978-1285428222 Chapter 16 Lecture Note Part 3

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Note: The courts uphold valid seniority programs, even if the effect is to institutionalize past

discrimination. One case involved the Memphis fire fighters, where the Court held that even

when providing affirmative action for African-Americans the seniority rights of the whites could

not be reduced. Those who have suffered discrimination may be awarded artificial seniority, but

the seniority of those who may have benefited from past discrimination is not taken away.

Bona Fide Occupational Qualification (BFOQ)—Discriminatory employment practices may be

legal if they are based on sex, religion, or national origin (but not race) and if the practice is

“reasonably necessary to the normal operation of that particular business.” For example, it is

legal to discriminate against men to hire models of women’s clothing. Likewise, it may be legal

to discriminate against women or men when hiring people in such places as a nursing home.

Employers who have traditionally hired only one sex will not be allowed to justify continued

discriminatory practices because they would face additional costs (such as installing rest room

for the other gender), or just because people are used to seeing men or women perform certain

tasks.

Add Case: Henry v. Milwaukee County (7th Cir., 2008)–The Milwaukee Juvenile Detention

Center had a policy that required each unit of the facility to be staffed at all times by at least one

officer of the same sex as the detainees housed at a unit. Because there were many more male

units than female units, the policy had the effect of reducing the number of shifts available for

women officers and increasing the shifts for men. Two women officers sued for sex

discrimination. The district court held for the County, finding that the policy of assignment was

based on a bona fide occupational qualification (BFOQ) and so was not illegal sex

discrimination. The court also found that there had not been harassment of women officers. The

officers appealed.

Decision: Reversed and remanded. An employer who claims a BFOQ defense to a Title VII claim

bears the burden of proving that it would not rearrange job responsibilities or otherwise

eliminate the clash between business necessities and employment opportunities. Administrators

are due substantial deference when fashioning policies to further the goals of their organization,

Add. Case: EEOC v. Sedita 1291 (N.D. Ill., 1993)–Sedita owns 15 health clubs called Women’s

Workout World (WWW). All clubs employ only women as managers, assistant managers, and

instructors. A few men have been hired as class givers (conduct exercise classes), but Sedita

prefers to hire women for WWW, which has only female members. Men are not hired in most

positions because they involve physical contact with members, and involve exposure to the

locker room and exercise rooms. She contended the clubs and members have a legitimate privacy

interest, so gender is a BFOQ. EEOC sued to enjoin the clubs from its gender-based hiring

policies. Over 10,000 members signed petitions opposing EEOC’s position. EEOC requested

summary judgment.

Decision: No summary judgment. To assert a privacy based BFOQ defense, “the employer must

establish that 1) there is a factual basis for believing that hiring any members of one sex would

undermine the essence of its business, 2) the asserted privacy interest is entitled to protection

Early Retirement Plans—The Older Workers Benefit Protection Act (OWBPA) allows employers

to buy-out employees by offering economic incentives to quit or retire; in such cases, employees

must be notified of their ADEA rights and given 45 days to sign a statement that they have been

informed, but made the decision voluntarily.

Add. Case: Armendariz v. Pinkerton Tobacco (5th Cir., 1995)–Armendariz was one of six field

sales reps in the Denver division of a company; his territory covered west Texas and southern

New Mexico. Because of the low sales and high costs of servicing the Denver division, the

company decided to eliminate it and fired the two least effective sales reps (as measured by

costs/revenues); the other four reps were kept, but the division was reorganized. Armendariz, age

53, was one of the two reps let go. He sued for violation of ADEA, claiming that the change in

organization was merely a pretext to cover age discrimination. The jury awarded him $50,000.

Pinkerton appealed.

Decision: Reversed. Pinkerton provided a legitimate nondiscriminatory reason for the dismissal

of two reps; the company has the right to engage in office consolidation and job elimination as a

normal part of reorganization. The two reps had the highest selling costs per dollar revenue,

Add. Case: EEOC v. Local 350 (9th Cir. 1992)–EEOC sued on behalf of Pilot and other retired

union members. Pilot retired in 1983; he paid retired members’ union dues and received pension

benefits from the union. In 1984, he decided to return to work and posted his name on an

“out-of-work” list at union offices. The union removed his name from the list and told him that

he was not eligible to work because he was a retiree who had applied for and been granted a

pension. The EEOC sued, alleging age discrimination.

Decision: The union’s policy of refusing to refer Pilot, or other retirees, for work was a violation

of the ADEA. While the union policy discriminates on its face only against retirees, the group of

workers eligible to retire includes only persons 55 years of age or older. Thus, “a very close

Remedies in Discrimination Cases—Employers who intentionally engage in unlawful

discriminatory employment practices may be forced to reinstate employees with back pay or

front pay (although the former employee must seek other employment to mitigate damages),

promote employees, give employees artificial seniority, or implement an affirmative action

program. Employers may have to pay for economic losses and the costs of psychiatric or medical

treatment related to discrimination. Punitive damages are authorized, within limits, by the 1991

Civil Rights Act (which amends Title VII), such as no more than $300,000 for employers with

more than 500 employees. Attorney’s fees are usually awarded to employees who win their suits.

Add. Case: Kolstad v. Am. Dental Assn. (S. Ct., 1999)–Kolstad sued her employer, asserting

that the decision to promote a male instead of her was sex discrimination and that the selection

process was a sham. The trial court and appeals court held that she could not request punitive

damages unless she could demonstrate that the employer had engaged in intentional

discrimination and had done so with malice or reckless indifference to her federally protected

rights. Kolstad appealed to the Supreme Court.

Decision: Reversed. Punitive damages may be imposed in a Title VII action without a showing of

egregious or outrageous discrimination, independent of the employer’s state of mind. To be

liable for punitive damages, the employer must at least discriminate in face of a perceived risk

Add. Case: Prunty v. Arkansas Freightways (5th Cir., 1994)–Prunty sued Freightways and her

supervisor, Baugh, for the tort of “intentional infliction of emotional distress and for violations

of Title VII…. The district court found that Baugh’s conduct was intentional, offensive, extreme,

and outrageous … that it created an abusive, hostile, and offensive working environment … the

sexual harassment was so pervasive that [Freightways] was charged with constructive

knowledge thereof…. The district court also determined that Mrs. Prunty had, indeed, suffered

severe emotional distress as a result of Baugh’s conduct and that Prunty has successfully

established a Title VII claim against [Freightways].” The court awarded no damages. Prunty

appealed.

Decision: Reversed in part. Prunty is due no damages under Title VII because she failed to

demonstrate damages as the statute requires, such as a reduction in wages in her subsequent

Add. Info.: Class action suits for discrimination have yielded some large settlements. The

number of such suits has been rising. State Farm settled a case for $250 million; Shoney’s settled

a case for $132 million; and Lucky Stores settled for $107 million. In most cases, besides

damage awards for the class of plaintiffs, the companies make promises to increase women or

minority participation in certain managerial positions.

AFFIRMATIVE ACTION—An affirmative action program attempts to remedy the effects of

discriminatory employment practices by hiring and promoting more women and minorities.

Affirmative action programs may be voluntary or court-imposed (involuntary).

Executive Order 11246—This order, issued by President Johnson, requires all companies with

federal contracts totaling $10,000 a year to take affirmative action. Government contractors with

$50,000 in contracts must have written affirmative action plans. The OFCCP of the Department

of Labor enforces the law. Employers must conduct a work force analysis to determine what

groups hold what jobs. Employers then produce an underutilization analysis that compares the

percentage of each protected class in the community to the percentage employed. Disparities in

numbers must be corrected in hiring and promotion decisions.

Affirmative Action as a Remedy—In some cases, courts may order companies to institute an

affirmative action program. This will involve the employer reinstating or hiring employees in the

class discriminated against. Goals may be imposed to make up for past discriminatory behavior.

The Paradise case, mentioned in the text, is an example. Employers may institute a voluntary

affirmative action program if they discover that a protected class is under-represented in their

work force. Many do this to make sure they comply with EO 11246.

Add. Case: U.S. v. Paradise (S. Ct., 1987)–As of 1972, the Alabama Dept. of Public Safety

(state troopers) only hired African-Americans as laborers. A court held this discriminatory and

ordered the department to hire one black trooper for each white trooper it hired until blacks

constituted 25% of the force. After seven years, the court found that although the department had

hired black troopers, it had not promoted any. The court found that the tests used for promotion

were racially biased. The court then imposed numerical quotas on promotions within the

department. Fifty percent of the troopers promoted had to be black if qualified black troopers

were available. The court ordered that 25% of all ranks of the force had to be black. The

government appealed, claiming it violated the equal protection clause of the Constitution.

Decision: The district court employed a “race conscious” remedy to correct the harms of past

discriminatory behavior. Given the past pattern of “open and pervasive” discrimination, the

Add. Case: Lomack v. City of Newark (3rd Cir., 2006)–In 1977 the federal government sued

the state of New Jersey and several cities, including Newark, for “a pattern or practice of

discrimination” in the hiring and promotion of minority firefighters. A consent decree in 1980

ordered affirmative action to increase the proportion of black and Hispanic personnel in fire

departments. By 1995, 30 percent of Newark firefighters were black or Hispanic. In 2002 the

mayor of Newark, upset that some fire stations were single-race, ordered the reassignment of

personnel to achieve racial balance in each fire station. Firefighters who were forced to transfer

sued, contending the policy violated Title VII and equal protection. The trial court held for the

mayor and city. Firefighters appealed.

Decision: Reversed and remanded. A policy that uses race as the basis for transfers and

assignments is subject to strict scrutiny. Such policy must be narrowly tailored to achieve a

compelling city interest so as to overcome injury to equal protection rights. Racial classifications

Add. Case: Johnson v. Transportation Agency, Santa Clara Co., Calif (S.Ct., 1987)–The

Agency voluntarily adopted an affirmative action program. Goals were set to achieve a better

racial and gender balance in the workforce. The Agency advertised a position for a road

dispatcher. No women held jobs in this category. Two applicants, one female and one male, were

the best candidates. Although the women scored 2 points lower on her test than the man, she was

given the position (taking gender into account the Agency determined she was the stronger

candidate). Johnson, the man, sued, alleging employment discrimination based on sex. The

district court held the plan to be illegal. On appeal, the 9th Circuit Court of Appeals reversed,

upholding the plan. Johnson appealed.

Decision: Affirmed. The Court held that even though the Agency had no fixed, definite quotas in

affirmative action program, it could take gender into account in making employment decisions in

Add. Case: Frost v. Chrysler Motor (WD, Okla., 1993)–Frost sued Chrysler, claiming she was

denied employment and the opportunity to have a dealership because of her race (white). She

had 14 year’s experience with dealerships when she applied for a Dodge dealership. The zone

manager recommended her, but, although she was the only qualified applicant, she was rejected

in favor of a black owner who was financed by Chrysler through its Minority Dealer

Development Program, an affirmative action program to get more dealerships to blacks who

would not otherwise qualify. The Edmond, Okla. dealership was determined to be operated by a

black dealer.

Decision: Chrysler’s affirmative program (which was worked out in cooperation with the

NAACP), gave first right of refusal to prospective black owners for certain dealerships. This was

Add. Info.: The Civil Rights Act of 1964 and amendments represent landmark legislation to

combat discrimination in the workplace. They are, however, not the first legislative efforts in this

area. At the end of the Civil War, the Congress passed the Civil Rights Act of 1866 and, a few

years later, the Civil Rights Act of 1871. These Acts are still part of the Code of the United States

and they may be used a the basis of a claim of discrimination independent of, or tied to, a Title

VII claim. Remedies under both statutes are broad.

Add. Info.: The Civil Rights Act of 1866 provides that all persons, in all states, have equal rights

of contract and property before the law. Rights shall be equivalent to those possessed by white

citizens. When issuing rulings under this statute, courts have had to determine who is

“non-white,” and thus afforded protection by the law. Courts have interpreted non-white to

mean “identifiable classes of persons who are subjected to intentional discrimination solely

because of their ancestry or ethnic characteristics.” Hence, courts have held that Americans of

Arab descent, who are Caucasian, are entitled to relief under the Act. The Supreme Court has

held that Jews may claim racial status under the law. Members of a synagogue that was spray

painted with anti-Semitic slogans and symbols were allowed to sue under the Act on the basis of

a racially-motivated violation of property rights. The Act covers contracts; since employment

and union membership are forms of contract, this statute may be invoked when discriminatory

employment practices harm non-white persons. For examples, see Saint Francis College v. Majid

Al-Khazraji, 107 U.S. 2022 (1987); see also Patterson v. McLean Credit Union, 109 S.Ct. 2363

(1989).

Add. Info.: The Civil Rights Act of 1871, also known as the Ku Klux Klan Act, prohibits two or

more individuals from conspiring to deprive any individual or class of individuals of the equal

protection of the laws. This law is used infrequently, but it may be invoked in cases not covered

by Title VII. The law has been used to combat discrimination in cases involving public

institutions, such as police and fire departments.

International Perspective: Employment Discrimination in Europe and Japan

Most countries have little legislation regarding discrimination in employment. The first sexual

harassment case in Japan occurred in 1992 and was considered an oddity. Most countries have

mandatory retirement, so age discrimination is a part of the law. Alleged European sophistication

aside, there are few legal constraints on discrimination based on personal characteristics.

DISABILITY DISCRIMINATION—Two federal statutes concern the rights of the disabled in

the workplace: the 1973 Rehabilitation Act and the more expansive Americans with Disabilities

Act of 1990. The Rehabilitation Act protects job applicants or employees who seek work or work

for companies that receive federal funds. Procedures for instituting suits under the Act are similar

to those followed under Title VII. ADA expands the rights guaranteed to disabled persons, and

increases their rights of access to public accommodations. ADA imports the procedural rules and

remedies of Title VII into the area of disability discrimination. Most states have similar laws but

some states provide stronger protection than the federal statute does.

Add Case: Fleming v. Yuma Regional Medical Center (9th Cir., 2009)–Dr. Fleming, an

anesthesiologist, suffers from sickle cell anemia. He applied for a position as an anesthesiologist

at the Yuma Regional Medical Center, but it refused to allow him to practice because of his

disease. Fleming sued Yuma for employment discrimination in violation of the Rehabilitation

Act. The district court held for Yuma because Fleming was an independent contractor and the

Rehabilitation Act does not protect independent contractors. Fleming appealed.

Decision: Reversed. The Rehabilitation Act creates a private right of action for individuals

subjected to disability discrimination, including in employment, by any program or activity

receiving federal financial assistance. Although Fleming was an independent contractor rather

Compliance Process—Similar to Title VII—the employee files a complaint with a federal or

state EEO office. Almost a quarter of complaints are disability related. The plaintiff must show

that he or she is disabled as required by statute, the employer had notice of the disability, the

person could perform the job with reasonable accommodation, and the employer refused to make

accommodation.

Add Case: Intergard v. Georgia-Pacific (9th Cir., 2009)– Intergard worked at GP for 20 years

when she took medical leave for knee surgery. She was on leave for 15 months. Her doctor

allowed her to return to work with restrictions. GP required employees to participate in a

physical capacity evaluation (PCE) before returning to work from medical leave. The physical

therapist hired by GP studied the physical requirements of Intergard’s job. The job required

lifting 75 pounds. After extensive tests, the therapist concluded that she could not do the job

given her medical restrictions. Her physician agreed. GP informed Intergard that she was not

qualified for her position and that there was no other position available for her, so she was

terminated. She sued for disability discrimination, contending that the PCE was a medical

evaluation that was not related to physical requirements of her position. The district court held

for GP. Intergard appealed.

Decision: Vacated and remanded. The ADA prohibits an employer from requiring an employee to

undergo a medical examination that is not job-related and consistent with business necessity.

That applies to all employees, whether disabled or not. Genuine issues of fact existed as to

Add. Info.: The EEOC reports that half of all ADA cases are filed in connection with discharge

from employment; a quarter are for failure to provide reasonable accommodations; ten percent

are for discrimination in hiring; and ten percent are for harassment on the job. There have been

few cases claiming discrimination with respect to promotion or wages.

Definition of Disabled—Both statutes define “disabled” as “any person who 1) has a physical or

mental impairment which substantially limits one or more of such person’s major life activities,

2) has a record of such an impairment, or 3) is regarded as having such an impairment.” HHS

regulations determine what qualifies as a disability. The courts recognize these regulations as

valid. Major life activities includes “functions such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking, reading, learning, and working.” Disabilities include

such conditions as: drug or alcohol abuse, heart problems, severe disfigurement, immobility,

extreme obesity, deafness, and blindness. The provisions of ADA apply even if a person is only

perceived as being disabled but is not actually disabled. Former cancer patients or former

alcoholics may be examples of “cured” persons who are discriminated against in employment

decision-making. Less serious impairments do not constitute as disability under the Acts. Thus, a

person with a fear of heights is not discriminated against if his employer fires him from his job as

a utility repairman who is supposed to climb ladders. Being left-handed is also too trivial a

“disability” to receive protection.

Add. Case: Gretillat v. Care Initiatives (8th Cir., 2007)—Gretillat did general food service

work at a nursing home. It required a large range of motions. She developed knee problems and

had replacement surgery. She could no longer do the moves necessary to perform her work. She

was told to quit or be fired. She sued for disability discrimination for failure to accommodate her

disability. Trial court held for the nursing home. She appealed.

Decision: Gretillat’s doctor said she considered her to be impaired, but that medical opinion is

not necessarily the same thing as a disability covered by the ADA. Her mobility limitations did

Add. Case: Toyota Motor Mfr. v. Williams (S. C., 2004)—Williams worked at a Toyota plant

for several years before she developed physical problems that prevented her from working on the

assembly line any longer. After some less-strenuous assignments, she was assigned a job she

could not do and was fired. She sued for disability discrimination for her problems that limited

her manual tasks, house work, gardening, lifting much weight, and many work chores. The

appeals court held that she was disabled and due accommodation; Toyota appealed.

Decision: Reversed. Williams is not disabled and so not due accommodation. She suffers from

Add. Case: EEOC v. Watkins Motor Lines (6th Cir., 2006)–Grindle was hired by Watkins

Motor Lines as a driver and dock worker. More than half his time was spend loading and

unloading freight. When hired, he weighed 345 pounds. Over the next five years his weight went

as high as 450 pounds. When climbing a ladder at work, a rung broke and he suffered a knee

injury. The company allowed him to take 180 days leave to try to recover from the injury. At the

end of that time, his doctor said he could return to work, but Grindle said he could not. Another

doctor, noting that he weighed 405 pounds, held that he could not safely perform the

requirements of the job because of his weight. Grindle was fired and filed a complaint with the

EEOC. The EEOC sued Watkins on his behalf, contending the company violated the ADA by

discriminating against Watkins because of his weight. The district court held for Watkins. The

EEOC appealed.

Decision: Affirmed. Grindle’s weight was not an impairment under the ADA since there was no

Add. Case: Davis v. Microsoft (Ct. App., Wash., 2002)–Davis worked for MS, responsible for

two accounts. He needed to work 60 to 80 hours per week, the norm for people in such positions.

He was diagnosed with hepatitis C. His physician advised that he reduce his work to 40 hours to

deal with the disease. Davis requested a cut in duties. MS said that there was no position for

him, and moved him to the inactive employee status, which gave him six months to find another

position in the company. After nothing could be found that would allow only 40 hours of work,

he was fired. He sued for disability discrimination, contending that a work week in excess of 40

hours was not an essential function of employment. The jury awarded Davis $2.3 million; MS

appealed.

Decision: Reversed. To determine whether a particular function is essential to the performance

of a specific job, the following criteria may be considered: 1) the employer’s judgment as to

which functions are essential; 2)written job descriptions; 3) the amount of time spent on the job

performing the function; 4) the consequences of not requiring the employee to perform the

Add. Case: Holihan v. Lucky Stores (9th Cir., 1996)–After years as a good worker, Holihan, a

manager, was the subject of complaints about his behavior. His supervisors asked him if he was

having any problems, but he denied it. Employees continued to complain of his erratic and

abusive behavior. He was offered, and took, a leave of absence for counseling. His psychologist

diagnosed “stress related problems precipitated by work” and recommended he stay away from

work for three months. When he was supposed to return to work he requested, and was granted,

two more leave extensions. While on leave he began to sell real estate and make commercial

signs; these jobs took as much as 80 hours a week. He requested two more leaves and was

granted one, denied the second, then fired. His leave had exceeded company leave policy. He

filed suit under ADA. Court dismissed his suit, concluding he was not disabled when he was

fired. He appealed.

Decision: Reversed. “Holihan was not substantially limited from the major life activity he

alleged, working,” as evidenced by how hard he was working while on leave. However, “even if

Holihan were not actually disabled, the ADA prohibits discrimination against individuals

Add. Case: Katz v. City Metal (1st Cir., 1996)–Katz worked for City Metal. Five weeks after he

suffered a heart attack (and while he was still in bad shape), City fired him. He sued under ADA;

City won summary judgment; Katz appealed.

Decision: Reversed. It is for a jury to determine whether Katz had a physical impairment that

would substantially limit a major life activity. It is a for a jury to determine whether or not Katz

would be able to perform the essential function of his job with or without reasonable

accommodations by his employer. It is for a jury to decide whether a disability was the reason

for his dismissal.

Add. Case: Tyndall v. National Ed. Centers (4th Cir., 1994)–“Tyndall suffers from lupus

erythematosus, an autoimmune system disorder that causes joint pain and inflammation, fatigue,

and urinary and intestinal disorders.” When hired by defendant (a school), they were aware of

her disability; “the school made every effort to accommodate her lupus condition,” including

sick leave, coming late, leaving early, and taking breaks as needed. After a couple years, she

began to miss work more, plus she took extended leave for family health matters. Other workers

worked extra and over time to cover the classes she missed. Her supervisor suggested she resign,

but that the school would like her to apply for employment later when she could work routinely.

Tyndall resigned, then sued ADA violation. Court granted the school summary judgment on the

ADA claim. She appealed.

Decision: Affirmed. To have an ADA claim, a person must have a “disability,” must be

“qualified” for the job, and the discrimination must be unlawful based on disability. Tyndall has

a disability. The issue then is if she could perform the essential functions of her job with

Add. Info.: Federal court cases in which the employee was held not qualified for a certain job

because their disability prevented performance even when accommodation was made:

A propane truck driver who suffered seizures and took medication was disabled but ineligible to

drive due to Dept. of Transportation regulations concerning the physical ability of hazardous

materials drivers.

A grocery store employee suffered from Tourette Syndrome, which causes uncontrollable obscene

verbal statements, including racial insults. Because this disturbed customers and hurt store

business, the employee could not be accommodated.

The Postal Service did not have to accommodate an employee who suffered from a herniated

disc and could not do much walking, lifting, or bending. Unable to find a position that he was

capable of performing, he could be dismissed.

A food server was unable to handle the pressure of work on particularly busy evenings. Her

disability, panic attack disorder, prevented her from performing essential functions at the

restaurant.

A surgical technician who was HIV-positive was not qualified to assist with surgery because of

risk of infection of patients; his reassignment to other duties was upheld.

A disabled customer service representative who could not answer customer phone calls due to

panic attacks, mood swings, and disassociative episodes was held not qualified, and so could be

dismissed. A secretary who suffered from depression and osteoarthritis aggravated by using a

keyboard could not perform her job as required and so could be released (after her employer

made various efforts to accommodate her unsuccessfully).

An employee with Chronic Fatigue Syndrome, who could not work, could be held totally

disabled from the perspective of the employer who fired her.

Employees who claimed disability as drug addicts were properly dismissed for violating

company rules against testing positive for drugs.

Considered Disabled—Even if a person is not impaired, if other people think the person is

disabled, then the person is protected by the ADA. One is “regarded as” disabled if she 1) has an

impairment that does not limit a major life activity, but is treated as if that is the case; 2) has an

impairment only as a result of the attitude of others; or 3) has no impairment but is treated by the

employer as if impaired.