Management Chapter 13 Thirteen Civil Rights And Employment Discrimination

Chapter Thirteen

Civil Rights and Employment

Discrimination

A MANAGER’S DILEMMA: PUTTING IT INTO PRACTICE

Can Jokes Create a Hostile Environment?

Issues Presented: (a) Are the employees’ actions legal? (b) How should a manager balance the

need to provide a nondiscriminatory and nonharassing workplace with the need to maintain

productive relations and good morale among employees?

(a) This hypothetical is based in substantial part on incidents that occurred at the

American Eagle airlines maintenance hangar in Miami, Florida, in the 1990s and culminated in a

lawsuit filed by former American Eagle mechanic Anthony Lee in 1997. See Scott McCartney,

What Some Call Racist at American Eagle, Others Say Was in Jest, WALL ST. J., Apr. 20, 1999, at A1.

(b) Part of the difficulty applying discrimination case law is that there is a tremendous

variety of conduct that may qualify as discrimination. In any event, in order to protect both

employees and their superiors, companies should adopt a discrimination policy that is clear. To

do so, managers must:

1. Appreciate that you and your company can be held liable if your employees engage

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COMMUNICATE POLICY

1. Issue a strong policy from the CEO against harassment.

2. Provide a clear definition of harassment, using examples of inappropriate behavior.

ESTABLISH PROCEDURES

1. Appoint a senior corporate official to oversee the implementation of the policy.

2. Train your supervisors and managers to recognize and prevent harassment.

ENFORCE POLICY

1. Make sure employees who bring charges do not face retaliation.

2. Safeguard the rights of the accused.

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QUESTIONS AND CASE PROBLEMS

Question 1

Issues Presented: Is Matthews correct that her termination constituted unlawful

discrimination under Title VII?

The court in Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552 (7th Cir. 2011), rejected

Matthews’ Title VII claim. It rejected Matthews’ assertion that Wal-Mart engaged in religious

discrimination by firing her for expressing her religious beliefs. The court found that Wal-Mart

in fact had fired Matthews because she had violated company policy when she harassed a

Question 2

Issues Presented: (a) Does an employee who is terminated by her employer, allegedly based

on violation of the employer’s “No Call/No Show” policy, have a valid claim against her

employer? (b) How should her employer respond to the employee’s claims?

(a) In Willis v. Coca Cola Enterprises, Inc., 445 F.3d 413 (5th Cir. 2006), Jennifer Willis

claimed that her termination by Coca Cola Enterprises (CCE) violated the Family and Medical

Leave Act of 1993 (FMLA) and also constituted sex discrimination in violation of Title VII of the

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(b) In response to Willis’s claim that her discharge was in violation of the FMLA, CCE

asserted that Willis had provided inadequate notice of her need to take FMLA leave. CCE

argued that Willis did not inform CCE that her illness was related to her pregnancy and

therefore CCE had no actual or constructive notice that she suffered from a “serious health

. . .

While it is true that Willis’s employer placed her on leave pending medical

release, thereby suggesting that the employer had awareness that Willis had a

medical problem, Willis has not provided sufficient evidence that CCE did so

because it was on notice that she had a serious health conditions, such as sickness

due to pregnancy. . . . Therefore the district court did not err in granting

summary judgment to CCE on Willis’s FMLA claim.

Question 3

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Issue Presented: Does Helm have a valid discrimination claim under Title VII against the

State of Kansas?

In Helm v. Kansas, 656 F.3d 1277 (10th Cir. 2011), the U.S. Court of Appeals for the Tenth

Circuit affirmed the district court’s grant of summary judgment in favor of the State of Kansas.

The court set forth two theories under which an employer can be held vicariously liable under

Title VII for the harassing conduct of a supervisor. Helm relied on both.

Under the “misuse–of-delegated-authority” theory, “an employer should be vicariously

liable for a supervisor’s harassment if the harassment was made possible by abuse of

supervisory power.” This liability attaches in two situations. First, when the supervisor’s

harassment culminates in a tangible employment action (such as being terminated or demoted),

the employer is strictly liable and “[n]o affirmative defense is available.” As evidence to support

her claim that Judge Stewart’s harassment “culminated” in her termination, Helm noted the

Second, in the absence of a tangible employment action, the employer is liable unless it

can prove an affirmative defense by a preponderance of the evidence. The defense comprises

two necessary elements: (a) that the employer “exercised reasonable care to prevent and correct

promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably

failed to take advantage of any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise.”

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An employer may satisfy the second element of the defense by showing that it “acted

reasonably promptly on [the employee’s] complaint when it was given proper notice of [the

employee’s] allegations as required under its complaint procedures.” The court found this

element of the defense satisfied because Helm’s “vague complaint” early on to Chief Judge King

did not constitute adequate notice that would have triggered his duty to take corrective action.

Question 4

Issue Presented: Does Endres have a valid claim under Title VII?

In asserting his Title VII claim, Endres relied on a definition contained in Section 701(j) of

the Civil Rights Act of 1964, which provides that religion “includes all aspects of religious

observance and practice, as well as belief, unless an employer demonstrates that he is unable to

The court in Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003), held that Endres had

made a demand that would be “unreasonable to require any police or fire department to

tolerate.” Besides the difficulties that “may arise when personnel are not available to cover for

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Question 5

Issue Presented: Can the use of sexually coarse and vulgar language in the workplace

constitute sexual harassment?

In Lyle v. Warner Brothers Television, 12 Cal. Rptr. 3d 511 (Cal. Ct. App. 2004), the

California Court of Appeal concluded that triable issues of fact existed as to whether

defendants’ recounting of sexual exploits, making lewd gestures, and display of crude pictures

In Lyle v. Warner Brothers Television Productions, 132 P.3d 211 (Cal. 2006), the California

Supreme Court explained that a plaintiff may establish a violation of Title VII by showing that

discrimination because of sex has created a hostile or abusive working environment. To make

out a prima facie case of hostile work environment sexual harassment under Title VII, a plaintiff

The court first noted: “[A] hostile work environment sexual harassment claim is not

established where a supervisor or coworker simply uses crude or inappropriate language in

front of employees or draws a vulgar picture, without directing sexual innuendos or gender–

related language toward a plaintiff or toward women in general.” The court explained that a

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Question 6

Issues Presented: Was an HIV-positive employee terminated in violation of the Americans

with Disabilities Act (ADA)? Was a supervisor’s questioning about his health status

impermissible under the ADA?

Horgan first asserted that he was terminated because of his disability in violation of the

ADA. The ADA defines “disability,” with respect to an individual, as: (1) “a physical or mental

impairment that substantially limits one or more major life activities of such individual”; (2) “a

The court in Horgan v. Simmons, 704 F. Supp. 2d 814 (N.D. Ill. 2010), rejected the

defendants’ argument and denied their motion to dismiss Horgan’s first claim. Drawing all

inferences in Horgan’s favor, the court found it “certainly plausible – particularly, under the

Horgan next asserted that the questions posed by Simmons at their “social visit”

constituted prohibited inquiries in violation of the ADA. The ADA prohibits “inquires of an

employee as to whether [an] employee is an individual with a disability or as to the nature or

Question 7

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Issue Presented: What type of notice of medical condition is an employee required to give to

the employer under the Family Medical Leave Act of 1993 (FMLA) and the Americans with

Disabilities Act (ADA)?

To prevail on an FMLA claim, an employee must establish that (1) the employee was

eligible for FMLA protection, (2) the employer was covered by FMLA, (3) the employee was

entitled to take leave under the FMLA, (4) the employee provided sufficient notice of intent to

The court then considered whether Burnett had provided Habitat with the necessary

notice. The court stated that the FMLA notice requirements are “not onerous,” and that an

employee is not required to expressly mention the FMLA in his leave request. On the other

hand, an employee’s “bare assertion that he is ‘sick’” is usually insufficient. The court noted

that this case presented a close question, but concluded:

As a result, the court reversed the grant of summary judgment to Habitat on Burnett’s FMLA

interference claim. The court also concluded that Burnett’s claim that he had been retaliated

against because he sought an FMLA leave should have survived summary judgment.

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show) that his frequent urination and his temporary restriction on heavy lifting and strenuous

activity substantially limited his ability to perform a class or broad range of jobs, he has not

established a substantial limitation in the major life activity of working.”

This case might have been decided differently had it been brought after the January 1,

2009, the effective date of the ADA Amendments Act (ADAAA). Pub.L. No. 11-325, 122 Stat.

2553. The ADAAA provides that the term “substantially limits” must be interpreted

consistently with the ADAAA’s “findings and purposes,” which are listed at the beginning of

Question 8

Issue Presented: Do employees discharged in a reduction in force have an actionable age

discrimination claim against their employer?

In order to establish a prima facie case of age discrimination in a reduction-in-force

(RIF), a plaintiff must show that “(1) he is over 40 years old, (2) he met the applicable job

qualifications, (3) he suffered an adverse employment action, and (4) there is some additional

In Rahlf, the U.S. Court of Appeals for the Eighth Circuit found that the plaintiffs

established a prima facie case for age discrimination. The plaintiffs were all over forty and were

all laid off, thus satisfying the first and third elements. Because plaintiffs showed that there was

still some work for manual mold-makers, the court found the second element satisfied as well.

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The plaintiffs asserted that Mo-Tech’s stated reason was pretextual on five grounds: “(1)

there was no need for a RIF; (2) Mo-Tech failed to review their performance evaluations; (3) Mo-

Tech did not follow its own termination criteria; (4) Mo Tech destroyed the evidence relied

upon to make the decision; and (5) Mo-Tech changed its reasons for the termination.”

In response to the plaintiffs’ second argument, the court determined that Mo–Tech “was

not required to base its RIF decision on positive performance reviews.” Instead, Mo-Tech

conducted a sufficiently thorough termination process by “examin[ing] both objective data and

subjective observations.” Indeed, each mold–maker’s productivity and profitability were

objectively measured, and personal knowledge of each mold-maker also factored into the layoff

decisions.

The court quickly discarded plaintiffs’ fourth argument on the grounds that the

objective data used “was easily accessible of reproducible, and the managers testified how they

reached their ultimate decision.” Thus, “there [was] no indication that the evidence was

destroyed in an attempt to conceal the truth.”

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