Transcript Which below is illegal? • A supervisor refuses to hire applicants who are vegetarian • Two employees are denied promotions because their.

Which below is illegal?
• A supervisor refuses to hire applicants who are vegetarian
• Two employees are denied promotions because their favorite
football team is the New Orleans Saints
• An individual is denied a job because he has a visible tattoo on
his neck
Title VII 1964 (Basic Protections)
Illegal for employers to discriminate (hiring, discharge, compensation, terms, conditions, or
privileges of employment) because of:
Race
Color
Religion
Sex
National Origin
Original protected groups (others
now include age and disability)
Who has to comply? Private (1964) and public (1972) companies with 15 or more
employees
Exemptions:
• A bona fide seniority system (BFSS; one that exists without the intention to discriminate)
• A bona fide occupational qualification (BFOQ; one that is reasonably necessary for the
successful operation of a business)
Case Example
In early 2009, a male applicant filed suit against Hooters of America after he
was turned down for the position of server. His claim is that Hooters is
engaging in sex discrimination by only hiring females as wait staff. Many years
earlier, Hooters settled a class action suit after being faced with a similar
allegation. In the settlement, they agreed to pay $3.75 million and open
positions in their restaurants to males. But, under the agreement, the position
of servers was limited to only females.
In 2010, two separate lawsuits were filed against alleging weight discrimination
(Convery v. Hooters of Roseville; Smith v. Hooters of Roseville). Two past servers
contend that they were fired because they were judged to be overweight and did
not look good in the Hooters uniform. The uniform sizes are reportedly extra,
extra small, extra small, and small. (These suits also claim that Hooters
weight requirements represent per se gender discrimination).
Do you think Hooters should be allowed to engage in these practices? Why or
why not?
Hooters Case (cont.)
Hooters Defense
• For Hooters to be successful, they need to provide evidence that limiting
servers to females is reasonably necessary for the operation of its business (a
BFOQ). How easy will this be for Hooters?
• Key to Hooters defense will be how it defines the nature of its business
and how being female (in certain positions) is crucial for their business
operations.
• This suit contends that Hooters violated a Michigan civil rights law
banning employment discrimination on the basis of religion, race, age, sex,
height and weight. In response to the weight discrimination suit, Hooters
has stated that its servers function as "entertainers," and that physically fit
and attractive women are key to the organization's image.
22 women sued Borgata Hotel Casino & Spa that prohibited "Borgata Babes"
for their policy that prohibited them from gaining more than 7 percent of their
original body weight. Sued for weight and sex discrimination ---
Superior Court judge ruled in favor of the casino – partly due to the “job description” above.
During the hiring process, it was made clear to applicants the positions were meant to be
part entertainer and part cocktail server. Also, all of the females involved in the suit signed
statements agreeing to the weight policy, was thought to be “lawful and reasonable” by the
judge. The alleged creation of humiliation and harassment, due to the dress code, was not
actionable as sex discrimination
Selection for Flight Attendants at Korean Air Lines
• Must be below the age of 27. Applicants above the age of 27 may be
considered but they must possess an advanced set of skills and experience
• English skills (an essential requirement for all Korean Air flight attendants)
• A college diploma
• A priority is placed on a pretty face and height requirements. Must be at least 5
feet 3 inches tall; good teeth, slim (weight must be proportional to height)
• Medically fit to fly
Case Examples: Sex as a BFOQ
Although sex can qualify as a BFOQ, this is relatively rare. In an early case
(Dothard v. Rawlinson, 1977), the state of Alabama claimed that sex (and height
and weight) was a BFOQ in defending its policy of segregating male and female
prison guards. The state lost on the height and weight requirement (it was used
as a proxy for strength) but won on sex as a BFOQ, because of the concern for
workplace safety of females.
In United Auto Workers v. Johnson Controls (1991), the Supreme Court ruled
against the company's defense of sex as a BFOQ. In this case, females of
childbearing age were excluded from jobs where exposure to lead was high (a socalled fetal protection policy). But, the concern about fertility was not viewed as
a sex-neutral approach by the Court since the policy only affected females, not
males. Consequently, the Supreme Court concluded that sex did not meet the
requirements of a BFOQ and found Johnson Controls to be guilty of sex
discrimination
Differential Treatment Discrimination (intentionally treating individuals
differently based on their membership in a protected group.
1) Plaintiff [Standards for a Establishing a Prima Facie Case]
•
•
•
•
Applicant belongs to a protected group
Applicant applied and was qualified for a job the employer was trying to fill
Applicant, though qualified, was rejected for the position
Employer continued to seek applicants with applicant’s qualifications
2) Defendant:
A legitimate nondiscriminatory reason exists for the rejection of the person
3) Plaintiff:
The organization's reason for the rejection is a pretext for discrimination
McDonnell Douglas v. Green
Green laid off as part of a large
downssizing effort
Green patricipated in a "stall-in"
and "lock-out" aganist the
company – both illegal activities
Company advertised for jobs.
One of the jobs was for the
position of "mechanic" --- Green's
former position with the company
Green applied for his former job
and was rejected
Green filed race discrimination
lawsuit
1) Green successfully formed a
prima facie case: 1) he was a member
of a protected group, 2) he applied
for and was qualified to perform the
job 3) the company refused to hire
Green, and 4) the organization
continued to seek applicants for the
position.
2) Company articulated a legitimate
reason for their refusal to rehire
Green (e.g., illegal behavior)
3) Green had the option to
demonstrate that the company's
reason was a pretext for
discrimination (e.g., white workers
were treated less harshly for
performing similar behavior as
Green)
Disparate Impact Process
Phase 1: Challenger --- Evidence (often statistical) that a specific, identified
employment practice disproportionately excludes protected group members
(establishment of a prima facie case)
Phase 2: Company --- Proof that the challenged practice is job-related and
consistent with business necessity
Phase 3: Challenger --- Proof there is an equally valid, job-related practice with
less or no adverse impact
Griggs v. Duke Power
Promotion Requirements
 Pass the Wonderlic Personnel Test and
Bennett Mechanical Aptitude Test
 Possess a high school diploma
Effects of These Requirements
 Tests eliminated roughly 94% of blacks
as compared to 43% of whites.
 12% of Blacks possessed a high school
diploma in NC versus Whites (34%)
Race Discrimination Lawsuit Filed
The Supreme Court ruled
against the company:
• All tests/equirements must
be job related
• Intention to discriminate
is not required for
discrimination to exist
•
• All tests must meet
acceptable professional
guidelines for psychometric
worth
• Employment
discrimination may result
from the effects of one's
actions
Basic Adverse Impact Example
Group
Non-minority
Minority
Applicants
Hired
Selection ratio (SR)
100
20
.20
50
?
?
• Is the selection ratio of minorities less than 4/5 (.80) of the non-minority group?
• If number of minorities hired is 5, is adverse impact present?
• If number of minorities hired is 9, is adverse impact present?
Case Example: Connecticut v. Teal (Bottom Line Defense)
Connecticut required passing a written test for promotion
Blacks who passed the test was 54% compared to 79% for whites (a passing rate for
blacks that was 68% less than that of whites). This data suggested an obvious
violation of the 4/5 rule
________________________
 Black candidates who failed the exam sued, arguing that the test was unrelated
to the job and resulted in adverse impact.
 The state did not question this point. But, argued that the company's final
decisions (the bottom line) resulted in a greater percent of blacks (almost 30%)
versus whites (13%) being promoted.
 The Court ruled in favor of the challengers saying the law protects individual
employees and that discrimination can exist even though the group as a whole
fared well
 All requirements which function to eliminate those from further consideration
must be shown to be job-related and not possess adverse impact.
Affirmative Action
Case
Major Findings
California v. Bakke (1978)
--- Medical school admissions
• A specific % or number of openings based on race illegal
• Race permissible as “plus” factor
• Diversity can be a “compelling interest”
• Strict scrutiny analysis” advocated
Grutter v. Bollinger (2003)
--- Law School admissions
• Diversity is a compelling state interest in the context of
university admissions.
• Plan was narrowly tailored; Race was one of the many
factors
• Plan used a highly individualized, holistic review of
each applicant’s file
• Admissions program does not unduly harm
nonminority applicants
• Goal was to terminate its use of racial preferences as
soon as practicable (achieving a “critical mass”)
Gratz et al. v. Bollinger (2003)
--- Undergraduate admissions
• Giving 20 points to minorities virtually guaranteed
admission (race a decisive factor)
• AAP NOT narrowly tailored
Fisher v. University of Texas (2013)
--- Undergraduate admissions
Strict scrutiny NOT applied by lower courts
Schette v. BAMN (2014)
Voters in the States may choose to prohibit the
consideration of racial preferences in educational
admissions
~ Basics of Strict Scrutiny Analysis ~
•Did the university present evidence that a compelling interest
was present (the goal of a diverse student body is essential to its
mission)?
•Were the means to attain diversity (e.g., specific
procedures/processes used) narrowly tailored to the stated goal?
• Is the use of race necessary? Are other, less restrictive (e.g.,
race-neutral) alternatives available to produce diversity?
Key Affirmative Action Factors
Remedial in nature (e.g., past evidence or findings of discrimination)
Narrowly tailored plan
Voluntary (e.g., employer adoption of a AA plan due to underutilization of
minorities)
Limited Duration (a temporary time frame exists)
Use of minority status as a "plus" factor (Bakke and Johnson v. Transportation
Agency cases; U. Michigan cases --- Grutter (diversity) Yes; Gratz (20 pts.) No
No harm to those in the majority
• Protection of jobs (e.g., layoffs)
Equal Pay Act (1963)
Must pay males and females, within a given establishment, same rates for jobs
requiring equal:
•
•
•
•
Skill
Responsibility
Effort
Work conditions
Exemptions (affirmative defenses):
•
•
•
•
A seniority system
A merit system
A system which measures earnings by quantity or quality of production
Any factor other than sex (FOS)
Age Discrimination in Employment Act (ADEA)
Basic Protections
• Protected group – Individuals 40 years of age or older (employees and job
applicants)
• Most suits are disparate treatment cases
ADEA Burden of Proof Process
Phase 1: Challengers must establish a prima facie case by providing evidence of
age discrimination by showing that:
• They are 40 years old or older
• They were qualified for the position in question
• They were victims of an unfavorable employment decision (e.g., not hired,
promoted, fired)
• The organization favored an individual who was considerably younger than the
challenger
Phase 2: Company must articulate that a legitimate, nondiscriminatory reason
exists for their decision
Phase 3: The challenger proves that the organization's reason for their rejection
is a pretext for discrimination
Some Defenses in ADEA cases
(1) BFOQ
A) “That the BFOQ is reasonably necessary to the essence of the business” and
B) “That it has reasonable cause, i.e., a factual basis for believing that all or substantially
all persons within the protected age group would be unable to perform safely and
efficiently the duties of the job involved, or whether it is impossible or impractical to
deal with persons in the protected age group on an individual basis” (Usery v. Tamiami
Trail Tours, Inc. 1976, pg. 1241-1242).
(2) Reasonable Factor Other Than Age (RFOA)
• Company must offer proof that the factor used was NOT age but another factor that
is not unreasonable (even though the “other” factor is related to age such as job tenure)
 If a company fires an employee who is in the protected age group (i.e.,
40 and above) and replaces him/her with another person in the protected
group, can they be sued for age discrimination?
O’Conner v. Consolidated Coin (1996): Yes; Substantially Younger
Criteria is the key element
Generally, an age difference of 8-10 years is required but …
 If a company uses age in making a personnel decision but shows that it also
used other legal factors in their decision-making process, can they avoid being
sued successfully? (mixed-motive case)
No; CRA-91 does not apply to the ADEA regarding mixed-motive instructions
 Can age discrimination suits be filed under adverse impact? Yes; but it’s
difficult to win (factors must be shown to be unreasonable – see below)
GR IGGS -ALBE M ARL E (TI TLE VI I)
Pr im a F a cie
S tatis tical evid en ce o f an id en tifi ed em plo y m ent pra ct ic e tha t
di sp ropo rtio na tely e xcl u d es p rote cted g ro u p m e m b ers
De fen se
Pr oo f th at the c h allen g ed pra ctic e is job -rela ted an d co ns istent wi th
b us ine ss n ece ssi ty
Pre tex t
Pr oo f th ere is an equa lly valid, job -rela ted p ra ctic e wi th les s or n o
adv erse im p ac t
S M ITH V . CI TY OF JAC KS ON (ADE A )
Pr im a F a cie
S tatis tical evid en ce o f an id en tifi ed em plo y m ent pra ct ic e tha t
di sp ropo rtio na tely e xcl u d es p rote cted g ro u p m e m b ers
De fen se
Pr oo f th at the c h allen g ed pra ctic e is su pp o rted b y a R ea so na b le
F ac to r O th e r Than Ag e (R F O A )
Pre tex t
Pr oo f th at the fac to r c ited is un rea so na b le, o r n o t th e tru e r ea so n for
the em plo y me n t pra ct ic e
What Counts as a Disability?
The ADA covers qualified individuals with disabilities
1. Must be legally disabled (3-prong approach)
a) Current physical or mental impairment that substantially limits a major life
activity
b) A record of such an impairment (e.g., cancer "survivor," past mental illness)
c) Being regarded as having such an impairment
2. Must be qualified
3. Must show that a negative employment decision was made because of one’s
disability
Proving Substantial Limitation of a
Major Life Activity
Criteria:
 Average Person Test
Failures of the Average Person Test:
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•
•
•
•
•
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Fungus allergy (Byrne v. Bd. of Education, 1992)
Inability to life 25 pounds (Williams v. Channel Master, 1996)
Moderate difficulty in walking (Penny v. UPS, 1997)
Depression & social interactions (Breiland v. Advance Circuits, 1997)
Depression & sexual appetite (Johnson v. NY Medical College, 1997)
Test anxiety (Mcguinnes v. University of New Mexico, 1998)
Breathing/sensitivity to dust and fumes due to pneumonia
(Rinehimer v. Cemcolift, 2002)
Eye problems causing reading difficulties (Szmaj v. AT&T, 2002)
 Permanence Test (> 6 months; ADAAA)
Are Possible Correctable Measures Used in
Determning a Substantial Limitation?
 Given the ADAAA, impairments must be assessed without
considering available correctable measures (e.g., medication,
prosthetics, or other devices)
So, impairments (e.g., diabetes, hypertension, epilepsy) must be
evaluated regarding how the disease affects people when
unmedicated (overturned a series of Supreme Court cases in 1999)
~ Summary of the ADAAA (2008) ~
• Impairments must be considered in their “uncorrected state”
• Impairments with a duration (or expected duration) of greater than six months
are considered to be “permanent.”
• Working is a major life activity (Broad range requirement)
• Episodic diseases, such as tuberculosis, must be considered while in their active
state.
Are All Individuals Diagnosed With a Diability
Covered Under the ADA?
No. Limitations must be proven by each individual, NOT how an
impairment affects people in general
Example:
Person A: Diagnosis of depression and is substantially limited in
a major life activity
Person B: Diagnosis of depression and is NOT substantially
limited in a major life activity
Person A is disabled within the meaning of the ADA and Person
B is not
Major Life Activities Codified
in Sections 3(2)(A) & 3(2)(B) of the ADAAA
• Caring for oneself (e.g., brushing teeth, washing)
• Performing manual tasks
• Seeing, hearing, eating, sleeping, speaking, communicating
• Walking, standing, lifting, bending
• Learning, reading, concentrating, thinking
• Operation of bodily functions (e.g., immune and digestive systems
cell growth, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, reproductive)
• Working (broad range test used)
How Do You Know an Individual is Qualified?
 Qualified: Able to perform essential functions of the job
with or without a reasonable accommodation
Essential job functions are best determined via a systematic job
analysis
Can an organization consider health & safety issues in
determing whether or not an individual is qualified?
Yes. Individuals are unqualified if companies present evidence
that one’s disability poses a “direct threat” to the health and
safety of others (and cannot be offset with a reasonable
accommodation)
Infectious diseases (nature of risk, duration, severity, likelihood of
What makes an accommodation reasonable?
[Cannot impose a direct hardship on an organization]
Some Key Factors:
• Cost of accommodations
• Company resources
• Nature and structure of organizations
Examples of Reasonable Accommodations:
•
•
•
•
•
Restructuring job tasks
Altering work schedules
Buying or modifying equipment
Modifying exams or training program
Medical leave (must be time-barred)
Are organizations required to reallocate essential job duties to
another employee as a reasonable accommodation?
Organizations are Not Required to:
• Reallocate essential job duties
• Give preference to disabled applicants/employees
• Create a new position
• Lower production/quality performance standards
• Allow work at home (attendance often ruled as essential)
• Give applicants their preferred accommodation
Do companies have to accommodate disabilities whether they
knew or should have known about their existence?
No. Companies only have to accommodate "known"
disabilities (flexible interaction requirement)
• Some disabilities are obvious (e.g., loss of a limb, person seated
in a wheelchair)
• Cannot ask if an applicant has a disability --- Can ask people to
indicate whether they are a “disabled veteran” if the information is
being requested for affirmative action purposes [see:
http://www.eeoc.gov/facts/veterans-disabilities.html]
But, can ask applicants if they can perform essential, job-related
functions and/or to perform essential job duties
OFCCP Voluntary Self-Disclosure Form
Flexible Interaction Recommendations
Medical Examinations & Inquiries About Disabilities
>>> An employer may NOT require a job applicant to take a
medical examination before making a job offer
MMPI and the ADA
Karraker v. Rent-A-Center, Inc. (2005)
The MMPI fits the definition of a “medical examination” --- a
“procedure or test that seeks information about an individual’s
physical or mental impairments or health.”
The MMPI was designed to reveal mental impairment/disorders -- thus its use prior to making a personnel decision is a violation of
the ADA.
Family and Medical Leave Act (1993)
• Applies to organizations with 50 or more employees (originally was 15 or more)
• 12 weeks of leave for any 12 month period (leave is unpaid; originally was 26
weeks for medical and 18 weeks for family leave)
• Covers mothers and/or fathers
Leave reasons:
• Birth and caring for a child
• Adoption or foster care for a child
• Care for a spouse, child, or parent with a serious health condition
• Serious health condition of the employee (unable to perform job functions)
• Job security is protected (must be given same or equivalent position)
and health care coverage must be maintained
• Husbands and wives who work for the same company are eligible for a
total of 12 weeks leave between the two of them
• Key employees not covered (those among top 10% in salary)
~ Types of Sexual Harassment ~
1) Quid Pro Quo (sex as a condition of employment or basis for
employment decisions)
2) Environmental harassment -- Behavior of a sexual nature that is:
 Unwelcome
Is it sexual harassment if a female employee engages in consensual sex with a male
superior?
 Unreasonably interferes with one’s work performance or creates an
intimidating, hostile, or repressive work environment)
What determines unwelcome sexual behavior?
•
A complaint at the time of the offense strengthens a claim, but it is
NOT required
•
Victim's non-verbal conduct may indicate that the behavior is
unwelcome (e.g., being visibly upset, angry)
•
Corroboration is helpful (e.g., testimony from eyewitnesses, victim
told others of the harassing behavior); but evidence can come solely
from the victim
How is a hostile work environment
established?
• Reasonable person/woman/victim standard
• Repeated offenses
• Behavior of supervisors are more likely to be viewed as creating a hostile
environment. [Seen as an "agent" of the company]
• Victims do not have to prove they suffered tangible or severe psychological
damage (e.g., Harris v. Forklift Systems)
~ Harris v. Forklift Systems ~
Comments and behavior from Harris' supervisor:
"You're a woman, what do you know?"
"We need a man as the rental manager."
Called her "a dumb ass woman."
Suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise"
Asked Harris (and other female employees) to take coins out of his pants pocket
Threw objects on the floor and asked female employees to pick them up
>>> Harris complained to her supervisor, he was surprised, and said he would stop.
Alas, a month later:
When arranging the signing of a deal with a customer Harris' supervisor said "What did
you do, promise the guy --- some [sex] Saturday night? She quit and sued the company
District court found this to be "a close case."
They found that the supervisors comments offended Harris (and would offend a
"reasonable woman") but did not --- seriously affect her psychological well-being or
caused her to suffer injury
Who can commit acts of sexual harassment?
• Supervisors (agent of company -- circumstances of employment relationship,
job functions)
• Co-workers (role of corrective action)
Are there grounds for sexual harassment if a consensual relationship already existed between two
employees?
Can an organization be responsible for harassment of its customers/clients?
• Clients (extent of company control)
Is an organization responsible for sexual harassment by its employees if it did not
know the behaviors were being committed?
Does having a company policy against sexual harassment protect companies from
liability?
Responsibility exists regardless of whether the acts complained of were: 1)
authorized or even forbidden by the employer (e.g., company policy) and 2)
regardless of whether the company knew or should have known of their
occurrance
 Can a company be held liable for harassment that occurs outside of the work environment?
 Can men be guilty of sexual harassment against other men?
 Are companies automatically liable for "environmental" sexual harassment of its supervisors?
Caps on damages (based on company size). Sum of punitive damages and compensatory
damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-monetary losses.
15 to 100 employees
101 to 200 employees
201 to 500 employees
501 employees or more
$50,000
$100,000
$200,000
$300,000
Legitimate to admit evidence of alleged victim's "provocative behavior and dress."
[From Supreme Court decision in Meritor Savings v. Vinson]
Role of Context in Assessing Sexual Harassment Claims
• Totality of circumstances
Nature of sexual
advances (behavior)
• Record as a whole
• Case by case assessment
From Oncale v. Sundowner:
"... careful consideration of the social context in which the particular behavior
occurs and is experienced by the target"
"The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed."
Retaliation
Retaliation
Illegal for companies to take negative action against employees who:
a) Legally oppose a company practice, or
b) File an official claim against them (protected activities)
Alleged retaliatory actions taken by organizations must not be trivial;
they need to have a material impact on workers.
Total Charges
EEOC Claims by Discrimination Type in 2013
Total EEOC Charges By Year
40,000
38,539
35,000
33,068
27,687
30,000
25,957
21,396
25,000
20,000
15,000
10,642
7,256
10,000
5,000
3,721
3,541
1,019
1,000
Retaliation
(Total)
Race
Sex
Disability
Age
National
Origin
Sexual
Religion
Pregnancy
Equal
Pay
Retaliation Claims
Three Prongs in Retaliation Claims
Phase 1
Plaintiff engages in protected activity by (1) complaining
about an employer practice or (2) filing a formal claim of
discrimination
Phase 2
After engaging in protected activity, plaintiff suffers a
materially adverse action
Phase 3
Plaintiff must demonstrate a causal connection between
alleged materially adverse action and the protected activity
What is a Material Adverse Action?
Three Theories of Materially Adverse Actions
Ultimate
Employment
Limited to ultimate employment decisions such as hiring,
granting leave, promotion, discharge and compensation
Adverse
Employment
Retaliatory act must interfere with terms, conditions and
privileges of employment, but requires no tangible
employment consequence
EEOC
Deterrence
Retaliatory act must deter a reasonable person from engaging
in protected activity; does not require an ultimate employment
decision or interference with terms/conditions/privileges of
employment
Prong 3: Establishing a Causal Connection
A key element in most successful retaliation claims is a close temporal
proximity between Prongs 1 (engaging in a protected activity) and 2
(taking a material adverse action)
In Clark County School District v. Breeden (2001), the Supreme Court
established that temporal proximity between the protected behavior and
the challenged retaliatory act has to be “very close” to establish a prima
facie case of retaliation
The Court also endorsed two lower court rulings that intervals of three
months (Richmond v. Oneok, 1997) and four months (Hughes v. Derwinski,
1992) were too long
• For a causal connection to be made, evidence must exist that the
employer knew or should have known about the employee's opposition
or participation
Summary of Recent Key Retaliation Cases
Versus a
showing
that an
illegal factor
was a
Motivating
factor (race,
color,
national
origin,
religion,
sex)