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Chapter 13 – Employment Law II: Discrimination

Answers to ‘Ricci v DeStefano’ Questions (p. 586)

a. It appears that fear of disparate impact liability based on the statistical disparity and the

b. The U.S. Supreme Court held that the city improperly discarded the examination to achieve

a more desirable racial distribution of promotion-eligible candidates, since there was no

c. This can be a discussion question. The Supreme Court ruled that the New Haven firefighters

granted summary judgment.

2. This can be a discussion question. An employer could rely less heavily on testing, and actively

3. A jury awarded Claus $425,000 in damages.

4. The federal court of appeals struck down the plan as an unlawful quota system. The Supreme

5. This case involved the same 2003 exams at issue in Ricci. New Haven’s motion to dismiss was

granted.

Answers to Chapter Questions (p. 597)

1. No. The court held, without further discussion, that differing hair length standards for men and

2. On the web page for Lawry’s Prime Rib, a female server in the traditional Lawry’s uniform is seen

The picture might provide an interesting visual backdrop for a discussion comparing Lawry’s

3. The EEOC Compliance Manual offers an example of a rejected Chinese-American female

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Chapter 13 – Employment Law II: Discrimination

4. With regard to her hostile work environment and sexual harassment claim, Reeves appeals

summary judgment in favor of Robinson Worldwide (CHRW). The daily exposure to language and

5. The retaliation claim by the plaintiffs Mary McCormack and Samantha Stabencheck bring this

case under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2, for alleged

6. No. The court found that, while the fact that store employees were not surveyed about the

7. This can be a discussion-based question for the students. Ask students to create an outreach

8. Piantanida lost. The court framed the issue this way: Whether being discriminated against

because of one’s status as a new parent is “because of or on the basis of pregnancy, childbirth, or

a. The court found in favor of Caldor. The Connecticut statute violates the Establishment

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Chapter 13 – Employment Law II: Discrimination

b. Apparently not. In a concurring opinion, Justices O’Connor and Marshall argue that:

10.

a. Here the harassment did not spring from Sanchez’ gender. Rather, it spring from his behavior

b. Sanchez won. The court embraced Sanchez’ claim that the verbal abuse was based upon

11. Reversing a lower court’s summary judgment for the employer, the employer found a genuine

12. This can be a discussion for the students. The court found that being female was not a necessity

13. The students can have a discussion on this question. In announcing the $168,000 settlement, the

acting EEOC District Director Michael Baldonado commented, “This is the kind of situation that

14. Students can have a discussion based on this question. Employers compare, distinguish, and

choose among applicants and employees based on many factors. However, EEO laws forbid

15. This can be a discussion-based question for the students. The Equal Pay Act of 1963 and the

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Chapter 13 – Employment Law II: Discrimination

16.

a. Her argument would be that the hospital regarded her as having an impairment.

b. No. The hospital did not consider her disabled, merely overweight, and none of the

Supplementary Materials

I. Civil Rights Act of 1964 (p. 556)

Title VII by its terms applies only to employers with 15 or more employees. There has long been a split

among the federal circuits as to how the number of employees is to be counted—specifically, how

part-time employees are to be treated. In a decision announced on January 14, 1997 in Walters v.

Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997), the Supreme Court adopted an

interpretation that includes part-time employees. Some commentators expect a rush of new cases

against small businesses; but other commentators have pointed out that no such rush occurred in

either the First or Fifth Circuits after the more inclusive rule was adopted in those circuits.

It should be noted that the same language appears in the ADA and the ADEA and dicta in the

Supreme Court opinion apparently indicates that those acts should be interpreted similarly.

II. Equality for Women (p. 569)

Ann B. Hopkins was denied a position as a partner at Price Waterhouse even though her financial

record for the firm was better than many of the male candidates. She sued the firm for sex

discrimination, alleging that sexual stereotyping was the reason she was denied promotion and

claiming that this was illegal sex discrimination. The firm stated that Hopkins was “overbearing.”

Hopkins claimed that her behaviors would have been irrelevant if she were male. Both the district court

and the court of appeals ruled in her favor, noting that the partnership selection process was

“impermissibly infected with stereotypical attitudes towards women.” The case was appealed to the

Supreme Court, which also ruled in Hopkin’s favor. Specifically, in “mixed motive” cases, if the plaintiff

establishes that the employment decision was motivated (at least in part) by discrimination, the

defendant employer will be found to have violated Title VII unless it can prove that it would have

reached the same decision even if discrimination had not been a factor. As a remedy in the instant

case, Hopkins won an order awarding her partnership.

The 1991 Civil Rights Act overruled the case by providing that “an unlawful employment practice is

established when the complaining party demonstrates that race, color, religion, sex or national origin

was a motivating factor, for any employment practice, even though other factors also motivated the

practice.”

The 1991 Act also provides that “[o]n a claim in which an individual proves a violation under section

703(m) [governing mixed motive decisions] and a respondent demonstrates that the respondent would

have taken the same action in the absence of the impermissible motivating factor, the court shall not

award damages or issue an order requiring any admission, reinstatement, hiring, promotion or

payment.” In other words, if an employer can prove (the burden of proof is on the employer) that its

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Chapter 13 – Employment Law II: Discrimination

decision was motivated by legitimate reasons as well as discriminatory reasons, the employer need

not hire (or reinstate, promote, etc.) the plaintiff.

III. What Is Sexual Harassment? (p. 570)

In sexual harassment cases, some courts are now beginning to employ a “reasonable woman”

standard. Polling data showed that 75% of women would be offended by sexual advances in the

workplace while 75% of men would be flattered. The reasonable woman standard then is a recognition

of differing perceptions/experiences by gender. See Arthur S. Hayes, “Courts Concede The Sexes

Think in Unlike Ways,” The Wall Street Journal, May 28, 1991, p. B1.

Supplementary Cases

I. U.S. E.E.O.C. v. SEDITA, 816 F. Supp. 1291 (N.D. Ill. 1993) (BFOQ p. 572)

Syllabus

Sedita is the president and sole shareholder of Women’s Workout World (WWW), an

organization of 15 health clubs which have an exclusively female membership. The EEOC in

this law suit challenged WWW’s practice of refusing to hire any men as managers, assistant

managers or instructors. Some men are hired as class-givers. Sedita argued that this practice

qualified as a BFOQ. The issue before the court is whether the EEOC should be granted a

summary judgment before trial, in essence arguing that there are no facts which Sedita could

prove which would permit WWW’s practice to be treated as a BFOQ.

The court found that for Sedita to overcome the summary judgment motion, the BFOQ must

satisfy a three-part test: (1) The asserted privacy interest is entitled to protection, (2) there is a

factual basis for believing that hiring any men would undermine the essence of WWW’s

business, and (3) no reasonable alternatives exist to protect that privacy interest.

With regard to the first test, the court found that “customer preference may … give rise to a

BFOQ for one sex where the preference is based upon a desire for sexual privacy.” Here the

issue arises because employees take measurements, instruct members on the proper use of

equipment and proper exercise form. The court found that these activities go to the “essence”

of WWW’s business of providing personal and individual service to an exclusively female

clientele.

The court held the defendants had provided a factual basis for their belief that no men should

be hired by presenting petitions signed by over 10,000 club members stating, among other

things, that they would no longer patronize WWW if men were hired because their privacy

would be invaded.

Finally, the court found the reasonableness of the alternatives to be an issue that should be

decided after a trial on the merits. Therefore, the court denied the EEOC motion for summary

judgment.

II. Dothard v. Rawlinson, 97 S. Ct. 2720 (1977) (BFOQ p. 572)

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Chapter 13 – Employment Law II: Discrimination

Syllabus

After her application for employment as a “correctional counselor” (prison guard) in Alabama

was rejected because she failed to meet the minimum 120-pound weight requirement of an

Alabama statute, which also establishes a height minimum of 5 feet 2 inches, appellee

Rawlinson (hereafter appellee) filed a charge with the EEOC and ultimately brought a class

action against appellant corrections officials, challenging the statutory height and weight

requirements and a regulation establishing gender criteria for assigning correctional

counselors to “contact” positions (positions requiring close physical proximity to inmates) as

violative of Title VII, inter alia. A three-judge district court decided in appellee’s favor. On the

basis of national statistics as to the comparative height and weight of men and women

indicating that Alabama’s statutory standards would exclude over 40% of the female

population but less than 1% of the male population, the court found that with respect to such

standards, appellee had made out a prima facie case of unlawful sex discrimination, which

appellants had failed to rebut. The court also found the challenged regulation impermissible

under Title VII as being based on stereotyped characterizations of the sexes and, rejecting

appellants’ bona-fide-occupational-qualification defense under Title VII, ruled that being male

was not such a qualification for the job of correctional counselor in a “contact” position in an

Alabama male maximum-security penitentiary.

On appeal, the Supreme Court held:

1. The district court did not err in holding that Title VII prohibited application of the statutory

height and weight requirements to appellee and the class she represents.

a. To establish a prima facie case of employment discrimination, a plaintiff need only

show that the facially neutral standards in question, such as Alabama’s height and

weight standards, select applicants for hire in a significantly discriminatory pattern;

and here the showing of the disproportionate impact of the height and weight

standards on women based on national statistics, rather than on comparative

statistics of actual applicants, sufficed to make out a prima facie case.

b. Appellants failed to rebut the prima facie case of discrimination on the basis that

the height and weight requirements are job related in that they have a relationship

to the strength essential to efficient job performance as a correctional counselor,

where appellants produced no evidence correlating such requirements with the

requisite amount of strength thought essential to good job performance and, in fact,

failed to offer evidence of any kind in specific justification of the statutory

standards.

In the particular circumstances of this case, the district court erred in rejecting

appellants’ contention that the regulation in question falls within the narrow ambit of

the bona-fide-occupational-qualification exception, it appearing from the evidence

that Alabama maintains a prison system where violence is the order of the day,

inmate access to guards is facilitated by dormitory living arrangements, every

correctional institution is understaffed, and a substantial portion of the inmate

population is composed of sex offenders mixed at random with other prisoners;

and that therefore the use of women guards in “contact” positions in the maximum

security male penitentiaries would pose a substantial security problem, directly

linked to the sex of the prison guard.

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Chapter 13 – Employment Law II: Discrimination

III. Harris v. Forklift systems, Inc., 114 S. Ct. 367 (1993) (The Law of Sexual

Harassment p. 577)

Syllabus

Petitioner Harris sued her former employer, Forklift Systems, Inc., claiming that the conduct of

Forklift’s president toward her constituted “abusive work environment” harassment because of

her gender in violation of Title VII. Declaring this to be a “a close case,” the district court found,

among other things, that Forklift’s president often insulted Harris because of her gender and

often made her the target of unwanted sexual innuendoes. However, the court concluded that

the comments in question did not create an abusive environment because they were not “so

severe as to …seriously affect [Harris’] psychological well-being” or lead her to “suffe[r] injury.”

The Court of Appeals affirmed the district court.

The Supreme Court held that to be actionable as “abusive work environment” harassment,

conduct need not “seriously affect [an employee’s] psychological well-being” or lead the

plaintiff to “suffe[r] injury.”

1. The applicable standard, here reaffirmed, is stated in Meritor Savings Bank v. Vinson:

Title VII is violated when the workplace is permeated with discriminatory behavior that is

sufficiently severe or pervasive to create a discriminatorily hostile or abusive working

environment. This standard requires an objectively hostile or abusive environment—one

that a reasonable person would find hostile or abusive—as well as the victim’s subjective

perception that the environment is abusive.

2. Whether an environment is “hostile” or “abusive” can be determined only by looking at all

of the circumstances, which 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 relevant in 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.

3. Reversal and remand are required because the district court’s erroneous application of

the incorrect legal standard may well have influenced its ultimate conclusion that the work

environment was not intimidating or abusive to Harris, especially given that the court

found this to be a “close case.”

IV. Adarand Constructors, Inc. v. PENA, 115 S. Ct. 2097 (1995) (Affirmative

Action p. 584)

Syllabus

The U.S. Dept. of Transportation awarded Mountain Gravel & Construction Company a

contract to construct a highway. Mountain Gravel would receive additional compensation

under that contract if it hired any subcontractors who were controlled by “socially and

economically disadvantaged individuals.” Federal law requires a presumption that such

“disadvantaged” individuals include “Black Americans, Hispanic Americans, Native Americans,

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Chapter 13 – Employment Law II: Discrimination

Asian Pacific Americans, and other minorities.”

Mountain Gravel solicited subcontractors to install guardrails. Adarand responded and

submitted the low bid. Another company, Gonzales Construction Company, which was a

certified company under the above standard, also submitted a bid and was hired. The issue

before the Supreme Court was how carefully the race-based rebuttable presumption should

be reviewed by the courts in determining whether it violated Title VII.

The decision of the Court was badly divided (5-4) and at least three justices wrote opinions in

the case. The majority opinion held that courts must review any racial classification under the

strictest judicial scrutiny. “In other words, such classifications are constitutional only if they are

narrowly tailored measures that further compelling governmental interests.” Adarand’s claim

was therefore remanded for a review of the rebuttable presumption under that standard.

Justice Scalia concurred with the results of the majority opinion, but stated that he believed

the “government can never have a ‘compelling interest’ in discriminating on the basis of race in

order to ‘make up’ for past racial discrimination in the opposite direction.” That is, he would

have found in favor of Adarand on the merits.

Justices Souter, Ginsburg and Breyer dissented from the majority opinion and would have

approved this affirmative action program.

V. Sutton and Hinton v. United Air Lines, 527 U.S. 471 (1999) (The Americans

with Disabilities (ADA) p. 590)

Syllabus

Petitioners, two twin sisters, were denied positions as commercial airline pilots because their

uncorrected eyesight was worse than 20/100, the standard applied by United for all pilots. In

both cases, with correction, their eyesight was 20/20 or better. Petitioners sued under the

ADA. The primary issue was whether the physical impairment that, in the words of the Act,

“substantially limits” them in one or more major life activities should be viewed with or without

reference to corrective measures. The Court held that the “substantial limitation” must be an

actual limitation and that an impairment that was correctible did not substantially limit a major

life activity. They also did not state a claim that United regarded their impairment as

substantially limiting their ability to work. They would require that they be unable to work in a

broad class of jobs, not just commercial airline pilots.

VI. Western Air Lines, Inc. V. Charles G. Criswell, 472 U.S. 400 (1985) (Age

Discrimination p. 594)

Syllabus

The ADEA generally prohibits mandatory retirement before age 70, but provides an exception

“where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the

normal operation of the particular business.” Petitioner airline company requires that its flight

engineers, who are members of the cockpit crews of petitioners’ aircraft, but do not operate

flight controls unless both the pilot and copilot become incapacitated, retire at age 60. A

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Chapter 13 – Employment Law II: Discrimination

Federal Aviation Administration regulation prohibits any person from serving as a pilot or

copilot after reaching his 60th birthday. Certain of the respondents, who include flight

engineers forced to retire at age 60 and pilots who, upon reaching 60, were denied

reassignment as flight engineers, brought suit in federal district court against petitioner,

contending that the age-60 retirement requirement for flight engineers violated the ADEA.

Petitioner defended, in part, on the theory that the requirement is a BFOQ “reasonably

necessary” to the safe operation of the airline. The physiological and psychological capabilities

of persons over age 60, and the ability to detect disease or a precipitous decline in such

capabilities on the basis of individual medical examinations, were the subject of conflicting

expert testimony presented by the parties. The jury instructions included statements that the

“BFOQ defense is available only if it is reasonably necessary to the normal operation or

essence of [petitioner’s] business”; “the essence of [petitioner‘s] business is the safe

transportation of [its] passengers”; and petitioner could establish a BFOQ by providing both

that “it was highly impractical for [petitioner] to deal with each [flight engineer] over age 60 on

an individual basis to determine his particular ability to perform his job safely” and that some

flight engineers “over age 60 possess traits of a physiological, psychological or other nature

which preclude safe and efficient job performance that cannot be ascertained by means other

than knowing their age.” The district court entered judgment based on the jury’s verdict for the

plaintiffs, and the Court of Appeals affirmed, rejecting petitioner’s contention that the BFOQ

instruction was insufficiently deferential to petitioner’s legitimate concern for the safety of its

passengers.

The Supreme Court held:

1. ADEA’s restrictive language, its legislative history and the consistent interpretation of the

administrative agencies charged with enforcing the statute establish that the BFOQ

exception was meant to be an extremely narrow exception to the general prohibition of

age discrimination contained in the ADEA.

2. The relevant considerations for resolving a BFOQ defense to an age-based qualification

purportedly justified by safety interests are whether the job qualification is “reasonable

necessary” to the overriding interest in public safety, and whether the employer is

compelled to rely on age as a proxy for the safety-related job qualification validated in the

first inquiry. The latter showing may be made by the employer’s establishing either:

a. That it had reasonable cause to believe that all or substantially all persons over the

age qualification would be unable to perform safely the duties of the job, or

b. That it is highly impractical to deal with the older employees on an individualized

basis.

3. The jury here was properly instructed on the elements of the BFOQ defense under the

above standard, and the instructions were sufficiently protective of public safety.

a. Petitioner’s contention that the jury should have been instructed to defer to

petitioner’s selection of job qualifications for flight engineers “that are reasonably in

light of the safety risks” is at odds with Congress’ decision, in adopting the ADEA,

to subject such decisions to a test of objective justification in a court of law. The

BFOQ standard adopted in the statute is one of “reasonable necessity,” not

reasonableness. The public interest in safety is adequately reflected in instructions

that track the statute’s language.

b. There is no merit to petitioner’s contention that the jury should have been

instructed under the standard that the ADEA only requires that the employer

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Chapter 13 – Employment Law II: Discrimination

establish “a rational basis in fact” for believing that identification of those persons

lacking suitable qualifications cannot be made on an individualized basis. Such

standard conveys a meaning that is significantly different from that conveyed by

the statutory phrase “reasonably necessary,” and is inconsistent with the

preferences for individual evaluation expressed in the language and legislative

history of the ADEA.

Selected Bibliography

Associated Press, “Record Harassment Pact,” Des Moines Register, June 12, 1998, p. 1A.

Gary S. Becker, “Productivity Is the Best Affirmative Action Plan,” Business Week, April 27, 1987, p.

18.

Jim Carlton, “Trying to Remedy Gaffe, Appease City, GM Bars Discrimination Against Gays,” The Wall

Street Journal, December 31, 1990, p. 3.

Kristine S. Daynes, “Disabilities Act in Action,” Personnel 67, No. 10, October 1990, p. 11.

Cari M. Dominguez, “A Crack in the Glass Ceiling,” HR Magazine 35, No. 12, December 1990, p. 65.

Editorial, “Due Process at Columbia,” The Wall Street Journal, October 4, 2000, p. A26.

Selwyn Feinstein, “Aptitude Tests can Predict Job Success, a 50-Year Look Back Shows,” The Wall

Street Journal, September 11, 1990, p. A1.

Jaclyn Fierman, “Why Women Still Don’t Hit the Top,” Fortune 122, No. 3, July 30, 1990, p. 40.

Dorothy Gaiter, “Minority-Owned Business’s Surge of ’80s is Threatened,” The Wall Street Journal,

March 13, 1991, p. B1.

Bennett Harrison, “For Blacks, a Degree Doesn’t Automatically Mean Higher Incomes,” Los Angeles

Times, September 4, 1990, p. D8.

Raymond L. Hogler and Jeanette N. Cleveland, “Wards Cove and the Theory of Disparate Impact:

From Bad Law to Worse Policy,” Labor Law Journal 41, No. 3, March 1990, p. 138.

Miriam Jordan, “Quotas for Blacks in Brazil Cause Hubbub,” The Wall Street Journal, December 27,

2001, p. A6.

David A. Kaplan, “Equal Rights, Equal Risks,” Newsweek, April 1, 1991, p. 56.

Hillary E. MacGregor, “In Japan, Many Men Just Don’t Get It,” Los Angeles Times, Oct. 13, 1995, p.

A1.

National Urban League, The State of Black America 1990 (New York: National Urban League, 1990).

Timothy Noah and David Shribman, “White House Drops Ban on Scholarships for Minorities, but

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Chapter 13 – Employment Law II: Discrimination

Controversy Remains,” The Wall Street Journal, December 19, 1990, p. B2.

Asra Nomani, “A Fourth Grader’s Hard Lesson: Boys Earn More Money Than Girls,” The Wall Street

Journal, July 7, 1995, p. B1.

Roger Ricklefs, “Victims of AIDS-Related Discrimination Are Fighting Back—And Getting Results,” The

Wall Street Journal, July 15, 1988, p. 13.

Timothy Schellhardt, “In a Factory Schedule, Where Does Religion Fit In?,” The Wall Street Journal,

March 4, 1999, p. B1.

Rachel Emma Silverman, “On-the-Job Cursing: Obscene Talk Is Latest Target of Workplace Ban,” The

Wall Street Journal, May 8, 2001, p. B12.

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