Employment Discrimination

Chapter 17

Historical Movement to the Present Laws

• Historically, employers could discriminate on race, sex or other personal characteristics

• Jim Crow laws supported segregation & labor market discrimination

• National Civil Rights Movements in the 1960s began the change

• 1963 Equal Pay Act (first employment discrimination legislation)

• Title VII of the Civil Rights Act of 1964• 1972 Equal Employment Opportunity Act (created the

EEOC)• 1978 Pregnancy Discrimination Act• 1991 Civil Rights Act • 1990 Americans with Disabilities Act• EEOC established to help enforce these statutes• Discrimination in employment still exists – not as overt –

more subtle

Title VII of the 1964 Civil Rights Act

• Employers/unions with 15 or more employees/members are subject to the law

• CANNOT discriminate based on– Race (Whites also protected)– Color– Religion (reasonable accommodation of religious

practices w/o undue hardship on the employers)– Sex (does not apply to sexual preference or identity)– National origin (does not apply to noncitizens/aliens

employed or seeking employment is the U.S.) • Reverse discrimination (preferential treatment to

members of a protected class) is also illegal– See McDonald v. Santa Fe Trail (in text)

Some Examples re: Religion

• Employer has strict dress code to give company a certain ”look”. Code need not be modified to allow certain employees to wear religious garb, such as headdress. – However, if an employer does not have a strict code,

then cannot tell an employee NOT to wear religious garb. (There are exceptions in extreme situations.)

• Employer need not make other employees change their work schedule to accommodate the religious holiday preferences of an employee. – BUT if accommodations can be made at no cost, giving

opportunity of employees to switch work days, then only minimal cost is incurred.

• Baylor University, a Baptist school, may wish to hire only Baptists to teach in its theological seminary to train ministers. – However, it cannot require a math instructor to be

Baptist, since there is no specific religious purpose in teaching math.

Sexual HarassmentSex Discrimination Under Title VII

• Quid pro quo: - Unwelcome sexual advances; requests for sexual favors- Verbal or physical conduct of a sexual nature- Purpose: to promote, change condition of employment, salary, place on project, etc.- Submission is the basis for the 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

• Teresa Harris is a rental manager; her boss, Hardy, insults her in front of others--she is a target of sexual suggestions

• “You’re a woman, what do you know?” Called her a “dumb-ass woman.” “Go to the Holiday Inn to negotiate [her] raise” “What did you do, promise the guy . . . [sex] Saturday night?”

• Hardy asks women to get coins from his front pants pocket. He throws things on the ground; asks women employees to pick them up; makes sexual comments about clothing

• Harris quits & sues, claiming a “hostile work environment”

• Lower courts: Say there is no sexual harassment• U.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 Sexual Discrimination and

Same-Sex Discrimination

• Oncale v. Sundowner Offshore Services, Inc. (in text)• Male-on-male sexual harassment • Male worker sued his employer • Suffered verbal and physical abuse of sexual nature,

by other male workers• 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• Court says use common sense; Use sensitivity• Courts use the “reasonable person” standard – Would

“a reasonable person in the plaintiff’s position . . .” find the behavior “severely hostile or abusive?”

1967 Age Discrimination In Employment Act (ADEA)

• About 22% of discrimination claims, or 17,000/year, are in this category

• Prohibits discrimination in persons over 40

• All employers with 20+ employees must comply

• Applies to hiring, promoting, terminating

• May not force retirement

• May not indicate age preference in advertising

• May not require a physical exam as condition of continued employment (unless it is necessary for job performance)

• May not choose a younger worker because an older one will retire soon

• May not cut health-care benefits for workers over 65 because they are eligible for Medicare

Procedure for filing under Title VII or ADEA

• First Step: Must file with a state or federal EEO Office

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

• Sometimes state laws have further requirements

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

• EEOC agent hears both parties’ sides of the incident

• If no settlement, the EEOC informs the parties of the result of the investigation

• If 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)

• Sometimes the EEOC will sue the employer

• 75,000 complaints per year

• Takes about 1 year to resolve

• See Exhibit 17.2 – Usual Steps

Types of Discrimination Cases

• Imposing differential standards on employees• Illegal compensation differentials• Segregation in the workplace• Retaliation for complaints of discrimination is

prohibited• Constructive discharge due to harassment• Disparate treatment (intentional

discrimination)– See Burlington Industries, Inc. v. Ellerth

• Disparate impact (unintentional discrimination)– See EEOC v. Dial Corp.

Burlington Industriesv. Ellerth

• Ellerth worked for 15 months in sales for Burlington. She claimed that Slovik, a manager, made sexually offensive remarks, asked for liberties, & made threats to deny her of job benefits.

• She refused his advances. There was no retaliation against her. She never told anyone about the problem until lawsuit was filed.

• District Court granted summary judgment for Burlington; Appeals Court reversed. Burlington appealed.

Burlington Industries v. Ellerth

• HELD: Reversed and 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.

• Burlington may then raise defense that includes 1) that it exercised reasonable care to prevent or correct harassing behavior and 2) Ellerth unreasonably failed to take advantage of those opportunities or to avoid harm.

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 wasn’t 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 sausage-making 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.• Aan 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.

Machinchick v. PB Power

• Machinchick hired by PB Power in 1996 – develop new clients.

• Received “excellent” evaluations; promoted in 1998.• In December 2001, Knowlton became his new

supervisor.• In January 2002, PB changed tactic – to “hand-pick

employees whose mindset resides in the 21st Century.”• April 7, Knowlton e-mailed plans to “strategically hire

some younger engineers and designers” to execute new plan.

• April 9, he e-mailed PB’s human resources department, explaining Machinchick’s problems. April 17, Knowlton told Machinchick he was fired due to poor performance – ignoring PB’s policy that supervisors discuss problems with employees.

• Machinchick (age 63) was given no warning. Replaced by Betz (age 42). Machinchick sued for age discrimination.

• PB moved the case to federal district court.• Court granted summary judgment in favor of PB.

Machinchick v. PB Power

• Machinchick appealed. He presented prima facie case of age discrimination:Knowlton’s e-mail indicated intent to assemble a younger

workforce.Knowlton’s use of “age stereotyping remarks”, describing

Machinchick having “low motivation to adapt”, “inflexible”, “not adaptable,” possessing “business-as-usual attitude” are indirect references to age, saying employee needed to look “sharp” and was unable to “adapt” to change.

PB Power terminated Machinchick, retaining younger employee, Betz

Following first meeting with Knowlton, he was asked when he planned on retiring

• Burden is shifted to PB to show non-discriminatory basis for firing.

• HELD: Reversed and remanded for trial

Defenses Under Title VII

• Early Retirement Plans (which encourage voluntary early retirement)

• Business Necessity: related to job– 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?

Remedies(Courts Have Broad & Flexible Powers)

• Actual and compensatory damages• Equitable remedies• Place the plaintiff in the position he/she would have

enjoyed but for the discrimination• Back Pay – to the date the discrimination began (can

include fringe benefits)• Front pay – if employee was unlawfully fired• Damage to career; inconvenience; loss of reputation

(not available in ADEA cases)• Injunction• Reinstatement/promotion/hiring• Punitive damages (capped at maximum of $300,000

for employers with more than 500 employees; not available in ADEA cases)

• Emotional distress/medical treatment• Attorneys fees, court costs

Affirmative Action Programs

• Purpose? To Remedy past discriminatory practices

• Correct underrepresentation

• Adopted ONLY on race or sex (not color, religion, national origin or age)

• Pres. Johnson’s Executive Order 11246 in 1965: government contractors must adopt affirmative action

• Companies may voluntarily adopt a plan under Executive Order 11246

• Programs are monitored and enforced by the Office of Federal Contract Compliance Programs (OFCCP)

• Courts may require affirmative action as a remedy in discrimination case

“Employment Discrimination in Europe and Japan”

• These countries are behind the U.S. in treatment of women and minorities

• Europe: Employees can be forced to retire between the ages of 55 and 65

• Japan: First sexual harassment case in 1992--remedy was for only $12,500, but considered a landmark case

• Europe: Immigrants treated as 2nd-class citizens, i.e. immigrants in France face blatant discrimination in job market

• Japan: Women traditionally have been kept out of higher-level jobs and are not always paid as much for equal work

• Both: Generous maternity benefits encourage employers not to hire women because of high costs of such benefits

1990 Americans With Disabilities Act (ADA) and the 1973 Rehabilitation Act

• Applies to all employers with 15+ employees

• Cannot discriminate against a person with a disability that “limits a major life activity,” or has a record of or regarded to have ”an impairment” – Manual tasks– Walking/seeing– Hearing/speaking– Breathing/learning– Working

• Examples of disabilities:– History of alcohol or drug

abuse– Disfigurements– Have had heart attacks– Must use a wheelchair– Are hearing- or vision-

impaired– Fear of heights NOT

covered– Being left-handed NOT

covered

Gretillat v. Care Initiatives

• Gretillat worked in food service at nursing home.

• At times she had to stoop, kneel, crouch or crawl as part of physical movements to her job.

• After 10 years, began to suffer pain in right knee – hard to walk. Supervisor said she no longer had to make rounds -- reduced her walking.

• Three years later, she had knee replacement surgery. After surgery, she had pain from standing long periods of time. Could not squat, kneel, crouch, crawl, etc.

• Manager said to resign or be terminated, as she did not have the physical requirements for her job.

• She resigned; sued for disability discrimination and failure to accommodate her disability.

Gretillat v. Care Initiatives

• Trial court held for nursing home. • Gretillat appealed.• HELD: Affirmed. Care Initiatives

entitled to summary judgment.• Although walking and standing are

“major life activities,” limited standing ability does not amount to a disability.

• Medical diagnosis of an impairment does not qualify as a disability per se.

Compliance Process Under ADA

• Employers must make a “reasonable accommodation” BUT need not take on an “undue hardship”– See Issue Spotter:

“Accommodating Disabilities”

• Special equipment & training for the disabled? Yes

• Modified work schedules? Yes

• Redesign the entire assembly line to accommodate wheelchair employees? No

• Readers for the blind? Yes• Completely revamp a

computer system? No

ADA Enforcement Guidance: re: Employment Disability-Related Questions & Medical Examinations

• ADA prohibits employers asking disability-related questions or requiring medical exams before the job is offered

• What you may 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

• Other Questions: Can you ask?– Age? No– Computer skills if applicant won’t use them? No– Married? Children? No– Sexual Preference? No– Been in therapy? No

Questions That Are IllegalDuring A Job Interview

• Do you have AIDS?• Have you ever been treated for mental health

problems?• Have you ever filed for workers’ compensation

benefits?• Do you have a disability that would interfere

with your 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?

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