1. Chapter 42 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 vs. 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. 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.
See Frazee v. Illinois Dept. of Employment Security (1989).

7. Gender “Sex” Discrimination
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. Gender Discrimination
Two types of sex discrimination:
Differential treatment.
Sexual harassment, which itself, exists in two varieties:
Hostile Work Environment.
Quid Pro Quo.

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

10. 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.

11. Quid Pro Quo (Economic Harassment)
Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit.
See Faragher v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998).
Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.

12. 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.

13. Remedies for Harassment
Liability may be extensive. Plaintiff may receive:
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.

14. § 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.

15. § 3: Age Discrimination
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.

16. § 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.

17. §4: 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.

18. 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.

19. 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.

20. §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.

21. 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.

22. 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.

23. 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.

24. 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.

25. § 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).

26. AA: The Hopwood Case
In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission. The Fifth Circuit opined:
“Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hatred.” Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996).
The U.S. Supreme Court denied certiorari and so the opinion stands.

27. Case 42.1: Carey v. Mount Desert Island Hospital (Gender Discrimination)
FACTS:
Carey was VP for Finance at Mount Desert Island Hospital (MDI). When the position of chief executive officer (CEO) opened up, Carey applied but the position was offered to Hawkins, a woman.
Later, Hawkins terminated Carey and Carey sued for gender-based discrimination.
At trial Carey presented statements by one female executive that “we have different standards for men and women,” and by another female executive that “it’s about time that we get a woman for this [CEO] position.”

28. Case 42.1: Carey v. Mount Desert Island Hospital (Gender Discrimination)
HELD: FOR CAREY. $300,000.
This case “involv[ed] the always difficult question of probing the wellsprings of human motivation.”
The court pointed to the statements by female executives at MDI and concluded that there was enough evidence “to support a finding that deficiencies in Carey’s handling of financial controls were not the real reason for his discharge.”

29. Case 42.2: Sutton v. United Airlines (Disability Discrimination)
FACTS:
Sutton has severe myopia and needs corrective vision to drive a vehicle.
He applied to UA to be a commercial pilot. He met all the requirements except for the vision and he was not offered a position.
Sutton sued UA claiming disability discrimination Sutton asserted in part that he had a substantially limiting impairment and are thus disabled. The court disagreed and dismissed the suit. The U.S. Court of Appeals for the Tenth Circuit affirmed. The Suttons appealed.

30. Case 42.2: Sutton v. United Airlines (Disability Discrimination)
HELD: AFFIRMED. FOR U.A.
A person is not disabled under the ADA if he or she has a condition such as poor vision that can be corrected with corrective devices, such as glasses.
“A ‘disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.
To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not ‘substantially limi[t]’ a major life activity.”

31. Case 42. 3: Flowers v. Southern Regional Physical Svcs
Case 42.3: Flowers v. Southern Regional Physical Svcs. (Disability Discrimination)
FACTS:
Flowers worked for SRPS as a medical assistant to Dr. Osterberger and had received excellent reviews.
Hallmark, Flowers supervisor, discovered that Flowers was infected with HIV and began to receive negative reports.
Hallmark stopped socializing with Flowers, her co-workers began avoiding her, and the president of the hospital refused to shake her hand.
After being put on probation, Flowers was fired and she sued.

32. Case 42. 3: Flowers v. Southern Regional Physical Svcs
Case 42.3: Flowers v. Southern Regional Physical Svcs. (Disability Discrimination)
HELD: FOR FLOWERS.
The court held that she been subjected to a hostile environment on the basis of her disability and awarded her $100,000.
On appeal, the Fifth Circuit held that the right to bring a hostile environment claim can be inferred because the ADA is similar in language, purpose, and “remedial structure” to Title VII. The court added that Flowers was entitled only to nominal damages, however, because she did not prove that she actually suffered emotional injury.