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Chapter 21
Employment Discrimination
Introduction
Chapter Twenty-One addresses these questions:
• What is the employment-at-will doctrine, and how does it help or hurt employers and
employees?
• How do constitutional provisions relate to employment discrimination?
• How does the Civil Rights Acts of 1866 and 1871 protect some employees from
employment discrimination?
• How does the Equal Pay Act of 1963 protect some employees from employment
discrimination?
• What is the Civil Right Act of 1964, and how did the Civil Rights Act of 1991 modify the
1964 Act?
Achieving Teaching Excellence
Using a Role-Play Activity as a Way to Tie Major Course Themes Together Near the End of
the Term
Peter Frederick, in his article, “Active Learning in History Classes,” presented some ideas
about role-playing in class that could easily be modified for use in the legal environment of
business classroom. One idea he presented was that he sometimes gives students time to research
historical characters and bring them together for a panel, press conference, or debate. He brings
together characters such as Benjamin Franklin, Horace Mann, or Malcolm X. The purpose of the
role-play is to bring out the “intellectual convictions, controversies, and contradictions of real
people.”
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playing, he maintains a leadership role as the President, or moderator, or whatever leadership
role is relevant given how he has designed the activity. He carefully organizes and monitors the
interactions. Finally, after the role-playing he spends time debriefing the class. He clarifies the
purpose of the exercise, and makes appropriate transitions.
Another idea would be to pick a case currently pending before the U.S. Supreme Court.
Instructors should make sure to pick a case that relates to something students have learned in
class. Then, they could divide the class into groups, with a group that represents each justice of
Another possibility is to have the class watch a movie outside of class, such as “Norma
Rae”. This movie relates well to labor law. Instructors could organize a panel discussion with a
union representative, someone from the NLRB, a businessperson who opposes unions, an
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A final idea is to use a book, such as Roberts v. Texaco to set the stage for a role-play
discussion. How did different players in that case view what happened to the plaintiff and
References
• Peter Frederick, “Active Learning in History Class,” 16 TEACHING HISTORY 67 (1991).
Chapter Overview, Topic Outline, and Discussion Questions
Chapter Overview
Today, employers’ decision-making powers are restricted by both federal and state laws,
many of which are discussed in this chapter. The right of the employer to terminate an
employment relationship was originally governed almost exclusively by the employment-at-will
doctrine, discussed in the first section of this chapter. The second section discusses the
constitutional provisions that affect an employer’s ability to hire and fire workers.
Topic Outline
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I. The Employment-at–Will Doctrine
II. Constitutional Provisions
III. The Civil Rights Act of 1866 and 1871
A. Applicability of the Acts
2. Procedural Limitations
IV. The Equal Pay Act of 1963
A. Equal Work
B. Defenses
C. Remedies
V. The Civil Rights Act of 1964, as Amended (Title VII), and the Civil Rights Act of 1991
A. Applicability of the Act
B. Proof in Employment Discrimination Cases
2. Disparate Impact
4. Same-Sex Harassment
6. A New Limitation on the Employer’s Liability
a. Vance v. Ball State University
C. Retaliation
1. Reya C. Boyer-Liberto v. Fontainbleu Corporation
D. Statutory Defenses
2. Merit
4. Mixed Motives
E. Protected Classes
2. National Origin
4. Sex
5. Pregnancy Discrimination Act
F. Enforcement Procedures
1. The Charge
2. Conciliation and Filing Suit
G. Remedies
H. Lilly Ledbetter Fair Pay Act of 2009
VI. The Age Discrimination in Employment Act of 1967
The Legal Environment Of Business: A Critical Thinking Approach
A. Applicability of the Statute
B. Proving Age Discrimination
1. Jones v. National American University
C. Statutory Defenses
1. Bona Fide Occupational Qualification
3. Executive Exemption
4. After-Acquired Evidence of Employee Misconduct
D. Enforcement Procedures
E. Remedies under ADEA
VII. The Rehabilitation Act of 1973
VIII. The Americans with Disabilities Act of 1991
A. Covered Individuals
B. Enforcement Procedures
C. Remedies
IX. Affirmative Action
X. Global Dimensions of Employment Discrimination Legislation
XI. Summary
Discussion Questions for Chapter Twenty-One
1. Evaluate this statement: Most business students will not be at will employees once they
graduate from college or get their MBA degrees.
2. Explain relationships between the employment-at-will doctrine and the public policy
exception.
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3. Explain relationships between the Civil Rights Act of 1866 and the Equal Pay Act.
One relationship between the two is that both are federal antidiscrimination laws, but they
4. Explain why someone might think this statement is true: Disparate treatment is harder to
prove than disparate impact.
5. Evaluate this statement: The bona fide occupational qualification (BFOQ) defense helps
many employers win employment discrimination cases.
6. Explain why someone might think this statement is true: The U.S. Supreme Court allows
“reverse discrimination.”
7. Evaluate this statement: Quotas are permissible and common in places of employment
today.
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8. Explain relationships between quid pro quo and hostile environment harassment.
Quid pro quo sexual harassment is a much older theory than hostile environment sexual
harassment. Hostile environment harassment theory protects more women in the workplace,
9. Explain why someone might think this statement is true: Plaintiffs in discrimination cases do
not have the chance to win verdicts as high as plaintiffs in tort cases.
10. Explain relationships between the Rehabilitation Act of 1973 and the Americans with
Disabilities Act of 1991.
One relationship between the two is that the Americans with Disabilities Act was an
11. Evaluate this statement: Current antidiscrimination statutes require employers to hire people
who are unqualified for their jobs.
None of the antidiscrimination statutes requires employers to hire people who are
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12. Evaluate this statement: Antidiscrimination statutes do not apply to U.S. citizens who work
abroad for American companies.
This statement is flawed. The Civil Rights Act of 1991 extended the protections of Title VII
Answers to Critical Thinking about the Law Questions, Case Summaries,
Answers to Review Questions, Review Problems, and Case Problems
Suggested Answers to Critical Thinking about the Law
1. The phrase “extra duties” is ambiguous. For instance, if “extra duties” means typing reports,
it is difficult to know whether this task is extra. For instance, maybe the male secretaries
2. Other reasons why the men might have received raises may be that the men:
• Started at lower probationary pay rates and their raise gave them the standard
3. The cases are similar in that men are paid more because they are special in some way—that
they are physically stronger or that they are taking on extra duties. The cases are also similar
in that the special difference between men and women might be a pretext for discrimination
Case Summary—Teresa Harris v. Forklift Systems, Inc.
This case established the hostile environment theory of sexual harassment. The Plaintiff,
Harris, was insulted by her boss, and he made numerous suggestive comments to her. Harris quit
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and filed a lawsuit. The district court ruled against her, finding that some of the comments were
Suggested Answers to Critical Thinking Questions about the Law
1. The court does not define “reasonable person”. An “objectively hostile environment” occurs
2. The key fact was whether plaintiffs had to prove the conduct “seriously affected plaintiff’s
well-being” or led her to “suffer injury.” Title VII does not require concrete psychological
harm.
Case Summary—Vance v. Ball State University
This case deals with workplace harassment. Maetta Vance made a claim that Saundra Davis
harassed her at work through physical threats and racial harassment. Vance sued Ball State
Case Summary—Reya C. Boyer-Liberto v. Fontainbleu Corporation
This case addresses alleged racial discrimination in the workplace. Reya Boyer-Liberto, an
African-American woman, sued her former employer for racial discrimination and retaliation in
violation of Title VII of the Civil Rights Act and 42 U.S.C. Section 1981. She based her racial
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The appellate court vacated the district court judgment and remanded for further proceedings
Case Summary—Jones v. National American University
This case is in the book to show how age discrimination occurs in the workplace. Kathy
Jones filed an age discrimination suit against National American University after not receiving a
promotion. NAU did not argue that the initial reason Jones was not hired was age but NAU
Suggested Answers to Critical Thinking Questions about the Law
1. The defendant cited Scroggins v. University of Minnesota and McBary v. Schreiber Foods,
Inc. because, in both of these cases, the defendant won. The defendants won because the
2. According to Judge Murphy, in the Scroggins and McBary cases, the plaintiffs were unable
to disprove the other possible reasons the defendants provided for not hiring the plaintiffs. In
Case Summary—McMillan v. City of New York
This case deals with the Americans with Disabilities Act of 1991 (ADA). Rodney McMillan
was an employee HRA Community Alternative Systems Agency (CASA). He was undergoing
treatment for schizophrenia with regular medication. His employer had a “flex–time policy”
where employees could arrive by 10:15 am. However, the tardiness of an employee would have
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Suggested Answers to Critical Thinking Questions about the Law
1. Once this case is returned to the district court stated that a reasonable juror would not find
2. Yes, it would be relevant to examine the plaintiff’s disciplinary record as it would help
determine whether he could work without supervision. Therefore, it would definitely affect
Answers to Review Questions
21-1. The employment-at-will doctrine says that any employee who does not have a contract
that stipulates the length of time that employment could last can be terminated at any
21-2. a. These jobs would be substantially similar in terms of skill, effort, responsibility,
and working conditions, so they are “equal” under the Equal Pay Act.
21-3. a. The Equal Pay Act strives to prevent wage discrimination based on sex within a
business establishment.
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21-4. a. Title VII prohibits employers from hiring, firing, or otherwise discriminating in
terms and conditions of employment, and segregating employees in a manner that
would affect their employment opportunities on the basis of their race, color,
21-5. One major change of the 1991 Civil Rights Act was that it allowed plaintiffs to recover
both compensatory and punitive damages. Also, it should be noted that the punitive
21-6. Reasonable accommodation includes accommodations such as changing work schedules,
Answers to Review Problems
21-7. Yes, the Civil Rights Act was violated. The policy is discriminatory on its face. Not all
women outlive all men, so it is unfair to make all women pay extra.
21-9. The case will hinge on whether the Christian school can assert successfully a bona fide
occupational qualification defense. This will be very difficult. The school cannot
21-10. The problem is that the supervisor’s behavior was not sexual (even though people
believed it was). Ellen should still argue the environment is hostile. She can show the
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21-11. No. The ADEA applies to a U.S. citizen who is working in a multinational company’s
21-12. The Rehabilitation Act applies only to the federal government and employers who have
contracts with the federal government. Here, the two city employees, Davis and Sims,
Answers to Case Problems
21-13. The court held that the employer violated the Americans with Disabilities Act (ADA). In
21-14. The court granted the employer summary judgment, concluding that the action could not
sustain prima facie Title VII or ADEA hostile work environment claims. The claims
21-15. The court ruled that the defendant’s statement, that the plaintiff was not the right man for
21-16. The essential functions of Richardson’s position as an assistant manager were to assist in
the kitchen, dining, and take-out operations. Performing many tasks that would be
21-17. Yes, this case constitutes discrimination. The plaintiff was able to provide a number of
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21-18. A.D.P. is covered by the Americans with Disabilities Act as she was an alcoholic. It
would be understandable if there were random breathalyzer tests but the A.D.P. was
Thinking Critically about Relevant Legal Issues
1. The issue here is that homosexuality must be treated like any other characteristic that is
2. The reasoning is that at-will employees can be let go for any reason. Homosexuality is not
an immutable characteristic and therefore falls into the category of characteristics that can
3. The analogies are inappropriate and frankly unintelligent. First of all, being gay is not a
4. The opposition would correctly argue that sexual orientation should be a protected class. It is
an immutable characteristic, just like race and gender. It is even above religion because