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CHAPTER 35
EMPLOYMENT DISCRIMINATION
ANSWER TO CRITICAL THINKING QUESTION
IN THE FEATURE
DIGITAL UPDATE—CRITICAL THINKING
Can you think of a way a company can obtain information via an applicant’s social media
posts without running the risk of being accused of hiring discrimination? The EEOC has
recommended the use of a third party to conduct social media screenings of applicants. In this
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 35.1—LEGAL REASONING QUESTIONS
1. According to the reasoning of the court in the Bauer case, when do different
employment standards for men and women satisfy Title VII’s requirement of equality? In
the Bauer case, the court concluded that “an employer does not contravene Title VII when it
utilizes physical fitness standards that distinguish between the sexes on the basis of their
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2. In what other circumstances might the rule in this case apply? In some circumstances,
differential treatment of men and women based on inherent physiological differences is not only
legal but may be required. In the Bauer case, the court concluded that an employer does not
3. If Bauer had ultimately succeeded in his claim, what might the remedy have been?
What else might have resulted case? A decision in Bauer’s favor would have resulted in a
finding of liability on the part of the FBI for employment discrimination on the basis of sex arising
from its use of the different physical fitness standards for men and women. If Bauer had
CASE 35.2—CRITICAL THINKING
LEGAL ENVIRONMENT
Could UPS have succeeded in this case if it had claimed simply that it would be more
expensive or less convenient to include pregnant women among those whom it
CASE 35.3—CRITICAL THINKING
ETHICAL
Was Culbertson’s conduct at any point unethical? Discuss. Culbertson’s initial remarks
might have been considered ill-conceived, or described as boorish or uncouth, or characterized
as “guy stuff.” They might have been laughed at or ignored, or at worst have been perceived as
LEGAL ENVIRONMENT
Culbertson and some other witnesses testified that he did not engage in any sexually
inappropriate behavior. Should an appellate court reverse a jury’s decision simply due to
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Intentional or unintentional discrimination
Because Lyle has no direct evidence of discriminatory intent, her claim would likely be for
unintentional, disparate impact discrimination. She could argue that the employer’s requirement
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2A. Prima facie case
It is unlikely that Lyle could establish a prima facie case of unintentional discrimination. To do
so, she would have to prove that the employer’s typing speed requirement had a discriminatory
effect, excluding members of a protected class at a substantially higher rate than nonmembers.
3A. After-acquired evidence
Evidence that Lyle had misrepresented how fast she could type at the time of her interview
would not substantially impact her claim of racial discrimination, because it would be considered
4A. Employer’s defense
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
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
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
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ANSWERS TO ISSUE SPOTTERS
AT THE END OF THE CHAPTER
1A. Ruth is a supervisor for Subs & Suds, a restaurant. Tim is a Subs & Suds
employee. The owner announces that some employees will be discharged. Ruth tells Tim
that if he has sex with her, he can keep his job. Is this sexual harassment? Why or why
2A. Koko, a person with a disability, applies for a job at Lively Sales Corporation for
which she is well qualified, but she is rejected. Lively continues to seek applicants and
eventually fills the position with a person who does not have a disability. Could Koko
ANSWERS TO BUSINESS SCENARIOS
AT THE END OF THE CHAPTER
35-1A. Title VII violations
(a) Only employers with fifteen or more employees who are engaged in an activity that
affects interstate commerce come under the Civil Rights Act, Title VII. Tennington, Inc., has
requirements of the state statute.
(b) The 1964 Civil Rights Act, Title VII, as amended, prohibits discrimination at any
stage of employment on the basis of race, color, religion, sex, or national origin. The
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35-2A. Religious discrimination
Gomez cannot establish a prima facie case of religious discrimination. The facts show only a
bona fide religious belief that she needs to go to Medjugorje at some time, not at a particular
time. When an employee claims that religious beliefs require a particular pilgrimage, or some
ANSWERS TO BUSINESS CASE PROBLEMS
AT THE END OF THE CHAPTER
35–3A. SPOTLIGHT ON DRESS CODE POLICIES—Discrimination based on gender
Yes. The dress code policy was illegal discrimination based upon gender. Unlike hair and
35–4A. Sexual harassment by co-worker
DCBS is possibly liable. Under Title VII, an employer may be liable for harassment by a co–
35–5A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWER—Age discrimination
No, sanofi-aventis U.S. LLC (S-A) does not appear to have engaged in age discrimination. The
Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis
of age against individuals forty years of age or older. For the act to apply, an employer must
have twenty or more employees, and the employer’s business activities must affect interstate
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35–6A. Discrimination based on disability
No, Knight has not violated the Americans with Disabilities Act (ADA) by failing to provide Horn’s
requested accommodations. The ADA requires that certain employers “reasonably
accommodate” the needs of persons with disabilities unless to do so would cause the employer
to suffer “undue hardship.” Thus, if an employee with a disability, with reasonable
35–7A. Sexual harassment
Newton’s best defense to Blanton’s assertion of liability against the employer for its general
manager’s actions is the “Ellerth/Faragher affirmative defense.” To establish this defense, an
employer must show that it has taken reasonable care to prevent and promptly correct any
sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any
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35–8A. Discrimination based on disability
Yes, based on the facts, Wallace could likely prove the “substantial motivating factor or reason”
element of the state’s disability discrimination law. As stated in the problem, under that law,
discriminatory intent can be shown by evidence that an actual or perceived disability was a
“substantial motivating factor or reason” for an employer’s adverse employment action. A
35–9A. A QUESTION OF ETHICS—Retaliation by employers
(a) Yes. Dawson could establish a claim for retaliation. Title VII prohibits retaliation. In
a retaliation claim, an individual asserts that he or she suffered harm as a result of making a
charge, testifying, or participating in a Title VII investigation or proceeding. To prove retaliation,
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(b) Homosexuals should be considered a protected class under Title VII because
most people in our society agree that employers should not be able to discriminate against
persons who are homosexual. A growing number of states have enacted laws protecting
ANSWERS TO LEGAL REASONING GROUP ACTIVITY QUESTIONS
AT THE END OF THE CHAPTER
35–10A. Racial discrimination
(a) To succeed on a claim of disparate-treatment discrimination in hiring, a plaintiff
must show that (1) he or she is a member of a protected class, (2) he or she applied and was
(b) In a disparate-impact discrimination case, the complaining party must first show
statistically that the employer’s practices, procedures, or tests are discriminatory in effect. Once
the plaintiff has made out a prima facie case, the burden of proof shifts to the employer to show
that the practices or procedures in question were justified. A plaintiff can prove a disparate
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(c) Despite the assumption in the facts that the plaintiffs can establish a prima facie
case, the employer’s best defenses most likely relate to the elements of such a case. For
example, if few persons of color applied for the lead roles, the disposition of their applications