Chapter 12 DISCRIMINATION LAWS;
PROTECTED CLASSES UNDER
TITLE VII AND THE CONSTITUTION
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Case Questions
12.1, Pollard v. DuPont, p. 410
1. (Q.) What are the traditional remedies available to victims of employment discrimination
under Section 706(g) of the Civil Rights Act of 1964?
2. (Q.) Did Congress in the Civil Rights Act of 1991 expand the remedies available to the
plaintiffs? Explain.
(A.) Congress expanded the remedies available to plaintiffs in 1991, by allowing recovery of
compensatory and punitive damages, as capped for cases of sex and religious
3. (Q.) What are the two types of
damages subject to the cap for sex and religious discrimination?
(A.)
12.2, Griggs v. Duke Power Co., p. 413
1. (Q.) What is the question before the Supreme Court?
(A.) The question for the Supreme Court to resolve is whether an employer is prohibited by
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2. (Q.) What was the objective of Congress in the enactment of Title VII?
(A.) The objective of Congress is plain from the language of the statute. It was to achieve
3. (Q.) Would the Court order the case against the employer to be dismissed if it found that the
employer had adopted the diploma and test requirements without any intention to
discriminate against minority employees?
(A.) No. The absence of any intent on the part of the employer to discriminate would not
4. (Q.) As a result of the Griggs decision, may employers insist that both minority and white
job applicants meet the applicable job qualifications by the use of testing or measuring
procedures?
12.3, U.S. v. Villages of Elmwood Park and Melrose Park, p. 416
1. (Q.) Because of the residency requirements, what percentage of blacks was effectively
barred from consideration for employment by the villages?
2. (Q.)
(A.) The villages used word-of-mouth as the sole method of recruiting applicants for
3. (Q.) Did the court agree that the villages had presented valid justification for their residency
requirements?
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12.4, Feldstein v. The Christian Science Monitor, p. 422
1. (Q.) Does the Christian Science Monitor violate Title VII by giving preference to Christian
Scientists when hiring reporters for the newspaper?
2. (Q.) Does Section 702 of Title VII allow religious societies to hire co-religionists for secular
activities as opposed to religious activities?
(A.) The 1972 amendments to Section 702 allow religious societies to hire co-religionists
12.5, Mormon Church v. Amos, p. 423
1. (Q.) Why was Mayson fired from his job?
(A.)
2. (Q.) Does Section 702 allow a religious organization to refuse to hire or to continue in
employment individuals that are not members of the religious organization where the
positions involved are non-religious jobs?
3. (Q.) Why did Congress enact Section 702?
(A.) ference with
:
If the District Court decision had been upheld in this case, a Title VII ban on
not their religious activities. There is not a bright line between what is a religious
activity versus a secular activity. In the Feldstein case the judge determined that the
unbiased reporting of world news and events was a religious activity. However, fear
that some judges may not understand the tenets of a religion coupled with fear of the
significant liability in a discrimination case could affect the way a religious organization
would carry out its religion if it were subject to a ban on religious discrimination for
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secular activities. It is for this reason that Congress enacted the 1972 amendments to
Section 702.
12.6, Audra Sommers, a/k/a Timothy K. Cornish v. Budget Marketing Inc., p. 431
1. (Q.) What did Sommers claim?
(A.) Sommers claimed that she had been discriminated against because of her status as a
2. (Q.) Does the Title VII ban on sex discrimination encompass discrimination based on
transsexualism?
12.7, Glenn v. Brunby, p. 432
1. (Q.) Are claims based on sexual orientation and gender identity not covered by Title VII of
the Civil Rights Act?
2. (Q.) What is a PriceWaterhouse v. Hopkins gender stereotyping lawsuit?
PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989),
But see Gilbert v. Country Music Assn. Inc., 2011 LEXIS 15933 (6th Cir. 2011) where Gilbert
x-
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12.8, Oncale v. Sundowner Offshore Services, Inc., p. 442
1. (Q.) Does the Oncale decision transform Title VII into a general civility code for the
American workplace?
(A.) The Court does not believe that Oncale turns Title VII into a civility code because (1)
2. (Q.) What standard should apply in judging whether or not the conduct in question
amounted to sexual harassment?
3. (Q.) What justification exists in the statutory language or Supreme Court precedents for a
categorical rule excluding same sex harassment claims from coverage of Title VII?
(A.) None. Accordingly the Oncale decision simplifies the law regarding sexual harassment
12.9, Burlington Industries, Inc. v. Ellerth, p. 443
1. (Q.)
(A.) A tangible employment action in the context of a sexual harassment lawsuit refers to
2. (Q.)
be liable for damages when the employer had no idea that a supervisor had turned
down an employee for a position because the employee had rejected a sexual proposal.
(A.) The supervisor was empowered by the employer to make the economic decision in
3. (Q.) Under the circumstances, may an employer raise an affirmative defense to liability for
damages in a sexual harassment case?
(A.) In sexual harassment cases, where no tangible employment action is taken, a defending
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12.10, Fragante v. City and County of Honolulu, p. 450
1. (Q.) Why do courts take a very careful look at non-selection decisions based on foreign
accents?
(A.) Accents and national origin are inextricably intertwined in many cases. An employer
2. (Q.) er test scores
than the two successful candidates?
(A.)
12.11, BSNF v. White, p. 455
1. (Q.) Was the reassignment of Sheila White from forklift operator duties to track laborer
duties unlawful gender discrimination and retaliation for her complaint about her
treatment by the first foreman?
(A.) The jury found that the reassignment was not gender discrimination in violation of Title
Comment:
Ms. White was the only woman working in the track labor department. She was
a new employee. The male employees resented the fact that a new employee, a woman,
their job rights, through duration of service, with the senior employees in terms of
length of service (called seniority) having the opportunity to select a job over a junior
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2. (Q.) Can a rescinded disciplinary suspension with full back pay, be considered a materially
advers
12.12, UAW v. Johnson Controls, p. 457
1. (Q.) –
2. (Q.) -protection policy was implemented only after 8 employees became pregnant,
while maintaining blood lead levels exceeding the level set by the CDC as critical.
extensive liability in future law-suits, should not the BFOQ defense be available to it?
(A.) e of the next generation do not suffice to establish a
:
The Johnson Controls case deals with exposure to lead in a manufacturing plant.
–
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
It may be argued by some that fetal health is relegated to a secondary role behind
maternal re-productive 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
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3. (Q.) -called safety exception to the BFOQ?
4. (Q.) Does the PDA contain a BFOQ standard of its own?
(A.) a BFOQ
Chapter Questions and Problems, p. 465
1. [Religion: prima facie case of religious discrimination, Section 12.4] To establish a prima facie case
of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that
conflicts with an employment requirement, (2) informed the employer of such conflict, and
In this case, the record indicates Ollis held sincere Christian religious beliefs. The record
also provides some support for Ollis’s contention HearthStone required Ollis to attend MBE
lives, participating in ritual-like activities, and reading Hindu and Buddhist literature. Ollis
testified the MBE sessions conflicted with his religious beliefs. Thus, Ollis satisfied the first
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The jury awarded Ollis just nominal damages of $1.00. Sharing this result with students
can lead to discussion of legal fees.
HearthStone argued that the district court abused its discretion in awarding Ollis
attorney fees and costs. HearthStone contends Ollis should not have been awarded attorney
fees because the jury awarded him only nominal damages of $1.00. Regardless of the
amount of Ollis’s judgment, Ollis was the prevailing party and, thus, is entitled to an award
of attorney fees.
2. [Religious organization exemption, Section 12.4.] Decisions relating to clergy are immune from
3. [National origin discrimination: English-only rules, Section 12.8.] English-only policies are legal
in all but a few circumstances, such as when the employee speaks no English or when
English- -only policy
4. [Arrest and conviction inquiries, Section 12.3.] 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 with arrest and conviction records
will have a disproportionate impact on blacks. Another factor is that generally inquiries into
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5. [Reasonable accommodation of religious practices, Section 12.4.] This case is governed by Section
701(j) of Title VII, which is discussed in Section 105 of the text. The standard review will be
that set forth by the Supreme Court in TWA v. Hardinson [Section 12.4]. That standard states
that failure to reasonably accommodate a religious practice is unlawful unless the employer
6. [Sex discrimination and BFOQ exceptions, Sections 12.5 and 12.10.] By denying employment to a
violated the guaranteed protection of Title VII embodied in Section 703(a) [Section 12.5].
Under Section 703(e) [Section 12.10], Mercy may defend its female-only policy on the
grounds that being a female is a bona fide occupational qualification for working in the
7. [Sex discrimination, Section 12.5.] DiMillo has exposed his restaurant to a Title VII sex
discrimination suit by stating in his advertisement a restriction (that applicants be able to
sizes are expressed in different terms, the wording used in the ad suggests either that men
8. [Pregnancy Discrimination Act and remedies and BFOQ, Sections 12.5 and 12.10.] The court
decided that this case was governed by the Section 701(k) amendment to Title VII, which
equates discrimination on the basis of pregnancy with discrimination on the basis of sex
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prohibited by the statute [Section 12.10]. The court found that the statute articulates a per se
rule which renders any distinction among employees on the basis of pregnancy a sufficient
basis for a prima facie prima
9. [Sexual harassment, Section 12.6.] The guidelines on sexual harassment protect men as well as
women and apply as well to sexual harassment of males by males and females by females.
It is a common defense in sexual
10. [Sex discrimination, Sections 12.6 and 12.7.] This case presents facts that overlap hostile
environment and quid pro quo harassment theories. A hostile working environment as
described in Bundy v. Jackson and Meritor Savings Bank v. Vinson was present in this case in
Salazar has also stated a triable claim under the quid pro quo theory [Barnes, Vinson] in that
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11. [Sexual harassment: Hostile work environment, Section 12.6.] A federal jury in Alexandria,
Virginia, awarded Shope $650,000 in damages from the county, and assessed $25,000 in
punitive damages against Krawczel. On appeal the question of whether or not there can be
sexual harassment in violation of Title VII where no sexual favors were sought and no
12. [Sexual harassment: Hostile work environment, Sections 12.6 and 12.7.] The case brought by the
discussion. As to the sexual harassment charge, the Vinson decision points out that sexually
provocative speech or dress is relevant in determining whether the harassing conduct was
13. Sexual harassment, Sections 12.6 and 12.7.] In the Ellison case, the Court of Appeals for the
xual
harassment is made out where a female victim alleges conduct, which a reasonable woman
would consider sufficiently severe or pervasive, to alter conditions of employment. The
court found that she had made out a prima facie case under this standard. The Oncale
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s:
Students may be asked to express their opinion as to whether men and women have
different views on what conduct constitutes sexual harassment.
The majority opinion in Ellison lists certain law review articles that assert that the
characteristically male view depicts sexual harassment as comparatively harmless
amusement. Clearly from reading the cases set forth in the textbook, as well as current news
reports on sexual harassment from all areas of the country, many males who have
14. [Punitive damages and capped consequential and punitive damages, Section 12.2.] Ms. Baty
complained about the sexually abusive conduct on the part of supervisors and co-workers
without relief. In November of 1994 she was terminated under pretextual reasons. Surely
this was intentional discrimination in retaliation for her complaints of sexual harassment.
Where the employer told her she was being terminated due to cost-cutting measures due to
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15. [Sexual harassment, Section 12.6.] Part-time and summer or seasonal employees are protected
threat is not a basis for quid pro quo automatic vicarious liability against the City because