Equal Employment Opportunities

1. Equal Employment Opportunities John Stone – Fired for wearing a Packers tie in Chicago

2. Litigation Nation • What’s the #1 source of concern for in-house attorneys? • Product Liability? • Other torts? • Contract disputes? • Employer discrimination/wrongful termination? • Administrative agency enforcement? Equal Employment Opportunities Smoking Article Is it ok for employer to have a policy against smoking – even if the smoking occurs off the job in the employee’s home? What do you think the rule should be? Weyco fires for smoking

3. Title VII of the Civil Rights Act of 1964 • Prohibits employment discrimination based on • race, • Color, • national origin, • religion, • or gender. • Procedures under Title VII • Employees must file a claim with the EEOC. The EEOC may sue the employer on the employee’s behalf; if not, the employee may sue the employer directly.

4. April 2009 Supreme Court Case – New Haven Fire Department. • Fire department dismissed test because of poor showing of Blacks and Hispanics. • Lead plaintiff studied up to 13 hours a day, had dyslexia and paid $1,000 for study materials. Prima Facie Case Title VII • End-of-Chapter Question 18-1 • Novo Firms is making a movie about Africa and wants to hire 100 extras. Can it advertise for African Americans only? • 15 or more employees (some ability to sue even if less than 15 employees) • Disparate-Treatment Discrimination • Member of protected class • applied and was qualified • rejected • continued to seek or filled with a non-protected class employee • Disparate Impact Discrimination 2012 $3.1 Million Settlement EEOC sued over Pepsi’s use of criminal background checks St. Paul Fire Department Test Did this but do top example and novo filrms

5. End-of-Chapter Q: 18-2, p. 635 • Chinawa, a major processor of cheese employees 100 workers • Plant is located in Heartland Corners and has • 50% white • 25% African American • 25% Hispanic American, American Indian and others • Chinawa requires a high school diploma as a condition of employment on its cleaning crew. • ¾ of the white population completed high school • ¼ of the minority groups completed high school • Chinawa has an all white cleaning crew • If a person brings an employment discrimination action, is this disparate impact?

6. “Religious” Defined: “to include moral and or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious Discrimination (Nabila) • 9 Somali Workers Sue Gold’n Plump (Cold Spring, MN 2006) • Muslim faith requires 5 prayers a day • Employee – “followed to the restroom … to make sure she did not pray” • What do you think? What is the law? # of Religious Discrimination Lawsuits = 4,515 Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business. Oct 2008: JBS fired 200 Muslim Somali workers who walked off the job over prayer disputes.

7. Exceptions • Exceptions • 15 or fewer employees • Private clubs • Religious organizations – Ministerial exception – not from statute but from 1st Amendment Augusta National Golf Club • Result • 10 min break added • $8k each • Training for managers • Ongoing assessment - reporting

8. Gender Discrimination Bona Fide Occupational Qualification - sports • Cannot advertise for males (or females) Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. • Gender was a determining factor in hiring, firing or lack of promotion. • Pregnancy • Carey v. Mount Desert Island Hospital (1998) • Michael Carey was fired by Leslie Hawkins, Mountain Desert Island Hospital CEO, for “lack of confidence.” Carey filed a suit against MDI for gender discrimination. The court awarded Carey more than $300,000 in damages. • “we have different standards for men and women” • “it’s about time we get a women for this [CEO] position.” • Is it possible for jurors and judges to overcome their prejudices in deciding cases in which gender plays a key role?

9. Pregnancy Discrimination Act • Protect infertility treatments? • Employer Concerns • Cannot travel • Interferes with planning • A lot of time off • Men do not have these issues

10. Gender Discrimination • Two types of sex discrimination: • Differential treatment. • Sexual harassment, which itself, exists in two varieties: • Hostile Work Environment. • Quid Pro Quo. Darlene Jespersen • End-of-Chapter Q: 18-6, p. 635 • Jespersen v. Harrah’s • Harrah’s requires women to wear make-up • Darlene Jespersen, a Harrah’s bartender, refused to wear makeup and quit. • Men did not have to wear makeup

11. Smith v. City of Salem 6th Cir – protects transgender under Title VII - may be a title VII action for failing to behave as sexual stereotypes indicate. 2007 Transgender case Same sex • Spring Arbor University – a evangelical college • Prof Nemecek – wants to be called Julie – not John • Rules requiring men to dress as male

12. Harassment by Supervisors: Quid Pro Quo • Quid Pro Quo harassment • involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. • no need for employer to know if “tangible employment action.” • Tangible Employment Action

13. Friends Case – End of Chapter • Amanni Lyle, an African American woman hired as a typist for the TV show Friends. • She took notes during the scriptwriters meetings. • Three male scriptwriters told lewd and vulgar jokes and made sexually explicit comments and gestures. Some of these comments were turned into the script for friends • She was fired because she could not type fast enough (she said she could type 80 words per minute but only typed 50 words per minute). • She sued for sexual harassment and racial discrimination. • Focusing on the sexual harassment – is this sexual harassment?

14. Sexual Harassment - Hostile Environment • Offensive Conduct.Conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment • Interferes with Work. Conduct that has the purpose or effect of unreasonably interfering with performance • Impact Employment Opportunities.Conduct that otherwise adversely affects an individual’s employment opportunities • Permeated with Intimidation.Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment. • Reasonable Person Standard.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. • 2007 EMC Salesperson Case • Taking customers to strip clubs • Unequal pay • Recruited heavily from former athletes Start here thurs

15. Harassment by Co-Workers • Employer Knew or Should Have Know. 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. • Non-Employee Harassment. Employers may also be liable for harassment by non-employees. • Same Sex. Same-sex harassment violates Title VII.

16. Disparate-Treatment Discrimination • Member of protected class • applied and was qualified • rejected • continued to seek or filled with a non-protected class employee

17. Supreme Court Guidelines on Liability for Sexual Harassment • Sexual Harassment Policies/Handbooks. Employers have an affirmative defense against liability for their supervisors’ harassment of employees: • Reasonable Care. If they show they have taken “reasonable care to prevent and correct promptly any sexually harassing behavior” (by policies and complaint procedures). • Employee Failed to Follow Policies. The employee suing for harassment failed to follow these policies and procedures.

18. Sexual Harassment in Other Nations • Sexual harassment in the workplace is not only a problem in the U.S. It is a world-wide problem for women workers. In many other countries, there is no legal protection against any form of employment discrimination. Even in those countries that do have laws prohibiting discriminatory employment practices, including gender-based discrimination, those laws often do not specifically include sexual harassment as a discriminatory practice. • Why do you think U.S. corporations are more aggressive than European companies in taking steps to prevent sexual harassment in the workplace?

19. Remedies under Title VII • Plaintiff may receive: • Reinstatement. • Back Pay. • Retroactive Promotions; and • Damages.

20. Casey Martin Case – Group Presentation Casey Martin

21. Disability DiscriminationWSJ Article on deaf drivers • UPS will not hire deaf drivers • UPS sued by a deaf driver • Holding?

22. Disability Discrimination Target settles for $6 million Mini golf course not accessible – “I’ll paint some lines in the parking lot and put some cups out there…” amusement park rides, fishing piers, bowling lanes… • ADA of 1990 • has a disability • is otherwise qualified • was excluded from employment solely because of the disability • Must Pursue Claim First Through EEOC WSJ Article – Wal-Mart – All jobs require physical activity. E.g. require cashiers to do cart gathering.

23. 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. Blindness, AIDs, alcoholism, heart disease, cancer paraplegia, diabetes, morbid obesity

24. Home Depot fired this guy for wearing a “god” button: “One nation under God, indivisible” Dress Codes What about religious dress issues – grooming issues?

25. ADA: “Reasonable Accommodation” • 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.

26. Reasonable Accommodation • Accommodation. Employers are required to reasonably accommodate the needs of persons with disabilities. • Alter Work Space. Reasonable accommodations may include altering job-application procedures, modifying the physical work environment, and permitting more flexible work schedules. • Cannot Accommodate All. Employers are not required to accommodate the needs of all workers with disabilities. • Health and Safety Risks. For example, employers need not accommodate workers who pose a definite threat to health and safety in the workplace or those who are not otherwise qualified for their jobs. Surgeon with Aids

27. Sutton v. United Airlines, Inc. Case Holding Rejected by New ADA Amendment 2008 • Facts. • Wear Glasses. Karen and Kimberly Sutton, without corrective lenses, can’t see well enough to do things such as drive, watch T.V., or shop, but with corrective measures, each functions identically to individuals without similar impairment. I • Applied to Work as Pilots for United Airlines. In 1992, they applied to United Airlines, Inc. (UA), for employment as commercial airline pilots. • Met All Requirements Except Vision. They met all requirements except the UA’s minimum vision requirement. The Suttons filed a suit alleging discrimination under the ADA. The court dismissed their complaint. • Is United’s Requirement OK? • Comment for Consideration. When the ADA went into effect, the courts were faced with the challenge of interpreting the act’s provisions. Should Congress pay more attention to details when it drafts legislation? Is it appropriate for the courts to assume such “lawmaking’ responsibilities?

28. Point out Congress reaction to court case 2008 Amendments to ADA • “shall be construed in favor of broad coverage of individuals under this Act…” • Rejected Toyota case “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s lives.” • Sutton Rejected – “ordinary eyeglasses or contacts lenses” are not mitigating measures – “low-vision devices” are.

29. Discrimination Based on Age • 40 years old or older -- The Age Discrimination in Employment Act (ADEA) of 1967 • EEOC. Similar procedures to bringing a case under Title VII. • Prima Facie Case • member of protected class • qualified for job • discharge gives inference to discrimination • burden then shifts to employer to show cause Mars, Inc. Age 20-30. Office Depot. Age 18-35 Blockbuster. Age 18-24 GM age 18-28 • golf course case – “Need to get rid of these senile old men” other examples: • “we need someone to connect with a younger market” • “We would like a fresh face for this job”

30. Defenses to Employment Discrimination • Business necessity. • Bona fide occupational qualification. • Seniority Systems. • After-acquired evidence of employee misconduct.

31. MI Amends constitution to “bans public institutions from using affirmative-action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin from public employment, education or contracting purposes.” Affirmative Action Jennifer Gratz • 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. • Bakke – Intermediate scrutiny – quotas not permitted (1978) • Adarand – strict scrutiny • Gratz v. Bollinger (2003) Undergraduate School. – automatic 20 points for minority students – not permitted • Grutter v. Bollinger (2003) Law School.Can consider minority status as a “plus factor” permitted • Fisher v Univ of Texas (2012) Challenging the plus factor . Definition of “Critical mass” discussed in oral arguments. “whether an applicant who was one quarter or one eight latino would be permitted to check the “latino” box.” “the use of racial preferences will not longer be necessary” in perhaps 25 years – Justice Sandra Day O'Connor in Grutter case.

32. Extra Slides

33. 2012 US Supreme Court Case Vance v. Ball State University Oral arguments scheduled Nov. 28 Key issue: How should the term "supervisor" be defined in Title VII cases in which an employee alleges workplace harassment by a person the employer holds out as the employee's "supervisor?" Summary: Maetta Vance, a dining services employee at Ball State University in Muncie, Indiana, alleges she was subjected to "an environment of physical intimidation and racial harassment" by Saundra Davis, a catering specialist who was "given authority to direct Vance's work and other employees' work." The 7th Circuit affirmed a trial judge's dismissal of the case, finding that Davis was not a supervisor for purposes of a Title VII vicarious liability claim because she did not have the authority to "hire, fire, promote, demote, discipline or transfer" Vance. "This is an issue that has been in labor law for decades," says Mathiason, with some federal appeals courts taking the position that direction of work activities is enough to establish "supervisor liability" and others requiring the power to hire and fire. He expects the court will choose one of the two "supervisor liability" standards rather than a compromise.

34. Costco – Example of Extreme Body Piercing – Not a Costco Employee Casey Martin