14 UNIT SEVEN: AGENCY AND EMPLOYMENT
respiratory therapist with NBRT certification, was hired for the new position on the recommendation of James
Ryan, the program administrator of the respiratory therapy department. In May, Anthony DeCintio, a staff
respiratory therapist, filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging
the WCMC with sex discrimination in violation of Title VII arising from the hiring of Guagenti. He alleged that
the certification requirement was created to exclude him from consideration for the new position and that the
new position was created specifically for Guagenti. Six other male staff respiratory therapists also filed
complaints. Eventually, the EEOC dismissed the complaints, and the therapists took their case to court.
II. Discrimination Based on Age
• The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employment discrimination on the
basis of age against individuals forty years of age or older. The ADEA also covers claims of retaliation
for complaining about age discrimination.
A. PROCEDURES UNDER THE ADEA
A plaintiff must show that unlawful age discrimination was the reason for an adverse employment action.
If the employer offers a legitimate defense, the plaintiff, to succeed, must show that it is a pretext
1. Prima Facie Age Discrimination
To establish a prima facie case under the ADEA, a plaintiff must show that—
2. Pretext
If the employer offers a legitimate defense, the plaintiff, to succeed, must show that it is a pretext.
B. REPLACING OLDER WORKERS WITH YOUNGER WORKERS
Termination of an older employee might arguably be for cost-cutting, not discriminatory, reasons.
C. STATE EMPLOYEES NOT COVERED BY THE ADEA
Under the Eleventh Amendment, a state is immune from a suit brought by a private individual in federal
CHAPTER 35: EMPLOYMENT DISCRIMINATION 15
III. Discrimination Based on Disability
The Americans with Disabilities Act (ADA) of 1990 was designed to eliminate discriminatory hiring and firing
practices that prevent otherwise qualified disabled workers from fully participating in the national labor force.
Essentially, an employer must reasonably accommodate disabled persons unless to do so would constitute
an undue hardship.
A. PROCEDURES UNDER THE ADA
A plaintiff must first pursue a claim for discrimination based on disability through the EEOC. If the EEOC
decides not to sue, the plaintiff can bring a suit. Remedies are similar to those under Title VII
B. WHAT IS A DISABILITY?
A plaintiff must prove that he or she has a disability. Some conditions (kleptomania) are specifically
excluded. The ADA defines a disability generally as an impairment that “substantially limits” major life
activities. More specifically, a disability in an individual is—
1. Association with Disabled Persons
Employers cannot take adverse employment actions based on stereotypes or assumptions about
individuals who associate with people who have disabilities.
2. Mitigating Measures
3. Disclosure of Confidential Medical Information
Employers must keep their employees’ medical information confidential.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
What Is a Disability?
Cases in which it was considered whether an individual’s condition constituted a disability within the
meaning of the Americans with Disabilities Act include the following.
16 UNIT SEVEN: AGENCY AND EMPLOYMENT
employee with irritable bowel syndrome as disabled, considering that the employer believed the impairment
was severe, expected it to last for an extended period, removed the employee from a job she had held for
over a decade, and reassigned her to an entirely different position).
• Altman v. Department of Children and Family Services, __ F.Supp.2d __ (S.D.Ill. 2009) (an employee’s
reading, spelling, and auditory difficulties substantially limited her major life activity and therefore constituted
“disabilities”).
• Fink v. Richmond, __ F.Supp.2d __ (D.Md. 2009) (a teacher was a qualified individual with a disability
because she was permanently unable to consume food in regular quantities or at regular intervals due to an
esophagectomy, substantially impairing her ability to eat, a major life activity).
insubordination).
C. REASONABLE ACCOMMODATION
An employer cannot refuse to hire a disabled person who is otherwise qualified for a particular position.
That the employer may have to make some reasonable accommodation, such as installing ramps for a
wheelchair, will not cause an applicant to be unqualified. Employers should consider employees’
preferences in determining accommodations.
1. Undue Hardship
2. Job Applications and Physical Exams
The job application process, including questions and medical exams, must not be discriminatory.
for the individual to perform a job (a blind truck driver).
ENHANCING YOUR LECTURE—
HOW TO INTERVIEW WORKERS WITH DISABILITIES
Many employers have been held liable under the Americans with Disabilities Act (ADA) of 1990 simply
because they asked the wrong questions when interviewing job applicants with disabilities. If you are an
employer, you can do several things to avoid violating the ADA.
BECOME FAMILIAR WITH EEOC GUIDELINES
As a preliminary matter, you should become familiar with the guidelines on job interviews issued by the
CHAPTER 35: EMPLOYMENT DISCRIMINATION 17
Equal Employment Opportunity Commission (EEOC). These guidelines indicate the kinds of questions that
employers may—and may not—ask job applicants with disabilities. Often, the line between permissible and
impermissible questions is a fine one. Consider these examples:
• Ability to perform the job. As an employer, you may ask a job applicant, “Can you do the job?” You may
• Drug use. Generally, employers may ask about the current or past use of illegal drugs but not about drug
• Alcohol use. Generally, employers may ask about a candidate’s drinking habits but not about alcoholism.
• History of job-related injuries. Employers may not ask a job candidate with a disability any questions
about the applicant’s previous job–related injuries or about workers’ compensation claims submitted in the
past.
OBTAIN LEGAL ASSISTANCE AND INSTRUCT STAFF MEMBERS
To avoid liability under the ADA, the wisest thing you can do is consult with an attorney. You should
inform the attorney of the kinds of questions you typically ask job applicants during interviews or following
CHECKLIST FOR THE EMPLOYER
1. Familiarize yourself with the EEOC’s guidelines indicating what questions are and are not permissible
when interviewing job applicants with disabilities.
2. Work with an attorney to create a list of particular types of questions that are and are not permissible
under the EEOC’s guidelines with respect to job candidates with disabilities.
3. Make sure that all persons in your firm who interview job applicants are thoroughly instructed as to the
18 UNIT SEVEN: AGENCY AND EMPLOYMENT
3. Health-Insurance Plans
A group health-care plan that makes a disability-based distinction in its benefits violates the ADA
4. Substance Abusers
The ADA protects recovering addicts and alcoholics (those who have completed, or are currently in,
IV. Discrimination Based on Military Status
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 makes military
CHAPTER 35: EMPLOYMENT DISCRIMINATION 19
A. BROAD APPLICATION AND PROVISIONS
The USERRA covers all employers in the United States and abroad. There is no statute of limitations. A
B. PRIMA FACIE CASE OF DISCRIMINATION UNDER THE USERRA
To establish a prima facie case, a plaintiff must—
• Be engaged in a protected activity.
favorably.
C. PLAINTIFFS MAY BE ENTITLED TO PROMOTIONS
Returning service members are to be reemployed in the job that, based on seniority, they would have
V. Defenses to Employment Discrimination
Defenses to charges of employment discrimination include the following.
A. BUSINESS NECESSITY
An employer may defend against a claim of disparate-impact discrimination by asserting that a practice
B. BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ)
A trait must be essential to a job to qualify as a BFOQ if discriminating against those who do not have
the trait amounts to otherwise illegal employment discrimination.
C. SENIORITY SYSTEMS
If no present intent to discriminate is shown, and promotions or other job benefits are distributed
D. AFTER-ACQUIRED EVIDENCE OF EMPLOYEE MISCONDUCT
After-acquired evidence of the plaintiff’s wrongdoing cannot shield employers from liability for
employment discrimination, though it may limit the amount of damages.
VI. Affirmative Action
Title VII neither requires nor prohibits affirmative action.
A. EQUAL PROTECTION ISSUES
• Affirmative action may violate the equal protection clause. Any federal, state, or local government
affirmative-action program that uses racial or ethnic classifications is subject to a strict scrutiny
analysis.
20 UNIT SEVEN: AGENCY AND EMPLOYMENT
B. STATE LAWS PROHIBITING AFFIRMATIVE ACTION PROGRAMS
States have the power to prohibit affirmative action, and some states have ended government-
sponsored programs.
TEACHING SUGGESTIONS
1. Compare your local or state antidiscrimination laws with those at the federal level and explain which laws
2. You may initiate a lively discussion by bringing up the societal basis for some of the antidiscrimination
laws. For example, you might ask whether the laws are necessary, and if so, why? If not, why not?
Should society even be concerned with fairness in employment relationships? Why, or why not?
3. Discuss whether it is possible to fully protect employees from discrimination in the workplace. Because
Cyberlaw Link
What legal principles and laws apply to online sexual harassment in the workplace? How might
employee cyberstalking be prevented, both from a legal and a practical point of view?
DISCUSSION QUESTIONS
1. In the context of employment, what does Title VII of the Civil Rights Act of 1964 prohibit? Title VII
prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin,
2. What does the Equal Employment Opportunity Commission do? The Equal Employment Opportunity
CHAPTER 35: EMPLOYMENT DISCRIMINATION 21
3. What is disparate-treatment discrimination and how is it proved? Disparate-treatment discrimination is
blatant discrimination. A plaintiff must show that he or she is a member of a protected class who applied and was
4. What is disparate-impact discrimination and how is it proved? Disparate-impact discrimination is caused
5. What are some defenses available in employment discrimination cases? In a disparate-impact case, an
employer may assert a business necessity defense (a business reason for a practice—against proof that requiring a
high school diploma has a discriminatory effect, for instance, an employer might assert that doing a good job requires
6. What is sexual harassment and under what circumstances might an employer be liable? Sexual ha-
rassment happens when promotions and so on are parceled out for sexual favors or when, in an employment
7. What does the Age Discrimination in Employment Act prohibit? The Age Discrimination in Employment
Act (1967) prohibits employment discrimination on the basis of age against individuals forty years of age or older by
8. What does the Americans with Disabilities Act require? The Americans with Disabilities Act (1990)
(ADA), which prohibits employment discrimination against differently abled persons by businesses with twenty-five or
more employees (after July 1994, fifteen or more employees), requires that an employer not exclude arbitrarily a
22 UNIT SEVEN: AGENCY AND EMPLOYMENT
9. How is it possible for jurors and judges to overcome their own prejudices in deciding cases in which
gender or another protected trait plays a key role? Bias can be subtle, unconsciously influencing the decisions of
even the most professedly unbiased decision makers. It is the task that these individuals are given, after undergoing
10. Equal employment opportunity is not a universal policy, and some countries restrict the role of
women in employment. Should a U.S. firm doing business is those countries respect this position? In some
instances, failing to respect the restrictive nations’ political, social, religious, and cultural traditions could undercut a
ACTIVITY AND RESEARCH ASSIGNMENT
Invite a spokesperson from the nearest state or local antidiscrimination agency to discuss what the agency
does, its workload, and how employers respond. He or she might also be asked to discuss one or more of this
chapter’s topics in the classroom. For example, they might be asked to talk about the effects that Title VII has
had on employment—are more members of protected classes employed in traditionally segregated areas
than thirty-five years ago?
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 4: Jenifer Arbaugh worked at the Moonlight Café in New Orleans, Louisiana. The cafe was
owned and operated by Y & H Corp. Arbaugh quit and filed a suit in a federal district court against Y & H under Title
VII. The court awarded damages to Arbaugh. Two weeks later, Y & H filed a motion to dismiss, arguing that the court
In Arbaugh v. Y & H Corp., the United States Supreme Court reversed and remanded. If the employee-
number requirement were an element of a court’s subject-matter jurisdiction, it could be raised at any time, even after
a trial. But it does not relate to jurisdiction—“instead, [it] delineates a substantive ingredient of a Title VII claim for
Is the subject-matter jurisdiction of the federal courts restricted in other ways, in other case, under
CHAPTER 35: EMPLOYMENT DISCRIMINATION 23
Other provisions describe particular types of claims—
• “[A]ny civil action arising under any Act of Congress relating to the postal service” (28 U.S.C. Section
1339).
Some provisions expressly restrict a jurisdiction-conferring statute, such as 42 U.S.C. Section 405(h), which
bars 28 U.S.C. Section 1331 jurisdiction over suits to recover Social Security benefits.
Suppose that the lower court had determined that the Moonlight’s drivers and owners qualified as
employees for Title VII purposes. How might the course of this case have been changed? The lower court
Footnote 14: Myrta Morales-Cruz held a teaching position at the University of Puerto Rico School of Law.
For failing to report a co-teacher’s affair with a student, the dean criticized Morales–Cruz as “insecure,” “immature,”
and “fragile.” A different professor commented that she had shown poor judgment, had “personality flaws,” and had
trouble with “complex and sensitive” situations. Morales–Cruz complained to the university’s chancellor. On the dean’s
recommendation, the administrative committee then declined to renew her teaching contract. Morales-Cruz filed a suit
in a federal district court against the university, alleging retaliation in violation of Title VII. The court dismissed her
claim. She appealed
In Morales-Cruz v. University of Puerto Rico, the U.S. Court of Appeals for the Fifth Circuit affirmed. The
comments of the dean and the other professor were gender-neutral. Even if the dean had retaliated against Morales–
Cruz, it was not for engaging in conduct protected by Title VII.
What are some examples of non-job related retaliation? An employer can effectively retaliate against an
What are some of the legitimate reasons on which an employer can base job-related decisions? Clear
grounds for hiring decisions are such factors as an applicant’s experience, conduct, accomplishments, and similar
24 UNIT SEVEN: AGENCY AND EMPLOYMENT
Is it possible to fully protect employees from discrimination in the workplace? No, because bias can be
subtle, unconsciously influencing the actions of even the most avowedly unbiased individuals. Also, “fully protect” is a
Could the dean have had legitimate reasons for changing his mind about the one-year extension? If
so, what were they? Under the facts alleged, the dean possibly had legitimate business reasons for changing his
What steps should employers take to reduce the likelihood that supervisors will retaliate against
employees who make or support discrimination claims? Employers should have in place effective anti-
discrimination policies that go beyond just asserting that the firm is in compliance with existing rules. Discriminatory
Footnote 22: Josephine Mora, sixty-two years old, was a fund-raiser for Jackson Memorial Foundation,
Inc., when its chief executive officer, Mr. Rodriguez, fired her. Mora filed a suit in a federal district court against the
foundation, alleging wrongful termination under the Age Discrimination in Employment Act (ADEA). The foundation
filed a motion for summary judgment, arguing that Mora performed poorly on the job. Mora contended that when
Rodriguez fired her, he told her, “I need someone younger.” Former employees corroborated this testimony.
Rodriguez denied it, and one employee substantiated his version. The court granted the motion. Mora appealed.
In Mora v. Jackson Memorial Foundation, Inc., the U.S. Court of Appeals for the Eleventh Circuit vacated
and remanded. It was a “disputed question of material fact” as to whether the plaintiff had been fired because of her
age. “The resolution of this case depends on whose account of the pertinent conversations a jury would credit . . . A
reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff
because of her age.” The defendant was not entitled to summary judgment.
Is the court’s decision fair to employers? Why or why not? As indicated in the opinion, the court in this
case was simply following the precedent established by the United States Supreme Court in Gross v. FBL Financial
CHAPTER 35: EMPLOYMENT DISCRIMINATION 25
Why is discrimination presumed under the ADEA when a plaintiff establishes a prima facie case
unless the employer provides a nondiscriminatory explanation for an adverse employment action? The
reason for presuming discrimination on establishment of a prima facie case under the ADEA (or Title VII of the Civil
What steps should employers take within an organization to reduce the likelihood that supervisors
will make negative comments concerning workers’ ages? Employers must have in place effective anti-
discrimination policies that go beyond just asserting that the firm is in compliance with existing rules. The focus is on