Case: Reid v. Google, Inc.1
Facts: Google’s vice-president of engineering, Wayne Rosing (aged 55), hired Brian Reid (52) as
director of operations and director of engineering. At the time, the top executives at Google were CEO
Eric Schmidt (47), vice-president of engineering operations Urs Hölzle (38), and founders Sergey Brin
(28) and Larry Page (29).
During his two years at Google, Reid’s only written performance review stated that he had consistently
met expectations. The comments indicated that Reid had an extraordinarily broad range of knowledge,
an aptitude and orientation towards operational and IT issues, an excellent attitude, and that he
projected confidence when dealing with fast-changing situations, was very intelligent and creative, and
was a terrific problem solver. The review also commented that “Adapting to Google culture is the
primary task. Right or wrong, Google is simply different: Younger contributors, inexperienced first line
managers, and the super fast pace are just a few examples of the environment.”
According to Reid, even as he received a positive review, Hölzle and other employees made derogatory
age-related remarks such as his ideas were “obsolete,” “ancient,” and “too old to matter,” that he was
“slow,” “fuzzy,” “sluggish,” and “lethargic,” an “old man,” an “old guy,” and an “old fuddy-duddy,” and
that he did not “display a sense of urgency” and “lacked energy.”
Nineteen months after Reid joined Google, he was fired. Google says it was because of his poor
performance. Reid alleges he was told it was based on a lack of “cultural fit.”
Reid sued Google for age discrimination. The trial court granted Google’s motion for summary
judgment on the grounds that Reid did not have sufficient evidence of discrimination. He appealed.
Issues: Did Reid have enough evidence of age discrimination to warrant a trial? Should the summary
judgment motion be granted?
Decision: The trial court was overruled and summary judgment denied.
Reasoning: Google argued that the trial court should have ignored the ageist comments about Reid
because they were “stray remarks,” made neither by decisionmakers nor during the decision process.
But stray remarks may be relevant, circumstantial evidence of discrimination. The jury should decide
how relevant.
An ageist remark, in and of itself, does not prove discrimination. But when combined with other
testimony, it may provide enough evidence to find liability.
Disparate Impact
Disparate impact claims arise when an employer’s actions do not explicitly discriminate, but
nonetheless have an adverse impact on people aged 40 or over. Here, too, the standards are different
under the ADEA than under Title VII. Under the ADEA:
Step 1. The plaintiffs must present a prima facie case that the employment practice in question
excludes a disproportionate number of people 40 and older.
Step 2.The employer wins if it can show that the discriminatory decision was based on a “reasonable
factor other than age.”
Hostile Work Environment
The ADEA prohibits a hostile work environment based on age. A workplace is considered hostile if a
reasonable person would find that intimidation, ridicule, and insult based on age are pervasive.
Bona Fide Occupational Qualication
Age is rarely a BFOQ. To set a maximum age, the employer must show that:
The age limit is reasonably necessary to the essence of the business; and either
Virtually everyone that age is unqualified for the job, or
1 50 Cal. 4th 512, 2010 Cal. LEXIS 7544; Supreme Court of California, 2010.
Age is the only way an employer can determine who is qualified.
Discrimination on the Basis of
Disability
The Rehabilitation Act of 1973
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive
branch of the federal government, federal contractors, and entities that receive federal funds.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) prohibits employers with 15 or more workers from
discriminating on the basis of disability.
A disabled person is
Someone with a physical or mental impairment that substantially limits a major life activity or
the operation of a major bodily function, or
Someone who is regarded as having such an impairment.
Case: Allen v. Southcrest Hospital2
Facts: After some years as a medical assistant at SouthCrest Hospital, Alethia Allen requested a
transfer to work for a different physician in the same hospital. Unfortunately, Allen found her new job
to be much more stressful than the old one. Indeed, it was so stressful that she began suffering severe
migraine headaches several times a week. Prior to this new job, she had only had one migraine
headache in her life.
Ultimately, Allen resigned because of the migraines. The hospital asked that she stay on to cover for
some assistants who were on vacation. Allen agreed to do so and then decided she did not want to quit
after all. But before the hospital made a decision about whether she could stay, she left work one day to
seek treatment for a migraine at the emergency room. That night, the doctors in her practice decided
she could not continue in her job. After leaving SouthCrest, her migraines stopped.
Allen filed suit against SouthCrest for violating the ADA. During discovery, she testified that on most
days, she could care for herself and go to work, but that on days on which she took the migraine
medication, she would come home from work and immediately “crash and burn.” In other words, she
could not care for herself but instead would go straight to bed.
The trial court granted SouthCrest’s motion for summary judgment. Allen appealed.
Issue: Did Allen have a disability that interfered with one or more major life activities?
Decision: No, Allen failed to show that her disability interfered with any major life activities.
Reasoning: Allen alleged that taking migraine medication interfered with her ability to care for herself
in the evenings, which is a major life activity. But even the average person sometimes goes to bed early
and is unable to care for herself when asleep. Allen had to show how much worse off she was than the
average person who sometimes comes home from work exhausted. Furthermore, Ms. Allen needed to
show: how much earlier she went to bed on migraine days, which activities she could not perform, how
long she slept, and whether she could complete in the morning the activities she had failed to do the
night before.
2 U.S. App. LEXIS 25488,UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 2011.
Ms. Allen also alleged that her migraines interfered with her ability to work, which is certainly a
major life activity. However, she had to show that she was unable to perform a general class of jobs for
which she had appropriate training and skills, not one single specific job.
Question: How many employees must an employer have before the American with Disabilities Act
(ADA) prohibits discrimination on the basis of disability?
Question: What is the definition of a disabled person under the American with Disabilities Act
(ADA)?
Answer: (1) Someone with a physical or mental impairment that substantially limits a major life
Question: What did Ms. Allen need to show in order to establish that her migraines interfered with her
ability to work?
Additional Case: Toyota v. Williams3
Facts: When Ella Williams’s doctor diagnosed her with carpal tunnel syndrome, Toyota transferred her
from an assembly line position to a job in Quality Control Inspection Operations (QCIO). Employees in
this department typically performed four different jobs, but Williams was initially assigned only two
tasks. Toyota then changed its policy and required QCIO employees to rotate through all four jobs.
Williams began to perform the “shell body audit.” After applying oil to the outside of cars, she
visually inspected each car for flaws. To perform this task, she had to hold her hands and arms up
around shoulder height for several hours at a time.
A short while after beginning this job, she began to experience pain in her neck and shoulders. She
asked permission to perform only the two tasks that she could do without difficulty. Williams claimed
that Toyota refused this request. Toyota said that Williams simply began missing work regularly.
Ultimately, Williams’s doctor told her she should not do any work of any kind. Toyota fired her.
The Court of Appeals for the Sixth Circuit found that Williams was disabled under the terms of the
ADA because her impairments substantially limited her in the major life activity of performing manual
tasks. The Supreme Court granted certiorari.
Issues: Was Williams disabled, within the terms of the ADA? Did Toyota violate the ADA?
Holding: The Supreme Court reversed the appeals court, holding that to be disabled an individual must
have an impairment that prevents or severely restricts activities that are of central importance to most
people’s daily lives. The impairment’s impact must also be permanent or long-term. In this case, the fact
that the plaintiff could not work with hands and arms extended at or above shoulder levels for extended
periods of time, is not relevant because this is not an important part of most people’s daily lives. As
long as the plaintiff can tend to her personal hygiene and carry out personal or household chores, she is
not disabled.
Question: Could Williams perform her job at Toyota?
Question: Could Williams operate without assistance in her personal life?
Question: Was she disabled, under the terms of the ADA?
Question: Do you agree with this decision? Is it compassionate?
3 534 U.S. 184 (2002).
Answer: The court seemed concerned that, if the ADA covered every worker with carpal tunnel
Question: Why didn’t Toyota let her continue to perform just the two jobs she was capable of
doing?
Accommodating the Disabled Worker
Once it is established that a worker is disabled, employers may not discriminate on the basis of
disability so long as the worker can, with reasonable accommodation, perform the essential functions
of the job. An accommodation is not reasonable if it would create undue hardship for the employer.
Relationship with a Disabled Person
An employer may not discriminate against someone because of his relationship with a disabled person.
For example, an employer cannot refuse to hire an applicant because he has a disabled child or a
spouse with cancer.
Mental Disabilities
Under EEOC rules, physical and mental disabilities are to be treated the same.
Disparate Treatment and Disparate Impact
Both disparate treatment and disparate impact claims are valid under the ADA. The steps in a disparate
treatment case are:
Step 1. The plaintiff must offer prima facie evidence that the employer discriminated because of his
disability.
Step 2. The employer must then offer a legitimate, non-discriminatory reason for its action.
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.
Hostile Work Environment
An employee may bring a claim under the ADA if she is subjected to a hostile work environment
because of her disability.
Genetic Information Nondiscrimination Act
Suppose you want to promote someone to CFO, but you know that her mother and sister both died
young of breast cancer. Is it legal to consider that information in making a decision? Not since
Congress passed the Genetic Information Nondiscrimination Act (GINA). Under this statute,
employers (with 15 or more workers) may not require genetic testing or discriminate against workers
because of their genetic makeup.
Additional Case: Sutton v. United Airlines, Inc.4
United Airlines required its pilots to have uncorrected vision of at least 20/100. It refused to hire twin
sisters with 20/200 vision, even though their vision could be corrected to 20/20. The sisters sued under
the ADA, claiming that United Airlines was discriminating against them because of a disability.
The Supreme Court held that the ADA did not apply because the sisters were not disabled.
Although they could not satisfy the requirements of a particular job, airline pilot, they were not
41999 U.S. LEXIS 4371.
substantially limited in a major life activity–namely, working. There were many other jobs they could
hold, such as flying instructor.5
Question: What is a disabled person?
Question: The twin sisters had 20/200 vision. Were they disabled?
Question: Could you argue that they were not disabled?
Question: But didn’t their impairment prevent them from getting the job they wanted?
Answer: It may have prevented them from getting that particular job, but they were eligible for
Question: How many Americans currently have some disability as defined by the ADA?
Question: How many people have correctable disabilities?
Answer: According to the Supreme Court, more than 160 million Americans have a correctable
Enforcement
Employment laws provide plaintiffs with different enforcement options.
People bringing a claim under the Constitution must file suit on their own.
The Civil Rights Act of 1866: For plaintiffs alleging racial discrimination, the Civil Rights Act
of 1866 offers substantial advantages over Title VII:
A four-year statute of limitations
Unlimited compensatory and punitive damages (which, in one case, amounted to $7
million)
Applicability to all employers, not just those with 15 or more employees
The Rehabilitation Act of 1973: This is enforced by the EEOC (for claims against the executive
branch of the federal government), the Department of Labor (for claims against federal
contractors), and the Department of Justice (for claims against entities that receive federal
funds).
Other Statutory Claims: The EEOC is the federal agency responsible for enforcing Title VII,
the Equal Pay Act, the Pregnancy Discrimination Act, the ADEA, the ADA, and GINA.
Multiple Choice Questions
1. Gregg Young, the CEO of BJY Inc., insisted on calling Mamdouh El-Hakem “Manny” or “Hank”
even when El-Hakem asked him not to. El-Hakem was of Arab heritage. Young argued that a
“Western” name would increase El-Hakem’s chances for success and would be more acceptable to
BJY’s clientele. Does this behavior violate the law?
(a) Yes, Young violated Title VII by discriminating against El-Hakem on the basis of his national
origin.
5
(b) Yes, Young was creating a hostile work environment.
(c) Both (a) and (b).
(d) No, Manny is just a nickname. No harm was intended and, indeed, no harm resulted.
(e) No, because customers did prefer a Western name.
2. The CEO of BankTwo realized that not one single officer of the bank was female or minority. He
announced that henceforth, the bank would only hire people in these two groups until they made up
at least 30 percent of the officers. Is this plan legal?
(a) Yes, voluntary affirmative action plans are always legal.
(b) Yes, because fewer than 20 percent of the officers are female or minority.
(c) No, to be legal, the goal of an affirmative action plan cannot be greater than 20 percent female
or minority.
(d) No, the plan is too unfair to white men, who have no chance of being hired for a long time.
3. When Allain University was looking for a diversity officer, it decided it would only hire a person
of color. Is this decision legal?
(a) Yes, color is a BFOQ for this position.
(b) No, color is never a BFOQ, but race could be.
(c) No, neither race nor color can be a BFOQ.
(d) No, race and color can be a BFOQ, but is not in this situation. A person does not have to be a
member of a minority group to promote diversity.
4. Ralph has worked as model builder at Snowdrop Architects for 30 years. The firm replaces him
with Charlotte who is only 24 and willing to work for 30% less than his salary. The firm never
offered to let him stay for less pay. When he left, one of the partners told him, “Frankly, it’s not a
bad thing to have a cute young person working with the clients.” Which of the following statement
is true?
(a) Snowdrop is liable because it had an obligation to offer Ralph the lower salary before firing
him.
(b) Snowdrop is liable because it is illegal to replace an older worker with a younger one just to
save money.
(c) Snowdrop is liable because age was a factor in Ralph’s firing.
(d) Snowdrop is liable under Title VII because it replaced an old man with a young woman.
(e) Snowdrop is not liable because age was not the deciding factor in Ralph’s firing.
5. During chemotherapy for bone cancer, a delivery person is exhausted, nauseous and weak. He has
asked permission to come in later, work a shorter day and limit his lifting to 10 pounds. Delivery
people typically carry packages of up to 70 pounds. Does Vulcan, his employer, have the right to
fire him?
(a) Vulcan must create a new position so that the employee can do something else.
(b) Vulcan must transfer the employee to another position but only if one is vacant and he is able
to perform it.
(c) Vulcan can fire the man because none of his major life activities have been affected.
(d) Vulcan can fire the man because he cannot perform the essential functions of his job.
(e) Vulcan can fire him because he is not disabled—once the chemotherapy treatments end, he will
feel fine again.
Case Questions
1. Disney World and Abercrombie & Fitch both fired female employees who insisted upon wearing a
Muslim headscarf because such apparel violated the companies’ appearance policies. Can these
employers make reasonable accommodation for this religious practice? Abercrombie also fired a
salesperson who converted to a Christian religion that forbade her from showing skin. When she
showed up for work in an ankle-length skirt, her manager told her she had to either wear jeans or
short skirts with leggings, but she refused. Did Abercrombie violate Title VII in this case?
Answer: In the case involving the Christian religion, the court denied Abercrombie’s motion
2. In the 2008 recession, Roger lost his job as a comptroller. Desperate for work after a year of
unemployment, he began to apply for any accounting job at any company. But no one would hire
him because he was “over-qualified and over-experienced.” He repeatedly explained that he was
eager to fill the job that was available. Have these companies that refused to hire Roger violated
the ADEA?
Answer: In a similar case, the court ruled that, while qualifications and experience are
3. More than 90 percent of employers conduct criminal background checks, and many of these
automatically exclude any job applicant with a criminal record. Is this practice a violation of the
law?
Answer: The EEOC recently ruled that, while employers may legally consider criminal records
in hiring decisions, a policy that excludes all applicants with a conviction could violate Title
4. The Lillie Rubin boutique in Phoenix would hire only women to work in sales because fittings and
alterations took place in the dressing room or immediately outside. The customers were buying
expensive clothes and demanded a male-free dressing area. Has the Lillie Rubin store violated Title
VII? What would its defense be?
Answer: Customer preference is a bona fide occupational qualification only in cases like this
5. FedEx refused to promote José Rodriguez to a supervisor’s position because of his accent and
“how he speaks.” Is FedEx in violation of the law?
Answer: The Sixth Circuit Court of Appeals ruled that this behavior could be illegal discrimination
Discussion Questions
1. In the Griggs disparate impact case, Duke Power based employment decisions on written tests.
Why do employers use these types of tests? When are they appropriate in the hiring or promotion
process?
2. In disparate treatment cases, the plaintiff must show that the defendant intentionally discriminated,
but not in disparate impact cases. Is it fair to hold employers liable when they have not engaged in
intentional wrongdoing?
Answer: Disparate impact cases focus on institutional barriers to equal opportunity. Job
3. Generally, the BFOQ defense does not apply to customer preference. But recently, some clients
have been pressuring their law firms to staff their cases with female and minority lawyers. If a firm
does so, would the BFOQ defense be valid? Should it be?
4. Pam Huber worked at Wal-Mart as a grocery order filler, earning $13 an hour. While on the job, she
suffered a permanent injury to her right arm and hand. Both she and Wal-Mart agreed that she was
disabled under the ADA. As a reasonable accommodation, she asked for a job as a router, which
was then vacant. Although she was qualified for that job, she was not the most qualified. Wal-Mart
filled the job with the most qualified person. It offered Huber a position as a janitor at $6.20 per
hour. Did Wal-Mart violate the ADA?
Answer: The court ruled that Wal-Mart was not in violation of the ADA. An employer is not
5. ETHICS Mary Ann Singleton was the librarian at a maximum security prison located in Tazewell
County, Virginia. About four times a week, Gene Shinault, assistant warden for operations,
insistently complimented Singleton; stared at her breasts when he spoke to her; on one occasion, he
measured the length of her skirt to judge its compliance with the prison’s dress code and told her
that it looked “real good”; constantly told her how attractive he found her; made references to his
physical fitness, considering his advanced age; asked Singleton if he made her nervous (she
answered “yes”); and repeatedly remarked to Singleton that if he had a wife as attractive as
Singleton, he would not permit her to work in a prison facility around so many inmates. Shinault
told Singleton’s supervisor in her presence, “Look at her. I bet you have to spank her every day.”
The supervisor then laughed and said, “No. I probably should, but I don’t.” Shinault replied, “Well,
I know I would.” Shinault also had a security camera installed in her office in a way that permitted
him to observe her as she worked. Singleton reported this behavior to her supervisor, who simply
responded, “Boys will be boys.” Did Shinault sexual harass Singleton? Whether or not Shinault
violated the law, what ethical obligation did Singleton’s supervisor have to protect her from this
type of behavior?
Answer: The Fourth Circuit Court of Appeals ruled that this behavior did not constitute sexual
harassment. While boorish and offensive, it was not sexual in nature. Shinault never requested a
6. Ronald Lockhart, who was deaf, worked for FedEx as a package handler. Although fluent in
American Sign Language, he could not read lips. After 9/11, the company held meetings to talk
about security issues. Lockhart complained to the EEOC that he could not understand these
discussions. FedEx fired him. Has FedEx violated the law?
Answer: The EEOC ruled that FedEx should have provided a sign-language interpreter during