Employment Discrimination Chapter 16 Meiners, Ringleb and Edwards The Legal Environment of Business, 13 Edition ©2018 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password- protected website or school-approved learning management system for classroom use. 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. • Wome ...

1. Employment Discrimination
Chapter 16
Meiners, Ringleb and Edwards
The Legal Environment of Business, 13 Edition
©2018 Cengage Learning®. May not be scanned, copied or
duplicated or posted to
a publicly accessible website, in whole or in part, except for use
as permitted in a
license distributed with a certain product or service or otherwise
on a password-
protected website or school-approved learning management
system for classroom
use.
Title VII of the 1964 Civil Rights Act
subject to the law
Native; Native Hawaiian or other Pacific Islander; and Asian

2. w/o
undue hardship on employer/employee )
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
affecting an
individual through certain actions by employers
discriminatory
practices (discussed later)
a protected
class) is also illegal
cDonald v. Santa Fe Trail: African-American employee
reprimanded, but kept job; the white employee was fired. Held:
Illegal under Title VII.
l orientation
height or weight

3. 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:
re Muslim women who wear scarves due to
religious practices not acceptable.
accommodate; simply barred all women in that category.
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.

4. 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;

5. 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.

6. 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.

7. • Title VII forbids behavior so offensive as to “al ter 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

8. 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):

9. • 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

10. 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.)

11. Retaliation for Expression of Rights
complaint about discrimination, whether employee
is right or wrong, is prohibited.
ate will be punished.
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

12. 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.
ent 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.”
front desk
applicant “look” before any hiring.
Cullinan.

13. Later, Heartland alleged poor job performance to justify the
termination.
procedure –
conducting investigation, looking at previous disciplinary
record (Lewis
had none), etc.
Key Defense for Employers
to reduce
likelihood of discrimination cases.
Without policies, an employer may have a more difficult
defense.
employer may be
liable under vicarious liability.
to make
complaints about perceived discrimination.
if shows lack
of good-faith efforts to prevent discrimination.

14. Burlington Industries v. Ellerth
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.
Appeals Court
reversed. Burlington appealed.
District Court may
decide if it is appropriate to allow Ellerth to amend her pleading
to claims of a
hostile work environment.
correct harassing
behavior and
asonably failed to take advantage of
those
opportunities or to avoid harm.
Effective company policy
-house

15. protections
against discrimination & harassment:
lace.
communication changes.
cies against romances between
employees.
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

16. 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.
the actual sausage-lifting jobs.
current employees were doing and had no rest breaks.
WTS was implemented.

17. that for men in 2 of the 3 years before Dial implemented the
WTS.
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

18. • 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
discriminatory practices
color, religion, national origin or age)
e monitored and
enforced by the Office of Federal
Contract Compliance Programs
(OFCCP) in Dept. of Labor

19. 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

20. 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

21. 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
-employment Disability-
Related Questions
and Medical Examinations
ADA prohibits employers asking disability-related questions
or requiring medical
exams before the job is offered.
the job.
questions may be
asked about reasonable accommodations.

22. documentation of a
disability and 2) more questions about reasonable
accommodations.
must be given to all
employees in same job category.
– not to screen
out employees
with potential health problems.
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

23. 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 –

24. 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
out people

25. with
disabilities
rather than
currently alcohol abusers
-positive
asking if have
ability to perform the job
their disabilities
does not have
a bathroom to accommodate wheelchairs
Employment DiscriminationTitle VII of the 1964 Civil Rights
ActTitle VII of the 1964 Civil Rights Act ReligionPregnancy
DiscriminationSEXUAL HARASSMENTHarris v. Forklift
SystemsReverse Sex and Same-Sex DiscriminationAge
DiscriminationDiscrimination Based on Military ServiceGenetic
Information DiscriminationBringing a Discrimination
ChargeElements of a Case and �Forms of Discrimination
Retaliation for Expression of Rights Lewis v. Heartland Inns of
America, L.L.C. Lewis v. Heartland Inns of America, L.L.C.
Key Defense for Employers Burlington Industries v. Ellerth
Effective company policyDisparate ImpactEEOC v. Dial Corp.
EEOC v. Dial Corp. Statutory Defenses Under Title VII
Remedies in Discrimination CasesAffirmative Action
ProgramsDisability DiscriminationLevel of DisabilityPre-
employment GuidanceKeith v. County of OaklandKeith v.
County of Oakland Illegal Questions During A Job

26. InterviewViolations by Employers
Chapter 16-Assignments and Objectives1.htmlObjectives-
Chapters 16
6.1 Read, list and discuss the laws that apply to Employment
Discrimination Cases, especially Title VII of the Civil Rights
Act of 1964, and its amendments.
6.2 Apply the provisions of Title VII to the assigned
discrimination cases and memorize how and when these laws
originated. I
6.3 Identify and list the protected classes in employment
discrimination cases and list the steps in the process in bringing
a discrimination charge.
6.4 Identify and list the key defenses for employers who are
charged with discrimination.
6.5 Read and describe the provisions of the American With
Disabilities Act and how the ADA relates to employment
discrimination.
6.6 List and memorize the steps an employer is expected to
take to provide reasonable accommodations to an employee with
a disability.
This module aligns well with general objectives 1, 2, 3, 4, 5 and
7.
The important case for Chapter 16 is - Keith v. County of
Oakland. This case is an excellent discussion of what
reasonable accommodations are expected of a business to allow
them to hire employees with disabilities. This is a very
important area of the law and something with which businesses
have to comply.Readings
Read Chapter SixteenAssignments
Chapter 16 Assignment
Do case question #3 on page 406, Friedman v. Cal Permanente
Medical Group, 102 Cal.App.4th 39, Ct. App., Calif (2002).
This is a good case regarding what actually is employment
discrimination. Mr. Friedman sued Cal Perm for employment

27. discrimination based on religion because he was a vegan. Tell
me what the court decided and why. What do you think?
Be sure to review the rubric for this assignment. Chapter 16
Rubric
Submission InstructionsThe Chapter 16 Assignment has a due
date. The due date for the Chapter 16 assignments July 25th and
I will not accept it late. Be sure to upload your files into the
appropriate Dropbox. You can access the dropboxes by going
to Tasks in the top menu bar and selecting Dropboxes from the
dropdown menu.