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Module 14
Employment Discrimination
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Learning Objectives
Upon successful completion, the student will be able to:
Analyze historical development of employment discrimination law;
Identify protected classes;
Explain equal employment;
Describe freedom of expression;
Identify levels of disability.
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Title VII of the 1964 Civil Rights Act
Employers/unions 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
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Title VII of the 1964 Civil Rights Act (2)
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
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 (discussed later)
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Title VII of the 1964 Civil Rights Act (3)
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 and cities have expanded Title VII protections
Prohibition against discrimination based on sexual orientation
San Francisco prohibits employment discrimination based on height or
weight
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Religion
Balance between “reasonable accommodation” vs. “undue hardship.” Ex:
Employer has strict dress code to give company a certain “look.”
Law still evolving in this regard.
If an employer does not have a strict code, then cannot tell an employee not to
wear religious garb.
There are exceptions to accommodations, especially for safety reasons.
EEOC v. Abercrombie & Fitch:
Refusing to hire Muslim women who wear scarves due to religious practices not
acceptable.
Religious practices generally may not be a factor in employment decisions.
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Religion (2)
Employer need not make other employees change their work
schedules to accommodate the religious holiday preferences of an
employee. But if accommodations can be made at no cost, such as
giving employees opportunity to switch work days, then only minimal
cost is incurred.
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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 employment purposes including
fringe benefit programs.
Examples:
Denying a woman a job, assignment or promotion because she is pregnant or
has children
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
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Sexual Harassment
Quid Pro Quo
Unwelcome sexual advances; requests for sexual favors
Verbal or physical conduct of a sexual nature
Submission plays a role in employment decision
Promise of reward or threat of punishment in exchange for providing
sexual favors
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Sexual Harassment (2)
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
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Harris v. Forklift Systems
Teresa Harris was a rental manager; her boss, Hardy, insulted her in
front of others. She was a target of sexual suggestions and abuse.
“You’re a woman, what do you know?” Called her a “dumb-ass
woman.”
Said let’s “Go to the Holiday Inn to negotiate [your] raise;”
“What did you do, promise the guy . . . [sex] Saturday night?”
Hardy asked women to get coins from his front pants pocket and
up; makes sexual comments about clothing.
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Harris v. Forklift Systems (2)
Harris quits & sues, claiming a “hostile work environment.”
Lower courts: Say there is no sexual harassment.
U.S. Supreme Court Reverses: “Employee’s psychological wellbeing is relevant to determine if the environment is abusive and has
a discouraging effect on the employee’s staying on job.”
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Reverse Sex and Same-Sex Discrimination
Oncale v. Sundowner Offshore Services, Inc.
Male-on-male sexual harassment. Male worker sued his employer
claiming he suffered verbal and physical abuse of sexual nature by
other male workers.
Supreme Court held: Same-sex harassment is prohibited
Prohibition of sexual harassment is not based on asexuality or
androgyny in the workplace.
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Reverse Sex and Same-Sex Discrimination (2)
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.
Use common sense and be sensitive to situations.
Would “a reasonable person in the plaintiff’s position . . .” find the
behavior “severely hostile or abusive?”
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Age Discrimination
1967 Age Discrimination In Employment Act (ADEA)
About a quarter 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
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Age Discrimination (2)
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
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 get Medicare
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Discrimination Based on Military Service
Uniformed Services Employment and Reemployment Rights Act
(USERRA) of 1994
Based on person’s membership in or “obligation to perform service
in a uniform service . . .”
It is: Illegal for employer to deny “employment, reemployment,
retention in employment, promotion, or any benefit of employment.”
Straub v. Proctor Hospital case:
federal law.
Is a form of discrimination that violates EEOC requirements.
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Genetic Information Discrimination
Genetic Information Nondiscrimination Act (GINA of 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
Same procedure as for Title VII
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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
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Bringing a Discrimination Charge
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 an employer
100,000 complaints per year
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Elements of a Case and Forms of
Discrimination
For court to take a case.
Plaintiff must establish a Prima Facie Case
2. Burden then shifts to defendant to present evidence that claim is
untrue
3. After employer offers non-discriminatory reason for employment
decision, the burden shifts back to plaintiff to show that defendant had
illegal motives.
Two basic kinds of discrimination:
Disparate treatment (intentional discrimination)
Disparate impact/adverse impact (unintentional discrimination but
the effect is discriminatory. Proof of intent not required.)
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Retaliation for Expression of Rights
Retaliation against an employee making a complaint about
discrimination, whether employee is right or wrong, is prohibited.
Employers who retaliate will be punished.
This occurs in about 1/3 of discrimination complaints that are filed.
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Lewis 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.
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Lewis v. Heartland Inns of America, L.L.C. (2)
January 2007, Lewis’s supervisor refused to remove Lewis from
front desk. That supervisor 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.
Lewis was fired. She 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.
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Lewis v. Heartland Inns of America, L.L.C.
HELD: Reversed and remanded for further proceedings.
Lewis presented sufficient evidence to make a prima facie case on
her claims for sex discrimination and retaliation. S. Ct. has said
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.”
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Lewis v. Heartland Inns of America, L.L.C. (3)
Heartland had 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, 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.
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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.
shows lack of good-faith efforts to prevent discrimination.
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Burlington Industries v. Ellerth
Ellerth worked for 1sexually offensive remarks, asked for liberties, &
made threats to deny her of job benefits. She refused his advances.
There was no retaliation 5 months in sales for Burlington. She
claimed that Slovik, a manager, made against her. She never told
anyone about the problem until she quit and sued.
District Court granted summary judgment for Burlington. Appeals
Court reversed. Burlington appealed.
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Burlington Industries v. Ellerth (2)
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 employer exercised reasonable care to prevent or correct
harassing behavior and
2) The employee unreasonably failed to take advantage of those
opportunities or to avoid harm.
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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.
Some companies have policies against romances between employees.
What starts as consensual may end badly.
Result can be claim of harassment
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Disparate Impact
Employer used a decision rule that caused discrimination against a
person or persons in a protected class status.
The discrimination may have been unintentional.
Effect of employer’s policy was to limit employment opportunities for
a person or group of persons.
Practices appear neutral on their fact
But have a disproportionately adverse impact on employees of a
protected class.
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EEOC 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 show strength ability.
Usual work force was ½ men and ½ women.
After WTS introduced, number of women hired dropped to 15%.

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EEOC v. Dial Corp. (2)
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.
HELD: Affirmed.
Expert testimony indicated that WTS was more difficult than the
actual sausage-lifting jobs.
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EEOC v. Dial Corp. (3)
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.
the required skills and physical requirements of the position.
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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
Only female guards at women’s prisons?
Male models for female clothing?
Early Retirement Plans (which encourage voluntary early retirement)
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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 for things such as emotional distress/medical
Attorneys fees, filing fees, expert witness fees, etc.
Punitive damages (capped from $50,000 to $300,000 depending on firm size)
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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
Courts may require affirmative action as a remedy in discrimination
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Affirmative Action Programs (2)
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
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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
3) Could perform essential function of job with reasonable
accommodation
4) Employer refused to accommodate
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Disability Discrimination (2)
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.

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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.
He could not go up and down ladders as needed.
Could not perform the job
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Pre-employment Guidance
See ADA Enforcement Guidance: Pre-employment DisabilityRelated 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.
documentation of a disability and 2) more questions about
reasonable accommodations.
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Pre-employment Guidance (2)
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.
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Keith 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 county’s lifeguard training. Head of hiring, Stavale,
approved employment subject to accommodation Keith requested,
the presence of an ASL interpreter at staff meetings
Keith passed a physical exam, but physician said Keith would
require constant accommodation. A consultant was dubious about
Keith’s ability to perform, but had no experience about ability of deaf
people as lifeguards
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Keith v. County of Oakland (2)
Stavale was sure Keith was fine. 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.
HELD: Reversed and remanded. Keith is disabled under the ADA.
Issues: Whether Oakland County made an individualized inquiry. Is
Keith qualified for the position with reasonable accommodation?”
People with disabilities “ought to be judged on basis of their abilities
. . . not judged . . . based on unfounded fear, prejudice, ignorance or
mythologies..”
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Keith v. County of Oakland (3)
ADA requires employers to make decisions that are NOT based on
stereotypes and 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 not needed to perform essential lifeguard functions.
He is “otherwise qualified” to perform the job.
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Illegal Questions During A Job Interview
Have you ever been treated for mental health problems?
Have you ever filed for workers’ compensation benefits?
Do you have disability to 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?
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Illegal Questions During A Job Interview (2)
Have you ever been treated for drug addiction or drug abuse?
Past addiction is a disability; current use of illegal drugs are not.
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
Married? Children? No
Sexual Preference? No
Been in therapy? No
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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
disabilities
Not hiring a person with a disability because the workplace does not
have a bathroom to accommodate wheelchairs
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