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Chapter 35
Employment Discrimination
INTRODUCTION
Only in recent decades have federal and state judicial decisions, administrative agency actions, and leg-
islation 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
2 UNIT SEVEN: AGENCY AND EMPLOYMENT
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,
A. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The Equal Employment Opportunity Commission (EEOC) issues guidelines interpreting the law. Also,
complaints about violations are registered first with the EEOC. If it is unable to resolve a situation and
B. LIMITATIONS ON CLASS ACTIONS
The rights of employees—as a group, or class—to bring discrimination claims against their employer are
limited.
C. INTENTIONAL AND UNINTENTIONAL DISCRIMINATION
1. Intentional Discrimination
a. Prima Facie Case
In a disparate-treatment employment discrimination case, a plaintiff must initially establish a
prima facie case of discrimination. 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.
b. Burden-Shifting Procedure
After the plaintiff establishes a prima facie case, the employer can offer a defense. If the
2. Unintentional Discrimination
If a plaintiff challenging an employment practice or procedure having a discriminatory impact on a
a. Pool of Applicants
A plaintiff can prove disparate impact by comparing the employer’s work force to the pool of
CHAPTER 35: EMPLOYMENT DISCRIMINATION 3
b. Rate of Hiring
A plaintiff can also prove disparate impact by comparing the employer’s hiring rates for
D. DISCRIMINATION BASED ON RACE, COLOR, AND NATIONAL ORIGIN
• Race includes the ancestry or ethnic characteristics of a group of persons. National origin refers to
the country of a person’s birth or their ancestry or culture.
ENHANCING YOUR LECTURE—
DISCRIMINATION BASED ON APPEARANCE
Research has shown that short men make statistically less income than tall men. It has also shown that
compared with attractive individuals, less attractive people generally receive poorer performance reviews,
lower salaries, and smaller damages awards if they win lawsuits. Should something be done about this?
CAN LOOKISM BE PROHIBITED?
Although there is certainly evidence that appearance-based discrimination exists in the workplace and
elsewhere, it is not so clear that it can be prohibited. In the 1970s, Michigan decided to do something about
A DOUBLE STANDARD FOR GROOMING
Women sometimes complain that they are held to different grooming standards in the workplace than
4 UNIT SEVEN: AGENCY AND EMPLOYMENT
which supposedly distracted her male co-workers.
CRITICAL THINKING
The majority of workers today post photographs of themselves, their families, and their friends on
Facebook and other social media. How might this practice affect appearance-based discrimination in
the workplace? Attractive people often have attractive partners, families, and friends, which means that
photographs circulated via social media may have the effect of encouraging lookism at work. Employers and
1. Reverse Discrimination
2. Potential Section 1981 Claims
E. DISCRIMINATION BASED ON RELIGION
Title VII prohibits government employers, private employers, and unions from discriminating against
persons because of their religion.
1. Reasonable Accommodation
Employers must reasonably accommodate the religious practices of their employees.
2. Undue Hardship
CASE SYNOPSIS—
Case 35.1: Bauer v. Lynch
Jay Bauer, an assistant professor at the University of Wisconsin–Milwaukee, attended the FBI Academy
where he passed all academic tests, showed proficiency in firearms and defensive tactics, and met all
CHAPTER 35: EMPLOYMENT DISCRIMINATION 5
The U.S. Court of Appeals for the Fourth Circuit vacated and remanded. An employer does not violate
Title VII by requiring fitness standards that distinguish between the sexes on the basis of “physiological
differences” if the standards “impose an equal burden of compliance on both men and women.”
..................................................................................................................................................
Notes and Questions
How does global economic integration affect gender equality? The accelerating movement of labor
and capital, and the increasing accessibility of information, across international borders is leading to greater
global economic integration among makers and markets. These events and their effects are acting to remove
F. DISCRIMINATION BASED ON GENDER
Employers may not discriminate against employees on the basis of gender.
1. Gender Must Be a Determining Factor
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.
CASE SYNOPSIS—
Case 35.2: Young v. United Parcel Service, Inc.
6 UNIT SEVEN: AGENCY AND EMPLOYMENT
Peggy Young was a driver for United Parcel Service, Inc. (UPS). When she became pregnant, her doctor
advised her not to lift more than twenty pounds. UPS required drivers to lift up to seventy pounds and told
Young that she could not work under a lifting restriction. She filed a suit in a federal district court against UPS,
Notes and Questions
Suppose that Young had alleged employment discrimination on the basis of a disability. How
would the steps to a decision on that allegation have been different? The steps to a decision under the
two statutes on which Young based her allegations of employment discrimination and the statute that applies
to allegations of discrimination on the basis of a disability are similar, though not the same. The Americans
2. Pregnancy Discrimination
CHAPTER 35: EMPLOYMENT DISCRIMINATION 7
3. Wage Discrimination
• The Equal Pay Act of 1963 prohibits gender-based discrimination in wages paid for equal work
4. Discrimination against Transgender Persons
A growing number of federal courts are holding that Title VII’s protection against gender
discrimination applies to transgender persons.
G. 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.
H. SEXUAL HARASSMENT
Sexual harassment can take two forms—
• Quid pro quo harassment occurs when job opportunities, promotions, and the like are doled out on
the basis of sexual favors.
CASE SYNOPSIS—
Case 35.3: Roberts v. Mike’s Trucking, Ltd.
Teresa Roberts worked for Mike’s Trucking, Ltd., in Columbus, Ohio. Her supervisor was Mike’s owner,
Mike Culbertson. According to Roberts, Culbertson called her his “sexretary” and constantly talked about his
sex life. He often asked her if she wanted to sit on “Big Daddy's” lap, rubbed his crotch against her, trapped
8 UNIT SEVEN: AGENCY AND EMPLOYMENT
A state intermediate appellate court affirmed. Other female employees corroborated Roberts’s account.
“There was sufficient and substantial evidence * * * that a reasonable person would find Culbertson's
conduct created a hostile environment and Roberts found the conduct to be sufficiently severe or pervasive to
affect her employment.”
..................................................................................................................................................
Notes and Questions
Does conduct need to be both severe and pervasive to constitute a hostile or abusive work
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Sexual Harassment
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).
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
CHAPTER 35: EMPLOYMENT DISCRIMINATION 9
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 court’s decision. The Supreme Court rejected the bank’s argument that in prohibiting
discrimination under Title VII, Congress was concerned with “tangible loss” of “an economic character” and
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.”
1. Harassment by Supervisors
To be liable for sexual harassment, an employer must have taken a tangible employment action
against an employee. Employers have an affirmative defense if—
• They took “reasonable care to prevent and correct promptly any sexually harassing behavior”
(such as establishing effective harassment policies and complaint procedures).
10 UNIT SEVEN: AGENCY AND EMPLOYMENT
• The employee suing for harassment failed to follow these policies and procedures.
2. Retaliation by Employers
Plaintiffs in retaliation cases do not have to prove a challenged action adversely affected their
3. Harassment by Co-Workers and Others
4. Same-Gender Harassment
Title VII covers same gender harassment.
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
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.
CHAPTER 35: EMPLOYMENT DISCRIMINATION 11
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 problem for female workers. In Egypt, Turkey, Argentina, Brazil, and many other countries, there is
no legal protection against any form of employment discrimination. Even in those countries that do have laws
prohibiting discriminatory employment practices, including gender-based discrimination, those laws often do
FOR CRITICAL ANALYSIS
Why are U.S. corporations more aggressive than European companies in taking steps to prevent
sexual harassment in the workplace?
5. Sexual-Orientation Harassment
Title VII does not cover harassment on the basis of sexual orientation. Many states—and many
companies—ban such discrimination, however.
I. ONLINE HARASSMENT
ENHANCING YOUR LECTURE—
E-MAIL IN THE WORKPLACE AND
“UNIVERSAL STANDARDS OF BEHAVIOR”
12 UNIT SEVEN: AGENCY AND EMPLOYMENT
AUTOLIV’S HARASSMENT AND E-MAIL POLICIES
Autoliv ASP, Inc., a supplier of auto-safety products, gives each of its more than six thousand employees
an employee handbook. Among other things, the handbook states that Autoliv will not “tolerate or permit
illegal harassment or retaliation of any nature within our workforce.” The handbook also states that the use of
e-mail “for reasons other than transmittal of business-related information” is prohibited and that violations of
company policies can result in any of several disciplinary actions, including termination.
WERE THE EMPLOYEES FIRED FOR “JUST CAUSE”?
Under the relevant state statute, to be fired for “just cause,” employees had to have “knowledge of the
conduct which the employer expected.” The two employees testified that they had not “knowingly” engaged
in misconduct. Further, if Autoliv concluded that they were engaging in misconduct, Autoliv should have
warned them and allowed them to change their conduct. The agency agreed, noting that because abuse of
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?
The focus of this case was on whether the two discharged employees were entitled to un-
CHAPTER 35: EMPLOYMENT DISCRIMINATION 13
employment benefits. Suppose, though, that the employees had sued Autoliv for wrongful discharge
on the ground that their discharge constituted a violation of an implied employment contract (see
Chapter 34). Could they have succeeded in such a suit? Why or why not?
a. 29 P.3d 7 (Utah App. 2001).
J. 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
ADDITIONAL BACKGROUND—
Paramour Liability
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.
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.
