303
CHAPTER 35
EMPLOYMENT DISCRIMINATION
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 35.1—QUESTIONS (PAGE 687)
1A. Why did the Court evaluate the language of Title VII’s anti-discrimination and antiretaliation
provisions? The Court chose to consider these provisions of Title VII because it disagreed with the
determination of the U.S. Court of Appeals for the Sixth Circuit that Title VII’s anti-retaliation ban is
limited to acts that adversely affect the terms, conditions, or benefits of employment. The Court
reasoned that there are ways outside employment and the workplace in which an employer can
retaliate against an employee.
2A. What was the Court’s interpretation of those provisions? The Court interpreted the language and
CASE 35.2—QUESTION (PAGE 690)
304 UNIT SEVEN: AGENCY AND EMPLOYMENT
THE ETHICAL DIMENSION
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
CASE 35.3—QUESTIONS (PAGE 693)
THE E-COMMERCE DIMENSION
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.
THE LEGAL ENVIRONMENT DIMENSION
Salt River argued that type 1 diabetes is harder to control than Rohr’s type 2 diabetes. Assuming that
this is true, would it support a conclusion that Rohr does not suffer from a disability? Why or why not?
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
CHAPTER 35: EMPLOYMENT DISCRIMINATION 305
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 that she type as fast
as the writers of typing speed disproportionately affected those in a protected class using the EEOC’s
“four–fifths” rule.
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,
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 after-acquired
evidence of employee misconduct. The United States Supreme Court has held that such evidence
cannot shield an employer entirely from liability for discrimination. It could, however, be used to limit
the amount of damages that she could obtain if she was successful in her lawsuit.
4A. Employer’s defense
Warner Brothers can assert the writer’s sexually explicit conduct during the meetings was a business
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 employers who discriminate against minorities and
women end up suffering from higher costs compared to nondiscriminating employers.
306 UNIT SEVEN: AGENCY AND EMPLOYMENT
ANSWERS TO QUESTIONS AND CASE PROBLEMS
AT THE END OF THE CHAPTER
35-1A. Title VII violations
(Chapter 35—Pages 681, 682–683 & 695)
(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 only ten
employees, and thus its employment of only white males is not a federal civil rights violation.
Tennington could be in violation of state law, however, depending on the requirements of the state
35-2A. QUESTION WITH SAMPLE ANSWER: Religious discrimination
Under Title VII of the Civil Rights Act, an employer must offer a reasonable accommodation to resolve a
conflict between an employee’s sincere religious belief and a condition of employment. Reasonable
accommodation is required unless such an accommodation would create an undue hardship for the
35-3A. Discrimination based on gender
(Chapter 35—Pages 683–684)
The court granted a summary judgment to Harrah’s. Jespersen appealed to the U.S. Court of Appeals for
the Ninth Circuit, which affirmed the lower court’s judgment. The appellate court acknowledged that
Jespersen was effectively terminated for failing to comply with the makeup requirement and agreed
that “appearance standards, including makeup requirements, may well be the subject of a Title VII claim
for sexual stereotyping.” In this case, however, there was no “evidence to establish that complying with
35-4A. Discrimination based on disability
(Chapter 35—Pages 691–692 & 693–694)
A job applicant who believes that he or she has been discriminated against for a certain position on the
basis of a disability, as Bradley believed in this case, must pursue a claim through the Equal Employment
Opportunity Commission (EEOC). Bradley followed that course, and the EEOC filed a suit in a federal
district court against Wal-Mart Stores, Inc., alleging a violation of the Americans with Disabilities Act
(ADA). To prevail, Bradley needed to show that he (1) has a disability, (2) is otherwise qualified for the
As for Wal-Mart’s proffered reasons for refusing to hire Bradley, the court concluded that these
were pretexts for discrimination. The decisive issue was whether Bradley was “qualified” to perform the
essential functions of the job. According to the job descriptions, “no experience or qualification is re–
quired.” Thus “a reasonable jury could find, based on [the personnel director’s] testimony, that not
hiring Bradley based on his job history has no basis in fact and was instead a post–hoc rationalization.”
What about the “direct threat to the safety of others” that Bradley posed? If he were to use only
35-5A. Defenses to employment discrimination
(Chapter 35—Page 695)
The district court decision was reversed. An employer who claims a BFOQ defense to a Title VII claim
bears the burden of proving that it would not rearrange job responsibilities or otherwise eliminate the
35–6A. CASE PROBLEM WITH SAMPLE ANSWER: Sexual harassment
In a retaliation claim, an individual asserts that she suffered a harm as a result of making a charge,
testifying, or participating in a Title VII investigation or proceeding. To prove retaliation, a party must
show that the challenged action was likely to have dissuaded a reasonable employee from making or
35-7A. Discrimination based on gender
(Chapter 35—Pages 683–684)
The reviewing court reversed and remanded the case for further proceedings. Genuine issue of material
fact existed as to whether the director of operations’ alleged requirements that hotel front desk workers
35-8A. A QUESTION OF ETHICS: Discrimination based on disability
(a) A plaintiff alleging discrimination based on a disability under the ADA must establish (1)
that the plaintiff has a disability; (2) that he or she is qualified to perform the essential functions of the
job, with or without reasonable accommodation; and (3) that he or she was excluded from the job due
to the disability. The court held that Chalfant established his case.
As for the first element, the ADA defines disability in part as “being regarded” as having “a
physical or mental impairment that substantially limits one or more of the major life activities of [an]
individual.” In this case, the court concluded that Titan regarded Chalfant as disabled because it believed
that his heart disease and arthritis “substantially limited” his ability to work in a broad range of jobs,
even though this was a mistaken belief. Chalfant wrote on his application that he considered himself
physically handicapped: “Titan therefore knew about the ailments.” Whether Titan believed that
Chalfant’s impairments substantially restricted his ability to work in a broad range of jobs, the court
noted that the job of a second shift supervisor is classified as having “light to medium strength
demands,” which is a requirement for the performance of most jobs. Thus, “a reasonable jury could
have found that Titan did not believe that a person with Chalfant’s medical impairments could work in a
class of jobs or a broad range of jobs in various classes. Therefore, the jury could have reasonably found
that Titan regarded Chalfant as disabled.”
310 UNIT SEVEN: AGENCY AND EMPLOYMENT
which affirmed the lower court’s awards. The appellate court found “sufficient evidence to show that
Titan acted with malice or reckless indifference in its decision not to hire Chalfant.” Most critical was
“Titan’s inconsistent behavior at the time of the decision and its inability to explain its behavior . . . . In
ANSWER TO VIDEO QUESTION NO. 35–9
Mary Tyler Moore
(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.” Can Mary make out a prima facie
case of gender or religious discrimination based on these questions? Why or why not? Title VII of
(4) that the employer continued to seek applicants for the position or filled the position with a
person not in a protected class. Because Mary is hired for the job, she could not establish the
third and fourth elements.
(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, Mary
ADEA only applies to employers with twenty or more employees whose business activities affect
CHAPTER 35: EMPLOYMENT DISCRIMINATION 311
(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 employment discrimination is suffering a
tangible employment action—a job rejection, a promotion denial, or some other injury or
damage. When Mr. Grant hired Mary, this effectively eviscerated job rejection as a basis for this
element. She might assert a different negative impact as a result of a discrepancy in pay or sexual
harassment if there are grounds to support either of these charges.
(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
about a discharge as a commission of a tort or a violation of public policy. Thus, it does not
discrimination, however, Mary would have to be over forty years old. She is clearly too young to
sue on this theory.
35-10A. SPECIAL CASE ANALYSIS: Sexual harassment
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
312 UNIT SEVEN: AGENCY AND EMPLOYMENT
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.