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Is the court’s decision in this case is 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
Services, a case decided in 2009. Thus, the reason question here is whether the Supreme Court’s decision in that case
was fair to employers. The Gross case was controversial for several reasons, one of which was that it deprived
employers of the “same decision” affirmative defense to claims of age discrimination. One could argue that this was
unfair to employers because it made it more difficult for them to fire employees for incompetent performance on the
job. After all, even if an employer does make discriminatory-sounding remarks about an employee’s age, does that
mean that the employer should be held liable for age discrimination if the employer fires an employee for poor job
performance? Some critics of the Gross decision point out that the Age Discrimination in Employment Act (ADEA) was
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 court
unless the state consents to the suit. When fundamental rights are at stake, Congress may abrogate this
immunity.
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 (reinstatement, back pay,
and compensatory and punitive damages. Criminal fines are also possible. To succeed in an ADA case a plaintiff
must initially show—
• He or she has a disability.
• He or she is otherwise qualified for the job in question.
• He or she was excluded by the employer solely because of the disability.
B. WHAT IS A DISABILITY?
A plaintiff must prove that he or she has a disability. The text provides examples of conditions that have been
considered disabilities (AIDS, blindness, cancer, diabetes). 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—
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• A physical or mental impairment that substantially limits one or more major life activities.
• A record of such an impairment.
• Being regarded as having such an impairment.
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2. Amendments Broaden Definition
Congress amended the ADA to prohibit employers from considering mitigating measures or medication
when determining whether an individual has a disability.
CASE SYNOPSIS—
Case 35.3: Rohr v. Salt River Project Agricultural Improvement
and Power District
Larry Rohr has type 2 diabetes. Failing to follow a strict diet aggravates his disease. His physician proscribes
overnight, out-of-town travel. Rohr was a welding metallurgy specialist for Salt River Project Agricultural Improvement
and Power District, which provides utility services to homes in Arizona. Salt River told Rohr that his restrictions on
Notes and Questions
In this case, the court considered eating a major life activity. What are some other major life activities that might
be limited by a physical or mental impairment? Under federal regulations, major life activities include functions “such
as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” A
“major life activity” must be of “comparative importance” and “central to the life process itself,” but does not need “a
public, economic or daily character.”
life activity is patently insufficient for a substantial limitation. Rather, in deciding whether the impairment is
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ANSWER TO “THE E-COMMERCE DIMENSION” QUESTION IN CASE 35.3
If Rohr could have monitored his condition and regimen through a cell phone or other portable Internet
connection, would the result in this case likely have been affected? Explain. No. This likely would have been an
irrelevant consideration. The court’s reasoning in this case focused on the extent to which the disease limited the
major life activity of eating. How Rohr might have monitored that extent was not a factor.
ANSWER TO “THE LEGAL ENVIRONMENT DIMENSION”
QUESTION IN CASE 35.3
Salt River argued that type 1 diabetes is harder to control than Rohr’s type 2 diabetes. Assuming that this is true,
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent 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.
• Simmons v. New York City Transit Authority, __ F.3d __ (2d Cir. 2009) (an employer regarded an 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).
C. REASONABLE ACCOMMODATION
870 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
1. Undue Hardship
Employers who do not wish to make such accommodations must show that the accommodations will cause
“undue hardship.” This is subject to a case–by-case determination.
2. Job Applications and Physical Exams
The job application process, including questions and medical exams, must not be discriminatory. There
must also be reasonable accommodation for disabled applicants. A preemployment physical can be
required, but an applicant is disqualified for a position only if a disability makes it impossible for the
individual to perform a job (a blind truckdriver).
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
• Ability to perform the job. As an employer, you may ask a job applicant, “Can you do the job?” You may also ask
whether the applicant can perform specific tasks related to the job. You may not ask the candidate, “How would
you do the job?”—unless the disability is obvious, the applicant brings up the subject during the interview, or you
ask the question of all applicants.
• Absenteeism. You may ask, “Can you meet our attendance requirements?” or “How many days were you absent
last year?” You may not ask, “How many days were you sick last year?”
• Drug use. Generally, employers may ask about the current or past use of illegal drugs but not about drug addiction.
Therefore, as an employer, you may ask, “Have you ever used illegal drugs?” or “Have you done so in the last six
months?” You may not ask, “How often did you use illegal drugs?” or “Have you been treated for drug abuse?”
• 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.
872 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
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 employment offers.
Then, you should work with the attorney in modifying these questions so that they are consistent with the EEOC’s
CHECKLIST FOR THE EMPLOYER
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 types of
3. Substance Abusers
4. Health-Insurance Plans
A group health-care plan that makes a disability-based distinction in its benefits violates the ADA unless it
can be proved to be a business necessity. Coverage can be limited so long as it is equal among all
participants.
D. ASSOCIATION DISCRIMINATION
An employer cannot take an adverse employment action based on the known disability of a person with whom an
applicant or employee is known to have a relationship or association (a disabled spouse, for example). To
establish a prima facie case, a plaintiff must show—
• He or she was qualified for the job in question.
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IV. 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 that has a
discriminatory effect is a business necessity. If there is a definite connection between the practice and business,
the practice may stand. The text provides an example of a high-school diploma (the lack of which may effectively
discriminate against some minorities).
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
V. Affirmative Action
Affirmative action programs have caused much controversy.
A. CONSTITUTIONALITY OF AFFIRMATIVE ACTION PROGRAMS
Most notably for employment, the United States Supreme Court applied a strict scrutiny analysis in an equal-
B. AFFIRMATIVE ACTION IN SCHOOLS
Automatic preference on the basis of a protected characteristic violates the equal protection clause.
TEACHING SUGGESTIONS
1. Compare your local or state antidiscrimination laws with those at the federal level and explain which laws apply in
which situations. Many states’ laws are broader than the federal laws, but some are not. It might also prove
enlightening to discuss those state and local governments that have different laws. What explains the differences?
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?
Cyberlaw Link
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DISCUSSION QUESTIONS
1. In the context of employment, what does Title VII of the Civil Rights Act of 1964 prohibit? Title VII prohibits
2. What does the Equal Employment Opportunity Commission do? The Equal Employment Opportunity Commission
3. What is disparate-treatment discrimination and how is it proved? Disparate-treatment discrimination is blatant dis-
4. What is disparate-impact discrimination and how is it proved? Disparate-impact discrimination is caused by a practice
5. What are some defenses available in employment discrimination cases? In a disparate-impact case, an employer may
6. What is sexual harassment and under what circumstances might an employer be liable? Sexual harassment happens
7. What does the Age Discrimination in Employment Act prohibit? The Age Discrimination in Employment Act (1967)
8. What does the Americans with Disabilities Act require? The Americans with Disabilities Act (1990) (ADA), which
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 questioning to determine and
challenge their biases and being reminded not to let prejudice sway their judgment. Jurors can be given instructions that set out
considerations for them to evaluate the circumstances of a case and avoid undue prejudices. Is it possible to fully protect
employees from discrimination in the workplace? No, because bias can be subtle, unconsciously influencing the actions of even
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 U.S. firm’s ability to do business in those countries. In
other circumstances, supporting different policies might effect important changes to the status of women and foster increased
economic ties. In most cases, deciding which course to pursue can be a subjective determination, based in part on ethical
guidelines.
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?
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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 did not have “federal subject–
matter jurisdiction.” Y & H asserted—for the first time—that it had fewer than fifteen employees. The dispute turned on the
status of Y & H’s owners and its eight delivery drivers. The court granted the motion. Arbaugh appealed. The U.S. Court of
Appeals for the Fifth Circuit affirmed. Arbaugh appealed. In Arbaugh v. Y & H Corp., the United States Supreme Court reversed
Is the subject-matter jurisdiction of the federal courts restricted in other ways, in other case, under other statutes? Yes.
As the Court stated in a footnote, “Congress has exercised its prerogative to restrict the subject-matter jurisdiction of federal
district courts based on a wide variety of factors, some of them also relevant to the merits of a case.”
Certain statutes confer subject-matter jurisdiction, for example, only for—
• Actions brought by specific plaintiffs, such as the United States and its agencies and officers (28 U.S.C. Section 1345)
or Amtrak (49 U.S.C. Section 24301(l )(2).
• Claims against particular defendants, such as persons subject to orders of the Egg Board (7 U.S.C. Section 2707(e)(3)
or national banking associations (28 U.S.C. Section 1348).
• Actions in which the amount in controversy exceeds or falls below a stated amount (16 U.S.C. Section 814; 22 U.S.C.
Section 6713(a)(1)(B); 28 U.S.C. Section 1346(a)(2).
Other provisions describe particular types of claims—
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 would have most likely upheld its
judgment. This issue then would not have been appealed to the United States Supreme Court, at least not by Arbaugh. Y & H
might have appealed the decision on a different ground, however
Footnote 17: In March 1998, the Pennsylvania State Police (PSP) hired Nancy Suders. Her supervisors subjected her
to continuous sexual harassment. Suders told Virginia Smith-Elliott, the PSP’s equal employment opportunity officer, who told
Suders to file a complaint, but did not explain how to obtain the necessary form. After further harassment, Suders resigned and
878 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
filed a suit in a federal district court against the PSP. The court issued a summary judgment in the PSP’s favor. Suders appealed
to the U.S. Court of Appeals for the Third Circuit, which reversed and remanded, holding that the Ellerth/Faragher defense is not
available in constructive discharge cases. The PSP appealed. In Pennsylvania State Police v. Suders, the United States Supreme
Court vacated and remanded. To establish constructive discharge, a plaintiff alleging sexual harassment must show that the
Under the holding of the U.S. Court of Appeals for the Third Circuit, the Ellerth/Faragher affirmative defense would
have been eliminated in all hostile-environment constructive discharge cases, but retained in other hostile-environment cases
(not involving tangible employment actions). How would the courts’ consideration of these cases then differ from
determinations accorded under the Supreme Court’s ruling in the Pennsylvania case? As the Court explained, “[t]hat placement
of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its
lesser included component, hostile work environment. Moreover, the Third Circuit’s formulation, that court itself recognized,
would make matters complex, indeed, more than a little confusing to jurors. Creation of a hostile work environment is a
necessary predicate to a hostile-environment constructive discharge case. Juries would be so informed. Under the Third Circuit’s
decision, a jury, presumably, would be cautioned to consider the affirmative-defense evidence only in reaching a decision on the
hostile work environment claim, and to ignore or at least downplay that same evidence in deciding the closely associated
constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next when the
only variation between the two claims is the severity of the hostile working conditions.
If the plaintiff had resigned in response to an official act on the part of the employer, would the result have been
different? Yes, or at least the holding would have been different. Neither the U.S. Court of Appeals for the Third Circuit nor the
United States Supreme Court would have allowed the defendant to assert the Ellerth/Faragher affirmative defense if Suders’
resignation had occurred as the result of the employer’s official act. There would have been no need for either court to
determine the application of that defense in a situation involving constructive discharge.
ANSWERS TO ESSAY QUESTIONS IN
STUDY GUIDE TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
BY HOLLOWELL & MILLER
1. Compare and contrast disparate-treatment and disparate-impact discrimination and Title VII’s response to each in the
context of employment. Disparate-treatment discrimination is blatant discrimination. Disparate-impact discrimination is when
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a practice has an unintended discriminatory impact on a protected class. Title VII prohibits discrimination against employees,
2. What does the Americans with Disabilities Act require employers to do? Passed in 1990, the Americans with
Disabilities Act prohibits employment discrimination against disabled persons by businesses with fifteen or more employees. An
employer cannot arbitrarily exclude someone who, with reasonable accommodation, could do what is required of a job. What
constitutes “reasonable accommodation” is difficult to determine. Ramps must be installed for employees who use
wheelchairs, and interpreters may be required for the hearing-impaired, but not every employer is required to accommodate all
REVIEWING—
EMPLOYMENT DISCRIMINATION
Amaani Lyle, an African American woman, took a job as a scriptwriters’ assistant at Warner Brothers Television
Productions working for the writers of Friends, the popular, adult-oriented television series. One of her essential job
duties was to type detailed notes for the scriptwriters during brainstorming sessions in which they discussed jokes,
dialogue, and story lines. The writers then combed through Lyle’s notes after the meetings for script material. During
these meetings, the three male scriptwriters told lewd and vulgar jokes and made sexually explicit comments and
gestures. They often talked about their personal sexual experiences and fantasies, and some of these conversations
were then used in episodes of Friends.
1. Would Lyle’s claim of racial discrimination be for intentional (disparate-treatment) or unintentional (disparate-
impact) discrimination? Explain. Because Lyle has no direct evidence of discriminatory intent, her claim would likely be
2. Can Lyle establish a prima facie case of racial discrimination? Why or why not? It is unlikely that Lyle could
3. Lyle was told when she was hired that typing speed was extremely important to her position. At the time, she
maintained that she could type eighty words per minute, so she was not given a typing test. It later turned out that Lyle
could type only fifty words per minute. What impact might typing speed have on Lyle’s lawsuit? Evidence that Lyle had
4. Lyle’s sexual–harassment claim is based on the hostile work environment created by the writers’ sexually offensive
conduct at meetings that she was required to attend. The writers, however, argue that their behavior was essential to
the “creative process” of writing Friends, a show that routinely contains sexual innuendos and adult humor. Which
defense discussed in the chapter might Warner Brothers assert using this argument? Warner Brothers can assert the
writer’s sexually explicit conduct during the meetings was a business necessity, because it was necessary for the writers
to freely discuss plot ideas and themes in creating the script for Friends. The television series has been popular largely
because of its adult humor and sexual innuendos, and without those elements, the show would not be the same. Thus,
some sexually explicit banter is necessary to write the script and Warner Brothers would be able to claim this in their
defense.
DEBATE THIS:
Members of minority groups and women have made enough economic progress in the last several decades that
they no longer need special legislation to protect them. There is little doubt that minorities and women suffered
discrimination in the U.S. labor market for decades, if not longer. Today, in contrast, this country has seen much
growth in the average incomes of all American, regardless of race or gender. The labor market is competitive, so
employers who discriminate against minorities and women end up suffering from higher costs compared to
nondiscriminating employers.
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ANSWERS TO QUESTIONS—
SPECIAL CASE ANALYSIS
Case No. 35.1
Burlington Northern and Santa Fe Railway Co. v. White
Supreme Court of the United States, 2006.
548 U.S. 53,
126 S.Ct. 2405,
165 L.Ed.2d 345.
(a) Issue: What was the plaintiff’s complaint, the defendant’s response, and the chief legal dispute between them?
White’s complaint was that her reassignment and suspension constituted unlawful discrimination and retaliation.
Burlington argued that because it had reinstated her—albeit to her track laborer job—and had awarded her backpay,
she had nothing to complain about. The chief dispute focused on the interpretation and application of the anti–
discrimination and anti-retaliation provisions of Title VII to the events in this case—was the latter provision confined to
an employer’s job-related acts?
(b) Rule of Law: Which provisions of Title VII did the Court consider, and which rule of statutory interpretation
governed the Court’s consideration? Here, the Court evaluated the anti-discrimination and anti-retaliation provisions of
Title VII. At the beginning of its consideration of these provisions, the Court stated that it assumed Congress uses
different language in different statutory provisions with different intent.
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concluded that “[b]ased on this record,” which included the duties, and co-workers’ perception, of the jobs that the
plaintiff was given before and after her reassignment, “a jury could reasonably conclude that the reassignment of
responsibilities would have been materially adverse to a reasonable employee.”