1. Employment Discrimination
Chapter 21
Employment Discrimination

2. Introduction The most important federal anti-discrimination laws are:
Title VII of the Civil Rights Act of 1964.
The Age Discrimination in Employment Act.
The Equal Pay Act.
The Americans with Disabilities Act.

3. §1: Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy.
In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.
Enforcement of Title VII by EEOC.

4. Intentional and Unintentional Discrimination
Intentional: “Disparate-Treatment” Discrimination. Applicant must prove:
She is member of a protected class;
Applied, qualified and rejected for job; and
Employer continued to seek applicants.
Negligent: “Disparate Impact” Discrimination.
No-protected applicant sues Employer who tries to integrate members of protected classes into workplace.

5. Race, Color, and National Origin
Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin.
Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.

6. Discrimination Based on Religion
Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.

7. Discrimination Based on Gender
Title VII prohibits sex discrimination in the work place.
Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job.
Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.

8. Discrimination Based on Gender
Two types of sex discrimination:
Differential treatment.
Sexual harassment:
Hostile Work Environment.
Quid Pro Quo.

9. Constructive Discharge
Employer allows working conditions so intolerable that reasonable person would feel compelled to quit.
Proving constructive discharge.
Objective proof of intolerable working conditions.
Courts usually require causation by employer.
Case 21.1: Conway-Jepsen v. Small Business Administration (2004).

10. Sexual Harassment
Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sexual harassment.
There are currently two forms of recognized sexual harassment:
Hostile Work Environment.
Quid Pro Quo.

11. Hostile Work Environment
Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment.
The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

12. Harassment by Supervisors
Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit.
Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.
Case 21.2: Pennsylvania State Police v. Suders (2004).

13. Supreme Court Guidelines
Faragher v. City of Boca Raton (1998).
Employer (city) could be liable for supervisor’s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees.
Burlington Industries v. Ellerth (1998).
Company liable for harassment even though the employee suffered no adverse job consequences.

14. Supreme Court Guidelines
Employers have a defense if:
They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures.
That the employee suing for harassment failed to follow these policies and procedures.

15. Harassment by Co-Workers
Employer generally liable only if employer knew or should have known and failed to take action.
Employee notice to supervisor is notice to Employer under agency law.
Employers may also be liable for harassment by non-employees.
Same-sex harassment also violates Title VII.

16. Online Harassment
Employees can create hostile work environment using chat, to spread racial and sexual jokes and slurs.
Employers can avoid liability with prompt remedial action.
Employees may be discharged for using company computers to distribute offensive material to coworkers.

17. Remedies Under Title VII
Liability may be extensive. Plaintiff may receive:
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.

18. § 2: Equal Pay Act of 1963
The EPA amends the Fair Labor Standards Act to prohibit gender-based discrimination in wages paid for similar jobs performed under similar conditions.
Pay differentials for jobs with the same or similar jobs can be justified on the basis of seniority, merit, a piece-work system, or any factor other than gender.

19. § 3: Discrimination Based on Age
The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.
Under Kimmel v. Florida Board of Regents (2000), states are immune from private lawsuits brought in federal court under 11th Amendment.

20. § 4: Discrimination based on Disability
The Americans with Disability Act (ADA) requires employers to offer reasonable accommodation to employees or applicants with a “disability” who are otherwise qualified for the job they hold or seek.
The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.

21. ADA To prevail on a claim under ADA, plaintiff must show she:
Has a “disability.”
Is otherwise qualified for the employment in question; and
Was excluded from employment solely because of the disability.
Plaintiff must first exhaust administrative relief with EEOC.

22. ADA: What is a “Disability”?
ADA defines disability as:
Physical or mental impairment that “substantially limits one or more of major life activities; or
A record of such impairment; or
Being regarded as having such an impairment.
Determination is decided on a case-by-case basis.

23. ADA: “Reasonable Accommodation”
If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.
Examples: wheelchair ramps, flexible working hours, improved training materials.
Job Applications and Pre-Employment Physical Exams.

24. Hostile Environment Claims under ADA
Some courts have allowed hostile environment suits under ADA, although ADA does not expressly allow suits for this claim.
Case 21.3: Flowers v. Southern Regional Physician Services Inc. (2001).

25. §5: Defenses to Employment Discrimination
There are four basic types of defenses to employment discrimination claims.
Business necessity.
Bona fide occupational qualification.
Seniority Systems.
After-acquired evidence of employee misconduct.

26. Business Necessity
The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.
Business necessity is a defense to disparate impact discrimination.

27. Bona Fide Occupational Qualification
The bona fide occupational qualification (BFOQ) defense requires an employer to show that an particular skill is necessary for the performance of a particular job.
The BFOQ defense is used in cases of disparate treatment discrimination.

28. Seniority Systems
A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer.
A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.

29. After-Acquired Evidence
After-acquired evidence refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit.
While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.

30. § 6: Affirmative Action
Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.
AA has led to “reverse discrimination” cases.
University of California v. Bakke (1978).
Adarand Constructors v. Pena (1995).
Hopwood v. State of Texas (1996).

31. Recent Supreme Court Decisions
Gratz v. Bollinger (2003).
Mechanical formula giving applicants points violated equal protection.
Grutter v. Bollinger (2003).
Race or ethnicity can be a flexible ‘plus’ factor in admissions.