Employment Discrimination

1. Employment Discrimination Chapter 17

2. Historical Development • Historically, employers could freely discriminate based on personal characteristics • Jim Crow laws supported segregation & labor market discrimination • National Civil Rights Movements in the 1960s began the change • 1963 Equal Pay Act (first employment discrimination legislation) • Title VII of the Civil Rights Act of 1964 • Age Discrimination in Employment Act 1967 • 1972 Equal Employment Opportunity Act (created the EEOC) • 1978 Pregnancy Discrimination Act • Civil Rights Act of 1991 • Americans with Disabilities Act 1992 • States may go beyond federal requirements

3. Title VII of the 1964 Civil Rights ActAmended by Equal Employment Opportunity Act of 1972 and 1991 Civil Rights Act • Employers/unions with 15 or more employees/members are subject to the law • CANNOT discriminate based on • Race(Whites also protected) • Color • Religion(reasonable accommodation of religious practices w/o undue hardship on the employers) • Sex(does not apply to sexual preference or identity) • National origin (does not apply to noncitizens/aliens employed or seeking employment is the U.S.) (Continued)

4. Title VII of the 1964 Civil Rights ActAmended by Equal Employment Opportunity Act of 1972 and 1991 Civil Rights Act • May bring an action for more than one type of discrimination affecting an individual through certain actions by employers • Affirmative Action Programs designed to remedy past discriminatory practices • Reverse discrimination (preferential treatment to members of a protected class) is also illegal • McDonald v. Santa Fe Trail • African-American employee reprimanded, but kept job; the white employee was fired. Held: Illegal under Title VII. • Many states have their own civil rights acts modeled on Title VII • Some states prohibit discrimination based on sexual orientation • Some cities have civil rights laws extending discrimination coverage • SF prohibits employment discrimination based on height or weight

5. Employer has strict dress code to give company a certain ”look.” Code need not be modified to allow certain employees to wear religious garb, such as headdress. However, if an employer does not have a strict code, then cannot tell an employee NOT to wear religious garb. (There are exceptions such as for safety reasons.) Employer need not make other employees change their work schedule to accommodate the religious holiday preferences of an employee. BUT if accommodations can be made at no cost, giving opportunity of employees to switch work days, then only minimal cost is incurred. Religion

6. Pregnancy Discrimination • Title VII was amended by the Pregnancy Discrimination Act. • Cannot discriminate against women because of pregnancy, childbirth or related medical conditions. • Women must be treated the same for all purposes including fringe benefit programs. • Examples: • Denying a woman a job, assignment or promotion because she is pregnant or has children • Requiring a pregnant woman to go on leave, when she can still do her job • Treating maternity differently than other leaves for temporary disabilities • Discriminating re: fringe benefits, such as health insurance, that discourages women of childbearing age form working

7. Sexual HarassmentSex Discrimination Under Title VII • Quid pro quo: • Unwelcome sexual advances; requests for sexual favors • Verbal or physical conduct of a sexual nature • Purpose: to promote, change condition of employment, salary, place on project, etc. • Submission is the basis for the employment decision • Promise of reward or threat of punishment in exchange for providing sexual favors • Hostile environment: • discussing sexual activities; commenting on physical attributes • unnecessary touching or gestures; crude, demeaning, offensive language • displaying sexually suggestive pictures • trivial, isolated incidences usually do not qualify as harassment

8. Harris v. Forklift Systems • Teresa Harris works for Charles Hardy. He insults her in front of others – she is a target of sexual suggestions • “You’re a woman, what do you know?” • Called her a “dumb-ass woman” • “Go to the Holiday Inn to negotiate [her] raise” • “What did you do, promise the guy . . . [sex] Saturday night?” • Hardy asks women to get coins from his front pants pocket • Hardy throws things on the ground; asks women employees to pick them up; makes sexual comments about clothing • Harris quits & sues, claiming a “hostile work environment” • Lower courts: Say there is no sexual harassment • U.S. Supreme Court reverses: “Employee’s psychological well-being is relevant” to determine if the environment is abusive and has a discouraging effect on the employee’s staying on job

9. Reverse Sexual Discrimination and Same-Sex Discrimination • Oncale v. Sundowner Offshore Services, Inc. (in text) • Male-on-male sexual harassment; Male worker sued his employer • Suffered verbal and physical abuse of sexual nature • Held: Same-sex harassment is prohibited • Prohibition of sexual harassment is not based on asexuality or androgyny in the workplace • Title VII forbids behavior so offensive as to “alter the ‘conditions’ of the victim’s employment” • Distinguish between simple teasing or roughhousing vs. conduct that is severely hostile or abusive • Supreme Court says use common sense • Courts use the “reasonable person” standard: Would “a reasonable person in the plaintiff’s position . . .” find the behavior “severely hostile or abusive?”

10. 1967 Age Discrimination In Employment Act (ADEA) • About 22% of discrimination claims, or 17,000/year, are in this category • Prohibits discrimination in persons over 40 • All employers with 20+ employees must comply • Applies to hiring, promoting, terminating • May not force retirement • May not indicate age preference in advertising • May not require a physical exam as condition of continued employment (unless it is necessary for job performance) • May not choose a younger worker because an older one will retire soon • May not cut health-care benefits for workers over 65 because they are eligible for Medicare

11. Procedure for filing under Title VII or ADEA or Disabilities Act • Amended by Lily Ledbetter Fair Pay Act of 2009 • First Step: Must file with a state or federal EEO Office • Under federal law, within 180 (states usually extend to 300) days of alleged discrimination • Sometimes state laws have further requirements • EEOC then notifies the employer of the case & investigates the claim • EEOC agent hears both parties’ sides of the incident • If no settlement, the EEOC informs the parties of the result of the investigation • If the EEOC finds merit with the complaint, it issues a right-to-sue letter to the employee (in order to bring the action in federal court) • Sometimes the EEOC will sue the employer • 75,000 complaints per year • Takes about 1 year to resolve

12. Forms of Discrimination • Imposing differential standardson employees • Illegal compensation differentials • Segregation in the workplace • Constructive dischargedue to harassment • Plaintiff must establish a Prima Facie Case • Burden then shifts to defendant to present evidence that claim is untrue • After employer offers non-discriminatory reason for employment decision, burdenshifts back to plaintiff to show that defendant had illegal motives. • Disparate treatment(intentional discrimination) • Disparate impact/adverse impact(unintentional discrimination but the effect is discriminatory. Proof of intent not required.)

13. Possibility of Retaliation for Expression of Rights • Retaliation for complaints of discrimination is prohibited. • Employers who retaliate will be punished. • This occurs in about 1/3 of discrimination complaints that are filed.

14. Lewis v. Heartland Inns of America, L.L.C. • Brenda Lewis began working for Heartland Inns in July 2005. • Was promoted; received two merit pay increases; mangers praised her work and the “good impression” she made on customers. • Shortly after promoted in December 2006, Director of Operations, Barbara Cullinan, saw Lewis for the first time. • Told Lewis’s supervisor she didn’t think Lewis was a “good fit” for front desk – lacked “Midwestern girl look.” • Said front desk girl should be “pretty” and Lewis was not. • January 2007, Lewis’s supervisor refused to remove Lewis from front desk so she was fired. • Cullinan then met with Lewis to interview her for position she already held, and told here there must be a 2nd interview – never happened. • Three days later Lewis was fired and sued for violation of Title VII. • Contended she was terminated for not conforming to sex stereotypes & in retaliation for opposing discriminatory practices. • District court granted summary judgment for Heartland Inns. Lewis appealed. (Continued)

15. Lewis v. Heartland Inns of America • HELD: Reversed and remanded for further proceedings. • Lewis presented sufficient evidence to make a prima facie caseon her claims for sex discrimination and retaliation. • Prima facie case requirements; • 1) She was a member of a protected group • 2) She was qualified to perform the job • 3) She suffered adverse employment action • 4) Circumstances permit an inference of discrimination • Burden returned to Lewis to prove that the reason for firing was pretextual. • S. Ct. has said that cases of sex discrimination do not compel a women to prove that men were not subjected to same challenged discriminatory conduct • For instance: ”employer who discriminates against a women because they won’t wear dresses, or make-up, engages in sex discrimination, because it has to do with victim’s sex.” • Heartland procured video equipment so Cullinan could inspect a front desk applicant “look” before any hiring. • Termination letter to Lewis relied on January 23 meeting with Cullinan. • Later then Heartland alleged poor job performance to justify the termination. • Heartland did not follow its own written termination procedure – conducting investigation, looking at previous disciplinary record (Lewis had none), etc. • Ample evidence to support Lewis’s claims.

16. Key Defense for Employers • Employer should have a clear, effective policy and procedures to reduce likelihood of discrimination cases. • Without policies, an employer may have a more difficult defense. • If manger (agent) is involved with wrongful termination, employer may be liable under vicarious liability. • Employer must have effective procedure to allow employees to make complaints about perceived discrimination. • Greater likelihood of punitive damages imposed on employer if shows lack of good-faith efforts to prevent discrimination.

17. Burlington Industries, Inc.v. Ellerth • Ellerth worked for 15 months in sales for Burlington. She claimed that Slovik, a manager, made sexually offensive remarks. She inferred threats to her job. • She refused his advances. There was no retaliation against her. She never told anyone about the problem until lawsuit was filed. • District Court granted summary judgment for Burlington. Appeals Court reversed. Burlington appealed. • HELD: Reversed & case remanded back to District Court. • Ellerth focused her lawsuit on quid pro quo claims. The District Court may decide if it is appropriate to allow Ellerth to amend her pleading to claims of a hostile work environment. • ER may then raise defense that includes 1) that ER exercised reasonable care to prevent or correct harassing behavior and 2) the EE unreasonably failed to take advantage of those opportunities or to avoid harm.

18. Workers at Dial plant needed to lift 35 lbs. of sausage at a time to a height from 30 to 60 inches. Doing this over and over meant injuries to some workers. Company began a Work Tolerance Screen (WTS) test for potential employees. Candidates had to demonstrate strength. Usual work force was ½ men and ½ women. After WTS introduced, number of women hired dropped to 15%. One applicant took test, passed it, but wasn’t hired. She complained to EEOC. EEOC brought suit on behalf of 54 women who applied at Dial and were rejected despite passing WTS. Trial Court said Dial did not demonstrate that WTS was a business necessity. Awarded back pay to women ranging from $920 to $120,000. Dial appealed. (Continued) EEOC v. Dial Corp.

19. HELD: Affirmed. Expert testimony indicated that WTS was more difficult than the sausage-lifting jobs. In WTS, the applicants had to perform 4x as many lifts as the current employees were doing and had no rest breaks. Dial claimed WTS resulted in decreased injuries. HOWEVER, sausage plant injuries started decreasing before WTS was implemented. AND the injury rate for women employers was lower than that for men in 2 of the 3 years BEFORE Dial implemented the WTS. Defense did not prove that WTS was related to the specific job and the required skills and physical requirements of the position. EEOC v. Dial Corp., cont.

20. Statutory Defenses Under Title VII • Business Necessity: job related • Physical requirements/lifting boxes? • Flight attendants must be certain heights? • Professionally-Developed Ability Tests • Must predict work ability • Bona Fide Seniority or Merit System • Cannot take away seniority or merit from some workers, even though applied discriminatorily in the past • BFOQ: Bona Fide Occupational Qualification • Only female guards at women’s prisons? • Male models for female clothing? • Early Retirement Plans (which encourage voluntary early retirement)

21. Remedies in Discrimination Cases(Courts Have Broad & Flexible Powers) • Actual and compensatory damages • Equitable remedies, Injunction • Place the plaintiff in the position he/she would have enjoyed but for the discrimination • Back Pay – to the date the discrimination began (can include fringe benefits) • Employees must mitigate damages by seeking other work • Front pay – if employee was unlawfully fired • If ex-employee finds a new job with less % pay, old employer must provide the difference for the rest of employee’s career • Damage to career; inconvenience; loss of reputation (N/A in ADEA cases) • Reinstatement/promotion/hiring • Punitive damages (capped from $50,000 to $300,000 depending on firm size (not available in ADEA cases) • Emotional distress/medical treatment, attorneys fees, court costs

22. Affirmative Action Programs • Purpose? To Remedy past discriminatory practices • Correct underrepresentation • Adopted ONLY on race or sex (not color, religion, national origin or age) • Programs are monitored and enforced by the Office of Federal Contract Compliance Programs (OFCCP) in Dept. of Labor • Companies may voluntarily adopt a plan under Executive Order 11246 • Courts may require affirmative action as a remedy in discrimination cases • Pres. Johnson’s Executive Order 11246 in 1965: government contractors must adopt affirmative action • $50,000 in federal contracts & 50 or more employees have to have written affirmative action program • Workforce analysis: for each job in the organization • Underutilization analysis: comparing % of minorities & women in community in each job category with % employed by contractor. • Being expanded to include disabled persons (7%)

23. 1990 Americans With Disabilities Act (ADA) (& 1973 Rehabilitation Act) Most states also have laws forbidding disability discrimination • May apply to employees not covered by federal law or may have different procedural rules • Compliance is in the same way discrimination suits are brought under Title VII – file with EEOC • Applies to all employers with 15+ employees • Prima Facie Case: • 1) Individual has disability within meaning of the statute • 2) Employer had notice of disability • 3) Could perform essential function of job with reasonable accommodation • 4) Employer refused to accommodate

24. ADA • Cannot discriminate against a person with a disability that “limits a major life activity,” or has a record of or regarded to have ”an impairment” • Manual tasks • Walking/seeing • Hearing/speaking • Breathing/learning • Working • Examples of disabilities • History of alcohol or drug abuse • Disfigurements • Had heart attacks/cancer • Must use a wheelchair • Are hearing- or vision-impaired • Fear of heights NOT covered • Being left-handed NOTcovered

25. Level of Disability • ADA cases involve individual evaluation of circumstances of what constitutes a disability in relationship to particular employment. • Disabilities are major life condition. • Tough standard to meet. • Partially impaired, need not mean person is considered disabled. • For those disabled, employers need only make a reasonable accommodation. • Employers need not retain employees who can no longer perform their jobs. • Ex: One Dock worker over 400 lbs. was dismissed – morbid obesity is not an impairment. • He couldn’t go up and down ladders as needed. • Could not perform the job.

26. Gretillat v. Care Initiatives • Gretillat worked in food service at nursing home. • She had to stoop, kneel, crouch or crawl as part of job movements. • After 10 years, began to suffer pain in right knee – hard to walk. • Supervisor said she no longer had to make rounds – reduced walking. Three years later, she had knee replacement surgery. • After surgery, she had pain from standing long periods of time. Could not squat, kneel, crouch, crawl, etc. • Manager said to resign or be terminated, as she did not have the physical requirements for her job. • She resigned; sued for disability discrimination and failure to accommodate her disability. • Court held for nursing home. Gretillat appealed. • HELD: Affirmed. Care Initiatives entitled to summary judgment. • Although walking and standing are “major life activities” limited standing does not amount to a disability. • Medical diagnosis of an impairment does not qualify as a disability per se.

27. Reasonable Accommodation • Employers must make a “reasonable accommodation”BUT need not take on an “undue hardship” • Making existing facilities accessible? Yes • Job restructuring? Yes, if no undue hardship on employer • Special equipment & training for the disabled? Yes • Changing test, training materials or policies? Usually yes • Part-time or modified work schedules? Yes • Acquiring or modify equipment? Yes, if reasonable expense • Redesign the entire assembly line to accommodate wheelchair employees? No • Redesigning one work station for several thousand dollars? Yes • Readers or interpreters? Yes • Completely revamp a computer system? No • Reassignment to a vacant position? Yes, if person is qualified

28. Preemployment Guidance: ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations • ADA prohibits employers asking disability-related questions or requiring medical exams before the job is offered. • What you may/may not ask of applicants must relate to the job. • If disability is obvious or applicant volunteers information, questions may be asked about reasonable accommodations. • Once a job offer is made, an employer may ask 1) for documentation of a disability and 2) more questions about reasonable accommodations. • If physical exam is given to new employees, similar exams must be given to all employees in same job category. • Results must be kept confidential. • Exams must be related to ability to do the job – not to screen out employees with potential health problems.

29. Do you have AIDS? Have you ever been treated for mental health problems? Have you ever filed for workers’ compensation benefits? Do you have a disability that would interfere with ability to perform the job? How many sick days were you out last year? Have you ever been unable to handle work-related stress? Have you ever been treated for drug addiction or drug abuse? Past addiction is a disability; current use of illegal drugs are not Current alcoholism is protected disability – applicant may not be asked re: drinking habits (can ask if person has been arrested for DUI) Other Questions: Can you ask? Age?No Computer skills if applicant won’t use them?No Married? Children?No Sexual Preference?No Been in therapy?No Questions That Are Illegal During A Job Interview

30. Violations by Employers • Using standardized employment tests that screen out people with disabilities • Refusing to hire applicants due to history of alcohol abuse rather than currently alcohol abusers • Rejecting a job applicant because he/she is HIV-positive • Asking job applicants if they have disabilities, rather than asking if have ability to perform the job • Limiting advancement opportunities for employees due to their disabilities • Not hiring a person with a disability because the workplace does not have a bathroom to accommodate wheelchairs