978-0134004006 Chapter 33 Lecture Note

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“What people have always sought is equality of rights before the law. For rights

that were not open to all equally would not be rights.”

Cicero

I. Teacher to Teacher Dialogue

inquiry and academic freedom to put forward opposite views, even if we personally do not

support those views. Teaching these materials is never easy, but remains always exciting. As the

Rev. Martin Luther King Jr. once said, “It may be true that the law cannot make a man love me.

But it can keep him from lynching me, and I think that’s pretty important.”

equally in the eyes of the law. As we all know, that equality has often been a hope rather than a

reality for many. For all of the rhetoric in the early days of the United States, freedom and

equality meant equality only for free or freed men, not women, and slavery still existed in many

of the states.

to reward ability and merit on its face. The positive aspect of discrimination really says that

uniqueness should be discerned, differentiated, distinguished, and rewarded in the workplace. In

the end, economic marketplace factors are blind to any other factors but job performance. Like it

or not, positive discrimination is a simple economic necessity that is no different than the laws of

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not intellectually.

One element that provides hope for positive change is goodwill. Where people of goodwill

cling to the basic rightness of equity before the law, that equity will eventually result in a changed

culture. Until then, law and our courts will continue to be the testing grounds for this monumental

II. Chapter Objectives

1. Describe the scope of coverage of Title VII of the Civil Rights Act of 1964.

2. Identify race, color, and national origin discrimination that violates Title VII.

III. Key Question Checklist

 What type of discrimination is being alleged?

IV. Text Materials

Introduction to Equal Opportunity in Employment

Starting in the 1960s, Congress began enacting a comprehensive set of federal laws that

eliminated major forms of employment discrimination. These laws, which were passed to

Equal Employment Opportunity Commission (EEOC)

The EEOC is the federal administrative agency responsible for enforcing most of the federal

antidiscrimination laws.

Complaint Process – A complainant must first file a complaint with the EEOC. Based on

whether a violation is found or not, it will decide whether to sue the employer. If a state has a Fair

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Lilly Ledbetter Fair Pay Act of 2009 – The act provides that each discriminatory pay decision

restarts the statutory 180-day clock. The act provides that a court can award back pay for up to

Title VII of the Civil Rights Act of 1964

In the 1960s, Congress enacted several major federal statutes that outlawed employment

Landmark Law: Title VII of the Civil Rights Act of 1964

The Fair Employment Practices Act was passed to eliminate job discrimination in the hiring,

Scope of Coverage of Title VII – Title VII applies to employers of 15 or more employees, all

Critical Legal Thinking – Title VII was passed based upon where the country stood at the time,

and in many parts of the country, where the country still stands today. It was very common to

Disparate-Treatment Discrimination – Title VII prohibits both disparate-treatment and

Disparate-Impact Discrimination – Disparate-impact discrimination is when an employer

Remedies for Violations of Title VII – A successful plaintiff may recover back pay, reasonable

attorneys’ fees, and equitable remedies. The court can award punitive damages if the employer

Race and Color Discrimination

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Race Discrimination – Race refers to broad categories such as African American, Asian,

Color Discrimination – Color refers to the color of one’s skin. Discrimination by an employer

discrimination which still exists in 2014.

Case 33.1 Race Discrimination: Bennett v. Nucor Corporation

656 F.3d 802, 2011 U.S. App. Lexis 19395 (2011), United States Court of Appeals for the Eighth

Circuit

offensive racial harassment.

Issue: Is Nucor liable for race discrimination?

Decision: Yes.

Ethics Questions: A zero human resources policy regarding hate related speech and racial slurs

would let workers know that this type of talk will not be tolerated in the workplace if

Civil Rights Act of 1866 – This federal act provided African Americans with the right to make

National Origin Discrimination

Contemporary Environment: English-Only Requirement in the Workplace

Title VII permits employers to adopt English-only rules under certain circumstances. The Equal

Gender Discrimination

Gender Discrimination – Also known as sex discrimination, this is applied equally to both men

Sexual Harassment – Sexual harassment in the workplace includes lewd remarks, touching,

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with work performance.

Sexual Harassment

The U.S. Supreme Court has held that sexual harassment that creates a hostile work environment

violates Title VII.

Same-Sex Discrimination – The Supreme Court has held that same-sex discrimination violates

Title VII.

Other Forms of Harassment – A hostile work environment can also be found if harassment is

Case 33.2 Sexual Harassment: Waldo v. Consumers Energy Company

726 F.3d 802, 2013 U.S. App. Lexis 16555 (2013), United States Court of Appeals for the Sixth

Circuit

Facts: Waldo was a female line worker for an electrical company. She was called names during

Issue: Is the company liable for sex harassment?

Decision: Yes, and a significant punitive damages award was rendered against the company.

Ethics Questions: The answers to these questions are self-evident.

Digital Law: Offensive E-Mails Constitute Sexual Harassment

for sexual harassment.

Religious Discrimination

Although religious discrimination is prohibited under Title VII, the right of an employee to

Defenses to a Title VII Action

Employers can refute claims of discrimination by proving that they selected or promoted

employees based on merit or seniority. Further, the courts allow discrimination based on

ability tests. Seniority systems are acceptable.

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necessity.

Equal Pay Act

The Equal Pay Act protects both sexes from pay discrimination based on sex, covering all private,

Criteria That Justifies a Differential In Wages – It is allowed in payment systems based on

seniority, merit, quantity or quality of product, and shift differentials. Employees may bring a

Age Discrimination

Physically Challenged Person Discrimination

The Americans with Disabilities Act (ADA), which was signed into law July 26, 1990, is the

Landmark Law: Americans with Disabilities Act

This act prohibits discrimination against individuals with qualified disabilities, and covers

employers with 15 or more employees, with the exception of the federal government,

corporations wholly-owned by the U.S., and bona-fide tax-exempt private clubs. Title 1 requires

Qualified Individual with a Disability – Any person who, with or without reasonable

accommodation, can perform the essential functions of a job, is considered to be a qualified

Reasonable Accommodation – If an employer makes a reasonable accommodation to

accommodate an individual’s disability, there is no violation of the ADA.

Undue Hardship – Employers are not obligated to provide accommodations that would impose

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an undue hardship.

Genetic Information Discrimination

Genetic information can be misused, possibly by employers if they have access to or knowledge

of an applicant’s or an employee’s genetic information or his or her family’s genetic information.

Such misuse is called genetic information discrimination.

Protection from Retaliation

Acts of retaliation include dismissing, demoting, harassing, or other methods of reprisal.

class of persons who could bring a retaliation case under Title VII. Thompson appealed to the

U.S. Supreme Court.

Issue: Does Title VII permit third-party retaliation claims against an employer?

Decision: The U.S. Supreme Court held that Title VII grants a third party the right to file a claim

with standing to sue.

Ethics Questions: Federal antidiscrimination laws prohibit employers from engaging in

retaliation against an employee for filing a charge of discrimination or participating in a

discrimination proceeding concerning race, color, national origin, gender, religion, age, disability,

genetic information, and other forms of discrimination. If Title VII did not permit retaliation

Affirmative Action

The U.S. Supreme Court upheld the use of affirmative action to make up for egregious past

discrimination, particularly based on race.

employment decisions.

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causes illegal reverse discrimination.

Contemporary Environment: Veterans and Military Personnel Employment Protections

(USERRA)

This federal law was amended in 2010 and applies to all civilian and government employers in

against military veterans.

V. Key Terms and Concepts

decision.

 Affirmative action plan—Employers often adopt an affirmative action plan, which provides

 Affirmative defense—An employer may raise an affirmative defense against liability by

otherwise avoid harm.

 Age Discrimination in Employment Act—A federal statute that prohibits age discrimination

 Americans with Disabilities Act (ADA) of 1990—Imposes obligations on employers and

providers of public transportation, telecommunications, and public accommodations to

accommodate individuals with disabilities.

the ADA.

 Bona fide occupation qualifications (BFOQ)—Employment discrimination based on a

protected class (other than race or color) is lawful if it is job related and a business necessity.

This exception is narrowly interpreted by the courts.

 Civil Rights Act of 1866—This law was enacted to give African Americans, just freed from

person of the same race.

 Discrimination—The EEOC has jurisdiction to investigate charges of discrimination based on

race, color, national origin, gender, religion, age, disability, and genetic information.

 Disparate-impact discrimination—Occurs when an employer discriminates against an entire

protected class. An example would be where a facially neutral employment practice or rule

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cases.

 Equal Employment Opportunity Commission (EEOC)—The federal administrative agency

responsible for enforcing most federal antidiscrimination laws.

 Equal opportunity in employment—The right of all employees and job applicants (1) to be

treated without discrimination and (2) to be able to sue employers if they are discriminated

against.

possible to determine a person’s propensity to be stricken by diseases.

 Genetic Information Nondiscrimination Act—An federal statute that makes it illegal for an

employer to discriminate against job applicants and employees based on genetic information.

 Hostile work environment—The U.S. Supreme Court has held that sexual harassment that

disorders, such as intellectual disability (e.g., mental retardation), organic brain syndrome,

emotional or mental illness, and specific learning disabilities.

 National origin discrimination—Employment discrimination against a person because of his

or her heritage, cultural characteristics, or the country of the person’s ancestors.

regarding employee benefits.

 Physiological impairments—A physiological impairment includes any physical disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following

body systems: neurological, musculoskeletal, special sense organs, respiratory,

cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and

endocrine.

impairment, or (3) is regarded as having such impairment.

 Quid pro quo sex discrimination—Title VII also prohibits any form of gender discrimination

where sexual favors are requested in order to obtain a job or be promoted. This is called quid

pro quo sex discrimination.

hardship on the employer.

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religion or religious practices.

 Retaliation—Acts of retaliation include dismissing, demoting, harassing, or other methods of

reprisal.

discrimination.

 Same-sex harassment—The Supreme Court held that an employee who has been harassed by

members of his or her own sex can sue for sexual harassment.

 Section 1981 of the Civil Rights Act of 1866—Section 1981 of this act states that all persons

“have the same right . . . to make and enforce contracts . . . as is enjoyed by white persons.”

harassing supervisor’s conduct where no tangible employment action is taken against a victim

and the employer cannot prove an affirmative defense.

 Title I of the ADA—A title of a federal statute that prohibits employment discrimination

against qualified individuals with disabilities in regard to job application procedures, hiring,

compensation, training, promotion, and termination.

national origin.

 Undue hardship—Under Title VII, an employer is under a duty to reasonably accommodate