CHP 16 Q

Employment Discrimination

Chapter 16

Meiners, Ringleb and Edwards

The Legal Environment of Business, 13 Edition

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Title VII of the 1964 Civil Rights Act Employers/unions with 15 or more employees/members are

subject to the law Protected Classes (cannot discriminate based on):  Race Black or African American; White; American Indian or Alaska

Native; Native Hawaiian or other Pacific Islander; and Asian  Color Shade of skin

 Religion (reasonable accommodation of religious practices w/o undue hardship on employer/employee )

 Sex (does not apply to sexual preference or identity)  National Origin Example: Require English spoken at all times may be

discriminatory unless for reasons of safety, productivity or legitimate job requirement Continued

Title VII of the 1964 Civil Rights Act May bring an action for more than one type of discrimination affecting an

individual through certain actions by employers Affirmative Action Programs designed to remedy past discriminatory

practices (discussed later) Reverse discrimination (preferential treatment to members of a protected

class) is also illegal  McDonald v. Santa Fe Trail: African-American employee

reprimanded, but kept job; the white employee was fired. Held: Illegal under Title VII.

Many states and cities have expanded Title VII protections  Prohibition against discrimination based on sexual orientation  San Francisco prohibits employment discrimination based on

height or weight

Religion • Balance between “reasonable accommodation” vs. “undue hardship.” Ex:

Employer has strict dress code to give company a certain “look.” • Law still evolving in this regard.

• If an employer does not have a strict code, then cannot tell an employee not to wear religious garb.

• There are exceptions to accommodations, especially for safety reasons.

• EEOC v. Abercrombie & Fitch:  Refusing to hire Muslim women who wear scarves due to

religious practices not acceptable.  Scarves violated company dress code, but company did not

accommodate; simply barred all women in that category.  Religious practices generally may not be a factor in

employment decisions. • Employer need not make other employees change their work schedules to

accommodate the religious holiday preferences of an employee. But if accommodations can be made at no cost, such as giving employees opportunity to switch work days, then only minimal cost is incurred.

Pregnancy Discrimination

• Title VII was amended by the Pregnancy Discrimination Act. • Cannot discriminate against women because of pregnancy, childbirth or

related medical conditions. • Women must be treated the same for all employment purposes including

fringe benefit programs. • Examples:

– Denying a woman a job, assignment or promotion because she is pregnant or has children

– Requiring a pregnant woman to go on leave, when she can still do her job – Treating maternity differently than other leaves for temporary disabilities – Discriminating re: fringe benefits, such as health insurance, that discourages

women of childbearing age from working

SEXUAL HARASSMENT

Quid Pro Quo

• Unwelcome sexual advances; requests for sexual favors

• Verbal or physical conduct of a sexual nature

• Submission plays a role in employment decision

• Promise of reward or threat of punishment in exchange for providing sexual favors

Hostile Environment

• Discussing sexual activities

• Commenting on physical attributes

• Unnecessary touching or gestures; crude, demeaning, offensive language

• Displaying sexually suggestive pictures

• Trivial, isolated incidences usually do not qualify as harassment

Harris v. Forklift Systems

oTeresa Harris was a rental manager; her boss, Hardy, insulted her in front of others. She was a target of sexual suggestions and abuse.

o“You’re a woman, what do you know?” Called her a “dumb-ass woman.” oSaid let’s “Go to the Holiday Inn to negotiate [your] raise;” o“What did you do, promise the guy . . . [sex] Saturday night?” oHardy asked women to get coins from his front pants pocket and threw

things on the ground and told women employees to pick them up; makes sexual comments about clothing.

oHarris quits & sues, claiming a “hostile work environment.” oLower courts: Say there is no sexual harassment. oU.S. Supreme Court Reverses: “Employee’s psychological well-being is

relevant to determine if the environment is abusive and has a discouraging effect on the employee’s staying on job.”

Reverse Sex and Same-Sex Discrimination

• Oncale v. Sundowner Offshore Services, Inc. • Male-on-male sexual harassment. Male worker sued his employer claiming

he suffered verbal and physical abuse of sexual nature by other male workers.

• Supreme Court held: Same-sex harassment is prohibited • Prohibition of sexual harassment is not based on asexuality or androgyny in

the workplace. • Title VII forbids behavior so offensive as to “alter the ‘conditions’ of the

victim’s employment.” • Distinguish between simple teasing or roughhousing vs. conduct that is

severely hostile or abusive. • Use common sense and be sensitive to situations. • Would “a reasonable person in the plaintiff’s position . . .” find the behavior

“severely hostile or abusive?”

Age Discrimination o1967 Age Discrimination In Employment Act (ADEA) oAbout a quarter of discrimination claims are in this category oProhibits discrimination in persons over 40 oAll employers with 20+ employees must comply oApplies to hiring, promoting, terminating oMay not

• Force retirement • Require older works to pass physical exam as a condition of continued

employment • Indicate age preference in advertising such as “Young, Dynamic Person

Wanted” • Require a physical exam as condition of continued employment (unless

necessary for job performance) • Choose a younger worker because an older one will retire soon • Cut health-care benefits for workers over 65 because they get Medicare

Discrimination Based on Military Service

• Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994

• Based on person’s membership in or “obligation to perform service in a uniform service . . .”

• It is: Illegal for employer to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment.”

• Straub v. Proctor Hospital case: • Hostility to a member of the military was improper and is a tort

under federal law. • Is a form of discrimination that violates EEOC requirements.

Genetic Information Discrimination

• Genetic Information Nondiscrimination Act (GINA of 2009) • Illegal to discriminate in employment based on genetic information • Genetic tests or those of person’s family member (including medical history):

• May not be obtained by employer • May not be used in any way re: suitability for employment

• Illegal for person to suffer harassment or retaliation • EEOC enforces statute • Same procedure as for Title VII

Bringing a Discrimination Charge

o Amended by Lily Ledbetter Fair Pay Act of 2009

o First Step: Must file with a state or federal EEOC Office

o Under federal law, within 180 (states usually extend to 300) days of alleged discrimination event

o Sometimes state laws have further requirements

o Dubious claims can be dismissed

o EEOC then notifies the employer of the case & investigates the claim

oEEOC agent hears both parties’ sides of the incident

oIf no settlement, the EEOC informs the parties of the result of the investigation

oIf the EEOC finds merit with the complaint, it issues a right-to- sue letter to the employee (in order to bring the action in federal court)

oSometimes the EEOC will sue an employer

o100,000 complaints per year

Elements of a Case and Forms of Discrimination

• For court to take a case. 1. Plaintiff must establish a Prima Facie Case 2. Burden then shifts to defendant to present evidence that

claim is untrue 3. After employer offers non-discriminatory reason for

employment decision, the burden shifts back to plaintiff to show that defendant had illegal motives. Two basic kinds of discrimination:

• Disparate treatment (intentional discrimination) • Disparate impact/adverse impact (unintentional discrimination but the

effect is discriminatory. Proof of intent not required.)

Retaliation for Expression of Rights

Retaliation against an employee making a complaint about discrimination, whether employee is right or wrong, is prohibited.

Employers who retaliate will be punished.

This occurs in about 1/3 of discrimination complaints that are filed.

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

oBrenda Lewis began working for Heartland Inns in July 2005. Successfully filled several positions. Was promoted; received two merit pay increases; mangers praised her work and the “good impression” she made on customers.

oAfter promoted in December 2006, Director of Operations, Barbara Cullinan, saw Lewis for the first time. Told Lewis’s supervisor she didn’t think Lewis was a “good fit” for front desk – lacked “Midwestern girl look.” Said front desk girl should be “pretty” and Lewis was not.

oJanuary 2007, Lewis’s supervisor refused to remove Lewis from front desk. That supervisor was fired. Cullinan then met with Lewis to interview her for position she already held and told here there must be a 2nd interview – never happened.

oLewis was fired. She sued for violation of Title VII. oContended she was terminated for not conforming to sex stereotypes & in

retaliation for opposing discriminatory practices. District court granted summary judgment for Heartland Inns. Lewis appealed.

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

HELD: Reversed and remanded for further proceedings. Lewis presented sufficient evidence to make a prima facie case on her

claims for sex discrimination and retaliation. S. Ct. has said cases of sex discrimination do not compel a women to prove that men were not subjected to same challenged discriminatory conduct. For instance: “employer who discriminates against a women because they won’t wear dresses, or make-up, engages in sex discrimination, because it has to do with victim’s sex.” Heartland had video equipment so Cullinan could inspect a front desk

applicant “look” before any hiring. Termination letter to Lewis relied on January 23 meeting with Cullinan.

Later, Heartland alleged poor job performance to justify the termination. Heartland did not follow its own written termination procedure –

conducting investigation, looking at previous disciplinary record (Lewis had none), etc.  Ample evidence to support Lewis’s claims.

Key Defense for Employers

Employer should have a clear, effective policy and procedures to reduce likelihood of discrimination cases.

Without policies, an employer may have a more difficult defense.  If manager (agent) is involved with wrongful termination, employer may be

liable under vicarious liability. Employer must have effective procedure to allow employees to make

complaints about perceived discrimination. Greater likelihood of punitive damages imposed on employer if shows lack

of good-faith efforts to prevent discrimination.

Burlington Industries v. Ellerth Ellerth worked for 1sexually offensive remarks, asked for liberties, & made

threats to deny her of job benefits. She refused his advances. There was no retaliation 5 months in sales for Burlington. She claimed that Slovik, a manager, made against her. She never told anyone about the problem until she quit and sued. District Court granted summary judgment for Burlington. Appeals Court

reversed. Burlington appealed. HELD: Reversed & case remanded back to District Court. Ellerth focused her lawsuit on quid pro quo claims. The District Court may

decide if it is appropriate to allow Ellerth to amend her pleading to claims of a hostile work environment. ER may then raise defense that includes

1) That employer exercised reasonable care to prevent or correct harassing behavior and 2) The employee unreasonably failed to take advantage of those

opportunities or to avoid harm.

Effective company policy To claim that employee failed to take advantage of in-house protections

against discrimination & harassment:  Firm must have credible program in place.

Knowledgeable person or staff in place to hear complaints Process is secure and separate from normal internal communication changes. Employees believe program is trustworthy. To further reduce sexual harassment claims:  Some companies have policies against romances between

employees.  What starts as consensual may end badly.  Result can be claim of harassment

Disparate Impact • Employer used a decision rule that caused discrimination

against a person or persons in a protected class status. • The discrimination may have been unintentional. • Effect of employer’s policy was to limit employment

opportunities for a person or group of persons. • Practices appear neutral on their fact

• But have a disproportionately adverse impact on employees of a protected class.

EEOC v. Dial Corp. • Workers at Dial plant needed to lift 35 lbs. of sausage at a time to a height

from 30 to 60 inches. • Doing this over and over meant injuries to some workers. • Company began a Work Tolerance Screen (WTS) test for potential

employees. Candidates had to show strength ability. • Usual work force was ½ men and ½ women. • After WTS introduced, number of women hired dropped to 15%. • One applicant took test, passed it, but was not hired. • She complained to EEOC. • EEOC brought suit on behalf of 54 women who applied at Dial and were

rejected despite passing WTS. • Trial Court said Dial did not demonstrate that WTS was a business necessity. • Awarded back pay to women ranging from $920 to $120,000. • Dial appealed.

EEOC v. Dial Corp.

HELD: Affirmed. Expert testimony indicated that WTS was more difficult than

the actual sausage-lifting jobs. In WTS, the applicants had to perform 4x as many lifts as the

current employees were doing and had no rest breaks. Dial claimed WTS resulted in decreased injuries. However, sausage plant injuries started decreasing before

WTS was implemented. And the injury rate for women employers was lower than

that for men in 2 of the 3 years before Dial implemented the WTS. Defense did not prove that WTS was related to the specific

job and the required skills and physical requirements of the position.

Statutory Defenses Under Title VII • Business Necessity: job related

• Physical requirements/lifting boxes? • Flight attendants must be certain heights?

• Professionally-Developed Ability Tests • Must predict work ability

• Bona Fide Seniority or Merit System • Cannot take away seniority or merit from some workers, even

though applied discriminatorily in the past • BFOQ: Bona Fide Occupational Qualification

• Only female guards at women’s prisons? • Male models for female clothing?

• Early Retirement Plans (which encourage voluntary early retirement)

Remedies in Discrimination Cases • Actual and compensatory damages • Equitable remedies -- Injunction • Place the plaintiff in the position he/she would have enjoyed but for the

discrimination • Back Pay – to the date the discrimination

• Employees must mitigate damages by seeking other work

• Front Pay – if employee was unlawfully fired • Compensatory damages for things such as emotional distress/medical

treatment, loss of reputation • Reinstatement/promotion/hiring • Attorneys fees, filing fees, expert witness fees, etc. • Punitive damages (capped from $50,000 to $300,000 depending on firm

size)

Affirmative Action Programs Purpose? To Remedy past

discriminatory practices Correct underrepresentation Adopted ONLY on race or sex (not

color, religion, national origin or age) Programs are monitored and

enforced by the Office of Federal Contract Compliance Programs (OFCCP) in Dept. of Labor

Courts may require affirmative action as a remedy in discrimination cases.

• Executive Order 11246 in 1965: government contractors must adopt affirmative action

• $50,000 in federal contracts & 50 or more employees have to have written affirmative action program.

• Workforce analysis: For each job in the organization

• Underutilization analysis: Comparing % of minorities & women in community in each job category with % employed by contractor

Disability Discrimination o1990 Americans With Disabilities Act

(ADA) and the 1973 Rehabilitation Act

oCompliance is in the same way discrimination suits are brought under Title VII – file with EEOC

oApplies to all employers with 15+ employees

oPrima Facie Case: 1) Individual has disability within meaning of the statute 2) Employer knew of disability 3) Could perform essential function of job with reasonable accommodation 4) Employer refused to accommodate

oCannot discriminate against a person with a disability that “limits a major life activity,” or has a record of or regarded to have ”an impairment”

Examples: Major manual tasks; Walking/seeing; Hearing/speaking; Breathing/learning; Working

oExamples of disabilities •History of cancer; Severe disfigurements; Have had heart attacks/cancer; Must use a wheelchair; Are hearing- or vision- impaired. Some things not covered: Fear of heights not recognized disability; Being left-handed not covered

Level of Disability • ADA cases involve individual evaluation of circumstances of what

constitutes a disability in relationship to particular employment. • Disabilities are major life condition. • Tough standard to meet. • Partially impaired: Need not mean person is considered disabled • For those disabled, employers need only make a reasonable

accommodation. • Employers need not retain employees who can no longer perform their

jobs. • Ex: One dock worker over 400 lbs. was dismissed – morbid obesity is not

an impairment. –He could not go up and down ladders as needed. –Could not perform the job

Pre-employment Guidance See ADA Enforcement Guidance: Pre-employment Disability-Related Questions

and Medical Examinations ADA prohibits employers asking disability-related questions or requiring medical

exams before the job is offered. What you may and may not ask of applicants must relate to the job. If disability is obvious or applicant volunteers information, questions may be

asked about reasonable accommodations. Once a job offer is made, an employer may ask 1) for documentation of a

disability and 2) more questions about reasonable accommodations. If physical exam is given to new employees, similar exams must be given to all

employees in same job category. Results must be kept confidential. Exams must be related to ability to do the job – not to screen out employees

with potential health problems. When applicant is qualified for employment, may need a professional

assessment of limitations and accommodations.

Keith v. County of Oakland • Nicholas Keith has been deaf since birth; cannot speak verbally but can

communicate using American Sign Language (ASL). Applied for employment as lifeguard.

• Took and passed county’s lifeguard training. Head of hiring, Stavale, approved employment subject to accommodation Keith requested, the presence of an ASL interpreter at staff meetings

• Keith passed a physical exam, but physician said Keith would require constant accommodation. A consultant was dubious about Keith’s ability to perform, but had no experience about ability of deaf people as lifeguards

• Stavale was sure Keith was fine. Gave accommodation plan. • Consultant was concerned the plan might not work. • Offer of employment was withdrawn. • Keith sued for disability discrimination. • Trial Court: Summary judgment to County. Keith appealed.

Keith v. County of Oakland • HELD: Reversed and remanded. Keith is disabled under the ADA. • Issues: Whether Oakland County made an individualized inquiry. Is Keith

qualified for the position with reasonable accommodation?” • People with disabilities “ought to be judged on basis of their abilities . . . not

judged . . . based on unfounded fear, prejudice, ignorance or mythologies..” • ADA requires employers to make decisions that are NOT based on

stereotypes and generalizations. • There is evidence that jury could find he can communicate effectively

despite his deafness. He can adhere to 10/20 standard of zone protection – scanning technique. Scan in 10 seconds; reach a part of their zone in 20 seconds.

• Ability to hear not needed to perform essential lifeguard functions. • He is “otherwise qualified” to perform the job.

Illegal Questions During A Job Interview • Have you ever been treated for mental health problems? • Have you ever filed for workers’ compensation benefits? • Do you have disability to interfere with ability to perform the job? • How many sick days were you out last year? • Have you ever been unable to handle work-related stress? • Have you ever been treated for drug addiction or drug abuse?

• Past addiction is a disability; current use of illegal drugs are not. • Alcoholism is protected disability – applicant may not be asked re: drinking habits (can

ask if person has been arrested for DUI).

• Other Questions: Can you ask? • Age? No • Married? Children? No • Sexual Preference? No • Been in therapy? No

Violations by Employers Using standardized employment tests that screen out people with

disabilities

Refusing to hire applicants due to history of alcohol abuse rather than currently alcohol abusers

Rejecting a job applicant because he/she is HIV-positive

Asking job applicants if they have disabilities, rather than asking if have ability to perform the job

Limiting advancement opportunities for employees due to their disabilities

Not hiring a person with a disability because the workplace does not have a bathroom to accommodate wheelchairs