Chapter 20 – Discrimination in Employment
20-1
Chapter 20
Discrimination in Employment
Learning Objectives
The purpose of this chapter is to introduce students to discrimination in employment law.
References
Bernbach, Jeffery M., Job Discrimination II: How to Fight, How to Win. Voir Dire Press
(1998).
Epstein, Richard A., Forbidden Grounds: The Case Against Employment Discrimination
Laws. Cambridge, Mass.: Harvard U. Press (1992).
Enterprises Pub. Co. (1986).
Lewis, Harold S., Employment Discrimination Law and Practice. (1991).
Maguire, Daniel C., A Case for Affirmative Action. Dubuque, Iowa: Shepherd (1992).
Player, Mack A., Federal Law of Employment Discrimination. 5th ed., West (2004).
Salas, Eduardo, and Frank Landy, Employment Discrimination Litigation. Pfeiffer (2005).
Steingold, Fred S., The Employer’s Legal Handbook, 5th ed. Nolo Press (2003).
Twomey, David P., Employment Discrimination Law, 5th ed. (2001).
Teaching Outline
I. The Civil Rights Act Of 1964 (LO 20-1)
Emphasize:
How the constitution justifies slaves. Also the fact that all “men” are equal, unlike women.
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To the students how far equality of opportunity, both in employment and elsewhere, has
come since the founding of the United States. Underscore that the most important law
supporting equal opportunity is the Civil Rights Act of 1964, as amended.
A. General Provisions
Emphasize:
That Title VII of the Civil Rights Act of 1964 apply to employers with 15 or more
employees, labor unions, and certain others employers. Title VII prohibits job
discrimination against employees, job applicants, or union members based on race,
color, religion, sex, or national origin.
The types of employer actions in which discrimination is prohibited are as follows:
discharge; refusal to hire; compensation; promotion; and terms, conditions, or privileges
That Title VII exemptions exist with respect to laws creating preference for veterans and
to hiring based on professionally developed ability tests that are not designed or
intended to be used to discriminate. The tests, however, must show a relationship to the
job for which they are administered.
Additional Matters for Discussion:
Everyone Badly,” WSJ, 3/10/00, p. B1.
Observe that everyone has a race, gender, color, religion (or not), and a national origin;
thus every employee is in a potential class that can claim illegal discrimination under
Title VII.
Cases for Discussion:
1. Employee won a favorable verdict under Title VII. Employer, who had not raised the
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
raised at trial to be appealed. Arbaugh v. Y&H Corp., 126 S.Ct. 1235 (2006).
2. The partners at Price Waterhouse refused to propose Ann Hopkins for partnership. She
was described as “overly aggressive, unduly harsh, difficult to work with and impatient
4469 (5/1/89). On remand the federal district court ordered Price Waterhouse to make
Ann Hopkins a firm partner.
3. A United Way employee sued her employer for sex and age discrimination. The
employer moved to dismiss, asserting that the charity was not “engaged in commerce.”
Held: That the employer is a charitable group does not prevent it from being an
“industry affecting commerce under Title 7 and the ADEA.” Martin v. United Way of
Erie County, 56 LW 2181 (1987).
B. Enforcement Procedures
Empahsize:
The creation of the EEOC in 1964. Also explain its composition.
The administrative powers of the Equal Employment Opportunity Commission (EEOC).
Note the remedies that the EEOC can exercise against a discriminating employer.
The 1991 Amendments
Emphasize:
The 1991 amendments to Title VII that allow recovery of compensatory and punitive
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Emphasize:
That in proving disparate treatment, the plaintiff must convince the court that the
employer intentionally discriminated against the plaintiff and that any alleged
See Figure 20.1—“What Kinds of Claims are Being Filed with the EEOC?”
Additional Matters for Discussion:
In 2000 the EEOC reported a backlog of 40,000 cases and an average lag of 265 days in
getting a change resolved. Job bias lawsuits filed in federal courts rose from 6,936 in
1990 to 21,540 in 1998. In 1999, however, they declined 7.3%, possibly because a large
majority of plaintiffs lose their lawsuits on summary judgment.
amendments did include punitive damage awards for intentional discrimination.
Case 20.1—“Thompson v. North American Stainless, LP”
Cases for Discussion:
1. In Folstad v. American Dental Association, 527 U.S. 526 (1999), the Court ruled that
the conduct justifying punitive damages under Title VII must be “intentional” and done
2. In West v. Gibson, 119 S.Ct. 1906 (1999), the Court ruled that the EEOC has authority
3. In Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988), the Court considered the
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C. Discrimination on the Basis of Race or Color (LO 20-2)
Emphasize:
That the primary objective of the Civil Rights Act of 1964 was the integration of
African Americans into the mainstream of American society.
That Title VII prohibits discriminatory employment practices based on race or color that
involve recruiting, hiring, promotion, discharge, or application of the terms and
conditions of employment.
That Title VII applies to discriminatory employment conditions and benefits.
Sidebar 20.1—“Hithon v. Tyson Foods, Inc.: The Use of the Word “Boy””
Additional Matters for Discussion:
In a 1991 study conducted by the Urban Institute, black and white college students
matched for age, speech, demeanor, and physical build, and with identical resumes,
visited personnel offices in Chicago and Washington, D.C., to apply for 576 entry-level
jobs that had been advertised. In 20 percent of the cases the white applicant progressed
further in the hiring process than did the black. In only 7 percent of the cases did the
black applicant progress further.
In 1998 African-Americans spent more than $501 billion on goods. Hispanics spent
$353 billion and Asian Americans spent $209 billion. Should marketing firms targeting
these groups for sales be able to make race or ethnic background a BFOQ for employees
contacting members of these groups. Several courts have emphatically said not.
1. A light-skinned clerk typist with the IRS complained that her dark-skinned supervisor
2. A municipal ordinance required applicants for firefighter and police jobs to have three
years’ municipal residency.
3. A judge terminated a black court reporter because he wished to hire a white reporter
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with whom he had worked successfully in the past. The black reporter sued.
4. Case 20.2—“Ricci v. DeStafano”
D. Discrimination on the Basis of National Origin
Emphasize:
That discrimination concerning the speaking of a native language is a frequent source of
1989, p.31.
When Congress passed the 1986 Immigration Reform and Control Act, it was concerned
that the act’s regulation of employer’s hiring of illegal aliens would cause job
discrimination against foreign-looking job applicants. Congress thus created a special
counsel for immigration-related unfair employment practices. The first case brought by
the special counsel accused Mesa Airlines of discriminating against noncitizens to fill
pilot’s jobs.
Cases for Discussion:
1. A job applicant placed high enough on a civil service test to be selected for a clerk’s
position. He was not selected due to a perceived deficiency in job-related oral
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2. A federal district judge found Quasar, a unit of Matsushiti Electric, guilty of racial
discrimination in the discharge of 66 American managers—but no Japanese managers.
Quasar, ordered to pay $2.5 million, indicated that it would appeal.
E. Discrimination on the Basis of Religion
Employee training programs drawing on a variety of sources, from Eastern mysticism to
positive thinking, have prompted Title VII complaints by employees who do not wish to
attend the programs for religious reasons.
In Trans World Airlines, Inc. v. Hardison, 97 S.Ct. 2264 (1977), the Supreme Court
ruled that the “duty to accommodate” does not take precedence over a valid collective
bargaining agreement. The employee’s demands not to have to work on Saturday placed
an undue burden on other employees and on the employer.
Cases for Discussion:
1. A school teacher’s religious beliefs required that he miss several days of school. The
school board proposed that the employee be docked his full pay during these absences,
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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Board of Education v. Philbrook (S. Ct. 1986).
2. A Philadelphia school board refused to allow a public school teacher to wear religious
attire while teaching. The refusal was based on the Pennsylvania Garb Statute that states
“no teacher in any public school shall wear… any dress, mark, emblem, or insignia
indicating that such teacher is a member… of any religious… denomination.” Violation
of the statute was a crime. The teacher sued under Title VII.
for the School District of Philadelphia, 8/9/90.
3. Consider the following cases on the reasonableness of accommodation of an employee’s
religion: Accommodation is satisfied by soliciting volunteers before assigning an
56 LW 2156 (CA 6, 1987). Accommodation is not satisfied for a worker who was
4. The Postal Service offered to transfer two clerks whose religious beliefs prevented them
from handling draft registration forms. The clerks proposed referring draft registrants to
other clerks and keeping their positions. The Service refused, and the clerks sued.
1/31/86).
F. Discrimination on the Basis of Sex
Emphasize:
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Sexual Harassment
based jokes, drawing offensive graffiti and other offensive acts.
Employer’s Defense to Hostile Environment
Explain:
That under agency law, the employer is liable for the acts of their supervisors.
That the employer can defend itself by proving that it exercised reasonable care to
The employer must know about the offensive behavior and must take reasonable
steps to prevent it.
Pregnancy Discrimination Act
Emphasize:
That the Pregnancy Discrimination Act amended the Civil Rights Act in 1978.
Emphasize:
That the Act is administered by the EEOC.
That Equal work does not mean identical work; it means “substantially equal” work.
The Supreme Court has ruled that discriminatory male and female pay differences
can also be illegal under Title VII.
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Sidebar 20.8—“Did the Supreme Court get it Wrong? Legislative Action Post-
Ledbetter”
Sexual Orientation Discrimination
Emphasize:
The word sex in Title VII only applies to gender, whether someone is female or male.
Why many major companies have included protection in their company policies.
Sidebar 20.9—“Sexual Orientation Discrimination: State and Local Laws”
Additional Matters for Discussion:
In 1996 the EEOC reported 15 thousand sexual harassment cases, up from 6 thousand
in 1990.
In 1999 Mitsubishi settled a sexual harassment lawsuit brought by 450 women for
59% of them cited the “glass ceiling” as their greatest concern. 35% said they were
treated differently than men. 33% said they were paid unequally.
As an example of what companies are doing to prevent sexual harassment on the job,
Honeywell has an education program with role playing and films. Its handbook gives
o Giving unwanted personal gifts
o Displaying sexually suggestive visual materials.