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CIVIL RIGHTS AND EMPLOYMENT DISCRIMINATION
Civil rights laws help ensure that every member of society has the opportunity to reach his or her
full potential. Managers who fail to enact and enforce polices to ensure compliance with federal
legislation prohibiting employment discrimination put their companies at risk of being penalized
by large fines and judgments. This chapter provides an overview of federal legislation barring
I. OVERVIEW OF CIVIL RIGHTS LEGISLATION
A. Enforcement. The Equal Employment Opportunity Commission (EEOC) is the
primary enforcer of U.S. civil rights legislation.
B. Definition of Adverse Employment Action.
1. Some courts hold an expansive view of adverse action.
2. Other courts hold adverse action to mean only an act that materially
affects the terms and conditions of employment.
II. TITLE VII. Title VII bans discrimination based on an individual’s race, color, religion,
national origin, or gender.
A. Traditional Discrimination Claims.
1. Disparate Treatment. Plaintiff must prove that the employer intentionally
discriminated against him or her by denying a benefit or privilege of
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2. Disparate Impact. Plaintiff does not have to prove intentional
discrimination; rather plaintiff must show that an employment practice had
a disparate impact on a protected group. Plaintiff must show:
• The specific employment practice caused, e.g., a statistically
significant disproportion between the racial composition of the persons
holding the jobs at issue and the racial composition of the qualified
• The business justification offered by the employer to justify the
disparate impact must relate to job performance.
CASE 13.1 Ricci v. DeStefano, 129 S.Ct. 2658 (2009). City of New
Haven refused to use examination results for promotion
purposes because the only candidates eligible were
treatment discrimination.
B. Harassment claims typically address sex or gender bias or mistreatment, but may
include harassment on the grounds of race, ethnicity, religion, etc.
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1. Sexual Harassment. Based on Title VII language “because of sex.”
• Quid Pro Quo Harassment. The employer is always liable in cases
of quid pro quo harassment.
• Hostile Environment Harassment. The threat of adverse job action
2. Racial, National Origin, and Religious Harassment claims must follow
the rule in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Though
plaintiff usually must show a pattern, harassment from a superior may be
sufficient. See Taylor v. Metzger, 706 A.2d 685 (N.J. 1998).
CASE 13.2 Green v. Franklin National Bank of Minneapolis, 459 F.3d
903 (8th Cir. 2006). Green was a teller at Franklin National.
Green worked with Jared Howard, a Caucasian male teller at
the Washington branch. According to Green, Howard began
BAGLEY, MANAGERS AND THE LEGAL ENVIRONMENT 7TH ED—INSTRUCTOR’S MANUAL
bank, which she did. He said would speak to Howard about
it, but according to Green, Erdman never spoke with Howard
about Green’s complaint. On August 1, Reep gave Howard a
3. Employer and Supervisor Liability for Hostile Environment. Employers
are responsible for all torts committed by employees acting within the
scope of employment.
• Negligence. The employer is negligent with respect to sexual
harassment if he knew or should have known of the harassment,
but failed to stop it.
C. Duty to Accommodate Religious Beliefs. Employer should accommodate
religious beliefs but need not suffer hardship.
D. Retaliation. Employers can be held liable for retaliation against employees who
have complained about sexual harassment or other types of discrimination.
CASE 13.4 Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011).
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E. Special Applications of Title VII. The civil rights legislation was designed to
prevent discrimination on race, religion, and sex. The law has expanded to reach
more subtle forms of discrimination.
1. Sexual Stereotyping. In Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), Ann Hopkins was denied partnership in the accounting firm
PricewaterhouseCoopers after being told by the policy board that, to
improve her chances for partnership, she should “walk more femininely
2. Pregnancy Discrimination is, on its face, a form of sex discrimination
under Title VII.
3. Fetal-Protection Policies. Certain chemicals are harmful to an unborn
child and can create an action for an unsafe work environment.
CASE 13.4 EEOC v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d
1272 (N.D. Okla.2011). Applicant, a Muslim, wore a
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traditional head scarf to the interview, which was not allowed
F. Defenses under Title VII. There are a number of statutory defenses.
1. Bona Fide Occupational Qualification (BFOQ) allows an employer to hire
an individual on the basis of religion, gender, or national origin, if such a
quality is a BFOQ for that particular business.
G. Remedies Under Title VII include: (1) lost salary and benefits, (2) reinstatement
or “front pay” (3) injunctive relief, (4) future losses, (5) emotional pain and
suffering, (6) inconvenience, and (7) punitive damages.
1. Punitive Damages. Plaintiff must demonstrate that the employer engaged
in a discriminatory practice with malice or reckless indifference to the
federally protected rights.
III. AGE DISCRIMINATION. The federal Age Discrimination in Employment Act (ADEA)
prohibits age discrimination to individuals aged forty years or older. Replacement with a
“substantially younger” employee is a more reliable indicator of age discrimination. See
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A. Disparate Impact and the Defense of a Reasonable Factor Other Than Age.
Employer actions that do not violate the ADEA on its face may still be actionable
if they have a statistically significant impact on workers over forty.
B. Older Workers’ Benefit Protection Act. OWBPA prohibits age discrimination in
providing employee benefits, and establishes minimum standards for employees
who waive their rights under the ADEA.
IV. DISABILITY DISCRIMINATION. The Americans with Disabilities Act (ADA) prohibits
employers from discriminating because of a disability in regard to job applications,
hiring, training, work, compensation or benefits. The ADA also covers employee benefit
packages.
A. Impermissible Discrimination. Employers cannot intentionally discriminate
B. Definition of Disability. The ADA defines a person with a disability as one with
physical or mental impairment to include the idea of a substantial limit on one or
more of that person’s major life activities.
1. Physical or Mental Impairment as defined in the ADA and relevant CFRs
examines one capacity to function due to physical ailments, not social or
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3. Exclusions. The ADA specifically excludes drug addiction,
homosexuality, bisexuality, sexual-behavior disorders, compulsive
C. Reasonable Accommodation. ADA requires employers to make reasonable
accommodations to an employee’s disability such as: (1) making work facilities
accessible; (2) restructuring jobs or modifying work schedules; (3) reassigning the
D. Defenses Under the ADA. The ADA notes three defenses for failure to comply:
undue hardship; business necessity; and permissible exclusion.
1. Undue Hardship: Activity requiring significant difficulty or expense in
light of the circumstances.
2. Business Necessity may excuse the employer from ADA compliance.
E. HIV Discrimination. The ADA does not specifically list HIV. Within the
workplace, medical records must remain confidential lest employers are sued for
violations of privacy and or slander. In Leonel v. American Airlines, court held
that defendant may have violated ADA by refusing to hire HIV-positive flight
attendant candidates who did not reveal their medical history.
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F. Genetic Discrimination (GINA). Approximately 18 states ban genetic
discrimination. The EEOC has determined that the ADA prohibits discrimination
V. FAMILY AND MEDICAL LEAVE ACT (FMLA) of 1993 grants up to twelve weeks of
unpaid leave per calendar year under one of the following conditions: (1) the birth of a
VI. VETERANS’ REEMPLOYMENT RIGHTS. USERRA protects the civilian jobs of members
of the uniformed services of the United States. USERRA requires an employer to rehire
covered employees and prohibits employers from treating employees differently after
they are rehired.
VII. AFFIRMATIVE ACTION. Affirmative-action programs are generally viewed as a means
to remedy past acts of discrimination. However, In Adarand Construction v. Pena, 515
IX. APPLICABILITY OF CIVIL RIGHTS LAWS TO TEMPORARY WORKERS. The EEOC has
extended discrimination liability to temporary workers.
THE RESPONSIBLE MANAGER: TEACHING SUGGESTIONS
1. In 1991 Congress amended title VII of the Civil Rights Act to cover U.S. citizens
2. In 2004 an Indian software firm settled a sexual harassment suit. In the current era of
globalization companies must learn to implement anti-discrimination practices that
BAGLEY, MANAGERS AND THE LEGAL ENVIRONMENT 7TH ED—INSTRUCTOR’S MANUAL
3. Managers must be diligent in preventing and correcting any unlawful discrimination
either in the pre-employment process or during employment. Management should