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CHAPTER 16
EMPLOYMENT DISCRIMINATION
ORIGINS OF DISCRIMINATION LAW—Discrimination on the basis of race, national
origin, sex, religion, or other distinguishing personal characteristic has led to some groups being
disadvantaged in the employment market. This may be seen in unemployment rates, which differ
significantly among groups, and in wage rates, which the effects of past or present also reflect
discriminatory practices.
The Civil Rights Movement—In general, employers could hire and fire at-will, subject to
contractual constraints. Unions could restrict membership to whomever they wished. Change did
not occur until the 1960s, when the NLRB ruled that blatantly discriminatory union practices
were illegal under the NLRA. Starting in the 1940s and 1950s, the federal government began to
curb discrimination in federal employment. The Civil Rights movement spurred Congress to pass
anti-discrimination legislation.
Equal Pay Act of 1963—The Equal Pay Act addresses differential wage rates based on sex
alone. The Act was the first federal anti-discrimination employment legislation. Under the Act,
men and women who perform jobs that require the same skill levels, effort, and responsibility
must be paid equal salaries. Wage difference are permitted for: a) seniority systems, b) merit
systems, c) systems that measure earnings based on quantity or quality of work, or d) systems
that base earnings on a criteria other than sex. Wage differentials are corrected by raising the pay
of women, not by lowering the pay of men. Employers must keep records of each employee’s
hours and pay. Government investigators inspect these records to insure compliance with the Act.
Violators will be forced to compensate workers who have been discriminated against with back
pay, punitive fines, and/or court costs and attorney’s fees.
Add. Info.: Not many cases are brought under this statute only; they are usually part of a claim
of sex discrimination. Some cases have been brought by women college coaches, such as Stanley
v. Univ. So. Calif. (13 F.3d 1313). The former head coach of women’s basketball sued USC
because she was paid less than the men’s basketball coach. The 9th circuit held that different pay
alone would not determine the issue. Also to be considered are the responsibilities,
qualifications, and experience, as well as the amounts of revenue generated by the two teams.
Add. Case: Mulhall v. Advance Security (11th Cir., 1994)--Mulhall was the only woman at her
company “with responsibility for a profit center in addition to her duties as a corporate staff
department head. She was the only manager or vice-president responsible for a profit center who
did not receive bonuses based on the profitability of the profit center.” She sued for violation of
the Equal Pay Act, claiming that, if treated like the men in comparable positions, she would have
received $56,000 in bonuses over a four year period. All comparable eight men earned more
money. Court granted summary judgment for employer.
Decision: Reversed. She established a prima facie case under the Act with regard to men
comparisons. In Equal Pay cases, jobs are compared not individual employees holding the jobs;
Add. Case: Lavin-McEleney v. Marist College (2nd Cir., 2001)--Lavin was hired as an asst.
prof. at Marist College in 1976. She was tenured in 1982 and promoted to associate professor in
1985. In 1989 she complained that her pay was not equal to those of men in equivalent positions.
In 1994 she requested to have her salary reviewed for gender disparity. The president decided
she was fairly compensated. She sued, contending violations of the Equal Pay Act. Testimony
indicated that women were generally paid less than men in comparable positions. The jury
awarded her back pay, damages, and attorney fees for a total of $118,000. Marist appealed.
Decision: Affirmed. Under the Equal Pay Act, the plaintiff need not demonstrate that her job is
identical to a higher paid position, but only show that the two positions are substantially equal
in skill, effort, and responsibility. The fact that male professors used for comparison did not have
TITLE VII OF THE 1964 CIVIL RIGHTS ACT—The Civil Rights Act of 1964 is the most
important federal legislation dealing with employment discrimination. It has been amended
several times, most recently in 1991. It prohibits discrimination by employers in the hiring,
firing, promotion, discipline, assignment, or other treatment of workers based on race, color,
national origin, sex, or religion. States have statutes modeled on Title VII and some states
include classes of persons not covered by Title VII, such as discrimination based on sexual
preference.
Protected Classes—Title VII applies to employers, employment agencies, and labor unions with
15 or more employees or members. This includes law firms and other partnerships, but not
independent contractors and business relationships. All persons, regardless of race, color, sex,
religion, or national origin must be given equal employment opportunities. These characteristics
define protected classes.
Race—Legal racial classes include blacks, whites, Native Americans, Hispanics, and Asians. All
groups are protected against employment discrimination. That whites are protected under Title
VII, was confirmed by the Supreme Court in the 1976 case McDonald v. Sante Fe Trail
Transportation Co. A white employee was treated more harshly than a black employee for the
same offense; that was held to be discrimination based on race. Reverse discrimination is illegal,
although companies may take steps to correct imbalances in their pool of employees. This is
accomplished through affirmative action programs, discussed later.
Add. Case: Hollins v. Atlantic Co. (6th Cir., 1999)--Hollins, African-American, was a machine
operator. The grooming policy stated: “Women should have a neat and well groomed hair style.”
She came to work with a “finger waves” hairstyle and was told it was unacceptable because it
was “too different” (but not dangerous with respect to hair being caught in machinery). She was
told to get approval for new styles. Her manager rejected her request to have her hair braided.
One day she wore a ponytail and was told it was “too drastic,” even though some white
employees wore ponytails. She sued for race discrimination. The court held she had failed to
make a prima facie case of disparate treatment because she had not suffered adverse
consequences with respect to pay or assignment. Hollins appealed.
Decision: Reversed. “Hollins has raised a question of fact whether Atlantic’ grooming
policy-which she claims was not applied to the white women-was a pretext for its treatment of
Add. Case: Stalter v. Wal-Mart Stores (7th Cir., 1999)--Stalter, African-American, worked at
the loading dock at a Wal-Mart store. During a break in the breakroom, he ate some Doritos that
belonged to another employee, who had left the bag open on the table. The Doritos owner came
into the room, closed the bag, and put them in her locker. Stalter apologized and offered to buy
her another bag, but she said to forget it. A supervisor fired Stalter for theft. He sued, claiming
the termination was race-based. The trial court found that Stalter had a prima facie basis for a
suit, but that Wal-Mart’s explanation, that eating the chips was theft in violation of company
policy, was an adequate defense. Stalter appealed.
Decision: Reversed. “From this molehill of taco chips, Wal-Mart endeavored to make a
mountain.” In considering the pretext issue, the courts look not at the wisdom of the employer’s
decision, but rather at the genuineness of the employer’s motives. The supervisor changed his
Color—Is often tacked onto a claim of race or national origin discrimination as there may be
multiple bases for discrimination suits. The number of color discrimination cases, based on shade
of skin color, has risen over time.
Add. Case: Walker v. Sec. of Treasury (N.D., Ga., 1989)--Walker, a light-skinned black
woman, was a clerk in an IRS office. Her supervisor, Lewis, is a dark-skinned black woman.
Walker claimed she was picked on by Lewis and falsely accused of things. Walker had good
evaluations from her previous supervisor. She met the EEO program manager to discuss the
matter. Two weeks later she was fired for lateness, laziness, incompetence, and bad attitude. She
contended that Lewis was hostile toward her because of her light skin. The IRS moved for
summary judgment, claiming a case involving persons of the same race but different color had
no standing.
Decision: Denied. There have been a number of cases involving Caucasians who have sued
based on color discrimination, especially persons from the Middle East, such as Iranians and
National Origin—The national origin refers to the country from which one’s ancestors came.
Employers may not allow ethnic slurs to go uncorrected at the workplace. An employer may not
require that English be spoken at all times unless this is a legitimate business requirement.
People may not be discriminated against because they look a certain way, or have certain cultural
or linguistic traits. Note that non-citizens are not protected per se by Title VII.
Add. Case: Garcia v. Spun Steak (9th Cir., 1993)--Two-thirds of the workers at a meat-packing
plant were Spanish-speaking; most could also speak English. Most English- speaking workers
could not speak Spanish; they complained that Spanish-speaking employees were insulting them
in Spanish. In the interest of harmony and safety, the employer required that only English be
spoken during work. During break times, employees could do as they please. This was
challenged as discrimination based on national origin.
Decision: The appeals court ruled for the employer. “The bilingual employee can readily comply
with the English-only rule and still enjoy the privilege of speaking on the job. Title VII does not
protect against rules that merely inconvenience some employees, even if the inconvenience falls
Add. Case: EEOC v. Premier Operator Serv. (N.D. Tex., 2000)--The EEOC brought a class
action suit on behalf of Hispanic workers employed by Premier. They worked as operators. The
ability to speak Spanish was an asset because the company services many Spanish-speaking
customers in long distance phone calls. Many employees were tested for their bilingual abilities.
However, Premier had a “Speak-English-Only” policy prohibiting speaking Spanish at work
except when speaking Spanish to a customer. The policy applied at all times. Employees who
refused to sign a memo the company circulated for them to acknowledge the policy were fired.
Decision: The policy violated Title VII and was disparate treatment based on national origin.
The company also engaged in retaliatory conduct by firing employees who objected to the policy.
There was no evidence of business necessity for the English-only policy that was related to
Religion—People may not be discriminated against because of their “sincere and meaningful
belief[s]” in a certain religion. Employers must make “reasonable accommodations” for an
employee’s religious practices. However, if these practices will impose an undue hardship on an
employer, the employer may then discriminate. The Supreme Court has held that an undue
hardship will arise if accommodation costs an employer more than a minimal amount. Religious
institutions may discriminate in favor of members of their religion for jobs related to the purpose
of the religion.
Add. Case: Webb v. City of Philadelphia (3rd Cir., 2009)--Webb is a Muslim who worked as a
Philadelphia police officer. She requested permission to wear a headscarf while in uniform and
on duty. The headscarf or Hijaab is a traditional head covering worn by Muslim women. Her
request was denied as police rules prescribe what may be worn. Religious symbols or garb are
not approved. She wore the headscarf anyway and was sent home. After another incident, she
was cited for insubordination and suspended for 13 days. Webb filed a complaint of religious
discrimination.
Decision: Affirmed. The police department would suffer undue hardship under Title VII if forced
to permit police officers to wear religious clothing or ornamentation with their uniforms. The
Add. Case: Lee v. ABF Freight System (9th Cir., 1994)--Lee was hired as a driver to transport
freight in 1986. In 1990, he told ABF he was Seventh-day Adventist, which prohibited him from
working sundown Friday to sundown Saturday. He refused any compromise. ABF jiggled the
schedule so that, without violating seniority rules, Lee would have the greatest chance of getting
his required number of hours in without upsetting other drivers’ schedules. ABF called him to
work several times on his Sabbath; he refused and was given warnings. After six months he was
fired for being unavailable in violation of work rules. Court awarded ABF summary judgment.
Lee appealed.
Decision: Affirmed. Lee’s demands created undue hardship. It would upset the work rules and
seniority system. The company took more steps than it had to in an effort to compromise with
Add. Case: Brown v. Polk County, Iowa (8th Cir., 1995)--Brown, “who identifies himself as a
born-again Christian, became the director of the information services (data processing)
department for Polk County.” He supervised 50 employees. An internal investigation showed
that Brown “directed a secretary to type Bible study notes for him, that several employees had
said prayers in Mr. Brown’s office before the beginning of some workdays, that several
employees had said prayers in Mr. Brown’s office in department meetings held during the day,
and that in addressing one meeting of employees, Mr. Brown had affirmed his Christianity and
had referred to Bible passages related to slothfulness and work ethics.” The County ordered
Brown to cease religious activities on the job, including to remove a Bible from his desk and
plaques with religious sayings. Later Brown was fired; he sued. Court held for the county;
Brown appealed.
Decision: Remanded. The county was not liable for reprimanding Brown for directing county
employees to type his Bible notes or for allowing prayers in his office before the start of the work
day. However, the county was liable for reprimanding Brown for occasional spontaneous
Even if some employees were offended by religious materials, the County has no business taking
sides in a religious dispute unless those who disagreed with Brown suffered for their conflicting
Add. Case: Seaworth v. Pearson (8th Cir., 2000)--Seaworth, when applying for work at
Pearson, refused to provide his social security number (SSN) because he claimed it represented
the “mark of the beast” as described in the Book of Revelation. Pearson refused to consider the
job application because of the lack of SSN. The trial judge dismissed the suit; Seaworth
appealed.
Decision: Affirmed. “Assuming ... that Seaworth established a bona fide religious belief, we
agree with the District Court that the IRS, not defendants, imposed the requirement that
Seaworth provide an SSN.” Seaworth’s beliefs do not conflict with an employment requirement,
International Perspective: EEOC Impact on Global Operations
EEO rules in the U.S. are generally much more stringent than in most nations, so some foreign
firms have a hard time adjusting when they have American operations. U.S. law applies to
anyone working for a company in the U.S. (legal resident or not) and applies to U.S. citizens
working for U.S. firms abroad, but not to foreign citizens working for U.S. firms abroad.
Sex—Sex under Title VII means gender, and not sexual preference or marital status (although a
number of states do prohibit discrimination on those bases). With certain exceptions, employers
may not discriminate on the basis of sex.
Add. Case: Clark County School Dist. v. Breeden (2001)--Breeden worked for a school
district. She attended a meeting with two male workers. One man made a sexist joke to the other
man, but it was not directed at Breeden, who complained to her supervisor. She filed a sex
harassment complaint with the EEOC. Soon after, she was transferred to another position, a
move that she had known might occur. She sued for retaliation. The court dismissed the case.
The court of appeals reversed for Breeden. The school district appealed to the Nevada Supreme
Court.
Decision: Reversed. “No reasonable person could have believed that the single incident
recounted above violated Title VII’s standard.” This was an isolated incident that could not be
Add. Case: Portis v. First Natl. Bank (5th Cir., 1994)--Portis worked for a bank since 1971. She
was promoted and received high performance evaluations. In 1988, she was put in charge of
student loans. A year later she was promoted to loan officer; the only woman in that position.
She worked for a new supervisor (Collums), received poor evaluations and, after a year, was
demoted, cutting her pay $8,000. She filed for sex discrimination. She claimed the reason for her
poor performance (poor loan portfolio) was that she was the only loan officer without a
secretary (there was conflicting testimony on this point), and that Collums continuously belittled
her, supposedly telling her that she would never be worth as much as a man to the bank. Court
granted summary judgment for the bank. She appealed.
Decision: Reversed. There was sufficient evidence that the bank engaged in sex discrimination
that the case should be tried. When a motion for summary judgment is made, the plaintiff is
Pregnancy Discrimination. Under the 1978 amendment to Title VII, the Pregnancy
Discrimination Act, it is illegal to discriminate on the basis of pregnancy, child birth, or related
medical conditions. It is illegal to deny a woman a job simply because she is, or might become,
pregnant. Employers cannot fire pregnant women and cannot deny them promotions or job
assignments because of a pregnancy. Additionally, employers cannot discriminate in the offering
of fringe benefits in order to discourage women from working.
Add. Case: Erickson v. Bartell Drug Co. (W.D., Wash., 2001)--Erickson sued her employer,
Bartell, for violating the Pregnancy Discrimination Act because its prescription plan for
employees excluded contraceptives such as birth control pills. Parties moved for summary
judgment.
Decision: Motion granted to Erickson. The exclusion of contraceptives from a prescription drug
plan offered by an employer discriminated against female employees, and thus violated the
Add. Case: Troupe v. May Dept. Stores (7th Cir., 1994)--Troupe worked in sales at a
department store for four years. Her work was satisfactory until she became pregnant. She had
severe morning sickness and for months left work early, reported late, or failed to come in at all.
At her request, she was put on a reduced work schedule, but still missed a lot of work. She was
warned orally, then in writing, then was put on probation for sixty days. At the end of the
probation period, still having problems, she was fired. Her dismissal was the day before she was
to begin maternity leave. She sued, claiming pregnancy discrimination. District court granted
summary judgment for the store.
Decision: Affirmed. The store treated her the same as it treated non-pregnant employees with
excessive absences. The statute requires that “women affected by pregnancy ... shall be treated
the same for all employment-related purposes ... as other persons not so affected but similar in
Cyberlaw: Your E-Mail Is Your Boss’s E-Mail
Since e-mails at work are sent on company time on company machines on company e-mail
systems, they are not private and are subject to review by managers. One reason for this is that
firms may be held liable for e-mails that are sexually or racially offensive to employees that the
employer does not attempt to prevent from being sent.
Sexual Harassment. A person who is sexually harassed may bring a claim under Title VII. It is
defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature.” Harassment must implicate the harassed person’s employment in
some way. Sexual harassment may include: use of offensive language, displaying sexually
suggestive pictures, and commenting on physical attributes, among others. Cases are in two basic
forms: 1) quid pro quo or this for that, being promises of rewards (or threats) in return for sexual
favors, and 2) hostile environment, which includes abusive acts such as discussing sexual
activities or physical attributes, unnecessary touching or gestures, crude or offensive language,
and displaying sexually explicit materials. Isolated or trivial incidents generally are not grounds
for a suit.
Add. Disc.: Some courts have adopted the controversial “reasonable woman” standard rather
than the gender-neutral “reasonable person” standard because, as the 9th circuit reasoned
(Ellison v. Brady, 924 F.2d 872), women are subject to sexual assault and harassment much
more than men, hence they are more sensitive to threats of assault and harassment than is a
male-biased standard that tends to ignore the experiences of women. The 7th circuit ruled
(Hutchison v. Amateur Electronic, 42 F.3d 1037) that male conduct that demeans women does
not affect men and women equally, even when the conduct is not directed at a woman. It is no
defense that the acts that occurred were not offensive to men and that the standards should be
the same. The offensive treatment toward women, that may not offend men, can create a
disparate effect.
CASE: Harris v. Forklift Systems (S.Ct., 1993)—Teresa Harris was rental manager of Forklift
Systems in Nashville. The company president barraged here with disparaging and sexually
suggestive comments, i.e., “You’re a woman, what do you know?” and invited her to go to a
motel with him to discuss a pay raise. She finally quit. The lower courts held that a reasonable
woman would have been offended, but she could not win because there was no serious
psychological injury.
Decision: Reversed for Harris unanimously. No extreme distress need be shown to prevail in sex
harassment suits. The Court used the “reasonable person” standard and held that all factors
Questions: 1. The Court held that the actions must be severe enough to create a hostile work
environment to a reasonable person. The Forklift manager thought his comments were only
funny; he did not intend to be mean; if this issue were left to a local jury, might not some people
on the jury, especially men, be likely to think that Harris over-reacted?
The standard set by the Court is, like negligence, much in the eye of the beholder. While it says
the standard is objective, in many cases it is not clear. There are some cases in which sexual
2. Two concurring opinions [Ginsburg and Scalia] indicated that another standard that might be
focused on is if the abusive actions are sufficient to affect work performance. Would that provide
better guidance?
It is not obvious that if abuse affects work performance that the jury will have any more clear
guidance. The EEOC uses this as a factor in its evaluation, but the impact of the abuse usually
Add. Case: J.T.'s Tire Service. v. United Rentals (App. Div., N.J., 2010)-- Eileen Totorello
owned J.T.'s Tire, a company that sold industrial tires. One customer was United Rental. J.T.'s
sold tires to United’s Piscataway, NJ branch. Totorello alleged that the manager of that United
branch, Hinkes, pressured her for sexual favors. He made it clear that he would quit buying tires
from J.T.'s if she did not submit to his advances, which included groping her. He became more
and more insistent. When she flatly refused, he quit buying tires from J.T.'s. Sales had previously
averaged $29,000 per month. Tororello sued United and Hinkes for violating the NJ Law Against
Discrimination. The trial court dismissed, holding that the law did not apply to such situations.
Totorello appealed.
Decision: Reversed and remanded. When harassment consists of sexual overtures and
unwelcome touching or groping, it is presumed that the conduct was committed because of the
victim's sex. Hence, Totorello has established, under the Law Against Discrimination, that
Add. Case: Reeves v. C.H. Robinson Worldwide (11th Cir., 2008)--Reeves was the only
woman who worked in an office. She claimed that during the three years she worked there, there
was pervasive sexually explicit language as well as some sexually explicit material. There were
persistent sexually offensive language, jokes, songs, comments and remarks. She complained of
the language, but nothing changed. She resigned and sued for hostile work environment. The
district court held for the employer on the grounds that the alleged harassment was not based on
Reeve’s sex; it was just male behavior not directed at her. She appealed.
Decision: Reversed. The fact that no single incident of sex-specific offensive language used by
men in the office qualified as “severe” does not preclude a finding that the language was
pervasive enough to satisfy the “severe or pervasive” criterion of a Title VII hostile work
Add. Case: Burns v. McGregor Electronic Ind. (8th Cir., 1993)-- Burns “appeared in
provocative poses in a lewd magazine called Easyriders.” The magazine circulated at work.
Some male employees made harassing comments to Burns. She was also subject to “shocking”
actions by her co-workers, including unwelcome advances from the owner of McGregor. She was
eventually fired and then sued, alleging sex harassment. The court held that Burns failed to
prove sexual harassment. The Court of Appeals reversed.
Decision: Reversed. The lower court determined that a “reasonable person would consider the
conduct of [Burns’ boss] . . . sufficiently severe or persuasive to alter the conditions of
employment and create an abusive working environment.” Nonetheless, the court maintained
Note: In Jenson v. Eveleth Taconite (D.Minn., 1993), women employees brought a class action
claim of sexual harassment. The court noted that this requires a showing that discrimination was
the company’s standard operating procedure. This was done: “Visual references to sex and to
women as sexual objects were found through out the company, including areas where women
worked, ate, and attended to their personal needs while at work. The work environment was also
characterized by verbal statements and language reflecting a sexualized, male-oriented, and
anti-female atmosphere.” The class action was allowed to proceed.
Add. Info: About 15% of the harassment cases filed are by men, claiming either heterosexual or
homosexual harassment. A Los Angeles jury awarded a man more than $1 million for six years
of sexual harassment by his woman manager. Most cases filed by men are quid pro quo—sex for
employment favors—while only about 15% of sexual harassment claims by women are that type.
Most cases filed by women are for hostile work environment. This area may continue to expand.
California has expanded coverage of sexual harassment to include providers and purchasers of
professional services. This allows victims of sexual harassment beyond the status of employee to
have a statutory right to sue; it covers situations such as a professor offering a student a higher
grade in return for sexual favors; a lawyer or psychoanalyst who sexually harasses a patient; as
well as other professionals, such as bankers, contractors, and landlords.
Age Discrimination—This 1967 Act prohibits employment discrimination against people age 40
and older. The Act applies to all employers with 20 or more employees. In terms of prohibitions,
exceptions, and remedies the Act is similar to Title VII. Courts use the McDonnell-Douglas test
to determine whether or not an ADEA violation has occurred. Examples of age discrimination
include: forced retirement due to age; advertising for “young, dynamic” employees; making
promotion decisions based on age; and, cutting health benefits to older workers because they are
eligible for Medicare.
