Chapter 11
OTHER EEO AND EMPLOYMENT LEGISLATION: FEDERAL AND STATE LAWS
INTRODUCTION
The eleventh chapter focuses on the law dealing with discrimination in employment. There are various
statutes and executive orders that seek to eradicate employment discrimination. There are many types of
employment discrimination and prohibited acts. This chapter will examine the laws that the employers must
comply with.
CHAPTER OUTLINE
The Civil Rights Acts of 1866 and 1870
Generally
Passed during the Reconstruction era right after the Civil War.
Jones v. Alfred H. Mayer Co. held that the law could be used to attack discrimination in
private employment.
Johnson v. Railway Express Agency held that the law provided for an independent cause of
action against employment discrimination. (Separate and distinct from a suit under Title VII)
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Maine v. Thiboutot held that the law encompasses claims based on deprivation of rights
granted under federal statutory law, thus claims alleging discrimination on grounds prohibited by
federal law (gender, age, religion, national origin, etc.) can be brought. However, because of the
wording, claims under this section are limited to cases where the alleged discrimination is by
someone acting or claiming to act under governmental authority. (Public employers are subject to
suit, but most of the time private employers are not).
Brown v. GSA held that the only remedy available to federal government employees
Lower courts have ruled that this section cannot be used to sue based on alleged violations of
the Equal Pay Act or the Age Discrimination in Employment Act.
Procedure Under Sections 1981 and 1983
A suit under Section 1981 is not subject to the same procedural requirements as a suit under
Title VII.
Firms doing business with the federal government must agree not to discriminate in
employment based on race, color, religion, national origin, or gender.
Equal Opportunity Requirements
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*Contract compliance programs are regulations which provide that all firms having federal government
contracts or subcontracts exceeding $10,000 must include a no-discrimination clause in the contract.
Affirmative Action Requirements
Must submit annual reports of the results of their plan and efforts.
Firms holding federal or federally assisted construction contracts or subcontracts over
$10,000 are also subject to affirmative action requirements.
Must comply with the goals and timetables set by the OFCCP.
*Affirmative action plan is a program which involves giving preference in hiring or promotion to qualified
female or minority employees.
Procedure Under Executive Order No. 11246
Individuals with complaints may file with the OFCCP within 180 days of the violation.
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THE WORKING LAW:
President Obama Signs a New Executive Order to Protect LGBT Workers
“Many of you have worked for a long time to see this day coming.”
Employment Discrimination Because of Military Service: The Uniformed Services Employment and
Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act
Employee gave notice of the period of military service.
Employee is absent for a cumulative of less than five years.
Employee submitted an application for reemployment within the designated time.
Employers are not required to reinstate employees after military service if:
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CASE 11.1 CREWS v. CITY OF MT. VERNON
567 F.3d 860 (7th Cir. 2009)
Background: Ryan Crews had been a member of the Army National Guard since 1988 and an officer of
the Mt. Vernon Police Department since 1997. As a member of the Guard, Crews was required to attend
weekend training and preparedness exercises (“drills”) about once a month. The Chief of Police,
Mendenall, had the authority to establish officers’ weekly work schedules, which consisted of five, eight–
hour shifts and two days off. For nine years, the City of Mt. Vernon allowed police officers, who missed
their weekend work shifts, to attend National Guard duties to work on their scheduled days off to make
up the lost time. The City did not provide a comparable scheduling benefit to non-Guard employees who
missed work for non-military activities. Crews’s weekend drill obligations frequently conflicted with his
Because of the rescission of the work scheduling policy, Crews was no longer able to collect a full
week’s pay from the City when he missed a weekend shift for drill, unless he used up his limited days of
paid time off. In December 2006, Crews filed a complaint against the City of Mt. Vernon and
Mendenall, alleging that the rescission of the work scheduling policy denied him a benefit of
employment based on military status, in violation of USERRA, and that defendants retaliated against
him for opposing the rescission of the policy by making negative comments toward Crews and denying
him advancement opportunities.
Issue: Is the City required to give Crews preferential work scheduling benefits not generally available to
non-Guard employees? Did defendants retaliate against Crews?
Decision: The court affirmed the district court’s grant of summary judgment in favor of the defendants.
ANSWERS TO CASE QUESTIONS
1. Since the rescission of the work scheduling policy, Crews was no longer able to collect a full
week’s pay from the City when he missed a weekend shift for drill, unless he used up his limited
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2. USERRA affords broad protections to service members against employment discrimination,
providing that members “shall not be denied initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by an employer on the basis of that
membership….” 38 U.S.C. 4311(a). A “benefit of employment” means “any advantage, profit,
3. In addition to protecting against discrimination on the basis of service membership, § 4311
prohibits an employer from taking “any adverse employment action against any person because
such person … has taken an action to enforce a protection” provided by USERRA. 38 U.S.C. §
4311(b)(1). Although we have not previously discussed the statute’s “adverse employment action”
4. The undisputed evidence indicated that Crews received alternative, non-FTO training
commensurate with his corporal rank. Crews testified that he attended classes in “first line leader
management” and “critical incident management,” instruction geared toward officers who fulfill a
more supervisory role. A log prepared by Deichman also indicated that Crews had completed the
third-highest amount of command staff training hours for the period between May 2005 and
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Military Family Rights Under the FMLA
In 2013, the U.S. Department of Labor (DOL) issued new regulations operationalizing
expanded Family and Medical Leave Act rights for members of the armed forces and their
families.
The National Labor Relations Act
United Packinghouse Workers Union v. NLRB held that race discrimination by an employer
was an unfair labor practice.
Frank Briscoe Inc. v. NLRB held that retaliation against employees who file charges with the
EEOC, by refusing to recall them from layoff, was a violation.
Syres v. Oil Workers held that unions that discriminate against African Americans in
Constitutional Prohibitions Against Discrimination
Due Process and Equal Protection
Fifth Amendment applies to federal government.
Fourteenth Amendment applies to state and local governments.
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*Suspect class is a basis of discrimination, classification, or differential treatment—such as race, color,
gender, religion or national origin—by government action, for which there is insufficient legitimate
justification for treating persons because of such characteristics.
Affirmative Action and the Constitution
The courts have held that affirmative action programs that give a relative preference
rather than an absolute one are narrowly tailored.
Programs that are temporary and that will cease when the employer achieves a more
diverse work force have also been held to be narrowly tailored.
*Strict scrutiny test is a constitutional analysis used by courts hearing equal protection claims involving
governmental discrimination based on a “suspect class.” This test requires the government to demonstrate
that the discriminatory treatment was necessary to achieve a compelling government purpose and that the
governmental action was “narrowly tailored” to achieve the compelling purpose.
Other Constitutional Issues
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The rule denied the teachers the freedom of personal choice and was not shown to be
sufficiently related to the school-board interests of administrative scheduling and protecting the
health of teachers.
*Non-suspect class is a basis of discrimination, classification, or differential by government action which
is neutral with regard to race, color, gender, religion or national origin, and which is related to legitimate
government interests. Examples of nonsuspect classes are age, veteran status, or personal achievement.
THE WORKING LAW:
President Obama and the LGBT Community
Earlier today, I had the opportunity to meet with a small group of openly gay and lesbian
State EEO and Employment Laws
Gender Discrimination
All states prohibit gender discrimination in terms or conditions of employment.
Most include sexual harassment as gender discrimination.
Sexual Orientation Discrimination
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Other Employment Legislation
*Whistleblower is an employee who reports or attempts to report employer wrongdoing or actions
threatening public health or safety to government authorities.
CASE 11.2 HENRY V. CITY OF DETRIOT
234 Mich.App. 405, 594 N.W.2d 107 (Mich. Ct. App. 1999),
appeal denied, 461 Mich. 937, 606 N.W.2d 24 (Mich. 1999)
Facts: Plaintiff was a police officer who served on an investigatory board. Plaintiff’s superior precluded
the board from performing its job. Plaintiff was later called to testify regarding the board’s activities and
stated that he was precluded from doing his job by his superior. Plaintiff was later fired and filed suit
under Michigan’s whistleblower law. A jury found that the plaintiff was retaliated against and awarded
damages.
Issue: Did the plaintiff present prima facie evidence of retaliation?
Criminal Record
Federal law does not address employment discrimination based on criminal record.
Some states have laws prohibiting discrimination because of criminal history.
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CASE 11.3 CUMMINGS V. WASHINGTON MUTUAL
650 F.3d 1386 (11th Cir. 2011)
Facts: In February 2007, the manager of the Piedmont Commons branch of Washington Mutual Bank
conducted a cash audit and discovered a shortage of approximately $58,000. The entire amount was
missing from two Teller Cash Dispenser machines that Cummings, the previous branch manager, had
access to during his employment at the branch. The manager hired two fraud investigators to look into
the shortage. They reviewed surveillance-camera still images that they believed showed Cummings and
his employees repeatedly violating Defendant’s Dual Control Policy, which requires two persons to be
present when cash is handled or certain secure areas are accessed. Several current and former employees
Issue: Did the request by Washington Mutual that Cummings take a polygraph test violate the EPPA?
Decision: Because the employer requested Cummings to submit to a polygraph test in connection with
Honesty Testing
These are paper and pencil tests and my use psychological profile testing.
Not prohibited by federal or most state law like lie detector test.
Seek to measure such behaviors as:
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Off-Duty Conduct
Many states have laws that protect employees from discrimination based on their lawful, off-
duty conduct.
Mainly designed to protect smokers and tobacco users.
ETHICAL DILEMMA
An Additional Charge for Smokers?
It is a well-known fact that smokers and tobacco users have a greater number of health issues and thus
costs than those who do not use those products. Whether or not these individuals should have to pay some
sort of surcharge on their health insurance premiums is the topic of much debate.
See additional commentary at:
CASE 11.4 MCCAVITT V. SWISS REINSURANCE AMERICA CORPORATION
237 F.3d 166 (2d Cir. 2001) (per curium)
Facts: Plaintiff entered into a relationship with a co-worker and was eventually denied promotion and
discharged. Plaintiff filed suit under the New York Labor Law stating he was discriminated against
based on recreational activity outside of work. The trial court dismissed the claim.
Issue: Is dating a co-worker a protected recreational activity?
Guns at Work Laws
In Hansen v. America Online, Inc., the Utah Supreme Court rejected a wrongful termination suit
brought by several employees who were discharged for violating an employer’s policy prohibiting possession
of a firearm on the employer’s property 96 P.3d 950 (Utah 2004).
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ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. 42 U.S. 1981 can be used against intentional discrimination based on race. In St. Francis College
v. Al-Khazraji the Supreme Court held that S. 1981 can be used to challenge discrimination
directed against someone of Arabian ancestry⎯the section was intended to protect identifiable
classes of persons who are subject to intentional discrimination solely because of their ancestry or
2. Employees who are serving in, or have served in the armed forces or the reserves are protected
under the USERA. The Act provides that if the employees have given the employer appropriate
advance notice, and the length of their military service is not longer than 5 years, the employees
are entitled to re-employment at the completion of their service, if they report to the employer
3. E.O. 11246 imposes an affirmative action obligation on government contractors. Contractors
whose contracts with the federal government exceed $10,000 must agree not to discriminate in
4. Public sector employers who give preference in hiring to females must comply with the
constitution⎯the preference must pass the strict scrutiny test because gender is a “suspect class.”
The employer must demonstrate that the preference is necessary to achieve a compelling
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5. Race-based employment preferences, or discrimination, by federal employers is not prohibited,
but the courts will examine such preference very closely⎯the preference must pass the strict
scrutiny test, as indicated in Wygant, because race is a “suspect class.” The strict scrutiny test
CASE PROBLEMS
6. The court dismissed the S. 1983 claim, holding that Title VII offered a comprehensive remedy.
7. The court here held that Davis’ claim was one of national origin discrimination, and was not
mingled with a racial discrimination claim. Therefore the S. 1981 claim was dismissed. Note: The
Supreme Court held in St. Francis College v. Al-Khazraji that S.1981 can be used to protect
8. No⎯42 U.S.C. S. 1981 does not reach sex discrimination, only discrimination based on race or
9. Novak has a valid claim under USERA; her employer fired her within 180 days of her
reemployment following her active duty service, and she was discharged because of her service.
10. His Equal Protection claim is not likely to be successful because the constitution requires
“invidious discrimination”⎯that is, intentional discrimination. His claim here is a disparate
11. Bonacorsa could file suit under the New York State Human Rights Law, which prohibits
discrimination based on criminal record, and under the U.S. Constitution⎯alleging denial of
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equal protection under the 14th Amendment. Although the NYS Human Rights Law does prohibit
discrimination based on criminal record, it does allow such discrimination where the prior
conviction is related to the job in question, of where the conviction indicates that the individual
12. Noland can pursue a claim against McAdoo under 42 U.S.C. S.1983 for the sexual harassment
once McAdoo becomes her supervisor⎯because at that point, he is acting with the legal authority
of his position. The harassment by McAdoo prior to his becoming supervisor is not likely to be
actionable under S. 1983⎯the section requires that the alleged violation be taken “under the color
13. In order to establish a claim under USERRA, Madden must present evidence that his military
obligations were a motivating factor or a substantial or motivating factor in his failing to be hired,
or of his being discharged, the burden shifts to the defendants to show that the plaintiff would not
14. Green could pursue a claim under Title VII, alleging that the no convictions policy had a
disparate impact against African Americans. In the actual case, the court held for Green on such a
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15. The Supreme Court held that the NYS provision was unconstitutional because it denied equal
protection to veterans who were residents of other states at the time they entered military service.
HYPOTHETICAL SCENARIOS
16. This proposed policy is illegal in some states. A number of states protect employees from
employment discrimination because of their lawful, off-the-job conduct. This legislation is
17. Yes. Based on Saint Francis College v. Al-Khazraji, the courts now interpret “race” under
Section 1981 broadly to include claims of ethnic discrimination that are racial in character, such
18. Probably. The answer to this questions depends on whether the state has a statute prohibiting
employers from employment discrimination against employees because of their legal off-duty
recreational activities. For example, in New York, it is unlawful for any employer or employment
19. Employees who report or attempt to report employer wrongdoing or actions threatening public
health or safety to government authorities are entitled to protection under the Sarbanes-Oxley Act
20. The EPPA restricts the right of private employers to require employees to take polygraph, or “lie
detector,” tests. The exception allows polygraph testing under certain circumstances. One
exception relevant to this situation is employers who have a reasonable basis to suspect that
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