Agency, Employment or Labor Law IRAC Case Brief
CHAPTER 19 Equal Opportunity in Employment
Parking Spot for Drivers with Disabilities
The federal Americans with Disabilities Act (ADA) protects persons with disabilities from discrimination in many facets of life. Title I of the ADA requires that employers make reasonable accommodations for individuals with disabilities that do not cause undue hardship to the employer. Title II requires that public agencies and public transportation be accessible to persons with disabilities. Title III requires public accommodations and commercial facilities—such as lodging and hotels, recreation facilities, public transportation, schools, restaurants, and stores—to reasonably accommodate persons with disabilities. And Title VI requires telecommunications companies to provide functionally equivalent services to persons who are deaf or hard of hearing and persons with speech impairments.
Learning Objectives
After studying this chapter, you should be able to:
1. Describe the scope of coverage of Title VII of the Civil Rights Act of 1964.
2. Identify race, color, and national origin discrimination that violates Title VII.
3. Identify and describe gender discrimination and sexual harassment.
4. Describe the scope of coverage of the Age Discrimination in Employment Act.
5. Describe the protections afforded by the Americans with Disabilities Act.
Chapter Outline
1. Introduction to Equal Opportunity in Employment
2. Equal Employment Opportunity Commission
3. Title VII of the Civil Rights Act of 1964
1. LANDMARK LAW • Title VII of the Civil Rights Act of 1964
4. Race and Color Discrimination
1. Case 19.1 • Bennett v. Nucor Corporation
2. LANDMARK LAW • Civil Rights Act of 1866
5. National Origin Discrimination
1. CONTEMPORARY ENVIRONMENT • English-Only Rules in the Workplace
7. Harassment
1. Case 19.2 • Waldo v. Consumers Energy Company
2. DIGITAL LAW • Offensive Electronic Communications Constitute Sexual and Racial Harassment
9. Defenses to a Title VII Action
10. Equal Pay Act
12. Discrimination Against People with Disabilities
1. LANDMARK LAW • Americans with Disabilities Act
13. Genetic Information Discrimination
14. Protection from Retaliation
1. Case 19.3 • U.S. SUPREME COURT CASE • Thompson v. North American Stainless, LP
1. CONTEMPORARY ENVIRONMENT • Veterans and Military Personnel Employment Protections
“ What people have always sought is equality of rights before the law. For rights that were not open to all equally would not be rights.”
—Cicero (106 bce–43 bce) De Officilis, Book II, Chapter XII
Introduction to Equal Opportunity in Employment
Under common law, employers could terminate an employee at any time and for any reason. In this same vein, employers were free to hire and promote anyone they chose, without violating the law. This situation often created unreasonable hardship on employees and erected employment barriers to certain minority classes.
We hold these truths to be self-evident, that all men and women are created equal.
Elizabeth Cady Stanton (1848)
Starting in the 1960s, Congress began enacting a comprehensive set of federal laws that eliminated major forms of employment discrimination . These laws, which were passed to guarantee equal opportunity in employment to all employees and job applicants, have been broadly interpreted by the federal courts, particularly the U.S. Supreme Court. States have also enacted antidiscrimination laws. Many state and local governments have adopted laws that prevent discrimination in employment.
equal opportunity in employment
The rights of all employees and job applicants (1) to be treated without discrimination and (2) to be able to sue employers if they are discriminated against.
This chapter discusses equal opportunity in employment laws.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing most federal antidiscrimination laws. The members of the EEOC are appointed by the U.S. president. The EEOC is empowered to conduct investigations, interpret the statutes, encourage conciliation between employees and employers, and bring suits to enforce the law. The EEOC can also seek injunctive relief.
Equal Employment Opportunity Commission (EEOC)
The federal administrative agency that is responsible for enforcing most federal antidiscrimination laws.
The EEOC has jurisdiction to investigate charges of discrimination based on race, color, national origin, gender, religion, age, disability, and genetic information.
Complaint Process
If a person believes that he or she has been discriminated against in the workplace, he or she cannot immediately file a lawsuit against the employer. The complainant must first file a complaint with the EEOC. The EEOC often requests that the parties try to resolve their dispute through mediation. If mediation does not work, the EEOC will investigate the charge. If the EEOC finds a violation, it will decide whether to sue the employer. If the EEOC sues the employer, the complainant cannot sue the employer. In this case, the EEOC represents the complainant. If the EEOC finds a violation and chooses not to bring suit, or does not find a violation, the EEOC will issue a right to sue letter to the complainant. This gives the complainant the right to sue his or her employer.
WEB EXERCISE
Go to www.eeoc.gov/field/index.cfm . Find the location and address of the EEOC field office that serves your area.
right to sue letter
A letter that is issued by the EEOC if it chooses not to bring an action against an employer that authorizes a complainant to sue the employer for employment discrimination.
If a state has a Fair Employment Practices Agency (FEPA) , the complainant may file his or her claim with the FEPA instead of the EEOC. Often a complainant will file a complaint with a FEPA if state law provides protection from discrimination not covered by federal laws or if the FEPA’s procedure permits a filing date that is longer than that of the EEOC. The FEPA complaint process is similar to that of the EEOC.
Lilly Ledbetter Fair Pay Act of 2009
The Civil Rights Act provided that a rejected applicant for a job or an employee who suffers pay discrimination must file a discrimination lawsuit within 180 days of the employer’s act that causes the discrimination.
The Lilly Ledbetter Fair Pay Act of 2009 1 is a federal statute that provides that each discriminatory pay decision restarts the statutory 180-day clock. Thus, a plaintiff can file a claim against an employer within 180 days of the most recent paycheck violation. The act provides that a court can award back pay for up to two years preceding the filing of the claim if similar violations occurred during the prior two-year time period.
Lilly Ledbetter Fair Pay Act of 2009
A federal statute that permits a complainant to file an employment discrimination claim against an employer within 180 days of the most recent paycheck violation and to recover back pay for up to two years preceding the filing of the claim if similar violations occurred during the two-year period.
Example
A female is hired by an employer as an employee. During a 36-month period, the employer engages in pay act violations and underpays the female employee each pay period. In this example, the female employee has 180 days from the date of the last paycheck violation to file her claim. If she files the claim and the employer is found to have violated the law during the three-year period, the female employee can recover back pay for the two years preceding the date of the last paycheck violation.
Title VII of the Civil Rights Act of 1964
Prior to the passage of major federal antidiscrimination laws in the 1960s, much discrimination existed in this country. In the 1960s, Congress enacted several major federal statutes that outlawed discrimination against various members of society.
After substantial debate, Congress enacted the Civil Rights Act of 1964 . 2 This was a historical and sweeping civil rights law that prohibited discrimination based on race, color, national origin, gender, and religion in public accommodations (e.g., motels, hotels, restaurants, theaters) by state and municipal government public facilities, by government agencies that receive federal funds, and in employment.
One of the major provisions of the Civil Rights Act of 1964 is Title VII, which governs the employment relationship. Title VII of the Civil Rights Act of 1964 is discussed in the following feature.
Landmark Law Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 makes illegal job discrimination based on the following protected classes: race, color, national origin, sex, and religion. 3 Section 703(a)(2) of Title VII, as amended, provides, in pertinent part, that:
Title VII of the Civil Rights Act of 1964
A title of a federal statute enacted to eliminate job discrimination based on five protected classes: race, color, religion, sex, and national origin.
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Scope of Coverage of Title VII
Title VII of the Civil Rights Act of 1964 applies to (1) employers with 15 or more employees, (2) all employment agencies, (3) labor unions with 15 or more members, (4) state and local governments and their agencies, and (5) most federal government employment. Native American tribes and tax-exempt private clubs are expressly excluded from coverage. Other portions of the Civil Rights Act of 1964 prohibit discrimination in housing, education, and other facets of life.
Title VII prohibits discrimination in hiring, decisions regarding promotion or demotion; payment of compensation and fringe benefits; availability of job training and apprenticeship opportunities; referral systems for employment; decisions regarding dismissal; work rules; and any other “term, condition, or privilege” of employment. Any employee of a covered employer, including undocumented aliens, may bring actions for employment discrimination under Title VII.
Rights matter most when they are claimed by unpopular minorities.
J. Michael Kirby
Sydney Morning Herald, November 30, 1985
Critical Legal Thinking
1. Why did it take the federal government until 1964 to enact the Civil Rights Act? Had the United States lived up to its promise that “All men are created equal,” as stated in the Declaration of Independence drafted by Thomas Jefferson in 1776?
U.S. citizens employed by U.S.-controlled companies in foreign countries are covered by Title VII. Foreign nationals employed in foreign countries by U.S.-controlled companies are not covered by Title VII.
Title VII prohibits two major forms of employment discrimination: disparate-treatment discrimination and disparate-impact discrimination. These are discussed in the following paragraphs.
Disparate-Treatment Discrimination
Disparate-treatment discrimination occurs when an employer treats a specific individual less favorably than others because of that person’s race, color, national origin, sex, or religion. In such situations, the complainant must prove that (1) he or she is a member of a Title VII protected class, (2) he or she applied for and was qualified for the employment position, (3) he or she was rejected despite this, and (4) the employer kept the position open and sought applications from persons with the complainant’s qualifications.
disparate-treatment discrimination
A form of discrimination that occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion.
Example
A member of a minority race applies for a promotion to a position advertised as available at his company. The minority applicant, who is qualified for the position, is rejected by the company, which hires a nonminority applicant for the position. The minority applicant sues under Title VII. He has a prima facie case of illegal discrimination. The burden of proof shifts to the employer to prove a nondiscriminatory reason for its decision. If the employer offers a reason, such as saying that the minority applicant lacked sufficient experience, the burden shifts back to the minority applicant to prove that this was just a pretext (i.e., not the real reason) for the employer’s decision.
Disparate-Impact Discrimination
Disparate-impact discrimination occurs when an employer discriminates against an entire protected class. Many disparate-impact cases are brought as class action lawsuits. This type of discrimination is often proven through statistical data about an employer’s employment practices. The plaintiff must demonstrate a causal linkbetween the challenged practice and the statistical imbalance. Showing a statistical disparity between the percentages of protected class employees and the percentage of the population that the protected class makes within the surrounding community is not enough, by itself, to prove discrimination. Disparate-impact discrimination can occur when an employer adopts a work rule that is neutral on its face but is shown to cause an adverse impact on a protected class.
disparate-impact discrimination
A form of discrimination that occurs when an employer discriminates against an entire protected class. An example is discrimination in which a racially neutral employment practice or rule causes an adverse impact on a protected class.
Example
If an employer has a rule that all applicants for an executive position must be at least 5 feet 8 inches tall, this looks like a neutral rule because it applies to both males and females. However, because this rule is unrelated to the performance of an executive position and eliminates many more females than males from being hired or promoted to an executive position, it is disparate-impact sex discrimination, in violation of Title VII.
Remedies for Violations of Title VII
A successful plaintiff in a Title VII action can recover back pay and reasonable attorney’s fees. The courts also have broad authority to grant equitable remedies. For instance, the courts can order reinstatement, grant fictional seniority, and issue injunctions to compel the hiring or promotion of protected minorities.
A court can award punitive damages against an employer in a case involving an employer’s malice or reckless indifference to federally protected rights. The sum of compensatory and punitive damages is capped at different amounts of money, depending on the size of the employer.
Title VII imposes liability on employers. Courts have routinely refused to hold individual employees liable under Title VII or other federal antidiscrimination laws.
Until justice is blind to color, until education is unaware of race, until opportunity is unconcerned with the color of men’s skins, emancipation will be a proclamation but not a fact.
Lyndon B. Johnson (1908–1973) former president of the United States
Race and Color Discrimination
Title VII of the Civil Rights Act of 1964 was enacted primarily to prohibit employment discrimination based on a person’s race and color. Title VII provides equal opportunity in employment for minority job applicants and minority employees seeking promotion.
Race Discrimination
The EEOC recognizes the following racial classifications:
|
Racial Group |
Description |
|
African American |
A person having origins in any of the black racial groups of Africa. |
|
Asian |
A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent. |
|
Caucasian |
A person having origins in any of the original peoples of Europe, the Middle East, and North Africa. |
|
Native American |
A person having origins in any of the original peoples of North, South, or Central America. |
|
Pacific Islander |
A person having origins in any of the original peoples of Hawaii and the Pacific Islands. |
Race discrimination in employment violates Title VII.
race discrimination
Employment discrimination against a person because of his or her race.
Example
National Corporation has a job opening for its chief executive officer (CEO) position. The employer receives applications for this position from many persons, including Joe Thomas, who is an African American. Thomas is the best-qualified applicant for the job. If National Corporation does not hire Thomas because of his race, the company has engaged in race discrimination, in violation of Title VII. This would be disparate treatment discrimination.
Critical Legal Thinking
1. Was Title VII necessary to eliminate race discrimination in employment? Would businesses have eliminated race discrimination in employment voluntarily?
Example
If an employer refuses to hire or promote all persons of a racial class, then the company has engaged in employment discrimination in violation of Title VII. This would be disparate-impact discrimination.
In the following case, the court addressed the issue of racial harassment in the workplace.
CASE 19.1 FEDERAL COURT CASE Race Discrimination Bennett v. Nucor Corporation
656 F.3d 802, 2011 U.S. App. Lexis 19395 (2011) United States Court of Appeals for the Eighth Circuit
“In a hostile environment case, evidence of prior acts of discrimination against nonparties can be probative of the type of workplace environment to which the plaintiffs were subjected.”
—Colloton, Circuit Judge
Facts
Nucor Corporation is a large steel manufacturing company that operates a number of production plants in the United States, including a facility in Blytheville, Arkansas, that employs 200 workers. The plaintiffs—Cornelius Bennett, Sylvester Rogers, Rodney Washington, Clifton Lee, Ozzie Green, and Larry McBride—were African American employees who worked in the roll mill department, where they formed steel beams, at the Blytheville facility. The plaintiffs brought a lawsuit in U.S. district court against Nucor alleging that Nucor engaged in racial discrimination and harassment against the plaintiffs in violation of Title VII. The plaintiffs presented evidence that certain employees of Nucor regularly used racial epithets, that racial graffiti commonly appeared in the bathrooms, that the Confederate flag was often displayed in the plant, that black employees were ridiculed by other employees on the workplace radio system, and that the plaintiffs were subject to other worse incidents of racial harassment on the job. Evidence was introduced at trial that showed that Nucor, after proper notice, did not remedy these problems. A prior complaint filed against Nucor by the Equal Employment Opportunity Commission (EEOC) for racial discrimination against other parties was also introduced as evidence at trial. The jury found the defendant liable for violating Title VII and awarded each of the plaintiffs $200,000 in damages. Nucor appealed.
Issue
Is Nucor liable for racial harassment?
Language of the Court
In a hostile environment case, evidence of prior acts of discrimination against nonparties can be probative of the type of workplace environment to which the plaintiffs were subjected, and of the employer’s knowledge and motives. The district court did not abuse its discretion by concluding that anytime we have a racially hostile environment claim and there is a background of the EEOC being involved, that is relevant to whether there is continued race discrimination or a racially hostile work environment.
Decision
The U.S. court of appeals affirmed the U.S. district court’s finding of racial harassment and the award of damages to the plaintiffs.
Ethics Questions
1. Do employees act ethically when they use racial epithets and engage in racial harassment? Should Nucor have acted promptly to prevent such behavior?
Color Discrimination
Color refers to the color or complexion of a person’s skin. Discrimination by an employer based on color violates Title VII. Color discrimination cases are not brought as often as cases involving other forms of discrimination.
color discrimination
Employment discrimination against a person because of his or her color, for example, a light-skinned person of a race discriminates against dark-skinned person of the same race.
Example
If a light-skinned member of a race refuses to hire a dark-skinned member of the same race, this constitutes color discrimination, in violation of Title VII.
Unlawful discrimination occurs if an employer treats persons unfavorably because they are married to or associate with a person of a certain race or color, or because of a person’s connection with a race-based organization or group.
Example
An employer violates Title VII if it discriminates against job applicants or employees who belong to the National Association for the Advancement of Colored People (NAACP).
The following feature discusses the Civil Rights Act of 1866.
Landmark Law Civil Rights Act of 1866
The Civil Rights Act of 1866 was enacted after the Civil War. Section 1981 of this act states that all persons “have the same right . . . to make and enforce contracts . . . as is enjoyed by white persons.” 4 This law was enacted to give African Americans, just freed from slavery, the same right to contract as whites. Section 1981 expressly prohibits racial discrimination; it has also been held to forbid discrimination based on national origin.
Civil Rights Act of 1866
A federal statute enacted after the Civil War that states that all persons “have the same right . . . to make and enforce contracts . . . as is enjoyed by white persons.” This act prohibits race and national origin discrimination.
Employment decisions are covered by Section 1981 because the employment relationship is contractual. Although most racial and national origin employment discrimination cases are brought under Title VII, a complainant might bring an action under Section 1981 for two reasons: (1) A private plaintiff can bring an action without going through the procedural requirements of Title VII, and (2) there is no cap on the recovery of compensatory or punitive damages under Section 1981.
There is a great difference between nationality and race. Nationality is the miracle of political independence. Race is the principle of physical analogy.
Benjamin Disraeli (1804–1881)
National Origin Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on national origin. National origin refers to the place of origin of a person’s ancestors; physical, linguistic, or cultural characteristics; or heritage. National origin discrimination includes discrimination against employees or job applicants of a particular nationality (e.g., persons of Irish descent), against persons who come from a particular country (e.g., Iran), against persons of a certain culture (e.g., Hispanics), or against persons because of their accents. Discrimination by an employer based on a person’s national origin or heritage violates Title VII.
national origin discrimination
Employment discrimination against a person because of his or her heritage, cultural characteristics, or the country of the person’s ancestors.
Example
National Corporation has a position for chief operations officer (COO) open. Several persons from within the company apply for a promotion to this position. Naseem al-Gharsi, whose national origin is Yemen, is one of the applicants; al-Gharsi has a Ph.D. in information sciences and 10 years’ work experience, and has been with the company for five years in the capacity of operations manager. Although al-Gharsi is the best-qualified person for the position, al-Gharsi is not promoted because of his Arabic heritage, and a less-qualified person is promoted. The company has engaged in national origin discrimination, in violation of Title VII.
National origin discrimination occurs if an employer treats persons unfavorably because they are married to or associate with a person of a certain national origin. An employer may not base an employment decision on an employee’s foreign accent unless the accent seriously interferes with the employee’s job performance.
The following feature discusses the lawfulness of English-only rules in the workplace.
Contemporary Environment English-Only Rules in the Workplace
In today’s multicultural society, many persons in the United States speak two languages, usually English and another language. Sometimes employees speak their native language in the workplace. Many employers have adopted English-only rules for the workplace. The issue is whether English-only rules are lawful or whether they create national origin discrimination, in violation of Title VII.
The Equal Employment Opportunity Commission (EEOC) states that an English-only rule that is justified by “business necessity” is lawful. Thus, an English-only rule that is limited to the work area is usually lawful. That is, employees are free to speak a language other than English during breaks, lunchtime, and before and after work while still on the premises.
Example
A hospital that serves primarily English-speaking patients may generally adopt an English-only rule requiring that employees speak only English when performing their duties and wherever patients can hear workers speaking.
An employer English-only rule that prohibits the use of a non-English language in the entire work premises at all times is usually presumed to be national origin discrimination, in violation of Title VII.
An employer’s rule requiring that employees be bilingual to qualify for a job does not violate Title VII as long as there is justification for the rule.
Example
A school district that serves a Hispanic neighborhood could require that its teachers be bilingual in English and Spanish.
Gender Discrimination
Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on gender. The act, as amended, plus the EEOC’s rules and court decisions, prohibit employment discrimination based on gender, pregnancy, and sexual orientation. In addition, sexual harassment is also prohibited.
Gender Discrimination
Title VII prohibits employment discrimination based on gender. Gender discrimination , also known as sex discrimination , occurs when an employer treats a job applicant or employee unfavorably because of that person’s sex. Although the prohibition against sex discrimination applies equally to men and women, the majority of Title VII sex discrimination cases are brought by women.
gender discrimination (sex discrimination)
Discrimination against a person because of his or her gender.
Sex discrimination in violation of Title VII occurs where an employer engages in direct sex discrimination.
Example
An employer refuses to promote a qualified female to a management position because of her gender.
Title VII also prohibits any form of gender discrimination where sexual favors are requested in order to obtain a job or be promoted. This is called quid pro quo sex discrimination .
Example
A manager refuses to promote a female unless she engages in sexual activities with him.
Sex-plus discrimination occurs when an employer does not discriminate against a class as a whole but treats a subset of the class differently. Courts have held that sex-plus discrimination violates Title VII of the Civil Rights Act of 1964.
Example
An employer does not discriminate against females in general but does discriminate against married women or women with children.
Sex discrimination can also involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.
Critical Legal Thinking
1. Do you think that a “glass ceiling” still exists when females are considered for promotion to the highest executive positions? Is sex discrimination difficult to prove?
Example
An employer violates Title VII if it discriminates against female job applicants or employees who belong to the National Organization for Women (NOW).
Lesbian, gay, bisexual, and transgender individuals may bring sex discrimination claims, such as when an employer takes an adverse action because of the person’s nonconformance with sex stereotypes. Discrimination against an individual because that person is transgender is sex discrimination that violates Title VII. This is known as gender identity discrimination .
Pregnancy Discrimination
In 1978, the Pregnancy Discrimination Act was enacted as an amendment to Title VII. 5 The act forbids employment discrimination against a female job applicant or employee because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy Discrimination Act
A federal act that forbids employment discrimination because of pregnancy, childbirth, or related medical conditions.
Example
Susan, a 30-year-old college graduate, goes on a job interview for an open position at a company. The interviewer asks Susan if she plans on having children, if that would affect her ability to come to work every day or to perform her duties, and if it would affect her ability to travel on company business. The company refuses to hire Susan because she is a female who might have children. This is a violation of the Pregnancy Discrimination Act.
It is unlawful to harass a woman because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth and the harassment is so severe that it creates a hostile work environment.
Harassment
Sometimes supervisors and coworkers engage in conduct that is offensive because it is sexually, racially, ethnically, or religiously charged. Such conduct is referred to as harassment.
Examples
Lewd remarks, offensive or sexually or racially oriented jokes, name calling, slurs, intimidation, ridicule, mockery, and insults or put-downs.
The U.S. Supreme Court has held that sexual harassment that is so severe or frequent that it creates a hostile work environment violates Title VII. 6 To determine what conduct creates a hostile work environment, the U.S. Supreme Court has stated:
[W]hether 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. 7
An isolated incident or offhand remark that is not very serious and that does not create a hostile work environment or adverse employment decision does not violate Title VII.
Classification of Harasser
Determining the liability of an employer for harassing conduct of an employee involves different liability rules depending on whether the harassing employee is a coworker or supervisor.
If employee who harasses another employee is a coworker , then the employer is liable if it was negligent in controlling the working situation. In this situation, an employer may not invoke an affirmative defense.
Example
An employer knew or reasonably should have known about harassment but failed to take remedial action.
If the employee who harasses another employee is a supervisor, the rules of employer liability change. For Title VII purposes, a supervisor is narrowly defined as a person who is empowered by the employer to take tangible employment actions against the victim, such as making decisions regarding hiring and firing, promotion and demotion, reassignment, or a significant change in benefits. A person who does not have this authority is considered a coworker for Title VII purposes, even if that person has some other supervisory responsibilities.
If a supervisor harasses an employee by causing a tangible employment action, such as the victim being terminated, demoted, or denied employment benefits, then the employer is strictly liable for the harassing supervisor’s conduct. That is, the employer cannot raise a defense to avoid liability.
Example
A supervisor harasses an employee because she is African American and then demotes her without cause. The employer is strictly liable for this conduct and the employer cannot raise a defense against the imposition of strict liability.
If a supervisor harasses an employee but no tangible employment action is taken, that is, the victim is not terminated, demoted, or denied employment benefits, then the employer is vicariously liable unless it can prove the following affirmative defense :
WEB EXERCISE
Go to www.eeoc.gov/eeoc/newsroom . Under the term “Press Releases,” replace “Search all releases” with “sexual harassment” and click on the “Search” button. Read an EEOC press release of a case involving sexual harassment.
1. The employer exercised reasonable care to prevent, and promptly correct, any sexual harassing behavior, and
2. The plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
The defendant-employer has the burden of proving this affirmative defense. In determining whether the defense has been proven, a court considers (1) whether the employer has an antiharassment policy, (2) whether the employer had a complaint mechanism in place, (3) whether employees were informed of the antiharassment policy and complaint procedure, and (4) other factors that the court deems relevant.
Example
A supervisor harasses an employee by making continual offensive remarks about the victim’s national origin, ethnicity, and accent. The supervisor does not, however, fire, demote, or take other adverse employment decisions against the victim. The victim notifies the employer’s human resources department, but the employer takes no action to remedy the harassing conduct. In this example, the employer is vicariously liable because of the supervisor’s harassment and because it cannot prove an affirmative defense.
Most employers require employees to take training courses, either in person or online, that informs employees of what constitutes harassment, the business’s antiharassment policy, the complaint procedure, and other relevant information.
CONCEPT SUMMARY Liability of an Employer for an Employee’s Harassment
|
Harassing Party |
Liability of Employer |
|
Coworker |
Employer is liable if it was negligent in controlling the workplace. |
|
Supervisor |
Employer is strictly liable for a harassing supervisor’s conduct if a tangible employment action is taken against the victim (e.g., the victim is fired, demoted, or denied employment benefits). |
|
Supervisor |
Employer is vicariously liable for a harassing supervisor’s conduct where no tangible employment action is taken and the employer cannot prove an affirmative defense. |
Racial and National Origin Harassment
It is unlawful to harass a person because of his or her race, color, or national origin if it is so severe that it creates a hostile work environment.
Examples
Racial slurs, offensive or derogatory remarks about a person’s race or color or national origin, offensive name calling, or the display of racially offensive symbols.
Sexual Harassment
Sometimes supervisors and coworkers engage in conduct that is offensive because it is sexually charged. Such conduct is referred to as gender harassment or sexual harassment . Sexual harassment is an insidious and pervasive type of harassment in the workplace. The victim and the harasser can be either a man or a woman, and the victim and harasser can be of the same sex. Thus, same-gender harassment , also called same-sex harassment, violates Title VII. 8
gender harassment (sexual harassment)
Lewd remarks, touching, intimidation, posting of indecent materials, and other verbal or physical conduct of a sexual nature that occurs on the job.
Examples
Lewd remarks; sexually oriented jokes; name calling, ridicule, and insults; offensive or sexually explicit objects, pictures, cartoons, posters, and screen savers; offensive remarks about a person’s sex; unwelcome sexual advances; requests for sexual favors; physical threats; touching; offensive comments about women in general; and other verbal or physical conduct of a sexual nature.
The following case involves sexual harassment.
CASE 19.2 FEDERAL COURT CASE Sexual Harassment Waldo v. Consumers Energy Company
726 F.3d 802, 2013 U.S. App. Lexis 16555 (2013) United States Court of Appeals for the Sixth Circuit
“Waldo’s working environment at Consumers was filled with discriminatory intimidation, ridicule, and insult that was sufficient to create a hostile work environment.”
—Moore, Circuit Judge
Facts
Theresa Waldo was employed by Consumers Energy Company of Michigan as an electrical line worker, a position that involved working in rural areas with electric lines containing high-voltage current attached to tall steel towers. She was the first woman employed by the company for this position. From the beginning of her employment, she was routinely subjected to sexual harassment. Waldo’s male coworkers refused to work with her because she was female, making it clear that women were not welcome at the job. The crew members would not let her use the company truck to drive to find bathrooms to use. Her male coworkers urinated outdoors, and they told her, “You want to work in a man’s world, pee like a guy.” Waldo’s coworkers locked her in a port-a-potty by taping the doors shut. Her coworkers displayed sexually explicit calendars, playing cards, and magazines in the trucks and at her places of work. They threw her purse out the window of a moving truck, excluded her from lunch trips, ostracized and ignored her at job sites, and at times refused to speak to her or work with her. Waldo was repeatedly called derogatory and demeaning names, such as “bitch,” “wench,” and other gender-specific demeaning language. Waldo reported these instances to her supervisor and to the human resources (HR) department of the company, but the company did not investigate or curb such abuses. Waldo sued Consumers in U.S. district court for sexual harassment in violation of Title VII. The jury rendered a verdict in favor of Waldo, awarding her $400,000 in compensatory damages and $7,500,000 in punitive damages, which the court reduced to $300,000 based on caps on damages established by federal law. The court also awarded $684,000 in attorney’s fees and $38,000 for costs and fees. Consumers appealed.
Issue
Is Consumers liable for sexual harassment?
Language of the Court
Based on the totality of evidence presented to the jury, the district court did not abuse its discretion in finding that the clear weight of the evidence demonstrated that Waldo’s working environment at Consumers was filled with discriminatory intimidation, ridicule, and insult that was sufficient to create a hostile work environment. Additionally, it was not an abuse of discretion to find that the clear weight of the evidence demonstrated that Consumers’ response to the complaints of harassment was inadequate.
Decision
The U.S. court of appeals affirmed the U.S. district court’s finding of sexual harassment and the award of damages, attorney’s fee, and costs.
Ethics Questions
1. Did Waldo’s male coworkers act ethically in this case? What should Consumers have done when it received Waldo’s complaints?
The following feature discusses sexual harassment caused by sending offensive e-mails.
reasonable accommodation for religion
Under Title VII, an employer’s duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer.
religious discrimination
Discrimination against a person because of his or her religion or religious practices.
Digital Law Offensive Electronic Communications Constitute Sexual and Racial Harassment
The use of e-mail, texting using smartphones and other devices, and other electronic forms of communication in business have increased efficiency and information sharing among employees. Managers and workers can communicate with each other, send documents, and keep each other informed about business developments. In many organizations, electronic communications has replaced the telephone as the most-used method of communication, and it has eliminated the need for many meetings.
Electronic communication has increased the exposure of employees to sexual and racial harassment and therefore employers to lawsuits. The standard of whether an electronic communication creates an illegal hostile work environment is the same as that for measuring harassment in any other context: The offensive conduct must be severe and cannot consist of isolated or trivial remarks and incidents.
E-mail harassment and other forms of electronic harassment differ from other incidents of harassment because it is subtle and insidious. Unlike vocal and some other forms of harassment, however, electronic harassment creates evidence that is often recoverable and therefore provides harassed employees the ability to prove the harassment.
Employers must adopt policies pertaining to the use of e-mail, texting, and other electronic communications and make their employees aware that certain electronic messages constitute harassment and violate the law. Employers should make periodic inspections and audits of stored electronic communications to ensure that employees are complying with company antiharassment policies.
Religious Discrimination
Title VII prohibits employment discrimination based on a person’s religion. Religions include traditional religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism; other religions that recognize a supreme being; and religions based on ethical or spiritual tenets.
The right of an employee to practice his or her religion is not absolute. Under Title VII, an employer is under a duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer. An employer is liable for religious discrimination if it does not make a reasonable accommodation for an employee’s religious beliefs that could be done without causing an undue hardship on the employer. Undue hardship may occur if the requested accommodation would be costly, compromise workplace safety, decrease workplace efficiency, infringe on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state.
Thomas Jefferson (1743–1826)
Employees often request an accommodation to observe their religious holidays. Common accommodations to accomplish this include flexible scheduling, voluntary shift substitutions or swaps, and job reassignments. The extent of the accommodation depends on factors such as the size of the employer, the importance of the employee’s position, and the availability of alternative workers.
Example
An employer with 500 employees could most likely make a reasonable accommodation for a Jewish employee who chooses not to work on the holy day of Yom Kippur. With so many employees, it would likely not cause an undue hardship on the employer to get another worker to cover for one day.
Employers must also accommodate dress and grooming practices if it would not cause an undue hardship to do so.
Examples
Wearing particular head coverings, such as a Jewish yarmulke or a Muslim headscarf, and wearing certain hairstyles and facial hair, such as Rastafarian dreadlocks or the uncut hair and beard of a Sikh.
Title VII prohibits workplace or job segregation based on religion, such as assigning an employee to a noncontact position because of actual or feared customer preference. Religious discrimination occurs if an employer treats an employee or job applicant differently because he or she is married to or associated with an individual of a particular religion.
It is illegal to harass a person because of his or her religion. Such harassment violates Title VII if it is so severe that it creates a hostile work environment.
Example
A supervisor or coworker frequently makes offensive remarks about a person’s religious beliefs or practices.
Title VII expressly permits religious organizations to give preference in employment to individuals of a particular religion. For example, if a person applies for a job with a religious organization but does not subscribe to its religious tenets, the organization may refuse to hire that person.
Defenses to a Title VII Action
Title VII and case law recognize several defenses to a charge of discrimination under Title VII. Employers can select or promote employees based on merit. Merit decisions are often based on work, educational experience, and professionally developed ability tests. To be lawful under Title VII, such a requirement must be job-related.
Many employers maintain seniority systems that reward long-term employees. Higher wages, fringe benefits, and other preferential treatment (e.g., choice of working hours, choice of vacation schedule) are examples of such rewards. Seniority systems provide an incentive for employees to stay with the company. Such systems are lawful if they are not the result of intentional discrimination.
Bona Fide Occupational Qualification
Discrimination based on protected classes other than race or color is permitted if it is shown to be a bona fide occupational qualification (BFOQ) . Thus, an employer can justify discrimination based on gender in some circumstances. To be legal, a BFOQ must be both job-related and a business necessity.
bona fide occupational qualification (BFOQ)
A true job qualification. Employment discrimination based on a protected class other than race or color is lawful if it is job-related and a business necessity. This exception is narrowly interpreted by the courts.
Examples
Allowing only women to be locker-room attendants in a women’s gym is a valid BFOQ. Prohibiting males from being managers or instructors at the same gym would not be a BFOQ.
CONCEPT SUMMARY Title VII of the Civil Rights Act
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Covered employers and employment decisions |
1. Employers. Employers with 15 or more employees for 20 weeks in the current or preceding year, all employment agencies, labor unions with 15 or more members, state and local governments and their agencies, and most federal government employers. 2. Employment decisions. Decisions regarding hiring; promotion; demotion; payment of salaries, wages, and fringe benefits; dismissal; job training and apprenticeships; work rules; or any other term, condition, or privilege of employment. Decisions to admit partners to a partnership are also covered. |
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Protected classes |
1. Race. A broad class of individuals with common characteristics (e.g., African American, Caucasian, Asian, Native American). 2. Color. The color of a person’s skin (e.g., light-skinned person, dark-skinned person). 3. National origin. A person’s country of origin or national heritage (e.g., Italian, Hispanic). 4. Sex. A person’s sex, whether male or female. Includes sexual harassment and discrimination against females who are pregnant. 5. Religion. A person’s religious beliefs. An employer has a duty to reasonably accommodate an employee’s religious beliefs if doing so does not cause an undue hardship on the employer. |
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Types of discrimination |
1. Disparate-treatment discrimination. Discrimination against a specific individual because that person belongs to a protected class. 2. Disparate-impact discrimination. Discrimination in which an employer discriminates against a protected class. A neutral-looking employment rule that causes discrimination against a protected class is disparate-impact discrimination. |
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Defenses |
1. Merit. Job-related experience, education, or unbiased ability test. 2. Seniority. Length of time an employee has been employed by the employer. Intentional discrimination based on seniority is unlawful. 3. Bona fide occupational qualification (BFOQ). Discrimination based on sex, religion, or national origin is permitted if it is a valid BFOQ for the position. Qualification based on race or color is not a permissible BFOQ. |
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Remedies |
1. Equitable remedy. The court may order the payment of back pay, issue an injunction awarding reinstatement, grant fictional seniority, or order some other equitable remedy. 2. Damages. The court can award compensatory damages in cases of intentional discrimination. The court can award punitive damages in cases involving an employer’s malice or reckless indifference to federally protected rights. |
Equal Pay Act
Discrimination often takes the form of different pay scales for men and women performing the same job. The Equal Pay Act , a federal statute passed in 1963, protects both sexes from pay discrimination based on sex. 9 The act covers all levels of private-sector employees and state and local government employees. Federal workers are not covered, however.
Equal Pay Act
A federal statute that protects both sexes from pay discrimination based on sex. It extends to jobs that require equal skill, equal effort, equal responsibility, and similar working conditions.
The act prohibits disparity in pay for jobs that require equal skill (i.e., equal experience), equal effort (i.e., mental and physical exertion), equal responsibility (i.e., equal supervision and accountability), or similar working conditions (e.g., dangers of injury, exposure to the elements). To make this determination, the courts examine the actual requirements of jobs to determine whether they are equal and similar. If two jobs are determined to be equal and similar, an employer cannot pay disparate wages to members of different sexes.
Legislation to apply the principle of equal pay for equal work without discrimination because of sex is a matter of simple justice.
Dwight D. Eisenhower (1890–1969)
former president of the United States
Job content, not job titles, determines whether positions are substantially equal. All forms of pay are covered by the Equal Pay Act, including salary, overtime pay, bonuses, profit-sharing plans, insurance, vacation and holiday pay, reimbursement of expenses, and benefits.
Employees can bring a private cause of action against an employer for violating the Equal Pay Act. Back pay and liquidated damages are recoverable. The employer must increase the wages of the discriminated-against employee to eliminate the unlawful disparity of wages. The wages of other employees may not be lowered.
Example
Both Mary and Peter meet the educational requirements for a particular entry-level job and are both hired as staff accountants by a company to perform exactly the same duties at their job. The company pays Peter a salary that is 20 percent higher than Mary’s salary; its action is a violation of the Equal Pay Act.
Criteria That Justify a Differential in Wages
The Equal Pay Act expressly provides four criteria that justify a differential in payment systems:
· Seniority.
· Merit (as long as there is some identifiable measurement standard).
· Quantity or quality of product (i.e., commission, piecework, or quality control–based payment systems are permitted).
· “Any factor other than sex” (i.e., shift differentials, such as night versus day shifts).
The employer bears the burden of proving these defenses.
Example
Peter, a college graduate, has been working for a company for five years as a staff accountant. Mary, a new college graduate with no experience, is hired by the company as a staff accountant, with the same job duties and responsibilities as Peter. Peter is paid a 20 percent higher salary than Mary. This differential is justified based on seniority and therefore does not violate the Equal Pay Act.
Age Discrimination
Some employers have discriminated against employees and prospective employees based on their age. Primarily, employers have often refused to hire older workers. The Age Discrimination in Employment Act (ADEA) , a federal statute that was passed in 1967, prohibits certain age discrimination practices. 10
Age Discrimination in Employment Act (ADEA) of 1967
A federal statute that prohibits age discrimination practices against employees who are 40 years and older.
The ADEA protects employees who are 40 and older from job discrimination based on their age. The ADEA prohibits age discrimination in all employment decisions, including hiring, promotions, payment of compensation, and other terms and conditions of employment. Employers cannot use employment advertisements that discriminate against applicants covered by the ADEA. The Older Workers Benefit Protection Act (OWBPA) amended the ADEA to prohibit age discrimination with regard to employee benefits. 11
Older Workers Benefit Protection Act (OWBPA)
A federal statute that prohibits age discrimination regarding employee benefits.
Example
Wayne, who is 50 years old, applies for an open position as manager at Big Box Retail Stores, Inc. Wayne meets the job requirements of having a college degree and prior experience as a store manager and is otherwise qualified for the job. The employer refuses to hire Wayne because of his age and hires someone who is 30 for the job. This is age discrimination in violation of ADEA.
Because persons under 40 are not protected by the ADEA, an employer can maintain an employment policy of hiring only workers who are 40 years of age or older without violating the ADEA. However, some state laws protect persons under the age of 40 from being discriminated against. Under ADEA, an employer can maintain an employment practice whereby it gives preferential treatment to older workers over younger workers when they are both within the 40 years and older category.
He who would pass the declining years with honor and comfort, should when young, consider that he one day might become old, and remember when he is old, that he had once been young.
Joseph Addison (1672–1719)
Example
An employer can legally prefer to hire persons 50 years of age and older over persons age 40 to 49.
Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. It is unlawful to harass a person because of his or her age if it is so severe that it creates a hostile work environment.
Example
A supervisor or coworker frequently makes offensive remarks about a person’s age.
The ADEA permits age discrimination where a bona fide occupational qualification (BFOQ) is shown. A BFOQ may be asserted as a necessary qualification of the job or for public safety.
Example
Hiring a young person to play a young character in a movie or play is a lawful BFOQ. Setting an age limit for pilots would be a lawful BFOQ for public safety reasons.
The ADEA is administered by the EEOC. Private plaintiffs can also sue under the ADEA. A successful plaintiff in an ADEA action can recover back wages, attorney’s fees, and equitable relief, including hiring, reinstatement, and promotion. Where a violation of the ADEA is found, the employer must raise the wages of the discriminated-against employee. It cannot lower the wages of other employees.
Discrimination Against People with Disabilities
The Americans with Disabilities Act (ADA) , 12 which was signed into law July 26, 1990, is the most comprehensive piece of civil rights legislation since the Civil Rights Act of 1964. The ADA imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate physically challenged individuals.
American with Disabilities Act (ADA)
A federal statute that imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities.
The following feature discusses the portion of the ADA that prohibits employment discrimination against persons with covered disabilities.
Landmark Law Americans with Disabilities Act
Title I of the ADA 13 prohibits employment discrimination against qualified individuals with disabilities in regard to job application procedures, hiring, compensation, training, promotion, and termination. Title I covers employers with 15 or more employees. The United States and corporations wholly owned by the United States are exempt from Title I coverage.
Title I of the ADA is administered by the EEOC. An aggrieved individual must first file a charge with the EEOC, which may take action against the employer or permit the individual to pursue a private cause of action. If a disability discrimination lawsuit is successful, the court can issue an injunction against the employer, order the hiring or reinstatement (with back pay) of the discriminated-against individual, award attorney’s fees, and order the employer to pay compensatory and punitive damages to the discriminated-against individual; the dollar amounts are subject to the same caps as Title VII damages.
Congress passed the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 , 14 which amended the ADA. The primary purposes of the ADAAA were to expand the definition of disability, require that the definition of disability be broadly construed, and require commonsense assessments in applying the provisions of the ADA and ADAAA.
The ADA, as amended by the ADAAA, provides expansive protections for individuals with disabilities in the workplace. The following discussion is based on the cumulative provisions of the ADA and the ADAAA.
Qualified Individual with a Disability
A qualified individual with a disability is a person who can show that he or she has a disability in one of three ways:
Title I of the ADA
A title of a federal statute that prohibits employment discrimination against qualified individuals with disabilities in regard to job application procedures, hiring, compensation, training, promotion, and termination.
Americans with Disabilities Act Amendments Act (ADAAA) of 2008
A federal act that amends the ADA by expanding the definition of disability, requiring that the definition of disability be broadly construed, and requiring commonsense assessments in applying certain provisions of the ADA.
qualified individual with a disability
A person who has a physical or mental impairment that substantially limits a major life activity who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds.
1. A physical (physiological) or mental (psychological) impairment that substantially limits one or more of his or her major life activities, such as walking, talking, seeing, hearing, or learning.
2. A history of such impairment, such as cancer.
3. Regarded as having such impairment even if he or she does not have the impairment.
The ADAAA’s mandate is to construe the term disability broadly. The person with a disability must, with or without reasonable accommodation, be able to perform the essential functions of the job that person desires or holds.
A physiological impairment includes any physical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
Example
Deafness, blindness, speech impediments, partial or complete missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, and muscular dystrophy.
Impairment also includes mental or psychological disorders , such as intellectual disability (e.g., mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Examples
Major depression, bipolar disorder, posttraumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
Limits on Employer Questions
Title I of the ADA limits an employer’s ability to inquire into or test for an applicant’s disabilities. Title I forbids an employer from asking a job applicant about the existence, nature, and severity of a disability. An employer may inquire, however, about the applicant’s ability to perform job-related functions. Preemployment medical examinations before a job offer are forbidden. Once a job offer has been made, an employer may require a medical examination and may condition the offer on the examination results, as long as all entering employees are subject to such an examination. The information obtained must be kept confidential.
Reasonable Accommodation
Under Title I, an employer is under the obligation to make a reasonable accommodation to accommodate the individual’s disability as long as such accommodation does not cause an undue hardship on the employer.
reasonable accommodation for disability
Under Title I of the ADA, an employer’s duty to reasonably accommodate an individual’s disability if doing so does not cause an undue hardship on the employer.
If an employer makes a reasonable accommodation to accommodate an individual’s disability, there is no violation of the ADA. However, if an employer does not make a reasonable accommodation that could be made without causing an undue hardship on the employer, the employer has violated the ADA.
Examples
Reasonable accommodations may include making facilities readily accessible to individuals with disabilities, providing part-time or modified work schedules, acquiring equipment or devices, modifying examination and training materials, and providing qualified readers or interpreters.
Undue Hardship
Employers are not obligated to provide accommodations that would impose an undue hardship—that is, actions that would require significant difficulty or expense. The EEOC and the courts consider factors such as the nature and cost of accommodation, the overall financial resources of the employer, and the employer’s type of operation. What may be significantly difficult or expensive for a small employer may not cause an undue hardship for a large employer. If the needed accommodation would cause an undue hardship for the employer, there is no violation of the ADA if the employer does not make the accommodation.
One can never consent to creep when one feels an impulse to soar.
Helen Keller (1880–1968), author and political activist, first deaf and blind person to earn a bachelor’s degree
Uncovered Conditions
The ADA does not consider some impairments or illnesses or certain conditions to be disabilities. In fact, the act expressly states that certain impairments are not covered by the ADA. Temporary or nonchronic impairments of short duration with little or no residual effects usually are not considered disabilities.
Examples
Common colds, seasonal or common influenzas, sprained joints, minor or nonchronic gastrointestinal disorders, broken bones that are expected to heal completely, and seasonal allergies that do not substantially limit a person’s major life activities are not considered disabilities.
Pregnancy is not considered a disability under the ADA. However, impairments resulting from pregnancy, such as preeclampsia, are disabilities under the ADA.
A current user of illegal drugs or an alcoholic who uses alcohol or is under the influence of alcohol at the workplace is not covered by the ADA. However, former users of illegal drugs and recovering alcoholics could meet the definition of disability if they have successfully completed a supervised rehabilitation program or are participating in a supervised rehabilitation program (e.g., Narcotics Anonymous, Alcoholics Anonymous).
It is unlawful to harass a job applicant or employee because he or she has a disability, had a disability in the past, or is believed to have a physical or mental impairment. Harassment could include, for example, offensive remarks about a person’s disability. The ADA also protects people from employment discrimination based on their relationship with a person with a disability.
Genetic Information Discrimination
There have been and will continue to be tremendous advances in developing genetic tests that identify a person’s DNA and other genetic information. With genetic information, it is possible to determine a person’s propensity to be stricken by many diseases, such as diabetes, heart disease, Huntington’s disease, Lou Gehrig’s disease, Alzheimer’s disease, multiple sclerosis, certain types of cancers, and other diseases. With genetic information, preventive steps can be instituted, including medical, pharmaceutical, dietary, and exercise.
However, genetic information can be misused, possibly by employers if they have access to or knowledge of an applicant’s or an employee’s genetic information or his or her family’s genetic information. Such misuse is called genetic information discrimination .
genetic information discrimination
Discrimination based on information from which it is possible to determine a person’s propensity to be stricken by diseases.
Example
An employer might discriminate against an applicant or employee if it had information that the person’s family members have been stricken by a debilitating or a fatal disease and, because of genetics, the applicant or employee is at increased risk of suffering from the same disease.
Genetic Information Nondiscrimination Act
To address this concern, Congress enacted the Genetic Information Nondiscrimination Act (GINA) in 2008. 15 Title II of GINA makes it illegal for an employer to discriminate against job applicants and employees based on genetic information. Thus, an employer may not use genetic information in making employment decisions, including decisions to hire, promote, provide benefits, terminate, or other employment decisions. GINA is administered by the EEOC and other federal government agencies. Remedies for violations include corrective action and monetary fines. Individuals have a right to pursue private lawsuits to seek hiring, reinstatement, back pay, and compensatory and punitive damages.
Genetic Information Nondiscrimination Act (GINA)
A federal statute that makes it illegal for an employer to discriminate against job applicants and employees based on genetic information.
Inadvertent discovery of genetic information (the “water cooler” exemption) and voluntary submission of genetic information to an employer (e.g., as part of a wellness program) do not violate the act. The misuse of such information does violate the act. Under GINA, it is illegal to harass an applicant or employee because of his or her genetic information.
Protection from Retaliation
Federal antidiscrimination laws prohibit employers from engaging in retaliation against an employee for filing a charge of discrimination or participating in a discrimination proceeding concerning race, color, national origin, gender, religion, age, disability, genetic information, and other forms of discrimination. Acts of retaliation include dismissing, demoting, harassing, or other methods of reprisal.
Example
Mary files a gender discrimination claim with the EEOC that states that her employer has engaged in sex discrimination in violation of Title VII. The employer does not promote Mary when she qualifies for a promotion because she filed this claim. This is illegal retaliation.
In the following U.S. Supreme Court case, the Court decided an important issue regarding employer retaliation.
CASE 19.3 U.S. SUPREME COURT CASE Employer Retaliation Thompson v. North American Stainless, LP
131 S.Ct. 863, 2011 U.S. Lexis 913 (2011) Supreme Court of the United States
“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
—Scalia, Justice
Facts
Miriam Regalado and Eric Thompson, who were engaged to be married, both worked at North American Stainless, LP (NAS). Regalado filed a charge with the Equal Employment Opportunity Commission(EEOC), alleging sex discrimination by NAS, in violation of Title VII. Three weeks later, NAS fired Thompson. Thompson filed a charge with the EEOC, claiming that NAS fired him to retaliate against Regalado for filing her charge against NAS. Thompson sued NAS, alleging third-party retaliation, in violation of Title VII. The U.S. district court granted summary judgment to NAS and the U.S. court of appeals upheld this decision. The court of appeals reasoned that Thompson, as a third party, was not included in the class of persons who could bring a retaliation case under Title VII. Thompson appealed to the U.S. Supreme Court.
Issue
Does Title VII permit third-party retaliation claims against an employer?
Language of the U.S. Supreme Court
Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. We conclude that Thompson falls within the zone of interests protected by Title VII. Injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her.
Decision
The U.S. Supreme Court held that Title VII grants a third party the right to file a claim against his or her employer for retaliation. The Supreme Court remanded the case for further proceedings.
Note
In addition, Regalado could file a charge of retaliation against NAS for retaliating against her by firing her fiancéThompson.
Ethics Questions
1. Why does Title VII permit retaliation claims? Did North American Stainless act ethically by firing Thompson?
Affirmative Action
Title VII of the Civil Rights Act of 1964 outlawed discrimination in employment based on race, color, national origin, sex, and religion. The law clearly prohibited any further discrimination based on these protected classes. However, did the federal statute intend to grant a favorable status to the classes of persons who had been previously discriminated against? In a series of cases, the U.S. Supreme Court upheld the use of affirmative action to make up for egregious past discrimination, particularly discrimination based on race.
affirmative action
A policy providing that certain job preferences will be given to minority or other protected-class applicants when an employer makes an employment decision.
Affirmative-Action Plan
Employers often adopt an affirmative-action plan that provides that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when making employment decisions. Such plans can be adopted voluntarily by employers, undertaken to settle a discrimination action, or ordered by the courts.
To be lawful, an affirmative-action plan must be narrowly tailored to achieve some compelling interest. Employment quotas based on a specified number or percentage of minority applicants or employees are unlawful. If a person’s minority status is only one factor of many factors considered in an employment decision, that decision will usually be considered lawful.
Reverse Discrimination
Title VII also protects members of majority classes from discrimination. Lawful affirmative-action plans have an effect on members of majority classes. The courts have held that if an affirmative-action plan is based on preestablished numbers or percentage quotas for hiring or promoting minority applicants, then it causes illegal reverse discrimination . In such case, the members of the majority class may sue under Title VII and recover damages and other remedies for reverse discrimination.
reverse discrimination
Discrimination against a group that is usually thought of as a majority.
The following feature discusses employment protections afforded veterans and members of the military services.
Contemporary Environment Veterans and Military Personnel Employment Protections
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 , 16 as amended by the Veterans’ Benefits Act of 2010 , 17 is a federal statute that applies to all civilian and government employers in the United States and U.S. employers operating in foreign countries.
The law protects and grants employment benefits to persons who serve or have served in the U.S. military services (Air Force, Army, Coast Guard, Marines, and Navy) or who is or has been a member of the Reserves or National Guard. The law covers all military service, whether voluntary or involuntary.
The USERRA does the following:
· Prohibits employers from engaging in employment and wage discrimination against persons because of their past military service or their current or future military obligations.
· Requires employers to rehire returning service members who had previously been its employees at a job—with comparable status, pay, benefits, and seniority—that the person would have attained had they not been absent for military service. If the service member cannot qualify for reemployment for that position, the law allows for alternative reemployment positions. A person must serve less than five years in uniform service to qualify for reemployment.
· Requires employers to rehire persons with service-connected disabilities if the disability can be reasonably accommodated.
Employees are required to give advance written or verbal notice to their employer of their military duty unless giving notice is impossible, unreasonable, or precluded by necessity. A person must file an application for reemployment with their previous employer on release from military service.