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Genetic Information Discrimination

Genetic Information Discrimination The Genetic Information Nondiscrimination Act (GINA), which took effect in 2009, makes it illegal to discriminate in employment based on genetic information. Information about a person's genetic tests or those of a person's family members, which includes medical history, may not be obtained by an employer or used in any way to determine suitability for employment. As with other protected classes, it is illegal for a person to suffer harassment or retaliation on the basis of genetic information. The EEOC was assigned to enforce this statute, using the same procedure as it does for Title VII. Test Yourself

Civil Rights Movement

16-1a The Civil Rights Movements Historically, employers could hire and fire at will, subject to the limits we covered in the last chapter. Employers could discriminate because of race, sex, or any other personal characteristics. Similarly, labor unions could impose discriminatory membership rules. The situation was worsened by federal and state laws—Jim Crow laws—that supported or required segregation. The drive for civil rights in employment and other aspects of life became a national movement in the early 1960s. Rising public concern provided support for the first federal employment discrimination statute in 1963, the Equal Pay Act, followed by the Civil Rights Act of 1964, which is the cornerstone of federal employment discrimination law.

Protected Classes

16-2a Protected Classes Title VII applies to employers, employment agencies, and labor unions in the private and public sectors. In general, it forbids discrimination in all aspects of employment on the basis of race, color, religion, sex, or national origin. The Supreme Court has held that law firms and other partnership organizations are covered by the law. Those are the characteristics that determine protected classes for purposes of Title VII coverage in the original statute. They do not apply to business relationships or to the selection of independent contractors. Race The courts have little difficulty in determining race or racial status. Federal law recognizes five major racial groupings: black or African American, white, American Indian or Alaska Native; Native Hawaiian or other Pacific Islander, and Asian. The ethnic category Hispanic or Latino is protected as well and may overlap racial groups. Contrary to some claims, whites are protected under Title VII. That was made clear by the Supreme Court in McDonald v. Santa Fe Trail Transportation (96 S.Ct. 2574). In McDonald, an African-American employee and a white employee stole property from their employer. The African-American employee was reprimanded but allowed to keep his job but the white employee was fired. The Court stated: Title VII prohibits racial discrimination against the white petitioners.... While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criteria must be applied alike to members of all races. Reverse discrimination—preferential treatment to members of protected classes—is illegal, but if minorities or women are underrepresented in a job category, it is legal for an employer to see that more minorities or women are hired to increase participation in a job category. Affirmative action programs, which are discussed later, that are implemented to remedy discrimination against minorities or women may be adopted if they are designed not to violate the rule against reverse discrimination. Race is the most common basis for a discrimination complaint. It is the claim in about percent of the charges filed, or in about per year. Note that when a discrimination claim is made, a person may claim more than one basis, such as race and sex. Color Under Title VII, the term color refers generally to discrimination claims based on shade of skin. An example would be a department store's refusal to hire a Hispanic woman to work at a cosmetics counter because they would prefer to have a blue-eyed blonde with light skin in that position. Race and color discrimination charges are often brought together. Color discrimination claims are fewer than percent of the total. National Origin According to the Supreme Court in Espinoza v. Farah Manufacturing (94 S.Ct. 334), the term national origin is to be given its ordinary meaning: [The term national origin] refers to the country where a person is born or ... the country from which his or her ancestors came. This has been held to exist where a person has a physical, cultural, or speech characteristic of a national origin group. Hispanics bring the most suits under this category, which represent about percent of all charges. It may be discriminatory, for example, to require that English be spoken at all times in the workplace. If business necessity requires that English be spoken, such as for reasons of safety or productivity, it may be a legitimate job requirement. Employment discrimination can also take place when an employer allows ethnic slurs to occur and does not take steps to stop such actions. Religion Title VII does not define the term religion but states that "religion includes all aspects of religious observances and practice." This includes strong believers and atheists. The courts have defined the term broadly. The employer is required to provide reasonable accommodation for an employee's religious practices. The employer may discriminate, however, if the accommodation imposes undue hardship on the conduct of business. Undue hardship is created by accommodations that would cost an employer more than a minimal amount. For example, if an employer has a strict dress code synonymous with a certain "look" to the public, the code need not be modified to allow certain employees to wear religious garb, such as a headdress. But if an employer does not have a strict dress code, then it could not tell an employee not to wear religious garb or to shave if the employee's religion requires members to be unshaven. Among the most common complaints in religious discrimination is that the employer does not accommodate an employee's need to have certain times off from work to attend religious services. When an accommodation would disrupt a schedule designed to spread the burden of unpopular shifts, that can be an undue burden. Discrimination because of religion is the charge in about percent of the complaints filed annually. As with other protected classes, an employer must take steps to stop other employees from harassing an employee because of religion. Sex The courts hold that the term sex should be given its ordinary meaning. Thus, Title VII prohibits sex discrimination simply on the basis of whether a person is male or female. This is the basis for complaints in about percent of the charges files annually. Title VII does not protect discrimination on the basis of sexual preference or sexual identity, although the law in some states prohibits discrimination on such bases. Title VII does not prohibit discrimination on the basis of marital status, as long as an employer applies employment rules evenly to employees of both sexes. However, many states prohibit discrimination on the basis of marital status. International Perspective EEOC Impact on Global Operations American firms have operations in other countries, and foreign firms have operations in the United States. Americans work for American firms in other countries; foreign citizens work for American firms in the United States and in other countries. When does Equal Employment Opportunity (EEO) law apply? This is not a trivial matter because EEO law in the United States is much tougher than in many other nations. Sayaka Kobayashi was a personal assistant in New York to Hideaki Otaka, president of Toyota's North American operations. She complained that Otaka groped her and made numerous sexual advances. When she complained, she was told she should meet with Otaka privately to discuss the matter, or she could quit. She sued in federal court because U.S. law applied to foreign operations in the United States that employed foreign citizens. The president resigned and returned to Japan. In general, U.S. law applies to anyone working for a company located in the United States and to U.S. citizens working for U.S. companies in other countries. But EEO does not apply to non-U.S. citizens working for U.S. companies in other countries. So, for example, when the Michigan company, Lear, ran an ad for a secretary for its operation in Mexico, it stated it wanted a woman, aged to , unmarried, with "excellent presentation," and that she should submit a photo. Similarly, a large U.S. law firm, Baker and McKenzie, ran an ad for an attorney in Mexico. It wanted a man, the firm said, because Mexican clients expect to see a man. Those ads were legal in Mexico but probably were not good for public relations in the United States. © Cengage Learning Lighter Side of the Law A New Protected Class? Curt Storey sued Burns International Security Services for wrongful discharge. He claimed he was fired for refusing to remove Confederate flags from his lunch box and pickup truck. A lifelong resident of Pennsylvania, Storey claims protection to display such items because he is a "Confederate Southern American." However, Title VII does not recognize loyalty to the Confederacy as a protected class. Source: Observer-Reporter (Washington, Pa.). Obvious examples of sex discrimination, or discrimination based on race or some other protected class, would include an employer allowing one protected class to work overtime but not another. It would be discrimination to hire men to be sales representatives but to hire women only for office-based positions. It would be discriminatory to require women to wear skirts, while allowing men generally to wear what they want. Pregnancy Discrimination Title VII was amended by the Pregnancy Discrimination Act. An employer may not discriminate against women because of pregnancy, childbirth, or related medical conditions. Women affected by these conditions "shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs." Examples of pregnancy discrimination include: Denying a woman a job, assignment, or promotion because she is pregnant or has children Requiring a pregnant woman to go on leave when she is able to do her job Treating maternity leave differently from other leaves for temporary disabilities Discriminating in fringe benefits, such as health insurance, to discourage women of childbearing age from working Cyber Law Your E-mail Is Your Boss's E-mail In general, e-mail that is sent at work on company computers is available for company inspection. Whether the employee is told or not, employers have the right to monitor employee e-mail. A sports writer for a Chicago newspaper was told by his employer to quit sending unwanted e-mail to a female coworker. When he did not quit sending her e-mail, the employer transferred the writer to another department. A federal court held that the paper was within its rights to do so; the employee could not complain about the interference with his e-mail, nor could he claim sex discrimination. The employer "was obviously trying to make the best of a difficult situation" (112 F.3d 853). Why do employers care so much about e-mail transmissions at work? Chevron paid $ million to settle sexual harassment claims of women employees for dirty jokes that were transmitted around the office via e-mail. © Cengage Learning Sexual Harassment A sexually hostile work environment is a form of sex discrimination. Sexual harassment is defined by the EEOC in the Code of Federal Regulations as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Sexual harassment falls into two major categories. The first is quid pro quo, or "this for that," where there is a promise of reward—such as promotion or pay raise—for providing sexual favors, or there is a threat of punishment for not going along with sexual requests. The second form is a hostile environment created at work by others (obviously, a hostile environment can exist because of race or some other characteristic). An abusive work environment is created by words or acts related to a person's sex. Examples are: Discussing sexual activities Commenting on physical attributes Unnecessary touching or gestures Using crude, demeaning, or offensive language Displaying sexually suggestive pictures Trivial and isolated incidents usually are not sufficient grounds for a sexual harassment suit. The courts look to factors such as how often such conduct occurred; whether the harassment was by a supervisor who could control progress, pay, and working conditions or by a coworker; whether there was talk or actual touching; and whether more than one person was involved. The Supreme Court offered guidance in the Harris case about what constitutes a hostile work environment in general. This analysis would also apply if the situation were based on race or other protected class. Harris v. Forklift Systems United States Supreme Court 510 U.S. 17, 114 S.Ct. 367 (1993) Case Icon Case Background Harris worked as a rental manager for two years for Forklift Systems. Her boss, Hardy, often insulted her in front of others and made her the target of sexual slurs and suggestions. He said, "we need a man as the rental manager," and "you're a woman, what do you know?" He told her she was "a ******** woman," and that they should "go to the Holiday Inn to negotiate her raise." Hardy asked Harris and other women employees to get coins from his front pants pocket. He threw things on the ground and asked women to pick them up. He made sexual comments about their clothing. Harris complained to Hardy about his comments. Hardy said that he was only kidding. When Harris arranged a deal with a customer, Hardy asked her, "What did you do, promise the guy sex Saturday night?" Harris quit and sued, claiming that Hardy's conduct created a hostile work environment. The district and appeals courts ruled against her. She appealed. Case Decision O'Connor, Justice * * * When the workplace is permeated with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Title VII is violated. This standard ... takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.... Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. ... A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.... This is not, and by its nature cannot be, a mathematically precise test.... Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the 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. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. * * * We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. Questions for Analysis The court held that the actions must be severe enough to create a hostile work environment to a reasonable person. If this issue were left to a jury, might not some people on the jury, especially men, be likely to think that Harris overreacted? Two concurring opinions indicated that another standard is whether the abusive actions are sufficient to affect work performance. Would that provide better guidance? The Supreme Court further clarified the law in Oncale v. Sundowner Offshore Services (118 S.Ct. 998). In that case, a male worker sued his employer because he suffered verbal and physical abuse of a sexual nature by other male workers. The Court held that Title VII prohibits same-sex harassment when it is motivated by the sex of the victim: The law does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment ... forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment ... the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering "all the circumstances."... Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiffs position would find severely hostile or abusive.

Age Dicrimination

16-2b Age Discrimination Enacted in 1967 and amended since, the Age Discrimination in Employment Act (ADEA) prohibits discrimination in employment against persons on the basis of age for persons over age . All employers who have or more employees must comply. The ADEA generally parallels Title VII in its prohibitions, exceptions, remedies, and enforcement. So, while the ADEA is a separate statute, we presume it acts the same way as Title VII unless specifically noted. The law prohibits failing or refusing to hire or promote because of age, terminating employees because of age, or other discrimination in the terms of employment. About percent of the discrimination claims are in this category. Often the courts must, as in other discrimination cases, look to see whether age discrimination can be inferred by studying practices at the place of employment. The following are examples of age discrimination: Forcing retirement because of age Requiring older workers to pass physical examinations as a condition of continued employment Indicating an age preference in advertisements for employees, such as "young, dynamic person wanted" Choosing to promote a younger worker rather than an older worker because the older worker may be retiring in several years Cutting health benefits for workers over age 65 because they are eligible for Medicare

Discrimination Based on Military Service

16-2c Discrimination Based on Military Service Since enactment of the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994, it is illegal for an employer to deny "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's membership in or "obligation to perform service in a uniform service." As the Supreme Court noted in Staub v. Proctor Hospital (131 S.Ct. 1186), in a case involving hostility to a member of the military, an improper job action based on this law is a tort under federal law, so it is a form of discrimination that does not follow EEOC process.

Forms of Discrimination

16-3b Forms of Discrimination The laws against discrimination in employment cover most of the conditions of the employment process: hiring, promotion, transfers, discipline, pay raises, benefits, opportunities, and termination. When employers impose differential standards on the basis of a protected class status, a violation may have occurred. As we saw in the Harris case, discrimination can also involve making life miserable for an employee, which is harassment. Even if there was no discrimination on the basis of pay, employees need not tolerate abusive behavior that is related to protected class status. If an employee quits because of harassment, as in the Harris case, then there was a constructive discharge. There is no obligation to stay and take abuse. However, as we see, internal company policy makes a big difference in this regard. Traditionally, cases have been broken into two major groups: disparate treatment and disparate impact. Disparate treatment cases are the vast majority, so we address them first and more in depth, and then return to disparate impact. Disparate Treatment To recover for illegal discrimination—whether for race, color, religion, sex, national origin, or age—in a claim of disparate treatment, the plaintiff must prove that the employer intentionally discriminated. That is, a member of a protected class claims an employer treated the plaintiff differently from other employees because of the plaintiff's personal characteristics. Next, we go through the key steps of such a case. Plaintiff Must Establish a Prima Facie Case The Supreme Court established a four-part test in the McDonnell-Douglas decision (93 S.Ct. 1817). The plaintiff in a disparate treatment case must provide a prima facie case of discrimination. Exhibit 16.2 lists the four steps that must be met for a case to go forward. This test holds for all aspects of employment—hiring, promotion, compensation, conditions, discipline, and termination. In Swierkiewicz v. Sorema (122 S.Ct. 992), the Supreme Court made clear that only a "short and plain statement of the claim" is needed. Once the plaintiff meets the McDonnell-Douglas test, the case goes forward, and the burden shifts to the defendant to overcome the presumption of discrimination. Exhibit 16.2 Initial Steps in Disparate Treatment Cases Initial Steps in Disparate Treatment Cases © Cengage Learning Burden Shifts to Defendant After a plaintiff shows a prima facie case of employment discrimination, the plaintiff wins unless the employer provides a successful defense. That is, the burden shifts to the defendant. The employer must show a legitimate, nondiscriminatory and reasonably specific reason for its decision to overcome the presumption of discrimination created by the prima facie case. The courts prefer clear standards for employment decisions, rather than vague claims that amount to "I felt like it." Legitimate reasons include such factors as seniority, education, performance, and experience. Burden Shifts to Plaintiff to Attack Defense After the employer offers a nondiscriminatory reason for the employment decision, the burden shifts back to the plaintiff to show that the defendant had an illegal motive. The plaintiff must show that the rationale offered by the employer was just a pretext or unacceptable excuse for disparate treatment. Such evidence can take many forms, such as showing inconsistency in decisions made by the employer, giving different reasons at different times for the decision, and presenting statistical evidence of discrimination based on sex or race. While discrimination is clear in some cases, it often requires a review of the employment situation and testimony from witnesses, usually other employees. Lighter Side of the Law Modify Your Body in Private Cloutier worked for Costco for four years. While she was there, she kept adding to her collection of body piercings, tattoos, cuttings, and scars. She is a card-carrying member of the Church of Body Modification (see http://uscobm.com). Costco's dress code requires such personal decorations to be covered or removed. Cloutier refused to hide or remove some new facial piercings, so she was fired. The EEOC tried to negotiate a compromise, but Cloutier refused to cover her piercings. She sued Costco for $ million, claiming religious discrimination. The federal court held that while it would presume her religious beliefs were sincere, Costco had the right to a dress code so that customers see the workers as "reasonably professional in appearance." Source: Cloutier v. Costco, 311 F.Supp.2d 190. Possibility of Retaliation for Expression of Rights Employees have the right to make complaints about discrimination, so if they are punished for doing so, then there is a basis for suit for retaliation. If workers are punished for participating in an official proceeding, such as filing a complaint or giving testimony in a discrimination investigation, then they have grounds for suit based on retaliation for a violation of a protected right. This occurs in more than a third of all discrimination complaints. We see an example in the Heartland Inns of America case, where a claim of sex discrimination and retaliation is made. Lewis v. Heartland Inns of America, L.L.C. United States Court of Appeals, Eighth Circuit, 591 F.3d 1033 (2010) Case Icon Case Background Brenda Lewis began working for Heartland Inns in 2005. She was promoted and received two merit pay increases. Her managers praised her work and said she "made a good impression" on customers. After she was promoted in December 2006, the Director of Operations, Cullinan, saw Lewis for the first time. She told Lewis's supervisor that she did not think Lewis was a "good fit" for the front desk because she lacked the "Midwestern girl look." She said that front desk girls should be pretty, and Lewis was not. In January 2007, Lewis' supervisor refused to remove Lewis from the front desk and was fired. Cullinan then met with Lewis to interview her for the position she already held and told her there would have to be a second interview, which had never happened before. Lewis was fired. Lewis sued for violation of Title VII, contending that she was terminated for not conforming to sex stereotypes and in retaliation for opposing discriminatory practices. The district court granted summary judgment in favor of Heartland Inns. Lewis appealed. Case Decision Murphy, Circuit Judge * * * The parties agree that Lewis' ICRA [Iowa Civil Rights Act] and federal claims are analytically indistinguishable.... The Supreme Court has stated that "the critical issue" in a sex discrimination case is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."... Cases [do not] compel a woman alleging sex discrimination to prove that men were not subjected to the same challenged discriminatory conduct or to show that the discrimination affected anyone other than herself. As the Sixth Circuit succinctly stated, "an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex."... Shortly after Cullinan's conversation ... about Lewis' appearance, Heartland procured video equipment so that Cullinan ... could inspect a front desk applicant's look before any hiring. Heartland's termination letter to Lewis only relied on the January 23 meeting she had with Cullinan. Only later did Heartland allege poor job performance would justify her termination. Lewis asserts further that Heartland did not follow its own written termination procedure, which includes assessing the employee's previous disciplinary record (Lewis had none) and conducting an investigation before making the termination decision. Kristi Nosbisch, Heartland's equal employment officer responsible for directing investigations of employment discrimination, knew that Lewis had complained that Cullinan's requirements were illegal, but she nonetheless relied on Cullinan's account of their meeting without asking Lewis for her own.... We turn next to Lewis' retaliation claim. Title VII prohibits employers from retaliating against employees who oppose discriminatory practices. The burden shifting McDonnell Douglas analytical framework applies to this inquiry as well, beginning with the three elements of a prima facie case of retaliation, whether: the plaintiff engaged in protected conduct, including opposition to an action prohibited by Title VII; she was subjected to an adverse employment action, and there is a "causal nexus between the protected conduct and the adverse action." In making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct "as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination." Lewis went into the January 23 meeting with Cullinan after learning about the "Midwestern girl look" comment. Lewis had already held her job for nearly a month and understood that other transferred employees in her situation had not been required to submit to a second interview. She observed Cullinan grow defensive after she asked her about the "Midwestern girl look" comment.... No one questions that Lewis was subjected to an adverse employment action, and there is ample record evidence to support a causal nexus between that and Lewis' protests at the January 23 meeting. Lewis received the termination notice a mere three days after the disputed conversation, and Heartland cited her objection to the second interview in her termination notice. The evidence of pretext already discussed applies with equal force in evaluating whether Lewis has made out a prima facie retaliation claim. In sum, we conclude that Lewis has presented sufficient evidence to make out a prima facie case on her claims for sex discrimination and retaliation and a sufficient showing at this stage that Heartland's proffered reason for her termination was pretextual. Accordingly, we reverse the judgment of the district court and remand for further proceedings. Questions for Analysis What does the court mean when it says Heartland's reason for termination was pretextual? Suppose Heartland had a policy of having a "Midwestern girl look" at their front desk as part of company strategy. Is that a legitimate business reason? Key Defense for Employers In the Ellerth case, the Supreme Court makes clear how important it is for an employer to have clear, effective policy and procedures to reduce the likelihood of discrimination cases. Going to the roots of the employment relationship, agency law, the Court notes that without policies that can be shown to be meaningful, an employer is likely to have a more difficult defense and be more likely to incur vicarious liability for the actions of managers or employees who engage in discriminatory behavior against employees in a protected class. If an employer does not have an effective procedure in place to allow employees to take complaints about perceived discrimination, it also means there is a greater likelihood of punitive damages being imposed if the employer loses because of a lack of good-faith efforts to prevent discrimination. Burlington Industries v. Ellerth Supreme Court of the United States 524 U.S. 742, 118 S.Ct. 2257 (1998) Case Icon Case Background Ellerth worked for months in sales at Burlington. One of her supervisors was Slowik, a mid-level manager with authority to hire, promote, and fire employees, subject to higher approval. Ellerth quit, claiming she was subject to sexually offensive remarks by Slowik and that his comments could be taken as threats to deny her job benefits. She refused his advances, did not suffer retaliation, and was promoted once. She did not tell anyone at Burlington about the problem until after she quit and filed suit. The district court granted Burlington summary judgment. The appeals court reversed, ordering a trial. Burlington appealed. Case Decision Justice Kennedy delivered the opinion of the court. * * * We must decide ... whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents."... Section 219(1) of the Restatement (Second) of Agency sets out a central principle of agency law: A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. ... The law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited."... In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding.... An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.... Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, Ellerth should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability.... The judgment of the Court of Appeals is affirmed. Questions for Analysis If a company has an effective in-house program to deal with discrimination complaints, it presents a strong defense for the employer if not used by the employee. The dissent in this case argued that this opens the door to cases that employers cannot defend themselves against—such as this case, where the company had a policy against discrimination that was apparently violated, but the injured employee did not take advantage of company policy. Is that likely to happen? What steps should a company antidiscrimination policy include? Justice Ginsburg repeated the key point of the Ellerth case in Pennsylvania State Police v. Suders (124 S.Ct. 2342). Suders claimed she was subject to sexual harassment by her supervisors, which caused her to resign. She sued, claiming constructive discharge based on hostile environment. The employer responded that it had an affirmative defense. It should not be held vicariously liable for the supervisors' conduct because Suders did not take advantage of the internal anti-harassment procedures before she quit. The Court held that when harassment is "so intolerable as to cause a resignation" the employee need not "remain on the job while seeking redress." In such cases, constructive discharge is the same as being fired for an illegal reason. It is possible for an employer to establish the affirmative defense that it had a proper anti-harassment procedure in such a case, but it would be difficult. But, in general, an effective, secure, internal procedure to handle complaints about discrimination—that employees believe is trustworthy—helps provide a strong defense for the employer. Issue Spotter Effective Sexual Harassment Policy As the Supreme Court made clear in the Ellerth case, a critical part of a defense for an employer to avoid liability in a suit for sexual harassment is an effective in-house procedure to try to prevent such behavior and then deal with it should it arise. What steps would be reasonable to take to implement such a policy in an organization? © Cengage Learning Effective Company Policy For a firm to claim, as in the Ellerth case, that the employee failed to take advantage of in-house protection against discrimination and harassment, it must have a credible program in place. It means there must be a credible, knowledgeable person or staff able to hear complaints. The process must be secure and separate from normal internal communication channels, and employees must believe it is trustworthy. That is, a firewall is needed to provide assurance of protection for an employee who is generally complaining about company policy or superiors. Some cases have involved the CEO of the company, so there must be ways around the standard chain of command. While unwanted attempts at personal contact are clearly off limits, to attempt to reduce sexual harassment claims, some companies have policies against romances between employees. What starts out as a consensual relationship may end badly with a harassment claim. Having ground rules about co-worker dating may reduce corporate liability in such instances. Disparate Impact Liability for employment discrimination may be based on a claim of disparate impact, which means that the employer used a decision rule that caused discrimination in some aspect of employment based on protected class status. The discrimination may have been unintentional, but the effect of the employer's action was to limit employment opportunities for a person or group of persons. There are fewer disparate impact cases than disparate treatment cases because they are more complex. But when they occur, they can be very costly to an employer because they involve a class of employees. These cases involve employment practices that appear to be neutral on their face but have a disproportionately adverse impact on employees who are members of a protected class. Proof of intent to discriminate is not required, but the plaintiff must prove that the employment practice adversely affects employment opportunities for members of a protected class. The key issues are: Does an employer have rules or practices that affect members of a protected group differently from other workers? Are the rules or practices justified by business necessity, or because they relate to valid job requirements? If it is asserted that the employer's hiring or promotion practices have a discriminatory impact on an applicant, the employer must show that the applicant was rejected not because of personal characteristics, but because the qualification requirements of the job were not met. The impact of employment rules must be neutral; that is, the rules must not have a disparate impact on a protected class. We see an example of an employment rule that fails to meet the test in the Dial case. Equal Employment Opportunity Comm. v. Dial Corporation United States Court of Appeals, Eighth Circuit, 469 F.3d 735 (2006) Case Icon Case Background Workers at the Dial plant in Iowa needed to be able to lift about pounds of sausage at a time to a height between and inches. Doing this over and over meant injuries to workers, so the company began a Work Tolerance Screen (WTS) test for potential employees. Candidates had to demonstrate certain strength ability. For years, the workforce at Dial was about half men and half women. After the WTS was introduced, the number of women hired dropped to percent. One applicant took the test and passed it, but was not hired. She complained to the EEOC. The EEOC brought suit on behalf of women who had applied for work at Dial but were rejected despite passing the WTS. The trial court held that Dial had not demonstrated that the WTS was a business necessity, nor had it shown that it was valid. It awarded back pay to the women, ranging from $ to $. Dial appealed, contending that disparate impact had not been shown at trial. Case Decision Murphy, Circuit Judge * * * Dial objects to the district court's findings of disparate impact and its conclusion that the company failed to prove the WTS was necessary to establish effective and safe job performance.... In a disparate impact case, once the plaintiff establishes a prima facie case, the employer must show the practice at issue is "related to safe and efficient job performance and is consistent with business necessity." An employer using the business necessity defense must prove that the practice was related to the specific job and the required skills and physical requirements of the position. Although a validity study of an employment test can be sufficient to prove business necessity, it is not necessary if the employer demonstrates the procedure is sufficiently related to safe and efficient job performance. If the employer demonstrates business necessity, the plaintiff can still prevail by showing there is a less discriminatory alternative.... The district court was persuaded by EEOC's expert in industrial organization and his testimony "that a crucial aspect of the WTS is more difficult than the sausage making jobs themselves" and that the average applicant had to perform four times as many lifts as current employees and had no rest breaks.... Although Dial claims that the decrease in injuries shows that the WTS enabled it to predict which applicants could safely handle the strenuous nature of the work, the sausage plant injuries started decreasing before the WTS was implemented. Moreover, the injury rate for women employees was lower than that for men in two of the three years before Dial implemented the WTS.... Affirmed.

statutory Defenses Under Title VII

16-3c Statutory Defenses under Title VII As we saw in cases of disparate treatment, the employer must present a legitimate, nondiscriminatory, clear, and specific reason for the employment action taken. Title VII specifically protects certain business practices. Some specific defenses are provided by Title VII. Business Necessity If employment practices can be shown to discriminate against some employees, the burden is on the employer to prove that the challenged practices are justified as a business necessity and are job related, as was claimed in the Dial case. Business necessity is evaluated with reference to the ability of the employee to perform a certain job. Experience and skill requirements, frequently measured by seniority, are often accepted as necessary. For example, to be a skilled bricklayer requires experience usually gained only by long practice. To require such experience for certain positions is not a violation of Title VII. Similarly, if a job requires certain abilities of strength and agility, tests for such ability are legitimate. Selection criteria for professional, managerial, and other white-collar positions must also meet the business necessity test. When objective standards (such as two years of brick-laying experience) cannot be used, subjective evaluations—such as impressions made by job interviews, references, and job performance evaluation—are recognized as necessary in hiring and promoting professional personnel. Similarly, positions may have an education requirement as long as it is, in fact, job-performance related. For example, to work as a CPA, one must have a degree in accounting. Professionally Developed Ability Tests Employers often use tests to determine if job applicants possess the necessary skills and attributes. According to Title VII: It shall not be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin. Such tests must be shown to predict the work ability required for the job. Employers are usually required to supply statistical validation of the tests. Expert testimony from educational and industrial psychologists is often used to interpret the results. Bona Fide Seniority or Merit Systems Employers often use differential treatment based on seniority or merit. Title VII requires the courts to uphold bona fide seniority programs and merit systems. Seniority is usually the length of time an employee has been with an employer and can be used to determine such things as eligibility for pension plans, length of vacations, security from layoffs, preference for rehire and promotion, and amount of sick leave. Issue Spotter Inadvertent Discrimination? Some employers allow employee teams to decide whom to take on as new members. Management does not impose new members on teams. A major stock brokerage firm uses this method. The firm would hire new brokers, but then let teams invite their choice of individual to join a team. New African-American employees were not chosen as frequently to become team members as were new white employees. As a result, African-American employees often worked more on their own, which made it tougher to generate clients compared to working with an existing team with an existing client list. The employer contends that management is not involved in any racial team-choice acceptance pattern. Does this practice raise unacceptable discriminatory practices, even if entirely unintentional? © Cengage Learning The effects of seniority systems come under attack most often in cases involving layoffs on the basis of seniority. Many employers hold that in the event of a cutback in the workforce, workers with the most seniority have the most job protection—last hired, first fired. This means that minorities may suffer a greater share of the layoffs in a workforce cutback because they are likely to have less seniority, on average, than white workers. The Supreme Court recognizes this fact, but seniority rights are protected by statute. Merit systems exist when employees are rewarded on the basis of job performance, such as meeting sales goals or other criteria that justifies differential rewards. Such a program, when properly designed, is an affirmative defense against a claim of discrimination by a person unhappy about their pay. The Bona Fide Occupational Qualification (BFOQ) Another defense is a bona fide occupational qualification (BFOQ). Title VII states that discrimination is permitted in instances in which sex, religion, or national origin—but not race—is a BFOQ "reasonably necessary to the normal operation of that particular business." The employer has the burden of persuasion to establish the necessity of the BFOQ. The EEOC gives this defense a narrow interpretation. Just because men have traditionally filled certain jobs does not mean that a legitimate defense exists for not hiring women for such positions. Simply because people were used to seeing, and may have preferred, female flight attendants did not mean that airlines could refuse to hire male flight attendants. No BFOQ on the basis of race is allowed. For example, an employer cannot assert that the business must have a white person for a particular job. A BFOQ exists where hiring on the basis of a personal characteristic is needed to keep the "authenticity" of a position. For example, a topless bar can argue that the cocktail servers should be female because customers expect that as a part of the service. We expect to see male clothing modeled by a male model even though a woman could wear the clothes. In some, but not many, medical care situations, hospitals may restrict the sex of attendants for the comfort of patients or to protect sexual privacy. Early Retirement Plans The ADEA was amended by the Older Workers Benefit Protection Act. Under the Act, employers may not force "involuntary retirement" on older workers, but if early retirement incentive plan (ERIP) benefits are so generous that an employee chooses to retire, the employee cannot claim to have been forced to retire. Employers may ask employees to sign "knowing and voluntary waivers" of age discrimination claims when they agree to retire early in response to an ERIP. The ADEA also exempts senior executives in high-level policy positions who are at least age and are entitled to a company pensi

Glossary

Affirmative action taking constructive steps to remedy discriminatory employment practices affecting racial minorities and women. Age under federal employment discrimination law, all persons over age 40 are covered. Back pay compensation for past economic losses (lost wages and fringe benefits) caused by an employer's discriminatory employment practices, such as limiting promotion opportunities for older workers. Bona fide occupational qualification or BFOQ, employment in particular jobs may not be limited to persons of a particular sex or religion, unless the employer can show that sex or religion is an actual qualification for performing the job. Not permitted on the basis of race. Bona fide seniority program in employment, a system that recognizes length of service in deciding promotions, layoffs, and other job actions; protection of workers based on length of service is protected by Title VII. Business necessity justification for an otherwise prohibited discriminatory employment practice based on employer's proof that (1) the otherwise prohibited employment practice is essential for the safety and efficiency of the business, and (2) no reasonable alternative with a lesser impact exists. Color under federal employment discrimination law, the shade of one's skin. Constructive discharge under federal employment discrimination law, when an employee quits employment due to pervasive abuse or discriminatory treatment in violation of Title VII. Differential standard in federal employment discrimination law, when an employer sets rules to make it more difficult for a person who is a member of a protected class to meet job requirements than for similarly situated employees. Disability under the Americans with Disabilities Act, a physical or mental condition that affects a major life activity that limits the ability of a person to perform a particular job function. Discrimination illegal treatment of a person or group (intentional or unintentional) based on race, color, national origin, religion, sex, disability, or age. This includes the failure to remedy the effects of past discrimination. Disparate impact in employment discrimination law, when an apparently neutral rule regarding hiring or treatment of employees works to discriminate against a protected class of employees. Disparate treatment differential treatment of employees or applicants on the basis of their race, color, religion, sex, national origin, or age; for example, when applicants of a particular race are required to pass tests not required of other applicants. Front pay compensation for future economic losses arising from employment discrimination that cannot be remedied by traditional relief, such as hiring, promotion, or reinstatement. Genetic information a basis for employment discrimination based on exploitation of genetic information about a current or potential employee that affects employment decisions. Harassment unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information in violation of employment discrimination law. Hostile environment in federal employment discrimination law, creating or allowing to exist a climate at work that is abusive to a person based on their protected class status. Merit system in employment discrimination law, the right of an employer to have a system to reward employees based on performance; often used as an affirmative defense in a Title VII discrimination cases. National origin under federal employment discrimination law, the country a person or a person's ancestors are from. Pretext under federal employment discrimination law, an attack made by a plaintiff against a defense offered by an employer to a charge of discrimination, holding that the rationale given is a false excuse to cover discriminatory treatment. Prima facie case in federal employment discrimination law, the requirement that a plaintiff show they are a member of a protected class, met relevant job qualifications, suffered some adverse job action, and was treated differently with respect to the same issue by an employer. Protected classes under Title VII of the Civil Rights Act of 1964, those groups the law seeks to protect, including groups based on race, sex, national origin, religion, and color. Quid pro quo Latin for what this for that, or something for something; the giving of something valuable for something valuable, such as consideration in a contract. Also refers to sexual discrimination, when sexual favors are exchanged for employment favors. Race also called racial status, under federal employment discrimination law: black, white, American Indian or Alaska Native, Native Hawaiian or Other Pacific Islander, Asian, and Hispanic or Latino. Reasonable accommodation in employment discrimination law, the requirement that employers take steps that are not very costly to make employment possible for persons with disabilities. Religion under federal employment discrimination law, any sincere and meaningful belief a person possesses. Retaliation when a worker suffers a adverse employment decision because the worker exercised a right under an employment discrimination statute. Reverse discrimination when discrimination is employed against majority groups so as to favor certain minority groups, often in affirmative action programs. Right-to-sue letter a document issued by a federal or state employment discrimination agency, after an investigation of a complaint, stating that the plaintiff has raised issues that merit review by a court. Sex under federal employment discrimination law, male and female; under some state laws, sexual orientations may be recognized categories. Sexual harassment discrimination in employment in violation of Title VII of the 1964 Civil Rights Act that may be evidenced by sexual advances, requests for sexual favors, and other conduct of a sexual nature. Title VII the major section of the Civil Rights Act of 1964 that provides the primary basis for suits for employment discrimination based on race, sex, religion, color, or national origin. Underutilization analysis a statistical review of workforce categories to look for evidence of underrepresentation of women and/or minorities; usually performed as part of affirmative action requirements. Undue hardship an accommodation to employees, based on an effort to satisfy religious beliefs, that would either alter the nature of the enterprise or affect its viability due to the costs imposed on the employer or other employees. Workforce analysis a statistical breakdown of the composition of employees in an organization, by job category, by EEOC protected class status.

Bringing a Discrimination Charge

Bringing a Discrimination Charge If someone believes they have suffered a discriminatory act in employment under Title VII or the Americans with Disabilities Act (which we look at later), a charge may be filed by mail or in person at an EEOC office or a similar state agency. For example, in Illinois, a complaint could be filed at the Illinois Department of Human Rights. The EEOC and state agencies, referred to as Fair Employment Practices Agencies (FEPAs), share the workload because most actions can be under either state or federal law. Under federal law, as amended by the Lily Ledbetter Fair Pay Act of 2009, a charge must be filed within days of an alleged discriminatory event, but state law often extends this to days.

Intro

Chapter Introduction The owner of an Iowa electronics company made sexual advances to an employee after she had posed nude in a nationally distributed magazine. Could he have violated the law that restricts sex harassment in employment? "John Doe" worked as an engineer at Boeing aircraft. After six years at Boeing—under the supervision of his physician—he decided to become "Jane Doe." Prior to sex-transformation surgery he began to live the social role of a woman. Boeing fired Doe for using the women's restroom and dressing as a woman despite company orders not to do so prior to sex-change surgery. Was Boeing guilty of disability or sex discrimination? These cases illustrate the wide range of employment issues that can arise today. Years ago, neither of these cases would likely have existed, but now the law restricts employment practices with respect to discrimination based on many personal characteristics. In this chapter, we focus on the Civil Rights Act of 1964, which is the basis of modern employment discrimination law. That landmark statute has been amended over the years. Case law has helped to clarify the rights and duties of employees and employers in dealing with race, sex, color, religion, national origin, age, and disability. The answer to the first question, was the owner guilty of sex discrimination, is "yes." What the employee did on her own time was her business and violated no company policy. She did not invite his advances. The answer to the second question, was Boeing guilty of disability or sex discrimination, is "neither." There is no federal protection for transgender sex, and the company handled the matter properly—John/Jane Doe became a woman when that was declared to be a medical fact, as far as his employer was concerned, not when he made that a personal choice.

16-1b The Equal Pay Act of 1963

The Equal Pay Act of 1963 was the first federal law to address employment discrimination. It is illegal to pay men and women employees different wages when their jobs require equal skill, effort, responsibility, and the same working conditions. Job titles are not relevant; job content is reviewed. The Equal Pay Act allows differences in wages if they are the result of "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any factor other than sex." Some sex discrimination suits are brought based on the 1963 statute, but the vast majority of discrimination suits are brought under Title VII of the Civil Rights Act, which is larger in scope and has more remedies.

Remedies in Discrimination Cases

Title VII gives the courts leeway in the kinds of damages and equitable remedies that may be imposed when discrimination is found. The focus, as in most damage measures, is to try to put the plaintiffs in the position they would have held but for the discrimination. Specific remedies include: Back pay—to the date discrimination began, either the entire pay that would have been earned or the difference between pay received and what should have been received. Generally, employees must mitigate their damages by seeking other work. Failing to do so can reduce back pay or other damage awards. Front pay—if an employee was unlawfully fired, he may be ordered reinstated or the plaintiff may be ordered to be hired if she was improperly not hired. But often this is not realistic, so the plaintiff is given a sum, front pay, to compensate for longer-term damage to a career for not having gained the experience or seniority of the position. Compensatory damages—for emotional distress, medical expenses, job-hunting costs, and loss of reputation. This is not available in ADEA cases. Punitive damages—may be granted to punish the employer for wrongdoing because the employer acted with malice or in reckless disregard for protected rights. This is not available in ADEA cases. These damages are capped by federal law to between $ to $, depending on the size of the employers. Attorney's fees—may be recovered, as well as costs such as filing fees, expert witness fees, and transcripts. Title VII plaintiffs who win usually get this; defendants who win rarely do. This does not apply in ADEA cases. Test Yourself

Title VII of the 1964 Civil Rights Act

Title VII of the 1964 Civil Rights Act The most important antidiscrimination employment law is Title VII of the Civil Rights Act of 1964. Major amendments to Title VII include the Equal Employment Opportunity Act of 1972 to give the Equal Employment Opportunity Commission (EEOC) the power to enforce the Act, by the Pregnancy Discrimination Act in 1978, and by the Civil Rights Act of 1991. Title VII makes it illegal for an employer of or more workers: 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; or 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. Many states have their own civil rights acts modeled on Title VII. They may protect additional classes of employees. For example, some states prohibit discrimination based on sexual orientation. Some cities also have civil rights laws that extend discrimination coverage. San Francisco prohibits employment discrimination based on height or weight.