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Suggested Additional Assignments
Research: Sexual Harassment Policies
Ask students who are employed to find their company’s sexual harassment policy. What type of behavior
does it prohibit? What are the procedures for complaining about harassment? Do they think it is
comprehensive? What, if any, changes would they make to the policy?
Presentation: Employment Issues
Ask students to choose an issue of employment law that they or a colleague has experienced at work.
They should present the facts, an analysis of the legal issues and the ruling that they would issue if they
were the judge in the case. This assignment can be either written or oral, prepared either individually or in
teams.
Chapter Overview
Chapter Theme
This chapter is the story of how the United States has travelled the long and bumpy road towards equality
of opportunity in the workplace.
Quote of the Day
Introduction
After the Civil War, our torn but healing country ratified three Constitutional amendments: the Thirteenth
prohibits slavery, the Fourteenth guarantees due process of law and equal protection under the law, and
the Fifteenth prohibits restrictions on the right to vote because of race or color. In addition, Congress
passed the Civil Rights Act of 1866, which provided that all people born in the United States (except
Native Americans) were citizens of the United States and had the same rights as white citizens.
The United States Constitution
The Fifth Amendment to the Constitution prohibits the federal government from depriving individuals of
“life, liberty, or property” without due process of law. The Fourteenth Amendment prohibits state
governments from violating an individual’s right to due process and equal protection. The courts have
interpreted these provisions to prohibit employment discrimination by the federal, state, and local
governments.
Civil Rights Act of 1866
As we have seen, the Civil Rights Act of 1866 was meant to provide freed slaves with the same rights as
white citizens. It has been interpreted to prohibit racial discrimination in both private and public
employment (except it does not apply to the federal government).
Title VII of the Civil Rights Act of 1964
Under Title VII of the Civil Rights Act of 1964, it is illegal for employers to discriminate on the basis of
race, color, religion, sex, or national origin. Other issues, such as being transgender, are being tested in the
courts. There are four types of illegal activity under this statute: disparate treatment, disparate impact,
hostile environment, and retaliation. All of these activities are illegal if used against any of the
protected categories.
Title VII not only prohibits discrimination, it also penalizes employers who retaliate against workers for
complaining about discrimination.
Employers must make reasonable accommodation for a worker’s religious beliefs unless the request
would cause undue hardship for the business.
Disparate Treatment
To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others
because of her sex, race, color, religion, or national origin. Note that the burden of proof is on the
plaintiff: she must prove that the employer intentionally discriminated, but this motive can be inferred
from the mere fact of differences in treatment
The required steps in a disparate treatment case are:
Step 1. The plaintiff presents evidence that:
He belongs to a protected category under Title VII.
He was treated differently from other similar people who are not protected under Title
VII.
If the plaintiff can show these facts, he has made a prima facie case. The plaintiff is not
required to prove discrimination; he need only create a presumption that discrimination
occurred.
Step 2. The defendant must present evidence that its decision was based on legitimate,
non-discriminatory reasons.
Step 3. To win, the plaintiff must now prove that the employer intentionally discriminated. She
may do so either by showing that (1) the reasons offered were simply a pretext, or (2) that a
discriminatory intent is more likely than not.
You Be The Judge: Jespersen v. Harrah’s1
Facts: Darlene Jespersen was a bartender at Harrah's Casino in Reno, Nevada. She was an outstanding
employee, praised by both customers and her supervisors. After Jespersen had been at Harrah’s for almost
20 years, the casino implemented a program whose goal was to create a "brand standard of excellence.”
The program required men to have short hair and to keep their nails neatly trimmed. Women had to wear
makeup. An expert was brought in to show the employees how to dress. The workers (both male and
female) were then photographed and told that they must look like the photographs every day at work.
Jespersen refused to wear makeup. She was told either to comply or to apply for a position that did
not require makeup. When she did neither, Harrah’s fired her. Jespersen sued under Title VII. The district
court granted Harrah's motion for summary judgment. Jespersen appealed.
You Be The Judge: Did Harrah’s requirement that women wear makeup violate Title VII?
Holding: Judgment for Harrah’s. Although this was only a summary judgment motion, the court held for
Harrah’s on the grounds that:
1. Jespersen had not introduced evidence that Harrah’s policy imposed a heavier burden on women
than on men. The court did not permit Jespersen to go to trial to introduce such evidence, nor
would the court take judicial notice that makeup costs money and takes time to apply.
2. The issue under Title VII is not whether the policies for men and women are different, but
whether the policy imposed on women creates an "unequal burden.” Certainly, the policies are
different, but none on its face places a greater burden on one gender than the other.
3. The appearance policy applied to both male and female bartenders, and was aimed at creating a
professional and very similar look for both of them.
4. There was no evidence that the grooming policy was motivated by sex stereotyping.
Question: Harrah’s “Personal Best” policy establishes different requirements for men and women.
Isn’t that illegal?
Question: Do you mean it is legal to treat men and women differently in the workplace?
1 444 F.3d 1104; 2006 U.S. App. LEXIS 9307(9th Cir.) 2006.
Question: But women had to wear makeup and men didn’t. Isn’t that a heavier burden?
Question: Isn’t that obvious? Did the court think that makeup is free?
Answer: The court compared the overall burden imposed on women versus men, not just the makeup
General Question: Did the policy impose equal burdens on male and female employees?
Disparate Impact
Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in practice
excludes too many people in a protected group.
The steps in a disparate impact case are:
Step 1. The plaintiff must present a prima facie case. The plaintiff is not required to prove
discrimination; he need only show a disparate impact—that the employment practice in question
excludes a disproportionate number of people in a protected group (women and minorities, for
instance).
Step 2. The defendant must offer some evidence that the employment practice was a job-related
business necessity.
Step 3. To win, the plaintiff must now prove either that the employer’s reason is a pretext or that
other, less discriminatory rules would achieve the same results.
KLandmark Case: Griggs v. Duke Power2
Facts: Before Title VII, Duke Power hired black employees only in the labor department, where the
highest pay was less than the lowest earnings in the other departments. After Title VII, the Company
required all new hires for jobs in the desirable departments to have a high school education or satisfactory
scores on two tests that measured intelligence and mechanical ability. Neither test gauged the ability to
perform a particular job. The pass rate for whites was much higher than for blacks and blacks were also
less likely than whites to have a high school diploma. The new policy did not apply to the (exclusively
white) employees who were already working in the preferred departments. These “unqualified” whites all
performed their jobs satisfactorily.
Black employees sued Duke Power, alleging that this hiring policy violated Title VII. The trial
court dismissed the case. The Court of Appeals ruled that the policy was not in violation of Title VII
because Duke Power did not have a discriminatory purpose. The Supreme Court granted certiorari.
Issue: Does a policy violate Title VII if it has a discriminatory impact but no discriminatory purpose?
Excerpts from Chief Justice Burger’s Decision: Congress did not intend by Title VII to guarantee a job
to every person regardless of qualifications. What is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate
on the basis of racial or other impermissible classification.
The Act proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business necessity. If an employment practice, which
operates to exclude Negroes, cannot be shown to be related to job performance, the practice is prohibited.
2 401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134, United States Supreme Court, 1971.
On the record before us, neither the high school completion requirement nor the general
intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for
which it was used. Both were adopted without meaningful study of their relationship to job performance
ability. Rather, the requirements were instituted on the Company's judgment that they generally would
improve the overall quality of the work force. The evidence, however, shows that employees who have
not completed high school or taken the tests have continued to perform satisfactorily and make progress
in departments for which the high school and test criteria are now used.
[G]ood intent or absence of discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to
measuring job capability. Congress directed the thrust of the Act to the consequences of employment
practices, not simply the motivation. More than that, Congress has placed on the employer the burden of
showing that any given requirement must have a manifest relationship to the employment in question.
History is filled with examples of men and women who rendered highly effective performance
without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.
Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that
they are not to become masters of reality.
Nothing in the Act precludes the use of testing or measuring procedures; obviously, they are
useful. What Congress has commanded is that any tests used must measure the person for the job and not
the person in the abstract.
The judgment of the Court of Appeals is reversed.
Reasoning: Under Title VII, employers may establish job requirements that exclude more blacks than
whites, but only if the requirements are necessary to do that particular work. In this case, there was no
evidence that either a high school diploma or the two tests bore any relationship to the job in question.
Indeed, white employees without any of these qualifications had been doing the jobs well for years, and
had even been promoted.
Whether or not Duke Power intended to discriminate is irrelevant. Title VII is concerned with the
consequences of an employer’s practices, not its motivation. The burden is on the employer to show that
all job requirements have an important relationship to the work in question. Any tests must measure the
person for the job and not the person in the abstract.
Question: What is a factor that the court looked at to determine if Duke Power had a discriminatory
purpose?
Question: What does disparate impact mean?
Answer: The employer or management may enact a policy or regulation that is, on its face,
Hostile Work Environment
Employers violate Title VII if they permit a work environment that is so hostile towards people in a
protected category that it affects their ability to work. This rule applies whether the hostility is based on
race, color, religion, sex, or national origin. Many people assume that race and color are the same, but this
is not necessarily the case. Title VII prohibits behavior that discriminates against people due to the shade
of color of their skin, even by people of the same race. (As we shall see, this rule also applies to those
treated badly because of pregnancy, age, or disability.) This concept of hostile environment first arose in
the context of sexual harassment.
Sexual Harassment. Everyone has heard of sexual harassment, but few people know exactly what it is.
Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature. There are two major categories of sexual harassment: (1) quid pro
quo and (2) hostile work environment.
Named for a Latin phrase that means “one thing in return for another,” quid pro quo harassment occurs if
any aspect of a job is made contingent upon sexual activity. Offensive jokes, intrusive comments about
clothes or body parts, and public displays of pornographic pictures can create a hostile environment.
These offensive remarks can be conveyed through any form of communication including texting, email
and in person.
Case: Teresa Harris v. Forklift Systems, Inc.3
Facts: Charles Hardy, president of Forklift Systems, frequently made inappropriate sexual comments to
Teresa Harris and other women at the company. He said to Harris, “You're a woman, what do you know?”
and “We need a man as the rental manager.” He called her “a dumb ass woman” and suggested that the
two of them “go to the Holiday Inn to negotiate her raise.” He also asked Harris and other female
employees to get coins from his front pants pocket. He insisted that Harris and other women pick up
objects he had thrown on the ground. When Harris complained to Hardy, he apologized and claimed he
was only joking. While Harris was arranging a deal with one of Forklift's customers, he asked her, in front
of other employees, “What did you do, promise the guy some sex Saturday night?”
Harris sued Forklift. The trial court ruled that Hardy’s comments might offend a reasonable woman,
but they were not severe enough to cause a serious impact on Harris’s psychological well-being. The
appeals court confirmed, and the Supreme Court granted certiorari.
Issue: To be a violation of Title VII, must sexual harassment seriously affect the employee's
psychological well-being?
Holding: The Court held for Harris. Title VII is violated if the workplace is permeated with
discriminatory intimidation, ridicule, and insults that are sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment. This standard takes a
middle path between making actionable any conduct that is merely offensive and requiring the conduct to
cause a tangible psychological injury.
Question: Would Hardy’s behavior offend a reasonable woman?
Question: So why did the lower court rule against Teresa Harris?
Question: Did the Supreme Court agree?
Answer: No. Writing for the court, Justice O’Connor said that one or two swear words is not enough
to violate Title VII, but behavior that a reasonable person would find hostile or abusive is a violation
Question: How can you tell if you are committing sexual harassment?
Answer: You might try looking back at the ethics checklist in Chapter 2. If you would be
3 510 U.S. 17, 114 S. Ct. 367, 1993 U.S. LEXIS 7155 United States Supreme Court, 1993.
Additional Case: Lyle v. Warner Brothers Television Productions4
Students often believe that a company can be held liable for even mild sexual behavior on the part of
employees. In reality, successful sexual harassment cases typically involve extreme behavior. The
following case is an example where extreme behavior was found not to be sexual harassment.
Facts: Amaani Lyle was a comedy writers’ assistant who worked on the production of the television show
Friends. The show revolved around a group of young, sexually active adults, featured adult-oriented
sexual humor, and typically relied on sexual language and gestures to convey its humor. Before Lyle was
hired, she had been warned in the interview that the show dealt with sexual matters and that as an
assistant to the writers, she would be listening to and transcribing their sexual jokes and discussions about
sex likely to be used for scripts. Lyle responded that sexual discussions would not make her
uncomfortable. She was hired as a writers’ assistant.
Four months later, Lyle was fired because of problems with her typing and her transcription. Lyle
sued claiming the writers’ use of sexually coarse and vulgar language and conduct was sexual harassment
based on a hostile work environment. Warner Brothers filed a motion for summary judgment claiming the
behavior of the writers was not severe or pervasive. The trial court granted Warner Brother’s motion and
Lyle appealed.
Issue: Did the writers’ use of coarse and vulgar language constitute a hostile work environment?
Holding: No, the defendant’s motion for summary judgment was affirmed. According to the court, Lyle
testified that she had no recollection of any employee of the Friends production ever saying anything
sexually offensive about her directly, nor anyone asking her out on a date or sexually propositioning her.
No one ever demanded sexual favors from Lyle or physically threatened her.
However, there were a number of offensive discussions and actions that occurred in the writers’
meetings that Lyle was required to attend. For example, the writers regularly discussed their preferences
in women and sex in general. One writer spoke of his preference for blondes, a certain bra cup size and
“getting right to sex” and “not messing around with too much foreplay.” Another writer discussed his love
of young girls and cheerleaders, spoke of oral sex experiences, and told the group that when he and his
wife would fight, he would “get naked” and then they would never finish the fight. A writer kept a
notebook with graphic drawings that was sometimes left open on his desk or the writers’ assistants’ desks.
The writers also spoke openly in a demeaning manner about one of the actresses on the show, making
jokes about whether she was competent in sexually servicing her boyfriend.
According to the court, in order to bring a successful hostile work environment claim, Lyle must
show that the conduct complained of was severe or pervasive to alter her work conditions and create a
hostile environment because of her sex. Thus, it is the difference in treatment based on Lyle’s sex, not the
mere discussion of sex or use of vulgar language that is the essence of her claim. A hostile work
environment claim is not established where a supervisor or coworker simply uses crude or inappropriate
language in front of an employee or draws a vulgar picture without directing sexual innuendos or
gender-related language at the employee or women in general. In addition, the court must look carefully
at the social context in which this behavior occurred.
Based on this, according to the court, the context of the show being a creative workplace focused on
generating scripts for an adult-themed show with sexual themes is significant in assessing the existence of
a hostile work environment. Both male and female writers discussed their sexual experiences to generate
material for the show. The record shows that the sexual antics did not involve or were not aimed at Lyle or
any other female employee. Moreover, there was no indication that the vulgar discussions affected Lyle’s
work hours or duties. While the conduct was certainly sexual in nature, a court could not find that had
Lyle been a man she would not have been treated in the same manner.
Question: There was some graphic conversation at the writers’ table. How could the court not find it
created a hostile work environment?
4 2006 Cal. LEXIS 4719, Supreme Court of California, 2006.
Answer: The court felt that the comments were never directed at Lyle, her work conditions were
Question: Do you think it is meaningful that the writers warned Lyle in her interview that there
would be lowbrow humor?
Answer: The fact that Lyle was warned in the interview about the atmosphere is important to show
that she knew what she was getting into by accepting the position, but not wholly relevant to her
claim for hostile work environment. Warning that the atmosphere may be abusive does not make it
Additional Assignment:
Students who researched sexual harassment policies could present their findings here.
Same-Sex Harassment. Suppose that one man makes unwelcome sexual overtures to another man in the
workplace. The Supreme Court ruled that same-sex harassment is also a violation of Title VII.
Employer Liability for Sexual Harassment. The Supreme Court has held that:
The company is liable if it knew or should have known about the conduct and failed to stop it.
Even if the company was unaware of the misbehavior, it is nonetheless liable if the victimized
employee suffered a “tangible employment action” such as firing, demotion, or reassignment.
If the company was unaware of the behavior and the victimized employee did not suffer a
tangible employment action, the company is still liable unless it can prove that (1) it used
reasonable care to prevent and correct sexually harassing behavior, and (2) the employee
unreasonably failed to take advantage of the complaint procedure or other preventive
opportunities provided by the company.
Retaliation
Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a
claim under the statute, or take part in an investigation or hearing. Retaliation means that the employer
has done something that would deter a reasonable worker from complaining about discrimination.
Religion
Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers
must make reasonable accommodation for a worker’s religious practices unless the request would cause
undue hardship for the business.
Sex
In a landmark case that defined this provision of Title VII, the Supreme Court ruled “gender must be
irrelevant to employment decisions.”
Family Responsibility Discrimination
Increasingly, courts are finding that discrimination on the basis of parenthood (as in favoring childless
workers over mothers with young children) to be illegal. The Equal Employment Opportunity
Commission (EEOC) has issued guidelines indicating that stereotypes are not a legitimate basis for
personnel decisions and may violate Title VII.
Sexual Orientation
Neither Title VII nor any other federal statute protects against discrimination based on sexual orientation
(being gay). However, President Bill Clinton did sign an executive order prohibiting discrimination based
on sexual orientation in federal training and education programs. In addition, almost half the states and
hundreds of cities have statutes that prohibit discrimination based on sexual orientation.
Gender Identity
The EEOC recently ruled that discriminating against someone for being transgender is a violation of Title
VII.
Defenses to Charges of Discrimination
Under Title VII, the defendant has four possible defenses.
Merit.
A defendant is not liable if he shows that the person he favored was the most qualified.
Seniority.
A legitimate seniority system is legal, even if it perpetuates past discrimination.
Bona Fide Occupational Quali7cation.
An employer is permitted to establish discriminatory job requirements if they are essential to the position
in question. Only religion, sex, or national origin can be a BFOQ—never race or color.
A8rmative Action. Affirmative action is not required by Title VII, nor is it prohibited.
Example: Bona Fide Occupational Quali7cation
Increasingly, women prefer female gynecologists and obstetricians (OB-GYNs). Since 72 percent of the
doctors in the field are men, women OB-GYNS are in high demand. Women OB GYN residents receive
more job offers than their male colleagues, at higher starting salaries. Some women are opening all female
practices and refusing to hire men.
Question: If a hospital or clinic refused to hire male OB-GYNs, would it be in violation of Title VII?
Answer: To win a disparate treatment case under Title VII of the Civil Rights Act, the plaintiff must show
Question: Would the hospital have a defense?
Answer: It would argue that sex is a bona fide occupational qualification (BFOQ) for a job as an OB
GYN.
Question: Is this a legitimate defense?
Answer: It is difficult to predict how a court would rule. There are two countervailing arguments:
Customer preference does not justify a BFOQ. Thus, a hospital could not refuse to hire female
Equal Pay Act of 1963
Under the Equal Pay Act, an employee may not be paid at a lesser rate than employees of the opposite sex
for equal work.
Pregnancy Discrimination Act
Under the Pregnancy Discrimination Act, an employer may not fire, refuse to hire, or fail to promote a
woman because she is pregnant. The Act also protects a woman’s right to terminate a pregnancy.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against
employees or job applicants who are at least 40 years old. An employer may not fire, refuse to hire, fail to
promote, or otherwise reduce a person’s employment opportunities because he is 40 or older.
A plaintiff in an age discrimination case can show discrimination in three ways: disparate treatment,
disparate impact, and hostile work environment. Bona Fide Occupational Qualification is rarely an
acceptable defense in ADEA cases.
Disparate Treatment
In a disparate treatment claim, the plaintiff must show that the employer intentionally discriminated
against him because of his age, or enacted a policy that intentionally treated employees differently
because of their age. Proof of intent involves obvious statements and behavior or more subtle
circumstantial evidence.
Under the ADEA, a disparate treatment case requires three steps.
Step 1. The plaintiff must show that:
He is 40 or older.
He suffered an adverse employment action.
He was qualified for the job for which he was fired or not hired.
He was replaced by a younger person.
Step 2. The employer must present evidence that its decision was based on legitimate, non-discriminatory
reasons.
Step 3. The plaintiff must now show that the employer’s reasons are a pretext and, in fact, the employer
intentionally discriminated.
Case: Reid v. Google, Inc.5
Facts: Google's vice-president of engineering, Wayne Rosing (aged 55), hired Brian Reid (52) as director
of operations and director of engineering. Reid had a Ph.D. in computer science and had been a professor
of electrical engineering at Stanford University. At the time, the top executives at Google were CEO Eric
Schmidt (47), vice-president of engineering operations Urs Hölzle (38), founders Sergey Brin (28), and
Larry Page (29).
During his two years at Google, Reid’s only written performance review stated that he had consistently
met expectations. The comments indicated that Reid had an extraordinarily broad range of knowledge, an
aptitude and orientation towards operational and IT issues, an excellent attitude and that he projected
confidence when dealing with fast changing situations, was very intelligent, creative, and a terrific
problem solver. The review also commented, “Adapting to Google culture is the primary task. Right or
wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super
fast pace are just a few examples of the environment.”
5 50 Cal. 4th 512, 2010 Cal. LEXIS 7544; Supreme Court of California, 2010.
According to Reid, even as he received a positive review, Hölzle and other employees made derogatory
age-related remarks such as: his ideas were “obsolete”, “ancient” and “too old to matter,” that he was
“slow,” “fuzzy,” “sluggish,” and “lethargic,” an “old man,” an “old guy,” and an “old fuddy-duddy,” and
that he did not “display a sense of urgency” and “lacked energy.”
Fifteen months after Reid joined Google, co-founder Brin emailed several executives about Google's
payroll: “We should avoid the tendency towards bloat here particularly with highly paid individuals.” A
month later, Reid’s duties were assigned to two men who were 15 and 20 years younger. Google asked
Reid to develop two in-house educational programs but did not give him a budget or a staff.
Three months later, Reid was fired. Google says it was because of his poor performance and the
termination of the educational programs. Reid alleges he was told it was not related to the educational
programs or his performance but rather was based on a lack of “cultural fit.”
Reid sued Google for age discrimination. The trial court granted Google’s motion for summary judgment
on the grounds that Reid did not have enough evidence of discrimination. The Court of Appeal overruled
the trial court. The California Supreme Court agreed to hear the case.
Issues: Did Reid have enough evidence of age discrimination to warrant a trial? Should the summary
judgment motion be granted?
Excerpts from Justice Chin’s Decision expressing the unanimous view of the court: Reid offered
discriminatory comments that co-workers and decision makers made, and evidence that Google demoted
Reid to a nonviable position before terminating him and advanced changing rationales for his termination.
Google contends that the Court of Appeal should have applied the stray remarks doctrine, i.e., should
have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks, and disregarded
them in reviewing the merits of the summary judgment motion.
[Justice O’Connor of the Supreme Court of the United States has] stated that “stray remarks’
—“statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process
itself”—do not constitute direct evidence of decision makers’ illegitimate criterion in reaching their
decision.” However, Justice O' Connor explained that stray remarks can be probative of discrimination.
Google contends that we should adopt the stray remarks doctrine so that California courts can disregard
discriminatory comments by co-workers and nondecisionmakers, or comments unrelated to the
employment decision to ensure that unmeritorious cases principally supported by such remarks are
disposed of before trial.
[S]trict application of the stray remarks doctrine, as urged by Google, would result in a court's categorical
exclusion of evidence even if the evidence was relevant. An age-based remark not made directly in the
context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial
evidence of discrimination. In a later decision authored by Justice O'Connor, the United States Supreme
Court indicates that even if age-related comments can be considered stray remarks because they were not
made in the direct context of the decisional process, a court should not categorically discount the evidence
if relevant; it should be left to the fact finder to assess its probative value.
[T]he stray remarks cases merely demonstrate the common sense proposition that a slur, in and of itself,
does not prove actionable discrimination. A stray remark alone may not create a triable issue of age
discrimination. But when combined with other evidence, an otherwise stray remark may create an
ensemble [that] is sufficient to defeat summary judgment.
For the reasons stated above, we affirm the judgment of the Court of Appeal.
Question: Did the California Supreme Court find that there is enough to support a trial?
Question: What does the court say about stray remarks?
Disparate Impact
Disparate impact claims arise when an employer’s actions do not explicitly discriminate, but nonetheless
have an adverse impact on people aged 40 or over. Here, too, the standards are different under the ADEA
than under Title VII. Under the ADEA:
Step 1. The plaintiffs must present a prima facie case that the employment practice in question excludes a
disproportionate number of people 40 and older.
Step 2.The employer wins if it can show that the discriminatory decision was based on a “reasonable
factor other than age.”
Hostile Work Environment
The ADEA prohibits a hostile work environment based on age. A workplace is considered hostile if a
reasonable person would find that intimidation, ridicule, and insult based on age are pervasive.
Bona Fide Occupational Quali7cation
Age is rarely a BFOQ. To set a maximum age, the employer must show that:
The age limit is reasonably necessary to the essence of the business; and either
Virtually everyone that age is unqualified for the job, or
Age is the only way an employer can determine who is qualified.
