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Add. Case: Reeves v. Sanderson Plumbing Products (S.Ct., 2000)--Reeves, 57, was fired from
a supervisory position. He contended it was age discrimination as his supervisor made hostile
remarks about his age and the rationale given for his dismissal was largely a pretext. The jury
found for Reeves; the appeals court reversed, holding that he had not provided sufficient
evidence to prove age discrimination. Reeves appealed.
Decision: Reversed. Once a prima facie case of discrimination has been made, it is for the trial
Add. Case: Johnson v. Minnesota Historical Society (8th Cir., 1991)--Funding for MHS fell. It
fired 2 of its 22 employees, including Johnson, a 23-year employee, age 54, with health
problems. He offered to work for half-salary, but that was refused because his expertise was not
needed. He claimed age discrimination and noted that other employees mocked his age and
health problems; the MHS director said he wanted someone with fresh ideas and enthusiasm, but
that there was nothing wrong with Johnson’s skills. District court ruled for MHS.
Decision: Reversed. He established a prima facie case of discrimination and was due a jury trial
Add. Case: EEOC v. Massachusetts (1st Cir., 1993)--Massachusetts required all state workers
70 year old and older to pass an annual medical exam. Failure to take or pass the exam resulted
in termination. EEOC sued, alleging a violation of the ADEA. The state argued that the testing
was necessary to protect its employees. The state won at the trial level. EEOC appealed.
Decision: Reversed. The ADEA makes it illegal to fire someone solely because of age. The law
regarding physical exams for those 70 and up was in clear violation of the law. The state may
test people to determine if they are fit to perform their job, but it must do so on an individual
Discrimination Based on Military Service—USERRA) The Uniformed Services Employment
and Reemployment Rights Act hold sit illegal to deny employment benefits based on military
service.
Genetic Information Discrimination—The Genetic Information Nondiscrimination Act
(GINA) makes it illegal to discriminate in employment based on genetic information about a
person or members of their family.
BRINGING A CHARGE OF DISCRIMINATION—Under all of the discrimination statutes,
the person with a complaint may file at a state or federal EEO office, as all states have such
offices (and some states offer more generous coverage than the federal statutes and longer filing
times). Under federal law, a charge must be filed within 180 days of a discriminatory event, but
due to state law that is effectively 300 days. Go past that time and the ability to complain is lost.
Steps in the Process—EEO offices have authority to categorize complaints by priority, based on
an initial evaluation. Top priority cases are those where discrimination appears likely. Second
priority is given to complaints that require more investigation to determine if there may be
discrimination. Third are cases that appear to lack a legitimate claim and are dismissed. The EEO
office may do an investigation and contact the employer and ask a manager to attend a
fact-finding conference. Settlements are always encouraged. If the conference does not resolve
the problem, the EEO office finishes the investigation and issues a finding. If the complaint has
merit, the EEO office issues a “right-to-sue” letter, giving the employee the right to bring suit
against the employer in a federal or state court. The EEOC may bring suit in cases in which it
believes a number of persons are affected by an employer’s discriminatory practices. Per the Lily
Ledbetter Act of 2009, charges must be filed within 180 days of a discriminatory event (or 300
days in most states).
Add. Case: Byrd v. BT Foods (Ct. App., Fla., 2008)--Byrd worked for a Wendy's in Florida.
When hired, she told her supervisor she was HIV positive. About six months later, she suffered
illness, forcing her to miss work. Each time, she followed procedure and produced a note from a
doctor. On one occasion a dispute arose over whether or not her absence was justified, and she
was fired. She filed a complaint with the Broward County Civil Rights Division. It investigated
the matter and issued a "Notice of Determination" letter that stated there was "no reasonable
cause" to believe Byrd had suffered discrimination based on her disability. She sued for failure
of Wendy's to accommodate her disability. At trial, the no reasonable cause letter was entered
into evidence. The jury held for Wendy's. Byrd appealed.
Decision: Reversed and remanded. The standard of evidence used by the EEOC in reasonable
cause letters is not the same as the standard used in court. Hence, the letters seldom pass the test
Add. Case: Smith v. Ashland, Inc. (8th Cir., 2001)--Smith worked for Ashland for four years
until May 2, 1996, when she was fired. She made several complaints while working there about
racial and sexual harassment. On April 21, 1997 she filed a sex and race discrimination charge
with the Minnesota Department of Human Rights (DHR). On March 2, 1998, the DHR issued a
finding of no probable cause. Smith then filed federal district court and included statements from
some former co-workers about the nature of the discrimination she faced at Ashland. The district
court dismissed her suit as barred by a one-year statute of limitations. Smith appealed.
Decision: Affirmed. Under Minnesota law, employment discrimination claims referring to events
that occurred more than one year before Smith filed her charge with the DHR were time barred
by the one-year statute of limitations period. Under the law, each discriminatory act triggers
anew the time period for reporting the entire pattern of discrimination, as long as at least one
Forms of Discrimination—Among employment practices struck down are those that impose
differential standards on the basis of race or sex, such as not give women the chance to be
traveling sales representatives. Compensation differentials, including fringe benefits and working
conditions, may not be based on protected class status. Segregation is obviously illegal, but can
appear in the assignment of employees based on perceived racial preferences of customers.
Unequal treatment in hiring and promotion is illegal. To make working conditions intolerable so
someone quits is called constructive discharge (as in the Harris Forklift case), and is a form of
illegal harassment. While there are many bases for claims, they fall into two major categories;
disparate treatment (intentional discrimination) or disparate impact (unintentional
discrimination).
Disparate Treatment—This is illegal discrimination that is shown to be intentional.
Plaintiff Must Establish a Prima Facie Case. This test applies for all aspects of employment, so
persons denied promotion or fired must meet the same criteria. Courts apply a four-part test,
developed in McDonnell-Douglas Corp. v. Green, to decide if a prima facie case of intentional
discrimination exists. This test asks if:
a) the person suing belongs to a protected class;
b) if the person applied for a job and met the job qualifications;
c) if the person was denied a job; and,
d) if the employer continued to seek job applicants with similar qualifications to the person
suing.
Add. Case: McGinnis v. Union Pacific Railroad (8th Cir., 2007)--McGinnis worked as a train
dispatcher for UP from 1974 until fired in 2002. In his last four years, he was given six citations
for violating train dispatcher rules (which are for mistakes can lead to accidents). He was
ordered to take a one-month training course to improve his comprehension of the train switching
system. He failed the proficiency exam. McGinnis was fired at age 49 for poor performance and
for failing the exam. He was replaced with a 53-year old male. McGinnis sued for age
discrimination and sex discrimination. The sex discrimination claim was based on alleged
favoritism shown by the manager for attractive, less experienced women employees. He
contended the manager had an affair with one woman who he gave favorable treatment to. The
district court dismissed. McGinnis appealed.
Decision: Affirmed. McGinnis failed to state a prima facie case of either age or sex
discrimination. As to the claim of age discrimination, the employer had non-pretextual,
business-related reasons for his termination. McGinnis had a number of safety incidents at work
Add. Case: Swierkiewicz v. Sorena N.A. (S. Ct., 2002)--Swierkiewicz, a 53-year-old native of
Hungary, sued, claiming that he had been fired on account of his national origin and age. The
trial court dismissed, holding that he failed to meet his burden to establish a prima facie case of
discrimination as required by the McDonnell Douglas test. The appeals court affirmed the
dismissal; Scierkiewicz appealed.
Decision: Reversed. A discrimination complaint need not contain specific facts to establish a
prima facie case under the McDonnell Douglas framework, but instead need contain only “a
short and plain statement of the claim showing that the pleader is entitled to relief.” All plaintiff
Burden Shifts to Defendant. If plaintiff meets the test, burden shifts to the employer to provide a
“legitimate, nondiscriminatory reason” for its actions; or plaintiff wins.
Burden Shifts to Plaintiff to Attack Defense. If the employer provides a reason, plaintiff has the
burden of proving that employer’s explanation is only a pretext for disguising discrimination.
Employer’s intent does not matter as much as evidence of how discrimination worked in
practice.
Possibility of Retaliation for Expression of Rights—Employees have the right to file complaints
about discrimination—whether the complaint is valid or not. Workers are not to be punished—
suffer retaliation—for filing complaints or participating in discrimination hearings.
CASE: Lewis v. Heartland Inns (8th Cir., 2010)—Lewis worked successfully at Heartland and
was promoted and praised by managers. After more than a year, a senior manager saw her and
told Lewis’ supervisor that Lewis did not look right for the job. Not the image the company
wanted for a front-desk person. She wanted prettier girls at the desk. The supervisor refused to
move Lewis and was fired. The senior manager met with Lewis and soon fired her for no
explained reason. Lewis sued for Title VII violation for retaliation for opposing discriminatory
practices and for not conforming to sexual stereotypes. The district court held for defendant;
Lewis appealed.
Decision: Lewis made a prima facie case on her claims and Heartland’s proffered reason for her
dismissal appears to be pretextual, so the case goes to trial. To have a claim for sex
Questions: 1.What does the court mean when it says Heartland’s reason for termination was
“pretextual”?
Pretextual means an excuse that is not legal. That is, was Heartland looking to justify its action
2. Suppose Heartland had a policy of having “Midwestern girl look” at their front desk as part of
company strategy. Is that a legitimate business reason?
That is exactly the kind of business strategy prohibited by Title VII. Airlines used to only hire
Add. Case: Crawford v. Metro. Government of Nashville and Davidson County, Tenn.,
(S.Ct., 2009)--During an internal investigation at the Metro School District into rumors of
sexual harassment by the employee relations director (Hughes), Crawford reported that Hughes
had sexually harassed her. Crawford was soon fired for alleged embezzlement. She sued for
violation of Title VII, which makes it illegal for an employer to retaliate against an employee
who “has opposed any practice made an unlawful employment practice” by Title VII. This is
called the “opposition clause.” The trial court dismissed her suit and the appeals court upheld
the dismissal. Crawford appealed to the Supreme Court.
Decision: Reversed and remanded. The opposition clause of the anti-retaliation provision of
Title VII applies to Crawford. She spoke out about discrimination, not of her own initiative, but
in answering questions during an employer’s investigation about complaints of sexual
Add. Info: Complicating Factor: Mixed Motives—Many cases are not open and shut as to the
motive for the job action involved. There may be illegal elements of discrimination and legal
elements of job performance that play a role in a decision. A plaintiff need not demonstrate that
illegal motives were the predominant reason, only that they played a role in the decision.
Add. Case: Machinchick v. PB Power (5th Cir., 2005)—Machinchick worked for PB for five
years in Houston and got good evaluations and was promoted. A new supervisor, Knowlton,
changed business tactics saying he wanted people whose “mindset resides in the 21st century”
and that he wanted to “strategically hire some younger engineers and designers” to fulfill his
plan. Right after that he fired Machinchick, age 63, for poor performance and replaced him with
a younger man (Belz). Machinchick sued for age discrimination. Trial court dismissed; he
appealed.
Decision: Reversed and remanded. Machinchick met the burden of establishing a prima facie
case of age discrimination. Doing that means PB must, at trial, articulate a legitimate,
non-discriminatory reason for termination. There were mixed motives in this case. The employer
Key Defense for Employers—The Supreme Court has emphasized how important it is for firms
to have in place an effective policy and procedure to deal with discrimination complaints. If the
procedure is shown to be effective (trustworthy), then an employee’s claim can be greatly
weakened for failing to take advantage of it.
CASE: Burlington Industries v. Ellerth (S.Ct., 1998)—Ellerth worked for Burlington for 15
months before she quit. She then sued for sex discrimination, contending that her boss has made
sexually suggestive remarks and she took them as a threat to her employment, but there was
never an adverse job action. She did not inform anyone at Burlington about the issue prior to the
suit. The district court dismissed the suit, the appeals court reversed; Burlington appealed.
Decision: Affirmed. The suit may proceed. Whether the claim is quid pro quo or hostile work
environment, the issues are the same. Was there sexual harassment that rose to the level of
Questions: 1. The dissent argued that it opens the barn door to cases that employers cannot
defend themselves against – such as this case, where the company had a policy against
discrimination that was apparently violated but the injured employee did not take advantage of
company policy. Is that likely to happen?
The number of cases filed has continued to rise since this case, but it has not been a significant
jump, so it does not appear to have opened the floodgates of new litigation. To avoid liability in
2. What steps should an anti-discrimination policy include?
To be effective, besides noting what is illegal behavior, firms must stress procedure–how
employees protect themselves, confidentiality of the process, how investigations take place, zero
Add. Case: Barrett v. Applied Radiant Energy Corp. (4th Cir., 2001)--Barrett was harassed
by her supervisor, Ramsey, who propositioned her, grabbed her, kissed her, and made vulgar and
threatening comments to her. She told other employees about this, but did not report it to any
managers. ARECO’s policy prohibits all forms of harassment. The policy stated that harassment
should be reported to a manager so that the matter could be dealt with in a confidential manner.
Barrett knew of the policy and signed a form that acknowledged that she had received a copy of
the policy. Managers became suspicious about Ramsey and had him investigated by an outside
firm, which confirmed his behavior. He was fired. Barrett sued ARECO for harassment. The jury
found in her favor and awarded $5,000. The judge overturned the verdict. Barrett appealed.
Decision: Affirmed. ARECO exercised reasonable care in promptly correcting sexually harassing
behavior. Barrett’s failure to take advantage of the opportunities provided by the employer for
Add. Case: Price Waterhouse v. Hopkins (S. Ct., 1989)--Hopkins was a senior manager at a
large accounting firm. She, and 87 men, were being considered for partnership (promotion) in
1982. Her candidacy was put on hold for a year, after which she was denied partnership. She
brought suit, alleging employment discrimination under Title VII based on her sex.
Decision: The Court noted that Hopkins’ employment record was excellent. She was commended
many occasions for fine work. However, she had been reprimanded for her aggressive, brusque
behavior. The Court found that some members of Price Waterhouse management (all men)
Add. Case: EEOC v. O&G Spring and Wire Forms (7th Cir., 1994)--A Chicago shop employed
about 50 workers in low-skill positions hired by word-of-mouth and walk-ins. Over 6 years, the
company hired 87 people, none black. It mostly hired Polish immigrants. EEOC investigated and
charged O&G with intentional discrimination. The labor market pool for O&G was 22-31%
black. District court ruled that “statistical proof alone is sufficient to establish liability.” Zero
black employment could not be an accident; a sizeable payment to would-be applicants was
ordered.
Decision: Affirmed. Statistical evidence can be sufficient to prove intentional discrimination. The
Add. Case: EEOC v. Consolidated Service (7th Cir., 1993)--A Korean bought a cleaning
service company in Chicago from another Korean. Seventy-three percent of the job applicants
and eighty-one percent of the hires were Korean. Less than one percent of the Chicago work
force and three percent of the janitorial work force are Korean. The company relied on
word-of-mouth recruitment which tended to be among the Korean community. The EEOC sued,
charging the company discriminated in favor of persons of Korean origins. District court
dismissed the suit because EEOC failed to prove discrimination. EEOC appealed.
Decision: Affirmed. Word-of-mouth recruitment does not give rise to an inference of intentional
discrimination; there was no evidence that the owner was biased in favor of Koreans or
Issue Spotter: Effective Sexual Harassment Policy
1. A policy must be written. It must be clear and emphatic. Spell out what sort of conduct is
prohibited. State the steps that employees should take who face harassment and make it clear that
there will be no retaliation against whistle-blowers. Do not guarantee that a complaint will be
resolved to the satisfaction of the party complaining, as the complaint may be bogus.
2. The policy must be communicated. Post it, discuss it, include it in training, and give it to all
new employees.
3. Set up a complaint procedure–give the names and phone numbers of more than one person
who can be contacted to report problems. Let people know that complaints should be reported
promptly–don’t let problems build.
4. Enforce the policy consistently–do not treat some employees differently than others.
Document all steps taken. Investigate complaints immediately in a professional manner
attempting to resolve the problem.
Disparate Impact—An employer may have employment rules that, while “neutral” on their face,
in fact harm some groups more than others. The discrimination may be unintentional. Key tests:
1) Does an employer have rules that affect members of a protected group differently than other
workers? 2) Are the rules or practices justified by business necessity or because they relate to job
requirements? For example, if an employer only hires those persons who can pass a certain test,
and it is clear that some groups will have great difficulty passing the test, the test will have an
illegal disparate impact on those groups, unless the employer can show that the test is a neutral
criteria that it affects all groups in a similar manner. Injured parties may bring discrimination
claims under Title VII for disparate impact.
CASE: EEOC v. Dial Corp. (8th Cir., 2006)—Workers at Dial did a lot of lifting. The company
began to use a strength test for new employees. Before the test, the workforce was about 50-50
men and woman. When the test was put in place, only 15% of people hired were women. One
applicant who passed the test and was not hired complained to the EEOC, which investigated. It
brought suit on behalf of 54 women who had passed the test and been rejected. The trial judge
found disparate impact and awarded back pay. Dial appealed.
Decision: Affirmed. The strength test was not shown to be reasonably related to job performance
and used for business necessity. Firms may use tests that are good predictors of ability to
Questions: 1. The appeals court affirmed that the strength test discriminated against women job
candidates. Since the job required strength, what could Dial have done to evaluate job candidates
better?
The test was not designed properly and appeared to have not been used fairly in any case, as
many women candidates who passed it were not hired. Dial may have thought the test fair, but as
2. Was the discrimination here intentional or unintentional?
The impact of the test was apparently unintentional, but it was clear that there was also
Add. Case: Griggs v. Duke Power Company (Sup. Ct., 1971)--Before the 1964 Civil Rights
Act, Duke Power was segregated. Blacks held low-level jobs while white employees held all
other positions. After 1964, the company allowed employees to compete for all jobs, but required
persons competing for most jobs to have high school diplomas and to have passed two aptitude
tests. This policy kept most blacks out of most positions because more blacks than whites lacked
high school diplomas. Also, only a small percent of blacks passed the aptitude tests, further
reducing the pool of eligible black candidates for higher-level jobs. The company won at the
trial and appellate levels; the education and testing requirements were not discriminatory, but
were meant to insure a quality work force. Griggs appealed.
Decision: The Supreme Court noted that Congressional intent in passing Title VII was to remove
obstacles to equality that existed in the workplace. The Court held that “practices, procedures,
or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they
Add. Case: Bridgeport Guardians v. City of Bridgeport (2nd Cir., 1991)--The city gave an
exam to candidates in the police department for promotion. To make the exam more racially
neutral, a professional was asked to help structure the written and an oral exam. He suggested
using video simulations in parts of the exam. This would show the test taker a crime scene and
ask the person to write how they would deal with the situation. Such tests have been shown to be
generally racially neutral. He suggested using minority examiners for the oral portion of the
exam. The City refused the suggestions. The results of the exam were a 68% pass rate for whites
and a 38% pass rate for minorities. The top 19 scores were from whites. Citizens’ groups sued,
alleging that the department’s promotion exam, based on a strict rank order, violated Title VII,
because the test results had a disparate impact on minority officers.
Decision: The exam violated Title VII. The plaintiff presented statistical evidence that the exam
had a disparate impact on the minority officers. The court imposed banding (the promotion of
certain groups of officers outside of the rank order) as a remedy to alleviate racially disparate
Statutory Defenses under Title VII—When an employee has presented a rebuttable
presumption of discrimination, the employer must provide legitimate, nondiscriminatory reasons
for the situation. Employers charged with employment discrimination have several defenses.
Major ones are business necessity, use of professionally-developed ability tests, use of bona fide
seniority or merit systems, and bona fide occupational qualifications.
Business Necessity—Employers may discriminate on the basis of business necessity. The
employer may make employment decisions based on the skill and abilities of
employees/applicants necessary for the job in question. The qualifications must be related to the
ability to do the job. In the case of white collar workers, employment decisions must also meet
the business necessity test. Education requirements for professionals are upheld because these
workers are generally acknowledged to need certain training.
Professionally Developed Ability Tests—Tests are lawful if they can be shown to predict the
ability of persons taking the test to perform the job for which they are applying. Employers will
have to provide statistical validation of the tests, and perhaps expert testimony, if they are
challenged as discriminatory.
Issue Spotter: Inadvertent Discrimination?
This is the situation raised in McReynolds v. Merrill Lynch (7th Cir., 672 F.3d 482). Judge Posner
held that indeed it does raise an issue of whether the employer’s policies had a disparate impact
on black employees, so a potential class of 700 such affected individuals could well be justified.
He raised an analogy:
“Suppose a police department authorizes each police officer to select an officer junior to him to
be his partner. And suppose it turns out that male police officers never select female officers as
their partners and white officers never select black officers as their partners. There would be no
intentional discrimination at the departmental level, but the practice of allowing police officers to
choose their partners could be challenged as enabling sexual and racial discrimination—as
having in the jargon of discrimination law a “disparate impact” on a protected group—and if a
discriminatory effect was proved, then to avoid an adverse judgment the department would have
to prove that the policy was essential to the department's mission.”
“There is no indication that the corporate level of Merrill Lynch wants to discriminate against
black brokers. Probably it just wants to maximize profits. But in a disparate impact case the
presence or absence of discriminatory intent is irrelevant; and permitting brokers to form their
own teams and prescribing criteria for account distributions that favor the already successful—
those who may owe their success to having been invited to join a successful or promising team—
are practices of Merrill Lynch, rather than practices that local managers can choose or not at their
whim.”
That is, subtle, likely unintentional discrimination can be enforced by company policies.
Bona Fide Seniority or Merit Systems—A seniority system based on length of employment
lawfully can be used to discriminate amongst employees in areas such as the provisions of
benefits, or in making termination decisions. Seniority systems put in place during an era of
discrimination will not be dismantled in order to do away with the effects of past discriminatory
behavior; Title VII expressly protects seniority.
