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260
“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
