CHAPTER 15

1. CHAPTER 15 Civil Rights and Employment Discrimination

2. INTRODUCTION This chapter gives a chronology of civil rights legislation. This material is examined with a theoretical and an applied approach.

3. OVERVIEW OF CIVIL RIGHTS LEGISLATION • Section 1981 - Prohibits racial discrimination by public and private Employers in contracting. Amended in 1981 to prohibit racial discrimination in hiring, promoting, terminating, and in working conditions. • Equal Pay Act of 1963 - Requires equal pay for equal work without regard to gender in companies with more than 20 employees. 

4. OVERVIEW OF CIVIL RIGHTS LEGISLATION • Title VII of the Civil Rights Act of 1964 - Prohibits discrimination based on race, religion, sex (now includes pregnancy, childbirth and medical conditions). • Age Discrimination in Employment Act of 1967 - cannot discriminate against people who are 40 years old or older based on age.

5. OVERVIEW OF CIVIL RIGHTS LEGISLATION • Vietnam Era Veterans’ Readjustment Assistance Act of1972/1974 - requires affirmative action to employ disabled Vietnam-era veterans. • Vocational Rehabilitation Act of 1973 - Prohibits discrimination against the physically and mentally disabled. • Veterans Re-Employment Act - Employees have the right to be reinstated if they left to serve in the military, and the right to not be discharged (without cause) for one year after reinstatement.

6. OVERVIEW OF CIVIL RIGHTS LEGISLATION • Americans with Disabilities Act of 1990 (ADA) - Prohibits discrimination based on disability and requires Employers to make “reasonable accommodation” of disability without “undue hardship.” Disabled have access to employment, transportation, public accommodations, and telecommunications services. • Civil Rights Act of 1991 - legislatively overruled parts of several Supreme Court cases that hindered employment discrimination cases for plaintiffs. • Family and Medical Leave Act of 1993 - time off for family responsibilities. • Definition of Adverse Employment Action

7. ENFORCEMENT The Equal Employment Opportunity Commission (EEOC) is the primary enforcer of civil rights legislation in the United States.

8. TITLE VII • Scope - prohibits all employers with 15 or more employees from making employment decisions based on race, color, religion, sex, or national origin. • Legal Theories under Title VII. • Disparate Treatment - employee must prove intentional discrimination against him or her in employment based on a proscribed factor (pretext not enough). • Disparate Impact - a facially neutral employment practice has a discriminatory impact on a protected class.

9. TITLE VII • Hostile Environment – alleged harassment must of altered the working environment to be actionable. • Employers must make reasonable accommodations without undue hardship(balancing test). • Defenses under Title VII. • Bona Fide Occupational Qualification (BFOQ) - Employer may discriminate on prohibited classifications if the factor is job-related and necessary. • Seniority and Merit Systems - barring intentional harm, this is not covered under Title VII.

10. UNDUE HARDSHIP Case 15.1 Synopsis.Balint v. Carson City,180 F.3d 1047 (9th Cir. 1999). Balint, a member in the Worldwide Church of God, was required to observe the Sabbath from sundown Friday to sundown Saturday. In 1995, Balint was offered a job in the detention department of the Carson City Sheriff’s Department. When she requested that her schedule be accommodated for her religious beliefs, she was informed that her schedule would not be changed. Balint withdrew her application for employment and filed a claim of religious discrimination in violation of Title VII. The department argued that its seniority-based, shift-bidding system prevented it from accommodating Balint. The twelve or thirteen deputies assigned to the jail bid for shifts in order of seniority. Only one deputy had both Saturday and Sunday off and there was an unwritten rule prohibiting deputies from trading shifts on a regular basis. The trial court held that given the department’s bona fide shift-bidding system, changing the schedule to accommodate Balint’s religious beliefs would be an undue hardship. Balint appealed. CONTINUED

11. UNDUE HARDSHIP Case 15.1 Synopsis. (Cont’d). ISSUE: Does an employer’s neutral seniority system relieve it of its duty under Title VII to accommodate an employee’s religious beliefs? HELD: REVERSED and remanded, rejecting Defendant’s contention that the seniority system is a complete defense to the religious claim. The Ninth Circuit applied a two-part framework to review claims of religious discrimination under Title VII. First, the employee has the burden to establish a prima facie case of religious discrimination. Second, the employer has the burden to show either that it attempted to reasonably accommodate the employee’s religious beliefs or that any accommodation of the employee’s needs would result in undue hardship. The inquiry in this case focused on whether accommodation would pose an undue hardship on the department.

12. SEXUAL HARASSMENT • Types • Quid Pro Quo - job benefits in exchange for sexual favors. • Hostile Work Environment - workplace is poisoned by conduct that causes an employee to be less productive or unproductive. • Same-Sex Sexual Harassment - actionable under Title VII. Oncale v. Sundowner, 510 U.S. 17 (1999).

13. SEXUAL HARASSMENT • Defining a Hostile Work Environment: severe or pervasive. • Frequency and Severity of discriminatory conduct; • Whether conduct is physically or psychologically threatening; and • Whether conduct unreasonable interferes with employee’s work performance.

14. SEXUAL HARASSMENT • Vicarious Liability for Hostile Environment - under respondeat superior employers can be liable for sexual harassment in the workplace. • Negligence • Harassment in the “Virtual Office.” • Aided in the Agency Relation or Supervisor Harassment. See Burlington v. Ellerth and Faragher v. City of Boca Raton. • Appropriate Preventative and Corrective Action - Employers should have written policies and procedures that are enforced.

15. SEXUAL HARASSMENT Case 15.3 Synopsis. Hill v. American General (7th Cir. 2000). Louise Hill, anAfrican American, was sexually and racially harassed by her supervisor Darin Brandt with comments like “I like a woman with a big ass, like Louise’s,” while rubbing his pelvis against her buttocks said, “Boy that feels good” and “Once you go black, you never go back.” In addition to the sexual comments, he made offensive racial comments. On two separate occasions, Hill wrote a letter to AGF’s CEO complaining about Brandt’s behavior. AGF commenced an investigation and decided to issue a written warning to Brandt, provide him with additional training, transfer and demote him with a $10,000 reduction in salary, and transfer Hill to prevent retaliation from her co-workers. Hill complained that her transfer was to a high-crime area and claimed that the company was retaliating against her. She resigned and filed a claim for sexual and racial harassment under Title VII. The district court dismissed the case after finding both that the plaintiff had failed to take advantage of her employer’s policies and procedures regarding harassment and that the company had promptly taken appropriate corrective action after learning of the harassment. Hill appealed. CONTINUED

16. SEXUAL HARASSMENT Case 15.3 Synopsis. (Cont’d) ISSUE: What actions constitute reasonable care by an employer to prevent and correct sexually harassing behavior? HELD: AFFIRMED for AGF. Employer can raise an affirmative began by stating that a defendant employer can raise an affirmative defense to a charge of harassment by establishing that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any corrective or preventive opportunities provided by the employer.

17. RETALIATORY HARASSMENT UNDER TITLE VII • Employers may be liable of retaliation against Employees who have complained to the Company or EEOC. • Sexual Stereotyping under Title VII - impermissible and actionable.

18. RETALIATORY HARASSMENT UNDER TITLE VII Case 15.4 Synopsis. Morris v. Oldham County (6th Cir. 2000). Judy Morris was a clerk and secretary by the Oldham County Road Department. Her supervisor, Likins, commented upon her clothes, and indicated that if Morris performed sexual favors for him, he would give her a more favorable job evaluation. Morris complained to the defendant County Judge Black, who wrote a letter to Likins reprimanding him for his behavior. After receiving this reprimand, Likins became overly critical of Morris’ work. After Morris made further complaints to Judge Black about Likins’s behavior, he transferred her to another location. Likins continued to harass Morris: (1) he phoned her over thirty times and visited her new office fifteen times despite Black’s orders prohibiting communication with her; (2) he followed Morris home from work one day, and gave her “the finger”; (3) he threw nails onto her home driveway; and (4) he destroyed the television set that Morris watched at work. As a result of this behavior, Morris started having anxiety attacks and, ultimately, left work on sick leave. CONTINUED

19. RETALIATORY HARASSMENT UNDER TITLE VII Case 15.4 Synopsis. (Cont’d). She sued the County, Black and Likins, alleging sexual discrimination and retaliation under Title VII and the Kentucky Civil Rights Act. The district court dismissed the claims on the grounds that Morris had not been subjected to any adverse employment action by defendants and thus her retaliation claim was without merit. Morris appealed.ISSUE: Is retaliatory harassment by a supervisor actionable under Title VII? HELD: YES, Reversed. The Court of Appeals held that severe or pervasive supervisor harassment that results from an individual opposing any practice made an unlawful employment practice by Title VII constitutes discrimination. To establish a prima facie case of Title VII retaliation, the plaintiff must prove that (1) her activity was protected by Title VII; (2) the defendant knew of her exercise of protected rights; (3) the defendant took adverse employment action against the plaintiff or she was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment.

20. SPECIAL APPLICATIONS OF TITLE VII • Pregnancy Discrimination - since pregnancy is considered a “disability,” it must be treated like other disabilities by employers. • Fetal Protection Policies - women able to bear children are barred from certain jobs unless her inability to bear children is medically documented. • English-Only Laws - potential national origin discrimination. • Dress Codes

21. REMEDIES UNDER TITLE VII • Generally, Employers may be liable for lost wages and benefits, front pay, injunctive relief, and (sometimes) compensatory and punitive damages. • Caps on Liability – Any party to a case for damages can demand a jury trial, but the court may not inform the jury of the caps on damage awards. • Punitive Damages - Complainant must show “malice” or “reckless indifference.”

22. AGE DISCRIMINATION • ADEA applies to employers with 20 or more employees and who are involved in interstate commerce. Employers cannot discriminate against employees 40 years old or older. • Older Workers’ Benefit Protection Act - prohibits age discrimination in employee benefits. • Defenses - BFOQ, age not a factor, bona fide seniority system, and action were taken for good cause.

23. DISABILITY DISCRIMINATION • Under the ADA, an Employer cannot discriminate in employment against a qualified person because of a disability. • Enforcement and Remedies - treated like Title VII: the EEOC investigates claims. • Impermissible Discrimination - ADA prohibits intentional and unintentional discrimination against disabled people. The ADA has several prohibited practices listed.

24. DISABILITY DISCRIMINATION • Definition of Disability - a person with a disability is: (i) a person with a physical or mental impairment that substantially limits one or more of that person’s major life activities (such as work), (ii) a person with a record of a physical or mental impairment that substantially limits one or more of that person’s major life activities, or (iii) a person who is regarded as having such an impairment. • Physical or Mental Impairment. ADA test is functional; to what extent is the individual actually impaired. Conflicting outcomes. • Obesity as a Disability -litigation, but no standards yet. • Cancer a disability? • Correctable Myopia a disability? • Regarded as Disabled in community.

25. DISABILITY DISCRIMINATION • Exclusions - ADA specifically excludes homosexuality, bisexuality, sexual-behavior disorders, compulsive gambling, kleptomania and others. • Definition of “Major Life Activity.” Sexual impotence is a disability (Bragdon v. Abbott) while having a full functioning cardiovascular system is not (Weber v. Strippit). • Enforcement and Remedies. • Reasonable Accommodation without UndueHardship - accessible work facilities, modified work schedules, equipment and training modifications, and providing readers or interpreters as needed. • Undue Hardship - when a reasonable accommodation is not required; for example, the cost of the accommodation and the size of the business. • Business Necessity - discrimination is warranted if applicant cannot do the job.

26. DISABILITY DISCRIMINATION • Permissible Exclusion -because of the disability, the employee cannot perform the essential function of the job, or if the employment causes health or safety risks to others. • Inability to Perform Essential Functions. • Direct Threat to Safety of Others. • HIV Discrimination - Supreme Court ruled that HIV is a disability under the ADA. Bragdon v. Abbott, 524 U.S. 64 (1998). • Dealing with HIV in the Workplace. Employers cannot discriminate. • Genetic Discrimination - approximately 18 states have legislation against using this type of information to discriminate in employment or insurance

27. PERMISSIBLE EXCLUSION Case 15.7 Synopsis. Echazabal v. Chevron (9th Cir. 2000). Echazabal worked for various maintenance contractors at Chevron’s oil refinery in El Segundo, California. Echazabal applied for a position at Chevron. After making him an offer, Chevron again rescinded it after learning about Echazabal’s liver disease. Chevron also wrote to the maintenance contractor who employed him and requested that it remove Echazabal from the refinery or place him in a position that eliminated his exposure to solvents or chemicals. As a result, Echazabal could no longer work at the refinery. He filed a complaint against Chevron, alleging that it violated the ADA. The district court dismissed his claim, and he appealed.ISSUE: Does the “direct threat” defense apply to employees who pose a direct threat to their own health or safety, but not to the health or safety of other persons? HELD: The court reversed the district court’s decision, holding that the ADA’s direct threat defense does not permit employers to shut disabled individuals out of jobs on the ground that they may put their own health at risk.

28. SEXUAL-ORIENTATION DISCRIMINATION • No federal protections, but some states protect against this form of discrimination.

29. CIVIL RIGHTS ACT OF 1991 Intentionally discriminatory seniority systems can be challenged, expanded compensatory and punitive damages, banned race-norming, and investigates the “glass ceiling” problem.

30. FAMILY AND MEDICAL LEAVE ACT OF 1993 Employer must allow an employee leave time for certain family situations. Employee must have worked for at least 12 months and at least 1,250 hours of employment. Eligible employees may receive up to 12 weeks of unpaid leave per year. If Plaintiff prevails, Employer is required to restore the employee to same position or equivalent with same benefits, pay, etc.

31. AFFIRMATIVE ACTION PROGRAMS • Generally remedial in nature to correct past wrongs. • Executive Order 11246 – requires federal government contractors to include in every government contract not exempted by the order provisions whereby the contractor agrees: • not to discriminate in employment on the basis of race, color, religion, sex, or national origin. • to take affirmative steps to prevent discrimination. • to file equal opportunity surveys every other year. • According to Adarand v. Pena, 515 U.S. 200 (1995), government mandated affirmative action plans are subject to strict scrutiny.

32. MANDATORY ARBITRATION OF EMPLOYMENT DISPUTES The Supreme Court has upheld arbitration clauses, e.g., in Wright v. Universal Maritime, and more recently under the Federal Arbitration Act in Circuit City Stores v. Adams, Docket No. 99-1379 (2001).

33. APPLICABILITY OF CIVIL RIGHTS LAWS TO TEMPORARY WORKERS Neither the staffing firm nor the client - employer can discriminate against temporary employees.

34. THE RESPONSIBLE MANAGER Honoring Employees’ Civil Rights Managers must be diligent during both the pre-employment and employment phases. Management should develop a written policy that outlines discriminatory acts and prohibits retaliation against employees. Management should also strive to create an environment where employees feel comfortable in bring criticism and complaints against management and co-workers.

35. REVIEW 1. Should genetically predisposed individuals be a new protected group(s)? Why? 2. Should customer preference of a business be a BFOQ? Why or why not? 3. Why do many smaller businesses dislike the Family and Medical Leave Act?