Chapter 18
EMPLOYMENT DISCRIMINATION
1
Suggested Additional Assignments
Research: Sexual Harassment Policies
Ask students who are employed to find their company’s sexual harassment policy. What type of behavior
does it prohibit? What are the procedures for complaining about harassment? Do they think it is
comprehensive? What, if any, changes would they make to the policy?
Presentation: Employment Issues
Ask students to choose an issue of employment law that they or a colleague has experienced at work.
Chapter Overview
Chapter Theme
This chapter is the story of how the United States has travelled the long and bumpy road toward equality
Introduction
After the Civil War, our torn but healing country ratified three Constitutional amendments: the Thirteenth
The United States Constitution
The Fifth Amendment to the Constitution prohibits the federal government from depriving individuals of
“life, liberty, or property” without due process of law. The Fourteenth Amendment prohibits state
Civil Rights Act of 1866
As we have seen, the Civil Rights Act of 1866 was meant to provide freed slaves with the same rights as
white citizens. It has been interpreted to prohibit racial discrimination in both private and public
employment (except it does not apply to the federal government).
Title VII of the Civil Rights Act of 1964
Under Title VII of the Civil Rights Act of 1964, it is illegal for employers to discriminate on the basis of
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hostile environment, and retaliation. All of these activities are illegal if used against any of the protected
categories.
Disparate Treatment
To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others
Step 1. The plaintiff presents evidence that:
• He belongs to a protected category under Title VII.
• He was treated differently from other similar people who are not protected under Title VII.
intent is more likely than not.
You Be The Judge: Jespersen v. Harrah’s
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Facts: Darlene Jespersen was a bartender at Harrah’s Casino in Reno, Nevada. She was an outstanding
employee, praised by both customers and her supervisors. After Jespersen had been at Harrah’s for almost
20 years, the casino implemented a program whose goal was to create a “brand standard of excellence.”
The program required men to have short hair and to keep their nails neatly trimmed. Women had to wear
make-up. An expert was brought in to show the employees how to dress. The workers (both male and
female) were then photographed and told that they must look like the photographs every day at work.
Jespersen refused to wear makeup. She was told either to comply or to apply for a position that did
not require makeup. When she did neither, Harrah’s fired her. Jespersen sued under Title VII. The
district court granted Harrah’s motion for summary judgment. Jespersen appealed.
You Be The Judge: Did Harrah’s requirement that women wear make-up violate Title VII?
Holding: Judgment for Harrah’s. Although this was only a summary judgment motion, the court held
for Harrah’s on the grounds that:
1. Jespersen had not introduced evidence that Harrah’s policy imposed a heavier burden on women
different, but none on its face places a greater burden on one gender than the other.
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3. The appearance policy applied to both male and female bartenders, and was aimed at creating a
professional and very similar look for both of them.
4. There was no evidence that the grooming policy was motivated by sex stereotyping.
Question: Harrah’s “Personal Best” policy establishes different requirements for men and women.
Isn’t that illegal?
Question: Do you mean it is legal to treat men and women differently in the workplace?
illegal if employers impose a greater burden on one sex than the other.
Question: But women had to wear make-up and men didn’t. Isn’t that a heavier burden?
Question: Isn’t that obvious? Did the court think that make-up is free?
not men to have long hair.
General Question: Did the policy impose equal burdens on male and female employees?
Disparate Impact
Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in
practice excludes too many people in a protected group.
The steps in a disparate impact case are:
Step 1, The plaintiff must present a prima facie case. The plaintiff is not required to prove
discrimination; he need only show a disparate impact—that the employment practice in question
KLandmark Case: Griggs v. Duke Power
2
Facts: Before Title VII, Duke Power hired black employees only in the labor department, where the
highest pay was less than the lowest earnings in the other departments. After Title VII, the company
required all new hires for jobs in the desirable departments to have a high school education or satisfactory
scores on two tests that measured intelligence and mechanical ability. Neither test gauged the ability to
perform a particular job. The pass rate for whites was much higher than for blacks and blacks were also
Issue: Does a policy violate Title VII if it has a discriminatory impact but no discriminatory purpose?
2
401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134, United States Supreme Court, 1971
4 Unit 3 Agency and Employment Law
Excerpts from Chief Justice Burger’s Decision: Congress did not intend by Title VII to guarantee a job
to every person regardless of qualifications. What is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate
on the basis of racial or other impermissible classification.
The Act proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business necessity. If an employment practice which
operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the general
[G]ood intent or absence of discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to
measuring job capability. Congress directed the thrust of the Act to the consequences of employment
practices, not simply the motivation. More than that, Congress has placed on the employer the burden of
showing that any given requirement must have a manifest relationship to the employment in question.
History is filled with examples of men and women who rendered highly effective performance
without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.
Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that
Reasoning: Under Title VII, employers may establish job requirements that exclude more blacks
than whites, but only if the requirements are necessary to do that particular work. In this case, there was
no evidence that either a high school diploma or the two tests bore any relationship to the job in question.
Indeed, white employees without any of these qualifications had been doing the jobs well for years, and
had even been promoted.
Whether or not Duke Power intended to discriminate is irrelevant. Title VII is concerned with the
consequences of an employer’s practices, not its motivation. The burden is on the employer to show that
all job requirements have an important relationship to the work in question. Any tests must measure the
person for the job and not the person in the abstract.
Question: What is a factor that the court looked at to determine if Duke Power had a discriminatory
purpose?
Answer: The consequences of the action.
Question: What does disparate impact mean?
Answer: The employer or management may enact a policy or regulation that is, on its face, non–
Hostile Work Environment
Employers violate Title VII if they permit a work environment that is so hostile toward people in a
protected category that it affects their ability to work. This rule applies whether the hostility is based on
Chapter 18 Employment Discrimination 5
Sexual Harassment. Everyone has heard of sexual harassment, but few people know exactly what it is. So
what is sexual harassment anyway? Sexual harassment involves unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature. There are two major categories of
sexual harassment: (1) quid pro quo and (2) hostile work environment.
Case: Teresa Harris v. Forklift Systems, Inc.
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Facts: Charles Hardy, president of Forklift Systems, frequently made inappropriate sexual comments to
Teresa Harris and other women at the company. He said to Harris, “You’re a woman, what do you
know?” and “We need a man as the rental manager.” He called her “a dumb ass woman” and suggested
Harris sued Forklift. The trial court ruled that Hardy’s comments might offend a reasonable woman,
but they were not severe enough to cause a serious impact on Harris’s psychological well-being. The
appeals court confirmed, and the Supreme Court granted certiorari.
Issue: To be a violation of Title VII, must sexual harassment seriously affect the employee’s
psychological well-being?
Holding: The Court held for Harris. Title VII is violated if the workplace is permeated with
discriminatory intimidation, ridicule, and insults that are sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment. This standard takes a
middle path between making actionable any conduct that is merely offensive and requiring the conduct to
cause a tangible psychological injury.
Question: Would Hardy’s behavior offend a reasonable woman?
Question: Did the Supreme Court agree?
Answer: No. Writing for the court, Justice O’Connor said that one or two swear words is not
3
510 U.S. 17, 114 S. Ct. 367, 1993 U.S. LEXIS 7155 United States Supreme Court, 1993
6 Unit 3 Agency and Employment Law
Question: How can you tell if you are committing sexual harassment?
Answer: You might try looking back at the ethics checklist in Chapter 2. If you would be
Additional Case: Lyle v. Warner Brothers Television Productions
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Students often believe that a company can be held liable for even mild sexual behavior on the part of
employees. In reality, successful sexual harassment cases typically involve extreme behavior. The
following case is an example where extreme behavior was found not to be sexual harassment.
Facts: Amaani Lyle was a comedy writers’ assistant who worked on the production of the television
show Friends. The show revolved around a group of young, sexually active adults, featured adult-
oriented sexual humor, and typically relied on sexual language and gestures to convey its humor. Before
Issue: Did the writers’ use of coarse and vulgar language constitute a hostile work environment?
Holding: No, the defendant’s motion for summary judgment was affirmed. According to the court, Lyle
testified that she had no recollection of any employee of the Friends production ever saying anything
sexually offensive about her directly, nor anyone asking her out on a date or sexually propositioning her.
No one ever demanded sexual favors from Lyle or physically threatened her.
However, there were a number of offensive discussions and actions that occurred in the writers’
According to the court, in order to bring a successful hostile work environment claim, Lyle must
show that the conduct complained of was severe or pervasive to alter her work conditions and create a
hostile environment because of her sex. Thus, it is the difference in treatment based on Lyle’s sex, not the
mere discussion of sex or use of vulgar language that is the essence of her claim. A hostile work
environment claim is not established where a supervisor or coworker simply uses crude or inappropriate
language in front of an employee or draws a vulgar picture without directing sexual innuendos or gender–
related language at the employee or women in general. In addition, the court must look carefully at the
Chapter 18 Employment Discrimination 7
Lyle’s work hours or duties. While the conduct was certainly sexual in nature, a court could not find that
had Lyle been a man she would not have been treated in the same manner.
Question: There was some graphic conversation at the writers’ table. How could the court not find it
created a hostile work environment?
Answer: The court felt that the comments were never directed at Lyle, her work conditions were
Question: Do you think it is meaningful that the writers warned Lyle in her interview that there
would be lowbrow humor?
Answer: The fact that Lyle was warned in the interview about the atmosphere is important to show
Additional Assignment:
Students who researched sexual harassment policies could present their findings here.
Same-Sex Harassment. Suppose that one man makes unwelcome sexual overtures to another man in the
workplace. The Supreme Court ruled that same-sex harassment is also a violation of Title VII.
Employer Liability for Sexual Harassment. The Supreme Court has held that:
• The company is liable if it knew or should have known about the conduct and failed to stop it.
Retaliation
Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a
claim under the statute, or take part in an investigation or hearing.
Religion
Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers
Sex
In a landmark case that defined this provision of Title VII, the Supreme Court ruled that “gender must be
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Family Responsibility Discrimination
Increasingly, courts are finding that discrimination on the basis of parenthood (as in favoring childless
Sexual Orientation
Neither Title VII nor any other federal statute protects against discrimination based on sexual orientation
Gender Identity
The EEOC recently ruled that discriminating against someone for being transgender is a violation of Title
VII.
Defenses to Charges of Discrimination
Under Title VII, the defendant has four possible defenses.
Seniority.
Bona Fide Occupational Qualification.
Affirmative Action. Affirmative action is not required by Title VII, nor is it prohibited.
Example: Bona Fide Occupational Qualification
Increasingly, women prefer female gynecologists and obstetricians (OB-GYNs). Since 72 percent of the
doctors in the field are men, women OB GYNS are in high demand. Women OB GYN residents receive
more job offers than their male colleagues, at higher starting salaries. Some women are opening all
female practices and refusing to hire men.
Question: If a hospital or clinic refused to hire male OB GYNs, would it be in violation of Title VII?
Question: Would the hospital have a defense?
Question: Is this a legitimate defense?
Answer: It is difficult to predict how a court would rule. There are two countervailing arguments:
Chapter 18 Employment Discrimination 9
Equal Pay Act of 1963
Under the Equal Pay Act, an employee may not be paid at a lesser rate than employees of the opposite sex
for equal work.
Pregnancy
Under the Pregnancy Discrimination Act, an employer may not fire, refuse to hire, or fail to promote a
woman because she is pregnant.
Age Discrimination
The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against
Disparate Treatment
In a disparate treatment claim, the plaintiff must show that the employer intentionally discriminated
against him because of his age, or enacted a policy that intentionally treated employees differently
because of their age. Proof of intent involves obvious statements and behavior or more subtle
circumstantial evidence.
Under the ADEA, a disparate treatment case requires three steps.
Step 1. The plaintiff must show that:
Case: Reid v. Google, Inc.
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Facts: Google’s vice-president of engineering, Wayne Rosing (aged 55), hired Brian Reid (52) as director
of operations and director of engineering. Reid had a Ph.D. in computer science and had been a professor
of electrical engineering at Stanford University. At the time, the top executives at Google were CEO Eric
Schmidt (47), vice-president of engineering operations Urs Hölzle (38), founders Sergey Brin (28), and
5
50 Cal. 4th 512, 2010 Cal. LEXIS 7544; Supreme Court of California, 2010
10 Unit 3 Agency and Employment Law
According to Reid, even as he received a positive review, Hölzle and other employees made derogatory
age-related remarks such as: his ideas were “obsolete”, “ancient” and “too old to matter,” that he was
“slow,” “fuzzy,” “sluggish,” and “lethargic,” an “old man,” an “old guy,” and an “old fuddy–duddy,” and
that he did not “display a sense of urgency” and “lacked energy.”
Fifteen months after Reid joined Google, cofounder Brin emailed several executives about Google’s
Excerpts from Justice Chin’s Decision expressing the unanimous view of the court: Reid offered
discriminatory comments that coworkers and decision makers made, and evidence that Google demoted
Reid to a nonviable position before terminating him and advanced changing rationales for his termination.
Google contends that the Court of Appeal should have applied the stray remarks doctrine, i.e., should
have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks, and disregarded
them in reviewing the merits of the summary judgment motion.
[Justice O’Connor of the Supreme Court of the United States has] stated that “stray remarks’ —
“statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process
disposed of before trial.
[S]trict application of the stray remarks doctrine, as urged by Google, would result in a court’s categorical
exclusion of evidence even if the evidence was relevant. An age-based remark not made directly in the
context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial
evidence of discrimination. In a later decision authored by Justice O’Connor, the United States Supreme
Court indicates that even if age-related comments can be considered stray remarks because they were not
made in the direct context of the decisional process, a court should not categorically discount the evidence
if relevant; it should be left to the fact finder to assess its probative value.
[T]he stray remarks cases merely demonstrate the common-sense proposition that a slur, in and of itself,
does not prove actionable discrimination. A stray remark alone may not create a triable issue of age
discrimination. But when combined with other evidence, an otherwise stray remark may create an
ensemble [that] is sufficient to defeat summary judgment.
For the reasons stated above, we affirm the judgment of the Court of Appeal.
Question: Did the California Supreme Court find that there is enough to support a trial?
Question: What does the court say about stray remarks?
Chapter 18 Employment Discrimination 11
Disparate Impact
Disparate impact claims arise when an employer’s actions do not explicitly discriminate, but nonetheless
have an adverse impact on people aged 40 or over. Here, too, the standards are different under the ADEA
Discrimination on the Basis of Disability
The Rehabilitation Act of 1973
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive branch
of the federal government, federal contractors, and entities that receive federal funds.
Americans with Disabilities Act
Passed in 1990, The Americans with Disabilities Act (ADA) prohibits employers from discriminating on
the basis of disability. As with Title VII, a plaintiff under the ADA must first file a charge with the
EEOC. If the EEOC decides not to file suit, the individual may do so himself.
Case: Allen v. Southcrest Hospital
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Facts: After some years as a medical assistant at SouthCrest Hospital, Alethia Allen requested a transfer
to work for a different physician in the same hospital. Unfortunately, Allen found her new job to be much
more stressful than the old one. Indeed, it was so stressful that she began suffering severe migraine
headaches several times a week. Prior to this new job, she had only had one migraine headache in her life.
Ultimately, Allen resigned because of the migraines. The hospital asked that she stay on to cover for some
Excerpts from Justice Matheson’s Decision: [T]he evidence showed that Ms. Allen’s migraines, when
active and treated with medication, did not permit her to perform activities to care for herself in the
evenings and compelled her to go to sleep instead. But it was her burden to make more than a conclusory
showing that she was substantially limited in the major life activity of caring for herself as compared to
the average person in the general population.
6
U.S. App. LEXIS 25488,UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 2011
12 Unit 3 Agency and Employment Law
possible for her to complete the activities of caring for herself the next morning that she had neglected the
previous evening, or how her difficulties in caring for herself on days she had a migraine compared to her
usual routine of evening self-care.
She also made no attempt to show how the alleged limitations created by her need to “crash and burn”
compared to the average person’s ability to care for herself in evenings after work. The average person,
We next address the major life activity of working. Ms. Allen admitted that her condition only affected
her work for Dr. Myers. [W]here an individual has a need to demonstrate that an impairment substantially
limits him or her in working, the individual can do so by showing that the impairment substantially limits
Additional Case: Toyota v. Williams
Facts: When Ella Williams’s doctor diagnosed her with carpal tunnel syndrome, Toyota transferred her
from an assembly line position to a job in Quality Control Inspection Operations (QCIO). Employees in
this department typically performed four different jobs, but Williams was initially assigned only two
tasks. Toyota then changed its policy and required QCIO employees to rotate through all four jobs.
Williams began to perform the “shell body audit.” After applying oil to the outside of cars, she
visually inspected each car for flaws. To perform this task, she had to hold her hands and arms up around
The Court of Appeals for the Sixth Circuit found that Williams was disabled under the terms of the
ADA because her impairments substantially limited her in the major life activity of performing manual
tasks. The Supreme Court granted certiorari.
Issues: Was Williams disabled, within the terms of the Americans with Disabilities Act? Did Toyota
violate the ADA?
Holding: The Supreme Court reversed the appeals court, holding that to be disabled an individual must
disabled.
Question: Could Williams perform her job at Toyota?
Answer: No, she could not keep her arms raised at shoulder height for extended periods of time.
Chapter 18 Employment Discrimination 13
Question: Do you agree with this decision? Is it compassionate?
Answer: The court seemed concerned that, if the ADA covered every worker with carpal tunnel
Question: Why didn’t Toyota let her continue to perform just the two jobs she was capable of doing?
Accommodating the Disabled Worker
Once it is established that a worker is disabled, employers may not discriminate on the basis of disability
so long as the worker can, with reasonable accommodation, perform the essential functions of the job. An
accommodation is not reasonable if it would create undue hardship for the employer.
Genetic Information Nondiscrimination Act
Suppose you want to promote someone to CFO, but you know that her mother and sister both died young
Additional Case: Sutton v. United Airlines, Inc.
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United Airlines required its pilots to have uncorrected vision of at least 20/100. It refused to hire twin
sisters with 20/200 vision, even though their vision could be corrected to 20/20. The sisters sued under the
ADA, claiming that United Airlines was discriminating against them because of a disability.
The Supreme Court held that the ADA did not apply because the sisters were not disabled. Although
they could not satisfy the requirements of a particular job, airline pilot, they were not substantially limited
in a major life activity–namely, working. There were many other jobs they could hold, such as flying
instructor.
8
Question: What is a disabled person?
Question: The twin sisters had 20/200 vision. Were they disabled?
Question: Could you argue that they were not disabled?
Question: But didn’t their impairment prevent them from getting the job they wanted?
Answer: It may have prevented them from getting that particular job, but they were eligible for most
Question: How many Americans currently have some disability as defined by the ADA?
Answer: When passing the ADA, Congress estimated that 43 million Americans have some sort of
disability.
Question: How many people have correctable disabilities?
Answer: According to the Supreme Court, more than 160 million Americans have a correctable dis–
7
1999 U.S. LEXIS 4371.
14 Unit 3 Agency and Employment Law
Enforcement
Employment laws provide plaintiffs with different enforcement options.
• People bringing a claim under the Constitution must file suit on their own.
• For plaintiffs alleging racial discrimination, the Civil Rights Act of 1866 offers substantial
advantages over Title VII:
Multiple Choice Questions
1. Gregg Young, the CEO of BJY Inc., insisted on calling Mamdouh El–Hakem “Manny” or “Hank”
even when El-Hakem asked him not to. El-Hakem was of Arab heritage. Young argued that a
“Western” name would increase El–Hakem’s chances for success and would be more acceptable to
BJY’s clientele. Does this behavior violate the law?
(a) Yes, Young violated Title VII by discriminating against El-Hakem on the basis of his national
origin.
(b) Yes, Young was creating a hostile work environment.
(c) Both (a) and (b)
(d) No, Manny is just a nickname. No harm was intended and, indeed, no harm resulted.
(e) No, because customers did prefer a Western name.
2. The CEO of BankTwo realized that not one single officer of the bank was female or minority. He
announced that henceforth, the bank would only hire people in these two groups until they made up at
least 30 percent of the officers. Is this plan legal?
(a) Yes, voluntary affirmative action plans are always legal.
(b) Yes, because fewer than 20 percent of the officers are female or minority.
(c) No, to be legal, the goal of an affirmative action plan cannot be greater than 20 percent female or
minority.
(d) No, the plan is too unfair to white men, who have no chance of being hired for a long time.
3. When Allain University was looking for a diversity officer, it decided it would only hire a person of
color. Is this decision legal?
(a) Yes, color is a BFOQ for this position.
(b) No, color is never a BFOQ, but race could be.
Chapter 18 Employment Discrimination 15
(c) No, neither race nor color can be a BFOQ.
(d) No, race and color can be a BFOQ, but is not in this situation. A person does not have to be a
member of a minority group to promote diversity.
4. Ralph has worked as model builder at Snowdrop Architects for thirty years. The firm replaces him
with Charlotte who is only 24 and willing to work for 30% less than his salary. The firm never
offered to let him stay for less pay. When he left, one of the partners told him, “Frankly, it’s not a bad
thing to have a cute young person working with the clients.” Which of the following statement is
true?
(a) Snowdrop is liable because it had an obligation to offer Ralph the lower salary before firing him.
(b) Snowdrop is liable because it is illegal to replace an older worker with a younger one just to save
money.
(c) Snowdrop is liable because age was a factor in Ralph’s firing.
(d) Snowdrop is liable under Title VII because it replaced an old man with a young woman.
(e) Snowdrop is not liable because age was not the deciding factor in Ralph’s firing.
5. During chemotherapy for bone cancer, a delivery person is exhausted, nauseous and weak. He has
asked permission to come in later, work a shorter day and limit his lifting to 10 pounds. Delivery
people typically carry packages of up to 70 pounds. Does Vulcan, his employer, have the right to fire
him?
(a) Vulcan must create a new position so that the employee can do something else.
(b) Vulcan must transfer the employee to another position but only if one is vacant and he is able to
perform it.
(c) Vulcan can fire the man because none of his major life activities have been affected.
(d) Vulcan can fire the man because he cannot perform the essential functions of his job.
(e) Vulcan can fire him because he is not disabled — once the chemotherapy treatments end, he will
feel fine again.
Essay Questions
1. Disney World and Abercrombie & Fitch both fired female employees who insisted upon wearing a
Muslim headscarf because such apparel violated the companies’ appearance policies. Can these
employers make reasonable accommodation for this religious practice? Abercrombie also fired a
salesperson who converted to a Christian religion that forbade her from showing skin. When she
showed up for work in an ankle-length skirt, her manager told her she had to either wear jeans or
short skirts with leggings, but she refused. Did Abercrombie violate Title VII in this case?
Answer: In the case involving the Christian religion, the court denied Abercrombie’s motion for
reasonable accommodation.
16 Unit 3 Agency and Employment Law
2. In the 2008 recession, Roger lost his job as a comptroller. Desperate for work after a year of
unemployment, he began to apply for any accounting job at any company. But no one would hire him
because he was “over-qualified and over-experienced.” He repeatedly explained that he was eager to
fill the job that was available. Have these companies that refused to hire Roger violated the ADEA?
Answer: In a similar case, the court ruled that, while qualifications and experience are correlated
3. More than 90 percent of employers conduct criminal background checks, and many of these
automatically exclude any job applicant with a criminal record. Is this practice a violation of the law?
Answer: The EEOC recently ruled that, while employers may legally consider criminal records in
4. The Lillie Rubin boutique in Phoenix would hire only women to work in sales because fittings and
alterations took place in the dressing room or immediately outside. The customers were buying
expensive clothes and demanded a male-free dressing area. Has the Lillie Rubin store violated Title
VII? What would its defense be?
Answer: Customer preference is a bona fide occupational qualification only in cases like this
5. FedEx refused to promote José Rodriguez to a supervisor’s position because of his accent and “how
he speaks.” Is FedEx in violation of the law?
Answer: The Sixth Circuit Court of Appeals ruled that this behavior could be illegal discrimination
Discussion Questions
1. In the Griggs disparate impact case, Duke Power based employment decisions on written tests. Why
do employers use these types of tests? When are they appropriate in the hiring or promotion process?
2. In disparate treatment cases, the plaintiff must show that the defendant intentionally discriminated,
but not in disparate impact cases. Is it fair to hold employers liable when they have not engaged in
intentional wrongdoing?
Chapter 18 Employment Discrimination 17
3. Generally, the BFOQ defense does not apply to customer preference. But recently, some clients have
been pressuring their law firms to staff their cases with female and minority lawyers. If a firm does
so, would the BFOQ defense be valid? Should it be?
4. Pam Huber worked at Wal-Mart as a grocery order filler, earning $13 an hour. While on the job, she
suffered a permanent injury to her right arm and hand. Both she and Wal-Mart agreed that she was
disabled under the ADA. As a reasonable accommodation, she asked for a job as a router, which was
then vacant. Although she was qualified for that job, she was not the most qualified. Wal-Mart filled
the job with the most qualified person. It offered Huber a position as a janitor at $6.20 per hour. Did
Wal-Mart violate the ADA?
Answer: The court ruled that Wal-Mart was not in violation of the ADA. An employer is not required
5. Mary Ann Singleton was the librarian at a maximum security prison located in Tazewell County,
Virginia. About four times a week, Gene Shinault, assistant warden for operations, insistently
complimented Singleton; stared at her breasts when he spoke to her; on one occasion, he measured
the length of her skirt to judge its compliance with the prison’s dress code and told her that it looked
“real good”; constantly told her how attractive he found her; made references to his physical fitness,
considering his advanced age; asked Singleton if he made her nervous (she answered “yes”); and
repeatedly remarked to Singleton that if he had a wife as attractive as Singleton, he would not permit
her to work in a prison facility around so many inmates. Shinault told Singleton’s supervisor in her
presence, “Look at her. I bet you have to spank her every day.” The supervisor then laughed and said,
“No. I probably should, but I don’t.” Shinault replied, “Well, I know I would.” Shinault also had a
security camera installed in her office in a way that permitted him to observe her as she worked.
Singleton reported this behavior to her supervisor, who simply responded, “Boys will be boys.” Did
Shinault sexual harass Singleton? Whether or not Shinault violated the law, what ethical obligation
did Singleton’s superviser have to protect her from this type of behavior?
Answer: The Fourth Circuit Court of Appeals ruled that this behavior did not constitute sexual
behavior interfered with her ability to perform her job. (2004 U.S. App. LEXIS 24059)
6. Ronald Lockhart, who was deaf, worked for FedEx as a package handler. Although fluent in
American Sign Language, he could not read lips. After 9/11, the company held meetings to talk about
security issues. Lockhart complained to the EEOC that he could not understand these discussions.
FedEx fired him. Has FedEx violated the law?
Answer: The EEOC ruled that FedEx should have provided a sign-language interpreter during
18 Unit 3 Agency and Employment Law
Bonus Exam Strategy:
Question: Janet recently joined the Freewill Pentecostal Holiness Church and as a member she is not
allowed to wear pants. Her employer, Sal’s Seafood Sales and Distributing, requires all employees
Strategy: This question is an employment discrimination issue. We know that under Title VII, an
employer may not discriminate based on race, color, national origin, gender, or religion. When a
religious belief conflicts with an employment policy, the employer has a duty to reasonably
accommodate the employee’s belief, unless so doing would cause an undue hardship for the
employer.
Result: Janet has a conflict with her belief and the requirement to wear the coveralls. She explained