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Chapter Twenty one Employment Discrimination
Being an employer was so much easier 100 years ago. Managers
could use almost any criteria for hiring, promoting, and firing
employees. Today, employers’ decision-making powers are
restricted by both federal and state laws, many of which are
discussed in this chapter.
The right of the employer to terminate an employment
relationship was originally governed almost exclusively by the
employment-at-will doctrine, discussed in the first section of
this chapter. The second section discusses the constitutional
provisions that affect an employer’s ability to hire and fire
workers.
The following six sections discuss each of the major pieces of
federal legislation designed to prohibit discrimination in
employment; these acts are discussed in the order of their
enactment. The ninth section discusses the increasingly
controversial subject of affirmative action. Global dimensions
of employment discrimination are discussed in the final
section.Critical Thinking About The Law
You will soon be a businessperson and may be responsible for
hiring, promoting, and firing people. When you hold this
position, you need to be aware of federal and state laws that
prohibit discrimination in employment. Why do you think the
government has prohibited discrimination in employment? What
ethical norm does the government emphasize by prohibiting
discrimination in employment? The government seems to
emphasize justice, in the sense that it wants all human beings to
be treated equally, regardless of class, race, gender, age, and so
on. Reading the following case example and answering the
critical thinking questions will sharpen your thinking about
laws prohibiting employment discrimination.
Tom, Jonathan, and Bob were hired to work as executive
secretaries at a major corporation. The other secretaries for the
corporation were surprised that three men were hired, because
no man had ever before been hired as a secretary at the
corporation. All secretaries were required to type 20 five-page
reports each day in addition to completing work for their
respective departments. After the male secretaries had been
working at the corporation for approximately one month, they
received pay raises. None of the female secretaries received
raises. When the women asked the manager why the male
secretaries had received raises, the manager claimed that the
men were performing extra duties and consequently received
raises.
1. The manager claimed that the men received raises because
they were performing extra duties. Can you identify any
potential problems in the manager’s response?
Clue: What words or phrases are ambiguous in the manager’s
response?
2. The female secretaries decided to bring a suit against the
corporation. They claimed that they did not receive raises
because of their gender. Assume that you are a lawyer and the
female secretaries have come to you with their complaint. After
talking with the secretaries, you realize that you need some
additional information. What additional information might be
helpful in this case?
Clue: The female secretaries claimed that the male secretaries
received raises because they are male. Can you think of any
alternative reasons why the men might have received raises?
3. You discover only one case regarding equal pay that was
decided in your district. In this case, both men and women
performed hard labor in a factory, but only men received offers
to work during the third shift. Those employees who worked the
third shift received an additional $30 per hour. The women in
this factory claimed that they were not asked to work the third
shift because of their gender. The factory argued that the
women who worked at the factory were not physically strong
enough to endure the work of the third shift. The court ruled in
favor of the women. Do you think that you should use this case
as an analogy? Why or why not?
Clue: How are the two cases similar? How are they
different?The Employment-at-Will Doctrine
In all industrial democracies except the United States, workers
are protected by law from unjust termination. The traditional
“American rule” of employment—the employment-at-will
doctrine—has been that a contract of employment for an
indeterminate term is terminable at will by either party. Thus,
an employee who did not have a contract for a specific length of
time could be terminated at any time, without notice, for any
reason. For example, Melissa Nelson, a dental assistant, was
fired from her job because her employer found Ms. Nelson
“irresistible” and feared he might try to have an extramarital
affair with her.1
1 Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 66
(Iowa 2013).
employment-at-will doctrine
A contract of employment for an indeterminate term is
terminable at will by either the employer or the employee; the
traditional American rule governing employer–employee
relations.
This doctrine has been justified by the right of the employer to
control its property and on the grounds that it is fair because
both employer and employee have the equal right to terminate
the relationship. Some question the latter justification because
the employer usually can replace a terminated employee,
whereas it is not equally easy for the employee to find a new
job. Thus, the employment-at-will doctrine places the employer
in a position to treat employees arbitrarily.
The doctrine has been slowly restricted by state and federal
legislation, as well as by changes in the common law. One of
the first laws to restrict the employer’s right to freely terminate
employees was the National Labor Relations Act (discussed
in Chapter 20), which has reduced the number of employees
covered by the employment-at-will doctrine. This reduction has
occurred because the act gives employees the right to enter into
collective bargaining agreements, which usually restrict the
employer’s ability to terminate employees except for “just
cause.” Employees covered by these agreements are thus no
longer “at-will” employees.
The doctrine has also been restricted by common-law and state
statutory exceptions, which fall into three categories: implied
contract, violations of public policy, and implied covenant of
good faith and fair dealing. In some states, the courts find that
an implied contract may arise from statements made by the
employer in advertising the position or including them in an
employment manual. For example, sometimes a company
provides an employment manual delineating the grounds for
termination but not containing any provision for termination “at
will.” Under such circumstances, if the court finds that the
employee reasonably relied on the manual, the court will not
apply the employment-at-will doctrine and will allow
termination only for the reasons stated in the manual. Thirty-
seven states and the District of Columbia recognize this
exception.
The public policy exception prohibits terminations that
contravene established public policy. “Public policy” varies
from state to state, but some of the terminations commonly
deemed unlawful include dismissals based on actions “in the
public interest,” such as participation in environmental or
consumer protection activities, and dismissals resulting from
whistleblowing. Many states have also cut away at the
employment-at-will doctrine with laws that specifically prohibit
the termination of employees in retaliation for such diverse
activities as serving jury duty, performing military service,
filing for or testifying at hearings for workers’ compensation
claims, whistleblowing, and refusing to take lie- detector tests.
A total of 43 states accept the public policy exception.
public policy exception
An exception to the employment-at-will doctrine that makes it
unlawful to dismiss an employee for taking certain actions in
the public interest.
Eleven states recognize the implied covenant of good faith and
fair dealing exception. This theory holds that every employment
contract, even an unwritten one, contains an implicit
understanding that the parties will deal fairly with one another.
Because there is no clear agreement on what constitutes “fair
treatment” of an employee, this theory is not often used.
implied covenant of good faith and fair dealing exception
An exception to the employment-at-will doctrine, based on the
theory that every employment contract, even an unwritten one,
contains the implicit understanding that the parties will deal
fairly with each other.
Many federal laws also restrict the employment-at-will doctrine.
Employees cannot be fired for filing a complaint, testifying, or
causing a hearing to be instituted regarding the payment of the
minimum wage, equal pay, or overtime. Pursuit of a
discrimination claim is likewise statutorily protected.
The doctrine of employment-at-will, however, still exists and is
strongly adhered to in many states. So although the doctrine is
being cut back and business managers of the future therefore
cannot rely on its continued availability, it may be a long time
before the doctrine is no longer applicable. As its applicability
varies from state to state, however, familiarity with the
parameters of the doctrine in one’s own state is extremely
important. Table 21-1 breaks down which states accept each of
the three major exceptions.Table 21-1 Exceptions to THE
Employment-at-will Doctrine
Public Policy Exception
Implied Contract Exception
Good Faith and Fair Dealing Exception
Alaska, Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, District of Columbia, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada,
New Hampshire, New Jersey, New Mexico, North Carolina,
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South
Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, West Virginia, Wisconsin, Wyoming
Alabama, Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, District of Columbia, Hawaii, Idaho, Illinois,
Iowa, Kansas, Kentucky, Maine, Maryland, Michigan,
Minnesota, Mississippi, Nebraska, Nevada, New Hampshire,
New Jersey, New Mexico, New York, North Dakota, Ohio,
Oklahoma, Oregon, South Carolina, South Dakota, Tennessee,
Utah, Vermont, Washington, West Virginia, Wisconsin,
Wyoming
Alabama, Alaska, Arizona, California, Delaware, Idaho,
Massachusetts, Montana, Nevada, Utah, WyomingTable 21-
2 Federal Statutes Prohibiting Discrimination in Employment
Law
Prohibited Conduct
Remedies
Civil Rights Acts of 1866 and 1871, codified as 42 U.S.C. §§
1981 and 1982
Discrimination on the basis of race and ethnicity
Compensatory damages, including several years of back pay,
punitive damages, attorney’s fees, court costs, and court orders
Equal Pay Act of 1963
Wage discrimination on the basis of sex
Back pay, liquidated damages equivalent to back pay (if
defendant was not acting in good faith), attorney’s fees, and
court costs
Civil Rights Acts of 1964 (Title VII) and 1991
Discrimination in terms and conditions of employment on the
basis of race, color, religion, sex, or national origin
Back pay for up to two years; remedial seniority; compensatory
damages; punitive damages (may be limited due to class);
attorney’s fees, court costs; and court orders for whatever
actions are appropriate including reinstatement and affirmative
action
Age Discrimination in Employment Act of 1969
Discrimination in terms and conditions of employment on the
basis of age when the affected individual is age 40 or older
Back pay, liquidated damages equal to back pay (if defendant
acted willfully), attorney’s fees, court costs, and appropriate
court orders including reinstatement
Rehabilitation Act of 1973
Discrimination by government or governmental contractor on
the basis of a handicap
Back pay, attorney’s fees, court costs, and court orders for
appropriate affirmative action
Americans with Disabilities Act of 1991
Discrimination in employment on the basis of a disability
Hiring, promotion, reinstatement, back pay, reasonable
accommodation, compensatory damages, and punitive damages
Constitutional Provisions
The beginnings of antidiscrimination law can be traced back to
three constitutional provisions: the Fifth Amendment, which
states that no person may be deprived of life, liberty, or
property without due process of law; the Thirteenth
Amendment, which abolished slavery; and the Fourteenth
Amendment, which granted former slaves all the rights and
privileges of citizenship and guaranteed the equal protection of
the law to all persons. These provisions alone, however, were
not sufficient to prohibit the unequal treatment of citizens on
the basis of their race, sex, age, religion, and national origin.
Congress needed to enact major legislation to bring about a
reduction in discrimination. These laws, referred to as civil
rights laws and antidiscrimination laws, are summarized
in Table 21-2 and discussed in detail in the following sections.
The first major civil rights act was passed immediately after the
Civil War: the Civil Rights Act of 1866 (42 U.S.C. Section
1981). This act was designed to effectuate the Thirteenth
Amendment and guarantees that all persons in the United States
have the same right to make and enforce contracts and have full
and equal benefit of the law. The Civil Rights Act of 1871 (42
U.S.C. Section 1982) prohibited discrimination by state and
local governments. Initially used only when there was state
action, today these acts are also used against purely private
discrimination, especially in employment.
Civil Rights Act of 1866
Statute guaranteeing that all persons in the United States have
the same right to make and enforce contracts and have the full
and equal benefit of the law.
Civil Rights Act of 1871
Statute that prohibits discrimination by state and local
governments.The Civil Rights Acts of 1866 and
1871Applicability of The Acts
Initially, the civil rights acts were interpreted very narrowly to
prohibit discrimination based only on race. For several years,
circuit courts of appeals were split as to how race is defined. In
June 1986, the U.S. Supreme Court resolved that issue by
holding that both an Arabic and Jewish individual were
protected by the Civil Rights Act of 1866. Justice White,
writing the majority opinion in Saint Francis College et al. v.
Majid Ghaidan Al-Khazraji,2 said that it was clear from the
legislative history that the act was intended to protect from
discrimination “identifiable classes of persons who are
subjected to intentional discrimination solely because of their
ancestry or ethnic characteristics, even if those individuals
would be considered part of the Caucasian race today.” Thus,
today these laws have a broader application.
2 483 U.S. 1011 (1987). The accompanying case, filed by a
Jewish plaintiff, was Shaare Tefila Congregation et al. v. John
William Cobb et al., 481 U.S. 615 (1987).Remedies
The acts themselves do not have specific provisions for
remedies. A wide variety of both legal remedies (money
damages) and equitable remedies (court orders) have been
awarded under these statutes. The courts are free under these
acts to award compensatory damages, that is, damages designed
to make the plaintiff “whole” again, which may amount to
several years of back pay. The courts may also award punitive
damages, an amount intended to penalize the defendant for
wrongful conduct. Finally, the courts may require the defendant
to pay the plaintiff’s attorney’s fees.Procedural Limitation
Unlike most antidiscrimination laws, the Civil Rights Acts of
1866 and 1871 do not require the plaintiff to first attempt to
resolve the discrimination problem through administrative
procedures. The plaintiff simply files the action in federal
district court within the time limit prescribed by the state
statute of limitations, requesting a jury trial if one is desired.
Often, a claim under the 1866 or 1871 Civil Rights Act will be
added to a claim under another antidiscrimination statute.The
Equal Pay Act of 1963
The next major piece of federal legislation to address the
problem of discrimination was the Equal Pay Act of 1963, an
amendment to the Fair Labor Standards Act. Enacted at a time
when the average wages of women were less than 60 percent of
those of men, the act was designed with a very narrow focus: to
prevent wage discrimination based on sex within a business
establishment. It was designed primarily to remedy the
situations in which women, working alongside men or replacing
men, were being paid lower wages for doing substantially the
same job.
Equal Pay Act of 1963
Statute that prohibits wage discrimination based on sex.
As stated in 29 U.S.C. Section 206(d)(1), the act prohibits any
employer from discriminating within any “establishment”
between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate at
which he pays wages to employees of the opposite sex . . . for
equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions, except where payment is made
pursuant to (i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of
production; or (iv) differential based on any factor other than
sex.*
In the typical Equal Pay Act case, the burden of proof is
initially on the plaintiff to show that the defendant-employer
pays unequal wages to men and women for doing equal work at
the same establishment. Two questions necessarily arise: What
is equal work? What is an establishment?Equal Work
The courts have interpreted equal to mean substantially the
same in terms of all four factors listed in the act: skill, effort,
responsibility, and working conditions. If the employer varies
the actual job duties affecting any one of those factors, there is
no violation of the act. For example, if jobs are equal in skill
and working conditions but one requires greater effort whereas
the other requires greater responsibility, the jobs are not equal.
Obviously, a sophisticated employer could easily vary at least
one duty and then pay men and women different wages or
salaries.
Skill is defined as experience, education, training, and ability
required to do the job. Effort refers to physical or mental
exertion needed for performance of the job. Responsibility is
measured by the economic and social consequences that would
result from a failure of the employee to perform the job duties
in question. Similar working conditions refers to the safety
hazards, physical surroundings, and hours of employment. An
employer, however, is entitled to pay a shift premium to
employees working different shifts, as long as the employer
does not use sex as a basis for determining who is entitled to
work the higher-paying shifts.Extra Duties
Sometimes, employers try to justify pay inequities on the
grounds that employees of one sex are given extra duties that
justify their extra pay. The courts scrutinize these duties very
closely. The duties are sufficient to preclude a finding of equal
work only if:
1. the duties are actually performed by those receiving the extra
pay;
2. the duties regularly constitute a significant portion of the
employee’s job;
3. the duties are substantial, as opposed to inconsequential;
4. additional duties of a comparable nature are not imposed on
workers of the opposite sex; and
5. the extra duties are commensurate with the pay differential.
In some jurisdictions, the additional duties must also be
available on a nondiscriminatory basis.Establishments
One business location is obviously an establishment, but if an
employer has several locations, they may all be considered part
of the same establishment on the basis of an analysis of the
company’s labor relations policy. The greater the degree of
centralized authority for hiring, firing, wage setting, and other
human resource matters, the more likely the courts are to find
multiple locations to be a single establishment. The more
freedom each facility has to determine its own human resource
policies, the more likely the court will find it to be independent
of other facilities.Defenses
Once an employee establishes that an employer is paying
different wages to employees of different sexes doing
substantially equal work, there are certain defenses the
employer can raise. These are, in essence, legal justifications
for paying unequal wages to men and women.
The first defense that an employer may use is that the pay
differential is based on one of the four statutory exceptions
found in the Bennett Amendment to the Equal Pay Act. If the
wage differential is based on one of these four factors, the
differential is justified and the employer is not in violation of
the act. The four factors are:
1. A bona fide seniority system
2. A bona fide merit system
3. A pay system based on quality or quantity of output
4. Factors other than sex
The first three factors are fairly straightforward. Seniority-,
merit-, and productivity-based wage systems must be enacted in
good faith and must be applied to both men and women. As
minimal evidence of good faith, any such system should be
written down.
The fourth factor presents greater problems. Circumstances such
as greater availability of females and their willingness to work
for lower wages do not constitute “factors other than sex.”
One frequently litigated factor is training programs. A training
program that requires trainees to rotate through jobs that are
normally paid lower wages will be upheld as long as it is a bona
fide training program and not a sham for paying members of one
sex higher wages for doing the same job. The court will look at
each case individually, but factors that would lead to a training
program’s being found bona fide include a written description
of the training program that is available to employees,
nondiscriminatory access to the program for members of both
sexes, and demonstrated awareness of the availability of the
program by employees of both sexes.Remedies
An employer found to have violated the act cannot remedy the
violation by reducing the higher-paid workers’ wages or by
transferring those of one sex to another job so that they are no
longer doing equal work.
A person who has been subjected to an Equal Pay Act violation
may bring a private action under Section 16(b) of the act and
recover back pay in the amount of the differential paid to
members of the opposite sex. If the employer did not act in
good faith in paying the discriminatory wage rates, the court
will also award the plaintiff damages in an additional amount
equal to the back pay. A successful plaintiff is also entitled to
attorney’s fees.The Civil Rights Act of 1964, as Amended (Title
VII), and the Civil Rights Act of 1991
The year after it passed the Equal Pay Act, Congress passed the
Civil Rights Act of 1964. Title VII of this act is the most
common basis for lawsuits premised on discrimination, because
it covers a broader area of potential claimants than does either
of the statutes that were discussed previously. Title
VII prohibits employers from (1) hiring, firing, or otherwise
discriminating in terms and conditions of employment and (2)
segregating employees in a manner that would affect their
employment opportunities on the basis of their race, color,
religion, sex, or national origin. These five categories are
known as protected classes.
Title VII
Statute that prohibits discrimination in hiring, firing, or other
terms and conditions of employment on the basis of race, color,
religion, sex, or national origin.
Today’s business manager must be familiar with Title VII,
because the number of claims filed under the act is significant.
According to the Equal Employment Opportunity Commission
(EEOC), the total number of charges filed in 2014 was
88,778.3 That number is lower than the 93,727 claims filed in
2013, making 2014 the fourth year in a row that the total
number of claims filed has declined.
3 EEOC, Charge Statistics FY 1997 through 2014. Available
at www.eeoc.gov/eeoc/statistics
/enforcement/charges.cfm.Applicability of The Act
Employers covered by Title VII include only those who have 15
or more employees, that year or last, for 20 consecutive weeks
and are engaged in a business that affects interstate commerce.
In 1994, the term employer was broadened to include the U.S.
government, corporations owned by the government, and
agencies of the District of Columbia. The act also covers Indian
tribes, private clubs, unions, and employment agencies.
In addition to prohibiting discrimination by covered employers,
unions, and employment agencies, the act also imposes
recordkeeping and reporting requirements on these parties.
Covered parties must maintain all records regarding
employment opportunities for at least six months. Such records
include job applications, notices for job openings, and records
of layoffs. If an employment discrimination charge is filed
against an employer, such records must be kept until the case is
concluded. EEO-1 forms (forms containing information
concerning the number of minorities in various job
classifications) must be filed annually with the EEOC by
employers of more than 100 workers. A copy of this form is
shown in Exhibit 21-1. Finally, each covered employer must
display a summary of the relevant portions of Title VII where
the employees can see it. The notice must be printed in a
language that the employees can read.Proof in Employment
Discrimination Cases
The burden of proof in a discrimination case is initially on the
plaintiff. He or she attempts to establish discrimination in one
of three ways: (1) disparate treatment, (2) disparate impact, or
(3) harassment.Disparate Treatment
Disparate treatment occurs when one individual is treated less
favorably than another because of color, race, religion, sex, or
national origin. The key in such cases is proving the employer’s
unlawful discriminatory motive. This process is referred to
as building a prima facie case.
disparate treatment
Occurs when the employer treats one employee less favorably
than another because of that employee’s color, race, religion,
sex, or national origin.
The plaintiff must establish the following set of facts: (1) The
plaintiff is within one of the protected classes, (2) he or she
applied for a job for which the employer was seeking applicants
for hire or promotion, (3) the plaintiff possessed the minimum
qualifications to perform that job, (4) the plaintiff was denied
the job or promotion, and (5) the employer continued to look for
someone to fill the position.
Once the plaintiff establishes these facts, the burden shifts to
the defendant to articulate legitimate and nondiscriminatory
business reasons for rejecting the plaintiff. Such reasons for a
failure to promote, for instance, might include a poor work
record or excessive absenteeism. If the employer meets this
burden, the plaintiff must then demonstrate that the reasons the
defendant offered were just a pretext for a real discriminatory
motive. In other words, the alleged reason was not the real
reason; it was just put forth because it sounded good. One way
in which the plaintiff can demonstrate pretext is by showing
that the criteria used to reject the plaintiff were not applied to
others in the same situation. Introducing past discriminatory
policies would also be relevant, as would statistics showing a
general practice of discrimination by the defendant. At the
pretext stage, the issue of proving an employer’s intent to
discriminate appears first and is usually the key to the
plaintiff’s winning or losing the case. Exhibit 21-2 shows how
the burden of proof shifts in a disparate treatment
case.Disparate Impact
As complex as disparate treatment cases are, disparate impact
cases are even more difficult to establish. Disparate
impact cases arise when a plaintiff attempts to establish that an
employer’s facially neutral employment policy or practice has a
discriminatory effect or impact on a protected class. In other
words, a requirement of the policy or practice applies to
everyone equally, but in application, it disproportionately limits
employment opportunities for a particular protected class.
Exhibit 21-1 EEO-1 Form
Source: United States Department of Labour
Exhibit 21-2 The Shifting Burden of Proof in a Disparate
Treatment Case
disparate impact
Occurs when the employer’s facially neutral policy or practice
has a discriminatory effect on employees who belong to a
protected class.
To establish a case of discrimination based on disparate impact,
the plaintiff must first establish statistically that the rule
disproportionately restricts employment opportunities for a
protected class. The burden of proof then shifts to the defendant
to demonstrate that the practice or policy is a business
necessity. The plaintiff, at this point, can still recover by
proving that the “necessity” was promulgated as a pretext for
discrimination.
The first two steps for proving a prima facie case of disparate
impact were laid out in Griggs v. Duke Power Co.4 In that case,
the employer-defendant required all applicants to have a high
school diploma and a successful score on a professionally
recognized intelligence test for all jobs except that of laborer.
By establishing these criteria, the employer proposed to upgrade
the quality of its workforce.
4 401 U.S. 424 (1971).
The plaintiff demonstrated the discriminatory impact by
showing that 34 percent of the white males in the state had high
school diplomas whereas only 12 percent of the black males did
and by introducing evidence from an EEOC study showing that
58 percent of the whites compared with 6 percent of the blacks
had passed tests similar to the one given by the defendant. The
defendant could show no business-related justification for either
employment policy, so the plaintiff was successful. Not all
employees of Duke Power needed to be smart or have high
school diplomas. After all, when does a student in high school
learn how to install power lines or repair company vehicles? A
high IQ or a high school or college diploma may be necessary
for some jobs, but not for all jobs at Duke Power.Harassment
The third way to prove discrimination is to demonstrate
harassment. Harassment is a relatively new basis for a
discrimination claim; it first developed in the context of
discrimination based on sex and then evolved to become
applicable to other protected classes.
The definition of sexual harassment stated in the EEOC
Guidelines and accepted by the U.S. Supreme Court is
“unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature” that
implicitly or explicitly make submission a term or condition of
employment, make employment decisions related to the
individual dependent on submission to or rejection of such
conduct, or have the purpose or effect of creating an
intimidating, hostile, or offensive environment.
sexual harassment
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature that
explicitly or implicitly make submission a term or condition of
employment or creates an intimidating, hostile, or offensive
environment.
The courts have recognized two distinct forms of sexual
harassment. The first, quid pro quo, occurs when a supervisor
makes sexual demands on someone of the opposite sex and this
demand is reasonably perceived as a term or condition of
employment. The basis for this rule is that similar demands
would not be made by the supervisor on someone of the same
sex.
The second form of sexual harassment involves the creation of a
hostile environment. Case 21-1 demonstrates the standards used
by the U.S. Supreme Court to determine whether an employer’s
conduct has indeed created a hostile work
environment. Case 21-1 Teresa Harris v. Forklift Systems, Inc.
United States Supreme Court 510 U.S. 17 (1994)
Plaintiff Harris was a manager for Defendant Forklift Systems,
Inc. During her tenure at Forklift Systems, Plaintiff Harris was
repeatedly insulted by the defendant’s president and, because of
her gender, subjected to sexual innuendos. Numerous times in
front of others, the president told Harris, “You’re just a woman.
What do you know?” He sometimes asked Harris and other
female employees to remove coins from his pockets and made
suggestive comments about their clothes. He suggested to Harris
in front of others that they negotiate her salary at the Holiday
Inn. When Harris complained, he said he would stop, but he did
not; so she quit and filed an action against the defendant for
creating an abusive work environment based on her sex.
The district court found in favor of the defendant, holding that
some of the comments were offensive to the reasonable woman
but were not so serious as to affect Harris’s psychological well-
being severely or to interfere with her work performance. The
court of appeals affirmed. Plaintiff Harris appealed to the U.S.
Supreme Court.Justice O’Connor
In this case we consider the definition of a discriminatorily
“abusive work environment” (a “hostile work environment”)
under Title VII.
Title VII of the Civil Rights Act of 1964 makes it “an unlawful
employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” . . .
[T]his language “is not limited to ‘economic’ or ‘tangible’
discrimination. The phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent ‘to strike at the
entire spectrum of disparate treatment of men and women’ in
employment,” which includes requiring people to work in a
discriminatorily hostile or abusive environment. When the
workplace is permeated with “discriminatory intimidation,
ridicule, and insult,” that is “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.”
This standard, which we reaffirm today, takes a middle path
between making actionable any conduct that is merely offensive
and requiring the conduct to cause a tangible psychological
injury. As we pointed out in Meritor, “mere utterance of an
‘epithet which engenders offensive feelings in a employee,’
does not sufficiently affect conditions of employment to
implicate Title VII. Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would
find hostile or abusive”—is beyond Title VII’s purview.
Likewise, if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered
the conditions of the victim’s employment, and there is no Title
VII violation.
But Title VII comes into play before the harassing conduct
leads to a nervous breakdown. A discriminatorily abusive work
environment, even one that does not seriously affect employees’
psychological well- being, can and often will detract from
employees’ job performance, discourage employees from
remaining on the job, or keep them from advancing in their
careers. Moreover, even without regard to these tangible effects,
the very fact that the discriminatory conduct was so severe or
pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national
origin offends Title VII’s broad rule of workplace equality. The
appalling conduct alleged in Meritor, and the reference in that
case to environments “so heavily polluted with discrimination
as to destroy completely the emotional and psychological
stability of minority group workers,” merely present some
especially egregious examples of harassment. They do not mark
the boundary of what is actionable.
We therefore believe the District Court erred in relying on
whether the conduct “seriously affected plaintiff’s
psychological well-being” or led her to “suffer injury.” Such an
inquiry may needlessly focus the fact-finder’s attention on
concrete psychological harm, an element Title VII does not
require. Certainly Title VII bars conduct that would seriously
affect a reasonable person’s psychological well-being, but the
statute is not limited to such conduct. So long as the
environment would reasonably be perceived, and is perceived,
as hostile or abusive, there is no need for it also to be
psychologically injurious.
This is not, and by its nature cannot be, a mathematically
precise test. But we can say that whether an environment is
“hostile” or “abusive” can be determined only by looking at all
the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance. The effect on the employee’s psychological well-
being is, of course, relevant to determining whether the plaintiff
actually found the environment abusive. But while
psychological harm, like any other relevant factor, may be taken
into account, no single factor is required.*
Reversed and remanded in favor of Plaintiff, Harris.Critical
Thinking About The Law
As was previously touched upon, the judiciary most often
operates in relationship to shades of gray and not to the black
and white between which those shades lie. The Court’s decision
in Case 21-1, in large part dependent on its determination of a
definition, illustrates this point.
The Court’s primary test was to decide what constitutes an
“abusive work environment,” the second type of sexual
harassment actionable under Title VII. Deciding on such a
definition is not as easy as going to a legal dictionary and
looking up “abusive work environment.” The Court had to
interpret the meaning of such an environment, and important to
this interpretation were legal precedent, ambiguity, and primary
ethical norms.
Hence, the questions that follow will aid in thinking critically
about these factors influential in the Court’s interpretation.
1. What ambiguous language did the Court leave undefined in
Case 21-1?
Clue: To find this answer, look at the Court’s definition of an
“objectively hostile work environment.” As always, remember
that ambiguities are most often adjectives.
2. In her discussion of the precedent, Justice O’Connor made it
clear that the district court misinterpreted the decision in
rendering its decision. Contrary to the district court’s decision,
the existence of which key fact was not necessary for the Court
to find the defendant guilty of sexual harassment?
Clue: Revisit the paragraph discussing the district court’s
dismissal of Harris’s claim. On what basis was this dismissal
made? This is the key fact the existence of which the Supreme
Court found unnecessary for judgment in favor of the plaintiff.
Since Meritor, conflicting lower-court decisions have created
confusion in the area of sexual harassment. It appeared that in a
quid pro quo case, a company was liable regardless of its
knowledge, but in a hostile environment case, a company could
not be held liable without direct knowledge of the situation.
Another question was whether there could be recovery when
only empty threats were made.
For example, in Jones v. Clinton,5 the district court judge threw
out Jones’s sexual harassment case against the president
because Jones had no clear and tangible job detriment
(necessary to establish a quid pro quo case), and she was not
subject to a hostile environment when the totality of the
circumstances was viewed. Even if the allegations were true, the
contacts did not constitute “the kind of pervasive, intimidating,
abusive conduct”6 necessary for a hostile environment.
5 No. LR-C-94-290 (E.D. Ark. 1998).
6 Id.
The U.S. Supreme Court attempted to clarify these issues
in Ellerth v. Burlington.7 Ellerth was subjected to a litany of
dirty jokes and sexual innuendos from her boss. He
propositioned her and threatened to make her life miserable if
she refused him. She refused him without reprisals and was
even promoted. She did not complain about harassment but quit
after a year because she could not stand the threats and
innuendos.
7 118 S. Ct. 2275 (1998).
In a decision that offered something to both plaintiffs and
defendants, the high court ruled that
an employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority
over the employee. When no tangible employment action is
taken, a defending employer may raise an affirmative defense to
liability [by showing that] (a) the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm
otherwise. No affirmative defense is available, however, when
the supervisor’s harassment culminates in a tangible
employment action.8 *
8 Id.
The Court then remanded the case to the lower court for a new
trial.
Under limited circumstances, employers may be held liable for
harassment of their employees by nonemployees: If an employer
knows that a customer is harassing an employee but does
nothing to remedy the situation, the employer may be liable. For
example, in Lockhard v. Pizza Hut Inc.,9 the franchise was held
liable when the company failed to take any steps to stop the
harassment of a waitress by two male customers.
9 162 F.3d 1062 (10th Cir. 1998).Same-Sex Harassment
Initially, same-sex harassment did not constitute sexual
harassment. In the first appellate case on this issue, a male
employee sued his employer for sexual harassment, alleging that
on several occasions, his male supervisor had approached him
from behind and grabbed his crotch.10 The court of appeals
affirmed the trial court’s dismissal of the claim on the grounds
that no prima facie case had been established. The court said
that Title VII addressed gender discrimination, and harassment
by a male supervisor of a male employee did not constitute
sexual harassment, regardless of the sexual overtones of the
harassment.
10 Garcia v. Elf Atochem, 28 F.3d 466 (5th Cir. 1994).
However, the circuit courts soon became split on whether one
could be sexually harassed by a person of the same sex. The
U.S. Supreme Court finally rendered a definitive answer to that
issue in the case of Joseph Oncale v. Sundowner Offshore
Services,11 with its holding that “nothing in Title VII
necessarily bars a claim of discrimination ‘because of . . . sex’
merely because the plaintiff and the defendant are of the same
sex.”12 As long as the discrimination was because of the
victim’s sex, it was actionable.
11 118 S. Ct. 998 (1998).
12 Id.Hostile Environment Extended
Hostile environment cases have also been used in cases of
discrimination based on religion, race, and even age.13 For
example, in one case,14 Hispanic and black corrections workers
demonstrated that a hostile work environment existed by
proving that they had been subjected to continuing verbal abuse
and racial harassment by coworkers and that the county sheriff’s
department had done nothing to prevent the abuse. The white
employees had continually used racial epithets and posted
racially offensive materials on bulletin boards, such as a picture
of a black man with a noose around his neck, cartoons favorably
portraying the Ku Klux Klan, and a “black officers’ study
guide” consisting of children’s puzzles. White officers once
dressed a Hispanic inmate in a straw hat, sheet, and sign that
said “spic.” Such activities were found by the court to
constitute a hostile work environment.
13 Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir.
1996).
14 Snell v. Suffolk County, 782 F.2d 1094 (1986).A New
Limitation on the Employer’s Liability
As explained previously, to win a lawsuit for harassment by
customers, the employee must show that the employer knew of
the harassment and did nothing to stop it. Similarly, if the
harassment is by a coworker, the employee must show that the
employer is negligent in responding to complaints about
harassment. But to win a lawsuit for harassment by a
supervisor, the employer does not have to be negligent because
Title VII imputes the supervisor’s acts to the employer. In 2013,
in the following case, the U.S. Supreme Court made it more
difficult for plaintiffs to win harassment cases by limiting the
definition of who can be considered a supervisor. Like so many
other cases, this one was a 5–4 decision. Case 21-2 Vance v.
Ball State University
United States Supreme Court 133 S. Ct. 2423 (2013)
Maetta Vance claimed that Saundra Davis, a catering specialist,
had made Vance’s life at work contentious through physical acts
and racial harassment. Vance sued her employer, Ball State
University, for workplace harassment by a supervisor. Vance
argued that Davis was a supervisor, whereas Ball State claimed
that Davis was not actually Vance’s supervisor. The District
Court and Court of Appeals for the 7th Circuit determined that
Davis was not Vance’s supervisor because Davis did not have
the power to direct the terms and conditions of Vance’s
employment and granted summary judgment to Ball State. The
7th Circuit agreed that Davis was not a supervisor and,
therefore, the university could not be held vicariously liable.
Vance appealed to the U.S. Supreme Court.Justice Alito
In this case, we decide . . . who qualifies as a “supervisor” in a
case in which an employee asserts a Title VII claim for
workplace harassment?
Under Title VII, an employer’s liability for such harassment
may depend on the status of the harasser. If the harassing
employee is the victim’s co-worker, the employer is liable only
if it was negligent in controlling working conditions. In cases in
which the harasser is a “supervisor,” however, different rules
apply. If the supervisor’s harassment culminates in a tangible
employment action, the employer is strictly liable. But if no
tangible employment action is taken, the employer may escape
liability by establishing, as an affirmative defense, that (1) the
employer exercised reasonable care to prevent and correct any
harassing behavior and (2) that the plaintiff unreasonably failed
to take advantage of the preventive or corrective opportunities
that the employer provided. . . . Under this framework,
therefore, it matters whether a harasser is a “supervisor” or
simply a co-worker . . .
. . . For present purposes, the only relevant incidents concern
Vance’s interactions with a fellow BSU employee, Saundra
Davis. During the time in question, Davis, a white woman, was
employed as a catering specialist in the Banquet and Catering
division. The parties vigorously dispute the precise nature and
scope of Davis’s duties, but they agree that Davis did not have
the power to hire, fire, demote, promote, transfer, or discipline
Vance. . . . We hold that an employer may be vicariously liable
for an employee’s unlawful harassment only when the employer
has empowered that employee to take tangible employment
actions against the victim, i.e., to effect a “significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”*
Affirmed, in favor of Defendant Ball State
University.Retaliation
In addition to protecting an employee from discrimination, Title
VII also makes it unlawful for an employer to retaliate against
an employee who has reported or otherwise complained about
discrimination under the act. To prove a prima facie retaliation
claim against an employer, the employee must show three
things:
1. The employee engaged in a protected activity under the act,
such as complaining of, participating in an investigation of, or
filing a formal charge about perceived discrimination under
Title VII or refusing to participate in conduct the employee
reasonably believed was unlawful under Title VII.
2. The employee was fired, demoted, or suffered some other
adverse employment action.
3. The employee’s protected activity was the cause of or the
determining factor for the adverse employment action.
Until the U.S. Supreme Court decided the case of University of
Texas Southwestern Medical Center v. Nassar,15 the third
factor was easier to prove because the protected activity could
be simply a motivating factor in the decision, which is the
standard for a discrimination case. But in this recent case, the
court tightened the standard from a motivating factor to “the
determinative factor.” In this 5–4 decision, Justice Kennedy
said that it was important to have the proper causation standard
in retaliation cases because the number of such cases filed with
the EEOC had nearly doubled in the last 15 years, rising to
more than 31,000 in 2012. During fiscal year 2014, that number
had risen to 37,955.16
15 133 S. Ct. 2517 (2013).
16 U.S. Equal Employment Opportunity Commission, EEOC
Releases Fiscal Year 2014 Enforcement and Litigation Data,
February 4, 2015. Available
at www1.eeoc.gov/eeoc/newsroom/release /2-4-15.cfm.
In 2015, the 4th Circuit Court of Appeals handed down a
decision that some corporate counsel fear will increase the
number of retaliation cases even more because it will expand
the number of situations wherein a retaliation case will make it
to the jury. Case 21-3 Reya C. Boyer-Liberto v. Fontainbleu
Corporation
United States Court of Appeals for the 4th Circuit 2015 U.S.
App. LEXIS 7557 (2015)
Reya C. Boyer-Liberto, an African American woman, sued her
former employer for racial discrimination and retaliation, in
violation of Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981. She based her racial discrimination claim on a
hostile work environment allegedly created by two
conversations she had with a coworker about an incident that
occurred on September 14, 2010. During the conversations,
which took place on two consecutive days, the coworker twice
called Liberto a “porch monkey.” And she grounds her
retaliation claim on the termination of her employment after she
complained about the statements.
The district court granted the defendants’ motion for summary
judgment, concluding that the conduct was too isolated to
support either of Liberto’s claims. Liberto appealed. In a 2–1
decision, a panel of the 4th Circuit affirmed the lower court’s
decision, but its decision was vacated by the 4th Circuit’s
granting Liberto a rehearing en banc.Circuit Judge King
. . . [W]e now vacate the judgment of the district court and
remand for further proceedings on Liberto’s claims. In so doing,
we underscore the Supreme Court’s pronouncement in Faragher
v. City of Boca Raton . . . that an isolated incident of
harassment, if extremely serious, can create a hostile work
environment. We also recognize that an employee is protected
from retaliation when she reports an isolated incident of
harassment that is physically threatening or humiliating, even if
a hostile work environment is not engendered by that incident
alone . . .
. . . The district court then invoked Jordan for the proposition
that an “isolated racist comment” is “a far cry from . . . an
environment of crude and racist conditions so severe or
pervasive that they alter[] the conditions of [plaintiff’s]
employment.” . . . In concomitantly rejecting Liberto’s
retaliation claims, the court again looked to Jordan and ruled
that “no objectively reasonable person could have believed that
the [plaintiff’s work environment] was, or was soon going to be,
infected by severe or pervasive racist, threatening, or
humiliating harassment.”
The panel decision was unanimous that the defendants were
properly awarded summary judgment on Liberto’s hostile work
environment claims, in that Clubb’s “use of [the term ‘porch
monkey’] twice in a period of two days in discussions about a
single incident, was not, as a matter of law, so severe or
pervasive as to change the terms and conditions of Liberto’s
employment.” The panel observed that Liberto had “not pointed
to any Fourth Circuit case, nor could she, finding the presence
of a hostile work environment based on a single incident.” . . .
The panel was split, however, with respect to Liberto’s
retaliation claims. The opinion of the panel majority validated
the district court’s summary judgment award on those claims,
explaining that, “if no objectively reasonable juror could have
found the presence of a hostile work environment . . . it stands
to reason that Liberto also could not have had an objectively
reasonable belief that a hostile work environment existed.”
Although the panel majority allowed that an “employee’s
opposition may be protected before the hostile environment has
fully taken form,” the majority faulted Liberto for failing to
“present any indicators that the situation at the Clarion would
have ripened into a hostile work environment.”
In thus vacating the summary judgment award on Liberto’s
hostile work environment claims, we identify this as the type of
case contemplated in Faragher where the harassment, though
perhaps “isolated,” can properly be deemed to be “extremely
serious.” We reject, however, any notion that our prior
decisions . . . were meant to require more than a single incident
of harassment in every viable hostile work environment case.
. . . Turning to Liberto’s retaliation claims, Title VII proscribes
discrimination against an employee because, in relevant part,
she “has opposed any practice made an unlawful employment
practice by this subchapter.” Employees engage in protected
oppositional activity when they “complain to their superiors
about suspected violations of Title VII.” . . . To establish a
prima facie case of retaliation in contravention of Title VII, a
plaintiff must prove “(1) that she engaged in a protected
activity,” as well as “(2) that her employer took an adverse
employment action against her,” and “(3) that there was a causal
link between the two events.”. . . . A prima facie retaliation
claim under 42 U.S.C. § 1981 has the same elements.
. . . In the context of element one of a retaliation claim, an
employee is protected when she opposes “not only . . .
employment actions actually unlawful under Title VII but also
employment actions [she] reasonably believes to be unlawful.” .
. . The Title VII violation may be complete, or it may be in
progress. . . . “Navy Federal holds that an employee seeking
protection from retaliation must have an objectively reasonable
belief in light of all the circumstances that a Title VII violation
has happened or is in progress.” . . . In other words, an
employee is protected from retaliation when she opposes a
hostile work environment that, although not fully formed, is in
progress.
The panel majority in Jordan ruled that, where an employee has
complained to his employer of an isolated incident of
harassment insufficient to create a hostile work environment,
the employee cannot have possessed a reasonable belief that a
Title VII violation was in progress, absent evidence “that a plan
was in motion to create such an environment” or “that such an
environment was [otherwise] likely to occur.” . . . We reject
that aspect of Jordan today, however, for several reasons. First
of all, the Jordan standard “imagines a fanciful world where
bigots announce their intentions to repeatedly belittle racial
minorities at the outset, and it ignores the possibility that a
hostile work environment could evolve without some specific
intention to alter the working conditions of African-Americans
through racial harassment.”
The Jordan standard also is at odds with the hope and
expectation that employees will report harassment early, before
it rises to the level of a hostile environment. Where the harasser
is her supervisor and no tangible employment action has been
taken, the victim is compelled by the Ellerth/Faragher defense
to make an internal complaint, i.e., “to take advantage of any
preventive or corrective opportunities provided by the
employer.” . . .
Similarly, the victim of a co-worker’s harassment is prudent to
alert her employer in order to ensure that, if the harassment
continues, she can establish the negligence necessary to impute
liability. . . . The reporting obligation is essential to
accomplishing Title VII’s “primary objective,” which is “not to
provide redress but to avoid harm.” . . . But rather than
encourage the early reporting vital to achieving Title VII’s goal
of avoiding harm, the Jordan standard deters harassment victims
from speaking up by depriving them of their statutory
entitlement to protection from retaliation. Such a lack of
protection is no inconsequential matter, for “fear of retaliation
is the leading reason why people stay silent instead of voicing
their concerns about bias and discrimination.” . . .
The question, then, becomes this: What is the proper standard
for determining whether an employee who reports an isolated
incident of harassment has a reasonable belief that she is
opposing a hostile work environment in progress? We conclude
that, when assessing the reasonableness of an employee’s belief
that a hostile environment is occurring based on an isolated
incident, the focus should be on the severity of the
harassment. . . . That assessment thus involves factors used to
judge whether a workplace is sufficiently hostile or abusive for
purposes of a hostile environment claim—specifically, whether
the discriminatory conduct “is physically threatening or
humiliating, or a mere offensive utterance.” . . . Of course, a
single offensive utterance . . . generally will not create a hostile
environment without significant repetition or an escalation in
the harassment’s severity. . . . But an isolated incident that is
physically threatening or humiliating will be closer—even if not
equal—to the type of conduct actionable on its own because it is
“extremely serious.”. . .
Accordingly, as relevant here, an employee will have a
reasonable belief that a hostile work environment is occurring
based on an isolated incident if that harassment is physically
threatening or humiliating. This standard is consistent not only
with Clark County, but also with other Supreme Court
precedent, including Crawford and Burlington Northern. That is
so because it protects an employee like Jordan who promptly
speaks up “to attack the racist cancer in his workplace,” rather
than “remain[ing] silent” and “thereby allowing
[discriminatory] conduct to continue unchallenged,” while
“forfeiting any judicial remedy he might have.” . . . In sum,
under the standard that we adopt today with guidance from the
Supreme Court, an employee is protected from retaliation for
opposing an isolated incident of harassment when she
reasonably believes that a hostile work environment is in
progress, with no requirement for additional evidence that a
plan is in motion to create such an environment or that such an
environment is likely to occur. The employee will have a
reasonable belief that a hostile environment is occurring if the
isolated incident is physically threatening or humiliating. . . .
Because the defendants contested Liberto’s retaliation claims on
the lone ground that she did not engage in a protected activity,
our analysis is limited to whether a jury could find that Liberto
reasonably believed there was a hostile work environment in
progress when she reported Clubb’s use of the “porch monkey”
slur. Applying the standard that we adopt today, the answer
plainly is “yes.” As we recognized in analyzing Liberto’s
hostile work environment claims, “porch monkey” is a racial
epithet that is not just humiliating, but “degrading and
humiliating in the extreme.” . . . Indeed, we determined that a
reasonable jury could find that Clubb’s two uses of “porch
monkey” were serious enough to engender a hostile
environment. We must further conclude, therefore, in the
context of the retaliation claims, that Liberto has made the
lesser showing that the harassment was sufficiently severe to
render reasonable her belief that a hostile environment was
occurring. Accordingly, we vacate the summary judgment award
on Liberto’s retaliation claims, in addition to her hostile work
environment claims. We also underscore that, on remand, a jury
would be entitled to simultaneously reject the hostile work
environment claims on the ground that Clubb’s conduct was not
sufficiently serious to amount to a hostile environment, but
award relief on the retaliation claims by finding that Clubb’s
conduct was severe enough to give Liberto a reasonable belief
that a hostile environment, although not fully formed, was in
progress.
. . . Contrary to the dissent, we seek to promote the hope and
expectation—ingrained in our civil rights laws and the Supreme
Court decisions interpreting them—that employees will report
harassment early, so that their employers can stop it before it
rises to the level of a hostile environment. Employers are
powerless in that regard only if they are unaware that
harassment is occurring. But employees will understandably be
wary of reporting abuse for fear of retribution. Under today’s
decision, employees who reasonably perceive an incident to be
physically threatening or humiliating do not have to wait for
further harassment before they can seek help from their
employers without exposing themselves to retaliation.*
Reversed, in favor of Petitioner Liberto.Statutory Defenses
The three most important defenses available to defendants in
Title VII cases are bona fide occupational qualification
(BFOQ), merit, and seniority. These defenses are raised by the
defendant after the plaintiff has established a prima facie case
of discrimination based on disparate treatment, disparate
impact, or a pattern or practice of discrimination.Bona Fide
Occupational Qualification
The BFOQ defense allows an employer to discriminate in hiring
on the basis of sex, religion, or national origin when such a
characteristic is necessary to the performance of the job. Race
or color cannot be a BFOQ. Such necessity must be based on
actual qualifications, not on stereotypes about one group’s
abilities. Being a male cannot be a BFOQ for a job because it is
a dirty or “strenuous” job, although there may be a valid
requirement that an applicant be able to lift a certain amount of
weight if such lifting is a part of the job. A BFOQ does not
arise because an employer’s customers would prefer to be
served by someone of a particular gender or national origin; nor
does inconvenience to the employer, such as having to provide
two sets of restroom facilities, make a classification a
BFOQ.Comparative Law Corner Sexual Harassment in France
The French deal with the problem of sexual harassment in
employment very differently from Americans. In the United
States, sexual harassment is a civil offense and can receive
compensatory and punitive damages. In France, sexual
harassment is instead part of the criminal code. Part of this
difference has to do with a difference in the definitions of
sexual harassment. The United States recognizes both quid pro
quo and hostile work environment sexual harassment, whereas
the French recognize only quid pro quo. Sexual harassment in
France is defined as “[t]he fact of harassing anyone using
orders, threats or constraint, in order to obtain favors of a
sexual nature, by a person abusing the authority that functions
confer on him. . . .” With this definition, it makes sense that the
French consider sexual harassment a criminal offense. The
French do not recognize the idea of a hostile work environment,
and it is considered somewhat normal for male employees to
comment on the attractiveness of female employees at work.
The French sexual harassment law also differs significantly
from American law in its method of enforcement. Women in
France are responsible for filing their own claims with the
court, and the punishment their harasser can receive is limited
to one year in jail or a fine. Also, French companies are not
seen as responsible for the behavior of their employees, so if a
supervisor sexually harasses a female subordinate, the woman
cannot claim damages from the company. Her charges will be
filed only against the supervisor who sexually harassed
her.Merit
Most merit claims involve the use of tests. Using a
professionally developed ability test, which is not designed,
intended, or used to discriminate, is legal. Such tests may have
an adverse impact on a class, but do not violate the act as long
as they are manifestly related to job performance. The Uniform
Guidelines on Employee Selection Procedures (UGESP) have,
since 1978, contained the policy of all governmental agencies
charged with enforcing civil rights, and they provide guidance
to employers and other interested persons about when ability
tests are valid and job related. Under these guidelines, tests
must be validated in accordance with standards established by
the American Psychological Association.
Acceptable validation includes (1) criterion-related validity,
which is the statistical relationship between test scores and
objective criteria of job performance; (2) content validity,
which isolates some skill used on the job and directly tests that
skill; and (3) construct validity, wherein a psychological trait
needed to perform the job is measured. A test that required a
secretary to type would be content valid. A test of patience for a
teacher would be construct valid.Seniority Systems
A final statutory defense, available under Section 703(h), is a
bona fide seniority system. A seniority system, in which
employees are given preferential treatment based on their length
of service, may perpetuate discrimination that occurred in the
past. Nonetheless, such systems are considered bona fide and
thus are not unlawful if (1) the system applies equally to all
persons, (2) the seniority units follow industry practices, (3) the
seniority system did not have its genesis in discrimination, and
(4) the system is maintained free of any illegal discriminatory
purpose.Mixed Motives
One problem with discrimination cases is proving that the
plaintiff’s membership in a protected class is the reason for
unfair treatment. In the 1991 act, Congress addressed the
concept of a “mixed motives” case (i.e., a case in which the
plaintiff proves that being a member of a protected class was
one reason for the unfair treatment, but the defendant also
proves that it also had a legal reason). If the court determines
that the defendant had mixed motives, the verdict is for the
plaintiff, but the court decides whether the plaintiff is entitled
to damages based on the weight of the two motives.Protected
Classes
Five classes are protected under Title VII. Unique problems
have arisen with regard to each of them.Race and Color
A primary goal of Title VII was to remedy the discrimination in
employment to which blacks had long been subjected. The act,
however, also contains a proviso stating that nothing in the act
requires that preferential treatment based on an imbalance
between their representation in the employer’s workplace and
their representation in the population at large be given to any
protected class. This proviso paved the way for questions about
“reverse discrimination,” or discrimination against whites, as a
result of employers’ attempts to create a racially balanced
workforce. (This issue is discussed later in the section on
affirmative action.)National Origin
The act prohibits discrimination based on national origin, not on
alienage (citizenship of a country other than the United States).
Thus, an employer can refuse to hire non–U.S. citizens. This
prohibition applies even to owners of foreign corporations who
have established firms in the United States. In the absence of a
treaty between the United States and the foreign state
authorizing such conduct, a corporation cannot discriminate in
favor of those born in a foreign state.
Since the terrorist attack on the World Trade Center on
September 11, 2001, there has been a significant increase in
charges based on national origin by individuals who are, or are
perceived as being, Arab or South Asian. Many of these claims
are combined with claims of discrimination based on religion.
Many are based on harassment. For example, two California
auto dealers agreed to pay seven Afghan workers $550,000 to
settle their complaint of harassment based on national origin
and religion. The workers alleged that they were called
everything from “camel jockeys” to “bin Laden’s gang.” One of
the women with an Arabic name was asked to call herself by an
American name, such as Sara.17
17 Bob Egelko, “Two Auto Dealers Agree to Settle Suit with
Afghan Workers,” San Francisco Chronicle, B7 (Apr. 7, 2004).
During fiscal year 2014, the EEOC received 9,579 charges of
national-origin discrimination and resolved 9,768, recovering
$31.4 million for the charging parties. Interestingly, these
numbers represented a decline from 2013, when the number of
such charges was 10,642, with 11,307 resolved (some carried
over from the previous year) for a total recovery of $35.3
million.18
18 U.S. Equal Employment Opportunity Commission, National
Origin-Based Charges FY 1997—FY 2014. Accessed April 15,
2015
at www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm.Religio
n
Under Title VII, employers cannot discriminate against
employees on the basis of religion. Although an exception has
been made allowing religious corporations, associations, and
societies to discriminate in their employment practices on the
basis of religion, they may not discriminate on the basis of any
other protected class. In fiscal year 2013, the EEOC received
3,721 charges of religious discrimination and resolved 3,865
such charges, recovering $11.2 million.19 In 2010, the number
of charges received was 3,549, with 3,575 being resolved,
generating $8.7 million for claimants.20
19 U.S. Equal Employment Opportunity Commission, Religion-
Based Charges FY 1997–FY 2014. Accessed April 15, 2015
at www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm.
20 Ibid.
Employers are required to make reasonable accommodation to
their employees’ religious needs, as long as such
accommodation does not place an undue hardship on the
employer or other employees. For example, an employer has a
dress code that prohibits clerical workers visible to the public
from wearing hats or scarves. A Muslim worker requests that
she be granted an exemption from the dress code so that she
may wear the hijab (head scarf) in conformance with
her Muslim beliefs. Her exemption would be a reasonable
accommodation. Flexible scheduling, voluntary substitutions or
swaps, job reassignments, and lateral transfers are other
examples of reasonable accommodations to an employee’s
religious beliefs. Courts will examine the requested
accommodation very carefully to ensure that it does not place
an undue burden on the workplace. For example, the
reasonableness of accommodating an employee’s request not to
work on Saturday would depend on the availability of other
workers who would willingly work that day.Applying the Law
to the Facts . . .
Let’s say that Talal needs a day off to observe his religious
holiday. However, he gave his employer only two days’ notice
and no other employee can cover for him at the last minute.
Talal argues that forcing him to work on a religious holiday is
religious discrimination. His employers argue that prohibiting
him from engaging in a religious practice that would interfere
with his work and impose hardship on his company is legal.
Who is correct in this case?
As mentioned previously, since September 11, 2001, the number
of charges of religious discrimination by individuals who are, or
are perceived to be, Muslim or Sikh has increased. From
September 11, 2000 to September 11, 2001, 323 charges based
on “religion-Muslim” were filed with the EEOC. The following
year, 706 similar charges were filed. In 2003, the EEOC settled
one of the largest workplace discrimination suits against
Muslims. In that case, four Muslim Pakistani machine operators
alleged that their employer, Stockton Steel, routinely gave them
the worst jobs, ridiculed their daily prayers, and called them
“camel jockey” and “raghead.” The four workers shared a $1.1
million settlement.21 At the time of the settlement, then EEOC
Commissioner Steven Miller expressed hope that such cases
would sensitize employers to issues of religious and ethnic
discrimination.22 Since the 9/11 attacks, the EEOC has been
attempting to reach out to Arab and Muslim groups to explain
what illegal discrimination is and what actions they can take to
enforce their rights. The percentage of religious discrimination
suits by those whose religion is Muslim has fallen from its high
of 28 percent in 2002 to 20 percent in 2012, although during
that time period, the number of overall charges of religious
discrimination continued to grow.23
21 Marjorie Valbrun, “U.S. Battles Bias against Arabs and
Muslims in the Workplace,” The Asian Wall Street Journal, A6
(Apr. 14, 2003).
22 Id.
23 U.S. Equal Employment Opportunity Commission, Religion-
based charges filed from 10/10/2000 through 9/30/2011.
Showing percentage filed on the basis of religion—Muslim.
Accessed April 15, 2015 at www.eeoc.gov/eeoc/events/9-11-
11_religion_charges.cfm.
In 2007, Bilan Nur, a Muslim woman, won an award of
$287,000 for religious discrimination. Nur had requested
permission to wear a head covering during the holiday of
Ramadan, a deviation from her employer’s dress code. Her
employer, Alamo Rent-a-Car, refused to allow her to wear the
head scarf in front of customers while she worked at the front
counter. Nur wore the head scarf while at the front counter in
violation of the dress code. Alamo sent Nur home several times
and eventually fired her for wearing the head scarf. The EEOC
brought a case against Alamo on behalf of Nur, and her award
included $21,640 in back pay, $16,000 in compensatory
damages, and $250,000 in punitive damages.24 The EEOC
stated that it hoped the large punitive damages would send a
message to employers that religious discrimination would not be
tolerated.25
24 Kevin D. Kelly, “Jury Awards $287,000 to Muslim Employee
Denied a Religious Accommodation.” Accessed March 12, 2008
at www.lexology.com/library/detail.aspx?g=43ea1ef7-353c-
4134-b6e5- fe408356149a&l=6G99TH2.
25 Id.Sex
Under Title VII, sex is interpreted as referring only to gender
and not to sexual preferences. Hence, homosexuals and
transsexuals are not protected under the act. It would, however,
be sex discrimination to fire male homosexuals while retaining
female homosexuals.
Also, as you may recall from the earlier discussion of the case
of Joseph Oncale v. Sundowner Offshore Services,26 the U.S.
Supreme Court has held that Title VII prohibits same-sex
harassment regardless of the harasser’s sexual orientation as
long as the discrimination is tied to some kind of gender
discrimination.27
26 523 U.S.75 (1988).
27 Ibid.
While the Oncale case did not explicitly extend Title VII
protection to discrimination based on a person’s sexual
orientation, the EEOC has muddied the waters a bit by holding
that discrimination claims based on gender identity are
cognizable under Title VII.
In Macy v. Dept. of Justice,28 a case some have described as
groundbreaking, the EEOC held that a complaint of
discrimination based on “gender identity, change of sex, and/or
transgender status” is cognizable under Title VII. In that case,
Mia Macy completed a telephone interview for a position with a
federal agency while she presented as a man and was told the
position was hers barring any issues with her background check.
While her background check was being done, she told the
agency that she was in the process of transitioning from a male
to a female. Five days later, Macy was told that the position was
no longer available; another person was hired for the position
soon thereafter. Macy filed her original claim with the EEOC,
and the agency separated her claims into two distinct claims—
one for discrimination based on “sex” and one for
discrimination based on “sex stereotyping,” “gender
transition/change of sex,” and/or “gender identity.” The agency
further indicated that the gender identity stereotyping aspect of
her claim would be processed outside the EEOC’s standard Title
VII adjudication process.
28 EEOC Appeal No. 0120120821, 2012 WL 1435995
(E.E.O.C.) (April 20, 2012).
Macy appealed to the full commission to have both aspects of
her claim handled through the normal Title VII process. On
appeal, the EEOC concluded that each of these formulations of
Macy’s claims was merely different ways of stating the same
claim for discrimination “based on . . . sex,” which clearly was
cognizable under Title VII.
The EEOC further stated, “[a]s used in Title VII, the term ‘sex’
‘encompasses both sex—that is, the biological differences
between men and women—and gender.’ As the 11th Circuit
noted . . . Title VII barred ‘not just discrimination because of
biological sex, but also gender stereotyping—failing to act and
appear according to expectations defined by gender.’ As such,
the terms ‘gender’ and ‘sex’ are often used interchangeably to
describe the discrimination prohibited by Title VII. That Title
VII’s prohibition on sex discrimination proscribes gender
discrimination, and not just discrimination on the basis of
biological sex, is important. If Title VII proscribed only
discrimination on the basis of biological sex, the only gender-
based disparate treatment would be when an employer prefers a
man over a woman, or vice versa. But the statute’s protections
sweep far broader than that, in part because the term ‘gender’
encompasses not only a person’s biological sex but also the
cultural and social aspects associated with masculinity and
femininity.”
In September 2014, the EEOC filed two lawsuits in federal
court challenging transgender discrimination. The first alleged
that Lakeland Eye Clinic, a Florida- based organization of
health care professionals, discriminated based on sex in
violation of federal law by firing an employee because she was
transgender, because she was transitioning from male to female,
and/or because she did not conform to the employer’s gender-
based expectations, preferences, or stereotypes.29 The second
suit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., found
that Harris violated Title VII by firing the funeral director
because of her transgender status, because of her gender
transition, and/or because the firing was based on gender-based
stereotypes.30
29 “EEOC Sues Lakeland Eye Clinic for Sex Discrimination
Against Transgender Employee.” EEOC Press Release,
September 25, 2014. Available
at www.eeoc.gov/eeoc/newsroom/release/9-25 -14e.cfm.
30 Civ. No. E.D. Mich. 2:14-cv-13710-SFC-DRG.
Those cases were filed just two months after President Obama
issued Executive Order 13672, prohibiting federal contractors
from discriminating against workers based on their sexual
orientation or gender identity.
As noted earlier, sexual harassment is addressed by Title VII’s
prohibition against discrimination based on sex. Although
sexual harassment cases were not filed in large numbers
immediately after the passage of Title VII, the number of such
cases filed has increased tremendously since law professor
Anita Hill captivated the nation in late 1991 by testifying before
Congress about the harassment to which she was subjected by
U.S. Supreme Court nominee Clarence Thomas. According to
the EEOC, 9,953 sexual harassment complaints were filed in the
year ending in October 1992, an increase of 2,564 over the
previous year. In fiscal year 2011, 11,364 sexual harassment
complaints were filed; 11,717 were filed in 2010. The EEOC
recovered $48.4 million for successful claimants in 2010 and
$52.3 million in 2011.31 Not all the sexual harassment charges
are filed by women; in 2010, 16.4 percent of those charges were
filed by males.32
31 U.S. Equal Employment Opportunity Commission, Sexual
Harassment Charges: EEOC & FEPAs Combined: FY 1997–FY
2011. Available at www.eeoc.gov/eeoc/statistics/enforcement
/sexual_harassment.cfm.
32 U.S. Equal Employment Opportunity Commission, Sexual
harassment charges: EEOC & FEPAs Combined: FY 1997–FY
2011.” Accessed December 31, 2010
at www.eeoc.gov/eeoc/statistics
/enforcement/sexual_harassment.cfm.
These sex discrimination cases can be quite costly. For
example, it cost Morgan Stanley $54 million to settle a sex
discrimination case brought by 67 female officers and women
eligible for officer promotions.33 The women had alleged
workplace discrimination in promotions, assignments, and
compensation, along with a hostile work environment. Although
management admitted no guilt, it agreed to set up mechanisms
to prevent sex discrimination. Thus, it is important that
businesspeople be able to recognize sexual harassment and
prevent its occurrence in the workplace. Exhibit 21-3 provides
some suggestions on how managers can avoid liability for
sexual harassment.
33 “EEOC and Morgan Stanley Announce Settlement of Sex
Discrimination Lawsuit.” EEOC Press Release, July 12, 2004.
Accessed March 19, 2008 at www.eeoc.gov/press/7-12-04.html.
Exhibit 21-3 Tips For Avoiding Sexual Harassment Charges
Source: Adapted from K. Swisher, “Corporations Are Seeing the
Light on Harassment,” Washington Post National Weekly
Edition, February 14–20, 1994, 21.Pregnancy Discrimination
Act
After a U.S. Supreme Court ruling that discrimination on the
basis of pregnancy was not discrimination on the basis of sex
under Title VII,34 Congress amended the law by passing the
Pregnancy Discrimination Act (PDA), which specifies that
discrimination based on pregnancy is sex discrimination and
that pregnancy must be treated the same as any other disability,
except that abortions for any purpose other than saving the
mother’s life may be excluded from the company’s medical
benefits. The U.S. Supreme Court has concluded that Congress
intended the PDA to be “a floor beneath which pregnancy
disability benefits may not drop—not a ceiling above which
they may not rise.”35 Consequently, the high court held that a
California statute requiring unpaid maternity leave for pregnant
women and reinstatement after the birth of the child was
constitutional because the intent of the law was to make women
in the workplace equal, not to give them favored treatment.36
34 General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
35 California Federal Savings & Loan Association et al. v.
Department of Fair Employment & Housing et al., 479 U.S. 272
(1987).
36 Id.
In the summer of 2001, the PDA became the basis for the first
ruling on the employment discrimination issue of gender equity
in drug coverage. In a class action lawsuit against Bartell Drug
Company, a Seattle judge ruled that the drugstore chain
discriminated against women when it excluded prescription
contraceptives from its employee health plan.37 Granting
summary judgment to the plaintiff, the judge said, “Male and
female employees have different sex-based disability and health
care needs, and the law is no longer blind to the fact that only
women can get pregnant, bear children, or use prescription
contraception.”38
37 Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D.
Wash. 2001).
38 Id.
In 2015, an important case interpreting the PDA was handed
down by the U.S. Supreme Court. In Young v. UPS,39 the high
court established a new test for determining when an employer’s
failure to accommodate a pregnant woman constitutes a
violation of the act. According to that test, a pregnant employee
denied accommodation can establish a “prima facie” claim of
pregnancy discrimination where she shows that the employer
did accommodate others “similar in their ability or inability to
work.” To avoid liability, the employer must demonstrate that
its denial of the accommodation was based on a legitimate,
nondiscriminatory reason. However, the Supreme Court’s
majority substantially limited the employer’s ability to satisfy
this burden by stating that the employer’s proffered reason
normally cannot consist of a claim that it was more expensive or
less convenient to add pregnant women to the category of those
whom the employer accommodated.
39 575 U.S. (2015).Enforcement Procedures
Enforcement of Title VII is a very complicated procedure and is
full of pitfalls. Failure to follow the proper procedures within
the appropriate time framework may result in the plaintiff’s
losing her or his right to file a lawsuit under Title VII. An
overview of these procedures is provided in Exhibit 21-4.The
Charge
The first step in initiation of an action under Title VII is the
aggrieved party’s filing a charge with the state agency
responsible for enforcing fair employment laws (a state EEOC)
or, if no such agency exists, with the federal EEOC. A charge is
a sworn statement that sets out the name of the charging party,
the name(s) of the defendant(s), and the nature of the
discriminatory act. In states
Exhibit 21-4 Anatomy of a Title VII Case
that do not have state EEOCs, the aggrieved party must file the
charge with the federal EEOC within 180 days of the alleged
discriminatory act. In states that do have such agencies, the
charge must be filed either with the federal EEOC within 180
days of the discriminatory act or with the appropriate state
agency within the time limits prescribed by local law, which
cannot be more than 180 days. If initially filed with the local
agency, the charge must be filed with the federal EEOC within
300 days of the discriminatory act or within 60 days of receipt
of notice that the state agency has disposed of the matter,
whichever comes first. Exhibit 21-5 shows a typical
charge.Conciliation and Filing Suit
Once the EEOC receives the charge, it must notify the alleged
violator of the charge within 10 days. After such notification,
the EEOC investigates the matter in an attempt to ascertain
whether there is “reasonable cause” to believe that a violation
has occurred. If the EEOC does find such reasonable cause, it
attempts to eliminate the discriminatory practice through
conciliation. If unsuccessful, the EEOC may file suit against the
alleged discriminator in federal district court.
If the EEOC decides not to sue, it notifies the plaintiff of his or
her right to file an action and issues the plaintiff a right-to-sue
letter. The plaintiff must have this letter to file a private action.
The letter may be requested any time after 180 days have
elapsed since the filing of the charge. As long as the requisite
time period has passed, the EEOC will issue the right-to-sue
letter regardless of whether the EEOC members find a
reasonable basis to believe that the defendant engaged in
discriminatory behavior.
Exhibit 21-5 A Typical Charge of Discrimination Filed with the
EEOC
Source: United States Department of LabourRemedies
The plaintiff bringing a Title VII action can seek both equitable
and legal remedies. The courts have broad discretion to order
“such affirmative action as may be appropriate.”40 Under this
broad guideline, courts have ordered parties to engage in
diverse activities ranging from publicizing their commitment to
minority hiring to establishing special training programs for
minorities.
40 § 706(a).
In general, a successful plaintiff is able to recover back pay for
up to two years from the time of the discriminatory act. Back
pay is the difference between the amount of pay received after
the discriminatory act and the amount of pay that would have
been received had there been no discrimination. For example, if
two years before the case came to trial the defendant refused a
promotion to a plaintiff on the basis of her sex and the job for
which she was rejected paid $100 more per week than her
current job, she would be entitled to recover back pay in the
amount of $100 multiplied by 104. (If the salary rose at regular
increments, these are also included.) The same basic
calculations are used when plaintiffs were not hired because of
discrimination. Such plaintiffs are entitled to the back wages
they would have received minus any actual earnings during that
time. Defendants may also exclude wages for any period during
which the plaintiff would have been unable to work.
That same plaintiff may also receive remedial seniority dating
back to the time the plaintiff was discriminated against.
The most significant impact of the 1991 Civil Rights Act
resulted from its changes to the availability of compensatory
and punitive damages. Under the new act, plaintiffs
discriminated against because of race (and those discriminated
against on the basis of sex, disability, religion, or national
origin) may recover both compensatory damages, including
those for pain and suffering, and punitive damages. In cases
based on discrimination other than race, however, punitive
damages are capped at $300,000 for employers of more than 500
employees, $100,000 for firms with 101 to 200 employees, and
$50,000 for firms with 100 or fewer employees.
Attorney’s fees are ordinarily awarded to a successful plaintiff
in Title VII cases. They are denied only when special
circumstances would render the award unjust. In those rare
instances in which the courts determine that the plaintiff’s
action was frivolous or unreasonable or was without foundation,
the courts may use their discretion to award attorney’s fees to
the prevailing defendant.Lilly Ledbetter Fair Pay Act of 2009
In many cases, determining when a cause of action accrued can
play a vital role in disposition of the case. Prior to 2007, the
EEOC supported the position that every time an individual
received a paycheck of a discriminatory amount, a new
discriminatory compensation action arose. After every
paycheck, an individual had 180 days to file a claim. In 2007,
the Supreme Court decided, in Ledbetter v. Goodyear Tire &
Rubber Co.,41 that a compensation discrimination charge must
be filed within 180 days of a discriminatory pay-setting
decision. In other words, after an individual received the first
discriminatory paycheck, she or he had 180 days to file a claim;
subsequent paychecks no longer gave rise to new causes of
action. Two years after the Court’s decision in Ledbetter,
President Obama signed the Lilly Ledbetter Fair Pay Act of
2009. That act, which explicitly recognizes the importance of
protecting individuals who are victims of wage discrimination,
restores the pre-Ledbetter policy that each paycheck gives rise
to a new cause of action.
41 550 U.S. 618 (2007).Linking Law and Business Management
Perhaps you learned in your organizational behavior or
management class about biculturalism. This term refers to
instances in which individuals of a particular racial or ethnic
minority class have been socialized in two cultures—the
dominant culture and the individual’s ethnic or racial culture.
Living in two cultures often increases stress, which is referred
to as bicultural stress. Two general characteristics of bicultural
stress are (1) role conflict—the conflict that exists when an
individual fills two competing roles due to his or her dual
cultural membership and (2) role overload—the excess
expectations that result from living in two cultures. The
intensity of these problems tends to increase for women of
color, because of the negative dynamics directed toward both
women and minorities. Hiring minorities can pose adaptation
problems in the workplace for some managers. Accustomed to
the cultural norms of the majority, some managers may be
insensitive to the bicultural stress with which minorities are
often burdened. In addition, managers may not realize that
employees usually do not set aside their values and lifestyle
preferences while at work. Therefore, it is important for
managers to recognize differences and respond in ways that
increase productivity without discriminating. This shift in
management philosophy may include diversity training for
managers and other employees to help them raise behavioral
awareness, recognize biases and stereotypes, avoid assumptions,
and modify policies. Therefore, an acute sensitivity to
differences in the workplace may result in a friendlier
environment where productivity is increased.
On January 29, 2009, President Obama signed the first bill of
his presidency into law, which altered the measures set out in
the Civil Rights Act of 1964 and overturned the Supreme
Court’s decision in the Ledbetter case. The bill was called the
Lilly Ledbetter Fair Pay Act. After the Supreme Court’s opinion
in Ledbetter’s case in 2007, Congress introduced legislation that
would allow an employee six months to sue after every
paycheck received. However, President George Bush opposed
the legislation arguing that it would incite too many lawsuits.
The legislation was put on hold until two years later when
Congress, under President Obama, passed the measure, and
President Obama then signed.The Age Discrimination in
Employment Act of 1967
Our society does not revere age. Older employees detract from a
firm’s “youthful” image and are expensive. They have
accumulated raises over the years and thus earn more than
younger employees. They have pension benefits, which the
employer will have to pay when they retire. They are sometimes
viewed as rigid and unwilling to learn new technology. Thus, it
is understandable that firms may attempt to discriminate against
older employees. The Age Discrimination in Employment Act of
1967 (ADEA) was enacted to prohibit employers from refusing
to hire, discharging, or discriminating in terms and conditions
of employment on the basis of age. The language describing the
prohibited conduct is virtually the same as that of Title VII,
except that a person’s being age 40 or older is the prohibited
basis for discrimination.
Age Discrimination in Employment Act of 1967 (ADEA)
Statute that prohibits employers from refusing to hire,
discharging, or discriminating against people in terms or
conditions of employment on the basis of age.
Although the motivation for the ADEA was to prevent the unfair
treatment of older people in the workplace, after the legislation
had been in place for several years, some began to question
whether the law also prohibited giving older workers more
favorable treatment. In 2004, the U.S. Supreme Court decided
that issue in General Dynamics Land Systems, Inc. v. Dennis
Cline et al.42 In General Dynamics, present and former
employees of General Dynamics brought suit under the ADEA.
General Dynamics had instituted a policy effectively
eliminating a retiree health insurance benefits program for
workers under the age of 50. Those employees who were 50 or
older at the time the policy was enacted would still be eligible
for benefits, but others would not. The Supreme Court held that
discrimination against “the relatively young” was beyond the
scope of the protection offered by the ADEA. According to the
Court’s interpretation, the ADEA was designed to protect a
“relatively old worker from discrimination that works to the
advantage of the relatively young.”43 General Dynamics’ policy
did not violate the ADEA.
42 540 U.S. 581 (2004).
43 Id.
As the U.S. economy started a downward turn in late 2000,
which continued through 2001, age discrimination claims began
to increase. Charges of age discrimination filed with the EEOC
rose from roughly 14,000 in fiscal year 1999 to 16,000 in 2000
and continued to increase to a peak of 22,778 in fiscal year
2009. In 2014, 20,588 charges of age discrimination were filed
and the EEOC secured $77.7 million in benefits for aggrieved
individuals.44
44 U.S. Equal Employment Opportunity Commission, Age
Discrimination in Employment Act (includes concurrent charges
with Title VII, ADA and EPA) FY 1997–FY 2014. Retrieved
May 15, 2010,
from www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.Appli
cability of The Statute
The ADEA applies to employers having 20 or more employees
in an industry that affects interstate commerce. It also applies to
employment agencies and to unions that have at least 25
members or operate a hiring hall. As a result of a Supreme
Court ruling in Kimel v. Florida Board of Regents,45 however,
the act does not apply to state employers.
45 120 S. Ct. 631 (2001).Proving Age Discrimination
Discrimination under the ADEA may be proved in the same
ways that discrimination is proved under Title VII: by the
plaintiff’s showing disparate treatment or disparate impact.
Most of the ADEA cases today involve termination. To prove a
prima facie case of age discrimination involving a termination,
the plaintiff must establish facts sufficient to create a
reasonable inference that age was a determining factor in the
termination. The plaintiff raises this inference by showing that
he or she (1) belongs to the statutorily protected age group (age
40 or older), (2) was qualified for the position held, and (3) was
terminated under circumstances giving rise to an inference of
discrimination.
Until 1996, the plaintiff also had to demonstrate that he or she
was replaced by someone outside the protected class.
In O’Connor v. Consolidated Caterers Corp.,46 however, the
U.S. Supreme Court held that replacement by someone outside
the protected class was not a necessity as long as evidence
showed that the termination was based on age.
46 529 U.S. 62 (2000).Applying the Law to the Facts . . .
Carla worked as a secretary in a law firm. One day she was let
go, but two other secretaries who were retained by the firm
were under 40, while she was over 40. Carla said that because
she had worked at the firm the longest, she deserved to keep her
job and the firm keeping the secretaries younger than 40 proved
age discrimination. Would Carla need any more evidence to
prove her case? How might Carla be confused about the purpose
of the ADEA?
If the plaintiff establishes these three facts, the burden of proof
then shifts to the defendant to prove that there was a legitimate,
nondiscriminatory reason for the discharge. If the employer
meets this standard, the plaintiff may recover only if he or she
can show by a preponderance of the evidence that the
employer’s alleged legitimate reason is really a pretext for a
discriminatory reason.
Initially, circuit courts were split on the evidentiary standard to
which an age discrimination plaintiff must be held. Some courts
have relied only on a pretext standard, as described earlier,
whereas others have required a plaintiff to show direct, not just
inferential, proof of discrimination (known as “pretext
plus”).47 To resolve this circuit court confusion, the Supreme
Court agreed to hear the case, Reeves v. Sanderson Plumbing
Products, Inc.,48 filed by a former employee who raised issues
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
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Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx
Chapter Twenty one Employment DiscriminationBeing an employer was .docx

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Chapter Twenty one Employment DiscriminationBeing an employer was .docx

  • 1. Chapter Twenty one Employment Discrimination Being an employer was so much easier 100 years ago. Managers could use almost any criteria for hiring, promoting, and firing employees. Today, employers’ decision-making powers are restricted by both federal and state laws, many of which are discussed in this chapter. The right of the employer to terminate an employment relationship was originally governed almost exclusively by the employment-at-will doctrine, discussed in the first section of this chapter. The second section discusses the constitutional provisions that affect an employer’s ability to hire and fire workers. The following six sections discuss each of the major pieces of federal legislation designed to prohibit discrimination in employment; these acts are discussed in the order of their enactment. The ninth section discusses the increasingly controversial subject of affirmative action. Global dimensions of employment discrimination are discussed in the final section.Critical Thinking About The Law You will soon be a businessperson and may be responsible for hiring, promoting, and firing people. When you hold this position, you need to be aware of federal and state laws that prohibit discrimination in employment. Why do you think the government has prohibited discrimination in employment? What ethical norm does the government emphasize by prohibiting discrimination in employment? The government seems to emphasize justice, in the sense that it wants all human beings to be treated equally, regardless of class, race, gender, age, and so on. Reading the following case example and answering the critical thinking questions will sharpen your thinking about laws prohibiting employment discrimination. Tom, Jonathan, and Bob were hired to work as executive secretaries at a major corporation. The other secretaries for the corporation were surprised that three men were hired, because no man had ever before been hired as a secretary at the
  • 2. corporation. All secretaries were required to type 20 five-page reports each day in addition to completing work for their respective departments. After the male secretaries had been working at the corporation for approximately one month, they received pay raises. None of the female secretaries received raises. When the women asked the manager why the male secretaries had received raises, the manager claimed that the men were performing extra duties and consequently received raises. 1. The manager claimed that the men received raises because they were performing extra duties. Can you identify any potential problems in the manager’s response? Clue: What words or phrases are ambiguous in the manager’s response? 2. The female secretaries decided to bring a suit against the corporation. They claimed that they did not receive raises because of their gender. Assume that you are a lawyer and the female secretaries have come to you with their complaint. After talking with the secretaries, you realize that you need some additional information. What additional information might be helpful in this case? Clue: The female secretaries claimed that the male secretaries received raises because they are male. Can you think of any alternative reasons why the men might have received raises? 3. You discover only one case regarding equal pay that was decided in your district. In this case, both men and women performed hard labor in a factory, but only men received offers to work during the third shift. Those employees who worked the third shift received an additional $30 per hour. The women in this factory claimed that they were not asked to work the third shift because of their gender. The factory argued that the women who worked at the factory were not physically strong enough to endure the work of the third shift. The court ruled in favor of the women. Do you think that you should use this case as an analogy? Why or why not? Clue: How are the two cases similar? How are they
  • 3. different?The Employment-at-Will Doctrine In all industrial democracies except the United States, workers are protected by law from unjust termination. The traditional “American rule” of employment—the employment-at-will doctrine—has been that a contract of employment for an indeterminate term is terminable at will by either party. Thus, an employee who did not have a contract for a specific length of time could be terminated at any time, without notice, for any reason. For example, Melissa Nelson, a dental assistant, was fired from her job because her employer found Ms. Nelson “irresistible” and feared he might try to have an extramarital affair with her.1 1 Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 66 (Iowa 2013). employment-at-will doctrine A contract of employment for an indeterminate term is terminable at will by either the employer or the employee; the traditional American rule governing employer–employee relations. This doctrine has been justified by the right of the employer to control its property and on the grounds that it is fair because both employer and employee have the equal right to terminate the relationship. Some question the latter justification because the employer usually can replace a terminated employee, whereas it is not equally easy for the employee to find a new job. Thus, the employment-at-will doctrine places the employer in a position to treat employees arbitrarily. The doctrine has been slowly restricted by state and federal legislation, as well as by changes in the common law. One of the first laws to restrict the employer’s right to freely terminate employees was the National Labor Relations Act (discussed in Chapter 20), which has reduced the number of employees covered by the employment-at-will doctrine. This reduction has occurred because the act gives employees the right to enter into collective bargaining agreements, which usually restrict the employer’s ability to terminate employees except for “just
  • 4. cause.” Employees covered by these agreements are thus no longer “at-will” employees. The doctrine has also been restricted by common-law and state statutory exceptions, which fall into three categories: implied contract, violations of public policy, and implied covenant of good faith and fair dealing. In some states, the courts find that an implied contract may arise from statements made by the employer in advertising the position or including them in an employment manual. For example, sometimes a company provides an employment manual delineating the grounds for termination but not containing any provision for termination “at will.” Under such circumstances, if the court finds that the employee reasonably relied on the manual, the court will not apply the employment-at-will doctrine and will allow termination only for the reasons stated in the manual. Thirty- seven states and the District of Columbia recognize this exception. The public policy exception prohibits terminations that contravene established public policy. “Public policy” varies from state to state, but some of the terminations commonly deemed unlawful include dismissals based on actions “in the public interest,” such as participation in environmental or consumer protection activities, and dismissals resulting from whistleblowing. Many states have also cut away at the employment-at-will doctrine with laws that specifically prohibit the termination of employees in retaliation for such diverse activities as serving jury duty, performing military service, filing for or testifying at hearings for workers’ compensation claims, whistleblowing, and refusing to take lie- detector tests. A total of 43 states accept the public policy exception. public policy exception An exception to the employment-at-will doctrine that makes it unlawful to dismiss an employee for taking certain actions in the public interest. Eleven states recognize the implied covenant of good faith and fair dealing exception. This theory holds that every employment
  • 5. contract, even an unwritten one, contains an implicit understanding that the parties will deal fairly with one another. Because there is no clear agreement on what constitutes “fair treatment” of an employee, this theory is not often used. implied covenant of good faith and fair dealing exception An exception to the employment-at-will doctrine, based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other. Many federal laws also restrict the employment-at-will doctrine. Employees cannot be fired for filing a complaint, testifying, or causing a hearing to be instituted regarding the payment of the minimum wage, equal pay, or overtime. Pursuit of a discrimination claim is likewise statutorily protected. The doctrine of employment-at-will, however, still exists and is strongly adhered to in many states. So although the doctrine is being cut back and business managers of the future therefore cannot rely on its continued availability, it may be a long time before the doctrine is no longer applicable. As its applicability varies from state to state, however, familiarity with the parameters of the doctrine in one’s own state is extremely important. Table 21-1 breaks down which states accept each of the three major exceptions.Table 21-1 Exceptions to THE Employment-at-will Doctrine Public Policy Exception Implied Contract Exception Good Faith and Fair Dealing Exception Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming Alabama, Alaska, Arizona, Arkansas, California, Colorado,
  • 6. Connecticut, District of Columbia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah, WyomingTable 21- 2 Federal Statutes Prohibiting Discrimination in Employment Law Prohibited Conduct Remedies Civil Rights Acts of 1866 and 1871, codified as 42 U.S.C. §§ 1981 and 1982 Discrimination on the basis of race and ethnicity Compensatory damages, including several years of back pay, punitive damages, attorney’s fees, court costs, and court orders Equal Pay Act of 1963 Wage discrimination on the basis of sex Back pay, liquidated damages equivalent to back pay (if defendant was not acting in good faith), attorney’s fees, and court costs Civil Rights Acts of 1964 (Title VII) and 1991 Discrimination in terms and conditions of employment on the basis of race, color, religion, sex, or national origin Back pay for up to two years; remedial seniority; compensatory damages; punitive damages (may be limited due to class); attorney’s fees, court costs; and court orders for whatever actions are appropriate including reinstatement and affirmative action Age Discrimination in Employment Act of 1969 Discrimination in terms and conditions of employment on the basis of age when the affected individual is age 40 or older Back pay, liquidated damages equal to back pay (if defendant acted willfully), attorney’s fees, court costs, and appropriate
  • 7. court orders including reinstatement Rehabilitation Act of 1973 Discrimination by government or governmental contractor on the basis of a handicap Back pay, attorney’s fees, court costs, and court orders for appropriate affirmative action Americans with Disabilities Act of 1991 Discrimination in employment on the basis of a disability Hiring, promotion, reinstatement, back pay, reasonable accommodation, compensatory damages, and punitive damages Constitutional Provisions The beginnings of antidiscrimination law can be traced back to three constitutional provisions: the Fifth Amendment, which states that no person may be deprived of life, liberty, or property without due process of law; the Thirteenth Amendment, which abolished slavery; and the Fourteenth Amendment, which granted former slaves all the rights and privileges of citizenship and guaranteed the equal protection of the law to all persons. These provisions alone, however, were not sufficient to prohibit the unequal treatment of citizens on the basis of their race, sex, age, religion, and national origin. Congress needed to enact major legislation to bring about a reduction in discrimination. These laws, referred to as civil rights laws and antidiscrimination laws, are summarized in Table 21-2 and discussed in detail in the following sections. The first major civil rights act was passed immediately after the Civil War: the Civil Rights Act of 1866 (42 U.S.C. Section 1981). This act was designed to effectuate the Thirteenth Amendment and guarantees that all persons in the United States have the same right to make and enforce contracts and have full and equal benefit of the law. The Civil Rights Act of 1871 (42 U.S.C. Section 1982) prohibited discrimination by state and local governments. Initially used only when there was state action, today these acts are also used against purely private discrimination, especially in employment. Civil Rights Act of 1866
  • 8. Statute guaranteeing that all persons in the United States have the same right to make and enforce contracts and have the full and equal benefit of the law. Civil Rights Act of 1871 Statute that prohibits discrimination by state and local governments.The Civil Rights Acts of 1866 and 1871Applicability of The Acts Initially, the civil rights acts were interpreted very narrowly to prohibit discrimination based only on race. For several years, circuit courts of appeals were split as to how race is defined. In June 1986, the U.S. Supreme Court resolved that issue by holding that both an Arabic and Jewish individual were protected by the Civil Rights Act of 1866. Justice White, writing the majority opinion in Saint Francis College et al. v. Majid Ghaidan Al-Khazraji,2 said that it was clear from the legislative history that the act was intended to protect from discrimination “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics, even if those individuals would be considered part of the Caucasian race today.” Thus, today these laws have a broader application. 2 483 U.S. 1011 (1987). The accompanying case, filed by a Jewish plaintiff, was Shaare Tefila Congregation et al. v. John William Cobb et al., 481 U.S. 615 (1987).Remedies The acts themselves do not have specific provisions for remedies. A wide variety of both legal remedies (money damages) and equitable remedies (court orders) have been awarded under these statutes. The courts are free under these acts to award compensatory damages, that is, damages designed to make the plaintiff “whole” again, which may amount to several years of back pay. The courts may also award punitive damages, an amount intended to penalize the defendant for wrongful conduct. Finally, the courts may require the defendant to pay the plaintiff’s attorney’s fees.Procedural Limitation Unlike most antidiscrimination laws, the Civil Rights Acts of 1866 and 1871 do not require the plaintiff to first attempt to
  • 9. resolve the discrimination problem through administrative procedures. The plaintiff simply files the action in federal district court within the time limit prescribed by the state statute of limitations, requesting a jury trial if one is desired. Often, a claim under the 1866 or 1871 Civil Rights Act will be added to a claim under another antidiscrimination statute.The Equal Pay Act of 1963 The next major piece of federal legislation to address the problem of discrimination was the Equal Pay Act of 1963, an amendment to the Fair Labor Standards Act. Enacted at a time when the average wages of women were less than 60 percent of those of men, the act was designed with a very narrow focus: to prevent wage discrimination based on sex within a business establishment. It was designed primarily to remedy the situations in which women, working alongside men or replacing men, were being paid lower wages for doing substantially the same job. Equal Pay Act of 1963 Statute that prohibits wage discrimination based on sex. As stated in 29 U.S.C. Section 206(d)(1), the act prohibits any employer from discriminating within any “establishment” between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) differential based on any factor other than sex.* In the typical Equal Pay Act case, the burden of proof is initially on the plaintiff to show that the defendant-employer pays unequal wages to men and women for doing equal work at the same establishment. Two questions necessarily arise: What is equal work? What is an establishment?Equal Work
  • 10. The courts have interpreted equal to mean substantially the same in terms of all four factors listed in the act: skill, effort, responsibility, and working conditions. If the employer varies the actual job duties affecting any one of those factors, there is no violation of the act. For example, if jobs are equal in skill and working conditions but one requires greater effort whereas the other requires greater responsibility, the jobs are not equal. Obviously, a sophisticated employer could easily vary at least one duty and then pay men and women different wages or salaries. Skill is defined as experience, education, training, and ability required to do the job. Effort refers to physical or mental exertion needed for performance of the job. Responsibility is measured by the economic and social consequences that would result from a failure of the employee to perform the job duties in question. Similar working conditions refers to the safety hazards, physical surroundings, and hours of employment. An employer, however, is entitled to pay a shift premium to employees working different shifts, as long as the employer does not use sex as a basis for determining who is entitled to work the higher-paying shifts.Extra Duties Sometimes, employers try to justify pay inequities on the grounds that employees of one sex are given extra duties that justify their extra pay. The courts scrutinize these duties very closely. The duties are sufficient to preclude a finding of equal work only if: 1. the duties are actually performed by those receiving the extra pay; 2. the duties regularly constitute a significant portion of the employee’s job; 3. the duties are substantial, as opposed to inconsequential; 4. additional duties of a comparable nature are not imposed on workers of the opposite sex; and 5. the extra duties are commensurate with the pay differential. In some jurisdictions, the additional duties must also be available on a nondiscriminatory basis.Establishments
  • 11. One business location is obviously an establishment, but if an employer has several locations, they may all be considered part of the same establishment on the basis of an analysis of the company’s labor relations policy. The greater the degree of centralized authority for hiring, firing, wage setting, and other human resource matters, the more likely the courts are to find multiple locations to be a single establishment. The more freedom each facility has to determine its own human resource policies, the more likely the court will find it to be independent of other facilities.Defenses Once an employee establishes that an employer is paying different wages to employees of different sexes doing substantially equal work, there are certain defenses the employer can raise. These are, in essence, legal justifications for paying unequal wages to men and women. The first defense that an employer may use is that the pay differential is based on one of the four statutory exceptions found in the Bennett Amendment to the Equal Pay Act. If the wage differential is based on one of these four factors, the differential is justified and the employer is not in violation of the act. The four factors are: 1. A bona fide seniority system 2. A bona fide merit system 3. A pay system based on quality or quantity of output 4. Factors other than sex The first three factors are fairly straightforward. Seniority-, merit-, and productivity-based wage systems must be enacted in good faith and must be applied to both men and women. As minimal evidence of good faith, any such system should be written down. The fourth factor presents greater problems. Circumstances such as greater availability of females and their willingness to work for lower wages do not constitute “factors other than sex.” One frequently litigated factor is training programs. A training program that requires trainees to rotate through jobs that are normally paid lower wages will be upheld as long as it is a bona
  • 12. fide training program and not a sham for paying members of one sex higher wages for doing the same job. The court will look at each case individually, but factors that would lead to a training program’s being found bona fide include a written description of the training program that is available to employees, nondiscriminatory access to the program for members of both sexes, and demonstrated awareness of the availability of the program by employees of both sexes.Remedies An employer found to have violated the act cannot remedy the violation by reducing the higher-paid workers’ wages or by transferring those of one sex to another job so that they are no longer doing equal work. A person who has been subjected to an Equal Pay Act violation may bring a private action under Section 16(b) of the act and recover back pay in the amount of the differential paid to members of the opposite sex. If the employer did not act in good faith in paying the discriminatory wage rates, the court will also award the plaintiff damages in an additional amount equal to the back pay. A successful plaintiff is also entitled to attorney’s fees.The Civil Rights Act of 1964, as Amended (Title VII), and the Civil Rights Act of 1991 The year after it passed the Equal Pay Act, Congress passed the Civil Rights Act of 1964. Title VII of this act is the most common basis for lawsuits premised on discrimination, because it covers a broader area of potential claimants than does either of the statutes that were discussed previously. Title VII prohibits employers from (1) hiring, firing, or otherwise discriminating in terms and conditions of employment and (2) segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin. These five categories are known as protected classes. Title VII Statute that prohibits discrimination in hiring, firing, or other terms and conditions of employment on the basis of race, color, religion, sex, or national origin.
  • 13. Today’s business manager must be familiar with Title VII, because the number of claims filed under the act is significant. According to the Equal Employment Opportunity Commission (EEOC), the total number of charges filed in 2014 was 88,778.3 That number is lower than the 93,727 claims filed in 2013, making 2014 the fourth year in a row that the total number of claims filed has declined. 3 EEOC, Charge Statistics FY 1997 through 2014. Available at www.eeoc.gov/eeoc/statistics /enforcement/charges.cfm.Applicability of The Act Employers covered by Title VII include only those who have 15 or more employees, that year or last, for 20 consecutive weeks and are engaged in a business that affects interstate commerce. In 1994, the term employer was broadened to include the U.S. government, corporations owned by the government, and agencies of the District of Columbia. The act also covers Indian tribes, private clubs, unions, and employment agencies. In addition to prohibiting discrimination by covered employers, unions, and employment agencies, the act also imposes recordkeeping and reporting requirements on these parties. Covered parties must maintain all records regarding employment opportunities for at least six months. Such records include job applications, notices for job openings, and records of layoffs. If an employment discrimination charge is filed against an employer, such records must be kept until the case is concluded. EEO-1 forms (forms containing information concerning the number of minorities in various job classifications) must be filed annually with the EEOC by employers of more than 100 workers. A copy of this form is shown in Exhibit 21-1. Finally, each covered employer must display a summary of the relevant portions of Title VII where the employees can see it. The notice must be printed in a language that the employees can read.Proof in Employment Discrimination Cases The burden of proof in a discrimination case is initially on the plaintiff. He or she attempts to establish discrimination in one
  • 14. of three ways: (1) disparate treatment, (2) disparate impact, or (3) harassment.Disparate Treatment Disparate treatment occurs when one individual is treated less favorably than another because of color, race, religion, sex, or national origin. The key in such cases is proving the employer’s unlawful discriminatory motive. This process is referred to as building a prima facie case. disparate treatment Occurs when the employer treats one employee less favorably than another because of that employee’s color, race, religion, sex, or national origin. The plaintiff must establish the following set of facts: (1) The plaintiff is within one of the protected classes, (2) he or she applied for a job for which the employer was seeking applicants for hire or promotion, (3) the plaintiff possessed the minimum qualifications to perform that job, (4) the plaintiff was denied the job or promotion, and (5) the employer continued to look for someone to fill the position. Once the plaintiff establishes these facts, the burden shifts to the defendant to articulate legitimate and nondiscriminatory business reasons for rejecting the plaintiff. Such reasons for a failure to promote, for instance, might include a poor work record or excessive absenteeism. If the employer meets this burden, the plaintiff must then demonstrate that the reasons the defendant offered were just a pretext for a real discriminatory motive. In other words, the alleged reason was not the real reason; it was just put forth because it sounded good. One way in which the plaintiff can demonstrate pretext is by showing that the criteria used to reject the plaintiff were not applied to others in the same situation. Introducing past discriminatory policies would also be relevant, as would statistics showing a general practice of discrimination by the defendant. At the pretext stage, the issue of proving an employer’s intent to discriminate appears first and is usually the key to the plaintiff’s winning or losing the case. Exhibit 21-2 shows how the burden of proof shifts in a disparate treatment
  • 15. case.Disparate Impact As complex as disparate treatment cases are, disparate impact cases are even more difficult to establish. Disparate impact cases arise when a plaintiff attempts to establish that an employer’s facially neutral employment policy or practice has a discriminatory effect or impact on a protected class. In other words, a requirement of the policy or practice applies to everyone equally, but in application, it disproportionately limits employment opportunities for a particular protected class. Exhibit 21-1 EEO-1 Form Source: United States Department of Labour Exhibit 21-2 The Shifting Burden of Proof in a Disparate Treatment Case disparate impact Occurs when the employer’s facially neutral policy or practice has a discriminatory effect on employees who belong to a protected class. To establish a case of discrimination based on disparate impact, the plaintiff must first establish statistically that the rule disproportionately restricts employment opportunities for a protected class. The burden of proof then shifts to the defendant to demonstrate that the practice or policy is a business necessity. The plaintiff, at this point, can still recover by proving that the “necessity” was promulgated as a pretext for discrimination. The first two steps for proving a prima facie case of disparate impact were laid out in Griggs v. Duke Power Co.4 In that case, the employer-defendant required all applicants to have a high school diploma and a successful score on a professionally recognized intelligence test for all jobs except that of laborer. By establishing these criteria, the employer proposed to upgrade the quality of its workforce. 4 401 U.S. 424 (1971). The plaintiff demonstrated the discriminatory impact by showing that 34 percent of the white males in the state had high
  • 16. school diplomas whereas only 12 percent of the black males did and by introducing evidence from an EEOC study showing that 58 percent of the whites compared with 6 percent of the blacks had passed tests similar to the one given by the defendant. The defendant could show no business-related justification for either employment policy, so the plaintiff was successful. Not all employees of Duke Power needed to be smart or have high school diplomas. After all, when does a student in high school learn how to install power lines or repair company vehicles? A high IQ or a high school or college diploma may be necessary for some jobs, but not for all jobs at Duke Power.Harassment The third way to prove discrimination is to demonstrate harassment. Harassment is a relatively new basis for a discrimination claim; it first developed in the context of discrimination based on sex and then evolved to become applicable to other protected classes. The definition of sexual harassment stated in the EEOC Guidelines and accepted by the U.S. Supreme Court is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that implicitly or explicitly make submission a term or condition of employment, make employment decisions related to the individual dependent on submission to or rejection of such conduct, or have the purpose or effect of creating an intimidating, hostile, or offensive environment. sexual harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly make submission a term or condition of employment or creates an intimidating, hostile, or offensive environment. The courts have recognized two distinct forms of sexual harassment. The first, quid pro quo, occurs when a supervisor makes sexual demands on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment. The basis for this rule is that similar demands
  • 17. would not be made by the supervisor on someone of the same sex. The second form of sexual harassment involves the creation of a hostile environment. Case 21-1 demonstrates the standards used by the U.S. Supreme Court to determine whether an employer’s conduct has indeed created a hostile work environment. Case 21-1 Teresa Harris v. Forklift Systems, Inc. United States Supreme Court 510 U.S. 17 (1994) Plaintiff Harris was a manager for Defendant Forklift Systems, Inc. During her tenure at Forklift Systems, Plaintiff Harris was repeatedly insulted by the defendant’s president and, because of her gender, subjected to sexual innuendos. Numerous times in front of others, the president told Harris, “You’re just a woman. What do you know?” He sometimes asked Harris and other female employees to remove coins from his pockets and made suggestive comments about their clothes. He suggested to Harris in front of others that they negotiate her salary at the Holiday Inn. When Harris complained, he said he would stop, but he did not; so she quit and filed an action against the defendant for creating an abusive work environment based on her sex. The district court found in favor of the defendant, holding that some of the comments were offensive to the reasonable woman but were not so serious as to affect Harris’s psychological well- being severely or to interfere with her work performance. The court of appeals affirmed. Plaintiff Harris appealed to the U.S. Supreme Court.Justice O’Connor In this case we consider the definition of a discriminatorily “abusive work environment” (a “hostile work environment”) under Title VII. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” . . . [T]his language “is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of
  • 18. employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an ‘epithet which engenders offensive feelings in a employee,’ does not sufficiently affect conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive”—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well- being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “so heavily polluted with discrimination as to destroy completely the emotional and psychological
  • 19. stability of minority group workers,” merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable. We therefore believe the District Court erred in relying on whether the conduct “seriously affected plaintiff’s psychological well-being” or led her to “suffer injury.” Such an inquiry may needlessly focus the fact-finder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious. This is not, and by its nature cannot be, a mathematically precise test. But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well- being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.* Reversed and remanded in favor of Plaintiff, Harris.Critical Thinking About The Law As was previously touched upon, the judiciary most often operates in relationship to shades of gray and not to the black and white between which those shades lie. The Court’s decision in Case 21-1, in large part dependent on its determination of a definition, illustrates this point. The Court’s primary test was to decide what constitutes an “abusive work environment,” the second type of sexual harassment actionable under Title VII. Deciding on such a
  • 20. definition is not as easy as going to a legal dictionary and looking up “abusive work environment.” The Court had to interpret the meaning of such an environment, and important to this interpretation were legal precedent, ambiguity, and primary ethical norms. Hence, the questions that follow will aid in thinking critically about these factors influential in the Court’s interpretation. 1. What ambiguous language did the Court leave undefined in Case 21-1? Clue: To find this answer, look at the Court’s definition of an “objectively hostile work environment.” As always, remember that ambiguities are most often adjectives. 2. In her discussion of the precedent, Justice O’Connor made it clear that the district court misinterpreted the decision in rendering its decision. Contrary to the district court’s decision, the existence of which key fact was not necessary for the Court to find the defendant guilty of sexual harassment? Clue: Revisit the paragraph discussing the district court’s dismissal of Harris’s claim. On what basis was this dismissal made? This is the key fact the existence of which the Supreme Court found unnecessary for judgment in favor of the plaintiff. Since Meritor, conflicting lower-court decisions have created confusion in the area of sexual harassment. It appeared that in a quid pro quo case, a company was liable regardless of its knowledge, but in a hostile environment case, a company could not be held liable without direct knowledge of the situation. Another question was whether there could be recovery when only empty threats were made. For example, in Jones v. Clinton,5 the district court judge threw out Jones’s sexual harassment case against the president because Jones had no clear and tangible job detriment (necessary to establish a quid pro quo case), and she was not subject to a hostile environment when the totality of the circumstances was viewed. Even if the allegations were true, the contacts did not constitute “the kind of pervasive, intimidating, abusive conduct”6 necessary for a hostile environment.
  • 21. 5 No. LR-C-94-290 (E.D. Ark. 1998). 6 Id. The U.S. Supreme Court attempted to clarify these issues in Ellerth v. Burlington.7 Ellerth was subjected to a litany of dirty jokes and sexual innuendos from her boss. He propositioned her and threatened to make her life miserable if she refused him. She refused him without reprisals and was even promoted. She did not complain about harassment but quit after a year because she could not stand the threats and innuendos. 7 118 S. Ct. 2275 (1998). In a decision that offered something to both plaintiffs and defendants, the high court ruled that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability [by showing that] (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action.8 * 8 Id. The Court then remanded the case to the lower court for a new trial. Under limited circumstances, employers may be held liable for harassment of their employees by nonemployees: If an employer knows that a customer is harassing an employee but does nothing to remedy the situation, the employer may be liable. For example, in Lockhard v. Pizza Hut Inc.,9 the franchise was held liable when the company failed to take any steps to stop the harassment of a waitress by two male customers.
  • 22. 9 162 F.3d 1062 (10th Cir. 1998).Same-Sex Harassment Initially, same-sex harassment did not constitute sexual harassment. In the first appellate case on this issue, a male employee sued his employer for sexual harassment, alleging that on several occasions, his male supervisor had approached him from behind and grabbed his crotch.10 The court of appeals affirmed the trial court’s dismissal of the claim on the grounds that no prima facie case had been established. The court said that Title VII addressed gender discrimination, and harassment by a male supervisor of a male employee did not constitute sexual harassment, regardless of the sexual overtones of the harassment. 10 Garcia v. Elf Atochem, 28 F.3d 466 (5th Cir. 1994). However, the circuit courts soon became split on whether one could be sexually harassed by a person of the same sex. The U.S. Supreme Court finally rendered a definitive answer to that issue in the case of Joseph Oncale v. Sundowner Offshore Services,11 with its holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant are of the same sex.”12 As long as the discrimination was because of the victim’s sex, it was actionable. 11 118 S. Ct. 998 (1998). 12 Id.Hostile Environment Extended Hostile environment cases have also been used in cases of discrimination based on religion, race, and even age.13 For example, in one case,14 Hispanic and black corrections workers demonstrated that a hostile work environment existed by proving that they had been subjected to continuing verbal abuse and racial harassment by coworkers and that the county sheriff’s department had done nothing to prevent the abuse. The white employees had continually used racial epithets and posted racially offensive materials on bulletin boards, such as a picture of a black man with a noose around his neck, cartoons favorably portraying the Ku Klux Klan, and a “black officers’ study guide” consisting of children’s puzzles. White officers once
  • 23. dressed a Hispanic inmate in a straw hat, sheet, and sign that said “spic.” Such activities were found by the court to constitute a hostile work environment. 13 Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996). 14 Snell v. Suffolk County, 782 F.2d 1094 (1986).A New Limitation on the Employer’s Liability As explained previously, to win a lawsuit for harassment by customers, the employee must show that the employer knew of the harassment and did nothing to stop it. Similarly, if the harassment is by a coworker, the employee must show that the employer is negligent in responding to complaints about harassment. But to win a lawsuit for harassment by a supervisor, the employer does not have to be negligent because Title VII imputes the supervisor’s acts to the employer. In 2013, in the following case, the U.S. Supreme Court made it more difficult for plaintiffs to win harassment cases by limiting the definition of who can be considered a supervisor. Like so many other cases, this one was a 5–4 decision. Case 21-2 Vance v. Ball State University United States Supreme Court 133 S. Ct. 2423 (2013) Maetta Vance claimed that Saundra Davis, a catering specialist, had made Vance’s life at work contentious through physical acts and racial harassment. Vance sued her employer, Ball State University, for workplace harassment by a supervisor. Vance argued that Davis was a supervisor, whereas Ball State claimed that Davis was not actually Vance’s supervisor. The District Court and Court of Appeals for the 7th Circuit determined that Davis was not Vance’s supervisor because Davis did not have the power to direct the terms and conditions of Vance’s employment and granted summary judgment to Ball State. The 7th Circuit agreed that Davis was not a supervisor and, therefore, the university could not be held vicariously liable. Vance appealed to the U.S. Supreme Court.Justice Alito In this case, we decide . . . who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for
  • 24. workplace harassment? Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. . . . Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker . . . . . . For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’s duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. . . . We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”* Affirmed, in favor of Defendant Ball State University.Retaliation In addition to protecting an employee from discrimination, Title VII also makes it unlawful for an employer to retaliate against an employee who has reported or otherwise complained about discrimination under the act. To prove a prima facie retaliation
  • 25. claim against an employer, the employee must show three things: 1. The employee engaged in a protected activity under the act, such as complaining of, participating in an investigation of, or filing a formal charge about perceived discrimination under Title VII or refusing to participate in conduct the employee reasonably believed was unlawful under Title VII. 2. The employee was fired, demoted, or suffered some other adverse employment action. 3. The employee’s protected activity was the cause of or the determining factor for the adverse employment action. Until the U.S. Supreme Court decided the case of University of Texas Southwestern Medical Center v. Nassar,15 the third factor was easier to prove because the protected activity could be simply a motivating factor in the decision, which is the standard for a discrimination case. But in this recent case, the court tightened the standard from a motivating factor to “the determinative factor.” In this 5–4 decision, Justice Kennedy said that it was important to have the proper causation standard in retaliation cases because the number of such cases filed with the EEOC had nearly doubled in the last 15 years, rising to more than 31,000 in 2012. During fiscal year 2014, that number had risen to 37,955.16 15 133 S. Ct. 2517 (2013). 16 U.S. Equal Employment Opportunity Commission, EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data, February 4, 2015. Available at www1.eeoc.gov/eeoc/newsroom/release /2-4-15.cfm. In 2015, the 4th Circuit Court of Appeals handed down a decision that some corporate counsel fear will increase the number of retaliation cases even more because it will expand the number of situations wherein a retaliation case will make it to the jury. Case 21-3 Reya C. Boyer-Liberto v. Fontainbleu Corporation United States Court of Appeals for the 4th Circuit 2015 U.S. App. LEXIS 7557 (2015)
  • 26. Reya C. Boyer-Liberto, an African American woman, sued her former employer for racial discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She based her racial discrimination claim on a hostile work environment allegedly created by two conversations she had with a coworker about an incident that occurred on September 14, 2010. During the conversations, which took place on two consecutive days, the coworker twice called Liberto a “porch monkey.” And she grounds her retaliation claim on the termination of her employment after she complained about the statements. The district court granted the defendants’ motion for summary judgment, concluding that the conduct was too isolated to support either of Liberto’s claims. Liberto appealed. In a 2–1 decision, a panel of the 4th Circuit affirmed the lower court’s decision, but its decision was vacated by the 4th Circuit’s granting Liberto a rehearing en banc.Circuit Judge King . . . [W]e now vacate the judgment of the district court and remand for further proceedings on Liberto’s claims. In so doing, we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Raton . . . that an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone . . . . . . The district court then invoked Jordan for the proposition that an “isolated racist comment” is “a far cry from . . . an environment of crude and racist conditions so severe or pervasive that they alter[] the conditions of [plaintiff’s] employment.” . . . In concomitantly rejecting Liberto’s retaliation claims, the court again looked to Jordan and ruled that “no objectively reasonable person could have believed that the [plaintiff’s work environment] was, or was soon going to be, infected by severe or pervasive racist, threatening, or
  • 27. humiliating harassment.” The panel decision was unanimous that the defendants were properly awarded summary judgment on Liberto’s hostile work environment claims, in that Clubb’s “use of [the term ‘porch monkey’] twice in a period of two days in discussions about a single incident, was not, as a matter of law, so severe or pervasive as to change the terms and conditions of Liberto’s employment.” The panel observed that Liberto had “not pointed to any Fourth Circuit case, nor could she, finding the presence of a hostile work environment based on a single incident.” . . . The panel was split, however, with respect to Liberto’s retaliation claims. The opinion of the panel majority validated the district court’s summary judgment award on those claims, explaining that, “if no objectively reasonable juror could have found the presence of a hostile work environment . . . it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.” Although the panel majority allowed that an “employee’s opposition may be protected before the hostile environment has fully taken form,” the majority faulted Liberto for failing to “present any indicators that the situation at the Clarion would have ripened into a hostile work environment.” In thus vacating the summary judgment award on Liberto’s hostile work environment claims, we identify this as the type of case contemplated in Faragher where the harassment, though perhaps “isolated,” can properly be deemed to be “extremely serious.” We reject, however, any notion that our prior decisions . . . were meant to require more than a single incident of harassment in every viable hostile work environment case. . . . Turning to Liberto’s retaliation claims, Title VII proscribes discrimination against an employee because, in relevant part, she “has opposed any practice made an unlawful employment practice by this subchapter.” Employees engage in protected oppositional activity when they “complain to their superiors about suspected violations of Title VII.” . . . To establish a prima facie case of retaliation in contravention of Title VII, a
  • 28. plaintiff must prove “(1) that she engaged in a protected activity,” as well as “(2) that her employer took an adverse employment action against her,” and “(3) that there was a causal link between the two events.”. . . . A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements. . . . In the context of element one of a retaliation claim, an employee is protected when she opposes “not only . . . employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful.” . . . The Title VII violation may be complete, or it may be in progress. . . . “Navy Federal holds that an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress.” . . . In other words, an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress. The panel majority in Jordan ruled that, where an employee has complained to his employer of an isolated incident of harassment insufficient to create a hostile work environment, the employee cannot have possessed a reasonable belief that a Title VII violation was in progress, absent evidence “that a plan was in motion to create such an environment” or “that such an environment was [otherwise] likely to occur.” . . . We reject that aspect of Jordan today, however, for several reasons. First of all, the Jordan standard “imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment.” The Jordan standard also is at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment. Where the harasser is her supervisor and no tangible employment action has been taken, the victim is compelled by the Ellerth/Faragher defense
  • 29. to make an internal complaint, i.e., “to take advantage of any preventive or corrective opportunities provided by the employer.” . . . Similarly, the victim of a co-worker’s harassment is prudent to alert her employer in order to ensure that, if the harassment continues, she can establish the negligence necessary to impute liability. . . . The reporting obligation is essential to accomplishing Title VII’s “primary objective,” which is “not to provide redress but to avoid harm.” . . . But rather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm, the Jordan standard deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation. Such a lack of protection is no inconsequential matter, for “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” . . . The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? We conclude that, when assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment. . . . That assessment thus involves factors used to judge whether a workplace is sufficiently hostile or abusive for purposes of a hostile environment claim—specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.” . . . Of course, a single offensive utterance . . . generally will not create a hostile environment without significant repetition or an escalation in the harassment’s severity. . . . But an isolated incident that is physically threatening or humiliating will be closer—even if not equal—to the type of conduct actionable on its own because it is “extremely serious.”. . . Accordingly, as relevant here, an employee will have a reasonable belief that a hostile work environment is occurring
  • 30. based on an isolated incident if that harassment is physically threatening or humiliating. This standard is consistent not only with Clark County, but also with other Supreme Court precedent, including Crawford and Burlington Northern. That is so because it protects an employee like Jordan who promptly speaks up “to attack the racist cancer in his workplace,” rather than “remain[ing] silent” and “thereby allowing [discriminatory] conduct to continue unchallenged,” while “forfeiting any judicial remedy he might have.” . . . In sum, under the standard that we adopt today with guidance from the Supreme Court, an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating. . . . Because the defendants contested Liberto’s retaliation claims on the lone ground that she did not engage in a protected activity, our analysis is limited to whether a jury could find that Liberto reasonably believed there was a hostile work environment in progress when she reported Clubb’s use of the “porch monkey” slur. Applying the standard that we adopt today, the answer plainly is “yes.” As we recognized in analyzing Liberto’s hostile work environment claims, “porch monkey” is a racial epithet that is not just humiliating, but “degrading and humiliating in the extreme.” . . . Indeed, we determined that a reasonable jury could find that Clubb’s two uses of “porch monkey” were serious enough to engender a hostile environment. We must further conclude, therefore, in the context of the retaliation claims, that Liberto has made the lesser showing that the harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring. Accordingly, we vacate the summary judgment award on Liberto’s retaliation claims, in addition to her hostile work
  • 31. environment claims. We also underscore that, on remand, a jury would be entitled to simultaneously reject the hostile work environment claims on the ground that Clubb’s conduct was not sufficiently serious to amount to a hostile environment, but award relief on the retaliation claims by finding that Clubb’s conduct was severe enough to give Liberto a reasonable belief that a hostile environment, although not fully formed, was in progress. . . . Contrary to the dissent, we seek to promote the hope and expectation—ingrained in our civil rights laws and the Supreme Court decisions interpreting them—that employees will report harassment early, so that their employers can stop it before it rises to the level of a hostile environment. Employers are powerless in that regard only if they are unaware that harassment is occurring. But employees will understandably be wary of reporting abuse for fear of retribution. Under today’s decision, employees who reasonably perceive an incident to be physically threatening or humiliating do not have to wait for further harassment before they can seek help from their employers without exposing themselves to retaliation.* Reversed, in favor of Petitioner Liberto.Statutory Defenses The three most important defenses available to defendants in Title VII cases are bona fide occupational qualification (BFOQ), merit, and seniority. These defenses are raised by the defendant after the plaintiff has established a prima facie case of discrimination based on disparate treatment, disparate impact, or a pattern or practice of discrimination.Bona Fide Occupational Qualification The BFOQ defense allows an employer to discriminate in hiring on the basis of sex, religion, or national origin when such a characteristic is necessary to the performance of the job. Race or color cannot be a BFOQ. Such necessity must be based on actual qualifications, not on stereotypes about one group’s abilities. Being a male cannot be a BFOQ for a job because it is a dirty or “strenuous” job, although there may be a valid requirement that an applicant be able to lift a certain amount of
  • 32. weight if such lifting is a part of the job. A BFOQ does not arise because an employer’s customers would prefer to be served by someone of a particular gender or national origin; nor does inconvenience to the employer, such as having to provide two sets of restroom facilities, make a classification a BFOQ.Comparative Law Corner Sexual Harassment in France The French deal with the problem of sexual harassment in employment very differently from Americans. In the United States, sexual harassment is a civil offense and can receive compensatory and punitive damages. In France, sexual harassment is instead part of the criminal code. Part of this difference has to do with a difference in the definitions of sexual harassment. The United States recognizes both quid pro quo and hostile work environment sexual harassment, whereas the French recognize only quid pro quo. Sexual harassment in France is defined as “[t]he fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him. . . .” With this definition, it makes sense that the French consider sexual harassment a criminal offense. The French do not recognize the idea of a hostile work environment, and it is considered somewhat normal for male employees to comment on the attractiveness of female employees at work. The French sexual harassment law also differs significantly from American law in its method of enforcement. Women in France are responsible for filing their own claims with the court, and the punishment their harasser can receive is limited to one year in jail or a fine. Also, French companies are not seen as responsible for the behavior of their employees, so if a supervisor sexually harasses a female subordinate, the woman cannot claim damages from the company. Her charges will be filed only against the supervisor who sexually harassed her.Merit Most merit claims involve the use of tests. Using a professionally developed ability test, which is not designed, intended, or used to discriminate, is legal. Such tests may have
  • 33. an adverse impact on a class, but do not violate the act as long as they are manifestly related to job performance. The Uniform Guidelines on Employee Selection Procedures (UGESP) have, since 1978, contained the policy of all governmental agencies charged with enforcing civil rights, and they provide guidance to employers and other interested persons about when ability tests are valid and job related. Under these guidelines, tests must be validated in accordance with standards established by the American Psychological Association. Acceptable validation includes (1) criterion-related validity, which is the statistical relationship between test scores and objective criteria of job performance; (2) content validity, which isolates some skill used on the job and directly tests that skill; and (3) construct validity, wherein a psychological trait needed to perform the job is measured. A test that required a secretary to type would be content valid. A test of patience for a teacher would be construct valid.Seniority Systems A final statutory defense, available under Section 703(h), is a bona fide seniority system. A seniority system, in which employees are given preferential treatment based on their length of service, may perpetuate discrimination that occurred in the past. Nonetheless, such systems are considered bona fide and thus are not unlawful if (1) the system applies equally to all persons, (2) the seniority units follow industry practices, (3) the seniority system did not have its genesis in discrimination, and (4) the system is maintained free of any illegal discriminatory purpose.Mixed Motives One problem with discrimination cases is proving that the plaintiff’s membership in a protected class is the reason for unfair treatment. In the 1991 act, Congress addressed the concept of a “mixed motives” case (i.e., a case in which the plaintiff proves that being a member of a protected class was one reason for the unfair treatment, but the defendant also proves that it also had a legal reason). If the court determines that the defendant had mixed motives, the verdict is for the plaintiff, but the court decides whether the plaintiff is entitled
  • 34. to damages based on the weight of the two motives.Protected Classes Five classes are protected under Title VII. Unique problems have arisen with regard to each of them.Race and Color A primary goal of Title VII was to remedy the discrimination in employment to which blacks had long been subjected. The act, however, also contains a proviso stating that nothing in the act requires that preferential treatment based on an imbalance between their representation in the employer’s workplace and their representation in the population at large be given to any protected class. This proviso paved the way for questions about “reverse discrimination,” or discrimination against whites, as a result of employers’ attempts to create a racially balanced workforce. (This issue is discussed later in the section on affirmative action.)National Origin The act prohibits discrimination based on national origin, not on alienage (citizenship of a country other than the United States). Thus, an employer can refuse to hire non–U.S. citizens. This prohibition applies even to owners of foreign corporations who have established firms in the United States. In the absence of a treaty between the United States and the foreign state authorizing such conduct, a corporation cannot discriminate in favor of those born in a foreign state. Since the terrorist attack on the World Trade Center on September 11, 2001, there has been a significant increase in charges based on national origin by individuals who are, or are perceived as being, Arab or South Asian. Many of these claims are combined with claims of discrimination based on religion. Many are based on harassment. For example, two California auto dealers agreed to pay seven Afghan workers $550,000 to settle their complaint of harassment based on national origin and religion. The workers alleged that they were called everything from “camel jockeys” to “bin Laden’s gang.” One of the women with an Arabic name was asked to call herself by an American name, such as Sara.17 17 Bob Egelko, “Two Auto Dealers Agree to Settle Suit with
  • 35. Afghan Workers,” San Francisco Chronicle, B7 (Apr. 7, 2004). During fiscal year 2014, the EEOC received 9,579 charges of national-origin discrimination and resolved 9,768, recovering $31.4 million for the charging parties. Interestingly, these numbers represented a decline from 2013, when the number of such charges was 10,642, with 11,307 resolved (some carried over from the previous year) for a total recovery of $35.3 million.18 18 U.S. Equal Employment Opportunity Commission, National Origin-Based Charges FY 1997—FY 2014. Accessed April 15, 2015 at www.eeoc.gov/eeoc/statistics/enforcement/origin.cfm.Religio n Under Title VII, employers cannot discriminate against employees on the basis of religion. Although an exception has been made allowing religious corporations, associations, and societies to discriminate in their employment practices on the basis of religion, they may not discriminate on the basis of any other protected class. In fiscal year 2013, the EEOC received 3,721 charges of religious discrimination and resolved 3,865 such charges, recovering $11.2 million.19 In 2010, the number of charges received was 3,549, with 3,575 being resolved, generating $8.7 million for claimants.20 19 U.S. Equal Employment Opportunity Commission, Religion- Based Charges FY 1997–FY 2014. Accessed April 15, 2015 at www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm. 20 Ibid. Employers are required to make reasonable accommodation to their employees’ religious needs, as long as such accommodation does not place an undue hardship on the employer or other employees. For example, an employer has a dress code that prohibits clerical workers visible to the public from wearing hats or scarves. A Muslim worker requests that she be granted an exemption from the dress code so that she may wear the hijab (head scarf) in conformance with her Muslim beliefs. Her exemption would be a reasonable
  • 36. accommodation. Flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers are other examples of reasonable accommodations to an employee’s religious beliefs. Courts will examine the requested accommodation very carefully to ensure that it does not place an undue burden on the workplace. For example, the reasonableness of accommodating an employee’s request not to work on Saturday would depend on the availability of other workers who would willingly work that day.Applying the Law to the Facts . . . Let’s say that Talal needs a day off to observe his religious holiday. However, he gave his employer only two days’ notice and no other employee can cover for him at the last minute. Talal argues that forcing him to work on a religious holiday is religious discrimination. His employers argue that prohibiting him from engaging in a religious practice that would interfere with his work and impose hardship on his company is legal. Who is correct in this case? As mentioned previously, since September 11, 2001, the number of charges of religious discrimination by individuals who are, or are perceived to be, Muslim or Sikh has increased. From September 11, 2000 to September 11, 2001, 323 charges based on “religion-Muslim” were filed with the EEOC. The following year, 706 similar charges were filed. In 2003, the EEOC settled one of the largest workplace discrimination suits against Muslims. In that case, four Muslim Pakistani machine operators alleged that their employer, Stockton Steel, routinely gave them the worst jobs, ridiculed their daily prayers, and called them “camel jockey” and “raghead.” The four workers shared a $1.1 million settlement.21 At the time of the settlement, then EEOC Commissioner Steven Miller expressed hope that such cases would sensitize employers to issues of religious and ethnic discrimination.22 Since the 9/11 attacks, the EEOC has been attempting to reach out to Arab and Muslim groups to explain what illegal discrimination is and what actions they can take to enforce their rights. The percentage of religious discrimination
  • 37. suits by those whose religion is Muslim has fallen from its high of 28 percent in 2002 to 20 percent in 2012, although during that time period, the number of overall charges of religious discrimination continued to grow.23 21 Marjorie Valbrun, “U.S. Battles Bias against Arabs and Muslims in the Workplace,” The Asian Wall Street Journal, A6 (Apr. 14, 2003). 22 Id. 23 U.S. Equal Employment Opportunity Commission, Religion- based charges filed from 10/10/2000 through 9/30/2011. Showing percentage filed on the basis of religion—Muslim. Accessed April 15, 2015 at www.eeoc.gov/eeoc/events/9-11- 11_religion_charges.cfm. In 2007, Bilan Nur, a Muslim woman, won an award of $287,000 for religious discrimination. Nur had requested permission to wear a head covering during the holiday of Ramadan, a deviation from her employer’s dress code. Her employer, Alamo Rent-a-Car, refused to allow her to wear the head scarf in front of customers while she worked at the front counter. Nur wore the head scarf while at the front counter in violation of the dress code. Alamo sent Nur home several times and eventually fired her for wearing the head scarf. The EEOC brought a case against Alamo on behalf of Nur, and her award included $21,640 in back pay, $16,000 in compensatory damages, and $250,000 in punitive damages.24 The EEOC stated that it hoped the large punitive damages would send a message to employers that religious discrimination would not be tolerated.25 24 Kevin D. Kelly, “Jury Awards $287,000 to Muslim Employee Denied a Religious Accommodation.” Accessed March 12, 2008 at www.lexology.com/library/detail.aspx?g=43ea1ef7-353c- 4134-b6e5- fe408356149a&l=6G99TH2. 25 Id.Sex Under Title VII, sex is interpreted as referring only to gender and not to sexual preferences. Hence, homosexuals and transsexuals are not protected under the act. It would, however,
  • 38. be sex discrimination to fire male homosexuals while retaining female homosexuals. Also, as you may recall from the earlier discussion of the case of Joseph Oncale v. Sundowner Offshore Services,26 the U.S. Supreme Court has held that Title VII prohibits same-sex harassment regardless of the harasser’s sexual orientation as long as the discrimination is tied to some kind of gender discrimination.27 26 523 U.S.75 (1988). 27 Ibid. While the Oncale case did not explicitly extend Title VII protection to discrimination based on a person’s sexual orientation, the EEOC has muddied the waters a bit by holding that discrimination claims based on gender identity are cognizable under Title VII. In Macy v. Dept. of Justice,28 a case some have described as groundbreaking, the EEOC held that a complaint of discrimination based on “gender identity, change of sex, and/or transgender status” is cognizable under Title VII. In that case, Mia Macy completed a telephone interview for a position with a federal agency while she presented as a man and was told the position was hers barring any issues with her background check. While her background check was being done, she told the agency that she was in the process of transitioning from a male to a female. Five days later, Macy was told that the position was no longer available; another person was hired for the position soon thereafter. Macy filed her original claim with the EEOC, and the agency separated her claims into two distinct claims— one for discrimination based on “sex” and one for discrimination based on “sex stereotyping,” “gender transition/change of sex,” and/or “gender identity.” The agency further indicated that the gender identity stereotyping aspect of her claim would be processed outside the EEOC’s standard Title VII adjudication process. 28 EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C.) (April 20, 2012).
  • 39. Macy appealed to the full commission to have both aspects of her claim handled through the normal Title VII process. On appeal, the EEOC concluded that each of these formulations of Macy’s claims was merely different ways of stating the same claim for discrimination “based on . . . sex,” which clearly was cognizable under Title VII. The EEOC further stated, “[a]s used in Title VII, the term ‘sex’ ‘encompasses both sex—that is, the biological differences between men and women—and gender.’ As the 11th Circuit noted . . . Title VII barred ‘not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.’ As such, the terms ‘gender’ and ‘sex’ are often used interchangeably to describe the discrimination prohibited by Title VII. That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only gender- based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.” In September 2014, the EEOC filed two lawsuits in federal court challenging transgender discrimination. The first alleged that Lakeland Eye Clinic, a Florida- based organization of health care professionals, discriminated based on sex in violation of federal law by firing an employee because she was transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender- based expectations, preferences, or stereotypes.29 The second suit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., found that Harris violated Title VII by firing the funeral director because of her transgender status, because of her gender transition, and/or because the firing was based on gender-based
  • 40. stereotypes.30 29 “EEOC Sues Lakeland Eye Clinic for Sex Discrimination Against Transgender Employee.” EEOC Press Release, September 25, 2014. Available at www.eeoc.gov/eeoc/newsroom/release/9-25 -14e.cfm. 30 Civ. No. E.D. Mich. 2:14-cv-13710-SFC-DRG. Those cases were filed just two months after President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity. As noted earlier, sexual harassment is addressed by Title VII’s prohibition against discrimination based on sex. Although sexual harassment cases were not filed in large numbers immediately after the passage of Title VII, the number of such cases filed has increased tremendously since law professor Anita Hill captivated the nation in late 1991 by testifying before Congress about the harassment to which she was subjected by U.S. Supreme Court nominee Clarence Thomas. According to the EEOC, 9,953 sexual harassment complaints were filed in the year ending in October 1992, an increase of 2,564 over the previous year. In fiscal year 2011, 11,364 sexual harassment complaints were filed; 11,717 were filed in 2010. The EEOC recovered $48.4 million for successful claimants in 2010 and $52.3 million in 2011.31 Not all the sexual harassment charges are filed by women; in 2010, 16.4 percent of those charges were filed by males.32 31 U.S. Equal Employment Opportunity Commission, Sexual Harassment Charges: EEOC & FEPAs Combined: FY 1997–FY 2011. Available at www.eeoc.gov/eeoc/statistics/enforcement /sexual_harassment.cfm. 32 U.S. Equal Employment Opportunity Commission, Sexual harassment charges: EEOC & FEPAs Combined: FY 1997–FY 2011.” Accessed December 31, 2010 at www.eeoc.gov/eeoc/statistics /enforcement/sexual_harassment.cfm. These sex discrimination cases can be quite costly. For
  • 41. example, it cost Morgan Stanley $54 million to settle a sex discrimination case brought by 67 female officers and women eligible for officer promotions.33 The women had alleged workplace discrimination in promotions, assignments, and compensation, along with a hostile work environment. Although management admitted no guilt, it agreed to set up mechanisms to prevent sex discrimination. Thus, it is important that businesspeople be able to recognize sexual harassment and prevent its occurrence in the workplace. Exhibit 21-3 provides some suggestions on how managers can avoid liability for sexual harassment. 33 “EEOC and Morgan Stanley Announce Settlement of Sex Discrimination Lawsuit.” EEOC Press Release, July 12, 2004. Accessed March 19, 2008 at www.eeoc.gov/press/7-12-04.html. Exhibit 21-3 Tips For Avoiding Sexual Harassment Charges Source: Adapted from K. Swisher, “Corporations Are Seeing the Light on Harassment,” Washington Post National Weekly Edition, February 14–20, 1994, 21.Pregnancy Discrimination Act After a U.S. Supreme Court ruling that discrimination on the basis of pregnancy was not discrimination on the basis of sex under Title VII,34 Congress amended the law by passing the Pregnancy Discrimination Act (PDA), which specifies that discrimination based on pregnancy is sex discrimination and that pregnancy must be treated the same as any other disability, except that abortions for any purpose other than saving the mother’s life may be excluded from the company’s medical benefits. The U.S. Supreme Court has concluded that Congress intended the PDA to be “a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise.”35 Consequently, the high court held that a California statute requiring unpaid maternity leave for pregnant women and reinstatement after the birth of the child was constitutional because the intent of the law was to make women in the workplace equal, not to give them favored treatment.36 34 General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
  • 42. 35 California Federal Savings & Loan Association et al. v. Department of Fair Employment & Housing et al., 479 U.S. 272 (1987). 36 Id. In the summer of 2001, the PDA became the basis for the first ruling on the employment discrimination issue of gender equity in drug coverage. In a class action lawsuit against Bartell Drug Company, a Seattle judge ruled that the drugstore chain discriminated against women when it excluded prescription contraceptives from its employee health plan.37 Granting summary judgment to the plaintiff, the judge said, “Male and female employees have different sex-based disability and health care needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception.”38 37 Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001). 38 Id. In 2015, an important case interpreting the PDA was handed down by the U.S. Supreme Court. In Young v. UPS,39 the high court established a new test for determining when an employer’s failure to accommodate a pregnant woman constitutes a violation of the act. According to that test, a pregnant employee denied accommodation can establish a “prima facie” claim of pregnancy discrimination where she shows that the employer did accommodate others “similar in their ability or inability to work.” To avoid liability, the employer must demonstrate that its denial of the accommodation was based on a legitimate, nondiscriminatory reason. However, the Supreme Court’s majority substantially limited the employer’s ability to satisfy this burden by stating that the employer’s proffered reason normally cannot consist of a claim that it was more expensive or less convenient to add pregnant women to the category of those whom the employer accommodated. 39 575 U.S. (2015).Enforcement Procedures Enforcement of Title VII is a very complicated procedure and is
  • 43. full of pitfalls. Failure to follow the proper procedures within the appropriate time framework may result in the plaintiff’s losing her or his right to file a lawsuit under Title VII. An overview of these procedures is provided in Exhibit 21-4.The Charge The first step in initiation of an action under Title VII is the aggrieved party’s filing a charge with the state agency responsible for enforcing fair employment laws (a state EEOC) or, if no such agency exists, with the federal EEOC. A charge is a sworn statement that sets out the name of the charging party, the name(s) of the defendant(s), and the nature of the discriminatory act. In states Exhibit 21-4 Anatomy of a Title VII Case that do not have state EEOCs, the aggrieved party must file the charge with the federal EEOC within 180 days of the alleged discriminatory act. In states that do have such agencies, the charge must be filed either with the federal EEOC within 180 days of the discriminatory act or with the appropriate state agency within the time limits prescribed by local law, which cannot be more than 180 days. If initially filed with the local agency, the charge must be filed with the federal EEOC within 300 days of the discriminatory act or within 60 days of receipt of notice that the state agency has disposed of the matter, whichever comes first. Exhibit 21-5 shows a typical charge.Conciliation and Filing Suit Once the EEOC receives the charge, it must notify the alleged violator of the charge within 10 days. After such notification, the EEOC investigates the matter in an attempt to ascertain whether there is “reasonable cause” to believe that a violation has occurred. If the EEOC does find such reasonable cause, it attempts to eliminate the discriminatory practice through conciliation. If unsuccessful, the EEOC may file suit against the alleged discriminator in federal district court. If the EEOC decides not to sue, it notifies the plaintiff of his or her right to file an action and issues the plaintiff a right-to-sue letter. The plaintiff must have this letter to file a private action.
  • 44. The letter may be requested any time after 180 days have elapsed since the filing of the charge. As long as the requisite time period has passed, the EEOC will issue the right-to-sue letter regardless of whether the EEOC members find a reasonable basis to believe that the defendant engaged in discriminatory behavior. Exhibit 21-5 A Typical Charge of Discrimination Filed with the EEOC Source: United States Department of LabourRemedies The plaintiff bringing a Title VII action can seek both equitable and legal remedies. The courts have broad discretion to order “such affirmative action as may be appropriate.”40 Under this broad guideline, courts have ordered parties to engage in diverse activities ranging from publicizing their commitment to minority hiring to establishing special training programs for minorities. 40 § 706(a). In general, a successful plaintiff is able to recover back pay for up to two years from the time of the discriminatory act. Back pay is the difference between the amount of pay received after the discriminatory act and the amount of pay that would have been received had there been no discrimination. For example, if two years before the case came to trial the defendant refused a promotion to a plaintiff on the basis of her sex and the job for which she was rejected paid $100 more per week than her current job, she would be entitled to recover back pay in the amount of $100 multiplied by 104. (If the salary rose at regular increments, these are also included.) The same basic calculations are used when plaintiffs were not hired because of discrimination. Such plaintiffs are entitled to the back wages they would have received minus any actual earnings during that time. Defendants may also exclude wages for any period during which the plaintiff would have been unable to work. That same plaintiff may also receive remedial seniority dating back to the time the plaintiff was discriminated against.
  • 45. The most significant impact of the 1991 Civil Rights Act resulted from its changes to the availability of compensatory and punitive damages. Under the new act, plaintiffs discriminated against because of race (and those discriminated against on the basis of sex, disability, religion, or national origin) may recover both compensatory damages, including those for pain and suffering, and punitive damages. In cases based on discrimination other than race, however, punitive damages are capped at $300,000 for employers of more than 500 employees, $100,000 for firms with 101 to 200 employees, and $50,000 for firms with 100 or fewer employees. Attorney’s fees are ordinarily awarded to a successful plaintiff in Title VII cases. They are denied only when special circumstances would render the award unjust. In those rare instances in which the courts determine that the plaintiff’s action was frivolous or unreasonable or was without foundation, the courts may use their discretion to award attorney’s fees to the prevailing defendant.Lilly Ledbetter Fair Pay Act of 2009 In many cases, determining when a cause of action accrued can play a vital role in disposition of the case. Prior to 2007, the EEOC supported the position that every time an individual received a paycheck of a discriminatory amount, a new discriminatory compensation action arose. After every paycheck, an individual had 180 days to file a claim. In 2007, the Supreme Court decided, in Ledbetter v. Goodyear Tire & Rubber Co.,41 that a compensation discrimination charge must be filed within 180 days of a discriminatory pay-setting decision. In other words, after an individual received the first discriminatory paycheck, she or he had 180 days to file a claim; subsequent paychecks no longer gave rise to new causes of action. Two years after the Court’s decision in Ledbetter, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. That act, which explicitly recognizes the importance of protecting individuals who are victims of wage discrimination, restores the pre-Ledbetter policy that each paycheck gives rise to a new cause of action.
  • 46. 41 550 U.S. 618 (2007).Linking Law and Business Management Perhaps you learned in your organizational behavior or management class about biculturalism. This term refers to instances in which individuals of a particular racial or ethnic minority class have been socialized in two cultures—the dominant culture and the individual’s ethnic or racial culture. Living in two cultures often increases stress, which is referred to as bicultural stress. Two general characteristics of bicultural stress are (1) role conflict—the conflict that exists when an individual fills two competing roles due to his or her dual cultural membership and (2) role overload—the excess expectations that result from living in two cultures. The intensity of these problems tends to increase for women of color, because of the negative dynamics directed toward both women and minorities. Hiring minorities can pose adaptation problems in the workplace for some managers. Accustomed to the cultural norms of the majority, some managers may be insensitive to the bicultural stress with which minorities are often burdened. In addition, managers may not realize that employees usually do not set aside their values and lifestyle preferences while at work. Therefore, it is important for managers to recognize differences and respond in ways that increase productivity without discriminating. This shift in management philosophy may include diversity training for managers and other employees to help them raise behavioral awareness, recognize biases and stereotypes, avoid assumptions, and modify policies. Therefore, an acute sensitivity to differences in the workplace may result in a friendlier environment where productivity is increased. On January 29, 2009, President Obama signed the first bill of his presidency into law, which altered the measures set out in the Civil Rights Act of 1964 and overturned the Supreme Court’s decision in the Ledbetter case. The bill was called the Lilly Ledbetter Fair Pay Act. After the Supreme Court’s opinion in Ledbetter’s case in 2007, Congress introduced legislation that would allow an employee six months to sue after every
  • 47. paycheck received. However, President George Bush opposed the legislation arguing that it would incite too many lawsuits. The legislation was put on hold until two years later when Congress, under President Obama, passed the measure, and President Obama then signed.The Age Discrimination in Employment Act of 1967 Our society does not revere age. Older employees detract from a firm’s “youthful” image and are expensive. They have accumulated raises over the years and thus earn more than younger employees. They have pension benefits, which the employer will have to pay when they retire. They are sometimes viewed as rigid and unwilling to learn new technology. Thus, it is understandable that firms may attempt to discriminate against older employees. The Age Discrimination in Employment Act of 1967 (ADEA) was enacted to prohibit employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of age. The language describing the prohibited conduct is virtually the same as that of Title VII, except that a person’s being age 40 or older is the prohibited basis for discrimination. Age Discrimination in Employment Act of 1967 (ADEA) Statute that prohibits employers from refusing to hire, discharging, or discriminating against people in terms or conditions of employment on the basis of age. Although the motivation for the ADEA was to prevent the unfair treatment of older people in the workplace, after the legislation had been in place for several years, some began to question whether the law also prohibited giving older workers more favorable treatment. In 2004, the U.S. Supreme Court decided that issue in General Dynamics Land Systems, Inc. v. Dennis Cline et al.42 In General Dynamics, present and former employees of General Dynamics brought suit under the ADEA. General Dynamics had instituted a policy effectively eliminating a retiree health insurance benefits program for workers under the age of 50. Those employees who were 50 or older at the time the policy was enacted would still be eligible
  • 48. for benefits, but others would not. The Supreme Court held that discrimination against “the relatively young” was beyond the scope of the protection offered by the ADEA. According to the Court’s interpretation, the ADEA was designed to protect a “relatively old worker from discrimination that works to the advantage of the relatively young.”43 General Dynamics’ policy did not violate the ADEA. 42 540 U.S. 581 (2004). 43 Id. As the U.S. economy started a downward turn in late 2000, which continued through 2001, age discrimination claims began to increase. Charges of age discrimination filed with the EEOC rose from roughly 14,000 in fiscal year 1999 to 16,000 in 2000 and continued to increase to a peak of 22,778 in fiscal year 2009. In 2014, 20,588 charges of age discrimination were filed and the EEOC secured $77.7 million in benefits for aggrieved individuals.44 44 U.S. Equal Employment Opportunity Commission, Age Discrimination in Employment Act (includes concurrent charges with Title VII, ADA and EPA) FY 1997–FY 2014. Retrieved May 15, 2010, from www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.Appli cability of The Statute The ADEA applies to employers having 20 or more employees in an industry that affects interstate commerce. It also applies to employment agencies and to unions that have at least 25 members or operate a hiring hall. As a result of a Supreme Court ruling in Kimel v. Florida Board of Regents,45 however, the act does not apply to state employers. 45 120 S. Ct. 631 (2001).Proving Age Discrimination Discrimination under the ADEA may be proved in the same ways that discrimination is proved under Title VII: by the plaintiff’s showing disparate treatment or disparate impact. Most of the ADEA cases today involve termination. To prove a prima facie case of age discrimination involving a termination, the plaintiff must establish facts sufficient to create a
  • 49. reasonable inference that age was a determining factor in the termination. The plaintiff raises this inference by showing that he or she (1) belongs to the statutorily protected age group (age 40 or older), (2) was qualified for the position held, and (3) was terminated under circumstances giving rise to an inference of discrimination. Until 1996, the plaintiff also had to demonstrate that he or she was replaced by someone outside the protected class. In O’Connor v. Consolidated Caterers Corp.,46 however, the U.S. Supreme Court held that replacement by someone outside the protected class was not a necessity as long as evidence showed that the termination was based on age. 46 529 U.S. 62 (2000).Applying the Law to the Facts . . . Carla worked as a secretary in a law firm. One day she was let go, but two other secretaries who were retained by the firm were under 40, while she was over 40. Carla said that because she had worked at the firm the longest, she deserved to keep her job and the firm keeping the secretaries younger than 40 proved age discrimination. Would Carla need any more evidence to prove her case? How might Carla be confused about the purpose of the ADEA? If the plaintiff establishes these three facts, the burden of proof then shifts to the defendant to prove that there was a legitimate, nondiscriminatory reason for the discharge. If the employer meets this standard, the plaintiff may recover only if he or she can show by a preponderance of the evidence that the employer’s alleged legitimate reason is really a pretext for a discriminatory reason. Initially, circuit courts were split on the evidentiary standard to which an age discrimination plaintiff must be held. Some courts have relied only on a pretext standard, as described earlier, whereas others have required a plaintiff to show direct, not just inferential, proof of discrimination (known as “pretext plus”).47 To resolve this circuit court confusion, the Supreme Court agreed to hear the case, Reeves v. Sanderson Plumbing Products, Inc.,48 filed by a former employee who raised issues