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Chapter 34
Employment Discrimination
© 2004 West Legal Studies in Business
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Introduction
The most important federal anti-discrimination
laws are:
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Title VII of the Civil Rights Act of 1964.
The Age Discrimination in Employment Act.
The Equal Pay Act.
The Americans with Disabilities Act.
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§1: Title VII of the
Civil Rights Act of 1964
 Title VII prohibits discrimination in employment on
the basis of race, sex, color, religion, and national
origin. “Sex” now includes pregnancy.
 In addition to prohibiting religious discrimination,
employers must reasonably accommodate an
employee’s religious practices.
 Enforcement of Title VII by EEOC.
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Intentional and Unintentional
Discrimination
Intentional: “Disparate-Treatment”
Discrimination. Applicant must prove:
 She is member of a protected class;
 Applied, qualified and rejected for job; and
 Employer continued to seek applicants.
Negligent: “Disparate Impact” Discrimination.
 Non-protected applicant sues Employer who tries
to integrate members of protected classes into
workplace.
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Race, Color and
National Origin
Title VII prohibits employment policies or
intentional/ negligent discrimination on basis of
race, color or national origin.
Company policies that discriminate are illegal,
unless (except for race) they have a substantial
demonstrable relationship to realistic
qualifications for job.
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Religion
Employers must “reasonably accommodate” the
“sincerely held” religious practices of its
employees, unless to do so would cause undue
hardship to employer’s business.
 See Frazee v. Illinois Dept. of Employment Security
(1989).
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Gender “Sex” Discrimination
Title VII prohibits sex discrimination in the work
place.
Employers are prohibited from classifying jobs as
male or female or from advertising such, unless
employer can prove gender is essential to the job.
Plaintiff must show gender was determining factor
in hiring, firing or lack of promotion.
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Gender Discrimination
Two types of sex discrimination:
 Differential treatment.
 Sexual harassment:
• Hostile Work Environment.
• Quid Pro Quo.
Case 34.1: Carey v. Mount Desert Island
(1998).
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Sexual Harassment
Although Title VII does not specifically
mention sexual harassment as a form of sex
discrimination, the U.S. Supreme Court has
interpreted Title VII’s prohibition against
sex discrimination to include a prohibition
against sexual harassment.
There are currently two forms of recognized
sexual harassment:
 Hostile Work Environment.
 Quid Pro Quo.
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Hostile Work Environment
Hostile environment occurs when workplace is
“permeated” with discriminatory intimidation,
ridicule, insult so severe to alter the conditions
of the victim’s employment.
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.
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Harassment by Supervisors
Quid Pro Quo harassment involves the demands
for sexual favors by a superior from a
subordinate, in exchange for some workplace
benefit.
Under certain conditions, an employer may be
liable for the quid pro quo harassment committed
by its supervisory employees.
Case 34.2: Jin v. Metropolitan Life Ins. Co.
(2002).
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Supreme Court Guidelines
Faragher v. City of Boca Raton (1998)
 Employer (city) could be liable for supervisor’s
harassment even though the employer was unaware
of the conduct. Harassment policies and procedures
had not be distributed among employees.
Burlington Industries v. Ellerth (1998).
 Company liable for harassment even though the
employee suffered no adverse job consequences.
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Supreme Court Guidelines
Employers have a defense if:
 They took “reasonable care to prevent and correct
promptly any sexually harassing behavior” by
establishing and distributing effective harassment
policies and procedures.
 That the employee suing for harassment failed to
follow these policies and procedures.
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Harassment by Co-Workers
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.
Employers may also be liable for harassment by
non-employees.
Same-sex harassment also violates Title VII.
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Online Harassment
Employees can create hostile work environment
using chat, email to spread racial and sexual
jokes and slurs.
Employers can avoid liability with prompt
remedial action.
Employees may be discharged for using
company computers to distribute offensive
material to coworkers.
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Remedies Under Title VII
Liability may be extensive. Plaintiff may receive:
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Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.
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§ 2: Equal Pay Act of 1963
The EPA amends the Fair Labor Standards Act to
prohibit gender-based discrimination in wages
paid for similar jobs performed under similar
conditions.
Pay differentials for jobs with the same or similar
jobs can be justified on the basis of seniority,
merit, a piece-work system, or any factor other
than gender.
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§ 3: Age Discrimination
The Age Discrimination in Employment
Act (ADEA) protects individuals over the
age of 40 from workplace discrimination
that favors younger workers.
Under Kimmel v. Florida Board of
Regents (2000), states are immune from
private lawsuits brought in federal court
under 11th Amendment.
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§ 4: Discrimination based
on “Disability”
The Americans with Disability Act (ADA)
requires employers to offer reasonable
accommodation to employees or applicants with
a “disability” who are otherwise qualified for the
job they hold or seek.
The duty of reasonable accommodation ends at
the point at where it becomes an undue hardship.
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ADA
To prevail on a claim under ADA, plaintiff must
show she:
 Has a “disability.”
 Is otherwise qualified for the employment in
question; and
 Was excluded from employment solely because of the
disability.
Plaintiff must first exhaust administrative relief
with EEOC.
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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.
 Case 42.3: Sutton v. United Airlines (1999).
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ADA: “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.
Job Applications and Pre-Employment Physical
Exams.
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Hostile Environment
Claims under ADA
Some courts have allowed hostile environment
suits under ADA, although ADA does not
expressly allow suits for this claim.
Case 34.3: Flowers v. Southern Regional
Physician Services Inc. (2001).
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§5: Defenses to Employment
Discrimination
There are four basic types of defenses to
employment discrimination claims.
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Business necessity.
Bona fide occupational qualification.
Seniority systems.
After-acquired evidence of employee misconduct.
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Business Necessity
The business necessity defense requires the
employer to demonstrate that the imposition of a
job qualification is reasonably necessary to the
legitimate conduct of the employer’s business.
Business necessity is a defense to disparate
impact discrimination.
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Bona Fide Occupational
Qualification
The bona fide occupational qualification (BFOQ)
defense requires an employer to show that an
particular skill is necessary for the performance
of a particular job.
The BFOQ defense is used in cases of disparate
treatment discrimination.
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Seniority Systems
A seniority system is one that conditions the
distribution of job benefits on the length of time
one has worked for an employer.
A seniority system can be a defense only if it is a
bona fide system, not designed to evade the
effects of the anti-discrimination laws.
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After-Acquired Evidence
 After-acquired evidence refers to evidence of
misconduct, committed by an employee who is
suing an employer for employment discrimination,
that is uncovered during the process of discovery
conducted in preparation for a defense against the
suit.
 While it may serve to limit employee recovery, it
does not act as an absolute defense for the
employer.
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§ 6: Affirmative Action
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.
AA has led to “reverse discrimination” cases.
 University of California v. Bakke (1978).
 Adarand Constructors v. Pena (1995).
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The Hopwood Case
 In 1996, two white law school applicants sued the
University of Texas at Austin when they were denied
admission. The Fifth Circuit opined:
 “Diversity fosters, rather than minimizes, the use of race. It
treats minorities as a group, rather than as individuals. It may
further remedial purposes but, just as likely, may promote
improper racial stereotypes, thus fueling racial hatred.”
Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996).
 The U.S. Supreme Court denied certiorari and so the
opinion stands as law for the Fifth Circuit.
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Law on the Web
Employment law at Cornell U.
Arent Fox Law Firm.
ADA Resources.
EEOC.
Legal Research Exercises on the Web.
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