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Chapter 20 - Discrimination in Employment
20-11
c. Physical Harassment:
o Giving an unwanted massage around the neck, shoulders, or back
o Unwanted touching of a person’s clothing, hair, or body
o Touching and/or rubbing oneself sexually around another person
o Standing close or brushing up against a person
Steps are also being taken to deal with job-related sexual harassment in other
countries. For example, in France it is a criminal offense punishable by up to one year
imprisonment and/or a fine of up to $16,000 to “solicit by order, constraint or pressure
favors of a sexual nature” from an office subordinate. Also, in the newly forming
European Community a code of practice recognizes and prohibits sexual harassment.
And in one of the first cases of its kind in Japan, a district court judge awarded a
female reporter $12,400 in damages due to sexual harassment of her male editor. The
award was made in April, 1992.
A 1992 study of high-level female executives in Fortune 500 companies by Russell
Reynolds Associates found that two-thirds of the females surveyed perceived sex-
based hostility from their superiors, whereas only 2 percent of male executives respond
that such hostility exists.
In 1992 the International Labor Office, a UN affiliate, released a 300-page report
“Combatting Sexual Harassment at Work.” It says between 15 and 30 percent of
women surveyed in 23 mostly Western countries have experienced sexual harassment
at work.
Cases for Discussion:
1. In Burlington Industries, Inc. v. Ellerth, 1998 U.S. LEXIS 4217, the Court ruled that
when the plaintiff had been harassed sexually by a supervisor but no tangible job
2. Improper touching and comments by a supervisor cannot be the basis for liability
3. Kerry Ellison worked for the IRS. Sterling Grey, fellow trainee, began to ask her out
20-12
© 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.
Held: It was held by CA9 that Grey’s conduct was sufficiently severe and pervasive
to alter the conditions of Ellison’s employment and create an abusive working
environment. A “female employee ... states a prima facie case of hostile environment
sexual harassment by alleging conduct that a reasonable woman would consider
sufficiently severe or pervasive to alter conditions of employment....” Ellison v.
Brady, 54 FEP Cases 1346 (1991).
4. A women’s health club refused to hire men as managers and instructors. It asserted
that its customers had chosen an all-female club. It presented a petition signed by
some members that stated that their privacy rights would be violated by male
employees.
5. Lower courts have disagreed over whether displays of pornographic materials alone
constitute sexual harassment in the workplace. See, e.g., Rabidue v. Osceola Refining
6. A girl’s club offered programs to help girls between the ages of 8 and 18 maximize
their “life opportunities.” A “role model” rule prohibited employment of pregnant,
single employees. A black single employee was discharged due to her pregnancy. She
sued under Title VII.
7. The EEOC filed suit against a school district for paying male and female coaches
unequally.
8. The Eleventh Circuit has upheld a lower court decision that a trucking company’s
rule requiring job applicants to have at least one year of over-the-road driving
20-13
© 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.
experience had a disparate impact on women and violated Title VII. Kilgo v.
Bowman Transportation, 40 FEPC 1414 (1986).
9. The Seventh Circuit ruled that pay increases granted to women under a formula to
10. In 1998 a federal judge granted summary judgment in favor of the defendant
President Clinton in a sexual harassment case brought by Paula Jones. The judge
ruled that the President’s conduct as alleged was neither severe, pervasive, nor
outrageous enough to violate Title VII or state common law.
1. A class action suit against Northwest Airlines claimed that its 5-foot 2 1/2- inch height
requirement for flight attendants has a disparate impact on women, Asians, and
Chapter 20 - Discrimination in Employment
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Emphasize:
Appearance requirements can often lead to race or religious discrimination claims.
D. Affirmative Action Programs and Reverse Discrimination
Emphasize:
The origin of the Office of Federal Contract Compliance Programs.
Also the fact that this office is the center of affirmative action in federal contracts with
private employers.
That the affirmative action requirement means that federally contracting employers must
actively recruit members of minority groups being underused in the workforce.
Private Employer Affirmative Action
Explain:
That affirmative action programs may lead to charges of reverse discrimination.
Discuss the legality of affirmative programs in light of United Steelworkers of
America v. Weber.
That the government-imposed affirmative action plans are subject to strict judicial
scrutiny under equal protection guarantees of the Fifth and Fourteenth Amendments.
Cases for Discussion:
1. In Johnson v. Santa Clara County Transportation Agency, 55 L.W. 4379 (1987), the
Court ruled that a valid voluntary affirmative action plan was a non-discriminatory
Chapter 20 - Discrimination in Employment
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2. In 1995 the Supreme Court ruled that the equal protection required in federal law by
the Fifth Amendment’s due process clause mandated that all race-based federal
3. In its 1990 decision of Metro Broadcasting Inc. v. FCC the Supreme Court ruled for
4. The City of Richmond, Va., adopted a plan requiring prime contractors of city
construction contracts to subcontract at least 30 percent of the dollar amount of each
contract to a minority business enterprise. A contractor challenged the
constitutionality of the city’s plan.
them. The decision does not apply to private employers.
5. In 1981 Birmingham, Alabama, agreed to settle a 1974 suit against the city by the
NAACP by putting into place a court-approved affirmative action plan that provided
for the hiring and promotion of blacks in the fire department. In 1982 a group of
seven white firefighters challenged the plan, alleging unlawful discrimination.
action plans which cities have had in place for years could be challenged.
6. The Supreme Court has held that Title VII does not preclude entry of a consent
decree to benefit persons who were not actual victims of discrimination. Further,
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7. Although unrelated to employment, an interesting case upholding California’s
controversial Proposition 209, which abolished state affirmative action programs, is
Coalition for Economic Equality v. Wilson, 122 F.3d 692 (1997).
E. Seniority Systems
Emphasize:
What “race” implies under the Civil Rights Act.
That unlimited compensatory and punitive damages are available under Section 1981
of the act.
1. Brenda Patterson alleged that her McLean Credit Union boss assigned her sweeping
and dusting chores not given to white co-workers and did not promote her. She
asserted racial harassment and sued for damages under Section 1981.
Chapter 20 - Discrimination in Employment
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apply to racial harassment after a person is hired. Patterson v. McLean Credit Union,
491 U.S. 164 (1989). The Court refused to overturn its 1976 ruling that the Act
forbids discrimination in the making of private employment contracts. Interestingly,
on remand the district court ruled that a failure to give Patterson the promotion was
not discrimination in terms or conditions of employment, but was discrimination in
creation of a new and distinct contractual relationship. Note also that the 1991
amendments to Title VII specifically apply Section 1981 to the terms and conditions
of contracts.
B. Discrimination on the Basis of Age
Emphasize:
That the Age Discrimination in Employment Act (ADEA) prohibits job discrimination
against persons over forty years old on account of their age, and it also prohibits the
mandatory retirement of these employees. Explain the limited exceptions.
That “bona fide executives” and “high policy makers” of private companies who will
have pensions of at least $44,000 per year are not covered under the act.
That the ADEA applies to employers with 20 or more employees.
Types of Age Discrimination
Explain:
The ADEA recognizes both disparate treatment and disparate impact discrimination
for employers with 20 or more employees.
The Supreme Court has also stated that the ADEA recognizes disparate impact in age
discrimination cases.
However, the Supreme Court stated that disparate impact alone did not prove
illegality under the ADEA.
Sidebar 20.10—“Did You Read the Law? A Law Firm Runs Afoul of the ADEA”
Employer Defenses in ADEA Cases
The ADEA also does not require the employer to prove a “business necessity” in
order to successfully defend an age discrimination case of disparate impact.
Chapter 20 - Discrimination in Employment
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Remedies under the ADEA
Explain:
That that willful violations of the act permit discrimination victims to be awarded
double damages.
An important exception to this general rule about remedies against state actors under
the ADEA.
That This Eleventh Amendment immunity for states in federal court has been
extended to other employment laws, including the Americans with Disabilities Act
and the Family Medical Leave Act.
Additional Matters for Discussion”
The employer (City of Jackson) gave larger percentage pay raises to lower echelon
police officers—who were also younger—than it did to older, more senior officers in
order to bring their salaries in line with those of surrounding towns. Held: No violation
of ADEA since the decision was based on a reasonable factor other than age given the
permissible goal of keeping employees. Smith v. City of Jackson, 544 U.S. 228 (2005).
According to EEOC statistics, discrimination cases are shifting toward ADEA issues.
In 1982 national ADEA cases totaled 8,989, which represented 13.4 percent of all
discrimination cases. By 1989 the figures were 19,427 and 27.4 percent, respectively.
In 1996, over 34,000 complaints were filed.
Cases for Discussion:
1. In Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), the Court ruled that the
2. In O’Conner v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the Court
3. City firefighters brought suit against the city of Baltimore alleging ADEA violation.
The city required firefighters to retire at age 55. The city claimed BFOQ and pointed
to federal law requiring federal firefighters to retire at age 55.
