Chapter 34 – Employment

Discrimination
 Title VII of the Civil Rights Act of
1964
• Title VII prohibits discrimination against
employees on the basis of race, color, national
origin, religion, and gender at any stage of
employment.
• Applies to employers with 15 or more employees
• Remedies under Title VII
– Successful Plaintiff can obtain:
• Reinstatement, back pay, retroactive promotions, and money
damages
 Title VII of the Civil Rights Act of
1964
• Compliance with Title VII is monitored by the Equal
Employment Opportunity Commission (EEOC)
• First step: victim of alleged discrimination files complaint
with EEOC
• Then, EEOC may investigate the dispute and attempt to
settle the matter between the two parties
• If settlement cannot be reached, EEOC may sue ER on
EE’s behalf.
• If EEOC decides not to investigate, victim may sue ER
on her own
• EEOC does not investigate every case – only
investigates “priority” cases likely to set a broad
precedent
 Title VII of the Civil Rights Act of
1964
• Intentional Discrimination
– Complainant must show:
• 1. That she is a member of a protected class, AND
• 2. She applied and was qualified for the job, AND
• 3. She was rejected by the ER; AND,
• 4. ER continued to seek applicants for the position and
ultimately filled the position with someone not in a protected
class
 Title VII of the Civil Rights Act of
1964
• If those 4 requirements are shown, the plaintiff
has established her prima facie case. This
means that the plaintiff has met her initial burden
of proof, and will prevail in her suit if the ER has
no defense
• After EE makes out prima facie case, ER must
articulate a legal reason for not hiring the plaintiff
• To prevail, the EE must show that the reason
offered by the ER is a pretext (an excuse) and
that the employment decision was predicated on
discrimination
 Title VII of the Civil Rights Act of
1964
• Unintentional Discrimination – also called
“disparate-impact” discrimination – occurs when
an ER’s practices, procedures, or tests, which
do not seem to be discriminatory, adversely
impact a protected group of people
• Complaining party must first show statistically
that the ER’s practices have a discriminatory
effect
• Then, the burden of proof shifts to the ER to
show that the practices in question were justified
 Title VII of the Civil Rights Act of
1964
• 2 ways of proving that disparate impact exists:
• 1. Pool of Applicants – Plaintiff can show that an
ER’s workforce does not reflect the makeup of
the local community
• 2. Rate of Hiring – Plaintiff can show that an
ER’s job requirements or other hiring procedure
excludes members of a protected class at a
higher rate than nonmembers
– 80% Test – created by EEOC – a selection rate for
protected classes that is less than 4/5 (80%) of the
rate for the group with the highest rate of selection will
generally be evidence of disparate impact.
 Title VII of the Civil Rights Act of
1964
• Discrimination Based on Race, Color, and National Origin
– An ER may not intentionally or unintentionally discriminate against EE’s or
job applicants on the basis of race, color, or national origin
• Discrimination Based on Religion
– Title VII prohibits government ER’s, private ER’s and unions from
discriminating based on religion.
• ER must reasonably accommodate the religious practices of its
employees, unless to do so would cause undue hardship to the ER’s
business
• Only requirement is that belief be “sincerely held” by EE
• Discrimination Based on Gender
– ER’s cannot classify jobs as “male” or “female” unless ER can prove that
gender is essential to the job.
– ER cannot use gender as a determining factor in any decisions to hire, fire
or promote.
– Pregnancy Discrimination Act of 1978 expanded the scope of gender
discrimination to include pregnancy, childbirth, and other birth-related
conditions
 Title VII of the Civil Rights Act of
1964
• Constructive Discharge – occurs when ER
causes the EE’s working conditions to be so
intolerable that a reasonable person in the EE’s
position would feel compelled to quit
– EE’s resignation must be direct result of ER’s
discriminatory action
– Applies to any type of discrimination under Title VII
– EE can seek money damages for lost income as well
as back pay
 Title VII of the Civil Rights Act of
1964
• Sexual Harassment
– Quid pro quo harassment – occurs when job
opportunities, promotions, salaries, and so on, are
conditioned on the provision of sexual favors
– Hostile-environment harassment – occurs 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.”
 Title VII of the Civil Rights Act of
1964
• Supreme Court Guidelines
– ER’s may be held liable for a supervisor’s harassment
even if the ER did not know about it and EE did not
suffer any adverse job consequences (ex: fired,
demoted, reduced salary, etc.)
– However, ER’s have an affirmative defense – ER
must prove that:
• 1. That ER had taken “reasonable care to prevent and
correct promptly any sexually harassing behavior
– EX: by establishing effective harassment policies and complaint
procedures
• 2. That EE suing for harassment failed to follow these
policies and procedures
 Title VII of the Civil Rights Act of
1964
• Harassment by Co-Workers and Non-EE’s
– ER only liable if ER knew of the harassment
– Sometimes, however, an ER can be liable when a non-EE
harasses an EE, such as when an ER sees a non-EE harassing
an EE and does nothing to prevent it or stop it.
• Same-Gender Harassment
– No protection for discrimination based on sexual orientation
under Title VII
– However, many companies have voluntarily established anti-
discrimination policies with respect to sexual orientation
• Online Harassment
– ER’s can be held liable when EE’s circulate insensitive or
offensive materials online
• However, ER can escape liability by taking prompt remedial action
 Defenses to Employment
Discrimination
• First defense ER can assert is that the EE did
not meet the initial burden of proof
• However, if EE does meet the initial burden of
proof, one or more of the following defenses
may be available to the ER:
• Business Necessity
– An ER may defend against a claim of disparate-
impact discrimination by asserting that the practice is
necessary to conduct business.
• Ex: ER can prove to court’s satisfaction that a connection
exists between a high school education and good work
performance
 Defenses to Employment
Discrimination
• Bona Fide Occupation Qualification (BFOQ)
– Applies when discrimination is necessary to hire the
right people
• Ex: Airlines can discriminate based on age
• Boutique may hire women if part of the job involves assisting
women in dressing rooms
• Seniority System
– Court will look at ER’s present intent to discriminate to
see if there is discrimination in promoting protected
classes
• Ex: If ER has history of discrimination, and there are no
members of protected classes at high levels, and the ER is
sued, the ER can defend by saying that it has put in place
practices to promote based on seniority
 Equal Pay Act of 1963
• Prohibits gender-based discrimination in pay for
similar work at the same establishment
– Duties of job, not title of position, important for
determining whether pay is equal
• Ex: tailor and seamstress the same
– An ER can show wage differential was fair by
showing that it was based on one of the following:
• Seniority system
• Merit system
• System that pays based on quality or quantity of
production
• Any factor other than gender
 Age Discrimination in Employment
Act of 1967 (ADEA)
• Prohibits discrimination based on age against anyone 40 years of
age or older
– To make out prima facie case, Plaintiff must show she:
• 1. Was over 40 years old, AND
• 2. was qualified for the position from which she was discharged,
AND
• 3. was discharged under circumstances giving rise to an inference
of age discrimination.
• Once Plaintiff makes out prima facie case, burden shifts to the ER to
articulate a legal reason for discharge
• If the Plaintiff can show that the reason offered by the ER is a
pretext, the ER will be held liable
 Americans With Disabilities Act of
1990
• Designed to eliminate discrimination against
qualified workers with disabilities in the
workforce
• Applies to all workplaces with 15 or more EE’s
• Requires that ER’s reasonably accommodate
the needs of persons with disabilities unless
doing so would cause undue hardship to the ER
 Americans With Disabilities Act of
1990
• To prevail, Plaintiff must show:
– 1. She has a disability, AND
– 2. She is otherwise qualified for the job, AND
– 3. She was excluded from employment
based solely on her disability
• As in Title VII cases, Plaintiff must first file
her claim with the EEOC. If the EEOC
decides not to pursue the case, she may
then sue the ER directly
 Americans With Disabilities Act of
1990
• What is a disability?
– A physical or mental impairment that substantially
limits one or more of the major life activities of such
individuals
• Examples: blindness, alcoholism, AIDS, diabetes, heart
disease, cancer, etc.
• Reasonable Accommodation
– May include installing wheelchair ramps, modifying
work hours, changing procedures, etc.
– ER’s should give preference to the EE’s desires in
making the accommodations
 Americans With Disabilities Act of
1990
• Undue Hardship – ER’s do not need to
accommodate needs of disabled persons when
doing so would create undue hardship
– Undue hardship may exist where accommodations
would be too expensive, or where the EE requests
indefinite leave
• Job Applications and Announcements
– Must not discriminate against disabled persons
• Ex: Cannot have just a phone number, because that would
discriminate against hearing impaired – must also have
address
 Affirmative Action
• Affirmative action programs attempt to remedy past
wrongs by giving members of protected classes
preferential treatment in hiring or promotion
• The Bakke case (1978)
– Bakke sued after he was rejected from University of CA at Davis
because he discovered that minority applicants with lower scores
had been accepted
– Supreme Court held that AA programs were subject to
intermediate scrutiny (to be constitutionally valid, must be
substantially related to important government objectives).
– Applying intermediate scrutiny, the Court held that the university
could give favorable weight to minority applicants as part of a
plan to increase minority enrollment so as to achieve a more
culturally diverse student body. But, the school cannot use a
quota system.
 Affirmative Action
• The Adarand Case (1995)
– Supreme Court held that any federal, state, or local AA program that
uses racial or ethnic classifications as the basis for making decisions is
subject to strict scrutiny (government must have a compelling interest)
– AA program only constitutional if it attempts to remedy past
discrimination
• The Hopwood Case (1996)
– Court of Appeals for 5th Circuit held that an AA program at University of
Texas School of Law was unconstitutional, where the School was trying
to achieve greater racial diversity.
The Court challenged the Bakke decision. The Supreme Court declined to
hear the case, so the law is now unclear as to whether these AA programs
are constitutional
• Subsequent Cases
– School cannot award fixed number of points to minority applicants
(Gratz v. Bollinger)
– School can consider race or ethnicity a “plus factor” in considering the
applicant (Grutter v. Bollinger)
The End