity and televangelism. Many of the Fundamentalists, commonly referred to as “born-again Christians,” ran into trouble when, as an article of faith, they attempted to share their religion with others in the workplace, sometimes whether the co-worker wished to have it so or not. On the other hand, Fundamentalists experienced trouble when they were mocked, teased, or otherwise singled out for their religious beliefs at work.

In fact, a survey reported that 40 percent of white evangelical Christians said they face “a lot” of discrimination and 59 percent of them say discrimination against Christians has become as big a problem as discrimination against other religious groups. “At the same time, evangelicals were the most likely to say there is little to no discrimination at work against other religions, racial, gay and lesbian and other groups.”56

As you saw from the beginning of the chapter, these religious discrimination issues have now extended into areas surrounding the practices and dictates—and harassment—involving those of primarily Middle Eastern religions. Can a Sikh be required to remove his religiously dictated turban at work? Can a Muslim woman be terminated for wearing a religiously dictated head covering? Must a Muslim employee be allowed to attend a midday Friday religious service or have a place provided for religion-required prayer five times a day? Can a Muslim taxi driver refuse to pick up fares that have liquor? Can a grocery store cashier refuse to touch pork, saying it is against her religion? All of these issues and those mentioned at the beginning of the chapter have been a part of the post–September 11, 2001, landscape and must be addressed consistent with Title VII and other legal dictates.

page 540

Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state, and local government employees. If the employer is a governmental entity, the employer must avoid workplace policies that have the effect of tending to establish or to interfere with the practice of the employee’s religion. In determining whether the employer has discriminated on the basis of religion, the court must sometimes first address whether even deciding the issue entangles the government excessively in the practice of religion. Title VII is the only legislation specifically prohibiting religious discrimination in employment, and consideration is given to constitutional issues where necessary.

Unlike the other categories included in Title VII, there is not an absolute prohibition against discrimination on the basis of religion. Rather, under Title VII, we see for the first time a category that has built into it a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause the employer undue hardship. There is no such reasonable accommodation requirement for race, gender, color, or national origin, but there is under the Americans with Disabilities Act (ADA) as we shall see in that chapter. However, the nature of the accommodation in the ADA is quite different.

duty to reasonably accommodate: The employer’s Title VII duty to try to find a way to avoid conflict between workplace policies and an employee’s religious practices or beliefs.

undue hardship: A burden imposed on an employer, by accommodating an employee’s religious conflict, that would be too onerous for the employer to bear.

To a great extent, religious organizations are exempt from the prohibitions in Title VII. As a general rule, they can discriminate so that, for instance, a Catholic church may legitimately refuse to hire a Baptist minister as its priest. Section 703(e)(2) of Title VII states that it is not an unlawful employment practice for a school, college, university, or other educational institution to hire or employ those of a particular religion if the institution is in whole or in substantial part owned, supported, controlled, or managed by that religion or by a religious corporation, association, or society or if its curriculum is directed toward the propagation of a particular religion. That is, religion is recognized as a basis for a BFOQ reasonably necessary to the normal operation of that particular business or enterprise under section 703(e)(1) of Title VII. If the church has nonsectarian activities such as running a day care center, bookstore, or athletic club, it may enjoy the same broad type of freedom to discriminate on the basis of religion since these activities may have religion or propagation of the religion as an integral part of their purpose. Employers should be cautioned that the specific facts play an important role in making this determination. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latterday Saints v. Amos,57 the U.S. Supreme Court upheld the church’s termination of a janitor in the church-owned gym for not paying his dues and keeping current his church affiliation card. In the Court’s determination, the gym had been conceived as a manifestation of dedication to their religious beliefs and terminating the janitor for his failure to maintain his membership in the denomination did not violate the law.

For the first time, in 2012 the U.S. Supreme Court took a close look at the “ministerial exception” to Title VII that had been granted in federal lower court decisions. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,58 the Court unanimously determined that religious organizations have full authority to determine who their religious leaders are and to apply their religious dictates page 541even when those dictates conflict with workplace antidiscrimination laws. In the Tabor case, a teacher with narcolepsy was terminated after taking leave. When she sued under the Americans with Disabilities Act, she lost. The church argued that she was a religious minister in addition to being a teacher, and as such, they had the right to fire her if they wished. The decision left open exactly which employees qualify as being within the ministerial exception. In this case, the employee was primarily a teacher, but she was also a religious leader. The fact that she only performed the primarily religious duties for a small part of her work day did not take away her status as a ministerial employee under the ministerial exception. In the high court’s determination, the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of the antidiscrimination laws when the issue involves religious employees of these institutions. In their view, religious organizations are the best judge of whether ministerial employees should be terminated. To hold otherwise would create unconstitutional excessive entanglement of the government in the affairs of the religious organization.

Before Title VII, it was fairly routine for employers to be nearly as adamant about not hiring those of certain religious faiths, such as Jews, as it was about not hiring people of a certain race, ethnic background, or gender. Universities routinely imposed quotas on the number of Jewish students they would accept, just as restrictive covenants in real estate contracts routinely prohibited the sale of property to Jews, African-Americans, Asians, and others. The issue has usually been more covertly handled, but it existed extensively, nonetheless. Title VII was enacted to remedy such practices in the workplace, just as fair housing legislation now prohibits restrictive covenants.

Some have still not gotten the message. In 2011, a Jewish hockey player for the National Hockey League’s Anaheim Ducks sued the organization for what he called a “barrage of anti-Semitic, offensive and degrading verbal attacks regarding his Jewish faith” from the head coach. The coach said he did not intend the comments to insult or hurt him in any way.59 In 2010, the EEOC settled a case with Administaff, Inc., on behalf of two Jewish brothers for $115,000. They were called “dirty Jew” and “dumb Jew” and subjected to other anti-Semitic comments. They also had their work vehicle defaced with a swastika and were forced into a trash bin for the amusement of managers watching on surveillance cameras, calling it “throw the Jew in the Dumpster.”60 A 2009 lawsuit by two Jewish teachers contained dozens of pages describing religious discrimination by their colleagues and former principal.61 And in 2008 two Army drill sergeants were reprimanded for religious discrimination against a Jewish soldier who they called “Juden,” the German word for Jews. They also made him remove his yarmulke religious head covering. The soldier was later beaten so badly by other soldiers that he was treated at a hospital.62

In 2012, an employee who was constantly harassed by co-workers after converting to Islam won $5 million in punitive damages from AT&T when she was able to show constant abuse that took place after she became a Muslim. The last straw for her was when her manager snatched off her hijab and exposed her hair.63 In 2013, the EEOC sued a transport company for failing to attempt page 542to accommodate two Muslim employees and firing them for refusing to deliver alcohol, when they could have been accommodated without undue hardship.64 In 2011, Hertz suspended 34 Muslim drivers who they claim took a longer time to pray than agreed to in their union contract.65

The more frequent basis for lawsuits today is that an employee is not hired or is terminated because of some religious practice that comes into conflict with the employer’s workplace policies. The employee may refuse to work on a particular day because it is the employee’s Sabbath. Or the employee may dress a certain way for religious reasons, or wish to take certain days off for religious holidays or observances. When it conflicts with the employer’s policies and the employee refuses to attempt to accommodate the conflict, the employee is terminated and Title VII comes into play.

For instance, the EEOC sued Convergys Corporation because an applicant who was a Hebrew Israelite and could not work on his Sabbath (Saturday) from sunup to sundown was told by the interviewer that unless he could work on Saturdays, the interview was over.66 Ivy Hall Assisted Living paid an employee $43,000 in a settlement after she sued when the employer refused to allow her to wear her Muslim hijab. In fact, the employer insisted that she remove the hijab and refrain from wearing it as a condition of continued employment.67 This latter issue has arisen in several different contexts, including an applicant who was told by Abercrombie & Fitch that the hijab she refused to take off if hired violated the Abercrombie & Fitch “Look Policy.”68 This case, EEOC v. Abercrombie & Fitch, went all the way up to the U.S. Supreme Court, which issued a decision in 2015 that we include for you in the case section at the end of this chapter.

In Tyson v. Clarian Health Partners, Inc., the employer was faced with what to do with a Muslim employee working in the hospital who used an empty hospital room to perform her ablutions (ritual washing up) before praying, in violation of hospital rules. When an employee of Sweetwater Healthcare Center who had worked most of her three years at the facility without being forced to work on Sundays told the new administrator that her religion prohibited her from working on Sundays, she was told that “God would excuse her since she worked in the healthcare field,” and that she could “either report on Sundays or lose her job.”69

Frequently the employer discovers religious information through questions on an employment application or during a preemployment interview, either of which generally relates to notifying a religious figure or taking the employee to a particular hospital in the event of on-the-job injury. If the question is asked, the applicant has a right to think it is asked for a reason and will be taken into consideration. The employer may have the question for totally different reasons than the applicant thinks, but once the question is there, it can be left up to unintended interpretations. To eliminate the appearance of illegal consideration of religion in hiring, employers should, instead, ask such questions after hire and then simply ask who should be notified or what hospital the employee prefers.

In this chapter, we will learn what is meant by religious discrimination, what the duty to accommodate involves, and how far an employer can go in handling management considerations when religious conflict is at issue.

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What Is Religion?

Title VII originally provided no guidance as to what it meant by the word religion. In the 1972 amendments to Title VII, Congress addressed the issue. In section 701, providing definitions for terms within Title VII, section (j) states: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

The question frequently arises: “What if I never heard of the employee’s religion? Must I still accommodate it?” The answer is based on two considerations: whether the employee’s belief is closely held and whether it takes the place of religion in the employee’s life. The latter requirement means that even atheism has been considered a “religion” for Title VII purposes. If the answer to both queries is yes, then the employer must accept the belief as a religious belief and attempt accommodation for conflicts.

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The religious belief need not be a belief in a religious deity as we generally know it. However, courts have determined that groups like the Ku Klux Klan are political, not religious, organizations, even though their members have closely held beliefs. The employer need not previously know of, or have heard of, or approve of the employee’s religion in order to be required to accommodate it for Title VII purposes. Also, the employer cannot question the sincerity of the belief merely because the employer thinks the religion is strange. In Frazee v. Illinois Department of Employment Security70 the employee asserted he could not work on the Sabbath because he was a Christian even though he did not attend church. The U.S. Supreme Court held that the employee need not be a member of an organized religion at all. The case involves the Free Exercise Clause of the First Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, but the considerations are similar to those of Title VII. This is why in Opening Scenario 1 the Sikh need not stop wearing his religiously mandated turban simply because other employees are “uncomfortable.” That is to say, they are unfamiliar with the employee’s religion and religious dictates and his wearing of a turban seems strange to them.

Perhaps the single most-asked question in this area is: “Must I accommodate the employee’s religious conflict if the conflict did not exist when the employee was hired?” The answer is yes. The duty attaches to the conflict itself, not to when the conflict arises. The idea behind the question is that if the employer had known of the conflict, then he or she would not have hired the employee in the first place. It is illegal to use the religious conflict, alone, as a basis for not hiring the applicant. So, legally, it does not matter whether the conflict was present when the applicant was hired or arose later; there is still a duty on the employer to attempt to accommodate the religious conflict. The duty to accommodate, however, is only to the extent that it does not cause the employer undue hardship. What constitutes undue hardship will be discussed shortly.

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The duty to accommodate only applies to religious practices, not religious beliefs. An employer is only required to accommodate a religious practice to the extent that it does not present an undue hardship on the employer, but religious beliefs do not have that limitation. That is, no matter how unorthodox, or even outrageous, an employee’s religion may seem to the employer, the employer cannot take an adverse employment action against the employee simply because the employee holds that religious belief. In Peterson v. Wilmur Communications, Inc., given at the end of the chapter, the employer was called upon to deal with a religion espousing racial separation much like the Ku Klux Klan. The court determined that the religion, as unorthodox, and even as repulsive, as it was, was required by Title VII to be treated just like any other religion for Title VII purposes.

Religious Conflicts

Imagine mass firings of Muslim employees who walk off the job over prayer disputes. The workers ask management to adjust their evening break time so they can pray at sunset as required; management agrees, then reverses its decision when non-Muslim employees protest. This occurred in Colorado and Nebraska and about 200 employees were fired.71

Workplace conflict between employee religious practices at odds with workplace policies is probably the most frequent type of religious discrimination case there is, and as we discussed earlier, the numbers are growing. That is, it is not so much that the employer dislikes a particular religion and refuses to hire members of that religion; rather, it is that the employee may engage in some religious practice that is not perceived to be compatible with the workplace. For instance, the employer may have a no-beard policy, but the employee’s religion forbids shaving; the employer may have a policy forbidding the wearing of headgear, but the employee’s religion requires the wearing of some sort of head cover; the employer may have a policy forbidding the wearing of long hair on males, but the employee’s religion forbids the cutting of male hair except in certain limited circumstances; or the employer may have a policy that all employees must work on Saturdays, but the employee’s religious Sabbath may be on Saturday and followers may be forbidden to work on the Sabbath.

In fact, sometimes the conflict comes not with the employee’s religion, but with that of the employer.

In order for an employee to proceed with a claim of religious discrimination, he must first establish a prima facie case by establishing that

1.He holds a sincere religious belief that conflicts with an employment requirement.

2.He has informed the employer of the conflict.

3.He was discharged or disciplined for failing to comply with the conflicting employment requirement.

If an employee establishes a prima facie case, the burden shifts to the employer to show that it offered a reasonable accommodation to the employee or that it could not reasonably accommodate the employee without incurring undue hardship.

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As more and more employees come into the workplace who are not of the “traditional” religions with which an employer may be more familiar, and these employees have an expectation of being accommodated in accordance with the law, employers will need to learn to effectively handle the religious conflicts that arise. The religious conflicts serving as the basis for discrimination claims have become more and more fascinating over the years. Recent conflicts have included such diverse situations as a woman suing for religious discrimination because her religion does not allow her to wear men’s clothing (i.e., pants), but her employer required pants as part of her uniform72; a Jehovah’s Witness suing Chi-Chi’s Mexican restaurant for religious discrimination after being fired for not adhering to Chi-Chi’s policy of all employees singing birthday songs to patrons on their birthday because the policy conflicted with her religion, which does not observe personal birthdays, believing they arise out of pagan celebrations73; a Jehovah’s Witness suing Belk department store for being terminated when she refused to wear a Santa hat and apron because, again, her religion prohibited recognizing holidays74; an employee refusing to answer the telephone with the hotel’s required “happy holidays” (rather than “Merry Christmas”) greeting during the Christmas season, claiming her religious beliefs prohibited her from doing so75; a strict vegetarian bus driver being fired for refusing to hand out coupons to riders for free hamburgers as part of a promotion between the bus company and a hamburger chain76; a counselor with the Centers for Disease Control and Prevention (CDC) who describes herself as a “devout Christian,” who, believing that her religion prohibited her from encouraging or supporting same-sex relationships through counseling, told a lesbian seeking counseling for trust issues that the employee’s counseling needs conflicted with the counselor’s religious beliefs and she therefore could not provide counseling because of her own “personal values”77; and an employee suing Walmart for religious discrimination when it fired her for screaming at a lesbian employee that God does not accept gays, they should not “be on earth,” and they will “go to hell” because they are not “right in the head.”78 We are giving you so many of these examples because we want you to be prepared; religious conflicts come into the workplace in an awful lot of ways, and the more examples you see, the better equipped you are to make defensible workplace decisions. We are also giving you these examples because religious conflicts in the workplace are, in all likelihood, bound to rise as the so-called Religious Liberty executive order signed into law by President Trump on May 4, 2017, begins to take effect.

The key is for an employer to make sure that the basis for the employee’s conflict is a religious one and then to try to work out an accommodation. Once the employer is aware of the conflict, the employer must attempt a good-faith accommodation of the religious conflict and the employee must assist in the attempted accommodation. If none can be worked out and the employer has tried everything available that does not present an undue hardship, then the employer has fulfilled his or her Title VII obligation and there is no liability, even if the employee’s religious conflict cannot be accommodated. Of course, because of the diversity of religious conflicts that are possible, there is no single set of rules that can be provided that will cover all religious conflicts.

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In Goldman v. Weinberger,79 for example, the issue of conflict arose in the context of the military where a rabbi’s wearing of the Jewish yarmulke head covering under his military uniform violated military dress regulations. The regulation was upheld by the U.S. Supreme Court. We mention this case for several reasons. First, it presents a conflict between religious practice (wearing a yarmulke) and work (being a member of the military). It also allows you to understand the U.S. Supreme Court’s position on matters military and how they interact with Title VII and other protective legislation. As we are discussing Title VII, students frequently ask how the military can have the rules it has, which seem to be at odds with Title VII.

Our answer is that the Court tends to view the military as being in a class all its own for most purposes. The military’s need for “good order,” cohesion, instant and unquestioning obedience, esprit de corps, morale, and other such interests usually results in the Court deferring to the military when there are conflicts. We also wanted to reiterate that the right to be free of religious discrimination is not absolute. There are limitations to the right where there may be overriding considerations such as the military cohesion in Goldman or the undue hardship on the employer under Title VII. With this said, we should also note that in January 2014, the U.S. military relaxed its rules when it comes to the wearing of beards, Sikhs wearing turbans, Jews wearing yarmulkes, and Wiccans. Individual members of the armed forces can now request personal exemptions from the requirements and they will be examined on a case-by-case basis.80

Not every conflict involving religion will necessarily be a religious conflict recognized by the law. Think about the description of the Walmart employee who was terminated for violating Walmart’s Discrimination and Harassment Prevention Policy by screaming at the lesbian employee. She was not terminated because of her religious beliefs, as she argued, but instead for violating Walmart’s policy by harassing an employee. The decision to terminate was based on the employee’s conduct, not on her religious beliefs.81 In Lumpkin v. Jordan,82 the legitimate non-discriminatory basis for termination was not deemed a religious conflict at all, even though it involved religion to an extent. In Jordan, a member of the San Francisco Human Rights Commission, who was also a minister, had religious beliefs in conflict with sexual orientation that put him at odds with the Commission’s work in enforcing non-discrimination laws, including on the basis of sexual orientation. The court upheld his termination, despite the minister’s religious beliefs, since it conflicted with the very purpose of his job and its duties.

Employer’s Duty to Reasonably Accommodate

Again, unlike the other categories under Title VII, the prohibition against religious discrimination is not absolute. An employer can discriminate against an employee for religious reasons if to do otherwise causes the employer undue hardship. When the employer discovers a religious conflict between the employer’s policy and the employee’s religion, the employer’s first responsibility is to attempt accommodation. page 547If accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion.

The duty to reasonably accommodate is not a static concept. Due to the nature of religious conflicts and the fact that they can arise in all types of contexts and in many different ways, there is no one single action an employer must take to show that she or he has reasonably accommodated. It depends on the circumstances and will vary from situation to situation. For example:

•The employer owns a sandwich shop. The employer’s policy entitles employees to eat all the restaurant food they wish during their meal break, free of charge. An employee’s religion does not allow eating meat. Aside from the meat used for sandwiches, the employer has little else, other than sandwich trimmings like lettuce and tomatoes. The employee alleges it is religious discrimination to provide the benefits of free meals that the employee cannot eat for religious reasons while other employees receive full free meals. The duty to accommodate may be as simple as the employer arranging to have peanut butter and jelly, eggs, or a variety of vegetables or pasta available for the employee.

•The employer requires employees to work six days per week. An employee cannot work on Saturdays due to a religious conflict. The accommodation may be that the employee switches days with an employee who does not wish to work on Sundays—a day that the employee with the religious conflict is available to work—or the employee switches to a job that does not require working on Sunday.

•Employer grocery store has a policy requiring all counter clerks to be clean-shaven, to present the employer’s view of a “clean-cut” image to the public. An employee cannot shave for religious reasons. The accommodation may be that the employer switches the employee to a job the employee can perform that does not require public contact such as stocking shelves or handling paperwork. Or, as the case with the U.S. military and the New York police officers, the true purpose of the policy can be reexamined to see if there is an actual need for the policy, and if so, whether there are alternatives than can be used. In the case of the New York police officers, the court was able to show in the case mentioned earlier in the chapter that the clean-shaven policy that was in place for the use of gas masks and used against Hasidic Jews and Sikhs, did not apply to undercover police officers. As we mentioned earlier, in December 2016, the NYPD announced a new policy allowing Sikh officers to wear their turbans and beards.

If it can be shown that the employer reasonably accommodated or attempted to accommodate the employee, then the employer is relieved of liability. In Wilson v. U.S. West Communications,83 the Catholic employee believed she should be “an instrument of God like the Virgin Mary,” and wear a button showing a color photo of an 18-week fetus until abortion was outlawed. The button was offensive and disturbing to other employees for reasons unrelated to abortion such as infertility, miscarriages, and the death of a premature infant. The employer considered it a “time robber” since employees were upset and gathered to discuss it. The employer gave her the option of only wearing it in her cubicle or covering it. This was unacceptable to the employee and she sued. The court found the employer’s page 548accommodation to be reasonable, but also found that the employee’s claim of the problematic activity of “needing” to wear an antiabortion button with a graphic picture of a fetus on it was not based on religious requirements.

Similarly, in EEOC v. Firestone Fibers & Textiles Company,84 the Fourth Circuit found that an employer met the accommodation requirements for the employee’s religious beliefs prohibiting him from working on his Sabbath from sundown Friday to sundown Saturday and on seven religious holidays during the year. The employer sought an accommodation by altering his Friday work shift where it could and using the collective bargaining agreement’s seniority system. But the employee requested 11 additional days to observe two religious holidays and was terminated when he violated the company’s attendance policy prohibiting taking over 60 hours of unpaid leave. So, too, when a Home Depot employee who wore a “One nation under God” button on his work apron, in violation of the store’s policy against wearing religious buttons, was given the option to wear a company pin saying United We Stand.85

If an accommodation cannot be found, as Williams v. Southern Union Gas Company86 demonstrates, the employer’s duty is discharged. The Williams case involved an employee who was terminated for not working on Saturday, his Sabbath. The court upheld the termination because it found that the employer had tried to accommodate the employee’s religious conflict, but the only way it could have been done would have caused the employer undue hardship. This case is the basis for Opening Scenarios 2 and 3. The important factor is for the employer to make a good-faith attempt at an accommodation rather than simply dismissing the conflict without even trying to do so. Recall the case mentioned previously where the Hebrew Israelite was told by the interviewer that if he could not work on Saturdays (because it was his Sabbath), the interview was over. That sort of refusal to even try to accommodate is what the law prohibits.

Even where an employee’s activity is religiously based, it need not be accommodated if doing so presents real problems for the employer. In the very interesting Chalmers v. Tulon Company of Richmond case, included at the end of the chapter, the employee believed it to be her religious duty to write letters to her co-workers telling them what she perceived as their religious shortcomings. When one letter led to an employee’s wife thinking he had an affair, the court refused to find a basis for accommodation, even though the employee claimed she was doing what her religion dictated she do.

There have been other types of manifestations of religious dictates employers and others have had to address. In one case, a Wisconsin woman’s religious leader of the Order of the Divine Will told her that a 90-year-old woman who died would come back alive if she allowed the corpse to sit on the toilet in her home. The homeowner’s children were told by the religious leader that demons were destroying the corpse’s appearance as she decayed in the bathroom to make it look like she would not rise from the dead. Police officers finally discovered the rotting body in the “stench filled” home.87 A North Carolina teen’s nose piercing got her suspended from school in violation of the county dress code even though she said she and her mother belonged to the Church of Body Modification, which had a clergy, statement of beliefs, and formal process for accepting new members.88

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Employee’s Duty to Cooperate in Accommodation

The U.S. Supreme Court has held that, in attempting to accommodate the employee, all that is required is that the employer attempt to make a reasonable accommodation. If one can be made, then any reasonable accommodation will do and it need not necessarily be the most reasonable accommodation or the one the employee wants. The employee also must be reasonable in considering accommodation alternatives. The protection Title VII provides for employment discrimination on the basis of religion does not mean that the employer must resolve the conflict in the way the employee wants. In Vargas v. Sears, Roebuck & Company,89 the employer attempted to accommodate the Hispanic employee’s Native American religious belief involving letting his hair grow. The employee’s wearing his hair in a pony tail violated the employer’s appearance policy. The employer suggested tucking the pony tail inside the employee’s shirt or jacket, but the employee refused to even consider it and provided no suggestions of his own. The court held that the employee had not shown that the employer failed to attempt to accommodate the religious conflict and the employee’s termination was upheld.

The employer’s only alternative may involve demoting the employee to a job without a conflict or even terminating the employee, depending on the circumstances. This is not prohibited if all other alternatives present the employer with an undue hardship. The EEOC and the courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employee’s religious conflict:

•Whether the employer made an attempt at accommodation.

•The size of the employer’s workforce.

•The type of job in which the conflict is present.

•The employer’s checking with other employees to see if anyone was willing to assist in the accommodation.

•The cost of accommodation.

•The administrative aspects of accommodation.

Each factor will be considered and weighed as appropriate for the circumstances. If on balance the employer has considered the factors appropriate for the employer’s particular circumstances and accommodation was not possible, there is usually no liability for religious discrimination.

What Constitutes Undue Hardship?

Just as reasonable accommodation varies from situation to situation, so, too, does what constitutes undue hardship. There are no set rules about what constitutes undue hardship since each employer operates under different circumstances. What may be hardship for one employer may not be for another. What constitutes an undue hardship is addressed by the EEOC and courts on an individual basis. page 550

It is clear, however, that the undue hardship may not be a mere inconvenience to the employer. The EEOC has provided guidelines as to what factors it will consider in deciding whether the employer’s accommodation would cause undue hardship.90 Such factors include

•The nature of the employer’s workplace.

•The type of job needing accommodation.

•The cost of the accommodation.

•The willingness of other employees to assist in the accommodation.

•The possibility of transfer of the employee and its effects.

•What is done by similarly situated employers.

•The number of employees available for accommodation.

•The burden of accommodation on the union (if any).

The factors are similar to those used to determine if the employer has made reasonable accommodation. Generally, the EEOC’s interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. However, since the EEOC’s guidelines are simply guidelines (though strong, well-respected ones) and thus not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions. Courts have found, among other things, that it would be an undue hardship if an employer had to violate the seniority provision of a valid collective bargaining agreement, to pay out more than a “de minimis” cost (in terms of money or efficiency) to replace a worker who has religious conflicts, or to force other employees who do not wish to do so to trade places with the employee who has a religious conflict. The U.S. Supreme Court’s determination of what constitutes undue hardship was established in Trans World Airlines, Inc. v. Hardison, which still stands today. As you can see, after reviewing the case at the end of the chapter, it did not place an unduly heavy burden on the employer.

Religion as a BFOQ

Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer’s particular normal business operations. It also specifically permits educational institutions to employ those of a particular religion if they are owned in whole or in substantial part by a particular religion. In Pime v. Loyola University of Chicago,91 the court looked at whether a historically Jesuit university could have Jesuit membership as a BFOQ for philosophy professors. A Jewish professor applied to teach philosophy in a department that had passed a resolution saying the professors needed to be Jesuits. The court determined that the university could impose such a measure because essential to the mission of the university was to have not just the subject matter presented to students, but to have them exposed to the particular attributes that the Jesuits trained as Jesuits had that was part of the basis of the university. page 551

Religious Harassment

One of the most active areas under religious discrimination lately has been religious harassment. Several factors have come together and caused many employees to decide that expressing their religious views in some way in the workplace is something they are compelled to do, either by their religious dictates or their own interpretation of them.

For instance, employees may feel they must, or wish to, display crosses or other religious artifacts at work; display religious brochures or material on their desk or pass them out to co-workers; hold Bible or other religious study groups during the workday; preach, teach, testify, or “witness” to their co-workers in order to practice their religion; or engage in other such activities. As mentioned earlier, after the events of September 11, 2001, there was an increase in the number of claims of religious harassment. They have continued to grow. It really is quite extraordinary. In one incident cited by the EEOC, a Muslim employee who had experienced no workplace problems before September 11, 2001, reported that afterward none of his co-workers would speak to him and that when they did, they referred to him as “the local terrorist” or “camel jockey.” This has a frequent occurrence across the country for not only Muslims, but for anyone who even appeared to be of Middle Eastern descent. During, and in the wake of the 2016 presidential election, claims have risen even more, with Muslims or those thought to be Muslims being aggressively harassed, even in the workplace, for no reason other than their religion. One Bed Bath & Beyond employee said that his co-workers were fine to him until they found out he was Muslim. He was then harassed, called “Terrorist,” and terminated.92

The New York Times reported that a survey of 743 human resource professionals by the Society for Human Resource Management indicated that the most common religion-related issues among employees are employees proselytizing (20 percent), employees feeling harassed by co-workers’ religious expressions (14 percent), employees objecting to job duties (9 percent), and employees harassing co-workers for their religious beliefs (6 percent).93

This activity surrounding the issue of religious harassment is due, in part, to matters peripheral to workplace religious discrimination. In 1990, the U.S. Supreme Court rejected Native Americans’ argument that they should be permitted the ritual use of the hallucinogenic drug peyote in their tribal religious ceremonies as a part of their First Amendment right to freedom of religion. With tremendous support from many quarters, in 1993 Congress passed the Religious Freedom Restoration Act (RFRA) in order to ensure the free exercise of religious practices. RFRA was an attempt to restore the previous status quo under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner. In 1997, the U.S. Supreme Court overturned RFRA as giving a governmental preference for religion, in violation of the First Amendment to the Constitution.94

While the matter of religious practices in the workplace was not at issue in these cases or this legislation, the national attention and debate about it, along page 552with a growing religious presence in political issues and the media, extended the religious practices issue to the workplace by extrapolation. When the religious practices were challenged, religious harassment claims rose.

Of course, with all different types of religions in the workplace, it is predictable that there would be religious conflicts and that those with religions considered out of the ordinary or with religious practices that co-workers consider extreme would be the subject of religious harassment. In addition, it is often the nonreligious employees who allege they are being harassed by religious employees. For instance, in a case filed by information systems manager Rosamaria Machado-Wilson of DeLand, Florida, she alleged that she was fired after less than six months on the job after reporting religious harassment to the human resources office of her employer, BSG Laboratories. According to Machado-Wilson, a simple walk to the coffeepot sometimes meant “weaving past prostrate, praying co-workers and stopping for impromptu ceremonies spoken in tongues.” She says she was forced to attend company prayer meetings and be baptized; employees were subjected to inquiries into and comments about their religious beliefs, and those found to be nonbelievers were fired.95

Of course, since Title VII prohibits religious discrimination, it also prohibits religious harassment. EEOC guidelines on liability for workplace harassment explicitly cover religious harassment. In the wake of the RFRA situation, in 1997 President Clinton issued guidelines for the religious freedom of federal employees. The purpose of the guidelines is to accommodate religious observance in the workplace as an important national priority by striking a balance between religious observance and the requirements of the workplace. Under the guidelines, employees

•Should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression.

•Should be permitted to engage in religious expression with fellow employees, to the same extent that they may engage in comparable nonreligious private expression, subject to reasonable restrictions.

•Are permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome.

In order to best prevent liability for religious harassment, employers should be sure to protect employees from those religious employees who attempt to proselytize others who do not wish to be approached about religious matters, as well as to protect employees with permissible religious practices who are given a hard time by those who believe differently. Making sure that employees are given comparable opportunities to use workplace time and resources for religious practices if given for secular ones is also an important consideration, as otherwise it may appear that the employer is discriminating on the basis of religion. page 553

The Peterson v. Hewlett-Packard Co. case, included at the end of the chapter, sets forth the very interesting issue of what to do when an employer’s workplace diversity policy is at odds with an employee’s religious beliefs, to the extent that the employee who opposes the policy feels harassed. The court upheld his termination after the employer posted diversity posters that included sexual orientation and the employee placed biblical passages on the overhead bins in his office for all to see, with the goal of hurting LGBT employees “so they would repent.”

Keep in mind here that as an employer, the employer gets to make the determinations about religion in the workplace within the confines of the law. Hopefully, they are consistent with law and promote workplace productivity. Employees who decide, for whatever reason, that they cannot abide the employer’s lawful and legal policies always have the choice of either toughing it out or looking for a job that presents no such conflict. While the employer has no right to make employees choose between their religion and work, where a religious conflict does not pose an undue hardship, the employee also has no right to dictate to the employer what workplace policies must be. And, of course, harassment on the basis of religion is illegal under Title VII.

Union Activity and Religious Discrimination

As the earlier Hardison case discussed, at times the religious conflicts that arise between the employee and the employer are caused by collective-bargaining agreement provisions, rather than by policies unilaterally imposed by the employer. It has been determined that, even though Title VII applies the term religion with reference to an employer having a duty to reasonably accommodate, unions are also under a duty to reasonably accommodate religious conflicts.

The most frequent conflicts are requirements that employees be union members or pay union dues. Union membership, payment of union dues, or engaging in concerted activity such as picketing and striking conflicts with some religious beliefs. Employees also have objected to the payment of union dues as violating their First Amendment right to freedom of religion and Title VII’s prohibition against religious discrimination. Unions have claimed that applying the religious proscription of Title VII violates the Establishment Clause of the First Amendment to the U.S. Constitution, ensuring government neutrality in religious matters.

Courts have ruled that union security agreements requiring that employees pay union dues within a certain time after the effective date of their employment or be discharged does not violate an employee’s First Amendment rights. However, it violates Title VII for an employer to discharge an employee for refusal to join the union because of his or her religious beliefs.

Employees with religious objections must be reasonably accommodated, including the possibility of the alternative of keeping their job without paying union dues. However, the union could prove undue hardship if many of the employees chose to have their dues instead paid to a nonunion, nonsectarian charitable organization chosen by the union and the employer since the impact on the union would not be insubstantial.

Management Tips

One of the primary reasons’ employers run into trouble in this area is because they simply fail to recognize the religious conflict when an employee notifies them, or they refuse to adequately address it if they do. Many of the conflicts can be avoided by following a few basic rules:

•Take all employee notices of religious conflicts seriously.

•Once an employee puts the employer on notice of a religious conflict, immediately try to find ways to avoid the conflict. An employer doesn’t have to accommodate if doing so would cause an undue hardship, but there must be an attempt at accommodation.

•Ask the employee with the conflict for suggestions on avoiding the conflict. Employers need not take the suggestion, but allow the employee to provide input and knowledge in an area about which he or she may have more information.

•Ask other employees if they can be of assistance in alleviating the conflict (such as switching days off), but make it clear that they are not required to do so.

•Keep workplace religious comments and criticisms to a minimum.

•Make sure all employees understand that they are not to discriminate in any way against employees on the basis of religion.

•Once an employee expresses conflict based on religion, do not challenge the employee’s religious beliefs, though it is permissible to make sure of the conflict.

•Make sure undue hardship actually exists if it is claimed.

•Revisit issues such as Christmas bonuses and Christmas parties, and giving out Christmas turkeys or other gifts to see if it is more appropriate to use more inclusive language such as holiday to cover employees who do not celebrate the Christian holiday of Christmas. Further, revisit the issue of whether all employees are being fairly covered by such policies and events.

•Revisit the issue of granting leave for religious events and make sure it does not favor one religion over another, such as giving employees paid leave for Christmas but requiring them to take their own leave for other religious holidays such as Rosh Hashanah, Yom Kippur, or Ramadan. “Floating holidays” that they can use for whatever holiday they celebrate may make more sense and be less exclusionary.

•Make sure food at workplace events is inclusive of all employees, regardless of religion, such as having kosher (or at least nonpork or nonseafood) items for Jewish employees, having alternatives to alcoholic beverages for those who do not drink for religious reasons, having nonpork items for Muslims, and so on. Asking employees what religious dietary limitations they have or having employees bring a dish to share is an easy way to handle this. It may seem like a small, bothersome thing to deal with, but for those whose religions dictate these things, it is very significant. These types of things help to create (or not) a workplace that employees feel truly adheres to both the letter as well as the spirit of the law and this, in turn, impacts an employee’s perception of discrimination.

page 555

In Tooley v. Martin-Marietta Corp,96 Seventh Day Adventists who were prohibited by their religion from becoming members of, or paying a service fee to, a union offered to pay an amount equal to union dues to a mutually acceptable charity. The union refused and argued that to accommodate the employees violated the Establishment Clause ensuring governmental neutrality in matters of religion. The court said that the government could legitimately enforce accommodation of religious beliefs when the accommodation reflects the obligation of neutrality in the face of religious differences and does not constitute sponsorship, financial support, or active involvement of the sovereign in religious activities with which the Establishment Clause is mainly concerned. The Establishment Clause, typically applied to state legislation, such as in Frazee, discussed earlier, requires that the accommodation reflect a clearly secular purpose, have a primary effect that neither inhibits nor advances religion, and avoid excessive government entanglement with religion.

Whether the objection under Title VII is directed toward the employer or the union, a government employer still has a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause undue hardship or excessive entanglement with religion or violate the Establishment Clause.

Chapter Summary

•Employees are protected in the workplace in their right to adhere to and practice their religious beliefs, and the employer cannot discriminate against them on this basis unless to do so would be an undue hardship on the employer.

•The employer cannot question the acceptability of an employee’s religion or when or why the employee came to believe.

•The employer should be conscious of potential religious conflicts in developing and implementing workplace policies.

•The prohibition on religious discrimination is not absolute, as the employer has only the duty to reasonably accommodate the employee’s religious conflict unless to do so would cause the employer undue hardship.

•While the employer must make a good-faith effort to reasonably accommodate religious conflicts, if such efforts fail, the employer will have discharged his or her legal duties under Title VII.

Chapter-End Questions

1.Employer instituted a religious program in the workplace called “Onionhead” to “harness happiness” of employees. Among other things, employees were required to say “I love you,” to share messages about heaven and Satan and burn candles to keep the devil away from the office. Employee is fired for not complying. Can employer establish an Onionhead religion? Are these practices okay for the employer to require of employees? [EEOC v. United Health Program of America, Inc., 213 F. Supp. 3d 377 (E.D. NY 2016).]

2.Cynthia requested a two-week leave from her employer to go on a religious pilgrimage. The pilgrimage was not a requirement of her religion, but Cynthia felt it was a “calling from God.” Will it violate Title VII if Cynthia’s employer does not grant her the leave? page 556Explain. [Tiano v. Dillard Department Stores, Inc., 1998 WL 117864 (9th Cir. 1998).] Compare with a case in which the UPS Jehovah’s Witness employee’s supervisor denied his request for a schedule accommodation to allow him to attend the annual religious service, terminated the new employee a few days later, and placed him on a do-not-rehire list. [EEOC v. United Parcel Service, Inc., Civil Action No. 2:12-cv-07334 (11/4/13).]

3.At the end of all her written communications, employee writes “have a blessed day.” One of employer’s most important clients requests that employee not do so and employer asks employee to stop. Employee refuses, saying it is a part of her religion. If employee sues the employer for religious discrimination, is she likely to win? [Anderson v. USF Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001).]

4.Employee is terminated for refusal to cover or remove his confederate flag symbols as requested by his employer. He sues the employer, claiming discrimination on the basis of his religion as a Christian and his national origin as a “Confederate Southern American.” Is he likely to win? [Storey v. Burns International Security Service, 390 F.3d 760 (3d Cir. 2004).]

5.A Michigan Holiday Inn fired a pregnant employee because the “very Christian” staff members were very upset by her talk of having an abortion. Has the employer violated Title VII? [Turic v. Holland Hospitality, Inc., No. 1-93-CV-379 (W.D. Mich. 1994).]

6.A police officer who is assigned to a casino refuses the assignment, claiming his Baptist religion prohibits him from gambling or being around gambling. Is he legitimately able to do so? [Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003).]

7.Employee police officer, a Jehovah Witness whose religion does not allow carrying weapons or celebration of Christmas, refuses to go through weapons training or to oversee a Christmas party for his job. Can he refuse to do these things and keep his job? Westbrook v. N. Carolina A&T State Univ., 51 F. Supp. 3d 612 (MD NC 2014).

8.Employee, a Muslim, is a management trainee at an airport car rental office. As part of her religious practice, employee wears a hijab (headscarf). She is told by her supervisor that the hijab does not match the uniforms she is required to wear, so she must stop wearing it or be transferred to another position with less customer interaction. Employee was later terminated as a part of a company cutback. She sues for religious discrimination. Does she win? Explain. [Ali v. Alamo Rent-A-Car, 246 F.3d 662 (4th Cir. 2001).] How about a Disney employee who is a hostess at a Disney attraction who is terminated for refusing to wear her hijab? [Boudlal v. Disney (U.S. Dist. Ct. for Central Dist. of CA 8/10/12).]

9.A Pentecostal nurse claims she was constructively discharged after refusing, because of her religious beliefs, to assist in medical procedures she considered to be abortions. She was initially transferred from labor and delivery to the newborn intensive care unit. Employee found this unacceptable because she says she would once again be forced to refuse tasks that involved allowing infants to die. The hospital invited the employee to meet with human resources and to investigate available positions, but she refused. Employee says the duty to assist in an accommodation never arose because a transfer to any other department is not a viable option since it would require her to give up her eight years of specialized training and education and undertake retraining. Employee is terminated and sues for religious discrimination. Does she win? Explain. [Shelton v. University of Medicine & Dentistry of New Jersey, 2000 U.S. App. LEXIS 19099 (3d Cir. 2000).]

10.page 557A Baptist-run home for troubled youngsters terminates an employee for being a lesbian. Can it do so? [Pedreira v. Kentucky Baptist Home for Children, 186 F. Supp. 2d 757 (W.D. Ky. 2001).] How about terminating a practicing Nazarite from Taco Bell whose religious beliefs do not allow the cutting of hair? Does it matter if the employee had worked there for seven years without cutting his hair? [EEOC v. Family Foods, Inc., d/b/a Taco Bell, Civil Action No. 5:11-cv-00394 7/28/11.] What about a self-described Evangelican Christian computer specialist working for the National Aeronautics and Space Administration (NASA) Jet Propulsion Laboratory who believes in intelligent design rather than evolution and argues about it with co-workers and passes out DVDs about it? [Coppedge v. JPL, Case No. BC 435600 (Superior Court of the State of CA, County of Los Angeles, 1/15/13).]

End Notes

1. “Dynamic Medical Services to Pay $170,000 To Settle EEOC Religious Discrimination Lawsuit,” EEOC press release (December 23, 2013), http://www.eeoc.gov/eeoc/newsroom/release/12-23-13a.cfm.

2. Palmer, James, “Woman Wasn’t Christian Enough for Employer,” Courthouse News Service (April 20, 2017), http://www.courthousenews.com/woman-says-wasnt-christian-enough-employer/

3. Weikel, Dan, “Sikh Truck Drivers Reach Accord in Religious Discrimination Case Involving a Major Shipping Company,” Los Angeles Times (November 15, 2016), http://www.latimes.com/local/lanow/la-me-ln-sikh-truckers-20161115-story.html.

4. Myers, Amanda Lee, “Ex-Ohio Hospital Worker Sues over Flu Requirement,” The News-Herald (January 17, 2013), http://www.news-herald.com/general-news/20130117/former-ohio-hospital-worker-sues-over-flu-shot-requirement.

5. Hammock, Bradford T., and Joseph J. Lynett, “Inquiry to Determine Employee’s Religious Objection to Mandatory Vaccination Gains EEOC Counsel’s Support,” Lexology (February 5, 2013), http://www.lexology.com/library/detail.aspx?g=3a9e9308-cd85-47c9-b539-628050957f4e.

6. “EEOC Sues Consol Energy and Consolidation Coal Company for Religious Discrimination,” EEOC press release (September 25, 2013), http://www.eeoc.gov/eeoc/newsroom/release/9-25-13d.cfm.

7. “Fremont Toyota Pays $400,000 to Settle EEOC’s Harassment and Retaliation Lawsuit,” EEOC press release (August 7, 2012).

8. “Man Fired for God Button: Trevor Keezer Says Home Depot Fired Him Over ‘One Nation Under God’ Pin,” The Huffington Post (March 18, 2010), http://www.huffingtonpost.com/2009/10/28/trevor-keezor-florida-man_n_337875.html.

9. Horowitz, Donna, “Ex-Santana Employee Sues Over Firing: Aide to the Musician and His Wife Says They Dismissed Him for Spiritual Shortcomings. He Also Alleges Age and Gender Discrimination,” Los Angeles Times (October 11, 2005), http://articles.latimes.com/2005/oct/11/local/me-santana11.

10. Anderson v. U.S.F. Logistics, Inc., 274 F.3d 470 (7th Cir. 2001).

11. Hedum v. Starbucks Corp., 546 F. Supp. 1017 (D. Or. 2008).

12. Claburn, Thomas, “Google Sued for Sexual, Religious Discrimination,” InformationWeek (November 3, 2009), http://www.informationweek.com/news/services/saas/showArticle.jhtml?articleID=221600072.

page 55813. Joyner, James, “Woman Fired for Eating ‘Unclean’ Meat,” Orlando Local6 TV (August 4, 2004), http://www.outsidethebeltway.com/_woman_fired_for_eating_unclean_meat/.

14. Reilly, Patrick J., “Look Who’s Discriminating Now,” The Wall Street Journal (August 13, 2009), http://online.wsj.com/article/SB10001424052970203863204574346833989489154.html.

15. Adesina, Zack, and Oana Marocico, “Is It Easier to Get a Job If You’re Adam or Mohamed?” BBX Inside Out (February 6, 2017).

16. McArdle, Mairead, “Muslim Truck Drivers Fired for Refusing to Deliver Beer Awarded $240K,” CNSNews.com (November 9, 2015).

17. Moyer, Justin Wm., “Muslim Flight Attendant Suspended for Refusing to Serve Alcohol Files Federal Complaint,” The Washington Post (September 18, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/09/08/muslim-flight-attendant-suspended-for-refusing-to-serve-alcohol-files-federal-complaint/?utm_term=.9f7673c3af13.

18. Baldas, Tresa, “Muslim-American Man Wins Nearly $1.2 Million in Job Discrimination Case,” Detroit Free Press (February 20, 2014), http://www.freep.com/story/news/local/2014/02/28/muslimamerican-man-wins-nearly-12-million-in-job-discrimination-case/77152192/

19. “Minnesota’s Muslim Cabdrivers Face Crackdown,” Reuters (April 17, 2007), http://www.reuters.com/article/2007/04/17/us-muslims-taxis-idUSN1633289220070417.

20. Moranski v. General Motors Corp., 433 F.3d 537 (7th Cir. 2005).

21. Stein, Rob, “Pharmacists’ Rights at Front of New Debate: Because of Beliefs, Some Refuse to Fill Birth Control Prescriptions,” The Washington Post (March 28, 2005), http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27.html.

22. Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003). The U.S. Supreme Court declined to hear the officer’s appeal.

23. Knight v. State of Connecticut, Department of Public Health, 275 F.3d 156 (2d Cir. 2001).

24. Castellani, Anne, “Judge Rules in Favor of Turban-Wearing Officer,” CNNJustice (May 3, 2004), http://articles.cnn.com/2004-04-30/justice/turban.cop_1_turban-judge-rules-sikh?_s=PM:LAW; and Shortell, David, “NYPD Changes Policy, Will Allow Officers to Wear Turbans,” CNN (December 29, 2016).

25. Pérez-Peña, Richard, “Judge Says Army Can’t Require Special Testing of Sikh Officer,” The New York Times (March 4, 2016), https://www.nytimes.com/2016/03/05/us/sikh-army-captain-beard-turban.html?mcubz=1

26. “Ten Commandments Judge Removed from Office,” CNNJustice (November 4, 2003), http://articles.cnn.com/2003-11-13/justice/moore.tencommandments_1_ethics-panel-state-supreme-court-building-ethics-charges?_s=PM:LAW.

27. “City Agrees to Pay $20,000 in Fees, Clarify Rules After 2 Employees Claim Christmas Discrimination,” Fox News (February 20, 2008), http://www.foxnews.com/story/0,2933,331431,00.html?sPage=fnc/us/lawcenter.

28. “Florida TV Producer Sues over Firing,” highbeam.com (January 29, 2003), http://www.highbeam.com/doc/1P1-71355459.html.

29. Gibson, John, “Some Muslim Cashiers at Minnesota Target Refuse to Scan Pork Products,” Fox News (March 20, 2007), http://www.foxnews.com/story/0,2933,259914,00.html.

30. Banerjee, Neela, “Soldier Sues Army, Saying His Atheism Led to Threats,” The New York Times (April 26, 2008), http://www.nytimes.com/2008/04/26/us/26atheist.html.

page 55931. “Worker Opposed to Gays Wins Suit,” The Washington Times (April 7, 2004), http://www.washingtontimes.com/news/2004/apr/7/20040407-124312-3261r/.

32. Peterson v. Hewlett-Packard, Co., 358 F.3d 599 (9th Cir. 2004).

33. Altman v. Minn. Dept. of Corr., 251 F.3d 1199 (7th Cir. 2001).

34. Espinoza, Martin, “Order to Tuck in Dreadlocks Leads to Civil Rights Lawsuit,” The New York Times (September 18, 2008), http://www.nytimes.com/2008/09/18/nyregion/18dreads.html.

35. Peterson v. Wilmur Communications, Inc., 205 F. Supp. 1014 (E.D. Wis. 2002).

36. Burleigh, Nina, “Trump Effect Inspires Radical Christians in Military,” Newsweek (May 22, 2017), http://www.newsweek.com/christian-fundamentalists-us-armed-forces-national-security-threat-613428.

37. “Wiccan Symbol OK on Military Headstones,” nbcnews.com (April 23, 2007), http://www.nbcnews.com/id/18274639/ns/us_news-military/t/wiccan-symbol-ok-military-headstones/#.UvlhPP2CseY.

38. Harris, Elizabeth A., “Billboard Called Anti-Semitic Is Quickly Pulled,” The New York Times (November 22, 2011), http://www.nytimes.com/2011/11/23/nyregion/billboard-ad-for-wodka-vodka-called-anti-semitic-is-pulled.html?_r=0.

39. “Colorado Student Quits High School Choir over Islamic Song Praising ‘Allah,’” foxnews.com (February 15, 2012), http://www.foxnews.com/us/2012/02/15/colorado-student-reportedly-quits-choir-over-islamic-song/.

40. Remizowski, Leigh, “Teacher Who Was Fired after Fertility Treatments Sues Diocese,” CNN (April 26, 2012), http://www.cnn.com/2012/04/26/us/indiana-in-vitro-lawsuit/index.html.

41. Karni, Annie, “DUMBO Restaurant The River Cafe Discriminates against Jews: Workers,” New York Post (October 21, 2012), http://nypost.com/2012/10/21/dumbo-restaurant-the-river-cafe-discriminates-against-jews-workers/.

42. Leavines, Linnie, “LSU Apologizes for Removing Christian Cross from Photo of Students,” campusreform.org (October 22, 2012), http://www.campusreform.org/?ID=4456.

43. Smith, Morgan, “When Faith Meets Football in East Texas,” The New York Times (October 13, 2012), http://www.nytimes.com/2012/10/14/us/lawsuit-over-cheerleaders-bearing-bible-verses-in-kountze-texas.html?pagewanted=all&_r=0.

44. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2007).

45. Van Orden v. Perry, 545 U.S. 677 (2005) and McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).

46. “Amish Buggy Bill Could Be Nearing Final Passage,” Kentucky New Era (March 14, 2012), http://www.kentuckynewera.com/web/news/article_f3b6d8e2-6d76-11e1-b313-0019bb2963f4.html.

47. “UGA Cheerleading Coach Fired over Discrimination Claims,” Atlanta Journal & Constitution via Free Republic (August 24, 2004), http://www.freerepublic.com/focus/f-news/1198648/posts.

48. “Muslim Basketball Player Quits USF Team,” St. Petersburg Times (September 16, 2004), http://www.gawaher.com/topic/4040-female-muslim-basketball-player-quits-usf-team/.

49. Goldberg, Melissa, “Head Start,” Oprah Magazine (March 2017), p. 22.

50. http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

page 56051. Brown, Matthew, “Religious Discrimination in the Workplace Increases with Diversity,” Deseret News (August 31, 2013), http://www.deseretnews.com/article/865585613/Religious-discrimination-in-the-workplace-increases-with-diversity.html?pg=all.

52. Valentino-Devries, Jennifer, “Bosses May Use Social Media to Discriminate against Job Seekers: Firms Use Data They Find Early in Job Process, New Study Finds,” The Wall Street Journal (November 20, 2013), http://online.wsj.com/news/articles/SB10001424052702303755504579208304255139392.

53. http://eeoc.gov/policy/does/religion.html.

54. Brown, “Religious Discrimination in the Workplace Increases with Diversity.”

55. Lipka, Michael, “Ten Facts about Atheists,” Pew Research Center (June 1, 2016), http://www.pewresearch.org/fact-tank/2016/06/01/10-facts-about-atheists/; and “America’s Changing Religious Landscape,” Pew Research Center–Religion and Public Life (May 12, 2015).

56. Brown, “Religious Discrimination in the Workplace Increases with Diversity.”

57. 483 U.S. 327 (1987).

58. 565 U.S. 171, (No. 10-553, 2012).

59. “Jewish Hockey Player Claims He Was Harassed,” CNN.com (January 25, 2011), http://www.cnn.com/2011/US/01/25/hockey.player.lawsuit/index.html?iref=allsearch.

60. “Brothers’ Religious Discrimination Suit Settled,” JTA.org (March 18, 2010), http://www.jta.org/news/article-print/2010/03/18/1011187/lawsuit-filed-by-the-eeoc-on-behalf.html.

61. “Teachers File Discrimination Lawsuit against School District,” Bakersfield News (May 21, 2009), http://www.turnto23.com/news/19533316/detail.html.

62. “Drill Sergeants Reprimanded for Bias, Calling Trainee ‘Juden,’” usatoday.com (October 18, 2008), www.usatoday.com/news/religion/2008-10-06-jewish-soldier-n.html.

63. Gillam, Carey, “Susann Bashir, Muslim Woman, Wins $5 Million Verdict from AT&T for Discrimination,” The Huffington Post (May 4, 2012), http://www.huffingtonpost.com/2012/05/05/muslim-woman-wins-5-million-att_n_1479884.html.

64. “EEOC Sues Star Transport, Inc., for Religious Discrimination,” EEOC press release (May 29, 2013), http://eeoc.gov/eeoc/newsroom/release/5-29-13.cfm.

65. “Hertz Suspends 34 Muslim Drivers in Prayer Dispute,” The Seattle Times (October 7, 2011), http://seattletimes.com/html.

66. “EEOC Sues Convergys Corporation for Religious Discrimination,” EEOC press release (March 3, 2011), http://www.eeoc.gov/eeoc/newsroom/release/3-3-11.cfm.

67. “Ivy Hall Assisted Living Pays $43,000 to Settle Religious Discrimination Lawsuit,” EEOC press release (January 29, 2010), http://www.eeoc.gov/newsroom/release/12-18-09.cfm.

68. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86, 575 U.S. __ (June 1, 2015).

69. “EEOC Sues Senior Assisted Living Company for Religious Discrimination,” EEOC press release (September 29, 2011), http://www.eeoc.gov/eeoc/newsroom/release/9-29-11f.cfm.

70. 489 U.S. 829 (1989).

71. Dvorak, Phred, “Religious-Bias Filings Up,” The Wall Street Journal (October 16, 2008), http://online.wsj.com/article/SB122411562348138619.html.

72. “Brinks to Pay $30,000 to Peoria Area Woman for Failure to Accommodate Religious Beliefs: EEOC Suit Said Pentecostal Employee Fired for Refusal to Wear Pants page 561as Part of Uniform,” EEOC press release (January 2, 2003), http://www1.eeoc.gov//eeoc/newsroom/release/1-2-03b.cfm?renderforprint=1.

73. EEOC v. Chi Chi’s Restaurant, http://archive.eeoc.gov/abouteeoc/annual_reports/annrep96-98.html.

74. “Belk, Inc., to Pay $55,000 to Settle EEOC Religious Discrimination Suit,” EEOC press release (March 16, 2011), http://www.eeoc.gov/eeoc/newsroom/release/3-16-11.cfm.

75. “Employee’s Refusal to Say ‘Happy Holidays’ Leads to EEOC Complaint,” Business Management Daily (April 19, 2009), http://www.businessmanagementdaily.com/articles/17858/1/Refusal-to-say-Happy-holidays-leads-to-EEOC-complaint/Page1.html#.

76. Haldane, David, “Dismissed Bus Driver Files Federal Complaint: Labor: The Vegetarian Who Refused to Hand Out Hamburger Coupons to Riders for OCTA Cites Religious Discrimination,” Los Angeles Times (June 11, 1996), http://articles.latimes.com/1996-06-11/local/me-13909_1_bus-driver.

77. Zackin, Martha, “Religious Discrimination or Legitimate Business Decisions? It Depends.,” Mintz Levin Employment Matters Blog (February 14, 2012), http://www.employmentmattersblog.com/2012/02/religious-discrimination-or-legitimate-business-decision-it-depends/.

78. Tanisha Matthews v. WalMart, 10-2242 (7th Cir. 2011) (unpublished opinion); “Court: Wal-Mart Firing of Anti-Gay Employee Not Religious Harassment,” Chicago Sun Times (April 6, 2007), http://www.suntimes.com/4693324-417/court-wal-mart-firing-of-anti-gay-employee-not-religious-harassment.html.

79. 475 U.S. 503 (1986).

80. “Sikhs in U.S. Military Now Allowed to Wear Turbans,” Yahoonews (January 23, 2014), http://in.news.yahoo.com/sikhs-us-military-now-allowed-wear-turbans-052736692.html.

81. Tanisha Matthews v. WalMart, 10-2242 (7th Cir. 2011).

82. 49 Cal. App. 4th 1223 (1996).

83. 58 F.3d 1337 (8th Cir. 1995).

84. 515 F.3d 307 (4th Cir. 2008).

85. Skoloff, Brian, “Fla. Man Says Home Depot Fired Him Over God Button,” Atlanta Journal & Constitution (October 28, 2009), http://www.ajc.com/business/fla-man-says-home-175481.html.

86. 529 F.2d 483 (10th Cir. 1976).

87. “Wis. Woman Pleads No Contest in Toilet Corpse Case,” comcast.net (November 18, 2008), http://www.comcast.net/articles/news-general/20081117/Decaying.Corpse/.

88. Breen, Tom, “NC Teen: Nose Ring More Than Fashion, It’s Faith,” yahoo.com (September 16, 2010), http://news.yahoo.com/s/ap/us_rel_piercing_church/print.

89. 1998 U.S. Dist. LEXIS 21148 (E.D. Mich. 1998).

90. 29 C.F.R. § 1605.1. City of Boerne, Texas v. Flores, 521 U.S. 507 (1997).

91. 803 F.2d 351 (7th Cir. 1986).

92. Richards, Kimberly, “Muslim Man Fired From Bed Bath & Beyond Says He Was Called ‘Terrorist,’” The Huffington Post (November 9, 2015), http://www.huffingtonpost.com/entry/muslim-man-fired-bed-bath-beyond_us_5640aed2e4b0b24aee4add11

page 56293. Chartrand, Sabra, “Protecting Freedom of Religion in the Workplace,” The New York Times (June 8, 1997), http://partners.nytimes.com/library/jobmarket/060897sabra.html.

94. City of Boerne, Texas v. Flores, 521 U.S. 507 (1997); and Rosamaria D. Machado-Wilson v. BSG Laboratories, Inc., Case No. 98-106601 CIDL (Cir. Ct., 7th Jud. Cir., Volusia County, Fla., 1998).

95. Rosamaria D. Machado-Wilson v. BSG Laboratories, Inc., Case No. 98-106601 CIDL (Cir. Ct., 7th Jud. Cir., Volusia County, Fla., 1998).

96. 648 F.2d 1239 (9th Cir. 1981).

Trans World Airlines, Inc. v. Hardison 432 U.S. 63 (1977)

Employer was unable to accommodate employee’s religious conflict of working on the Sabbath, without undue hardship. The Court set forth the guidelines for determining what constitutes undue hardship.

White, J.

***

The employee, Hardison, was employed by Trans World Airlines (TWA), in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Hardison was subject to a seniority system in a collective bargaining agreement between TWA and the International Association of Machinists & Aerospace Workers (union), whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA’s needs cannot be found.

Because Hardison’s religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because on his job at the time he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and Hardison had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that Hardison work only four days a week on the ground that this would impair critical functions in the airline operations, no accommodation could be reached, and Hardison was discharged for refusing to work on Saturdays.

page 569

We hold that TWA, which made reasonable efforts to accommodate Hardison’s religious needs, did not violate Title VII, and each of the Court of Appeals’ suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. The employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation under Title VII to accommodate the religious observances of its employees.

The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison’s religious needs. In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second, also within the bounds of the collective-bargaining contract the company could have filled Hardison’s Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a “swap between Hardison and another employee either for another shift or for the Sabbath days.” In response to the assertion that this would have involved a breach of the seniority provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective-bargaining agreement. The company had simply left the entire matter to the union steward who the Court of Appeals said “likewise did nothing.”

We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate and that each of the suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.

It might be inferred from the Court of Appeals’ opinion and from the brief of the EEOC in this Court that TWA’s efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:

“TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff’s problems. It did accommodate plaintiff’s observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure.”

It is also true that TWA itself attempted without success to find Hardison another job. The District Court’s view was that TWA had done all that could reasonably be expected within the bounds of the seniority system.

We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining agreement.

Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA’s other employees. We agree that neither a collective-bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances.

The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the page 570one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.

To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs. While the cost may seem small for one employee compared to TWA’s resources, TWA may have many employees who need such accommodation.

Case Questions

1.In your opinion, were the alternatives suggested by the court of appeals viable for TWA? Why or why not?

2.Does it seem inconsistent to prohibit religious discrimination yet say that collective bargaining agreements cannot be violated to accommodate religious differences? Explain.

3.If you had been Hardison’s manager and he came to you with this conflict, how would you have handled it? Does that change now that you have seen the Court’s decision? If so, how?

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

The citation provided is a guideline. Please check each citation for accuracy before use.

Chapter

7

: National Origin Discrimination

Opening Scenarios

SCENARIO

1

Kayla, a supervisor, recently hired a new manager, Alex, but has received complaints from customers that they cannot understand him when they speak to him on the telephone. Alex is a Romanian employee visiting from the company’s Romanian office and is scheduled to remain with the firm for two years. Kayla is concerned that if she allows Alex to perform duties similar to other managers, the firm will lose customers; however, she is unsure about the firm’s liability for decreasing Alex’s responsibilities as a result of his foreign accent.

SCENARIO

2

Mohammed, an Arab-American Muslim high school student, had a job after school at a fast-food restaurant. A few co-workers started asking him why his “cousins” bombed the World Trade Center. Mohammed ignored their taunts. Then a manager began to add comments such as “Hey, Mohammed, we’re going to have to check you for bombs.” Mohammed felt humiliated and angry. Soon after, he was terminated for accidentally throwing away a paper cup that the manager was using. Mohammed suspects that his religious and ethnic background was the reason he was fired.

Statutory Basis

The statutory basis for protection against national origin discrimination is presented in Exhibit 7.1, “Legislation Prohibiting National Origin Discrimination.” These statutes include section 70

3

(a) of Title VII of the Civil Rights Act of 19

6

4

and the Immigration Reform and Control Act of 19

8

6. Additional direction can be found in the EEOC’s Enforcement Guidance on National Origin Discrimination.

Exhibit 7.1 Legislation Prohibiting National Origin Discrimination

TITLE VII, CIVIL RIGHTS ACT OF 1964

Sec. 703(a)

It shall be an unlawful employment practice for an employer—

1.to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . national origin.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

Sec. 247A(a)

1. It is unlawful for a person or other entity:

1. to hire or to recruit or refer for a fee for employment in the United States an alien knowing the alien is an unauthorized alien with respect to such employment, or

2. to hire for employment in the United States an individual without [verification of employment eligibility].

2. It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or had become) an unauthorized alien with respect to such employment.

3. A person or entity that establishes that it has complied in good faith with the [verification of employment eligibility] with respect to hiring, recruiting or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A).

Sec. 274(B)(a)

1. It is an unfair immigration-related practice for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—

1. because of such individual’s national origin, or

2. in the case of a protected individual [a citizen or authorized alien], because of such individual’s citizenship status.

Chez/Casa/Fala/Wunderbar Uncle Sam

The United States of America has always considered itself to be a melting pot. Under this theory, different ethnic, cultural, and racial groups came together in the United States, but differences were melted into one homogeneous mass composed of all cultures. Recently, this characterization has been revisited and other, more accurate terms have been proposed. They include such terms as a salad bowl, in which all the ingredients come together to make an appetizing, nutritious whole but each ingredient maintains its own identity, or a stew, in which the ingredients are blended together but maintain their distinct identity, with the common thread of living in America acting as the stew base that binds the ingredients together.

While the words on the Statue of Liberty—“Give me your tired, your poor, your huddled masses yearning to breathe free”—have always acted as a beacon to citizens of other countries to find solace on our shores, the reality once they get here, even sometimes after being here for generations, is that they are often discriminated against, rather than consoled. National origin was included in Title VII’s list of protected classes to ensure that employers did not make employment decisions based on preconceived notions about employees’ or applicants’ country of origin. Note that section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991, also may apply in those circumstances where national origin is a proxy for or equivalent to race (discussed later in this chapter).1

page 32

5

Speaking of race, as was mentioned in the introduction to the chapter on race discrimination, recently there has been a sort of blending of the race and national origin categories, with employees bringing as race discrimination cases those that had traditionally been brought as national origin claims. The traditional distinctions in the law are becoming blurred; but the significant thing is that, for instance, whether being Latin is considered race discrimination or national origin discrimination, it is, in fact, illegal to make workplace decisions on the basis of this attribute. What is critical to understand is that a decision based on either attribute is illegal; and national origin is a distinct category in this textbook because it is the way that such claims are traditionally handled, and because we are reluctant to blend completely the two areas when they have quite different histories, implications, and analyses for today’s employment arena.

The Changing Workforce

Over the past decade, we have seen a dramatic increase in the number of immigrants to the United States, particularly from Latin American and Asian countries. In 2014 alone, the United States was home to a record 42.2 million immigrants who, by 2016, comprised over 13.2 percent of the nation’s population. This number represents a fourfold increase since 1960, when there were 9.7 million immigrants living in the country. At that time, immigrants made up only 5.4 percent of the U.S. population. The growth rate is expected to continue and the number of immigrants in the United States is expected to double by 2065.2 By 2016, the United States was growing by one person every 8 seconds, and gaining one international migrant every 29 seconds.3

In 1960, 84 percent of immigrants living in the United States were born in Europe or Canada. Since the passage of the 1965 Immigration and Naturalization Act, this demographic has changed dramatically. As of 2014, European and Canadian immigrants made up only 13.6 percent of U.S. immigrants. Mexicans made up the largest share—27.7 percent—while Asian immigrants comprised 26.4 percent of U.S. immigrants. Immigrants from Latin America comprised 23.9 percent and 8.3 percent of immigrants were born in other regions.4 In 2015, there were 26.3 million foreign-born workers in the United States, comprising 16.7 percent of the total labor force. Latinx5 accounted for 48.8 percent of the foreign-born labor force, with Asians comprising a further 24.1 percent.6

From 2014 to 2015, unemployment rates for foreign-born workers declined by 0.7 percent, while dropping 0.9 percent for U.S.-born workers. In 2014, the jobless rate among U.S.-born men (5.6 percent) was higher than that for foreign-born men (4.5 percent). Despite having a slight edge in employment, the median weekly earnings of foreign-born, full-time workers were significantly lower than their U.S.-born counterparts: $681 compared with $837 (among women, a difference of $626 to $740 and among men, a difference of $712 versus $934). However, the earnings gap narrows with higher levels of education: among those with a bachelors degree or higher, earnings were essentially identical.7

On its face, national origin discrimination appears to be relatively simple to determine; however, it has surprising complexities. Employers have always been uncertain of the scope of Title VII’s coverage in this area and what could be used as a defense against decisions based on national origin. (See

Exhibit 7.2, “Realities about National Origin Discrimination.”

) Notwithstanding its complexity, however, complaints to the EEOC based on alleged national origin discrimination have been on the rise since 1997. Between 1997 and 2015, complaints of discrimination on the basis of national origin grew from page 3276,712 to 9,438, though the number of national origin complaints being filed has declined a bit from its peak in 2011, when it was 11,833.8 The link between these two forms of complaint, particularly as they pertain to Muslim and Arab-Americans after the attacks of September 11, 2001, is discussed later in the chapter.

Exhibit 7.2 Realities about National Origin Discrimination

1. “Citizenship” and “national origin” are not syn-onymous.

2. No matter the national origin of a restaurant, it likely will still be required strictly to abide by Title VII non-discrimination principles in hiring its waitstaff.

3. The EEOC considers English-only rules applied at all times presumptively discriminatory, although courts have not always agreed.

Regulatory Overview

The national origin discrimination protection offered by Title VII is similar to that of gender or race and is used somewhat synonymously with ethnicity, though they are distinguishable. That is, it is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive them of employment opportunities because of national origin. An employer may not group its employees on the basis of national origin, make employment decisions on that basis, or implement policies or programs that, though they appear not to be based on an employee’s or applicant’s country of origin, actually affect those of one national origin differently than those of a different group.

national origin discrimination protection

It is unlawful for an employer to limit, segregate, or classify employees in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment.

An employee may successfully claim discrimination on the basis of national origin if it is shown that

1.She or he is a member of a protected class (i.e., articulate the employee’s national origin).

2.She or he was qualified for the position for which she or he applied or in which she or he was employed.

3.The employer made an employment decision against this employee or applicant.

4.The position was filled by someone who was not a member of the protected class.

Each of the above will be discussed in turn.

Member of the Protected Class

In connection with the first requirement, what is meant by national origin? While the term is not defined in Title VII, the EEOC guidelines on discrimination define national origin discrimination as “including, but not limited to, the denial of equal employment opportunity because of [an applicant’s or employee’s] or his or her ancestor’s place of origin; or because an applicant has the physical, cultural, or linguistic characteristics of a national origin group.”

national origin

Individual’s, or her or his ancestor’s, place of origin (as opposed to citizenship), or physical, cultural, or linguistic characteristics of an origin group.

Note that the law provides protection against discrimination based only on country of origin, not on country of citizenship. Title VII protects employees who are not U.S. citizens from employment discrimination based on the categories of the Act, but it does not protect them from discrimination based on their status as immigrants, rather than as U.S. citizens. That is, it protects a Somali woman from gender discrimination, but not from discrimination on the basis of the fact that she is a Somali citizen, rather than an American citizen. The issue of citizenship as it relates to national origin is discussed later in this chapter.

Many national origin cases under Title VII involve claims of discrimination by those who were not born in America; however, American-born employees also are protected against discrimination on the basis of their American origin. For example, a court has held that the employer’s conscious decision about whom to dismiss on the basis of the national origin of its employees (in an effort to promote “affirmative action”) was not acceptable because that method tended to disfavor Americans, in favor of other nationalities.

In addition to national origin encompassing the employee’s place of birth, it also includes ethnic characteristics or origins, as well as physical, linguistic, or cultural traits closely associated with a national origin group. For instance, courts have held that Cajuns and people of Romani descent (sometimes referred to by the more derogatory term, “gypsy”) are protected under Title VII. In addition, the EEOC confirms that other ethnic groups, such as Latinx, Arabs, and Kurds, are also protected national origin groups. It also may serve as the basis for a national origin discrimination claim if the employee

•Is identified with or connected to a person of a specific national origin, such as when someone suffers discrimination because he or she is married to a person of a certain ethnic heritage.

•Is a member of an organization that is identified with a national group.

•Is a participant in a school or religious organization that is affiliated with a national origin group.

•Has a surname that is generally associated with a national origin group.

•Is perceived by an employer to be a member of a particular national origin group, whether or not the individual is in fact of that origin.

Qualification/BFOQs

The second factor that must be present for an employee to claim national origin discrimination is that the applicant or employee is qualified for the position. That is, the claimant must show that he or she meets the job’s requirements.

Contrary to situations involving disability or religion, the employee in a national origin case must show that she or he is qualified for the position without the benefit of accommodation. No accommodation of one’s national origin is required of employers. For example, while an employer would be required to reasonably accommodate an employee’s religious attire, there is no similar responsibility to accommodate an employee’s attire of national origin, such as traditional African dress, unless it can be shown to overlap with his or her religion.

The employer may counter the employee’s claim that she or he is otherwise qualified by showing that national origin is actually a bona fide occupational qualification (BFOQ) (discussed in Chapter 3) for the job. In other words, the employer can explain why a specific national origin is necessary for the position applied for—why that national origin is a legitimate job requirement and is reasonably necessary for the employer’s particular business.

It is important to note that customer, client, or co-worker discomfort or preference in terms of national origin may not be relied upon by the employer. But, as you’ll see in the Espinoza v. Farah Mfg. Co. case at the end of the chapter, citizenship is an entirely different story.

English Fluency and Speaking Other Languages in the Workplace

Some employers choose to maintain policies requiring all employees either to be fluent in English or to speak only English while in the workplace, even when employees are speaking only among themselves. Employers have also raised the question of what to do if an employee’s accent interferes with his or her job performance. Fluency requirements, “English-only” policies, and accent rules all raise slightly different issues, but all are becoming increasingly relevant in today’s diverse workforce. In 2014, 20.9 percent of the U.S. population five years and older spoke a language other than English in the home. Over 25 million Americans, or nearly 9 percent of the U.S. population aged five and over, spoke English less than “very well.”

Diversity in the workplace brings many benefits, including a greater breadth of skills and life experiences among the workforce. It also may present unique challenges to employers, particularly in the form of poor communication among those who may prefer to speak in their native tongue, which might be not English but Spanish, Hindi, or Tagalog. While such communication problems may cause confusion, fluency requirements may not be appropriate for some jobs, even within the same company, and severe English-only restrictions may create frustration and resentment among employees for whom English is a second language. To avoid alienating these employees, to ensure realistic and reasonable job qualifications, and to decrease the risk of litigation, employers should not permit managers to arbitrarily impose language restrictions.

A job requirement that an employee must be fluent in English is legal if fluency is required to perform the work effectively. The EEOC has pointed out that the degree of fluency required varies from job to job, so blanket fluency requirements that apply equally to the customer service department and to warehouse workers might not be legal. To best be protected from possible Title VII liability, the employer must be able to show that English fluency is required for the job and that the requirement is necessary to maintain supervisory control of the workplace. Perhaps it may be required of an employee who has significant communication with clients, or it may be justified as a BFOQ where the employee could not speak or understand English sufficiently to perform required duties.

Similarly, because an employee’s accent is often associated with his or her national origin, courts closely examine employment decisions based on accent (since it may be used as a proxy for national origin discrimination). However, an employer is permitted to choose not to hire or promote an employee to a position that requires clear oral communication in English if the employee’s accent substantially affects his or her ability to communicate clearly. For example, where a teacher was fluent in English but spoke with such a thick accent that her students had a difficult time understanding her, her discharge was upheld. On the page 330other hand, if the employee is in a job requiring little speaking and the employee can understand English, the requirement may be more difficult to defend—for instance, requiring English fluency for a janitor who talks little, has little reason to speak to carry out the duties of the job, and who understands what is said to him or her. In fact, in In re Rodriguez, the court found that an employment decision based on an employee’s accent and speech characteristics (where due to the employee’s national origin) was direct evidence of employment discrimination sufficient to shift the burden of proof to the employer to articulate a legitimate non-discriminatory reason for the decision that the employer “would have terminated the [employee] had it not been motivated by discrimination.” The court affirmed that “accent and national origin are inextricably intertwined.”

Additionally, in Guimaraes v. SuperValu, Inc., the Court found that even comments ridiculing an employee’s accent could be relevant evidence of national origin animus.

Unlike the teacher above, in Scenario 1, Kayla is considering decreasing Alex’s responsibilities due to his foreign accent, rather than terminating him. However, like the teacher, it is quite possible in this scenario to show that speaking clear English is a BFOQ, especially if it can be shown that customers have been complaining that they cannot understand him.

A closely related question is whether employers are permitted to implement policies requiring employees to speak only English in the workplace. These policies may be based in well-intentioned employer efforts aimed at decreasing workplace tension where multiple languages have segregated a workplace, improving employees’ English, or promoting a safe and efficient workplace. Though the U.S. Supreme Court has not yet ruled on the lawfulness of English-only policies in the workplace, lower courts have gone both ways on this issue. Some have held the policy to be discriminatory, excessively prohibitive, and a violation of Title VII. Others have held that it is not national origin discrimination if all employees, regardless of ancestry, are prohibited from speaking anything but English on the job and that there is no statutory right to speak other languages at work. It has been held that the right to speak one’s native language when the employee is bilingual is not an immutable characteristic that Title VII protects.

Garcia v. Spun Steak Co., included at the end of the chapter, is one of the most important cases on the subject. In Garcia, the Ninth Circuit considered an employer’s policy that required bilingual workers to speak only English while on the job, though it allowed other languages to be spoken during breaks and employees’ personal time. Spanish-speaking employees argued that the policy was discriminatory because it denied them the ability to express their cultural heritage, denied them a privilege of employment enjoyed by speakers of English as a first language, and created an atmosphere of inferiority and intimidation. The court rejected these arguments, stating that Title VII “does not protect the ability of workers to express their cultural heritage at the workplace,” but is “concerned only with disparities in the treatment of workers.” The court further argued that “Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class.”

In contrast, in EEOC v. Premier Operator Servs., Inc.,18 the district court struck down an English-only policy that required all conversations on workplace premises, including those during breaks or personal time, to be in English. The court found that the defendant presented insufficient evidence to establish that there was any business necessity for the policy as implemented. The court noted that, even if it were “to assume that office ‘harmony’ [was] properly considered to be a business necessity that would justify an English-only policy,” there was no credible evidence on the record that there was any discord among employees so as to necessitate a language-restrictive policy. The court therefore concluded that “the speak English-only policy as implemented and enforced . . . was a tool by which discrimination based on national origin was effected.”

In general, though, English-only rules have been upheld. In Pachero v. New York Presbyterian Hospital, an English-only requirement was implemented in response to complaints from patients who believed that Spanish-speaking employees were talking about them in a language that they did not understand. An employee brought suit alleging national origin discrimination under theories of a hostile work environment, disparate treatment, and disparate impact. The hospital argued that its English-only requirement was both limited and a business necessity: it helped facilitate better staff-patient relationships and employees were permitted to speak Spanish (or any other language) when patients were not present. The court agreed and dismissed the plaintiff’s case. The courts have also summarized the types of business necessity justifications that have been upheld: In EEOC v. Sephora USA,20 an English-only policy was justified as a means of improving communication with customers; the court in Montes v. Vail Clinic, Inc., held an English-only policy was necessary to ensure safety for hospital patients; the court in Roman v. Cornell University found an English-only rule was justified to avoid or lessen interpersonal conflicts between employees; the court in Long v. First Union Corp. of Virginia23 held that an English-only policy was justified to ensure the business runs smoothly and efficiently; and the court in Tuffa v. Flight Servs. & Sys. Inc. found that a policy requiring employees to read in English does not discriminate on its face and the requirement that employees pass a written test in English is not direct evidence of discrimination.

However, challenges to English-only rules are increasing, and some have resulted in large awards and settlements to affected employees. In 2001, a class-action suit filed by eighteen Latinx housekeepers against the University of Incarnate Word for requiring them to speak English at all times was settled for $2.44 million.25 In 2012, an acute care hospital in California agreed to pay $975,000 to settle a lawsuit filed by the EEOC on behalf of 70 Filipino-American hospital workers, who claimed to have been harassed, humiliated, and subject to undue surveillance and discipline in relation to an English-only policy.

The EEOC takes the position that English-only rules applied at all times or only applied to certain foreign speakers are presumptively discriminatory, although the courts have not always agreed with that approach. When a rule is applied only at certain times, the EEOC recommends that it be justified by a business purpose in order to avoid discrimination claims. Rules applied during work time only are less likely to be considered harassment and more likely to show a business purpose. When an employer is considering an English-only rule, it should take into consideration the legal implications as well as the fact that such a rule can create an atmosphere of inferiority, isolation, and intimidation that may result in a discriminatory work environment.

According to the EEOC, an employer may justify the business necessity of an English-only rule

•For communications with customers, co-workers, or supervisors who only speak English.

•In emergencies or other situations in which workers must speak a common language to promote safety.

•For cooperative work assignments in which the English-only rule is needed to promote efficiency. For example, a taxi company was permitted to maintain an English-only policy for main office employees to prevent miscommunications during dispatch.

•To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

Although in Garcia, the court ruled against the EEOC’s guidelines, it did point out that an English-only policy may be discriminatory if it “exacerbate[s] existing tensions, combine[s] with other discriminatory behavior to contribute to discrimination, [or is] enforced in a ‘draconian manner’ [such] that the enforcement itself amounts to harassment.”29 In 2006, however, the EEOC’s position was supported in Maldonado v. City of Altus,30 where the court held that a hostile work environment might exist based solely on the employer’s adoption of an English-only policy in the workplace, though this case was later overruled on other grounds. A few other district courts have accepted and applied the guidelines.31

An employer, therefore, may properly enforce a limited, reasonable, and business-related English-only rule against an employee who can readily comply. However, if the practice of requiring only English on the job is mere pretext for discrimination on the basis of national origin (i.e., the employer imposes the rule in order to discriminate, or the rule produces an atmosphere of ethnic oppression), such a policy would be illegal. This might be the case where an employer requires English to be spoken in all areas of the workplace, even on breaks or in discussions between employees during free time.

Adverse Employment Action and Dissimilar Treatment

The third and fourth requirements will be addressed together because they often arise together. The third element of the prima facie case for national origin discrimination is that the employee has suffered an adverse employment action by the employer’s employment decision. This may include a demotion, termination, or removal of privileges afforded to other employees. The adverse effect may arise either because employees of different national origin are treated differently page 333(disparate treatment) or because the policy, though neutral, adversely impacts those of a given national origin (disparate impact).

adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee.

The fourth element requires that the employee show that her position was filled by someone who is not a member of her protected class, or, under other circumstances, that those who are not members of her protected class are treated differently than she. For example, assume an Asian employee is terminated after the third time he is late for work. There is a rule that employees will be terminated if they are late for work more than twice. However, the employer does not enforce the rule against the other employees, only against Asian employees. This would be a case of disparate treatment because the employee could show that he was treated differently from other employees who were similarly situated but not members of his protected class.

Alternatively, disparate impact has been found, for example, with physical requirements such as minimum height and weight. Such requirements may have a disparate impact on certain national origin groups as a result of genetic differences among populations and these requirements disproportionately precluded the groups from qualifying for certain jobs. These requirements violate Title VII and must be justified by business necessity. For instance, a requirement that a firefighter be at least 5 feet 7 inches tall was found to be unlawful where the average height of an Anglo man in the United States is 5 feet 8 inches, Spanish-surnamed American men average 5 feet 4½ inches, and females average 5 feet 3 inches. On the other hand, if the rule can be shown to be a business necessity, it may be allowed (such as some English fluency requirements, as discussed earlier).

Once the employee has articulated a prima facie case of discrimination based on national origin, the burden falls to the employer to identify either a BFOQ or a legitimate nondiscriminatory reason (LNDR) for the adverse employment action. In Vega v. Hempstead Union Free Sch. Dist.,32 included at the end of the chapter, you will have the opportunity to evaluate the bona fide occupational qualifications to teach a bilingual language class, among other questions relating to the burden of proof in a discrimination case based on national origin. (For more detailed discussions of prima facie cases, BFOQs, and LNDRs, please see Chapter 2.)

Harassment on the Basis of National Origin

In addition to providing protection against traditional types of discrimination, Title VII also protects employees against harassment on the basis of national origin. Unfortunately, claims of national origin harassment have been on a sharp increase, rising from 6,712 charges filed with the EEOC in 1997 to 9,483 in 2015. In fact, in 2015, 10.6 percent of all claims filed with the EEOC included a claim for national origin discrimination.33

Not all harassment is prohibited under Title VII, however. Similar to claims of sexual harassment, claims of national origin harassment are only actionable if the harassment was so severe or pervasive that the employee reasonably finds the workplace to be hostile or abusive. Common concerns include ethnic slurs, workplace graffiti, or other offenses based on traits such as an employee’s birthplace, page 334culture, accent, or skin color. In considering employer liability, the court will look to whether the conduct was physically threatening or intimidating, its severity, pervasiveness throughout the working environment, whether a reasonable person would find the conduct offensive and/or hostile, and how the employer responded. The EEOC offers the following examples of conduct that do and do not satisfy this review:34

Offensive Conduct Based on National Origin That Violates Title VII

Muhammad, an Arab-American, works for XYZ Motors, a large automobile dealership. His coworkers regularly call him names like “camel jockey,” “the local terrorist,” and “the ayatollah,” and intentionally embarrass him in front of customers by claiming that he is incompetent. Muhammad reports this conduct to higher management, but XYZ does not respond. The constant ridicule has made it difficult for Muhammad to do his job. The frequent, severe, and offensive conduct linked to Muhammad’s national origin has created a hostile work environment in violation of Title VII.35

Offensive Conduct Based on National Origin That Does Not Violate Title VII

Horia, a Romanian emigrant, was hired by XYZ Shipping as a dockworker. On his first day, Horia dropped a carton, prompting Bill, the foreman, to yell at him. The same day, Horia overheard Bill telling a coworker that foreigners were stealing jobs from Americans. Two months later, Bill confronted Horia about an argument with a coworker, called him a “lazy jerk,” and mocked his accent. Although Bill’s conduct was offensive, it was not sufficiently severe or pervasive for the work environment to be reasonably considered sufficiently hostile or abusive to violate Title VII.

An employer has the responsibility to prevent and correct any national origin harassment that may take place within its working environment. However, that responsibility is limited to occurrences of harassment of which the employer “knows or should have known.” So, if an employee is consistently subject to abuse but never tells anyone about it (e.g., her or his employer) and the supervisors at her or his workplace have no other way of knowing the abuse is taking place, the employer may not be liable. In addition, if the employer finds out about the harassment and does take reasonable steps to prevent and/or correct it, the employer might also be relieved of any liability.

Cortezano v. Salin Bank & Trust Co.36 is included in this chapter to demonstrate that many forms of discrimination and harassment may not satisfy a prima facie case under Title VII. On the one hand, it is important for workers to know that they are protected, even if the adverse working conditions might not fit the traditional model under Title VII, and for employers to ensure that they are diligent in their training and sensitivity to unique cross- (and even within) cultural phenomena. On the other hand, some forms of discrimination—such as discrimination based upon citizenship status, or “alienage,” as distinct from the specific nation of origin—are not prohibited under Title VII. In addition, the law remains unsettled regarding Title VII’s application to cases of discrimination against a worker based on the national origin of the worker’s spouse or partner.

Guidelines on Discrimination Because of Religion or National Origin

Federal agencies or employers who enter into contracts with a government agency are required by the Guidelines on Discrimination Because of Religion or National Origin to ensure that individuals are hired and retained without regard to their religion or national origin.37 These guidelines impose on the federal contractor an affirmative obligation to prevent discrimination. The provisions include the following ethnic groups: Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Italians, Greeks, and Slavs. However, Blacks, Spanish-surnamed Americans, Asians, and Native Americans are specifically excluded from the guidelines’ coverage because of their protection elsewhere in Office of Federal Contract Compliance Rules.

Guidelines on Discrimination Because of Religion or National Origin

Federal guidelines that apply only to federal contractors or agencies and that impose on these employers an affirmative duty to prevent discrimination.

The guidelines provide that, subsequent to a review of the employer’s policies, the employer should engage in appropriate outreach and positive recruitment activities to remedy existing deficiencies (i.e., affirmative action). Various approaches to this outreach requirement include the following:

1.Internal communication of the obligation to provide equal employment opportunity without regard to religion or national origin.

2.Development of reasonable internal procedures to ensure that the equal employment policy is fully implemented.

3.Periodic informing of all employees of the employer’s commitment to equal employment opportunity for all persons, without regard to religion or national origin.

4.Enlistment of the support and assistance of all recruitment sources.

5.Review of employment records to determine the availability of promotable and transferable members of various religious and ethnic groups.

6.Establishment of meaningful contacts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees (many organizations send job announcements to these community groups when recruiting for positions).

7.Significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups.

8.Use of the religious and ethnic media for institutional and employment advertising.

Middle Eastern Discrimination after September 11, 2001, and in the Era of ISIS

In the aftermath of September 11, 2001, and following other terrorist attacks since that time by extremist groups such as the Islamic State,38 hate crimes against individuals of Middle Eastern descent have increased dramatically. Workplace discrimination complaints brought by Muslims and those of Middle Eastern descent also have risen sharply. In the initial months after 9/11, the EEOC saw a 250 percent increase page 336in the number of religion-based discrimination charges involving Muslims. Although religious discrimination complaints by Muslims dropped in 2003 and 2004, the number then spiked upward again for six of the following seven years. In December 2015, the chairperson of the EEOC stated that employers needed to “remain vigilant” in light of then-recent terrorist attacks and the EEOC released new guidance tools at that time increasing awareness of religious and national origin discrimination against people who are (or are perceived to be) Muslim.39

Although Muslims comprise just over 2 percent of the U.S. workforce, 19.6 percent of all complaints submitted to the EEOC from 2009 to 2015 came from Muslims.40 Charges of national origin discrimination based on Middle Eastern descent increased from 306 to 747 between 2008 and 2011.41 The EEOC even created a special classification, “Code Z,” to designate complaints of “backlash discrimination” from individuals who are—or are perceived to be—Muslim, Sikh, Arab, Middle Eastern, or South Asian. Opening Scenario 2 presents an example of one such incident.

The U.S. Department of Justice (DoJ) is charged with combating civil rights violations against Arab, Sikh, and South-Asian Americans, as well as those who are perceived to be members of those groups. The group is battling these crimes and acts of discrimination by identifying cases involving bias crimes, conducting outreach, and working with other DoJ offices. As of August 2015, the office had helped to respond to more than 1,000 incidents of bias crime alone, resulting in federal charges against 54 defendants, with 48 convictions. In addition, DoJ attorneys have worked with state and local prosecutors in 150 non-federal criminal prosecutions.43 In one such case, the Justice Department’s Civil Rights Division sued the New York Metropolitan Transit Authority under Title VII for discriminating against Muslim and Sikh employees by refusing to permit them to wear head scarves and turbans while working in public-contact positions. The MTA began enforcing this policy in 2002 and took various actions against Muslim and Sikh employees, including transferring them to positions where they would not have contact with the public. The case was settled in May 2012, when the MTA agreed to pay $184,500 in damages to eight employees and to adopt policies to accommodate the religious practices of employees.

Issues of concern and questions that have arisen from these cases have centered on a few key issues. Employers may not treat workers differently because of their religious attire, such as a Muslim hijab (head scarf). In fact, in 2015, the Supreme Court ruled 8–1 in favor of a Muslim woman who was denied a job at an Abercrombie & Fitch store in Tulsa, Oklahoma, because she wore a headscarf. This was after an interviewer had recommended the woman for hire for a sales job. Abercrombie’s dress code prohibits salespeople from wearing caps. The Court held that a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer’s adverse decision.45 Employers also need to be sensitive to possible instances of ethnic harassment, especially that which may unfairly relate to security concerns. Finally, employers may not require individuals of one ethnic background to undergo more significant security checks page 337or other preemployment requirements unless all applicants for that position are required to do so.

In the post–September 11 era, employers actually have a unique opportunity to raise awareness of and sensitivity to cultural diversity in the workplace. Elmer Johnson, former head of the Aspen Institute, which seeks to improve corporate leadership, has stated that corporate leaders should inspire employees and inculcate a sense of shared values.46 Perhaps this can be achieved by reaching out to employees of Middle Eastern descent who may be experiencing fear of discrimination. Since September 11, American Muslims and those of Middle Eastern descent report experiencing increased suspicion and hostility, including verbal harassment, violent threats or intimidation, physical assault, religious profiling, and discrimination in education, employment, and housing.47 Remaining sensitive to such employees’ concerns in job assignments and work-related activities is key to their effective resolution. “Quick fixes,” such as compulsory transfer to another position, must be avoided. To further promote a healthy environment at work, employers also should consider the post–September 11 issues in diversity training.

It should be noted that, under certain limited circumstances, employers may reach decisions on the basis of national origin by relying on security requirements, where the security requirements are imposed “in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President.”

Citizenship and the Immigration Reform and Control Act

As mentioned earlier in this chapter, Title VII’s prohibition against discrimination on the basis of national origin does not necessarily prohibit discrimination on the basis of citizenship; this only occurs where citizenship discrimination “has the purpose or effect” of national origin discrimination or where it is pretext for national origin discrimination. In fact, non-U.S. citizens who are legally residing in and permitted to work in the United States) are often restricted from access to certain government or other positions by statute. For instance, in Foley v. Connelie,49 the Supreme Court held that a rule requiring citizenship was valid in connection with certain nonelected positions held by officers who participate directly in the formulation, execution, or review of broad public policy. This is called the “political function” exception for positions that are intimately related to the process of self-government. In cases where the restricted position satisfies this exception, discrimination against non-U.S. citizens who are legally allowed to reside and work in the United States is permitted. Espinoza v. Farah Manufacturing Co.,50 included for your review, is the seminal case by the U.S. Supreme Court in the area of discrimination on basis of citizenship.

Another area where questions have arisen between Title VII and discrimination based on citizenship emerged in 2017 when U.S. President Trump announced his policy to buy American and hire American.51 With no other context, this policy had the appearance of condoning discrimination in favor of U.S. citizens against all others. page 338However, the language of the Executive Order instead proposes reforms designed to promote employers to hire American citizens or anyone else legally authorized to work in the United States under current immigration laws. Coupled with other legislation introduced by the same administration, there have been concerns at time of publication about the long-term impact on discrimination in employment based on national origin. We will explore that impact in our next edition.

The Immigration Reform and Control Act (IRCA), in contrast to Title VII, does prohibit employers in certain circumstances from discriminating against employees on the basis of their citizenship or intended citizenship. However, the IRCA makes it illegal for employers to knowingly hire those not legally authorized for employment in the United States. The IRCA also allows discrimination in favor of U.S. citizens as against legal “aliens” (non-U.S. citizens legally residing in the United States). While these individuals are guaranteed various rights pursuant to the Constitution, the law confers certain benefits only to those who are citizens and not to those who are legal residents but non-U.S. citizens. For instance, while rights pursuant to the National Labor Relations Act and Fair Labor Standards Act are provided to citizens and non-citizens, alike, some government-provided benefits are limited to citizens. Also, the IRCA allows employers to enact a preference for U.S. citizens, if the applicants are all equally qualified. Employers may not act on this preference if the foreign national is more qualified for the position than the U.S. citizen.

Employers not subject to Title VII’s prohibitions because of their small size may still be sufficiently large to be covered by IRCA’s antidiscrimination provisions; those employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin; and employers with 4 or more employees may not discriminate on the basis of citizenship.

Two acceptable BFOQs are statutorily allowed under IRCA:

1.English-language skill requirements that are reasonably necessary to the normal operation of the particular business or enterprise.

2.Citizenship requirements specified by law, regulation, executive order, or government contracts, along with citizenship requirements that the U.S. attorney general determines to be essential for doing business with the government.

The main difference between a proof of discrimination under Title VII and IRCA is that, in proving a case of disparate impact, Title VII does not require proof of discriminatory intent, while IRCA requires that the adverse action be knowingly and intentionally discriminatory. Therefore, innocent or negligent discrimination is a complete defense to a claim of discrimination under IRCA.

For example, consider a hypothetical firm that is interviewing for customer service representatives in their large order-processing department. They require all applicants to speak fluent English. Ching Lee applied and was denied employment due to his accent, which some thought was heavy. It turns out that only 3 applicants out of 20 of Asian descent obtained jobs at the firm. The employer explained to Lee that not many Chinese applicants apply and those who do have had strong accents. It claims that customers have complained of not understanding page 339these individuals. Does Lee have a claim under Title VII? Under IRCA? Without evidence of knowledge and intentional discrimination, the employer could survive the IRCA claim if Lee could not prove that it discriminated against him intentionally; however, such knowledge and intention are not required under Title VII and Lee might prevail in that case.

Undocumented Workers

As one might imagine, identifying the precise number of undocumented immigrants in the United States is not an exact science because of fear that undocumented immigrants have in being identified (and therefore counted). In 2007, approximately 12 million undocumented immigrants were living in the United States, and roughly two-thirds of those individuals (8.4 million) comprised 5 percent of the nation’s workforce. By 2010, the number of residents seemed to have dropped to around 11.2 million with 8 million workers who still comprised 5.2 percent of the workforce.52 As of 2017, reports varied widely between 11 and 15 million undocumented immigrants living in the United States.53 However, the Pew Research Forum reports that the number of undocumented immigrants has fluctuated little from the 11 million mark in the past half a decade because the number of new unauthorized immigrants is roughly equal to the number who are deported, leave on their own, convert to legal status, or die.54 The decline and later leveling off of undocumented immigrants have been attributed to some combination of a weak U.S. economy and increased border enforcement.55

A section of the IRCA was established to correct an unfair double standard that had previously prohibited these individuals from working in the United States but permitted employers to hire them. In other words, originally, the unauthorized worker had committed a legal wrong, but the employer who hired the worker had not! Among other things, IRCA now makes it unlawful for any person knowingly to hire, recruit, or refer for a fee any non-citizen who is not authorized to work. “Knowingly” includes that which “may be fairly inferred through notice of certain facts and circumstances which would lead a person . . . to know about a certain condition.”56 Employers are thereby denied the “ostrich” defense where they simply ignore obvious evidence to a violation. Employers are instead required to verify all newly hired employees by examining documents that identify the individual and show his or her authority to work in the United States using a Form I-9. (See Exhibit 7.3, “INS Employment Form and Document List.”) Further, employers, recruiters, and those who refer individuals for employment are required to keep records pertaining to IRCA requirements. (For a list of employer responsibilities under IRCA, see Exhibit 7.4, “Employer Responsibilities under IRCA.”) A violation of this provision can mean personal liability for corporate officers, so it is not a requirement to be taken lightly. Review an I-9 form.

Exhibit 7.4 Employer Responsibilities under IRCA: Do’s and Don’ts

Completion of Form I-9, Section 1

DO:

•Employers must ensure that new employees complete Section 1 in full before the end of their first day of work. This requirement applies to all workers hired to perform labor or services in return for wages or other remuneration.

DO NOT:

•Do not require only certain employees to comply before the end of their first day of work; this requirement must be enforced across the board.

•Do not require employees to provide a Social Security number on Form I-9; providing a Social Security number is voluntary for all employees, unless the employer is participating in E-Verify. Do not even ask an employee to provide you with her or his Social Security number or with a specific document that contains the number within it, under any circumstances. To do so may constitute unlawful discrimination.

Completion of Form I-9, Section 2

DO:

•Employers must examine proper documentation from employees (one from List A or List B, and also with one from List C). Employers must accept the documents provided if they “reasonably appear to be genuine.” This examination must be completed by the end of the new employee’s third day of work. Employers must refuse acceptance of documents that do not reasonably appear to be genuine. If an employee is hired for fewer than three business days, both Sections 1 and 2 must be fully completed by the employee’s first day of work.

DO NOT:

•Do not accept copies or faxes of documents. (Note: The only exception is for a certified copy of a birth certificate.)

•Do not accept expired documents.

•Do not specify which document(s) an employee must present, or require more or different documentation than the minimum necessary to avoid an unfair immigration-related employment practice.

•Do not require completion of the I-9 in the pre-offer stage.

Genuineness of documents and reporting

DO:

•Ask for help: If a document does not reasonably appear to be genuine, employers may ask for assistance from INS. If a document that reasonably appeared to be genuine is in fact not genuine, the employer will not be held responsible by the INS.

Discovering unauthorized employees

DO:

•Employers are permitted to question the employee and provide another opportunity for review of proper I-9 documentation.

DO NOT:

•If the employee is not able to provide satisfactory documentation after an opportunity to do so, the employer should not retain the employee.

•Do not make threats of reporting the employee to the INS in retaliation for discrimination complaints or other protected activity.

Discovering false documentation

DO:

•If an employee gains employment with false documentation but then later obtains and presents proper work authorization, the employer should correct the relevant information on Form I-9.

•Employers should know that personnel policies regarding provision of false information to the employer may apply.

DO NOT:

•Employers do not have to terminate an employee who presents subsequent work authorization.

“Green cards”

DO:

•Employers should be aware that “Resident Alien” cards, “Permanent Resident” cards, “Alien Registration Receipt” cards, and Forms I-551 grant permanent residence in the United States, but proof of this status may expire and cardholders must obtain new cards.

•Employers should check that unexpired “green cards” used for Form I-9 appear genuine and establish identity of the cardholder.

DO NOT:

•Employers should not accept an expired card for purposes of Form I-9.

•Employers are neither required nor permitted to reverify the employment authorization of non-US citizens who have presented one of these cards to satisfy I-9 requirements.

Social Security cards

DO:

•For purposes of payroll, employers may accept SSA cards that bear the restriction “Not Valid for Employment” from employees who satisfy I-9 requirements. Often those who initially got such a restricted SSA card proceed to permanent residence or U.S. citizenship.

DO NOT:

•Employers must not accept restricted SSA cards for purposes of I-9 requirements.

•Employers must not accept Individual Taxpayer Identification numbers for purposes of I-9 requirements.

Retention of I-9 forms

DO:

•Employers must retain an employee’s Form I-9 for the duration of employment and the longer of either three years past the hire date or one year past the termination date. Forms I-9 can be retained either on paper or electronically.

DO NOT:

•While not prohibited from doing so, private employers should not store I-9 records in employee personnel files.

Official inspection of I-9 records

DO:

•All I-9 forms of current employees must be made available in their original or electronic form to an authorized official upon request. The official will give employers at least three days’ advance notice before the inspection.

DO NOT:

•Employers should not leave preparation for such an inspection to the last minute. Storing I-9 records in employee personnel files makes this task unduly difficult.

Source: Adapted from U.S. Citizenship and Immigration Services, Handbook for Employers. Instructions for Completing Form I-9 (Employment Eligibility Verification Form), April 30, 2013.

In 2007, in an effort to further implement these provisions, the Department of Homeland Security (DHS) announced that employers would be required to terminate all workers who used false social security numbers, otherwise known as a “no-match” (based on the 140,000 no-match letters received annually by employers from the Social Security Administration notifying them that the names and social security numbers of employees do not match the agency’s records). Employers were to have 90 days in which to reconcile the no-match letters; if they could not, they were going to be forced to fire the worker or face fines of up to $10,000. With an estimated 6 million unauthorized non-U.S. citizens employed at that time, the impact on both the workforce and the economy would have been monumental, notwithstanding the claim by the Social Security Administration that 12.7 million of its records contained page 345errors that could lead to terminations.57 The impact in the agricultural industry alone would have been overwhelming, where estimates by the growers’ associations placed undocumented workers at about 70 percent.58 However, only five days before its implementation, a California federal judge issued an order blocking the implementation of the no-match rule based on a suit filed jointly by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, and the National Immigration Law Center. In late 2007, the Bush administration suspended its defense of the rule, preferring to go back to the drawing board in order to respond to the judicial concerns.

In 2008, the DHS attempted to reform the program; but the proposed amendments were never enforced. When he took office in early 2009, President Obama’s Secretary of Homeland Security ordered a review of the no-match policy, which the DHS rescinded later that same year. However, in 2011, the Social Security Administration (SSA) again began sending out “no-match letters” to employers. These letters are written notice issued by the SSA to an employer advising the employer that the name and Social Security Number combination reported by the employer for one or more employees does not “match” the SSA’s records.

The DOJ offers a list of Dos and Do Nots for employers who receive a no-match letter.

DO:

1.Recognize that no-matches can result because of simple administrative errors.

2.Check the reported no-match information against personnel records.

3.Inform the employee of the no-match notice.

4.Ask the employee to confirm that his or her name and SSN is accurately reflected in employment records.

5.Advise employee to contact the SSA to correct and or update his or her SSA records.

6.Give the employee a reasonable period of time to address a reported no-match with the local SSA office.

7.Follow the same procedures for all employees regardless of citizenship status or national origin.

8.Periodically meet with or otherwise contact employee to learn and document the status of the employee’s efforts to address and resolve the no-match.

9.Review any document the employee chooses to offer showing resolution of the no-match.

10.Submit any employer or employee corrections to the SSA.

DO NOT:

1.Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.

2.Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.

3.page 346Attempt to immediately re-verify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.

4.Follow different procedures for different classes of employees based on national origin or citizenship status.

5.Require the employee to produce specific I-9 documents to address the no-match.

6.Require the employee to provide a written report of SSA verification.

Another form of enforcement used by the government is to investigate employer’s compliance with the Form I-9 rules. Under federal law, a Form I-9 (Employment Eligibility Verification) must be filed for every new employee regardless of citizenship, and it must be retained for three years after the date of hire or one year after the date of discharge. (See Exhibit 7.3.) Once an employer receives a Notice of Inspection from the Immigration and Customs Enforcement (ICE) Division of the Department of Homeland Security, it has three business days to provide the Form I-9s for all employees working for that employer during the stated audit period.

IRCA also established civil and criminal penalties for hiring undocumented immigrants. Employers are selected at random for compliance inspections under the General Administrative Plan (GAP) developed by the Immigration and Naturalization Services (INS), the administrative agency charged with some elements of oversight of IRCA, along with the Immigration and Customs Enforcement (ICE) Division of the Department of Homeland Security. Generally, fines are not imposed for paperwork violations alone or for employment of immigrants whose documentation status was unknown, unless the employer refused to comply or other egregious factors existed. However, enforcement has been increasing dramatically. In fiscal year 2013, ICE conducted 3,127 Notices of Inspection for I-9 audits (up from 1,444 in 2009); criminally charged 452 employers with immigration violations (up from 114 in 2009); issued 637 Final Orders for $15.8 million in fines (up from $1.03 million in 2009); and debarred 277 individuals and businesses (up from 83 in 2009, and more than the total during the Bush Administration).60

While today’s enforcement strategy has shifted to targeting employers who hire undocumented workers, the EEOC’s 1999 “Enforcement Guidance on Remedies Available to Undocumented Workers,” emphasized that workers’ undocumented status does not justify workplace discrimination. The EEOC also set forth that employers’ liability for monetary remedies irrespective of a worker’s unauthorized status promotes the goal of deterring unlawful discrimination without undermining the purposes of IRCA. (Note that this Guidance statement was pulled by the EEOC, but only because of an unrelated issue relating to back pay under the National Labor Relations Board.) The EEOC’s position on available remedies is that unauthorized workers are entitled to the same remedies as any other worker, including back pay and reinstatement. In fact, the Ninth Circuit Court held in a 2004 ruling that discovery regarding the immigration status of plaintiffs in civil rights cases would be generally prohibited since it would otherwise have a page 347chilling effect on filings and it could result in “countless acts of illegal and reprehensible conduct” being unreported.61 The National Labor Relations Board took a similar position with respect to discrimination based on union activity.

However, in Hoffman Plastic Compounds Inc. v. NLRB,62 the U.S. Supreme Court held that the NLRB could not award back pay to unauthorized workers who had been unlawfully discriminated against for engaging in union-organizing activities. According to the Court, to do so would contravene federal immigration policy embodied in IRCA. Hoffman opens the possibility that back pay will not be available to undocumented workers who have been illegally discriminated against under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).63 The Court offers an extensive review of the pre-Hoffman history and then discusses important implications in Singh v. Jutla & C.D. & R’s Oil, Inc.64

Undocumented workers are particularly vulnerable to threats to report them to the INS. In every case in which the employer asserts that the worker is undocumented and the employer appears to have acquired that information after the worker complained of discrimination, the EEOC will determine whether the information was acquired through a retaliatory investigation. If the investigation is retaliatory, the employer will be liable for equitable relief as well as monetary damages without regard to the worker’s actual work status. However, a worker’s undocumented status may serve as a legitimate reason for an adverse employment action, although employers who knowingly employ undocumented workers could not assert this defense in a discrimination claim.

The Fair Labor Standards Act also protects undocumented workers from abuse. In 2013, several workers, including some undocumented immigrants, sued under the FLSA to recover minimum and overtime wages that the employer refused to pay. In its ruling, the U.S. District Court in New York explained that the text of the FLSA makes it clear that its provisions were “unambiguously” intended to apply to undocumented workers by defining the term “employee” as “any individual employed by the employer.” The court went on to say that the FLSA focuses on back pay as a remedy to ensure that employers do not gain an advantage by violating immigration laws. Thus, under the FLSA, even undocumented immigrants are entitled to the statutory mandated wages for work performed.

While the Supreme Court has ruled that undocumented status bars recovery for future wages,67 in a 2009 case, Bailon v. Seok AM No. 1 Corp., the Court again affirmed that the immigration status of employees is irrelevant to claims filed against an employer under the FLSA with respect to work already performed.

Alternate Basis for National Origin or Citizenship Discrimination: Section 1981

While it is probably the most popular basis for the claim of discrimination based on national origin, Title VII is not the only basis for such a claim. In St. Francis College v. Al-Khazraji,69 the Supreme Court held that 42 U.S.C. § 1981 addressed national page 348origin also. In this case, a professor and U.S. citizen who was born in Iraq sued under section 1981 alleging discrimination when he was denied tenure. The Court held that, though originally designed to prohibit racial discrimination, the law also applied to “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” The requirement for section 1981 actions is that employees show they were discriminated against because of their ethnic group (in this case, Arabic) and not just because of their place of origin or religion. In other words, they must show some nexus between their national origin and the major concern of section 1981, their ethnic characteristics or race.

Since St. Francis College, however, several courts have declined to extend section 1981 to more traditional claims of national origin discrimination. In King v. Township of East Lampeter,70 for instance, plaintiffs sought section 1981 protection on the basis of their “Amish ethnic culture.” The court denied the plaintiffs protection on this basis, distinguishing a New York case that found Orthodox Jews were indeed protected under section 1981. The court in King found that Jews are a distinct race for civil rights purposes but did not find the Amish to be a similarly distinct racial group and, without evidence that they have an independent, separate ethnic identity beyond religious observance, they were not protected under section 1981. Interestingly, the court was persuaded by the contention that one could fail to “practice” Judaism but still be a Jew, while “there is no proof of a similar population of ‘non-practicing’ Amish.”

If projections about the increasing diversity of the U.S. population are anywhere close to accurate, then entry, development, or promotion barriers to diversity of the workplace will likely result in reductions in the business’s effectiveness and productivity. For any business wishing to be on the cutting edge, or simply to effectively use its resources and encourage the best performance from employees, adherence to Title VII’s requirements regarding race and national origin should be viewed as a business imperative and not merely as compliance with the law.

The significance to managers of this protection is that there must be a complete review of all policies that may have an impact on employees or applicants of diverse national origin. As stated above, this impact may not be obvious.

Employers must be cognizant of the varying needs of employees from different backgrounds. For instance, employers may address the perceived problem of bilingual employees in a number of ways, such as offering English-as-a-second-language classes or tutors for semi bilingual employees. Not only would this foster less isolation and exclusion of the employee, but it also would create greater confidence and less intimidation when the employees are speaking English. This type of proactive approach may prevent problems in this area before they emerge.

Management Tips

•While a specific national origin may be a BFOQ, make sure that only individuals of that origin can do the specific job since courts have a high standard for BFOQs in this area.

•An employee may have a claim for national origin discrimination if the worker is simply perceived to be of a certain origin, even if the individual is not, in fact, of that origin.

•While English fluency may be required, you are not allowed to discriminate because of an accent (unless the accent makes it impossible to understand the individual). However, be cautious in evaluating the requirement of the job since there may be positions that do not actually require speaking English.

•An employer may not point to customer, client, or co-worker preference, comfort, or discomfort as the source of BFOQ.

•If you are a federal contractor, remember that you have additional responsibilities to engage in outreach and positive recruitment activities under the Guidelines on Discrimination Because of Religion or National Origin.

•While you are not prohibited from discriminating on the basis of citizenship under Title VII, you may be prohibited from discriminating on this basis under IRCA. Before instituting a policy, consider the implications of both statutes.

•Recognize the concerns of Middle Eastern employees in the post–September 11 era: Include the topic of ethnic diversity in any workplace diversity training. Intervene promptly in incidents of harassment. Remain sensitive and flexible. Refrain from mandatory transfers and other short-term solutions to harassment, intimidation, and discrimination.

Chapter Summary

•Title VII of the Civil Rights Act of 1964, makes it an unlawful employment practice for employers to limit, segregate, or classify employees in any way that would deprive them of employment opportunities based on their national origin.

•An employee or applicant must show the following to be successful in a claim of discrimination based on national origin:

1.The individual was a member of a protected class.

2.The individual was qualified for the position at issue.

3.The employer made an employment decision against the individual.

4.The position was filled by someone not in a protected class.

• “National origin” refers to an individual’s ancestor’s place of origin or physical, cultural, or linguistic characteristics of an origin group.

•An employer has a defense against a national origin discrimination claim if it can show that the national origin is a bona fide occupational qualification. However, in general, this is very difficult to do. An exception to the difficulty is the requirement of English fluency, if speaking English is a substantial portion of the individual’s job.

•No accommodation of a worker’s national origin is required, as it would be in situations involving disability or religion.

•page 350English-only rules applied at all times are presumptively discriminatory, according to the EEOC. If the employer is considering an English-only rule, it is recommended that the employer should

1.Consider whether the rule is necessary.

2.Determine if the rule is a business necessity.

3.Consider if everybody is fluent in English.

4.Communicate the rule to employees.

5.Enforce the rule fairly.

•An alternative basis for national origin or citizenship discrimination is 42 U.S.C. § 1981.

•Guidelines on Discrimination Because of Religion or National Origin are federal guidelines that apply to federal contractors or agencies and impose on those employers an affirmative duty to prevent discrimination.

•The Immigration Reform and Control Act, unlike Title VII, prohibits, in certain circumstances, discrimination on the basis of citizenship. The act does allow for discrimination in favor of U.S. citizens where applicants are equally qualified.

•Two statutorily allowed BFOQs under IRCA are

1.English-language skill requirements that are reasonably necessary.

2.Citizenship requirements specified by law, regulation, executive order, government contracts, or requirements established by the U.S. attorney general.

Chapter-End Questions

1.Which, if any, of the following scenarios would support an employee’s claim of discrimination on the basis of national origin?

a. Applicant with a speech impediment is unable to pronounce the letter “r.” The applicant therefore often has difficulty being understood when speaking and is denied a position.

b. The owner of a manufacturing facility staffed completely by Mexicans refuses employment to a white American manager because the owner is concerned that the Mexicans will only consent to supervision by and receive direction from another Mexican.

c. An Indian restaurant seeks to fill a server position. The advertisement requests applications from qualified individuals of Indian descent to add to the authenticity of the restaurant. In the past, the restaurant found that its business declined when it used Caucasian servers because the atmosphere of the restaurant suffered. An Italian applies for the position and is denied employment.

d. A company advertises for Japanese-trained managers, because the employer has found that they are more likely to remain at the company for an extended time, to be loyal and devoted to the firm, and to react well to direction and criticism. An American applies for the position and is denied employment in favor of an equally qualified Japanese-trained applicant, who happens to also be Japanese.

2. A pipefitter in a Chrysler assembly plant, a Cuban-born Jew, was subjected from his co-workers to hate graffiti on his locker, such as “Heil Hitler,” and other harassment, such page 351as slashed car tires. Can he recover damages for national origin discrimination? Is being Jewish a “national origin” ? Can harassment and other abuse from co-workers rather than from management constitute national origin discrimination? Did the employer act with malice or reckless indifference? [May v. Chrysler Grp., LLC, 716 F.3d 963 (7th Cir. 2013).]

3. In 2006, the management of Delano Regional Medical Center held a mandatory meeting for Filipino-American employees regarding the hospital’s English-only policy, which required employees to speak in English except when speaking to a patient who had other language needs, or during break time. The hospital’s chief executive stated that failure to comply with the policy would result in surveillance cameras being installed to monitor the languages spoken by Filipino workers. Supervisors, staff, and volunteers were asked to report any incidences of noncompliance and would reprimand the Filipino employees. The hospital employed a mix of bilingual employees speaking Spanish, Hindi, Bengali, and other languages, but only Filipinos were required to attend the meeting and non-Filipino staff who routinely spoke languages other than English—such as Spanish—on the job were not disciplined. Is this English-only policy in violation of Title VII or is it acceptable? [U.S. E.E.O.C. v. Cent. California Found. for Health, No. 1:10-CV-01492, 2011 WL 149831 (E.D. Cal. Jan. 18, 2011).]

4. Mamdouh El-Hakem was employed by BJY, Inc., for more than a year. His manager repeatedly called Mamdouh, an Arabic employee, “Manny” or “Hank,” instead of his given name. His manager explained that he believed that Mamdouh would have a better opportunity for success with the firm’s clients with a more Western-sounding name. However, Mamdouh made it clear during his entire time with BJY that he objected to the westernization of his name and requested repeatedly that the manager call him by his rightful moniker. Mamdouh finally sued for national origin discrimination. Does he have a claim? [El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005).]

5. Wali Telwar, a practicing Muslim, applied for extended vacation time, using earned vacation hours, to make a pilgrimage to Mecca as required by his faith. His employer, Southern Hills Medical Center, refused to grant his request for extended leave and instructed him to either work as scheduled or to resign his position and reapply. Telwar resigned and, upon returning from pilgrimage, reapplied to work at Southern Hills. He was not rehired. Does he have a case? [EEOC v. Southern Hills Medical Center, No. 3:07-cv-00976 (M.D. Tenn. consent decree entered April 2009).]

6. A white, non-Latinx meat cutter was fired by his supermarket employer and replaced with a Latinx worker for reasons he believes were racially motivated. Can he sue the company for national origin discrimination? Is it possible to commit national origin discrimination by favoring a Latinx person over a white, non-Latinx person? If so, what would he need to prove to satisfy a prima facie case and then to succeed overall? [EEOC v. West Front Street Foods, LLC d/b/a Compare Foods, No. 5:08-cv-102 (W.D. N.C. 2008).]

7. Maria Cardenas, a Latinx woman, worked for Aramark as a housekeeper at McCormick Place convention center for over 20 years. It was a long-standing rule for employees that they could not remove any items from a trade show for personal use, even if an exhibitor gave them away. Employees found in violation of this rule would be immediately fired. In October 2004, Cardenas and a co-worker, Juanita Williams, were stopped by a security guard who noticed them carrying food items away from a convention that had just ended. Both employees were discharged, but Williams was later reinstated because she was a newer employee and allegedly had been told by Cardenas that it was okay to take the items in question. Cardenas filed a national origin discrimination suit against Aramark. What does Cardenas need to show to prove that her termination was in violation of Title VII, and how might Aramark defend its decision page 352if she states a prima facie case? [Cardenas v. Aramark Facility Servs., Inc., No. 05 C 6462, 2006 WL 1344057 (N.D. Ill. May 11, 2006).]

8. Latinx managers of a Florida-based tomato growing, packing, and distributing company harassed and intimidated Haitian production workers. When the Haitians complained about their treatment, the managers retaliated against them. Do the national origin antidiscrimination laws prohibit national origin discrimination by any group against any other group? Or do the laws require that the discrimination be committed by a group that is considered to represent the majority in that environment against people of color? Could the Haitians recover if their managers had been Haitian? Similarly, would the Latinx have similar liability if the workers involved had been Latinx? [EEOC v. LFC Agricultural, Inc., Six L’s Packing Company, and Custom Pak, Inc., No. 2:09-cv-00636-JES-DNF (M.D. Fl. 2009).]

9. Mohamed Arafi, a naturalized U.S. citizen from Morocco, works as a valet dry cleaner for the Mandarin Oriental Hotel in Washington, D.C. In December 2010, a supervisor allegedly prohibited Arab or Muslim workers from going on floors occupied by a delegation of Israeli diplomats. The supervisor allegedly told Arafi, “You know how the Israelis are with Arabs and Muslims.” Arafi says he complied with his supervisor’s instructions but consequently lost out on tips. He subsequently complained to another supervisor and the hotel’s director of human resources. Arafi says his work hours were cut, and that his colleagues said demeaning things about Muslims to him after the incident became known to them. Arafi brought suit under Title VII, alleging disparate treatment resulting in an adverse employment action (the loss of tips), as well as retaliation. The Mandarin Hotel claimed a national security exemption. Would either of Arafi’s claims be successful? Would the Hotel’s? [Arafi v. Mandarin Oriental, 867 F. Supp. 2d 66 (D.D.C. 2012).]

10. A nursing home instituted an English-only policy for its employees. Latinx employees were disciplined for violating the policy. Is the policy void on its face, or are some English-only policies acceptable under the law? Does the policy’s legality depend on the type of conversation involved (i.e., whether the employee is speaking to customers or speaking to co-employees on a break)? Does the policy’s legality depend on how it is enforced (i.e., Spanish-speaking employees disciplined but those speaking other foreign languages not disciplined)? [EEOC v. Skilled Healthcare Group, Inc., C.D. Cal., settled in 2009; www.eeoc.gov/eeoc/newsroom/release/4-14-09.cfm.]

11. Leon’s Frozen Custard, a locally-owned custard shop in Milwaukee, has an English-only policy that requires employees to speak only English while they are working. This includes when they speak to customers, regardless of the language spoken by the customer. The owner of Leon’s explained to reporters, “any foreign language is going to be a problem. What I’m trying to avoid is when people come up here, they get waited on in a different language because there happens to be an employee who speaks that language.” Is Leon’s policy legal? Is speaking English a BFOQ for his employees? Do you consider Leon’s policy good for business? [“Latinos v. Leon’s: Is the frozen custard stand’s ‘English Only’ policy discriminatory?” Fox 6 (May 18, 2016), http://fox6now.com/2016/05/18/latinos-vs-leons-is-the-frozen-custard-stands-english-only-policy-discriminatory/.]

End Notes

1. See, for example, Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223 (7th Cir. 1995).

2. Brown, A. and R. Stepler, “Statistical Portrait of the Foreign-Born Population in the United States” (April 19, 2016), http://www.pewhispanic.org/2016/04/19/statistical-portrait-of-the-foreign-born-population-in-the-united-states–charts/ (accessed April 10, 2017).

page 353 3. U.S. Census Bureau, “U.S. and World Population Clock,” http://www.census.gov/popclock/ (accessed August 6, 2016).

4. Ibid.

5. The authors have chosen to use the term Latinx as the gender-neutral plural replacement for “Latino(s) and Latina(s).” Previously, the term Latinos was the most often-used term to represent any gender-mixed group of Latin descent. However, that choice represents a male bias that we choose not to perpetuate. For more information and context on this term, please see Logue, J., “Many student groups are changing their names to use ‘Latinx’ instead of ‘Latino’ and ‘Latina,’” Inside Higher Ed (Dec. 8, 2015), https://www.insidehighered.com/news/2015/12/08/students-adopt-gender-nonspecific-term-latinx-be-more-inclusive; Hayley Barrett, S. and O. Nñ, “Latinx: The Ungendering of the Spanish Language,” Latino USA (Jan. 29, 2016), http://latinousa.org/2016/01/29/latinx-ungendering-spanish-language/; Reichard, R., “Why we Say Latinx: Trans and Gender Non-Conforming People Explain,” Latina (Aug. 29. 2015), http://www.latina.com/lifestyle/our-issues/why-we-say-latinx-trans-gender-non-conforming-people-explain (accessed August 11, 2016); and Ramirez, T.L. and Z. Blay, “Why People Are Using The Term ‘Latinx,’” Huffington Post (July 5, 2016), http://www.huffingtonpost.com/entry/why-people-are-using-the-term-latinx_us_57753328e4b0cc0fa136a159 (accessed August 11, 2016); Padilla, Y., “What does ‘Latinx’ mean? A look at the term that’s challenging gender norms,” Complex (April 18, 2016), http://www.complex.com/life/2016/04/latinx/.

6. Bureau of Labor Statistics, U.S. Department of Labor, “Foreign Born Workers: Labor Force Characteristics—2015,” (May 19, 2016), http://www.bls.gov/news.release/forbrn.nr0.htm (accessed August 6, 2016).

7. Ibid.

8. Equal Employment Opportunity Commission, “Charge Statistics: FY 1997 to FY 2015,” https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed August 6, 2016).

9. See, for example, Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973).

10. Challa, J., “Why Being ‘Gypped’ Hurts the Roma More Than It Hurts You,” National Public Radio (December 30, 2013), http://www.npr.org/sections/codeswitch/2013/12/30/242429836/why-being-gypped-hurts-the-roma-more-than-it-hurts-you (accessed August 7, 2016).

11. See, for example, Janko v. Illinois State Toll Highway Authority, 704 F. Supp. 1531, 1532 (N.D. Ill. 1989) (finding that discrimination based on an employee’s status as a Roma constitutes national origin discrimination under Title VII).

12. EEOC, “EEOC Compliance Manual,” December 2, 2002, https://www.eeoc.gov/policy/docs/national-origin.html (accessed August 7, 2016).

13. U.S. Census Bureau, “Selected Social Characteristics in the United States: 2010–2014 American Community Survey 5-Year Estimates,” http://www.census.gov/data/tables/2013/demo/2009-2013-lang-tables.html (accessed August 6, 2016).

14. See Tuschman, Richard, “English-Only Policies in the Workplace: Are They Legal? Are They Smart?” Forbes (November 14, 2012), http://www.forbes.com/sites/richardtuschman/2012/11/15/english-only-policies-in-the-workplace-are-they-legal-are-they-smart/#4dc3541d1802 (accessed August 6, 2016).

15. 487 F.3d 1001 (6th Cir. 2007).

16. 674 F.3d 962, 974 (8th Cir. 2012).

page 35417. See Lauren M. Weinstein, “The Role of Labor Law in Challenging English-Only Policies,” Harvard Civil Rights-Civil Liberties Law Review 47 (2012), pp. 219–279.

18. 113 F. Supp. 2d 1066 (N.D. Tex. 2000).

19. 593 F. Supp. 2d 599 (S.D.N.Y. 2009).

20. 419 F. Supp. 2d 408 (S.D.N.Y. 2005).

21. 497 F.3d 1160 (10th Cir. 2007).

22. 53 F. Supp. 2d 223 (N.D.N.Y. 1999).

23. 86 F.3d 1151 (4th Cir. 1996) (affirm per curium the district court decision).

24. 78 F. Supp. 3d 1351, 1357 (D. Colo. 2015).

25. EEOC, “EEOC Settles English-Only Suit for $2.44 Million against University of Incarnate Word” (April 20, 2001), https://www.eeoc.gov/eeoc/newsroom/release/4-20-01.cfm (accessed August 7, 2016).

26. EEOC, “Delano Regional Medical Center to Pay Nearly $1 Million in EEOC National Origin Discrimination Suit” (September 17, 2012), http://www1.eeoc.gov/eeoc/newsroom/release/9-17-12a.cfm (accessed August 8, 2016).

27. EEOC, “Employment Rights of Immigrants Under Federal Anti-Discrimination Law,” https://www.eeoc.gov/eeoc/publications/immigrants-facts.cfm (accessed August 8, 2016); see also Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993). For the contrary opinion supporting EEOC’s contention, see EEOC v. Premier Operator Services, Inc., 75 F. Supp. 550 (N.D. Tex. 1999), and EEOC v. Synchro-Start, 29 F. Supp. 2d 911 (N.D. Ill. 1999).

28. Gonzalo v. All Island Transportation, No. CV-04-3452 (BMC), 2007 WL 642959, at *7 (E.D.N.Y. Feb. 26, 2007).

29. Garcia v. Spun Steak Co., 998 F.2d at 1489.

30. 433 F.3d 1294 (10th Cir. 2006).

31. See, for example, E.E.O.C. v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000); and EEOC v. Synchro–Start Prods., Inc., 29 F.Supp. 2d 911 (N.D. Ill. 1999).

32. 801 F.3d 72 (2d Cir. 2015).

33. U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997–2015, http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed July 28, 2016).

34. EEOC, “EEOC Compliance Manual” (December 2, 2002), http://www.eeoc.gov/policy/docs/national-origin.html (accessed August 8, 2016).

35. The EEOC based this example on Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126 (4th Cir. 1995) (finding that the Iranian emigrant employed as an engineer at a nuclear power plant established a prima facie case of national origin harassment).

36. 680 F.3d 936 (7th Cir. 2012).

37. Code of Federal Regulations, Tile 41, Part 60-50, available at http://law.justia.com/cfr/title41/41-1.2.3.1.8.html (accessed August 8, 2016).

38. The authors have followed the usage at the time of publication offered by the BBC and NPR, recognizing the qualification that the identification is self-defined and may be considered to reflect expansionist ambitions. Other terms in use include ISIS (“Islamic State of Iraq and Syria”) and ISIL (“Islamic State of Iraq and the Levant,” meaning the whole eastern shore of the Mediterranean Sea). Jensen, E., “Islamic State, ISIS, ISIL or Daesh?” NPR Ombudsman (November 18, 2015), http://www.npr.org/sections/ombudsman/2015/11/18/456507131/islamic-state-isis-isil-or-daesh; Irshaid, F., “Isis, Isil, IS or Daesh? One group, many names,” BBC News (December 2, 2015), http://www.bbc.com/news/world-middle-east-27994277.

page 35539. Sholinsky, S.G. and A. Mahoney, “EEOC Targets Religious and National Origin Discrimination Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern,” Epstein Becker Green Retail Labor and Employment Law Blog (May 24, 2016), http://www.ebglaw.com/news/five-new-challenges-facing-retail-employers-3/#_pref5.

40. Volohk, E., “The EEOC, Religious Accommodation Claims, and Muslims,” The Washington Post (June 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/21/the-eeoc-religious-accommodation-claims-and-muslims/ (accessed August 7, 2016).

41. EEOC, “National Origin-Based Charges Filed from 10/01/2000 thru 09/30/2012,” http://www.eeoc.gov/eeoc/events/9-11-11_natl_origin_charges.cfm (accessed August 8, 2016).

42. Equal Employment Opportunity Commission, “What You Should Know about the EEOC and Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities,” http://www.eeoc.gov/eeoc/newsroom/wysk/religion_national_origin_9-11.cfm.

43. U.S. Department of Justice, “Confronting Discrimination in the Post-9/11 Era: Challenges and Opportunities Ten Years Later, October 19, 2011.” Conviction data at http://www.justice.gov/crt/nordwg.php (accessed August 8, 2016).

44. The New York Times, “The MTA and Fairness” (June 3, 2012), http://www.nytimes.com/2012/06/04/opinion/the-mta-and-fairness.html (accessed August 8, 2016).

45. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).

46. See “CEOs: Human and Humane,” Corporate Counsel (October 19, 2001).

47. Lori Peek, Behind the Backlash: Muslim Americans after 9/11 (New Delhi: Social Science Press, 2012) and (Philadelphia: Temple University Press, 2010).

48. 42 U.S.C.A. § 2000e-2.

49. 435 U.S. 291 (1978).

50. 414 U.S. 86 (1973)

51. https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american

52. Pew Hispanic Center, “Unauthorized Immigrant Population: National and State Trends, 2010” (February 2011), http://www.pewhispanic.org/2011/02/01/unauthorized-immigrant-population-brnational-and-state-trends-2010/ (accessed August 7, 2016).

53. See, e.g., Passel, J., and D. Cohn, “As Mexican share declined, U.S. unauthorized immigrant population fell in 2015 below recession level,” Pew Research (April 25, 2017), http://www.pewresearch.org/fact-tank/2017/04/25/as-mexican-share-declined-u-s-unauthorized-immigrant-population-fell-in-2015-below-recession-level/ (accessed August 20, 2017); Bedard, P. , “Record 61 Million Immigrants in U.S., 15.7 million Illegally,” Washington Examiner (March 7, 2016), http://www.washingtonexaminer.com/record-61-million-immigrants-in-u.s.-15.7-million-illegally/article/2585110 (accessed August 7, 2016); and Markon, J., “U.S. Illegal Immigrant Population Falls below 11 million, Continuing Nearly Decade-Long Decline, Report Says,” The Washington Post (January 20, 2016), https://www.washingtonpost.com/news/federal-eye/wp/2016/01/20/u-s-illegal-immigrant-population-falls-below-11-million-continuing-nearly-decade-long-decline-report-says/(accessed August 7, 2016).

page 35654. Passel, Jeffrey, and D’vera Cohn, “Unauthorized Immigrant Population Stable for Half a Decade,” Pew Research Center (July 22, 2015), http://www.pewresearch.org/fact-tank/2015/07/22/unauthorized-immigrant-population-stable-for-half-a-decade/ (accessed August 7, 2016); and Krogstad, Jens Manuel, and Jeffrey S. Passel, “5 Facts about Illegal Immigration in the U.S.,” Pew Research Forum (November 19, 2015), http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s/ (accessed August 7, 2016).

55. Welsh, Teresa, “Report: Fewer Immigrants Living in the U.S. Illegally,” U.S. News (August 21, 2015), http://www.usnews.com/news/blogs/data-mine/2015/08/21/report-fewer-immigrants-living-in-the-us-illegally (accessed August 7, 2016).

56. 8 C.F.R. § 274a.1(1)(1).

57. Preston, J.,“Revised Rule for Employers That Hire Immigrants,” The New York Times (November 26, 2007), http://www.nytimes.com/2007/11/25/washington/25immig.html (accessed August 7, 2016).

58. Preston, J., “U.S. Set for a Crackdown on Illegal Hiring,” The New York Times (August 8, 2007), http://www.nytimes.com/2007/08/08/washington/08immig.html?_r=0 (accessed August 7, 2016).

59. U.S. DoJ, Office of Special Council for Immigration-Related Unfair Employment Practices, “Name and Social Security Number (SSN) ‘No Matches’ Information for Employers,” https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers (accessed August 7, 2016).

60. Immigration and Customs Enforcement, “Worksite Enforcement” (April 1, 2013), http://www.ice.gov/news/library/factsheets/worksite.htm (accessed August 7, 2016).

61. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004); see also EEOC v. The Restaurant Company, d/b/a Perkins Restaurant & Bakery, 490 F. Supp. 2d 1039 (D. Minn. 2006).

62. 535 U.S. 137 (2002).

63. See Porter, Donna Y., “Undocumented Workers Have NLRA Rights, but Not Monetary Remedies,” Employment Law Strategist (April 2002).

64. 214 F. Supp. 2d 1056 (N.D. Cal. 2002).

65. See “Workforce Online,” CCH (November 1999), citing “Policy Guidance: Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws” (October 26, 1999), Appendix B of sec. 622, vol. II of EEOC Compliance Manual.

66. Colon v. Major Perry St. Corp., 987 F. Supp. 2d 451 (S.D.N.Y. 2013).

67. Hofman Plastics Compounds v. NLRB, 535 U.S. 137, 149 (2002).

68. Bailon v. Seok AM No. 1 Corp., 2009 WL 4884340 (W.D. Wash. 2009).

69. 481 U.S. 604 (1987).

70. 17 F. Supp. 2d 394 (E.D. Pa 1998).

Vega v. Hempstead Union Free Sch. Dist. 801 F.3d 72 (2d Cir. 2015)

Vega, a high school math teacher, alleges that his school district and two principals discriminated against him because of his “Hispanic ethnicity” and that they retaliated against him after he complained of discrimination. The district court found that Vega had not “demonstrated that he suffered an adverse employment action” and therefore he had not “established a prima facie case of discrimination”; and that he had failed, with respect to his claims of retaliation, “to establish an adverse action taken against him” or “a connection between the alleged retaliatory acts and his ethnicity.”

The Second Circuit finds below that: the retaliation claims are actionable under § 1983; and Vega has sufficiently pleaded discrimination and retaliation claims.

CHIN, Circuit Judge

***

1. The Alleged Discrimination

Beginning in 2008, the District took a number of actions that Vega contends were discriminatory:

•Beginning in 2008, Vega was assigned an “increased percentage of students that were Spanish speaking and were not fluent in English,” requiring Vega to do “twice as much work” in preparing and teaching his classes first in English and then in Spanish, without extra compensation.

•When he complained later in 2008, Vega was assigned “a mixture of bilingual classes and English classes, instead of all bilingual,” and he was still not compensated for the extra preparation time.

•Vega was unable to use his regular classroom for his first period class in October 2010 and had to teach in the “excessively noisy” media center without a blackboard.

•Vega was assigned a classroom with a “University of Puerto Rico” banner above the door.

•Vega attempted to enter his students’ grades into the school’s computer system in October 2011, but his password had been deactivated. Vega had to use his non-Hispanic colleague’s password to log into the computer system to enter his grades.

•The District twice attempted to transfer Vega out of the High School: First, on June 24, 2011, Davidson attempted to transfer Vega to the District’s page 360middle school. On July 11, 2011, Vega objected to Davidson’s proposed transfer and told the Assistant Superintendent that he should not be transferred because he had a better percentage of passing students than most of his co-workers. On September 21, 2011, the District rescinded the transfer and Vega continued teaching at the High School. Second, on June 18, 2012, Vega received a letter from the District approving his transfer to the Academy of Math and Sciences—whose principal is Hispanic—even though he had never requested this transfer. Vega was never transferred.

Vega alleges that his non-Hispanic colleagues were not subjected to such actions.

2. The Alleged Retaliation

On August 8, 2011, Vega filed a charge with the Equal Employment Opportunity Commission (the “EEOC”), alleging that the District had discriminated against him based on his ethnicity in violation of Title VII. Vega amended the charge twice, first on January 4, 2012, and then on July 2, 2012, adding further allegations of discrimination.

After Vega filed his initial charge, and, in some instances, the amended charges, Defendants engaged in a number of actions that Vega alleges were retaliatory:

•For the 2011–12 school year, Vega “was assigned classes with students who [were] notoriously excessively absent.” Before 2011, consistently roughly 20% of Vega’s students were excessively absent, but during the 2011–12 school year, that number jumped to 75%. Chronic absence leads to poor student performance, which in turn reflects poorly on a teacher’s performance.

•The District changed the curriculum for one of Vega’s classes in November 2011. The District notified all non-Hispanic teachers of the curriculum change, but it did not notify Vega.

•On March 12, 2012, $738.92 was improperly deducted from Vega’s paycheck for sick time, even though he had leftover sick time in his “sick day bank.” Vega complained to the District’s Business Office, which acknowledged the mistake, and while he was repaid a portion of the deducted amount in September, he was never repaid the full amount that was due to him.

•In February 2013, Vega received his first negative performance review in his sixteen years teaching at the High School. Artiles observed Vega’s classroom performance and gave him 1.4 out of a 4-point maximum in his review. Vega was held to a different evaluation process than his colleagues, and he was the only teacher to receive a negative performance score during the evaluation period.

***

2. Pleading Standards for Discrimination Claims

We turn to the question of what a plaintiff must plead in an employment discrimination case to state a claim upon which relief may be granted.

a. Title VII

In Littlejohn, we held that at the pleadings stage of an employment discrimination case, a plaintiff has a “minimal burden” of alleging facts “suggesting an inference of discriminatory motivation.” While we made clear that Iqbal applies to employment discrimination cases, we also clarified that Iqbal’s plausibility requirement “does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet.” We ruled nonetheless that the facts alleged in the complaint must provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” The question remains what a plaintiff must allege to meet this minimal burden.

The starting point is the statute. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII thus requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.

As to the first element, an employer discriminates against a plaintiff by taking an adverse employment action against him. “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ. “An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft. “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly page 361diminished material responsibilities, or other indices unique to a particular situation.” We have held that the assignment of “a disproportionately heavy workload” can constitute an adverse employment action. Feingold.

As to the second element, an action is “because of” a plaintiff’s race, color, religion, sex, or national origin where it was a “substantial” or “motivating” factor contributing to the employer’s decision to take the action. See Price Waterhouse v. Hopkins. While the Supreme Court has held that a plaintiff alleging age discrimination under the Age Discrimination in Employment Act must allege “that age was the ‘but-for’ cause of the employer’s adverse action,” Gross v. FBL Fin. Servs., Inc., the “motivating factor” standard still applies to discrimination claims based on race, color, religion, sex, or national origin, see Leibowitz v. Cornell Univ. Hence, a plaintiff in a Title VII case need not allege “but-for” causation.

Under Iqbal and Twombly, then, in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.

The question remains as to what “plausibility” means in the context of employment discrimination claims. Several considerations guide the inquiry.

First, as the Supreme Court explained in Iqbal, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” While “detailed factual allegations” are not required, “a formulaic recitation of the elements of a cause of action will not do.” Twombly. At the same time, the court must assume the factual allegations in the complaint to be true, “even if [they are] doubtful in fact,” and a complaint may not be dismissed “based on a judge’s disbelief of a complaint’s factual allegations,” Neitzke v. Williams.

Second, in making the plausibility determination, the court is to “draw on its judicial experience and common sense.” Iqbal. Of course, the court must proceed at all times in a fair and deliberative fashion, alert to any unconscious bias that could affect decision-making. In making the plausibility determination, the court must be mindful of the “elusive” nature of intentional discrimination. See Burdine. As we have recognized, “clever men may easily conceal their motivations.” Robinson v. 12 Lofts Realty, Inc. Because discrimination claims implicate an employer’s usually unstated intent and state of mind, see Meiri v. Dacon, rarely is there “direct, smoking gun, evidence of discrimination,” Richards v. N.Y.C. Bd. of Educ. Instead, plaintiffs usually must rely on “bits and pieces” of information to support an inference of discrimination, i.e., a “mosaic” of intentional discrimination. Gallagher v. Delaney. Again, as we made clear in Littlejohn, at the initial stage of a litigation, the plaintiff’s burden is “minimal”—he need only plausibly allege facts that provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

Finally, courts must remember that “[t]he plausibility standard is not akin to a ‘probability requirement.’” Iqbal. On a motion to dismiss, the question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to an inference of unlawful discrimination, i.e., whether plaintiffs allege enough to “nudge[] their claims across the line from conceivable to plausible.” Twombly.

Accordingly, to defeat a motion to dismiss or a motion for judgment on the pleadings in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision. As we have long recognized, the “‘ultimate issue’ in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an ‘impermissible reason,’ i.e., a discriminatory reason.” Stratton v. Dep’t for the Aging for City of N.Y. A plaintiff can meet that burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination. A plaintiff may prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer’s stated reason for its employment action was pretext to cover-up discrimination, or by otherwise creating a “mosaic” of intentional discrimination by identifying “bits and pieces of evidence” that together give rise to an inference of discrimination, Gallagher. At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

* * * *

3. Application

We conclude that Vega pleaded a plausible discrimination claim under Title VII and § 1983, based on his allegation that the District assigned him classes with higher numbers of Spanish-speaking students and, in doing page 362so, assigned him a disproportionate workload. None of Vega’s other claims plausibly state a claim on their own, but they help create context for his discrimination claim.

Vega has plausibly alleged that his assignment to classes with increased numbers of Spanish-speaking students was an “adverse employment action” taken “because of” his Hispanic ethnicity. First, Vega alleges that he was forced to spend disproportionately more time preparing for his classes and therefore experienced a material increase in his responsibilities without additional compensation. He contends that these assignments required him to do “twice as much work” and that he was assigned class preparations on a basis that exceed “District policy.” App. at 11. We have previously held that the assignment of “an excessive workload” as a result of “discriminatory intent,” Feingold, can be an adverse employment action because it is “more disruptive than a mere inconvenience or an alteration of job responsibilities,” Terry. Vega has thus plausibly alleged an adverse employment action.

Second, Vega has also plausibly alleged that the adverse action was taken “because of” his Hispanic ethnicity, that is, that his Hispanic ethnicity was a motivating factor in the employment decisions. He contends that he was assigned a large percentage of Spanish-speaking students because he is Hispanic and bilingual, while his similarly situated co-workers were not assigned additional work. Vega’s other allegations of discrimination, even if they do not independently constitute adverse employment actions, provide “relevant background evidence” by shedding light on Defendant’s motivation and thus bolster his claim that Defendants treated him differently because of his ethnicity. See Nat’l R.R. Passenger Corp.; Washington v. Davis. For example, the District placed a “University of Puerto Rico” banner outside his classroom and attempted to transfer him to a Hispanic principal’s school. These actions are plausibly connected to Vega’s Hispanic background and therefore provide a contextual basis for inferring discrimination. Vega has thus plausibly alleged that his Hispanic background was a “motivating factor” contributing to his being assigned extra work.

* * * *

The District may contend that Vega was assigned a disproportionate number of Spanish-speaking students solely because of his language ability, and not because of his Hispanic background, but these competing explanations are better evaluated at the summary judgment stage or beyond, and not on a motion for judgment on the pleadings.

Accordingly, the Complaint plausibly pleads under both Title VII and § 1983 that Defendants discriminated against Vega by assigning him, on or after the time-bar dates, to classes that required additional preparation because they had large numbers of Spanish-speaking students.

D. Pleading of Retaliation Claims

Here, Vega alleges that after he engaged in protected activity by filing a charge of discrimination with the EEOC in August 2011, he was assigned more students with excessive absenteeism records (jumping from 20% to 75%), his salary was temporarily reduced, he was not notified that the curriculum for one of his classes was changed, and he received a negative performance evaluation. Each of these allegations plausibly states a claim of retaliation.

First, each of these actions “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” White. The assignment of a substantially higher number of chronically absent students could very well have adversely impacted Vega, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Likewise, the wrongful deduction of $738.92 from his paycheck for sick leave, the failure of the District to correct the error in full, and the failure of the District to correct the error even in part for six months surely could have had an adverse impact on Vega. Similarly, failing to notify Vega of a curriculum change could have adversely affected him by, for example, making him appear unprepared or ineffective both to his students and for his up-coming teacher evaluation, as he would have been preparing for and teaching the wrong curriculum.

Viewed in the context of his other allegations, it was plausible that the District’s *92 failure to notify Vega of the curriculum change was part of their pattern of discrimination and retaliation designed to make Vega look bad. Finally, of course, a poor performance evaluation could very well deter a reasonable worker from complaining.

Second, each of these actions closely followed protected activity by Vega. His assignment of classes “for the 2011/2012 school year,” must have been made shortly before the start of the school year—shortly after he filed his initial charge with the EEOC on August 8, 2011. Similarly, the District changed the curriculum for his class in November of 2011, within three months of his initial filing with the EEOC. The District made the page 363erroneous sick leave deduction from Vega’s pay check on March 2, 2012, just two months after Vega filed an addendum to his EEOC complaint on January 4, 2012, providing greater detail about his previous claims and adding new allegations of discrimination and retaliation. Vega received his poor teacher evaluation (from Artiles) in February 2013, approximately two months after he filed his pro se complaint in the action below, on December 12, 2012. According to Vega, this was his first negative evaluation in sixteen years of teaching at the High School. Hence, the Complaint plausibly alleges a temporal proximity for each of these actions.

Some of these actions, considered individually, might not amount to much. Taken together, however, they plausibly paint a mosaic of retaliation and an intent to punish Vega for complaining of discrimination.

CONCLUSION

We conclude that the district court erred in granting Defendants’ motion for judgment on the pleadings in full and dismissing the Complaint in its entirety. For the reasons stated above, we VACATE and REMAND for further proceedings consistent with this opinion.

Case Questions

1.Who has to prove a company discriminated against an employee? Do you agree with the burden of this obligation?

2.What are the two elements that an employee must show to make a successful Title VII claim? Do you think the “motivating factor” standard is appropriate for discrimination claims based on national origin?

3.Are employers allowed to treat employees who file claims of discrimination differently after the claim has been made? What sort of actions may be construed as retaliation against an employee? How might an employer avoid actions that can be perceived as retaliation?

4.Does the School District have either a bona fide occupational qualification (BFOQ) or a legitimate nondiscriminatory reason (LNDR) for requiring Vega to teach the bilingual classes? Would it matter if Vega were the only teacher in the school with the appropriate language skills to teach these students? Would this case come out differently if three Spanish-speaking white teachers with less tenure than Vega were not required to teach any bilingual classes?

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

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