Employment Discrimination

1
Employment Discrimination

• Chapter 17

2
Historical Development

• Historically, employers could freely discriminate
  based on personal characteristics
• Jim Crow laws supported segregation labor
  market discrimination
• National Civil Rights Movements in the 1960s
  began the change
• 1963 Equal Pay Act (first employment
  discrimination legislation)
• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act 1967
• 1972 Equal Employment Opportunity Act (created
  the EEOC)
• 1978 Pregnancy Discrimination Act
• Civil Rights Act of 1991
• Americans with Disabilities Act 1992
• States may go beyond federal requirements

3
Title VII of the 1964 Civil Rights Act
Amended by Equal Employment
Opportunity Act of 1972 and 1991 Civil Rights Act

• Employers/unions with 15 or more
  employees/members are subject to the law
• CANNOT discriminate based on
• Race (Whites also protected)
• Color
• Religion (reasonable accommodation of religious
  practices w/o undue hardship on the employers)
• Sex (does not apply to sexual preference or
  identity)
• National origin (does not apply to
  noncitizens/aliens employed or seeking employment
  is the U.S.)
• 
  
  (Continued)

4
Title VII of the 1964 Civil Rights Act
Amended by Equal Employment Opportunity
Act of 1972 and 1991 Civil Rights Act

• May bring an action for more than one type of
  discrimination affecting an individual through
  certain actions by employers
• Affirmative Action Programs designed to remedy
  past discriminatory practices
• Reverse discrimination (preferential treatment to
  members of a protected class) is also illegal
• McDonald v. Santa Fe Trail
• African-American employee reprimanded, but kept
  job the white employee was fired. Held Illegal
  under Title VII.
• Many states have their own civil rights acts
  modeled on Title VII
• Some states prohibit discrimination based on
  sexual orientation
• Some cities have civil rights laws extending
  discrimination coverage
• SF prohibits employment discrimination based on
  height or weight

5
Religion

• Employer has strict dress code to give company a
  certain look. Code need not be modified to
  allow certain employees to wear religious garb,
  such as headdress.
• However, if an employer does not have a strict
  code, then cannot tell an employee NOT to wear
  religious garb. (There are exceptions such as
  for safety reasons.)
• Employer need not make other employees change
  their work schedule to accommodate the religious
  holiday preferences of an employee.
• BUT if accommodations can be made at no cost,
  giving opportunity of employees to switch work
  days, then only minimal cost is incurred.

6
Pregnancy Discrimination

• Title VII was amended by the Pregnancy
  Discrimination Act.
• Cannot discriminate against women because of
  pregnancy, childbirth or related medical
  conditions.
• Women must be treated the same for all purposes
  including fringe benefit programs.
• Examples
• Denying a woman a job, assignment or promotion
  because she is pregnant or has children
• Requiring a pregnant woman to go on leave, when
  she can still do her job
• Treating maternity differently than other leaves
  for temporary disabilities
• Discriminating re fringe benefits, such as
  health insurance, that discourages women of
  childbearing age form working

7
Sexual HarassmentSex Discrimination Under Title
VII

• Quid pro quo
• Unwelcome sexual advances requests for sexual
  favors
• Verbal or physical conduct of a sexual nature
• Purpose to promote, change condition of
  employment, salary, place on project, etc.
• Submission is the basis for the employment
  decision
• Promise of reward or threat of punishment in
  exchange for providing sexual favors
• Hostile environment
• discussing sexual activities commenting on
  physical attributes
• unnecessary touching or gestures crude,
  demeaning, offensive language
• displaying sexually suggestive pictures
• trivial, isolated incidences usually do not
  qualify as harassment

8
Harris v. Forklift Systems

• Teresa Harris works for Charles Hardy. He insults
  her in front of others she is a target of
  sexual suggestions
• Youre a woman, what do you know?
• Called her a dumb-ass woman
• Go to the Holiday Inn to negotiate her raise
• What did you do, promise the guy . . . sex
  Saturday night?
• Hardy asks women to get coins from his front
  pants pocket
• Hardy throws things on the ground asks women
  employees to pick them up makes sexual comments
  about clothing
• Harris quits sues, claiming a hostile work
  environment
• Lower courts Say there is no sexual harassment
• U.S. Supreme Court reverses Employees
  psychological well-being is relevant to
  determine if the environment is abusive and has a
  discouraging effect on the employees staying on
  job

9
Reverse Sexual Discrimination and
Same-Sex Discrimination

• Oncale v. Sundowner Offshore Services, Inc. (in
  text)
• Male-on-male sexual harassment Male worker sued
  his employer
• Suffered verbal and physical abuse of sexual
  nature
• Held Same-sex harassment is prohibited
• Prohibition of sexual harassment is not based on
  asexuality or androgyny in the workplace
• Title VII forbids behavior so offensive as to
  alter the conditions of the victims
  employment
• Distinguish between simple teasing or
  roughhousing vs. conduct that is severely hostile
  or abusive
• Supreme Court says use common sense
• Courts use the reasonable person standard
  Would a reasonable person in the plaintiffs
  position . . . find the behavior severely
  hostile or abusive?

10
1967 Age Discrimination In
Employment Act (ADEA)

• About 22 of discrimination claims, or
  17,000/year, are in this category
• Prohibits discrimination in persons over 40
• All employers with 20 employees must comply
• Applies to hiring, promoting, terminating
• May not force retirement
• May not indicate age preference in advertising

• May not require a physical exam as condition of
  continued employment (unless it is necessary for
  job performance)
• May not choose a younger worker because an older
  one will retire soon
• May not cut health-care benefits for workers over
  65 because they are eligible for Medicare

11
Procedure for filing under Title VII or ADEA or
Disabilities Act

• Amended by Lily Ledbetter Fair Pay Act of 2009
• First Step Must file with a state or federal EEO
  Office
• Under federal law, within 180 (states usually
  extend to 300) days of alleged discrimination
• Sometimes state laws have further requirements
• EEOC then notifies the employer of the case
  investigates the claim
• EEOC agent hears both parties sides of the
  incident
• If no settlement, the EEOC informs the parties of
  the result of the investigation

• If the EEOC finds merit with the complaint, it
  issues a right-to-sue letter to the employee (in
  order to bring the action in federal court)
• Sometimes the EEOC will sue the employer
• 75,000 complaints per year
• Takes about 1 year to resolve

12
Forms of Discrimination

• Imposing differential standards on employees
• Illegal compensation differentials
• Segregation in the workplace
• Constructive discharge due to harassment
• Plaintiff must establish a Prima Facie Case
• Burden then shifts to defendant to present
  evidence that claim is untrue
• After employer offers non-discriminatory reason
  for employment decision, burden shifts back to
  plaintiff to show that defendant had illegal
  motives.
• Disparate treatment (intentional discrimination)
• Disparate impact/adverse impact (unintentional
  discrimination but the effect is discriminatory.
  Proof of intent not required.)

13
Possibility of Retaliation for Expression of
Rights

• Retaliation for complaints of discrimination is
  prohibited.
• Employers who retaliate will be punished.
• This occurs in about 1/3 of discrimination
  complaints that are filed.

14
Lewis v. Heartland Inns of America, L.L.C.

• Brenda Lewis began working for Heartland Inns in
  July 2005.
• Was promoted received two merit pay increases
  mangers praised her work and the good
  impression she made on customers.
• Shortly after promoted in December 2006, Director
  of Operations, Barbara Cullinan, saw Lewis for
  the first time.
• Told Lewiss supervisor she didnt think Lewis
  was a good fit for front desk lacked
  Midwestern girl look.
• Said front desk girl should be pretty and Lewis
  was not.
• January 2007, Lewiss supervisor refused to
  remove Lewis from front desk so she was fired.
• Cullinan then met with Lewis to interview her for
  position she already held, and told here there
  must be a 2nd interview never happened.
• Three days later Lewis was fired and sued for
  violation of Title VII.
• Contended she was terminated for not conforming
  to sex stereotypes in retaliation for opposing
  discriminatory practices.
• District court granted summary judgment for
  Heartland Inns. Lewis appealed.
  
  
  (Continued)
  
  
• 
  
  

15
Lewis v. Heartland Inns of America

• HELD Reversed and remanded for further
  proceedings.
• Lewis presented sufficient evidence to make a
  prima facie case on her claims for sex
  discrimination and retaliation.
• Prima facie case requirements
• 1) She was a member of a protected group
• 2) She was qualified to perform the job
• 3) She suffered adverse employment action
• 4) Circumstances permit an inference of
  discrimination
• Burden returned to Lewis to prove that the reason
  for firing was pretextual.
• S. Ct. has said that cases of sex discrimination
  do not compel a women to prove that men were not
  subjected to same challenged discriminatory
  conduct
• For instance employer who discriminates against
  a women because they wont wear dresses, or
  make-up, engages in sex discrimination, because
  it has to do with victims sex.
• Heartland procured video equipment so Cullinan
  could inspect a front desk applicant look
  before any hiring.
• Termination letter to Lewis relied on January 23
  meeting with Cullinan.
• Later then Heartland alleged poor job performance
  to justify the termination.
• Heartland did not follow its own written
  termination procedure conducting investigation,
  looking at previous disciplinary record (Lewis
  had none), etc.
• Ample evidence to support Lewiss claims.

16
Key Defense for Employers

• Employer should have a clear, effective policy
  and procedures to reduce likelihood of
  discrimination cases.
• Without policies, an employer may have a more
  difficult defense.
• If manger (agent) is involved with wrongful
  termination, employer may be liable under
  vicarious liability.
• Employer must have effective procedure to allow
  employees to make complaints about perceived
  discrimination.
• Greater likelihood of punitive damages imposed on
  employer if shows lack of good-faith efforts to
  prevent discrimination.

17
Burlington Industries, Inc.v. Ellerth

• Ellerth worked for 15 months in sales for
  Burlington. She claimed that Slovik, a manager,
  made sexually offensive remarks. She inferred
  threats to her job.
• She refused his advances. There was no
  retaliation against her. She never told anyone
  about the problem until lawsuit was filed.
• District Court granted summary judgment for
  Burlington. Appeals Court reversed. Burlington
  appealed.
• HELD Reversed case remanded back to District
  Court.
• Ellerth focused her lawsuit on quid pro quo
  claims. The District Court may decide if it is
  appropriate to allow Ellerth to amend her
  pleading to claims of a hostile work environment.
• ER may then raise defense that includes 1) that
  ER exercised reasonable care to prevent or
  correct harassing behavior and 2) the EE
  unreasonably failed to take advantage of those
  opportunities or to avoid harm.

18
EEOC v. Dial Corp.

• Workers at Dial plant needed to lift 35 lbs. of
  sausage at a time to a height from 30 to 60
  inches.
• Doing this over and over meant injuries to some
  workers.
• Company began a Work Tolerance Screen (WTS) test
  for potential employees. Candidates had to
  demonstrate strength.
• Usual work force was ½ men and ½ women.
• After WTS introduced, number of women hired
  dropped to 15.
• One applicant took test, passed it, but wasnt
  hired.
• She complained to EEOC.
• EEOC brought suit on behalf of 54 women who
  applied at Dial and were rejected despite passing
  WTS.
• Trial Court said Dial did not demonstrate that
  WTS was a business necessity.
• Awarded back pay to women ranging from 920 to
  120,000.
• Dial appealed.
• 
  (Continued)

19
EEOC v. Dial Corp., cont.

• HELD Affirmed.
• Expert testimony indicated that WTS was more
  difficult than the sausage-lifting jobs.
• In WTS, the applicants had to perform 4x as many
  lifts as the current employees were doing and had
  no rest breaks.
• Dial claimed WTS resulted in decreased injuries.
• HOWEVER, sausage plant injuries started
  decreasing before WTS was implemented.
• AND the injury rate for women employers was lower
  than that for men in 2 of the 3 years BEFORE Dial
  implemented the WTS.
• Defense did not prove that WTS was related to the
  specific job and the required skills and physical
  requirements of the position.

20
Statutory Defenses Under Title VII

• Business Necessity job related
• Physical requirements/lifting boxes?
• Flight attendants must be certain heights?
• Professionally-Developed Ability Tests
• Must predict work ability
• Bona Fide Seniority or Merit System
• Cannot take away seniority or merit from some
  workers, even though applied discriminatorily in
  the past
• BFOQ Bona Fide Occupational Qualification
• Only female guards at womens prisons?
• Male models for female clothing?
• Early Retirement Plans (which encourage voluntary
  early retirement)

21
Remedies in Discrimination Cases(Courts Have
Broad Flexible Powers)

• Actual and compensatory damages
• Equitable remedies, Injunction
• Place the plaintiff in the position he/she would
  have enjoyed but for the discrimination
• Back Pay to the date the discrimination began
  (can include fringe benefits)
• Employees must mitigate damages by seeking other
  work
• Front pay if employee was unlawfully fired
• If ex-employee finds a new job with less pay,
  old employer must provide the difference for the
  rest of employees career
• Damage to career inconvenience loss of
  reputation (N/A in ADEA cases)
• Reinstatement/promotion/hiring
• Punitive damages (capped from 50,000 to 300,000
  depending on firm size (not available in ADEA
  cases)
• Emotional distress/medical treatment, attorneys
  fees, court costs

22
Affirmative Action Programs

• Purpose? To Remedy past discriminatory practices
• Correct underrepresentation
• Adopted ONLY on race or sex (not color, religion,
  national origin or age)
• Programs are monitored and enforced by the Office
  of Federal Contract Compliance Programs (OFCCP)
  in Dept. of Labor
• Companies may voluntarily adopt a plan under
  Executive Order 11246
• Courts may require affirmative action as a remedy
  in discrimination cases

• Pres. Johnsons Executive Order 11246 in 1965
  government contractors must adopt affirmative
  action
• 50,000 in federal contracts 50 or more
  employees have to have written affirmative action
  program
• Workforce analysis for each job in the
  organization
• Underutilization analysis comparing of
  minorities women in community in each job
  category with employed by contractor.
• Being expanded to include disabled persons (7)

23
1990 Americans With Disabilities Act (ADA) (
1973 Rehabilitation Act)

• Most states also have laws forbidding disability
  discrimination
• May apply to employees not covered by federal law
  or may have different procedural rules
• Compliance is in the same way discrimination
  suits are brought under Title VII file with
  EEOC
• Applies to all employers with 15 employees

• Prima Facie Case
• 1) Individual has disability within meaning of
  the statute
• 2) Employer had notice of disability
• 3) Could perform essential function of job with
  reasonable accommodation
• 4) Employer refused to accommodate

24
ADA

• Cannot discriminate against a person with a
  disability that limits a major life activity,
  or has a record of or regarded to have an
  impairment
• Manual tasks
• Walking/seeing
• Hearing/speaking
• Breathing/learning
• Working

• Examples of disabilities
• History of alcohol or drug abuse
• Disfigurements
• Had heart attacks/cancer
• Must use a wheelchair
• Are hearing- or vision-impaired
• Fear of heights NOT covered
• Being left-handed NOT covered

25
Level of Disability

• ADA cases involve individual evaluation of
  circumstances of what constitutes a disability in
  relationship to particular employment.
• Disabilities are major life condition.
• Tough standard to meet.
• Partially impaired, need not mean person is
  considered disabled.
• For those disabled, employers need only make a
  reasonable accommodation.
• Employers need not retain employees who can no
  longer perform their jobs.
• Ex One Dock worker over 400 lbs. was dismissed
  morbid obesity is not an impairment.
• He couldnt go up and down ladders as needed.
• Could not perform the job.

26
Gretillat v. Care Initiatives

• Gretillat worked in food service at nursing home.
  
• She had to stoop, kneel, crouch or crawl as part
  of job movements.
• After 10 years, began to suffer pain in right
  knee hard to walk.
• Supervisor said she no longer had to make rounds
  reduced walking. Three years later, she had
  knee replacement surgery.
• After surgery, she had pain from standing long
  periods of time. Could not squat, kneel, crouch,
  crawl, etc.
• Manager said to resign or be terminated, as she
  did not have the physical requirements for her
  job.
• She resigned sued for disability discrimination
  and failure to accommodate her disability.
• Court held for nursing home. Gretillat appealed.
• HELD Affirmed. Care Initiatives entitled to
  summary judgment.
• Although walking and standing are major life
  activities limited standing does not amount to a
  disability.
• Medical diagnosis of an impairment does not
  qualify as a disability per se.

27
Reasonable Accommodation

• Employers must make a reasonable accommodation
  BUT need not take on an undue hardship
• Making existing facilities accessible? Yes
• Job restructuring? Yes, if no undue hardship on
  employer
• Special equipment training for the disabled?
  Yes
• Changing test, training materials or policies?
  Usually yes
• Part-time or modified work schedules? Yes
• Acquiring or modify equipment? Yes, if
  reasonable expense
• Redesign the entire assembly line to accommodate
  wheelchair employees? No
• Redesigning one work station for several thousand
  dollars? Yes
• Readers or interpreters? Yes
• Completely revamp a computer system? No
• Reassignment to a vacant position? Yes, if
  person is qualified

28
Preemployment Guidance ADA Enforcement
Guidance Preemployment Disability-Related
Questions and Medical Examinations

• ADA prohibits employers asking disability-related
  questions or requiring medical exams before the
  job is offered.
• What you may/may not ask of applicants must
  relate to the job.
• If disability is obvious or applicant volunteers
  information, questions may be asked about
  reasonable accommodations.
• Once a job offer is made, an employer may ask 1)
  for documentation of a disability and 2) more
  questions about reasonable accommodations.
• If physical exam is given to new employees,
  similar exams must be given to all employees in
  same job category.
• Results must be kept confidential.
• Exams must be related to ability to do the job
  not to screen out employees with potential health
  problems.

29
Questions That Are Illegal During A Job
Interview

• Do you have AIDS?
• Have you ever been treated for mental health
  problems?
• Have you ever filed for workers compensation
  benefits?
• Do you have a disability that would interfere
  with ability to perform the job?
• How many sick days were you out last year?
• Have you ever been unable to handle work-related
  stress?
• Have you ever been treated for drug addiction or
  drug abuse?
• Past addiction is a disability current use of
  illegal drugs are not
• Current alcoholism is protected disability
  applicant may not be asked re drinking habits
  (can ask if person has been arrested for DUI)
• Other Questions Can you ask?
• Age? No
• Computer skills if applicant wont use them? No
• Married? Children? No
• Sexual Preference? No
• Been in therapy? No

30
Violations by Employers

• Using standardized employment tests that screen
  out people with disabilities
• Refusing to hire applicants due to history of
  alcohol abuse rather than currently alcohol
  abusers
• Rejecting a job applicant because he/she is
  HIV-positive
• Asking job applicants if they have disabilities,
  rather than asking if have ability to perform the
  job
• Limiting advancement opportunities for employees
  due to their disabilities
• Not hiring a person with a disability because the
  workplace does not have a bathroom to accommodate
  wheelchairs