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Chapter 35
Employment Discrimination
See Separate Lecture Outline System
INTRODUCTION
Only in recent decades have federal and state judicial decisions, administrative agency actions, and legislation
restricted the ability of employers, as well as unions, to discriminate against workers on the basis of race, color, religion,
national origin, gender, age, or handicap.
A class of persons defined by one or more of these criteria is known as a protected class. Several federal statutes
prohibit employment discrimination against members of protected classes. The most important is Title VII of the Civil Rights Act
of 1964 and its amendments. Title VII prohibits employment discrimination on the basis of race, color, religion, national origin,
or gender. Discrimination on the basis of age and disability are prohibited by the Age Discrimination in Employment Act of 1967
and the Americans with Disabilities Act of 1990, respectively.
The focus of this chapter is on the kinds of discrimination prohibited by these federal statutes. Discrimination against
employees on the basis of any of the above-mentioned criteria may also violate state human rights statutes or other state laws
prohibiting discrimination, as discussed at the end of this chapter.
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ADDITIONAL RESOURCES—
VIDEO SUPPLEMENTS
The following video supplements relate to topics discussed in this chapter—
PowerPoint Slides
To highlight some of this chapter’s key points, you might use the Lecture Review PowerPoint slides compiled for
Chapter 35.
Business Law Digital Video Library
The Business Law Digital Video Library at www.cengage.com/blaw/dvl offers a variety of videos for group or
individual review. Clips on topics covered in this chapter include the following.
• Ask the Instructor
Employment Law: ADEA and Title VII in Foreign Offices: Do the ADEA and Title VII apply in a company’s foreign
offices?—Yes, U.S. employment discrimination laws do apply to protect American citizens employed abroad. This is
true whenever the employer is a U.S. entity or is controlled by a U.S. entity, and when there is no foreign law to the
contrary. The ADEA and Title VII also apply to foreign entities who employ American citizens in this country.
• Drama of the Law
JJ Camera Shop, Scene 3—A retail store manager and the vice president from the corporate office disagree about
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who to hire for a new tech position. The manager favors an Indian born employee who requires the company’s support
for an H-1B visa. The vice president argues that the position should be filled by a U.S. citizen. The scene focuses on legal
issues involving immigration, the visa process, and discrimination based on national origin.
• LawFlix
Mary Tyler Moore—Employment law—first show first season, the Lou Grant (Edward Asner) interview with Mary.
CHAPTER OUTLINE
I. Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 and its amendments prohibit job discrimination against employees, applicants,
and union members on the basis of race, color, national origin, religion, and gender at any stage of employment.
Nearly any employer with fifteen or more employees is covered. The basic outlines of this statute are sketched in the
text.
A. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
B. INTENTIONAL AND UNINTENTIONAL DISCRIMINATION
1. Intentional Discrimination
In a disparate-treatment employment discrimination case, a plaintiff must initially establish a prima facie
case of discrimination. The employer can then offer a defense. If the employer offers a legitimate defense,
the plaintiff, to succeed, must show that it is a pretext and that discriminatory intent was the real
motivation. The elements of a prima facie case are—
• He or she is a member of a protected class.
• He or she applied and was qualified for the job in question.
• He or she was rejected by the employer.
• The employer continued to seek applicants for the position or filled the position with a person not in a
protected class.
ANSWER TO VIDEO QUESTION LTR. A
In the video, Mr. Grant (Ed Asner) asks Mary (Mary Tyler Moore) some personal questions during a job interview,
including why she is not married and what religion she practices. He also tells her that he “figured he’d hire a man.”
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Can Mary make out a prima facie case of gender or religious discrimination based on these questions? Why or why
not? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion or gender. To
make out a prima facie case of intentional discrimination on either of these bases, Mary must establish four elements:
ANSWER TO VIDEO QUESTION LTR. C
How does the fact that Mr. Grant hired Mary as an associate producer affect her ability to establish a case of
employment discrimination? This fact could cause her to lose her case. One of the elements to prove an allegation of
2. Unintentional Discrimination
If a plaintiff challenging an employment practice or procedure having a discriminatory impact on a protected
class can show a connection between the practice and the impact, he or she makes out a prima facie case,
and no evidence of discriminatory intent is necessary. The burden shifts tot the employer to show that the
practice or procedure is justified.
a. Pool of Applicants
A plaintiff can prove disparate impact by comparing the employer’s work force to the pool of qualified
members of a protected class available in the local labor market and relating any disparity to the
employer’s practice or procedure.
1. Reverse Discrimination
2. Potential Section 1981 Claims
Victims of discrimination may have a cause under Section 1981 of the Civil Rights Act of 1866, which
prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts, with
no cap on damages.
D. DISCRIMINATION BASED ON RELIGION
E. DISCRIMINATION BASED ON GENDER
Employers may not discriminate against employees on the basis of gender. The text gives specific examples. In a
gender discrimination suit, a plaintiff must show that gender was a determining factor in an employer’s decision
to hire, fire, or promote.
1. Pregnancy Discrimination Act
2. Equal Pay Act
3. 2009 Equal Pay Legislation
The Paycheck Fairness Act of 2009 prohibits gender-based differentials in assessing an employee’s
F. CONSTRUCTIVE DISCHARGE
Constructive discharge occurs when an employer causes working conditions to be so intolerable that a reasonable
person in an employee’s position would feel compelled to quit.
1. Proving Constructive Discharge
2. Applies to All Title VII Discrimination
An employee can seek damages for loss of income, including back pay.
G. SEXUAL HARASSMENT
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Sexual harassment can take two forms: quid pro quo harassment and hostile-environment harassment. The
ADDITIONAL BACKGROUND—
“Hostile or Offensive Environment”
In 1974, Mechelle Vinson began working at Meritor Savings Bank. Vinson later sued the bank, claiming that she
had “constantly been subjected to sexual harassment.” She claimed that Sidney Taylor, a vice president and branch
manager, made sexual advances toward her, to which she acquiesced out of fear of losing her job. She testified that
Taylor fondled her in front of other employees and forcibly raped her. Taylor denied the charges. The trial court
concluded that any sexual relationship between Vinson and Taylor had no relationship to Vinson’s continued
employment and ruled in favor of the bank. Vinson appealed, and the appellate court ruled in her favor, finding that
she had made out a case of harassing-environment discrimination. The bank appealed.
In one of the early and often-cited cases involving charges of sexual harassment—Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)—the United States Supreme Court affirmed the appellate
arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.’” Requiring an
its supervisory employees should be determined according to common law principles of agency, the Court remanded
ADDITIONAL BACKGROUND—
Perceiving Conduct as Harassment
Sexual harassment is a major problem in the workplace. Over 40 percent of female federal employees, for
example, reported incidents of sexual harassment in 1980 and roughly the same number reported incidents in 1987.
Sexual harassment cost the federal government $267 million between May 1985 and May 1987 for losses in
productivity, sick leave costs, and employee replacement costs. According to the United States Merit Systems
Protection Board, victims of sexual harassment “pay all the intangible emotional costs inflicted by anger, humiliation,
frustration, withdrawal, dysfunction in family life, as well as medical expenses, litigation expenses, job search expenses,
and the loss of valuable sick leave and annual leave.”
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1. Harassment by Supervisors
To be liable for sexual harassment, an employer must have taken a tangible employment action against an
employee.
2. The Ellerth/ Faragher Affirmative Defense
3. Retaliation by Employers
Plaintiffs in retaliation cases do not have to prove a challenged action adversely affected their workplace or
employment. Instead, the challenged action must have been one that would likely have dissuaded a
reasonable worker from making or supporting a charge of discrimination.
CASE SYNOPSIS—
Case 35.1: Burlington Northern and Santa Fe Railway Co. v. White
Sheila White was the only woman working in the Maintenance of Way department at Burlington Northern & Santa
Fe Railway Co.’s Tennessee Yard. She operated a forklift, which was considered a better job, and the male employees
resented her for it. When White complained to Burlington officials of harassment, she was reassigned from forklift duty
to “track laborer” tasks. Later, a supervisor complained of White’s insubordination, and she was suspended without
pay. She filed a suit in a federal district court against Burlington, alleging unlawful retaliation under Title VII. She was
awarded $43,500 in damages, On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed, holding that Title VII’s
retaliation ban is limited to acts that adversely affect the terms, conditions, or benefits of employment. Burlington
appealed.
provisions differ in language and purpose. For example, “[t]he [antidiscrimination] provision seeks to prevent injury to
…………………………………………………………..……………………………………………………………………
Notes and Questions
What are some examples of non-job related retaliation? An employer can effectively retaliate against an employee
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ANSWERS TO QUESTIONS AT THE END OF CASE 35.1
1. Why did the Court evaluate the language of Title VII’s antidiscrimination and antiretaliation provisions? The Court
2. What was the Court’s interpretation of those provisions? The Court interpreted the language and the purposes of
these provisions under the presumption that Congress uses different language in distinct statutory provisions with
different intent. The Court concluded that the anti-discrimination provision may be limited to employment-related
acts, but “the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts.”
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases considering claims of sexual harassment include the following.
• Brissette v. Franklin County, Sheriff’s Office, __ F.Supp.2d __, 2003 WL 57577 (D.Mass. 2003) (female correctional
officers proved that a sheriff’s office maintained a hostile work environment for its female employees, but failed to
establish that they were denied promotions and terminated because of gender bias when they failed to rebut their
abuse of the office’s sick-leave policy, which was a legitimate gender-neutral justification for the employer’s actions).
• Quantock v. Shared Marketing Services, Inc., 312 F.3d 899 (7th Cir. 2002) (an employee’s job transfer was not a
transfer was a temporary change in her job responsibilities rather than a significant diminishment of those
• Quintero v. Caribe G.E. Power Breakers, Inc., __ F.Supp.2d __, 2002 WL 31811142 (D.C.P.R. 2002) (a coworker’s
harassment when at no time were the employee’s position or benefits compromised).
4. Harassment by Co-Workers and Others
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5. Same-Gender Harassment
Title VII covers same gender harassment, but not harassment on the basis of sexual orientation. Many
states—and many companies—ban such discrimination, however.
ENHANCING YOUR LECTURE—
“EQUAL OPPORTUNITY” HARASSMENT
The prohibition against sexual harassment in the workplace is an extension of Title VII’s prohibition against gender-
based discrimination. This means that there can be no sexual harassment if no gender-based discrimination is
involved. It also means, among other things, that Title VII does not protect employees from “equal opportunity”
harassers—those who harass both sexes equally—because such persons are not discriminating on the basis of gender.
This point was made clear to Steven and Karen Holman, a married couple who worked for the Indiana Department
of Transportation, when they sued their employer for sexual harassment. The Holmans alleged that their supervisor
had sexually harassed each of them individually on separate occasions and that the supervisor retaliated against
THE BOTTOM LINE
Harassment in the workplace takes many forms, including harassment based on gender, race, national origin,
religion, age, and disability. In cases alleging sexual harassment, however, the harassment must be on the basis of sex
(gender), or Title VII will not apply.
a. Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).
ENHANCING YOUR LECTURE—
SEXUAL HARASSMENT IN OTHER NATIONS
The problem of sexual harassment in the workplace is not confined to the United States. Indeed, it is a worldwide
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implemented specific procedures to deal with harassment claims.
H. ONLINE HARASSMENT
Employers may avoid liability if they take prompt remedial action. Privacy rights must be considered if the action
includes electronic monitoring of employees.
ENHANCING YOUR LECTURE—
E-MAIL IN THE WORKPLACE AND
“UNIVERSAL STANDARDS OF BEHAVIOR”
Many employers today establish and implement policies that specify permissible and impermissible uses of the
Internet in the workplace. Yet what if employees who violate such a policy claim that they did not “knowingly” do so?
In this situation, if the employer discharges the employees for violating the policy, can the employees successfully claim
that they were discharged without “just cause” and thus entitled to unemployment compensation? This question
recently came before a Utah appellate court in Autoliv ASP, Inc. v. Department of Workforce Services.a
AUTOLIV’S HARASSMENT AND E-MAIL POLICIES
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employees. The company immediately investigated and learned that two employees had, on numerous occasions, sent
messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature. Shortly
thereafter, Autoliv terminated the two employees for “improper and unauthorized use of company e–mail.” When the
employees applied for unemployment benefits, a threshold question was whether they had been fired for just cause. If
so, they would not be entitled to unemployment benefits. If not, they would be entitled to such benefits—and Autoliv
would ultimately have to pay higher unemployment taxes as a result.
WERE THE EMPLOYEES FIRED FOR “JUST CAUSE”?
them to change their conduct. The agency agreed, noting that because abuse of the company’s e-mail system was
FOR CRITICAL ANALYSIS
Suppose that an employee writes a message to like-minded persons concerning religious beliefs or political views.
Can the employee be fired in that situation? Who decides what is acceptable Internet activity when there is no written
policy?
How might an employee avoid the possibility that his or her employer will discover objectionable items on the
employee’s computer?
ADDITIONAL BACKGROUND—
Paramour Liability
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When, because of a romantic relationship, an employer hires, promotes, or otherwise favors someone (a
“paramour”), an applicant or employee who is better qualified may believe that the employer should be held liable
under Title VII on the ground of sex discrimination.
In King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), a nurse filed a discrimination claim against her employer because
her supervisor had promoted another nurse allegedly on the basis of their romantic relationship. The plaintiff proved
that kissing, embracing, and other “amorous behavior” played a part in the promotion decision. The court stated that
Title VII is violated if a romantic relationship is a substantial factor in an employment decision. The court ordered the
employer to promote the nurse who had been overlooked.
The Equal Employment Opportunity Commission (EEOC) has rejected claims of discrimination based on consensual
romantic relationships. According to the EEOC, “[a]n isolated instance of favoritism toward a ‘paramour’ (or a spouse,
or a friend)” may be unfair, but it does not constitute discrimination on the basis of sex. The reason is that when
preferential treatment is based on a romantic relationship, other employees—both men and women—are equally
disadvantaged for reasons other than their gender.
promotion. Dora was not denied the promotion because she is a woman, nor would she have received the promotion
The U.S. Court of Appeals for the Second Circuit reversed. The court acknowledged that in the context of Title VII,
“sex” refers to “membership in a [protected] class delineated by gender.” The court could find no reason for extending
Title VII’s reference to “sex” “so broadly as to include an ongoing, voluntary, romantic engagement.” Under the
circumstances, “[a]ppellees were not prejudiced because of their status as males; rather, they were discriminated
against because Ryan preferred his paramour. Appellees faced exactly the same predicament as that faced by any
woman applicant for the promotion.”
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I. REMEDIES UNDER TITLE VII
A plaintiff may obtain reinstatement, back pay, retroactive promotions, and damages. Compensatory damages
are available only in cases of intentional discrimination. Punitive damages may be recovered in some cases, but
the sum of compensatory and punitive damages is limited to specific amounts against specific employers (stated
in the text).
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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 To establish a prima
facie case under the ADEA, a plaintiff must show that—
ANSWER TO VIDEO QUESTION LTR. B
Can Mary prove a prima facie case of age discrimination because Mr. Grant asked her age during the interview
and then implied that she was “hedging” about her age? What would she need to prove under the Age Discrimination
in Employment Act? 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. To make out a prima facie case of age discrimination,
ANSWER TO VIDEO QUESTION LTR. D
Mr. Grant says that he will hire Mary to see if it works out but fire her if he does not like her or if she does not like
him at the end of this trial period. Can he do that? Explain. If he fired Mary a few weeks later, would this affect Mary’s
ability to sue for employment discrimination? Why or why not? Under the employment-at-will doctrine, it is an
employer’s prerogative to discharge an employee at any time for any reason unless to do so would violate an
employment contract, commit a tort, or transgress public policy. Apparently there is no employment contract here—
or, if there is, one of its terms provides for a trial period and a possible discharge on the basis of either party’s personal
dislike. Nothing is stated in the facts about a discharge as a commission of a tort or a violation of public policy. Thus, it
does not appear that Mary could successfully maintain a suit on any of these grounds. So, yes, it seems that Mr. Grant
can “do that.”
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CASE SYNOPSIS—
Case 35.2: Mora v. Jackson Memorial Foundation, Inc.
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.
Notes and Questions
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 Rights Act of 1964) is
because the acts establishing a prima facie case, if otherwise unexplained, are more likely than not based on the
consideration of impermissible discriminatory factors.
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 acts in the workplace. Hence,
and other relevant statutes that impact the workplace.
ANSWER TO “THE ETHICAL DIMENSION” QUESTION IN CASE 35.2