SECTION 7C – WORKPLACE DIVERSITY AND ATMOSPHERE
CASE 7.15 – ENGLISH-ONLY EMPLOYER POLICIES
Answers and Key Discussion Items
1. The question is set up so that some students are trapped into an opinion. This case is a sensitive
and emotional one. Bring them back around to analysis, not emotion. Have the students discuss
what the results are of English-only policies, including the fact that certain jobs will not be available to
2. The hostile environment issue here is a fascinating one to discuss because hostile environment
generally refers to trying to harass or exclude certain groups or individuals. Here, the policy applies
3. The types of employers who would qualify for an exemption for English-only policies would be
hospitals, clinics, any business or organization with dispatch functions, technical skill jobs that involve
The advice given by the lawyers on English-only policies is a balance of the interests of employers
CASE 7.16 – EMPLOYER TATTOO AND PIERCING POLICIES
Answers and Key Discussion Items
1. An excerpt from the court’s opinion follows:
Cloutier asserts that the CBM mandate to be a confident role model requires her to display all of her
facial piercings at all times. In her view, the only reasonable accommodation would be exemption from
An accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on
the employer. Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113
(1977). This calculus applies both to economic costs, such as lost business or having to hire additional
Cloutier argues that Costco has not met its burden of demonstrating that her requested accommodation
would impose an undue hardship. She asserts that she did not receive complaints about her facial
Courts are “somewhat skeptical of hypothetical hardships that an employer thinks might be caused by
The district court acknowledged that “Costco has a legitimate interest in presenting a workforce to its
customers that is, at least in Costco’s eyes, reasonably professional in appearance.” Costco’s dress
It is axiomatic that, for better or for worse, employees reflect on their employers. This is particularly true
of employees who regularly interact with customers, as Cloutier did in her cashier position. Even if
Costco is far from unique in adopting personal appearance standards to promote and protect its
image. As the D.C. Circuit noted, “Perhaps no facet of business life is more important than a
company’s place in public estimation. . . . Good grooming regulations reflect a company’s policy in
our highly competitive business environment. Reasonable requirements in furtherance of that
policy are an aspect of managerial responsibility.” Courts have long recognized the importance of
Courts considering Title VII religious discrimination claims have also upheld dress code policies that,
Costco has made a determination that facial piercings, aside from earrings, detract from the “neat,
Cloutier argues that regardless of the reasons for the dress code, permitting her to display her facial
jewelry would not be an undue hardship because Costco already overlooks other violations of its
policy. In support of her position, she cites affidavits from two Costco employees identifying co-workers
We find Cloutier’s contention, and the affidavits underlying it, unpersuasive. To the extent that the
Costco’s offer of accommodation was manifestly reasonable as a matter of law.
The temporary covering of plaintiff’s facial piercings during working hours impinges on plaintiff’s religious
scruples no more than the wearing of a blouse, which covers plaintiff’s tattoos. The alternative of a clear
Affirmed.
2. The policy should have the following characteristics: gender neutral and accommodation for religious
beliefs if applicable.
CASE 7.17 – ON-THE-JOB FETAL INJURIES
Legal Issues
Many employers are affected by the Johnson Controls case. Hospitals with technicians and other
personnel in x-ray and nuclear medicine, nuclear plant workers, and VDT workers would be affected. Any
exclusionary policies must be eliminated.
The lawsuits against employers for the children who were exposed to toxins through their mothers’
employers continue. The doctrine of assumption of risk applies to knowingly assuming a risk, which the
mothers did. However, the argument in the cases is that the fetuses did not consent to that exposure and
are not subject to their mothers’ waivers. How does this argument gel with the pro-choice positions on
mother’s right to choose?
Answers and Key Discussion Items
1. The policy was designed to protect women of child-bearing capability and their fetuses. The policy of
Johnson Controls had the best intentions and was based on sound legal advice: avoid liability for
Freedom of choice is a good alternative with the exception of possible problems for the fetus who is
The issue here is one of balancing the mother’s rights for equal employment with the child’s rights of
freedom from injury, damage, etc. The difficulty lies in dictating the conduct of the mother for the
2. As the director of human resources, faced with the implementation of the U.S. Supreme Court
decision, I would quickly develop a disclosure statement and waiver. All workers would be given both.
3. The legislatures and employers have the choice of limiting liability of employers for the choices the
women make in terms of exposure to toxins. However, such a decision is a political risk. The liability
limiting legislation would have the effect of many women not choosing the jobs. Have the students
evaluate the right to a higher paying job vs. the rights of the unborn children of the women. Given the
4. Discuss with the students the value we place on human life, protection of the unborn, the inability of
the child to speak as to its safety. Is it a justice or utilitarianism decision?
CASE 7.18 – OFFICE ROMANCES
Use PowerPoint Slides 287 and 288.
Answers and Key Discussion Items
1. The concern is employees bringing tensions from their relationships into the workplace. This tension
2. No romances between direct reports – employers offer transfers or other jobs. Uniform enforcement.
3. One never knows when and where Cupid will strike, so employers are realistic in understanding that
CASE 7.19 – EMPLOYEE SCREENING: PERSONALITY, INTELLIGENCE, AND
DISPARATE IMPACT
Answers and Key Discussion Items
The bottom line on these personality screens is that they are risky – they could be a screen for issues that
are not grounds for denying employment – shyness could be related to certain disabilities and you cannot