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III. Equal Pay
The Equal Pay Act of 1963 directly forbids discrimination on the basis of sex by paying wages to
employees of one sex at a rate less than the rate paid to employees of the opposite sex for equal work on
jobs requiring equal skill, effort and responsibility and performed under similar working conditions (equal
has been interpreted to mean “substantially equal”). Unequal wage payments are lawful if paid pursuant
to (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of
production, or (4) a differential based on “any... factor other than sex.” The employer seeking to avoid a
violation of the Equal Pay Act can adjust its wage structure by raising the pay of the disfavored sex
performing equal work. Lowering the pay of the favored sex violates the Act.
Salary Negotiating Skills
Dreves was terminated from her $48,500 job as a general manager of Hudson’s retail operation at
Burlington International Airport, and replaced Dixon, a male, at a salary of $52,500. Dreves filed an Equal
Pay Act lawsuit and moved for summary judgment. In defending against the motion for summary
judgment, Hudson argued that the salary difference was based on “factors other than sex:” Dixon had to
relocate his family from another state, and had strong negotiating skills.
IV. Sexual Harassment
As a form of sex discrimination actionable under Title VII, sexual harassment protection covers both men
and women and strives to maintain equal opportunity in the workplace. Women in authority seem to be
particularly susceptible to sexual harassment. A 2012 study showed that female supervisors were more
likely to be harassed than women in subordinate positions.
The Customer Is Not Always Right
According to a lawsuit filed by the EEOC, two female cashiers at Love’s truck stop in Buckeye, Arizona,
ages 18 and 20, were allegedly subjected to unwanted sexual touching and pressing, crude and obscene
remarks, sexual demands and innuendos, and demands for personal information—by customers,
sometimes in front of other customers. The EEOC asserted that Love’s management knew about and
tolerated this sexually hostile work environment caused by its customers.
V. The Law of Sexual Harassment
Sexual harassment, as a form of discrimination, consists of unwelcome sexual advance, requests for
sexual favors, and other verbal or physical conduct of a sexual nature that (1) becomes a condition of
employment, (2) becomes a basis for employment decisions, or (3) unreasonably interferes with work
performance or creates a hostile working environment.
There are two types of sexual harassment: quid pro quo (“this for that,” such as a sexual favor in
exchange for keeping one’s job) and hostile work environment (a workplace rendered offensive and
abusive by such conduct as sexual comments, pictures, jokes, sexual aggression, and the like where no
employment benefit is gained or lost). The law of sexual harassment, particularly in regard to hostile work
environments, may apply to these cases.
The Test
The victim might be able to sue the wrongdoer under a state statute or by using a tort claim such as
assault, but under Title VII, personal liability appears not to be available. This result, if the current
judicial pattern continues, is not as unfair as might at first appear because well-settled principles of
justice hold the employer and not the employer’s agents or employees, generally responsible for
workplace wrongdoing. The victim, therefore, can seek damages from the employer as the
responsible party.
A pair of 1998 U.S. Supreme Court decisions in the Burlington Industries and Faragher 43 cases
considerably clarified the circumstances under which an employer is liable for sexual harassment in
the workplace. The analysis proceeds as follows:
Proof of sexual harassment—the plaintiff/employee/victim must prove items a to c:
a. The harassing conduct is unwelcome.
b. The harassing conduct is because of sex.
c. The harassing conduct resulted in a tangible employment action, or was sufficiently
severe or pervasive as to unreasonably alter the conditions of employment and create
a hostile, abusive work environment.
If the plaintiff is unable to prove items a to c, the claim fails. If the plaintiff proves items a to
c, the inquiry then turns to the question of whether the employer bears responsibility for the
harassment, as analyzed in Part 2.
Employer liability and the affirmative defense
oIf the wrongdoer is a co-worker, the plaintiff/employee can bring a negligence claim
seeking to prove that the employer unreasonably failed to prevent or remedy the
discriminatory harassment of the plaintiff/employee where management knew or
should have known about the harassment.
oIf the wrongdoer is a supervisor with authority over the plaintiff/employee, and if the
employee suffered a tangible employment action because of the harassment, the
employer is vicariously liable for the employee’s losses.
oIf the wrongdoer is a supervisor with authority over the plaintiff/employee, but the
employee suffered no tangible employment action, the employer can avoid liability by
proving both elements of the following affirmative defense: (1) The employer exercised
reasonable care to prevent and correct the harassment promptly and (2) the employee
unreasonably failed to take advantage of those opportunities.
In its 2012 decision in a Title VII sexual harassment claim, Vance v. Ball State, the U.S. Supreme
Court restricted the definition of supervisor to one who could take a tangible employment action
against the allegedly harassed employee. The impact of that decision is illustrated in this case.
Legal Briefcase: McCormack v. Safeway 2014 U.S. Dist. LEXIS 17805 (D. Ariz. 2014)
Consider the Source: Sexual Harassment at the Casino
While she was a bartender at Gold Strike Casino Resort in Tunica County, Debra Brockington
allegedly was subjected to sexual harassment by her female supervisor, Wanda Haley, as well
as her former boyfriend and co-worker, Ed Ogden. The alleged harassment included Haley
grabbing Brockington’s breasts, making sexually suggestive remarks to others about
Brockington, and snapping a towel against her buttocks. Brockington admitted to engaging in
off-color conversations and conduct with her female co-workers. In her subsequent Title VII
claim, a federal trial court, addressing Haley’s behavior, held that “within the context of the
plaintiff’s work environment the alleged harassment in this case was neither severe nor
pervasive.”
Same Sex?
Joseph Oncale, a heterosexual who worked on an offshore oil rig, charged a supervisor and two
male coworkers with sexually harassing him, including repeated taunts and several sexual
assaults, one with a bar of soap while Oncale was showering. Oncale complained to superiors, but
to no avail. He then quit his job and sued his employer for sexual harassment. The case went to the
U.S. Supreme Court, which unanimously ruled that same-sex harassment is actionable under Title
VII.
Justice Scalia, who wrote the Supreme Court opinion, explained that the harassment must be
“because of sex” (that is, gender); that harassment can be motivated by hostility as well as by
desire; and that common sense and social context count. Ordinarily, plaintiffs in same-sex
harassment cases must show that the behavior was motivated by (a) sexual desire, (b) general
hostility to one or other gender, or (c) the victim’s failure to conform to sexual stereotypes (such as
effeminate behavior by a male).
A. Sexual Harassment in Other Nations
American managers working abroad must deal with international differences in attitudes toward sexual
behavior in the workplace, although a general shift in harassment law in the direction of the American
model is evident. The Civil Rights Act of 1991 extends Title VII’s protection to American employees
working abroad for such employers, but offers a “foreign law defense” under which the employer would
not be required to comply with Title VII if to do so would violate the host country’s law. The European
Union has adopted laws requiring harassment-free workplaces.
B. Retaliation
The power in an employment relationship often is unbalanced in favor of the employer. In
order to protect against an employer’s abuse of power and to encourage exercise of employees’ rights,
Title VII’s anti-retaliation provision prohibits an employer from discriminating against an employee for
engaging in a protected activity. Protected activities include opposing an employment practice that is
reasonably believed to violate Title VII, or participating in a complaint made under Title VII, such as
filing a charge of workplace discrimination.
Other civil rights laws, including the Americans with Disabilities Act (ADA), the Age Discrimination in
Employment Act (ADEA), and the Civil Rights Act of 1866, offer similar protections against retaliation.
A prima facie case of retaliation requires:
Participation in a protected activity
An employment action disadvantaging the plaintiff
A causal connection between the protected activity and the adverse employment action.
In several recent cases, the U.S. Supreme Court has addressed Title VII’s anti-retaliation protection. In
Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Court held that employees who
respond to questions about workplace discrimination during the employer’s informal investigation are
engaged in protected activity under Title VII’s anti-retaliation provision, even if they did not make the
complaint being investigated.
Part Four—Affirmative Action
Some viewed the 2008 election of Barack Obama, the first African-American president of the United
States, as evidence that the racism staining the country’s history was no longer an urgent concern.
Therefore, it was argued, affirmative action efforts on behalf of minorities and women could be reduced or
eliminated. Affirmative action is a means of remedying past and present discriminatory wrongs in a more
expeditious and thorough manner than the market might achieve on its own.
Affirmative action efforts arise in four ways
Courts may order the implementation of affirmative action after a finding of wrongful discrimination
Employers may voluntarily adopt affirmative action plans
some statutes require affirmative action
Employers may adopt affirmative action in order to do business with government agencies
Federal contractors must meet the affirmative action standards of the Office of Federal Contract
Compliance Programs.
I. Early Affirmative Action Law
In a 1979 case, United Steelworkers of America v. Weber, the U.S. Supreme Court set out perhaps its
most detailed “recipe” for those qualities that would allow a voluntary affirmative action plan in the private
sector to withstand scrutiny. Weber, a white male, challenged the legality of an affirmative action plan that
set aside for black employees 50 percent of the openings in a training program until the percentage of
black craft workers in the plant equaled the percentage of blacks in the local labor market.
In Kaiser’s Grammercy, Louisiana, plant, only 5 of 273 skilled craft workers were black, whereas the local
workforce was approximately 39 percent black. In the first year of the affirmative action plan, seven blacks
and six whites were admitted to the craft training program. Weber was among the white males denied
entry to the training program.
Weber filed suit, claiming Title VII forbade an affirmative action plan that granted a racial preference to
blacks where whites dramatically exceeded blacks in skilled craft positions but where there was no proof
of discrimination. The federal district court and the federal court of appeals held for Weber, but the U.S.
Supreme Court reversed. Several qualities of the Steelworkers’ plan were instrumental in the Court’s
favorable ruling:
The affirmative action was part of a plan
The plan was designed to “open employment opportunities for Negroes in occupations which have
been traditionally closed to them”
The plan was temporary
The plan did not unnecessarily harm the rights of white employees. That is,
oThe plan did not require the discharge of white employees
oThe plan did not create an absolute bar to the advancement of white employees
II. Rethinking Affirmative Action
From the late 1980s to the present, a series of judicial decisions and increasing public and political
skepticism have challenged the legality and the wisdom of affirmative action, at least where the
government is involved. The 1989 City of Richmond v. J. A. Croson Co. case struck down Richmond,
Virginia’s, minority “set-aside” program that required prime contractors who were doing business with the
city to subcontract at least 30 percent of the work to minority businesses. The Court said such
race-conscious remedial plans were constitutional only if (1) the city or state could provide specific
evidence of discrimination against a particular protected class in the past (rather than relying on proof of
general society wide discrimination) and (2) its remedy was “narrowly tailored” to the needs of the
situation.
Legal Briefcase: Ricci v. DeStefano 129 S.Ct. 2658 (2009)
III. Affirmative Action: Where Are We?
Some confusion remains after Ricci, given differences in analysis between cases based on the
Constitution and those brought under Title VII, and whether those cases address employers’ screening,
set-asides, or other practices. What has been made clear is that both quotas and affirmative action
justified by “societal discrimination” are unconstitutional.
A lawful affirmative action remedy in employment cases apparently will be evaluated, in most cases, by
the following considerations:
The plan addresses a compelling interest such as remedying past or present discrimination or
correcting the underutilization of women and minorities
The plan is temporary
The plan is narrowly tailored to minimize layoffs and other burdens
Part Five—Additional Discrimination Topics
I. Religious Discrimination
Kimberly Cloutier was employed as a cashier at Costco in West Springfield, Massachusetts. The store
revised its dress code in 2001 to prohibit all facial jewelry other than earrings. Cloutier, a member of the
“Church of Body Modification,” was advised to remove her facial piercings. She declined to do so saying
that her piercings were part of her religion. Eventually, Cloutier was fired.
She sued Costco claiming she was a victim of religious discrimination in violation of Title VII of the Civil
Rights Act of 1964. Costco, however, prevailed when the federal First Circuit Court of Appeals ruled in
2004 that excusing Cloutier from the dress code would be an undue hardship for Costco because the
company had a legitimate interest in presenting to the public a workforce that was reasonably
professional in appearance.
The Law
Title VII’s protections against religious discrimination and harassment in the workplace include the
employer’s duty to reasonably accommodate employees’ religious beliefs and practices. Employers
need not accommodate an employee’s religious practice or belief if it creates an “undue
hardship”—an unreasonable burden—on the workplace.
The leading religious discrimination case is Trans World Airlines, Inc. v. Hardison, in which the
plaintiff, who celebrated his religion on Saturdays, was unable to take that day off from his work in a
parts warehouse. Efforts to swap shifts or change jobs were unsuccessful. The Supreme Court’s
ruling in the case reduced the employer’s duty to a very modest standard: “To require TWA to bear
more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”
II. The Americans with Disabilities Act (ADA)
The ADA forbids discrimination in employment, public accommodations, public services, transportation,
and telecommunications. Small businesses with fewer than 15 employees are exempted from the
employment portions of the ADA. The Rehabilitation Act of 1973 protects public sector workers with
disabilities from employment discrimination.
Under the ADA, a qualified individual who (1) has a physical or mental impairment that substantially limits
one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such
an impairment may not be discriminated against in employment.
In a series of decisions, the U.S. Supreme Court narrowed the scope of the ADA, prompting a leading
disabilities rights advocate to call the ADA “the incredible shrinking law.” In response, the Americans with
Disabilities Amendments Act (ADAAA) was passed by Congress and signed into law by President George
W. Bush in 2008 to overturn those decisions and establish broader definitional guidelines under the ADA.
A. Defining Disabilities
As amended by the ADAAA, the ADA emphasizes that “disability” should be defined broadly in offering
protection from employment discrimination. Examples of such disabilities include epilepsy,
hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia.
Alcoholism, drug addiction, and AIDS are disabilities under the ADA. However, the ADA excludes from
its protection job applicants and employees who currently use illegal drugs.
Taking medication or using a prosthetic device to overcome an impairment does not exclude an
individual from the ADA’s protection. In addition, an impairment in remission, such as cancer, is
covered if it would substantially limit a major life activity when active.
B. Regarded as Having” a Disability
An individual who does not have a disability may still be protected under the ADA. If an employer
incorrectly assumes that an applicant or employee has a disability, and then takes discriminatory
action on that basis, the employer has violated the ADA.
C. Accommodating Individuals with Disabilities
An employer may not discriminate in hiring or employment against a qualified person with a disability.
A qualified person is one who can perform the essential job functions with or without reasonable
accommodation. The ADA requires employers to make reasonable accommodations for disabled
employees and applicants. Employers are not required to provide an accommodation that would
create an undue hardship.
“Getting to Work” with Reasonable Accommodation
Jeanette Colwell was hired as a part-time retail clerk at a Rite Aid store in Old Forge, Pennsylvania.
She worked various shifts, including 5 pm to 9 pm, and she earned supervisors’ recognition for good
performance. A few months after being hired, Colwell was diagnosed with “retinal vein occlusion and
glaucoma in her left eye,” and eventually she became blind in that eye. Colwell informed her
supervisor, Susan Chapman, that her partial blindness made it dangerous and difficult for her to drive
to work at night.
Colwell later sent Chapman a doctor’s note recommending that Colwell not drive at night, but
Chapman was still unwilling to assign Colwell to day shifts only. Colwell resigned and brought an ADA
claim against Rite Aid. The federal trial court ruled that Rite Aid had no duty to accommodate Colwell
because she was able to perform all her work duties at the store; Colwell appealed.
D. The ADA in Practice
A greater disparity exists in the level of participation in the labor force, defined by those employed and
those who are unemployed but looking for work. Some employers may hesitate to hire workers with
disabilities out of misconceptions and fear of added costs for accommodations. However, in recent
years companies have made efforts to increase the presence of individuals with disabilities in the
professional workforce.
Tax credits to hire and provide access to individuals with disabilities, as well as tax deductions to
remove architectural barriers to make its facilities more accessible, also provide incentives for
employers to hire and retain employees with disabilities. On the other hand, under federal regulations
that became effective in 2014, federal contractors that have a workforce with less than 7 percent
disabled workers or that do not take steps to achieve that goal could face penalties, including losing
their contracts.
Rosa’s Law: Changing the Words
Rosa’s Law, named after Rosa Marcellino, a 9-year-old with Down Syndrome, changes the language in all
federal health, education, and labor laws to remove the phrase “mentally retarded” and replace it with
“intellectual disability.” President Obama has quoted Rosa’s brother Nick as saying: “What you call people is
how you treat them. If we change the words, maybe it will be the start of a new attitude towards people with
disabilities.”
III. Genetic Testing
Genetic testing in the workplace and its discriminatory eects have been addressed by the
EEOC. In 2008, Congress and the president approved the Genetic Information Nondiscrimination Act
(GINA) that prohibits employers from discriminating because of genetic information. With few exceptions,
employers are not allowed to gather genetic information regarding an employee or the employee’s family
members.
IV. Age Discrimination
Can a clothing store featuring styles designed for the college market lawfully prefer youthful
salespersons? May a marketing firm reject older applicants in an effort to bring “new blood” into its
workforce? While these questions are not definitively resolved, employers taking such actions might face
liability for age discrimination.
ADEA Claims
The Age Discrimination in Employment Act (ADEA) protects those 40 and older from
employment discrimination based on their age. Disparate treatment and harassment claims may
be brought under the ADEA, and a 2005 Supreme Court decision extended ADEA protection to
disparate impact claims also. In its 2009 Gross v. FBL decision, the U.S. Supreme Court made it
more difficult to win an ADEA disparate treatment claim.
Defenses
The employer may defend against an age discrimination claim by showing that the termination
was based on a legitimate, non-discriminatory reason or that age is a bona fide occupational
qualification (BFOQ). The ADEA also provides that an employer can defeat an age
discrimination claim by demonstrating that a “reasonable factor other than age” was the actual
reason for terminating or otherwise disfavoring an older worker. In 2008, the U.S. Supreme
Court held that an employer using this defense in a disparate impact case carries the burden of
proving a “reasonable factor other than age.”
Reverse Age Discrimination?
Being young is cool, but younger workers may get cold treatment in the workplace. Younger
workers often seem to take the brunt of layoffs. Fear of ADEA lawsuits may be one reason
companies use seniority to determine who will be retained in a reduction in force.
V. Sexual Orientation Discrimination
Federal law does not offer protection against discrimination on the basis of an employee’s sexual
orientation. The courts have consistently ruled that Title VII’s prohibition of discrimination based on sex
refers to gender only, and not sexual orientation. In 2013, the Employment Non-Discrimination Act
(ENDA), which would prohibit employers from discriminating on the basis of an employee’s actual or
perceived sexual orientation was reintroduced and passed the Senate, after having been proposed but
not enacted over the years. As of January 2014, 21 states and the District of Columbia prohibit
employment discrimination based on sexual orientation.
Sexual Orientation Discrimination or Sex-Stereotyping?
Henderson began working for a staffing company that gave preference to employees with
transportation. Although Henderson had transportation, he was assigned to projects when it was
difficult to find someone else. Henderson filed a lawsuit alleging that he was routinely subjected to
derogatory remarks by and in the presence of his supervisors.
In denying the company’s motion for summary judgment on the Title VII claims, the court noted that
Henderson’s claim demonstrates the tension between two legal principles. On the one hand, Title VII
does not protect against discrimination based on sexual orientation. On the other hand, an employer
cannot discriminate against an employee who does not meet gender stereotypes or norms.
VI. Gender Identity Discrimination
Several states and the District of Columbia prohibit employment discrimination based on gender identity
or expression. In the 2012 case of Macy v. Holder the EEOC decided that it would treat transgender
discrimination complaints as sex discrimination claims. Federal courts have also recognized such claims
as sex discrimination based on stereotyping men and women. In 2008, for example, a federal trial court
ruled that discrimination against transsexuals based on sex stereotyping is prohibited under Title VII.
