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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.
