Chapter 34: Employment Discrimination

Business Law, Sixth Edition
© 2019 BVT Publishing. All rights reserved.
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Chapter 34:
Employment Discrimination

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Learning Objectives
• Describe laws prohibiting employment
discrimination.
• Discuss the provisions of Title VII of the
Civil Rights Act.
• Understand the categories of
discrimination.
• Recognize the defenses to discrimination.
• Explain age discrimination.
• Explain disability discrimination.
• Discern the aspects of harassment.

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34.0 In the News
Tesla employee's lawsuit levels sexism
accusations
http://bvtlab.com/F57M4
A female Tesla employee who still works at the electric
automaker contends she was discriminated against for
being a woman, and then penalized when she
complained to company officials.
• What federal laws apply to this case?
• What constitutes a hostile work environment?
• Is Tesla liable to Vandermeyden?
• What damages, if any, is she eligible for?

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34.1 Laws Prohibiting Employment
Discrimination (Slide 1 of 2)
• Two significant events in U.S. history
regarding discrimination:
– The abolition of slavery
– The civil rights movement
• Federal & state laws prohibiting
discrimination
• Judicial decisions prohibiting
discrimination

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34.1a Laws Prohibiting Employment
Discrimination (Slide 2 of 2)
Type Act of Congress
Race Civil Rights Act of 1866; Title VII of the Civil Rights Act of
1964
Color Title VII of the Civil Rights Act of 1964
Religion Title VII of the Civil Rights Act of 1964
National
Origin
Title VII of the Civil Rights Act of 1964; ; Immigration
Reform and Control Act of 1986
Sex Equal Pay Act of 1963; Title VII of the Civil Rights Act of
1964; Pregnancy Discrimination Act of 1978
Age Age Discrimination in Employment Act of 1967
Disability Americans with Disabilities Act of 1990
Genes Genetic Information Nondiscrimination Act of 2008

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34.2a Scope of Title VII
Employers engaged in interstate
commerce with 15 or more employees.
• Does not protect independent contractors.
• EEOC administers the provisions of Title VII.
– EEOC will investigate the claim.
– Attempt to reach a voluntary settlement.
– Issues “right to sue” letter.
– http://www.eeoc.gov
• Remedies

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34.2b Proving Discrimination
Under Title VII (Slide 1 of 2)
Intentional Discrimination –
Disparate treatment
– Plaintiff first shows a prima facie case
– Burden shifts to the employer
– If employer cannot offer proof of legitimate
reason, then plaintiff prevails.
– Burden shifts back to plaintiff to show
employer’s reason is mere pretext.

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34.2b Proving Discrimination
Under Title VII (Slide 2 of 2)
Unintentional Discrimination –
Disparate Impact
– Employment practice has adverse effect on a
protected class.
– Prima facie case – Four-Fifths Rule
– Employer must prove practice is job-related
and consistent with business necessity.
– Burden shifts back to plaintiff to show
employer’s reason is mere pretext.

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34.2b Critical Thinking
CASE: Price Waterhouse
In this mixed-motive case, the employer must
show that its legitimate reason, standing alone,
would have induced the employer to make the
same decision adverse to the interests of an
applicant or employee.
• Why is this termed a “mixed-motive” case?
• What remedy is appropriate for plaintiffs in Hopkins’
position? Is reinstatement appropriate? Are damages
appropriate? If so, when?

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34.2e Categories of Discrimination
• Title VII prohibits discrimination based on
race, color, and national origin.
• Title VII prohibits discrimination on the
basis of sex.
– Pregnancy Discrimination Act
– Equal Pay Act
• Title VII prohibits discrimination based on
an individual’s religious beliefs, practices,
and observances

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34.2e Critical Thinking
CASE: Brown
Questions whether an employee’s eating of cat
food was a religious belief under Title VII.
• Does the definition of a religious belief make
sense? Why?
• Is it possible that a personal religious creed
could qualify as a religious belief? If so, how?

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34.2f Defenses to Discrimination
• Seniority and Merit
• Bona Fide Occupational Qualification
– Not applicable to discrimination based on
race or color.
– Defense only applies in cases of disparate
treatment.
– Hooters Case: http://bvtlab.com/97hc8

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34.3a Age Discrimination
Age discrimination in employment Act
(ADEA)
• Protects discrimination against applicants
and employees who are at least forty
years of age.
• Employers engaged in interstate
commerce with 20 or more employees.
• ADEA has a bona fide occupational
qualification defense

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34.3b Disability Discrimination
Provisions of Americans with Disabilities Act
• Employers engaged in interstate commerce
with 15 or more employees
• Allows compensatory and punitive damages
Disability means:
• Physical or mental impairment that substantially
limits one or more of the individual’s life activities
• Has a record of such an impairment
• Regarded as having such an impairment.
- Reasonable Accommodation and Undue Hardship

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34.4a Theoretical Aspects of
Harassment
Quid pro quo sexual harassment
– Benefit relating to employment is offered to
employee
in exchange for sexual favors.
– Employee refuses to submit to request and suffers a
tangible job detriment.
Hostile environment sexual harassment
– Workplace is permeated with ridicule, discriminatory
intimidation, and insult sufficiently severe or
pervasive to alter conditions of victim’s employment,
creating an abusive working environment.

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34.4b Hostile Environment
Sexual Harassment
Two requirements to prove hostile
environment theory:
• Sexual conduct must be unwelcome.
• Offending behavior is so severe or
pervasive that it creates an intimidating,
hostile, or offensive working environment.

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34.4b Critical Thinking (Slide 1 of 2)
CASE: Zetwick:
When does hugging become harassment? Court
found that defendant’s regular “hugging” of
plaintiff could create a hostile or abusive
workplace, if it is “unwelcome” and “severe or
pervasive enough to alter the conditions of
plaintiff’s employment.” No “magic number” of
harassing incidents gives rise to liability”; need to
consider circumstances (viewed objectively and
subjectively), and cumulative effect of the
offensive conduct.

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34.4b Critical Thinking (Slide 2 of 2)
• Why does the court mention that the hugger
was a supervisor and not a co-employee of
the plaintiff? Is this significant? Why?
• Were both males and females hugged in the
same manner? What did the court say about
this aspect of the case?
• Defendants asserted that the hugging was
“friendly” and “socially acceptable.” What did
the court say about hugger’s intent and
whether others find the hugging normal?

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34.4c Employer Liability for Harassment
(Slide 1 of 3)
Employers are vicariously liable only for
those torts conducted by employees acting
within the scope of employment.
• Harassment by Supervisor
– Employer liability is based on agency
principles.
oVictim suffered a tangible job loss.
oDegree to which employer has created an anti-
harassment atmosphere

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(Slide 2 of 3)
• Harassment by Supervisor (cont.)
– Employer defense
oEmployer exercised reasonable care to
prevent.
oEmployer promptly corrected any
sexually harassing behavior.
oEmployee unreasonably failed to take
advantage
of preventive or corrective opportunities
provided
by the employer.

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(Slide 3 of 3)
• Harassment by Co-worker and Non-
employee
– Employer may be negligent regarding sexual
harassment if:
oEmployer knew or should have known of the
sexual harassment.
oEmployer failed to take immediate action to
stop the offending behavior.
– Employer is liable for harassment by
non-supervisors only if the employer is
negligent in controlling working conditions.

Chapter 34: Employment Discrimination

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Chapter 34: Employment Discrimination