CHAPTER 13
Employment Law II: Discrimination
Chapter Goals
At the outset, the law of discrimination should be placed in the historical and social context from which it
arises. Students cannot be expected to objectively evaluate the merits of the campaign against
discrimination without being reminded of the conditions of life in America for protected-class citizens.
The authors feel that Chapter 13 will be a difficult learning experience for both instructors and students
because of the amount of material to be covered, as well as the difficulty of some of the issues.
Therefore, after devoting some time to the introductory, contextual materials, the instructor may wish to
proceed selectively with the balance of the chapter. The students need to be acquainted with the various
civil rights statutes and executive orders, but detailed attention seems unnecessary. The disparate impact
analysis beginning on page 562 is the heart of the chapter and should be addressed accordingly. A quick
look at the statutory defenses may suffice for your needs, particularly if the BFOQ defense is covered with
some care in the sex discrimination section.
In turning to the sex discrimination material, rigorous investigation of the law per se may be less important
than a general discussion of the important social issues of pregnancy, pensions, sexual harassment,
equal pay, etc.
The affirmative action materials are central to the goals of this chapter, which is an area that has been a
source of intense debate. Despite key decisions in recent years, that debate is unlikely to wane in the
coming months and years.
The topics in Part Five (page 589) are receiving increasing attention. Careful legal analysis here seems to
us not to be a high priority, since the exploration of racial and sexual discrimination will have sufficiently
exposed the student to the general analytical principles.
Chapter Learning Objectives
After completing this chapter, students will be able to:
1. Discuss the purpose and history of legal protections against employment discrimination.
2. Compare and contrast the protections offered under the federal statutes prohibiting employment
discrimination: Title VII of the Civil Rights Act of 1964; the Equal Pay Act; the Americans with
Disabilities Act; and the Age Discrimination in Employment Act.
3. Explain the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal
statutes prohibiting employment discrimination.
4. Identify remedies available to victims of unlawful employment discrimination.
5. Distinguish the forms of employment discrimination analysis: disparate treatment and disparate
impact.
6. Identify when unlawful sexual harassment has occurred.
7. Identify when employers are liable for unlawful sexual harassment.
8. Describe protections against retaliation offered under the federal statutes prohibiting employment
discrimination.
9. Discuss the purposes and development of affirmative action.
10. Describe the concept of reasonable accommodation as applied to religious-and disability-based
discrimination claims.
11. Discuss the current status of protections against sexual orientation discrimination in the workplace.
Chapter Outline
I. Introduction
Practicing Ethics: A “Look” at A&F
This material raises the issue of whether it is ethically wrong for a business to promote a particular image,
particularly one which is designed to appeal predominantly to “whites” or “blacks” or any other minority. At
the text’s writing in 2013, Abercrombie & Fitch faces two religious discrimination lawsuits filed by the
federal government’s Equal Employment Opportunity Commission. Both cases involve job applicants who
allegedly were denied employment because they were wearing head scarves in keeping with their
religious beliefs. The scarves violated A & F’s “Look Policy” which prohibits head coverings of any kind.
[For more details, see http://www.eeoc.gov/eeoc/newsroom/release/9-1-10.cfm]
Continuing Discrimination
The ethical issues raised by Abercrombie & Fitch’s hiring and staffing practices highlight the
challenges of enforcing legal protections against employment discrimination, often referred to as
Equal Employment Opportunity (EEO) laws. Prohibited factors, also called “protected
categories,” or “protected classes” include an applicant’s or employee’s race, color, and gender,
among other characteristics. Generally, EEO laws protect all employees and are not restricted to
certain groups such as women or racial minorities.
2060: Plurality Nation
The 2012 U.S. Census revealed that over one-third of Americans reported their race and
ethnicity as “minority;” that is, something other than non-Hispanic white. By 2060, the U.S.
Census Bureau projects that although overall population growth will slow down, this figure will
increase to 57 percent. Although non-Hispanic whites will remain the largest part of the U.S.
population, no one group will hold a majority, making the United States a “plurality nation.”
Part One—Employment Discrimination: The Foundation in Law
A. History
In the Reconstruction Era following the Civil War, Congress passed the Civil Rights Act of 1866 to
provide the newly freed black slaves with the same right to make and enforce contracts as was
enjoyed by white citizens. This law still exists today, with updated language emphasizing its protection
against racial discrimination. The Civil Rights Act of 1866 has been interpreted to forbid discrimination
on the basis of race in employment, which is essentially a contractual relationship.
However, this legal protection did not prevent discriminatory practices in housing, education, business,
and employment. In 1941, A. Philip Randolph, president of the predominantly black Brotherhood of
Sleeping Car Porters, organized black leaders who threatened a massive march in Washington, DC,
protesting employment discrimination. In response, President Franklin Roosevelt issued Executive
Order 8802, which created a Fair Employment Practice Committee. Congress limited the committee’s
budget, but Roosevelt’s action was a striking step for the federal government in addressing racial
discrimination.
The next big step toward racial equality was the landmark Brown v. Board of Education decision in
1954, in which the Supreme Court forbade “separate but equal” schools. With the passage of the 1964
Civil Rights Act, the campaign against discrimination solidified as one of the most energetic and
influential social movements in American history. The Civil Rights Act of 1964 changed American life
by forbidding discrimination in education, housing, public accommodation, and, perhaps most
importantly, employment. [For the National Civil Rights Museum, see http://www.civilrightsmuseum.org
B. Civil Rights Act of 1964
Title VII forbids discrimination in employment on the basis of race, color, sex, religion, or national
origin. Relying on its authority to regulate commerce, Congress applied Title VII to private-sector
employers with 15 or more employees, employment agencies, labor unions with 15 or more members
as well as those operating a hiring hall, state and local governments, and most of the federal
government. Broadly, Title VII forbids discrimination in hiring, firing, and all aspects of the employment
relationship.
C. Other Legislation and Orders
Title VII is the core of EEO laws in the United States. Other federal statutes, such as the Americans
with Disabilities Act of 1990 (ADA) and its 2008 amendments (ADAAA), and the Age Discrimination in
Employment Act of 1967 (ADEA), have established additional protected categories. The Equal Pay Act
of 1963 and the Civil Rights Act of 1991 address particular issues in employment discrimination.
D. The Constitution
The Fourteenth Amendment to the Constitution provides that no state shall deny to any person life,
liberty, or property without due process of law or deny him or her the equal protection of the laws.
Similarly, the Supreme Court has interpreted the Due Process Clause of the Fifth Amendment (“nor
shall any person… be deprived of life, liberty, or property, without due process of law”) to forbid
discrimination by the federal government.
Stopping Discrimination through Corporate Pledges
In his 2014 State of the Union Address, President Obama announced that he had secured voluntary
pledges from a number of major U.S. companies to not discriminate against applicants who are
currently unemployed. Legislative attempts to ban such discriminatory practices have met with limited
success and offer narrow protections against express exclusions of the unemployed in help-wanted
ads.
E. Employment Discrimination Enforcement
EEOC and State Fair Employment Practice Agencies
The Equal Employment Opportunity Commission (EEOC), an independent federal agency, has the
authority to issue regulations and guidelines as well as to receive, initiate, and investigate charges
of discrimination against employers covered by federal antidiscrimination statutes such as Title VII.
[See the Equal Employment Opportunity Commission’s website at http://www.eeoc.gov]
State fair employment practices legislation often mirrors or expands the antidiscrimination
protections found in federal statutes such as Title VII. State fair employment practice agencies may
serve the same function as the EEOC in enforcing these laws. Municipal ordinances may also
address employment discrimination, enforced by a particular branch of the city’s government. [For
the San Francisco Human Rights Commission, see
www.sfgov.org/site/sfhumanrights_index.asp]
Litigation
A victim of employment discrimination, usually referred to as the “charging party,” will file a
complaint within a limited period of time with either the EEOC or, where applicable, the local or
state fair employment practices agency. After 19 years as a Goodyear employee, Lily Ledbetter
discovered that her wages were much lower than her male co-workers. She filed an EEOC
complaint alleging gender discrimination and later won a jury verdict for back pay and punitive
damages. In 2007, the U.S. Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co. that
Ledbetter’s claim should have been brought within 180 days of the first paycheck at issue.
Congress reacted to Ledbetter by passing The Lily Ledbetter Fair Pay Act of 2009, signed into law
by President Obama in the first days of his administration. Under this statute, each paycheck
issued by an employer engaged in pay discrimination is a discriminatory act, meaning that the clock
resets on potential discrimination claim each time the affected employee is paid, with a two-year
cap on back pay damages.
Typically, the EEOC will refer the charging party and employer to its free mediation program. If
mediation does not resolve the complaint, then the EEOC will investigate. If the investigation
reveals that there is reasonable cause to believe that discrimination has occurred, the EEOC will
invite the parties to engage in conciliation to resolve the matter. If conciliation fails, the EEOC either
files a civil suit on behalf of the charging party or issues a “right to sue” letter. The “right to sue”
letter allows the party who filed the EEOC complaint to file a lawsuit, but also removes the EEOC
from the matter.
F. Remedies
Recognizing the gravity and nature of injuries caused by intentional discrimination in the workplace,
Congress expanded the remedies available for such injury under Title VII and the Americans with
Disabilities Act (ADA) to include compensatory damages as well as punitive damages in some cases.
The EEOC often negotiates consent decrees that may require new procedures to correct prior
wrongful practices. [For the Civil Rights Division of the U.S. Justice Department, see
http://www.justice.gov/crt/]
EEOC’s Strategic Plan
Under the EEOC’s Strategic Plan for FY 2012–2016, the EEOC has made “systemic enforcement” a
priority. In 2013, the EEOC obtained $372.1 million in monetary relief for victims of private-sector
workplace discrimination, the EEOC’s highest level of recovery in its history. At the same time, a
federal appellate court restricted the EEOC’s systemic enforcement efforts by ruling that the EEOC
would have to determine the individuals in a class action against an employer before litigation, not
during discovery. The employer should then have the opportunity to resolve the matter through the
EEOC’s conciliation process.
Part Two—“Types of Discrimination”
There are three basic types of illegal employment discrimination: disparate treatment, disparate impact,
and harassment. In addition, Title VII and other anti-employment discrimination statutes prohibit
retaliation for opposing an employment practice reasonably believed to be discriminatory, or for
participating in a claim of employment discrimination.
I. Disparate Treatment and Disparate Impact
Title VII of the 1964 Civil Rights Act provides two primary theories of recovery for individuals—disparate
treatment and disparate impact (sometimes labeled adverse impact). A disparate treatment claim
addresses intentional discrimination by an employer who has purposefully treated an employee or
applicant less favorably because of his or her race, color, religion, national origin, gender, or membership
in a group under another protected category.
Disparate impact claims arise from “unintentional” discrimination where an employment practice
appearing to be neutral has the effect of adversely impacting a particular group under a protected
category more than it impacts other groups.
A. Disparate Treatment
Employees or applicants making claims of disparate treatment must prove their employers’ intent to
discriminate with either direct or indirect evidence. More often, however, disparate treatment claims
rely on indirect evidence in accord with the following test:
Plaintiff’s (employee’s) prima facie case—it is confirmed by proving each of the following
ingredients:
oPlaintiff belongs to a protected class
oPlaintiff applied for a job for which the defendant was seeking applicants
oPlaintiff was qualified for the job
oPlaintiff was denied the job
oThe position remained open, and the employer continued to seek applicants
Defendant’s (employer’s) case—if the plaintiff builds a successful prima facie case, the
defendant must “articulate some legitimate, non-discriminatory reason for the employee’s
rejection.” However, the defendant need not prove that its decision not to hire the plaintiff was, in
fact, based on that legitimate, non-discriminatory reason.
Plaintiff’s response—assuming the defendant was successful in presenting a legitimate,
non-discriminatory reason for its action, the plaintiff must show that the reason offered by the
defendant was false and thus was merely a pretext to hide discrimination. [For an overview of
disparate treatment analysis, see www.hr-guide.com/data/G701.htm]
B. Disparate Impact
Disparate impact analysis involves situations in which employers use legitimate employment
standards that, despite their apparent neutrality, impose a heavier burden on a protected class than on
other employees. For example, a pre-employment test, offered with the best of intentions and
constructed to be a fair measurement device, may disproportionately exclude members of a protected
class and thus be unacceptable (barring an effective defense). Alternatively, an employer
surreptitiously seeking to discriminate may establish an apparently neutral, superficially valid
employment test that has the effect of achieving the employer’s discrimination goal.
The Test
Disparate impact analysis requires the following:
The plaintiff/employee must identify the specific employment practice or policy (such as test
score, skill, or height) that caused the alleged disparate impact on the protected class.
The plaintiff must prove (often with statistical evidence) that the protected class is suffering
an adverse or disproportionate impact caused by the employment practice or policy in
question.
Assuming a prima facie case is established in steps 1 and 2, the plaintiff/employee wins
unless the defendant/employer demonstrates that the employment practice/policy is (a) job
related and (b) consistent with business necessity.
If the defendant/employer succeeds in demonstrating job relatedness and business
necessity, the employer wins unless the plaintiff/employee demonstrates that an alternative,
less discriminatory business practice is available and that the employer refuses to adopt it.
Legal Briefcase: Griggs v. Duke Power Co. 401 U.S. 424 (1971)
C. Statutory Defenses
Title VII also affords specific exemptions or defenses, three of which are of particular note: (1)
seniority, (2) employee testing, and (3) bona fide occupational qualification.
Seniority
Differences in wages and conditions of employment are permissible under the Civil Rights Act of
1964 where those differences are the result of a bona fide (good faith) seniority system, as long as
the system was not intended to hide or facilitate discrimination. The Supreme Court has made it
clear that a bona fide seniority system that perpetuates past wrongs is illegal only if discriminatory
intent is proven.
Job-Related Employee Testing
To avoid a disparate impact created by employee testing, an employer must be able to show that
the test in question is job-related and consistent with business necessity; that is, the test must
evaluate an individual’s skills as they relate to the relevant employment opportunity. To prevent
unlawful disparate treatment, an employer’s test must be uniformly applied regardless of an
applicant’s or employee’s race, sex, or other protected categories.
Spousal Discrimination
Craig Holcomb, a white male and assistant coach for the Iona College men’s basketball team,
married an African-American woman. While the team enjoyed a successful record for several
years, its lackluster performance and player misconduct between 2001 and 2004 led to changes in
the Iona basketball program including the dismissal of Holcomb and an African-American assistant
coach. Holcomb brought a Title VII claim asserting that he had been discharged because his wife is
African American. Holcomb alleged that Iona College’s athletic director had made several racist
and derogatory remarks about African Americans on the basketball team and had derided
Holcomb’s decision to marry his wife, whom he referred to as “Aunt Jemima.”
The Four-Fifths Rule and Disparate Impact
If the selection rate (such as the percentage passing a test, being hired, or being promoted) for any
protected class is less than 80 percent of the selection rate for the group with the highest selection
rate, then the employment practice in question will be presumed to create a disparate impact. An
employer falling below that standard must prove the job relatedness of the employment practice in
question and demonstrate that a good-faith effort was made to find a selection procedure that
lessened the disparate impact on protected classes.
II. National Origins
Employment discrimination often reflects larger social issues that come to influence workplace relations. A
dramatic example is found in the aftermath of the September 11, 2001 terrorist attacks on the U.S:
Between September 11, 2001, and September 11, 2004, the EEOC processed more than 900 claims of
national origin discrimination associated with the September 11 attacks, resulting in approximately $3.2
million in monetary relief.
Speak English Only?
Reflecting a national debate over whether English should be the official language of the United
States, “Speak English Only” rules in the workplace have generated controversy as well as national
origin discrimination claims based on the disparate impact these rules may have on members of
ethnic groups whose primary language is not English.
EEOC guidelines prohibit employers from imposing a blanket ban on employees speaking their
primary language in the workplace, but an English-only rule at certain times is permissible if
justified by business necessity, and if adequately explained to the employees.
III. Racial Harassment
The hangman’s noose, perhaps the most hurtful and disgraceful expression of racism, has sadly
appeared in recent racial harassment cases. In 2008, the EEOC announced the $465,000 settlement of a
racial harassment lawsuit on behalf of African-American employees of Henredon Furniture Industries, who
had been subjected to a persistent racially hostile work environment that included the display of
hangman’s nooses. In 2006 the U.S. Supreme Court unanimously held that calling African-American male
employees “boy” could have racial overtones, even if not modified with a reference to African Americans.
Black History Month
In February 2010, the “Compton Cookout,” an off-campus party near the University of California, San
Diego (UC San Diego) was organized in apparent mockery of Black History Month. The invitation detailed
a dress code based on racial stereotypes. The university responded with a teach-in to explore how such
incidents arise and the importance of “mutual respect and civility” on its campus. The Office of the
Chancellor issued a statement: “We strongly condemn [the party] and the blatant disregard of our campus
values. Although the party was not a UC San Diego student-organization sponsored event, participants
did include UC San Diego students and that causes us great concern.”
Part Three—Sex Discrimination
A. Gender Equality
A discussion of gender inequality in the workplace typically begins with the gender-wage gap, which
persists through the 50-year anniversary of the 1963 Equal Pay Act: In 2013, the U.S. Bureau of Labor
Statistics (BLS) reported that American women working full-time earn on average about 81 cents for
every dollar earned by men.
The power and limits of statutory protections against sex discrimination are evident in recent Title VII
class-action lawsuits brought by female employees alleging disparity in pay, work assignments, and
promotion. But the class-action approach to discrimination litigation suffered a significant setback in
2011 when the U.S. Supreme Court denied class-action status in a sex discrimination case against
Walmart. The plaintiffs argued, among other things, that women have occupied 70 percent of
Walmart’s hourly jobs but only 33 percent of management positions.
The Supreme Court decision did not reach the substantive merits of the discrimination complaint.
Rather, the Supreme Court ruled that the case could not go forward as a class action because the
plaintiffs did not point to specific, consistent, nationwide employment policies or practices that harmed
the class members.
Glass Ceiling?
Does a “glass ceiling” of prejudice hold women back from roles of power and career
advancement? A 2011 study found a 40 percent disparity between male and female MBAs 10
years after graduation.
Lean In
In her 2013 book entitled Lean In, Facebook chief operating officer Sheryl Sandberg observes
that too few women are reaching leadership positions in business because, among other
factors, of women’s choices to curtail their own career ambitions. To support women’s
professional success and leadership, Sandberg advises women to “lean in” to their careers and
make themselves more visible and heard at the workplace.
I. Analysis of Sex Discrimination: Current Issues
Sex discrimination claims brought under Title VII include disparate treatment and disparate impact, as
well as sexual harassment. Employee training and policies targeting sex discrimination have become
common in the American workplace. However, sex discrimination claims remained the basis for
approximately 30 percent of the charges filed with the EEOC from 1997 to 2013.
A. Sex Discrimination and Disparate Impact
Legal Briefcase: Pietras v. Farmingville Fire District 180 F.3d 468 (2d Cir. 1999); cert. den. 528
U.S. 948 (1999)
B. Bona Fide Occupational Qualification
Often in intentional sex discrimination cases, the key inquiry involves the bona fide occupational
qualification (BFOQ) defense provided by Title VII. Discrimination is lawful where sex, religion, or
national origin is a BFOQ reasonably necessary to the normal operation of that business. The
exclusion of race and color from the list suggests Congress thought those categories always
unacceptable as bona fide occupational qualifications. The BFOQ was meant to be a very limited
exception applicable to situations where specific inherent characteristics are necessary to the job (for
example, wet nurse) or where authenticity (actors), privacy (nurses), or safety (guards) is required.
Essence
An employer can lawfully insist on a woman to fill a woman’s modeling role because being female
goes to the essence of the job. Airlines, on the other hand, cannot hire only women as flight
attendants even if customers prefer females and even if females perform the supplementary
elements of the job (like charming passengers) better than most men. Presumably, gender has little
to do with the ability to perform those essential ingredients of the job. Many employers have simply
assumed that women could not perform certain tasks. Those stereotypes are at the heart of sex
discrimination litigation generally and do not support a BFOQ defense.
What about Hooters?
Scantily clad “Hooters girls” serve food and beverages to Hooters restaurant customers. In the
1990s, several class-action lawsuits were brought against Hooters on behalf of rejected male
applicants. Under the 1997 settlement reached in the consolidated class action, Hooters was
allowed to maintain its policy of hiring females only as food servers, but it agreed to create other
restaurant positions such as bartenders for which men would have equal hiring opportunities. A
2009 gender discrimination claim brought by a Texas man who was allegedly told by a manager at
the Corpus Christi Hooters restaurant that he would not be hired as a waiter because of his gender
resulted in a confidential settlement with Hooters.
Looks Discrimination
Harrah’s Reno, Nevada, casino instituted a “Personal Best” appearance policy requiring its female
bartenders to wear makeup while prohibiting their male counterparts from wearing any. After a
successful 20-year career as a Harrah’s bartender, Darlene Jespersen was fired for refusing to
wear makeup under the policy.
Brenna Lewis staffed the front desks of Heartland Inn motels near Des Moines, Iowa, including its
Ankeny, Iowa, location. Her performance was excellent, earning her compliments from customers
and merit raises. Heartland’s new corporate director of operations, Barbara Cullinan, had approved
hiring Lewis for a full-time position staffing the Ankeny motel’s front desk during the day, but
Cullinan became dissatisfied after seeing Lewis in person.
Cullinan was heard saying that Heartland staff should be “pretty,” especially those working at the
front desk. Lewis was self-described as “slightly more masculine.” The front desk job description in
Heartland’s personnel manual did not mention appearance, stating only that a guest service
representative must create “a warm, inviting atmosphere” and perform tasks such as relaying
information and receiving reservations. Over protests of her direct manager, Lewis was eventually
fired. Both Jespersen and Lewis brought Title VII claims against their former employers.
II. Work-Life Balance and Sex Discrimination
Antidiscrimination law has been critical in allowing women to pursue careers and in providing some refuge
from the professional disadvantages of pregnancy experienced at some workplaces. The Pregnancy
Discrimination Act (PDA) amended Title VII of the Civil Rights Act of 1964 so that discrimination with
regard to pregnancy is treated as a form of sex discrimination. In general, an employer should not ask job
applicants about pregnancy, and applicants have no duty to reveal that pregnancy. Nor can a pregnant
employee be forced to take time off or be forced to quit due to pregnancy.
FRD
“Family Responsibilities Discrimination” has achieved increased recognition in recent
years. While no express antidiscrimination statutory protection is afforded to parents or caregivers,
FRD claims may be based on existing statutes such as Title VII.
CEOs on Maternity Leave
When Marissa Mayer was named chief executive officer (CEO) of Yahoo in July 2012, she was six
months pregnant, a fact well noted in media reports of Yahoo’s announcement. In 2014, after
several months in her new position as WEX CEO, Melissa Smith announced in a companywide
memo the impending birth of her first child. During her leave, the former WEX CEO and current
chairman, Michael Dubyack, was prepared to help with the executive leadership functions.
However, Ms. Smith indicated that, like Ms. Mayer, she planned a brief maternity leave during
which she would stay involved with work.