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CHAPTER 13: CIVIL RIGHTS AND EMPLOYMENT DISCRIMINATION

INTRODUCTION

LAWS DESIGNED TO ELIMINATE EMPLOYMENT DISCRIMINATION

The abolition of slavery after the Civil War and the civil rights movement of the 1960s were two great forces behind modern civil rights legislation. From the Civil Rights Act of 1866 to the Genetic Information Nondiscrimination Act of 2008, the law has moved in a direction to eliminate discrimination based on race, gender, color, religion, national origin, age, disability, or genetics information. Civil rights laws help ensure that every member of society has the opportunity to reach his or her full potential and promote economic growth by expanding the pool of qualified workers.

Managers who fail to adopt and enforce policies to ensure compliance with federal and state legislation prohibiting employment discrimination put their companies at risk of being penalized by large fines and judgments. The Equal Employment Opportunity Commission (EEOC) secured financial settlements of $365.4 million in fiscal year 2012. 1  EEOC actions involve a wide variety of claim types and can result in significant monetary resolutions against an employer. For example, the EEOC resolved a racial discrimination suit against trucking company Yellow Freight for $11 million under a consent decree. 2  There, the EEOC presented evidence of racist graffiti, more stringent discipline for African American employees, and harder and longer assignments for African American employees than for other employees.

With the EEOC facing substantial backlogs, private litigation of employment discrimination claims has become increasingly important. In 2010, Novartis Pharmaceuticals Corporation agreed to pay $175 million to settle a class-action lawsuit for sex and pregnancy discrimination. 3  Employment discrimination is not just expensive to defend in court. It also tarnishes the employer’s reputation; jeopardizes its relationship with employees, customers, and investors; and makes it less likely to hire and retain the best workers for the job.

CHAPTER OVERVIEW

This chapter provides an overview of federal legislation barring employment discrimination, with special attention to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act, and the Uniformed Services Employment and Reemployment Rights Act. It illustrates the various legal theories pursued under each piece of legislation and shows how those theories relate to legal and appropriate behavior by managers in a business environment. The chapter also discusses how discrimination laws apply to affirmative action and the hiring of contingent or temporary workers. The chapter concludes with an overview of how other countries approach workplace discrimination and diversity.

13-1: OVERVIEW OF CIVIL RIGHTS LEGISLATION

The federal statutes that forbid various types of discrimination in employment are summarized in  Exhibit 13.1 . Many states have passed their own fair employment acts, which in some instances provide greater protection than their federal counterparts. 4  The federal statutes apply only to employees, not independent contractors. (See  Chapter 5  for a discussion of the difference between employees and contractors.)

EXHIBIT 13.1: Major Pieces of Federal Civil Rights Legislation

Statute	Major provisions	Employers Subject to Statute	Comments
Civil Rights Act of 1866 a  (Section 1981)	Prohibits racial discrimination by employers of any size in the making and enforcement of contracts, including employment contracts.	All public and private employers	The bar against racial discrimination applies not only to hiring, promotion, and termination, but also to working conditions, such as racial harassment, and to breaches of contract occurring during the term of the contract.
Equal Pay Act of 1963 b	Mandates equal pay for equal work without regard to gender.	All public and private employers with 20 or more employees (including federal, state, and local governments)
Title VII of the Civil Rights Act of 1964 c  (Title VII)	Prohibits discrimination in employment on the basis of race, color, religion, national origin, or sex. Later amended to provide that discrimination on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.	All public and private employers with 15 or more employees (including federal, state, and local governments)
Age Discrimination in Employment Act of 1967 d  (ADEA), as amended by Older Workers’ Benefit Protection Act of 1990 e	Protects persons 40 years and older from discrimination on the basis of age. The Older Workers’ Benefit Protection Act prohibits age discrimination in providing employee benefits and establishes minimum standards for waiver of one’s rights under the ADEA.	All public and private employers with 20 or more employees (including federal, state, and local governments)
Vietnam Era Veterans’ Readjustment Assistance Acts of 1972 and 1974 f	Require affirmative action to employ disabled Vietnam-era veterans.	Employers holding federal contracts of $10,000 or more	Enforced by U.S. Department of Labor.
Rehabilitation Act of 1973 g	Prohibits discrimination against the physically and mentally disabled. Imposes affirmative-action obligations on employers having contracts with the federal government in excess of $10,000.	Employers receiving federal financial assistance of any amount	Enforced by U.S. Department of Labor. This legislation was the precursor to and guided the development of the Americans with Disabilities Act.
Uniformed Services Employment and Reemployment Rights Act of 1994 h	Gives employees who served in the military at any time the right to be reinstated in employment without loss of benefits and the right not to be discharged without cause for one year following such reinstatement.	All public and private employers
Immigration Reform and Control Act of 1986 i  (IRCA)	Prohibits discrimination against applicants or employees based on national origin or citizenship status.	All public and private employers with 4 or more employees	If employer has 15 or more employees, plaintiff must file national origin discrimination claims under Title VII.
Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008 j  (ADAAA)	Prohibits discrimination in employment on the basis of a person’s disability. Also requires businesses to provide “reasonable accommodation” to the disabled unless such an accommodation would result in “undue hardship” on business operations.	All private employers with 15 or more employees	The ADA is the most sweeping civil rights measure since the Civil Rights Act of 1964.
Civil Rights Act of 1991 k	Caps compensatory and punitive damages for discrimination on the basis of sex or religion at $50,000 for employers with 15 to 100 employees, $100,000 for employers with 101 to 200 employees, $200,000 for employers with 201 to 500 employees, and $300,000 for employers with more than 500 employees; limits the ability to challenge affirmative-action litigated judgments and consent decrees; extends coverage of the major civil rights statutes to the staffs of the president and the Senate.		Amended Civil Rights Act of 1964.
Family and Medical Leave Act of 1993, l  as amended in 2009 by the National Defense Authorization Act for Fiscal Year 2010 m  (NDAA)	Designed to allow employees to take time off from work to handle domestic responsibilities, such as the birth or adoption of a child or the care of an elderly parent. Employees are guaranteed job security despite familial responsibilities. NDAA amendment expands coverage for “qualifying exigency” leave to eligible employees with covered family members in the Regular Armed Forces and coverage for “military caregiver leave” to eligible employees whose spouses, children, parents, or next of kin are certain veterans with “serious injury or illness.”	Public and private employers with 50 or more employees at work sites within 75 miles of each other	Part-time employees are excluded from the act’s coverage and are not to be counted in calculating the 50 employees necessary for an employer to be covered by the act.
Genetic Information Nondiscrimination Act of 2008 n  (GINA)	Prohibits employers, group health plans, and health insurers from discriminating based on genetic information.	All public and private employers with 15 or more employees (including federal, state, and local governments)	Employers are prohibited from hiring, firing, placing, or making promotional decisions based solely on an individual’s genetic information, but there is no cause of action for disparate impact.
Patient Protection and Affordable Care Act o  (ACA)	Prohibits insurance exclusions for preexisting conditions; facilitates comparable coverage for mental and physical conditions; and requires most Americans to maintain health insurance.	Public and private employers with more than 50 employees	Employers that do not offer health insurance may have to make shared responsibility payments.

Although the statutes described in  Exhibit 13.1  have created a far more level playing field for all workers, progress can be slow. For example, the Equal Pay Act was enacted in 1963, but in 2012, women earned only 77% of what men earned annually. 5

13-1a: Enforcement

The Equal Employment Opportunity Commission (EEOC) is the primary enforcer of civil rights legislation in the United States. A part of the Department of Justice, the EEOC processes thousands of complaints, investigating and evaluating their merit. An individual challenging an employment practice must file a complaint with the EEOC within the specified charging period. For example, Title VII claims must generally be filed within 180 days after the alleged unlawful employment practice occurred. If a claim is unfounded or not filed in a timely manner, it will be dismissed.

If a timely claim withstands initial inquiry and the EEOC is unable to pursue the case due to staff and resource constraints, the agency will provide a right-to-sue letter (“Notice of Right to Sue”) to the private party. Without this administrative permission, private litigants cannot initiate suits under certain statutes, including Title VII and the ADA. As explained in  Chapter 3 , employers can require individual employees to arbitrate civil rights disputes, but this does not preclude the EEOC from suing the employer in a court of law for damages payable to the aggrieved employee.

13-1b: Definition of Adverse Employment Action

In most discrimination cases, the employee must establish that his or her employer subjected him or her to an adverse employment action. For example, section 703(a) of Title VII forbids discrimination “with respect to … compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 6  In 2012, the EEOC held that discrimination claims based on gender identity (or transgender status) were cognizable under this provision. 7   Adverse employment action  includes demotions, reductions in pay, refusals to hire or promote, and other actions that adversely affect the individual’s employment status or opportunities in a tangible manner. It also includes giving unwarranted negative job evaluations, subjecting an employee to disadvantageous transfers or assignments, depriving an employee of support services, cutting off challenging assignments, moving an employee from a spacious office to a dingy closet, forcing an employee to jump through hoops to obtain severance benefits, making and soliciting from coworkers negative comments about an employee, needlessly delaying authorization for medical treatment, requiring an employee to work without a lunch break, and changing an employee’s schedule without notification. (The showing of adverse action necessary to support a retaliation claim is discussed later in this chapter.)

13-1c: Remedies

Available remedies in discrimination cases generally include compensation for lost salary and benefits ( back pay ); hiring, wage adjustments, promotion, reinstatement, and other injunctive relief to stop prohibited discriminatory actions; and  front pay  equal to what the employee would have received had he or she not been discharged. Front pay is generally awarded when reinstatement is inappropriate because the position is unavailable or hostility raises a practical barrier. An aggrieved person may recover back pay for up to two years preceding the timely filing of the EEOC claim. 8

The plaintiff may also recover compensatory damages for future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. While front pay is limited in duration because it compensates for the immediate effects of discrimination, lost future earnings compensate an employee for a lifetime of diminished earnings resulting from the reputational harm suffered as a result of discrimination. Therefore, an employee may be awarded both front pay and damages for lost future earnings. 9  As discussed more fully later in this chapter, punitive damages may be available under certain circumstances as well.

In 2014, a jury awarded a 66-year-old man $22.8 million in punitive damages and $3.2 million in compensatory damages in an age discrimination suit against Staples. 10  The employee had worked as a facilities manager for Corporate Express from 2002 through 2008, when Staples acquired the company. According to the employee, his new supervisors “made it their mission to get rid of veteran employees like him who were paid more money,” called him an “old goat” and an “old coot,” and subjected him to other hostile behavior. 11  He also claimed that after refusing to resign, he was subjected to various false accusations, including that he stole from the company cafeteria. Staples denied any wrongdoing.

13-2: TITLE VII

Title VII bans discrimination based on an individual’s race, color, religion, national origin, or sex. Title VII claims generally fall within one of four broad categories: traditional discrimination, harassment, failure to accommodate religious beliefs, and retaliation.

13-2a: Traditional Discrimination Claims

Litigation in traditional Title VII actions has produced two distinct legal theories of discrimination: (1) disparate treatment and (2) disparate impact.

Disparate Treatment

A plaintiff claiming  disparate treatment  must prove the employer intentionally discriminated against him or her by denying a benefit or privilege of employment (such as a promotion or pay raise) because of his or her race, color, religion, sex, or national origin. The U.S. Supreme Court has established a systematic approach for proving these claims. 12  The employee must first prove a prima facie case, which entails proving that (1) he or she is a member of a class of persons protected by Title VII and (2) he or she was denied a position or benefit that he or she sought, for which he or she was qualified, and that was available. If the employee proves the prima facie case, the employer then must present evidence, but need not prove, that it had legitimate, nondiscriminatory grounds for its decision, such as the employee’s lack of qualifications or poor job performance. Once the employer meets its burden of producing evidence, the employee then must prove that the grounds offered by the employer were merely a pretext for the employer’s actions and that intentional discrimination was the true reason.

Disparate Impact

Disparate impact  cases are typically Title VII class actions brought against large employers challenging testing and other selection procedures, claiming they systematically excluded women or particular ethnic groups from certain types of jobs. It is not necessary to prove intentional discrimination to prevail in a disparate impact case. Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way.

For example, the owner of a sausage plant implemented a strength test for entry-level jobs that required repetitive lifting of up to thirty-five pounds to a height of sixty inches. The EEOC established its prima facie case by showing that 46% of the individuals hired for these jobs were women before the test was adopted, but the number of women hired dropped to 15% after implementation of the test. The employer attempted to show that the test “related to safe and efficient job performance and [was] consistent with business necessity” 13  by presenting evidence that the test effectively gauged the skills needed for the job and that the number of work-related injuries consistently declined after the test was implemented. But there was also evidence that the downward trend in injuries had begun before the adoption of the strength test, when the employer had instituted other measures to reduce injuries. The U.S. Court of Appeals for the Eighth Circuit found that the employer had not presented sufficient evidence of business necessity because it had not shown that the other safety measures could not have produced the same results. As a result, the court affirmed the jury’s verdict that use of the strength test had an unlawful disparate impact on female applicants. 14

The business necessity offered by an employer to justify the disparate impact must relate to job performance. Inconvenience, annoyance, or expense to the employer will not suffice. For example, a Latina applicant who is denied employment because she failed an English-language test might challenge the language requirement. If she has applied for a sales job, the employer might be able to justify the requirement on the ground that ability to communicate with customers is an indispensable qualification. In contrast, if she has applied for a job on the production line, that justification would probably not suffice unless her duties would include communicating with others in English. Under the analyses for disparate treatment and disparate impact, the burden of persuasion ultimately rests with the plaintiff.

Disparate impact analysis may be applied not only to objective selection criteria, such as tests and degree requirements, but also to subjective bases for decisions, such as interviews and supervisor evaluations. 15  Although the U.S. Supreme Court refused to certify a class comprising millions of female Wal-Mart employees suing for sex discrimination, 16  the women were permitted to sue Wal-Mart in an individual capacity for maintaining a highly discretionary promotion policy that resulted in a disproportionately small percentage of women being promoted. As the Court explained, “[G]iving 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’” 17  Justice Ginsburg noted that the allegations against Wal-Mart were similar to those in Leisner v. New York Telephone Company, 18  “one of the prototypical cases in this area.” 19  In that case, the employer had instructed supervisors to start with objective measures, then to “look at the individual as a total individual,” and finally to ask and answer the question, “Is this person going to be successful in our business?” 20  Justice Ginsburg added, “It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own.” 21

Background Checks During the Hiring Process

In 2014, the EEOC and the Federal Trade Commission (FTC) issued joint guidance on the use of background checks by prospective employers. 22  The guidance stated that background checks should not be used in ways that could discriminate based on a protected characteristic, such as race, color, sex, national origin, age, or disability. The guidance further warned that employers must comply with the requirements of the Fair Credit Reporting Act. Employers may not reject applicants of one ethnicity with certain financial histories or criminal records if applicants of different ethnicities with the same histories or records are hired. In addition, employers should be “prepared to make exceptions” for problems disclosed during background checks that involved a disability.

13-2b: Harassment

Employees can bring claims for harassment in violation of Title VII on the basis of sex, race, color, religion, or national origin. Because the most prevalent type of harassment claim is sexual harassment, the law regarding harassment has been developed largely in the context of sexual harassment claims. 23  Nevertheless, the analysis used in sexual harassment cases is applied to claims of harassment on the basis of race, color, religion, and national origin as well.

Sexual Harassment

Sexual harassment law is based on language in Title VII that prohibits discrimination “because of sex” and is one of the more complex and emotional issues in antidiscrimination law. Sexual harassment can be asserted by male or female employees.

Quid Pro Quo Harassment

Early on, the courts recognized that a specific, job-related adverse action, such as denial of a promotion, in retaliation for a person’s refusal to respond to his or her supervisor’s sexual advances is a violation of Title VII. Such retaliation, which is referred to as  quid pro quo  harassment , is a theory unique to sexual harassment claims.

Hostile Environment Harassment

A threat of adverse job action in retaliation for rebuffing sexual advances does not constitute quid pro quo harassment if the threat is not carried out. Instead, it is a form of  hostile environment harassment . 24  Employees can bring claims for hostile environment harassment on the basis of race, color, religion, and national origin as well.

In Meritor Savings Bank, FSB v. Vinson, 25  the U.S. Supreme Court first ruled that creation of a hostile environment by sexual harassment is a form of sex discrimination barred by Title VII, even if the employee cannot show a concrete economic effect on employment, such as discharge or denial of a raise or promotion, to establish a violation. Not every sexually offensive comment or act constitutes actionable sexual harassment, however; there must be sufficient offensive conduct to give rise to a pervasively hostile atmosphere. This determination should be based on the totality of the circumstances.

In Harris v. Forklift Systems, Inc., 26  the U.S. Supreme Court held that a showing of a serious effect on an employee’s psychological well-being, or other injury, is not necessary for a hostile work environment claim under Title VII, reasoning that “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” 27  The Court ruled in favor of a female manager of an equipment-rental company who was harassed for two years by its president. In the presence of other employees, the president said such things as, “You’re a woman, what do you know?” and “We need a man as the rental manager,” and called her “a dumb-ass woman.” The president also made sexual innuendos, suggesting that they “go to the Holiday Inn to negotiate her raise,” and occasionally asked female employees to get coins from his front pants pocket. Despite the employee’s complaints, the sexual comments continued.

Defining a Hostile Work Environment

To determine whether there is a hostile or abusive environment, courts look at all the circumstances, including (1) the frequency and severity of the discriminatory conduct; (2) whether it is physically threatening or humiliating, or merely an offensive utterance; and (3) whether it unreasonably interferes with the employee’s work performance.

To be actionable under Title VII, sexual harassment must be “‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” 28  For example, the U.S. Court of Appeals for the Seventh Circuit ruled that a reasonable jury could conclude that a supervisor’s multiple and direct propositions for sex during a business meeting were sufficiently severe to create a hostile work environment. 29  The U.S. Supreme Court has ruled that “‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” 30  The conduct must be “extreme.” These standards for judging hostility are sufficiently demanding to prevent plaintiffs from converting Title VII into a “general civility code”; they are intended to filter out “complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’ ” 31

 POLITICAL PERSPECTIVE: Sexual Assaults and the Military

Sexual assaults within the military, when reported, are prosecuted differently from those involving civilians. A Defense Department survey reported 26,000 “unwanted sexual contact incidents” in 2012. a  Only 3,374 were reported to the authorities; of those, only 10% went to trial. b  Part of the reason for the low number of reported incidents may stem from the use of Article 32 proceedings, a military process to assess whether cases are sent for court-martial. An Article 32 proceeding is conducted by an officer in the victim’s chain of command. The officer is permitted to ask the victim graphic questions that could not be asked in a civilian court.

One 2013 proceeding involved three former U.S. Naval Academy male football players who allegedly raped a female midshipman at an off-campus party near the Annapolis campus. She was asked whether she had worn a bra or underwear to the party, whether she “felt like a ho” after the incident, and how wide she opened her mouth during oral sex (the female naval attorney for one of the accused said that “oral sex would indicate the ‘active participation’ of the woman and therefore consent”). c

Although certain military legal experts were “appalled” by such questions, a former military lawyer indicated that there are several purposes to an Article 32 proceeding: (1) to ensure there is enough evidence to go to trial, (2) to give the defense a chance to discover evidence, and (3) to give the victim “a dry run.” d

Strong opposition to the military’s method of prosecuting sexual assaults resulted in proposed legislation to change the way these proceedings are conducted. The Military Justice Improvement Act of 2013 e  would have amended the Uniform Code of Military Justice so that the proceeding would be conducted by independent military prosecutors who were not part of the victim’s chain of command. It also would have prohibited consideration of the character and military service of the accused when deciding whether to move forward with the case. However, the Senate blocked passage of the bill in 2014. f

a. Editorial,Military Brass Wins on Sexual Assault Bill, WASH. POST (June, 15, 2013).

b. Id.

c. Jennifer Steinhauer,Navy Hearing in Rape Case Raises Alarm, N.Y. TIMES, Sept. 21, 2013, at A1.

d. Id.

e. This act is known as S. 967, and its progress can be tracked at  http://www.govtrack.us .

f. Stewart M. Powell,Military Sex Assault Bill Rejected: Senate Blocks Reform Effort to Remove Control of Cases from the Chain of Command, HOUSTON CHRON. (Mar. 7, 2014).

Although some courts have held that a one-time incident is not enough to create a hostile environment, if the incident is severe enough, a hostile work environment may be found. For example, in Ayissi-Etoh v. Fannie Mae, 32  an African American employee alleged that his employer maintained a hostile work environment in violation of 42 U.S.C. § 1981. He cited one incident, in addition to a few others, in which his supervisor used an “offensive racial epithet” while yelling at him. The court wrote: “As other courts have observed, ‘perhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as “nigger” by a supervisor.’” 33  The court added: “This single incident might well have been sufficient to establish a hostile work environment.” 34  The concurring opinion noted that courts had determined that a single physical act could create a hostile work environment and that several courts had recognized that one “verbal (or visual) incident can likewise be sufficiently severe to justify a finding of a hostile work environment.” 35  The concurring justice concluded:

In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable under 42 U.S.C. § 1981 or Title VII. Here, as I see it, the alleged statement by the Fannie Mae Vice President to Ayissi-Etoh itself would establish a hostile work environment. 36

In Berry v. Chicago Transit Authority, 37  the court found that a single incident in which a male employee grabbed a female coworker’s breasts and then lifted her and rubbed her buttocks against his body “qualif[ied] undeniably as unwelcome sexual conduct that established a hostile environment” for purposes of a Title VII claim, even though the offender was a coworker and not a supervisor. As discussed later, employers have defenses available in coworker cases that are not available when a supervisor is involved.

Certain state courts have upheld claims for hostile environment in so-called paramour cases (where coworkers claim that an employee has received preferential treatment as a result of having sexual relations with a supervisor), 38  but a majority of federal courts have struck down such claims. 39  For example, in Ackel v. National Communications, Inc., 40  the plaintiff complained that she had been replaced by her supervisor’s paramour as a result of favoritism based on their sexual relationship. The U.S. Court of Appeals for the Fifth Circuit stated, “courts have held that when an employer discriminates in favor of a paramour, such an action is not sex-based discrimination, as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender.” 41

Same-Sex Sexual Harassment

In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held that Title VII prohibits same-sex harassment regardless of the harasser’s sexual orientation; in other words, it prohibits harassment where the harasser is the same sex as the employee being harassed. 42  Acknowledging that same-sex harassment was not the evil Congress sought to remedy when it passed Title VII, the Court nevertheless saw “no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.” 43  However, the Court was careful to explain that to be actionable, the harassment must be tied to some type of gender discrimination: it must be “discrimination because of sex.” Thus, “‘[t]he critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’”  44  The Supreme Court called on courts and juries to use “common sense” to differentiate sex discrimination from horseplay, noting that a pat on the bottom by a football coach to a player running onto the field may not constitute sex discrimination, but similar touching of a secretary might.

Sexual Orientation and Transgender Harassment

The Oncale decision did not extend Title VII protection to harassment based on a person’s sexual orientation, but the EEOC takes the position that discrimination claims based on gender identity (also referred to as transgender status) are cognizable under Title VII. 45  If enacted, the Employment Non-Discrimination Act of 2013 would prohibit employment discrimination on the basis of sexual orientation or gender identity. 46  The U.S. Supreme Court has suggested that homosexual employees may state  sexual stereotyping  claims under Title VII against employers who discriminated against them because they were not “manly” enough men or “womanly” enough women. 47  There is also authority in many of the circuits for applying Title VII to cases in which an employee claims that he or she was subjected to harassment due to the discomfort or hostility of fellow employees because of the employee’s gender nonconformity. 48

For example, a gay male alleged that his harassers had grabbed and poked at his genitals, but there was no evidence that any of his harassers had expressed any interest in engaging in sexual activity with the plaintiff. 49  The court ruled that harassment that included touching private body parts was “inescapably [harassment] ‘because of sex.’” The court found the employee’s sexual orientation irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment: “That the harasser is, or may be, motivated by hostility based on sexual orientation is … irrelevant. … It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature.”

Racial, National Origin, and Religious Harassment

Like claims of hostile environment harassment on the basis of sex, harassment claims based on race, color, national origin, or religion are evaluated according to the standard set forth in Harris v. Forklift Systems, Inc. 50  Courts examine the totality of the circumstances to determine whether an employee was exposed to a hostile environment.

In Azimi v. Jordan’s Meats, Inc., 51  a Muslim immigrant from Afghanistan sued his employer, claiming that he was subjected to racial or ethnic harassment. The U.S. Court of Appeals for the First Circuit affirmed the jury’s finding of a hostile work environment after characterizing the incidents of maltreatment as “outrageous.” They included numerous disparaging remarks about the employee’s religion, as well as physical intimidation (one coworker grabbed him by the neck and tried to shove pork in his mouth). Other offensive conduct, often done anonymously, included leaving an unsigned note in his locker with a swastika on one side and a hate message containing racial and religious epithets on the other, putting pieces of pork in his work jacket pockets, and hanging a picture of Osama Bin Laden in his locker.

IN BRIEF: Elements of a Sexual Harassment Claim

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

· 1. An individual’s employment depends on submission to such conduct;

· 2. Submission to or rejection of such conduct is used as the basis of employment decisions; or

· 3. Such conduct unreasonably interferes with the individual’s work performance or creates an intimidating, hostile, or offensive working environment.

To establish a claim of hostile environment sexual harassment under Title VII, the plaintiff must show that:

· 1. The harassment created an abusive working environment;

· 2. The harassment was based on sex; and

· 3. The harassment was so severe or pervasive as to alter the conditions of the victim’s employment.

Employer and Supervisor Liability for Hostile Environment

As explained in  Chapter 5 , employers are vicariously liable under the doctrine of respondeat superior for all torts committed by employees acting within the scope of employment. As a result, if a supervisor fails to promote an employee because of his or her national origin, for example, the employer is liable for discrimination because the supervisor was acting within the scope of employment when deciding whom to promote. But when a supervisor harasses an employee (either by demanding sexual favors or by creating a hostile environment), the supervisor is rarely acting within the scope of his or her employment.

The U.S. Supreme Court has drawn on general principles of agency law to determine when an employer is liable for the creation of a hostile environment. Under section 219(2) of the Restatement (Second) of Agency, an employer is liable for torts of employees not acting in the scope of employment if (1) the employer intended the conduct, (2) the employee’s high rank makes him or her the employer’s alter ego, (3) the employer was negligent, or (4) the employee was aided in accomplishing the tort by the existence of the agency relation. 52

Negligence

An employer is negligent with respect to harassment if the employer knew or should have known of the harassment but failed to stop it by taking appropriate corrective measures. This negligence standard governs a hostile environment created by coworkers (and probably by customers with whom the employee must deal as part of his or her job). For example, in vacating a grant of summary judgment in favor of the airline in Ferris v. Delta Air Lines, Inc., 53  the U.S. Court of Appeals for the Second Circuit held that a reasonable fact finder could find that Delta was responsible for a sexually hostile work environment that allowed the plaintiff flight attendant to be raped by a male coworker. Delta was on notice that the male employee had previously raped three other flight attendants, yet it failed to take any action against him. The court stated that Delta had a “responsibility to warn or protect likely future victims.”

In the following case, the court considered whether the employer was liable for repeated offensive comments by a coworker based on race.

CASE 13.1: A CASE IN POINT: IN THE LANGUAGE OF THE COURT

Green v. Franklin National Bank of Minneapolis

United States Court of Appeals for the Eighth Circuit

459 F.3d 903 (8th Cir. 2006).

FACTS

Linda Green, an African American female, worked as a teller for Franklin National Bank from March 2002 until August 26, 2002. She was transferred to the Washington Avenue branch in April after she complained that a teller at the branch where she worked had called her “stupid.” Beginning in May 2002, Green worked with Jared Howard, a Caucasian male teller at the Washington branch. According to Green, Howard began harassing her and using racial slurs to describe her. Specifically, he called her “monkey,” “black monkey,” and “chimpanzee” on at least eight occasions during a three-month period. Although Green asked Howard to stop using racial slurs, he persisted and engaged in other conduct toward her that she found demeaning.

Green reported Howard’s racial harassment to Kim Reep, her supervisor, who told her that she could not do anything for Green and that Green should report the conduct to Wayne Erdman, a vice president of the bank. In July, Green complained to Erdman about Howard’s racial harassment. Although Erdman said he would speak to Howard, according to Green, Erdman never did so. On August 1, Reep gave Howard a warning about his racially insensitive comments; Reep gave him a second warning on August 6. On August 7, Howard sent Green an e-mail that said, “Just wanted to let you know … You got a funny shaped head.” Green forwarded the email to Reep, who discussed it with Erdman. The bank terminated Howard later in August 2002.

According to the bank president, the company’s policy on sexual harassment also applied to racial harassment and specified that after an employee notified his or her direct supervisor of harassment, the supervisor was required to investigate the claim. The supervisor was also responsible for attempting to resolve the complaint. There was no requirement to report harassment to the bank president. Upon beginning her employment, Green had signed a form acknowledging that she understood the bank’s harassment policy.

Green sued the bank alleging, among other counts, a racially hostile work environment under Title VII and 42 U.S.C. § 1981. After the district court granted summary judgment for the bank, Green appealed.

ISSUES PRESENTED

Does repeated use of the term monkey and other similar words make out a prima facie case of racial harassment? When is the employer liable for coworker harassment?

OPINION

MELLOY, J., writing for the U.S. Court of Appeals for the Eighth Circuit:

In the present matter, Green’s allegations about Howard’s statements to her are sufficient to be actionable. His comments were frequent and directed at Green. …

Green had told Howard that she thought the term “monkey” was roughly equivalent to “Nigger.” Other courts have agreed with Green’s assessment of calling African-Americans “monkeys.” “To suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the mere unflattering; it is degrading and humiliating in the extreme.” …

In all, there are eight alleged instances of Howard using racially insensitive terms toward Green in a three-month time frame. We have found just a few incidents in a longer time span to be sufficient for a hostile work environment claim.

. …

However, we affirm the grant of summary judgment on the hostile work environment claim because Green has failed to show that Franklin National Bank did not take the proper remedial action. Title VII does not necessarily require that an employer fire a harasser. Nonetheless, Franklin National Bank did fire Howard to end the harassment against Green.

RESULT

The appeals court upheld the summary judgment for the bank. Even though Howard’s statements were sufficient to establish a hostile work environment, the bank had a defense because it took prompt and appropriate remedial action once Green reported the harassment to her supervisor.

COMMENTS

As just explained in the previous section, in cases involving harassment by a coworker, employers have a defense from liability if they can show that they took appropriate corrective measures once they knew or should have known of the harassment. In this case, the court concluded that warning and ultimately firing Howard was an adequate response.

CRITICAL THINKING QUESTIONS

1.

Red Mendoza filed a sexual harassment action in which she claimed her supervisor constantly followed her and watched her. In two instances, he looked her up and down, stopped at her groin area, and made a sniffing motion. On another occasion, he passed by her and rubbed his right hip against her left hip and touched her shoulders. Has Mendoza met her burden of proving a hostile work environment?  54

2.

Hythem Al-Salem, an immigrant from Libya, asserted that over six months he overheard a coworker call him a “camel jockey” and a “sand nigger.” He also alleged that a coworker offered him pork, even though he knew Al-Salem’s religion forbade it, and that he heard from a coworker that his supervisor had said he would not be promoted. Has he met his burden of proving a hostile work environment?  55

INTERNATIONAL SNAPSHOT

In 2004, Infosys Technologies, India’s largest software exporter, settled two sexual harassment lawsuits against one of its former officers and directors, Phaneesh Murthy. Murthy was accused of harassing two women employed in Infosys’s Fremont, California, office. The suit sent shockwaves through Indian software companies with U.S. operations. The company settled one lawsuit for $3 million and the other for $800,000.

SOURCES: Infy, Phaneesh Murthy Settle Case, TIMES OF INDIA (Nov. 24, 2004),  http://timesofindia.indiatimes.com/Infy-Phaneesh-Murthy-settle  - case/articleshow/935032.cms ; SarithaRai, Harassment Suit in U.S. Shifts India’s Work Culture, N.Y. TIMES, Sept. 5, 2002.

Aided-in-the-Agency-Relation and Supervisor Harassment

In quid pro quo sexual harassment cases and hostile environment cases, the employer is always vicariously liable under the aided-in-the-agency-relation standard when a supervisor takes a tangible employment action against a subordinate (such as firing, failing to promote, reassigning with significantly different responsibilities, or reducing benefits). Thus, in such cases, the employer is vicariously liable for the hostile environment created by a supervisor with immediate (or successively higher) authority over the victimized employee, regardless of whether the employer knew or should have known about the supervisor’s conduct.

In Faragher v. City of Boca Raton, 56  the U.S. Supreme Court applied the aided-in-the-agency-relation standard to a case involving the creation of a hostile environment by a supervisor who threatened to take tangible adverse employment action but did not do so. The Court acknowledged that, in a sense, a harassing supervisor is always assisted in his or her conduct by the supervisory relationship: “When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor” with the power to hire, fire, and set work schedules and pay raises. 57

Even so, the Court felt constrained by its prior holding in Meritor Savings Bank FSB v. Vinson 58  that the employer is not automatically liable for harassment by a supervisor. It also noted that the primary objective of Title VII is to avoid harm. To implement that statutory policy, the Court considered it appropriate “to recognize the employer’s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty.” 59  At the same time, the Court acknowledged an employee’s duty to avoid or mitigate harm. If the employee unreasonably failed to avail himself or herself of the employer’s preventive or remedial apparatus, the employee should not recover damages that could have been avoided if he or she had done so. Accordingly, the Court held that if the supervisor’s harassment does not culminate in a tangible employment action, then the employer may raise an affirmative defense to liability or damages.

To establish the defense, the employer must prove two things: (1) it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. For example, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of Louise Hill’s racial and sexual harassment lawsuit against American General Finance (AGF) after concluding that AGF’s policies were adequate and that Hill had failed to take reasonable steps to notify the company of her harassment. 60  AGF had equal employment and sexual harassment policies, including a complaint procedure that allowed aggrieved employees to report to a number of different managers. After receiving Hill’s notice of harassment, the company took immediate corrective action by launching an investigation regarding her allegations. As a result of this investigation, the company punished the supervisor who had harassed her.

Definition of “Supervisor”

In Vance v. Ball State University, 61  the U.S. Supreme Court set forth the definition of “supervisor” for purposes of an employer’s vicarious liability under Title VII. Maetta Vance, an African American employee at Ball State University, alleged that Saundra Davis, a white employee, was her supervisor and that the university was therefore vicariously liable for Davis’s actions. The Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only “if he or she is empowered by the employer to take tangible employment actions against the victim.” The Court rejected the EEOC’s more expansive definition of supervisor, which included “employees who control the day-to-day schedules and assignments of others.” Tangible actions giving rise to supervisor status include hiring, firing, failing to promote, reassigning with significantly different responsibilities, or making a decision that causes a significant change in benefits. Because Davis did not have the authority to take any of these actions, the university was not vicariously liable for Davis’s conduct.

Personal Liability

As a general rule, courts have not held supervisors personally liable for discrimination against a subordinate employee in violation of Title VII. 62  However, the U.S. Court of Appeals for the Second Circuit has held that supervisors may be held personally liable for harassment under other federal statutes. 63  In addition, supervisors may be held personally liable under some state antidiscrimination statutes. 64

13-2c: Duty to Accommodate Religious Beliefs

Religious discrimination charges filed with the EEOC increased from 1,709 in fiscal year 1997 to 3,811 in 2012. 65  These claims include not only refusals to hire or promote based on religious prejudice, but also allegations that employers would not give employees flexible schedules so they could attend religious ceremonies or adjust workplace dress codes to accommodate clothing mandated by an employee’s religion.

In 2013, the U.S. Court of Appeals for the Seventh Circuit reversed a district court’s grant of summary judgment in favor of an employer who had refused to give an employee several weeks of unpaid leave so that he could attend his father’s burial ceremony in Nigeria and then had fired the employee after he took the time off. 66  To decide what is a “religion” within the meaning of Title VII, “‘[t]he test is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.’” 67  Here, the employee explained that his family’s religion was “a blend of Christianity and customs, traditions, and ceremonial rites” from his village, and that “as part of this religion, the specific dictates of each family’s religious practice are identified, determined, and required by the father or male head of the household.” 68  The rites required of the employee included sacrificing live goats; leading a village processional; and cutting his mother’s hair, anointing her head with snake oil, and coaxing her to come out of her home after staying inside to mourn for a month. The court held that these beliefs were protected under Title VII’s “broad and intentionally hands-off definition of religion.”  69  The court also noted that delving into the content of a person’s religious beliefs was not a “task appropriate” for the courts.

13-2d: Retaliation

Title VII and other statutes prohibit both employment discrimination and retaliation against an employee for exercising his or her protected rights. The anti-retaliation provision of Title VII “prohibits an employer from ‘discriminat[ing] against’ an employee or job applicant because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” 70  To prove a case of retaliation, an employee must demonstrate that (1) the employee’s activity was protected by Title VII; (2) the employer knew of the employee’s exercise of protected rights; (3) the employer took some adverse employment action against the employee, or the employee was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Generally, plaintiffs file a retaliation claim in conjunction with an underlying claim of discrimination. To succeed on a claim for retaliation, however, a plaintiff does not need to prevail on his or her Title VII discrimination claim. 71  Both current and former employees can sue for retaliation. 72

Definition of Retaliation

Whereas the antidiscrimination provision in Title VII expressly limits its prohibitions to actions that affect employment or alter workplace conditions, the anti-retaliation provision is broader. The employee must only show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” 73  Although reassignment of job duties is not automatically actionable, a particular reassignment may be materially adverse and “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” 74  For example, the Supreme Court upheld a finding of adverse action when a railroad transferred a worker from forklift duty to standard track labor tasks and suspended the worker for thirty-seven days without pay. The transfer could reasonably be seen as adverse because the track laborer duties were “more arduous and dirtier” than the forklift operator position. The Court also found that the employee’s suspension was adverse, because many reasonable employees would consider the loss of a month’s pay a serious hardship.

Actions allegedly taken to prevent further harassment may be deemed retaliation under Title VII if they harm the employee’s employment situation. For example, the U.S. Court of Appeals for the Third Circuit found that transferring an employee to a job that the employer knew she could not perform stated a cause of action for retaliation for her complaint that her manager was sexually harassing her. 75  The plaintiff was transferred from her job of tagging and pricing clothing to a job requiring her to sort through clothes contributed to Goodwill. The employee’s phobia of “critters,” such as mice, insects, and bugs found in these bags of clothing, prevented her from performing the job. The court explained that “[i]t is important to take a plaintiff’s job-related attributes into account when determining whether a lateral transfer was an adverse employment action. An inability to do a particular job is job-related, unlike a desire to live in a certain city.” 76

Typically, retaliation claims are instituted by the individual filing the underlying discrimination complaint. In Thompson v. North American Stainless, LP, 77  however, the Supreme Court held that a man could sue for retaliation under Title VII after he was fired because his fiancée had filed a complaint of discrimination against their mutual employer. Using the definition of aggrieved person applied under the Administrative Procedure Act, the Court concluded that Eric Thompson was in the “‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” 78  Thompson was not an “accidental victim” or “collateral damage” of the retaliation—he was allegedly fired with the intent to hurt his fiancée, Miriam Regalado, for filing the EEOC sex discrimination charge. Because the firing was an unlawful act meant to punish Regalado, Thompson was within the zone of interests protected by Title VII.

The Court’s opinion did not specifically address whether, for example, an employee’s girlfriend or boyfriend, close friend, or “trusted co-worker” who had been the victim of a retaliatory firing could bring a third-party suit under Title VII. In dicta (expressions in court opinions that are not binding precedent), however, the Court indicated that it would “expect” that a fired close family member could bring such a suit. The concurring opinion noted that, according to the EEOC compliance manual, Title VII prohibits retaliation against “someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights” and that such retaliation could be challenged by both the individual engaging in the protected activity “and the relative, where both are employees.” 79

Causation

The U.S. Supreme Court held in University of Texas Southwestern Medical Center v. Nassar 80  that the plaintiff must show but–for causation in a Title VII retaliation case—that is, that “but for” the employer’s desire to retaliate against the plaintiff, the employer would not have taken any adverse employment action. In contrast, discrimination cases based on personal characteristics (such as race or gender) are judged under the less exacting motivating-factor standard. The Civil Rights Act of 1991 added § 2000e-2(m) to Title VII and thereby codified the motivating-factor causation standard for personal-characteristic discrimination cases: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

The Court contrasted this provision with Title VII’s anti-retaliation provision, which is set forth in a separate section, § 2000e-3(a):

It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Court focused on the word “because” and noted that the Age Discrimination in Employment Act (ADEA) uses similar wording. In Gross v. FBL Financial Services, Inc., 81  the Court had concluded that the ADEA wording meant age must be the but–for cause of the challenged employment action. The Court continued: “[G]iven the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but–for cause of the challenged employment action.” But–for causation can be proven by direct or circumstantial evidence.

In a dissenting opinion in which Justices Breyer, Kagan, and Sotomayor joined, Justice Ginsburg argued that the ban on discrimination and the ban on retaliation had previously “traveled together” and that the current decision drove a “wedge between the twin-safeguards in so-called ‘mixed-motive’ cases.”

13-2e: Special Applications of Title VII

Civil rights legislation was founded on the fundamental premise that individuals should not be denied a job or an opportunity on the job because of their race, color, religion, national origin, or sex. The law has expanded beyond that basic premise to reach more subtle forms of discrimination.

Sexual Stereotyping

In Price Waterhouse v. Hopkins, 82  Ann Hopkins was denied a partnership in the accounting firm Price-waterhouseCoopers after being told by the policy board that, to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The U.S. Supreme Court concluded that the evidence produced by Hopkins was sufficient to establish that sexual stereotyping played a part in the firm’s decision not to promote her. The Court held that this stereotyping constituted a form of illegal discrimination based on sex. With respect to sexual stereotyping, the Court stated: “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch 22: out of a job if they behave aggressively and out of a job if they don’t. Title VII lifts women out of this bind.” 83  In addition, although the case dealt with gender discrimination, the Court expressly stated that all references to gender and all principles announced in the opinion “apply with equal force to discrimination based on race, religion, or national origin.” 84

A recent study concluded that negative stereotypes about women continue to impede women’s careers in science. 85  In the study, employers had to choose between two candidates for a math-related job based solely on the candidates’ appearance. When the employers could observe the candidates’ appearance (so that gender was obvious), both male and female employers were twice as likely to hire a man as a woman. In an earlier study of science professors at American universities, researchers at Yale University asked faculty members to evaluate résumés that were identical except for the gender of the first name. The faculty members, on average, rated the “male” applicant higher and recommended offering the “female” applicant a lower salary. 86  Jo Handelsman, the senior author of the study and a professor of molecular, cellular, and developmental biology at Yale, remarked: “I think we were all just a little bit surprised at how powerful the results were—that not only do the faculty in biology, chemistry and physics express these biases quite clearly, but the significance and strength of the results was really quite striking.” 87

Pregnancy Discrimination

The Pregnancy Discrimination Act provides that discrimination on the basis of pregnancy is, on its face, a form of sex discrimination under Title VII. 88  For example, the U.S. Court of Appeals for the Sixth Circuit held that a female employee who was promised a promotion to supervisor, but was offered a lesser promotion after her employer learned she was pregnant, had made out a prima facie case of discrimination. 89

These protections are not absolute, however. In Reeves v. Swift Transportation Co., 90  a former employee who was pregnant sued Swift claiming that she was wrongfully terminated when she became pregnant. Swift terminated the employee pursuant to a policy that denied light-duty work to employees who could not perform heavy lifting and who had not been injured on the job. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s grant of summary judgment in favor of Swift, stating: “Swift’s light-duty policy is indisputably pregnancy-blind. It simply does not grant or deny light work on the basis of pregnancy, childbirth, or related medical conditions. It makes this determination on the nonpregnancy-related basis of whether there has been a work-related injury or condition.” 91

Fetal-Protection Policies

Certain substances used in manufacturing are harmful to the fetus being carried by a pregnant woman. In an effort to avoid such harm, and related lawsuits for unsafe working environments, some companies adopted so-called  fetal-protection policies , which barred a woman from certain jobs unless her inability to bear children was medically documented. In International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, UAW, v. Johnson Controls, Inc., 92  the U.S. Supreme Court held that Johnson Controls’ policy, which precluded women with childbearing capacity from working at jobs in which lead levels were defined as excessive, was a facially discriminatory policy because it did not also apply to the reproductive capacity of male employees. As a result, it violated Title VII, which prevents women from being excluded from certain jobs because of their childbearing capacity. The Court stated that “[d]ecisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.” 93

In the wake of Johnson Controls, employers have been forced to walk a fine line between avoiding discrimination related to pregnancy and limiting or reducing potential workplace hazards. For example, Darlene Asad sued Continental under state tort laws claiming that Continental was responsible for her newborn son’s cerebral palsy. 94  Asad had requested a job transfer for the duration of her pregnancy to escape exposure to carbon monoxide fumes. Continental refused the transfer, citing Johnson Controls and other cases holding that the Pregnancy Discrimination Act (PDA) does not require employers to “accommodate” pregnant women. 95  The U.S. District Court for the Northern District of Ohio deviated from prior court rulings when it held that although Johnson Controls demonstrated that employers cannot prevent women who are or who may become pregnant from working in an environment that may be hazardous to a fetus, “the PDA and Title VII should not prevent an employer from temporarily transferring a pregnant woman, at her request, for the protection of her fetus.” 96

Family Responsibilities

The Center for Work-Life Law and the Hastings College of the Law at the University of California have identified more than 2,000 cases of  family responsibility discrimination (FRD) , defined as “discrimination against employees based on their family care-giving responsibilities—including pregnancy discrimination, discrimination against mothers and against fathers who actively participate in caring for their children, and discrimination against workers who care for aging parents or ill or disabled spouses or family members.” 97

This figure includes cases that are sometimes referred to as “maternal wall” discrimination, or discrimination based specifically on motherhood, which are based on sexual stereotyping claims under Title VII. Although the traditional way to prove disparate treatment under Title VII is by use of comparative evidence (that is, evidence of how nonprotected class members are treated), the U.S. Court of Appeals for the Second Circuit ruled that disparate treatment can also be proved by evidence of gender stereotyping:

The defendants argue that stereotypes about women or mothers are not based upon gender, but rather, “gender plus parenthood,” thereby implying that such stereotypes cannot, without comparative evidence of what was said about fathers, be presumed to be “on the basis of sex.” … [It is particularly] clear, however, that, at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based. 98

This case involved a school psychologist who was denied tenure because her employer assumed that, because she had children, she would not continue to work hard if granted tenure. In another case, a qualified lawyer was not offered a promotion because her employer assumed that she would not be interested in a job involving travel because she had a family. 99

FRD can also affect fathers. In fact, one study found that fathers who took parental leave were recommended for fewer rewards and had lower performance ratings than mothers who took parental leave. 100  In addition, biological fathers have filed discrimination suits under Title VII claiming that certain parental leave policies do not provide them with benefits that are equivalent to those provided birth mothers or adoptive parents. For example, one employer provided ten weeks of paid leave to birth mothers, as well as to men and women who adopted a child or had a child using a surrogate, but only two weeks of paid time off for biological fathers. 101

Plaintiffs have also brought FRD cases based on hostile environment. For example, a jury found that a woman had been subjected to a hostile work environment based on evidence that her supervisor complained about absences caused by her son’s ear infections, attached signs (“Out— Sick Child”) to her cubicle when she had to care for him, informed her that she had to make up “every minute” she was away from the office for doctor’s appointments, warned her not to get pregnant again, and threw a phone book on her desk and told her to find a pediatrician whose office was open after hours. 102  Certain FRD claims can also be brought under the Americans with Disabilities Act and the Family and Medical Leave Act.

Interracial Association

In Holcomb v. Iona College, 103  a white assistant coach of the Iona College basketball team alleged that he was fired because he was married to an African American woman. The U.S. Court of Appeals for the Second Circuit joined the Fifth, Sixth, and Eleventh Circuits in ruling that Title VII protects employees from discrimination based on their association with a person of a different race. The court reasoned that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” 104

English-Only Laws

The national origin provisions of Title VII have been used to challenge workplace rules that prohibit employees from speaking any language other than English at work. The EEOC has taken the position that language is closely linked with national origin, so English-only policies can have a disparate impact on Hispanic employees and others whose native language may not be English. In 2013, Mesa Systems, a Colorado moving and storage company, agreed to pay $450,000 to settle an EEOC national origin discrimination suit. 105  The EEOC alleged that the company’s restrictive language policy had a disparate impact on Hispanics and Asians/Pacific Islanders; as part of the settlement, Mesa agreed to rescind the policy.

Federal courts have agreed with the stance taken by the EEOC. For example, the U.S. Court of Appeals for the Tenth Circuit reversed a grant of summary judgment to a Title VII defendant after finding that the plaintiffs had presented a prima facie case that the defendant’s English-only rule created a hostile environment for Hispanic employees. The court noted that an English-only policy itself, not just its effect, may create or contribute to the hostility of the work environment:

Here, the very fact that the [defendant] City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions. It would be unreasonable to take offense at a requirement that all pilots flying into an airport speak English in communications with the tower or between planes; but hostility would be a reasonable inference to draw from a requirement that an employee calling home during a work break speak only in English. The less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language. 106

Dress Codes

Although employers have the right to enact and enforce dress codes, these codes can result in legal claims involving religious and sexual discrimination and harassment. The trend of allowing employees to wear casual clothing has the potential to further complicate this matter.

Employees have based claims of religious discrimination on their employers’ refusal to let them wear turbans rather than protective headgear. In response, the Occupational Safety and Health Administration amended its regulations to exempt persons wearing turbans from its hard-hat requirements.

In the following case, the court considered whether a clothing retailer violated Title VII when it refused to hire a Muslim woman because she wore a head scarf and whether the applicant had provided the retailer with adequate notice that she needed a religious accommodation.

CASE 13.2: A CASE IN POINT: SUMMARY

EEOC v. Abercrombie & Fitch Stores, Inc.

United States Court of Appeals for the Tenth Circuit

731 F.3d 1106 (10th Cir. 2013).

FACTS

Samantha Elauf, a Muslim since birth, had worn a traditional head scarf in public since age thirteen for religious reasons. In June 2008, she applied for a job at the Abercrombie Kids store in Woodland Hills Mall in Tulsa, Oklahoma. Abercrombie requires its employees to comply with a strict “Look Policy,” which requires employees to dress in clothing and merchandise consistent with those sold at the store. It also prohibits facial hair, necklaces, bracelets, and hats.

Heather Cooke, the assistant store manager, interviewed Elauf. At the interview, Elauf wore clothes consistent with those sold at the store, as well as her head scarf. Cooke did not inquire about Elauf’s scarf at the interview and did not tell her about the Look Policy, although she did tell Elauf to wear clothing consistent with that sold by Abercrombie and not to wear heavy makeup or nail polish. Although Cooke thought that Elauf wore the scarf for religious reasons, Elauf never told Cooke that she was Muslim or that she felt obliged to wear the scarf because of her religion. Nor did Elauf request an accommodation to address the conflict between her religious practice and the Look Policy. Cooke initially recommended that Elauf be hired for the position, but the district manager, Randall Johnson, told her not to hire Elauf because she wore the head scarf. Johnson said that the scarf was the equivalent of a hat and indicated that if management allowed Elauf to wear one, other employees would think they could as well.

The EEOC sued in district court on behalf of Elauf pursuant to Title VII, alleging that Abercrombie discriminated against her on the basis of her religion by failing to reasonably accommodate her religious beliefs. After the court found in favor of the EEOC, Abercrombie appealed.

ISSUE PRESENTED

To prevail in a religious accommodation claim under Title VII, must an applicant have initially informed the prospective employer that he or she wears certain clothing for religious reasons and that he or she needs an accommodation for this practice because it conflicts with the employer’s work rule?

SUMMARY OF OPINION

The U.S. Court of Appeals for the Tenth Circuit explained that proving a prima facie case in a religious accommodation suit requires the plaintiff to show that “(1) he or she had a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed his or her employer of this belief; and (3) he or she was fired [or not hired] for failure to comply with the conflicting employment requirement.” If the prima facie case is shown, the burden shifts to the employer (1) to conclusively rebut one or more elements of the prima facie case, (2) to show that it offered a reasonable accommodation, or (3) to show that it could not reasonably accommodate the religious belief without undue hardship.

Here, the court found that there was no genuine issue of material fact on the issue of notice. Elauf never informed Abercrombie before its hiring decisions that she wore the head scarf because of her religion and that she needed an accommodation to wear the scarf because it conflicted with Abercrombie’s Look Policy. Even though Cooke “assumed” that Elauf was Muslim and wore the scarf for religious reasons, Cooke “didn’t know” Elauf’s religion or its relevance to her wearing a scarf. In addition, while an employee may engage in certain practices associated with a religion, such practices may be motivated by a nonreligious reason, such as a political or cultural view. Discriminating against an employee on those grounds would not be prohibited by Title VII’s religious discrimination provisions.

Because the employer had not received the required notice, the EEOC could not prove the second element of its prima facie case. The appeals court therefore ordered the district court to vacate its judgment and enter judgment for Abercrombie.

RESULT

The court held that summary judgment should have been granted in favor of Abercrombie.

CRITICAL THINKING QUESTIONS

1.

How should a manager handle a situation in which he or she thinks an applicant might have a religious belief that conflicts with work requirements?

2.

What questions can an employer legally ask to determine if such a conflict exists? Are there any other ways an employer could determine whether an issue exists without specifically asking about a religious practice?

13-2f: Defenses under Title VII

Title VII sets forth several statutory defenses to claims of discriminatory treatment. Of these, the defense of bona fide occupational qualification is most frequently invoked.

Bona Fide Occupational Qualification

Title VII provides that an employer may lawfully hire an individual on the basis of religion, sex, or national origin if religion, sex, or national origin is a  bona fide occupational qualification (BFOQ)  reasonably necessary to the normal operation of that particular business. This is known as the BFOQ defense. The BFOQ defense is not available when discriminatory treatment is based on a person’s race or color. Because BFOQ is an affirmative defense, the employer has the burden of showing a reasonable basis for believing that persons in the category excluded from a particular job (for example, women) were unable to perform that job.

The BFOQ defense has been narrowly construed. EEOC regulations provide that gender will not qualify as a BFOQ when a gender-based restriction is based on (1) assumptions of the comparative employment characteristics of women in general (such as the assumption that women have a higher turnover rate than men); (2) stereotyped characterizations of the sexes (for example, that men are less capable of assembling intricate equipment than women); or (3) the preferences of coworkers, employers, or customers for one gender or the other. 107  Gender will be considered a BFOQ when physical attributes are important for authenticity (as with actors) or when a gender-based restriction is necessary to protect the rights of others to privacy (as with restroom attendants).

Seniority and Merit Systems

Title VII states that it is not unlawful for employers to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. This is considered an exemption from Title VII rather than an affirmative defense. Consequently, the plaintiff has the burden of proving that the employer had a discriminatory intent or illegal purpose in implementing the seniority or merit system. Moreover, although a disproportionate impact may be used as evidence of discriminatory intent, such an impact is not, in itself, sufficient to establish discriminatory intent.

After-Acquired Evidence

When an employee initiates a suit under Title VII, the employer will sometimes learn during the course of discovery that the individual violated company rules. Under these circumstances, employers have argued that the plaintiff’s discrimination claim should fail because, had the employer known of the employee misconduct, the employee would have been discharged anyway.

In McKennon v. Nashville Banner Publishing Co., 108  the U.S. Supreme Court held that after-acquired evidence of misconduct does not bar a discrimination claim instituted under the Age Discrimination in Employment Act. But the employee misconduct is not ignored: remedies available to plaintiffs in cases involving misconduct should be limited to back pay and should not include reinstatement or front pay as long as other comparable violations of company rules by other employees resulted in termination.

13-2g: Remedies under Title VII

In addition to back pay, front pay, and other compensatory damages, as well as reinstatement and other injunctive relief, a prevailing plaintiff may be able to recover punitive damages in certain cases of intentional discrimination.

Punitive Damages

Punitive damages may be awarded under Title VII only in cases of “intentional discrimination”—that is, cases that do not rely on the disparate impact theory of discrimination. 109  To recover punitive damages, the complaining party must demonstrate that the employer engaged in a discriminatory practice or practices “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 110  The employee is not required to show that the employer engaged in egregious misconduct. Rather, the employee must show that the employer had the requisite discriminatory mental state. Punitive damages are available and can be awarded even if the jury awarded no compensatory damages. 111  (Punitive damages are not available in suits against a government, governmental agency, or political subdivision, however.)

Even if the employee can show the requisite malice or indifference, the employer still may not be liable for punitive damages if the employer had engaged in “good-faith efforts” to comply with Title VII. To hold otherwise, the Supreme Court reasoned, would reduce the incentive for employers to implement antidiscrimination programs. 112

Caps on Liability

In federal cases under Title VII, compensatory and punitive damages for discrimination based on sex or religion are capped by the Civil Rights Act of 1991 at $50,000 for employers of 100 or fewer employees, $100,000 for employers with 101 to 200 employees, $200,000 for employers with 201 to 500 employees, and $300,000 for employers with more than 500 employees. 113  The caps do not apply to front or back pay, nor do they apply to intentional racial or ethnic discrimination cases brought under section 1981 of the Civil Rights Act of 1866. 114

13-2h: State Law Discrimination Claims

Employees claiming discrimination frequently sue under state employment discrimination laws, which often do not include caps on damages. State courts may nonetheless decide to limit the amount of compensatory damages awarded a plaintiff. For example, the Supreme Court of Michigan threw out a $21 million jury award to a sexual harassment plaintiff on the basis that it was excessive. 115  The suit alleged violations of the Michigan Civil Rights Act.

13-3: AGE DISCRIMINATION

As the baby boomers, who comprise a substantial percentage of the American workforce, have grown older, the issue of age discrimination in employment has become more visible. By 2020, workers over the age of fifty-five will constitute 25% of the workforce. 116

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in employment with respect to individuals aged forty years or older. To establish a prima facie case of age discrimination under the ADEA, the employee must prove that he or she (1) was within the protected age group, (2) was qualified for the position at issue, (3) suffered an adverse employment action, and (4) was replaced by a significantly younger person. 117  Individuals under age forty have no protection from discrimination based on age, so it is legal for an employer to favor older workers over younger workers. 118  Courts have held that generally the employer, not the individual making the discriminatory decision, is liable for age discrimination.

The substantive provisions of the ADEA are similar in many respects to those of Title VII. The ADEA generally prohibits age discrimination with respect to employee hiring, firing, and compensation, as well as with respect to the terms, conditions, and privileges of employment.

Unlike Title VII, which authorizes recovery in any case where an improper consideration was “a motivating factor” for an adverse employment action, the ADEA does not authorize mixed-motive claims. 119  Thus, in an ADEA case, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” 120  A finding of liability for intentional discrimination under the ADEA can, however, be based solely on the plaintiff’s prima facie case of discrimination together with sufficient evidence for a reasonable fact finder to reject the employer’s nondiscriminatory explanation for its decision. 121

As with Title VII, creation of a hostile environment (in this case, because of age) is a form of discrimination. 122  The ADEA also prohibits retaliation against an individual aged forty or older because of the individual’s opposition to unlawful age discrimination, or because he or she has made a charge or testified or assisted in an investigation, proceeding, or litigation under the ADEA.

Although the ADEA protects individuals over the age of forty, age discrimination cannot be inferred simply because the replacement employee is younger than forty. 123  Further, a prima facie case of age discrimination does not require the plaintiff to show that he or she was replaced with a worker younger than forty. Indeed, replacing a forty-year-old employee with a thirty-nine-year-old employee does not give rise to a stronger inference of discrimination than replacing a fifty-two-year-old employee with a forty-year-old employee. Rather, “the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.” 124

Even so, the ADEA prohibits unlawful age discrimination among persons within the protected age group. Thus, for example, if two individuals aged forty-one and fifty-three apply for the same position, the employer may not lawfully reject either applicant on the basis of age. At the same time, an employer may have engaged in age discrimination by rejecting someone over forty in favor of another person over forty if the chosen candidate is substantially younger than the rejected candidate. 125

The ADEA does not guarantee workplaces “free from the ordinary ebb and flow of power relations and interoffice politics.” 126  In Suarez v. Pueblo International, Inc., 127  the U.S. Court of Appeals for the First Circuit held that Ramon Suarez, the fifty-nine-year-old president of CaribAd (a subsidiary of Pueblo International), was not constructively discharged based on age when Pueblo was restructured and most of CaribAd’s employees were relocated to corporate headquarters, leaving Suarez alone in an office with a receptionist. Even though the employer told Suarez that the in-house advertising for which he had been responsible was being transferred to someone else and that he would be responsible for bringing in new clients, he maintained his position as president and continued to be paid his $190,000 salary. The court stated that “[i]n that rarefied financial atmosphere. … [a]n increase in work requirements that does not surpass reasonable expectations” cannot sustain a constructive discharge claim. 128  Even if Pueblo was attempting to marginalize Suarez, the “unpleasantness, hurt feelings, and wounded pride” that resulted did not create working conditions that were “so onerous, abusive or unpleasant that a reasonable person in the employee’s position would have felt compelled to resign.” 129

13-3a: Disparate Impact and the Defense of a Reasonable Factor Other Than Age

Employer actions that on their face do not discriminate based on age may still violate the ADEA if they have a statistically significant impact on workers over forty. 130  Nevertheless, the scope of disparate impact liability is narrower under the ADEA than under Title VII. Recognizing that “age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment,” the Supreme Court ruled that employees must identify the specific test, requirement, or practice that is responsible for any observed statistical disparities. 131  It is not enough to point to a gen-eralized policy that leads to such an impact. 132  Moreover, even if the employee identifies the relevant practice, the employer has an affirmative defense if the employer proves that its decision was based on a “ reasonable factor other than age ” (the RFOA defense). 133  The employer in a disparate impact case has the burden of proving that its decision was made based on such reasonable factors. The employer is not required to show business necessity, however.

13-3b: Older Workers’ Benefit Protection Act

The Older Workers’ Benefit Protection Act 134  (OWBPA) prohibits age discrimination in providing employee benefits. It also establishes minimum standards for employees who waive their rights under the ADEA.

To meet the minimum standards, the employee waiver must be “knowing and voluntary.” The employee must be given at least twenty-one days to consider whether to enter into an agreement waiving rights under the ADEA. This period is extended to forty-five days when the waiver is in connection with an early retirement or exit-incentive plan offered to a group or class of employees. The agreement must also give the employee a period of at least seven days following execution of the agreement during which the employee may revoke it. An employee who has accepted a severance payment in exchange for waiving his or her rights under the ADEA can still sue the employer for violation of the ADEA without having to return the payment if the waiver was not made in accordance with the OWBPA. 135

Employers may revoke a proposed early retirement agreement during the time frame the OWBPA gives employees to act on it. For example, the U.S. Court of Appeals for the Eighth Circuit held that an employer could revoke a separation agreement containing a waiver of claims under the ADEA and provide a new, less valuable agreement, after the employer learned that the employee had made defamatory statements about the company. 136

13-3c: Defenses

An employer faced with an age discrimination claim may assert in its defense that (1) age is a BFOQ reasonably necessary to the normal operation of the business (extremely difficult to prove); (2) the differential treatment is based on reasonable factors other than age (the RFOA defense); (3) the employer’s action is based on a bona fide seniority system or employee benefit plan—such as a retirement, pension, or insurance plan—that is not invoked as a subterfuge to evade the purposes of the ADEA; or (4) the discharge or discipline of a protected individual was for good cause. 137  The courts construe these defenses strictly.

13-3d: Remedies under the ADEA

Employees who bring successful claims under the ADEA or the OWBPA are entitled to both equitable relief, which includes hiring, wage adjustments, promotion, or reinstatement, and monetary relief. Monetary remedies include back pay, front pay, and liquidated damages. Liquidated damages equal to the amounts owed to a person as a result of the violation are provided only in the event of willful violations by the employer. Compensatory damages and punitive damages are also available under the ADEA.

13-4: DISABILITY DISCRIMINATION

Title I of the Americans with Disabilities Act (ADA) prohibits employers from discriminating against a qualified individual because of a disability in regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment. Such discrimination includes the use of selection criteria to screen out individuals with disabilities unless the criteria are job related and consistent with business necessity. The ADA requires employers to make “reasonable accommodations” as requested by employees who have a “physical or mental impairment that substantially limits a major life activity.”

13-4a: Impermissible Discrimination

Under the ADA, employers are prohibited from (1) intentionally discriminating against disabled persons and (2) engaging in employment practices that are not intentionally discriminatory, but have the effect of discriminating against disabled persons or perpetuating the past effects of such discrimination. The term “discriminate” as construed by the ADA includes the following prohibited practices:

· 1. Limiting, segregating, or classifying an applicant or employee because of his or her disability so as to adversely affect his or her opportunities or status.

· 2. Entering into a contractual relationship with an employment or referral agency, union, or other organization that has the effect of subjecting applicants or employees with a disability to prohibited discrimination.

· 3. Using standards, criteria, or methods of administration that have the effect of discriminating or perpetuating the effects of discrimination because of disability.

· 4. Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless to do so would impose undue hardship on the employer.

· 5. Denying job opportunities to an otherwise qualified applicant or employee with a disability in order to avoid having to make reasonable accommodations for that disability.

· 6. Using qualification standards or employment tests that tend to screen out individuals with disabilities, unless the standards or tests are shown to be job related and consistent with business necessity.

· 7. Failing to select and conduct job testing in such a way as to ensure that when the test is administered to an applicant or employee with a disability that impairs his or her sensory, manual, or speaking skills, the results of the test accurately reflect the skills or aptitude that test is designed to measure, rather than reflecting the sensory, manual, or speaking impairment.

The employee must be able to attend work to be considered a “qualified individual” within the meaning of the ADA. Thus, an employee diagnosed with depression who was unable to attend work and asked for a leave of absence so she could return “at some uncertain point in the future” did not request a reasonable accommodation and thus did not qualify for protection under the ADA. 138

Plaintiffs can bring both disparate treatment and disparate impact cases under the ADA. 139  In addition, the U.S. Courts of Appeals for the Fourth, Fifth, Eighth, and Tenth Circuits have determined that an employee can also bring a claim for a hostile work environment under the ADA. 140

The ADA also prohibits employers from discriminating against employees who have an “association” with someone with a disability. 141  A plaintiff can establish an association claim by showing that (1) the plaintiff was qualified for the position, (2) the plaintiff was subject to an adverse employment action, (3) the plaintiff was known to have a relative with a disability, and (4) the adverse employment action occurred under a circumstance that raised a reasonable inference that the relative’s disability was a determining factor in the decision. 142  For example, the U.S. Court of Appeals for the Seventh Circuit held that an employee could raise a claim of association discrimination when the employer fired her because her husband’s medical bills, which were paid by the employer’s health plan, were too costly. 143

A number of federal circuits have held that the ADA permits health plans to provide more limited coverage for mental health disorders than for physical conditions. 144  However, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, 145  enacted in 2008, requires employers with fifty or more employees that provide group health insurance with mental health coverage to pay mental illness and addiction expenses on terms (such as deductibles, copayments, and covered hospital days and out-patient visits) that are on a par with the coverage offered for physical illnesses. Employers can obtain an exemption if providing parity would increase the total costs of health coverage by more than a specified percentage. The Affordable Care Act further expands mental health benefits by requiring health plans to cover certain mental health services and ensure parity, particularly in individual and small group health plans. 146

13-4b: Definition of Disability

The ADA, as amended, defines a “person with a disability” as (1) a person with a physical or mental impairment that substantially limits one or more of that person’s major life activities, (2) a person with a record of a physical or mental impairment that substantially limits one or more of that person’s major life activities, or (3) a person who is regarded as having such an impairment. The ADA Amendments Act of 2008 (ADAAA) 147  provides that “disability” is to be broadly construed. Congress instructed courts to focus primarily on whether the employer has met its responsibility under the ADA, not on whether the plaintiff meets the definition of disability. 148

Physical or Mental Impairment

The first and second prongs of the ADA’s definition of disability focus on whether the individual has, or has a record of, a physical or mental impairment. The Code of Federal Regulations defines a physical or mental impairment as:

· 1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

· 2. Any mental or psychological disorder, such as intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 149

Neither the ADA nor the Code of Federal Regulations lists all of the diseases or conditions that qualify as “physical or mental” impairments, but the ADAAA expressly extended protection to workers with diabetes, epilepsy, HIV infection, bipolar disorder, and cancer. 150  The ADAAA prohibits employers from discriminating against disabled employees who have an impairment that is episodic or in remission; however, the ADAAA requires that workers prove that they have a disability that “would substantially limit a major life activity when active.” 151

Physical characteristics, such as skin color, weight, or height within the normal range, are not physical impairments, nor are personality traits, such as rudeness, irresponsible behavior, or a short temper. In addition, environmental, cultural, or economic disadvantages, such as lack of education or a prison record, are not impairments. For example, a person who cannot read due to dyslexia, which is a learning disability, has an impairment and is thus disabled. In contrast, a person who cannot read because he or she did not go to school does not have a disability because failure to attend school is not an impairment.

Substantially Limits a Major Life Activity

An impairment is a disability under the ADA only if it substantially limits an individual’s abilities to perform a major life activity as compared with most people in the general population.  Major life activity  includes walking, seeing, hearing, speaking, working, performing manual tasks, reproducing, eating, communicating, learning, and concentrating, as well as the operation of major bodily functions, such as the immune system, normal cell growth, and the respiratory system. 152  The nature and severity of the impairment, its expected duration, and its anticipated impact are all considered. According to the ADAAA, “substantially limits” is not “meant to be a demanding standard.” Therefore, the determination of whether an impairment substantially limits a major life activity “should not demand extensive analysis.”

The determination of whether an impairment substantially limits a major life activity is “made without regard to the ameliorative effects of mitigating measures [other than ordinary eyeglasses or contact lenses] such as … medication, medical supplies, equipment, or appliances …; use of assistive technology; reasonable accommodations or auxiliary aids or services, or learned behavioral or adaptive neurological modifications.” 153  For example, diabetes is “assessed in terms of its limitations on major life activities when the diabetic does not take insulin injections or medicine and does not require behavioral adaptations such as a strict diet.” 154

An impairment is not “categorically excluded from being a disability simply because it is temporary” if it is sufficiently severe. 155  The EEOC regulations specifically provide that impairments that last or are anticipated to last fewer than six months “can be substantially limiting” for purposes of proving a disability. Thus, the U.S. Court of Appeals for the Fourth Circuit held that an employee with broken legs and injured tendons that made him completely immobile for seven months had an impairment that “falls comfortably” within the definition of disability.

Regarded as Disabled

An individual is also protected under the ADA if he or she is subject to an action prohibited by the ADA, such as termination or failure to hire, based on an impairment that is not transitory and minor. This provision recognizes that societal stereotypes and prejudices may constrain individuals more than their actual limitations. The individual need not show that the perceived impairment limits the ability to perform a major life activity. In other words, an individual might be “regarded as” disabled even if he or she does not actually have a disability if the employer treats him or her as if the condition constituted a disability. For example, a triable issue of fact existed in one case as to whether an employer regarded its employee as disabled when the employee was fired three days after informing his employer of a brain tumor. 156  Individuals who are only regarded as disabled are not entitled to reasonable accommodations.

Exclusions

Although the definition of a disability under the ADA is relatively expansive, the statute clearly excludes certain things. For example, the ADA specifically excludes homosexuality, bisexuality, sexual behavior disorders, compulsive gambling, kleptomania, and pyromania from the definition of a disability.

Psychoactive-substance-use disorders resulting from current illegal use of drugs, including the use of alcohol in the workplace against the employer’s policies, are also excluded from the ADA’s definition of a disability. Although “current use” is not specifically defined in the statute, it has been interpreted to mean that “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem” and “recently enough to indicate that the individual is actively engaged in such conduct.” 157  In contrast, an employee or applicant who no longer actively uses drugs or alcohol on the work site, but who is involved in or has completed a supervised rehabilitation program, may be regarded as a disabled person. 158  Also, although an individual may not be fired on the basis of his or her alcoholism, an employer may discharge the person based on behavior related to the alcoholism. 159

13-4c: Reasonable Accommodation

The ADA requires employers to make reasonable accommodations to an employee’s disability as long as doing so does not cause the employer “undue hardship.” Thus, even if a disability precludes an individual from performing the essential functions of the position or presents a safety risk, the employer is required to assess whether there is a reasonable accommodation that will permit the individual to be employed despite the disability. As noted, however, there is no duty to make a reasonable accommodation for an individual who is only “regarded as disabled.”

To establish liability under the ADA, the employee generally must have requested an accommodation from the employer; it is the employee’s initial request for an accommodation that triggers the employer’s obligation to provide one. 160  An employee who fails to provide the employer with necessary medical information is precluded from claiming that the employer failed to provide reasonable accommodation. 161  Employers must train supervisors to recognize when a reasonable request for accommodation has been made. 162

Title I sets forth a nonexhaustive list of what might constitute  reasonable accommodation , including the following: (1) making work facilities accessible; (2) restructuring jobs or modifying work schedules; (3) reassigning the individual to another job; (4) acquiring or modifying equipment or devices; (5) modifying examinations, training materials, or policies; and (6) providing qualified readers or interpreters or other similar accommodations. An employer is not required to provide special training for an employee with a disability or to hire another employee to assist the disabled employee. 163

An employee does not have an automatic right to use a service animal, such as a guide dog, at work, nor does an employer have an automatic right to reject an employee’s request for one. An employer may ask an employee to verify that the service animal is needed because of a disability (but may not specifically ask the type or nature of the disability) and may also ask what work or task the service animal has been trained to do. 164  Use of a service animal may constitute a reasonable accommodation under Title I of the ADA unless an employer can show that the animal’s presence would pose an undue hardship or a direct threat to the health or safety of other employees.

Once a request for accommodation is made, an employer must be proactive and make a reasonable effort to determine the appropriate accommodation. 165  A minimum requirement seems to be that the employer should discuss potential accommodations with the disabled employee and not make unilateral decisions regarding the adequacy of potential accommodations. 166

Courts have not been receptive to claims that an employer should be required to transfer the plaintiff to a new supervisor. 167  In some cases, however, reassignment may be deemed a necessary reasonable accommodation. In Smith v. Midland Brake, Inc., Division of Echlin, Inc., 168  for example, the U.S. Court of Appeals for the Tenth Circuit ruled that the employer should have reassigned the employee to another job within the company after he became unable to perform his job because of a chronic skin condition. The court reasoned that the ADA’s reasonable accommodation requirement would be transformed into a “hollow promise” if it merely extended to disabled workers the right “to compete equally with the rest of the world for a vacant position.”

In contrast, in Huber v. Wal-Mart Stores, Inc., 169  the U.S. Court of Appeals for the Eighth Circuit held that the employer did not violate the ADA by refusing to reassign a dry grocery order filler at a Wal-Mart store to a vacant router position after she suffered a permanent injury to her right arm that prevented her from performing the essential functions of her order-filler job. Instead of automatically reassigning her to the router position, Wal-Mart required her to compete for the job with other applicants pursuant to its policy of hiring the most qualified applicant for the job. The court stated: “[T]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate, nondiscriminatory policy of the employer to hire the most qualified candidate.”

An employer does not have to accommodate a disabled employee if doing so would conflict with seniority rules under the employer’s collective bargaining agreement. 170  A different standard may apply when an employer unilaterally imposes a seniority system that is not embodied in a collective bargaining agreement, however. In U.S. Airways, Inc. v. Barnett, 171  the Supreme Court considered a conflict between an employer’s unilaterally imposed seniority system and a reassignment that was a reasonable accommodation under the ADA. The Court held that the seniority system did not necessarily serve to bar the reassignment. In such a situation, an employee may present evidence of special circumstances that make an exception to the unilateral seniority rule reasonable under particular facts: “[T]he plaintiff might show, for example, that the employer, having retained the right to change the system unilaterally, exercises the right fairly frequently, reducing employee expectations that the system will be followed—to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference.” 172

13-4d: Defenses under the ADA

Defenses available to an employer under the ADA include undue hardship, business necessity, and permissible exclusion.

Undue Hardship

A reasonable accommodation is not required if it would impose an undue hardship on the employer. The ADA defines  undue hardship  to mean an activity requiring significant difficulty or expense when considered in light of (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facility, the number of persons employed at the facility, the effect on expenses and resources, or any other impact of the accommodation on the facility; (3) the overall financial resources of the employer and the overall size of the business with respect to the number of employees and the type, number, and location of its facilities; and (4) the type of operation of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility in question to the employer.

One accommodation that was deemed unreasonable involved an employee with depression and various anxiety-related disorders who sued when the employer did not honor his request for a less stressful work environment. The U.S. Court of Appeals for the Third Circuit ruled that transferring the employee away from the stressful work environment was not a reasonable accommodation because it would impose extraordinary administrative costs on the employer. 173

Business Necessity

Employers may also defend their actions by showing that they had to discriminate against an applicant or employee with a disability due to a business necessity. For example, employment tests, qualification standards, and other selection criteria are acceptable under the ADA if they are related to the job and consistent with business necessity. 174

Permissible Exclusion

An applicant or employee who is disabled may be excluded from the employment opportunity only if, by reason of the disability, he or she (with or without reasonable accommodation) cannot perform the essential functions of the job or if the individual’s employment poses a significant risk to the health or safety of the employee or others.

Inability to Perform Essential Functions

In determining whether a job function is essential, the ADA requires that consideration be given to the employer’s judgment as to which functions are essential, but it also looks to any written job description prepared before advertising or interviewing for the job commenced. The applicant or employee has to prove only that he or she is able to perform the essential functions of the job, not all of the functions. 175

Direct Threat

An employer cannot deny a job due to risk of future injury to the employee or others unless, given the individual’s current condition, there is a probability of substantial harm to the disabled person or a third party. For example, the U.S. Supreme Court ruled in Chevron USA, Inc. v. Echazabal  176  that Chevron could refuse to hire an individual with a liver disease that might be aggravated by exposure to solvents and chemicals in Chevron’s refinery. Chevron also asked the maintenance contractor that employed this person to remove him from the refinery or to assign him to a position where he would not be exposed to solvents or chemicals. The Supreme Court found that Chevron’s reasons for denying employment were reasonable: Chevron wished to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state law, and the risk of violating the Occupational Safety and Health Act. The Court concluded that if an employer hires an individual who knowingly consents to the particular dangers the job would pose to him, “there is no denying that the employer would be asking for trouble.” The employer’s decision to hire “would put Congress’s policy in the ADA, [and] a disabled individual’s right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of ‘each’ and ‘every’ worker.”

Similarly, even though both asymptomatic and symptomatic individuals who test positive for the human immunodeficiency virus (HIV) are disabled within the meaning of the ADA, 177  a dental office acted lawfully when it laid off a hygienist who tested positive for HIV. 178  The hygienist posed a direct threat to the health and safety of others because his job included the use of sharp instruments on which the hygienist might prick his hand while performing invasive, exposure-prone activities, such as cleaning teeth. When dealing with HIV disease in the workplace, courts have narrowly construed the direct threat defense in accordance with medical evidence that HIV cannot be transmitted through casual contact. Thus, only those jobs that could lead to the transmission of bodily fluids, such as health care, are potentially covered by the direct threat exception.

In addition, an employer cannot justify discrimination against a person who is HIV positive on the basis of coworker or customer preference. Similarly, the fact that the employment of someone with HIV disease will increase group health insurance costs or cause absenteeism does not make discrimination permissible.

Many states recognize either a common law or a constitutional right to privacy that protects individuals from improper communication of their HIV status, even when the information is true and was properly obtained for a specific purpose. Statutes prohibiting disclosure of medical information, specifically HIV-related information, may accordingly be a source of employer liability. Thus, medical information should be kept in confidence among individuals who need to know.

13-4e: Genetic Discrimination

The Genetic Information Nondiscrimination Act of 2008 (GINA) 179  prohibits discrimination on the basis of a diagnosed genetic predisposition toward an asymptomatic condition or illness. 180  GINA prohibits employers with at least fifteen employees from using genetic information to make decisions about hiring, firing, or compensation. 181  GINA also prohibits health insurance companies from using genetic information to deny benefits or raise premiums for individual policies. (It was already illegal to exclude individuals from a group plan because of their genetic profile.)

13-4f: Remedies under the ADA and GINA

The ADA and GINA are enforced in the same manner as Title VII, and the same remedies are available. Compensatory and punitive damages for discrimination based on disability or genetic information are subject to the same caps as those applicable to discrimination based on sex or religion. Employers who violate either act can be fined as much as $300,000 for each violation.

The ADA also prohibits retaliation against an individual for exercising his or her rights under the statute. The federal courts are split over the availability of compensatory and punitive damages for retaliation claims, however. The U.S. Court of Appeals for the Seventh Circuit held that damages are not recoverable for retaliation, 182  but district courts in other circuits have held that both compensatory and punitive damages are available. 183  Based on the Supreme Court’s reasoning in Gomez-Perez v. Potter 184  that a private action for retaliation could be inferred from a ban on age discrimination, the better argument seems to be that under the ADA damages are recoverable for retaliation.

13-5: FAMILY AND MEDICAL LEAVE ACT

Under the Family and Medical Leave Act of 1993 (FMLA), 185  eligible employees are entitled to twelve weeks of unpaid job-protected leave per year. An employee may use leave under the act in four situations: (1) the birth of a child; (2) the placement of an adopted or foster-care child with the employee; (3) care of a child, a parent, or a spouse; or (4) a serious health condition that renders the employee unable to do his or her job. As discussed below, two types of leave related to military service are also available. The objective of the FMLA is to provide time off to an employee who cannot work because of family responsibility or a serious health condition. To be eligible for a family leave, the employee must have worked at the place of employment for at least twelve months and have completed at least 1,250 hours of service to the employer during that twelve-month period.

Pursuant to the National Defense Authorization Act for Fiscal Year 2008 186  and the National Defense Authorization Act for Fiscal Year 2010, 187  eligible employees may take up to twelve weeks of unpaid, job-protected FMLA  qualifying exigency leave  to handle exigencies related to a family member’s active duty military service or call to active duty. Qualifying exigencies include (1) short-notice deployment and deployment to a foreign country, (2) military events and related activities, (3) child-care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) postdeployment activities, and (8) other events arising out of the covered service member’s active duty or call to active duty status, provided the employer and employee agree that such leave qualifies as an exigency and agree to the timing and duration of the leave. 188

Eligible employees can also take up to twenty-six weeks of FMLA  covered service member family leave  to care for a spouse, son, daughter, parent, or next of kin (as defined by the Department of Labor) who has a serious injury or illness incurred or aggravated by service in the line of active duty. Leave is also available to care for certain veterans. EEOC regulations provide that eligible employees can take more than one twenty-six-week leave if the leave is to care for a different covered service member or if the same covered service member has a subsequent injury or illness. However, an eligible employee cannot take more than twenty-six weeks of leave in any single twelve-month period. 189

The FMLA’s requirements are a floor, not a ceiling, for what employers can provide their employees in terms of leave. If employers provide for more generous leave, however, they must give employees notice regarding the consequences of taking the extra leave. 190

An employee cannot waive his or her right to leave time under the FMLA. But the employer may require, or an employee may choose, to substitute any or all accrued paid leave for the leave time that is provided for under the act. Employers have no obligation to give employees advance notice that their paid leave will be counted toward the unpaid leave provided by the FMLA. 191

13-5a: Reinstatement

In general, the employer is required to restore the employee to the same position, or one with equivalent benefits, pay, and other terms and conditions of employment, following the expiration of FMLA leave. However, an employer may still terminate an employee during the family or medical leave if the employer would have made the same decision had the employee not taken the leave. For example, the U.S. Court of Appeals for the Eighth Circuit held that an employer did not violate the FMLA by firing an employee on FMLA pregnancy leave because the employer produced nondiscriminatory, legitimate reasons for terminating the employee unrelated to her FMLA leave. 192

Similarly, the U.S. Court of Appeals for the Eleventh Circuit held that an employee taking leave under the FMLA does not have an absolute right to reinstatement if his or her employment is terminated during the leave as part of a general reduction in force (RIF) by the employer. 193  The court explained: “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” 194  The burden of proof is on the employer denying reinstatement to show that it would have discharged the employee even if he or she had not been on FMLA leave.

An employer is also not required to reinstate key employees to their previous positions if the employer determines that the denial of reinstatement is necessary to prevent “substantial and grievous economic injury” to the business. “Key employee” is defined as a salaried employee who is among the highest-paid 10% of the employees located within seventy-five miles of the facility at which the subject employee is employed. EEOC regulations require the employer to notify an employee, at the time the leave is requested, of his or her status as a key employee and of the consequence of taking a leave. 195

13-5b: Remedies

To vindicate rights under the FMLA, a plaintiff may sue both the employer and his or her supervisor individually. 196  This interpretation is distinctive because a supervisor generally cannot be sued in his or her individual capacity under Title VII, the ADEA, or the ADA. In addition, despite states’ general immunity from private actions under the Eleventh Amendment, the U.S. Supreme Court has held that employees can sue state employers for FMLA violations. 197

In the following case, the U.S. Court of Appeals for the Fifth Circuit 

considered whether an employee was terminated in retaliation for his request for FMLA leave.

CASE 13.3: A CASE IN POINT: SUMMARY

Ion v. Chevron USA, Inc.

United States Court of Appeals for the Fifth Circuit

731 F.3d 379 (5th Cir. 2013).

FACTS

Todd Ion, a chemist at Chevron, had recently separated from his wife. He was granted temporary custody of his five-year-old son, who had difficulty adjusting to the separation. During his lunch breaks, Ion began visiting his son at day care to help smooth the transition.

On March 16, Ion’s supervisors suspended Ion for five days, citing performance deficiencies and excessively long lunch breaks. The employer also presented Ion with a Performance Agreement and Attendance Improvement Plan (PIP/AIP) to address his “performance deficiencies.” The PIP/AIP provided that noncompliance with its terms or a lack of significant and sustainable progress would result in further disciplinary action up to and including termination.

On March 19, Ion met with a counselor from Chevron’s Employee Assistance Program (EAP), who told him that he could see a licensed professional counselor for evaluation and that FMLA leave might be available. The Chevron counselor also told Ion to call in sick every day. On March 23, the day Ion had planned to return to work, the licensed professional counselor signed FMLA Form 380, certifying that Ion was suffering from a serious health condition as defined by the FMLA and that he was “incapacitated and unable to perform work of any kind.” In particular, the counselor certified that Ion was a single parent under “too much stress” who could not focus on his job. Ion continued to call in sick.

On March 24, Ion’s supervisor sent an e-mail to Chevron’s clinic, asking to be kept informed of Ion’s status; he copied the general manager on the e-mail. The general manager’s return e-mail indicated: “It looks like Mr. Ion is playing games with us after his suspension. I assume the ‘paperwork for short-term disability’ comment means that he is looking for a doctor to give him some FMLA-qualified time off. What are our options moving forward?” Also on March 24, a nurse from the clinic e-mailed Ion that his FMLA paperwork had been forwarded to him and that he needed to come into the clinic to sign certain forms. Ion went to the clinic on March 25, where his behavior was described as “passive/aggressive harassment” and “angry.” Ion told the nurses he did not trust them, and his overall behavior made the clinic employees feel uncomfortable. Chevron considered the incident a “potential workplace violence situation,” triggering a subsequent “threat assessment” by Chevron security.

On March 25, a coworker reported that Ion had talked about quitting his job and faking a nervous breakdown related to the divorce so he could take FMLA leave and get EAP benefits. Upon receiving that information, Ion’s supervisor sent an e-mail to the general manager and another individual stating:

It is clear to me that [Ion] is doing exactly what he told [the coworker] he was going to do. … I think strong action should be taken since [Ion] has premeditatedly plan[n]ed to fake an “illness” and bilk Chevron. We don’t need this type of criminal behavior at Chevron.

On March 26, Ion called his supervisor and told him that the FMLA paperwork had been filed and that he would be away from work until late April. On April 2, Chevron sent a letter to Ion stating that he was being terminated due to insubordination, performance issues, the taking of company equipment, and his remarks to a coworker about faking a nervous breakdown so he could get paid for staying home.

Ion sued Chevron, alleging that his termination was retaliation for taking FMLA leave. The district court granted summary judgment in favor of Chevron, holding that Chevron had shown that it would have fired Ion even if he had not applied for FMLA leave. Ion appealed.

ISSUE PRESENTED

To prevail in a retaliation claim under FMLA, what evidence must an employer present in a mixed-motive case to show that it would have terminated the employee even if it had not had a retaliatory motive?

SUMMARY OF OPINION

The U.S. Court of Appeals for the Fifth Circuit first noted that the mixed-motive framework applied to FMLA claims in which “retaliatory animus” was a motivating factor in an adverse employment action. Four steps are necessary to survive a motion for summary judgment: (1) the employee must first make a prima facie case of FMLA retaliation; (2) the employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; (3) the employee must then offer enough evidence to create a genuine issue of material fact that the employer’s reason, although true, is “but one of the reasons for its conduct, another of which was discrimination;” and (4) if the employee can show such information, an employer can escape liability and prevail on the summary judgment motion only by showing that it would have taken the adverse employment action despite its retaliatory motive, in essence proving an “affirmative defense.”

Ion established a prima facie case of FMLA retaliation by showing that (1) he was protected under the FMLA, (2) he had suffered an adverse employment action, and (3) the employer had taken adverse action because he sought protection under the FMLA. Chevron then presented evidence, which was not disputed on appeal, that it had fired Ion for numerous nondiscriminatory reasons, including unexcused absences, poor performance, statements about faking a nervous breakdown, and taking Chevron property, as well as his behavior at the clinic.

Ion then offered evidence that his exercise of his FMLA rights was a motivating factor in his termination: The termination letter mentioned his insubordination and the fact that he did not return to work after his suspension. In addition, the e-mail from the general manager stated that Ion was “playing games with us after his suspension.” The court held that, when inferences were drawn in favor of Ion, this evidence was sufficient to create a genuine issue of material fact as to whether the FMLA leave was a motivating factor in Chevron’s termination decision.

The final question was whether Chevron had shown it would have taken the same action toward Ion despite its discriminatory animus. That is, Chevron had to show that it “would have fired Ion despite his FMLA-related absence.” The burden of persuasion on the employer at this final step is “stringent.” The court ultimately held that Chevron, which relied on the same reasons enumerated above, had not met its burden.

The court held that Chevron did not show that it “would” have fired Ion because of his absences and poor performance, because Chevron had already addressed that behavior by suspending Ion for five days and completing the PIP/AIP. Additionally, Ion’s supervisor had testified that Ion would have been reinstated if he had come back to work after the suspension.

The court also dismissed Chevron’s argument that Ion was faking his illness to obtain the FMLA leave, noting that Chevron had failed to conduct “even the most cursory investigation.” Chevron never asked Ion about the coworker’s statement or obtained a second opinion under the FMLA. The court further noted that it was Chevron’s own counselor in the EAP program who had referred Ion to a licensed professional counselor chosen by Chevron.

Finally, the court found “without merit” Chevron’s argument that it fired Ion in part because of his behavior at the clinic, because the termination letter did not mention this incident and because the individual who drafted the letter testified that the letter was “an accurate statement” of the reasons Ion was terminated. Not including that incident in the letter “call[ed] into question” whether Chevron really relied on the incident as a reason for termination. Further, evidence presented at trial about the incident was “vague” and did not include a specific or objective description of Ion’s behavior, again calling into doubt Chevron’s reliance on it.

RESULT

Chevron failed to meet its burden of proving that it would have fired Ion despite its retaliatory motive. The district court’s grant of summary judgment in favor of Chevron was reversed and the case remanded for trial on the merits.

CRITICAL THINKING QUESTIONS

1.

If an employee has received a letter from a medical provider stating that the employee cannot work and is entitled to FMLA leave, does an employer still have a right to investigate a statement by a coworker that the employee was planning to “fake” an illness? Is it ethical for the employer to undertake such an investigation once the required documentation is on file?

2.

A number of e-mail messages were used as evidence in this case. What are some potential pitfalls of using e-mail to communicate in the human resources arena? How can an employer balance the need for sufficient documentation with the risk of including statements that can later be used by an employee in an adverse employment action case?

13-6: VETERANS’ REEMPLOYMENT RIGHTS

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) 198  protects the civilian jobs of members of the uniformed services of the United States. The act provides the following definition:

The term “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty. … 199

Covered employers include “any person, installation, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities,” including federal and state government employers. 200

Section 4312 of USERRA requires an employer to rehire covered employees, and section 4311 prohibits employers from treating those employees differently after they are rehired. Section 4316 prevents employers from dismissing the employees without cause for a limited period of time (the length of the protected period depends on the length of military service). USERRA also protects an employee from adverse employment decisions when the employee’s membership in the uniformed services is a motivating factor in the decision. 201  USERRA prohibits other forms of discrimination based on an employee’s military status or service as well. For example, a district court granted summary judgment to an active duty serviceman who was denied employment as a police officer because his active duty prevented him from beginning service until two months after the police department’s start date. The employer argued that it had refused to employ the serviceman because of his unavailability to report to work, not his status, but the court disagreed: “This contention can be dispatched quickly: it ignores the plain language of § 4311(a), which prohibits discrimination based not only on a person’s status as a member of the uniformed services, but also on the service member’s ‘obligation to perform service.’” 202  In addition, reemployment must be to a position comparable “to the position he would have held had he remained continuously in his civilian employment.” 203

13-6a: Remedies

A person claiming violation of USERRA may file a complaint with the U.S. secretary of labor, request that the U.S. attorney general file a lawsuit on his or her behalf, or file a civil lawsuit in state or federal court. A court may (1) order an employer to comply with the act, (2) award back pay and front pay, and (3) award an additional amount equal to the pay award as liquidated damages if it finds that the employer willfully failed to comply with the act. The court may also exercise full equity powers. USERRA allows a successful plaintiff to recover reasonable attorney fees, expert witness fees, and other litigation expenses. 204

13-7: AFFIRMATIVE ACTION

Affirmative-action programs are generally viewed as a means of remedying past acts of discrimination. Such programs are usually established pursuant to court orders, court-approved consent decrees, or federal and state laws that impose affirmative-action obligations on government contractors.

Executive Order 11246, as amended, requires federal government contractors to include certain provisions in every government contract not exempted by the order. In these provisions, the contractor agrees (1) not to discriminate in employment on the basis of race, color, religion, sex, or national origin and (2) to take affirmative steps to prevent discrimination. 205  In some cases, a contractor’s affirmative-action plan must be put in writing. Although individuals have no private right of action based on an alleged violation of the order, the Department of Labor, through its Office of Federal Contract Compliance Programs, can impose a wide range of sanctions, including terminating a government contract and disqualifying the contractor from entering into any future government contracts. 206  Government contractors are subject to affirmative-action obligations under certain federal laws as well, including the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1972.

As explained in  Chapter 4 , the Supreme Court held in Adarand Constructors, Inc. v. Peña, 207  that affirmative-action plans, whether mandated by state or federal government, are subject to strict scrutiny under the Equal Protection Clause. In reinstating a reverse-discrimination claim by a white-owned construction company that had lost a contract to a minority-owned business, the Court held that benign and invidious racial classifications should be subject to the same standards. This ruling was significant because it required the government to show a specific history of discrimination to justify preferential treatment of minority-owned businesses in government contracts. In Lutheran Church–Missouri Synod v. FCC, 208  the U.S. Court of Appeals for the District of Columbia held that Adarand’s requirement of strict scrutiny applied not just to racial preferences in hiring, but to any race-conscious decision making that affects employment opportunities, even if it does not establish preferences, quotas, or set-asides.

In Ricci v. DeStefano, 209  seventeen white and one Hispanic firefighter successfully sued certain city officials and the city of New Haven, Connecticut, alleging that the city’s refusal to certify the results of an examination, which would have made the firefighters eligible for promotion, was a violation of Title VII’s ban on disparate treatment. The city had decided not to certify the test results because it believed it would then be subject to a disparate impact lawsuit by minority firefighters, none of whom were eligible for promotion based on the test results. The Supreme Court held that the city had engaged in unlawful disparate treatment and that “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” The Court explained that the city, had it certified the examination results, would have been liable for disparate impact discrimination only if the examinations were not job related or if there was an equally valid, less discriminatory alternative that the city could have, but did not, adopt. However, there was “no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job related or because other, equally valid and less discriminatory tests were available to the City.” As a result, the city violated Title VII when it discarded the test results. Summary judgment for the firefighters on their disparate treatment claim was therefore appropriate.

The petitioners also alleged a violation of the Equal Protection Clause of the Fourteenth Amendment. Because the city had not prevailed on the Title VII statutory claim, the Court did not address whether a “legitimate fear of disparate impact” claims would suffice to justify discriminatory treatment under the Constitution. In his concurrence, Justice Scalia wrote that avoiding this issue “merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.”

The Supreme Court reiterated in Fisher v. University of Texas at Austin 210  that racial classifications are subject to strict scrutiny and are constitutional only when “narrowly tailored to further” a compelling government interest. Although diversity may be a compelling state interest, diversity may not be defined as a “specified percentage of a particular group,” because that would result in “patently unconstitutional” racial balancing. Accordingly, quota systems do not meet the “narrowly tailored” requirement. The reviewing court must verify that race is necessary to achieve the benefits of diversity and determine whether the same diversity could be obtained by other means.

ETHICAL CONSIDERATION

Many private employers actively recruit and hire minority candidates. Is it legal for employers to make hiring decisions based on race in order to promote workplace diversity? Is it ethical?

The Equal Protection Clause applies only to government entities. Affirmative-action programs by private employers have primarily been challenged under Title VII. In United Steelworkers of America v. Weber, 211  the U.S. Supreme Court upheld a collective bargaining agreement containing an affirmative-action plan giving preference to African American employees entering skilled-craft training positions. Concluding that Title VII did not preclude all private, voluntary, race-conscious affirmative-action programs, the Court noted that the plan (1) like Title VII, was designed to break down patterns of “racial segregation and hierarchy,” (2) “[did] not unnecessarily trammel the interests of white employees,” and (3) was a temporary measure intended to eliminate rather than maintain racial balance. 212  The EEOC has promulgated regulations regarding voluntary affirmative-action plans. 213

13-8: APPLICABILITY OF CIVIL RIGHTS LAWS TO TEMPORARY WORKERS

The EEOC has responded to the growth in the number of temporary or contingent workers by extending potential liability for discrimination against such workers to both the employment agencies or temporary staffing firms that supply the workers and their client–employers. 214  If both the staffing firm and its client have the right to control the worker, they are treated as joint employers, and both are subject to liability for both back and front pay, as well as compensatory and punitive damages.

If a staffing firm learns that one of its clients has discriminated against a temporary employee, the firm should not assign other workers to that work site unless the client has taken the necessary corrective and preventive measures to ensure that the discrimination will not recur. Otherwise, the staffing firm will be liable, along with the client, if a worker later assigned to that client is subjected to similar misconduct.

13-9: THE EXTRATERRITORIAL REACH OF U.S. EMPLOYMENT DISCRIMINATION LAWS

Title VII, the ADEA, and the ADA protect U.S. citizens employed in a foreign country by a U.S. employer or a U.S.-controlled employer. The EEOC has provided guidance on how to determine whether an entity is a U.S. employer or a U.S. controlled employer. 215  An entity that is incorporated in the United States is generally deemed a U.S. entity. The nationality of other entities is determined on a case-by-case basis, taking into consideration the following factors: (1) the entity’s place of incorporation, (2) the principal place of business, (3) contacts within the United States, (4) the nationality of dominant shareholders and/or those holding voting control, and (5) the nationality and location of management.

Even if a foreign entity is not deemed to be a U.S. entity, it will still be covered if it is “controlled by” a U.S. entity. The determination of whether a U.S. employer controls an entity is based on the interrelation of the companies’ operations, common management, centralized control of labor relations, and common ownership or financial control of the U.S. employer and the foreign entity. 216

Section 109 of Title VII makes it clear, however, that “it shall not be unlawful,” under either Title VII or the ADA, for an employer to act in violation of either statute if compliance would cause the employer to violate the law of the foreign country in which the employee’s workplace is located. For example, an employer may be permitted to deny employment to women in a country that prohibits women from working, even though this practice violates Title VII.

GLOBAL VIEW: Globalization, Cultural Norms, and Workplace Discrimination

When engaging in business overseas, managers should familiarize themselves with the employment discrimination laws of the countries in which they are doing business. “Today, geographic barriers are disappearing, and the way we do business is changing,” said Nandan Nilekani, Infosys’s chief executive. 217  “Multicultural interaction is becoming a very important part of our work environment.” 218  Legally astute managers attend to both changing legal requirements and cultural differences.

European Union

The member states of the European Union (EU) have (1) banned workplace discrimination and harassment on the basis of sex, religion, age, race, ethnic origin, disability, and sexual orientation; 219  (2) banned retaliation or other adverse treatment in reaction to a complaint or other action aimed at enforcing compliance with the principle of equal treatment; (3) established judicial or administrative bodies to enforce equal treatment in the workplace; and (4) removed any caps on awards for discrimination cases (although each member state is permitted to establish its own system of remedies). The relevant EU directives left it up to the member states to implement appropriate sanctions to avoid discrimination and harassment. Any EU citizen claiming to be the victim of discrimination can also file a claim in the European Court of Justice in Luxembourg. Even though the European Commission mandated that all member states have uniform laws regarding employment discrimination, each member state implements and utilizes these directives in different ways.

When trying discrimination cases, EU member states are required to utilize a burden of proof mechanism similar to the U.S. concepts of disparate treatment and disparate impact. “Disparate treatment” is called “direct discrimination” and “disparate impact” is called “indirect discrimination” in the EU. Direct discrimination analysis ensures that the burden of proof shifts if the complainant establishes “facts [from] which it may be presumed that there has been direct or indirect evidence of discrimination.” Indirect discrimination occurs “where a provision, criterion, or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion, or practice is objectively justified by a particular aim.” Like U.S. courts, European courts look at percentages to determine whether a protected class has been disadvantaged by a particular employment practice.

In the case of race and sex discrimination claims, once the employee presents credible evidence that would allow a presumption that discrimination has occurred, the employer must prove that there has been no violation of the principle of equal treatment. This makes it easier for employees to prove direct discrimination in a European court than in the United States.

India

Indian antidiscrimination law has developed slowly since the implementation of the Indian Constitution in 1950. The constitution prohibits discrimination in employment on the basis of religion, race, caste, sex, disability, descent, place of birth, or residence. 220

Perhaps the greatest struggle for equal rights has involved members of the Dalit caste (formerly called “untouchables”). These people occupy India’s lowest caste and are viewed as unclean by higher-caste Hindus. In an effort to end the caste system, India passed the Protection of Civil Rights Act in 1955 221  and implemented an affirmative-action program for government workers. One purpose of this Act was to enable Dalits to obtain jobs other than the low-paying and undesirable occupations to which they were traditionally relegated.

Attempts by the Indian government to extend the Dalit affirmative-action program to the private sector have been strongly opposed by Indian industry. However, most of India’s major information technology companies have adopted the United Nations Global Compact’s principles regarding the elimination of discrimination with respect to employment and occupation. 222

The Indian government passed its first law concerning rights for women in the workplace in 1948. The Factories Act of 1948 prohibited women from cleaning certain machinery in factories and granted female factory workers maternity leave for up to twelve weeks. Since then, other laws mandating equal pay, maternity benefits, and equal opportunity in hiring have been passed. Sexual harassment is perhaps the most recent area of gender antidiscrimination law to be developed. In 1997, the Indian Supreme Court recognized sexual harassment in the workplace as not only a personal injury to the affected woman, but also a violation of her fundamental human rights. In its ruling, the Supreme Court issued guidelines making employers responsible for both preventive and remedial measures to make the workplace safe for women. 223

India has ratified the UN Convention on the Rights of Persons with Disabilities. The Persons with Disabilities Act of 1995 mandates that 3% of government jobs be reserved for persons with specified disabilities. 224

India has no specific provisions governing age discrimination. Employers are generally free to establish age limits for any job according to their requirements.

Japan

Article 14 of the Japanese Constitution provides that “all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, or family origin.” 225  Despite this provision, Japanese antidiscrimination law is not very developed. Japan has no statutes prohibiting discrimination on the basis of race or national origin (most likely because Japan is generally a racially homogeneous society). Certain Japanese courts, however, have permitted ethnic minorities to invoke international human rights law to challenge discrimination. 226  For example, in 1998 a Brazilian reporter was awarded 1.5 million yen ($12,500) after being ejected from a jewelry store because the store refused to serve foreigners. Although the judge noted that there was no statute banning discrimination against foreigners, the store owner’s actions constituted an illegal tort under Japanese law because the reporter’s basic human rights “to dignity and honor” were violated. As a result, the owner was liable for the mental anguish he caused. 227

Laws regarding sex discrimination are the most highly developed discrimination laws in Japan. The Equal Employment Opportunity Law of 1985 (EEOL) prohibits discrimination against women in employment recruitment, hiring, assignment, promotion, training, education, fringe benefits, and termination. Amendments enacted in 1997 imposed a duty on employers to prevent sexual harassment and added a provision for sanctions to enforce these new provisions. In addition, the Labor Minister can publicize employer violations of the EEOL. Amendments passed in 2006 extended the law to male employees, added a section addressing indirect discrimination, and improved protections for women who are pregnant or on maternity leave. 228

In spite of these laws, Japan’s gender gap remains wide. The Global Gender Gap Index is an annual survey that measures the gap between men and women in economic participation and opportunity, educational attainment, health and survival, and political attainment. Of the 136 countries included in the 2013 survey, Japan was ranked 105, slightly below India’s rank of 101. 229  In contrast, the United States ranked 23 and Iceland ranked 1. Japan’s placement may not be surprising in light of a 2007 comment by its Health, Labor and Welfare Minister characterizing women as “child-bearing machines.” 230

Japan’s Employment Promotion Law, which became effective in 2007, addresses employment discrimination based on age in recruiting and hiring. It applies to old and young, as well as domestic and foreign, employees.

Japan signed the UN Convention on the Rights of Persons with Disabilities in 2007 and ratified it in January 2014. 231  The Act on the Elimination of Discrimination Against Persons with Disabilities, enacted in 2013, creates an obligation of reasonable accommodation in the public sector. 232

 THE RESPONSIBLE MANAGER: HONORING EMPLOYEES’ CIVIL RIGHTS

Managers must be diligent in preventing and correcting any unlawful discrimination either in the preemployment process or during employment. Legally astute managers recognize the value of a diverse workforce that reflects the company’s range of shareholders, customers, suppliers, and other stakeholders.

Management should develop a written policy that (1) clearly outlines discriminatory acts prohibited by federal, state, and local statutes, and (2) prohibits retaliation against employees who complain about discrimination. Employees should be advised that any form of discrimination is inappropriate. The policy should have an enforcement mechanism and should clearly state that violations of the policy will result in poor performance reviews or termination. Such a policy will not only curb discriminatory acts but, in the event of litigation, will also demonstrate that management diligently attempted to prevent such behavior.

Dating and romantic relationships between employees at a company can lead to discrimination and sexual harassment claims, particularly when there is a significant power and age gap between partners. Such relationships are very perilous. If the parties have a falling-out, the subordinate may claim that the relationship was not consensual and say that he or she feared adverse employment consequences for rebuffing the manager’s advances. To address this problem, certain firms have instituted a policy that allows a manager to become involved with a subordinate as long as the manager transfers to another job within or outside the company, so that he or she is not supervising or evaluating the performance of the subordinate involved. Yale University prohibits sexual relationships between teachers and undergraduate students and established a website entitled “Sexual Misconduct Response at Yale” 233  to address violations of its policies against all types of sexual misconduct. 234

The firm should also create an environment in which employees feel comfortable bringing complaints against fellow workers and supervisors. There should be at least two individuals in the company, a male and a female, to whom such complaints may be brought. Because supervisors are often the discriminators, an employee should not be required to first complain to his or her supervisor. Managers should not keep reports of harassment confidential, even if requested to do so by the employee. Each complaint should be thoroughly investigated, and, if necessary, the violator should be punished.

Although the establishment of a comprehensive policy is one way to prevent unlawful discriminatory practices, it is not sufficient in itself. Managers must also abide by the policy and comply with all federal, state, and local statutes prohibiting unlawful discrimination; supervisors should undergo training regarding such laws. 235  If management participates in discriminatory acts, the firm’s employees will have little incentive to abide by its policy against discrimination and will hesitate to bring a claim for discriminatory treatment.

It is crucial that employers do not retaliate against employees who have filed discrimination claims. Although employers often perceive a discrimination claim by an employee as an act of disloyalty, retaliation for such claims will make it more likely that the employer will be found liable by a jury or judge, even if the initial claim would not have supported liability.

Employers should also create nondiscriminatory policies and procedures for hiring new employees. The employer should avoid relying on word-of-mouth recruitment practices, which tend to reach a disproportionate number of persons of the same race or ethnicity as the employer’s current employees, and should use media designed to reach people in both minority and nonminority communities. When advertising vacant positions, employers should use a job-posting system that allows for an open and fair application process. The job advertisements themselves should not express a preference or limitation based on race, color, religion, gender, national origin, or age unless such specifications are based on bona fide occupational qualifications.

Employers should train employees who conduct interviews to ensure that they ask proper questions and use objective hiring criteria. Although federal laws do not expressly prohibit preemployment inquiries concerning an applicant’s race, color, national origin, sex, marital status, religion, or age, such inquiries are disfavored because they create an inference that these factors will be used as selection criteria. Such inquiries may also be expressly prohibited under state law. As a general rule, recruitment personnel should ask themselves, “What information do I really need to decide whether an applicant is qualified to perform this job?”

With respect to the ADA and religious practices, employers should be proactive and engage in an interactive process with employees requesting accommodation. If an employer explores every option but still cannot find a way to provide an accommodation, the employer should inform the individual and ask if he or she has any suggestions. Employers should create a paper trail to document the actions they took to find an accommodation.

Employers may also want to consider employment practice liability insurance (EPLI) to protect against discrimination claims. Areas of coverage typically include wage and hour, punitive damages, sexual harassment, discrimination, wrongful termination, breach of contract, invasion of privacy, emotional distress, libel or slander, benefits mismanagement, negligent compensation, promotion or hiring decisions, and third-party liability.

 A MANAGER’S DILEMMA: PUTTING IT INTO PRACTICE: CAN JOKES CREATE A HOSTILE ENVIRONMENT?

Catherine Van Order is a manager at National Eagle’s hangar at the Miami International Airport. The hangar’s workforce consists of eighty mechanics, including a small number of African Americans, Latinos, and white ex-strikers from Western Air Lines who are earning half as much as they earned from their old employer. National Eagle is struggling to regain the public’s confidence after two of its planes suffered fatal crashes. Although the airline is downsizing in two other southern cities, it wants to increase its business to Latin America and the Caribbean, so it has hired more staff at the Miami airport. Workers are assigned heavy workloads at low pay and must work with aging equipment in run-down facilities, leading to a great deal of tension at the Miami airport hangar.

Employees have tried to ease the tension by playing practical jokes on each other and making wisecracks. These jokes have included sexual and ethnic jokes along with comments about people’s appearance, including weight, and their religion. Employees posted cartoons depicting black mechanics as gorillas or starving Somalis on the bulletin board. When Van Order suggested to one of the mechanics that the joking was getting out of control, he told her that people were just making fun of stereotypes and that nobody was trying to be personally offensive to their coworkers.

Although no employees complained to her about the joking, Van Order issued a memo setting forth the company’s policy on discrimination and harassment. Several employees then told her that the memo had affected morale; without the joking, workers seemed tense and anxious, and were less productive. Within several weeks, the joking commenced again and escalated when a poster of a black basketball player with a mop on his head and a watermelon in his hand was posted in the locker room. After this incident, Van Order spoke to several African American workers about it, but they seemed reluctant to talk. She sensed that they were quiet for fear of either losing their jobs or becoming victims of hostile treatment by their coworkers. What should Van Order do?

 INSIDE STORY: The Social Network of Employment Discrimination

Job seekers everywhere use the Internet to pursue career opportunities. Employers have responded in kind by researching blogs and social networking websites like Facebook, Twitter, and LinkedIn to find out more about job applicants and employees. 236  A 2013  CareerBuilder.com  survey of more than 2,100 hiring managers and human resources personnel revealed that 39% were using social media networks to research applicants. 237  Of those, 43% reportedly decided not to extend offers of employment to applicants based on content found on social media networks.

This increased use of the Internet by employers has raised new concerns that employers may misuse information available on the Web when making employment decisions. Although an employment application submitted over the Internet may not reveal protected characteristics, such as religion, national origin, race, or sexual orientation, an employer may be able to discover this information by searching profiles available on social networking sites. An employer may also discover photos or writings related to an applicant’s religion, color, national origin, race, or sexual orientation. Even though it is often difficult for an employer to determine whether information obtained through the Internet is credible, employers still use this information to make adverse employment decisions.

Another concern is that an employer may violate discrimination laws by searching the Internet for information only about specific applicants, such as women or minorities. Even if an employer conducts Internet searches for all applicants, it may view certain behavior, such as drinking in public, differently based on the individual’s personal characteristics.

Employers may also use information obtained from the Internet to make adverse employment decisions about existing employees. There are numerous stories about employees who have been fired for content posted on their blogs or profiles on social networking sites. For example, a Florida sheriff’s deputy was fired after posting on his MySpace page that he was a heavy drinker and was fascinated with female breasts. 238  In 2008, New England Patriots cheerleader Caitlin Davis was fired when a photo surfaced on Facebook showing her holding a Sharpie next to a passed-out partygoer who had been covered in phallic symbols, swastikas, and the phrase “I’m a Jew.” 239  In 2011, a judge ruled that a first-grade teacher in New Jersey should be fired for a Facebook comment she made about her students: “I’m not a teacher—I’m a warden for future criminals!” The judge stated that this comment “demonstrated a complete lack of sensitivity to the world in which her students live.”  240

The Office of Federal Contract Compliance Programs (OFCCP) instituted a rule in 2006 to ensure that federal contractors do not discriminate against minorities and women who apply for jobs on the Internet. The rule requires all federal contractors to maintain records of Internet résumés viewed, the race and gender of applicants, and the identity of applicants who were hired. If an employer uses a search function to find qualified applicants, it must save information about the search, including when it was conducted, the criteria used, and the names of the applicants identified through the search. 241  In addition, as discussed in  Chapter 12 , certain Internet posts by workers about the terms and conditions of employment are protected collective action under the National Labor Relations Act.

In light of the trend toward researching employees and job applicants online, employees and applicants should assume that employers will read everything posted about them on the Internet. Indeed, certain employers have gone so far as to ask applicants to open their Facebook page during an interview or to provide their password, sparking new concerns. In response, a number of states have passed laws that prohibit employers from making such requests. 242  Employers trying to protect themselves should develop policies and procedures regarding the use of Internet searches to ensure that they will not be used in a discriminatory manner.