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CONTEMPORARY BUSINESS AND
ONLINE COMMERCE LAW
6th Edition
by Henry R. Cheeseman
Chapter 36
Equal Opportunity
in Employment
Copyright © 2009 by Pearson Prentice Hall. All rights reserved.
Equal Opportunity in Employment
The right of all employees and job
applicants:
1. To be treated without discrimination; and
2. To be able to sue employers if they are
discriminated against
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Equal Employment Opportunity
Commission (EEOC)
 The federal administrative agency
responsible for enforcing most federal
antidiscrimination laws
 The EEOC is empowered to:
Conduct investigations
 Interpret the statutes
 Encourage conciliation between employees
and employers
 Bring suit to enforce the law

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Title VII of the Civil Rights Act of
1964
 Intended to eliminate job discrimination
based on five protected classes:
1. Race
2. Color
3. Religion
4. Sex
5. National origin
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Scope of Coverage of Title VII (1 of 2)
 Title VII applies to:
 Employers with 15 or more employees
 All employment agencies
 Labor unions with 15 or more members
 State and local governments and their
agencies
 Most federal government employment
 Indian tribes and tax-exempt private clubs
are expressly excluded from coverage
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Scope of Coverage of Title VII (2 of 2)
 Title VII applies to any term, condition, or
privilege of employment including, but not
limited to:
Hiring and firing
 Work rules
 Promotion and demotion
 Payment of compensation and benefits
 Availability of job training opportunities

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Forms of Title VII Actions
Disparate Treatment
Discrimination
 Occurs when an employer
discriminates against a
specific individual because
of his or her race, color,
national origin, sex, or
religion
Disparate Impact
Discrimination
 Occurs when an employer
discriminates against an
entire protected class
 Often, this is proven
through statistical data
about the employer’s
employment practices
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Procedure for Bringing a
Title VII Action
 Private complainant must file a complaint
with the EEOC.
 The EEOC is given the opportunity to sue
the employer on the complainant’s behalf.
 If the EEOC chooses not to bring suit, it
will issue a right to sue letter to the
complainant.
 Complainant now has the right to sue the
employer.
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Remedies for Violations of Title VII
 A successful plaintiff in a Title VII action
can recover back pay and reasonable
attorneys’ fees.
 The courts also have broad authority to
grant equitable remedies.
 A court can award punitive damages
against an employer in cases involving an
employer’s malice or reckless indifference
to federally protected rights.
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Race, Color, and National
Origin Discrimination
 Title VII was primarily enacted to prohibit
employment discrimination based on race,
color, and national origin.
Race: refers to broad categories such as
Black, Asian, Caucasian, and Native
American
 Color: refers to the color of a person’s skin
 National origin: refers to the country of a
person’s ancestors or cultural characteristics

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Sex Discrimination
 Discrimination against a person solely
because of his or her gender
Applies equally to men and women
 Overwhelming majority of Title VII sex
discrimination cases are brought by women

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Pregnancy Discrimination Act (1978)
 Amendment to Title VII
 Forbids employment discrimination
because of “pregnancy, childbirth, or
related medical conditions”
 Work rules that prohibit the hiring of
pregnant women violate Title VII
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Sexual Harassment (1 of 2)
 Refusing to hire or promote someone
unless he or she has sex with the
manager or supervisor is sex
discrimination that violates Title VII
 Other forms of conduct, such as lewd
remarks, touching, intimidation, posting
pinups, and other verbal or physical
conduct of a sexual nature, constitute
sexual harassment and violate Title VII
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Sexual Harassment (2 of 2)
 Title VII prohibits sexual harassment that
causes a hostile work environment.
 The circumstances that create a hostile
work environment include:

Frequency of the discriminatory conduct; its
severity; whether it is physically threatening
or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employee’s work performance.
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Same-Sex Discrimination
 The U.S. Supreme Court has held that
same-sex sexual harassment and
discrimination violate Title VII.
 Many state and local laws also prohibit
this form of discrimination and harassment
in the workplace.
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Affirmative Defense in Sexual
Harassment Cases
 The Supreme Court has determined that
an employer may raise an affirmative
defense against liability or damages by
proving two elements:
1. The employer exercised reasonable care to prevent
and correct promptly any sexual-harassing behavior.
2. The plaintiff employee unreasonably failed to take
advantage of any preventive or corrective
opportunities provided by the employer or to avoid the
harm.
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E-Mail Can Create a Hostile Work
Environment (1 of 2)
 E-mail has increased the exposure of
businesses to sexual and racial
harassment.
 E-mail often sets the social tone of an
office and has been permitted to be
slightly ribald.
 At some point e-mail conduct becomes
impermissible and crosses the line to
actionable sexual or racial harassment.
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E-Mail Can Create a Hostile Work
Environment (2 of 2)
 E-mail differs from many other incidents of
harassment because it is subtle and
insidious.
 The standard of whether e-mail creates an
illegal hostile work environment is the
same as that for measuring harassment in
any other context:
The offensive conduct must be severe, and
 Cannot consist of isolated or trivial remarks
and incidents

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Religious Discrimination
 Title VII prohibits employment
discrimination based on a person’s
religion or religious practices.
 Under Title VII, an employer is under a
duty to reasonably accommodate an
employee’s religious practices,
observances, or beliefs if it does not
cause an undue hardship on the
employer.
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Defenses to a Title VII Action: Merit
 Employers can select or promote
employees based on merit.
 Merit decisions are often based on work,
educational experience, and
professionally developed ability tests.
 To be lawful under Title VII, the
requirement must be job related.
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Defenses to a Title VII Action:
Seniority
 An employer may maintain a seniority
system that rewards long-term
employees.

i.e., higher wages, fringe benefits, and other
preferential treatment
 Such systems are lawful if they are not the
result of intentional discrimination.
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Defenses to a Title VII Action: Bona Fide
Occupational Qualification (BFOQ)
 Employment discrimination based on a
protected class (other than race or color)
is lawful if it is:
Job related; and a
 Business necessity

 This exception is narrowly interpreted by
the courts.
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Civil Rights Act of 1866
 Section 1981 of the Civil Rights Act of
1866 expressly prohibits racial
discrimination.
 It has also been held to forbid
discrimination based on national origin.
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Equal Pay Act of 1963
 Protects both sexes from pay
discrimination based on sex.
 The act prohibits disparity in pay for jobs
that require:
Equal skill
 Equal effort
 Equal responsibility
 Similar working conditions

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Criteria That Justify a Differential
in Wages
 The Equal Pay Act expressly provides
four criteria that justify a differential in
wages:
Seniority
 Merit
 Quantity or quality of product
 Any factor other than sex

 The employer bears the burden of proving
these defenses.
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Age Discrimination in Employment
Act (ADEA) of 1967 (1 of 2)
 Prohibits age discrimination in all
employment decisions, including:
Hiring
 Promotions
 Payment of compensation
 Other terms and conditions of employment

 The Older Workers Benefit Protection Act
(OWBPA) amended ADEA to prohibit age
discrimination with regard to employee
benefits.
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Age Discrimination in Employment
Act (ADEA) of 1967 (2 of 2)
 ADEA applies to employees who are 40
years of age and older.
 Covered employers cannot establish
mandatory retirement ages for their
employees.
 ADEA is administered by the EEOC.
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Americans with Disabilities Act (ADA)
of 1990
 The ADA imposes on employers and
providers of public transportation,
telecommunications, and public
accommodations to accommodate
individuals with disabilities.
 Title I of the ADA prohibits employment
discrimination against qualified individuals
with disabilities.
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Title I of the ADA requires an
employer to make reasonable
accommodations to individuals with
disabilities that do not cause undue
hardship to the employer.
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Reasonable Accommodation
Under ADA
 Reasonable accommodations may
include:
Making facilities readily accessible
 Providing part-time or modified work
schedules
 Acquiring equipment or devices
 Modifying examination and training materials
 Providing qualified readers or interpreters

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Qualified Individual with a Disability
(1 of 2)
 A person who, with or without reasonable
accommodation, can perform the
essential functions of the job that person
desires or holds
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Qualified Individual with a Disability
(2 of 2)
A disabled person is someone who:
1. Has a physical or mental impairment that
substantially limits one or more of his or
her major life activities,
2. Has a record of such impairment, or
3. Is regarded as having such impairment
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Forbidden Conduct Under
Title I of ADA
 Employers are forbidden from asking a job
applicant about the existence, nature, and
severity of a disability.
 Pre-employment medical examinations
are forbidden before a job offer.
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International Reach of U.S. Antidiscrimination Laws
 Civil Rights Act (1991) protects U.S.
citizens (but not foreign nationals)
employed in a foreign country by
U.S.controlled employers.
 Foreign operations not controlled by U.S.
employers are not covered.
 The law contains an express exception
that protects U.S.-controlled employers
from conflicting foreign laws.
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Affirmative Action
 Policy that provides that certain job
preferences will be given to minority or
other protected class applicants when an
employer makes an employment decision
 Key issues:
Affirmative action plans
 Reverse discrimination
 Race norming

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State and Local Government Antidiscrimination Laws
 Many state and local governments have
adopted laws that prevent discrimination
in employment.
Usually include classes protected by federal
equal opportunity laws
 Also include classes of persons not protected
by federal laws

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