Business Law: Chapter 35 - Employment Discrimination

Prima Facie Age Discrimination To establish a prima facie case of age discrimination, the plaintiff must show that she or he was the following:

1. A member of the protected age group. 2. Qualified for the position from which she or he was discharged. 3. Discharged because of age discrimination. Then the burden shifts to the employer to give a legitimate nondiscriminatory reason for the adverse action.

What Is a Disability? Specifically, the ADA defines a disability as including any of the following:

1. A physical or mental impairment that substantially limits one or more of the major life activities of the affected individual. 2. A record of having such an impairment. 3. Being regarded as having such an impairment.

Sexual harassment can take two forms:

1. Quid pro quo harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits. Quid pro quo is a Latin phrase that is often translated as "something in exchange for something else." 2. Hostile-environment harassment occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it. Such harassment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult, and this harassment is so severe or pervasive that it alters the conditions of employment.

The United States Supreme Court issued several important rulings in cases alleging sexual harassment by supervisors that established what is known as the "Ellerth/Faragher affirmative defense." The defense has two elements:

1. The employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior (by establishing effective harassment policies and complaint procedures, for instance). 2. The plaintiff-employee must have unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.

To establish a prima facie case of disparate-treatment discrimination in hiring, a plaintiff must show all of the following:

1. The plaintiff is a member of a protected class. 2. The plaintiff applied and was qualified for the job in question. 3. The plaintiff was rejected by the employer. 4. The employer continued to seek applicants for the position or filled the position with a person not in a protected class.

The ADA (Americans with Disabilities Act) Amendments Act broadened the coverage of the ADA's protections. To prevail on a claim under the ADA, a plaintiff must show that he or she:

1. has a disability, 2. is otherwise qualified for the employment in question, and 3. was excluded from the employment solely because of the disability. As in Title VII cases, the plaintiff must pursue the claim through the EEOC before filing an action in court for a violation of the ADA. The EEOC may decide to investigate and perhaps sue the employer on behalf of the employee. The EEOC can bring a suit even if the employee previously signed an agreement with the employer to submit job-related disputes to arbitration.

Homework Question 35-1 Answer

10 or more could apply to VII Could violate state law FEWER THAN 15, VII does not affect you

prima facie case

A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it.

business necessity

A defense to an allegation of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance.

disparate-treatment discrimination

A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes.

protected class

A group of persons protected by specific laws because of the group's defining characteristics, including race, color, religion, national origin, gender, age, and disability.

Undue Hardship

A reasonable attempt to accommodate does not necessarily require the employer to make every change an employee requests or to make a permanent change for an employee's benefit. An employer is not required to make an accommodation that would cause the employer undue hardship.

Association with Disabled Persons

A separate provision in the ADA prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities.

tangible employment action

A significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position.

seniority system

A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced.

Constructive discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave. When constructive discharge is claimed, the employee can pursue damages for loss of income, including back pay. These damages ordinarily are not available to an employee who left a job voluntarily.

Disclosure of Confidential Medical Information

ADA provisions also require employers to keep their employees' medical information confidential. An employee who discovers that an employer has disclosed his or her confidential medical information has a right to sue the employer—even if the employee was not technically disabled. The prohibition against disclosure also applies to other employees acting on behalf of the employer.

Discrimination Based on Age

Age discrimination is potentially the most widespread form of discrimination because anyone—regardless of race, color, national origin, or gender—could be a victim at some point in life. The Age Discrimination in Employment Act (ADEA), as amended, prohibits employment discrimination on the basis of age against individuals forty years of age or older. The act also prohibits mandatory retirement for nonmanagerial workers. In addition, the ADEA protects federal and private-sector employees from retaliation based on age-related complaints.

Reasonable Accommodation

An employer must "reasonably accommodate" the religious practices and sincerely held religious beliefs of its employees, unless to do so would cause undue hardship to the employer's business. An employee's religion might prohibit her or him from working on a certain day of the week, for instance, or at a certain type of job. Reasonable accommodation is required even if the belief is not based on the doctrines of a traditionally recognized religion, such as Christianity or Judaism, or of a denomination, such as Baptist.

bona fide occupational qualification (BFOQ)

An identifiable characteristic reasonably necessary to the normal operation of a particular business. Such characteristics can include gender, national origin, and religion, but not race.

Procedures under the ADEA

As explained earlier, if the plaintiff in a Title VII case can show that the employer was motivated, at least in part, by unlawful discrimination, the burden of proof shifts to the employer. Thus, in cases in which the employer has a "mixed motive" for discharging an employee, the employer has the burden of proving that its reason was legitimate. Under the ADEA, in contrast, a plaintiff must show that the unlawful discrimination was not just a reason but the reason for the adverse employment action. In other words, the employee has the burden of establishing but for causation—that is, "but for" the employee's age, the action would not have been taken.

Mitigating Measures

At one time, the courts focused on whether a person had a disability after the use of corrective devices or medication.

Equal Protection Issues

Because of their inherently discriminatory nature, affirmative action programs may violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Any federal, state, or local government affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to strict scrutiny (the highest standard to meet) by the courts. Today, an affirmative action program normally is constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences. Furthermore, once such a program has succeeded in the goal of remedying past discrimination, it must be changed or eliminated.

Disparate-impact discrimination

Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect. Once the plaintiff has made out a prima facie case, the burden of proof shifts to the employer to show that the practices or procedures in question were justified.

Online Harassment

Employees' online activities can create a hostile working environment in many ways. Racial jokes, ethnic slurs, or other comments contained in e-mail, texts, blogs, or social media can lead to claims of hostile-environment harassment or other forms of discrimination.

Remedies under Title VII

Employer liability under Title VII can be extensive. If the plaintiff successfully proves that unlawful discrimination occurred, he or she may be awarded reinstatement, back pay, retroactive promotions, and damages. Compensatory damages are available only in cases of intentional discrimination. Punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference to an individual's rights. The total amount of compensatory and punitive damages that plaintiffs can recover from specific employers depends on the size of the employer. For instance, there is a $50,000 cap on damages from employers with one hundred or fewer employees.

Job Applications and Physical Exams

Employers must modify their job-application and selection process so that those with disabilities can compete for jobs with those who do not have disabilities.

Undue Hardship

Employers who do not accommodate the needs of persons with disabilities must demonstrate that the accommodations would cause undue hardship in terms of being significantly difficult or expensive for the employer. Usually, the courts decide whether an accommodation constitutes an undue hardship on a case-by-case basis.

Sexual-Orientation Harassment

Federal law (Title VII) does not prohibit discrimination or harassment based on a person's sexual orientation. Nonetheless, a growing number of states have enacted laws that prohibit sexual-orientation discrimination in private employment. Some states, such as Oregon, explicitly prohibit discrimination based on a person's gender identity or expression. Many companies have also voluntarily established nondiscrimination policies that include sexual orientation.

Harassment by Supervisors

For an employer to be held liable for a supervisor's sexual harassment, the supervisor normally must have taken a tangible employment action against the employee.

State Employees Not Covered by the ADEA

Generally, the states are immune from lawsuits brought by private individuals in federal court (unless a state consents to such a suit). This immunity stems from the United States Supreme Court's interpretation of the Eleventh Amendment. Congress has the power to abrogate (abolish) state immunity to private suits through legislation. Such legislation must unequivocally show Congress's intent to subject states to private suits. Generally, though, the Court has found that state employers are immune from private suits brought by employees under the ADEA. State employers are also immune from suits brought under the Americans with Disabilities Act and the Fair Labor Standards Act. They are not immune from the requirements of the Family and Medical Leave Act.

Burden-Shifting Procedure

If the employer can articulate a legitimate reason for the action, the burden shifts back to the plaintiff. To prevail, the plaintiff must then show that the employer's reason is a pretext (not the true reason) and that the employer's decision was actually motivated by discriminatory intent.

Pretext

If the employer offers a legitimate reason for its action, then the plaintiff must show that the stated reason is only a pretext. The plaintiff is required to prove that the plaintiff's age was the real reason for the employer's decision.

Same-Gender Harassment

In Oncale v. Sundowner Offshore Services, Inc., the United States Supreme Court held that Title VII protection extends to individuals who are sexually harassed by members of the same gender. Proving that the harassment in same-gender cases is "based on sex" can be difficult, though. It is easier to establish a case of same-gender harassment when the harasser is homosexual.

Limitations on Class Actions

In an important decision, the United States Supreme Court limited the rights of employees to bring discrimination claims against their employer as a group, or class. The decision did not affect the rights of individual employees to sue under Title VII, however.

After-Acquired Evidence of Employee Misconduct

In some situations, employers have attempted to avoid liability for employment discrimination on the basis of "after-acquired evidence" of an employee's misconduct. After-acquired evidence refers to evidence that the employer discovers after a lawsuit has been filed. After-acquired evidence of wrongdoing cannot shield an employer entirely from liability for employment discrimination. It may, however, be used to limit the amount of damages for which the employer is liable.

Discrimination against Transgender Persons

In the past, most courts held that federal law (Title VII) does not protect transgender persons from discrimination. The situation may be changing, however. A growing number of federal courts are interpreting Title VII's protections against gender discrimination to apply to transsexuals.

Affirmative action

Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination.

The Equal Employment Opportunity Commission

Monitors compliance with Title VII. An employee alleging discrimination must file a claim with the EEOC before a lawsuit can be brought against the employer. The EEOC may investigate the dispute and attempt to obtain the parties' voluntary consent to an out-of-court settlement. If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf.

Replacing Older Workers with Younger Workers

Numerous age discrimination cases have been brought against employers who, to cut costs, replaced older, higher-salaried employees with younger, lower-salaried workers. In such situations, whether a firing is discriminatory or simply part of a rational business decision to prune the company's ranks is not always clear. The plaintiff must prove that the discharge was motivated by age bias. The plaintiff need not prove that she or he was replaced by a person "outside the protected class" (under the age of forty). The replacement worker need only be younger than the plaintiff. Nevertheless, the greater the age gap, the more likely the plaintiff will succeed in showing age discrimination.

Applies to All Title VII Discrimination

Plaintiffs can use constructive discharge to establish any type of discrimination claim under Title VII, including race, color, national origin, religion, gender, and pregnancy. It is most commonly asserted in cases involving sexual harassment.

There are two ways of showing that an employer's practices, procedures, or tests are effectively discriminatory—that is, that disparate-impact discrimination exists:

Pool of Applicants A plaintiff can prove a disparate impact by comparing the employer's workforce to the pool of qualified individuals available in the local labor market. The plaintiff must show that 1. as a result of educational or other job requirements or hiring procedures, 2. the percentage of nonwhites, women, or members of other protected classes in the employer's workforce 3. does not reflect the percentage of that group in the pool of qualified applicants. If the plaintiff can show a connection between the practice and the disparity, he or she has made out a prima facie case and need not provide evidence of discriminatory intent. Rate of Hiring A plaintiff can also prove disparate-impact discrimination by comparing the employer's selection rates of members and nonmembers of a protected class (nonwhites and whites, for instance, or women and men). When an educational or other job requirement or hiring procedure excludes members of a protected class from an employer's workforce at a substantially higher rate than nonmembers, discrimination occurs.

Age Discrimination in Employment Act and the Americans with Disabilities Act

Prohibit discrimination on the basis of age and disability, respectively. The protections afforded under these laws also extend to U.S. citizens who are working abroad for U.S. firms or for companies that are controlled by U.S. firms.

Title VII of the Civil Rights Act

Prohibits employment discrimination on the basis of race, color, religion, national origin, and gender

State Laws Prohibiting Affirmative Action Programs

Some states have enacted laws that prohibit affirmative action programs at public institutions (colleges, universities, and state agencies) within their borders. These states include California, Maryland, Michigan, New Hampshire, Oklahoma, Virginia, and Washington. The United States Supreme Court recognized that states have the power to enact such bans in 2014.

Reasonable Accommodation

The ADA does not require that employers accommodate the needs of job applicants or employees with disabilities who are not otherwise qualified for the work. If a job applicant or an employee with a disability, with reasonable accommodation, can perform essential job functions, however, the employer must make the accommodation.

Substance Abusers

The act does not protect individuals who are actually using illegal drugs, however. Instead, the ADA protects only persons with former drug addictions—those who have completed or are now participating in a supervised drug-rehabilitation program. Individuals who have used drugs casually in the past also are not protected under the act. They are not considered addicts and therefore do not have a disability (addiction). People suffering from alcoholism are also protected by the ADA. Employers cannot legally discriminate against employees simply because they suffer from alcoholism. Of course, employers can prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol while working. Employers can also fire or refuse to hire a person who is an alcoholic if 1. the person poses a substantial risk of harm to himself or herself or to others, and 2. the risk cannot be reduced by reasonable accommodation.

sexual harassment

The demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment.

Defenses to Employment Discrimination

The first line of defense for an employer charged with employment discrimination is to assert that the plaintiff has failed to meet his or her initial burden of proving that discrimination occurred. Once a plaintiff succeeds in proving that discrimination occurred, the burden shifts to the employer to justify the discriminatory practice. Possible justifications include that the discrimination was the result of a business necessity, a bona fide occupational qualification, or a seniority system. In some situations, as noted earlier, an effective antiharassment policy and prompt remedial action when harassment occurs may shield employers from liability for sexual harassment under Title VII.

Reverse Discrimination

Title VII also protects against reverse discrimination—that is, discrimination against members of a majority group, such as white males.

Discrimination Based on Religion

Title VII of the Civil Rights Act also prohibits government employers, private employers, and unions from discriminating against persons because of their religion.

Discrimination Based on Race, Color, and National Origin

Title VII prohibits employers from discriminating against employees or job applicants on the basis of race, color, or national origin. Race is interpreted broadly to apply to the ancestry or ethnic characteristics of a group of persons, such as Native Americans. National origin refers to discrimination based on a person's birth in another country or his or her ancestry or culture, such as Hispanic.

Retaliation by Employers

Title VII prohibits retaliation, and employees can sue their employers when it occurs. In a retaliation claim, an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding.

Requirements for Protection

To be protected under Title VII's retaliation provisions, the plaintiff must have opposed a practice prohibited by Title VII and suffered an adverse employment action as a result of that opposition.

Prima Facie Case of Discrimination under the USERRA

To establish a prima facie case of discrimination (and retaliation) under the USERRA, the plaintiff must establish that the employer took an adverse employment action based in part on the employee's connection with the military. The connection to the military may be through the plaintiff's membership, service, or application for service, or it may be through providing testimony or statements concerning the military service of another. If another similarly situated person who did not serve in the military or engage in a protected activity was treated more favorably than the plaintiff, the employer has violated the USERRA.

Proving Constructive Discharge

To prove constructive discharge, an employee must present objective proof of intolerable working conditions. The employee must also show that the employer knew or had reason to know about these conditions yet failed to correct them within a reasonable time period. In addition, courts generally require the employee to show causation—that the employer's unlawful discrimination caused the working conditions to be intolerable. Put in a different way, the employee's resignation must be a foreseeable result of the employer's discriminatory action.

Discrimination Based on Gender

Under Title VII and other federal acts, employers are forbidden from discriminating against employees on the basis of gender. Employers are prohibited from classifying or advertising jobs as male or female unless they can prove that the gender of the applicant is essential to the job. In addition, employers cannot have separate male and female seniority lists and cannot refuse to promote employees based on their gender.

Plaintiffs May Be Entitled to Promotions

Under the USERRA, returning service members are to be reemployed in the jobs that they would have attained had they not been absent for military service. Reinstatement could affect their seniority, status, pay, and other rights and benefits (such as health and pension plans). In essence, this means that if a returning service member sues an employer for violations of the USERRA and is successful, she or he could receive not only damages and reinstatement but also a promotion.

employment discrimination

Unequal treatment of employees or job applicants on the basis of race, color, national origin, religion, gender, age, or disability; prohibited by federal statutes.

Potential Section 1981 Claims

Victims of racial or ethnic discrimination may also have a cause of action under 42 U.S.C. Section 1981. This section, which was enacted in 1866 to protect the rights of freed slaves, prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts. Because employment is often a contractual relationship, Section 1981 can provide an alternative basis for a plaintiff's action and is potentially advantageous because there is no limit on the damages that can be awarded.

Harassment by Co-Workers and Others

When the harassment of co-workers, rather than supervisors, creates a hostile working environment, an employee may still have a cause of action against the employer. Normally, though, the employer will be held liable only if it knew or should have known about the harassment and failed to take immediate remedial action.

Health-Insurance Plans

Workers with disabilities must be given equal access to any health insurance provided to other employees and cannot be excluded from coverage.

Discrimination Based on Disability

The Americans with Disabilities Act (ADA) prohibits disability-based discrimination in all workplaces with fifteen or more workers. An exception is state government employers, who are generally immune under the Eleventh Amendment, as just mentioned. Basically, the ADA requires that employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship."

Wage Discrimination

The Equal Pay Act requires equal pay for male and female employees working at the same establishment doing similar work. To determine whether the Equal Pay Act has been violated, a court looks to the primary duties of the two jobs—the job content rather than the job description controls. If a court finds that the wage differential is due to "any factor other than gender," such as a seniority or merit system, then it does not violate the Equal Pay Act.

Pregnancy Discrimination

The Pregnancy Discrimination Act expanded Title VII's definition of gender discrimination to include discrimination based on pregnancy. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work.

Protection May Extend to Others

The Supreme Court has ruled that Title VII's retaliation protection extended to an employee who spoke out about discrimination against another employee during an employer's internal investigation

Broad Application and Provisions

The USERRA covers all employers, public and private, large and small. Even an employer with only one employee is subject to its provisions. The act also applies to United States employers operating in foreign countries. Under the USERRA, military plaintiffs can sue not only the employer but also individual employees who were acting in an official capacity for the employer. In other words, these employees—supervisors, for instance—can be held personally liable for violations. Additionally, there is no statute of limitations for bringing a lawsuit. The cause of action could have arisen ten weeks or ten years before the suit was filed.

Discrimination Based on Military Status Uniformed Services Employment and Reemployment Rights Act (USERRA)

The USERRA prohibits discrimination against persons who have served in the military. In effect, it makes military service and status a protected class and gives members of this class a right to sue an employer for violations.