Employment Discrimination Concepts Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

Title VII  Prohibits discrimination on the basis of: Race Color Gender Religion National origin 2

Theoretical Bases for Title VII Lawsuits  Disparate Treatment  Disparate Impact 3

Disparate Treatment  Employee’s Prima Facie Case: Employee is a member of the class of persons protected by Title VII, Employee applied for and was qualified for a job for which the employer was seeking applicants, That despite these qualifications, employee was rejected, and After this rejection, the position remained open and the employer continued to seek applicants with those same qualifications. 4

Disparate Treatment  Employer’s Defense: Employer can defend by showing that it had a legitimate, nondiscriminatory reason for its decision.  Employee’s Counter: Employee must prove that the grounds offered by the employer were merely a pretext for its actions and that discrimination was the real reason.  McDonnell Douglas Corp. v. Green, p. 93 Black civil rights activist protested after being laid off and was not rehired when new position became available. Supreme Court remanded case to give Green a chance to prove pretext. 5

Disparate Treatment  Employer may defend by showing that there is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the employer’s business Available only in cases involving gender, religion and national origin (not for race or color) The basis for preferring one group over another goes to the essence of what the employer is in business to do Predominant attributes of the group discriminated against are inconsistent with that business 6

Disparate Treatment  BFOQ examples Airlines and bus companies can have maximum age requirements Airlines cannot hire only females as flight attendants  Wilson v. Southwest Airlines, p. 95 Playboy can hire only females as Playboy Bunny servers  Essence of business – male entertainment Hooters cannot hire only females as Hooters servers  Essence of business – serving spicy chicken wings 7

Disparate Impact  Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way.  Courts have determined the that the following screening devices have a disparate impact: Educational requirement – race, e.g., Griggs v. Duke Power, p. 94 Credit status – gender, race Arrest record – race Height and weight requirements – gender, national origin 8

Disparate Impact  The Four-Fifths Rule is a rule of thumb that permits a 20% margin between the outcomes of the majority and the minority under a given screening device i.e., disparate impact is statistically demonstrated when the rate for a protected group is less than 80% (or four-fifths) of the higher scoring majority group  Employer can rebut the employee’s prima facie case by showing the existence of a business necessity e.g., requirement of credit history may result in fewer women hired, but handling large sums of money may warrant credit check  Employee would then have to prove that there is a means of addressing the issue that has less of an adverse impact 9