Test 3 MGMT 417

4th Element of a Prima Facia Case

"Employer continued to seek applicants . . ." or hired someone else who is not a member of her protected class.

With regard to quid pro quo sexual harassment, one question that arises is:

"who is a supervisor" (who is a "person in a position of authority" over the harassee)? The US Supreme Court has held that a supervisor, for Title VII purposes, is an individual who has the power to hire, fire, promote, fail to promote, reassign to a task with significantly different duties, or cause a significant change in benefits available to the victim, and not just someone who, according to the EEOC, only needs to have the ability to direct daily work assignments (Vance v. Ball State University, 570 US ___, 2013).

What happens if a supervisor's harassment is so bad that the employee quits (constructive discharge) rather than files a complaint with the employer in accordance with the employer's sexual harassment policy? In other words, is the constructive discharge considered a loss of a tangible employment benefit that results in strict liability for the employer?

No, since there is no "official" act by the employer that results in the constructive discharge (i.e., no paper trail), there is no way for the employer to know that there was an issue, so there is no strict liability. The employer is allowed the "Ellerth/Faragher" affirmative defense.

Fluency example: Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in a non-bilingual, English-speaking community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers is limited. However, XYZ offers to consider him for a position in the stock room. Does this violate Title VII?

No, Under these circumstances, XYZ's decision to exclude Jorge from the sales position *does not* violate Title VII

Read Scenario 2 at the beginning of the chapter in your textbook. Does this conduct rise to the level of the hostile environment sexual harassment?

No. The conduct must be more than a routine, polite compliment, or a boorish, stupid or inappropriate act.

Hostile environment

Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee. Activity by harasser, toward harassee that: Is unwelcomed by the harassee Is based on harassee's gender Is sufficiently severe and/or pervasive Creates for harassee a hostile or abusive work environment Unreasonably interferes with harassee's ability to do his or her job Affects a term or condition of harassee's employment

Quid pro quo

Sexual harassment in which the harasser requests sexual activity from the harassee as a condition of employment or in exchange for workplace benefits. examples: Workplace benefit promised, given to, or withheld from harassee by harasser *(assumes the harasser must be in a position of authority, i.e., supervisor) In exchange for sexual activity by harassee (i.e., sex for some tangible benefit) Generally accompanied by a paper trail (i.e., employee evaluation; was the raise or promotion justified?)

What is Sexual Harassment?

sexual harassment in the workplace is a form of gender discrimination that violates Title VII. It may occur through inappropriate jokes, emails, touching, gestures, staring, unwanted and unwelcome requests for dates, and denials of job opportunities. It is often subtle, and managers, supervisors and employees may not recognize sexual harassment when it occurs. Society has transformed today and although sexual permissiveness is encouraged thru music, movies, television, advertising, etc., it is not permitted in the workplace.

Remedial measures

should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur.

Disciplinary measures

should be proportional to the seriousness of the offense, based on the facts and circumstances.

Pregnancy Discrimination Act of 1978

silhouette of pregnant woman (k): The terms *"because of sex"* or *"on the basis of sex"* include, but are not limited to: because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . 42 USC §2000e

Gender-Plus Discrimination

Gender-Plus Discrimination is employment discrimination based on gender plus some other factor such as marital status or children. A policy of not hiring women who are pregnant, or not hiring women with children under a certain age

BFOQ:

Reasonably necessary for the employer's particular business. The basis for preferring one national origin over another must go to the essence of what the employer is in business to do. BFOQ is a defense to a disparate treatment discrimination claim and is provided in 42 USC 2000e-2(e)

T/F National origin discrimination claims are the 2nd fastest growing category under Title VII, after religious discrimination.

True

Work schedule

cannot require male employees to work certain days/times (i.e., evenings or weekends) but not require female employees to do the same.

Advertising for available jobs

cannot state that a particular gender is preferred (i.e., "Females only").

EEOC defines National Origin as

the applicant's, or employee's, or his or her ancestor's, place of origin (i.e., place of birth), OR having the physical, cultural or linguistic characteristics of a national group.

3rd Element of a Prima Facia Case

"Employee was rejected [for a discriminatory reason] . . ." The employee can prove discrimination (adverse employment action) through direct or circumstantial evidence that a discriminatory reason was "a factor" in the adverse employment decision. If proven, then the burden shifts to the employer to prove that the same decision would have been made regardless of the discriminatory reason (LNDR or BFOQ). If LNDR is proven, then the burden shifts back to employee who is given opportunity to prove that employer's reason is a "mere pretext."

Title VII states "because of sex" includes:

"because of or on the basis of pregnancy, childbirth, or related medical conditions"

EEOC guidelines require that an employer must take: ________ ____ __________ __________ _________ to remedy sexual harassment.

"immediate and appropriate corrective action"

On the other hand, an employer must take into account:

"legitimate differences" between genders if treating them the same may produce an undue hardship for one gender (i.e., providing proper restroom facilities)

Title VII: (a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or *national origin*. 42 USC §2000e-2 *Remember, Title VII applies to all companies that employ 15 or more employees.*

§1604.11: Sexual Harassment:

(a) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) 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. 29 CFR §1604.11

§1604.11: Sexual Harassment:

(a) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) 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. acronym think of *USSS

Equal Pay Act of 1963

(d): Prohibition of Sex Discrimination: (1) No employer . . . shall discriminate . . . between employees *on the basis of sex* by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (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 other factor other than sex . . . 29 USC §206(d)

Cortezano v. Salin Bank Co. (7th Cir., 2012) The Plaintiff, an employee of the Defendant bank, was married to an illegal alien. She assisted her husband in obtaining a social security number and then assisted her husband in opening a bank account with the Defendant bank. When the Plaintiff revealed to the Defendant that her husband was an illegal alien, the Defendant fired the Plaintiff. The Plaintiff filed a Title VII national origin discrimination disparate treatment suit based on her husband's Mexican national origin. US District Court dismissed the case; Plaintiff appealed. *What happens next?*

*Held*: The Plaintiff's firing was not based on her husband's national origin (Mexico) but rather on his status as an illegal alien ("alienage," someone who entered this country illegally and is not authorized to work here). Title VII does not protect against alienage discrimination. Affirmed.

Garcia v. Spun Steak Co. (9th Cir, 1993) The two Plaintiffs were assembly line workers and were bi-lingual. The employer received complaints from some employees that some Spanish-speaking employees were using Spanish to insult and harass non-Spanish-speaking employees. The Defendant implemented an English-only policy while working (but not during breaks and personal time) to promote racial harmony, enhance worker safety and improve product quality. The two Plaintiffs continued to speak Spanish, they received warning notices from their employer, and then filed charges with the EEOC claiming Title VII disparate impact.

*Legal Analysis & Holding:* EEOC: found reasonable cause that the Defendant violated Title VII. US District Court: Agreed with EEOC. The Defendant appealed. The Plaintiffs argued that denying them the "right" to speak Spanish denied them the right to "express their cultural heritage." *Held*: Title VII does not protect the ability of workers to express their cultural heritage while at work, only to prevent differences in the treatment of workers. Title VII does not protect against rules that merely inconvenience some employees, even if those who are inconvenienced are of a certain protected class. EEOC and US District Court are reversed. The Court noted that under the EEOC Guidelines, an employer must ALWAYS provide a business necessity justification for an English-only rule, because according to the EEOC, English-only rules "create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment." The Court said, "we are not bound by the [EEOC] Guidelines . . . when there are compelling indications that it is wrong."

Breastfeeding/expressing milk at work

49 states and the District of Columbia and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location. A 2010 amendment to the Fair Labor Standards Act of 1938 requires employers with 50 or more employees to provide reasonable break times for female employees to express milk for up to one year after birth; must also provide a private space other than a bathroom to do so; if the employer has fewer than 50 employees and these requirements pose an undue hardship, then the employer need not comply with the law. The federal law does not preempt state law that provides greater protections to employees, so if a state law provides stronger provisions, then the employer must comply with state law. VA Code §2.2-1147.1 guarantees a woman the right to breastfeed her child in any place where the mother is lawfully present, including any location where she would otherwise be allowed on property that is owned, leased or controlled by the state. The statute also stipulates that childbirth and related medical conditions specified in the Virginia Human Rights Act (something that we will look at in module 11) include activities of lactation, including breastfeeding and expression of milk by a mother for her child. VA House Joint Resolution 145 (2002) encourages employers to recognize the benefits of breastfeeding and to provide unpaid break time and appropriate space for employees to breastfeed or express milk.

Only ___% of sexual harassment cases are actually litigated, and the harassee wins approximately _____ of those cases.

6 one-third

Paula Jones v. Clinton (8th Cir., 1998),

8th Circuit held that when Bill Clinton dropped his trousers, fondled his penis, asked Jones to kiss it, and then backed off when she said no, while boorish, was not sufficiently severe or pervasive to constitute quid pro quo or hostile environment sexual harassment.

Example: George, an immigrant of Haitian descent, was hired by XYZ Shipping as a dockworker. On his first day, George dropped a carton, prompting Bill, the foreman, to yell at him. The same day, George overheard Bill telling a coworker that foreigners were stealing jobs from Americans. Two months later, Bill confronted George about an argument with a coworker, called him a "lazy jerk," and mocked his accent.

Although Bill's conduct was offensive, it was not sufficiently severe or pervasive for the work environment to be reasonably considered sufficiently hostile or abusive to violate Title VII.

EEOC's position on requiring all employees to speak only English while in the workplace?

Although Title VII does not prohibit discrimination on the basis of language (language is not a protected category under Title VII), nevertheless, employers should be aware that since 2001, the EEOC has been targeting employers that implement English-only policies EEOC's position is that an English-only policy that restricts employees from speaking a language other than English at all times violates Title VII, and most courts have dutifully obeyed the EEOC's position

Bathroom facilities

An employer who only has one restroom at the workplace cannot use that as an excuse to not hire female employees. Lynch v. Freeman (6th Cir., 1987): A female construction worker sued her employer for Title VII disparate impact gender discrimination for failing to provide adequate sanitary female toilet facilities at the job site, where, after she was told to use the (male) portable toilet facility, she developed a urinary tract infection. Held: Judgment for the Plaintiff.

Title VII prohibits national origin discrimination based on one's:

Ancestry: country of birth Physical characteristics associated with national origin: i.e., hair, facial features, color, height, weight Cultural characteristics and perception: i.e., name, dress, accent Linguistics: accent Association with someone of a particular national origin: i.e., white person who is married to an Iranian Membership in an organization that is affiliated with a certain national origin

Example: Child Care

A child care and pre-school service provider asked the EEOC if it can rely on BFOQ to require that only female employees be placed in positions relating to diaper changing tasks in order to protect the privacy and ensure the safety of the infants. The EEOC held: NO, the refusal to hire (or assign a task to) an individual based on gender stereotypes will not be permitted as a BFOQ, nor will customer preferences be permitted as a BFOQ (see Title VII BFOQ Letter). The EEOC's position is that in order to rely on BFOQ for gender, the employer must prove that "no member" of the other sex can perform the job in question.

What is "Sex (Gender) Discrimination"?

Advertising for available jobs Job application questions Interview questions Work schedule Training Wages and benefits

EEOC & Equal Pay

All private employers with 100 or more employees must file with the EEOC by Sept. 30 of every year Form EEO-1 (Employer Information Report). The form reports employment information for any one pay period during the period July thru Sept. of each year. The employer must report the number of employees in each of the 10 job categories by race, ethnicity & gender. On Jan. 29, 2016, the EEOC announced changes that will now require employers to also report employee compensation beginning in Sept. 2017. The information will be used by the EEOC to focus its investigations to identify pay disparities and discrimination.

2nd Element of Prima Facia case

Employee was "qualified" for the position. No employer accommodation is required for one's national origin (unlike disability and religion, as we shall see later in the course). No requirement for an employer to accommodate an employee's dress or attire of national origin (i.e., traditional African dress).

Factors to consider:

Are the allegations believable on its face? Does it make sense? Who seems more credible? Does either party have a motive to lie? Is there corroboration? (eyewitness testimony or documentation) Does the harasser have a previous history of similar behavior?

Logistical Considerations

Employers may not avoid hiring those of a certain gender because of logistical issues, unless it involves an unreasonable financial burden on the employer (which is rare).

Illegal Aliens- The EEOC:

Employers may not discriminate against illegal aliens. Employers are liable for monetary damages regardless of whether the employee is an illegal alien. Illegal aliens are entitled to the same remedies (including back-pay and reinstatement) as US citizens and nationals.

Equal Pay Issues

Employment discrimination with regard to compensation is prohibited under both The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. As of 2011, women earn on average 77 cents for every dollar earned by men.

Example: English-Only Language Policy XYZ Textile Corp. adopts a policy requiring employees to speak only English while in the workplace, including when speaking to coworkers during breaks or when making personal telephone calls. XYZ places Hispanic workers under close scrutiny to ensure compliance and replaces workers who violate the rule with non-Hispanics. Jose, a native Spanish speaker, files a charge with the EEOC alleging that the policy discriminates against him based on his national origin. XYZ states that the rule was adopted to promote better employee relations and to help improve English skills. However, the investigation reveals no evidence of poor employee relations due to communication in languages other than English, nor are proficient English skills required for any of the positions held by non-native English speakers. Is this rule lawful?

Because XYZ's explanation is contradicted by the evidence, the English-only rule is unlawful

Employer's defense to Disparate *Impact* claim:

Business necessity as to why a specific national origin (i.e., English-speaking country) is necessary for the position.

The Courts and "English-only" rules

Courts engage in a case-by-case analysis to determine whether an employer's reason for having an English-only policy is justified by business necessity. At certain times: i.e., when in the presence of customers or when performing certain job duties but not when on breaks, during lunch, etc.

Nelson hires Francois, an alien working in the US with the legal authority to do so. One month later, Francois loses his right to work in the US. Which of the following is true? A. Nelson's continued employment of Francois cannot constitute a violation of IRCA under any circumstance. B. Nelson's continued employment of Francois will constitute national origin discrimination against US citizens. C. Nelson's continued employment of Francois will constitute a violation of IRCA if Nelson knows that Francois has become an illegal alien. D. Nelson's continued employment of Francois is permitted because it is an unlawful employment practice to discriminate against any individual based on their national origin.

C. Nelson's continued employment of Francois will constitute a violation of IRCA if Nelson knows that Francois has become an illegal alien.

A local TV station has an opening for an evening sportscaster. Yvonne, a recent graduate with a degree in broadcast journalism, applies for the job. She is not hired on the basis that the job is restricted to men, as it involves interviewing players on high school football teams, which requires the sportscaster to spend a lot of time in the men's locker rooms. Which of the following statements is true: A. Yvonne has a valid claim for gender discrimination if she can prove that the TV station has hired women for other roles that can be performed by men. B. Yvonne has no claim for gender discrimination because the TV station has a legitimate nondiscriminatory reason for its job requirement. C. Yvonne has a valid gender discrimination claim, and the bona fide occupational qualification defense cannot be used, because players can be interviewed outside the locker room. D. Yvonne has no claim for gender discrimination because private employers are allowed to hire and terminate at their will.

C. Yvonne has a valid gender discrimination claim, and the bona fide occupational qualification defense cannot be used, because players can be interviewed outside the locker room.

Laura applies for a job as a firefighter. She is 5 feet 2 inches tall and weighs 105 pounds. Laura is denied the position because she does not meet the height and weight requirements. The fire department's height and weight requirements are: A. discriminatory if it can be shown that height and weight requirements are a business necessity. B. not discriminatory because Title VII does not cover jobs such as prison guards, police officers, and firefighters. C. discriminatory if it can be shown that the requirements are not directly correlated to the ability to do the job. D. not discriminatory because most firefighters are tall.

C. discriminatory if it can be shown that the requirements are not directly correlated to the ability to do the job.

When an employee alleges sexual harassment based on a hostile work environment, the: A. harassee needs to show that the employer was completely unaware of the sexually hostile work environment. B. harassee, if male, needs to show that he belongs to a protected group. C. harassment should be sufficiently severe or pervasive to create an abusive working environment. . D. harassment needs only to exist and need not be severe or extensive in nature to be found to be hostile.

C. harassment should be sufficiently severe or pervasive to create an abusive working environment. .

To state a prima facie case for national origin discrimination, an employee needs to prove that: A. the position was filled by someone who is a member of the same protected class that she belongs to. B. her employer's employment decision or action was a business necessity. C. her employer's employment decision caused an adverse employment action to her. D. her employer's job requirements exceed her qualifications.

C. her employer's employment decision caused an adverse employment action to her.

Homer and Julia are part of the cheese production team at the Mayberry Dairy. All of the team members share a harmonious work relationship. However, a calendar featuring a semi-nude woman in a sexually suggestive pose on Homer's desk makes Julia uncomfortable. She asks Homer to remove it, but Homer does not do so, insisting that he has been getting that same type of calendar for five years and sees no reason to replace it now. In order to win a sexual harassment claim, Julia must prove that: A. the images on the calendar clash with her religious beliefs. B. their employer has tried to take remedial action against Homer several times. C. the calendar creates a hostile or abusive work environment. D. no other male employee in the workplace has displayed such obscene images of women.

C. the calendar creates a hostile or abusive work environment.

Gender Stereotypes

Gender stereotypes is where employment discrimination occurs based on assumptions of how a particular gender should act or dress, or what roles they should perform, or what jobs they should hold. Stereotypes have little or nothing to do with an individual employee's qualifications or ability to perform the job, so that is why employer's may not make employment decisions based on those stereotypes.

Patty, a partner in a law firm, showed special interest in Robert, a new associate at the firm. Patty frequently made sexual overtures to Robert, would touch him in inappropriate places and expected him to get physically intimate with her if he wanted to be a senior attorney at the firm. Although Robert did not report Patty's conduct to senior management, he was unable to bear the harassment any longer, so Robert quit his job and filed a complaint with the EEOC for sexual harassment. Which of the following holds true in this situation? A. The law firm would not be held liable for sexual harassment because Title VII does not protect male employees against sexual harassment by female supervisors. B. The law firm would be held liable for sexual harassment only if Robert can prove that he is gay. C. The law firm would be held strictly liable for sexual harassment because Patty is a supervisor, and the actions of a supervisor are considered to be the actions of the employer. D. Although the law firm may be held liable for sexual harassment, it is not subject to strict liability because there was no official act by the employer and there was no way for the employer to know that the sexual harassment was occurring.

D. Although the law firm may be held liable for sexual harassment, it is not subject to strict liability because there was no official act by the employer and there was no way for the employer to know that the sexual harassment was occurring.

Which of the following statements is true of quid pro quo sexual harassment? A. It involves creating an offensive work environment rather than engaging in sexual activity. B. It seldom leaves a paper trail that can be followed. C. It is difficult to recognize this type of harassment because there is always confusion about what activity constitutes the offense. D. It involves a supervisor requesting sexual activity in exchange for workplace entitlements or benefits.

D. It involves a supervisor requesting sexual activity in exchange for workplace entitlements or benefits.

Kimberly, an employee at AAA Tool Company, informs her supervisor that she is pregnant. Her supervisor feels the need to lighten Kimberly's work load, even though she never requested it. Kimberly is assigned simple tasks and excluded from office meetings and other activities. As a result, Kimberly is not provided an opportunity to effectively compete with her co-workers that financial year. Which of the following is true? A. Kimberly has no claim because the Pregnancy Discrimination Act mandates that pregnant employees must be given light-duty work. B. Kimberly has a valid gender discrimination claim under Title VII only if she can show that she is a single parent. C. Kimberly has no claim because pregnancy is treated as a serious disability under Title VII. D. Kimberly has a valid claim under the Pregnancy Discrimination Act because the act prohibits treating employees differently due to pregnancy and childbirth.

D. Kimberly has a valid claim under the Pregnancy Discrimination Act because the act prohibits treating employees differently due to pregnancy and childbirth.

Henry and Rochelle work in the claims department of an insurance company. On Rochelle's birthday, Henry stops by her cubicle and gives her a cupcake with a heart on the frosting and asks her out to dinner. Rochelle, having never spoken to Henry before, finds his actions strange and declines his offer. Henry does not make any more advances, but Rochelle tries to avoid him whenever she sees him in the office. Which of the following is true? A. Rochelle has a claim under quid pro quo sexual harassment. B. Rochelle has a claim under hostile work environment sexual harassment. C. Rochelle does not have a claim because sexual harassment has to involve physical assault to be considered unlawful. D. Rochelle does not have a claim for sexual harassment because her claim would be based on one isolated incident that is not serious enough to warrant undue concern.

D. Rochelle does not have a claim for sexual harassment because her claim would be based on one isolated incident that is not serious enough to warrant undue concern.

Harry and Sandra both work for Chemco, Inc. They both worked over the weekend and failed to show up for work on Monday. When they returned to work, Harry was given a verbal warning but Sandra was terminated. Which of the following statements is true? A. Sandra does not have a claim for gender discrimination if Harry belongs to a protected class. B. Sandra has a gender discrimination claim only if she has more seniority than Harry. C. Sandra does not have a claim for gender discrimination because they are both employees-at-will. D. Sandra has a claim for gender discrimination because it is illegal to discipline one gender for an act for which the other gender is not disciplined.

D. Sandra has a claim for gender discrimination because it is illegal to discipline one gender for an act for which the other gender is not disciplined.

Chang, an employee of Chinese origin, works as a sales representative at Arcade Recyclers, Inc. His supervisor, Jim, continually refers to him as "Charlie" instead of "Chang." Although he objects and asks to be called by his correct name, Jim continues to call him "Charlie" for over a year and justifies his actions by saying that an American-sounding name would increase his chances of success and would be more acceptable to Arcade's customers. Chang brings a complaint under Title VII of the Civil Rights Act of 1964. Which of the following is true? A. The company will not be held liable to Chang because the use of "Charlie" is neither a racial epithet nor a description of his physical or cultural traits. B. The company will be held liable to Chang because Title VII provides protection against discrimination based on the employee's country of citizenship. C. The company will not be held liable to Chang because Jim did not intend his use of "Charlie" to be derogatory of his national origin. D. The company will be held liable to Chang because national origin discrimination can include cultural traits such as names.

D. The company will be held liable to Chang because national origin discrimination can include cultural traits such as names.

The police chief of the city of Grande Coast reassigns female patrol officers away from high crime areas because people living in such areas do not want female officers guarding them. They feel that female officers are not capable of performing their duties as effectively as male officers. The female police officers of Grande Coast: A. cannot bring an action for gender discrimination under Title VII because the chief's action is intended to protect the safety of female officers. B. can bring an action for gender discrimination under Title VII only if the transfer results in a reduction of pay. C. cannot bring an action for gender discrimination because employees working for the government are not covered under Title VII. D. can bring an action for gender discrimination under Title VII because customer preference is not a protected reason to discriminate.

D. can bring an action for gender discrimination under Title VII because customer preference is not a protected reason to discriminate.

Ding, a Somali male, is fired after being late for work three times. His employer has a rule that employees may be fired after being late for work twice. However, the rule has only been enforced against Somali workers while employees of other national origins have been retained with only a warning. In this scenario, Ding: A. has a national origin discrimination claim if he uses the BFOQ defense to show that his employer's actions were unlawful. B. does not have a national origin discrimination claim because his employer was only trying to enforce a neutral policy. C. has a national origin discrimination claim based on disparate impact. D. has a national origin discrimination claim based on disparate treatment.

D. has a national origin discrimination claim based on disparate treatment. *employee cannot use the BDOQ dense, this is used by employers to explain why the discrimination is valid* *employee does not necessarily get directly impacted under disparate IMPACT but action is directly taken against them under disparate TREATMENT*

Smith, the manager of a manufacturing unit, issues a written workplace policy stating that any employee who is related to someone of Middle Eastern origin will be ineligible for a promotion to the supervisory level. This workplace policy issued by Smith: A. does not violate Title VII because it has been explicitly stated by Smith in writing and therefore is not arbitrary. B. violates Title VII because the statute protects against discrimination based on country of citizenship. C. does not violate Title VII because its outcome is not triggered by the national origin of the individuals it affects. D. violates Title VII because it discriminates against individuals who are married to or associated with people of a specific national origin.

D. violates Title VII because it discriminates against individuals who are married to or associated with people of a specific national origin.

How do you recognize disparate impact gender discrimination? Some questions to ask include:

Does a facially neutral policy disproportionally exclude members of a particular gender from the workplace or deny them some workplace benefit? i.e., do height and weight requirements statistically exclude certain groups? Do these requirements directly relate to the ability to do the job? (business necessity) Are there better, less discriminatory requirements that will achieve the same result?

Why does the EEOC frown upon "English-only" rules?

EEOC considers employer's "English-only at all times" to be discriminatory. Expect a lawsuit. As with any workplace policy, an "English-only" rule must be narrowly-tailored and adopted for non-discriminatory reasons. "At all times" → violates Title VII At certain times → may withstand an EEOC lawsuit if proven to be a business necessity.

Can Gender be a BFOQ?

EEOC: The basis for preferring one gender over the other must go to the essence of what the employer is in business to do. BFOQ may be used when there is a legitimate need for authenticity (i.e., only a female actor can fill a female role in a movie or theater production; only a male can be a sperm donor; only a female can be a wet nurse). Note: The statute simply requries that the preference must be "reasonably necessary," not that it must go to the "essence of what the employer is in business to do." The EEOC's guidelines illustrate how high of a burden an employer must satisfy if the employer defends on the basis of BFOQ.

A plaintiff must prove the following factors for a prima facia case for disparate treatment:

Employee belongs to a protected class under Title VII Employee applied for and was qualified for a job for which the employer was seeking applicants Employee was rejected and, after the rejection, the position remained open Employer continued to seek applicants with the same qualifications that the rejected applicant has

T/F Title VII also prohibits discrimination based on one's citizenship

FALSE *IT DOES NOT* prohibit discrimination based on one's citizenship

T/F Hostile environment is the more obvious type of sexual harassment and is not usually difficult to recognize,

FALSE Quid pro quo is the more obvious type of sexual harassment and is not usually difficult to recognize, because the exchange of sex for some employment benefit will often leave a paper trail that can be followed (i.e., an employee evaluation by the supervisor recommending that the employee receive a pay raise, which is given in exchange for sex).

In the case of Garcia v. Spun Steak Co., the court followed the EEOC guidelines and held that the English-only rule in the workplace violates Title VII of the Civil Rights Act of 1964

False

T/F If both genders were performing the same job, a female wearing a smock would qualify as comparable to a male wearing a coat and tie.

False

T/F It is always unlawful for employers to refuse to hire on the basis of gender.

False

T/F Marlene, an employee at Coral Holidays, Inc., informs her manager that she is pregnant. After a few weeks, Marlene is terminated. Pregnant employees like Marlene have no legal recourse against such adverse employment actions.

False

T/F Quid pro quo sexual harassment occurs when a harasser merely creates an abusive or intimidating work environment but does not engage in sexual activity.

False

T/F As a result of the 1991 amendment, the number of sexual harassment lawsuits has decreased dramatically

False INCREASED dramatically

T/F If there is a discrepancy in pay, the employer can reduce wages of higher-paid (male) employees to close the "pay gap."

False They cannot reduce wages to close the pay gap

Sex is the ____prohibited category in Title VII

Fourth

Hively v. Ivy Tech Community College (7th Cir., April 4, 2017)

However, in April 2017, the US Court of Appeals for the 7th Circuit held that Title VII also prohibits employment discrimination on the basis of sexual orientation, despite the fact that the statute does not include that phrase. This holding has created a conflict in the Courts of Appeal (the 2nd and the 11th Circuits have held otherwise), so it is likely this issue will ultimately be decided by the US Supreme Court.

Unwelcome activity

If the sexual activity is consensual, then it is not unwelcome and is not sexual harassment. "Welcomeness" can be based on harassee's previous conduct of encouraging such activity. If at first the activity is consensual, then later the employee says "stop" it then becomes sexual harassment.

Illegal Aliens- The Courts:

In response to the Hoffman case, the EEOC said it will no longer ask what the employee's status is when it handles their discrimination claim.

Pregnancy Issues

In 1976, the US Supreme Court decided that discrimination based on pregnancy was not gender discrimination under Title VII. Two years later, Congress passed the Pregnancy Discrimination Act of 1978 (42 USC §2000e): Prohibits an employer from using pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently than any other employee with a short-term disability.

Case: Price Waterhouse v. Hopkins (US, 1989) The Plaintiff (Hopkins), a female associate with the Defendant accounting firm, was denied promotion to partner and then filed a Title VII gender disparate treatment suit based on gender stereotyping. Issue: Whether the Defendant's stereotyped comments played a part in the Defendant's employment decision? Evidence: Although the Plaintiff was responsible for securing a $25 million contract with a client, and partners and clients praised her character and accomplishments, the partners' negative comments had to do with her interpersonal skills: i.e., that she was "overly aggressive, unduly harsh, difficult to work with." Some described her as "macho;" that she "overcompensated for being a woman;" the partners criticized her extensive use of profanity, and that she "should walk, talk and dress more femininely." *What happens next?*

Legal Analysis and Holding: Court: An employer who acts on a belief that a woman should not be aggressive, or should act a certain way, has acted on the basis of gender. The partners' comments show gender stereotyping. 42 USC §2000e-2(m) provides: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a *motivating factor* for any employment practice, even though other factors also motivated the practice." (emphasis added) The Court said that as long as the sexual stereotypes were "motivating factors" in the employer's decision, even though there may have been other, non-discriminatory factors (i.e., lack of interpersonal skills), the decision nevertheless violates Title VII. The court held in favor of the Plaintiff This was a 4-3 decision. Note: having the stereotype belief is not a violation of Title VII, but rather acting on that belief is the violation. Question: How could the partners have avoided this result? Answer: They should have simply focused on her lack of interpersonal skills as the basis for not promoting her, not make the stereotype comments, and apply that same criteria to all candidates.

Case: Womack v. Runyon (11th Cir, 1998) The Plaintiff was a male employee with the U.S. Postal Service. The Defendant was the Postmaster General of the USPS. In early 1987, the Plaintiff, who had previous supervisory experience, applied for a supervisory position with the post office in Waycross, GA. In March 1987, then-supervisor Lee instructed the Plaintiff to begin training co-worker Jeanine Bennett. Bennett also applied for the supervisory position but had no previous supervisory experience. The Plaintiff was unanimously selected as "best qualified" for the position by the review board, but Lee (who was by then appointed Postmaster at this post office) selected Bennett for the position. Evidence revealed that Lee was having a consensual sexual relationship with Bennett. The Plaintiff filed a Title VII gender disparate treatment suit. Issue: Whether preferential treatment based on a consensual sexual relationship between a supervisor and a subordinate, that results in an adverse employment action taken against someone of the opposite sex, rises to the level of sex discrimination under Title VII? The Plaintiff argued that the sexual relationship was the primary reason Bennett was promoted and he suffered adverse employment action. The Defendant argued that Title VII does not prohibit preferential treatment given to a subordinate based on consensual sexual relationship with a supervisor. Although the Plaintiff argued that the sexual relationship between Lee and Bennett was the primary reason Bennett was promoted, the sexual relationship merely needs to be a motivating factor: 42 USC §2000e-2(m) provides: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." (emphasis added)

Legal Analysis and Holding: EEOC: "Title VII does not prohibit preferential treatment based upon consensual romantic relationships; it may be unfair, but it does not discriminate 'based on gender,' since both men and women can be disadvantaged for reasons other than their genders. Held: The court agreed with EEOC. Title VII does not prohibit preferential treatment based upon sexual relationship with a supervisor. Whether male or female, the Plaintiff was not promoted not because of his gender, but because of supervisor's sexual relationship with Bennett. US District Court judgment for Defendant was affirmed.

Case: Dothard v. Rawlinson (US, 1977) Facts, Procedural History & Issue: The Plaintiff (Rawlinson), a 22-year old female, applied for employment as a guard in all-male, maximum security Alabama prison, but did not meet the minimum 120-pound weight, and 5-foot 2-inch height requirements in accordance with Alabama state statute. The Plaintiff's application was rejected. The Plaintiff filed a charge with the EEOC, which issued her a "right to sue letter" and then she filed a Title VII gender discrimination disparate impact suit. Issue: Whether this seemingly neutral height and weight restriction rises to the level of gender discrimination under Title VII?

Legal Analysis and Holding: The court said that Title VII requires "the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers discriminate on the basis of race or other impermissible classification." This seemingly neutral policy would disproportionally exclude women v. men from employment in Alabama prisons (41% of females in the state of Alabama would not satisfy the height and weight requirement, but only 1% of males would not satisfy the requirement). The burden then shifts to the Defendant to prove business necessity. The Defendant claimed the height & weight requirement relates to strength, which is necessary to be a prison guard. However, the Defendant presented no evidence that correlates height & weight with strength. If strength is necessary, then the Defendant should develop and validate a test that measures strength, which would comply with Title VII. US District Court judgment for the Plaintiff was affirmed.

Remember the 2 employer defenses to disparate treatment:

Legitimate, non-discriminatory reason (LNDR), and BFOQ (but BFOQ is only available as a defense with regard to gender, religion and national origin; it is not a defense in a race-discrimination case).

Employer's defense to Disparate *Treatment* claim:

Legitimate, nondiscriminatory reason (LNDR) or bona fide occupational qualification (BFOQ) to show that employee is not qualified

Difference in pay between men and women may be due to:

Less education or experience Personal choice of lower-paying jobs (retail sales, child care, office support staff, etc.) More women than men work in lower-paying part-time jobs Women leave the workforce for childbirth, child and elder care Gender discrimination Gender discrimination is, however, the only reason for pay difference that is within the employer's control.

Can an employer have a policy requiring all employees to be fluent in English?

Per EEOC yes, but only if fluency is required to perform the work effectively.

Employers should perform ____________ ____________ to ensure that pay differential is not due to gender discrimination.

Periodic audits

Hoffman Plastics Compounds, Inc. v. NLRB (US, 2002)

Plaintiff Jose Castro had entered the US illegally and used another person's identity (a friend's birth certificate) to gain employment into Hoffman Plastics. the NLRB found that castro's layoff violated the NLRA in the unlawful firing of union supporters The US Supreme Court held that illegal aliens who are discriminated against in violation of Title VII are not entitled to back-pay; to permit that would violate the public policy behind IRCA. Hoffman was a 5-4 decision by the US Supreme Court. *Based on the current composition of the Court, today this case would most definitely be decided the other way.

What is Sexual Harassment?

Sexual harassment in the workplace is a form of gender discrimination that violates Title VII. It may occur through inappropriate jokes, emails, touching, gestures, staring, unwanted and unwelcome requests for dates, and denials of job opportunities. It is often subtle, and managers, supervisors and employees may not recognize sexual harassment when it occurs. Society has transformed today and although sexual permissiveness is encouraged thru music, movies, television, advertising, etc., it is not permitted in the workplace.

Equal Pay Act of 1963

The EPA requires that substantially similar jobs must receive the same pay, regardless of the job title. For example, in a hospital setting, if male "orderlies" perform substantially the same job duties as female "aides," then both positions should receive the same pay. Job duties, not job titles, determine whether the jobs are substantially similar.

There are 2 types of sexual harassment under Title VII:

Quid pro quo Hostile environment

When considering the severity or pervasiveness, from who's perspective do we evaluate the activity?

Reasonable person standard Reasonable victim standard

Corrective Action

Remedial measures Disciplinary measures

Valid grooming codes:

Requiring male employees to wear ties Requiring female employees not to wear pants Requiring all employees not to wear "sexually provocative" clothes.

The Equal Pay Act permits differences in pay if due to:

Seniority system Merit system Earnings based on production or output Any other factor other than gender * These exceptions permitted by the EPA are also permitted by Title VII.

When can an employer be held liable for an employee's sexual harassment?

Supervisor harassing Employee resulting in tangible employment action Supervisor harassing Employee resulting in NO tangible employment action Co-Worker or 3rd Person harassing Employee

Wedow v. City of Kansas City, MO (8th Cir, 2006) Facts, Procedural History & Issue: The 2 female Plaintiffs were firefighters with the Defendant fire department. The Plaintiffs alleged that: They were not provided proper-fitting female-size uniforms, but instead were provided ill-fitting male uniforms, and as a result, they suffered injuries from the larger male-size uniforms (i.e., coats would not properly close, helmet and boots would fall off while fighting fires, pants caused them to trip, gloves prevented them from grabbing and holding objects, etc.); and They were not provided female restroom and shower facilities within the fire station. The Defendant made no effort to acquire and issue the Plaintiffs with female-size uniforms from 1990 thru 1998, although such female-size uniforms were commercially available. With regard to not providing female restroom and shower facilities within the fire station, the restrooms were located within the male locker rooms, and restroom doors were not secure. Some fire stations that had female facilities were unsanitary and were often used as storage rooms, while at other fire stations female shower rooms were only accessible thru the male bunkroom. The Plaintiffs filed a Title VII gender disparate treatment suit. *What happens next?*

The Defendant argued that the Plaintiffs did not suffer an "adverse employment action," and that a "mere inconvenience" without any decrease in title, salary or benefits does not meet the legal standard. *Held*: Title VII prohibits discrimination on the basis of sex with regard to the "terms, conditions, or privileges of employment." Failure to provide proper uniforms and shower and restroom facilities affects the Plaintiffs' terms and conditions of their employment because it affects their ability to perform their job in a safe and efficient manner. US District Court judgment for Plaintiffs was affirmed. *think of Wedow pronounced as we dont. Wedow want these uniforms for men, we'll get hurt and wedow want to use the male restroom*

Case: EEOC v. Audrey Sedita d/b/a Women's Workout World (N.D. Ill 1991) In this case the Defendant operated an all-female health club, and based its refusal to hire male managers, assistant managers and instructors on gender-BFOQ. The Defendant argued that Women's Workout World does not employ men as managers, assistant managers, or instructors at their health clubs, because the primary responsibilities of these jobs require "a substantial amount" of physical contact with members' bodies, including their "breasts, inner thighs, buttocks, and crotch area when taking measurements and instructing members on the use of equipment and proper exercise form." In addition, the defendant argued that managers, assistant managers, and instructors are exposed to nudity in the club locker room, shower, and bathroom, during orientation sessions when they show club facilities to new members, and that it would be impossible for Women's Workout World to reassign job duties in order to avoid intruding on members' privacy interests, since the conduct which infringes on privacy interests amounts to the essence of the jobs in question. *What happens next?*

The EEOC questioned the actual amount of touching involved and said that a little touching, such as the defendant described, is not a problem! The EEOC said a little nudity is also not a problem, and suggested that, if necessary, the defendant could hire additional female employees to assist clients who object to being touched or viewed (in the nude) by male employees, could post a schedule to inform clients of when male employees would be on duty, or let clients take themselves through the locker room without an employee escorting them. The court said that the BFOQ exception is "meant to be an extremely narrow exception;" the Defendant must prove that hiring a male would undermine the business (i.e., result in a loss of customers to such an extent that the business would fail). (In other words, absolutely necessary?) The Defendant failed to produce such evidence and prove BFOQ. Judgment was for the Plaintiff.

Supervisor harassing Employee resulting in NO tangible employment action:

This is not Quid Pro Quo because the employee has not suffered an adverse employment action (i.e., is not terminated, or the employee still receives an expected pay raise and/or promotion). The employer is NOT subject to strict liability Negligence standard applies: Did the employer fail to exercise reasonable care in preventing and correcting the harassing conduct, and did the employee exercise reasonable care in avoiding the harm? The employer has an affirmative defense available: -The "Ellerth/Faragher defense": the employer is given an opportunity to show that (1) the employer had a reasonable sexual harassment policy in place to prevent sexual harassment and address sexual harassment claims, and (2) the employee failed to use it.

T/F Doug occasionally compliments his secretary when he arrives at the office, saying things like, "Mrs. Woods, you look nice today," or "That's a nice dress." In this case, Mrs. Woods would not have a claim for sexual harassment.

True. Simply giving polite compliments is not, in and of itself, sexual harassment.

Supervisor harassing Employee resulting in tangible employment action:

This is usually Quid Pro Quo (i.e., supervisor denies the employee an expected raise or promotion because she refuses to have sex with him) Strict liability applies: the employer is liable for the acts of supervisors regardless of whether the conduct was forbidden by the employer and regardless of whether the employer knew or should have known of the conduct. Tangible employment action usually has a paper trail, so the employer should know what is occurring in the employer's workplace. The knowledge and actions of the supervisor are attributed to the employer.

True/False? Depending on the type of sexual harassment claim, it is a defense to liability if the employer had a reasonable sexual harassment policy in place to prevent sexual harassment and address sexual harassment claims, and the employee failed to use it.

True. This defense, however, is not available when a supervisor engages in sexual harassment toward an employee resulting in a tangible employment action.

Case: Alvarado-Santos v. Dept. of Health, P.R. (1st Cir, 2010) The Plaintiff, a female Puerto Rican medical doctor, was hired as an Admissions Director of a medical unit at a prison. The Plaintiff was appointed Admissions Director of 1 unit and another person (Devarie), a male Puerto Rican medical doctor, was appointed as Admissions Director of the other medical unit. The Plaintiff began to have a conflict with her supervisor, a male Dominican Republic medical doctor (Pichardo). He removed some of her responsibilities, removed some of the people who reported to her, and did not invite her to all staff meetings. The Plaintiff claimed that Pichardo said, "Dominican doctors are better than Puerto Rican doctors." Seven months later, she was notified that her contract would not be renewed and Devarie would become the Admissions Director for both medical units. The Plaintiff filed suit claiming Title VII disparate treatment based on gender and national origin. US District Court: Held in favor of Plaintiff. The Defendant appealed. *What happens next?*

The Plaintiff must present a prima facia case of discrimination (adverse employment action); the court assumed she satisfied this burden. The Defendant must then present a legitimate, non-discriminatory reason (LNDR) for the adverse employment action. The Defendant presented two: A need to restructure the 2 medical units under one Admissions Director to achieve better control and efficiency; and The Defendant selected Devarie because the Plaintiff's medical unit frequently had lower compliance rates than Devarie's medical unit (Plaintiff failed to achieve established goals). The Plaintiff is then given opportunity to show that the Defendant's LNDR is a mere pretext and the "real" reason for the adverse employment action is discriminatory. How did the Plaintiff try to show that the Defendant's LNDR is a mere pretext? She said: The supervisor (Pichardo) who made the decision to consolidate the 2 units and not renew her contract is from Dominican Republic and the Plaintiff is from Puerto Rico, and Seven months before she was notified her contract would not be renewed, Pichardo allegedly said "Dominican doctors are better than Puerto Rican doctors." *Held*: The Plaintiff failed to prove that the adverse employment action (not to renew her contract) was based on national origin discrimination rather than the Defendant's 2 LNDRs. Case dismissed. The court noted that: Although the supervisor (Pichardo) is from Dominican Republic and the Plaintiff is from Puerto Rico, Devarie is also from Puerto Rico, which contradicts the allegation that Pichardo engaged in national origin discrimination; and There was no evidence that the one isolated remark that Dominican doctors are better than Puerto Rican doctors was close in time to when the decision was made not to renew the Plaintiff's employment contract.

Case: Meritor Savings Bank, FSB v. Vinson (US, 1986) The Plaintiff (Vinson) began employment with the Defendant bank in 1974 and worked there for 4 years. For the first 3 years of her employment, she had engaged in sexual activity with her supervisor (the branch manager). In September 1978 she notified the Defendant that she was taking sick leave for an indefinite period of time. In November 1978 she was fired for taking excessive sick leave. She then filed this lawsuit. When her supervisor first suggested that they have sexual relations, the Plaintiff refused, but due to what she described as "fear of losing her job," she eventually agreed. She estimated that over the next three years she had sexual relations with the supervisor "40 or 50 times" without ever reporting his conduct to senior management and without utilizing the bank's sexual harassment complaint procedure. The sexual relations then stopped in 1977 (before her sick leave) when the Plaintiff began dating a steady boyfriend. Question: Was this truly "unwelcome"? The Defendant said that since the Plaintiff did not lose any tangible job benefits (i.e., did not lose any raises or promotions, and in fact, was eventually promoted from teller to head teller to assistant branch manager based on her merit), there was no Quid Pro Quo sexual harassment, and that since the Plaintiff "voluntarily" engaged in the sexual activity, it was therefore not "unwelcome". *what happens next?*

The US District Court dismissed the case, holding that if the respondent and the supervisor did have a sexual relationship, it was voluntary, and had nothing to do with her continued employment at the bank, and that therefore the respondent was not the victim of sexual harassment. The court then went on to hold that since the bank was without notice, it could not be held liable for the supervisor's alleged sexual harassment. The US Court of Appeals held that sexual harassment in violation of Title VII can either be: harassment that involves the conditioning of employment benefits on sexual favors (quid pro quo); or harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. The Court of Appeals reversed the lower court's decision because it said that the grievance here was of the second type, and the District Court had not considered whether a violation of this type had occurred. The US Supreme Court held for the first time that hostile environment sexual harassment is a valid claim under Title VII. The court acknowledged that "while the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility," the question is not whether, on one hand, the sexual activity was "voluntary" or whether, on the other hand, the Plaintiff was forced to participate against her will (i.e., rape), but rather the correct question is whether the Plaintiff, by her conduct, indicated that the sexual activity is welcome or unwelcome and so severe that it creates an abusive work environment that affects a term or condition of her employment. However, what conduct by the Plaintiff here would indicate that the sexual activity was unwelcome? How can a court determine if the activity was indeed unwelcome if the Plaintiff never complained about it to senior management? Shouldn't there be some objective conduct required by the Plaintiff to indicate that the sexual activity was indeed unwelcome (i.e., complaining about it to senior management or utilizing the Defendant's sexual harassment complaint procedure)?

Dress/Grooming Codes

Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes. Grooming codes almost always do not affect employment opportunity. Harper v. Blockbuster Entertainment Corp. (11th Cir., 1998): Court dismissed male-Plaintiff's gender discrimination lawsuit where the Defendant had a policy that prohibited male employees from having long hair. Courts understand that employers need to be able to control this aspect of the workplace, so much flexibility is permitted. Note that policies prohibiting body piercings, tattoos, etc., are not a gender issue, and therefore are not covered under Title VII. These policies are given wide latitude, unless they also discriminate based on gender, etc. Employers can use reasonable standards of what is generally thought to be male- or female-appropriate attire in a business setting.

UAW v. Johnson Controls, Inc. (US, 1991):

The court held (in a 9-0 decision) that the employer's gender-specific policy of prohibiting fertile female employees from entering certain areas of the employer's facility where they may be exposed to lead levels that exceeded OSHA standards, but did not prohibit fertile male employees from entering those certain areas, was gender discrimination (disparate treatment) in violation of Title VII. Fetal protection policies must apply equally to men and women. The Court also noted that protection of the unborn child is of no concern.

How can an employer avoid liability?

The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (i.e., the employee knows of the employer's anti-harassment policy but fails to notify the employer of the harassment). *Remember, the employer must *know or should have known* about the harassment and failed to take immediate and appropriate corrective action. If the harassed employee does not notify the employer (or a supervisor) of the harassment and the employer or supervisors have no way of knowing of the harassment, the employer may be able to avoid liability.

What if a customer (i.e., an accounting firm's client) prefers to have an employee of a certain gender (a male or female accountant) perform the work (conduct the audit) and the employer obliges?

The employer is in violation of Title VII. Customer preference is not a valid excuse to discriminate based on gender. BFOQ is a defense to a disparate treatment discrimination claim and is provided in 42 USC 2000e-2(e). The basis for preferring one gender over the other must go to the essence of what the employer is in business to do.

How does an employer determine the truth of the allegations?

The employer should designate someone (a senior level manager) to investigate the claim. The investigator should interview both parties and any witnesses to determine the "who," "what," "when," "where," and "how." The investigator should present evidence to the employer, who will decide what the facts are.

Fetal Protection Policies

policies adopted by an employer that limit or prohibit employees from performing certain jobs or working in certain areas of the workplace because of potential harm to pregnant employees, their fetuses or the reproductive system of employees.

Co-Worker or 3rd Person harassing Employee:

This is harassment by one employee toward another, both of whom are on the same level, or by someone who is not employed by the employer (i.e, a client or third person service provider (repair person)). The employer is liable if the employer knew or should have known of the conduct and took no immediate corrective action -i.e,. employee reports the conduct to her supervisor but employer takes no action. The knowledge and actions of the supervisor are attributed to the employer.

Statute of Limitations:

Title VII's SOL: 180 days (restarts with each paycheck) EPA's SOL: 2 years (3 years for willful violations)

Gender Discrimination & the Civil Rights Act of 1964

Title VII: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, *sex*, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 USC §2000e-2 *Remember, Title VII applies to all companies that employ 15 or more employees*

Sufficiently severe or pervasive

To be deemed sufficiently severe or pervasive, the action usually requires more than just an isolated event. The more frequent or more serious the activity, the more likely it is to satisfy this requirement. Another question to consider: Was the activity physically threatening or merely an offensive utterance?

What would be business necessity for "English-only" rules?

To facilitate better management-staff communication, supervision and control, better communication with customers and co-workers; to ensure safety in the workplace.

What is National Origin Discrimination?

Treating someone less favorably (a denial of equal employment opportunity) because he or she (or his or her ancestors) comes from a particular place or because he or she has the physical, cultural or linguistic characteristics of a national origin group

T/F An employee may have a national origin discrimination claim if the worker is simply perceived to be of a certain origin, even if the individual is not, in fact, of that origin.

True

T/F As of today, courts have held that gender discrimination includes discrimination due to pregnancy and sexual harassment, but not because of sexual identity or being transgender

True

T/F Pregnancy may be a BFOQ, based on health concerns.

True

T/F The Immigration Reform and Control Act (IRCA) prohibits discrimination against a foreign national if the foreign national is more qualified than the U.S. citizen.

True

T/F Title VII does not apply to employees who allege discrimination based on sexual orientation (i.e., being gay or lesbian), but a sexual harassment claim can exist regardless of the genders of the harasser and the harassee.

True

T/F with regard to an invalid grooming code, it is *not* a defense for an employer to argue that the employee knew about the grooming code when he or she was hired. If the code violates Title VII, it is unlawful. Knowledge of the policy, or agreeing to an unlawful policy, does not make it lawful.

True

Reasonable person standard

Viewing the harassing activity from the perspective of a reasonable person (i.e., gender neutral).

Reasonable victim standard

Viewing the harassing activity from the perspective of a reasonable person of the same gender as the victim (i.e., reasonable woman standard). Why this standard? Because the reasonable person standard may result in some conduct that is deemed acceptable simply because men consider it to be acceptable. So, is the conduct such that a "reasonable woman" would consider it to be sufficiently severe or pervasive?

Common types of pregnancy discrimination include:

refusing to hire terminating failing to provide equal benefits refusing to accommodate a pregnant employee with lighter duty when such accommodations are made for employees with other short-term disabilities, etc.

Invalid grooming codes:

Weight restriction policy applied only to female flight attendants Requiring female employees to wear uniforms but permitting male employees to wear "normal business attire." Refer to Scenario 1 from the textbook: Suit v. Smock? What is the perception that one has of a person wearing a suit v. a smock?

Factors that EEOC considers for National Origin Harassment:

Whether the conduct was physically threatening or intimidating How frequently the conduct was repeated Whether the conduct was hostile and/or patently offensive Whether management responded appropriately when it learned of the harassment.

Example: Muhammad, an Arab-American, works for XYZ Motors, a large automobile dealership. His coworkers regularly call him names like "c*a*m*e*l Jockey," "the local terrorist" and "the ayatollah" and intentionally embarrass him in front of customers by claiming that he is incompetent. Muhammad reports this conduct to higher management, but XYZ does not respond. The constant ridicule has made it difficult for Muhammad to do his job. Is this National Origin Harassment?

Yes, The frequent, severe and offensive conduct linked to Muhammad's national origin has created a hostile work environment in violation of Title VII.

With regard to linguistics and accent, however:

an employer is permitted to choose not to hire or promote, or to terminate, an employee that requires clear oral communication in English if the employee's accent substantially affects her ability to communicate clearly (BFOQ). *A teacher's termination was upheld where the teacher spoke English but spoke with such a thick accent that her students had difficulty understanding her.*

Immigration Reform and Control Act of 1986

applies to all employers and requires that they must determine the eligibility of each applicant to work in the US. Form I-9 Employment Eligibility Verification Employers are selected at random for I-9 audit by INS. IRCA prohibits employers from knowingly (know or should have known) hiring or retaining illegal aliens.

Discipline

cannot discipline one gender (i.e., for arriving at work late) but not discipline the other gender who also arrives at work late.

Wages and benefits

cannot pay employees different wages based on gender (violates Title VII and the Equal Pay Act), and cannot provide employees different benefits based on gender.

Training

cannot provide, or fail to provide, certain training for one gender but not provide, or fail to provide, the same training for the other gender.

In addtion to filing a claim under Title VII, the harassee may also file a :

civil tort action against the harasser and employer for such things as battery, assault, intentional infliction of emotional distress and false imprisonment, and, as with any tort action, request a jury trial. These are intentional torts and the plaintiff can request both compensatory and punitive damages.

In 1991, Title VII was amended to permit employees to sue for _____ _______ and _____ ______ and to request a _____ ____.

compensatory damages -(money damages to compensate the injured party for pain and suffering) punitive damages -(money damages designed to punish the employer) jury trial

Title VII does not prohibit:

consensual sexual relationships in the workplace (although the employer's policy may prohibit it). It violates Title VII only when the activity directed toward an employee is unwelcome and imposes terms and conditions different for one gender than the other. i.e., a female employee is required to date her supervisor, while male employees have no such condition imposed.

Direct evidence

employer's statements or documents (i.e., an email) which show an improper, discriminatory reason

Most gender discrimination claims today are not with regard to hiring, but rather with regard to

equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities and domestic violence

Job application questions

for background verification purposes, cannot ask female applicants their maiden name but not ask male applicants their maiden name.

Hinton v. Virginia Union University (E.D. Va., May 4, 2016), the US District Court for the Eastern District of Virginia

granted the defendant University's motion to dismiss the P's sexual orientation claim because sexual orientation is not a protected class under Title VII.

Terms and conditions of employment

i.e., cannot require female employees to dress, talk and act "feminine," but not require male employees to dress, talk and act "feminine."

When Congress enacted Title VII of the CRA of 1964, it's intent was that the term "sex" referred to:

one's gender. As such, Title VII does not explicitly prohibit sexual orientation discrimination, and until April 2017, no US Court of Appeals had held that Title VII prohibits sexual orientation discrimination.

Measures to stop harassment and ensure it does not recur include:

oral or written warning or reprimand transfer or reassignment demotion reduction of wages suspension discharge training or counseling of harasser

IRCA "tie-breaker" rule

permits employers to have a preference for US citizens if all applicants are equally qualified (i.e., "tie-breaker"). *It's not applicable if the foreign national is more qualified than the US citizen. if a foreign national is more qualified than a US citizen but the US citizen is hired, then the foreign national has been discriminated against based on her *citizenship*. Although Title VII does not protect against discrimination based on one's citizenship, IRCA does; therefore, the foreign national would have a basis for a complaint under IRCA *but not Title VII*.

Ellison v. Brady (9th Cir., 1991)

the 9th Circuit stated that "well-intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action if a reasonable victim of the same gender as the plaintiff would consider the comments sufficiently severe or pervasive . . . to create an abusive working environment." Ellison continued to receive letters from a coworker and felt uncomfortable and unsafe. Her manager sent info to SOT however he dismissed Ellison filed a complaint in federal district court against Brady, Secretary of the Treasury, alleging a Title VII violation. The district court granted the defendant’s motion for summary judgment on the ground that Elision had failed to state a case of sexual harassment caused by a hostile working environment; it characterized Gray’s conduct as “isolated and genuinely trivial.†Ellison appealed.

King v. Palmer (US Court of Appeals for District of Columbia, 1985)

the Plaintiff was female and was passed over for promotion, despite being better qualified, in favor of another female who was involved in a consensual sexual relationship with the supervisor. The Court held in favor of the Plaintiff and said that the Defendant discriminated against the Plaintiff because of her gender, in violation of Title VII.

Case: Faragher v. City of Boca Raton (US, 1998)

the Plaintiff, a city lifeguard, alleged sexual harassment by her supervisor but that resulted in no tangible employment action. The Court held that the Defendant was not entitled to the affirmative defense because although the employer had a sexual harassment policy, it was not provided to all employees, including the Plaintiff and the supervisor. Also, the policy did not guarantee that the harassing supervisor could be bypassed when filing a complaint. The Defendant did not exercise reasonable care to prevent the supervisor's harassing conduct.

Oncale v. Sundowner Offshore Services, Inc., (US, 1998),

the US Supreme Court held that the "severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position." The case arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male co-workers with the acquiescence of his employer. Offshore Services set the precedent for analyzing same-sex harassment and sexual harassment without motivation of "sexual desire" by stating that any discrimination based on sex is actionable if it places the victim in an objectively-disadvantageous working condition, regardless of the gender of the victim or the harasser.

Employers can also be held liable for national origin harassment under Title VII by coworkers or non-employees if:

the employer knows or should have known about the harassment and failed to take immediate and appropriate corrective action. National origin harassment violates Title VII when it is so severe or pervasive that the employee reasonably finds the workplace to be hostile or abusive.

What is National Origin?

the fifth prohibited category in Title VII, but Title VII does not define "national origin."

The maximum amount of compensatory & punitive damages depends on:

the size of the employer (number of employees). The maximum amount of compensatory & punitive damages allowed under Title VII for an employer with more than 500 employees is $300,000.

The employee must prove that the harassment was:

unwelcome, based on national origin, so severe that it altered the conditions of employment and created a hostile or abusive work environment, and there is a basis for holding the employer liable (i.e., if the harassment was permitted by a supervisory employee). *harassed employee need not be a member of a protected class.*

Interview questions

​cannot ask female applicants who have children if they have proper day care arrangements but not ask male applicants who have children the same question. cannot ask a female applicant if she plans on "starting a family" (i.e., getting pregnant) but not ask a male applicant the same question.