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Chapter Twenty one Employment Discrimination

Being an employer was so much easier 100 years ago. Managers could use almost any criteria for hiring, promoting, and firing employees. Today, employers’ decision-making powers are restricted by both federal and state laws, many of which are discussed in this chapter.

The right of the employer to terminate an employment relationship was originally governed almost exclusively by the employment-at-will doctrine, discussed in the first section of this chapter. The second section discusses the constitutional provisions that affect an employer’s ability to hire and fire workers.

The following six sections discuss each of the major pieces of federal legislation designed to prohibit discrimination in employment; these acts are discussed in the order of their enactment. The ninth section discusses the increasingly controversial subject of affirmative action. Global dimensions of employment discrimination are discussed in the final section.

Critical Thinking About The Law

You will soon be a businessperson and may be responsible for hiring, promoting, and firing people. When you hold this position, you need to be aware of federal and state laws that prohibit discrimination in employment. Why do you think the government has prohibited discrimination in employment? What ethical norm does the government emphasize by prohibiting discrimination in employment? The government seems to emphasize justice, in the sense that it wants all human beings to be treated equally, regardless of class, race, gender, age, and so on. Reading the following case example and answering the critical thinking questions will sharpen your thinking about laws prohibiting employment discrimination.

Tom, Jonathan, and Bob were hired to work as executive secretaries at a major corporation. The other secretaries for the corporation were surprised that three men were hired, because no man had ever before been hired as a secretary at the corporation. All secretaries were required to type 20 five-page reports each day in addition to completing work for their respective departments. After the male secretaries had been working at the corporation for approximately one month, they received pay raises. None of the female secretaries received raises. When the women asked the manager why the male secretaries had received raises, the manager claimed that the men were performing extra duties and consequently received raises.

1. The manager claimed that the men received raises because they were performing extra duties. Can you identify any potential problems in the manager’s response?

Clue:  What words or phrases are ambiguous in the manager’s response?

2. The female secretaries decided to bring a suit against the corporation. They claimed that they did not receive raises because of their gender. Assume that you are a lawyer and the female secretaries have come to you with their complaint. After talking with the secretaries, you realize that you need some additional information. What additional information might be helpful in this case?

Clue:  The female secretaries claimed that the male secretaries received raises because they are male. Can you think of any alternative reasons why the men might have received raises?

3. You discover only one case regarding equal pay that was decided in your district. In this case, both men and women performed hard labor in a factory, but only men received offers to work during the third shift. Those employees who worked the third shift received an additional $30 per hour. The women in this factory claimed that they were not asked to work the third shift because of their gender. The factory argued that the women who worked at the factory were not physically strong enough to endure the work of the third shift. The court ruled in favor of the women. Do you think that you should use this case as an analogy? Why or why not?

Clue:  How are the two cases similar? How are they different?

The Employment-at-Will Doctrine

In all industrial democracies except the United States, workers are protected by law from unjust termination. The traditional “American rule” of employment—the 

employment-at-will doctrine

—has been that a contract of employment for an indeterminate term is terminable at will by either party. Thus, an employee who did not have a contract for a specific length of time could be terminated at any time, without notice, for any reason. For example, Melissa Nelson, a dental assistant, was fired from her job because her employer found Ms. Nelson “irresistible” and feared he might try to have an extramarital affair with her.

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Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 66 (Iowa 2013).

employment-at-will doctrine

A contract of employment for an indeterminate term is terminable at will by either the employer or the employee; the traditional American rule governing employer–employee relations.

This doctrine has been justified by the right of the employer to control its property and on the grounds that it is fair because both employer and employee have the equal right to terminate the relationship. Some question the latter justification because the employer usually can replace a terminated employee, whereas it is not equally easy for the employee to find a new job. Thus, the employment-at-will doctrine places the employer in a position to treat employees arbitrarily.

The doctrine has been slowly restricted by state and federal legislation, as well as by changes in the common law. One of the first laws to restrict the employer’s right to freely terminate employees was the National Labor Relations Act (discussed in 

Chapter 20

), which has reduced the number of employees covered by the employment-at-will doctrine. This reduction has occurred because the act gives employees the right to enter into collective bargaining agreements, which usually restrict the employer’s ability to terminate employees except for “just cause.” Employees covered by these agreements are thus no longer “at-will” employees.

The doctrine has also been restricted by common-law and state statutory exceptions, which fall into three categories: implied contract, violations of public policy, and implied covenant of good faith and fair dealing. In some states, the courts find that an implied contract may arise from statements made by the employer in advertising the position or including them in an employment manual. For example, sometimes a company provides an employment manual delineating the grounds for termination but not containing any provision for termination “at will.” Under such circumstances, if the court finds that the employee reasonably relied on the manual, the court will not apply the employment-at-will doctrine and will allow termination only for the reasons stated in the manual. Thirty-seven states and the District of Columbia recognize this exception.

The 

public policy exception

 prohibits terminations that contravene established public policy. “Public policy” varies from state to state, but some of the terminations commonly deemed unlawful include dismissals based on actions “in the public interest,” such as participation in environmental or consumer protection activities, and dismissals resulting from whistleblowing. Many states have also cut away at the employment-at-will doctrine with laws that specifically prohibit the termination of employees in retaliation for such diverse activities as serving jury duty, performing military service, filing for or testifying at hearings for workers’ compensation claims, whistleblowing, and refusing to take lie- detector tests. A total of 43 states accept the public policy exception.

public policy exception

An exception to the employment-at-will doctrine that makes it unlawful to dismiss an employee for taking certain actions in the public interest.

Eleven states recognize the 

implied covenant of good faith and fair dealing exception

. This theory holds that every employment contract, even an unwritten one, contains an implicit understanding that the parties will deal fairly with one another. Because there is no clear agreement on what constitutes “fair treatment” of an employee, this theory is not often used.

implied covenant of good faith and fair dealing exception

An exception to the employment-at-will doctrine, based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other.

Many federal laws also restrict the employment-at-will doctrine. Employees cannot be fired for filing a complaint, testifying, or causing a hearing to be instituted regarding the payment of the minimum wage, equal pay, or overtime. Pursuit of a discrimination claim is likewise statutorily protected.

The doctrine of employment-at-will, however, still exists and is strongly adhered to in many states. So although the doctrine is being cut back and business managers of the future therefore cannot rely on its continued availability, it may be a long time before the doctrine is no longer applicable. As its applicability varies from state to state, however, familiarity with the parameters of the doctrine in one’s own state is extremely important. 

Table 21-1

 breaks down which states accept each of the three major exceptions.

Table 21-1 Exceptions to THE Employment-at-will Doctrine

Public Policy Exception

Implied Contract Exception

Good Faith and Fair Dealing Exception

Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming

Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah, Wyoming

Table 21-2 Federal Statutes Prohibiting Discrimination in Employment

Law

Prohibited Conduct

Remedies

Civil Rights Acts of 1866 and 1871, codified as 42 U.S.C. §§ 1981 and 1982

Discrimination on the basis of race and ethnicity

Compensatory damages, including several years of back pay, punitive damages, attorney’s fees, court costs, and court orders

Equal Pay Act of 1963

Wage discrimination on the basis of sex

Back pay, liquidated damages equivalent to back pay (if defendant was not acting in good faith), attorney’s fees, and court costs

Civil Rights Acts of 1964 (Title VII) and 1991

Discrimination in terms and conditions of employment on the basis of race, color, religion, sex, or national origin

Back pay for up to two years; remedial seniority; compensatory damages; punitive damages (may be limited due to class); attorney’s fees, court costs; and court orders for whatever actions are appropriate including reinstatement and affirmative action

Age Discrimination in Employment Act of 1969

Discrimination in terms and conditions of employment on the basis of age when the affected individual is age 40 or older

Back pay, liquidated damages equal to back pay (if defendant acted willfully), attorney’s fees, court costs, and appropriate court orders including reinstatement

Rehabilitation Act of 1973

Discrimination by government or governmental contractor on the basis of a handicap

Back pay, attorney’s fees, court costs, and court orders for appropriate affirmative action

Americans with Disabilities Act of 1991

Discrimination in employment on the basis of a disability

Hiring, promotion, reinstatement, back pay, reasonable accommodation, compensatory damages, and punitive damages

Constitutional Provisions

The beginnings of antidiscrimination law can be traced back to three constitutional provisions: the Fifth Amendment, which states that no person may be deprived of life, liberty, or property without due process of law; the Thirteenth Amendment, which abolished slavery; and the Fourteenth Amendment, which granted former slaves all the rights and privileges of citizenship and guaranteed the equal protection of the law to all persons. These provisions alone, however, were not sufficient to prohibit the unequal treatment of citizens on the basis of their race, sex, age, religion, and national origin. Congress needed to enact major legislation to bring about a reduction in discrimination. These laws, referred to as civil rights laws and antidiscrimination laws, are summarized in 

Table 21-2

 and discussed in detail in the following sections.

The first major civil rights act was passed immediately after the Civil War: the 

Civil Rights Act of 1866

 (42 U.S.C. Section 1981). This act was designed to effectuate the Thirteenth Amendment and guarantees that all persons in the United States have the same right to make and enforce contracts and have full and equal benefit of the law. The 

Civil Rights Act of 1871

 (42 U.S.C. Section 1982) prohibited discrimination by state and local governments. Initially used only when there was state action, today these acts are also used against purely private discrimination, especially in employment.

Civil Rights Act of 1866

Statute guaranteeing that all persons in the United States have the same right to make and enforce contracts and have the full and equal benefit of the law.

Civil Rights Act of 1871

Statute that prohibits discrimination by state and local governments.

The Civil Rights Acts of 1866 and 1871

Applicability of The Act

s

Initially, the civil rights acts were interpreted very narrowly to prohibit discrimination based only on race. For several years, circuit courts of appeals were split as to how race is defined. In June 1986, the U.S. Supreme Court resolved that issue by holding that both an Arabic and Jewish individual were protected by the Civil Rights Act of 1866. Justice White, writing the majority opinion in Saint Francis College et al. v. Majid Ghaidan Al-Khazraji,

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 said that it was clear from the legislative history that the act was intended to protect from discrimination “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics, even if those individuals would be considered part of the Caucasian race today.” Thus, today these laws have a broader application.

483 U.S. 1011 (1987). The accompanying case, filed by a Jewish plaintiff, was Shaare Tefila Congregation et al. v. John William Cobb et al., 481 U.S. 615 (1987).

Remedies

The acts themselves do not have specific provisions for remedies. A wide variety of both legal remedies (money damages) and equitable remedies (court orders) have been awarded under these statutes. The courts are free under these acts to award compensatory damages, that is, damages designed to make the plaintiff “whole” again, which may amount to several years of back pay. The courts may also award punitive damages, an amount intended to penalize the defendant for wrongful conduct. Finally, the courts may require the defendant to pay the plaintiff’s attorney’s fees.

Procedural Limitation

Unlike most antidiscrimination laws, the Civil Rights Acts of 1866 and 1871 do not require the plaintiff to first attempt to resolve the discrimination problem through administrative procedures. The plaintiff simply files the action in federal district court within the time limit prescribed by the state statute of limitations, requesting a jury trial if one is desired. Often, a claim under the 1866 or 1871 Civil Rights Act will be added to a claim under another antidiscrimination statute.

The Equal Pay Act of 1963

The next major piece of federal legislation to address the problem of discrimination was the 

Equal Pay Act of 1963

, an amendment to the Fair Labor Standards Act. Enacted at a time when the average wages of women were less than 60 percent of those of men, the act was designed with a very narrow focus: to prevent wage discrimination based on sex within a business establishment. It was designed primarily to remedy the situations in which women, working alongside men or replacing men, were being paid lower wages for doing substantially the same job.

Equal Pay Act of 1963

Statute that prohibits wage discrimination based on sex.

As stated in 29 U.S.C. Section 206(d)(1), the act prohibits any employer from discriminating within any “establishment”

between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) differential based on any factor other than sex.*

In the typical Equal Pay Act case, the burden of proof is initially on the plaintiff to show that the defendant-employer pays unequal wages to men and women for doing equal work at the same establishment. Two questions necessarily arise: What is equal work? What is an establishment?

Equal Work

The courts have interpreted equal to mean substantially the same in terms of all four factors listed in the act: skill, effort, responsibility, and working conditions. If the employer varies the actual job duties affecting any one of those factors, there is no violation of the act. For example, if jobs are equal in skill and working conditions but one requires greater effort whereas the other requires greater responsibility, the jobs are not equal. Obviously, a sophisticated employer could easily vary at least one duty and then pay men and women different wages or salaries.

Skill is defined as experience, education, training, and ability required to do the job. Effort refers to physical or mental exertion needed for performance of the job. Responsibility is measured by the economic and social consequences that would result from a failure of the employee to perform the job duties in question. Similar working conditions refers to the safety hazards, physical surroundings, and hours of employment. An employer, however, is entitled to pay a shift premium to employees working different shifts, as long as the employer does not use sex as a basis for determining who is entitled to work the higher-paying shifts.

Extra Duties

Sometimes, employers try to justify pay inequities on the grounds that employees of one sex are given extra duties that justify their extra pay. The courts scrutinize these duties very closely. The duties are sufficient to preclude a finding of equal work only if:

1. the duties are actually performed by those receiving the extra pay;

2. the duties regularly constitute a significant portion of the employee’s job;

3. the duties are substantial, as opposed to inconsequential;

4. additional duties of a comparable nature are not imposed on workers of the opposite sex; and

5. the extra duties are commensurate with the pay differential.

In some jurisdictions, the additional duties must also be available on a nondiscriminatory basis.

Establishments

One business location is obviously an establishment, but if an employer has several locations, they may all be considered part of the same establishment on the basis of an analysis of the company’s labor relations policy. The greater the degree of centralized authority for hiring, firing, wage setting, and other human resource matters, the more likely the courts are to find multiple locations to be a single establishment. The more freedom each facility has to determine its own human resource policies, the more likely the court will find it to be independent of other facilities.

Defenses

Once an employee establishes that an employer is paying different wages to employees of different sexes doing substantially equal work, there are certain defenses the employer can raise. These are, in essence, legal justifications for paying unequal wages to men and women.

The first defense that an employer may use is that the pay differential is based on one of the four statutory exceptions found in the Bennett Amendment to the Equal Pay Act. If the wage differential is based on one of these four factors, the differential is justified and the employer is not in violation of the act. The four factors are:

1. A bona fide seniority system

2. A bona fide merit system

3. A pay system based on quality or quantity of output

4. Factors other than sex

The first three factors are fairly straightforward. Seniority-, merit-, and productivity-based wage systems must be enacted in good faith and must be applied to both men and women. As minimal evidence of good faith, any such system should be written down.

The fourth factor presents greater problems. Circumstances such as greater availability of females and their willingness to work for lower wages do not constitute “factors other than sex.”

One frequently litigated factor is training programs. A training program that requires trainees to rotate through jobs that are normally paid lower wages will be upheld as long as it is a bona fide training program and not a sham for paying members of one sex higher wages for doing the same job. The court will look at each case individually, but factors that would lead to a training program’s being found bona fide include a written description of the training program that is available to employees, nondiscriminatory access to the program for members of both sexes, and demonstrated awareness of the availability of the program by employees of both sexes.

Remedies

An employer found to have violated the act cannot remedy the violation by reducing the higher-paid workers’ wages or by transferring those of one sex to another job so that they are no longer doing equal work.

A person who has been subjected to an Equal Pay Act violation may bring a private action under Section 16(b) of the act and recover back pay in the amount of the differential paid to members of the opposite sex. If the employer did not act in good faith in paying the discriminatory wage rates, the court will also award the plaintiff damages in an additional amount equal to the back pay. A successful plaintiff is also entitled to attorney’s fees.

The Civil Rights Act of 1964, as Amended (Title VII), and the Civil Rights Act of 1991

The year after it passed the Equal Pay Act, Congress passed the Civil Rights Act of 1964. Title VII of this act is the most common basis for lawsuits premised on discrimination, because it covers a broader area of potential claimants than does either of the statutes that were discussed previously. 

Title VII

 prohibits employers from (1) hiring, firing, or otherwise discriminating in terms and conditions of employment and (2) segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin. These five categories are known as protected classes.

Title VII

Statute that prohibits discrimination in hiring, firing, or other terms and conditions of employment on the basis of race, color, religion, sex, or national origin.

Today’s business manager must be familiar with Title VII, because the number of claims filed under the act is significant. According to the Equal Employment Opportunity Commission (EEOC), the total number of charges filed in 2014 was 88,778.

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 That number is lower than the 93,727 claims filed in 2013, making 2014 the fourth year in a row that the total number of claims filed has declined.

EEOC, Charge Statistics FY 1997 through 2014. Available at www.eeoc.gov/eeoc/statistics /enforcement/charges.cfm.

Applicability of The Act

Employers covered by Title VII include only those who have 15 or more employees, that year or last, for 20 consecutive weeks and are engaged in a business that affects interstate commerce. In 1994, the term employer was broadened to include the U.S. government, corporations owned by the government, and agencies of the District of Columbia. The act also covers Indian tribes, private clubs, unions, and employment agencies.

In addition to prohibiting discrimination by covered employers, unions, and employment agencies, the act also imposes recordkeeping and reporting requirements on these parties. Covered parties must maintain all records regarding employment opportunities for at least six months. Such records include job applications, notices for job openings, and records of layoffs. If an employment discrimination charge is filed against an employer, such records must be kept until the case is concluded. EEO-1 forms (forms containing information concerning the number of minorities in various job classifications) must be filed annually with the EEOC by employers of more than 100 workers. A copy of this form is shown in 

Exhibit 21-1

. Finally, each covered employer must display a summary of the relevant portions of Title VII where the employees can see it. The notice must be printed in a language that the employees can read.

Proof in Employment Discrimination Cases

The burden of proof in a discrimination case is initially on the plaintiff. He or she attempts to establish discrimination in one of three ways: (1) disparate treatment, (2) disparate impact, or (3) harassment.

Disparate Treatment

Disparate treatment

 occurs when one individual is treated less favorably than another because of color, race, religion, sex, or national origin. The key in such cases is proving the employer’s unlawful discriminatory motive. This process is referred to as building a prima facie case.

disparate treatment

Occurs when the employer treats one employee less favorably than another because of that employee’s color, race, religion, sex, or national origin.

The plaintiff must establish the following set of facts: (1) The plaintiff is within one of the protected classes, (2) he or she applied for a job for which the employer was seeking applicants for hire or promotion, (3) the plaintiff possessed the minimum qualifications to perform that job, (4) the plaintiff was denied the job or promotion, and (5) the employer continued to look for someone to fill the position.

Once the plaintiff establishes these facts, the burden shifts to the defendant to articulate legitimate and nondiscriminatory business reasons for rejecting the plaintiff. Such reasons for a failure to promote, for instance, might include a poor work record or excessive absenteeism. If the employer meets this burden, the plaintiff must then demonstrate that the reasons the defendant offered were just a pretext for a real discriminatory motive. In other words, the alleged reason was not the real reason; it was just put forth because it sounded good. One way in which the plaintiff can demonstrate pretext is by showing that the criteria used to reject the plaintiff were not applied to others in the same situation. Introducing past discriminatory policies would also be relevant, as would statistics showing a general practice of discrimination by the defendant. At the pretext stage, the issue of proving an employer’s intent to discriminate appears first and is usually the key to the plaintiff’s winning or losing the case. 

Exhibit 21-2

 shows how the burden of proof shifts in a disparate treatment case.

Disparate Impact

As complex as disparate treatment cases are, disparate impact cases are even more difficult to establish. 

Disparate impact

 cases arise when a plaintiff attempts to establish that an employer’s facially neutral employment policy or practice has a discriminatory effect or impact on a protected class. In other words, a requirement of the policy or practice applies to everyone equally, but in application, it disproportionately limits employment opportunities for a particular protected class.

Exhibit 21-1 EEO-1 Form

Source: United States Department of Labour

Exhibit 21-2 The Shifting Burden of Proof in a Disparate Treatment Case

disparate impact

Occurs when the employer’s facially neutral policy or practice has a discriminatory effect on employees who belong to a protected class.

To establish a case of discrimination based on disparate impact, the plaintiff must first establish statistically that the rule disproportionately restricts employment opportunities for a protected class. The burden of proof then shifts to the defendant to demonstrate that the practice or policy is a business necessity. The plaintiff, at this point, can still recover by proving that the “necessity” was promulgated as a pretext for discrimination.

The first two steps for proving a prima facie case of disparate impact were laid out in Griggs v. Duke Power Co.

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 In that case, the employer-defendant required all applicants to have a high school diploma and a successful score on a professionally recognized intelligence test for all jobs except that of laborer. By establishing these criteria, the employer proposed to upgrade the quality of its workforce.

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 401 U.S. 424 (1971).

The plaintiff demonstrated the discriminatory impact by showing that 34 percent of the white males in the state had high school diplomas whereas only 12 percent of the black males did and by introducing evidence from an EEOC study showing that 58 percent of the whites compared with 6 percent of the blacks had passed tests similar to the one given by the defendant. The defendant could show no business-related justification for either employment policy, so the plaintiff was successful. Not all employees of Duke Power needed to be smart or have high school diplomas. After all, when does a student in high school learn how to install power lines or repair company vehicles? A high IQ or a high school or college diploma may be necessary for some jobs, but not for all jobs at Duke Power.

Harassment

The third way to prove discrimination is to demonstrate harassment. Harassment is a relatively new basis for a discrimination claim; it first developed in the context of discrimination based on sex and then evolved to become applicable to other protected classes.

The definition of 

sexual harassment

 stated in the EEOC Guidelines and accepted by the U.S. Supreme Court is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that implicitly or explicitly make submission a term or condition of employment, make employment decisions related to the individual dependent on submission to or rejection of such conduct, or have the purpose or effect of creating an intimidating, hostile, or offensive environment.

sexual harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly make submission a term or condition of employment or creates an intimidating, hostile, or offensive environment.

The courts have recognized two distinct forms of sexual harassment. The first, quid pro quo, occurs when a supervisor makes sexual demands on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment. The basis for this rule is that similar demands would not be made by the supervisor on someone of the same sex.

The second form of sexual harassment involves the creation of a hostile environment. Case 21-1 demonstrates the standards used by the U.S. Supreme Court to determine whether an employer’s conduct has indeed created a hostile work environment.

 Case 21-1 Teresa Harris v. Forklift Systems, Inc.

United States Supreme Court 510 U.S. 17 (1994)

Plaintiff Harris was a manager for Defendant Forklift Systems, Inc. During her tenure at Forklift Systems, Plaintiff Harris was repeatedly insulted by the defendant’s president and, because of her gender, subjected to sexual innuendos. Numerous times in front of others, the president told Harris, “You’re just a woman. What do you know?” He sometimes asked Harris and other female employees to remove coins from his pockets and made suggestive comments about their clothes. He suggested to Harris in front of others that they negotiate her salary at the Holiday Inn. When Harris complained, he said he would stop, but he did not; so she quit and filed an action against the defendant for creating an abusive work environment based on her sex.

The district court found in favor of the defendant, holding that some of the comments were offensive to the reasonable woman but were not so serious as to affect Harris’s psychological well-being severely or to interfere with her work performance. The court of appeals affirmed. Plaintiff Harris appealed to the U.S. Supreme Court.

Justice O’Connor

In this case we consider the definition of a discriminatorily “abusive work environment” (a “hostile work environment”) under Title VII.

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . 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.” . . . [T]his language “is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an ‘epithet which engenders offensive feelings in a employee,’ does not sufficiently affect conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive”—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well- being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,” merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.

We therefore believe the District Court erred in relying on whether the conduct “seriously affected plaintiff’s psychological well-being” or led her to “suffer injury.” Such an inquiry may needlessly focus the fact-finder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.

This is not, and by its nature cannot be, a mathematically precise test. But we can say that whether an environment is “hostile” or “abusive” can be determined only 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. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.*

Reversed and remanded in favor of Plaintiff, Harris.

Critical Thinking About The Law

As was previously touched upon, the judiciary most often operates in relationship to shades of gray and not to the black and white between which those shades lie. The Court’s decision in Case 21-1, in large part dependent on its determination of a definition, illustrates this point.

The Court’s primary test was to decide what constitutes an “abusive work environment,” the second type of sexual harassment actionable under Title VII. Deciding on such a definition is not as easy as going to a legal dictionary and looking up “abusive work environment.” The Court had to interpret the meaning of such an environment, and important to this interpretation were legal precedent, ambiguity, and primary ethical norms.

Hence, the questions that follow will aid in thinking critically about these factors influential in the Court’s interpretation.

1. What ambiguous language did the Court leave in Case 21-1?

Clue:  To find this answer, look at the Court’s definition of an “objectively hostile work environment.” As always, remember that ambiguities are most often adjectives.

2. In her discussion of the precedent, Justice O’Connor made it clear that the district court misinterpreted the decision in rendering its decision. Contrary to the district court’s decision, the existence of which key fact was not necessary for the Court to find the defendant guilty of sexual harassment?

Clue:  Revisit the paragraph discussing the district court’s dismissal of Harris’s claim. On what basis was this dismissal made? This is the key fact the existence of which the Supreme Court found unnecessary for judgment in favor of the plaintiff.

Since Meritor, conflicting lower-court decisions have created confusion in the area of sexual harassment. It appeared that in a quid pro quo case, a company was liable regardless of its knowledge, but in a hostile environment case, a company could not be held liable without direct knowledge of the situation. Another question was whether there could be recovery when only empty threats were made.

For example, in Jones v. Clinton,

5

 the district court judge threw out Jones’s sexual harassment case against the president because Jones had no clear and tangible job detriment (necessary to establish a quid pro quo case), and she was not subject to a hostile environment when the totality of the circumstances was viewed. Even if the allegations were true, the contacts did not constitute “the kind of pervasive, intimidating, abusive conduct”

6

 necessary for a hostile environment.

No. LR-C-94-290 (E.D. Ark. 1998).

Id.

The U.S. Supreme Court attempted to clarify these issues in Ellerth v. Burlington.

7

 Ellerth was subjected to a litany of dirty jokes and sexual innuendos from her boss. He propositioned her and threatened to make her life miserable if she refused him. She refused him without reprisals and was even promoted. She did not complain about harassment but quit after a year because she could not stand the threats and innuendos.

118 S. Ct. 2275 (1998).

In a decision that offered something to both plaintiffs and defendants, the high court ruled that

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 [by showing that] (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action.

8 *

Id.

The Court then remanded the case to the lower court for a new trial.

Under limited circumstances, employers may be held liable for harassment of their employees by nonemployees: If an employer knows that a customer is harassing an employee but does nothing to remedy the situation, the employer may be liable. For example, in Lockhard v. Pizza Hut Inc.,

9

 the franchise was held liable when the company failed to take any steps to stop the harassment of a waitress by two male customers.

162 F.3d 1062 (10th Cir. 1998).

Same-Sex Harassment

Initially, same-sex harassment did not constitute sexual harassment. In the first appellate case on this issue, a male employee sued his employer for sexual harassment, alleging that on several occasions, his male supervisor had approached him from behind and grabbed his crotch.

10

 The court of appeals affirmed the trial court’s dismissal of the claim on the grounds that no prima facie case had been established. The court said that Title VII addressed gender discrimination, and harassment by a male supervisor of a male employee did not constitute sexual harassment, regardless of the sexual overtones of the harassment.

10 

Garcia v. Elf Atochem, 28 F.3d 466 (5th Cir. 1994).

However, the circuit courts soon became split on whether one could be sexually harassed by a person of the same sex. The U.S. Supreme Court finally rendered a definitive answer to that issue in the case of Joseph Oncale v. Sundowner Offshore Services,

11

 with its holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant are of the same sex.”

12

 As long as the discrimination was because of the victim’s sex, it was actionable.

11
 118 S. Ct. 998 (1998).

12 

Id.

Hostile Environment Extended

Hostile environment cases have also been used in cases of discrimination based on religion, race, and even age.

13

 For example, in one case,

14

 Hispanic and black corrections workers demonstrated that a hostile work environment existed by proving that they had been subjected to continuing verbal abuse and racial harassment by coworkers and that the county sheriff’s department had done nothing to prevent the abuse. The white employees had continually used racial epithets and posted racially offensive materials on bulletin boards, such as a picture of a black man with a noose around his neck, cartoons favorably portraying the Ku Klux Klan, and a “black officers’ study guide” consisting of children’s puzzles. White officers once dressed a Hispanic inmate in a straw hat, sheet, and sign that said “spic.” Such activities were found by the court to constitute a hostile work environment.

13 

Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996).

14 

Snell v. Suffolk County, 782 F.2d 1094 (1986).

A New Limitation on the Employer’s Liability

As explained previously, to win a lawsuit for harassment by customers, the employee must show that the employer knew of the harassment and did nothing to stop it. Similarly, if the harassment is by a coworker, the employee must show that the employer is negligent in responding to complaints about harassment. But to win a lawsuit for harassment by a supervisor, the employer does not have to be negligent because Title VII imputes the supervisor’s acts to the employer. In 2013, in the following case, the U.S. Supreme Court made it more difficult for plaintiffs to win harassment cases by limiting the definition of who can be considered a supervisor. Like so many other cases, this one was a 5–4 decision.

 Case 21-2 Vance v. Ball State University

United States Supreme Court 133 S. Ct. 2423 (2013)

Maetta Vance claimed that Saundra Davis, a catering specialist, had made Vance’s life at work contentious through physical acts and racial harassment. Vance sued her employer, Ball State University, for workplace harassment by a supervisor. Vance argued that Davis was a supervisor, whereas Ball State claimed that Davis was not actually Vance’s supervisor. The District Court and Court of Appeals for the 7th Circuit determined that Davis was not Vance’s supervisor because Davis did not have the power to direct the terms and conditions of Vance’s employment and granted summary judgment to Ball State. The 7th Circuit agreed that Davis was not a supervisor and, therefore, the university could not be held vicariously liable. Vance appealed to the U.S. Supreme Court.

Justice Alito

In this case, we decide . . . who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. . . . Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker . . .

. . . For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’s duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. . . . We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”*

Affirmed, in favor of Defendant Ball State University.

Retaliation

In addition to protecting an employee from discrimination, Title VII also makes it unlawful for an employer to retaliate against an employee who has reported or otherwise complained about discrimination under the act. To prove a prima facie retaliation claim against an employer, the employee must show three things:

1. The employee engaged in a protected activity under the act, such as complaining of, participating in an investigation of, or filing a formal charge about perceived discrimination under Title VII or refusing to participate in conduct the employee reasonably believed was unlawful under Title VII.

2. The employee was fired, demoted, or suffered some other adverse employment action.

3. The employee’s protected activity was the cause of or the determining factor for the adverse employment action.

Until the U.S. Supreme Court decided the case of University of Texas Southwestern Medical Center v. Nassar,

15

 the third factor was easier to prove because the protected activity could be simply a motivating factor in the decision, which is the standard for a discrimination case. But in this recent case, the court tightened the standard from a motivating factor to “the determinative factor.” In this 5–4 decision, Justice Kennedy said that it was important to have the proper causation standard in retaliation cases because the number of such cases filed with the EEOC had nearly doubled in the last 15 years, rising to more than 31,000 in 2012. During fiscal year 2014, that number had risen to 37,955.

16

15 

133 S. Ct. 2517 (2013).

16 

U.S. Equal Employment Opportunity Commission, EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data, February 4, 2015. Available at www1.eeoc.gov/eeoc/newsroom/release /2-4-15.cfm.

In 2015, the 4th Circuit Court of Appeals handed down a decision that some corporate counsel fear will increase the number of retaliation cases even more because it will expand the number of situations wherein a retaliation case will make it to the jury.

 Case 21-3 Reya C. Boyer-Liberto v. Fontainbleu Corporation

United States Court of Appeals for the 4th Circuit 2015 U.S. App. LEXIS 7557 (2015)

Reya C. Boyer-Liberto, an African American woman, sued her former employer for racial discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She based her racial discrimination claim on a hostile work environment allegedly created by two conversations she had with a coworker about an incident that occurred on September 14, 2010. During the conversations, which took place on two consecutive days, the coworker twice called Liberto a “porch monkey.” And she grounds her retaliation claim on the termination of her employment after she complained about the statements.

The district court granted the defendants’ motion for summary judgment, concluding that the conduct was too isolated to support either of Liberto’s claims. Liberto appealed. In a 2–1 decision, a panel of the 4th Circuit affirmed the lower court’s decision, but its decision was vacated by the 4th Circuit’s granting Liberto a rehearing en banc.

Circuit Judge King

. . . [W]e now vacate the judgment of the district court and remand for further proceedings on Liberto’s claims. In so doing, we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Raton . . . that an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone . . .

. . . The district court then invoked Jordan for the proposition that an “isolated racist comment” is “a far cry from . . . an environment of crude and racist conditions so severe or pervasive that they alter[] the conditions of [plaintiff’s] employment.” . . . In concomitantly rejecting Liberto’s retaliation claims, the court again looked to Jordan and ruled that “no objectively reasonable person could have believed that the [plaintiff’s work environment] was, or was soon going to be, infected by severe or pervasive racist, threatening, or humiliating harassment.”

The panel decision was unanimous that the defendants were properly awarded summary judgment on Liberto’s hostile work environment claims, in that Clubb’s “use of [the term ‘porch monkey’] twice in a period of two days in discussions about a single incident, was not, as a matter of law, so severe or pervasive as to change the terms and conditions of Liberto’s employment.” The panel observed that Liberto had “not pointed to any Fourth Circuit case, nor could she, finding the presence of a hostile work environment based on a single incident.” . . .

The panel was split, however, with respect to Liberto’s retaliation claims. The opinion of the panel majority validated the district court’s summary judgment award on those claims, explaining that, “if no objectively reasonable juror could have found the presence of a hostile work environment . . . it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.” Although the panel majority allowed that an “employee’s opposition may be protected before the hostile environment has fully taken form,” the majority faulted Liberto for failing to “present any indicators that the situation at the Clarion would have ripened into a hostile work environment.”

In thus vacating the summary judgment award on Liberto’s hostile work environment claims, we identify this as the type of case contemplated in Faragher where the harassment, though perhaps “isolated,” can properly be deemed to be “extremely serious.” We reject, however, any notion that our prior decisions . . . were meant to require more than a single incident of harassment in every viable hostile work environment case.

. . . Turning to Liberto’s retaliation claims, Title VII proscribes discrimination against an employee because, in relevant part, she “has opposed any practice made an unlawful employment practice by this subchapter.” Employees engage in protected oppositional activity when they “complain to their superiors about suspected violations of Title VII.” . . . To establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove “(1) that she engaged in a protected activity,” as well as “(2) that her employer took an adverse employment action against her,” and “(3) that there was a causal link between the two events.”. . . . A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements.

. . . In the context of element one of a retaliation claim, an employee is protected when she opposes “not only . . . employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful.” . . . The Title VII violation may be complete, or it may be in progress. . . . “Navy Federal holds that an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress.” . . . In other words, an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress.

The panel majority in Jordan ruled that, where an employee has complained to his employer of an isolated incident of harassment insufficient to create a hostile work environment, the employee cannot have possessed a reasonable belief that a Title VII violation was in progress, absent evidence “that a plan was in motion to create such an environment” or “that such an environment was [otherwise] likely to occur.” . . . We reject that aspect of Jordan today, however, for several reasons. First of all, the Jordan standard “imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment.”

The Jordan standard also is at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment. Where the harasser is her supervisor and no tangible employment action has been taken, the victim is compelled by the Ellerth/Faragher defense to make an internal complaint, i.e., “to take advantage of any preventive or corrective opportunities provided by the employer.” . . .

Similarly, the victim of a co-worker’s harassment is prudent to alert her employer in order to ensure that, if the harassment continues, she can establish the negligence necessary to impute liability. . . . The reporting obligation is essential to accomplishing Title VII’s “primary objective,” which is “not to provide redress but to avoid harm.” . . . But rather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm, the Jordan standard deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation. Such a lack of protection is no inconsequential matter, for “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” . . .

The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? We conclude that, when assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment. . . . That assessment thus involves factors used to judge whether a workplace is sufficiently hostile or abusive for purposes of a hostile environment claim—specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.” . . . Of course, a single offensive utterance . . . generally will not create a hostile environment without significant repetition or an escalation in the harassment’s severity. . . . But an isolated incident that is physically threatening or humiliating will be closer—even if not equal—to the type of conduct actionable on its own because it is “extremely serious.”. . .

Accordingly, as relevant here, an employee will have a reasonable belief that a hostile work environment is occurring based on an isolated incident if that harassment is physically threatening or humiliating. This standard is consistent not only with Clark County, but also with other Supreme Court precedent, including Crawford and Burlington Northern. That is so because it protects an employee like Jordan who promptly speaks up “to attack the racist cancer in his workplace,” rather than “remain[ing] silent” and “thereby allowing [discriminatory] conduct to continue unchallenged,” while “forfeiting any judicial remedy he might have.” . . . In sum, under the standard that we adopt today with guidance from the Supreme Court, an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating. . . . Because the defendants contested Liberto’s retaliation claims on the lone ground that she did not engage in a protected activity, our analysis is limited to whether a jury could find that Liberto reasonably believed there was a hostile work environment in progress when she reported Clubb’s use of the “porch monkey” slur. Applying the standard that we adopt today, the answer plainly is “yes.” As we recognized in analyzing Liberto’s hostile work environment claims, “porch monkey” is a racial epithet that is not just humiliating, but “degrading and humiliating in the extreme.” . . . Indeed, we determined that a reasonable jury could find that Clubb’s two uses of “porch monkey” were serious enough to engender a hostile environment. We must further conclude, therefore, in the context of the retaliation claims, that Liberto has made the lesser showing that the harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring. Accordingly, we vacate the summary judgment award on Liberto’s retaliation claims, in addition to her hostile work environment claims. We also underscore that, on remand, a jury would be entitled to simultaneously reject the hostile work environment claims on the ground that Clubb’s conduct was not sufficiently serious to amount to a hostile environment, but award relief on the retaliation claims by finding that Clubb’s conduct was severe enough to give Liberto a reasonable belief that a hostile environment, although not fully formed, was in progress.

. . . Contrary to the dissent, we seek to promote the hope and expectation—ingrained in our civil rights laws and the Supreme Court decisions interpreting them—that employees will report harassment early, so that their employers can stop it before it rises to the level of a hostile environment. Employers are powerless in that regard only if they are unaware that harassment is occurring. But employees will understandably be wary of reporting abuse for fear of retribution. Under today’s decision, employees who reasonably perceive an incident to be physically threatening or humiliating do not have to wait for further harassment before they can seek help from their employers without exposing themselves to retaliation.*

Reversed, in favor of Petitioner Liberto.

Statutory Defenses

The three most important defenses available to defendants in Title VII cases are bona fide occupational qualification (BFOQ), merit, and seniority. These defenses are raised by the defendant after the plaintiff has established a prima facie case of discrimination based on disparate treatment, disparate impact, or a pattern or practice of discrimination.

Bona Fide Occupational Qualification

The BFOQ defense allows an employer to discriminate in hiring on the basis of sex, religion, or national origin when such a characteristic is necessary to the performance of the job. Race or color cannot be a BFOQ. Such necessity must be based on actual qualifications, not on stereotypes about one group’s abilities. Being a male cannot be a BFOQ for a job because it is a dirty or “strenuous” job, although there may be a valid requirement that an applicant be able to lift a certain amount of weight if such lifting is a part of the job. A BFOQ does not arise because an employer’s customers would prefer to be served by someone of a particular gender or national origin; nor does inconvenience to the employer, such as having to provide two sets of restroom facilities, make a classification a BFOQ.

Comparative Law Corner Sexual Harassment in France

The French deal with the problem of sexual harassment in employment very differently from Americans. In the United States, sexual harassment is a civil offense and can receive compensatory and punitive damages. In France, sexual harassment is instead part of the criminal code. Part of this difference has to do with a difference in the definitions of sexual harassment. The United States recognizes both quid pro quo and hostile work environment sexual harassment, whereas the French recognize only quid pro quo. Sexual harassment in France is defined as “[t]he fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him. . . .” With this definition, it makes sense that the French consider sexual harassment a criminal offense. The French do not recognize the idea of a hostile work environment, and it is considered somewhat normal for male employees to comment on the attractiveness of female employees at work.

The French sexual harassment law also differs significantly from American law in its method of enforcement. Women in France are responsible for filing their own claims with the court, and the punishment their harasser can receive is limited to one year in jail or a fine. Also, French companies are not seen as responsible for the behavior of their employees, so if a supervisor sexually harasses a female subordinate, the woman cannot claim damages from the company. Her charges will be filed only against the supervisor who sexually harassed her.

Merit

Most merit claims involve the use of tests. Using a professionally developed ability test, which is not designed, intended, or used to discriminate, is legal. Such tests may have an adverse impact on a class, but do not violate the act as long as they are manifestly related to job performance. The Uniform Guidelines on Employee Selection Procedures (UGESP) have, since 1978, contained the policy of all governmental agencies charged with enforcing civil rights, and they provide guidance to employers and other interested persons about when ability tests are valid and job related. Under these guidelines, tests must be validated in accordance with standards established by the American Psychological Association.

Acceptable validation includes (1) criterion-related validity, which is the statistical relationship between test scores and objective criteria of job performance; (2) content validity, which isolates some skill used on the job and directly tests that skill; and (3) construct validity, wherein a psychological trait needed to perform the job is measured. A test that required a secretary to type would be content valid. A test of patience for a teacher would be construct valid.

Seniority Systems

A final statutory defense, available under Section 703(h), is a bona fide seniority system. A seniority system, in which employees are given preferential treatment based on their length of service, may perpetuate discrimination that occurred in the past. Nonetheless, such systems are considered bona fide and thus are not unlawful if (1) the system applies equally to all persons, (2) the seniority units follow industry practices, (3) the seniority system did not have its genesis in discrimination, and (4) the system is maintained free of any illegal discriminatory purpose.

Mixed Motives

One problem with discrimination cases is proving that the plaintiff’s membership in a protected class is the reason for unfair treatment. In the 1991 act, Congress addressed the concept of a “mixed motives” case (i.e., a case in which the plaintiff proves that being a member of a protected class was one reason for the unfair treatment, but the defendant also proves that it also had a legal reason). If the court determines that the defendant had mixed motives, the verdict is for the plaintiff, but the court decides whether the plaintiff is entitled to damages based on the weight of the two motives.

Protected Classes

Five classes are protected under Title VII. Unique problems have arisen with regard to each of them.

Race and Color

A primary goal of Title VII was to remedy the discrimination in employment to which blacks had long been subjected. The act, however, also contains a proviso stating that nothing in the act requires that preferential treatment based on an imbalance between their representation in the employer’s workplace and their representation in the population at large be given to any protected class. This proviso paved the way for questions about “reverse discrimination,” or discrimination against whites, as a result of employers’ attempts to create a racially balanced workforce. (This issue is discussed later in the section on affirmative action.)

National Origin

The act prohibits discrimination based on national origin, not on alienage (citizenship of a country other than the United States). Thus, an employer can refuse to hire non–U.S. citizens. This prohibition applies even to owners of foreign corporations who have established firms in the United States. In the absence of a treaty between the United States and the foreign state authorizing such conduct, a corporation cannot discriminate in favor of those born in a foreign state.

Since the terrorist attack on the World Trade Center on September 11, 2001, there has been a significant increase in charges based on national origin by individuals who are, or are perceived as being, Arab or South Asian. Many of these claims are combined with claims of discrimination based on religion. Many are based on harassment. For example, two California auto dealers agreed to pay seven Afghan workers $550,000 to settle their complaint of harassment based on national origin and religion. The workers alleged that they were called everything from “camel jockeys” to “bin Laden’s gang.” One of the women with an Arabic name was asked to call herself by an American name, such as Sara.

17

17 

Bob Egelko, “Two Auto Dealers Agree to Settle Suit with Afghan Workers,” San Francisco Chronicle, B7 (Apr. 7, 2004).

During fiscal year 2014, the EEOC received 9,579 charges of national-origin discrimination and resolved 9,768, recovering $31.4 million for the charging parties. Interestingly, these numbers represented a decline from 2013, when the number of such charges was 10,642, with 11,307 resolved (some carried over from the previous year) for a total recovery of $35.3 million.

18

18 

U.S. Equal Employment Opportunity Commission, National Origin-Based Charges FY 1997—FY 2014. Accessed April 15, 2015 at www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm.

Religion

Under Title VII, employers cannot discriminate against employees on the basis of religion. Although an exception has been made allowing religious corporations, associations, and societies to discriminate in their employment practices on the basis of religion, they may not discriminate on the basis of any other protected class. In fiscal year 2013, the EEOC received 3,721 charges of religious discrimination and resolved 3,865 such charges, recovering $11.2 million.

19

 In 2010, the number of charges received was 3,549, with 3,575 being resolved, generating $8.7 million for claimants.

20

19 

U.S. Equal Employment Opportunity Commission, Religion-Based Charges FY 1997–FY 2014. Accessed April 15, 2015 at www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm.

20 

Ibid.

Employers are required to make reasonable accommodation to their employees’ religious needs, as long as such accommodation does not place an undue hardship on the employer or other employees. For example, an employer has a dress code that prohibits clerical workers visible to the public from wearing hats or scarves. A Muslim worker requests that she be granted an exemption from the dress code so that she may wear the hijab (head scarf) in conformance with her Muslim beliefs. Her exemption would be a reasonable accommodation. Flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers are other examples of reasonable accommodations to an employee’s religious beliefs. Courts will examine the requested accommodation very carefully to ensure that it does not place an undue burden on the workplace. For example, the reasonableness of accommodating an employee’s request not to work on Saturday would depend on the availability of other workers who would willingly work that day.

Applying the Law to the Facts . . .

Let’s say that Talal needs a day off to observe his religious holiday. However, he gave his employer only two days’ notice and no other employee can cover for him at the last minute. Talal argues that forcing him to work on a religious holiday is religious discrimination. His employers argue that prohibiting him from engaging in a religious practice that would interfere with his work and impose hardship on his company is legal. Who is correct in this case?

As mentioned previously, since September 11, 2001, the number of charges of religious discrimination by individuals who are, or are perceived to be, Muslim or Sikh has increased. From September 11, 2000 to September 11, 2001, 323 charges based on “religion-Muslim” were filed with the EEOC. The following year, 706 similar charges were filed. In 2003, the EEOC settled one of the largest workplace discrimination suits against Muslims. In that case, four Muslim Pakistani machine operators alleged that their employer, Stockton Steel, routinely gave them the worst jobs, ridiculed their daily prayers, and called them “camel jockey” and “raghead.” The four workers shared a $1.1 million settlement.

21

 At the time of the settlement, then EEOC Commissioner Steven Miller expressed hope that such cases would sensitize employers to issues of religious and ethnic discrimination.

22

 Since the 9/11 attacks, the EEOC has been attempting to reach out to Arab and Muslim groups to explain what illegal discrimination is and what actions they can take to enforce their rights. The percentage of religious discrimination suits by those whose religion is Muslim has fallen from its high of 28 percent in 2002 to 20 percent in 2012, although during that time period, the number of overall charges of religious discrimination continued to grow.

23

21 

Marjorie Valbrun, “U.S. Battles Bias against Arabs and Muslims in the Workplace,” The Asian Wall Street Journal, A6 (Apr. 14, 2003).

22 

Id.

23 

U.S. Equal Employment Opportunity Commission, Religion-based charges filed from 10/10/2000 through 9/30/2011. Showing percentage filed on the basis of religion—Muslim. Accessed April 15, 2015 at www.eeoc.gov/eeoc/events/9-11-11_religion_charges.cfm.

In 2007, Bilan Nur, a Muslim woman, won an award of $287,000 for religious discrimination. Nur had requested permission to wear a head covering during the holiday of Ramadan, a deviation from her employer’s dress code. Her employer, Alamo Rent-a-Car, refused to allow her to wear the head scarf in front of customers while she worked at the front counter. Nur wore the head scarf while at the front counter in violation of the dress code. Alamo sent Nur home several times and eventually fired her for wearing the head scarf. The EEOC brought a case against Alamo on behalf of Nur, and her award included $21,640 in back pay, $16,000 in compensatory damages, and $250,000 in punitive damages.

24

 The EEOC stated that it hoped the large punitive damages would send a message to employers that religious discrimination would not be tolerated.

25

24 

Kevin D. Kelly, “Jury Awards $287,000 to Muslim Employee Denied a Religious Accommodation.” Accessed March 12, 2008 at www.lexology.com/library/detail.aspx?g=43ea1ef7-353c-4134-b6e5- fe408356149a&l=6G99TH2.

25 

Id.

Sex

Under Title VII, sex is interpreted as referring only to gender and not to sexual preferences. Hence, homosexuals and transsexuals are not protected under the act. It would, however, be sex discrimination to fire male homosexuals while retaining female homosexuals.

Also, as you may recall from the earlier discussion of the case of Joseph Oncale v. Sundowner Offshore Services,

26

 the U.S. Supreme Court has held that Title VII prohibits same-sex harassment regardless of the harasser’s sexual orientation as long as the discrimination is tied to some kind of gender discrimination.

27

26 

523 U.S.75 (1988).

27 

Ibid.

While the Oncale case did not explicitly extend Title VII protection to discrimination based on a person’s sexual orientation, the EEOC has muddied the waters a bit by holding that discrimination claims based on gender identity are cognizable under Title VII.

In Macy v. Dept. of Justice,

28

 a case some have described as groundbreaking, the EEOC held that a complaint of discrimination based on “gender identity, change of sex, and/or transgender status” is cognizable under Title VII. In that case, Mia Macy completed a telephone interview for a position with a federal agency while she presented as a man and was told the position was hers barring any issues with her background check. While her background check was being done, she told the agency that she was in the process of transitioning from a male to a female. Five days later, Macy was told that the position was no longer available; another person was hired for the position soon thereafter. Macy filed her original claim with the EEOC, and the agency separated her claims into two distinct claims—one for discrimination based on “sex” and one for discrimination based on “sex stereotyping,” “gender transition/change of sex,” and/or “gender identity.” The agency further indicated that the gender identity stereotyping aspect of her claim would be processed outside the EEOC’s standard Title VII adjudication process.

28 

EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C.) (April 20, 2012).

Macy appealed to the full commission to have both aspects of her claim handled through the normal Title VII process. On appeal, the EEOC concluded that each of these formulations of Macy’s claims was merely different ways of stating the same claim for discrimination “based on . . . sex,” which clearly was cognizable under Title VII.

The EEOC further stated, “[a]s used in Title VII, the term ‘sex’ ‘encompasses both sex—that is, the biological differences between men and women—and gender.’ As the 11th Circuit noted . . . Title VII barred ‘not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.’ As such, the terms ‘gender’ and ‘sex’ are often used interchangeably to describe the discrimination prohibited by Title VII. That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”

In September 2014, the EEOC filed two lawsuits in federal court challenging transgender discrimination. The first alleged that Lakeland Eye Clinic, a Florida- based organization of health care professionals, discriminated based on sex in violation of federal law by firing an employee because she was transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

29

 The second suit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., found that Harris violated Title VII by firing the funeral director because of her transgender status, because of her gender transition, and/or because the firing was based on gender-based stereotypes.

30

29 

“EEOC Sues Lakeland Eye Clinic for Sex Discrimination Against Transgender Employee.” EEOC Press Release, September 25, 2014. Available at www.eeoc.gov/eeoc/newsroom/release/9-25 -14e.cfm.

30 

Civ. No. E.D. Mich. 2:14-cv-13710-SFC-DRG.

Those cases were filed just two months after President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.

As noted earlier, sexual harassment is addressed by Title VII’s prohibition against discrimination based on sex. Although sexual harassment cases were not filed in large numbers immediately after the passage of Title VII, the number of such cases filed has increased tremendously since law professor Anita Hill captivated the nation in late 1991 by testifying before Congress about the harassment to which she was subjected by U.S. Supreme Court nominee Clarence Thomas. According to the EEOC, 9,953 sexual harassment complaints were filed in the year ending in October 1992, an increase of 2,564 over the previous year. In fiscal year 2011, 11,364 sexual harassment complaints were filed; 11,717 were filed in 2010. The EEOC recovered $48.4 million for successful claimants in 2010 and $52.3 million in 2011.

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 Not all the sexual harassment charges are filed by women; in 2010, 16.4 percent of those charges were filed by males.

32

31 

U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges: EEOC & FEPAs Combined: FY 1997–FY 2011. Available at www.eeoc.gov/eeoc/statistics/enforcement /sexual_harassment.cfm.

32 

U.S. Equal Employment Opportunity Commission, Sexual harassment charges: EEOC & FEPAs Combined: FY 1997–FY 2011.” Accessed December 31, 2010 at www.eeoc.gov/eeoc/statistics /enforcement/sexual_harassment.cfm.

These sex discrimination cases can be quite costly. For example, it cost Morgan Stanley $54 million to settle a sex discrimination case brought by 67 female officers and women eligible for officer promotions.

33

 The women had alleged workplace discrimination in promotions, assignments, and compensation, along with a hostile work environment. Although management admitted no guilt, it agreed to set up mechanisms to prevent sex discrimination. Thus, it is important that businesspeople be able to recognize sexual harassment and prevent its occurrence in the workplace. 

Exhibit 21-3

 provides some suggestions on how managers can avoid liability for sexual harassment.

33 

“EEOC and Morgan Stanley Announce Settlement of Sex Discrimination Lawsuit.” EEOC Press Release, July 12, 2004. Accessed March 19, 2008 at www.eeoc.gov/press/7-12-04.html.

Exhibit 21-3 Tips For Avoiding Sexual Harassment Charges

Source: Adapted from K. Swisher, “Corporations Are Seeing the Light on Harassment,” Washington Post National Weekly Edition, February 14–20, 1994, 21.

Pregnancy Discrimination Act

After a U.S. Supreme Court ruling that discrimination on the basis of pregnancy was not discrimination on the basis of sex under Title VII,

34

 Congress amended the law by passing the Pregnancy Discrimination Act (PDA), which specifies that discrimination based on pregnancy is sex discrimination and that pregnancy must be treated the same as any other disability, except that abortions for any purpose other than saving the mother’s life may be excluded from the company’s medical benefits. The U.S. Supreme Court has concluded that Congress intended the PDA to be “a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise.”

35

 Consequently, the high court held that a California statute requiring unpaid maternity leave for pregnant women and reinstatement after the birth of the child was constitutional because the intent of the law was to make women in the workplace equal, not to give them favored treatment.

36

34 

General Electric Co. v. Gilbert, 429 U.S. 125 (1976).

35 

California Federal Savings & Loan Association et al. v. Department of Fair Employment & Housing et al., 479 U.S. 272 (1987).

36 

Id.

In the summer of 2001, the PDA became the basis for the first ruling on the employment discrimination issue of gender equity in drug coverage. In a class action lawsuit against Bartell Drug Company, a Seattle judge ruled that the drugstore chain discriminated against women when it excluded prescription contraceptives from its employee health plan.

37

 Granting summary judgment to the plaintiff, the judge said, “Male and female employees have different sex-based disability and health care needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception.”

38

37 

Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001).

38 

Id.

In 2015, an important case interpreting the PDA was handed down by the U.S. Supreme Court. In Young v. UPS,

39

 the high court established a new test for determining when an employer’s failure to accommodate a pregnant woman constitutes a violation of the act. According to that test, a pregnant employee denied accommodation can establish a “prima facie” claim of pregnancy discrimination where she shows that the employer did accommodate others “similar in their ability or inability to work.” To avoid liability, the employer must demonstrate that its denial of the accommodation was based on a legitimate, nondiscriminatory reason. However, the Supreme Court’s majority substantially limited the employer’s ability to satisfy this burden by stating that the employer’s proffered reason normally cannot consist of a claim that it was more expensive or less convenient to add pregnant women to the category of those whom the employer accommodated.

39 

575 U.S.    (2015).

Enforcement Procedures

Enforcement of Title VII is a very complicated procedure and is full of pitfalls. Failure to follow the proper procedures within the appropriate time framework may result in the plaintiff’s losing her or his right to file a lawsuit under Title VII. An overview of these procedures is provided in 

Exhibit 21-4

.

The Charge

The first step in initiation of an action under Title VII is the aggrieved party’s filing a charge with the state agency responsible for enforcing fair employment laws (a state EEOC) or, if no such agency exists, with the federal EEOC. A charge is a sworn statement that sets out the name of the charging party, the name(s) of the defendant(s), and the nature of the discriminatory act. In states

Exhibit 21-4 Anatomy of a Title VII Case

that do not have state EEOCs, the aggrieved party must file the charge with the federal EEOC within 180 days of the alleged discriminatory act. In states that do have such agencies, the charge must be filed either with the federal EEOC within 180 days of the discriminatory act or with the appropriate state agency within the time limits prescribed by local law, which cannot be more than 180 days. If initially filed with the local agency, the charge must be filed with the federal EEOC within 300 days of the discriminatory act or within 60 days of receipt of notice that the state agency has disposed of the matter, whichever comes first. 

Exhibit 21-5

 shows a typical charge.

Conciliation and Filing Suit

Once the EEOC receives the charge, it must notify the alleged violator of the charge within 10 days. After such notification, the EEOC investigates the matter in an attempt to ascertain whether there is “reasonable cause” to believe that a violation has occurred. If the EEOC does find such reasonable cause, it attempts to eliminate the discriminatory practice through conciliation. If unsuccessful, the EEOC may file suit against the alleged discriminator in federal district court.

If the EEOC decides not to sue, it notifies the plaintiff of his or her right to file an action and issues the plaintiff a right-to-sue letter. The plaintiff must have this letter to file a private action. The letter may be requested any time after 180 days have elapsed since the filing of the charge. As long as the requisite time period has passed, the EEOC will issue the right-to-sue letter regardless of whether the EEOC members find a reasonable basis to believe that the defendant engaged in discriminatory behavior.

Exhibit 21-5 A Typical Charge of Discrimination Filed with the EEOC

Source: United States Department of Labour
Remedies

The plaintiff bringing a Title VII action can seek both equitable and legal remedies. The courts have broad discretion to order “such affirmative action as may be appropriate.”

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 Under this broad guideline, courts have ordered parties to engage in diverse activities ranging from publicizing their commitment to minority hiring to establishing special training programs for minorities.

40 

§ 706(a).

In general, a successful plaintiff is able to recover back pay for up to two years from the time of the discriminatory act. Back pay is the difference between the amount of pay received after the discriminatory act and the amount of pay that would have been received had there been no discrimination. For example, if two years before the case came to trial the defendant refused a promotion to a plaintiff on the basis of her sex and the job for which she was rejected paid $100 more per week than her current job, she would be entitled to recover back pay in the amount of $100 multiplied by 104. (If the salary rose at regular increments, these are also included.) The same basic calculations are used when plaintiffs were not hired because of discrimination. Such plaintiffs are entitled to the back wages they would have received minus any actual earnings during that time. Defendants may also exclude wages for any period during which the plaintiff would have been unable to work.

That same plaintiff may also receive remedial seniority dating back to the time the plaintiff was discriminated against.

The most significant impact of the 1991 Civil Rights Act resulted from its changes to the availability of compensatory and punitive damages. Under the new act, plaintiffs discriminated against because of race (and those discriminated against on the basis of sex, disability, religion, or national origin) may recover both compensatory damages, including those for pain and suffering, and punitive damages. In cases based on discrimination other than race, however, punitive damages are capped at $300,000 for employers of more than 500 employees, $100,000 for firms with 101 to 200 employees, and $50,000 for firms with 100 or fewer employees.

Attorney’s fees are ordinarily awarded to a successful plaintiff in Title VII cases. They are denied only when special circumstances would render the award unjust. In those rare instances in which the courts determine that the plaintiff’s action was frivolous or unreasonable or was without foundation, the courts may use their discretion to award attorney’s fees to the prevailing defendant.

Lilly Ledbetter Fair Pay Act of 2009

In many cases, determining when a cause of action accrued can play a vital role in disposition of the case. Prior to 2007, the EEOC supported the position that every time an individual received a paycheck of a discriminatory amount, a new discriminatory compensation action arose. After every paycheck, an individual had 180 days to file a claim. In 2007, the Supreme Court decided, in Ledbetter v. Goodyear Tire & Rubber Co.,

41

 that a compensation discrimination charge must be filed within 180 days of a discriminatory pay-setting decision. In other words, after an individual received the first discriminatory paycheck, she or he had 180 days to file a claim; subsequent paychecks no longer gave rise to new causes of action. Two years after the Court’s decision in Ledbetter, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. That act, which explicitly recognizes the importance of protecting individuals who are victims of wage discrimination, restores the pre-Ledbetter policy that each paycheck gives rise to a new cause of action.

41 

550 U.S. 618 (2007).

Linking Law and Business Management

Perhaps you learned in your organizational behavior or management class about biculturalism. This term refers to instances in which individuals of a particular racial or ethnic minority class have been socialized in two cultures—the dominant culture and the individual’s ethnic or racial culture. Living in two cultures often increases stress, which is referred to as bicultural stress. Two general characteristics of bicultural stress are (1) role conflict—the conflict that exists when an individual fills two competing roles due to his or her dual cultural membership and (2) role overload—the excess expectations that result from living in two cultures. The intensity of these problems tends to increase for women of color, because of the negative dynamics directed toward both women and minorities. Hiring minorities can pose adaptation problems in the workplace for some managers. Accustomed to the cultural norms of the majority, some managers may be insensitive to the bicultural stress with which minorities are often burdened. In addition, managers may not realize that employees usually do not set aside their values and lifestyle preferences while at work. Therefore, it is important for managers to recognize differences and respond in ways that increase productivity without discriminating. This shift in management philosophy may include diversity training for managers and other employees to help them raise behavioral awareness, recognize biases and stereotypes, avoid assumptions, and modify policies. Therefore, an acute sensitivity to differences in the workplace may result in a friendlier environment where productivity is increased.

On January 29, 2009, President Obama signed the first bill of his presidency into law, which altered the measures set out in the Civil Rights Act of 1964 and overturned the Supreme Court’s decision in the Ledbetter case. The bill was called the Lilly Ledbetter Fair Pay Act. After the Supreme Court’s opinion in Ledbetter’s case in 2007, Congress introduced legislation that would allow an employee six months to sue after every paycheck received. However, President George Bush opposed the legislation arguing that it would incite too many lawsuits. The legislation was put on hold until two years later when Congress, under President Obama, passed the measure, and President Obama then signed.

The Age Discrimination in Employment Act of 1967

Our society does not revere age. Older employees detract from a firm’s “youthful” image and are expensive. They have accumulated raises over the years and thus earn more than younger employees. They have pension benefits, which the employer will have to pay when they retire. They are sometimes viewed as rigid and unwilling to learn new technology. Thus, it is understandable that firms may attempt to discriminate against older employees. The 

Age Discrimination in Employment Act of 1967 (ADEA)

 was enacted to prohibit employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of age. The language describing the prohibited conduct is virtually the same as that of Title VII, except that a person’s being age 40 or older is the prohibited basis for discrimination.

Age Discrimination in Employment Act of 1967 (ADEA)

Statute that prohibits employers from refusing to hire, discharging, or discriminating against people in terms or conditions of employment on the basis of age.

Although the motivation for the ADEA was to prevent the unfair treatment of older people in the workplace, after the legislation had been in place for several years, some began to question whether the law also prohibited giving older workers more favorable treatment. In 2004, the U.S. Supreme Court decided that issue in General Dynamics Land Systems, Inc. v. Dennis Cline et al.

42

 In General Dynamics, present and former employees of General Dynamics brought suit under the ADEA. General Dynamics had instituted a policy effectively eliminating a retiree health insurance benefits program for workers under the age of 50. Those employees who were 50 or older at the time the policy was enacted would still be eligible for benefits, but others would not. The Supreme Court held that discrimination against “the relatively young” was beyond the scope of the protection offered by the ADEA. According to the Court’s interpretation, the ADEA was designed to protect a “relatively old worker from discrimination that works to the advantage of the relatively young.”

43

 General Dynamics’ policy did not violate the ADEA.

42 

540 U.S. 581 (2004).

43 

Id.

As the U.S. economy started a downward turn in late 2000, which continued through 2001, age discrimination claims began to increase. Charges of age discrimination filed with the EEOC rose from roughly 14,000 in fiscal year 1999 to 16,000 in 2000 and continued to increase to a peak of 22,778 in fiscal year 2009. In 2014, 20,588 charges of age discrimination were filed and the EEOC secured $77.7 million in benefits for aggrieved individuals.

44

44 

U.S. Equal Employment Opportunity Commission, Age Discrimination in Employment Act (includes concurrent charges with Title VII, ADA and EPA) FY 1997–FY 2014. Retrieved May 15, 2010, from www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.

Applicability of The Statute

The ADEA applies to employers having 20 or more employees in an industry that affects interstate commerce. It also applies to employment agencies and to unions that have at least 25 members or operate a hiring hall. As a result of a Supreme Court ruling in Kimel v. Florida Board of Regents,

45

 however, the act does not apply to state employers.

45 

120 S. Ct. 631 (2001).

Proving Age Discrimination

Discrimination under the ADEA may be proved in the same ways that discrimination is proved under Title VII: by the plaintiff’s showing disparate treatment or disparate impact. Most of the ADEA cases today involve termination. To prove a prima facie case of age discrimination involving a termination, the plaintiff must establish facts sufficient to create a reasonable inference that age was a determining factor in the termination. The plaintiff raises this inference by showing that he or she (1) belongs to the statutorily protected age group (age 40 or older), (2) was qualified for the position held, and (3) was terminated under circumstances giving rise to an inference of discrimination.

Until 1996, the plaintiff also had to demonstrate that he or she was replaced by someone outside the protected class. In O’Connor v. Consolidated Caterers Corp.,

46

 however, the U.S. Supreme Court held that replacement by someone outside the protected class was not a necessity as long as evidence showed that the termination was based on age.

46 

529 U.S. 62 (2000).

Applying the Law to the Facts . . .

Carla worked as a secretary in a law firm. One day she was let go, but two other secretaries who were retained by the firm were under 40, while she was over 40. Carla said that because she had worked at the firm the longest, she deserved to keep her job and the firm keeping the secretaries younger than 40 proved age discrimination. Would Carla need any more evidence to prove her case? How might Carla be confused about the purpose of the ADEA?

If the plaintiff establishes these three facts, the burden of proof then shifts to the defendant to prove that there was a legitimate, nondiscriminatory reason for the discharge. If the employer meets this standard, the plaintiff may recover only if he or she can show by a preponderance of the evidence that the employer’s alleged legitimate reason is really a pretext for a discriminatory reason.

Initially, circuit courts were split on the evidentiary standard to which an age discrimination plaintiff must be held. Some courts have relied only on a pretext standard, as described earlier, whereas others have required a plaintiff to show direct, not just inferential, proof of discrimination (known as “pretext plus”).

47

 To resolve this circuit court confusion, the Supreme Court agreed to hear the case, Reeves v. Sanderson Plumbing Products, Inc.,

48

 filed by a former employee who raised issues of age discrimination under the ADEA. The Supreme Court held that when a plaintiff establishes a prima facie case of age discrimination and subsequently provides sufficient evidence of pretext by the employer, a trier of fact can find unlawful discrimination without additional, independent evidence of discrimination. Therefore, “pretext plus” is no longer necessary. Case 21-4 demonstrates how the courts have applied the pretext standard.

47 

M. Coyle, “How to Judge Age Bias,” National Law Journal A10 (Mar. 20, 2000).

48 

530 S. Ct. 2097 (2000).

 Case 21-4 Jones v. National American University

Eighth Circuit Court of Appeals 608 F.3d 1093 (2010)

Kathy Jones had been an employee at National American University (NAU) since 1998, when she was hired as a part-time corporate liaison at the university’s Rapid City, South Dakota, campus. Later that year, Jones became a full-time admissions representative. In 2004, the director of admissions position at the Rapid City campus became available. Jones, then age 56, applied for the position. NAU formed a four-person committee to make the hiring decision. Individuals who had recently been denied a position as vice president of admissions for the university’s online program were notified of the opening.

After receiving initial applications, the applicant pool was narrowed to six of the prior vice-president candidates and Jones. After phone interviews, the pool was narrowed to two of the former applicants and Jones. Each candidate attended an in-person interview. The position was offered to both of the prior vice-president candidates, both of whom rejected it. Jones was never offered the position, but was asked to serve as interim director until a candidate could be found. As part of her interim director duties, Jones helped to interview candidates for admissions positions. Following the interview of a 50-year-old candidate, one of the members of the hiring committee said, “I’m not sure we want a grandpa working with our college students.” Jones never reported this comment. The open directorial position was eventually offered to a 34-year-old candidate for an admissions representative position. Jones resigned and filed discrimination charges with the EEOC.

After trial, the jury found that NAU had discriminated against Jones and that its conduct had been willful. The district court denied NAU’s motion for judgment as matter of law and its motion for a new trial. Judgment was entered for $35,130 in damages, as well as attorney’s fees and costs. NAU appealed.

Judge Murphy

NAU does not contest that Jones satisfied her burden of presenting a prima facie claim of age discrimination. Instead the university asserts that after it rebutted Jones’s prima facie case by providing a legitimate, nondiscriminatory reason for the failure to promote—specifically Jones’s lack of management experience—she failed to establish that NAU’s proffered reason was pretext.

An employee can prove that her employer’s articulated justification for an adverse employment action is pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Pretext may be shown with evidence that “the employer’s reason for the [adverse employment decision] has changed substantially over time.”

Viewing the evidence in the light most favorable to Jones, we conclude that she presented sufficient evidence for the jury to conclude that NAU’s proffered reason for the failure to promote was a pretext for age discrimination. Jones presented evidence that between the time of its EEOC charge response and the trial, NAU shifted its reasons for failure to promote her to the director position. NAU’s response to the EEOC charge provided that throughout her employment, “Ms. Jones struggled with her performance. She consistently received moderate to low scores on her semiannual reviews. . . . She has consistently mediocre performance.” By contrast, at trial NAU asserted that its primary reason for not promoting Jones was her lack of managerial and marketing experience. The university did not present evidence at trial that Jones was deficient in her performance.

Jones also presented evidence to dispute each of NAU’s proffered reasons for their failure to promote her to the director position. She established that she was the only candidate considered who had the three years’ recruiting experience listed as required in one job posting, and preferred in the other. She also presented evidence that Beck lacked the extensive management experience that the hiring committee asserted had been their primary qualification. She presented evidence that she had received consistently positive reviews and performance awards, and that she had a good relationship with her colleagues. Finally, Jones testified about the two age-related comments made by Buckles: (1) that he wasn’t sure he wanted a “grandpa” working with the college kids, and (2) that Beck was a better long-term choice for the director position while Jones would have been the better short-term choice.

Given the benefit of all reasonable inferences from the evidence, Jones presented sufficient evidence at trial for the jury to determine that NAU’s proffered reasons for the failure to promote were pretext for intentional age discrimination.

NAU alternatively argues that it is entitled to judgment as a matter of law under what it terms “the honest belief doctrine.” See Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir. 2000); McNary v. Schreiber Foods, Inc., 535 F.3d 765, 769-70 (8th Cir. 2008). Relying on Scroggins and McNary, NAU asserts that “what ultimately matters is whether NAU’s hiring committee established its honest belief in the nondiscriminatory facts that led to its decision.” NAU’s reliance on these cases is misplaced. In both Scroggins and McNary, the employer prevailed in a discrimination claim because the employee plaintiff failed to present any evidence to contradict the employer’s asserted reason for the adverse employment decision. Thus, the employee failed to present evidence showing that the employer’s proffered reason was mere pretext for discrimination. See Scroggins, 221 F.3d at 1045 (concluding that the employee had presented “no evidence suggesting anything other than the [employer’s] honest belief”); McNary, 535 F.3d at 770 (same). By contrast, Jones has presented evidence sufficient to support a jury finding that NAU’s alleged “honest belief” was pretext. The district court properly denied judgment as a matter of law to the university.*

Affirmed in favor of Plaintiff, Jones.

Critical Thinking About The Law

So much about legal reasoning depends on taking a close look at analogies. No set of facts is ever exactly like another. When citing precedents, however, each party hopes that the facts in certain cases are similar enough in significant ways to cause the courts to select their cited cases as the more relevant ones in each case.

The questions here focus on the quality of the precedent cited by the defendant in Case 21-4.

1. What brought about and led to their being cited as authority by the defendant?

Clue:  Who won? Why?

2. What caused Judge Murphy to reject the analogies of Scroggins and McNary as binding in Case 21-4?

Clue: Check her discussion of Scroggins and McNary to find how she distinguished Scroggins and McNary from the Reeves case.

Statutory Defenses
Bona Fide Occupational Qualification

A number of statutory defenses are available to an employer in an age discrimination case. The first is the bona fide occupational qualification, which requires the defendant to establish that he or she must hire employees of only a certain age to safely and efficiently operate the business in question. The courts generally scrutinize very carefully any attempt to demonstrate that age is a BFOQ.

One example of an employer’s successful use of this defense is Hodgson v. Greyhound Lines, Inc.,

49

 wherein the employer refused to hire applicants aged 35 or older. Greyhound demonstrated that its safest drivers were those between the ages of 50 and 55, with 16 to 20 years of experience driving for Greyhound. Greyhound argued that this combination of age and experience could never be reached by those who were hired at age 35 or older. Therefore, to ensure the safest drivers, it should be allowed to hire only applicants younger than 35. The court accepted the employer’s rationale. Although safety considerations are important, to use them in establishing age as a BFOQ, the employer must indeed prove, as did the defendant in the Greyhound case, that safety is related to age.

49
 499 F.2d 859 (7th Cir. 1974).

Other Defenses

As under Title VII, decisions premised on the operation of a bona fide seniority system are not unlawfully discriminatory despite any discriminatory impact. Likewise, employment decisions may also be based on “reasonable factors other than age.”

Executive Exemption

In addition, termination of an older employee may be legal because of the 

executive exemption

. Under this exemption, an individual may be mandatorily retired after age 65 if (1) he or she has been employed as a bona fide executive for at least two years immediately before retirement and (2) upon retirement, he or she is entitled to nonforfeitable annual retirement benefits of at least $44,000.

executive exemption

Exemption to the ADEA that allows mandatory retirement of executives at age 65.

After-Acquired Evidence of Employee Misconduct

An important issue, not just for the ADEA but also for other employment discrimination claims, is whether an employer can use evidence of an employee’s misconduct discovered after a charge has been brought to defeat that charge. In McKennon v. Nashville Banner,

50

 a unanimous Supreme Court decided that issue in a manner that pleased lawyers who represented both businesses and plaintiffs.

50 

513 U.S. 352 (1995).

In Nashville Banner, the plaintiff had feared being fired by the company because of age, so she copied confidential documents to use (if needed) in her subsequent lawsuit. She was, in fact, fired, and filed a discrimination claim. The employer subsequently discovered that she had copied the documents and argued that her ADEA action should be dismissed because she would have been fired anyway had the firm known that she had copied the documents. The circuit court held that she deserved to be fired because of her misconduct and, therefore, she could not sue for discrimination.

The Supreme Court overruled the circuit court and held that after-acquired knowledge of misconduct will not bar a discrimination action. The Supreme Court did not, however, believe that such conduct should be totally irrelevant. If the defendant can prove that the misconduct was substantial enough to have warranted termination of the employee, then reinstatement will not be required. The amount of back pay required will also be reduced. The employee’s back pay will be calculated from the date of the unlawful discharge until the date the evidence of misconduct was discovered. Thus, the after-acquired evidence may be used to reduce, but not completely bar, an action for discrimination.

Enforcement Procedures

Enforcement of ADEA is similar to the enforcement of Title VII. The victim of age discrimination may file a charge with the appropriate state agency or with the EEOC within 180 days of the act. If a charge has been filed with the state agency, an EEOC charge must be filed within 300 days of the discrimination or within 30 days of receiving notice of the termination of state proceedings, whichever comes first. The charge must identify the defendant and specify the nature of the discriminatory act. Upon receipt of a charge, the EEOC must notify the accused and attempt to conciliate the matter. If conciliation fails, the EEOC may then bring a civil action against the violator.

A party who does not plan to file a private action may choose to file a charge with the EEOC only; if a party wishes to file a private civil action, complaints must be filed with both the appropriate state agency and the EEOC. If these complaints are filed within the appropriate time limits, a party then has three years from the date of the discriminatory act within which to file a private action under ADEA, assuming that the alleged discriminatory act was willful. If the alleged discrimination is purportedly unwillful, the party has two years within which he or she must file the private action. The party, however, must wait 60 days from the date of the filing of the complaints with both the EEOC and the state agency before filing the lawsuit. If the EEOC or the state agency files an action on the matter during that time, the plaintiff is precluded from filing suit.

Remedies Under Adea

A successful ADEA plaintiff is entitled to back pay for up to two years. In addition, in a private action, a plaintiff may be able to recover liquidated damages in an amount equal to the back pay recovered if the plaintiff can prove that the employer acted willfully. Willfully means that the employer was substantially aware of the possibility that it was in violation of the ADEA but did not attempt to ascertain the legality of its actions. If liquidated damages are not granted, the plaintiff is generally entitled to interest on the back pay; interest is not awarded when liquidated damages have been granted. Compensatory damages for items such as mental distress from the discrimination are occasionally, but rarely, awarded by a few courts. Likewise, punitive damages are rarely awarded.

The Rehabilitation Act of 1973

In 1973, Congress broadened the class of individuals protected against discrimination to include the handicapped by passing the 

Rehabilitation Act of 1973

, an act designed to protect the handicapped from discrimination in employment and to help them secure rehabilitation, training, access to public buildings, and all benefits of covered programs that might otherwise be denied them because of their handicap. It also requires that covered employers have a qualified affirmative action program for hiring and promoting the handicapped. A handicapped individual, for purposes of the act, is defined as one who has a “physical or mental impairment, which substantially limits one or more of such person’s major life activities”

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 or who has a record of such impairment. Even people who are falsely regarded as having such an impairment are protected. The major provisions of this act are outlined in 

Table 21-3

.

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31 U.S.C. § 706(b).

Rehabilitation Act of 1973

Prohibits discrimination in employment against otherwise qualified persons who have a handicap. Applies only to the federal government, employers that have contracts with the federal government, and parties who administer programs that receive federal financial assistance.

This act applies only to the federal government and employers that have contracts with the federal government, so its impact is relatively limited. However, in 1991, the Americans with Disabilities Act (ADA) was passed, which extends similar prohibitions against discrimination to private-sector employers that do not have federal contracts. Because of its broader impact, the ADA is discussed in greater detail in the next section; bear in mind that the principles discussed with respect to the ADA apply to the Rehabilitation Act as well.

It is important to remember that neither the Rehabilitation Act nor the ADA requires any employer to hire an unqualified individual. The acts require only the hiring of an individual with a disability who, with reasonable accommodation for his or her disability, can perform the job at the minimum level of

Table 21-3 

Summary

of Major Provisions of the Rehabilitation Act

Prohibited Conduct

Section

Potential Defendant

Required Conduct

501

Federal departments and agencies

Cannot discriminate against otherwise qualified workers because of a handicap

Prepare and implement an affirmative action plan for hiring and promoting the handicapped

502

Federal agencies entering into contracts with private employers for property or services and the private employers entering into these contracts

Private party with government contract cannot discriminate against otherwise qualified workers because of a handicap

Contracts must contain a clause requiring the private employer to take affirmative action in hiring and promoting the handicapped and not to discriminate against them

504

Parties who administer programs receiving federal assistance

Discrimination by those administering programs is prohibited

productivity that would be expected of an individual with no disability. Nor does this act or the ADA prohibit an employer from terminating an employee whose disability does in fact prevent him or her from doing the job.

The Americans with Disabilities Act of 1991

Like the Rehabilitation Act, the 

Americans with Disabilities Act of 1991 (ADA)

 is intended to prevent employers from discriminating against employees and applicants with disabilities by requiring employers to make reasonable accommodations to the known physical or mental disabilities of an otherwise qualified person with a disability, unless the necessary accommodation would impose an undue burden on the employer’s business.

Americans with Disabilities Act of 1991 (ADA)

Statute requiring that employers make reasonable accommodations to the known disabilities of an otherwise qualified job applicant or employee with a disability, unless the necessary accommodation would impose an undue burden on the employer’s business.

The ADA now covers all employers of 15 persons or more, which includes approximately 660,000 businesses, so its impact has the potential to be significant. Some fear that because of Amendments to the ADA passed in 2008 and described below, the impact of the act may become even more significant.

Covered Individuals

The definition of an individual with a disability, for purposes of the act, is essentially the same as the definition of a handicapped individual in the Rehabilitation Act. A disability is “(1) a physical or mental impairment which substantially limits one or more of the major life activities of such individual, (2) a record of such impairment, or (3) being regarded as having such an impairment.”

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 A wide variety of impairments are captured under such a definition. Individuals suffering from diseases such as cancer, epilepsy, and heart disease are included, as are those who are blind or deaf. Those who are infected with the human immunodeficiency virus (HIV) but are not yet symptomatic are covered,

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 as are those whose past records may harm them. For example, persons who suffer from alcoholism but are not currently drinking or persons who are former drug addicts are protected. However, an employee who is currently a substance abuser and whose abuse would affect job performance is not protected.

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42 U.S.C. § 12102(2). Title 42—The Public Health and Welfare.

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1998 WL 332958.

Initially, both the EEOC and the U.S. Supreme Court interpreted both the “substantial impairment” requirement fairly strictly and considered a fairly limited number of activities to be “major life activities.” But in 2008, deciding that the rulings of the Supreme Court and the EEOC were too restrictive and were not in keeping with the spirit of the ADA, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to remedy the situation.

The ADAAA now provides that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The ADAAA also added as a major life activity “the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,” thereby expanding the number of people who could potentially be protected under the act.

One other change by the ADAAA that could increase the number of claimants is its overturning previous interpretation of the act that held that when determining whether a person was disabled, mitigating actions were taken into account. Thus, a person who was hard of hearing but who could hear when wearing his hearing aids was not considered disabled. The ADAAA now prohibits the use of mitigating measures in evaluating whether a person has a disability, except for the use of glasses or corrective lenses if they fully correct the vision problem.

Initially, there was not a huge spike in claims. The law took effect January 1, 2009, and the EEOC reported 21,451 claims filed in fiscal year 2009, which is an increase of almost 2,000 claims over the 19,453 claims filed in 2008, the same as the increase in the number of claims between 2007 and 2008, when there was no change in the law. However, in fiscal year 2010, the number of disability claims rose more significantly to 25,165 claims, an increase of almost 4,000 claims, whereas in the prior three years, the increases were around 2,000 claims.

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U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act of 1990 (ADA) charges (includes concurrent charges with Title VII, ADEA, and EPA) FY 1997–FY2014. Retrieved January 1, 2011, from www.eeoc.gov/eeoc/statistics/enforcement/ada-charges.cfm.

Employers often find it difficult to know how the ADA applies to those who have mental disabilities. Under the ADA, employers are not only forbidden from discriminating against persons with mental disabilities but also must make reasonable accommodations for them unless such accommodations could cause undue hardship. Typical accommodations include providing a private office, flexible work schedule, restructured job, or time off for treatment.

Another type of disability that employers must be aware of is an intellectual disability. According to the EEOC, roughly 1 percent of Americans have an intellectual disability, and only about 31 percent of these individuals are employed, even though a much greater percentage would like to work.

An individual is considered to have an intellectual disability when (1) the person’s intellectual functioning level (IQ) is below 70–75; (2) the person has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical adaptive skills; and (3) the disability originated before the age of 18. “Adaptive skill areas” refers to basic skills needed for everyday life and includes communication, self-care, home living, social skills, leisure, health and safety, self-direction, functional academics (reading, writing, basic math), and work.

Another difficulty employers often have with the act is determining whether the accommodation an employee requests is reasonable. Case 21-5 is an example of such a difficult determination.

 Case 21-5 McMillan v. City of New York

United States Court of Appeals for the Second Circuit

2013 U.S. App. LEXIS 4454 (2013)

Rodney McMillan had schizophrenia, which was treated with medication regularly. Despite this condition, McMillan held employment as a case manager for the HRA Community Alternative Systems Agency (CASA). His job duties included conducting annual home visits, processing social assessments, recertifying clients’ Medicaid eligibility, and making referrals. At McMillan’s place of employment, there was a “flex-time policy” that allowed employees to arrive at work anytime between 9 a.m. and 10 a.m. More specifically, employees were not considered “late” to the office unless they arrived after 10:15 a.m. Further, an employee’s tardiness could be approved or disapproved by that person’s supervisor.

McMillan testified in court that he usually woke up around 7 or 7:30 a.m. each morning, but his medications for schizophrenia made him “drowsy and sluggish.” As a result, McMillan often arrived late to work, around 11 a.m. The Defendant City of New York did not contest that the reason for McMillan’s frequent tardiness was the treatment for his disability. For a period of time, McMillan’s tardiness was continuously approved by his supervisor. However, in 2008, McMillan’s supervisor Loshun Thornton, refused to approve any more of McMillan’s late arrivals. Later, on May 8, 2009, McMillan was fined for eight days’ pay for his late arrivals, and in 2010, the City brought charges of “misconduct and/or incompetence” against McMillan.

Because of his issues at work, on March 23 and April 22, 2010, McMillan requested accommodations for his disabilities, including a later flex start time that would permit him to arrive at work between 10 a.m. and 11 a.m. These requests were sent to Donald Lemons, Deputy Director of HRA’s Equal Employment Opportunity Office for evaluation, where they were denied. The Office did not approve McMillan’s requests for accommodations because there would be no one to supervise McMillan after 6 p.m. if he “flexed” his hours to arrive later in the morning.

McMillan contended that the response to his request was insufficient and subsequently brought suit against the City of New York, alleging violations of the ADA. The district court granted summary judgment for the City and dismissed all of McMillan’s claims. McMillan appealed.

Judge Walker

One of the central goals of the Americans with Disabilities Act of 1990 (“ADA”) is to ensure that, if reasonably practicable, individuals are able to obtain and maintain employment without regard to whether they have a disability. To accomplish this goal, the ADA requires that employers provide reasonable accommodations to qualified individuals. This case highlights the importance of conducting a fact-specific analysis in ADA claims.

It is undisputed that Rodney McMillan’s severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff’s inability to arrive on time would result in his failure to establish a fundamental element of a prima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan’s favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan’s job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.

In our view, the United States District Court for the Southern District of New York did not conduct a sufficiently detailed analysis of the facts that tend to undermine the City’s claim that a specific arrival time is an essential function of McMillan’s position before granting summary judgment for the City.

If a plaintiff suggests plausible accommodations, the burden of proof shifts to the defendant to demonstrate that such accommodations would present undue hardships and would therefore be unreasonable. An “undue hardship” is “an action requiring significant difficulty or expense.”

The City already has a policy of allowing employees to “bank” any hours they work in excess of seven hours per day and apply banked time against late arrivals, provided that those late arrivals are approved. Because there is no evidence that pre-approving McMillan’s tardiness would constitute an undue burden on the City, the question is whether McMillan would be able to bank sufficient time to cover his late arrivals.

The district court correctly concluded that assigning a supervisor to work past 6:00 p.m. would constitute an undue hardship. However, McMillan was presumably unsupervised when he made home visits for his clients or when he worked past 7:00 p.m. It is unclear from this record whether his home visits or after-hours work was supervised and, if not, whether McMillan could bank these unsupervised hours.

Even if McMillan could not bank post-6:00 p.m. time, he also states that he would be willing to work through his one-hour lunch. The City has a policy, based on a collective bargaining agreement, of not allowing employees to work through lunch unless they receive advance approval. The district court concluded, without further explanation, that “plaintiff’s proposed accommodation could not have been accommodated without undue hardship.” We disagree. On the limited record before us, such pre-approval does not strike us as “requiring significant difficulty or expense.”

Additionally, although the parties do not discuss this in their briefs, it might be the case that on some days McMillan would be able to arrive (relatively) early. If he also worked through lunch or stayed through 6:00 p.m. on those days, he would be able to bank that time against future tardiness as well.

On the present record, we cannot find as a matter of law that McMillan’s suggested accommodations would constitute undue hardships to the City and are therefore unreasonable. Accordingly, McMillan states a prima facie case of discrimination based on his disability and, at least with regard to his late arrivals, a prima facie case for failure to provide accommodations.

For the reasons given above, on this record, we cannot conclude that a reasonable juror would find McMillan’s claims to be without merit. If the factual record is developed further, some or all of McMillan’s claims may not survive summary judgment. On the record before us, however, dismissal is premature.*

Vacated and Remanded.

Critical Thinking About The Law

1. What facts need to be discovered before a decision is reached with respect to this case once it is returned to the district court?

Clue:  Review the decision and make note of each of the facts the 2nd Circuit Court of Appeals mentions that would have been relevant to the decision.

2. The Appeals Court makes it clear that the key to establishing reasonableness is dependent on facts specific to the case. In addition to the facts that the appeals court mentions need to be discovered, what other fact would be relevant to considering the reasonableness of the accommodation sought by the plaintiff?

Clue:  Do you think it is relevant to examine the disciplinary record of the plaintiff as it pertains to other situations where he was unsupervised? Would it affect the reasonableness of the accommodation if the record of the office was checked and it was found that other employees are permitted to work without supervision? Explain.

A major difficulty employers face under the ADA is ensuring that they do not violate the law during the interview process. The EEOC issued guidelines to help employers comply with the law. The guidelines emphasize that employers’ questions must be designed to focus on whether a potential employee can do the job, not on the disability, but it is often difficult to know when a question violates the act. 

Exhibit 21-6

 provides examples of acceptable and unacceptable questions drawn from the EEOC’s guidelines.

Exhibit 21-6 Interviewing Potential Employees without Violating THE ADA

Source: Adapted from EEOC’s “Enforcement Guidance on Pre-Employment Disability—Related Inquiries and Medical Examinations Under the Americans with Disabilities Act” (EEOC, 1998).

It is well worth the prudent employer’s time to study these guidelines, because the liability for violating the rules for job interviews can be substantial. For example, one job applicant who was asked about his disability during an interview was awarded $15,000 in compensatory damages and $30,000 in punitive damages.

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 The plaintiff was partially disfigured, partially deaf, and partially blind as a result of two brain tumor operations. The plaintiff brought up the disability himself to explain a gap in his work record, but the interviewers told him they felt uncomfortable with his disability and asked him to make them feel more comfortable by describing the condition and its treatment. They also asked whether managers or customers had a problem with him because of his disability.

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EEOC v. Community Coffee Co., No. H-94-1061 (S.D. Tex. 1995).

Enforcement Procedures

The ADA is enforced by the EEOC in the same way Title VII is enforced. To bring a successful claim under the ADA, the plaintiff must show that he or she (1) had a disability, (2) was otherwise qualified for the job, and (3) was excluded from the job solely because of that disability.

Remedies

Remedies are likewise similar to those available under Title VII. A successful plaintiff may recover reinstatement, back pay, and injunctive relief. In cases of intentional discrimination, limited compensatory and punitive damages are also available. An employer who has repeatedly violated the act may be subject to fines of up to $100,000.

Affirmative Action

One of the most controversial workplace issues of the past two decades has been the legitimacy of 

affirmative action plans

. Ever since employers began to try to create balanced workforces by focusing on increasing their employment of minorities, there have been cries that such actions constitute 

reverse discrimination

, which is a violation of the Equal Protection Clause of the Fourteenth Amendment.

affirmative action plans

Programs adopted by employers to increase the representation of women and minorities in their workforces.

reverse discrimination

Discrimination in favor of members of groups that have been previously discriminated against; claim usually is raised by white males.

Many of the significant cases challenging affirmative action plans have arisen in contexts other than private employment. Other areas in which these programs have been challenged include school admissions policies and government policies to set aside contracts for minority businesses. 

Table 21-4

 summarizes the major affirmative action cases. A close reading of the cases reveals the increasing scrutiny the courts have come to apply to affirmative action policies, and it now appears that any affirmative action plan that can withstand constitutional muster must (1) attempt to remedy past discrimination, (2) not use quotas or preferences, and (3) end or change once it has met its goal of remedying past discrimination. This standard was set forth by the Supreme Court in Adarand Constructors, Inc. v. Pena, a case challenging a federal affirmative action program (see 
Table 21-4
).

In 1997, many interested observers hoped the U.S. Supreme Court would hand down a definitive decision regarding affirmative action cases in the employment setting, as the high court agreed to hear the case of Taxman v. Board of Education described in 
Table 21-4
. The parties, however, settled the case before it went to trial.

The next major affirmative action case arose in the area of university admissions. In Grutter v. Bollinger,

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 admissions policies of the University of Michigan

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288 F.3d 732 (6th Cir. 2002), aff’d, 539 U.S. 306 (2003).

Table 21-4 Major Reverse Discrimination Cases

Case

Alleged Discriminatory Action

Outcome

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

The school’s special admissions policy reserved 16 out of the 100 available seats for minority applicants. Bakke was denied admission while minorities with lower test scores were admitted.

Although race could be one of a number of factors considered by a school in passing on applications, this special admissions policy was illegal because a classification that benefits victims of a victimized group at the expense of innocent individuals is constitutional only where proof of past discrimination exists.

United Steelworkers v. Weber, 443 U.S. 193 (1979)

The employer and union entered into a voluntary agreement that half the openings in a skilled craft training program would go to blacks until the rough proportion of blacks in the program was equal to that of blacks in the labor force. A white male who would have been admitted to the training program absent the plan challenged the plan.

The Court said it was clear that Congress did not intend to wholly prohibit private and voluntary affirmative action. To be valid, such plans must not unnecessarily trammel the rights of whites, should be temporary in nature, and should be customized to solve the past proven pattern of discrimination.

Johnson v. Santa Clara County Transportation Agency, 480 U.S. 616 (1987)

The County affirmative action plan authorized the agency to consider applicant’s sex as a relevant factor when making promotion decisions for job classifications in which women have traditionally been underrepresented.

The Court held that the plan represented a moderate, flexible, case-by-case approach to gradually effecting improvement of the representation of women and minorities in traditionally underrepresented positions. The Court emphasized that the agency had identified a conspicuous imbalance in representation, that no slots were set aside for women or minorities, and that no quotas were established. Race or sex could just be one of several factors considered.

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)

Plaintiff submitted the lowest bid for a government contract, but the contract was awarded to a Hispanic firm submitting a higher bid. The job was sent to the Hispanic firm in accordance with a government program giving 5 percent of all highway construction projects to disadvantaged construction firms.

In a landmark decision, the Supreme Court held that any federal, state, or local affirmative action program that uses racial or ethnic classifications as a basis for making decisions is subject to strict scrutiny by the courts. This level of scrutiny can be met only when (1) the program attempts to remedy past discrimination, (2) does not use quotas or preferences, and (3) will be ended or changed once it has met its goal of remedying past discrimination.

Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996)

Two white law school applicants were denied admission to the University of Texas Law School because of the school’s affirmative action program. That program allowed admissions officials to take race and other factors into account when admitting students.

The Court of Appeals for the 5th Circuit held that the program violated the equal protection clause because it discriminated in favor of minorities. The U.S. Supreme Court refused to hear the case.

Taxman v. Board of Education of the Township of Piscataway 91 F.3d 1547 (3rd Cir. 1996)

The Board of Education wanted to eliminate one teaching position at Piscataway High School. A black female and white female had the same seniority and qualifications. Because minority teachers were underrepresented in the school, the board chose to lay off the white teacher to promote racial diversity.

Taxman challenged the policy as violative of Title VII. The trial court granted summary judgment in her favor. The circuit court of appeals affirmed, awarding her complete back pay. The defendants appealed to the U.S. Supreme Court, but the case was settled prior to the hearing before the high court.

Jennifer Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234; 2001 WL 967756 (11th Cir. 2001)

The University of Georgia had an admissions policy that awarded a fixed numerical bonus to nonwhite and male applicants that it did not give to white and female applicants. The three plaintiffs, white females who were denied admission to the University of Georgia, filed an action arguing that the use of race violated the Equal Protection Clause, among other claims.

The district court found in favor of the plaintiffs and entered summary judgment in their favor. The defendants appealed on the issue of preferential treatment based on race. The circuit court said that it did not need to address the issue of whether student body diversity is a sufficiently compelling interest to withstand the strict scrutiny that the court must apply to government decision making based on race. Even if it were a compelling interest, a policy that mechanically awards an arbitrary diversity bonus to every nonwhite applicant at a decisive stage in admissions, and severely limits the range of other factors relevant to diversity that may be considered at the stage, is not narrowly tailored to achieve that interest. The policy, therefore, violates the Equal Protection Clause of the Fourteenth Amendment.

Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), aff’d, 539 U.S. 306 (2003)

A white female was denied admission to the University of Michigan Law School despite a 3.8 GPA and a 161 LSAT score. She argued that the school’s admissions policy, which focused on applicants’ academic ability coupled with a flexible assessment of their talents, experience, and potential to contribute to the learning environment as well as the life and diversity of the law school, resulted in her being discriminated against on the basis of race.

After a 15-day bench trial, the federal district court found that Michigan’s use of race as a factor in admissions decisions was unlawful. The 6th Circuit Court of Appeals reversed, finding the use of race to be narrowly tailored because it was used only as a potential plus factor. The U.S. Supreme Court affirmed, agreeing that the Equal Protection Clause does not prohibit the narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)

Parents in Louisville and Seattle filed suit arguing that the secondary schools’ admissions plans used race as a factor in violation of the Equal Protection Clause. The schools voluntarily adopted policies designed to assign students to schools so as to counteract segregated housing patterns. The students were classified as “white” or “nonwhite” and then race was used as a tiebreaker when students were being assigned to oversubscribed schools.

In an opinion written by Chief Justice Roberts, the Court held that the policy was not narrowly tailored. However, on the issue of diversity as a compelling state interest, the Court was intensely divided. Ultimately, the plurality opinion provides little guidance as to whether the Court would hold that diversity is a compelling state interest in secondary education.

Law School were challenged by Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, who was denied admission. The school followed an official admissions policy seeking to achieve student body diversity through compliance with University of California v. Bakke. Focusing on students’ academic abilities, coupled with a flexible assessment of their talents, experiences, and potential, the policy required admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, an essay describing how the applicant would contribute to law school life and diversity, and the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score. In addition, officials were required to look beyond grades and scores to so-called “soft” variables such as recommenders’ enthusiasm, the quality of the undergraduate institution and the applicant’s essay, and the areas and difficulty of undergraduate course selection. The policy did not define diversity solely in terms of racial and ethnic status and did not restrict the types of diversity contributions eligible for “substantial weight,” but it did reaffirm the law school’s commitment to diversity with special reference to the inclusion of African American, Hispanic, and Native American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a “critical mass” of underrepresented minority students, the policy sought to ensure their ability to contribute to the law school’s character and to the legal profession.

In 2014, in the case of Schuette v. Coalition to Defend Affirmative Action, the high court upheld a Michigan law that banned affirmative action in public education and in state employment and contracting. Although the court did not reexamine the constitutionality of affirmative action, six justices agreed that states could end racial preferences without violating the U.S. Constitution.

Technology and the Legal Environment The Internet as a Public Accommodation?

As e-commerce and the use of the Internet become more common, the courts are likely to begin to treat the Internet as a public accommodation, meaning that it would be subject to the ADA, which states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases to, or operates a place of public accommodation.”

No one yet knows the full implications of treating the Internet as a public accommodation, but a lawsuit filed by the National Federation of the Blind (NFB) against America Online (AOL) may help give us an idea of what some disabled individuals could expect.

In November 1999, the NFB sued AOL, alleging that the company’s software does not work with other software required to translate computer signals into Braille or synthesized speech. By failing to remove communication barriers presented by its designs, and thus denying the blind independent access to its service, AOL is alleged to be violating the ADA.

In July 2000, AOL and the NFB reached an agreement. The NFB suspended the lawsuit against AOL, and AOL promised to have appropriate software by April 2001. The lawsuit was subsequently dropped. Regulations tacked on to Section 508 of the Rehabilitation Act, which went into effect in December 2000, also assisted the blind. Under these regulations, federal agencies must construct and design their websites using applications and technologies to make site information available to all users.

Grutter alleged that she was rejected because the law school used race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups, and that respondents had no compelling interest to justify that use of race. The district court found the law school’s use of race as an admissions factor unlawful. On appeal, the 6th Circuit reversed, holding that Justice Powell’s opinion in Bakke was binding precedent establishing diversity as a compelling state interest and that the law school’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the law school’s program was virtually identical to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.

The U.S. Supreme Court upheld Michigan’s policy, stating: “All government racial classifications must be analyzed by a reviewing court under strict scrutiny. But not all such uses are invalidated by strict scrutiny. . . . Race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest.”

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* The Court reaffirmed Justice Powell’s view that student body diversity is a compelling state interest that can justify using race in university admissions and deferred to the law school’s educational judgment that diversity is essential to its educational mission.

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Id.

The Court recognized that attaining a diverse student body was at the heart of the law school’s proper institutional mission and noted that its “good faith” is “presumed,” absent “a showing to the contrary.” The justices noted that enrolling a “critical mass” of minority students simply to ensure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional, but the law school justified its critical-mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. The justices also noted that the law school’s position was bolstered by numerous expert studies and reports showing that such diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce for society and for the legal profession.

In the high court’s eyes, the law school’s admissions program was a narrowly tailored plan, which meant that it “did not insulate each category with certain desired qualifications from competition with all other applicants.” Instead, it considered race or ethnicity only as a “‘plus’ in a particular applicant’s file” and was flexible enough to ensure that each applicant was evaluated as an individual and not in a way that made race or ethnicity the defining feature of the application. Finally, the policy was limited in time.

This case has provided some guidance to those in higher education, but the Supreme Court’s most recent ruling on affirmative action has muddied the waters. While still recognizing Grutter as valid in higher education, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court found that assigning K–12 students in such a way as to keep the schools racially diverse may not fall under the Grutter precedent, because it did not demonstrate a benefit gained by forcing diversity on schools. The most important lesson for employers to draw from these cases is that any policy based on race will need to adhere very closely to carefully set guidelines, especially in showing the necessity of using race to get a specific benefit.

While school districts and universities look to these court cases for guidance, employers have the guidance of the EEOC to look to when setting up affirmative action policies. The EEOC has issued guidelines in an attempt to help employers set up valid affirmative action plans. According to these guidelines, Title VII is not violated if (1) the employer has a reasonable basis for determining that an affirmative action plan is appropriate and (2) the affirmative action plan is reasonable. Quotas, however, are specifically outlawed by the 1991 Civil Rights Act amendments.

Global Dimensions of Employment Discrimination Legislation

With many U.S. firms having operations overseas, the question of the extent to which U.S. laws prohibiting discrimination apply to foreign countries naturally arises. The Civil Rights Act of 1991 extended the protections of Title VII and the ADA to U.S. citizens working abroad for U.S. employers. Amendments to the ADEA in 1984 had already extended that act’s protection in a similar manner. The provisions of these acts also apply to foreign corporations controlled by a U.S. employer.

It is not always easy to determine whether a multinational corporation will be considered “American” enough to be covered by these acts. According to guidelines issued by the EEOC in October 1993, the EEOC will initially look at where the company is incorporated, but will often have to look at other factors as well. These other factors must also be considered when the employer is not incorporated, as, for example, in the case of an accounting partnership. Some of these additional factors include the company’s principal place of business, the nationality of the controlling shareholders, and the nationality and location of management. No one factor is considered determinative, and the greater the number of factors linking the employer to the United States, the more likely the employer is to be considered “American” for purposes of being covered by Title VII and the ADEA.

Linking Law and Business Management

Affirmative action plans promote greater diversity in workplaces. Despite the controversial issues related to these programs, diversity itself can be advantageous to organizations. In your management class, you probably discussed some of the advantages of diversity. First, group decisions that include contributions from diverse employees are advantageous because a greater assortment of ideas for dealing with work issues may have gone into those decisions. Second, diversity may also enhance a firm’s credibility with its customers, in the sense that the firm is portrayed and perceived as more able to identify with customers of various backgrounds. Third, diversity can encourage greater creativity and innovation in organizations. Fourth, diversity also tends to promote a more flexible organizational structure that is beneficial when a firm is faced with a need to change. Therefore, diversity, if properly managed, could be beneficial to a firm.

Sources: S. Certo, Modern Management (Upper Saddle River, NJ: Prentice Hall, 2000), 529–30; S. Robbins, Organizational Behavior (Upper Saddle River, NJ: Prentice Hall, 2001), 14.

In determining whether a foreign corporation is controlled by a U.S. employer, the EEOC again looks at a broad range of factors. Some of these factors include the interrelation of operations, common management, centralized labor relations, and common ownership or financial control over the two entities. However, a corporation that is clearly a foreign corporation and is not controlled by a U.S. entity is not subject to U.S. equal employment laws. An employer may also violate the ADA and Title VII if compliance with either law would constitute an illegal action in the foreign country in which the corporation is operating.

Summary

During the early years of our nation’s history, the employment-at-will doctrine governed the employment relationship. Under this doctrine, an employee without a contract for a set period of time could be fired at any time for any reason. The doctrine has been gradually eroded, and most states today recognize at least one of three exceptions to the employment-at-will doctrine: the public policy exception, the implied contract exception, and the implied covenant of good faith and fair dealing exception.

Civil rights laws have also eroded the employer’s ability to hire and fire at will. This chapter examined those laws in the order in which they were enacted. The Civil Rights Act of 1866 prohibits employers from discriminating against individuals because of their race.

The Equal Pay Act of 1963 prohibits employers from paying male and female employees doing the same job different wages because of their sex.

Title VII prohibits employers from discriminating in terms and conditions of employment on the basis of race, color, national origin, religion, and sex. This act was amended by the PDA, which essentially requires employers not to discriminate against pregnant women and to treat pregnancy like any other temporary disability. Title VII was also amended by the Civil Rights Act of 1991, which expanded the remedies available under Title VII.

The ADEA prohibits discrimination based on age against persons aged 40 or over. Enforcement of the ADEA is similar to enforcement of Title VII.

The Rehabilitation Act requires federal agencies, employers that have contracts with the federal government, and parties who receive any type of federal funds not to discriminate against persons with handicaps. The ADA extended the basic protections of the Rehabilitation Act to private employers, requiring them to reasonably accommodate persons with disabilities.

Employers locating overseas must remember that they can no longer avoid Title VII and the ADEA simply by leaving the country. U.S. corporations operating in foreign nations, as well as foreign companies controlled by U.S. corporations, must follow the Title VII requirements.

Review Questions

1. 21-1 Explain the employment-at-will doctrine. Discuss why some people prefer the complete abolition of this doctrine, whereas others feel saddened by its gradual demise.

2. 21-2 Explain why each of the following sets of jobs would or would not be considered equal under the Equal Pay Act:

a. Male stewards and female stewardesses on continental air flights

b. Male checkers of narcotics and female checkers of nonnarcotic drugs at a pharmacy

c. Male tailors and female seamstresses

3. 21-3 Explain the following aspects of the Equal Pay Act:

a. Its purpose

b. The remedies available under the act

c. The defenses available to employers

4. 21-4 Explain the following aspects of Title VII:

a. Its purpose
b. The remedies available under the act
c. The defenses available to employers

5. 21-5 Explain two significant ways in which the Civil Rights Act of 1991 has changed the application of Title VII.

6. 21-6 What constitutes “reasonable accommodation” under the Rehabilitation Act and the ADA?

Review Problems

1. 21-7  The City of Los Angeles provided equal monthly retirement benefits for men and women of the same age, seniority, and salary. The benefits were partially paid for by employee contributions and partially by employer contributions. Because women, on average, live longer than men, the city required women to make contributions to the retirement fund that were 14.84 percent higher than those made by men. Was this a violation of the Civil Rights Act? Why or why not?

2. 21-8  JoAnn, Ann, and Bryon were all laboratory analysts, performing standardized chemical tests on various materials. JoAnn was hired first, with no previous experience, and was trained on the job by the supervisor. She later trained Ann. When Bryon was hired, he was trained by the supervisor with the assistance of the two women. All initially worked the same shift and received the same pay. Then Bryon received a 5-cent-per-hour raise and was to work a swing shift every other two weeks. Was his higher wage a violation of the Equal Pay Act? Explain.

3. 21-9  Administrators of an Ohio Christian school refused to renew a teacher’s contract after she became pregnant, on the basis of its belief that “a mother’s place is in the home.” When she filed sex discrimination charges under the state civil rights statute, she was fired. Was this termination unlawful? Explain.

4. 21-10  Ellen’s immediate supervisor repeatedly required her to have “closed door” meetings with him, in violation of company policy. As a consequence, rumors began to spread that the two were having an office romance, although the meetings in fact involved her boss’s attempt to convince Ellen to loan him money, again in violation of company policy. When Ellen asked her immediate supervisor to try to stop the rumors, he said that he found them somewhat amusing and refused to do anything to stop them. As a consequence of the rumors, she began to be treated as an “outcast” by her coworkers and received low evaluations from other supervisors in the areas of “integrity” and “interpersonal relations.” She was passed over for two promotions for which she had applied. She filed an action against her employer on the grounds that her supervisor had created a hostile environment by his refusal to stop the rumors. Do you believe she has a valid claim under Title VII? Why or why not? Are there any other causes of action she might raise? Explain.

5. 21-11  A U.S. citizen was working at a multinational company’s Zaire facility. The employer was incorporated in the state of Louisiana. When the employee was terminated, allegedly because of his age, he sought recovery under the federal ADEA as well as the Louisiana Age Discrimination in Employment law. The employer argued that its overseas operations were not subject to the federal ADEA. Was the employer correct? Explain.

6. 21-12  Davis, D’Elea, and Sims were former heroin or narcotics addicts. Davis and Sims were told by the city director that they could not be hired by the city because of their former habit. D’Elea was rejected from a city CETA program because of his former habit. The three sued the city, alleging that drug addiction was a handicap under the Rehabilitation Act of 1973 and that the city’s refusal to hire them was therefore unlawful under this act. Were they correct in their contention? Explain.

Case Problems

1. 21-13  Plaintiff Michael Matanic was offered a process engineer position with American Tool & Mold, Inc. (ATM). The offer for the position required the plaintiff to complete medical testing to determine his ability to perform the responsibilities of the position. ATM also required that all prospective employees be able to lift 35 pounds. During the medical testing for employment, prospective employees had to complete a “Back History” form, which specifically inquires whether an employee’s back injury was a workers’ compensation injury.

The plaintiff’s completed “Back History” form revealed that he had suffered an injury to his spine, after which he had had multiple surgeries. After ATM was made aware of this past injury, they did not require completion of the back screen and did not assess whether he could lift 35 pounds. Those who administered the medical testing then provided the plaintiff with a statement stating that he was “recommended not fit for employment/work at this time because: More medical information needed, specifically, old records of back surgery. . . .” The plaintiff then provided ATM with the appropriate medical records and was further examined by a physician who provided the plaintiff with a Worker Status Report. This report was provided to ATM.

ATM still concluded that the plaintiff had failed to provide “appropriate medical documentation from the surgical team that performed the procedure . . . stating that he has no permanent restriction in order to proceed with the clearance for the position with ATM.” The plaintiff was then terminated from his conditional employment. The plaintiff filed a charge of discrimination with the EEOC, and the EEOC found reasonable cause to believe that ATM had violated the ADA. The EEOC motioned for summary judgment. How do you think the court ruled? Why? EEOC v. Am. Tool & Mold, Inc., 21 F. Supp. 3d 1268 (2014).

2. 21-14  Plaintiff Jean Robert Paul was hired by defendant employer as a case manager at a residential facility for people needing various social services. The plaintiff was a 58-year-old Haitian man. Paul shared a work space with four people and frequently did not get along with them. Significant problems among the plaintiff and his coworkers began when the plaintiff complained that two of his coworkers told him that he was “old, Haitian, and that he can’t be a boss” and excluded the plaintiff from a daytime boat excursion with clients, stating that “the trip is for young people.”

The plaintiff alleged that his boss’s interventions were not satisfactory and that harassment in the workplace continued. The plaintiff also alleged that the defendant retaliated against him for complaining about the harassment and discrimination in the workplace. The plaintiff ended up filing Title VII and ADEA claims, alleging that the defendant harassed him and discriminated against him on the basis of age and nationality. The defendant motioned for summary judgment. What evidence would the court need to conclude that this action could sustain a prima facie Title VII or ADEA hostile work environment claim? How do you think the court ruled? Paul v. Postgraduate Ctr. for Mental Health, 2015 U.S. Dist. LEXIS 42944 (2015).

3. 21-15  Plaintiff Kargbo was a 52-year-old service coordinator for defendant Mendelsohn, a manager of social and health care services for senior citizens. The plaintiff completed five weeks of training before starting full time. The plaintiff alleges that during this training, the defendant stated, “I don’t believe you are the right man for this job. You are 52 years old. This job is normally for young college graduates.” The plaintiff further alleges that the defendant employer treated the plaintiff poorly throughout the beginning of his employment.

During the plaintiff’s three-month evaluation, the defendant listed the plaintiff’s performance as “unsatisfactory in the categories of effective communication and learning orientation.” The defendant later wrote an interoffice memorandum highlighting several complaints about the plaintiff’s work performance. Finally, the defendant submitted a form recommending that the plaintiff be terminated. The plaintiff brought claims under Title VII of the Civil Rights Act and the Age Employment Discrimination Act related to his termination of employment. The defendant moved for summary judgment on all claims. How do you think the court ruled? Why? Kargbo v. Phila. Corp. for Aging, 16 F. Supp. 3d 512 (2014).

4. 21-16  Katharine Richardson was hired by Friendly’s Ice Cream Corporation (Friendly’s) as an assistant manager of its Ellsworth, Maine, store in 2000. Between 2000 and 2006, Richardson performed both administrative and manual tasks as a part of her job. In January 2006, Richardson began to experience severe pain in her right shoulder. The pain was caused by the manual tasks that she had been performing at work. The company sent Richardson to see a physician, who diagnosed Richardson with shoulder impingement syndrome. The physician recommended that Richardson stop doing the manual tasks she had been doing at Friendly’s. Richardson continued to work until September 2006, when she took a leave of absence to undergo shoulder surgery. After the surgery, physicians indicated that Richardson would still be unable to perform manual tasks at Friendly’s. When Richardson did not recover as quickly as anticipated, the company terminated her employment, explaining that she was disabled and had exceeded the leave guaranteed her by the Family and Medical Leave Act. Friendly’s moved for and won summary judgment after the close of discovery. Richardson appealed, arguing that she was discharged because of her disability. Friendly’s argued that Richardson was no longer qualified for the position because she could not perform the essential functions of the position with or without reasonable accommodation. What was the essential function of Richardson’s position? How do you think the appellate court ruled? Richardson v. Friendly Ice Cream Corp., 594 F.3d 69 (1st Cir. 2010).

5. 21-17  Susann Bashir worked at Southwestern Bell, a division of AT&T, from 1999 until 2010, when she was fired. In 2005, Bashir had converted to Islam. Several of her coworkers and two of her supervisors made degrading comments to her concerning her traditional hijab head covering. Bashir’s supervisor referred to her as “one of those bomb-people” and was told repeatedly to remove her “hat thing.” One of Bashir’s supervisors allegedly tried to pull Bashir’s hijab off of her head. Southwestern Bell countered that there was no evidence that such actions had occurred. AT&T asserted its dedication to maintaining an inclusive workplace. Does this case constitute discrimination? If so, how? What act protects Bashir if discrimination is present? Bashir v. S.W. Bell Tel. Co., No. 1016-CV38690 (Mo., Jackson Co. Cir. May 3, 2012).

6. 21-18  A.D.P. began working for the company that would eventually become ExxonMobil in 1978. She performed her job very well and was subsequently promoted to a position of senior research associate in 2005. Shortly after being promoted, A.D.P.’s husband passed away. A.D.P. became depressed. However, her work performance did not change and was still as strong as ever. A.D.P. voluntarily informed another employee of ExxonMobil that A.D.P. was going to seek treatment for her alcoholism. Upon returning to work, A.D.P. was subjected to random breathalyzer tests in keeping with company policy, even though A.D.P. had never been documented as being under the influence of alcohol at her job. A.D.P. passed the first nine breath tests that were administered to her. The tenth test estimated her blood alcohol content at 0.047 and 0.043. A.D.P. was then fired by ExxonMobil. A.D.P. brought suit against ExxonMobil for discrimination on the grounds of her disability. The appellate court found in favor of the plaintiff, A.D.P., after a state court had dismissed the case. How is A.D.P. covered by the Americans with Disabilities Act if she is not handicapped? Were there grounds for breathalyzer testing of A.D.P. based on her work performance? Explain. Why do you think the appellate court found in her favor? A.D.P. v. ExxonMobil Research and Engineering, 54 A.3d 813 (N.J. Super. App. 2012).

Thinking Critically about Relevant Legal Issues

Currently, one of the biggest issues surrounding discrimination is whether sexual orientation should be a protected characteristic along with age, race, color, gender, national origin, religion, and pregnancy. Proponents of this legislation often present the issue as one of fairness. All of these other groups get protection, so we also deserve protection, they plead. Supporters claim that gay people can be legally fired for being gay in many states, suggesting that being legally fired for a characteristic is inherently unfair.

Unfortunately, the supporters of this legislation do not understand the at-will doctrine of employment that is standard (with some exceptions) in the United States. Unless an employee is part of a collective bargaining agreement or under contract, an employer can fire him or her for anything at any time (with some exceptions, such as discrimination laws and whistleblower laws). Employees under collective bargaining agreements and contracts must be fired for “just cause”—meaning there has to be a good reason, such as sleeping on the job, for firing the employee. Anybody else can be fired for just about anything.

Supporters of adding sexual orientation to the list of protected characteristics do not seem to recognize that there are hundreds of unprotected characteristics. Employers can fire employees for coming to work with purple hair, even if the purple hair has no effect on employee productivity. Many proponents of this legislation argue that being gay is not a choice, just like race or gender, so it should be protected. There are many characteristics about which people have no choice that are not protected. In every state, at-will employees can be fired for having annoying voices. Unless the voice is a consequence of that employee’s race or gender (such as finding that Latino voices or female voices are annoying), having an annoying voice is an unprotected and unchosen characteristic.

Moreover, if sexual orientation is added to the list of protected characteristics, it would essentially take away the rights of an already protected characteristic—religion. Many Americans object to homosexuality on religious grounds. Forcing a religious employer to violate his religious principles by hiring homosexual employees is discrimination against religious employers! It just wouldn’t be fair to give sexual orientation protected status.

1. How would you frame the issue and the conclusion of this essay?

2. The writer gives several reasons to support her conclusion. Identify the reasons and describe the reasoning.

Clue:  The reasoning is the logic that ties the reasons to the conclusion. Ask yourself: “How does saying ‘I like cake’ lead to ‘Let’s go get cake’”?

3. How appropriate are the analogies used in this argument?

4. Write a short essay approaching the issue from a viewpoint different from the author’s.

Clue:  What analogies could you use in making your case?

Assignment

On The Internet

Affirmative action remains a contentious issue in areas of employment, school admissions, and government policies. Yet, many companies use a form of affirmative action to create a diverse workforce. Using the Internet, find a company with an affirmative action policy and review the policy.

Using the test set forth in Adarand Constructors, Inc. v. Pena and EEOC guidelines, determine whether the affirmative action policy would withstand a legal challenge. Explain. Also make a list of information not available to you on the company’s website that would assist you in better determining the legality of its affirmative action policy.

On The Internet

· www.policyalmanac.org This site is a useful resource for research on affirmative action.

· www.eeoc.gov The home page of the U.S. Equal Employment Opportunity Commission provides numerous links to helpful information, including statistics, laws, and regulations as well as how to file a charge.

· www.ada.gov The ADA home page provides numerous resources for employers trying to comply with the ADA.

· www.law.cornell.edu Here is a page that gives you information about discrimination law, as well as allows you to search for statutes and cases related to employment discrimination.

· www.dol.gov This Department of Labor website provides labor policy information and an employment law guide.

· www.discriminationattorney.com This site contains information about discrimination laws, exemplary cases, and articles for use by employers and employees.

· www.ohchr.org This United Nations website provides information on all of the international treaties and conventions concerning discrimination.

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