Employment Discrimination

Employment Discrimination Chapter 16 Meiners, Ringleb & Edwards The Legal Environment of Business, 12th Edition

Origins of Discrimination Law • Historically, employers could discriminate on race, sex or other 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 • 1972 Equal Employment Opportunity Act (created the EEOC) • 1978 Pregnancy Discrimination Act • 1991 Civil Rights Act • EEOC established to enforce all of them • Discrimination in employment still exists – not as overt – more subtle

Title VII of the 1964 Civil Rights Act • Employers with 15 or more employees/members are subject to the law • Protected Classes (CANNOT discriminate based on) • Race: Black or African American; White; American Indian or Alaska Native; Native Hawaiian or other Pacific Islander; and Asian • Color:Shade of skin • Religion(reasonable accommodation of religious practices w/o undue hardship on employer/employee ) • Sex(does not apply to sexual preference or identity) • National Origin • Example: Require English spoken at all times may be discriminatory unless for reasons of safety, productivity or legitimate job requirement (Continued)

Title VII of the 1964 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 (see later slides) • 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. • Somestates have expandedTitle VII protections • Some states prohibit discrimination based on sexual orientation • Some cities also have civil rights laws extending to discrimination coverage • Prohibition against discrimination based on sexual orientation • San Francisco prohibits employment discrimination based on height or weight

Cyber Law“YOUR E-MAIL IS YOUR BOSS’S E-MAIL” • Usually, e-mail sent on company computers are available for company inspection • CASE: Sports writer for Chicago newspaper was told to quit sending unwanted e-mail to female coworker • He didn’t quit • Employer transferred to write to another department • Federal Court HELD: Paper was within its rights • Employee cannot complain about interference with his e-mail • Cannot claim sex discrimination • Employer “was obviously trying to make the best of a difficult situation” • CASE: Chevron paid $2.2 million to settle sexual harassment claims of women re: dirty jokes transmitted around the office.

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 from working

Sexual Harassment 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

CaseHarris v. Forklift Systems • Teresa Harris was a rental manager; her boss, Charles Hardy, insulted 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 and 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.”

Age Discrimination • 1967 Age Discrimination In Employment Act (ADEA) • About 23% of discrimination claims 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 • Require older works to pass physical exam as a condition of continued employment • Indicate age preference in advertising such as “Young, Dynamic Person Wanted” • Require a physical exam as condition of continued employment (unless it is necessary for job performance) • Choose a younger worker because an older one will retire soon • Cut health-care benefits for workers over 65 because they are eligible for Medicare

Discrimination Based on Military Service • Uniformed Services Employment and Reemployment Rights Act of 1994 • Based on Person’s membership in or “obligation to perform service in a uniform service . . .” it is Illegalfor employer to deny“employment, reemployment, retention in employment, promotion, or any benefit of employment” • Straub v. Proctor Hospital • Hostility to a member of the military was improper and is a tort under federal law • Is a form of discrimination that does not follow EEOC process.

Genetic Information Discrimination • Genetic Information Nondiscrimination Act (GINA; 2009) • Illegal to discriminate in employment based on genetic information • Genetic tests or those of person’s family member (including medical history) • May not be obtained by employer • May not be used in any way re: suitability for employment • Illegal for person to suffer harassment or retaliation • EEOC enforces statute • Same procedure as for Title VII

Bringing a Discrimination Charge • Amended by Lily Ledbetter Fair Pay Act of 2009 • First Step: Must file with a state or federal EEOC Office • Under federal law, within 180 (states usually extend to 300) days of alleged discrimination event • Sometimes state laws have further requirements • Dubious claims can be dismissed • 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-sueletter to the employee (in order to bring the action in federal court) • Sometimes the EEOC will sue an employer • 100,000 complaints per year

Forms of Discrimination • Imposing differential standardson employees • Illegalcompensation differentials • Harassment may result in constructive discharge • Plaintiff must establish a Prima Facie Case • Burden then shiftsto 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.)

CaseLewis v. Heartland Inns of America, L.L.C. • Brenda Lewis began working for Heartland Inns in July 2005. Successfully filled several positions. Was promoted; received two merit pay increases; mangers praised her work and the “good impression” she made on customers. • 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. That supervisor was fired. Cullinanthen met with Lewis to interview her for position she already held, and told here there must be a 2nd interview – never happened. • Lewis was fired. Shesued 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)

CaseLewis v. Heartland Inns of America, L.L.C. • HELD: Reversed and remanded for further proceedings. • Lewis presented sufficient evidence to make a prima facie caseon her claims for sex discrimination and retaliation. 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.

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 manager (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.

CaseBurlington Industries, Inc. v. Ellerth • Ellerth worked for 15 months in sales for Burlington. She claimed that Slovik, a manager, made sexually offensive remarks, asked for liberties, & made threats to deny her of job benefits. 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. • Employer may then raise defense that includes 1) That Employerexercised reasonable care to prevent or correct harassing behavior and 2) The Employeeunreasonably failed to take advantage of those opportunities or to avoid harm.

Effective Company Policy • To claim that employee failed to take advantage of in-house protections against discrimination & harassment: • Firm must have credible program in place. • Knowledgeable person or staff in place to hear complaints • Process is secure and separate from normal internal communication changes • Employees believe program is trustworthy • To further reduce sexual harassment claims: • Some companies have policies against romances between employees. • What starts as consensual may end badly • Result: Claim of harassment.

CaseEEOC v. Dial Corp. • 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 ability. • 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)

CaseEEOC v. Dial Corp. • 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.

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)

Remedies in Discrimination Cases • 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 • Employees must mitigate damages by seeking other work • Front pay – if employee was unlawfully fired • Compensatory damages • Such as: Emotional distress/medical treatment, job-hunting costs, loss of reputation • Reinstatement/promotion/hiring • Attorneys fees, filing fees, expert witness fees, etc. • Punitive damages (capped from $50,000 to $300,000 depending on firm size (not available in ADEA cases)

Affirmative Action • 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 • 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.

International Perspective“EMPLOYMENT DISCRIMINATION IN EUROPE AND JAPAN” • These countries are behind the U.S. in treatment of women and minorities. • Europe: Employees can be forced to retire between the ages of 55 and 65. • Japan: First sexual harassment case in 1992 – remedy was for only $12,500, plus an apology, but considered a landmark case. • Europe: Immigrants treated as 2nd-class citizens, i.e. immigrants in France face blatant discrimination in job market. • Japan: Women traditionally have been kept out of higher-level jobs and are not always paid as much for equal work. • Both: Generous maternity benefits encourage employers not to hire women because of high costs of such benefits.

Disability Discrimination • 1990 Americans With Disabilities Act (ADA) and the 1973 Rehabilitation Act • 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 • 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” Examples: Major manual tasks; Walking/seeing; Hearing/speaking; Breathing/learning; Working • Examples of disabilities • History of cancer; Severe disfigurements; Have had heart attacks/cancer; Must use a wheelchair; Are hearing- or vision-impaired; Fear of heights not covered; Being left-handed not covered

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.

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 or other workers • 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

CaseKeith v. County of Oakland • Nicholas Keith has been deaf since birth; cannot speak verbally but can communicate using American Sign Language (ASL). Applied for employment as lifeguard. • Took and passed all portions of county’s lifeguard training. Head of hiring, Stavale, approved employment subject to accommodation that Keith requested, the presence of an ASL interpreter at staff meetings • Keith passed a physical exam, but physician said Keith would require constant accommodation. • Matters delayed – consultant was called • Consultant was dubious about Keith’s ability to perform, but had no experience regard ability of deaf people to work as lifeguards • Stavale was sure Keith could do the job. Gave accommodation plan. • Consultant was concerned the plan might not work. • Offer of employment was withdrawn. • Keith sued for disability discrimination. • Trial Court: Summary judgment to County. Keith appealed. (Continued)

CaseKeith v. County of Oakland • HELD: Reversed and remanded • Keith is disabled under the ADA. • Issues: Whether Oakland County made an individualized inquiry. Whether Keith is otherwise “qualified for the position with or without reasonable accommodation.” Whether Oakland County engaged in interactive process • People with disabilities “ought to be judged on basis of their abilities . . . not judged . . . based on unfounded fear, prejudice, ignorance or mythologies . . . .” • ADA requires employers to make decisions that are NOT based on stereotypes & generalizations. • There is evidence that jury could find he can communicate effectively despite his deafness. He can adhere to 10/20 standard of zone protection – scanning technique. Scan in 10 seconds; reach a part of their zone in 20 seconds. • Ability to hear is unnecessary to perform essential lifeguard functions. • He is “otherwise qualified” to perform the job. • World record for most lives saved (900) – Leroy Colombo -- a deaf man

Pre-employment 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 and 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. • When applicant is qualified for employment, may need a professional assessment of limitations and accommodations.

Examples of 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

Employment Discrimination