final paper legal environment

Other Types of Discrimination 26

Chapters 22–25 in this unit have explored the application of Title VII of the 1964 Civil Rights Act to race, color, sex, and sexual harassment. However, federal protection under the act also extends to religion and national origin. This chapter begins with an examination of the protection of religious beliefs in the workplace and how employers can best comply with the law. It then explores discrimination based on national origin (under Title VII) and the numerous types of discrimination that are not covered by Title VII but instead mandated by federal statute, including the Age Discrimination in Employment Act (ADEA) of 1967, the Americans With Disabilities Act (ADA) of 1990, and the Americans With Disabilities Act Amendments Act (ADAAA) of 2008. Those who run businesses should be aware that disability discrimination lawsuits under Title VII are the fastest-growing segment of discrimination claims in the workplace. In addition, many types of discrimination are still legal, or at least legal in some states, for certain types of employees. We finish our exploration of this topic with an investigation into classes of people who are not protected by antidiscrimination laws.

26.1 Religious Discrimination

Title VII protects employees in the workplace from being treated unfairly because of their reli-gious beliefs and practices as follows: 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. . . .

“Religion” is defined to include only those “aspects of religious observance and practice” that an employer is able to “reasonably accommodate . . . without undue hardship on the conduct of the employer’s business” (42 U.S.C. §2000e(j)). Title VII imposes an obligation on the employer “to rea- sonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business” (29 C.F.R. § 1605.2(b)(1),(2)).

There are no absolutes with regard to the exact definition of a religion or what constitutes a religious practice. However, 43 U.S.C. § 2000 3(j) sheds some light on the subject, as described here in Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S. Ct. 526, 97 L.Ed. 828 (1953):

The term “religion” includes all aspects of religious observance and practice, as well as beliefs. . . . Nevertheless, this does not help an employer who has an employee claiming his or her activities are “religions” and therefore protected. The Supreme Court did little to help when it stated, “[I]t is no business of courts to say . . . what is a religious practice or activity.”

sea80373_26_c26_359-374.indd 1 10/4/12 3:28 PM

360

Section 26.1 Religious Discrimination CHAPTER 26

Various court decisions have determined that certain types of activities are neither reli- gions nor religious activities. These have included a professor’s beliefs in “scrupulous honesty in the pursuit of scientific knowledge” (Seshadri v. Kasraian, 130 F.3d. 798), the racist views of the Ku Klux Klan (Bellany v. Mason Stores, Inc., 368 F. Supp. 1025), and a religion founded on the belief in the ritual eating of cat food (Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977)).

One court (more helpfully) defined a bona fide religious belief as follows, stating that a belief is religious if it

(1) is religious within the plaintiff’s own scheme of things, and (2) is sincerely held. As long as a party’s beliefs are religiously based, it is not for the courts to inquire whether those beliefs “derived from revelation, study, upbringing, gradual evolution, or some source that appears entirely incomprehensible.” Thus, the individual’s assertion “that [his or her] belief is an essential part of a religious faith must be given great weight.” Courts may not engage in an extensive inquiry into the religious beliefs of the plaintiff in order to determine whether religion mandates the employee’s adherence. (EEOC v. Abercrombie & Fitch Stores, Inc., 798 F. Supp.2d 1272 N.D. Okla. (2011))

When Title VII was originally enacted, its language prohibited discrimination on the basis of religion, meaning religious beliefs, but did not address issues with regard to religious practices. To clarify the coverage of the legislation, in 2008, Congress amended the law to specifically include practices, as follows:

Section 703(a) of Title VII states in part that “[i]t shall be an unlawful employ- ment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.”

Reasonable Accommodation

The employer, apart from the motivation to do the right thing by its employees, may find it more cost effective to err on the side of caution by finding that the employee’s requested activity or practice has a religious basis and then to reasonably accommodate that activ- ity. Often the accommodation costs much less than fighting the request and can often be something as simple as a schedule change.

Employers who reasonably accommodate their employees’ religious beliefs, or make good-faith attempts to do so, greatly decrease their liability. In Sánchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., a cellular phone sales clerk alleged religious discrimination on the basis that he was a Seventh Day Adventist and needed to take off Saturdays to attend religious services. His job involved retail sales, and the company needed him to work a shift that sometimes rotated onto Saturday. In court, AT&T introduced evidence that it had tried to accommodate the plaintiff by offering him another job in the organization; allowing him to change shifts; and refraining from disciplinary action for his absenteeism. Nonetheless, Sánchez sued AT&T for religious discrimination, and the court then had to consider whether or not he had been “reasonably accommodated at work.” Excerpts from this case follow.

sea80373_26_c26_359-374.indd 2 10/4/12 3:28 PM

361

Section 26.1 Religious Discrimination CHAPTER 26

Cases to Consider: Sánchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc.

Sánchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1 (1st Cir. 2012)

. . . [W]e need not decide whether either of these accommodations was reasonable in isolation, because they were not offered in isolation—rather, they were offered as part of a series of attempts by AT&T to accommodate Sánchez. Many courts have found similar accommodations or combina- tions of accommodations to be reasonable under Title VII. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 77–78, 97 S. Ct. 2264, 53 L.Ed.2d 113 (1977) (holding that employer reason- ably accommodated Seventh Day Adventist employee by, inter alia, agreeing to permit any shift exchanges that employee could arrange on his own); Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1156–57 (10th Cir. 2000) (finding that where employer “remained sympathetic to [the plaintiff]’s religious requirements, approved all voluntary schedule swaps that [the plaintiff] was able to arrange, and imposed no restrictions or impediments on [the plaintiff]’s ability to attempt to arrange further voluntary schedule swaps with other employees,” employer did “all that Title VII reasonably requires the [employer] to do”) (citing 29 C.F.R. § 1605.2(d)(1)(I)); Eversley v. MBank Dal- las, 843 F.2d 172, 176 (5th Cir. 1988) (finding reasonable accommodation where employer delayed planned schedule changes in order to accommodate employee and offered lower-paying position that did not conflict with Sabbath); Hudson [v. Western Airlines, Inc.], 851 F.2d at 266 (provisions set forth in a collective bargaining agreement which “provided a means by which [an employee] could bid upon work schedules, work domiciles, vacation time, and personal leave . . . [and] allowed [an employee] to modify her schedule by trading her entire schedule or specific days off with other employees,” taken together, provided the employee with a reasonable accommodation); Smith v. Pyro Mining Co., 827 F.2d 1081, 1088 (6th Cir. 1987) (holding that as long as employee has no reli- gious constraints against arranging his own schedule swap with other employees, employer reason- ably accommodates employee by simply allowing swaps).

Taken together, we believe that the efforts made by AT&T constituted a reasonable accommodation of Sánchez’s religious beliefs. Therefore, we affirm the judgment of the district court on the discrimi- nation claim. We need not reach the question of whether accommodating Sánchez would have been an undue hardship for AT&T.

Read the full text of the case here: http://law.justia.com/cases/federal/appellate-courts/ca1/ 10-2177/10-2177-2012-03-08.html.

Questions to Consider

1. Do employers have to make any accommodation for an employee on the grounds of religious discrimination? Where do the courts draw the line in terms of what is required?

2. Often it is difficult to determine what a reasonable accommodation is. As a manager, what factors would you consider if an employee asked for a special dispensation?

sea80373_26_c26_359-374.indd 3 10/4/12 3:28 PM

362

Section 26.1 Religious Discrimination CHAPTER 26

In recent years, a number of interesting and provocative cases have come down in the area of religious accommodation. For example, a counselor at a hospital refused, on religious grounds, to counsel same-sex couples in the recent case of Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277 (11th Cir. 2012). (The full opinion of the case can be found at http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020120207083 .xml&docbase=CSLWAR3-2007-CURR.) However, the hospital was held to have made a reasonable accommodation because it gave the counselor 30 days to seek employment elsewhere and provided her with the use of its in-house placement (job) counselor.

In EEOC v. Abercrombie & Fitch Stores, Inc., 798 F. Supp.2d 1272 (N.D. Okla. 2011), men- tioned above, the court considered the situation where a business had a certain “look” in mind for its employees but certain religious beliefs went against that look. The Equal Employment Opportunity Commission (EEOC) brought an action on behalf of Samantha Elauf, a Muslim teenager who applied for a job at an Abercrombie store and was not hired because, as a Muslim, she wore a head scarf. Can an employer mandate a certain look if that goes against religious beliefs? The court said no: This was in fact religious discrimina- tion under Title VII.

In short, many litigated cases have indicated that as long as the employer makes a reason- able effort to accommodate the employee, the employer will not be found in violation of Title VII.

At the EEOC website, there are helpful lists of what employers can ask during the preem- ployment phase and how to best accommodate employees. See “Best Practices for Eradi- cating Religious Discrimination in the Workplace” at http://www.eeoc.gov/policy/ docs/best_practices_religion.html.

Burden Shifting

As with the other types of discrimination previously discussed, the same burden-shifting approach applies in these cases when they reach litigation. Specifically, the plaintiff must show that he or she:

1. Had a bona fide religious belief that conflicts with an employment requirement; 2. Informed the employer of this belief; and 3. Was not hired (or was fired) for failing to comply with the employment

requirement.

The burden then shifts to the defendant, who must counter the claim in three ways:

1. Conclusively rebut one or more elements of the plaintiff’s prima facie case; 2. Show that it offered a reasonable accommodation; or 3. Show that it was unable to accommodate the employee’s religious needs reason-

ably without undue hardship.

See Chapter 23 for more details on this three-phase process.

sea80373_26_c26_359-374.indd 4 10/4/12 3:28 PM

363

Section 26.2 National Origin Discrimination CHAPTER 26

Exempt Organizations

Certain types of entities are exempt from Title VII religious coverage and may discrimi- nate on the basis of religion without violating Title VII. These include religious institu- tions or organizations that are involved in religious activities. For example, a synagogue can advertise for a Jewish rabbi; likewise, Catholic schools can require that an employee be a practicing Catholic. These rules are applied as long as the organization is “a religious corporation, association, educational institution, or society with respect to the employ- ment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities” (42 U.S.C. § 2000e-1). However, claiming that a business is religious merely because the owners declare it so or require employees to attend daily religious services that include praying, singing hymns, and discussing work-related topics does not exempt the orga- nization (EEOC v. Townley Engineering & Mfg. Co., 946 F.2d 898 [1991], http://law.justia .com/cases/federal/appellate-courts/F2/946/898/421109/).

26.2 National Origin Discrimination

“Discrimination on the basis of national origin” refers to discrimination at work because of a person’s birthplace, ancestry, culture, or religion. Refusing to hire someone because of his or her accent or country of origin would be an example. On its website, the EEOC provides the following example:

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

National origin is protected under Title VII for hiring, terms of employment, and harass- ment, as for the other protected classes, and applies whether an employee is a U.S. citizen or not. One common question that frequently arises in employment is whether or not an employer can require its employees to speak only English at work. The courts have consistently held that the answer is “yes,” but only if the employer can show a business necessity for such a rule, such as safety on the job.

sea80373_26_c26_359-374.indd 5 10/4/12 3:28 PM

364

Section 26.3 Disability Discrimination CHAPTER 26

26.3 Disability Discrimination

We next turn our attention from discrimination on the basis of religion to that of disability. For the first time in our discussion of discrimination, Title VII does not apply. Instead, disability is covered by federal legislation: the Americans With Disabilities Act of 1990, or ADA. Title I of the ADA forbids discrimination against qualified individuals with physical or mental disabilities in hiring, firing, or promotion and requires employers to make reasonable accommodations for disabled employees. Title III of the ADA mandates accessibility for the disabled to new and existing public and private facilities that are open to the general public.

This landmark legislation expanded the Rehabilitation Act of 1973, which had prohibited discrimination in hiring on the basis of a person’s handicap in federal employment and by federal contractors and companies receiving federal assistance. The ADA is enforced by the EEOC, which has the authority to bring actions. And, as of July 25, 1994, the ADA applies to all employers engaged in interstate commerce who employ at least 15 employ- ees per day for at least 20 weeks per year. The following entities are exempt from the ADA: the United States, corporations wholly owned by the government of the United States, Indian tribes, and social clubs that are not open to the general public.

The salient provisions of Title I of the ADA include the following:

• Prohibits discrimination against qualified disabled individuals based on their disability in hiring, retention, or promotion;

• Mandates that reasonable accommodation be made for qualified disabled indi- viduals by employers unless such accommodations would impose an undue hardship on the business operation;

• Allows private individuals to bring lawsuits to enforce the act through injunc- tion (but not for monetary damages); and

• Allows the U.S. attorney general to bring legal action that includes injunc- tions, fines, or damages against employers who violate the act (including rea- sonable attorney’s fees, court costs, reinstatement, and treble damages, where appropriate).

In its regulations relating to the ADA, the EEOC defines an individual as qualified for a specific job if he or she “satisfies the requisite skill, experience, and education require- ments of the employment position” (29 C.F.R. 1630.2(m)). The ADA does not require lesser qualified disabled individuals to be hired; it only forbids discrimination against otherwise qualified individuals merely because of their disability.

In 2008, Congress revisited the ADA by enacting the Americans With Disabilities Act Amendments Act (ADAAA). This legislation greatly expanded the definition of a disabil- ity as an impairment that substantially limits a major life activity. In order to qualify for a reasonable accommodation at work, an employee must have either an actual disability or a record of disability. Under the ADAAA, ailments such as epilepsy, diabetes, cancer, HIV infection, and bipolar disorder are considered disabilities.

sea80373_26_c26_359-374.indd 6 10/4/12 3:28 PM

365

Section 26.3 Disability Discrimination CHAPTER 26

Reasonable Accommodation

The ADA gives some examples of what the term reasonable accommodation may include. See 42 U.S.C. § 12111(9) and 29 C.F.R. § 1630.2(o)(2). See also 29 C.F.R. §§ 1630.2(o)(1), which defines “reasonable accommodation” to include “modifications or adjustments” to appli- cation processes, work environment, and access to benefits and privileges of employment.

Accommodations can consist of the following:

(A) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropri- ate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommo- dations for individuals with disabilities. (42 U.S.C. § 12111(9))

Undue Hardship

If an employee does suffer from a disability, the employer has a duty to make a reason- able accommodation as long as the employee is “otherwise qualified,” unless to do so would cause an “undue hardship” to the employer. According to the EEOC, undue hard- ship means significant difficulty or expense for the employer.

Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

An employer must assess on a case-by-case basis whether a particular reason- able accommodation would cause undue hardship.

The Direct Threat Defense

In some cases, employers may determine that an employee poses a significant threat to others as the result of a disability and thus are able to dismiss the employee without incur- ring ADA liability. For example, in LaChance v. Duffy’s Draft House Inc., 146 F.3d 832, 8 AD Cas. (BNA) 652 (11th Cir. 1998) (http://law.justia.com/cases/federal/appellate-courts/ F3/146/832/514153/), a worker with a history of epilepsy was hired by a restaurant as a line cook. During his first night of work he had two seizures, one occurring in the din- ing hall where customers were present. He was told that he was a liability because of his epilepsy and was then discharged. The court held that this condition was a direct threat to customers. In upholding the dismissal, it found that the employer did not have a duty to make an accommodation. The court opined:

sea80373_26_c26_359-374.indd 7 10/4/12 3:28 PM

366

Section 26.3 Disability Discrimination CHAPTER 26

LaChance failed to produce probative evidence that he was not a direct threat. His argument that he has performed the job safely at other places is unavailing. The evidence indicates that his employment before Duffy’s consisted mainly of prep work and there is no evidence that any of those jobs involved using the kind of appliances he was required to work with at Duffy’s. The affidavit from his supervisor at a job after Duffy’s, indicating that he had worked around the same appliances without incident for 13 months, does not overcome his own admission and his doctor’s statement that he posed a risk of harm.

With regard to drug addiction and alcoholism, the courts distinguish between the dis- ease and the actions of the impaired person. While the disease may be protected, acting impaired is not. Therefore, an employee under the influence cannot use his or her addic- tion as an excuse. To wit, a hospital nurse who was a recovering drug addict was found to pose an unacceptable risk to patient safety where she failed to follow protocols for admin- istration of narcotics to patients (Griel v. Franklin Medical Ctr., 234 F.3d 731 (1st Cir. 2000)), as was an alcoholic doctor with a history of treatment and relapse (Altman v. NYC Health & Hosp. Corp., 100 F.3d 1054, 6 AD Cas. (BNA) 73 (2d Cir. 1996)). A plaintiff who twice attempted suicide because of bulimia and depression was also deemed a direct threat (EEOC v. Amego, Inc., 110 F.3d 135, 6 AD Cas. (BNA) 997 (1st Cir. 1997)), as was a depressed civil rights investigator who said to a coworker, “If I had come in Friday, I could have shot somebody” (Palesch v. Missouri Comm. on Human Rights, 233 F.3d 560 (8th Cir. 2000)).

Title III of the ADA

Title III of the ADA requires greater accessibility by all to places open to the public. The act mandates in great detail changes to existing and new construction to make it acces- sible to the physically challenged. The regulations require greater accessibility through a number of means, including detailed building code changes controlling the height of water fountains, the number of restrooms in buildings, and the installation of elevators in all new construction taller than two stories or with more than 3,000 square feet per floor. The regulations go as far as to specify the number of parking spaces that must be set aside for handicapped drivers, the number of theater seats that must be made handicapped- accessible, and the height of dining tables in restaurants. In addition, the act mandates telephone companies to provide telecommunications devices for the deaf and covers accessibility to public transportation by the disabled.

Many people think that older buildings are “grandfathered in” and therefore do not have to comply with the law, but that is not true. All places of public accommodation, as well as offices, must comply with Title III. That includes removing architectural barriers to existing facilities when it is “readily achievable to do so.” According to the ADA National Network (www.adata.org):

The ADA requires that small businesses remove architectural barriers in existing facilities when it is “readily achievable” to do so. Readily achiev- able means “easily accomplishable without much difficulty or expense.” This requirement is based on the size and resources of a business. So, businesses with more resources are expected to remove more barriers than businesses with fewer resources. When a business undertakes an alteration to any of its facili- ties, it must, to the maximum extent feasible, make the alteration accessible.

sea80373_26_c26_359-374.indd 8 10/4/12 3:28 PM

367

Section 26.4 Age Discrimination CHAPTER 26

All new construction must comply with the ADA guidelines, and existing structures must be made handicapped-accessible unless doing so would prove an undue hardship. Note, however, that social clubs, religious institutions, residential facilities covered by fair hous- ing laws, and owner-occupied inns with fewer than six rooms to rent are all exempt from the act.

Permissible Interview Questions

The ADA specifically limits the use of interview questions and medical examinations for vetting new hires. Any recognition of a disability by inquiry or examination at the inter- view stage is strictly prohibited. A manager may not even ask how a person became dis- abled or the prognosis of the individual’s disability.

According to the EEOC’s Technical Assistance Manual: Title I of the ADA, examples of ques- tions that may not be asked include the following:

• Is there any health-related reason you may not be able to perform the job for which you are applying?

• Do you have any disabilities or impairments that may affect your performance in the position for which you are applying? and

• Do you have any physical defects which preclude you from performing certain kinds of work?

It is permissible for a job description to be attached to the application form with informa- tion regarding specific job functions. A manager may then ask the applicant if he or she can perform these functions. An example of a permissible question would be:

• Are you able to perform these tasks with or without an accommodation? If the applicant responds that the task can be performed with an accommodation, a per- missible follow-up question would be:

• How would you perform the tasks, and with what accommodation(s)? Therefore, managers may ask questions regarding a prospective employee’s ability to per- form job-related functions but may not ask the questions in terms of a disability. Managers should also note that after a job offer has been made, the company may require a medical examination and may condition the offer on the results of the examination, that is, as long as the results are not used to discriminate against the person. (All of the above information was taken from the EEOC’s Technical Assistance Manual: Title I of the ADA, available at the Job Accommodation Network website: http://askjan.org/links/ADAtam1.html.)

26.4 Age Discrimination

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are aged 40 years or over but does not protect workers under the age of 40. The law covers all aspects of employment—from hiring and firing to terms and conditions of employment and retirement. For example, in a recent case involving AT&T, the EEOC said that persons who participated in the company’s early

sea80373_26_c26_359-374.indd 9 10/4/12 3:28 PM

368

Section 26.4 Age Discrimination CHAPTER 26

retirement plan were discriminated against when they were not allowed to reapply for a position there. The company settled the suit by agreeing to do away with a policy that excluded from reemployment employees who had left AT&T under one of the early retire- ment plans. The decree also prohibited AT&T from requiring a different process for select- ing retirees than for other former employees (http://www.eeoc.gov/eeoc/newsroom/ release/10-26-11.cfm).

Age discrimination is unlike other types of discrimination lawsuits in two ways. First, it is generally more expensive in terms of damages for employers who lose because employees are entitled to their salary for the remaining years that they would have been employed. Considering that a prevailing plaintiff may garner 20 or 30 years of lost wages, includ- ing benefits, the sums awarded may be in the millions of dollars. If it is a class action, the amounts can be staggering. Second, if the employer can establish that its behavior was reasonable, it may prevail using a defense called an RFOA (reasonable factor other than age). Unlike the business necessity defense in other forms of discrimination, the RFOA line of inquiry does not require the trier of fact to ask whether there might have been other ways for the defendant to achieve its goals without resulting in a disparate impact on older workers.

The age discrimination lawsuit requires that the plaintiff prove discrimination based on age using the same three-stage process described for race and sex discrimination (see Figure 23.1 in Chapter 23). That is, “but for” the employer’s discriminatory behavior, the employee would not have been discriminated against (29 U.S.C.A. § 623(a)(1)) (Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343 (U.S. 2009)).

The following case excerpts illustrate a lawsuit under the ADEA.

Cases to Consider: Christie v. Foremost Ins. Co.

Christie v. Foremost Ins. Co., 785 F.2d 584 (7th Cir. 1986)

Foremost Insurance Company specializes in selling insurance for mobile homes and recreational vehicles. In late 1975 or early 1976, Foremost hired Richard Christie, who was then forty-five years old, to be Foremost’s district manager in the southeastern district of Michigan. Christie regularly received “excellent” ratings from his supervisors at Foremost[,] and Foremost never questioned his competence.

On November 4, 1980, Christie’s division manager Paul Forsthoefel telephoned Christie to set up a meeting for November 5. At that meeting, Forsthoefel informed Christie he was “terminated,” and handed Christie a letter explaining that Foremost found it “necessary to implement a reduction in our field sales staff in Michigan.” The letter, dated November 4, informed Christie he was terminated as of November 7, 1980. In Foremost’s final status report on Christie, dated November 7, 1980, Christie was again rated “excellent.” Christie, who was forty-nine when fired, was replaced by Danny Starnes, who was thirty-two years old and had begun working for Foremost in January, 1979.

*** (continued)

sea80373_26_c26_359-374.indd 10 10/4/12 3:28 PM

369

Section 26.4 Age Discrimination CHAPTER 26

Cases to Consider: Christie v. Foremost Ins. Co. (continued) Foremost concedes that Christie made out a prima facie case, which created a rebuttable presump- tion of age discrimination. Foremost contends, however, that it met its burden of production by articulating a lawful reason for Christie’s discharge, and Christie failed to meet his burden of proving that Foremost’s proffered reasons were merely a pretext. Foremost claims, therefore, that the trial court erred by refusing to grant Foremost’s motion for a judgment notwithstanding the verdict.

Foremost offered a nondiscriminatory reason to legitimize its decision to fire Christie. Foremost said that Christie’s termination occurred as part of a legitimate reduction in force. Foremost further claims it terminated Christie and replaced him with Starnes because Foremost’s supervisors concluded that Starnes would perform better in an economic recession. Foremost contends that Christie failed to prove that the reduction in force was a pretext for firing Christie. Foremost claims that “Christie’s age discrimination case rested on nothing more than his beliefs and feelings and other evidence which, as a matter of law, does not create an inference of age discrimination.”

Foremost claims that, in order to prove pretext, a plaintiff like Christie must present evidence of either (1) age-related comments, (2) statistics of disparate effect on employees aged 40–70, (3) more favorable treatment of similarly situated employees under 40, or (4) the falseness of the employer’s reasons for termination. Foremost contends that Christie presented no evidence of the first three, and failed to establish the fourth. Christie contends that he proved Foremost’s proffered reasons were “unworthy of credence.”

. . . [W]e find that Christie presented substantial evidence that Foremost’s proffered explanations were merely a pretext for age discrimination.

First of all, Christie presented evidence of his consistent excellent ratings from his supervisors. He also presented evidence that the evaluations which allegedly showed Starnes was a superior employee were suspect. Unlike Christie’s evaluations which were based primarily upon achieving objective goals, Starnes’ evaluation was wholly subjective. Furthermore, Christie presented evidence suggest- ing that Foremost ignored much relevant data. Finally, Christie showed that many of the items on which Starnes was evaluated were “soft”—such as completing most of the company’s twenty-three instruction manuals and obtaining a necessary insurance license. Starnes’ evaluation rested entirely upon Forsthoefel’s personal opinion, and Forsthoefel’s credibility was very much at issue in this case because he was the Foremost manager who initiated the decision to fire Christie.

Christie also presented evidence from which the jury could have found that Foremost did not com- ply with its own reduction in force policy and thus was probably not making a legitimate reduction in force. One of the Foremost managers who decided to terminate Christie, Ronald Crippin, did not even know that Foremost had a policy governing reductions in force. A jury could infer from this fact that Foremost was not actually making a reduction in force, because if it was[,] its managers would have known of or located the company policy and followed it. Christie also presented evidence from which the jury could have inferred that had Foremost actually followed its own reduction in force policy, Christie would not have been discharged.

Christie presented other evidence which, with the evidence discussed above, was substantial enough to persuade the jury that Foremost’s proffered reasons either had “no basis in fact, or, if they [had] a basis in fact, . . . were not really factors motivating the discharge.” (continued)

sea80373_26_c26_359-374.indd 11 10/4/12 3:28 PM

370

Section 26.5 Discrimination Against Nonprotected Classes CHAPTER 26

Cases to Consider: Christie v. Foremost Ins. Co. (continued) One final argument by Foremost deserves special mention, however. Foremost alleges that rather than producing evidence of pretext, Christie merely invited the jury to second-guess Foremost’s busi- ness judgment. Foremost is correct that a plaintiff cannot argue that the defendant made a bad busi- ness decision in choosing between two employees to discharge. For example, in this case Christie could not prevail by arguing that Foremost used poor judgment in replacing him with Starnes.

Christie’s argument was different, however. He argued not that Foremost used the wrong criteria and bad judgment in terminating him as part of a reduction in force, but rather that Foremost never made a decision about who to terminate as part of a reduction in force. Christie argued that Foremost merely used the reduction-in-force rationale as a pretext to cover age discrimination. A plaintiff cannot argue that the defendant showed bad judgment in deciding another employee had greater potential, but he can argue that the method used by the defendant showed that the defendant was not really trying to decide which employee had greater potential. Granted this is a fine line, but the law often places such a burden on the jury. Foremost does not contend that at any time during trial the court allowed Christie to invite the jury to second-guess Foremost’s business judgment. Neither does Foremost allege that the jury instructions impermissibly invited the jury to second-guess Foremost’s business judgment. Therefore, we conclude that Foremost’s statement of the law is accurate, but inapplicable to this case.

Read the full text of the case here: http://openjurist.org/785/f2d/584/christie-v-foremost-insurance- company.

Questions to Consider

1. How did Christie make out a prima facie case of discrimination? 2. How did the employer rebut Christie’s contentions? 3. Why did the court reject the employer’s explanation? 4. What evidence most hurt the employer? 5. In hindsight, what could this employer have done to have a more successful outcome?

26.5 Discrimination Against Nonprotected Classes

Discrimination on the basis of sexual orientation and gender identity provides a unique opportunity to look at a discrimination claim when there is no constitu-tional protection, no Title VII protection, nor any federal statutory protection. In cases where the persons being discriminated against are not part of a protected class, and in which federal legislation has not stepped in to prevent discrimination, two fallback positions are possible. First, the claimant can determine whether there is state or local law, and second, the claimant can determine whether the employee handbook provides any contractual protection.

sea80373_26_c26_359-374.indd 12 10/4/12 3:28 PM

371

Section 26.5 Discrimination Against Nonprotected Classes CHAPTER 26

For an illustration of how inconsistent the states are with regard to employment discrimi- nation on the basis of sexual orientation and gender identity, go to the American Civil Lib- erties Union website and view the map showing the hodge-podge of laws at http://www .aclu.org/maps/non-discrimination-laws-state-state-information-map. The 21 states banning sexual orientation discrimination in employment are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Min- nesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin (the first state to do so, in 1982). Ten states have laws prohibiting sexual orientation discrimination in public employment only: Arizona, Indiana, Kansas, Kentucky, Michigan, Missouri, Montana, Ohio, Pennsylvania, and Virginia. Nineteen states have no laws prohibiting discrimination on the basis of sexual orientation.

A federal Executive Order 13087, issued on May 28, 1998, is also in place to protect execu- tive branch civilian employment. More information on that law can be found at the U.S. Office of Personnel Management website: http://www.opm.gov/er/address2/guide 01.asp.

In all the above discussions, employees were protected by either a federal law, such as Title VII or the Americans With Disabilities Act, or, at least, a patchwork of state laws. But if someone has not been discriminated against on the basis of race, color, national origin, sex, disability, age, or, in some states, sexual orientation, then could an employer discriminate legally? In other words, if one is not in a protected group, is discrimination then legal?

Take, for instance, the case of smokers. Suppose that an employer announced it would no longer hire persons who smoked cigarettes. In a lawsuit brought by the smokers against the company, what would happen? There would be no cause of action, most likely. There is nothing the smokers could sue for because it is perfectly legal to discriminate against this class of people.

Suppose that an employer required all women employees to wear a skirt and all men to don a tie. Are dressing and grooming standards discriminatory? Not under the law. The same is true of sexual orientation (in some states), felons, and persons who are unattract- ive or overweight. In fact, in many instances of employment discrimination, the employee does not have any legal recourse for being dismissed or not hired in the first place, because the employee is not in a legally protected class.

Keep in mind that discrimination law does not excuse misconduct, as the case law illus- trates. If an employer can prove that the employee failed to perform the job required or could not get along with others in the workplace, that person can be dismissed.

sea80373_26_c26_359-374.indd 13 10/4/12 3:28 PM

372

Key Terms CHAPTER 26

Key Terms

accessibility In public and private facili- ties that are open to the public, a level of availability that is required for disabled people under the terms of the ADA.

Age Discrimination in Employment Act (ADEA) of 1967 Federal law that describes the rules for hiring and firing employees above the age of 40 and protects these older workers from being unfairly treated in employment decisions.

Americans With Disabilities Act (ADA) of 1990 Spells out how employers must accommodate disabled workers. This is a federal law that applies to all businesses, as opposed to a state law that applies only to businesses within that particular state.

Americans With Disabilities Act Amend- ments Act (ADAAA) In 2008, Congress amended the ADA and expanded the definition of disability to mean an impair- ment that substantially limits a major life activity.

bona fide religious belief Under Title VII, a sincerely held religious tenet within the plaintiff’s own scheme of things.

burden shifting After the plaintiff has established its prima facie case, the burden shifts to the defendant, who must coun- ter the plaintiff’s claims by rebutting the plaintiff’s presumption and showing its good-faith actions to reasonably accom- modate the plaintiff (if doing so would not have caused undue hardship).

business necessity defense An argument the defendant employer can advance to justify discriminatory employment actions against an employee. Bona fide occupa- tional qualifications (BFOQs) fall into this category.

disability An impairment (e.g., deafness, epilepsy, diabetes, cancer, HIV infection, bipolar disorder) that substantially limits a major life activity.

injunction A judicial remedy that requires a party to refrain from (or not initiate) certain actions in order to prevent future injuries or harm. Can be temporary (as in prior to litigation during a trial) or perma- nent (issued upon completion of a trial).

judgment notwithstanding the verdict At the conclusion of a trial, a judgment whereby a judge overturns the decision of the jury in the interest of justice, thereby reversing the jury decision.

reasonable accommodation Under the ADA, when an employer changes the structure of the job, application process, or benefits so that the employee with a disability can perform the tasks. Under Title VII, employers must make reasonable accommodations for employees to elimi- nate employees’ conflicts between work and practicing their religion, unless doing so would cause “undue hardship on the conduct of the employer’s business.”

reasonable factor other than age (RFOA) A defense in an age discrimina- tion inquiry where the employer can estab- lish that its behavior was reasonable; does not require the trier of fact to ask whether there were other ways for the defendant to achieve the goals that would not have resulted in a disparate impact.

Rehabilitation Act of 1973 Prohibited discrimination in hiring on the basis of handicap in federal employment and by federal contractors and companies receiv- ing federal assistance.

sea80373_26_c26_359-374.indd 14 10/4/12 3:28 PM

373

Critical Thinking and Discussion Questions CHAPTER 26

Title I of the ADA Forbids discrimination against qualified individuals with physi- cal or mental disabilities in hiring, firing, or promotion and requires employers to make reasonable accommodations for dis- abled employees.

Title III of the ADA Mandates accessibil- ity for the disabled to new and existing public and private facilities that are open to the general public.

undue hardship According to the EEOC, significant difficulty or expense that would be necessary for an employer to accom- modate an employee’s disability, religious practice, etc.

Critical Thinking and Discussion Questions

1. What are the two main areas covered by the 1990 Americans With Disabilities Act?

2. Title VII imposes an obligation on the employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship.” What is a religious practice? What constitutes a reasonable accommodation?

3. What types of organizations are exempt from Title VII religious coverage? 4. What is a “hostile work environment” on the basis of national origin? What

forms of discrimination are covered by national origin discrimination? 5. How is an age discrimination lawsuit different from other types of discrimination

lawsuits? 6. Your supervisor has placed you in charge of hiring the new administrative assis-

tant for your department: a full-time job starting immediately. a. Write an advertisement for an open position at your place of employment.

This advertisement must be detailed and include all information about the position and the benefits that will be offered. The minimum length of your job description is 300 words. You can make up the job details.

b. Write five illegal federal questions and five illegal state questions; then write five legal federal questions and five legal state questions. Clearly indicate which one is legal or illegal, and which is state or federal.

c. Write a memorandum to your supervisor with an explanation of why you did not hire this person for the position.

7. Frank, a legally blind attorney who has just been admitted to practice in his state, applies for a position as an associate at a law firm, answering an advertisement that lists as one of the requirements of the job a minimum of five years of rel- evant experience. In his letter of application, he notes that he is legally blind but claims to be capable of performing the necessary duties, with only minor accom- modations by the employer. He is not granted an interview and decides to sue, claiming that he was discriminated against in violation of the Americans With Disabilities Act.

a. What do you think the result of the lawsuit would be?

sea80373_26_c26_359-374.indd 15 10/4/12 3:28 PM

374

Critical Thinking and Discussion Questions CHAPTER 26

b. If, instead of having just been admitted to practice, Frank had been employed as an attorney by another firm for 10 years, would your answer to the last question change? Explain.

c. Assume that Frank is one of the finest attorneys in his state and that he has recently begun to lose his vision owing to irreversible glaucoma. Further assume that his current employer dismisses him, claiming he can no longer perform his regular job duties. The total cost of the new equipment to accommodate Frank’s condition would be $5,000 for the employer, and the employer is a large law firm. If Frank can show that he would be able to continue performing his job if the employer purchased a larger computer monitor for him to use, as well as furnished him with better lighting in his office, would he likely succeed in his case? What if he worked for a small firm with just two partners?

sea80373_26_c26_359-374.indd 16 10/4/12 3:28 PM