BUS 670 Week 5 Assignment
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Chapter 21
Establishing the Employment Relationship In thinking about setting up a business, you may have considered that all workers are classi�ied as employees, but this is not true. There are, in fact, numerous forms that an employer–employee relationship can take or transform into. This chapter begins with those types of relationships and examines the liability that can result from each. It will then look at some of the major labor law legislation from the 20th century.
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21.1 Employer–Employee Relationship When an employer hires someone to work, the likelihood is that person will be categorized as an employee. Many students are unaware that the worker could actually be categorized in numerous ways: as an employee, an agent, or a servant. Some workers are not employees at all, but rather independent contractors (see Table 21.1). Each one of these types of workers has unique characteristics and liabilities.
What makes someone an employee? It is well settled in law that employees have distinct characteristics. Most courts consider the biggest factor in determining whether or not someone is an employee to be how much control the employer has over the details of the employee's work. For example, an employer characteristically tells the employee when to come to work, when to leave, what job he or she will be doing, how to do it, and all the other typical requirements of the workplace.
Another characteristic of an employer–employee relationship is that the employer supplies the tools, place of work, and other instrumentalities (means, agency) that make the place one of work. The employer is also engaged in a distinct occupation or business, as opposed to someone who hires a worker for only one job. In employer–employee relationships, there is continuity: An employee receives a regular paycheck and is covered by workers' compensation. Usually employees are engaged for a longer length of time and complete work that is the regular business of the employer. The employer is responsible for deducting taxes from the employee's check as well as for administering health insurance, pension plans, workers' compensation, and Social Security bene�its for the employee. For a look at some of the distinctions between the two categories of workers, see the case Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970) (available here (http://bulk.resource.org/courts.gov/c/F2/429/429.F2d.1130.23255.html) ).
If an employee commits a tort while going about the employer's business, the language in law changes from that of employer–employee to that of master– servant, with the employer as the master. In fact, the phrase master–servant is generally associated with employees who commit torts while on the job, although some writers use it interchangeably with employer–employee.
An employee might also be an agent. This is a special type of employee who has the power to enter into contracts that bind the employer, now called a principal, to third parties. This relationship, and the attendant duties and liabilities, will be covered in Chapter 27 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/ch27#ch27) , Principal–Agency Law.
Finally, the employee might not actually be an employee at all but rather someone called an independent contractor, who is self-employed (see Chapter 28 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec28.1#sec28.1) for more about the sole proprietorship business model). From a legal standpoint, the greatest signi�icance of the employer–employee relationship is that of respondeat superior. This phrase means "the master responds for the torts of his servant." The translation might be "the employer pays for the torts of his employees." This means that if an employee is acting within the scope of employment and commits a tort, then the employer must pay for the damages. Consider the following hypothetical situation:
USB Stores hires Alan to deliver goods to customers. In so doing, Alan gets into a car accident and seriously injures Melba. Melba isn't going to sue Alan, who has no money. Instead, Melba will sue the defendant with the most money—USB Stores—under the theory of respondeat superior. If Melba can prove that Alan was an employee and that he was within the scope of performing his duties when the negligent act (tort) occurred, then USB will have to pay damages to Melba. If, on the other hand, Alan was not an employee but an independent contractor, then the employer would not be liable for Alan's tort. Instead, Melba's sole recourse would be against Alan personally.
There is another reason that being an employee is signi�icant. If the employee is going about the master/employer's business, and the employee (not a third party) is injured or dies, then the employee can recover money only through workers' compensation.
The following attributes qualify one as an independent contractor:
The contractor is often hired for one particular job;
The contractor is not directly supervised by the person hiring him or her (may be working offsite for the hirer);
The contractor is not receiving regular pay, but instead is being paid once (or in installments) for completing the work;
The contractor supplies his or her own tools or equipment to complete the job;
The person or company paying does not deduct Social Security or cover workers' compensation; and
Most important, the hirer is not responsible for torts committed by the independent contractor.
In lawsuits in which the employer is sued under the theory of respondeat superior, the employer often will try to prove that the worker is not an employee but an independent contractor. In lawsuits where the employer is sued for injuries on the job, the worker will try to prove that he or she is an independent contractor and not an employee. In deciding such questions, courts weigh a number of factors in an attempt to determine the nature of the relationship.
Table 21.1: Legally recognized employment relationships
How Formed Resulting Liability
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Employer–employee Employer hires employee to carry out the business and directs the employee in all details of the work.
Employer is obligated to comply with all state and federal laws regarding taxes, workers' compensation, and the like.
Master–servant Employer hires employee to carry out the business, as in employer–employee relationship; then employee commits a tort while so doing.
Employer is liable for torts of the servant (if the servant is within the scope of employment) under the doctrine of respondeat superior.
Principal–agent
Employer hires employee to carry out the business, as in employer–employee relationship; employer gives employee added responsibilities of entering into contracts for the employer.
Employer, now the principal, is bound by the contracts entered into by the agent on his or her behalf.
Employer– independent contractor
Employer hires a worker for a project only. Employer is not liable for the torts of the worker, and the worker cannot enter into contracts on behalf of the employer.
How do the courts differentiate between an employee and an independent contractor? Consider the following case excerpts, which discuss whether or not an emergency room doctor was an employee–servant or an independent contractor:
Cases to Consider: Williamson v. Coastal Physician Services of Southeast, Inc.
Williamson v. Coastal Physician Services of Southeast, Inc.251 Ga. App. 667, 554 S.E.2d 739 Ga. App. (2001)
On June 14, 1996, Joe Williamson was experiencing shortness of breath, so he went to the emergency room of Columbia Fairview Park Hospital in Dublin. In the emergency room, he was treated by Dr. Sam Johnson, who diagnosed Williamson with cellulitis, hyperglycemia, and chronic obstructive pulmonary disease. Dr. Johnson discharged Williamson, but Williamson returned to the emergency room six hours later. Dr. Johnson saw Williamson and again discharged him. On June 17 and 20, 1996, Williamson went to Dr. Andy Williamson's of�ice, where he was treated and released. On July 1, 1996, Joe Williamson was admitted to the Carl Vinson VA Medical Center. The following day he died.
Charlotte Williamson, surviving spouse and administratrix of Williamson's estate, brought this medical malpractice lawsuit against the hospital, Dr. Johnson, Dr. Williamson, and Coastal Physician Services, which had hired Dr. Johnson to work in the emergency room pursuant to a staf�ing agreement with the hospital. The lawsuit claims that Coastal is vicariously liable for the actions of Dr. Johnson. Coastal moved for summary judgment, arguing that it cannot be held liable for the actions of Dr. Johnson because he is an independent contractor and not an employee.
***
We determine whether a person is an employee or an independent contractor by examining whether the employer has assumed the right to control the time, manner, and . . . the person's actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow.
***
In support of its motion for summary judgment, Coastal presented the af�idavit of Dr. Johnson and a copy of its agreement with him. In the af�idavit, Dr. Johnson stated that he would inform Coastal of the times he was available to work in the Fairview hospital emergency room, that Coastal had the right to schedule him to work only at those times, and that Coastal never attempted to schedule him for work at a time not designated by him. He further stated that Coastal had no right, and never attempted, to control the manner or method by which he diagnosed or treated patients in the emergency room.
***
The contract between Dr. Johnson and Coastal, entitled Independent Contractor (Physician) Agreement, supports Dr. Johnson's af�idavit. The contract speci�ically provides that each month Dr. Johnson shall notify Coastal of the days and hours that he is available to work in the emergency room, and that Coastal will schedule him to work based on his noti�ication of availability. Moreover, the contract provides that Dr. Johnson shall act as an independent contractor practicing his profession of medicine, and that Coastal shall have no control over the manner or method by which he performs his professional medical practice.
Because the evidence unquestionably shows that Coastal did not control the time, manner or method of Dr. Johnson's work, the trial court correctly concluded that he is an independent contractor, and that Coastal cannot be held liable for his acts. We therefore af�irm the trial court's grant of summary judgment to Coastal.
Read the full text of the case here (http://caselaw.�indlaw.com/ga-court-of-appeals/1216436.html) .
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Questions to Consider
1. What type of employee did the court decide Dr. Johnson was?
2. What were the factors the court considered in deciding the type of employee he was?
3. What was the signi�icance of Dr. Johnson being an independent contractor as opposed to an employee?
What would happen if an employee were asked to "switch roles" at the place of employment? Would he or she still be considered an employee in the "new role"? In the following case, the plaintiff, a secretary at Sea World, was asked to put on a bikini and ride Shamu the whale for some publicity photos. When the whale bit her, she argued that she was not an employee, thus hoping to be able to sue the employer for her injuries.
Cases to Consider: Eckis v. Sea World
Eckis v. Sea World, 64 Cal. App. 3d 1 (1976)
Plaintiff was trained for the ride by Sea World trainers in the tank at Sea World during normal of�ice working hours. First she practiced riding Kilroy, a smaller, more docile whale, while wearing a bathing suit. During her one practice session on Shamu, she wore a wetsuit, fell off, but swam to the edge of the tank without incident. On April 19, plaintiff became apprehensive for the �irst time when one of Sea World's trainers said he was not going to watch her ride Shamu because it was "really dangerous." Plaintiff then went to Burgess and told him of her concern. He told her not to worry, said there was nothing to be concerned about, and that the ride was "as safe as it could be." He still did not tell her about the problems they had been having with Shamu or about the earlier incidents involving Richards and the swimsuit model. Thus reassured, plaintiff, wearing a bikini Sea World had paid for, then took three rides on Shamu. During the second ride one of the trainers noticed Shamu's tail was �luttering, a sign the animal was upset. During the third ride plaintiff fell off when Shamu refused to obey a signal. Shamu then bit her on her legs and hips and held her in the tank until she could be rescued.
Plaintiff suffered 18 to 20 wounds which required from 100 to 200 stitches and left permanent scars. She was hospitalized �ive days and out of work several weeks. She also suffered some psychological disturbance. Sea World paid all her medical expenses and continued to pay her salary as usual during this period. On advice of her counsel, she �iled this civil action and a workers' compensation claim.
When an employee's injuries are compensable under the Workers' Compensation Act, the right of the employee to recover the bene�its provided by the Act is his exclusive remedy against the employer, with exceptions not applicable here[. L]iability of the employer to pay compensation under the Act, "in lieu of any other liability whatsoever," attaches: "(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment," and "(c) Where the injury is proximately caused by the employment, either with or without negligence."
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The undisputed evidence shows: at the time she was injured[,] plaintiff was an employee of Sea World; she was injured on the employer's premises during what were her regular working hours; she was injured while engaging in an activity which her employer had requested her to perform and for which it had provided her with the training and the means to perform; in riding Shamu the Whale for publicity pictures, plaintiff was not engaged in an activity which was personal to her, but rather one which was related to, furthered, and bene�ited the business of her employer.
Where, as here, an employee is injured on the employer's premises during regular working hours, when the injury occurs while the employee is engaged in an activity which the employer has requested her to undertake, and when the injury-causing activity is of service to the employer and bene�its the employer's business, the conditions imposing liability for compensation under are met as a matter of law, and it is immaterial that the activity causing the injury was not related to the employee's normal duties or that the circumstances surrounding the injury were unusual or unique.
Since the undisputed evidence established that plaintiff 's injuries were compensable under the Workers' Compensation Act, the trial court should have granted Sea World's motion for judgment notwithstanding the verdict. (Thereby establishing that she was 'within the scope of employment' and that she was an employee[,] thus making the only payment available to her for her injuries that of workers' compensation.)
Read the full text of the case here (http://www.lawlink.com/research/caselevel3/53160) .
Questions to Consider
1. What was the employee attempting to argue before the court and why?
2. Did she succeed? Why or why not?
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Employment Relationships
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for a pdf of this slideshow.
SLIDE 1 OF 8
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21.2 Respondeat Superior and Negligent Hiring If the employee is in fact working for the employer, and is working "within the scope of employment," then the employer will be liable to third parties for the torts of his or her employee under the doctrine of respondeat superior. In addition, an employer may also be liable to third parties under another theory: that of negligent hiring. In these cases, the employee does not necessarily commit a tort, but rather may engage in activity that is tortuous or criminal. The theory of liability is based on the argument that the employer knew or should have known that the employee was somehow dangerous or incompetent when hired, and thus, the employer should be held responsible. Those concepts are illustrated in the case that follows.
Cases to Consider: Malorney v. B&L Motor Freight, Inc.
Malorney v. B&L Motor Freight, Inc., 146 Ill. App.3d 265, 496 N.E.2d 1086 (1986)
Edward Harbour applied for a position of over-the-road driver with defendant B&L. On the employment application, Harbour was questioned as to whether he had any vehicular offenses or other criminal convictions. His response to the vehicular question was veri�ied by B&L; however, his negative answer regarding criminal convictions was not veri�ied by B&L. In fact, Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with B&L for aggravated sodomy of two teenage hitchhikers while driving an over-the-road truck for another employer. Upon being hired by B&L, Harbour was given written instructions and regulations, including a prohibition against picking up hitchhikers in a B&L truck.
Subsequently, on January 24, 1978, at an Indiana toll-road plaza, Harbour picked up plaintiff Karen Malorney, a 17-year-old hitchhiker. In the sleeping compartment of his truck, he repeatedly raped and sexually assaulted plaintiff, threatened to kill her, and viciously beat her. After being released, plaintiff noti�ied police. Harbour was arrested, convicted, and sentenced to 50 years with no parole.
Plaintiff 's complaint charges defendant B&L with recklessness and willful and wanton misconduct in negligently hiring Harbour as an over- the-road driver without adequately checking his background and providing him a vehicle with a sleeping compartment. Plaintiff seeks compensatory and punitive damages from B&L.
Defendant B&L �iled a motion for summary judgment contending that it had no duty to verify Harbour's negative response to the question regarding criminal convictions. In denying defendant's motion, the trial court found that (1) Harbour was hired as an over-the-road driver and furnished with a truck equipped with sleeping quarters; (2) B&L instructed Harbour not to pick up hitchhikers; and (3) it is common knowledge that hitchhikers frequent toll plazas which would show that B&L knew drivers are prone to give rides to hitchhikers. The court concluded that these facts show that B&L had a duty to check Harbour's criminal background and certi�ied the issue for interlocutory appeal.
Defendant argues that it had no duty to investigate Harbour's nonvehicular criminal background nor to verify his denial thereof because of a lack of foreseeability that he would use the truck to pick up and sexually assault a hitchhiker. To impose such a duty would be against public policy by placing too great a burden on employers. On the other hand, plaintiff posits the argument that factual issues exist which preclude summary judgment and require a jury determination. We agree and must af�irm the trial court for the following reasons. Defendant correctly argues that the existence of a duty is a question of law to be determined by the court, rather than by the fact�inder. However, once a duty has been found, the question of whether the duty was properly performed is a fact question to be decided by the trier of fact, whether court or jury.
The existence of a legal duty is not dependent on foreseeability alone, but includes considerations of public policy and social requirements. In Illinois, two duties, among others not pertinent here, are imposed by law on owners of vehicles who permit or hire other persons to drive on our highways. The �irst duty requires that the degree of care which an owner should exercise in selecting a driver is that which a reasonable person would exercise under the circumstances. An owner or employer also owes a duty in connection with the entrustment of vehicles to others. In other words, a vehicle owner has a duty to deny the entrustment of a vehicle to a driver it knows, or by the exercise of reasonable diligence could have known, is incompetent. In addition to these duties, it is well settled in Illinois that a cause of action exists against an employer for negligently hiring a person the employer knew, or should have known, was un�it for the job.
B&L contends that a reasonable and prudent motor carrier could not foresee that one of its drivers would rape and assault a hitchhiker. The court in Neering v. Illinois Central R.R. Co. in discussing foreseeability stated that the ultimate injury must be the natural and probable result of the negligent act or omission such that an ordinary and prudent person ought to have foreseen as likely its occurrence as a result of the negligence. It is not essential that one should have foreseen the precise injury which resulted from the act or omission. This interpretation thus requires an employer to exercise that degree of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of an employee's duty, i.e., such care as a reasonably prudent person would exercise in view of the consequences that might reasonably be expected to result if an incompetent, careless, or reckless agent were employed for a particular duty.
Applying these principles to the present case, it is clear that B&L had a duty to entrust its truck to a competent employee �it to drive an over-the-road truck equipped with a sleeping compartment. Lack of forethought may exist where one remains in voluntary ignorance of facts concerning the danger in a particular act or instrumentality, where a reasonably prudent person would become advised, on the
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theory that such ignorance is the equivalent of negligence. Bearing in mind the facts that B&L gave Harbour an over-the-road vehicle with a sleeping compartment and that B&L probably knew, or should have known, that truckers are prone to give rides to hitchhikers despite rules against such actions, the question now becomes one of fact—whether B&L breached its duty to hire a competent driver who was to be entrusted with a B&L over-the-road truck.
Regarding defendant's public-policy argument, there is no evidence in the record to justify the contention that the cost of checking on the criminal history of all truck-driver applicants is too expensive and burdensome when measured against the potential utility of doing so. Finally, we note that a question of foreseeability is at times a question for the court and at times, if varying inferences are possible, a question for the jury. In the present case, B&L did have a duty to check into Harbour's background so as to ascertain whether he would be a �it employee. Based on the circumstances of this case, it is apparent that reasonable persons could arrive at different conclusions as to whether B&L used due care in the performance of this duty when it employed Harbour. Questions which are composed of such qualities suf�icient to cause reasonable persons to arrive at different results should never be determined as matters of law. Questions of negligence, due care, and proximate cause are questions of fact to be determined by the fact�inder.
In af�irming the trial court's denial of summary judgment, we are not expressing any opinion as to the resolution of the facts in this case. Plaintiff has the heavy burden of proving that defendant B&L negligently performed a duty it owed her in entrusting Harbour with an over-the-road truck, and if negligence is found, that it proximately caused her injury. These questions, including the issue of whether defendant negligently hired Harbour by not checking his criminal background, are questions for the trier of fact and become a question of law only when the ultimate facts have been determined by the fact�inder.
Read the full text of the case here (http://scholar.google.com/scholar_case?case=4195436759662276740&hl=en&as_sdt=2&as_vis=1&oi=scholarr) .
Questions to Consider
1. What duty did the court say B&L had with regard to checking the background of its driver?
2. What argument did the company make about not checking backgrounds? What do you think about this argument?
3. Did the plaintiff win this case? What yet needs to be determined, and how will that occur?
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21.3 Rights and Responsibilities of Employers and Employees As a manager, it is sometimes dif�icult to discern what law governs your relationship with employees—state law, federal law, or contract law. In this section, we explore the various laws that govern the formation of the relationship between the employer and employee, and some of the attendant rights and responsibilities that �low from that relationship.
Based on Contract Law
At common law, the precise rights and responsibilities of the employer and employee were almost exclusively dictated by general agency law and the employment contract (see Chapter 27 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec27.1#sec27.1) , Principal–Agency Law, for a discussion of this concept). Although other factors come into play today, the employment contract is still of critical importance in determining the rights and responsibilities of the parties. Parties are free to de�ine the nature of the employment relationship through oral or written contracts as long as these do not con�lict with federal or state law. The length of employment, precise duties of the employee, compensation, and bene�its package are all typically de�ined in the employment contract. In most cases, the employer as offeror of the employment contract de�ines these terms, and the employee as offeree either accepts or rejects the offer on the employer's terms. Employees can, of course, bargain for better terms than those the employer is offering, but many employees in reality have little bargaining power, especially in tight job markets or in positions requiring few specialized skills.
Based on State and Federal Law
To a large extent, the efforts of both the federal and state governments to regulate labor law through legislation can be seen as an effort to level the playing �ield between employers and employees. These efforts have tried to set limits on the terms that employers (and, to a lesser extent, unions) may impose on employees through the employment contract. The remainder of this chapter will spotlight a cross section of salient legislative efforts in the area of business law. These will give you an overview of the limits that have been placed on employers in dictating the terms of employment for their employees. Keep in mind from this point on that employment is still employment at will (at least technically), which is to say that employers and employees are free to negotiate the terms of employment within the boundaries of the law. Also, the employer or employee may generally unilaterally terminate any employment contract that does not have a �ixed duration at any time, with or without just cause, as long as no federal or state law is violated by the termination.
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Courtesy Everett Collection
The National Labor Relations Act of 1935 gave labor unions unprecedented rights to organize, bargain, and strike.
21.4 Governmental Regulation of Labor–Management Relations From the workers' perspective, the history of labor–management relations in the United States through the �irst three decades of the 20th century was not auspicious. For example, there was no formal protection for workers' rights to form unions or bargain collectively with management. While these rights had been long recognized in Europe (where a greater emphasis on workers' rights had been, and remains, a focal point of industrialized democracies), in the United States, most organized labor activities were deemed to violate either criminal or civil laws. The mere act of joining a union could (and often did) result in termination of an employee. Likewise, employees who banded together and instituted boycotts or strikes against an employer could be prosecuted for criminal antitrust violations under the 1914 Clayton Act, which made all conspiracies to restrain trade or interfere with commerce illegal. Organizers of boycotts or strikes could also be sued in many states for civil damages under a tort theory such as "willful interference with contract rights."
Most state courts readily granted injunctions at management's request preventing employees from engaging in illegal boycotts, as did the federal courts prior to the Norris–La Guardia Act of 1932. In addition, because a worker had no protected right to join a union or to engage in collective bargaining, employers were free to insist on including a clause in employment contracts that prevented employees from ever joining a union as a condition of being hired. These contractual provisions, which came to be known as "yellow dog contracts" by union sympathizers, were usually enforced by the courts and served to effectively deny workers the ability to unionize or bargain collectively with employers. By 1932, the political climate had begun to change, and what had been very effective roadblocks to the labor movement were slowly removed through a series of acts passed by Congress. These acts granted some measure of protection to workers and curtailed the most egregious abuses of power by management.
Norris–La Guardia Act of 1932
The Norris–La Guardia Act of 1932 accomplished two important goals:
Declaring agreements prohibiting workers from joining unions as a condition of being hired (yellow dog contracts) illegal, as against public policy, and unenforceable; and
Restricting the power of federal judges to issue injunctions against union boycotts.
While the act did not prevent employers from seeking injunctive relief against employee boycotts in state courts, many states eventually also prevented their courts from issuing such injunctions.
National Labor Relations Act of 1935
The National Labor Relations Act of 1935 (also known as the Wagner Act) granted employees several new rights: to organize, to bargain collectively through representatives of their own choosing, and to engage in activities for the purpose of collective bargaining or other mutual aid or protection. The act also prohibited �ive unfair labor practices by employers:
1. Interference with attempts of employees to unionize or join unions;
2. Dominating or interfering with the formation or administration of any labor union or the contribution of �inancial or other support to it;
3. Discriminating in hiring, tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization;
4. Discharging or discriminating against an employee for �iling charges or giving testimony under the act; and
5. Refusing to bargain collectively with the chosen representatives of the employees.
The act also made unlawful closed shop agreements that require employers to hire only union workers. Union shop agreements, whereby employees need not be union members when hired but must join the union after being hired, were not made illegal by the act, however. In addition, the act established the National Labor Relations Board (NLRB) to hear and adjudicate complaints from employees about employers' unfair labor practices. NLRB decisions on such matters are automatically reviewed by district courts of appeal, which issue orders of enforcement if they concur with the �indings of the NLRB.
Fair Labor Standards Act of 1938
The Fair Labor Standards Act of 1938 established for the �irst time minimum wage and maximum hours provisions. The act set the maximum workweek at 44 hours for the �irst year after its adoption, 42 hours after one year, and 40 hours per week thereafter, requiring employers to pay all hourly employees time and a half (overtime pay) for any work required beyond the stated maximum. (Executive, administrative, and professional employees are exempt.) The act also set minimum wage provisions on a sliding scale that were set to increase from $0.25 per hour for the �irst year, $0.30 per
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hour for the next six years, and $0.40 per hour thereafter. The minimum wage requirements have been raised periodically thereafter, starting with an increase to $0.75 per hour in 1949. As of 2012, the federal minimum wage stands at $7.25 per hour, although many states set theirs higher (e.g., Washington state, at $9.04 per hour) while some set theirs lower (e.g., Minnesota, at $5.25–$6.15 per hour). See the U.S. Department of Labor Wage and Hour Division website (http://www.dol.gov/whd/minwage/america.htm) for an interactive map of state rates.
There are exceptions to the minimum wage standards, however. A lower minimum wage can legally be paid to certain workers:
Full-time students employed in retail or service stores, agriculture, or colleges and universities can be paid not less than 85% of the current minimum wage, provided that the employer obtains a certi�icate from the Department of Labor and the student works a maximum of eight hours per day and not more than 20 hours per week during the school year, and not more than 40 hours per week when classes are not in session;
Workers under the age of 20 can be paid any wage above $4.25 per hour for the �irst 90 calendar days after they are employed; and
Workers who work in jobs where they earn tips and make at least $30 in tips per month can also be paid less than the prevailing federal minimum wage, but not less than $2.13 per hour as of March 2011, as long as the employee earns at least the federal minimum wage when the tips are added to the sub–minimum wage hourly rate.
Therefore, an employee who works at a restaurant and earns $15 per hour in tips needs only be paid $2.13 per hour in wages by the employer, but an employee who works at a car wash 40 hours per week and earns $40 per week in tips must be paid a minimum of $6.25 in hourly wages (the hourly wage plus the tips must at least equal the minimum wage).
The Fair Labor Standards Act also requires nonexempt workers to be paid time and a half for overtime work after 40 hours per week. There is no maximum number of hours that an employer can ask an employee to work each week as long as time and a half is paid after 40 hours. And employees may be asked to work more than eight hours per day without overtime as long as the weekly total does not exceed 40 hours. An employee who is required to work for 12 hours on Mondays, Wednesdays, and Thursdays and four hours on Sundays is not entitled to overtime pay under the federal law.
Labor Management Relations Act of 1947
The Labor Management Relations Act of 1947 (also known as the Taft–Hartley Act) essentially modi�ied the 1935 National Labor Relations Act (the Wagner Act) in a number of signi�icant ways. Chief among these modi�ications is the extension of unfair labor practices to unions as well as to employers. The act makes it an unfair labor practice for unions to engage in the following three prohibited activities:
1. Coercing or restraining employees in their choice of a union to represent them, or coercing or restraining employers in the choice of their own bargaining representatives;
2. Compelling an employer to �ire an employee in a union shop for other than nonpayment of dues; and
3. Refusing to bargain in good faith.
The act has also given the president the right to seek an injunction to force striking workers back to the job for a period of up to 60 days in strikes that in his or her view imperil national health or safety. If the dispute is not settled during the 60-day cooling-off period, the president can ask for a 20-day extension of the injunction if the strike threatens to become a national emergency.
Labor Management Reporting and Disclosure Act of 1959
The Labor Management Reporting and Disclosure Act of 1959 (also known as the Landrum–Grif�in Act), like the Labor Management Relations (Taft– Hartley) Act before it, further modi�ied the National Labor Relations (Wagner) Act of 1935. It did so primarily by tightening up control of unions' internal affairs.
The act imposed �iduciary duties on union leadership and provided for criminal punishment of union of�icials who violated the trust of their of�ice. It imposed federal monitoring of unions' �inancial status and, for the �irst time, required unions to report both to the federal government and to their members how union funds are used. The act also regulated union elections, including instituting the requirement that union elections be held through secret ballots. Further, the act extended protection to union members who state their opposition to union leadership or policies, making it illegal for the union to punish such dissenting members. Finally, the act required unions to provide members with copies of collective bargaining agreements and to make their members aware of their rights under the act.
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21.5 Additional Federal Regulations Affecting Employment Hundreds of laws pertain to how managers must treat employees—from labor laws to antidiscrimination laws (which will be discussed in detail in Chapters 22–26). In this section, we will review a few of the most signi�icant laws governing the regulation of employees and employers by the federal and state governments.
Unemployment Benefits
The Social Security Act of 1935 provides the framework for unemployment compensation that is funded through mandatory contributions by employers and employees. The unemployment insurance provisions of the act are administered by state agencies and coordinated by the federal government. Requirements for eligibility of bene�its, duration of bene�its, and the amount of bene�its payable are controlled by local laws, though states tend to adopt similar regulations in these areas. Railroad workers, farm workers, domestic workers, and federal workers are not covered under the act, although railroad and federal employees have coverage under separate federal legislation.
In general, employees must work a minimum number of weeks per calendar year to be eligible for coverage, and only employees who are dismissed from their jobs without just cause are entitled to receive bene�its; employees who quit a job out of choice are not eligible for unemployment insurance, nor are employees who are �ired for wrongful conduct, such as embezzlement or illegal drug use on the job.
Health and Safety
Congress passed the Occupational Safety and Health Act of 1970 to ensure employee health and safety on the job. Under the act, the secretary of labor is given responsibility for promulgating standards for ensuring workers' health and safety on the job, as well as the power to enforce these standards in the courts.
The act imposes on employers a duty to furnish a workplace to all employees free from recognized hazards that are likely to cause death or serious injury. Employers are also required to keep records of all occupational injuries or illnesses that result in death, loss of consciousness, the loss of one or more workdays, or medical treatment other than �irst aid.
The act created a dedicated agency within the Department of Labor, the Occupational Safety and Health Administration (OSHA), to handle matters relating to administering and enforcing the act. The agency is charged with conducting safety inspections of workplaces with a poor safety record and with forcing compliance with the act through the courts when employers do not voluntarily resolve safety or health problems it identi�ied. OSHA also investigates allegations of safety or health violations at the request of employees. These employee "whistleblowers" are protected against reprisals for making such allegations or otherwise asserting their rights under the act. Individual state laws also protect whistleblowers to varying extents.
Illegal Immigration
The Immigration Reform and Control Act of 1986 is one of the major pieces of legislation affecting employers. Under this federal law, employers must keep detailed records of employees (including their immigration status) or risk signi�icant monetary sanctions. On the one hand, employers violate the act if they knowingly hire non–U.S. citizens who are not authorized to work in the United States. On the other hand, that requirement must be balanced against the requirement that employers with four or more employees cannot discriminate on the basis of citizenship status (antidiscrimination law will be covered in Chapters 22–26). For example, an employer who hires only U.S. citizens but refuses to hire green card holders could be guilty of such discrimination. Additionally, employers need to be careful about "document abuse," which can include requiring an employee or potential hire to produce more documents than the law requires.
Workers' Compensation
Every state has adopted a workers' compensation statute that provides compensation for employees for job-related injuries. (For more on this topic, go to Chapter 5 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec5.3#sec5.3) , Administrative Law, section on state agencies.) Coverage varies from state to state: Some states limit coverage to employees engaged in manual labor, while others cover nearly all employees regardless of the nature of the employment. Covered employees who suffer injuries arising from the course of their employment are guaranteed compensation for their loss as well as payment of medical bills. However, they give up the right to sue the employer under a tort or contract theory for damages resulting from the illness or injury. States generally limit damages recoverable by injured employees to statutorily provided amounts that are modest when compared with jury awards for similar tort injuries.
States' workers' compensation statutes thus provide some measure of protection to employees who suffer injuries on the job by guaranteeing them prompt medical care at no cost to them (even if the injury was caused by their own negligence). At the same time, they serve to effectively limit the common law rights of employees to later sue the employer for damages arising from the same injury.
Pension and Health Plans
Employers are not generally required to provide retirement plans or health plans to employees. If they choose to do so, however, these private retirement and health plans are covered by the Employment Retirement Income Security Act of 1974 (ERISA), which sets standards for most retirement and health plans that are voluntarily provided in the private sector. The act requires employers to provide basic information about health and retirement plans
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to employees, including a summary of bene�its under these plans and information on how they operate, as well as a yearly annual report summary covering the plans' assets. The same information, along with a full annual report detailing plan assets, must also be �iled with the Department of Labor. The act goes further by imposing �iduciary responsibilities on plan administrators.
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) amended ERISA. COBRA provides workers and their families who lose their health bene�its (due to a qualifying event) the right to choose to continue group health bene�its provided by their group health plan for a limited period of time. A qualifying event is de�ined as follows:
For an individual:
Voluntary or involuntary termination of employment other than for gross misconduct; or
The loss of eligibility for health coverage owing to a reduction in work hours that makes the employee ineligible for coverage (e.g., going from full- time to part-time employment status if only full-time employees are offered health coverage by the employer).
For a dependent of a covered employee:
The divorce of a spouse;
The death of the covered employee; or
The loss of coverage by a dependent child who loses dependent status under the plan (e.g., because he or she turns 26, an age established by the Patient Protection and Affordable Care Act of 2010).
Quali�ied individuals who avail themselves of a temporary COBRA extension of coverage may be required to pay 102% of the employer's group premium for health care on a continuous basis. Thus, if the employee paid $200 per month and the employer paid $800 per month for health coverage for the employee and his family, the employee could be asked to pay $1,020 per month for COBRA coverage (102% of the employer and employee contribution). COBRA temporary coverage is generally available if the employer sponsored a health plan for 20 or more employees in the prior year. COBRA applies to private sector employers and to state and local governments that provide health insurance to their employees. COBRA continuation coverage may generally be maintained for up to 18 months.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) provided another signi�icant amendment to ERISA. The act protects individuals and families covered by group health plans from being excluded from coverage for preexisting medical conditions when employees change health plans. HIPAA generally limits the maximum period for excluding preexisting conditions from coverage to 12 months from an individual's enrollment date (18 months for late enrollees). Also, HIPAA protects employees who change jobs by requiring a new employer's plan to give individuals credit for the length of time they had prior to continuous health coverage (without a break in coverage of 63 days or more) to reduce or eliminate the exclusion period. Therefore, employees who had health insurance coverage for the 12 months immediately preceding the start of a new job with no break in coverage greater than 63 days will have 12 months of credit toward the exclusionary period and will qualify for preexisting-condition coverage on the date they enroll in the new plan.
With the advent of the Patient Protection and Affordable Care Act (also known as the ACA, or ObamaCare), which is set to fully go into effect in 2014, insurance companies will not be able to discriminate against people with preexisting conditions; that is, they will no longer be able to deny anyone health coverage on the basis of previous medical history. Also, employers with more than 50 employees will be required to offer health insurance coverage to their full-time employees or pay a $2,000 per worker penalty (after the �irst 30 workers) to the government.
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Key Terms
Click on each key term to see the de�inition.
agency law (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The body of law governing the formation, termination, and existence of principals and agents.
agent (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A special type of employee, contractor, or third party who has the power to enter into contracts on behalf of the employer.
Clayton Act (1914) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An act of Congress that made all conspiracies to restrain trade or interfere with commerce illegal.
closed shop agreement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
One that requires employers to hire only union workers for that site.
collective bargaining (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The negotiation of employment-related matters between employers and employees using an agent designated by the majority of employees, e.g., a union representative.
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Amended ERISA to provide workers and their families who lose their health bene�its owing to a qualifying event the right to choose to continue group health bene�its provided by their group health plan for a limited period of time.
employee (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A worker that the employer characteristically directs in terms of hours, manner of doing the job, and location of work.
employment at will (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A work relationship that may be terminated by either party at any time and for any reason as long as the reason is not based on a protected area of discrimination.
employment contract (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A document that determines the rights and responsibilities of the parties; can be oral or written and must not con�lict with federal or state law.
Employment Retirement Income Security Act of 1974 (ERISA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Sets standards for most retirement and health plans voluntarily administered by employers in the private sector.
exempt employees (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Under the Fair Labor Standards Act, employees who do not receive overtime pay (time and a half of their hourly wage), including executive, administrative, and professional workers.
Fair Labor Standards Act of 1938 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Sets minimum wage and hour standards.
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Health Insurance Portability and Accountability Act of 1996 (HIPAA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Protects individuals and families covered by group health plans from the exclusion of coverage for preexisting medical conditions when employees change health plans.
Immigration Reform and Control Act of 1986 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A major piece of legislation affecting employers. Under this federal law, employers must keep detailed records on employees' immigration status or risk signi�icant monetary sanctions.
independent contractor (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A self-employed worker who is not an employee but who is typically hired to work one job for one-time payment, provides his or her own tools and equipment, and is not under the close supervision of the employer.
Labor Management Relations Act of 1947 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Modi�ied the National Labor Relations Act of 1935 by forbidding unions to engage in unfair labor practices.
Labor Management Reporting and Disclosure Act of 1959 (Landrum–Grif�in Act) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Further modi�ied the National Labor Relations Act of 1935, primarily by tightening up control of unions' internal affairs.
master (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An employer who has an employee who commits a tort.
National Labor Relations Act of 1935 (Wagner Act) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Granted employees the rights to organize, to bargain collectively through representatives of their own choosing, and to engage in activities for the purpose of collective bargaining or other mutual aid or protection; also prohibited �ive unfair labor practices by employers.
National Labor Relations Board (NLRB) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A government body established by the Wagner Act to hear and adjudicate complaints from employees about employers' unfair labor practices.
negligent hiring (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
If an employer is grossly negligent for the acts of an employee, in some states, a court might add liability for the fact that the employer hired the person in the �irst place.
nonexempt employees (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Under the Fair Labor Standards Act, those who must be paid overtime (time and a half of their hourly wage) after working 40 hours per week.
Norris–La Guardia Act of 1932 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Made illegal an agreement that prohibits workers from joining unions as a condition of being hired and restricted the power of federal judges to issue injunctions against union boycotts.
Occupational Safety and Health Act of 1970 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Regulates employee health and safety on the job; sets standards for worker safety.
Patient Protection and Affordable Care Act (ACA, or "ObamaCare") (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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Sweeping health care reform law passed by Congress in 2010 that is set to fully go into effect in 2014. Under its terms, insurance companies will not be able to deny anyone health coverage on the basis of previous medical history. Also, individual citizens will be required to purchase health insurance, and employers with more than 50 employees will be required to offer health insurance coverage to their employees or face penalties.
principal (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The name given to an employer who has a special type of employee called an agent.
qualifying event (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Under COBRA, the loss of a job or reduction of hours making an employee (or dependents) ineligible for employer group health bene�its.
respondeat superior (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The legal theory that employers (masters) are liable for the torts committed by their employees (servants) as long as the servant is an employee and is within the scope of employment.
servant (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An employee who has committed a tort at work.
Social Security Act of 1935 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Provided the framework for unemployment compensation funded through mandatory contributions by employers and employees.
union shop agreement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
One that stipulates that employees need not be union members when hired but must join the union after being hired.
workers' compensation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A statewide system that oversees payments to workers for injuries and death on the job.
yellow dog contracts (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Agreements prohibiting workers from joining unions as a condition of being hired.
Chapter 21 Flashcards
Critical Thinking and Discussion Questions
The body of law governing the formation, termination, and existence of p
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1. From which two branches of law does labor law primarily stem?
2. What are the two most signi�icant provisions of the Norris–La Guardia Act of 1932?
3. What are the basic provisions of the National Labor Relations Act of 1935 (the Wagner Act)?
4. What are the basic provisions of the Fair Labor Standards Act of 1938?
5. What are the basic provisions of the Labor Management Relations Act of 1947 (Taft–Hartley)?
6. What are the basic provisions of the Labor Management Reporting and Disclosure Act of 1959 (Landrum–Grif�in)?
7. Devon hires Rex to do odd jobs around his house on a fairly regular basis. Over the past year, Rex worked an average of six hours per week for Devon, performing a variety of tasks that included gardening, house painting, snow removal, and minor household repairs. Rex also works for a number of other homeowners in the community performing similar tasks for them on a regular basis. He is paid a �lat hourly fee by Devon and uses both his own tools and tools provided by Devon in the performance of his job.
a. During a late October afternoon while performing leaf pickup for Devon, Rex decides to gather leaves in a large steel drum and burn them without Devon's knowledge or consent. A gust of wind carries a burning leaf to Angela's house next door, starting a �ire that causes extensive property damage. Is Devon responsible for the damage? What is the main issue on which this answer depends? Explain.
b. Would it make a difference in question a if Rex worked 20 hours per week exclusively for Devon? Explain.
8. Emma is �ired from her middle-management job at ABC Company after 10 years of employment owing to corporate restructuring. She then decides to go into business for herself as a management consultant. Her severance package provides her with one year's salary and a continuation of all health bene�its for one year after her separation from the company. (The company will continue to pay $1,000 per month for her medical plan and will continue to deduct her $100 per month plan contribution from her monthly severance paychecks.)
a. After the one-year period, will Emma be able to continue her medical coverage through COBRA? If so, for how long, and at what maximum cost?
b. Assume Emma decides to look for employment after her ABC health care coverage ends and waives her right to a COBRA extension of her coverage because she cannot afford the cost. If she �inds employment with XYZ Company and enrolls in its health plan 60 days after her health coverage through ABC expires, and XYZ has a 12-month exclusionary period for preexisting conditions in its health care plan, how long must she wait before being covered for preexisting conditions by her new plan?
c. If Emma �inds employment three months after her health coverage at ABC expires and is diagnosed with a medical condition requiring emergency surgery a month after being in her new job, will her new health insurance pay for the medical costs related to the surgery if the new coverage has a six-month waiting period before preexisting conditions are covered?
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Chapter 22
Introduction to Antidiscrimination Law Perhaps the most costly legal problem a business manager can face is a lawsuit based on some type of discrimination. Consider the following examples, reported by the Equal Employment Opportunity Commission (EEOC), the federal administrative agency that oversees discrimination complaints based on Title VII of the Civil Rights Act of 1964:
Yellow Transportation Company agreed to an $11 million settlement of a race discrimination case for subjecting one of its African-American employees to a racially hostile working environment.
Whirlpool Corporation was assessed a $1 million judgment for its failure to stop a white male coworker from harassing an African-American female employee because of her race and sex. The abuse lasted for two months and escalated, when the coworker physically assaulted the black employee and in�licted serious permanent injuries.
A Washington, Pennsylvania–based cardiology practice will pay $125,000 and provide signi�icant remedial relief to settle a federal sexual harassment and retaliation lawsuit. According to the lawsuit, three cardiologists, who were owners, shareholders, or of�icers of the medical practice, subjected a registered nurse, Moncel Deitz, and two other female employees to a sexually hostile work environment. The doctors repeatedly made sexually offensive and debasing comments to Deitz and other female employees. The harassment also included being forced to look at sexually explicit pictures and messages on a cell phone, the EEOC said.
United Road Towing, Inc., a Mokena, Illinois–based towing company, will pay $380,000 to 13 claimants and provide other relief resolving a disability discrimination lawsuit in which United Road Towing had failed to provide reasonable accommodations to a class of employees with disabilities.
FedEx Freight will pay $115,000 to settle a sex discrimination lawsuit in which the FedEx Freight's employee relations manager passed over three quali�ied women for a human resources job at its Phoenix of�ice and instead hired a man who was unquali�ied for the position.
The Jackson Sun, a Gannett daily newspaper in Jackson, Tennessee, will pay $150,000 and provide other relief to settle a disability lawsuit in which the Sun �ired a commercial print manager exactly one week after his return from a medical leave of absence. He had sustained permanent spinal cord damage after back surgery. The EEOC said that the Sun could have accommodated the employee with minimal effort and that his termination was discriminatory.
(See U.S. Equal Employment Opportunity Commission. Selected list of pending and resolved EEOC cases involving racial harassment since 2009 [as of June 2012], here (http://www.eeoc.gov/eeoc/litigation/selected/racial_harassment.cfm) .)
What do all of these incidents have in common? To begin with, all represent workplaces that discriminated against their own workers in such signi�icant ways that a large amount of money was awarded to the litigants. Each one also represents the failure of management to either develop or enforce policies to prevent unfair treatment of its workers, resulting in unpleasant if not dangerous working conditions and unnecessary expenses to the business. One can only imagine, additionally, the effect such treatment had on fellow coworkers witnessing the discrimination and the embarrassment of having their employer publicly chastised, and ultimately sanctioned, by the EEOC.
Unlawful discrimination is rampant in employment. This chapter begins the study of antidiscrimination law—an aspect of the workplace you will undoubtedly see �irsthand. Keep in mind that, as a manager, you may be required to keep seemingly burdensome records, develop policies, and monitor the behavior of your employees in this area. Such requirements may seem onerous. However, seeing, through the cases that follow, the devastation that discrimination and its resultant litigation leave in their wake may make you more thoughtful about the purpose of such regulations, aware of why such steps are necessary, and sensitive to the rami�ications of failing to do so.
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22.1 Constitutional Underpinnings of Antidiscrimination Law Before one can understand antidiscrimination law, it is �irst necessary to understand the role the U.S. Constitution plays. It may surprise you to learn that nothing in the Constitution explicitly mentions discrimination per se. Instead, it contains provisions that, over time, have been interpreted by the U.S. Supreme Court to grant rights that have to do with equal treatment under the law.
Recall that the U.S. Constitution begins by setting out the three branches of government: Article I (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/appa#a1) establishes the legislative branch, or Congress; Article II (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/appa#a2) , the executive branch, or the president; and Article III (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/appa#a3) , the federal judiciary, the U.S. district courts, the appellate courts, and the U.S. Supreme Court. The powers of each branch of government are contained in these respective Constitutional Articles. If someone challenges a branch's actions as overstepping its power, then the issue may reach the U.S. Supreme Court for a ruling. If the Court �inds that one of the branches exceeded its powers, it declares the action unconstitutional. In this way, the Court "checks" or reins in the power of another branch.
The Commerce Clause
Article I, Section 8 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/appa#a1.8) , sets out the powers of Congress in a list. Included in this "list of powers" is the Commerce Clause, which states:
The Congress shall have Power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
Although the Commerce Clause might seem an unlikely origin for enforcing antidiscrimination law, it is in fact a powerful tool. This chapter will discuss the Commerce Clause as one of the sources of constitutional theory for antidiscrimination law. (Other constitutional provisions include the Equal Protection Clause and the Due Process Clause.) By its terms, Congress is expressly given the power to regulate interstate commerce, or commerce that takes place across state borders. If the commerce being conducted is not across state lines, then it is intrastate commerce, or within the state and regulated only by the individual states, and not the federal government. Therefore, we say that interstate commerce is regulated by Congress (the federal government) and intrastate commerce is regulated by the states. In its simplest form, if a buyer travels to a city in her state and purchases an automobile, that is intrastate commerce; if she travels to another state and buys the automobile, then she has engaged in interstate commerce. Few consumers notice which type of commerce they are involved in because such a distinction rarely impacts their lives. From a legal standpoint, however, understanding the type of commerce is essential because it has myriad implications about which law governs the situation.
The Affectation Doctrine
On its face, Congress's power to regulate interstate commerce might appear to involve just the sale of goods from a business in State A to a business in State B, and that is true. Over time, however, judicial interpretations by the U.S. Supreme Court have used the Commerce Clause to greatly extend the power of Congress; as a result, the impact of being engaged in interstate commerce has become far reaching. The U.S. Supreme Court has interpreted the clause "To regulate Commerce . . . among the several States" to mean that if a person or business is engaged in interstate commerce, then all federal statutes apply to that business. This is true even if the business in State A sells only to another business in State A. If the activity of selling within a state ripples out and affects people in another state, then the intrastate activity becomes interstate activity. This is called the Affectation Doctrine. In a sense, the Doctrine is not a "law" per se but a concept formulated by the U.S. Supreme Court. By making intrastate activity into interstate activity, the Court essentially expanded the power of Congress to regulate many more businesses.
Wickard v. Fillburn
Consider the case Wickard v. Fillburn (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZS.html) (317 U.S. 111), decided by the U.S. Supreme Court in 1942. In this case, a farmer owned a small farm in Ohio. There, he raised poultry, sold eggs, and grew a crop of winter wheat to feed his cattle. He also used the wheat for home consumption (presumably, making it into bread) and sold a portion of it. For all intents and purposes, one would conclude that his activity was strictly local (intrastate) and therefore not subject to regulation by the federal government under the Commerce Clause.
In 1938, to combat the lowering of crop prices during the Great Depression, Congress passed the Agricultural Adjustment Act, which established quotas for how much wheat a farmer could grow. If one exceeded the allotment, then there was a penalty. The Ohio farmer exceeded his allotment and, as a result, was assessed a penalty of $117.11 in all. From the farmer's point of view, since he was involved only in intrastate commerce on his tiny farm, the federal government should not have had any power over him, nor should the Agricultural Adjustment Act have applied to his operation. A federal statute should apply only to those involved in interstate commerce because Congress has the power to regulate only commerce between states.
However, in a case opinion that has implications even today, the Court stated as follows:
The commerce power is not con�ined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of state activity can
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Courtesy Everett Collection
President Lyndon Johnson, watched by Martin Luther King Jr., signed the Civil Rights Act on July 2, 1964.
constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.
It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial in�luence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to �low into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be re�lected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as de�initely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
In short, if an activity is local, but that local activity affects interstate commerce, then Congress may regulate it. Thus, the name given to this tenet is the Affectation Doctrine.
1964 Civil Rights Act
Fast-forward to the highly segregated United States of the 1950s. Discrimination against African-Americans is rampant. Demonstrations, especially in the South, highlight a stark class system that is in fact reinforced by a system of state laws called "Jim Crow," which required segregation in public accommodations and set a standard of "separate but equal" for African-Americans. However, in 1954, the U.S. Supreme Court had already decided the case of Brown v. Board of Education (347 U.S. 483), which ordered the desegregation of public schools. The federal government attempted to integrate by negotiating with individual states but without success; it then tried enforcing the law through use of the National Guard. Businesses in the South blatantly discriminated on the basis of race, with signs on water fountains, doors of restaurants, and seating areas in bus stations that read, "Colored Only" or "Whites Only."
Then, in 1964, Congress passed federal legislation known as the Civil Rights Act. Prior to this time, little federal statutory law had prohibited discrimination. That all changed, however, with the stroke of President Lyndon Johnson's pen. Suddenly, it became illegal to discriminate on the basis of race, color, national origin, sex, or religion at places of public accommodation (per Title VII; for the full, amended text, click here (http://www.dol.gov/oasam/regs/statutes/2000e-16.htm) ). These included restaurants, motels, bowling alleys, and movie theaters. The fact that a law was put in place, however, didn't mean that communities integrated overnight. In fact, segregation remained as prevalent as before even if it was without legal sanction.
From a legal standpoint, can you think of what argument businesses made to try to avoid the application of the statute to their business? Just like the wheat farmer in Wickard, they argued that the Civil Rights Act did not apply to them because they were engaged only in local activity. If one is engaged only in local activity, they reasoned, then one is not engaged in interstate commerce; if one is not engaged in interstate commerce, then Congress has no power to regulate you, because Congress can regulate only commerce among states. Since businesses were engaged in only local activity, then they were subject only to state law, and since many of the states had no antidiscrimination laws, businesses could legally continue to exclude blacks. How then could the federal government get the Civil Rights Act to apply to individuals and businesses that continued to discriminate against African-Americans? This leads us to two landmark decisions: the Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung.
In the Heart of Atlanta Motel case, a Georgia man owned and operated the Heart of Atlanta motel, which had 216 rooms available to transient guests in downtown Atlanta. The motel was near an interstate highway and was advertised in national magazines and on interstate billboards and highway signs. It also accepted convention trade from outside the state of Georgia, and more than 75% of its registered guests were from out of state.
In Heart of Atlanta Motel, the U.S. Supreme Court described the Civil Rights Act as the "most comprehensive, undertaking to prevent . . . discrimination in voting, as well as in places of accommodation and . . . in employment." Part of the act states:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as de�ined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin . . . including . . . Restaurants, cafeterias, etc.
Excerpts from the Court's opinion follow.
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Cases to Consider: Heart of Atlanta Motel, Inc. v. United States
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
The motel owner refused to provide lodging to African Americans. [The Court discussed the increase in automobile travel throughout the United States, noting that] Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight; and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the dif�iculties" Negroes encounter in travel. These exclusionary practices were found to be nationwide.
This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of �inding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community.
The power of Congress to deal with these obstructions depends on the meaning of the Commerce Clause. In short, the determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is "commerce which concerns more States than one" and has a real and substantial relation to the national interest. Let us now turn to this facet of the problem.
It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, "(if ) it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze."
The power of Congress over interstate commerce is not con�ined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may—as it has—prohibit racial discrimination by motels serving travelers, however "local" their operations may appear.
We, therefore, conclude that the action of the Congress in the adoption of the [Civil Rights Act of 1964] as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress. It is subject only to one caveat—that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0379_0241_ZO.html) .
Questions to Consider
1. What activity did the Court say was signi�icant in �inding that the Heart of Atlanta motel engaged in interstate commerce?
2. What argument did the motel owner make to the Court about the inapplicability of the Civil Rights Act to his business?
3. Can you explain how the Affectation Doctrine applied to this case?
4. What "laws" are in play in this case? What "legal theories" are in play in this case? Can you tell the difference between a "law" and a "theory"?
Note this important language from the Supreme Court's decision: "The power of Congress over interstate commerce is not con�ined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce."
Scope and Implications of the Affectation Doctrine
Ask yourself at this point: Using the above reasoning, is there any activity that does not affect interstate commerce? If you think back to the Wickard case, remember that the farmer was growing wheat essentially for home consumption. But the fact that he was not going to the store to buy bread, or that all farmers who grew wheat for home consumption—in the aggregate—were not going to the store, affected interstate commerce. Likewise, the motel owner who denied interstate travelers the right to stay at a motel near an interstate highway impacted interstate commerce.
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What would happen, however, if the situation involved no interstate movement of people whatsoever? Suppose that the business did not serve interstate travelers, nor did it advertise on interstate highways or service out-of-state convention trade. Would the Affectation Doctrine apply if such a business were engaged in a strictly local activity?
The Supreme Court considered this issue in the case Katzenbach v. McClung. This case concerned a family-owned barbecue located in Birmingham, Alabama, that specialized in barbecued meats and homemade pies, with a seating capacity of 220 customers. The restaurant was located on a state highway 11 blocks from the interstate. Although two-thirds of its employees were African-Americans, customers who were black had to get service at the back door in the form of takeout and could not sit in the dining room. Excerpts from the Court's opinion follow.
Cases to Consider: Katzenbach v. McClung
Katzenbach v. McClung, 379 U.S. 294 (1964)
In the 12 months preceding the passage of the [Civil Rights Act of 1964], the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant had moved in interstate commerce. The restaurant has refused to serve Negroes in its dining accommodations since its original opening in 1927, and since July 2, 1964, it has been operating in violation of the Act. The court below concluded that if it were required to serve Negroes it would lose a substantial amount of business.
The basic holding in Heart of Atlanta Motel answers many of the contentions made by the (appellees) owners of the restaurant. There we outlined the overall purpose and operations plan of Title II and found it a valid exercise of the power to regulate interstate commerce insofar as it requires hotels and motels to serve transients without regard to their race or color. In this case we consider its application to restaurants which serve food[,] a substantial portion of which has moved in commerce.
***
The sole question, therefore, narrows down to whether Title II, as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress. It goes without saying that, viewed in isolation, the volume of food purchased by Ollie's Barbecue from sources supplied from out of state was insigni�icant when compared with the total foodstuffs moving in commerce.
This grant, as we have pointed out in Heart of Atlanta Motel "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce."
Much is said about a restaurant business being local but "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." The activities that are beyond the reach of Congress are "those which do not affect other States. . . ."
This Court has held time and again that this power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce. We have detailed the cases in Heart of Atlanta Motel, and will not repeat them here.
The appellees contend that Congress has arbitrarily created a conclusive presumption that all restaurants meeting the criteria set out in the Act "affect commerce." Stated another way, they object to the omission of a provision for a case-by-case determination—judicial or administrative—that racial discrimination in a particular restaurant affects commerce. But Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate �low of food and upon the movement of products generally. The only remaining question—one answered in the af�irmative by the court below—is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce.
. . . [R]acial discrimination in restaurants had a direct and adverse effect on the free �low of interstate commerce. Congress prohibited discrimination only in those establishments having a close tie to interstate commerce, i.e., those, like the McClungs', serving food that has come from out of the State. We think in so doing that Congress acted well within its power to protect and foster commerce in extending the coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0379_0294_ZO.html) .
Questions to Consider
1. The owners of the restaurant argued that the Court had extended the power of Congress too far under the Affectation Doctrine and that the restaurant was not engaged in interstate commerce. What was the Court's response to this argument?
2. The Court stated that, "viewed in isolation, the volume of food purchased by Ollie's Barbecue from sources supplied from out of state was insigni�icant when compared with the total foodstuffs moving in commerce." If this is true, how did the Court �ind that the restaurant was engaged in interstate commerce?
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3. What rule can you take away from this case about the applicability of the Commerce Clause and the Affectation Doctrine to businesses in general?
As you can see from both Heart of Atlanta Motel and Katzenbach, these Supreme Court interpretations of the Commerce Clause greatly expanded the power of Congress. But are there any limits on the Commerce Clause? More than 30 years after these decisions, only three signi�icant cases have provided further insights into the scope of the Commerce Clause's application. In the �irst, United States v. Alfonso Lopez, Jr (http://www.law.cornell.edu/supct/html/93- 1260.ZD2.html) ., 514 U.S. 549 (1995), the defendant was arrested for having a gun inside a school zone and charged with a federal statute, the Gun-Free School Zones Act of 1990. Did federal law apply to him? The Supreme Court said no, this was not a correct application of the Commerce Clause because possession of a gun is not commerce. This case was until recently considered the only one to have limited the application of the commerce clause.
In contrast, Gonzales v. Rich, 545 U.S. 1 (2005), continued the more liberal approach. Here, two women with serious illnesses grew medical marijuana for home consumption. In their state of California, a law was in place that allowed usage for persons suffering from serious illnesses. Nevertheless, federal agents con�iscated their marijuana and the women sued, contending that their right to use medical marijuana was controlled by the state law, and the federal law prohibiting the use of the drug did not apply to them under the Commerce Clause. In a decision similar to Wickard, the Court held that federal law did apply to the women because their use of medical marijuana affected the national markets for the sale and purchase of the drug. In language strikingly similar to the holding in Wickard, the Court opined as follows:
The parallel concern making it appropriate to include marijuana grown for home consumption in the [Controlled Substances Act] is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress's commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
Most recently, in the June 2012 decision dealing with "ObamaCare" (the Patient Protection and Affordable Care Act), National Federation of Independent Business v. Sebelius— S.Ct.—, 2012 WL 2427810, the Court once again refused to �ind commercial activity inherent in the mandate for all U.S. individuals to carry health insurance; thus, the Commerce Clause did not apply. The Constitution grants Congress the power to "regulate Commerce." The power to regulate commerce presupposes the existence of commercial activity to be regulated. The so-called individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Imposing it would be equivalent of �inding the existence of individual lives to be part of interstate commerce, which the Court hesitated to do. See full text of the decision here (http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf) . For an excellent video discussion of the Commerce Clause and its various interpretations, see "Wheat, Weed, and ObamaCare: How the Commerce Clause Made Congress All-powerful (http://www.youtube.com/watch?v=6SDf5_Thqsk) ".
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22.2 Title VII of the 1964 Civil Rights Act Title VII is a landmark federal statute that forms one of the most signi�icant laws in the United States prohibiting discrimination in employment.
Title VII was enacted to further two primary goals: to end discrimination on the basis of race, color, religion, sex or national origin, thereby guaranteeing equal opportunity in the workplace, and to remedy the segregation and underrepresentation of minorities that discrimination has caused in our Nation's work force. (Taxman v. Board of Education, 91 F.3d 1547, 1997)
Key Provisions
Title VII is a part of the Civil Rights Act of 1964 that set out sweeping legislation outlawing discrimination in the United States. It applies to places of public accommodation as well as employment. Discrimination isn't limited to hiring and �iring; it also applies to differences in pay or bene�its, work assignments, performance evaluations, training, discipline or discharge, or any other area of employment.
Section 703 of Title VII states:
(a) 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;
(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.
Exceptions
Many students are surprised to learn that Title VII does not apply to all employers. In fact, coverage begins only when there are "15 or more employees for each working day for 20 or more calendar weeks in the current or preceding calendar year" (Title VII, § 701(b)). This means that an employer with fewer than 15 employees is exempt from the rules of Title VII but still subject to state antidiscrimination laws. There are also a number of entities that are exempt from Title VII, such as educational institutions that are associated with a particular religion and employ only members of that religion.
In addition, valid exceptions to discrimination, called bona �ide occupational quali�ications (BFOQs) were established in Section 703(e) of Title VII. This section states that it is not unlawful for an employer to differentiate hiring on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona �ide occupational quali�ication reasonably necessary to the normal operation of that particular business or enterprise.
The EEOC as Enforcer
The federal administrative agency that oversees discrimination is the Equal Employment Opportunity Commission. Commonly referred to as the EEOC, this administrative agency has its headquarters in Washington, D.C. Its website (www.eeoc.gov (http://www.eeoc.gov) ) contains practical information especially helpful to employers who wish to remain up to date on the latest interpretations of the law.
In 1978, the EEOC implemented guidelines for determining whether or not employment decisions had an adverse impact. Referred to as the four-�ifths rule, the "Uniform Guidelines on Employee Selection Procedures" (found at 29 CFR §, 1607.4D) state, "A selection rate for any race, sex or ethnic group which is less than four-�ifths (%) will generally be regarded by the Federal enforcement agencies as evidence of adverse impact" and will warrant further investigation. For example, in terms of selection criteria, the EEOC �inds that an adverse impact occurs if members of a protected class are selected for a job or promotion at a rate less than 4/5 (80%) of that of another group. A protected class is a category of people that the U.S. Supreme Court has decided deserve added protection owing to a history of extreme discrimination. Protected classes include persons of a particular race, color, national origin, or religion. If 50% of white applicants receive a passing score on a test but only 30% of African-Americans pass, the relevant ratio would be 30/50, or 60%, which violates the 80% rule; that is, the test has a disparate impact on the African-American applicants. Managers need to be aware of such types of parameters and monitor any types of tests given for job advancement to ensure that they are in compliance. See Chapters 23, 24, and 26 for an in-depth discussion of race, sex, and other types of discrimination under the law.
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Key Terms
Click on each key term to see the de�inition.
Affectation Doctrine (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A theory developed by the U.S. Supreme Court that says if local activity affects people in other states, then intrastate commerce becomes interstate commerce.
Article I of the U.S. Constitution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Part of the U.S. Constitution that establishes the legislative branch, or Congress.
Article I, Section 8, of the U.S. Constitution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Part of the U.S. Constitution that sets out the powers of Congress.
Article II of the U.S. Constitution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Part of the U.S. Constitution that establishes the Executive Branch.
Article III of the U.S. Constitution (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Part of the U.S. Constitution that establishes the federal judiciary or federal courts (the judicial branch).
bona �ide occupational quali�ications (BFOQs) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
According to the EEOC, acceptable reasons to discriminate because they are "reasonably necessary to the proper operation of the business."
Civil Rights Act of 1964 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Also known as Title VII, the major federal law in the United States that prohibits discrimination on the basis of race, color, national origin, sex, or religion.
Commerce Clause (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A passage contained in the U.S. Constitution in Article I, Section 8, that gives Congress the power to regulate interstate commerce.
Equal Employment Opportunity Commission (EEOC) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The federal administrative agency that oversees discrimination complaints based on Title VII of the Civil Rights Act of 1964.
four-�ifths rule (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A quantitative analysis used by the EEOC to determine if an employer's selection rates have an adverse impact on a protected class.
interstate commerce (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Commerce that takes place across state lines.
intrastate commerce (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Commerce that takes place within a state.
Jim Crow laws (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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State and local laws enacted between 1876 and 1965 that mandated racial segregation in all public facilities in southern states of the former Confederacy. Starting in 1890, they established a standard of "separate but equal" status for African-Americans.
protected class (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A category of people that the U.S. Supreme Court has decided deserve added protection owing to a history of extreme discrimination. Protected classes include persons of a particular race, color, national origin, or religion.
public accommodation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Accessible facilities, including restaurants, hotels, theaters, doctors' of�ices, retail stores, libraries, parks, and private schools; private clubs and religious organizations are exempt.
Section 703 of Title VII (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The portion of Title VII (part of the Civil Rights Act of 1964) that sets forth the types of prohibited discrimination in the workplace as well as exceptions to the rule.
Title II (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Section of the Civil Rights Act of 1964 that provides injunctive relief against discrimination in places of public accommodation. It requires hotels and motels to serve transients without regard to their race or color.
Title VII (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Section of the Civil Rights Act of 1964 that prohibits employment discrimination based on race, color, religion, sex, and national origin.
Chapter 22 Flashcards
Critical Thinking and Discussion Questions
1. The Affectation Doctrine stems from what part of the Constitution?
2. The 1964 Civil Rights Act makes what type of discrimination in employment illegal?
3. Under what circumstances would Title VII not apply to an employer?
4. What is the four-�ifths rule, and how is it calculated?
5. What far-reaching effects can you imagine resulting from the Affectation Doctrine? Using simple logic, can you imagine any business not being engaged in interstate commerce?
6. In Heart of Atlanta Motel, Inc. v. United States, the African-Americans moved in interstate commerce, but in Katzenbach v. McClung, the Court admitted that the customers were all "local." What moved in interstate commerce in this case? And why was that signi�icant?
According to the EEOC, acceptable reasons to discriminate because the necessary to the proper operation of the business."
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7. Mel is a student at Your Local College. He decides to have all of his friends over for a party at his private home. Mel sends out 100 invitations that say, "Party with Mel. Saturday night. 10 pm – ? No Methodists allowed."
a. Ten Methodists sue Mel for religious discrimination. What do you think the outcome would be? You can assume that there is a federal statute that prohibits religious discrimination.
b. Assume the same facts as above, except that this time Mel charges admission to his house and provides beer for the price of admission. Mel obtained the beer from a local liquor store, and he also put out chips, dip, celery sticks, and chicken wings, all from local stores. He also posted the invitation on the Internet and his Facebook page. Now what do you think the outcome of the lawsuit would be?
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Chapter 23
Discrimination on the Basis of Race As discussed in Chapter 22 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec22.2#sec22.2) , Title VII of the 1964 Civil Rights Act set out sweeping legislation outlawing discrimination in the United States. It was enacted in part to remedy the segregation and underrepresentation of minorities that discrimination had caused in the nation's workforce. This chapter will provide an overview of one type of prohibited discrimination: that based on race, as it pertains to terms and conditions of employment.
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23.1 Title VII and Racial Discrimination Keep in mind that race discrimination is prohibited by federal law and prohibited as well by each state's own, unique discrimination laws. In addition, workplace handbooks set forth company policies regarding discrimination. All these provisions must be viewed together, not in isolation. Therefore, you may want to think of the federal law as broad provisions on governance, whereas state and local laws (as well as handbooks) might give more inclusive directives on many other topics, such as sexual orientation. In addition, state laws have different procedures for bringing a discrimination claim that must be taken into consideration when contemplating litigation.
Title VII did not contain a de�inition of race. However, in applying the law, the Equal Employment Opportunity Commission (EEOC) collects data on race in the United States and on its forms using the following categories: Native Hawaiian or other Paci�ic Islander (NHOPI), American Indian or Alaskan Native, Asian, White, and Black or African-American. Hispanic or Latino is considered an ethnic rather than a racial category. Color, as opposed to race, refers to skin pigmentation such as light or dark skin. Discrimination on the basis of skin color is the refusal to hire someone because of his or her skin color, such as the refusal to hire "light-skinned blacks."
Key Title VII Court Decisions
One of the �irst cases to interpret Title VII on the basis of race discrimination was Griggs v. Duke Power Company, 401 U.S. 424 (1971). In this case, Duke Power Company instituted a general intelligence test as a condition to receive a promotion within the company from one division to another. Let's take a closer look at this case to see how the test was in fact related to racial discrimination.
Cases to Consider: Griggs v. Duke Power Company
Griggs v. Duke Power Company, 401 U.S. 424 (1971)
The following are excerpts from the U.S. Supreme Court case:
In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an "inside" job by passing two tests—the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. . . .
On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testi�ied, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the workforce. . . .
In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any "inside" department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the "operating" departments. Findings on this score are not challenged.
The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department[,] it became necessary to register satisfactory scores on two professionally prepared aptitude tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. . . .
The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identi�iable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices. . . .
. . . Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences. There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of quali�ications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of arti�icial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classi�ication. . . .
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The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements ful�ill a genuine business need. In the present case the Company has made no such showing. . . .
[The Court of Appeals majority, in �inding no requirement in Title VII that employment tests be job-related, quoted from an earlier interpretative memorandum on the question of the constitutionality of Title VII:]
There is no requirement in Title VII that employers abandon bona �ide quali�ication tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his quali�ications as high as he likes, he may test to determine which applicants have these quali�ications, and he may hire, assign, and promote on the basis of test performance.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html) .
Questions to Consider
1. After Griggs, may an employer administer tests for its employees? Under what circumstances are tests allowed? What would the employer have to show for the test to be nondiscriminatory?
2. What did you learn from this case about giving your employees a test at work prior to promotion?
There are many important facets to point out from this case. First, note what the Court said about Title VII's purpose: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identi�iable group of white employees over other employees. When you read the language from the decision, it should be obvious that the test implemented by the employer was used in order to keep African-Americans from in�iltrating parts of the plant that they had been excluded from; in other words, the test was being used to keep blacks and whites physically separated, or segregated.
The signi�icance of the Griggs case is that intent was unimportant in proving discrimination. Instead, the effect of the policy was to further discrimination. One could conclude that the language of the Griggs decision woke up America to the fact that even unintentional discrimination is unlawful. This is important, because most employers are aware of the laws prohibiting discrimination and therefore do not implement programs in their companies that are intentionally discriminatory. They may believe that as long as their discrimination is unintentional, they are not subject to liability. Nevertheless, through both the Civil Rights Act and the Supreme Court's interpretations, as in Griggs, the courts and Congress have clearly enunciated that a particular program that results in discrimination is also a violation. This is called disparate impact discrimination because the impact of the policy results in discrimination. Disparate impact is most often proven through the use of statistical evidence.
Note the language that the court used in calling the tests "neutral on their face" and even neutral in terms of intent. What does this mean? A test is neutral on its face if it does not appear to be discriminatory; it is only when the test is actually implemented that it becomes discriminatory. This, too, has disparate impact. In Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), disparate impact was summarized as "Fair in form but discriminatory in practice."
One important concept that you should take away from this discussion is that, as a manager, you need to evaluate policies implemented by your company to determine whether they have either a discriminatory intent or an adverse effect on employees. If your company uses tests to decide readiness for promotion, the Griggs case tells us that the test must have a relationship to an employee's ability to perform his or her job and not select candidates based on irrelevant criteria.
The EEOC's Role
As discussed in Chapter 22 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec22.2#sec22.2) , the Equal Employment Opportunity Commission (EEOC) �inds that an adverse impact occurs if members of a protected class are selected for a job or promotion at a rate less than 4/5 (80%) of that of another group. According to the EEOC, these groups are protected from employment discrimination by law. They include men and women on the basis of sex; any group that shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps. The EEOC website (http://www.eeoc.gov) sets out examples of other potentially unlawful practices, such as:
1. Soliciting applications only from sources in which all or most potential workers are of the same race or color;
2. Requiring applicants to have a certain educational background that is not important for job performance or business needs; and
3. Testing applicants for knowledge, skills, or abilities that are not important for job performance or business needs.
The EEOC also suggests that any record keeping about protected classes be kept separately from the application process.
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According to the agency, not only should employers be aware of the potential for racial discrimination, but there is an added component called racial harassment for which employers are also liable. This type of offense includes a workplace in which other employees engage in ethnic slurs or racial jokes.
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23.2 How a Race Discrimination Lawsuit Begins As previously noted, there are both federal and state discrimination statutes; likewise, there is a federal discrimination agency (the EEOC) and state agencies. The �irst decision that an aggrieved person must make is where to begin the claim. The best place, of course, is usually with the person who allegedly discriminated. Trying to remedy the situation with a supervisor or coworker who discriminated is a private, free, quick, and con�idential process. Recall the other ways to resolve disputes from Chapter 3 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec3.2#sec3.2) , which included alternative dispute resolution. Discrimination claims might be a good place to bring in a trusted advisor or trained mediator. Although there are no reported statistics for how often these remedies actually work, it cannot hurt to try these methods. An administrative agency will likely take months or years to resolve the dispute, in which case it might be easier to get another job.
Determining Jurisdiction
Before an aggrieved person can �ile a lawsuit in court alleging racial discrimination, he or she must �irst decide whether the claim will be under state or federal discrimination laws. State discrimination laws are much more narrow and protective than federal laws. An example of one part of New York State's antidiscrimination law is as follows:
New York State Human Rights Law, Section 296. Unlawful discriminatory practices.
1. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
Notice that the New York statute protects classi�ications such as sexual orientation and "domestic violence victim status," neither of which is covered by Title VII.
If the complainant pursues a state claim, the �irst step would be to �ile with the respective agency and follow the procedures set out, which are usually quite detailed and vary from state to state. The agency will make a �inding of whether or not there is probable cause to proceed with an investigation. If there is, a site visit may be made to the place of employment, where meetings with personnel take place and documents are procured. If the agency concludes that discrimination in fact occurred, the agency may be empowered to levy �ines or issue mandates to correct the employer's behavior.
If the employee takes a "federal route" through the EEOC, then there is a different detailed process that leads to an investigation and a hearing. The EEOC mandates that before a complainant can sue his or her employer for discrimination, the complainant must �irst "exhaust all administrative remedies." This means that the employee must go through all of the EEOC's proceedings, and only when they are completed does suing in court become an option. At both the state and federal levels, the majority of cases never proceed very far because the agencies usually �ind there is no "cause" or �inding of discrimination. For the few cases that do proceed to a hearing, many result in negotiations and settlements. Very few ever proceed to court. In the event that litigation does take place, the plaintiff has the burden of proving the discrimination, as illustrated in the next section.
Burden of Proof
If a discrimination case ends up in court, there is a three-step process pertaining to the burdens of proof that occur. See Figure 23.1 for an illustration.
Figure 23.1: Steps in a race discrimination lawsuit
The Plaintiff
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The plaintiff has the initial burden of proving the discrimination. The plaintiff must demonstrate by a preponderance of evidence that he or she was discriminated against because of his or her race. The plaintiff can sustain the burden of proof by showing that:
1. He or she is a member of a protected class;
2. He or she was meeting the employer's legitimate job expectations;
3. He or she suffered an adverse employment action; and
4. Similarly situated employees outside the protected class were treated differently.
If the plaintiff is able to prove the above "list" by a preponderance of the evidence, the burden then shifts to the defendant to show a reason for the discrimination.
The Employer
The employer now has the burden of proving to the court by a preponderance of the evidence that the employer had a legitimate, nondiscriminatory reason for rejecting the employee. For example, consider the case Twymon v. Wells Fargo & Company, 462 F.3d 925 (2006). In this case, Wells Fargo recruited and hired Twymon, an African-American, in July 2000 as the Director of Organizational Performance Reporting & Measurement in West Des Moines, Iowa. Twymon's duties at Wells Fargo included responsibility for the performance management system, employee development consulting, statistical measures, and all activities related to organizational performance and organizational change. On November 30, 2001, Wells Fargo �ired Twymon, citing violation of Wells Fargo's Electronic Communication Use System Policy (computer policy) as the reason for termination. Twymon alleged that racial animus and retaliation were the real reasons for her termination. An audit of Twymon's work computer revealed that she had visited hundreds of non– work-related Internet sites. Sometime later (the record is unclear as to when), Twymon's computer hard drive was found to contain images of nude and partially nude males, as well as close-up views of male genitalia. In addition, Twymon was found to have received an inappropriate image via her work e- mail and to have forwarded the e-mail to her personal e-mail account. Wells Fargo deemed Twymon's alleged actions to be in gross violation of the computer policy and terminated Twymon's employment on November 30, 2001.
While Twymon sustained the initial burden of showing she was �ired for a discriminatory reason, the business was able to show a valid "reason" for the �iring that was unrelated to race. The court stated as follows:
We assume, without deciding, that Twymon established a prima facie case of discrimination. However, we agree with the district court that Wells Fargo articulated a legitimate, non-discriminatory rationale for Twymon's termination: gross violation of the company's computer policy. We have consistently held that violating a company policy is a legitimate, non-discriminatory rationale for terminating an employee.
Twymon v. Wells Fargo seems to be typical. In the vast majority of cases, the plaintiff cannot prove that the defendant's actions were pretextual. Instead, when the employer gets to court, the employer often shows perfectly plausible reasons for discharge of the employee. These may involve poor work performance (Garcia v. Bristol-Myers Squibb, 535 F.3d 23), truancy, tardiness, sleeping at work (Smith v. New Venture Gear, Inc., 319 Fed. Appx. 52 [2d Cir. 2009]), inappropriate remarks to coworkers, violent behavior in the workplace, use of drugs and alcohol at work, or refusal to follow reasonable company policy.
The Plaintiff Shows That Defendant's Reasoning Is Pretextual
Suppose the plaintiff has proven the initial steps of the discrimination, and the employer has responded with the reasons the plaintiff was �ired. In step three, the plaintiff has the burden of proving that the employer's reasons are pretextual, untrue, or at least not suf�icient to warrant the action taken against the employee. This simply means that the reasons proffered by the employer are a cover-up for the racially motivated decision, or a sham. In one court's words (Johnson v. AT & T Corp., 422 F.3d 756, 763 [8th Cir. 2005]), "To prove pretext, a plaintiff must both discredit an employer's asserted reason for termination and show that the circumstances permit drawing the reasonable inference that the real reason for terminating the plaintiff was her race."
A common way of proving pretext is to show that similarly situated employees were more favorably treated or, stated another way, if all whites in the same position were given a bonus and the only African-American was not, it appears that the reason was based on race.
In Ash v. Tyson Foods, Inc., (http://www.relacioneslaborales.org/publicaciones/material_educativo_seminarios/ANTHONY_ASH_vs_TYSON_FOODS_INC.pdf) 546 U.S. 454, 126 S.Ct. 1195 (2006), the two plaintiffs, both African-American, were superintendents at Tyson Foods' poultry plant. They both sought a promotion to "open shift manager" positions, but two white males were selected instead, and they then sued for racial discrimination. The appeals court hearing the case stated that their standard for determining whether or not the employer's actions were pretextual were as follows: "Pretext can be established through comparing quali�ications only when 'the disparity in quali�ications is so apparent as virtually to jump off the page and slap you in the face.'" The Supreme Court sent the case back down, as it found the "slap you in the face" standard erroneous, stating that "evidence of quali�ications may suf�ice, at least in some circumstances, to show pretext." In addition, the Court stated:
("The fact that a court may think that the employer misjudged the quali�ications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination"); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[A] plaintiff's prima facie case, combined with suf�icient evidence to �ind that the employer's asserted justi�ication is false, may permit the trier of fact to conclude that the employer unlawfully discriminated").
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Interview Process: Legal Pitfalls
23.3 Role of the Manager in Preventing Race Discrimination Lawsuits While it is true that the law on discrimination is complex, managers nevertheless can do a great deal to prevent these lawsuits from ever occurring. From the start, establishing a company policy that forbids discrimination and enforcing that policy will go a long way in setting the tone in the organization that such behavior will not be tolerated. Managers who set a good example (including by refusing to participate in jokes that demean employees or perpetuate stereotypes) give employees a strong message about the seriousness with which the company takes such matters.
Establishing Clear Policies
All the cases presented thus far represent the failure of employers to put programs into place that would either have prevented discrimination, or, if that was not possible, dealt with the discrimination once it occurred. As a business manager, properly reacting to a charge of discrimination is just as important as having a policy in place to prevent it; so is thorough and extensive training of employees. The following is a list of suggested components to include in an appropriate plan:
1. Develop detailed and thorough policies regarding discrimination;
2. Communicate and train workers in the policies;
3. Set up a reporting system;
4. Act quickly and decisively upon reports;
5. Conduct fair but detailed investigations; and
6. Educate your employees about the rami�ications of violations.
Vetting New Hires
One of the places in which the employer is most vulnerable to lawsuits is in the hiring phase, also known as the preemployment process. Here, it is essential that employees in the Human Resources (HR) department or others involved with interviewing and hiring prospective employees be aware of the many potential pitfalls that even casual remarks may generate. In no way should the hiring process include any questions that regard race, sex, national origin, or other classi�ications under Title VII (or local and state law) (see Chapters 24 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec24.1#sec24.1) and 26 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec26.1#sec26.1) for an in- depth discussion).
Many questions are illegal to ask an interview candidate, under both Title VII and state law. There are many subject areas in which even innocently posed questions may have rami�ications. For example, the application form should not refer to the race of the applicant. If the employer seeks to keep statistics, the EEOC suggests the use of tear-off sheets for identifying an applicant's race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process. For a list of forbidden lines of inquiry, see the HR World website article, "30 Interview Questions You Can't Ask and 30 Sneaky, Legal Alternatives to Get the Same Info (http://www.hrworld.com/features/30-interview- questions-111507/) ".
Interview Process: Legal Pitfalls From Title: Personnel (https://fod.infobase.com/PortalPlaylists.aspx? wID=100753&xtid=2009)
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Key Terms
Click on each key term to see the de�inition.
color (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Skin pigmentation, such as light or dark skin.
disparate impact discrimination (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Policies that are neutral on their face but in practice have a discriminatory effect.
neutral on its face (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A test that does not appear to be discriminatory at �irst; it is only when the test is actually implemented that it becomes discriminatory.
preponderance of the evidence (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The burden of proof that applies to civil cases: The plaintiff must convince a majority of the jury by more than 51% that the defendant is liable.
pretextual (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An employer's reason for discrimination that is not true or is an invalid reason for the action taken.
prima facie case (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The plaintiff has met the burden of proof initially, and the defendant may now rebut that �inding.
race (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Ancestry or physical or cultural characteristics associated with a certain group of people, such as skin color, hair texture or styles, or certain facial features.
racial harassment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An atmosphere in the workplace in which employees engage in ethnic or racial slurs.
segregation (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A system of laws or social policies that keep blacks and whites (or other groups) separated.
Chapter 23 Flashcards
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Critical Thinking and Discussion Questions
1. What are the three steps pertaining to burdens of proof in a race discrimination lawsuit?
2. List three things a manager can do to help prevent discrimination in the workplace.
3. What is race? How is race de�ined in Title VII? By the EEOC?
4. What is a test that is "neutral on its face"? What is the legal signi�icance of such a test in terms of race discrimination?
5. What is a protected class? Who determines what classes are protected? Why are some classes protected?
6. Ace Manufacturing Company is located in 35 states throughout the United States and makes metal coil springs used in automobile chassis. Ace is currently hiring workers for its plant in Arizona and puts an advertisement on the Internet that says, among other things, "All workers must have three years of previous experience as a metal coil spring operator." A group of workers rejected for the job bring a lawsuit under Title VII alleging that they were discriminated against because they did not have any previous experience and therefore were rejected for employment. Discuss in detail the likelihood of the group prevailing. You can assume that the workers are members of a protected class, such as African- Americans. Outline, using arrows, the respective burdens of proof and what each of the parties must prove in order to prevail in the lawsuit.
7. Your company's employee handbook is in need of an update. Draft a comprehensive hearing procedure for your company to use when an employee believes that he or she has been discriminated against on the basis of race. Your procedures should include, at a minimum:
a. How a hearing board would be constituted and by whom;
b. How such a complaint would be investigated and by whom;
c. To whom the results of the investigation would be made public;
d. What powers the hearing board has in terms of sanctions;
e. What sanctions are available; and
f. What the appeals process would be.
8. Suppose that you are an employee at a large corporation and think that your employer is discriminating against you on the basis of race. As a result, you wish to begin a racial discrimination lawsuit against this employer. Go online and �ind your state's human rights agency that is equivalent to the EEOC. Then discuss the �irst steps you would take to �ile such a complaint. Draw up the initial correspondence with the agency as well as the initial information you would supply the agency about the alleged incident. Use your imagination to draft an incident that occurred at your �ictional company.
Skin pigmentation, such as light or dark skin.
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Chapter 24
Discrimination on the Basis of Sex Imagine that you have earned a PhD in business �inance and were hired to work by one of the country's largest government contractors. Everyone considers you an excellent employee, and your responsibilities have increased over the years. Yet, even as your responsibilities increased, you notice that you are consistently excluded from essential meetings and social events such as golf tournaments. Your male colleagues make jokes about your looks and sexual proclivities. With a company policy that mandates you either make partner or leave, you suddenly �ind yourself without a job. Such were the allegations of a former female partner at Booz Allen Hamilton, Inc., who �iled a multimillion-dollar gender discrimination lawsuit against the consulting �irm, accusing of�icials of actively denying women the chance to move up to top leadership positions. She was the second woman in two years to claim that the company had a "glass ceiling" that kept females below top-level jobs. (See "Allen Hit With Second Gender Discrimination Lawsuit (http://legaltimes.typepad.com/blt/2011/08/booz-allen-hit-with-second-gender-discrimination-lawsuit.html) " on the blog of LegalTimes.
Or consider the case against Big Four accounting �irm KPMG, where women comprise about half of all employees but only 18% of partners. According to the website of the attorneys representing the female plaintiffs:
Despite being touted by the Company as a role model for other working mothers, Ms. Kassman hit a glass ceiling after having children. KPMG abruptly slashed her base salary by $20,000 while she was on maternity leave, claiming she did not need the money because she "ha[d] a nice engagement ring." After languishing in a Senior Manager position for a decade, Ms. Kassman was �inally "put up" for promotion, only to be removed from the list of candidates based on unfounded, gender-biased comments from her male colleagues.— Kassman, et al., v. KPMG LLP.
These cases, which are both still in active litigation, represent the thousands of sexual discrimination complaints �iled in the United States each year. Consider that for all of the discrimination lawsuits �iled, many thousands are settled out of court or through mediation (for a discussion of mediation for settling legal disputes, see Chapter 3 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec3.2#sec3.2) ). The EEOC reported in 2010 that it had received 29,029 charges of sexual discrimination (Higuera & Ryerson, 2011). It is an unfortunate fact that discrimination on the basis of gender continues to be a problem confronting businesses, and women, on a daily basis. From the employer's point of view, the costs to businesses of engaging in discriminatory conduct are staggering, and lawsuits can involve hundreds of millions of dollars. In the recently decided Velez v. Novartis, the jury awarded a verdict of more than $253 million, the largest jury award in the United States in a gender discrimination case. That kind of judgment against a company could bankrupt it.
Students today seem surprised to learn that in the 1960s, discrimination against women in the workforce was widespread. For example, if you opened a newspaper and looked for a job, you would �ind one want ad column of jobs strictly relegated to men and another for women. Similar to the idea of "separate but equal," the want ad columns separated the sexes—but the separation was anything close to equal. The pay scales for men and women were radically different, "with women earning on average between 59–64 cents for every dollar their male counterparts earned in the same job" (Brunner, 2007). Women became increasingly angry and politically active about the disparity in rights and pay throughout the 1960s and continuing into the 1980s, demanding equality in the workplace and in all aspects of their lives. The Equal Pay Act was enacted in 1963 (29 USC § 206) to lessen this disparity, but despite the law's protection, today, women still only earn approximately 80 cents for every dollar that men earn for exactly the same job.
As a manager, your awareness of discrimination from all vantage points—legal, ethical, and moral—will produce a more effective workforce as well as ward off any lawsuits that may result. This chapter aims to make you more aware of the problem and cautious about behaviors and policies that could result in litigation.
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Case of Wrongful Termination?
24.1 Title VII and Sex Discrimination As we learned in the previous chapter, Title VII is the major federal statute prohibiting discrimination. With regard to a person's sex, Section 703 of Title VII states:
(a) 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. . . .
Note that Title VII covers any situation related to terms or conditions of employment. These cover wages, hiring, promotion, termination, and working conditions that give preference to men over women (or women over men, for that matter) for no legitimate business reason. In short, to satisfy the requirements of Title VII, most business decisions must make gender irrelevant.
Anatomy of a Sex Discrimination Claim
Claimants who believe they were discriminated against on the basis of sex must seek a resolution through either their state discrimination agencies or the EEOC before they can �ile a lawsuit in court. If they choose the EEOC route, that agency has a work arrangement (called a work-sharing arrangement) with all of the states, so �iling with the EEOC automatically �iles the lawsuit in the plaintiff 's state. Thus, the process preserves any rights that the plaintiff might have under state law that are not available through the federal government.
This arrangement has many advantages, not the least of which is preserving the plaintiff 's rights to a state claim should the federal one fail. As noted throughout this unit, protections at the state level are much more inclusive than Title VII's, and a claimant might be able to prevail in the state proceeding on a "right" not given under Title VII.
A claimant may wonder whether a lawsuit is worth pursuing. The EEOC has an Online Assessment System to evaluate a claim that goes through a series of questions to determine whether bringing a claim is warranted. The website is located at https://egov.eeoc.gov/eas/ (https://egov.eeoc.gov/eas/) . There are strict time limits for �iling a federal discrimination claim, and cases are usually referred to mediation for a resolution. For those cases that are never resolved at the agency level, claimants can request a Notice of Right to Sue from the EEOC, which then allows them to pursue the matter in court. This may be granted after 180 days, or six months.
Disparate Treatment Lawsuits
In sex discrimination cases, if an employer intentionally discriminates against females, it is called disparate treatment. When a disparate treatment case proceeds to court, then, as in a race discrimination claim, the same "burden of proof shifting" discussed in Chapter 23 applies for proving the discrimination. (See Figure 23.1, Steps in a Race Discrimination Lawsuit.) Recall that the plaintiff has the burden of establishing a prima facie case by a preponderance of the evidence. To do so, the plaintiff must show the following:
1. Membership in a protected group;
2. Quali�ication for the job in question;
3. An adverse employment action; and
4. Circumstances that support an inference of discrimination (Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).
If the plaintiff can sustain this burden of proof, then the defendant must rebut the presumption of discrimination by producing evidence that the plaintiff was rejected (or someone else was preferred) for a legitimate, nondiscriminatory reason. If the defendant succeeds in convincing the court that it had a legitimate nondiscriminatory reason, then the burden shifts back to the plaintiff to show that the defendants' reasoning was pretextual, or untrue.
Cases to Consider: Price Waterhouse v. Hopkins
Price Waterhouse v. Hopkins, 490 U.S. 228
Consider the 1989 case Price Waterhouse v. Hopkins (490 U.S. 228), in which Ann Hopkins was denied partnership in the accounting �irm of Price Waterhouse. In the year she was proposed for partner, of the 88 candidates considered, she was the only woman. Despite the fact that she had a stellar record at the �irm, she was denied partnership because she was "overly aggressive, unduly harsh, dif�icult to work with and impatient with staff." According to the case testimony, "One partner described her as macho; another suggested that she overcompensated for being a woman; a third advised her to take a course at charm school." In yet another conversation with a partner,
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she was advised to "walk more femininely, talk more femininely, dress more femininely, wear make-up[,] have her hair styled and wear jewelry." [Id., 235]
While the accounting �irm did little to deny these accusations, from its point of view, Ann Hopkins simply did not �it into the "culture of the �irm." (For an in-depth discussion of creating a positive corporate culture, see Chapter 4, Business Ethics and Con�lict Management.) Can the business's point of view be taken into account as a legitimate business reason and therefore serve as a defense to the discrimination? The following are excerpts from the court opinion:
The central point is this: while an employer may not take gender into account in making employment decisions . . . it is free to decide against a woman for other reasons. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a �inding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role.
***
Where an evaluation is based on a subjective assessment of a person's strengths and weaknesses it is simply not true that each evaluator will focus on or even mention the same weaknesses. . . . We sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman.
We hold that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a �inding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff 's gender into account.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0490_0228_ZS.html) .
Questions to Consider
1. What steps could this business have taken to avoid this lawsuit?
2. How could the business have analyzed the merits of Ms. Hopkins's promotion in a nonsexual (stereotyping) way?
Disparate Impact Lawsuits
Unlike a disparate treatment lawsuit in sex or race discrimination cases, a disparate impact lawsuit depends on statistics to prove that discrimination is taking place. The object of the lawsuit is to demonstrate that the result of the employer's actions has an adverse impact on a protected class, even if the discrimination was unintentional. (See Chapter 22 for a discussion of the four-�ifths rule.)
In Dothard v. Rowlinson, 433 U.S. 321 (1977), a female corrections of�icer in Alabama brought an action under Title VII alleging sex discrimination. She was denied employment because of height and weight restrictions. After her application was rejected, she brought this class suit under Title VII of the Civil Rights Act of 1964, alleging that the Alabama prison system's use of height and weight requirements was discriminatory against women because it excluded most eligible women from being considered for employment, and thus had a disparate impact. The following are excerpts from the case.
Cases to Consider: Dothard v. Rowlinson
Dothard v. Rowlinson, 433 U.S. 321 (1977)
The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive. It is asserted, rather, that these facially neutral quali�ication standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., and Albemarle Paper Co. v. Moody with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment and those cases guide our approach here.
Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a signi�icantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement (has) . . . a manifest relationship to the employment in question." If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in 'ef�icient and trustworthy workmanship.'"
Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the requirement would operate to exclude 33.29% of the women in the United States between the ages of 18–79, while excluding only 1.28% of men between the same ages. The 120-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined,
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Alabama's statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population. Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination.
***
Because most of Alabama's prisoners are held at the four maximum-security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the "contact" classi�ication. Thus, even though meeting the statutory height and weight requirements, women applicants could under Regulation 204 compete equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system.
The District Court found that the minimum statutory height and weight requirements that applicants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. . . .
***
We turn, therefore, to the appellants' argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a suf�icient but unspeci�ied amount of which is essential to effective job performance as a correctional counselor. . . .
***
The essence of a correctional counselor's job is to maintain prison security. A woman's relative ability to maintain order in a male, maximum-security, unclassi�ied penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women. In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.
There was substantial testimony from experts on both sides of this litigation that the use of women as guards in "contact" positions under the existing conditions in Alabama maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona �ide occupational quali�ication [BFOQ] for the job of correctional counselor in a "contact" position in an Alabama male maximum- security penitentiary.
Read the full text of the case here (http://supreme.justia.com/cases/federal/us/433/321/case.html) .
Questions to Consider
1. Did the Court �ind that Ms. Rawlinson had been discriminated against? Why or why not?
2. Did the Court �ind that she won the case? Why or why not?
3. What argument did Alabama use to justify discrimination against females? Do you agree or disagree with this argument?
Also consider the more recent adverse impact case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), in which 1.5 million women joined a class action alleging that Wal-Mart systematically discriminated by failing to promote them to managerial positions. The women argued that in Wal-Mart stores across America, local store managers were given too much discretion in terms of evaluating employees and as a result could in effect "hide their discrimination" by using subjective standards, thus eliminating females from contention.
Cases to Consider: Wal-Mart Stores, Inc. v. Dukes
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)
The named plaintiffs in this lawsuit, representing the 1.5 million members of the certi�ied class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964.
Betty Dukes began working at a Pittsburgh, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. . . .
Christine Kwapnoski has worked at Sam's Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question "told her to 'doll up,' to wear some makeup, and to dress a little better." The �inal named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In
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2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. . . .
***
These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers' discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.
***
Wal-Mart's announced policy forbids sex discrimination, and as the District Court recognized[,] the company imposes penalties for denials of equal employment opportunity.
[The court next considered whether the fact that supervisors had the discretion to promote females resulted in an inherently discriminatory system at Wal-Mart.]
***
To be sure, we have recognized that, "in appropriate cases," giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since "an employer's undisciplined system of subjective decision making [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination." But the recognition that this type of Title VII claim "can" exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices[,] most managers in any corporation— and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements. And still other managers may be guilty of intentional discrimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's. A party seeking to certify a nationwide class will be unable to show that all the employees' Title VII claims will in fact depend on the answers to common questions.
Respondents have not identi�ied a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby's social frameworks analysis that we have rejected. In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.
The court then concluded that 1.5 million females could not all have the same experiences in the Wal-Mart system with so many different managers, and therefore could not be certi�ied as a "class" to bring the lawsuit.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/10-277.ZS.html) .
Questions to Consider
1. Did the court �ind that Wal-Mart discriminated against women?
2. What was the problem with 1.5 million women all alleging sex discrimination against Wal-Mart?
3. What protected Wal-Mart from losing this lawsuit?
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24.2 Bona Fide Occupational Quali�ications in Sex Discrimination Section 703 of Title VII exempts bona �ide occupational quali�ications (BFOQs) from the de�inition of discrimination. Title VII recognizes that there are times in which sex discrimination is "reasonably necessary to the proper operation of the business" (42 U.S.C. § 2000e–2(f )). For example, it is not a violation of Title VII to hire males to model male clothing in a catalogue and to limit hiring to males for such a purpose. Consider, for example, a business that needs to create a clothing catalogue and plans a photo shoot. The company places an advertisement on the Internet seeking "handsome male models." Is this discrimination? Yes, but is it actionable? No. It is necessary for this particular business enterprise to exclude women in order to maintain the normal operation of its business. Other examples might include hiring the same-sex person to work in a men's or women's locker room as an attendant or hiring a male or female residence hall advisor in a college dormitory that is single-sex.
Safety
We already considered the case of Dothard v. Rawlinson. Note that this case, in addition to addressing sex discrimination, also has a strong BFOQ component. Recall that the Alabama prison system argued successfully that the dangers were too great for a female prison guard to be in physical contact with prisoners. This has been interpreted in later cases to mean that the danger to the prisoners was too great, as her inability to handle problems could result in a physical altercation. In other words, the court justi�ied the discrimination on the basis of sex because they were protecting the prisoners from her inability to control them.
Cases to Consider: International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al. v. Johnson Controls, Inc.
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al. v. Johnson Controls, Inc. 499 U.S. 187 (1991)
In another landmark sex discrimination case that went to the U.S. Supreme Court, women were excluded from working in or near the manufacture of batteries that contain lead by the company Johnson Controls, which considered such proximity too dangerous to the fetus of reproductive-aged females. The Court held that the policy was "facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing" but then considered whether the protection of the fetus was a BFOQ. In concluding that this policy was not a valid BFOQ, the Court stated as follows:
Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job.
In holding that Johnson Controls could not use its concern about a woman's fetus to deny women the right to work in the battery manufacturing part of the plant, the Court stated:
Our holding today that Title VII, as so amended, forbids sex-speci�ic fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities. Congress in the PDA [Pregnancy Discrimination Act of 1978] prohibited discrimination on the basis of a woman's ability to become pregnant. We do no more than hold that the PDA means what it says. It is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make.
Read the full text of the case here (http://www.law.cornell.edu/supct/html/89-1215.ZS.html) .
Questions to Consider
1. How did the court de�ine the "safety exception" to the BFOQ?
2. Why did the court say that its holding was "neither remarkable nor unprecedented"?
3. Do you agree with the court's decision? Why or why not?
Similarly, some courts have approved airlines' layoffs of pregnant �light attendants (at different points during the �irst �ive months of pregnancy) on the grounds that the employer's policy was necessary to ensure the safety of passengers.
Beginning with Dothard, and continuing through Johnson Controls, notice that the courts justify the use of the safety BFOQ exception when safety is a concern; that is, they allow discrimination on the basis of sex if they believe being female makes the job unsafe for others. In Dothard, the opinion indicates (and later cases con�irmed) that the prison system was watching out for the inmates' safety, and in the �light attendants' case, the airline was concerned for the passengers.
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Associated Press
Wilson v. Southwest Airlines Co. addressed the issue of sex appeal as a bona �ide occupational quali�ication.
Privacy
Another type of exception is when a privacy BFOQ is involved. In these cases, the court allows discrimination to protect a third party's privacy concerns. For example, in Jennings v. New York State Of�ice of Mental Health (http://law.justia.com/cases/federal/appellate-courts/F2/977/731/305142/) (786 F. Supp. 376 (S.D.N.Y. 1992), aff'd 977 F.2d 731 (2d Cir. 1992)), a hospital had a policy that required at least one treatment assistant assigned to the ward of a state security hospital to be of the same sex as patients on that ward. This was upheld as a valid BFOQ because treatment assistants dressed and undressed patients. In White v. Department of Corrections of the State of New York (814 F. Supp. 2d 374 (S.D.N.Y 2011)), a female corrections of�icer attempted to apply for a position at a prison. The Department of Corrections argued that there were already too many female of�icers at that particular prison and that more males were needed because only the male guards could do "pat-downs," strip searches, and urine tests. However, the court rejected that privacy argument because there were alternative ways at the prison to protect the inmates' privacy concerns (Id. at 380–381).
Cases to Consider: Wilson v. Southwest Airlines Co.
Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (Tex. 1981)
Can sex appeal be a BFOQ? Southwest Airlines made that argument in the now famous case Wilson v. Southwest Airlines Co. (517 F. Supp. 292 (Tex. 1981)). The plaintiffs were a group of over 100 males who brought a lawsuit against Southwest Airlines alleging sex discrimination because the airline refused to hire males in violation of Title VII. Southwest argued that its refusal to hire males was based on a BFOQ: It may discriminate against males because its attractive female �light attendants and ticket agents personify the airline's sexy image and ful�ill its public promise to take passengers skyward with "love." Southwest claimed that maintenance of its females-only hiring policy was crucial to the airline's continued �inancial success.
The court opined as follows:
Since it has been admitted that Southwest discriminates on the basis of sex, the only issue to decide is whether Southwest has proved that being female is a BFOQ reasonably necessary to the normal operation of its particular business. As the application of §703(e) depends, in large part, upon an analysis of the employer's "particular" business, it is necessary to set forth the factual background of this controversy as a predicate to consideration of Southwest's BFOQ defense. The facts are undisputed.
***
As an integral part of its youthful, feminine image, Southwest has employed only females in the high customer contact positions of ticket agent and �light attendant. From the start, Southwest's attractive personnel, dressed in high boots and hot- pants, generate public interest and "free ink." Their sex appeal has been used to attract male customers to the airline. Southwest's �light attendants, and to a lesser degree its ticket agents, have been featured in newspaper, magazine, billboard and television advertisements during the past ten years. Some attendants assist in promotional events for other businesses and civic organizations. Southwest �light attendants and ticket agents are featured in the company's in-�light magazine and have received notice in numerous other national and international publications. The airline also encourages its attendants to entertain the passengers and maintain an atmosphere of informality and "fun" during �lights. According to Southwest, its female �light attendants have come to "personify" Southwest's public image.
***
Southwest employs ticket agents whose primary job duties are to ticket passengers and check baggage, and �light attendants, whose primary duties are to assist passengers during boarding and deboarding, to instruct passengers in the location and use of aircraft safety equipment, and to serve passengers cocktails and snacks during the airline's short commuter �lights. Mechanical, non–sex-linked duties dominate both these occupations. Indeed, on Southwest's short-haul commuter �lights there is time for little else. That Southwest's female personnel may perform their mechanical duties "with love" does not change the result. "Love" is the manner of job performance, not the job performed.
There is no competent proof that Southwest's popularity derives directly from its females-only policy to the exclusion of other factors like dissatisfaction with rival airlines and Southwest's use of convenient Love and Hobby Fields. Nor is there competent proof that the customer preference for females is so strong that Defendant's male passengers would cease doing business with Southwest. In short, Southwest has failed in its proof to satisfy Diaz's business necessity requirement, without which customer preference may not give rise to a BFOQ for sex.
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Southwest contends, nevertheless, that its females-only policy is reasonably necessary to the continued success of its "love" marketing campaign. . . . As a matter of law, this argument fails to support a BFOQ for [an employee's] sex. The court in Diaz emphasized that its test was one of business necessity, not business convenience.
It is also relevant that Southwest's female image was adopted at its discretion, to promote a business unrelated to sex.
The few cases on point support the conclusion that [one's] sex does not become a BFOQ merely because an employer chooses to exploit female sexuality as a marketing tool, or to better insure pro�itability. In Guardian Capital Corp. v. New York State Division of Human Rights, for example, the court prohibited an employer from �iring male waiters to hire sexually attractive waitresses in an attempt to change the appeal of the business and boost sales. Similarly, in University Parking, Inv. v. Hotel and Restaurant Employees & Bartenders' Int'l, the arbitrator denied an employer's right to replace three waitresses with waiters in order to "upgrade" his business and respond to customer desires for "classier" French service. Merely because Southwest's female image was established in "good faith" and has become its trademark does not distinguish Defendant's conduct from the discriminatory business decisions disapproved of in these cases.
Recognition of a sex BFOQ for Southwest's public contact personnel based on the airline's "love" campaign opens the door for other employers freely to discriminate by tacking on sex or sex appeal as a quali�ication for any public contact position where customers preferred employees of a particular sex. In order not to undermine Congress's purpose to prevent employers from "refusing to hire an individual based on stereotyped characterizations of the sexes," a BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer's business.
Read the full text of the case here (http://www.uiowa.edu/~prslaw/courses/gender/cases/southwest.pdf) .
Questions to Consider
1. Given the information above, what steps can a manager take to ensure compliance with Title VII and its BFOQ exemptions?
2. How does this case reinforce the lesson of establishing hiring policies that are neutral on their face and in which no distinction is made between males and females?
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24.3 Other Legislation Related to Discrimination Based on Sex In spite of passage of the Civil Rights Act in 1964 and the application of Title VII to prevent discrimination based on a person's sex, issues related to sex discrimination remained. Additional legislation was passed to strengthen protection against such discrimination.
Pregnancy Discrimination Act of 1978
A number of subsequent court decisions made it clear that questions still existed about how to apply the law to pregnancy (Geduldig v. Aiello and General Electric v. Gilbert) or potential childbearing (UAW, et al. v. Johnson Controls, Inc.). Therefore, Congress passed further legislation amending the act to speci�ically include pregnancy protection. According to the EEOC:
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees (http://www.eeoc.gov/laws/types/pregnancy.cfm (http://www.eeoc.gov/laws/types/pregnancy.cfm) ).
Women alleging discrimination under the PDA have to prove a systemized practice of decreasing the pay, responsibility, or other terms and conditions of the employment of pregnant employees and mothers because they became pregnant or took maternity leave. The courts seemingly prefer the use of statistics in such a showing. For example, in EEOC v. Bloomberg L.P., 751 F. Supp.2d 628 (S.D.N.Y. 2010), the EEOC provided testimony from women who claimed they had been discriminated against at Bloomberg for taking a pregnancy leave. However, Bloomberg was able to respond with statistics that showed that Bloomberg increased compensation for women returning from maternity leave more than for those who took similarly lengthy leaves and did not reduce the responsibilities of women returning from maternity leave any more than of those who took similarly lengthy leaves. From this case, one can conclude that it pays to keep thorough records on such matters.
Family and Medical Leave Act of 1993
Another move toward gender neutrality in the workplace was the Family and Medical Leave Act (FMLA) of 1993. Although it is not targeted only at women, the need to take leave from employment to take care of family disproportionately affects women.
Administered by the Department of Labor, FMLA is federal legislation that allows employees to take off 12 weeks from work, keep their insurance bene�its, and return to their job (or an equivalent position) when the 12-week period is over. The law applies only to businesses that employ 50 or more workers (although several states have imposed lower numbers), and the employee must give the employer a 30-day notice for the leave, if feasible. An employee who works for a covered employer is eligible for leave if he or she worked for the employer for at least 12 months, and for at least 1,250 hours over the 12 months immediately preceding the need for leave.
The law categorizes what type of circumstances it applies to:
The birth, adoption, or placement of a child;
Care of a spouse, minor, or incompetent child or parent who has a "serious health issue"; or
To handle the employee's own serious health condition.
The Department of Labor describes the law as "very technical, unwieldy, and . . . dif�icult to understand, even for experienced practitioners." As a result, the department hosted a webinar to walk through the basic provisions of the act and to answer questions. That webinar can be viewed here (http://www.dol.gov/whd/fmla/employeeguide-webinar.htm) .
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Key Terms
Click on each key term to see the de�inition.
adverse impact (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Employment practices that appear facially neutral but in application are discriminatory.
certi�ied class (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A group of plaintiffs that have a common cause of action against the defendant(s).
class action (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A lawsuit involving a large group of plaintiffs who have a common cause of action against the defendant.
disparate impact (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The result of the employer's discriminatory actions (even if unintended) that have an adverse impact on a protected class. The EEOC uses statistics to determine whether disparate impact is occurring (the four-�ifths rule).
disparate treatment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Intentional employment discrimination against females or another protected class.
Family and Medical Leave Act (FMLA) of 1993 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Federal legislation that allows employees to take off 12 weeks unpaid leave from work, keep their insurance bene�its, and have their job to return to when the 12-week period is over.
Notice of Right to Sue (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
For discrimination cases that are never resolved at the agency level, the EEOC issues this notice, which allows the claimant to pursue the matter in court.
Online Assessment System (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A website tool provided by the EEOC in which a potential claimant can analyze his or her discrimination claim via a series of questions, to determine whether bringing a claim is warranted.
Pregnancy Discrimination Act of 1978 (PDA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Federal legislation that amended the Civil Rights Act of 1964; protects women from discrimination on the basis of pregnancy or taking maternity leave as well as prohibits discrimination on the basis of a woman's ability to become pregnant.
privacy BFOQ (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Situations where discrimination is allowed to protect a third party's privacy, as in a single-sex workplace (e.g., dormitory, prison, gym).
rebut the presumption (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The second step in a discrimination lawsuit, where the defendant must give counterevidence to the plaintiff 's prima facie case.
safety BFOQ (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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Situations where discrimination is allowed to protect a third party's safety, as in where allowing women to be employed would cause a workplace hazard (e.g., in a male correctional facility).
work-sharing arrangement (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An arrangement between the EEOC and the states that automatically �iles a discrimination suit with the plaintiff 's state. This process preserves any rights the plaintiff might have under state law that are not available through the federal government.
Chapter 24 Flashcards
Critical Thinking and Discussion Questions
1. What options for resolution are available to claimants who believe they were discriminated against on the basis of sex?
2. What term describes intentional discrimination based on sex?
3. What are bona �ide occupational quali�ications? Give an example.
4. What does a "work-sharing arrangement with the EEOC" mean? What does this mean an employee must do before bringing a discrimination claim?
5. De�ine these terms: a. Disparate Treatment b. Rebuttable presumption c. Prima Facie Case
6. What is the difference between a disparate treatment and a disparate impact case?
7. Magni�icent Industries is a clothing distributor located in every state in the United States and has numerous manufacturing plants as well as wholesale stores. Magni�icent employs more than 10,000 workers. Management is composed primarily of males, and manufacturing is composed primarily of females. Magni�icent argues that one of the reasons females are relegated to work in the manufacturing sector of the plants is that they have experience sewing and designing clothing, and men do not. The company also claims that men do not have a "fashion sense" but women do.
a. Is this case an example of disparate impact or disparate treatment? Why or why not?
b. How would you categorize the arguments set forth by the employer?
c. Assume the females join together as a class and bring a lawsuit against Magni�icent. As in Wal-Mart Inc. Stores v. Dukes, what will they have dif�iculty proving?
d. What will be the respective burdens of each of the parties to the lawsuit? What will the females have to prove? What will the employer have to prove? How will the women rebut the employer's presumption?
e. Suppose that the employer argues that it is unsafe for men to work in the manufacturing process. Under Dothard, what will result and why?
f. Who do you think would win a Title VII dispute and why?
g. If you think the women should win the lawsuit, what do you think they should win?
8. You are the HR manager for your large company and have a number of requests for time off under the FMLA. Decide which of the following you would grant and why:
a. An employee asks for time off to attend the christening of one of his children.
b. An employee asks for a week off to receive chemotherapy.
c. An employee requests a day off to meet with a counselor regarding an adoption.
Employment practices that appear facially neutral but in application are d
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Chapter 25
Sexual Harassment Harassment on the basis of sex in the workplace creates unique problems for the employer. An employer is liable for harassment between coworkers (as well as nonemployees) in situations in which the employer "knew or should have known" of the conduct, unless it can show that it took immediate corrective action.
Sexual harassment can take place between workers of the opposite sex as well as workers of the same sex. It can comprise conduct that includes sex in return for promotions as well as more insidious conduct that creates a hostile or intimidating work environment. From an employer’s standpoint, creating an atmosphere free from harassment for all employees is a daunting task. It is, at a minimum, essential to promulgate company policies that clearly explain the type of behaviors that will not be tolerated, and then to act swiftly and decisively if the policy is violated. Companies need to set up a program in which employees receive training about how to report such incidents and keep in place a team to head up investigations.
In short, to best defend against a lawsuit, employees should be saturated in a culture of awareness about the policies. From reading the cases that follow, you will notice that businesses that established a comprehensive, thorough, and clear policy and then immediately reacted to any claims of harassment were not found liable in the ensuing legal actions. However, employers who turned the other way, ignored complaints, or made fun of complainants paid for their mistakes when their businesses incurred massive damages in court. Juries seem to have a particularly negative reaction to sexual harassment in the work environment and express their distaste by awarding monetary damages that not only make the plaintiff whole but also punish the business (i.e., punitive damages).
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25.1 The Legal Underpinnings of Sexual Harassment The statutory de�inition of sexual harassment is found at 29 C.F.R. § 1604:
§ 1604.11 Sexual harassment. (a) Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Sexual harassment can be of two types. In quid pro quo sexual harassment, the parties exchange sex for employment bene�its or advancement. In a hostile work environment lawsuit, the employer has allowed a pervasive atmosphere of abusive words or acts to develop.
To establish a prima facie case of sexual harassment, the plaintiff must show the following:
1. He or she belongs to a protected class; 2. He or she was the subject of unwelcome sexual harassment; 3. The harassment was based on sex; 4. The harassment was so pervasive that it affected a term, condition, or privilege of employment; and 5. The employer knew or should have known of the harassment and failed to take remedial action.
In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court considered whether or not the female employee alleging harassment suffered an economic loss and whether psychological impact would be enough to sustain the complaint. The evidence established that the female employee, Mechelle Vinson, and Sidney Taylor (a vice president of Meritor Savings Bank) were engaged in a long-term sexual relationship. According to Vinson, Taylor made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that during the next several years, she had intercourse with him some 40 or 50 times.
While the parties both agreed that sexual harassment had taken place, the employer, Meritor Bank, contended that "in prohibiting discrimination with respect to ‘compensation, terms, conditions, or privileges’ of employment, Congress was concerned with what petitioner describes as ‘tangible loss’ of ‘an economic character,’ not ‘purely psychological aspects of the workplace environment.’" In short, the bank argued that psychological damage alone was not a basis for a sexual harassment lawsuit. The Supreme Court disagreed, as the following case excerpt shows.
Cases to Consider: Meritor Savings Bank v. Vinson
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
In de�ining "sexual harassment," the Guidelines �irst describe the kinds of workplace conduct that may be actionable under Title VII. These include "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited "sexual harassment," whether or not it is directly linked to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment."
In concluding that so-called "hostile environment" (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee’s protections under Title VII extend beyond the economic aspects of employment:
[T]he phrase "terms, conditions or privileges of employment" in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . .
Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982):
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.
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Read the full text of the case here (http://supreme.justia.com/cases/federal/us/477/57/case.html) .
Questions to Consider
1. What argument did Meritor Bank make to the Court that it was not liable? Did the bank succeed with this argument?
2. Up until this decision, what did a complainant have to show the Court to prove sexual harassment?
3. How did Meritor change the rules for sexual harassment? Why was this decision signi�icant?
What creates a hostile work environment? The Federal Communications Commission (FCC) offers a relatively comprehensive list of egregious behaviors (here (http://www.fcc.gov/encyclopedia/understanding-workplace-harassment-fcc-staff) ):
The complaining party must be a member of a statutorily protected class;
He or she was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;
The unwelcome conduct complained of was based on his or her membership in that protected class; and
The unwelcome conduct affected a term or condition of employment or had the purpose or effect of unreasonably interfering with his or her work performance or creating an intimidating, hostile, or offensive work environment.
The FCC website continues with the following examples of harassing behavior:
Leering, i.e., staring in a sexually suggestive manner;
Making offensive remarks about looks, clothing, or body parts;
Touching in a way that may make an employee feel uncomfortable, such as patting, pinching, or intentional brushing against another’s body;
Telling sexual or lewd jokes, hanging up sexual posters, making sexual gestures, etc.; or
Sending, forwarding, or soliciting sexually suggestive letters, notes, e-mails, or images.
In the case Harris v. Forklift Systems, the U.S. Supreme Court considered what factors lead to an abusive work environment. The Court set a standard for what reasonably makes a sexual harassment case actionable. Read the following excerpts from the case.
Cases to Consider: Harris v. Forklift Systems
Harris v. Forklift Systems, 510 U.S. 17 (1993)
[T]hroughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, "You’re a woman, what do you know" and "We need a man as the rental manager"; at least once, he told her she was "a dumb ass woman." Again in front of others, he suggested that the two of them "go to the Holiday Inn to negotiate [Harris’] raise." Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendos about Harris’ and other women’s clothing. . . .
***
This standard, which we reaf�irm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an . . . epithet which engenders offensive feelings in a employee," does not suf�iciently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would �ind hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
***
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers," merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
***
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Read the full text of the case here (http://supreme.justia.com/cases/federal/us/510/17/case.html) .
Questions to Consider
1. Did the Supreme Court decide in Harris that a woman could bring a successful lawsuit for purely psychological damage? If so, how would you characterize the damage?
2. What did the Supreme Court mean by the statement "Title VII comes into play before the harassing conduct leads to a nervous breakdown"? So when does Title VII come into play?
In Burlington Industries v. Ellerth, the Supreme Court addressed several unresolved issues pertaining to sexual harassment: whether a woman can successfully bring a Title VII action if she suffers no tangible retaliation as a result of the harassment, and whether she has an actionable cause if she has suffered harassment but was in fact promoted.
Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries’ many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policymaker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik’s comments could be construed as threats to deny her tangible job bene�its. Ellerth refused all of Slowik’s advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik’s conduct, despite knowing Burlington had a policy against sexual harassment. In �iling this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. Read the following excerpts from the case.
Cases to Consider: Burlington Industries v. Ellerth
Burlington Industries v. Ellerth, 524 U.S. 742 (1998)
We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not ful�ill the threat. . . . [emphasis author’s]
At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. (" [T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor’s actions." . . .)
In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the speci�ic results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a signi�icant change in employment status, such as hiring, �iring, failing to promote, reassignment with signi�icantly different responsibilities, or a decision causing a signi�icant change in bene�its. . . .
Tangible employment actions are the means by which the supervisor brings the of�icial power of the enterprise to bear on subordinates. A tangible employment decision requires an of�icial act of the enterprise, a company act. The decision in most cases is documented in of�icial company records, and may be subject to review by higher level supervisors. . . .
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an af�irmative defense to liability or damages. . . .
The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the �irst element of the defense. And while proof that an employee failed to ful�ill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suf�ice to satisfy the employer’s burden under the second element of the defense. No af�irmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge,
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demotion, or undesirable reassignment. (The court sent the case back down (remanded it) to the lower court to determine whether the employer had any of the defenses outlined in a and b, above.)
Read the full text of the case here (http://supreme.justia.com/cases/federal/us/524/742/case.html) .
Questions to Consider
1. At the outset of this case, the Court stated, "We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not ful�ill the threat." How did the Court decide this statement? Can an employer be liable if there is not a ful�illed threat?
2. If you answered "yes" to question 1, what factors will the Court consider when determining whether or not the employer will be liable?
An employer should strive to successfully create an atmosphere that is free from sexual harassment. The contents of the employee handbook regarding harassment need to be carefully chosen. When an allegation of harassment is brought, the employer should be familiar with what steps to take to comply with the law. The following case, Kohler v. Inter-Tel Technologies, is an example of an employer who had sound guidelines in place and who responded to complaints appropriately and in a timely manner.
Cases to Consider: Kohler v. Inter-Tel Technologies
Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1176 (9th Cir. 2001)
The legally relevant inquiry is not whether Kohler ever experienced an employment action at Inter-Tel, but whether Herrera’s harassment culminated in a tangible employment action. Kohler cannot connect any of the alleged employment actions she experienced to her rejection of Herrera’s advances. Therefore, Kohler has failed to demonstrate a disputed factual issue as to whether she suffered a tangible employment action.
When no tangible employment action is taken, a defending employer may "raise an af�irmative defense to liability or damages, subject to proof by a preponderance of the evidence." In the present case, the undisputed facts make clear that Inter-Tel has satis�ied the af�irmative defense as a matter of law. The �irst prong of the defense requires Inter-Tel to show that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior." "While proof that an employer had promulgated an anti-harassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the �irst element of the defense. . . ."
Inter-Tel’s policy (1) provides a de�inition of sexual harassment, (2) identi�ies whom employees should contact if they are subjected to sexual harassment, (3) ensures that harassing supervisors can be bypassed in registering complaints, (4) describes the disciplinary measures that the company may use in a harassment case, and (5) provides a statement that retaliation will not be tolerated. Inter-Tel distributed the policy to its employees on their �irst day of work. Kohler acknowledged having received and read a copy of the policy and the employee handbook, which contains a separate statement summarizing the policy. Inter-Tel’s policy and its efforts to disseminate the policy to its employees establish that Inter-Tel exercised reasonable care to prevent sexual harassment in the workplace.
Inter-Tel’s anti-harassment policy provides, inter alia:
Sexual Harassment
Inter-Tel believes that all personnel should work in an environment free from sexual harassment. Sexual harassment by an employee, manager, supervisor, or non-employee will not be tolerated. Inter-Tel will actively investigate any allegation of sexual harassment, and if it is determined that sexual harassment has occurred, Inter-Tel will take appropriate disciplinary action.
Complaint Procedures
Any employee who believes he or she has been the subject of sex discrimination or sexual harassment should report the alleged act immediately to his or her supervisor or to the branch or Corporate Human Resources Department. An investigation of all complaints will be undertaken immediately. Any employee who has been found by Inter-Tel, after appropriate investigation, to have violated this policy will be subject to appropriate disciplinary action, depending on the seriousness of the offense, from a verbal warning up to and including termination. The complainant will be informed of all such remedial action.
General
All employees shall be protected from coercion, intimidation, retaliation, interference, or discrimination for �iling a complaint or assisting in the investigation of a sexual harassment complaint.
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The employee handbook reiterates the admonition against sexual harassment as well as Inter-Tel’s complaint procedures, providing in pertinent part:
Inter-Tel does not condone discrimination or harassment of any sort on the job. If you feel discriminated against or harassed because of . . . sex . . . discuss it with your supervisor or contact the Human Resources Department. If the complaint involves your supervisor, the complaint should be �iled directly with the Human Resources Department. An investigation of all complaints will be undertaken immediately.
The �irst prong of the af�irmative defense also requires Inter-Tel to demonstrate that it exercised reasonable care to promptly correct sexually harassing behavior. The undisputed facts of this case establish that Inter-Tel was exemplary in its investigation of Kohler’s allegations. The �irst notice Inter-Tel received of Kohler’s sexual harassment allegations was from the EEOC. Inter-Tel responded by promptly hiring a neutral third party to investigate Kohler’s allegations. In addition, Inter-Tel immediately wrote to Kohler and extended an offer for her to return to her position at Inter-Tel, with a new supervisor and under the same terms and conditions as her original employment. Finally, Inter-Tel offered Kohler back pay from the time of her resignation through her reinstatement. Kohler did not respond to Inter-Tel’s offers.
The independent investigator, who was an employment law attorney, repeatedly sought Kohler’s participation in the investigation. Kohler never responded to these attempts because she "did not want to participate in the investigation." The investigator interviewed six Inter-Tel employees, including Herrera and all but one of the other Project Coordinators who reported to him. The investigator determined that Herrera had forwarded an offensive Donald Duck voicemail message to a number of employees. Ultimately, however, the investigator did not con�irm Kohler’s claim that she had been harassed. Inter-Tel wrote a letter to Kohler, informing her of the outcome of the investigation. Kohler never responded.
After the investigation was complete, Inter-Tel reviewed its antiharassment policy with Herrera on two occasions even though no actionable harassment had been con�irmed. In addition, Inter-Tel reprimanded Herrera and threatened to deny his eligibility for a "supervisor" position for sending the offensive voicemail message. Inter-Tel also conducted mandatory sexual harassment training seminars for the entire Emeryville work force on May 1, 1998, and again on May 27 and 28, 1998.
Inter-Tel could hardly have done more to investigate Kohler’s allegations in a prompt and neutral manner. These facts present a paradigm of the "reasonable efforts" the Supreme Court sought to encourage when it established the af�irmative defense. Inter-Tel clearly satis�ied the �irst element of the af�irmative defense.
Read the full text of the case here (http://openjurist.org/244/f3d/1167/leslie-v-inter-tel) .
Questions to Consider
1. The court said that "Inter-Tel could hardly have done more to investigate Kohler’s allegations in a prompt and neutral manner." Exactly what steps did Inter-Tel take that were "prompt" and "neutral"?
2. What is your reaction to the fact that Kohler "did not want to participate in the investigation"? What reasons can you think of that would make her not want to participate? How do you think her lack of involvement would impact the jury’s view of her?
3. This case contains excerpts from the company’s policy manual. What are your impressions of the manual? What do you think is especially effective about it? What could be improved?
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25.2 Same-Sex Harassment In 1998, the Supreme Court considered whether Title VII sexual harassment extended to same-sex harassment in the case Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The plaintiff was a "roustabout" working on an oil rig and was subjected to both verbal and physical threats from three male coworkers. He reported the problem to his supervisors, who took no action. In fact, the company’s safety compliance clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Oncale eventually quit—asking that his pink slip re�lect that he "voluntarily left due to sexual harassment and verbal abuse." When asked at his deposition why he left Sundowner, Oncale stated, "I felt that if I didn’t leave my job, that I would be raped or forced to have sex."
In its opinion, the Court said:
. . . We see no justi�ication in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discriminat[ion] . . . because of . . . sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
Oncale was the �irst U.S. Supreme Court case to recognize a cause of action for sexual harassment between members of the same sex. Do you agree with the opinion that such conduct should also be protected? In his opinion, Justice Scalia stated that "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." What do you think he meant by this statement? What was the original concern of legislators when sexual harassment legislation was enacted? How has the social climate of the United States changed since that law was passed? What effect should societal changes have on legislation?
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Key Terms
Click on each key term to see the de�inition.
af�irmative defense (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A defense raised by the defendant that, if proven, will result in dismissal of the lawsuit.
hostile work environment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A workplace that is discriminatory and laden with sexual intimidation, ridicule, and insult.
quid pro quo sexual harassment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The exchange of sex for employment bene�its or advancement.
reasonable care (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
The degree of caution that would be exercised by an ordinary, prudent person under the given circumstances. A question for a jury to decide in tort cases about the defendant’s actions.
reasonable efforts (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In the context of workplace harassment, measures the employer can take to prevent such incidents, e.g., by formulating and distributing company policies that prohibit harassment and swiftly punishing those who violate the policies.
remand (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
When an appeals court sends a case back to a lower court from which it was appealed so that the lower court can correct an error.
sexual harassment (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by someone of the same or opposite sex that is tied to job status or that permeates the workplace environment with sexual innuendo.
tangible employment action (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An of�icial act of an enterprise or company that causes a signi�icant change in employment status, e.g., hiring, �iring, failing to promote, reassigning with signi�icantly different responsibilities, or signi�icantly changing bene�its.
vicarious liability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In tort law, the placing of responsibility on one party (e.g., an employer) for the actions of another (e.g., an employee in the scope of employment).
Chapter 25 Flashcards
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Critical Thinking and Discussion Questions
1. When is an employer liable for harassment in the workplace?
2. How does the Equal Employment Opportunity Commission de�ine sexual harassment in its guidelines?
3. What is the difference between quid pro quo sexual harassment and harassment that stems from a hostile work environment?
4. Samantha, the general manager of ABC Corporation, asks Sam, her secretary, out for drinks after work. Sam believes this to be a sexual advance on Samantha’s part and is deeply offended by it. He immediately calls the EEOC to �ile a sexual harassment complaint. What do you think would result?
5. Read the article "Female kicker says she was raped at CU (http://usatoday30.usatoday.com/sports/college/football/big12/2004-02-17-colorado-rape- allegation_x.htm) ". Then outline what speci�ic steps you would take to investigate the claim discussed in the article.
6. Read Simpson v. University of Colorado (http://www.aclu.org/racial-justice-womens-rights/simpson-v-university-colorado) , and the amicus briefs (legal briefs �iled on behalf of a plaintiff to add favorable or expert evidence to their case) referred to at the end of the article. Then answer the questions below: a. Do you agree with the 10th Circuit’s decision that the football program was guilty of sexual harassment? Why or why not? b. What steps should the university have taken once it learned of the alleged harassment? c. What steps did the university actually take? d. How can an entity such as a university keep sexual harassment like this from taking place?
A defense raised by the defendant that, if proven, will result in dismissal o
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Chapter 26
Other Types of Discrimination 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 �inish our exploration of this topic with an investigation into classes of people who are not protected by antidiscrimination laws.
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26.1 Religious Discrimination Title VII protects employees in the workplace from being treated unfairly because of their religious 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 de�ined 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 reasonably 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 de�inition 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."
Various court decisions have determined that certain types of activities are neither religions nor religious activities. These have included a professor's beliefs in "scrupulous honesty in the pursuit of scienti�ic 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) de�ined a bona �ide 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 speci�ically include practices, as follows:
Section 703(a) of Title VII states in part that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion."
Reasonable Accommodation
The employer, apart from the motivation to do the right thing by its employees, may �ind it more cost effective to err on the side of caution by �inding that the employee's requested activity or practice has a religious basis and then to reasonably accommodate that activity. Often the accommodation costs much less than �ighting 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.
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 combinations 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 reasonably 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) (�inding 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
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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 Dallas, 843 F.2d 172, 176 (5th Cir. 1988) (�inding reasonable accommodation where employer delayed planned schedule changes in order to accommodate employee and offered lower- paying position that did not con�lict 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 speci�ic 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 religious constraints against arranging his own schedule swap with other employees, employer reasonably 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 af�irm the judgment of the district court on the discrimination 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 dif�icult to determine what a reasonable accommodation is. As a manager, what factors would you consider if an employee asked for a special dispensation?
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 here (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), mentioned 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 discrimination under Title VII.
In short, many litigated cases have indicated that as long as the employer makes a reasonable 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 preemployment phase and how to best accommodate employees. See "Best Practices for Eradicating Religious Discrimination in the Workplace (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. Speci�ically, the plaintiff must show that he or she:
1. Had a bona �ide religious belief that con�licts with an employment requirement;
2. Informed the employer of this belief; and
3. Was not hired (or was �ired) 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 reasonably without undue hardship.
See Chapter 23 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec23.2#sec23.2) for more details on this three-phase process.
Exempt Organizations
Certain types of entities are exempt from Title VII religious coverage and may discriminate on the basis of religion without violating Title VII. These include religious institutions 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,
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association, educational institution, or society with respect to the employment 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 organization (EEOC v. Townley Engineering & Mfg. Co (http://law.justia.com/cases/federal/appellate- courts/F2/946/898/421109/) ., 946 F.2d 898 [1991]).
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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 conduct to higher management, but XYZ does not respond. The constant ridicule has made it dif�icult 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 (http://www.eeoc.gov/policy/docs/national-origin.html) )
National origin is protected under Title VII for hiring, terms of employment, and harassment, 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.
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26.3 Disability Discrimination We next turn our attention from discrimination on the basis of religion to that of disability. For the �irst 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 quali�ied individuals with physical or mental disabilities in hiring, �iring, 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 employees 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 quali�ied disabled individuals based on their disability in hiring, retention, or promotion;
Mandates that reasonable accommodation be made for quali�ied disabled individuals 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 injunction (but not for monetary damages); and
Allows the U.S. attorney general to bring legal action that includes injunctions, �ines, or damages against employers who violate the act (including reasonable attorney's fees, court costs, reinstatement, and treble damages, where appropriate).
In its regulations relating to the ADA, the EEOC de�ines an individual as quali�ied for a speci�ic job if he or she "satis�ies the requisite skill, experience, and education requirements of the employment position" (29 C.F.R. 1630.2(m)). The ADA does not require lesser quali�ied disabled individuals to be hired; it only forbids discrimination against otherwise quali�ied 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 de�inition of a disability 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.
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 de�ines "reasonable accommodation" to include "modi�ications or adjustments" to application processes, work environment, and access to bene�its 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 modi�ied work schedules, reassignment to a vacant position, acquisition or modi�ication of equipment or devices, appropriate adjustment or modi�ications of examinations, training materials or policies, the provision of quali�ied readers or interpreters, and other similar accommodations 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 reasonable accommodation as long as the employee is "otherwise quali�ied," unless to do so would cause an "undue hardship" to the employer. According to the EEOC, undue hardship means signi�icant dif�iculty or expense for the employer.
Undue hardship refers not only to �inancial dif�iculty, 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 reasonable accommodation would cause undue hardship.
The Direct Threat Defense
In some cases, employers may determine that an employee poses a signi�icant threat to others as the result of a disability and thus are able to dismiss the employee without incurring ADA liability. For example, in LaChance v. Duffy's Draft House Inc (http://law.justia.com/cases/federal/appellate- courts/F3/146/832/514153/) ., 146 F.3d 832, 8 AD Cas. (BNA) 652 (11th Cir. 1998), a worker with a history of epilepsy was hired by a restaurant as a line cook. During his �irst night of work he had two seizures, one occurring in the dining hall where customers were present. He was told that he was a
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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:
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 af�idavit 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 disease and the actions of the impaired person. While the disease may be protected, acting impaired is not. Therefore, an employee under the in�luence cannot use his or her addiction 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 administration 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 accessible 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 �loor. 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 of�ices, 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 (http://www.adata.org) :
The ADA requires that small businesses remove architectural barriers in existing facilities when it is "readily achievable" to do so. Readily achievable means "easily accomplishable without much dif�iculty 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 facilities, it must, to the maximum extent feasible, make the alteration accessible.
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 housing laws, and owner-occupied inns with fewer than six rooms to rent are all exempt from the act.
Permissible Interview Questions
The ADA speci�ically limits the use of interview questions and medical examinations for vetting new hires. Any recognition of a disability by inquiry or examination at the interview stage is strictly prohibited. A manager may not even ask how a person became disabled or the prognosis of the individual's disability.
According to the EEOC's Technical Assistance Manual: Title I of the ADA, examples of questions 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 information regarding speci�ic 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 permissible 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 perform 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
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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) .)
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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 �iring 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 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 retirement plans. The decree also prohibited AT&T from requiring a different process for selecting retirees than for other former employees (http://www.eeoc.gov/eeoc/newsroom/release/10-26-11.cfm (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, including bene�its, 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 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/sec23.2#sec23.2) ). 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-�ive 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 �ield sales staff in Michigan." The letter, dated November 4, informed Christie he was terminated as of November 7, 1980. In Foremost's �inal status report on Christie, dated November 7, 1980, Christie was again rated "excellent." Christie, who was forty-nine when �ired, was replaced by Danny Starnes, who was thirty-two years old and had begun working for Foremost in January, 1979.
***
Foremost concedes that Christie made out a prima facie case, which created a rebuttable presumption 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 �ire 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 �iring 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 �irst three, and failed to establish the fourth. Christie contends that he proved Foremost's proffered reasons were "unworthy of credence."
. . . [W]e �ind that Christie presented substantial evidence that Foremost's proffered explanations were merely a pretext for age discrimination.
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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 suggesting 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 �ire Christie.
Christie also presented evidence from which the jury could have found that Foremost did not comply 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."
One �inal 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 business judgment. Foremost is correct that a plaintiff cannot argue that the defendant made a bad business 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 �ine 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?
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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 constitutional 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.
For an illustration of how inconsistent the states are with regard to employment discrimination on the basis of sexual orientation and gender identity, go to the American Civil Liberties Union website (http://www.aclu.org/maps/non-discrimination-laws-state-state-information-map) and view the map showing the hodge-podge of laws. The 21 states banning sexual orientation discrimination in employment are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin (the �irst 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 executive branch civilian employment. More information on that law can be found at the U.S. Of�ice of Personnel Management website (http://www.opm.gov/er/address2/guide01.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 unattractive 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 �irst 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 illustrates. 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.
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Key Terms
Click on each key term to see the de�inition.
accessibility (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In public and private facilities 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 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Federal law that describes the rules for hiring and �iring 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 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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 Amendments Act (ADAAA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
In 2008, Congress amended the ADA and expanded the de�inition of disability to mean an impairment that substantially limits a major life activity.
bona �ide religious belief (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Under Title VII, a sincerely held religious tenet within the plaintiff 's own scheme of things.
burden shifting (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
After the plaintiff has established its prima facie case, the burden shifts to the defendant, who must counter the plaintiff 's claims by rebutting the plaintiff 's presumption and showing its good-faith actions to reasonably accommodate the plaintiff (if doing so would not have caused undue hardship).
business necessity defense (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An argument the defendant employer can advance to justify discriminatory employment actions against an employee. Bona �ide occupational quali�ications (BFOQs) fall into this category.
disability (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
An impairment (e.g., deafness, epilepsy, diabetes, cancer, HIV infection, bipolar disorder) that substantially limits a major life activity.
injunction (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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 permanent (issued upon completion of a trial).
judgment notwithstanding the verdict (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
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 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Under the ADA, when an employer changes the structure of the job, application process, or bene�its so that the employee with a disability can perform the tasks. Under Title VII, employers must make reasonable accommodations for employees to eliminate employees' con�licts between work and practicing their religion, unless doing so would cause "undue hardship on the conduct of the employer's business."
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reasonable factor other than age (RFOA) (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
A defense in an age discrimination inquiry where the employer can establish 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 (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Prohibited discrimination in hiring on the basis of handicap in federal employment and by federal contractors and companies receiving federal assistance.
Title I of the ADA (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Forbids discrimination against quali�ied individuals with physical or mental disabilities in hiring, �iring, or promotion and requires employers to make reasonable accommodations for disabled employees.
Title III of the ADA (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
Mandates accessibility for the disabled to new and existing public and private facilities that are open to the general public.
undue hardship (http://content.thuzelearning.com/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/sections/fm/books/AUBUS670.12.2/section
According to the EEOC, signi�icant dif�iculty or expense that would be necessary for an employer to accommodate an employee's disability, religious practice, etc.
Chapter 26 Flashcards
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 assistant 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 bene�its that will be offered. The minimum length of your job description is 300 words. You can make up the job details.
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b. Write �ive illegal federal questions and �ive illegal state questions; then write �ive legal federal questions and �ive 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 �irm, answering an advertisement that lists as one of the requirements of the job a minimum of �ive years of relevant 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 accommodations 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?
b. If, instead of having just been admitted to practice, Frank had been employed as an attorney by another �irm for 10 years, would your answer to the last question change? Explain.
c. Assume that Frank is one of the �inest 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 �irm. 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 of�ice, would he likely succeed in his case? What if he worked for a small �irm with just two partners?
