Chapter 39
EQUAL EMPLOYMENT OPPORTUNITY LAW
RESTATEMENT
Equal employment opportunity is a strong public policy achieved through the antidiscrimination statutes found in
Title VII, its amendments and several related statutes.
Title VII prohibits disparate treatment whereby protected classes are treated differently from others. Title VII also
prohibits disparate impact policies which are neutral on their face but have a significant adverse impact on
protected classes.
Title VII is enforced by the EEOC. Charges are brought by the EEOC based on complaints filed by a charging
party (current employee, former employee or job applicant).
The protected classes under Title VII are age, race, religion, national origin, gender, and disability. Discriminatory
treatment of individuals in any of these categories is a violation of Title VII. Discrimination can occur through
testing, sexual harassment, or pay disparity. Affirmative action programs are permissible to allow an employer to
address the problem of underrepresentation of protected classes in the workplace.
U.S. citizens employed in foreign countries by American-owned or -controlled companies are protected under
Title VII unless compliance would violate the law.
STUDENT LEARNING OUTCOMES
LO.1: Explain the difference between the disparate treatment theory of employment discrimination and the
disparate impact theory of employment discrimination.
LO.2: List and explain the categories of individuals protected against unlawful employment discrimination
under Title VII.
LO.3: Recognize, and know the remedies for, sexual harassment in the workplace.
LO.4: Explain the antiretaliation provision of Title VII.
LO.5: List and explain the laws protecting equal pay for women and men for equal work, as well as the laws
forbidding discrimination, on the basis of age and against individuals with disabilities.
LO.6: Explain how both Title VII of the Civil Rights Act and the ADA protect from discrimination U.S. citizens
working in foreign countries for American-owned and American-controlled businesses.
INSTRUCTOR’S INSIGHTS
Break the chapter down into four components – related Learning Outcomes are indicated in ( ):
1. What is Title VII of the Civil Rights Act and what does it do?
2. What are the protected classes and exceptions under Title VII?
Cover the various protected classes under Title VII: race, color, religion, sex, sexual harassment, and
national origin (LO.2 and LO.3)
3. What other EEO laws apply in the workplace?
Cover equal pay rights (LO.5)
4. What laws govern extraterritorial employment? (LO.6)
CHAPTER OUTLINE
I. What is Title VII of the Civil Rights Act and What Does It Do? (See Figure 39-1 in text for overview)
A. Theories of discrimination
CASE BRIEF: Griggs v. Duke Power Company
401 U.S. 424 (1971)
FACTS: Griggs and other black employees of the defendant challenged the high school diploma
requirement and the passing of a standardized general intelligence test in order to transfer to
more desirable jobs in the company. The district court and the court of appeals found no
violation of Title VII. The case was appealed to the U.S. Supreme Court.
ISSUE: Does an employer deny equal employment opportunity to a prospective job applicants when the
employer requires the applicant to pass facially neutral tests or meet qualifications that are
unrelated to the performance of the task?
HOLDING: No. The purpose of Title VII is to achieve equal employment opportunities and remove barriers
that have operated in the past to favor white employees over other employees. Tests and
REASONING: Equal protection under the law is guaranteed by the 14th Amendment. “No person shall be
denied equal protection of the law by any state.” What this essentially means is that a particular
individual will be treated in a manner similar to others by the state. Even though Alexis de
Tocqueville noted the spirit of equality among the recently de-colonized people of the fledgling
republic, it was not until after the Civil War that this protection of individual liberties arose. But it
is important to remember that Title VII is not the amendment itself. Title VII is a statute enacted
by Congress to extend the 14th Amendment’s guarantee of equal protection into the private
employment sector. The power of Title VII to affect the private employer comes directly from
Congress’ power to regulate interstate commerce.
B. The Equal Employment Opportunity Commission
1. Five members appointed by the President
2. Procedures
c. Types of cases
i. Pattern-or-practice cases – employer’s standard operating procedure is discriminatory
3. Damages
a. Back pay
4. Arbitration option
5. Definition of “Supervisor”
CASE BRIEF: Vance v. Ball State University
133 S. Ct. 2434 (2013)
FACTS: Maetta Vance sued her employer, Ball State University (BSU), alleging that a fellow employee,
Saundra Davis, created a racially hostile work environment in violation of Title VII. The trial court
dismissed the case because Davis was not a “supervisor”, and the matter progressed to the
U.S. Supreme Court for resolution.
ISSUE: Is Saundra Davis a supervisor under Title VII of the Civil Rights Act of 1964?
REASONING: An employee is a “supervisor” for purposes of vicarious liability under Title VII only if the
individual is empowered by the employer to take tangible employment actions against the
victim, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits. Davis had no such
authority.
II. What are the Protected Classes and Exceptions Under Title VII?
A. Protected classes and exceptions
1. Race and color – race: white, black, Native American, Asian Pacific
2. Religion
b. Garments worn for religious reasons
3. Sex
a. Gender, not orientation
b. Height, weight, and physical ability requirements – must show that criteria are job-related
4. Sexual harassment (See Figure 39-2 in text)
a. Discuss quid pro quo harassment or tangible employment action (sexual favors as a condition of
employment)
b. Discuss hostile working environment and injunctive relief
c. Discuss new Supreme Court cases to cover rationale or objective of Title VII vis-à-vis
harassment
AUTHORS’ COMMENT: In Ellison v. Brady, (CA 9 Cal) 924 F. 2d 872 (1991), a ninth circuit court of appeals
majority opinion adopted a reasonable-woman standard. The majority opinion listed certain law review articles
that assert that the characteristically male view depicts sexual harassment as harmless amusement. From
reading current news reports on sexual harassment from all areas of the country, many males who have
perpetrated acts of sexual harassment do not understand what constitutes sexual harassment versus acceptable
conduct. Clearly, a major problem exists in our society. Students may be assigned the Ellison decision and the
law review articles cited in Ellison. Students could also be assigned the case of Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486 (M D Fla. 1991), so they see the extent to which the work environment of the
previously all-male worksite was sexualized and so they understand the extensive court order deemed necessary
to correct the situation, including the requirements of education and training.
The dissenting judge in Ellison was puzzled by the fact that men do not see things as women do. As reasonable
persons, and under a reasonable-person test, it may be argued that persons sensitive to the feelings of
coworkers will see objectionable conduct for what it is, regardless of whether a man or woman judges the
conduct in question. Ultimately, the resolution to the problem is to aggressively educate workers to be sensitive
to the issues of sexual harassment and to understand what conduct offends reasonable members of the opposite
sex.
CASE BRIEF: Burlington Northern Santa Fe Railway Co. v. White
548 U.S. 53 (2006)
FACTS: Shelia White was hired by the BNSF Railway as a track laborer at the Carrier’s Tennessee Yard.
She was the only woman in the track department. When hired she was given the job of forklift
operator, as opposed to the ordinary track labor tasks. Three months after being hired, she
complained to the Roadmaster that her foreman treated her differently than male employees,
and twice made inappropriate remarks. The foreman was suspended without pay for ten days
and ordered to attend sexual harassment training. Also, at that time, the Roadmaster
reassigned the forklift duties to the former operator who was “senior” to White, and assigned
White to track labor duties. Six months into her employment, White refused to ride in a truck as
directed by a different foreman, and she was suspended for insubordination. Some thirty-seven
days later, she was reinstated with full back pay and the discipline was removed from her
record. She filed a complaint with the EEOC claiming the reassignment to track laborer duties
was unlawful gender discrimination and retaliation for her complaint about her treatment by the
foreman. The 37-day suspension led to a second retaliation charge. A jury rejected her gender
discrimination claim and awarded her compensatory damages for her retaliation claims. BNSF
appealed, contending that Ms. White was hired as a track laborer and it was not retaliatory to
assign her to do the work she was hired to do. And, it asserts that the suspension of 37-days
was corrected and she was made whole for her loss.
ISSUE: Did White’s suspension and demotion to track laborer constitute gender discrimination and
retaliatory action?
REASONING: The Supreme Court held that the jury could reasonably conclude that the reassignment from
forklift operator to track laborer duties would have been materially adverse to a reasonable
employee, thus constituting retaliatory discrimination. Moreover, the Court held that an
indefinite suspension without pay for a month, even if the employee later received back pay,
could well act as a deterrent to filing a discrimination complaint.
DISCUSSION POINTS: Have the students discuss the Burlington Northern Santa Fe Railway Co. v. White case,
which sets forth the elements of retaliatory discrimination and the remedy provided.
DISCUSSION POINTS: Thinking Things Through
Retaliation – The Number One Risk for Employers
Explain the broader definition of retaliation and steps employers should take, including a comprehensive
program.
5. National origin – all nationalities
6. Title VII Exceptions
a. Bona fide occupational qualification exception
CASE BRIEF: UAW v. Johnson Controls, Inc.
499 U.S. 187 (1991)
FACTS: The defendant manufactured lead batteries. Occupational exposure to lead entails health risk,
including harm to a fetus. Eight employees became pregnant while maintaining blood lead
levels exceeding acceptable standards. As a result, Johnson barred all women, except those
whose infertility was medically documented, from jobs involving actual or potential lead
exposure exceeding the safety standards. The plaintiffs claimed that this policy constituted sex
discrimination. Judgment was for the defendant. The court of appeals affirmed. Case
appealed to the U.S. Supreme Court.
ISSUE: When the occupational risk is similar for both men and women, under Title VII, is it unlawful
discrimination on the basis of gender for an employer to exclude women from such a job?
HOLDING: Yes. The defendant’s policy classified on the basis of gender and child-rearing capacity, rather
than fertility alone. The defendant did not seek to protect the unconceived children of all of its
employees. Despite evidence in the record that lead exposure can also harm the male
REASONING: This is a curious case decided on what appears to be theoretical grounds alone. There
probably will be no liability for JCI if it fully informs its women employees of the risk to their
unborn children by continued exposure to lead (assuming that JCI has not acted negligently).
However, this ignores the reality that children will be born with defects because some women
will assume the risk of continuing to work in that hazardous environment. Thus, the state will
likely bear the additional cost of care and education of these unfortunate children. The state
will also suffer the loss of a productive future citizen because of a short-sighted mother ’s desire
to continue working. As this discussion now points to and the author ’s comment suggests
below, it is for Congress to enact legislation to prevent such occurrences.
JCI will probably bear no liability unless JCI has acted negligently. A finding of negligence would
depend on whether the levels of lead exposure at JCI is inherent to the production of batteries
and cannot be reasonably mitigated. If however the exposure to lead can be reasonably
mitigated and JCI does nothing, JCI can be held liable for negligence in an action by the unborn
child. On the other hand, worker ’s compensation would likely make the whole issue of
negligence moot for the mother’s own cause of action.
AUTHORS’ COMMENT: The Johnson Controls case deals with exposure to lead in a manufacturing plant.
However, the Court’s decision broadly applies to all sorts of employees, including x-ray technicians in hospitals as
well as employees who use video display terminals or who make semiconductor computer chips. Students may
be asked to consider and comment on the Supreme Court’s concluding language:
It is no more appropriate for the Courts than it is for individual employers to decide whether a woman ’s
reproductive role is more important to herself and her family than her economic role. Congress has left
this choice to the woman as hers to make.
It may be argued by some that fetal health is relegated to a secondary role behind material reproductive
choice and family material prosperity. However, Title VII does not allow intrusions by employers into the
domain of private family decision making. It may be that prenatal injuries are one of the costs of Title
VII. As new health and safety information develops, Congress may desire to adjust the law relating to
fetal protection in conjunction with OSHA and the EEOC.
B. Affirmative action and reverse discrimination
1. Permissible AAPs
a. Voluntary
b. Temporary
2. Reverse discrimination – adverse impact on whites
3. Executive order – government contractors must have affirmative action
III. What Other EEO Laws Apply in the Workplace?
A. Equal pay
CASE BRIEF: Renstrom v. Nash Finch Co.
787 F. Supp. 2d 961 (D. Minn. 2011)
FACTS: The plaintiff, Jeannette Renstrom, was the head grocery buyer at wholesale food distributor,
Nash Finch Co., at its St. Cloud, Minnesota, distribution center. She sued her employer under
the Equal Pay Act contending Nash Finch paid her less than two male head grocery buyers, Bill
Crosier, the head grocery buyer for the Omaha distribution center and 18 military facilities, and
Dale Ebensteiner, the head grocery buyer for both the Fargo and Minot distribution centers.
ISSUE: Did Nash Finch violate the Equal Pay Act?
REASONING: The statutory term “establishment” refers to a distinct physical place of business rather than an
entire business or enterprise. Because Renstrom did not work at the same establishment as the
two comparators, her claim under the EPA was dismissed. Moreover, Ms. Renstrom did not
meet her burden to show the jobs required equal effort, with the two comparators performing
“double work”.
B. Age discrimination
CASE BRIEF: Rhodes v. Guiberson Oil Tools, Inc.
75 F. 3d 989 (5th Cir. 1996)
FACTS: Calvin Rhodes began his employment with Dresser Industries in 1955 as an oil industry
salesman. In the throes of a severe economic downturn, Rhodes took a job selling oil field
equipment at another Dresser company that became Guiberson Oil Tools. After seven months
he was discharged and told the reason was a reduction in force but that he would be eligible for
rehiring. At that time he was 56 years old. Within two months Guiberson hired a 42-year-old
salesperson to do the same job. Rhodes sued Guiberson for violating the ADEA. A jury found
for plaintiff Rhodes, but a divided panel of the U.S. Court of Appeals for the Fifth Circuit
rendered judgment for the employer. The matter was reheard en banc before the court of
appeals.
ISSUE: Can a jury hold an employer liable under the ADEA when it discharges an employee over the
age of 40, ostensibly for reasons other than age, when the true reason was in fact the
employee’s age?
HOLDING: Yes. The evidence supports a finding that Guiberson did not tell Rhodes the truth about why it
was discharging him. Guiberson officials’ testimony provides support for Rhodes’ contention
that Guibersons’ “productivity” justification was a pretext for age discrimination. The memo
REASONING: While the ADEA appears to fly in the face of free-market economics, it is a marketplace fact that
an individual Rhodes’ age will not be hired even if his salary were the same as the “young
salesmen” he was replaced by. There is the pervasive stereotype that someone Rhodes ’ age is
simply not as productive as someone younger. This was not the case, as the evidence bore
out. However, one must wonder what employee morale at Guiberson ’s must have been like
when the other employees discovered that one of their own had been cashiered just because
he was older as they too will someday be.
Like the Title VII action, the ADEA also has its basis in the Commerce Clause. If an activity
touches in some way upon interstate commerce, Congress can legislate in that area. Thus the
rationale behind the ADEA is that when a portion of the workforce is discriminated against
because of age, this segment of the workforce is not as productive as it could otherwise be –
which affects commerce between the states in the aggregate.
DISCUSSION POINTS: Have the students discuss the Rhodes v. Guiberson Oil Tools, Inc. case with facts and a
remedy applicable to age discrimination.
2. Older Workers Benefit Protection Act of 1990
C. Discrimination against persons with disabilities
1. Applies to all private employers with fifteen or more employees
2. Reasonable accommodation under the ADA – it is the employer ’s obligation to make reasonable
3. Contagious diseases – protection given under the Rehabilitation Act and the Americans with
4. ADA Amendments Act of 2008 (ADAAA) (effective 2009)
a. Allows pre-employment inquiries about accommodations
b. Proving an ADA case
i. Employee has a disability
c. Supports “broad coverage” of individuals with disabilities
5. Failure to take action results in employer liability
6. Exclusions from coverage of the ADA
7. GINA
IV. What Laws Govern Extraterritorial Employment?
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Major federal statutes. The major federal statutes are the Equal Pay Act of 1963, the Civil Rights Act of 1964,
as amended by the Equal Opportunity Act of 1972, the Age Discrimination in Employment Act of 1967, as
2. Retaliation. Judgment for Thompson. Thompson was an employee of NAS, and the purpose of Title VII is to
protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged,
3. Proof in disparate impact case. The employer did not meet its burden of persuasion that the work tolerance
test led to a reduction in injuries because the company had initiated numerous other safety initiatives during
4. Business necessity test. Judgment for Riley. A business necessity test that considered the job-relatedness of
the conviction was applied, and it was determined that the conviction of forgery is related to a position that
The same analysis is applied to a murder conviction. Because a conviction for murder does not appear to be
Authors’ Comment: One factor that is rudimentary to the disposition of this case is the fact that blacks are
arrested and convicted with greater frequency than whites. Thus, a policy that prohibits the hiring of those
5. Sexual harassment. Part time and summer or seasonal employees are protected against discrimination
under Title VII. Silverman’s “date me or clean toilets for a year ” threat is not a basis for quid pro quo
automatic vicarious liability against the City because she was not the victim of any significant employment
action for Silverman never carried out his threat. The case must be treated as a hostile work environment
6. Reasonable accommodation of religious practices. Judgment for the restaurant. Sanitary reasons and a
consistently applied grooming policy for all employees demonstrate that the restaurant could not
7. Pregnancy Discrimination Act, remedies and BFOQ. Judgment for Hayes. The court found that the Pregnancy
Discrimination Act (PDA) articulates a per se rule that renders any distinction among employees on the basis
of pregnancy a sufficient basis for a prima facie case under Title VII. After the plaintiff establishes a prima
8. Discrimination against persons with disabilities. Judgment for Overton to the extent that Overton was entitled
to a trial to prove that he could perform the essential functions of the job and may thus be viewed as
Authors’ Comment: Students may be asked to suggest a reasonable accommodation that would allow
Overton to continue to work. For example, Overton could be to allowed to take short naps as needed in a
secluded area where such napping would not demoralize the public and fellow workers. Needless to say,
9. Sexual harassment. This case presents facts that overlap hostile environment and quid pro quo cases in that
Salazar claimed that she was terminated as a direct result of her supervisor ’s sexual advances. In quid pro
quo cases, the employer is liable for the acts of its supervisors. The court was not persuaded that Church ’s
10. National origin discrimination. Judgment for the city and county of Honolulu. Accents and national origin are
inextricably intertwined in many cases. Courts look carefully at nonselection based on foreign accents
11. Discrimination against the handicapped. No. The United States Supreme Court in School Board of Nassau
County v. Arline, 480 U.S. 273, 107 Supreme Court 1123, issued its view on communicable diseases and held
that courts must look to existing, objective medical evidence when considering a decision detrimental to
those handicapped by contagious diseases. In Arline, the Supreme Court stated that a court inquiry should
12. Reverse discrimination, voluntary AAPs. The decision to retain Hunter over Cunico was facially discriminatory
as the board retained him because he was the only black administrator, though he had less seniority than
Cunico, who was white. Such a layoff is of dubious legality. The school district did not justify that the AAP
was remedial in nature. The court stated the following:
Given the limited number of actual positions for either social workers or administrators in the
District, there is no substantial significance to be gleaned from the absence of any blacks in such a
The court added that the action in this case was “not narrowly tailored to achieve any perceived need for
13. Equal Pay for substantially equal work. Under the EPA, the court must consider whether the two jobs entail
equal skill, effort, and responsibility. In this case, the duties of the two job classifications appear equal. The
14. Age discrimination. In reengineering and restructuring, employers ’ conduct is evaluated as to whether age
was a determining factor in the sense that “but for the employer ’s motive to discriminate against him because
15. Decision against the handicapped. Judgment for Coleman. The state regulation does not prevent an action
Under both the ADA and the Rehabilitation Act, Coleman must prove that he is in fact a handicapped person
entitled to protection. (Coleman is handicapped because the loss of a leg is an impairment that affects a
Applying these factors, the court ruled that Coleman had been discriminated against because of his disability.
The only accommodation required for Coleman would be either an automatic transmission or a hand clutch,
16. Sexual harassment. Judgment for AT&T. The Harris factors to consider are (1) frequency of the conduct, (2)
its severity, (3) whether it was physically threatening or humiliating or an offensive utterance, and (4) whether
it unreasonably interfered with the victim’s work performance. Concerning the frequency and severity factors,
Authors’ Comment: Students may be asked if the decision would change if the case were evaluated under a
reasonable-woman standard rather than a reasonable -person standard. In a footnote, the court declined to
LAWFLIX
Disclosure (1996) (R)
Michael Douglas and Demi Moore portray corporate climbers involved in a power struggle in the corporate world
as well as the sticky issue of sexual harassment. Several scenes during the course of the arbitration hearing
Parenthood (1989) (PG)
A candid movie about raising children that has the added bonus of a scene involving Steve Martin (Gil) and his
management system for classroom use.