Transcript Litigation - Mercer University

Jody Blanke, Professor
Computer Information Systems and Law
Mercer University, Atlanta
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Title VII
a.
It shall be an unlawful employment practice for an employer 1.
to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment because of such individual’s race, color, religion,
sex, or national origin; or
2.
To limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin. Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. sec.
2000e et seq., sec. 703(a)
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Title VII
 Prohibits discrimination on the basis of:
 Race
 Color
 Gender
 Religion
 National origin
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Title VII
 For purposes of making decisions regarding:
 Hiring
 Firing
 Training
 Discipline
 Compensation
 Benefits
 Classification
 Other terms or conditions of employment
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Title VII
 Applies to all public (federal, state and local) and
private employers with 15 or more employees
 Covers all levels of employees (managerial and hourly)
 Exemption - permits religious institutions and
associations to discriminate when performing their
activities
 Petruska v. Gannon University, p.78
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Filing Claims under Title VII
 Employee files a claim with the EEOC
 EEOC notifies the employer
 Title VII includes antiretaliatory provisions
 Mediation
 EEOC investigation
 No-Reasonable-Cause Finding
EEOC issues employee a right-to-sue letter
 Exhaustion of administrative remedies
 Reasonable-Cause Finding
 Conciliation
 Civil suit filed in federal district court

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Filing Claims under Title VII
 In 2007, there were 82,792 charges filed with the EEOC
 12.2% were settled
 17.8% were closed

e.g., failure to pursue claim
 59.3% resulted in findings of no reasonable cause
 5.0% resulted in findings of reasonable cause

the EEOC was successful in 91.5% of its litigation
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State Agencies
 Many state and local agencies often contract with the
EEOC to become a “706” agency. These agencies can
process EEOC claims. The EEOC will often defer a
complaint to a 706 agency before investigating the
matter itself.
 Georgia Fair Employment Practices Act of 1978 protects
public employees in Georgia, O.C.G.A §§ 45-19-20 et seq.
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Theoretical Bases for Title VII
Lawsuits
 Disparate Treatment
 Disparate Impact
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Disparate Treatment
 Employee’s Prima Facie Case:
 Employee is a member of the class of persons protected
by Title VII,
 Employee applied for and was qualified for a job for
which the employer was seeking applicants,
 That despite these qualifications, employee was rejected,
and
 After this rejection, the position remained open and the
employer continued to seek applicants with those same
qualifications.
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Disparate Treatment
 Employer’s Defense:
 Employer can defend by showing that it had a
legitimate, nondiscriminatory reason for its decision.
 Employee’s Counter:
 Employee must prove that the grounds offered by the
employer were merely a pretext for its actions and that
discrimination was the real reason.

McDonnell Douglas Corp. v. Green, p. 89
 Black civil rights activist protested after being laid off and was
not rehired when new position became available. Supreme
Court remanded case to give Green a chance to prove pretext.
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Disparate Treatment
 Employer may defend by showing that there is a bona
fide occupational qualification (BFOQ) that is
reasonably necessary to the employer’s business
 Available only in cases involving gender, religion and
national origin (not for race or color)
 The basis for preferring one group over another goes to
the essence of what the employer is in business to do
 Predominant attributes of the group discriminated
against are inconsistent with that business
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Disparate Treatment
 BFOQ examples
 Airlines and bus companies can have maximum age
requirements
 Airlines cannot hire only females as flight attendants
 Wilson v. Southwest Airlines, p. 92
 Playboy can hire only females as Playboy Bunny servers
 Essence of business – male entertainment
 Hooters cannot hire only females as Hooters servers
 Essence of business – serving spicy chicken wings
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Disparate Impact
 Discrimination can be established by proving that an
employment practice, although neutral on its face,
disproportionately affects a protected group in a negative
way.
 Courts have determined the that the following screening
devices have a disparate impact:
 Educational requirement – race, e.g., Griggs v. Duke Power, p. 94
 Credit status – gender, race
 Arrest record – race
 Unwed pregnancy – gender, race
 Height and weight requirements – gender, national origin
 Marital status – gender
 Conviction of crime unrelated to job performance - race
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Disparate Impact
 The Four-Fifths Rule is a rule of thumb that permits a 20%
margin between the outcomes of the majority and the
minority under a given screening device
 i.e., disparate impact is statistically demonstrated when the rate for
a protected group is less than 80% (or four-fifths) of the higher
scoring majority group
 Employer can rebut the employee’s prima facie case by
showing the existence of a business necessity
 e.g., requirement of credit history may result in fewer women hired,
but handling large sums of money may warrant credit check
 Employee would then have to prove that there is a means of
addressing the issue that has less of an adverse impact
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