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CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 11
whole or in part.
the workplace. Japan, for example, has amended its Equal Employment Opportunity Law to include a
provision making sexual harassment illegal. Thailand has also passed its first sexual-harassment law. In
2002, the European Union, which some years ago outlawed gender-based discrimination, adopted a directive
that specifically identifies sexual harassment as a form of discrimination. Nevertheless, women’s groups
throughout Europe contend that corporations in European countries tend to view sexual harassment with
sexual harassment in the workplace?
6. Sexual-Orientation Harassment
Title VII does not cover harassment on the basis of sexual orientation. Many states—and many
ENHANCING YOUR LECTURE—
E-MAIL IN THE WORKPLACE AND
“UNIVERSAL STANDARDS OF BEHAVIOR”
unemployment compensation? This question recently came before a Utah appellate court in Autoliv ASP, Inc.
v. Department of Workforce Services.a
AUTOLIV’S HARASSMENT AND E-MAIL POLICIES
whole or in part.
e-mail “for reasons other than transmittal of business-related information” is prohibited and that violations of
company policies can result in any of several disciplinary actions, including termination.
In 1999, Autoliv learned that an employee had received offensive and sexually harassing e-mail from
unemployment taxes as a result.
WERE THE EMPLOYEES FIRED FOR “JUST CAUSE”?
Under the relevant state statute, to be fired for “just cause,” employees had to have “knowledge of the
Autoliv appealed the agency’s decision to a state appellate court, asserting on appeal that it was
“incomprehensible” for the agency to hold that a worker could be unaware of the dangers of sending sexually
offensive materials to co-workers through a company’s computer network. The court agreed with Autoliv,
stating that “[s]uch materials in the workplace could have subjected the employer to sexual harassment and
Suppose that an employee writes a message to like-minded persons concerning religious beliefs
or political views. Can the employee be fired in that situation? Who decides what is acceptable
Internet activity when there is no written policy?
How might an employee avoid the possibility that his or her employer will discover objectionable
a. 29 P.3d 7 (Utah App. 2001).
whole or in part.
When, because of a romantic relationship, an employer hires, promotes, or otherwise favors someone (a
The court stated that Title VII is violated if a romantic relationship is a substantial factor in an employment
decision. The court ordered the employer to promote the nurse who had been overlooked.
The Equal Employment Opportunity Commission (EEOC) has rejected claims of discrimination based on
consensual romantic relationships. According to the EEOC, “[a]n isolated instance of favoritism toward a
promotion if she were a man. Thus, under the EEOC’s guidelines, there would be no liability.
Most courts agree with the EEOC. For example, in DeCintio v. Westchester County Medical Center, 807
F.2d 304 (2d Cir. 1986), the court held that voluntary, romantic relationships cannot form the basis of a sex
discrimination suit under Title VII. In that case, in April 1982, the Westchester County Medical Center
Ryan, the program administrator of the respiratory therapy department. In May, Anthony DeCintio, a staff
respiratory therapist, filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging
the WCMC with sex discrimination in violation of Title VII arising from the hiring of Guagenti. He alleged that
the certification requirement was created to exclude him from consideration for the new position and that the
new position was created specifically for Guagenti. Six other male staff respiratory therapists also filed
Title VII, “sex” refers to “membership in a [protected] class delineated by gender.” The court could find no
reason for extending Title VII’s reference to “sex” “so broadly as to include an ongoing, voluntary, romantic
engagement.” Under the circumstances, “[a]ppellees were not prejudiced because of their status as males;
rather, they were discriminated against because Ryan preferred his paramour. Appellees faced exactly the
same predicament as that faced by any woman applicant for the promotion.”
whole or in part.
J. REMEDIES UNDER TITLE VII
A plaintiff may obtain reinstatement, back pay, retroactive promotions, and damages. Compensatory
damages are available only in cases of intentional discrimination. Punitive damages may be recovered in
some cases, but the sum of compensatory and punitive damages is limited to specific amounts against
specific employers (stated in the text).
• The ADEA applies to federal and private employers engaged in interstate commerce with twenty or more
employees. The EEOC administers the act.
A. PROCEDURES UNDER THE ADEA
• He or she was discharged because of age discrimination.
CASE SYNOPSIS—
contended that when Rodriguez fired her, he told her, “I need someone younger.” Former employees
corroborated this testimony. Rodriguez denied it, and one employee substantiated his version. The court
granted the motion. Mora appealed.
The U.S. Court of Appeals for the Eleventh Circuit vacated and remanded. It was a “disputed question of
Notes and Questions
Why is discrimination presumed under the ADEA when a plaintiff establishes a prima facie case
unless the employer provides a nondiscriminatory explanation for an adverse employment action?
whole or in part.
of the Civil Rights Act of 1964) is because the acts establishing a prima facie case, if otherwise unexplained,
are more likely than not based on the consideration of impermissible discriminatory factors.
What steps should employers take within an organization to reduce the likelihood that
supervisors will make negative comments concerning workers’ ages? Employers must have in place
ANSWER TO “THE ETHICAL DIMENSION”
QUESTION IN CASE 11.3
difficult for them to fire employees for incompetent performance on the job. After all, even if an employer does
make discriminatory-sounding remarks about an employee’s age, does that mean that the employer should
be held liable for age discrimination if the employer fires an employee for poor job performance? Some critics
of the Gross decision point out that the Age Discrimination in Employment Act (ADEA) was in fact modeled on
Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on basis of race, color,
B. REPLACING OLDER WORKERS WITH YOUNGER WORKERS
Termination of an older employee might arguably be for cost-cutting, not discriminatory, reasons.
The Americans with Disabilities Act (ADA) of 1990 was designed to eliminate discriminatory hiring and firing
practices that prevent otherwise qualified disabled workers from fully participating in the national labor force.
16 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
decides not to sue, the plaintiff can bring a suit. Remedies are similar to those under Title VII
(reinstatement, back pay, and compensatory and punitive damages. Criminal fines are also possible. To
succeed in an ADA case a plaintiff must initially show—
• He or she has a disability.
activities. More specifically, a disability in an individual is—
• A physical or mental impairment that substantially limits one or more major life activities.
• A record of such an impairment.
• Being regarded as having such an impairment.
2. Correctable Corrections
The ADA to prohibit employers from considering mitigating measures or medication when
determining whether an individual has a disability.
C. REASONABLE ACCOMMODATION
Employers who do not wish to make such accommodations must show that the accommodations
will cause “undue hardship.” This is subject to a case-by-case determination.
2. Job Applications and Physical Exams
The job application process, including questions and medical exams, must not be discriminatory.
CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 17
whole or in part.
employer, you can do several things to avoid violating the ADA.
BECOME FAMILIAR WITH EEOC GUIDELINES
As a preliminary matter, you should become familiar with the guidelines on job interviews issued by the
candidate, “How would you do the job?”—unless the disability is obvious, the applicant brings up the
subject during the interview, or you ask the question of all applicants.
• Absenteeism. You may ask, “Can you meet our attendance requirements?” or “How many days were you
absent last year?” You may not ask, “How many days were you sick last year?”
• Alcohol use. Generally, employers may ask about a candidate’s drinking habits but not about alcoholism.
Therefore, you may ask, “Do you drink alcohol?” or “Have you been arrested for driving while
intoxicated?” but you may not ask, “How often do you drink?”
• History of job-related injuries. Employers may not ask a job candidate with a disability any questions
though, you should ask such questions only if you ask them of all applicants or if they are follow-up questions
concerning information about the applicant’s disability that she or he already disclosed during a job interview.
OBTAIN LEGAL ASSISTANCE AND INSTRUCT STAFF MEMBERS
18 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
whole or in part.
ADA, the words and phraseology the interviewer uses may result in a violation of the ADA regardless of the
2. Work with an attorney to create a list of particular types of questions that are and are not permissible
under the EEOC’s guidelines with respect to job candidates with disabilities.
3. Make sure that all persons in your firm who interview job applicants are thoroughly instructed as to the
the extent that they may not be treated differently because of their condition.
4. Health-Insurance Plans
A group health-care plan that makes a disability-based distinction in its benefits violates the ADA
unless it can be proved to be a business necessity. Coverage can be limited so long as it is equal
An employer may defend against a claim of disparate-impact discrimination by asserting that a practice
that has a discriminatory effect is a business necessity. If there is a definite connection between the
practice and business, the practice may stand. The text provides an example of a high-school diploma
(the lack of which may effectively discriminate against some minorities).
according to a fair seniority system, an employer has a good defense against some employment-
discrimination suits, including those brought under the ADA.
D. AFTER-ACQUIRED EVIDENCE OF EMPLOYEE MISCONDUCT
After-acquired evidence of the plaintiff’s wrongdoing cannot shield employers from liability for
whole or in part.
A. CONSTITUTIONALITY OF AFFIRMATIVE ACTION PROGRAMS
B. AFFIRMATIVE ACTION IN SCHOOLS
Automatic preference on the basis of a protected characteristic violates the equal protection clause.
