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Suggested Additional Assignments
Research: Sexual Harassment Policies
Ask students who are employed to find their company’s sexual harassment policy. What type of behavior
does it prohibit? What are the procedures for complaining about harassment? Do they think it is
comprehensive? What, if any, changes would they make to the policy?
Presentation: Employment Issues
Ask students to choose an issue of employment law that they or a colleague has experienced at work.
They should present the facts, an analysis of the legal issues and the ruling that they would issue if they
were the judge in the case. This assignment can be either written or oral, prepared either individually or in
teams.
Chapter Overview
Chapter Theme
This chapter is the story of how the United States has travelled the long and bumpy road toward equality
of opportunity in the workplace.
Quote of the Day
Introduction
The United States has travelled the long and bumpy road toward equality of opportunity in the workplace.
This story begins after the Civil War, when a torn and bleeding country sought to protect the rights of
freed slaves and undo the terrible harm of a century of slavery. The country began by ratifying three
Constitutional amendments: the Thirteenth prohibits slavery, the Fourteenth guarantees due process of law
and equal protection under the law, and the Fifteenth prohibits restrictions on the right to vote because of
race or color. In addition, Congress passed the Civil Rights Act of 1866, which provided that all people
born in the United States (except Native Americans) were citizens of the United States and had the same
rights as white citizens.1
The United States Constitution
The Fifth Amendment to the Constitution prohibits the federal government from depriving individuals of
“life, liberty, or property” without due process of law. The Fourteenth Amendment prohibits state
governments from violating an individual’s right to due process and equal protection. The courts have
interpreted these provisions to prohibit employment discrimination by the federal, state, and local
governments.
Civil Rights Act of 1866
As we have seen, the Civil Rights Act of 1866 was meant to provide freed slaves with the same rights as
white citizens. It has been interpreted to prohibit racial discrimination in both private and public
employment (except it does not apply to the federal government).
Title VII of the Civil Rights Act of 1964
Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to
discriminate on the basis of race, color, religion, sex, or national origin. Discrimination under Title VII
1 42 USC 21 §1981
applies to every aspect of the employment process, from job ads to postemployment references, and
includes hiring, firing, promoting, placement, wages, benefits, and working conditions of anyone who is
in one or more of the so-called protected categories under the statute.
Disparate Treatment
To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others
because of her sex, race, color, religion, or national origin. Note that the burden of proof is on the
plaintiff: she must prove that the employer intentionally discriminated, but this motive can be inferred
from the mere fact of differences in treatment
The required steps in a disparate treatment case are:
Step 1. The plaintiff presents evidence that:
He belongs to a protected category under Title VII.
He was treated differently from other similar people who are not protected under Title
VII.
If the plaintiff can show these facts, he has made a prima facie case. The plaintiff is not
required to prove discrimination; he need only create a presumption that discrimination
occurred.
Step 2. The defendant must present evidence that its decision was based on legitimate,
non-discriminatory reasons.
Step 3. To win, the plaintiff must now prove that the employer intentionally discriminated. She
may do so either by showing that (1) the reasons offered were simply a pretext, or (2) that a
discriminatory intent is more likely than not.
You Be The Judge: Jespersen v. Harrah’s2
Facts: Darlene Jespersen was a bartender at Harrah's Casino in Reno, Nevada. She was an outstanding
employee, praised by both customers and her supervisors. After Jespersen had been at Harrah’s for almost
20 years, the casino implemented a program whose goal was to create a "brand standard of excellence.”
The program required men to have short hair and to keep their nails neatly trimmed. Women had to wear
makeup. An expert was brought in to show the employees how to dress. The workers (both male and
female) were then photographed and told that they must look like the photographs every day at work.
Jespersen refused to wear makeup. She was told either to comply or to apply for a position that did
not require makeup. When she did neither, Harrah’s fired her. Jespersen sued under Title VII. The district
court granted Harrah's motion for summary judgment. Jespersen appealed.
You Be The Judge: Did Harrah’s requirement that women wear makeup violate Title VII?
Holding: Judgment for Harrah’s. Although this was only a summary judgment motion, the court held for
Harrah’s on the grounds that:
1. Jespersen had not introduced evidence that Harrah’s policy imposed a heavier burden on women
than on men. The court did not permit Jespersen to go to trial to introduce such evidence, nor
would the court take judicial notice that makeup costs money and takes time to apply.
2. The issue under Title VII is not whether the policies for men and women are different, but
whether the policy imposed on women creates an "unequal burden.” Certainly, the policies are
different, but none on its face places a greater burden on one gender than the other.
3. The appearance policy applied to both male and female bartenders, and was aimed at creating a
professional and very similar look for both of them.
4. There was no evidence that the grooming policy was motivated by sex stereotyping.
2 444 F.3d 1104; 2006 U.S. App. LEXIS 9307(9th Cir.) 2006.
Question: Harrah’s “Personal Best” policy establishes different requirements for men and women.
Isn’t that illegal?
Question: Do you mean it is legal to treat men and women differently in the workplace?
Question: But women had to wear makeup and men didn’t. Isn’t that a heavier burden?
Question: Isn’t that obvious? Did the court think that makeup is free?
Answer: The court compared the overall burden imposed on women versus men, not just the makeup
General Question: Did the policy impose equal burdens on male and female employees?
Disparate Impact
Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in practice
excludes too many people in a protected group.
KLandmark Case: Griggs v. Duke Power Co.3
Facts: Before Title VII, Duke Power hired black employees only in the labor department, where the
highest pay was less than the lowest earnings in the other departments. After Title VII, the Company
required all new hires for jobs in the desirable departments to have a high school education or satisfactory
scores on two tests that measured intelligence and mechanical ability. Neither test gauged the ability to
perform a particular job. The pass rate for whites was much higher than for blacks and blacks were also
less likely than whites to have a high school diploma. The new policy did not apply to the (exclusively
white) employees who were already working in the preferred departments. These “unqualified” whites all
performed their jobs satisfactorily.
Black employees sued Duke Power, alleging that this hiring policy violated Title VII. The trial
court dismissed the case. The Court of Appeals ruled that the policy was not in violation of Title VII
because Duke Power did not have a discriminatory purpose. The Supreme Court granted certiorari.
Issue: Does a policy violate Title VII if it has a discriminatory impact but no discriminatory purpose?
Excerpts from Chief Justice Burger’s Decision: Congress did not intend by Title VII to guarantee a job
to every person regardless of qualifications. What is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate
on the basis of racial or other impermissible classification.
The Act proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business necessity. If an employment practice, which
operates to exclude Negroes, cannot be shown to be related to job performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the general
intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for
which it was used. Both were adopted without meaningful study of their relationship to job performance
ability. Rather, the requirements were instituted on the Company's judgment that they generally would
improve the overall quality of the work force. The evidence, however, shows that employees who have
3 401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134, United States Supreme Court, 1971.
not completed high school or taken the tests have continued to perform satisfactorily and make progress
in departments for which the high school and test criteria are now used.
[G]ood intent or absence of discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to
measuring job capability. Congress directed the thrust of the Act to the consequences of employment
practices, not simply the motivation. More than that, Congress has placed on the employer the burden of
showing that any given requirement must have a manifest relationship to the employment in question.
History is filled with examples of men and women who rendered highly effective performance
without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.
Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that
they are not to become masters of reality.
Nothing in the Act precludes the use of testing or measuring procedures; obviously, they are
useful. What Congress has commanded is that any tests used must measure the person for the job and not
the person in the abstract.
The judgment of the Court of Appeals is reversed.
Reasoning: Under Title VII, employers may establish job requirements that exclude more blacks than
whites, but only if the requirements are necessary to do that particular work. In this case, there was no
evidence that either a high school diploma or the two tests bore any relationship to the job in question.
Indeed, white employees without any of these qualifications had been doing the jobs well for years, and
had even been promoted.
Whether or not Duke Power intended to discriminate is irrelevant. Title VII is concerned with the
consequences of an employer’s practices, not its motivation. The burden is on the employer to show that
all job requirements have an important relationship to the work in question. Any tests must measure the
person for the job and not the person in the abstract.
Question: What is a factor that the court looked at to determine if Duke Power had a discriminatory
purpose?
Question: What does disparate impact mean?
Answer: The employer or management may enact a policy or regulation that is, on its face,
The steps in a disparate impact case are:
Step 1. The plaintiff must present a prima facie case. The plaintiff is not required to prove
discrimination; he need only show a disparate impact—that the employment practice in question
excludes a disproportionate number of people in a protected group (women and minorities, for
instance).
Step 2. The defendant must offer some evidence that the employment practice was a job-related
business necessity.
Step 3. To win, the plaintiff must now prove either that the employer’s reason is a pretext or that
other, less discriminatory rules would achieve the same results.
Hostile Work Environment
Employers violate Title VII if they permit a work environment that is so hostile towards people in a
protected category that it affects their ability to work. This rule applies whether the hostility is based on
race, color, religion, sex, or national origin. Many people assume that race and color are the same, but this
is not necessarily the case. Title VII prohibits behavior that discriminates against people due to the shade
of color of their skin, even by people of the same race. (As we shall see, this rule also applies to those
treated badly because of pregnancy, age, or disability.) This concept of hostile environment first arose in
the context of sexual harassment.
Sexual Harassment. Everyone has heard of sexual harassment, but few people know exactly what it is.
Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature. There are two major categories of sexual harassment: (1) quid pro
quo and (2) hostile work environment.
Named for a Latin phrase that means “one thing in return for another,” quid pro quo harassment occurs if
any aspect of a job is made contingent upon sexual activity. Offensive jokes, intrusive comments about
clothes or body parts, and public displays of pornographic pictures can create a hostile environment.
These offensive remarks can be conveyed through any form of communication including texting, email
and in person.
Case: Teresa Harris v. Forklift Systems, Inc.4
Facts: Teresa Harris was a manager at Forklift Systems; Charles Hardy was its president. Hardy
frequently made inappropriate sexual comments to Harris and other women at the company. For example,
he said to Harris, in the presence of others, "You're a woman, what do you know?" and "We need a man as
the rental manager." He called her "a dumb ass woman" and suggested that the two of them "go to the
Holiday Inn to negotiate her raise." He also asked Harris and other female employees to get coins from
his front pants pocket. He insisted that Harris and other women pick up objects he had thrown on the
ground. When Harris complained to Hardy, he apologized and claimed he was only joking. A month later,
while Harris was arranging a deal with one of Forklift's customers, he asked her, in front of other
employees, "What did you do, promise the guy some sex Saturday night?"
Harris sued Forklift, claiming that Hardy had created an abusive work environment. The federal trial court
ruled against Harris on the grounds that, while Hardy's comments might offend a reasonable woman, they
were not severe enough to have a serious impact on Harris's psychological well-being. The appeals court
confirmed, and the Supreme Court granted certiorari.
Issue: To be a violation of Title VII, must sexual harassment seriously affect the employee's psychological
well-being?
Decision: No, a hostile or abusive environment violates Title VII, whether or not the plaintiff suffered
psychological injury.
Reasoning: Title VII is not limited to economic or tangible discrimination. A workplace loaded with
intimidation, ridicule, and insult creates an abusive environment that violates Title VII.
Merely uttering a swear word or two is not a violation because a reasonable person would not find that
hostile or abusive. But Title VII does come into play before the victim has a nervous breakdown. An
abusive environment that does not seriously affect employees' psychological well-being, nonetheless, may
detract from their job performance and keep them from advancing in their careers. If the environment
would reasonably be perceived, and is perceived, as hostile or abusive, Title VII does not require it also to
be psychologically injurious.
Question: What is sexual harassment?
Question: What are the two major categories of sexual harassment?
4 510 U.S. 17, 114 S. Ct. 367, 1993 U.S. LEXIS 7155 United States Supreme Court, 1993.
Question: Which type was present in this case?
Additional Case: Lyle v. Warner Brothers Television Productions5
Students often believe that a company can be held liable for even mild sexual behavior on the part of
employees. In reality, successful sexual harassment cases typically involve extreme behavior. The
following case is an example where extreme behavior was found not to be sexual harassment.
Facts: Amaani Lyle was a comedy writers’ assistant who worked on the production of the television show
Friends. The show revolved around a group of young, sexually active adults, featured adult-oriented
sexual humor, and typically relied on sexual language and gestures to convey its humor. Before Lyle was
hired, she had been warned in the interview that the show dealt with sexual matters and that as an
assistant to the writers, she would be listening to and transcribing their sexual jokes and discussions about
sex likely to be used for scripts. Lyle responded that sexual discussions would not make her
uncomfortable. She was hired as a writers’ assistant.
Four months later, Lyle was fired because of problems with her typing and her transcription. Lyle
sued claiming the writers’ use of sexually coarse and vulgar language and conduct was sexual harassment
based on a hostile work environment. Warner Brothers filed a motion for summary judgment claiming the
behavior of the writers was not severe or pervasive. The trial court granted Warner Brother’s motion and
Lyle appealed.
Issue: Did the writers’ use of coarse and vulgar language constitute a hostile work environment?
Holding: No, the defendant’s motion for summary judgment was affirmed. According to the court, Lyle
testified that she had no recollection of any employee of the Friends production ever saying anything
sexually offensive about her directly, nor anyone asking her out on a date or sexually propositioning her.
No one ever demanded sexual favors from Lyle or physically threatened her.
However, there were a number of offensive discussions and actions that occurred in the writers’
meetings that Lyle was required to attend. For example, the writers regularly discussed their preferences
in women and sex in general. One writer spoke of his preference for blondes, a certain bra cup size and
“getting right to sex” and “not messing around with too much foreplay.” Another writer discussed his love
of young girls and cheerleaders, spoke of oral sex experiences, and told the group that when he and his
wife would fight, he would “get naked” and then they would never finish the fight. A writer kept a
notebook with graphic drawings that was sometimes left open on his desk or the writers’ assistants’ desks.
The writers also spoke openly in a demeaning manner about one of the actresses on the show, making
jokes about whether she was competent in sexually servicing her boyfriend.
According to the court, in order to bring a successful hostile work environment claim, Lyle must
show that the conduct complained of was severe or pervasive to alter her work conditions and create a
hostile environment because of her sex. Thus, it is the difference in treatment based on Lyle’s sex, not the
mere discussion of sex or use of vulgar language that is the essence of her claim. A hostile work
environment claim is not established where a supervisor or coworker simply uses crude or inappropriate
language in front of an employee or draws a vulgar picture without directing sexual innuendos or
gender-related language at the employee or women in general. In addition, the court must look carefully
at the social context in which this behavior occurred.
Based on this, according to the court, the context of the show being a creative workplace focused on
generating scripts for an adult-themed show with sexual themes is significant in assessing the existence of
a hostile work environment. Both male and female writers discussed their sexual experiences to generate
material for the show. The record shows that the sexual antics did not involve or were not aimed at Lyle or
any other female employee. Moreover, there was no indication that the vulgar discussions affected Lyle’s
5 2006 Cal. LEXIS 4719, Supreme Court of California, 2006.
work hours or duties. While the conduct was certainly sexual in nature, a court could not find that had
Lyle been a man she would not have been treated in the same manner.
Question: There was some graphic conversation at the writers’ table. How could the court not find it
created a hostile work environment?
Answer: The court felt that the comments were never directed at Lyle, her work conditions were
Question: Do you think it is meaningful that the writers warned Lyle in her interview that there
would be lowbrow humor?
Answer: The fact that Lyle was warned in the interview about the atmosphere is important to show
that she knew what she was getting into by accepting the position, but not wholly relevant to her
Additional Assignment:
Students who researched sexual harassment policies could present their findings here.
Same-Sex Harassment. Suppose that one man makes unwelcome sexual overtures to another man in the
workplace. The Supreme Court ruled that same-sex harassment is also a violation of Title VII.
Employer Liability for Sexual Harassment. The Supreme Court has held that:
The company is liable if it knew or should have known about the conduct and failed to stop it.
Even if the company was unaware of the misbehavior, it is nonetheless liable if the victimized
employee suffered a “tangible employment action” such as firing, demotion, or reassignment.
If the company was unaware of the behavior and the victimized employee did not suffer a
tangible employment action, the company is still liable unless it can prove that (1) it used
reasonable care to prevent and correct sexually harassing behavior, and (2) the employee
unreasonably failed to take advantage of the complaint procedure or other preventive
opportunities provided by the company.6
Retaliation
Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a
claim under the statute, or take part in an investigation or hearing. Retaliation means that the employer
has done something that would deter a reasonable worker from complaining about discrimination.
Religion
Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers
must make reasonable accommodation for a worker’s religious practices unless the request would cause
undue hardship for the business.
Sex
In a landmark case that defined this provision of Title VII, the Supreme Court ruled “gender must be
irrelevant to employment decisions.”
6 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (S. Ct. 1998); Faragher v. Boca Raton, 524 U.S. 775 (S. Ct. 1998).
Family Responsibility Discrimination
In studies, participants repeatedly rank mothers as less qualified than other employees and fathers as most
desirable, even when their credentials are exactly the same. Increasingly, courts have held that parenthood
is a protected category under Title VII. For example, after Dawn Gallina, an associate at the Mintz, Levin
law firm, revealed to her boss that she had a young child, he began to treat her differently from her male
colleagues and spoke to her “about the commitment differential between men and women.” The court
ruled that her belief of illegal discrimination was reasonable
Sexual Orientation
Neither Title VII nor any other federal statute protects against discrimination based on sexual orientation
(being gay). However, President Bill Clinton did sign an executive order prohibiting discrimination based
on sexual orientation in federal training and education programs. In addition, almost half the states and
hundreds of cities have statutes that prohibit discrimination based on sexual orientation.
Gender Identity
The EEOC recently ruled that discriminating against someone for being transgender is a violation of Title
VII.
Defenses to Charges of Discrimination
Under Title VII, the defendant has four possible defenses.
Merit.
A defendant is not liable if he shows that the person he favored was the most qualified.
Seniority.
A legitimate seniority system is legal, even if it perpetuates past discrimination.
Bona Fide Occupational Quali6cation (BFOQ).
An employer is permitted to establish discriminatory job requirements if they are essential to the position
in question. Only religion, sex, or national origin can be a BFOQ—never race or color.
A9rmative Action. Affirmative action is not required by Title VII, nor is it prohibited.
Example: Bona Fide Occupational Quali6cation
Increasingly, women prefer female gynecologists and obstetricians (OB-GYNs). Since 72 percent of the
doctors in the field are men, women OB-GYNS are in high demand. Women OB GYN residents receive
more job offers than their male colleagues, at higher starting salaries. Some women are opening all female
practices and refusing to hire men.
Question: If a hospital or clinic refused to hire male OB-GYNs, would it be in violation of Title VII?
Answer: To win a disparate treatment case under Title VII of the Civil Rights Act, the plaintiff must show
Question: Would the hospital have a defense?
Answer: It would argue that sex is a bona fide occupational qualification (BFOQ) for a job as an OB
GYN.
Question: Is this a legitimate defense?
Answer: It is difficult to predict how a court would rule. There are two countervailing arguments:
Equal Pay Act of 1963
Under the Equal Pay Act, an employee may not be paid at a lesser rate than employees of the opposite sex
for equal work.
Pregnancy Discrimination Act
Under the Pregnancy Discrimination Act, an employer may not fire, refuse to hire, or fail to promote a
woman because she is pregnant. The Act also protects a woman’s right to terminate a pregnancy.
Age Discrimination in Employment Act
Under the Age Discrimination in Employment Act (ADEA), an employer with 20 or more workers may
not fire, refuse to hire, fail to promote, or otherwise reduce a person’s employment opportunities because
he is 40 or older. Nor may an employer require workers to retire at a certain age. (This retirement rule
does not apply to police and top-level corporate executives.) The goal of the statute is to counteract
stereotypes about the abilities of older workers. A plaintiff in an age discrimination case can show
discrimination in three ways: disparate treatment, disparate impact, and hostile work environment.
Disparate Treatment
In a disparate treatment claim, the plaintiff must show that the employer intentionally discriminated
against him because of his age, or enacted a policy that intentionally treated employees differently
because of their age. Proof of intent involves obvious statements and behavior or more subtle
circumstantial evidence.
Under the ADEA, a disparate treatment case requires three steps.
Step 1. The plaintiff must show that:
He is 40 or older.
He suffered an adverse employment action.
He was qualified for the job for which he was fired or not hired.
He was replaced by a younger person.
Step 2. The employer must present evidence that its decision was based on legitimate, non-discriminatory
reasons.
Step 3. The plaintiff must now show that the employer’s reasons are a pretext and, in fact, the employer
intentionally discriminated.
