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Discrimination In Employment

15. Discrimination In Employment. Timeline Of Employment Discrimination Laws. Civil Rights Act (1866). Executive Order (1941). Executive Order (1943). Equal Pay Act (1963). Civil Rights Act (1964). Age Discrimination In Employment Act (1967). Amended (1991).

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Discrimination In Employment

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  1. 15 Discrimination In Employment

  2. Timeline Of Employment Discrimination Laws Civil Rights Act (1866) Executive Order (1941) Executive Order (1943) Equal Pay Act (1963) Civil Rights Act (1964) Age Discrimination In Employment Act (1967) Amended (1991) Equal Employment Opportunity Act (1972) Americans With Disabilities Act (1990)

  3. Employment Discrimination Suits Suits Filed By EEOC Source: U.S. Equal Employment Opportunity Commission, “EEOC Litigation Statistics, FY 1992 – FY 2002”

  4. Breakdown Of EEOC Direct Suits Filed

  5. Employment Discrimination • Discrimination in employment is not the same thing as being treated badly. For instance, see Frances McMorris, “Discrimination Is Hard to Prove If a Boss Treats Everyone Badly,” Wall Street Journal, 3/10/00, p. B1.

  6. Employment Discrimination • The partners at Price Waterhouse refused to propose Ann Hopkins for partnership. She was described as "overly aggressive, unduly harsh, difficult to work with and impatient with staff." She was also called "macho" and "unfeminine." Hopkins sued Price Waterhouse for sex discrimination. Held by the U.S. Supreme Court: When an employment decision is the result of both legitimate and illegitimate motives, the employer bears the burden of proving by the preponderance of the evidence that its legitimate motive, standing alone, would have induced it to make the same decision. Price Waterhouse v. Hopkins, 57 LW 4469 (5/1/89). On remand the federal district court ordered Price Waterhouse to make Ann Hopkins a firm partner.

  7. Employment Discrimination • Equal Pay Act of 1963 • Civil Rights Act of 1964- Title VII • Civil Rights Act of 1991 reduced impact • Intentional Discrimination or Discriminatory Impact • Sexual Harassment (quid pro quo) • See Faragher v. Boca Raton, hostile work environment • Affirmative Action (EEOC) • See EEOC v. Waffle House, Inc. (Arbitration agreement not override, logic:EEOC not party to the agreement)

  8. Discrimination • Race • Color • National Origin • Religion • Gender/Pregnancy • Age • Disability • What’s Not Included?

  9. Equal Pay Act (1963) • Wage Differences Prohibited • Equal Skill • Equal Effort • Equal Responsibility • See Bartges v. UNCC, (Appropriate Comparitor)

  10. Equal Pay Act (1963) • Allowed • Seniority • Merit • Quality/Quantity • Other than Gender • Job Descriptions • Personnel Manuals • Personnel Files • Written Warning- Signed/Noted • Letter Of Explanation

  11. Provisions Title VIICivil Rights Act of 1964 • Applies to Employers With 15+ Employees (see box page 446) • Purpose: To Eliminate Job Discrimination • Race • Color • Religion • Sex • National Origin

  12. Provisions Title VIICivil Rights Act of 1964 • Can Discriminate When: • Bona Fide Occupational Qualifications (BFOQs) reasonably necessary to normal business operations, or • Unintentional result of seniority or merit system • Types Prohibited • Discharge • Refusal To Hire (or Refer) • Compensation • Terms, Conditions, Or Privileges

  13. Provisions Title VIICivil Rights Act of 1964 • Must Show: • Disparate Treatment or • Disparate Impact • Employer may claim “ Business Necessity Defense” in some cases.

  14. Enforcement of Title VIICivil Rights Act of 1964 • Equal Employment Opportunity Commission (EEOC) • Remedies • Back Pay/Injunction • Compensatory/Punitive Damages • Punitive up to $300,000 • Job Reinstatement • Must File Charges With 180 Days that the “Unlawful Practice” Occurred

  15. Enforcement of Title VII Civil Rights Act of 1964 • The 1991 amendments to Title VII that allow recovery of compensatory and punitive damages up to $300,000. • Important for employee filing charges of illegal discrimination with the EEOC to do so within 540 days after the alleged unlawful practice occurred. • Even if a discriminatory policy or practice is job related, a plaintiff may still prove a violation by showing that other selection procedures would serve the employer's legitimate interest in picking the right person for the job, without having undesirable discriminatory effects

  16. Enforcement of Title VII Civil Rights Act of 1964 In 2000 the EEOC reported a backlog of 40,000 cases and an average lag of 265 days in getting a change resolved. Job bias lawsuits filed in federal courts rose from 6,936 in 1990 to 21,540 in 1998. In 1999, however, they declined 7.3%, possibly because a large majority of plaintiffs lose their lawsuits on summary judgment.

  17. Enforcement of Title VII Civil Rights Act of 1964 • ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC. • 1998 U.S. LEXIS 1599 • FACTS: Joseph Oncale worked for Sundowners as an offshore oil platform roustabout. On several occasions he was subjected to sex-related, humiliating actions by fellow employees and a supervisor, including physical assaults and threats of rape. When complaints to higher supervisors produced no remedial action, Oncale quit and sued under Title VII for sexual harassment. • ISSUE: Can same-sex harassment constitute illegal employment discrimination?

  18. Enforcement of Title VII Civil Rights Act of 1964 • ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC. • 1998 U.S. LEXIS 1599 • DECISION: No. • REASONS: • 1. Harassing conduct need not be motivated by sexual desire to constitute illegal discrimination. • 2. Nothing in Title VII bars a claim of sexual discrimination merely because the plaintiff and defendant are of the same sex. • 3. Title VII is not a general civility code. Discrimination must be “severe and pervasive.”

  19. Enforcement of Title VII Civil Rights Act of 1964 • In Folstad v. American Dental Association, 527 U.S. 526 (1999), the Court ruled that the conduct justifying punitive damages under Title VII must be “intentional” and done “with malice or with reckless indifference to federally protected rights” but need not be “egregious.” The Court, however, asserted that for an employer to be liable for punitives the employee must successfully impute liability to the employer under agency law and that the employer cannot be held vicariously liable for discriminatory decisions of managerial agents where those decisions are contrary to the employer’s good faith efforts to comply with Title VII.

  20. Enforcement of Title VII Civil Rights Act of 1964 • In West v. Gibson, 119 S.Ct. 1906 (1999), the Court ruled that the EEOC has authority under Title VII to award compensatory damages against federal agencies in employment discrimination cases.

  21. Enforcement of Title VII Civil Rights Act of 1964 • In Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988), the Court considered the case of Clara Watson who had sued her employer after being denied four different promotions based on “subjective promotion policies.” The Court ruled that subjective policies could be measured according to standard disparate impact rules.

  22. Discrimination Claims (2001)

  23. Discrimination Based On Race/Color • Recruiting, Hiring, Promotion • Employment Conditions/Benefits • Permit Racial Insults • Maintain All-White/All-Black Crews • Better Housing • Higher Christmas Bonuses

  24. Discrimination Based On Race/Color • A light-skinned clerk typist with the IRS complained that her dark-skinned supervisor fired her because of her skin color. Held: The discharge is actionable under Title VII. Walker v. Internal Revenue Service (DC NGa 5/11/89).

  25. Discrimination Based On Race/Color • A municipal ordinance required applicants for firefighter and police jobs to have three years' municipal residency. Held: Title VII would be violated if the municipality had virtually no black residents and the ordinance had an unlawful disparate impact on black job applicants from nearby towns. U.S. v. Town of Cicero, 54 LW 2511 (CA 7, 1986).

  26. Discrimination Based On Race/Color • A judge terminated a black court reporter because he wished to hire a white reporter with whom he had worked successfully in the past. The black reporter sued. Held by CA7: The judge's decision was based on a legitimate, non-discriminatory reason. McMillian v. Snetanoff, 50 FEP Cases 137 (1989).

  27. Other Discrimination Bases • National Origin • Most suits language related • Foreign Corporation Management Preferences (Toshiba Example) • Religion- Reasonable Accommodation • Sex (= Gender) • Sexual Harassment- Hostile Work Environment • Pregnancy Discrimination Act (1978) • Equal Pay Act • Sexual Orientation?

  28. Other Discrimination Bases • National Origin • A job applicant placed high enough on a civil service test to be selected for a clerk's position. He was not selected due to a perceived deficiency in job-related oral communications skills because of a "heavy Filipino" accent. He sued, alleging national origin discrimination. Held by CA9: The employer was motivated exclusively by business necessity. Fragante v. City and County of Honolulu, 58 LW 2281 (1989).

  29. Other Discrimination Bases • National Origin • A federal district judge found Quasar, a unit of Matsushiti Electric, guilty of racial discrimination in the discharge of 66 American managers -- but no Japanese managers. Quasar, ordered to pay $2.5 million, indicated that it would appeal.

  30. Other Discrimination Bases • Religion • Churches can discriminate in their employment practices on the basis of religion but not on the basis of race, color, sex, or national origin. • The Supreme Court has stated that employers must make reasonable accommodation to the religious needs of their workers in order not to be guilty of illegal discrimination

  31. Other Discrimination Bases • Religion • When a 6th grade teacher at a religious school did not have her contract renewed because she was pregnant and single, she sued. The Sixth Circuit ruled in 2000 that although a religious organization could have a policy against pre-marital sex, it could not discriminate between genders. A ban enforced only by observing which single female teachers became pregnant violated Title VII.

  32. Other Discrimination Bases • Religion • Rent-A-Center Inc. agreed in 2000 to pay job applications who were asked about their religious views $2 million.

  33. Other Discrimination Bases • Religion • Employee training programs drawing on a variety of sources, from Eastern mysticism to positive thinking, have prompted Title VII complaints by employees who do not wish to attend the programs for religious reasons. See Brannigan, "Employers' 'New Age' Training Programs Lead to Lawsuits Over Workers' Rights," Wall Street Journal, Jan. 9, 1989, p. B1.

  34. Other Discrimination Bases • Religion • A school teacher's religious beliefs required that he miss several days of school. The school board proposed that the employee be docked his full pay during these absences, whereas the employee proposed that he pay only what it would take to get a substitute teacher during these days. Held: The employer need make only a "reasonable" effort to accommodate an employee's religion and need not adopt the employee's advice on how to do it. Ansonia Board of Education v. Philbrook (S. Ct. 1986).

  35. Other Discrimination Bases • Religion • A Philadelphia school board refused to allow a public school teacher to wear religious attire while teaching. The refusal was based on the Pennsylvania Garb Statute that states "no teacher in any public school shall wear... any dress, mark, emblem, or insignia indicating that such teacher is a member... of any religious... denomination." Violation of the statute was a crime. The teacher sued under Title VII. Held by CA3: "We think it would be an undue hardship to require a school board to violate an apparently valid criminal statute." U.S. v. Board of Education for the School District of Philadelphia, 8/9/90.

  36. Other Discrimination Bases • Sex • In 1996 the EEOC reported 15,000 sexual harassment cases, up from 6,000 in 1990. • In 1999 Mitsubishi settled a sexual harassment lawsuit brought by 450 women for $34 million. In 1987 Home Depot agreed to pay $87.5 million to settle a class-action sex discrimination lawsuit. • A 1995 Louis Harris showed that a majority of senior women executives (VP or higher) felt like "aliens" in their companies of $100 million or more in annual sales. 59% of them cited the "glass ceiling" as their greatest concern. 35% said they were treated differently than men. 33% said they were paid unequally.

  37. Other Discrimination Bases Sex • In Burlington Industries, Inc. v. Ellerth, 1998 U.S. LEXIS 4217, the Court ruled that when the plaintiff had been harassed sexually by a supervisor but no tangible job consequences followed (e.g., firing, etc.), the employer may be liable under respondeat superior analysis unless the employer can prove that it took reasonable care to prevent or promptly correct harassment and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

  38. Other Discrimination Bases • Sex • Improper touching and comments by a supervisor cannot be the basis for liability against the employer unless the hostile environment is so pervasive as to establish constructive knowledge (absent actual knowledge) of harassment. Faragher v. Boca Raton, 65 LW 2701 (1997).

  39. Other Discrimination Bases • Sex • Kerry Ellison worked for the IRS. Sterling Grey, fellow trainee, began to ask her out and to write to her. Eventually, Grey was transferred because of his unwelcomed attentions to Ellison. Then Grey was transferred back upon his promise to leave Ellison alone. However, his attentions continued and Ellison filed a complaint. Held by CA9: Grey's conduct was sufficiently severe and pervasive to alter the conditions of Ellison's employment and create an abusive working environment. A "female employee ... states a prima facie case of hostile environment sexual harassment by alleging conduct that a reasonable woman would consider sufficiently severe or pervasive to alter conditions of employment...." Ellison v. Brady, 54 FEP Cases 1346 (1991).

  40. Other Discrimination Bases • Sex • A women's health club refused to hire men as managers and instructors. It asserted that its customers had chosen an all female club. It presented a petition signed by some members that stated that their privacy rights would be violated by male employees. Held: The club failed to show a valid BFOQ. The club did not prove that customers would not patronize the club if men were hired. EEOC v. Sedita, 55 FEP Cases 77 (1991).

  41. Employment Practices That May Be Challenged • Testing/Educational Requirements- Disparate Impact? • Weight/Height Requirements • Appearance- Business Necessity? • Affirmative Action/Reverse Discrimination? • Seniority Systems (Usually upheld)

  42. Employment Practices That May Be Challenged • Affirmative Action/Reverse Discrimination • The City of Richmond, Va., adopted a plan requiring prime contractors of city construction contracts to subcontract at least 30 percent of the dollar amount of each contract to a minority business enterprise. A contractor challenged the constitutionality of the city's plan. Held by the U.S. Supreme Court: A generalized assertion that there has been past discrimination cannot justify the city's unyielding racial quota. Since the city has failed to establish a compelling state interest, the plan violates the Equal Protection Clause. City of Richmond v. J.A. Croson Co. (1/23/89). This decision will force the 36 states and 190 cities and counties with similar programs to reevaluate them. The decision does not apply to private employers.

  43. Other Employment Discrimination Laws • Civil Rights Act (1866)- Bans Racial Discrimination • Age Discrimination in Employment Act- Age 40+ • Americans With Disabilities Act • Pre-employment Medical Exam • Reasonable Accommodation • Health Insurance & Accountability Act • State Antidiscrimination Laws

  44. Other Employment Discrimination Laws • Civil Rights Act (1866)- Bans Racial Discrimination • Brenda Patterson alleged that her McLean Credit Union boss assigned her sweeping and dusting chores not given to white co-workers and did not promote her. She asserted racial harassment and sued for damages under Section 1981. Held by the U.S. Supreme Court: The 1866 Civil Rights Act does not apply to racial harassment after a person is hired. Patterson v. McLean Credit Union, 491 U.S. 164 (1989). The Court refused to overturn its 1976 ruling that the Act forbids discrimination in the making of private employment contracts. Interestingly, on remand the district court ruled that a failure to give Patterson the promotion was not discrimination in terms or conditions of employment, but was discrimination in creation of a new and distinct contractual relationship. Note also that the 1991 amendments to Title VII specifically apply Section 1981 to the terms and conditions of contracts.

  45. Other Employment Discrimination Laws • Age Discrimination in Employment Act • 20 or more employees • Cannot hire, pay less, discharge or otherwise discriminate vs. 40 or older • See Mahoney v. RFE/RL, not negate preexisting mandatory retirement agreement

  46. Other Employment Discrimination Laws • Age Discrimination in Employment Act • According to EEOC statistics, discrimination cases are shifting toward ADEA issues. In 1982 national ADEA cases totaled 8,989, which represented 13.4 percent of all discrimination cases. By 1989 the figures were 19,427 and 27.4 percent, respectively. In 1996, over 34,000 complaints were filed.

  47. Other Employment Discrimination Laws • REEVES v. SANDERSON PLUMBING PRODUCTS, INC. • 120 S.Ct. 2097 (2000) • FACTS: The petitioner Roger Reeves, age 57, was one of two employees fired by respondent Sanderson Plumbing following an audit of the department which he supervised. Reeves sued Sanderson Plumbing, claiming age discrimination and asserting that alleged errors and misrepresentations shown by the audit were merely a “pretext” for his firing, and Reeves asserted that Powe Chesnut, the director of manufacturing and husband of the company president, was behind the firing and had made numerous age-related remarks to him. The jury returned a verdict and damages in favor of Reeves. On appeal the court of appeals reversed, stating that the trial court should have decided as a matter of law in favor of the company. The court of appeals noted that Chesnut did not make his discriminatory comments in the context of Reeves’ termination, that two other managers had also recommended firing Reeves, and that others in Reeves’ job category who were his age were not fired. Reeves then petitioned the U.S. Supreme Court and certiorari was granted. • ISSUE: Did the district court properly submit the facts to the jury?

  48. Other Employment Discrimination Laws • REEVES v. SANDERSON PLUMBING PRODUCTS, INC. • 120 S.Ct. 2097 (2000) • DECISION: Yes. • REASONS: • 1. The court of appeals disregarded critical evidence favorable to the petitioner Reeves. • 2. The district court correctly instructed the jury. 3. There was sufficient evidence for the jury to reach a decision favorable to Reeves.

  49. Employment Discrimination • A United Way employee sued her employer for sex and age discrimination. The employer moved to dismiss, asserting that the charity was not "engaged in commerce." Held: That the employer is a charitable group does not prevent it from being an "industry affecting commerce under Title 7 and the ADEA." Martin v. United Way of Erie County, 56 LW 2181 (1987).

  50. Other Employment Discrimination Laws • Age Discrimination in Employment Act • A 60-year old printing manager with more than 30 years experience in the printing industry was told that he was "overqualified" for some 32 positions within his company, which he had applied for when his own company division was closed down. He sued. Held by CA2: "Denying employment to an older job applicant because he or she has too much experience ... is simply to employ a euphemism to mask the real reason for refusal, namely, in the eyes of the employer the applicant is too old." A reasonable juror could find illegal discrimination on these facts. Taggart v. Time, Inc., 1/24/91.

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