Employment and Labor , 9th Edition
Author:
Patrick J. Cihon; James Ottavio Castagnera
VBID:
9781305893597
CHAPTER6 Title VII of the Civil Rights Act
and Race Discrimination
6-1
Ideally, employers should hire those employees best qualified for the particular jobs being filled; an employee should be selected because of his or her ability to perform the job. Determining the qualifications required for the job, however, may be difficult. In fact, required qualifications that have no relationship to job performance may disqualify prospective employees who are capable of performing satisfactorily. In addition, some employers may be influenced in their selection of employees by their biases—conscious or unconscious— regarding certain groups of people. All of these factors are part of the problem of discrimination in employment.
Discrimination in employment, both intentional and unintentional, has been a major concern of many people who believe that our society has not lived up to its ideal of equality of opportunity for all people. The glaring inequities in our society sparked violent protests during the civil rights movement of the 1960s. African Americans, Hispanic Americans, and Native Americans constituted a disproportionate share of those living in poverty. Women of all races and colors found their access to challenging and well-paying jobs limited; they were frequently channeled into lower paying occupations traditionally viewed as “women’s work.”
Title VII of the Civil Rights Act of 1964
To help remedy these discrimination problems, Congress passed the Civil Rights Act of 1964, which was signed into law by President Lyndon Johnson on July 2, 1964. The Civil Rights Act was aimed at discrimination in a number of areas of our society: housing, public accommodation, education, and employment. Title VII of the Civil Rights Act deals with discrimination in employment. It became the foundation of modern federal equal employment opportunity (EEO) law.
Title VII has been amended several times since its passage; the amendments made in 1968, 1972, and 1991 were substantial. The 1991 amendments, made by that year’s Civil Rights Act, were intended to reverse several U.S. Supreme Court decisions that were perceived as making it more difficult for plaintiffs to bring suit under Title VII. Congress again amended Title VII in 2009 to reverse another Supreme Court decision dealing with the time limit for bringing pay-discrimination claims.
This part of our textbook focuses on the statutory provisions requiring equal opportunity in employment. This chapter deals with the provisions of Title VII, as they apply to discrimination based on race. Chapter 7 will discuss employment discrimination based on gender, including Title VII and other gender-related EEO legislation. Chapter 8 will discuss discrimination based on religion and national origin, the enforcement of Title VII, and the remedies available under it. Chapter 9 will discuss the Age Discrimination in Employment Act and EEO laws dealing with discrimination based on disability. Finally, Chapter 10 will focus on miscellaneous federal and state EEO legislation. 6-1a Coverage of Title VII Title VII of the Civil Rights Act of 1964 took effect on July 2, 1965. It prohibits the refusal or failure to hire any individual, the discharge of any individual, or the discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin. Title VII, as amended, applies to employers, labor unions, and employment agencies. An employer under Title VII is defined as a person, partnership, corporation, or other entity engaged in an industry affecting commerce that has 15 or more employees. In Walters v. Metropolitan Educational Enterprises, Inc.,1 the Supreme Court held that the “payroll method” is used to determine the number of employees for coverage of Title VII. This criterion requires that the employer have at least 15 employees on its payroll, whether they actually worked or not, for each working day of 20 or more calendar weeks in the current or preceding calendar year. According to the Supreme Court decision in Clackamas Gastroenterology Associates, P.C. v. Wells,2 common-law principles should have been applied in determining whether managing directors and/or physician-shareholders of professional corporations are employees for the purpose of determining coverage under Title VII. Such common-law principles include: • whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work; • whether, and to what extent, the organization supervises the individual’s work; • whether the individual reports to someone higher in the organization; • whether, and to what extent, the individual is able to influence the organization; • whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and • whether the individual shares in the profits, losses, and liabilities of the organization. The question of whether the employer meets the 15-employee requirement is an element of the plaintiff ’s claim for relief under the statute; an employer that fails to raise the issue during the trial cannot seek to raise it after the trial is completed.3
le VII. Subsequent legislation extended the coverage of Title VII to other federal employees: (1) The Congressional Accountability Act of 19954 extended the statute to the employees of the House of Representatives, the Senate, the Capitol Guide Service, the Capitol Police, the Congressional Budget Office, the Office of the Architect of the Capitol, the Office of the Attending Physician, and the Office of Technology Assessment; and (2) the Presidential and Executive Office Accountability Act5 extended coverage to the Executive Office of the President, the Executive Residence at the White House, and the official residence of the Vice President. Title VII does not apply to tax-exempt private membership clubs. The 1991 amendments to Title VII extended the coverage of the act to American employers that employ U.S. citizens abroad. Foreign corporations that are controlled by American employers are also covered with regard to the employment of U.S. citizens. For such employers, compliance with Title VII is not required if this compliance would force the employer to violate the law of the country where the workplace is located. The effect of this amendment was to overturn the Supreme Court decision in EEOC v. Arabian American Oil Co.6 Labor unions with at least 15 members or that operate a hiring hall are subject to Title VII. Unions are prohibited from discriminating in employment opportunities or status against their members or applicants on the basis of race, color, religion, gender, or national origin. Employment agencies violate Title VII by discriminating on prohibited bases in announcing openings, interviewing applicants, or referring applicants to employers. 6-1b Administration of Title VII Title VII is administered by the Equal Employment Opportunity Commission (EEOC), a five-member commission appointed by the president that works with the commission’s Office of General Counsel. The EEOC is empowered to issue binding regulations and nonbinding guidelines in fulfillment of its responsibility for administering and enforcing the act. Although the EEOC generally responds to complaints of discrimination filed by individuals, it can also initiate an action on its own if it finds a “pattern or practice” of discrimination in employment. The regulations and guidelines under Title VII require that employers, unions, and employment agencies post EEOC notices summarizing the act’s requirements. Failure to display such notices is punishable by a fine of not more than $100 per violation. The act further requires that those covered keep records relevant to the determination of whether unlawful employment practices have been, or are being, committed. Covered employers must maintain payroll records and other records relating to applicants and to employee promotion, demotion, transfer, and discharge.
The WORKING African American Workers Sue Mickey D’s for Race Discrimination On January 22, 2015, 10 former McDonald’s employees sued three Virginia locations of the fast-food giant. Nine black and one Hispanic plaintiff locked arms, alleging “rampant racial and sexual harassment” at store locations in Clarksville and South Boston, Virginia. Their complaint alleged a dozen employees of color were precipitously let go because they “didn’t fit the profile” that supervisors were seeking. They claim they were to “get the ghetto out of the store.” On other occasions, according to the federal court complaint, managers complained of “too many black people,” and administered discipline disparately. The high-profile lawsuit was dropped on McDonald’s at a time when the mega-franchise is already under fire for alleged mistreatment of its workers. According to Kendall Falls, organizing director of Fast Food Forward (http://strikefastfood.org), “This is a problem that goes far beyond these stores in Virginia—it’s a problem with McDonald’s business model itself when workers at the company have nowhere to turn.” The corporation for its part retorts that it can’t police behavior at every one of its thousands of outlets. The plaintiffs’ pleading counters that the home office controls “nearly every aspect of its restaurant operations.” But, litigant Pamela Marable claims, “The company told us to take our concerns to the franchise—the same franchise that just fired us!” She added, “McDonald’s closely monitors everything we do, from the speed of the drive-through line, to the way we smile and fold customers’ bags—but when we try to tell that we’re facing discrimination, they ignore us and say it’s not their problem.”
Source: Nadia Prupis, “Former McDonald’s Workers Sue Over Racial Discrimination, Sexual Harassment,” Common Dreams, January 22, 2015, available at http://www.commondreams.org /news/2015/01/22/former-mcdonalds-workers-sue-over-racial-discrimination-sexual-harassment.
6-1c Discrimination Under Title VII
Section 703 of Title VII states that it shall be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discrimi- nate against an individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” It should be clear from the wording of Section 703 that Title VII prohibits intentional discrimination in employment on the basis of race, color, religion, sex, or national origin. An employer who refuses to hire African Americans, or who will only hire women for cler- ical positions rather than for production jobs, is in violation of Title VII. Likewise, a union that will not accept Hispanic Americans as members, or that maintains separate seniority lists for male and female members, violates the act. Such intentional discrimination, called disparate treatment, means the particular employee is subject to different treatment because of that employee’s race, color, gender, religion, or national origin. In the years immediately following the passage of Title VII, some people believed that the act was intended to protect only minority or female employees. That idea was specifically rejected by the Supreme Court in the 1976 case of McDonald v. Santa Fe Trail Transportation Co.7 The case arose when three employees of a trucking company were caught stealing cargo from the company. Two of the employees, who were white, were discharged; the third, an African American, was given a suspension but was not discharged. The employer justified the difference in disciplinary penalties on the ground that Title VII protected the African American employee. The white employees filed suit under Title VII. The Supreme Court emphasized that Title VII protects all employees; every individual employee is protected from any discrimination in employment because of race, color, sex, religion, and national origin. The employer had treated the white employees differently because of their race, and the employer was therefore in violation of Title VII.
6-1d Bona Fide Occupational Qualifications (BFOQs)
Although Title VII prohibits intentional discrimination in employment, it does contain a limited exception that allows employers to select employees on the basis of gender, religion, or national origin when the employer can establish that being of a particular gender, religion, or national origin is a bona fide occupational qualification (BFOQ). To establish that a partic- ular characteristic is a BFOQ, the employer must demonstrate that business necessity—the safe and efficient operation of the business—requires that employees be of a particular gender, religion, or national origin. Employer convenience, customer preference, or coworker prefer- ence will not support the establishment of a BFOQ. Title VII recognizes BFOQs only on the basis of gender, religion, and national origin; the act provides that race and color can never be used as BFOQs. (BFOQs will be discussed in more detail in the next chapter.)
6-2
Unintentional Discrimination: Disparate Impact
It should be clear that intentional discrimination in employment on the basis of race, religion, gender, color, or national origin (the “prohibited grounds”), apart from a BFOQ, is prohibited, but what about unintentional discrimination? An employer may specify certain requirements
for a job that operate to disqualify otherwise capable prospective employees. Although the employer is allowed to hire those employees best able to do the job, what happens if the speci- fied requirements do not actually relate to the employee’s ability to perform the job but do have the effect of disqualifying a large proportion of minority applicants? This discriminatory effect of apparently neutral requirements is known as a disparate impact. Should the dispa- rate impact of such neutral job requirements be prohibited under Title VII?
DiScrimination UnDer title Vii
Disparate Treatment
Intentional discrimination in terms or conditions of employment
The employer intentionally treats employees or appli- cants differently because of their race, color, sex,* reli- gion,* or national origin*
* May be subject to BFOQ exception.
Disparate Impact
The discriminatory effect of apparently neutral employment criteria or selection devices; does not require intention to discriminate on the part of the employer
The employment criteria or selection device dispro- portionately disqualifies employees based on race, color, sex, religion, or national origin
Frequently, the neutral requirement at issue may be a test used by the employer to screen applicants for a job. Title VII does allow the use of employment testing. Section 703(h) provides, in part,
… [i]t shall not be an unlawful employment practice for an employer to give and 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 is used to discriminate because of race, color, religion, sex, or national origin.
The effect of that provision and the legality of using job requirements that have a disparate impact were first considered by the Supreme Court in the seminal case Griggs v. Duke Power Company.
CaSe 6.1 GriGGs v. Duke Power ComPany 401 U.S. 424 (1971)
Background Duke Power Company is an electrical utility company oper- ating in North Carolina. Prior to July 2, 1965, the effec- tive date of Title VII of the Civil Rights Act of 1964, the Company discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. African Americans were only employed in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four operating departments in which only whites were employed. Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position. In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any “inside” depart- ment (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting African Americans to the Labor Department in 1965, it instituted a requirement of having a high school diploma in order to transfer from the Labor Department to any other depart- ment. However, the white employees hired before the adop- tion of the high school diploma requirement continued to perform satisfactorily and achieve promotions in the various operating departments. The U.S. Census Bureau data from the 1960 census indicated that approximately 34 percent of white males in North Carolina had a high school diploma, compared to about 12 percent of African American males in North Carolina who had completed high school. The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfac- tory scores on two professionally prepared aptitude tests, as well as to have a high school education. However, employees with a high school diploma who had been hired prior to the adoption of the aptitude test requirements were still eligible for transfer to the four desirable departments from which African Americans had been excluded. In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests—the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. For the employees who took the tests, the pass rate for white employees was 58 percent, while the pass rate for African American employees was 6 percent. Griggs and a group of other African-American employees brought suit against Duke Power, alleging that the high school diploma requirement and the aptitude test require- ments violated Title VII because they made it more difficult for African-American employees to be promoted from the Labor Department, and had the effect of continuing the previous job segregation. The District Court had found that while the Company previously followed a policy of overt racial discrimination prior to the passage of Title VII, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and not retro- active, and therefore, the impact of prior discrimination was beyond the reach of the Act. On appeal, the U.S. Court of Appeals for the Fourth Circuit concluded that the intent of the employer should govern, and that in this case there was no showing of intentional discrimination in the company’s adoption of the diploma and test requirements. The Court of Appeals concluded there was no violation of the Act. Griggs then appealed to the U.S. Supreme Court. Burger, Chief Justice We granted the [appeal] in this case to resolve the question whether an employer is prohibited by … Title VII from requiring a high school education or passing of a standard- ized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites…. The objective of Congress in the enactment of Title VII … was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. The Court of Appeals’ opinion … agreed that, on the record in the present case, “whites register far better on the Company’s alternative requirements” than Negroes. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences … Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group…. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job- seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is prof- fered be one all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is busi- ness necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. On the record before us, neither the high school comple- tion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful perfor- mance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the work force. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. The promotion record of present employees who would not be able to meet the new criteria thus suggests the possi- bility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advance- ment within the Company…. The Court of Appeals held that the Company had adopted the diploma and test requirements without any “intention to discriminate against Negro employees.” We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unre- lated to measuring job capability. … Congress directed the thrust of the Act to the conse- quences of employment practices, not simply the motiva- tion. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question…. The Company contends that its general intelligence tests are specifically permitted by § 703(h) of the Act. That section authorizes the use of “any professionally developed ability test” that is not “designed, intended or used to discriminate because of race….” The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting § 703(h) to permit only the use of job-related tests. The administrative interpretation of the Act by the enforcing agency is entitled to great deference….Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the guidelines as expressing the will of Congress. … Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mecha- nisms controlling force unless they are demonstrably a reasonable measure of job performance…. Far from dispar- aging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. The judgment of the Court of Appeals … is reversed. Case Questions 1. What is the significance of the fact that Duke Power had intentionally discriminated against African Americans in hiring prior to the passage of Title VII? 2. Why did the high school diploma requirement and the aptitude tests requirement operate to disqualify African Americans from eligibility for transfer at a greater rate than whites? Explain your answer. 3. Why does the court say that the high school diploma requirement and the aptitude test requirements were “unrelated to measuring job capability”? 4. Does Title VII allow an employer to use applicants’ scores on professionally developed aptitude tests as criteria for hiring? Explain your answer. 5. What is the fable of the stork and the fox that Chief Justice Burger refers to? How does it relate to this case?
The Griggs case dealt with objective employment selection requirements—a high school diploma and passing two aptitude tests—but in Watson v. Fort Worth Bank & Trust,8 the Supreme Court held that a claim of disparate impact discrimination may be brought against an employer using a subjective employment practice, such as an interview rating. The plaintiff alleging a disparate impact claim must identify the specific employment prac- tice being challenged, and the plaintiff must offer statistical evidence sufficient to show that the challenged practice has a disparate impact on applicants for hiring or promotion because of their membership in a protected group.
6-2a Section 703(k) and Disparate Impact Claims
The 1991 amendments to Title VII added Section 703(k), which deals with disparate impact claims and requires that the plaintiff demonstrate that the employer uses a particular employment practice that causes a disparate impact on one of the bases prohibited by Title VII. If such a showing is made, the employer must then demonstrate that the practice is job related for the position in question and is consistent with business necessity. Even if the employer makes such a showing, if the plaintiff can demonstrate that an alternative employ- ment practice—one without a disparate impact—is available, and the employer refuses to adopt it, the employer is still in violation of the act. Section 703(k) states that a plain- tiff shall demonstrate that each particular employment practice that is challenged causes a disparate impact unless the plaintiff can demonstrate that the elements of the decision- making process are not capable of separation for analysis. If the employer demonstrates that the challenged practice does not have a disparate impact, then there is no need to show that the practice is required by business necessity. Work rules that bar the employment of individuals using or possessing illegal drugs are exempt from disparate impact analysis; such rules violate Title VII only when they are adopted or applied with an intention to discrimi- nate on grounds prohibited by Title VII.
If the employment practice at issue is shown to be sufficiently job related, and the plaintiff has not shown that alternative practices without a disparate impact are available, then the employer may continue to use the challenged employment practice because it is necessary to perform the job. Nothing in Title VII prohibits an employer from hiring only those persons who are capable of doing the job. The 1991 amendments to Title VII added Section 703(k)(2), which states that demonstrating that an employment practice is required by business necessity is not a defense to a claim of intentional discrimination under Title VII. Most of the cases dealing with disparate impact discrimination involve race, gender, or national origin discrimination, although the language of Section 703(k) is not limited to only those bases of discrimination.
The Uniform Guidelines on Employee Selection
How can a plaintiff demonstrate a claim of disparate impact? How can an employer demon- strate that a requirement is job-related? The Uniform Guidelines on Employee Selection Procedures,9 a series of regulations adopted by the EEOC and other federal agencies, provide some answers to those questions.
Showing a Disparate Impact
The Supreme Court held in Watson v. Fort Worth Bank & Trust that a plaintiff must “offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. In Wards Cove Packing Co. v. Atonio,10 the Supreme Court described one way to demonstrate that hiring practices had a disparate impact on nonwhites by comparing the composition of the employer’s work force with the composition of the labor market from which applicants are drawn:
The “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified … population in the relevant labor market.” It is such a comparison—between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs—that generally forms the proper basis for the initial inquiry in a disparate impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics—such as measures indicating the racial composition of “otherwise-qualified applicants” for at-issue jobs—are equally probative for this purpose.
The Uniform Guidelines, adopted before the Watson and Wards Cove decisions, set out another way to demonstrate the disparate impact of a job requirement. This procedure, known as the Four-Fifths Rule, compares the selection rates (the rates at which appli- cants meet the requirements or pass the test) for the various protected groups under Title VII. The Four-Fifths Rule states that a disparate impact will be demonstrated when the proportion of applicants from the protected group with the lowest selection rate (or pass rate) is less than 80 percent of the selection rate (pass rate) of the group with the highest selection rate.
For example, a municipal fire department requires that applicants for firefighter posi- tions be at least five feet, six inches tall and weigh at least 130 pounds. Of the applicants for the positions, 5 of 20 (25 percent) of the Hispanic applicants meet the requirements, while 30 of 40 (75 percent) of the white applicants meet the requirements. To determine whether the height and weight requirements have a disparate impact on Hispanics, the pass rate for Hispanics is divided by the pass rate for whites. Since 0.25/0.75 5 0.33, or 33 percent, a disparate impact according to the Four-Fifths Rule exists. Stating the rule in equation form, disparate impact exists when:
6-2b Validating Job Requirements The fire department must demonstrate that the height and weight requirements are job related in order to continue using them in selecting employees. The Uniform Guidelines provide several methods to show that the height and weight requirements are job related. The Uniform Guidelines also require a showing of a statistical correlation demonstrating that the require- ments are necessary for successful job performance. In our example, the fire department would have to show that the minimum height and weight requirements screen out those applicants who would be unable to perform safely and efficiently the tasks or duties of a firefighter. When the job requirements involve passing an examination, it must be shown that a passing score on the exam has a high statistical correlation with successful job performance. The Uniform Guidelines set out standards for demonstrating such a correlation (known as test validity) developed by the American Psychological Association. The standards may be classified into three types: content validity, construct validity, and criterion-related validity. Content Validity Content validity is a means of measuring whether the requirement or test actually evaluates abilities required on the job. The fire department using the height and weight requirements would have to show that the requirements determine abilities needed to do the job—that anyone shorter than five feet, six inches or weighing less than 130 pounds would be unable to do the job. That would be difficult to do, but to validate the requirements as job related, such a showing is required by the Uniform Guidelines. If the job of firefighter requires physical strength, then using a strength test as a selection device would be valid. (Height and weight requirements are sometimes used instead of a physical strength test, but they are much more difficult to validate than strength tests.) The strength test used to screen applicants should reflect the actual tasks of the job—for example, carrying large fire hoses while climbing a ladder. For the job of typist, a spelling and typing test would likely have a high content validity because these tests measure abilities actually needed on the job. A strength test for a typist, on the other hand, would have a low content validity rating because physical strength has little relationship to typing performance. The Uniform Guidelines set out statistical methods to demonstrate the relationship (if any) of the requirements to job performance. An employer seeking to validate such requirements must follow the procedures and conditions in the Uniform Guidelines. Construct Validity Construct validity is a means of isolating and testing for specific traits or characteristics that are deemed essential for job performance. Such traits, or constructs, may be based on observations but cannot be measured directly. For example, a teacher may be required to possess the construct “patience,” or an executive may be required to possess “leadership” or “judgment.” Such traits, or constructs, cannot be measured directly, but they may be observed based on simulations of actual job situations. The Uniform Guidelines set out procedures and methods for demonstrating that certain constructs are really necessary to the job and that means used to test for or identify these constructs actually do measure them. Criterion-Related Validity Criterion-related validity concerns the statistical correlation between scores received on tests (“paper-and-pencil” tests) and job performance. An employer who administers an
IQ test to prospective employees must establish that there is a high statistical correlation between successful performance on the test and successful performance on the job. That correlation may be established by giving the test to current employees and comparing their test scores with their job performance; the correlation coefficient so produced is then used to predict the job performance of other current or prospective employees taking the same test. The Uniform Guidelines provide specific procedures and require- ments for demonstrating the criterion-related validity of tests used for employment selec- tion. Failure to comply with the requirements of the Uniform Guidelines will prevent an employer from establishing that a test is job related. If the test has not been vali- dated, its use for employment purposes will violate Title VII if such a test has a disparate impact. Furthermore, a test validated for one group, such as Hispanic Americans, may have to be separately validated for one or more other groups, such as African Americans or Asian Americans.
CaSe 6.2 equal emPloyment oPPortunity Commission v. Dial CorP. 469 F.3d 735 (8th Cir. 2006) Facts:
A Dial plant located in Fort Madison, Iowa, produces canned meats. Entry-level employees at the plant are assigned to the sausage packing area, where workers daily lift and carry up to 18,000 pounds of sausage, walking the equivalent of four miles in the process. They are required to carry approximately thirty-five pounds of sausage at a time and must lift and load the sausage to heights between thirty and sixty inches above the floor. Employees who worked in the sausage packing area experienced a disproportionate number of injuries as compared to the rest of the workers in the plant. Dial implemented several measures to reduce the injury rate starting in late 1996. In 2000, Dial also instituted a strength test used to evaluate potential employees, called the Work Tolerance Screen (WTS). In this test, job applicants were asked to carry a thirty-five pound bar between two frames, approximately thirty and sixty inches off the floor, and to lift and load the bar onto these frames. The applicants were told to work at their “own pace” for seven minutes. An occupational therapist watched the process, documented how many lifts each applicant completed, and recorded her own comments about each candidate’s performance. Starting in 2001, the plant nurse, Martha Lutenegger, also watched and documented the process. Lutenegger reviewed the test forms and had the ultimate hiring authority. Women and men had worked together, doing the same jobs, in the sausage packing area for years. In the three years before the WTS was adopted, 46 percent of the new hires were women, but the number of female hires dropped to 15 percent after the WTS test was implemented. The percentage of women who passed the test decreased each year the TWS was used, with only 8 percent of the women applicants passing in 2002. Overall, 38 percent of female applicants passed, while 97 percent of the male applicants passed. While injuries among sausage workers declined consistently after 2000 when the WTS was adopted, the downward trend in injuries had begun in 1998 after the company had insti- tuted other measures to reduce injuries. Paula Liles applied to Dial in January 2000 and was one of the first applicants to take the WTS test. She was not hired, even though the occupational therapist admin- istering the WTS test told her that she had passed. Liles filed a discrimination complaint with the EEOC in August 2000. On September 24, 2002, EEOC brought this action on behalf of Liles and fifty-three other women who had applied to work at Dial and were denied employment after taking the WTS. The EEOC claimed that the use of the WTS test had an unlawful disparate impact on female applicants. At the trial, the EEOC presented an expert on indus- trial organization who testified that the WTS was signifi- cantly more difficult than the actual job that workers performed at the plant. He explained that although workers did 1.25 lifts per minute on average and rested between lifts, applicants who took the WTS performed six lifts per minute on average, usually without any breaks. He also testified that in two of the three years before Dial had implemented the WTS, the women’s injury rate had been lower than that of the male workers. EEOC’s expert also analyzed the company’s written eval- uations of the applicants and testified that more men than women were given offers of employment even when they had received similar comments about their perfor- mance on the WTS. EEOC also introduced evidence that the occupational nurse marked some women as failing despite their having completed the full seven- minute test. Dial presented an expert in work physiology, who testi- fied that in his opinion the WTS effectively tested skills which were representative of the actual job, and an indus- trial and organizational psychologist, who testified that the WTS measured the requirements of the job and that the decrease in injuries could be attributed to the test. Dial also called plant nurse Martha Lutenegger who testified that although she and other Dial managers knew the WTS was screening out more women than men, the decrease in inju- ries warranted its continued use. The trial court held that Dial was in violation of Title VII because the WTS had a discriminatory effect on female applicants, that Dial had not demonstrated that the WTS was a business necessity or shown either content or crite- rion validity, and that Dial had not effectively controlled for other variables that may have caused the decline in inju- ries, including other safety measures that Dial had imple- mented starting in 1996. Dial was ordered to pay back pay and benefits to the female applicants. Dial appealed to the U.S. Court of Appeals for the Eighth Circuit. Dial attacked the trial court’s findings of disparate impact, and claimed that it had proved that the WTS was a business necessity. Issue: Has Dial proven that use of the WTS to screen applicants for employment was a business necessity because it reduced the number of injuries in the sausage production area? Decision: In a disparate impact case, once the plaintiff establishes a prima facie case, the employer must then show the challenged practice 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 that there is a less discriminatory alternative available. Dial claimed that the WTS was shown by its experts to have both content and criterion validity. Under EEOCs Uniform Guidelines, “A content validity study should consist of data showing that the content of the selec- tion procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated.” Dial’s physiology expert testified that the WTS was highly representative of the actions required by the job. The trial court was persuaded by the testimony of the EEOCs expert in industrial organization “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. There was also evidence that in a testing environment where hiring is contingent upon test performance, applicants tend to work as fast as possible during the test in order to outperform the competition. Dial argued that the WTS had criterion validity because both overall injuries and strength-related injuries decreased dramatically following the implementation of the WTS. The Uniform Guidelines establish that crite- rion validity can be shown by “empirical data demon- strating that the selection procedure is predictive of or significantly correlated with important elements of job performance.” Despite Dial’s claims that the decrease in injuries showed that the WTS enabled it to predict which applicants could safely handle the strenuous nature of the work, the evidence showed that the sausage plant injuries started decreasing before the WTS was imple- mented. Moreover, the injury rate for women employees was lower than that for men in two of the three years before Dial implemented the WTS. The evidence did not require the district court to find that the decrease in injuries resulted from the implementation of the WTS instead of the other safety mechanisms Dial started to put in place in 1996. Dial also argued that the district court improperly gave it the burden to establish that there was no less discrimi- natory alternative to the WTS, instead of holding that the EEOC had the burden as part of the burden-shifting framework in disparate impact cases. Because Dial failed to demonstrate that the WTS was a business necessity, however, the EEOC never was required to show the pres- ence of a nondiscriminatory alternative. Part of the employ- er’s burden to establish business necessity is to demonstrate the need for the challenged procedure, and the court found that Dial had not shown that its other safety measures could not produce the same results. The Court of Appeals upheld the district court findings of a disparate impact on female applicants and that Dial had not shown that the WTS was required as business necessity. The court affirmed the trial court finding that Dial was liable for back pay and benefits.
6-3 Seniority and Title VII
Seniority, the length of service on the job, is frequently used to determine entitlement to employment benefits, promotions, or transfers, and even job security itself. Seniority systems usually provide that worker layoffs be conducted on the basis of inverse seniority; those with the least length of service, or seniority, are laid off before those with greater seniority. Seniority within a department may also be used to determine eligibility to transfer to a different department.
Seniority could have had a discriminatory effect when an employer, prior to the adop- tion of Title VII, refused to hire women or minority workers. If, after Title VII’s adoption, the employer did hire them, those workers would have enjoyed the least seniority. In the event of a layoff, the workers who lost their jobs would necessarily be women and minori- ties, whereas white males retained their jobs. The layoffs by inverse seniority thus had a disparate impact on women and minorities. Did this mean the seniority system is in viola- tion of Title VII, as in Griggs?
Section 703(h) of Title VII dealt with the problem by providing an exemption for bona fide seniority systems. That section still states, in part,
Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex or national origin.
Section 706(e)(2), added to Title VII by the 1991 amendments, addresses the time limits for a challenge to a seniority system that allegedly is used intentionally to discrimi- nate in violation of Title VII. According to that section, a claim may be filed after the alleg- edly discriminatory seniority system is adopted, after the plaintiff becomes subject to the seniority system, or after the plaintiff is injured by the application of the seniority system. Section 706(e)(2) was intended to reverse the Supreme Court decision in Lorance v. AT&T Technologies, Inc.,12 which held that the time limit for challenging a seniority system ran from the date on which the system was adopted, even if the plaintiff was not subjected to the system until five years later.
The other side of the “seniority coin” is manifested in employer decisions that appear to have ignored seniority, suggesting that the firm had an illegal motive for terminating long-timers. Here’s just such a case, decided by a U.S. Court of Appeals in 2015.
CaSe 6.3 Fuller v. eDwin B. stimPson Co. inC. —Fed. appx. —, 2015 wL 294112 (11th Cir. 2015)
Per Curiam
Elzie Fuller, III, an African-American male, appeals the district court’s grant of defendant Edwin B. Stimpson Company, Inc.’s (“Stimpson Co.”) motion for summary judgment as to Fuller’s claims alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–2(a), and the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10, arising out of his long-term employment with Stimpson and his termination in 2009 as part of a reduction in force (“RIF”). On appeal, Fuller argues that: (1) he estab- lished a prima facie case of race discrimination; and (2) the district court abused its discretion by denying his motion for reconsideration. After thorough review, we affirm…. First, we find no merit to Fuller’s race discrimination claim. Title VII provides that it is unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race …” 42 U.S.C. § 2000e–2(a)(1). The FCRA is modeled after Title VII, and claims brought under it are analyzed under the same framework, so FCRA claims do not need separate discus- sion and their outcome is the same as the federal claims. … In evaluating disparate treatment claims supported by circumstantial evidence, we use the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wilson, 376 F.3d at 1087. Under McDonnell Douglas, the plaintiff must initially establish a prima facie case, which generally consists of the following: (1) the plaintiff was a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) he was treated less favorably than similarly situated individuals outside his protected class. … “In order to satisfy the similar offenses prong, the comparator’s misconduct must be nearly identical to the plaintiff’s in order to prevent courts from second- guessing employers’ reasonable decisions and confusing apples with oranges.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001) (quotations omitted). In situations involving a reduction in force, a modified prima facie formulation may apply, which allows a case of discrimination to be established by presenting evidence showing, not dissimilar treatment, but that the employer intended to discriminate against the plaintiff in making the discharge decision. … To establish intent, a plaintiff must proffer evidence that the defendant (1) consciously refused to consider retaining the plaintiff because of his race or (2) regarded race as a negative factor in such consideration…. Executive Order 11246 prohibits federal contractors and subcontractors from discriminating in employment deci- sions on the basis of race, color, religion, sex, or national origin, and requires certain federal contractors and subcon- tractors to take affirmative action to ensure that an equal opportunity for employment is provided in all respects of their employment. Exec. Order No. 11246 § 202(1), 41
C.F.R. § 60–1.1 (1965); see also http://www.dol.gov/compli- ance/laws/comp-eeo.htm. It requires government contrac- tors and subcontractors to have in place an acceptable affirmative-action program that identifies problem areas. See 41 C.F.R. § 60–1.3 (including subcontractors in the definition of “contractor”); id. § 60–2.17 (listing required elements of affirmative action programs). In meeting this requirement, the contractor or subcontractor must “perform in-depth analyses of its total employment process to deter- mine whether and where impediments to equal employment opportunity exist.” Id. § 60–2.17(b). The contractor or subcontractor must evaluate, among other things,
1. The workforce by organizational unit and job group to determine whether there are problems of minority or female utilization (i.e., employment in the unit or group), or of minority or female distribution (i.e., placement in the different jobs within the unit or group);
2. Personnel activity (applicant flow, hires, terminations, promotions, and other personnel actions) to determine whether there are selection disparities; …
Affirmative-action programs must include an internal audit and reporting system that “[m]onitor[s] records of all personnel activity, including … terminations …, at all levels to ensure the nondiscriminatory policy is carried out.” Id. § 60–2.17(d). Executive Order 11246 has the force and effect of law….
Here, the district court did not err by concluding that Fuller failed to establish a prima facie case of race discrimina- tion. As for the four comparators Fuller identifies on appeal, only employee Jack Shuck was identified in Fuller’s motion for partial summary judgment as a comparator regarding atten- dance. In any event, Fuller was either late to work or left early on 57 occasions in 2008, whereas none of the four individuals identified here had more than 16 total late arrivals and early departures that year, so they are not valid comparators….
Moreover, the record does not support Fuller’s conten- tions that (1) the court granted summary judgment without considering the statistical evidence and Dr. Pearson’s anal- ysis, and (2) Dr. Pearson’s analysis supports a prima facie case of discrimination. Instead, the court determined that, despite any statistical analysis performed by Fuller’s expert, Dr. Pearson, the actual decisions made by Stimpson Co. refuted discriminatory intent. As the district court deter- mined, and the record revealed, the termination decisions that Stimpson Co. modified following a review of the Workforce Review spreadsheet—which listed all employees and their department, job classification, race, gender, age, and years of service, among other information—revealed that, if anything, being African-American was regarded as a positive factor in Stimpson Co.’s termination decisions.
Thus, Fuller failed to establish the requisite discriminatory intent for a prima facie case of discrimination in a RIF.
As for Fuller’s arguments that the statistical evidence and Fuller’s seniority bear on the issue of pretext, the district court did not need to reach the pretext step of the test since Fuller did not establish a prima facie case of race discrimi- nation…. In any event, Executive Order 11246 required Stimpson Co. to prepare the information contained in the Workforce Review spreadsheet, including its group- ings of employees by race. Therefore, the court properly concluded that Stimpson’s creation of the spreadsheet could not serve as evidence of discrimination or pretext. Without the Workforce Review spreadsheet, and considering Fuller’s poor attendance record in 2008, Fuller’s seniority alone does not establish the requisite discriminatory intent for a prima facie case of discrimination in a RIF…. Accordingly, the district court properly granted summary judgment as to Fuller’s race discrimination claim.
We are also unpersuaded by Fuller’s claim that the district court abused its discretion by denying his motion for reconsideration. A court may only grant a Rule 59 motion based on “newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). “[A] Rule 59(e) motion [cannot be used] to reliti- gate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Id. (brackets in original) (quotations omitted).
Here, the record shows that Fuller did not present any newly-discovered evidence or manifest errors of law or fact in his motion for reconsideration. In particular, he failed to point out errors in the district court’s original decision that would have changed its ultimate conclusion. Thus, the district court did not abuse its discretion in denying Fuller’s motion for reconsideration.
AFFIRMED. Case Questions
1. According to the company, why was the plaintiff selected to be part of the RIF?
2. Why did the court find the company’s articulation of a legitimate business reason for selecting the plaintiff to be part of the RIF persuasive?
3. Was there inferential evidence that race played no part in picking the plaintiff to be part of the RIF?
4. Do you think the court was wrong in refusing to give the plaintiff ’s seniority more weight than it did?
5. Why were the plaintiff ’s proffered “comparators” of no help to his case?
6-4 Mixed-Motive Cases Under Title VII
In Price Waterhouse v. Hopkins,13 the Supreme Court held that when a plaintiff shows that the employer has considered an illegal factor under Title VII (race, sex, color, religion, or national origin) in making an employment decision, the employer must demonstrate that it would have reached the same decision if it had not considered the illegal factor. According to the Supreme Court, if the employer can show this, the employer can escape liability under Title VII; that is, it will not have violated the statute.
The 1991 amendments to Title VII addressed this “mixed-motive” situation and partially overruled the Price Waterhouse decision. Section 703(m) now states that “an 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 prac- tice, even though other factors also motivated the practice.” That is, the employer violates Title VII when an illegal factor is considered, even though there may have been other factors also motivating the decision or practice. If the employer is able to show that it would have reached the same decision in the absence of the illegal factor, then the employer’s liability for remedy under Title VII is reduced under Section 706(g)(2)(B). Section 706(g)(2)(B), also added by the 1991 amendments, states that the employer is subject to a court order to cease violating Title VII and is liable for the plaintiff ’s legal fees but is not required to pay damages or to reinstate or hire the plaintiff. In Desert Palace, Inc. v. Costa,14 the Supreme Court held that a plaintiff need only “demonstrate” that the defendant used a prohibited factor (race, color, gender, religion, or natural origin) as one of the motives for an employment action. That demonstration can be made either by circumstantial evidence or direct evidence; the act does not require direct evidence to raise the mixed motive analysis under Section 703(m).
6-5 Retaliation Under Title VII
Section 704(a) of Title VII prohibits retaliation by an employer, union, or employment agency against an employee or applicant because that person has opposed any practice that
is prohibited by Title VII (known as the “opposition clause”) or because that person has taken part in or assisted any investigation, hearing, or proceeding under Title VII (known as the “participation clause”). To demonstrate a case of retaliation under Section 704(a), plaintiffs must demonstrate that:
(1) they were engaged in an activity or activities protected under Title VII;
(2) they suffered an adverse employment decision or action; and
(3) there was a causal link between the protected activity and the adverse employment decision.
The “protected activity” must be related to either the participation clause or the oppo- sition clause of Section 704. An employee who voluntarily cooperated with an employer’s internal investigation of a sexual harassment complaint was protected under the opposition clause of Section 704 even though she did not make a complaint to the employer or file a formal charge under Title VII; the Supreme Court held that her subsequent discharge by the employer violated Title VII, according to Crawford v. Metropolitan Govt. of Nashville & Davidson City.15 In Burlington Northern & Santa Fe Railroad Co. v. White,16 the U.S. Supreme Court held that retaliation under Title VII is not limited to ultimate employ- ment decisions such as promotion or termination, but rather includes any action that a reasonable employee would find to be materially adverse—such that it might dissuade a reasonable worker from making or supporting a charge under Title VII. Section 704(a) also protects former employees from retaliation, according to Robinson v. Shell Oil Company.17 In that case, an employer gave a former employee a negative reference because the employee had filed a Title VII charge against the employer; the Supreme Court ruled that giving the negative reference was retaliation in violation of Section 704(a).
The WORKING
Building Contractor Ignored Complaints of Racial Harassment and
Fired Black Employees in Retaliation, Federal Agency Charges
MEMPHIS, Tenn.–Skanska USA Building, Inc., a building contractor headquartered in Parsippany, N.J., will pay $95,000 to settle a racial harassment and retali- ation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to the EEOC’s suit, Skanska violated federal law by allowing workers to subject a class of black employees who were working as buck hoist operators to racial harassment, and by firing them for complaining to Skanska about the misconduct. Skanska served as the general contractor on the Methodist Le Bonheur Children’s Hospital in Memphis, where the incidents in this lawsuit took place. The class of black employees worked for C-1, Inc. Construction Company, a minority-owned subcontractor for Skanska. Skanska awarded a subcontract to C-1 to provide buck hoist operations for the construc- tion site and thereafter supervised all C-1 employees while at the work site.
The EEOC charged that Skanska failed to properly investigate complaints from the buck hoist operators that white employees subjected them to racially offensive comments and physical assault. The EEOC alleged that after Maurice Knox, one of the buck hoist operators, complained about having urine and feces thrown on him at the job site, Skanska cancelled its contract with C-1 Inc., and immediately fired all of its black buck hoist opera- tors. With assistance from the Memphis Minority Council’s president, Skanska reinstated the contract with C-1 and recalled the black buck hoist operators to work. The white employees, however, continued to subject the buck hoist operators to racial harass- ment on a daily basis.
The EEOC filed suit (EEOC v. Skanska USA Building, Inc., Civil Action No. 2:10-cv- 02717) in U.S. District Court for the Western District of Tennessee after first attempting to reach a pre-litigation settlement through its conciliation process.
During litigation, Skanska asserted that it did not employ the sub-contracted buck hoist operators. The U.S. District Court for the Western District of Tennessee ruled in favor of Skanska, granting summary judgment. After the EEOC appealed, the U.S. Court of Appeals for the Sixth Circuit reversed the ruling and remanded the case. The Sixth Circuit acknowledged that it had not previously applied the joint employer theory in a Title VII case. According to the joint employer theory, two separate entities are considered to be joint employers if they share or co-determine essential terms and conditions of employ- ment. The Sixth Circuit adopted the joint employer theory in the Title VII context and held that there was sufficient evidence to hold Skanska liable as a joint employer because Skanska supervised and controlled the day-to-day activities of the buck hoist operators.
Besides the $95,000 in monetary relief, the three-year consent decree settling the lawsuit enjoins Skanska from subjecting employees to racial harassment or retaliating against any employee who lodges a discrimination complaint. The consent decree also requires defendant to provide in-person training on race discrimination and retaliation, maintain records of any complaints of racial harassment, and provide annual reports to the EEOC. Knox intervened in the EEOC’s lawsuit and settled his claim separately for an undisclosed amount.
6-6 Affirmative Action and Reverse Discrimination
Affirmative action has been an extremely controversial and divisive legal and political issue since Title VII was enacted in 1964. Critics of affirmative action argue that it bene- fited individuals who were not, themselves, victims of illegal discrimination, and operated to discriminate against persons (usually white males) who were not personally guilty of illegal discrimination. Supporters argue that affirmative action is necessary to overcome the legacy of prior discrimination and that our society is still not free from racism and sexism.
Affirmative action programs in employment involve giving some kind of prefer- ence in hiring or promotion to qualified female or minority employees. Employees who are not members of the group being accorded the preference (usually white males) may therefore be at a disadvantage for hiring or promotion. Recall that McDonald v. Santa Fe Trail held that Title VII protected every individual employee from discrimination because of race, sex, color, religion, or national origin. Is the denial of preferential treat- ment to employees not within the preferred group (defined by race or sex) a violation of Title VII? Affirmative action programs by public sector employers raise legal issues under the U.S. Constitution as well as under Title VII: Does the affirmative action program violate the constitutional prohibitions against intentional discrimination contained in the Equal Protection Clause? The discussion of affirmative action in this chapter focuses mainly on affirmative action under Title VII. Chapter 11 will also discuss affirmative action under the Constitution.
Title VII does not require employers to enact affirmative action plans; however, the courts have often ordered affirmative action when the employer has been found in violation of Title VII. The courts have consistently held that remedial affirmative action plans—plans set up to remedy prior illegal discrimination—are permissible under Title VII because such plans may be necessary to overcome the effects of the employer’s prior illegal discrimination.
But if the plan is voluntary and the employer has not been found guilty of prior discrimination, does it violate Title VII by discriminating on the basis of race or gender? In United Steelworkers of America v. Weber,18 the Court held that such voluntary plans do not necessarily run afoul of Title VII. Such a plan, the majority of justices held, comported philosophically with Title VII’s goals. Provided white workers were not absolutely barred from advancement and the plan did not unreasonably trammel their interests, it might pass legal muster.
The next case is a variation on this theme. Here, the Supreme Court considered a municipal employer’s decision to ignore the results of a promotional exam for its fire- fighters, because it believed that certifying the scores would have a disparate impact on African American test-takers. The question posed to the Court can be characterized as, “Could the city engage in the ad hoc affirmative action of disregarding the test results in order to avoid a perceived Title VII ‘disparate impact’ violation?”
CaSe 6.4
riCCi v. DesteFano
557 U.S. 557 (2009)
Facts: New Haven, Connecticut, used objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results— and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and city officials, alleging that discarding the test results discriminated against them based on their race in violation of Title VII. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.
Issue: Did the City’s affirmative action of discarding the test results amount to disparate treatment of the successful white and Hispanic test-takers on the basis of race and in violation of Title VII?
Decision: The Supreme Court explained that under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis began with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrated that the City rejected the test results because the higher-scoring candidates were white. Without some other justification, this express, race-based decision making was prohibited. The question, therefore, was whether the purpose to avoid disparate-impact liability excused what otherwise would be prohibited disparate-treatment discrimination.
The Court majority did not find such an excuse. The problem for the City, said Justice Kennedy’s majority opinion, was that showing a significant statistical disparity between white and black test-takers, standing on its own, was not a solid enough basis for tossing the tests. That, he continued, is because the City could be liable for disparate- impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record before the Court, there was no substantial basis in the evidence that the test was deficient in either respect.
The Court in Ricci ruled that an employer must have solid evidence that it would be breaking the law, if it operationalized the results of a race-neutral promotion exam. A signif- icant statistical disparity between how the two races performed on the assessment, standing alone, was not deemed to be sufficient to carry the day. So, just when is an employer justi- fied in initiating a voluntary affirmative action program? What kind of evidence must the employer demonstrate to support the adoption of the affirmative action plan? What evidence must an individual who alleges discriminatory treatment by an employer acting pursuant to an affirmative action program demonstrate to establish a claim under Title VII?
In Johnson v. Transportation Agency, Santa Clara County, California,19 the U.S. Supreme Court held that an employer can justify the adoption of an affirmative action plan by showing that “a conspicuous … imbalance in traditionally segregated job categories” exists in its work force. A plaintiff challenging an employment decision based on an affirma- tive action plan has the burden of showing that the affirmative action plan is not valid. In Johnson, the Court upheld the legality of an affirmative action plan that granted a relative preference to women and minorities in hiring for positions in traditionally male-dominated jobs. The fact that the employer’s plan had no definite termination date was not a problem, according to the court, because it did not set aside a specific number of positions. The plan used a flexible, case-by-case approach and was designed to attain a more balanced work force. The affirmative action plan, therefore, met the criteria set out in Weber: It furthered the purposes of Title VII by overcoming a manifest imbalance in traditionally segregated job categories, and it did not “unnecessarily trammel” the interests of the nonpreferred employees.
Both Ricci and Johnson involved suits under Title VII. When considering the legality of affirmative action programs under the U.S. Constitution, the approach used by the courts is slightly different from the approach used in Title VII cases. In Wygant v. Jackson Board of Education20 and in Adarand Constructors, Inc. v. Pena,21 the U.S. Supreme Court held that affirmative action plans by public sector employers must pass the strict scrutiny test under the U.S. Constitution. The strict scrutiny test, a two-part test, requires that (1) the affirmative action plan must serve a “compelling governmental interest,” and (2) it must be “narrowly tailored” to further that compelling interest. Although the language of the test for the legality of affirmative action under Title VII and the test under the Constitution is similar, the Supreme Court has emphasized that the tests are distinct and different. In two cases that dealt with the constitutionality of using affirmative action criteria for admissions to the University of Michigan, and not with employment, Grutter v. Bollinger22 and Gratz v. Bollinger,23 a majority of the Supreme Court held that achieving the educational benefits of a diverse student body was a compelling governmental interest.24 Those cases indicated that achieving the benefits of a diverse work force may be a sufficiently compelling govern- mental interest to justify the use of affirmative action programs for hiring or promotion decisions by public sector employers.
However, in 2013 the Supreme Court considered the legality of the University of Texas–Austin’s policy of admitting the top 10 percent of all high school graduating classes. As the institution intended, this practice ensured the enrollment of a large number of students from minority-dominated school districts. The Court majority refrained from ruling on the legality of the scheme. Instead, it remanded the case to the U.S. Court of Appeals, instructing that the most rigorous standard of review—strict scrutiny—had to be applied to the university’s facially neutral admission policy.25 Many observers expected the lower court to reverse its earlier ruling in the university’s favor, given the tough test of legality dictated by the Supreme Court. To the contrary, in 2014, the U.S. Court of Appeals for the Fifth Circuit affirmed its ruling on the defendant’s favor.26 As this textbook went to press, the plaintiff’s petition for a second trip up to the Supreme Court had been filed and remained pending.
Meanwhile, it is important to note that in addition to being justified by a compelling governmental interest, the affirmative action program must also be narrowly tailored to achieve that purpose. The courts have held that affirmative action programs that give a rela- tive preference rather than an absolute one—race or gender is used as a “plus factor” rather than as the determinative factor—are narrowly tailored. Programs that are temporary and that will cease when the employer achieves a more diverse work force have also been held to be narrowly tailored. However, an affirmative action program that required laying off or firing nonminority employees was held to be unconstitutional in Wygant v. Jackson Board of Education.
The following case discusses the legality of an affirmative action plan under both Title VII and the Constitution.
CaSe 6.5
university anD Community ColleGe system oF nevaDa v. Farmer
113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied, 523 U.S. 1004 (March 9, 1998)
Background
Between 1989 and 1991, only one percent of the University of Nevada’s full-time faculty were black, while eighty-seven to eighty-nine percent of the full-time faculty were white; twenty-five to twenty-seven percent of the full-time faculty were women. In order to remedy this racial imbalance, the University instituted the “minority bonus policy,” an unwritten amendment to its affirmative action policy which allowed a department to hire an additional faculty member following the initial placement of a minority candidate.
In 1990, the University advertised for an impending vacancy in the sociology department. The announcement of the position vacancy emphasized a need for proficiency in social psychology and mentioned a salary range between $28,000.00 and $34,000.00, dependent upon experience and qualifications. The University’s hiring guidelines require departments to conduct more than one interview; however, this procedure may be waived in certain cases. Yvette Farmer was one of the three finalists chosen by the search committee for the position but the University obtained a waiver to interview only one candidate, Johnson Makoba, a black
African male emigrant. The department chair recalled that the search committee ranked Makoba first among the three finalists. Because of a perceived shortage of black Ph.D. candidates, coupled with Makoba’s strong academic achieve- ments, the search committee sought approval to make a job offer to Makoba at a salary of $35,000.00, with an increase to $40,000.00 upon completing his Ph.D. This initial offer exceeded the advertised salary range for the position; even though Makoba had not accepted any competing offers, the University justified its offer as a method of preempting any other institutions from hiring Makoba. Makoba accepted the job offer. Farmer was subsequently hired by the University the following year; the position for which she was hired was created under the “minority bonus policy.” Her salary was set at $31,000.00 and a $2,000.00 raise after completion of her dissertation.
Farmer sued the University and Community College System of Nevada (“the University”) claiming violations of Title VII of the Civil Rights Act, the Equal Pay Act and for breach of an employment contract. Farmer alleged that despite the fact that she was more qualified, the University
hired a black male (Makoba) as an assistant professor of sociology instead of her because of the University’s affirma- tive action plan. After a trial on her claims, the trial court jury awarded her $40,000 in damages, and the University appealed to the Supreme Court of Nevada. The issue on appeal was the legality of the University’s affirmative action plan under both Title VII and the U.S. Constitution.
Steffen, Chief Justice
… Farmer claims that she was more qualified for the posi- tion initially offered to Makoba. However, the curriculum vitae for both candidates revealed comparable strengths with respect to their educational backgrounds, publishing, areas of specialization, and teaching experience. The search committee concluded that despite some inequalities, their strengths and weaknesses complemented each other; hence, as a result of the additional position created by the minority bonus policy, the department hired Farmer one year later….
The University contends that the district court made a substantial error of law by failing to enter a proposed jury instruction which would have apprised the jury that Title VII does not proscribe race-based affirmative action programs designed to remedy the effects of past discrimi- nation against traditionally disadvantaged classes. The University asserts that the district court’s rejection of the proposed instruction left the jury with the impression that all race-based affirmative action programs are proscribed….
Farmer … asserts that the University’s unwritten minority bonus policy contravenes its published affirma- tive action plan. Finally, Farmer alleges that all race-based affirmative action plans are proscribed under Title VII of the Civil Rights Act as amended in 1991; therefore, the University discriminated against her as a female, a protected class under Title VII.
Tension exists between the goals of affirmative action and Title VII’s proscription against employment practices which are motivated by considerations of race, religion, sex, or national origin, because Congress failed to provide a stat- utory exception for affirmative action under Title VII. Until recently, the Supreme Court’s failure to achieve a majority opinion in affirmative action cases has produced schizo- phrenic results….
United Steelworkers of America v. Weber is the seminal case defining permissible voluntary affirmative action plans [under Title VII]…. Under Weber, a permissible voluntary affirmative action plan must: (1) further Title VII’s statu- tory purpose by “break[ing] down old patterns of racial segregation and hierarchy” in “occupations which have
been traditionally closed to them”; (2) not “unnecessarily trammel the interests of white employees”; (3) be “a tempo- rary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” …
Most recently, in Adarand Constructors, Inc. v. Pena, the Supreme Court revisited [the issue of the constitution- ality of] affirmative action in the context of a minority set-aside program in federal highway construction. In the 5–4 opinion, the Court held that a reviewing court must apply strict scrutiny analysis for all race-based affirmative action programs, whether enacted by a federal, state, or local entity…. [T]he Court explicitly stated “that federal racial classifications, like those of a State, must serve a compel- ling governmental interest, and must be narrowly tailored to further that interest.” …
Here, in addition to considerations of race, the University based its employment decision on such criteria as educational background, publishing, teaching experience, and areas of specialization. This satisfies [the previous cases’] commands that race must be only one of several factors used in evaluating applicants. We also view the desirability of a racially diverse faculty as sufficiently analogous to the constitutionally permissible attainment of a racially diverse student body….
The University’s affirmative action plan conforms to the Weber factors [under Title VII]. The University’s attempts to diversify its faculty by opening up positions tradition- ally closed to minorities satisfies the first factor under Weber. Second, the plan does not “unnecessarily trammel the interests of white employees.” The University’s 1992 Affirmative Action Report revealed that whites held eighty- seven to eighty-nine percent of the full-time faculty posi- tions. Finally, with blacks occupying only one percent of the faculty positions, it is clear that through its minority bonus policy, the University attempted to attain, as opposed to maintain, a racial balance.
The University’s affirmative action plan … [also] passes constitutional muster. The University demonstrated that it has a compelling interest in fostering a culturally and ethni- cally diverse faculty. A failure to attract minority faculty perpetuates the University’s white enclave and further limits student exposure to multicultural diversity. Moreover, the minority bonus policy is narrowly tailored to accelerate racial and gender diversity. Through its affirmative action policies, the University achieved greater racial and gender diversity by hiring Makoba and Farmer. Of note is the fact that Farmer’s position is a direct result of the minority bonus policy. Although Farmer contends that she was more qualified for Makoba’s position, the search committee determined that Makoba’s qualifications slightly exceeded Farmer’s. The record, however, reveals that both candidates were equal in most respects. Therefore, given the aspect of subjectivity involved in choosing between candidates, the University must be given the latitude to make its own employment decisions provided that they are not discriminatory.
[The court then rejected Farmer’s claim that the 1991 amendments to Title VII prohibit affirmative action.]
… we conclude that the jury was not equipped to understand the necessary legal basis upon which it could reach its factual conclusions concerning the legality of the University’s affirmative action plan. Moreover, the undis- puted facts of this case warranted judgment in favor of the University as a matter of law. Therefore, even if the jury had been properly instructed, the district court should have granted the University’s motion for judgment notwith- standing the [jury’s] verdict. Reversal of the jury’s verdict on the Title VII claim is therefore in order.
The University … has adopted a lawful race-conscious affirmative action policy in order to remedy the effects of a manifest racial imbalance in a traditionally segregated job category….
The University has aggressively sought to achieve more than employment neutrality by encouraging its departments
to hire qualified minorities, women, veterans, and handi- capped individuals. The minority bonus policy, albeit an unwritten one, is merely a tool for achieving cultural diversity and furthering the substantive goals of affirmative action.
For the reasons discussed above, the University’s affirma- tive action policies pass constitutional muster. Farmer has failed to raise any material facts or law which would render the University’s affirmative action policy constitutionally infirm….
Young and Rose, JJ., concur. Springer, J., dissenting [omitted]
Case Questions
1. Why did the university adopt its affirmative action plan and the “minority bonus policy”?
2. How was Farmer injured or disadvantaged under the university’s affirmative action plan?
3. How does the Court here apply the Weber test for legality of affirmative action under Title VII to the facts of this case? Explain your answer.
4. According to the Court, how does the constitutional “strict scrutiny” test apply to the facts of the case here? Explain your answer
The affirmative action plan in the previous case was a voluntary plan; that is, it was not imposed upon the employer by a court to remedy a finding of illegal discrimination. The affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary plans. Title VII specifically mentions affirmative action as a possible remedy available under §706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,27 the Supreme Court held that Title VII permits a court to require the adoption of an affirmative action program to remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise28 upheld the constitutionality of a judicially imposed affirmative action program to remedy race discrim- ination in promotion decisions by the Alabama State Police.
Ethical DILEMMA
You are the human resource manager for Wydget Corporation, a small manu- facturing company. Wydget’s assembly plant is located in an inner-city neighbor- hood, and most of its production employees are African Americans and Hispanics,
as well as some Vietnamese and Laotians who live nearby. Wydget’s managers are white males who sometimes have difficulty relating to the production workers. The board of directors of Wydget is considering whether to establish a training program to groom production workers for management positions, targeting women and mi- norities in particular. The CEO has asked you to prepare a memo to guide the board of directors in its decision about the training program. Should you establish such a program? How can you encourage minority employees to enter the program with- out discouraging the white employees? What criteria should be used for determining admission into the training program? Address these issues in a short memo, explain- ing and supporting your position.
6-7 Other Provisions of Title VII
The 1991 amendments to Title VII added two other provisions to the act. One addresses the ability to challenge affirmative action programs and other employment practices that implement judicial decisions or result from consent decrees. Section 703(n) now provides that such practice may not be challenged by any person who had notice of such decision or decree and had an opportunity to present objections or by any person whose interests were adequately represented by another person who had previously challenged the judgment or decree on the same legal ground and with a similar factual situation. Challenges based on claims that the order or decree was obtained through fraud or collusion, is “transparently invalid,” or was entered by a court lacking jurisdiction are not prevented by Section 703(n).
The other added provision deals with the practice known as “race norming.” Race norming refers to the use of different cutoff scores for different racial, gender, or ethnic groups of applicants or adjusting test scores or otherwise altering test results of employ- ment-related tests on the basis of race, color, religion, sex, or national origin. Section 703(l) makes race norming an unlawful employment practice under Title VII.
CHAPTER7
Gender and Family Issues:
Title VII and Other Legislation
The preceding chapter introduced Title VII of the Civil Rights Act of 1964 and discussed its prohibitions on employment discrimination based on race. This chapter focuses on discrim- ination based on gender, family-related issues, and the relevant provisions of Title VII and other legislation.
7-1 Gender Discrimination
Title VII prohibits any discrimination in terms or conditions of employment because of an employee’s sex; it also prohibits limiting, segregating, or classifying employees or appli- cants in any way that would deprive individuals of employment opportunities or other- wise adversely affect their status as employees because of their sex. (While some people may argue that sex is a biological or physical construct and gender is a psychological and sociological construct, the courts have generally treated the terms “sex” and “gender” as interchangeable.) Title VII protects all individuals from employment discrimination based on sex or gender; this means both men and women are protected from sex discrimination in employment. Employers who refuse to hire an individual for a particular job because of that individual’s gender violate Title VII unless the employer can demonstrate that being of a particular gender is a bona fide occupational qualification (BFOQ) for that job. The act also prohibits advertising for male or female employees in help-wanted notices (unless it is a BFOQ) or maintaining separate seniority lists for male and female employees. Unions that negotiate such separate seniority lists or refuse to admit female members also violate Title VII.
7-1a
Dress Codes and Grooming Requirements
The act prohibits imposing different working conditions or requirements on similarly situ- ated male and female employees because of the employee’s gender. Some cases have involved employer dress codes and grooming standards. Employers need not have identical dress code or grooming requirements for men and women. For example, men may be required to wear a
necktie while women are not, Fountain v. Safeway Stores, Inc.1; men may be required to wear suits while women must wear “appropriate business attire,” Baker v. California Land Title Co.2; or women may be permitted to wear long hair while males are not permitted to have hair below the collar, Willingham v. Macon Tel. Publishing Co.3 The key is that the standards are related to commonly accepted social norms and are reasonably related to legitimate busi- ness needs; however, an employer who requires women to wear a uniform but has no such requirement for men violates Title VII, Carroll v. Talman Federal Savings & Loan Assoc.4
7-1b Gender as a BFOQ
As mentioned in Chapter 6, the act does allow employers to hire only employees of one sex, or of a particular religion or national origin, if that trait is a BFOQ; most BFOQ cases involve BFOQs based on gender. Section 703(e)(1), which defines the BFOQ exemption, states that
. . . it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. . . .
The statute requires that an employer justify a BFOQ on the basis of business neces- sity. In other words, the safe and efficient performance of the job in question requires that the employee be of a particular gender, religion, or national origin. Employer convenience, customer preference, or coworker preference is not sufficient to support a BFOQ. The additional costs to provide bathroom facilities for female workers was also not a sufficient basis to establish a BFOQ. What must an employer demonstrate to establish a claim of business necessity? The following case illustrates the approach taken by the courts when an employer claims a BFOQ based on gender.
CASE 7.1
AmbAt v. City And County of SAn frAnCiSCo
757 F.3d 1017 (9th Cir. 2014)
Facts: In October 2006, the San Francisco Sheriff ’s Department implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the county. Single-sex staffing
policies in correctional facilities are not new, and the court noted that it had considered before whether such polices violate Title VII by impermissibly discriminating on the basis of sex. [See Breiner v. Nevada Dep’t of Corr., 610 F.3d 1202 (9th Cir. 2010) (holding policy violated Title VII); Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998) (per curiam) (holding policy did not violate Title VII).]
The adoption of the policy coincided with SFSD’s plan to consolidate all of its female inmates within a single facility, County Jail 8 (“CJ8”). CJ8 had a “direct supervi- sion” design, meaning that its housing units, or “pods,” were composed of cells or sleeping bays arrayed around a central congregation space. Each pod had two tiers and between 56 and 88 beds. At the center of the pod was a podium from which a deputy could see into common areas and into the cells and sleeping bays. Each pod was staffed by two deputies, one of whom remain at the podium while the other made rounds. Female inmates filled some, but not all, of the available housing pods in CJ8. Even though CJ8 was not single-sex, all of its pods were single-sex. This was consistent with SFSD’s long-standing practice of segre- gating female and male inmates.
Although housing pods were single-sex, CJ8’s pod for inmates receiving medical or psychiatric care was not sex- segregated. Male deputies were not permitted under the Policy to work with female inmates in the housing pods; however, male deputies might be assigned to the mixed- sex medical pod or assigned to transport female inmates between CJ8 and other locations. Male deputies might also enter female housing pods in some circumstances, such as to assist with feeding female inmates.
According to San Francisco Sheriff Michael Hennessey, who had held his position since 1980, he adopted the policy for four reasons: (1) to protect the safety of female
inmates from sexual misconduct perpetrated by male depu- ties, (2) to maintain the security of the jail in the face of female inmates’ ability to manipulate male deputies and of the deputies’ fear of false allegations of sexual miscon- duct by the inmates, (3) to protect the privacy of female inmates, and (4) to promote the successful rehabilitation of female inmates.
Issue: Did the SFSD articulate a bona fide occupational qualification for its rule forbidding male guards from supervising female inmates?
Decision: The justifications offered by the county in support of the policy each spoke to extremely important concerns, according to the court, which added that “the Sheriff is to be commended for his attention to the welfare of female inmates in San Francisco’s jails.” However, continued the appellate judges, the fact that the policy sought to advance such important goals as inmate safety was not, by itself, sufficient to permit discrimination on the basis of sex. When moving for summary judgment, the county bore the heavy burden of showing that there were no genuine issues of material fact as to whether excluding male deputies because of their sex was a legitimate substitute for excluding them because they were actually unfit to serve in the female housing pods. On the record before the appeals court, the county had not made such a showing.
Therefore, the case was remanded to the trial judge for further proceedings to resolve the disputed facts identified in this decision.
ThE WORKING LAw Corps’ Top Leaders Address Lifting of Combat Exclusion Policy
Defense Secretary Leon E. Panetta officially announced the end of the 1994 Direct Ground Combat Definition and Assignment Rule excluding women from assignment to units and positions whose primary mission is to engage in direct ground combat,
Jan. 24. “This milestone reflects the courageous and patriotic service of women through more
than two centuries of American history and the indispensable role of women in today’s military,” said President Barack Obama.
Rescinding the exclusion opens about 237,000 positions to women Department of Defense-wide. Of the DoD total, 54,721 are Marine positions: 38,445 in combat-related military occupational specialties and 15,276 in assignments with ground combat units.
SgtMaj Micheal P. Barrett, the 17th Sergeant Major of the Marine Corps, addressed Marines in a video regarding the ending of the exclusion policy, stressing that the rescinding of this policy will not impair readiness, degrade combat effectiveness or cohesion.
“Our plan is deliberate, measured, and responsible,” he said. “We will not lower our standards.”
“The decision as to whether or not to do this has passed,” said Lt. Gen. Robert Milstead, the Deputy Commandant, Manpower and Reserve Affairs. “We are doing this the right way.
“Does this mean that we’re immediately going to open every MOS? No. MOSs like infantry, reconnaissance and Marine special operations will not be immediately opened.” For well over the past year, the Secretary of Defense has been working closely with the
Chairman of the Joint Chiefs of Staff, and all of the military service chiefs, to examine how to expand the opportunities for women in the armed services.
“It’s clear to all of us that women are contributing in unprecedented ways to the military’s mission of defending the nation,” Panetta said. “They’re serving in a growing number of critical roles on and off the battlefield. The fact is that they have become an integral part of our ability to perform our mission.”
Goals and milestones have been established by DoD to support of the elimination of unnecessary gender-based barriers to women’s service to provide the time necessary to institutionalize the changes and integrate women into occupational fields in a climate where they can succeed and flourish.
“As our Corps moves forward with this process, our focus will remain on combat readi- ness and generating combat-ready units while simultaneously ensuring maximum success for every Marine,” said Gen. James F. Amos, the 35th Commandant of the Marine Corps. “The talent pool from which we select our finest warfighters will consist of all qualified individuals, regardless of gender.”
7-1c Gender Stereotyping
If an employer refuses to promote a female employee because, despite her excellent perfor- mance, she is perceived as being too aggressive and unfeminine, has the employer engaged in sex discrimination in violation of Title VII? This question was addressed by the Supreme Court in the following case.
CASE 7.2
PriCe WAterhouSe v. Ann b. hoPkinS
490 U.S. 228 (1989)
[Ann Hopkins, a senior manager in an office of Price Waterhouse, was proposed for partnership in 1982. She was neither offered nor denied admission to the partner- ship; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued under Title VII of the Civil Rights Act of 1964, charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership. The trial court ruled in her favor on the question of liability, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed. Price Waterhouse then appealed to the U.S. Supreme Court, which granted certiorari to hear the appeal.]
Brennan, J.
At Price Waterhouse, a nationwide professional accounting partnership, a senior manager becomes a candidate for partnership when the partners in her local office submit her name as a candidate. All the other partners in the firm are then invited to submit written comments on each candidate—either on a “long” or a “short” form, depending on the partner’s degree of exposure to the candidate. Not every partner in the firm submits comments on every candidate. After reviewing the comments and interviewing the partners who submitted them, the firm’s Admissions Committee makes a recommendation to the Policy Board. This recommendation will be either that the firm accept the candidate for partnership, put her application on “hold,” or deny her the promotion outright. The Policy Board then decides whether to submit the candidate’s name to the entire partnership for a vote, to “hold” her candidacy, or to reject her. The recommendation of the Admissions Committee, and the decision of the Policy Board, are not controlled by
fixed guidelines: a certain number of positive comments from partners will not guarantee a candidate’s admission to the partnership, nor will a specific quantity of negative comments necessarily defeat her application. . . .
Ann Hopkins had worked at Price Waterhouse’s Office of Government Services in Washington, D.C. for five years when the partners in that office proposed her as a candidate for partnership. Of the 662 partners at the firm at that time, 7 were women. Of the 88 persons proposed for partnership that year, only 1—Hopkins—was a woman. Forty-seven of these candidates were admitted to the partnership, 21 were rejected, and 20—including Hopkins—were “held” for reconsideration the following year. Thirteen of the 32 part- ners who had submitted comments on Hopkins supported her bid for partnership. Three partners recommended that her candidacy be placed on hold, eight stated that they did not have an informed opinion about her, and eight recom- mended that she be denied partnership.
In a jointly prepared statement supporting her candidacy, the partners in Hopkins’ office showcased her successful 2-year effort to secure a $25 million contract with the Department of State, labeling it “an outstanding performance” and one that Hopkins carried out “virtually at the partner level.” . . . Judge Gesell specifically found that Hopkins had “played a key role in Price Waterhouse’s successful effort to win a multi-million dollar contract with the Department of State.” Indeed, he went on, “[n]one of the other partnership candi- dates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the part- nership.” The partners in Hopkins’ office praised her char- acter as well as her accomplishments, describing her in their joint statement as “an outstanding professional” who had a “deft touch,” a “strong character, independence and integrity.”
Clients appear to have agreed with these assessments. . . . Evaluations such as these led Judge Gesell to conclude that Hopkins “had no difficulty dealing with clients and her clients appear to have been very pleased with her work” and that she “was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked.”
On too many occasions, however, Hopkins’ aggressive- ness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of Hopkins’ brusqueness. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members. Although later evaluations indicate an improve- ment, Hopkins’ perceived shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the partners’ negative remarks about Hopkins—even those of partners supporting her—had to do with her “inter- personal skills.” Both “[s]upporters and opponents of her candidacy,” stressed Judge Gesell, “indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.”
There were clear signs, though, that some of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it[’]s a lady using foul language.” Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candi- dacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should “walk more femininely, talk more femi- ninely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
Dr. Susan Fiske, a social psychologist and Associate Professor of at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by sex stereotyping. Her testimony focused not only on the overtly sex-based comments of partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly, that were intensely critical of her. One partner, for example, baldly stated that Hopkins was “universally disliked” by staff, and another
described her as “consistently annoying and irritating”; yet these were people who had had very little contact with Hopkins. According to Fiske, Hopkins’ uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping. . . .
In previous years, other female candidates for partnership also had been evaluated in sex-based terms. As a general matter, Judge Gesell concluded “[c]andidates were viewed favor- ably if partners believed they maintained their femin[in]ity while becoming effective professional managers”; in this environment, “[t]o be identified as a ‘women’s lib[b]er’ was regarded as [a] negative comment.” In fact, the judge found that in previous years “[o]ne partner repeatedly commented that he could not consider any woman seriously as a part- nership candidate and believed that women were not even capable of functioning as senior managers—yet the firm took no action to discourage his comments and recorded his vote in the overall summary of the evaluations.”
Judge Gesell found that Price Waterhouse legitimately emphasized interpersonal skills in its partnership deci- sions, and also found that the firm had not fabricated its complaints about Hopkins’ interpersonal skills as a pretext for discrimination. Moreover, he concluded, the firm did not give decisive emphasis to such traits only because Hopkins was a woman; although there were male candidates who lacked these skills but who were admitted to partner- ship, the judge found that these candidates possessed other, positive traits that Hopkins lacked.
The judge went on to decide, however, that some of the partners’ remarks about Hopkins stemmed from an impermis- sibly cabined view of the proper behavior of women, and that Price Waterhouse had done nothing to disavow reliance on such comments. He held that Price Waterhouse had unlaw- fully discriminated against Hopkins on the basis of sex by consciously giving credence and effect to partners’ comments that resulted from sex stereotyping. Noting that Price Waterhouse could avoid equitable relief by proving by clear and convincing evidence that it would have placed Hopkins’ candidacy on hold even absent this discrimination, the judge decided that the firm had not carried this heavy burden. . . .
Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. . . . We take these words [of Title VII] to mean that gender must be irrelevant to employment deci- sions. . . . The critical inquiry, the one commanded by the words of Section 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words “because of do not mean “solely because of,” we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of sex and the other, legitimate considerations—even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account. . . .
. . . The central point is this: while an employer may not take gender into account in making an employment decision (except in those very narrow circumstances in which gender is a BFOQ), it is free to decide against a woman for other reasons . . . the employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to prevail, must persuade it on another.
. . . our assumption always has been that if an employer allows gender to affect its decision making process, then it must carry the burden of justifying its ultimate decision. . . .
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. . . .
As to the existence of sex stereotyping in this case, we are not inclined to quarrel with the District Court’s conclusion that a number of the partners’ comments showed sex stereo- typing at work. As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don’t. Title VII lifts women out of this bind.
Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. In any event, the stereo- typing in this case did not simply consist of stray remarks. On the contrary, Hopkins proved that Price Waterhouse invited
partners to submit comments; that some of the comments stemmed from sex stereotyping; that an important part of the Policy Board’s decision on Hopkins was an assessment of the submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations. This is not, as Price Waterhouse suggests, “discrimination in the air”; rather, it is, as Hopkins puts it, “discrimination brought to ground and visited upon” an employee. . . .
In finding that some of the partners’ comments reflected sex stereotyping, the District Court relied in part on Dr. Fiske’s expert testimony. . . .
Indeed, we are tempted to say that Dr. Fiske’s expert testimony was merely icing on Hopkins’ cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring “a course at charm school.” Nor, turning to Thomas Beyer’s memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee’s flawed “interpersonal skills” can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.
. . . Hopkins showed that the partnership solicited evalu- ations from all of the firm’s partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners’ comments were the product of stereo- typing; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins’ case or in the past. Certainly a plausible—and, one might say, inevitable— conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners’ comments, including the comments that were motivated by stereotypical notions about women’s proper deportment. . . .
. . . The District Judge acknowledged that Hopkins’ conduct justified complaints about her behavior as a senior manager. But he also concluded that the reactions of at least some of the partners were reactions to her as a woman manager. Where an evaluation is based on a subjec- tive assessment of a person’s strengths and weaknesses, it is simply not true that each evaluator will focus on, or even mention, the same weaknesses. Thus, even if we knew that Hopkins had “personality problems,” this would not tell us that the partners who cast their evaluations of Hopkins in sex-based terms would have criticized her as sharply (or criti- cized her at all) if she had been a man. It is not our job to review the evidence and decide that the negative reactions to Hopkins were based on reality; our perception of Hopkins’ character is irrelevant. We sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman. [The Supreme Court affirmed the trial court and court 2. of appeals’ decision that employment decisions based on sex stereotypes may constitute sex discrimination in violation of Title VII.]
How did the partners’ comments about Hopkins reflect gender stereotyping? What was the relevance of those comments? Does it matter that Price Waterhouse also had legitimate reasons for its reluctance to pro- mote Hopkins?
Case Questions
3. Does an employer action based upon mixed motives, some of which include sex or race discrimination, violate Title VII? What defenses can an employer offer under such circumstances?
1.
Was Hopkins qualified for promotion to partner? Explain your answer. What reasons did Price Waterhouse offer for its refusal to promote Hopkins to partner?
On remand from the Supreme Court, the district court in Hopkins found that Ann Hopkins had been a victim of sex discrimination and ordered that Price Waterhouse make her a partner.6 Following the Supreme Court decision in Price Waterhouse v. Hopkins, the federal courts of appeals have held that discrimination against a male employee with gender identity disorder because he did not conform to the employer’s expectations of how a male should act and behave was discrimination based on stereotypical gender norms and violated Title VII.7 In Nichols v. Azteca Restaurant Enterprises, Inc.8 the court held that abuse and ridicule by coworkers and managers directed at a male employee because he appeared effeminate and did not conform to a male stereotype was discrimination “because of sex” for the purposes of establishing a claim under Title VII.
The most recent “gender identity disorder” cases have involved transgender prisoners. In the 2015 case of Druley v. Patton9 for example, the plaintiff, an Oklahoma state pris- oner, sought a court order requiring the department of corrections to provide her with the hormone shots her sex change required, as well as provision of female undergarments. The court of appeals affirmed the trial court’s denial of an injunction, finding that the plaintiff ’s medical evidence was insufficient and that the defendant had articulated a rational relation- ship between its treatment of the plaintiff and legitimate penal requirements.
7-1d “Gender-Plus” Discrimination
An employer who places additional requirements on employees of a certain gender but not on employees of the opposite gender violates Title VII. For example, an employer who refuses to hire females having preschool-aged children but who does hire males with preschool-aged children is guilty of an unlawful employment practice under Title VII.10 Such discrimina- tion is known as gender-plus discrimination. The additional requirement (no preschool-aged children) becomes an issue only for employees of a certain gender (female). Because similarly situated employees (men and women both with preschool-aged children) are treated differ- ently because of their gender, the employer is guilty of gender discrimination.
Concept Summary 7.1
Gender discrimination
• Gender discrimination + Title VII prohibits discrimination because of sex
j Applies to both men and women + Examples of gender discrimination
j Advertising for male/female employees in help-wanted ads j Maintaining separate male/female seniority lists j Requiring dress codes that are not equally enforced
• Note that dress codes need not be identical for men and women + Exceptions
j If sex is a BFOQ for a job • Gender stereotyping
+ Occurs when a person is treated differently because he or she does not conform to the typical social norms expected of his or her gender
+ Examples of gender stereotyping j Overly aggressive women j Effeminate men
• Sex-plus discrimination + Occurs when a person is treated differently because of additional requirements beyond gender + Examples of gender-plus discrimination
j
Refusing to hire women with preschool-aged children, but hiring men with preschool-aged children
7-2 Gender Discrimination in Pay
Both Title VII and the Equal Pay Act apply to gender discrimination in pay. There is some overlap between Title VII and the Equal Pay Act, which was passed in 1963, a year before the passage of Title VII. There are also some differences in coverage, procedures, and reme- dies. This section discusses both the Equal Pay Act and the Title VII provisions relating to gender-based pay differentials.
7-2a The Equal Pay Act
The Equal Pay Act of 1963 requires that men and women performing substantially equal work be paid equally. The act does not reach other forms of gender discrimination or discrimination on grounds other than gender.
Coverage
The Equal Pay Act was enacted as an amendment to the Fair Labor Standards Act, which regulates minimum wages and maximum hours of employment. The Equal Pay Act’s coverage is therefore similar to that of the Fair Labor Standards Act. The act applies to all employers “engaged in commerce (interstate commerce),” and it applies to all employees of an “enterprise engaged in commerce.” Virtually all substantial business operations are covered.
The act also covers state and local government employees. The Congressional Accountability Act of 199511 extended the coverage of Fair Labor Standards Act, including the Equal Pay Act, to federal employees of these offices:
• House of Representatives • Senate • Capitol Guide Service • Capitol Police
• Congressional Budget Office • Office of the Architect of the Capitol • Office of the Attending Physician • Office of Technology Assessment
The Equal Pay Act coverage does not depend on a minimum number of employees. Hence, the act may apply to firms having fewer than the 15 employees required for Title VII coverage.
There are some exceptions to the coverage of the Equal Pay Act. These exceptions deal with operations that are exempted from the Fair Labor Standards Act. For example, certain small retail operations and small agricultural operations are excluded. Seasonal amusement operations and the fishing industry are also exempted from the act.
Provisions
The Equal Pay Act prohibits discrimination by an employer:
between employees on the basis of sex by paying wages to employees in such establishment 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.
A plaintiff claiming violation of the Equal Pay Act must demonstrate that the employer is paying lower wages to employees of the opposite sex who are performing equal work in the same establishment. Note that the act does not require paying equal wages for work of equal value, known as comparable worth. The act requires only “equal pay for equal work.” Work that is equal, or substantially equivalent, involves equal skills, effort, and responsibili- ties and is performed under similar working conditions.
Equal Work When considering whether jobs involve substantially equivalent work under the Equal Pay Act, the courts do not consider job titles, job descriptions, or job classifications
to be controlling. Rather, they evaluate each job on a case-by-case basis, making a detailed inquiry into the substantial duties and facts of each position.
Effort Equal effort involves substantially equivalent physical or mental exertion needed for performance of the job. If an employer pays male employees more than female employees because of additional duties performed by the males, the employer must establish that the extra duties are a regular and recurring requirement and that they consume a substantial amount of time. Occasional or infrequent assignments of extra duties do not warrant additional pay for periods when no extra duties are performed. The employer must also show that the extra duties are commensurate with the extra pay. The employer who assigns extra duties only to male employees may face problems under Title VII unless the employer can demonstrate that being male is a BFOQ for performing the extra duties. Unless the employer can make the requisite showing of business necessity to justify a BFOQ, the extra duties must be available to both male and female employees.
Skill Equal skill includes substantially equivalent experience, training, education, and ability. The skill, however, must relate to the performance of actual job duties. The employer cannot pay males more for possessing additional skills that are not used on the job. The act requires equal or substantially equivalent skills, not identical skills. Differences in the kinds of skills involved will not justify differentials in pay when the degree of skills required is substantially equal. For example, male hospital orderlies and female practical nurses may perform different duties requiring different skills, but if the general nature of their jobs is equivalent, the degree of skills required by each is substantially equal according to Hodgson v. Brookhaven General Hospital.12
Responsibility Equal responsibility includes a substantially equivalent degree of accou- ntability required in the performance of a job, with emphasis on the importance of the job’s obligations. When work of males and females is subject to similar supervisory review, the responsibility of males and females is equal. But when females work without supervision, whereas males are subject to supervision, the responsibility involved is not equal.
When considering the responsibility involved in jobs, the courts focus on the economic or social consequences of the employee’s actions or decisions. Minor responsi- bility such as making coffee or answering telephones may not be an indication of different responsibility. The act does not require identical responsibility, only substantially equiva- lent responsibility. For instance, if a male employee is required to compile payroll lists and a female employee must make and deliver the payroll, the responsibilities may be substan- tially equivalent.
Working Conditions The act requires that the substantially equivalent work be performed under similar working conditions. According to the 1974 Supreme Court decision in Corning Glass Works v. Brennan,13 working conditions include the physical surroundings and hazards involved in a job. Exposures to heat, cold, noise, fumes, dust, risk of injury, or poor ventilation are examples of working conditions. Work performed outdoors involves different working conditions from work performed indoors. Work performed during the night shift, however, is not under different working conditions from the performance of the same work during the day.
The Equal Pay Act does not reach pay differentials for work that is not substantially equal in skill, effort, responsibility, and working conditions.
7-2b Defenses Under the Equal Pay Act
Although a plaintiff may establish that an employer is paying different wages for men and women performing work involving equivalent effort, skills, responsibility, and working conditions, the employer may not be in violation of the Equal Pay Act because the act provides several defenses to claims of unequal pay for equal work. When the pay differ- entials between the male and female employees are due to a seniority system, a merit pay system, a productivity-based pay system, or “a factor other than sex,” the pay differentials do not violate the act.
Employers justifying pay differentials on seniority systems, merit pay systems, or produc- tion-based pay systems must demonstrate that the system is bona fide and applies equally to all employees. A merit pay system must be more than an ad hoc subjective determination of employees’ merit, especially if there is no listing of criteria considered in establishing an employee’s merit. Any such systems should be formal and objective to justify pay differentials.
The “factor other than sex” defense covers a wide variety of situations. A “shift differen- tial,” for example, involves paying a premium to employees who work during the afternoon or night shift. If the differential is uniformly available to all employees who work a particular shift, it qualifies as a “factor other than sex.” But if females are precluded from working the night shift, a night-shift pay differential is not defensible under the act. A training program may be the basis of a pay differential if the program is bona fide. Employees who perform similar work but are in training for higher positions may be paid more than those not in the training program. The training program should be open to both male and female employees unless the employer can establish that gender is a BFOQ for admission to the program. In Kouba v. Allstate Insurance Co.,14 the U.S. Court of Appeals for the Ninth Circuit held that using an employee’s prior salary to determine pay for employees in a training program was not precluded by the Equal Pay Act.
The following case is a good illustration of the court’s inquiry into the alleged equality of jobs involved in an Equal Pay Act complaint.
CASE 7.3
blACkmAn v. floridA dePt. of buSineSS And ProfeSSionAl regulAtion
— Fed. Appx. —, 2015 wL 689622 (11th Cir. 2015
acts: After starting as a typist for the DBPR in 1986, Jill Blackman worked her way up the organization in the Division of Pari–Mutuel Wagering. In 1998, she earned a bachelor’s degree in political science and a certificate in
public administration. Approximately four years later, she was promoted to her first management position in the DPMW as a Senior Management Analyst II. When her predecessor, Mr. Royal Logan, retired in 2006, Blackman was promoted to Bureau Chief of Operations. Upon being promoted, she received a 14% raise to a salary of approximately $57,700. Soon thereafter, she received a legislatively-mandated three percent raise, bringing her salary to approximately $59,500. In 2007, however, the state stopped providing legislatively-mandated annual raises, and Blackman’s salary remained static until January of 2012, when she received a 3.4% discretionary salary increase to $61,500.
In July of 2010, Blackman viewed a public website with state salary information and learned that the DBPR was paying her less than two male DPMW bureau chiefs and one of her male subordinates. Believing that the differences stemmed from gender discrimination, Blackman submitted a charge of discrimination to the Florida Commission on Human Relations and the Equal Employment Opportunity Commission. After receiving a right to sue letter from the EEOC, she filed a complaint in Florida state court. The DBPR removed the case to federal district court.
Blackman alleged that she was being paid less than five male employees on the basis of her gender in violation of Title VII and the Equal Pay Act, specifically: (1) Logan, the former Chief of Operations and her predecessor; (2) Steven Kogan, the Chief of Investigations; (3) Dewayne Baxley, the Chief Auditing Officer; (4) John Karr, the Regional Program Administrator and her subordinate; and (5) Joel White, a Special Projects Advisor to the DBPR Secretary. The district court granted summary judgment to the DBPR. It concluded that Blackman failed to establish a prima facie case of discrimination because her male colleagues, other than Logan, were not proper comparators under Title VII or the EPA due to differences in their job responsibilities and skill sets. In addition, the district court ruled that the DBPR had established legitimate, nondiscriminatory reasons for the pay disparities between Blackman and her male colleagues, including Logan.
Issue: Was the disparity between the plaintiff ’s salary and those of her alleged male counterparts a violation of the Equal Pay Act?
Decision: The court held, “We agree with the district court that Mr. Logan, Ms. Blackman’s predecessor as Chief of Operations, was a proper comparator under Title VII [and the EPA]. We also agree with the district court, however, that the DBPR provided legitimate, nondiscriminatory explanations for the salary differential between Mr. Logan and Ms. Blackman. First, the record indicates that Mr. Logan, who held a bachelor’s degree in business management and a master’s degree in management and supervision, had better qualifications for the position than Ms. Blackman, who only had a bachelor’s degree in political science. Second, and more importantly, Mr. Logan, unlike Ms. Blackman, benefitted from legislatively-mandated annual raises (which were gender-neutral) during his entire 13-year tenure as Chief of Operations. As a result, Mr. Logan, who was making a salary of $52,780 in 2000, was earning $72,000 at the time of his retirement in July of 2006.
“Ms. Blackman concedes that it was not discriminatory for her to make less than Mr. Logan when she first started as Chief of Operations. . . . Rather, she argues that her salary in 2012 should have come close to Mr. Logan’s 2006 salary, because his salary increased from $52,780 to $72,000 over the course of six years—approximately the same amount of time that Ms. Blackman held the same position. . . . But, as the DBPR correctly argues, Ms. Blackman’s salary would have been closer to Mr. Logan’s salary at retirement if Ms. Blackman had benefitted from annual legislatively mandated raises from 2007 to 2012. Indeed, had Ms. Blackman received these annual pay raises, as Mr. Logan did, she would have been making approximately $71,000 at the time she filed her complaint in 2012 (assuming a 3% annual increase). In short, the salary difference is a function of the annual raises (and compound interest) from which Mr. Logan benefited, and Ms. Blackman did not.”
7-2c Procedures Under the Equal Pay Act
The Equal Pay Act is administered by the Equal Employment Opportunity Commission (EEOC). Prior to 1979, it was administered by the Department of Labor, but in July 1979, the EEOC became the enforcement agency. The act provides for enforcement actions by individual employees (Section 16), or by the U.S. Secretary of Labor (Section 17), who has transferred that power to the EEOC.
There is no requirement that an individual filing a suit under the Equal Pay Act must file first with the EEOC. If the EEOC has filed a suit, it precludes individual suits on the
same complaint. An individual suit must be filed within two years of the alleged violation. An Equal Pay Act violation will be held to be continuing for each payday in which unequal pay is received for equal work.
In a case decided under Title VII, Ledbetter v. Goodyear Tire & Rubber Co.,15 a divided Supreme Court held that the receipt of individual paychecks reflecting a discriminatory performance evaluation system did not constitute a separate violation of Title VII but simply reflected the effects of the discriminatory evaluation system. The Ledbetter decision meant that an employee alleging sex discrimination in pay would have to file suit within 180 days (or, in some cases, 300 days) from the employer’s adoption of the discriminatory pay policies. If the employee did not become aware of the discriminatory pay practice or policy until a year or more after it was adopted, it was too late to file suit under Title VII. However, Ledbetter was overruled by legislation signed into law by President Obama in early 2009. The Lilly Ledbetter Fair Pay Act16 amended Title VII (and the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act) to provide that the time limit for filing suit alleging discrimination in pay begins either:
• when the discriminatory pay practice or policy is adopted;
• when the employee becomes subject to the discriminatory pay policy or practice; or
• when the employee is affected by the application of the discriminatory pay practice or policy.
The act makes it clear that each payment of wages, benefits, or other compensation (i.e., each time the employee receives the discriminatory pay) paid under the discrimina- tory pay practice or policy is a separate violation. Employees filing pay discrimination
suits under Title VII can recover back pay for up to two years prior to the date they filed a complaint with the EEOC.
7-2d Remedies
An individual plaintiff’s suit under the Equal Pay Act may recover the unpaid back wages due and may also receive an amount equal to the back wages as liquidated damages under the act. The trial court has discretion to deny recovery of the liquidated damages if it finds that the employer acted in good faith. An employer claiming to act in good faith must show some objective reason for its belief that it was acting legally.
The back pay recovered by a private plaintiff can be awarded for the period from two years prior to the suit. However, if the court finds the violation was “willful,” it may allow recovery of back pay for three years prior to filing suit. According to Laffey, a violation is willful when the employer was aware of the appreciable possibility that its actions might violate the act. A successful private plaintiff also is awarded legal fees and court costs.
The remedies available under a government suit include injunctions and back pay with interest. The act does not provide for the recovery of liquidated damages in a government suit. Unlike Title VII, the Equal Pay Act does not allow recovery of punitive damages. However, the potential recovery of liquidated damages for up to three years (in the case of willful violations) may offer recovery beyond that available under Title VII because of its limitations on punitive damages. Therefore, in certain cases, the remedies available under
the Equal Pay Act may exceed those recoverable under Title VII.
7-2e Title VII and the Equal Pay Act
As in Laffey, plaintiffs often file suit under both Title VII and the Equal Pay Act. Generally, conduct that violates the Equal Pay Act also violates Title VII. However, Title VII’s coverage extends beyond that of the Equal Pay Act.
An employer paying different wages to men and women doing the same job is violating the law unless the pay differentials are due to a bona fide seniority system, a merit pay system, a productivity-based pay system, or a “factor other than sex.” The Equal Pay Act prohibits paying men and women different rates if they are performing substantially equiv- alent work unless the difference in pay is due to one of the four factors just listed. Section 703(h) of Title VII also allows pay differentials between employees of different sexes when the differential is due to seniority, merit or productivity-based pay systems, or a factor other than sex. That provision of Section 703(h) is known as the Bennett Amendment.
The Equal Pay Act applies only when male and female employees are performing substantially equivalent work. Can Title VII be used to challenge pay differentials between men and women when they are not performing equal work? What is the effect of the Bennett Amendment?
In County of Washington v. Gunther,17 the Supreme Court held that the Bennett Amendment incorporates the defenses of the Equal Pay Act into Title VII. In other words, pay differentials due to a seniority system, merit pay system, productivity-based pay system, or a factor other than sex do not violate Title VII.
The Gunther case also held that Title VII prohibits intentional gender discrimination in pay even when the male and female employees are not performing equivalent work. In Gunther, the plaintiffs were able to establish a prima facie case of intentional discrimina- tion by the employer in setting pay scales for female employees. In Spalding v. University of Washington18 and A.F.S.C.M.E. v. State of Washington,19 the U.S. Court of Appeals for the Ninth Circuit held that a plaintiff bringing a Gunther-type claim under Title VII must establish evidence of intentional discrimination (known as disparate treatment). The court held that statistical evidence purporting to show gender-based disparate salary levels for female professors, standing alone, was not sufficient to establish intentional discrimination as required by Gunther.
Comparable Worth
Some commentators felt that the Gunther decision was, in effect, an endorsement of the idea of comparable worth—that is, that employees should receive equal pay for jobs of equal value. Notice that comparable worth is different from the equal-pay-for-equal-work requirements of the Equal Pay Act. The Supreme Court in Gunther emphasized that it was not endorsing comparable worth; it held simply that Title VII prohibited intentional discrimination on the basis of gender for setting pay scales. The courts of appeals have consistently maintained that Title VII does not require comparable worth standards. An employer need not pay equal wages for work of equal value as long as the pay differential is not due to intentional gender discrimination by the employer. In Lemons v. Denver,20 the U.S. Court of Appeals for the Tenth Circuit held that Title VII did not prohibit a public employer from paying public health nurses salaries based on the private sector wage rates for nurses, even though the public health nurses were paid less than the predominantly male jobs of garbage collector or tree trimmer. The employer was not guilty of gender discrimi- nation simply by following the “market,” even if the “market” wages for nurses reflected the effects of historical discrimination against women. Several states, however, have adopted laws requiring comparable worth pay for public sector employees.
While the comparable-worth theory has been largely debunked and rejected by American courts, the theory is alive and well elsewhere. For example, in 2014 the New Zealand Court of Appeal held that paying women in predominantly female occupations less than men in other occupations with similar skills and responsibilities may be a violation of that nation’s Equal Pay Act of 1972.21
7-2f Gender-Based Pension Benefits Women, on the average, live longer than men. Such differences in life expectancy are
used by actuaries in determining the premium and benefit levels for annuities purchased
by individuals. Gender-based actuarial tables used to determine premiums and benefits for pensions would require that women pay higher premiums to receive the same levels of benefits as men of the same age. Does an employer who uses gender-based actuarial tables to determine entitlement to pensions offered as an employment benefit violate Title VII? This question was addressed by the Supreme Court in the following case.
CASE 7.4
City of loS AngeleS v. mAnhArt
435 U.S. 702 (1978
As a class, women live longer than men. The Los Angeles Department of Water and Power [the Department] adminis- tered its own retirement, disability, and death benefit programs for its employees. Because women, as a class, live longer than men, the Department required its female employees to make larger contributions to its pension fund than its male employees. Upon retirement, male and female employees of the same age, seniority, and salary received the same monthly pension bene- fits, but before retirement the female employees were required to pay contributions to the pension fund that were 14.84 percent higher than those paid by males. This differential was based on actuarial mortality tables and the experience of the Department, which indicated that women on average live longer than men and thus would receive more retirement benefit payments. A group of female employees filed suit against the Department, alleging that the practice of making female employees pay higher contributions to receive equal benefits upon retire- ment violated Title VII. The trial court held for the employees, ruling that the Department’s practice was illegal sex discrimi- nation; upon appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed the trial court’s verdict. The Department then appealed to the U.S. Supreme Court.]
Stevens, J.
The Department . . . [contends] that . . . the differential in take-home pay between men and women was not discrimi- nation within the meaning of Section 703(a)(1) because it was offset by a difference in the value of the pension benefits provided to the two classes of employees . . . [and] in any event, the retroactive monetary recovery is unjustified. We consider these contentions in turn. . . .
It is now well recognized that employment decisions cannot be predicated on mere “stereotyped” impressions about the characteristics of males or females. . . . This case does not, however, involve a fictional difference between men and women. It involves a generalization that the
parties accept as unquestionably true: women, as a class, do live longer than men. The Department treated its women employees differently from its men employees because the two classes are in fact different. It is equally true, however, that all individuals in the respective classes do not share the characteristic that differentiates the average class repre- sentatives. Many women do not live as long as the average man and many men outlive the average woman. The ques- tion, therefore, is whether the existence or nonexistence of “discrimination” is to be determined by comparison of class characteristics or individual characteristics. A “stereotyped” answer to that question may not be the same as the answer which the language and purpose of the statute command.
The statute makes it unlawful “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.” [emphasis added] The statute’s focus on the individual is unambiguous. It precludes treatment of individuals as simply components of [a] racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.
That proposition is of critical importance in this case because there is no assurance that any individual woman working for the Department will actually fit the generaliza- tion on which the Department’s policy is based. Many of those individuals will not live as long as the average man. While they were working, those individuals received smaller paychecks because of their sex, but they will receive no compensating advantage when they retire.
It is true, of course, that while contributions are being collected from the employees, the Department cannot know which individuals will predecease the average woman.
Therefore, unless women as a class are assessed an extra charge, they will be subsidized, to some extent, by the class of male employees. It follows, according to the Department, that fairness to its class of male employees justifies the extra assessment against all of its female employees.
But the question of fairness to various classes affected by the statute is essentially a matter of policy for the legislature to address. Congress has decided that classifications based on sex, like those based on national origin or race, are unlawful. Actuarial studies could unquestionably identify differences in life expectancy based on race or national origin, as well as sex. But a statute that was designed to make race irrel- evant in the employment market, . . . could not reasonably be construed to permit a take-home pay differential based on a racial classification.
Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices which classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals. The generalization involved in this case illustrates the point. Separate mortality tables are easily interpreted as reflecting innate differences between the sexes; but a significant part of the longevity differential may be explained by the social fact that men are heavier smokers than women.
Finally, there is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance coverage. It is true that insurance is concerned with events that are indi- vidually unpredictable, but that is characteristic of many employment decisions. Individual risks, like individual performance, may not be predicted by resort to classifica- tions proscribed by Title VII. Indeed, the fact that this case involves a group insurance program highlights a basic flaw in the Department’s fairness argument. For when insurance risks are grouped, the better risks always subsidize the poorer risks. Healthy persons subsidize medical benefits for the less healthy; unmarried workers subsidize the pensions of married workers; persons who eat, drink, or smoke to excess may subsidize pension benefits for persons whose habits are more temperate. Treating different classes of risks as though they were the same for purposes of group insurance is a common practice that has never been considered inherently unfair. To insure the flabby and the fit as though they were equivalent risks may be more common than treating men
and women alike; but nothing more than habit makes one “subsidy” seem less fair than the other.
An employment practice which requires 2,000 indi- viduals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of the Act. Such a practice does not pass the simple test of whether the evidence shows “treat- ment of a person in a manner which but for the person’s sex would be different.” It constitutes discrimination and is unlawful unless exempted by the Equal Pay Act or some other affirmative justification. . . . The Department argues that the different contributions exacted from men and women were based on the factor of longevity rather than sex. It is plain, however, that any individual’s life expectancy is based on a number of factors, of which sex is only one. The record contains no evidence that any factor other than the employee’s sex was taken into account in calculating the 14.84 percent differential between the respective contribu- tions by men and women. We agree with Judge Duniway’s observation that one cannot “say that an actuarial distinc- tion based entirely on sex is ‘based on any other factor other than sex.’ Sex is exactly what it is based on.”
…
[W]e recognize that in a case of this kind it may be neces- sary to take special care in fashioning appropriate relief. . . . Although Title VII was enacted in 1964, this is apparently the first litigation challenging contribution differences based on valid actuarial tables. Retroactive liability could be devas- tating for a pension fund. The harm would fall in large part on innocent third parties. If, as the courts below apparently contemplated, the plaintiffs’ contributions are recovered from the pension fund, the administrators of the fund will be forced to meet unchanged obligations with diminished assets. If the reserve proves inadequate, either the expecta- tions of all retired employees will be disappointed or current employees will be forced to pay not only for their own future security but also for the unanticipated reduction in the contributions of past employees. . . .
[The practice of requiring female employees to pay more into the pension system in order to receive the same bene- fits upon retirement violated Title VII’s prohibition on sex discrimination in pay, but the Supreme Court directed that its decision would not have retroactive effect.]
So ordered.
Case Questions
1. What factors determine a person’s longevity? What fac- tors did the department’s pension plan take into consid- eration in determining premiums employees had to pay?
2. Does Title VII allow a “reasonable cost differential” de- fense to a charge of gender discrimination?
3. How can an employer comply with Manhart’s require- ment of equal treatment between male and female em- ployees for pensions? If women live longer than men, won’t men be paid less under a unisex pension? Would that violate Title VII? Explain
The Supreme Court noted in Manhart that it did not want to revolutionize the insurance industry. In the subsequent case of Arizona Governing Committee v. Norris,22 the Supreme Court held that a deferred compensation plan for state employees, adminis- tered by a private insurance company that used gender-based actuarial tables to determine monthly benefit payments, violated Title VII. The Court held that its ruling would apply prospectively only, not retroactively.
7-3 Pregnancy Discrimination
In General Electric v. Gilbert,23 the Supreme Court held that General Electric’s refusal to cover pregnancy or related conditions under its sick-pay plan, even though male-specific disabilities such as vasectomies were covered, did not violate Title VII. In response to the General Electric v. Gilbert decision, Congress passed the Pregnancy Discrimination Act of 1978, which amended Title VII by adding Section 701(k) to Title VII. Section 701(k) provides:
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 to their ability or inability to work. . . .
Simply stated, the amendment to Title VII requires that an employer treat a preg- nant employee the same as any employee suffering a non-pregnancy-related, temporary disability (unless, in a relatively rare instance, the employer can establish a BFOQ for pregnancy-related discrimination). If the employer’s sick-leave pay benefits cover temporary disabilities, it must also provide coverage for pregnancy-related leaves. In Newport News Shipbuilding and Dry Dock Co. v. EEOC,24 the Supreme Court held that an employer’s medical insurance plan covering 80 percent of the cost of hospital treatment for employees’ spouses or dependents, but which limited coverage of spouses’ pregnancy-related costs to
$500, was in violation of the pregnancy discrimination provisions of Title VII. Title VII required the employer to provide coverage for spouses’ pregnancy-related conditions equal to the coverage of spouses’ or dependents’ other medical conditions.
Employers who fire pregnant employees are clearly in violation of Title VII, as are employers who fire pregnant employees because of the assumption that the employees will likely be absent from work for lengthy periods.25 Discriminating against an employee who has had an abortion, or who is contemplating having an abortion, is also prohibited by Title VII.26 The act also prohibits discharging an employee because of her efforts to become pregnant by in vitro fertilization.27 An employer that transferred a successful sales representative to an undesirable sales territory because of her desire to start a family despite having several miscarriages was held to have violated Title VII in Goss v. Exxon Office Systems Co.28 The exclusion of prescription contraceptives from an employer’s otherwise comprehensive prescription drug plan has also been held to violate Title VII.29
7-3a Pregnancy and Hazardous Working Conditions
On-the-job exposure to harsh substances or potentially toxic chemicals may pose a hazard to the health of employees. The risk of such hazards may be greatly increased when preg- nant employees are exposed to them; the hazards may also affect the health of the fetus carried by the pregnant employee. An employer wishing to avoid potential health problems for female employees and their offspring may prohibit women of childbearing age from working in jobs that involve exposure to hazardous substances. Do such restrictions violate Title VII, or may they be justified as BFOQs?
The U.S. Supreme Court in U.A.W. v. Johnson Controls, Inc.30 held that the employ- er’s restrictions were gender discrimination in violation of Title VII. For an employer to establish a BFOQ would require showing that the employee’s pregnancy interfered with the employee’s ability to perform the job. The Court noted:
. . . women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job. . . . Johnson Controls’ professed moral and ethical concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents. . . . Johnson Controls has attempted to exclude women because of their reproductive capacity. Title VII (and the pregnancy discrimination amendments) simply do not allow a woman’s dismissal because of her failure to submit to sterilization.
7-4 The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA),31 signed into law by President Clinton in 1993, allows eligible employees to take up to 12 weeks unpaid leave in any 12 months because of:
• the birth, adoption, or foster care of a child;
• the need to care for a child, spouse, or parent with a serious health condition; or
• the employee’s own serious health condition makes the employee unable to perform functions of his or her job.
The FMLA was amended in 2008 and 2009 to allow employees to take up to 26 weeks’ leave to care for members of the armed forces and recent veterans who have a serious injury or illness, or 12 weeks’ leave to deal with situations arising from the fact that a child, spouse, or parent is called to active military duty or is deployed to a foreign country.
7-4a FMLA Coverage
The FMLA applies to private sector employers with 50 or more employees; public sector employers are covered without regard to the number of employees. Employees employed at work sites with less than 50 employees may still be covered if the employer employs at least 50 employees within 75 miles of the work site. In Hackworth v. Progressive Casualty Insurance Co.,32 the Department of Labor’s interpretation that the 75 miles should be measured in surface miles (using surface transportation over public streets and roads) rather than linear miles (“as the crow flies”) was upheld. In Nevada Dept. of Human Resources v. Hibbs,33 the Supreme Court held that the Eleventh Amendment of the Constitution does not grant the states immunity from suits for damages by employees under the FMLA.
Employees of covered employers are eligible for leave under the act if they have been employed by the employer for at least 12 months and have worked at least 1,250 hours of the 12-month period immediately preceding commencement of the leave. The employer may designate “key employees” who may be denied leave under the act; key employees are those whom it would be necessary for the employer to replace in order to prevent substantial and grievous economic injury to the operation of business. The employer must give written notice to key employees at the time such employees give notice of leave and may deny reinstatement to key employees who take leave. Key employees must be salaried employees and must be among the highest paid 10 percent of the employees at the work site. No more than 10 percent of the employees at a work site can be designated key employees.
7-4b Entitlement to Medical Leave Serious Health Condition
The regulations under the FMLA34 define a serious health condition as:
• an illness, injury, or condition that requires inpatient hospital care, or
• that lasts more than three days and requires continuing treatment by a health-care provider, or
• that involves pregnancy, or
• a long-term or permanently disabling health condition, or
• absences for receiving multiple treatments for restorative surgery, or
• for a condition that would likely result in a period of incapacity of more than three days if it were not treated.
An employee’s food poisoning that required one visit to a doctor but did not require hospi- talization was not a serious health condition under the FLMA, nor was a child’s ear infec- tion that lasted only one day and required only a single visit to the doctor. However, a child’s throat and upper respiratory infection that incapacitated the child for more than three days did qualify as a serious health condition under the FLMA.
Leave Provisions
The leave may be taken all at once, or in certain cases, intermittently, or the employee may work at a part-time schedule. An employee or the employer may choose to substitute paid leave such as vacation or sick leave for part or all of the FMLA leave if the employee is entitled to such paid leave. The employee’s ability to substitute paid leave is determined by the terms of the employer’s normal leave policy. Under certain circumstances, the employee may take the leave on an intermittent basis—that is, taking the leave in separate blocks of time or through a reduced work schedule for the employee. If the leave is for planned medical treatment, the employee must make a reasonable effort to schedule the medical treatment so not to unduly disrupt the employer’s operation. If both parents are employed by the same employer, the leave because of childbirth or to care for a sick child may be limited to a total of 12 weeks between both parents. The employee’s health benefits must be maintained during leave if the health coverage was provided to the employee before the leave; if the employee fails to return to work after the leave, the employer may recover the premiums it paid to maintain the employee’s health benefits. The employee has the right to return to the same or an equivalent position, and the leave cannot result in the loss of any benefit by the employee. In Ragsdale v. Wolverine World Wide, Inc.,35 the employer granted an employee a medical leave of 30 weeks, but the employer failed to notify the employee that the leave would count against the employee’s FMLA leave. According to a regulation under the FMLA, adopted by the Department of Labor, the employer’s failure to provide such a notice would require the employer to grant the employee an additional 12-week leave. The Supreme Court held that the regulation was invalid because it was contrary to the FMLA legislation and it went beyond the authority of the Secretary of Labor under the FMLA.
7-4c Military Leave Provisions
The 2008 National Defense Authorization Act36 amended the FMLA to allow employees to take up to 12 weeks of unpaid leave during a 12-month period for “qualifying exigen- cies” arising out of an employee’s spouse, child, or parent being on active duty service or deployed to a foreign country, or called to active-duty service as a member of the National Guard or Reserves. The amended FMLA also allows employees to take “military caregiver leave” of up to 26 weeks of unpaid leave to care a child, spouse, parent, or next of kin who is a current member of the armed forces (including the National Guard or Reserves) or a veteran within five years of discharge and who suffers a serious illness or injury. The 2010 National Defense Authorization Act again amended the FMLA; in 2013 the U.S. Department of Labor issued new regulations operationalizing these amendments. Along with the Final Rule, the Department of Labor issued a set of Frequently Asked Questions.
Why is the Department of Labor revising the Family and Medical Leave Act regulations?
A. The Department is revising the regulations to implement and interpret two statutory amendments to the Family and Medical Leave Act (FMLA): the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).
Q. How did the FY 2010 NDAA change the military leave entitlements?
A. The FY 2010 NDAA amended the FMLA’s military family leave provisions to expand the availability of military caregiver leave and qualifying exigency leave. The FY 2010 NDAA extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, including conditions that do not arise until after the veteran has left the military. The FY 2010 NDAA also expanded the definition of a serious injury or illness for both current servicemembers and veterans to include serious injuries or illnesses that result from a condition that existed before the servicemember’s active duty service and was aggravated by service in the line of duty on active duty.
In addition, the FY 2010 NDAA expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, in addition to the National Guard and Reserves. The FY 2010 NDAA also added the requirement that for all qualifying exigency leave the military member (National Guard, Reserves, Regular Armed Forces) must be deployed to a foreign country.
Q. How does the Final Rule change the military caregiver leave provisions?
A. Military caregiver leave entitles an eligible employee who is the spouse, parent, son, daughter, or next of kin of a covered servicemember with a serious illness or injury to take up to a total of 26 workweeks of unpaid, job-protected leave during any single 12-month period to care for the servicemember. Before the FY 2010 NDAA was enacted, military caregiver leave was limited to eligible employees who were the family members of current servicemembers with a serious injury or illness incurred in the line of duty on active duty. The Final Rule expands mili- tary caregiver leave to eligible employees who are the family members of certain
veterans with a serious injury or illness incurred or aggravated in the line of duty on active duty and that manifested before or after the veteran left active duty. The Final Rule expands the definition of serious injury or illness for a current service- member to include injuries or illnesses that existed prior to the servicemember’s active duty but were aggravated in the line of duty on active duty.
Q. Has the definition of a serious injury or illness for a current servicemember changed?
A. Yes. The Final Rule expands the definition of serious injury or illness for current servicemembers to include preexisting conditions that were aggravated by service in the line of duty on active duty.
Q. Have the medical certification requirements for military caregiver leave changed?
A. Yes. The Final Rule expands the list of health care providers who can provide a medical certification to support FMLA military caregiver leave to include health care providers who are not affiliated with the military. If a medical certification is obtained from a health care provider who is not affiliated with the military, the employer may request a second (or third) opinion from the employee. The Final Rule retains the provisions that healthcare certifications obtained from healthcare providers associated with the military may not be subject to second and third opinions. In either situation, employers are not permitted to request recertifications.
The Final Rule also allows eligible employees to submit a copy of a VASRD rating determination or documentation of enrollment in the Program of Comprehensive Assistance for Family Caregivers from the Department of Veterans’ Affairs to certify that the veteran has a serious injury or illness. However, if an employee submits such documents, the employee may still be required to provide additional information.
Q. How does the Final Rule change the qualifying exigency leave provisions?
A. Qualifying exigency leave entitles an eligible employee whose spouse, son, daughter, or parent is a military member on covered active duty to take unpaid, job-protected leave to address any of the qualifying exigencies listed in the regu- lations. Before the FY 2010 NDAA was enacted, qualifying exigency leave was limited to eligible employees whose family member was a military member of the National Guard and Reserves. The Final Rule implements the FY 2010 NDAA amendments expanding qualifying exigency leave to eligible employees with a spouse, son, daughter, or parent in the Regular Armed Forces on covered active duty. The Final Rule also includes a foreign country deployment requirement in the definition of covered active duty for both members of the Regular Armed Forces and members of the National Guard and Reserves.
In addition, the Final Rule adds a new category of qualifying exigency that allows employees to take qualifying exigency leave for certain activities related to the care of the military member’s parent who is incapable of self-care where those activities arise from the military member’s covered active duty. The Final Rule also increases the amount of time from five days to up to 15 calendar days that an eligible employee may take to spend with his or her military family member during the military member’s Rest and Recuperation leave.
CASE 7.5
novAk v. metroheAlth mediCAl Center
503 F.3d 572 (6th Cir. 2007)
Facts: Donna Novak was employed by MetroHealth Medical Center. MetroHealth maintained a “point- based” attendance policy that assigned points to employees based on the number of hours of unexcused absence. Employees were terminated if they accumulated 112 points during a twelve-month period (leave authorized under the FMLA was not included in the point total). Novak was absent from work a number of times in late March 2004. She called MetroHealth each day that she was absent to provide an explanation. Some absences were because she was experiencing back pain; others were because she was helping care for her eighteen-year-old daughter, Victoria, who had recently given birth. She said that her daughter was suffering from “postpartum depression” and that she had to help her care for the baby (Novak’s grandson).
Novak’s absences resulted in her accumulating more than 112 points, and she faced termination. She requested that MetroHealth grant her leave under the FMLA. Novak consulted a Dr. Patil about her back pain, but she had been treated by a Dr. Wloszek in the past. MetroHealth required Novak to submit a FMLA certification form that was to be completed by the physician of record, Dr. Wloszek, and not by Dr. Patil. Dr. Wloszek completed the form, but because she had not examined Novak since October 2003, Dr. Wloszek omitted information on the description of the medical facts and the likely duration of Novak’s condition. Novak then asked Boda, Wloszek’s assistant, to complete the remainder of the form and fax it to MetroHealth. MetroHealth questioned the authenticity of Dr. Wloszek’s certification forms, and contacted Dr. Wloszek, who told them that she completed the form based on secondhand information from Novak about her condition. Novak also submitted certification forms for her absences to help her daughter care for the baby.
On April 16, 2004, MetroHealth determined that Novak’s March absences did not qualify for the FMLA leave.
Her absences were not authorized and, as a result, MetroHealth terminated her employment. Novak filed suit against MetroHealth, alleging interference with her FMLA rights and retaliation under the FMLA. The trial court held that there was no basis for the FMLA claims, and dismissed them with prejudice. Novak appealed to the U.S. Court of Appeals for the Sixth Circuit.
Issue: Was Novak entitled to FMLA leave because of her back pain and/or her caring for her daughter and her grandson?
Decision: An employer may require an employee requesting FMLA leave to provide a doctor’s certification confirming the existence of a serious health condition. A doctor’s certification of a serious health condition is sufficient if it states:
• the date on which the serious health condition began; • the probable duration of the condition; • the appropriate medical facts within the health care
provider’s knowledge; and • a statement that the employee is unable to perform
her job duties.
An employer may show that the certification is invalid or inauthentic.
The court of appeals agreed that Novak’s certification forms from Dr. Wloszek were insufficient to establish the existence of a serious health condition for purposes of the FMLA. MetroHealth had established that the certification was unreliable and it acted reasonably in refusing to grant FMLA leave on that basis.
Novak also claimed that she was entitled to FMLA leave to care for her daughter, who was suffering from short-term postpartum depression. The FMLA permits an employee to take leave to care for a parent, spouse, or child suffering
from a serious health condition. However, the FMLA authorizes leave to care for a child eighteen years of age or older only if that child is “disabled” within the definition of the Americans with Disabilities Act. Because Novak did not establish that her adult daughter suffered from a disability, the FMLA did not authorize Novak’s leave to care for her. Novak offered evidence about her daughter’s difficulty
in caring for the baby and Novak’s need to help with the care of her grandchild. But the FMLA does not entitle an employee to take leave to care for a grandchild, only for a parent, spouse, or child.
The court of appeals held that Novak was not entitled to FMLA leave. The court therefore affirmed the dismissal of Novak’s FMLA claims.
7-4d Effect of Other s on the FMLA
The FMLA does not preempt or supersede any state or local law that provides for greater family or medical leave rights than those granted under the FMLA. In addition, employers are required to comply with any collective bargaining agreement or employee benefit program that provides for greater rights than those given under the FMLA.
7-4e State Legislation
The California Fair Employment and Housing Act requires employers to provide pregnant employees up to four months of unpaid pregnancy leave and to reinstate female employees returning from pregnancy leave to the job they held prior to the leave.
However, if the job is unavailable due to business necessity, the employer is required to make a good-faith effort to provide a substantially similar job. The California law does not require the employer to offer such treatment to employees returning from other temporary disability leaves. California Federal Savings and Loan, a California bank,
alleged that the California law violated the Pregnancy Discrimination Act because it required the employer to treat pregnant employees differently from other temporarily disabled employees. In California Federal Savings and Loan v. Guerra,37 the Supreme Court upheld the California law. The majority reasoned that the Pregnancy Discrimination Act amendments to Title VII were intended merely to create a minimum level of protection for pregnant employees that could be supplemented by state legislation as long as the state laws did not conflict with the terms or policies of Title VII. The Court also noted that the California law did not prevent employers from extending the right of reinstatement to employees on other temporary disability leaves; hence, the law did not require that preg- nant employees be treated more generously than nonpregnant employees on temporary disability leave.
ThE WORKING LAw
A Growing Number of Cities and States Mandate Paid Family Leave
In 2004, the state of California became the first state to provide for temporary paid fam- ily leave through the state’s disability insurance program. Workers who take time off to care for a seriously ill child, spouse, domestic partner, or who take time off to bond with
a newborn child, adopted child, or child placed through foster care are eligible for up to six weeks of “family temporary disability insurance benefits.” The worker must make a claim for the benefits with the state Disability Insurance Program and will begin receiving benefits after a seven-day waiting period. No more than six weeks of benefits may be received within any 12-month period. Workers who are already receiving unemployment compensation, state disability benefits, or any other temporary disability benefits under state or federal law are not eligible to receive family temporary disability insurance ben- efits. Workers who are entitled to a leave under the federal Family and Medical Leave Act or the California Family Rights Act must take the family temporary disability insurance leave at the same time as the leave under those laws.
In 2015, California, Rhode Island, and New Jersey lead the nation in offering broad paid family and medical leave insurance programs for their residents, with significant positive impacts. In addition, Ohio, Virginia, and Illinois offer paid parental leave for state employees, while Washington, D.C.; St. Paul and Brooklyn Park, Minnesota; St. Petersburg, Florida; San Francisco, California; Chicago, Illinois; and Austin, Texas offer these benefits for their municipal employees. The U.S. Department of Labor claimed, “Offering such benefits for municipal employees can help city government as an employer to attract and retain a talented workforce, maximizing efficiency and saving on hiring and turnover costs.”
7-5 Sexual Harassment
Sexual harassment is one of the most significant employment problems facing our society. It imposes significant costs on both employers and employees. Victims of sexual harassment may experience severe emotional anguish, physical and mental stress, frustration, humilia- tion, guilt, withdrawal and dysfunction in family and social relationships, medical expenses, loss of sick leave and vacation, and litigation costs. Employers suffer from absenteeism, higher turnover of employees, replacement and retraining costs, morale problems, losses in productivity, and of course, litigation expenses and damages.
The language of Title VII does not specifically mention sexual harassment, and in some early cases, the courts had difficulty determining whether sexual harassment was within the Title VII prohibition on gender discrimination. Now, however, the courts are clear on the position that sexual harassment is gender discrimination prohibited by Title VII. The EEOC has issued guidelines defining sexual harassment and declaring that sexual harassment constitutes gender discrimination in violation of Title VII. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or other verbal or phys- ical conduct of a sexual nature, where the employee is required to accept such conduct as a condition of employment; the employee’s response to such conduct is used as a basis for employment decisions such as promotion, bonuses, or retention; or such conduct unreason- ably interferes with the employee’s work performance or creates a hostile working environ- ment. The Title VII protections against sexual harassment apply to all individuals—both men and women—covered by Title VII. (Note that Title VII also prohibits harassment based on race, color, religion, or national origin.)
The EEOC Guidelines and the courts have recognized two general categories of sexual harassment: quid pro quo harassment and hostile environment harassment. In quid pro quo harassment, the employee’s response to the request for sexual favors is considered in granting employment benefits, such as a male supervisor promising a female employee that she will be promoted or receive a favorable performance rating if she sleeps with him. Such harassment was held to violate Title VII in Barnes v. Costle.38 In hostile environ- ment harassment, an employee may not suffer any economic detriment but is subjected to unwelcome sexual comments, propositions, jokes, or conduct that have the effect of inter- fering with the employee’s work performance or creating a hostile work environment. The Supreme Court held hostile environment sexual harassment was prohibited by Title VII in Meritor Savings Bank, FSB v. Vinson.39
EEOC Guidelines on sexual harassment
Section 1604.11 Sexual Harassment
(a) Harassment on the basis of sex is a violation of § 703 of Title VII.40 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 creat- ing an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged inci- dents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis.
(c) Applying general Title VII principles, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as “employer”) is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.
(d) With respect to conduct between fellow employees, an employer is respon- sible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.
(e) An employer may also be responsible for the acts of nonemployees with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
(f) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their rights and procedures for raising the issue of harassment under Title VII, and developing methods to sensitize all concerned.
(g) Other related practices: Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimi- nation against other persons who were qualified for but denied that employment op- portunity or benefit.
7-5a Quid Pro Quo Harassment To establish a case of quid pro quo harassment, a plaintiff must show five things:
• She or he belongs to a protected group • She or he was subject to unwelcome sexual harassment • The harassment was based on sex • Job benefits were conditioned on the acceptance of the harassment, and if appropriate, • There is some basis to hold the employer liable
The essence of quid pro quo harassment is that the employee’s submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or that submission to or rejection of such conduct by the employee is used as the basis for employment decisions affecting the employee.
The case of Tomkins v. Public Service Electric & Gas Co.41 is a classic example of quid pro quo sexual harassment. Tomkins was told by her male supervisor that she should have sex with him if she wanted him to give her a satisfactory evaluation and recommend her for promotion. When she refused, she was subjected to a demotion, negative evaluations, and disciplinary suspensions, and was ultimately fired. The U.S. Court of Appeals held that Title VII is violated when a supervisor makes sexual advances or demands toward a subor- dinate employee and conditions the employee’s continued employment or possible promo- tion on a favorable response to those advances or demands.
The EEOC Guidelines on sexual harassment also provide that when an employer rewards one employee for entering a sexual relationship, other employees denied the same reward or benefit may have a valid harassment complaint. In King v. Palmer,42 a supervisor promoted a nurse with whom he was having an affair rather than one of several more quali- fied nurses. The court held that the employer was guilty of gender discrimination against the superior nurses who were denied the promotion.
7-5b Hostile Environment Harassment
Unlike quid pro quo harassment, hostile environment harassment does not involve the conditioning of any job status or benefit on the employee’s response to the harassment. Rather, the unwelcome harassment has the effect of interfering with the employee’s work performance or creating a hostile work environment for the employee. Because no employ- ment consequences are conditioned on the employee’s response to the harassing conduct, some courts refused to hold that hostile environment harassment violated Title VII. The Supreme Court rejected that approach and upheld the EEOC Guidelines that declare hostile environment harassment to be sex discrimination in violation of Title VII in the case of Meritor. After that decision, the lower courts addressed the question of just how severe the harassing conduct has to be, and how hostile the work environment must become, before such harassment is found to violate Title VII. That issue was finally settled by the Supreme Court in the following decision.
CASE 7.6
hArriS v. forklift SyStemS, inC.
510 U.S. 17 (1993)
O’Connor, J.
Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift’s president. . . . [T]hroughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, “You’re a woman, what do you know” and “We need a man as the rental manager”; at least once, he told her she was “a dumbass woman.” Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’] raise.” Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendos about Harris’ and other women’s clothing.
In mid-August 1987, Harris complained to Hardy about his conduct; Hardy said he was surprised that Harris was offended, claimed he was only joking, and apologized. He also promised he would stop, and based on this assurance Harris stayed on the job. But in early September, Hardy began anew: While Harris was arranging a deal with one of Forklift’s customers, he asked her, again in front of other employees, “What did you do, promise the guy . . . some [sex] Saturday night?” On October 1, Harris collected her paycheck and quit.
Harris then sued Forklift, claiming that Hardy’s conduct had created an abusive work environment for her because of her gender. The [trial] Court found this to be a “close case,” but held that Hardy’s conduct did not create an abusive environment. The court found that some of Hardy’s comments “offended [Harris], and would offend the reasonable woman,” but that they were not “so severe as to be expected to seriously affect [Harris’] psychological well being.” [On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the trial court decision. Harris then appealed to the U.S. Supreme Court.] We granted certiorari to resolve a conflict among [the federal courts of appeals] . . . on whether conduct, to be actionable as “abusive work environment” harassment (no quid pro quo harassment issue is presented here), must “seriously
affect [an employee’s] psychological well-being” or lead the plaintiff to “suffer injury”. . . .
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employ- ment, because of such individual’s race, color, religion, sex, or national origin.” As we made clear in Meritor Savings Bank v. Vinson . . . this language “is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with “discriminatory intimidations, ridicule, and insult,” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environ- ment,” Title VII is violated. . . .
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. 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 discrimina- tory 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.
. . . We therefore believe the District Court erred in relying on whether the conduct “seriously affected plaintiff ’s psychological well-being” or led her to “suffer injury.” Such an inquiry may needlessly focus the factfinder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seri- ously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.
This is not, and by its nature cannot be, a mathemati- cally precise test. We need not answer today all the potential questions it raises, nor specifically address the EEOC’s new regulations on this subject . . . But we can say that 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 envi- ronment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
Forklift, while conceding that a requirement that the conduct seriously affect psychological well being is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environ- ment was not “intimidating or abusive to [Harris],” it did so only after finding that the conduct was not “so severe as to be expected to seriously affect plaintiff’s psychological
well-being” and that Harris was not “subjectively so offended that she suffered injury.” The District Court’s application of these incorrect standards may well have influenced its ulti- mate conclusion, especially given that the court found this to be a “close case.”
We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consis- tent with this opinion.
So ordered. Case Questions
1. How did the harassment directed against Harris affect her economically? How did the harassment directed against Harris affect her emotionally? Did it interfere with her work performance? Explain your answers.
2. How severe must hostile environment sexual harassment be before it violates Title VII?
3. Is the standard used to determine when sexual harassment becomes severe enough to create a hostile environment a subjective or an objective standard? Explain your answer.
Reasonable Person or Reasonable Victim?
In cases involving claims of hostile environment harassment, the courts have dealt with the question of which standard should be used to determine whether the challenged conduct was sufficiently severe and hostile. Most courts have used the “reasonable person” standard. That is, would a reasonable person find the conduct to be offensive and severe enough to create a hostile environment or to interfere with the person’s work performance? The EEOC issued a policy statement declaring that courts should also consider the perspective of the victim to avoid perpetuating stereotypical notions of what behavior was acceptable to persons of a specific gender.
In response to that, some courts adopted the “reasonable victim” or “reasonable woman” standard, recognizing that men and women were likely to perceive and react differently to certain behaviors. In Ellison v. Brady,43 the court held that the reasonable woman standard should be used to determine whether a series of unsolicited love letters sent to a female employee by a male coworker had the effect of creating a hostile work environment. Even when courts did adopt the reasonable woman standard, they empha- sized that the standard was not totally subjective but was to be based on whether an objective reasonable woman would find the conduct offensive or would have been detri- mentally affected.
The Supreme Court, although not specifically addressing the issue of whether to use the reasonable person or reasonable woman standard, used the reasonable person standard in Harris v. Forklift Systems, Inc.
7-5c Employer Liability for Sexual Harassment
The EEOC Guidelines state that employers are liable for sexual harassment by supervi- sory or managerial employees and may also be liable for harassment by coworkers or even nonemployees under certain circumstances. The Supreme Court in Meritor rejected the EEOC Guidelines’ position on employer liability for supervisors or managerial employees and instead held that employer liability should be determined according to traditional common-law agency principles; that is, was the harasser acting as an agent of the employer?
Agency Relationships
Whether an agency relationship is created is a question of fact to be determined on the specifics of a particular situation. Supervisors or managerial employees, acting in the course of their employment, are generally held to be agents of the employer; that is, they act with the actual, or apparent, authorization of the employer. An agency relationship can also be created by an employer’s acceptance of, tolerance of, acquiescence to, or after-the-fact ratifi- cation of an employee’s conduct, such as when the employer becomes aware of harassment and fails to take action to stop it.
Employer Liability for Supervisors
When is an employer liable under Title VII for sexual harassment by a supervisor or mana- gerial employee? The courts have consistently held an employer liable for quid pro quo sexual harassment by a manager or supervisor because such conduct is related to the super- visor’s or manager’s job status. But courts have differed over holding an employer liable for hostile environment harassment by a supervisor or manager. Some courts held an employer liable only when the harassment was somehow aided by the supervisor’s job status, while other courts held that the employer was liable when it knew or should have known of the harassment. The U.S. Supreme Court settled the issue of employer liability for hostile environment harassment by a supervisor or manager in Faragher v. City of Boca Raton.44 Subsequent to that decision, the EEOC issued a question-and-answer document to guide employers seeking to insulate themselves from vicarious liability.
Concept Summary 7.5
liability For sexual harassment
• Employer liability + Employers are liable for employees acting in the course of their employment, including:
j Managerial/supervisors j Coworkers—if the employer knows or should have known about the harassment and fails to take action to
stop it
j Nonemployees—if the employer knows or should have known about the harassment and fails to take action to stop it
• Individual liability + Individual harassers are not liable for damages under Title VII + Individuals may face damages under certain state EEO laws or common-law tort claims + Public employees may also be subject to criminal prosecution
7-5d Employer Responses to Sexual Harassment Claims Employers have several defenses to raise against claims of sexual harassment. Prevention is
probably the best defense to stop sexual harassment before any legal problems develop.
Prevention
As the Supreme Court decision in Faragher stated, the best way for an employer to avoid liability for sexual harassment is to take active steps to prevent it. Both the EEOC Guidelines and the Supreme Court emphasize the importance of having a policy against sexual harass- ment and of following that policy whenever a complaint arises. According to the EEOC Guidelines and court decisions, the sexual harassment policy should define sexual harass- ment and give practical, concrete examples of such conduct. The policy must also make it very clear that such conduct by anyone in the organization will not be tolerated, and it
should specify the penalties, up to and including termination, for violations of the policy. The policy should spell out the procedures for filing complaints of sexual harassment, designate specific (preferably managerial) employees who are responsible for receiving and investigating complaints, and include reassurances that employees who file complaints will be protected from retaliation or reprisals.
The policy must be communicated to all employees, who should be educated about the policy through training and workshops; all employees must understand the policy and be aware of the employer’s commitment to the policy. Above all, the employer must take steps to enforce the policy immediately upon receipt of a complaint of sexual harassment because the policy is effective only if it is followed. If the employer acts promptly to enforce the policy whenever a complaint of sexual harassment is received, it will generally avoid liability for such conduct, according to Faragher.
Defenses
In addition to the preventive approach and the defense set out in Faragher, employers have a few other defenses to raise when faced with charges of sexual harassment. The definition of sexual harassment indicates that the conduct complained of must be unwelcome and of a sexual nature, and it must either be quid pro quo or serious enough to create a hostile working envi- ronment. Generally, the courts will not consider isolated incidents or trivial comments to consti- tute sexual harassment. As the Supreme Court indicated in Harris v. Forklift Systems, factors to consider in determining whether the challenged conduct amounts to sexual harassment include its frequency, severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. In Scott v. Sears, Roebuck & Co.,45 the court held that one pat on the buttocks, winks, one dinner invita- tion, and an offer by one employee to give a female employee a rubdown did not create a hostile environment. In Rabidue v. Osceola Refining Co.46 the court held that the display of pin-up photos and posters of nude or scantily clad women did not seriously affect female employees, but in Barbetta v. Chemlawn Services Corp.47 the court held that a proliferation of pornographic material featuring nude women did create a hostile working environment for female employees.
The fact that the harassed employee failed to file a complaint through the employer’s sexual harassment complaint procedure does not automatically protect the employer from liability. The employer may still be held liable if it knew of, or had reason to know of, the harassment.48
Unwelcome
Conduct of a sexual nature must be unwelcome to be sexual harassment; the target of the harassment must indicate that it is unwelcome. In Meritor, the Supreme Court held that as long as the victim indicates that the conduct is unwelcome, it is still sexual harassment, even if the victim voluntarily complies with the harassment. A consensual sexual relation- ship, instigated by a female employee in an attempt to advance in her job, was held not to be sexual harassment in Perkins v. General Motors Corporation.49
Provocation
Meritor also indicated that the employer can raise the defense of provocation by the victim: Did the victim instigate the allegedly harassing conduct through her or his own style of dress, comments, or conduct? The issue of provocation goes to whether the conduct was unwelcome: If the victim has encouraged the allegedly harassing conduct, is it really unwel- come? In McLean v. Satellite Technology Services, Inc.,50 where a female employee regularly offered to engage in sexual acts with other employees and often lifted her skirt to show her supervisor that she was not wearing undergarments, a single attempt by her supervisor to hug and kiss her was held not to be sexual harassment. However, the fact that an employee had posed nude for a national magazine did not automatically mean that she would find her boss’s sexual advances welcome,51 nor did the fact that a female employee swore “like a drunken sailor” mean that she welcomed harassing conduct.52
Conduct of a Sexual Nature
In order to be sexual harassment, the conduct complained of must be based on the employee’s sex. Tasteless comments or jokes or annoying behavior, while offensive, may not be sexual harassment. A supervisor who is obnoxious and verbally abusive to all employees is not guilty of sexual harassment as long as the abuse is not based on sex. In Holman v. State of Indiana,53 the U.S. Court of Appeals for the Seventh Circuit held that a supervisor’s harassment and solic- itation of sexual favors of both male and female employees was not conduct “because of sex.”
Concept Summary 7.6
deFenses to sexual harassment claims
• Prevention + Employers should have a policy that:
j j j
Defines harassment Outlines penalties and procedures for filing complaints Protects employees who file complaints from retaliation
• Defenses
+ Conduct was isolated incident—not frequent or severe enough to cause unreasonable interference with work performance
+ Employee did not indicate that conduct was unwelcome + “Victim” provoked harassment through his or her own conduct
7-5e Same-Sex Harassment
The Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc.54 resolved a split among the Courts of Appeals regarding whether same-sex harassment was prohibited by the sexual harassment prohibition of Title VII. The Supreme Court held that Title VII prohibits discrimination because of sex in terms or conditions of employment, including sexual harassment by employees of the same sex as the victim of the harassment. Oncale, a worker on an offshore oil platform, alleged that his male coworkers had subjected him to sexual assault and sex-related humiliating actions and had threatened him with rape. His supervisors failed to take any remedial action when he complained. The Supreme Court decision emphasized that Title VII does not reach conduct tinged with offensive sexual overtones but does forbid conduct of a sexual nature that creates a hostile work environ- ment, conduct so severe as to alter the conditions of the victim’s employment. The Court stated:
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male- on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat [ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” [citing Harris] In same-sex, (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. 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 plaintiff’s position would find severely hostile or abusive.
According to Hamner v. St. Vincent Hospital and Health Care Center, Inc.,55 Title VII’s prohibition on sexual harassment does not include harassment based on sexual orientation or sexual preference. However, a male employee who was harassed by managers and coworkers because he was perceived as being effeminate and did not conform to a male stereotype established a case of hostile environment sexual harassment.56
Page 192
7-5f Remedies for Sexual Harassment
Remedies for sexual harassment available under Title VII include injunctions to stop the harassment and to refrain from such conduct in the future, lost wages and benefits, compensatory and punitive damages for intentional conduct, and legal fees and reinstate- ment (if appropriate). Employment-related damages, such as back pay, benefits, seniority, and so on, are recoverable in their entirety. Compensatory damages (such as damages for emotional trauma and/or medical expenses) and punitive damages are available in cases of intentional violations of Title VII. Sexual harassment is generally held to be intentional conduct, so such damages are generally available to successful plaintiffs; however, there are statutory limits on the amount of compensatory and punitive damages under Title VII based on the size of the employer. In addition to Title VII, sexual harassment may also be challenged under state EEO laws and common-law torts such as intentional infliction of emotional distress, invasion of privacy, battery, and assault. Compensatory and punitive damages may be available under the various state EEO laws and are usually available under tort law; there are generally no statutory limitations on such damages available under state EEO laws and tort claims.
In addition to Title VII, state EEO laws, and tort claims, federal and state constitu- tional provisions may also apply to public sector employers guilty of sexual harassment. Public employees who engage in sexual harassment may be subject to suits for damages under 42 U.S.C. § 1983, which allows civil suits for damages against persons who act, under the color of law, to deprive others of legally protected rights. In United States v. Lanier,57 the Supreme Court upheld the criminal prosecution of a public employee guilty of sexual harassment under 18 U.S.C. § 242, which provides for criminal penalties of fines and prison terms of up to 10 years for persons who, under the color of law, willfully subject another person to the deprivation of legally protected rights.
Ethical DILEMMA
Your office cubicle is next to that of Mona Leslie, a newly hired female employee in your department. Her male supervisor seems to be devoting a lot of attention to her and drops by her cubicle many times a day. You can hear the supervisor’s conversations—and they include some off-color jokes and comments. You have also heard, on several occasions, the supervisor ask Mona to go to lunch with him or to go out for a drink after work. Mona always politely declines his invitations, but at times she appears to be distressed and agitated after the supervisor’s visits. In a conversa- tion with Mona, you inform her that you believe that the supervisor’s conduct is in violation of the company’s sexual harassment policy. She responds that she is a new employee and doesn’t want to “make waves” because she really needs her job. What should you do—inform the human resources department of the supervisor’s behavior? Explain your response.
7-5g Sexual Orientation, Sexual Preference, and Sexual Identity Discrimination
Title VII and Other EEO Legislation
Prior to the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, the federal courts had consistently held that Title VII’s prohibition of discrimination based on gender does not extend to discrimination against homosexuals or lesbians.58 Similar deci- sions held that Title VII did not protect transvestites and transsexuals from employment discrimination.59 As well, the Rehabilitation Act and the Americans with Disabilities Act specifically exclude homosexuality, bisexuality, transvestism, transsexualism, and other sexual behavior conditions from their protection against discrimination based on disability or handicap as well. Recall, however, that in Price Waterhouse, the U.S. Supreme Court held that Title VII’s prohibition of sex discrimination included discrimination based on sex stereotypes. In light of that decision, could a male transsexual bring a claim of sex discrimination against the employer who fired him because he did not meet the employer’s perceptions of how a male should look and behave? That is the issue addressed in the following case.
CASE 7.7
Smith v. City of SAlem, ohio
378 F.3d 566 (6th Cir. 2004)
Facts: Smith had been a lieutenant in the Salem Fire Department for seven years. His service had been without any negative incidents. Smith, a male by birth, was a transsexual and had been diagnosed with gender identity disorder (“GID”), which the American Psychiatric Association characterizes as a disjunction between an individual’s sexual organs and sexual identity. After being diagnosed with GID, Smith began expressing a more feminine appearance on a full-time basis, including at work, in accordance with international medical protocols for treating GID. As a result, Smith’s coworkers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Smith notified his supervisor, Eastek, about his GID diagnosis and treatment. He also informed Eastek of
the likelihood that his treatment would eventually include a complete physical transformation from male to female. Smith had approached Eastek in order to answer any questions Eastek might have concerning his appearance and manner and so that Eastek could address Smith’s coworkers’ comments and inquiries. Smith specifically asked Eastek not to divulge the conversation to any of his superiors, particularly to Greenamyer, chief of the fire department. However, Eastek told Greenamyer about Smith’s behavior and his GID.
Greenamyer then met with other city officials and arranged a meeting of the City’s executive body to discuss Smith and devise a plan for terminating his employment. During the meeting, Greenamyer and the mayor agreed to arrange for the Salem Civil Service Commission to require
o undergo three separate psychological evaluations. They hoped that Smith would either resign or refuse to comply. If he refused, they could terminate his employ- ment for insubordination. Another official who attended the meeting telephoned Smith afterwards to inform him of the plan.
Two days later, Smith’s lawyer telephoned the mayor to advise him of Smith’s legal representation and the poten- tial legal problems for the city if it followed through on the plan. Four days later, Greenamyer suspended Smith for one 24-hour shift, based on his alleged infraction of a city and/ or fire department policy. Smith challenged his suspension to the city’s Civil Service Commission, and ultimately before the county court, which reversed the suspension because the regulation Smith was alleged to have violated was not in effect.
Smith had previously filed a complaint under Title VII with the EEOC, which granted him a right to sue letter. Smith filed suit in the federal district court alleging sex discrimination and retaliation in violation of Title VII. The trial court dismissed Smith’s suit on the ground that he failed to state a claim for sex stereotyping pursuant to Price Waterhouse v. Hopkins. The trial court held that his claim was really based upon his transsexuality and that Title VII does not prohibit discrimination based on an individual’s transsexualism. Smith then appealed to the U.S. Court of Appeals for the Sixth Circuit, claiming that he was a victim of sex discrimination both because of his gender- nonconforming conduct and because of his identification as a transsexual.
Issue: Has Smith established a claim of sex discrimination because of sex stereotyping, under the Supreme Court decision in Price Waterhouse?
Decision: Smith claimed that Price Waterhouse applied to his case. He stated that his conduct and mannerisms did not conform to his employers’ and coworkers’ sex stereotypes of how a man should look and behave, and the discrimination he experienced was a direct result of this. The court of appeals held that Smith had established claims of sex stereotyping and gender discrimination and that the trial court erred in relying on a series of pre–Price Waterhouse cases holding that transsexuals were not protected by Title VII.
The Supreme Court decision in Price Waterhouse held that Title VII protected a woman who failed to conform to social expectations concerning how a woman should look and behave and established that Title VII’s reference to “sex” encompasses both the biological differences between men and women, and gender discrimination based on a failure to conform to stereotypical gender norms. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femi- ninely, are also engaging in sex discrimination, because the discrimination would not occur except for the victim’s sex. Sex stereotyping based on a person’s gender nonconforming behavior is discrimination in violation of Title VII.
The court of appeals held that Smith had stated a claim of sex discrimination under Title VII. The court reversed the trial court decision and remanded the case back to that court.
Wisconsin, and the District of Columbia, prohibit discrimination based on sexual pref- erence or sexual orientation. Other states, including Louisiana, Michigan, Ohio, and Pennsylvania, prohibit sexual orientation or sexual preference discrimination by public sector employers under executive orders issued by the governor. In addition, some large cities such as New York City and San Francisco have human rights ordinances that prohibit discrimination based on sexual orientation or sexual preference. The state EEO laws of California, Colorado, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Washington, and the District of Columbia also prohibit employment discrimina- tion based on gender identity or gender expression, which means that transsexuals and persons who have undergone sex-change operations are protected from discrimination on those grounds.
There are some limits to the coverage of the state laws against discrimination based on sexual orientation or sexual preference. In Boy Scouts of America v. Dale,61 the U.S. Supreme Court held that applying the New Jersey Against Discrimination’s prohibition of discrimination based on sexual orientation to the Boy Scouts violated their constitutional right of expressive association under the First Amendment. The Court stated that prohib- iting the Boy Scouts from dismissing a gay assistant scoutmaster would undermine the Boy Scouts’ mission of instilling values in young people.
Constitutional Protection
Public employers who discriminate on the basis of homosexuality are subject to the equal protection provisions of the U.S. Constitution, which prohibit arbitrary or “invidious” discrimination. However, that has not stopped public employers from discriminating against homosexuals. The courts have generally allowed public employers to refuse to hire homosexuals when the employer can show that the ban on homosexuals has some legitimate relationship to valid employment-related concerns. In Doe v. Gates,62 the court upheld the CIA’s dismissal of a gay clerk typist because he “posed a threat to national security” based on the fact that he hid information about his homosexuality. The FBI’s refusal to hire a lesbian as a special agent was upheld because homosexual conduct was illegal in the country in which she would have worked, and the agent would have been subject to blackmail to protect herself or her partner.63 The Georgia state attorney gener- al’s refusal to hire a lesbian as a staff attorney was affirmed on similar grounds in Shahar v. Bowers.64
A number of cases dealing with discrimination against homosexuals have involved the armed services’ refusal to admit homosexuals. In several decisions, the courts have upheld this general policy but have required the military to demonstrate that an individual has engaged in homosexual conduct in order to bar that person from military service.65 Under President Clinton, the military adopted a “don’t ask, don’t exual conduct or demonstrate a propensity to engage in such conduct. The policy focuses on conduct rather than a person’s status. A person’s declaration about his or her sexual orientation alone is not sufficient to bar that person from the military. The “don’t ask, don’t tell” policy has been upheld in several decisions, such as Phillips v. Perry40 and Thomasson v. Perry.41 It must be noted that the constitutional cases discussed above were decided prior to the Supreme Court decision in rence v. Texas.42 In rence, which was a criminal law case and not an employment case, the Court, by a 6–3 vote, declared unconstitutional state laws making it a crime for adults of the same sex to engage in consensual sexual activity in the privacy of their home. The majority held that such laws infringed upon the constitutionally protected liberty interests of homosexuals. Some commentators argue that the rence case may signal the end of government discrimination against homosexuals. Others claim that the case is more limited and deals only with laws that criminalized private, consensual sexual conduct between adults.
A related case was triggered by a number of law schools that refused to allow mili- tary recruiters access to their campuses as a protest over the military’s policies regarding homosexuals. Congress reacted by passing legislation (known as the Solomon Amendment) that would cut off federal funds to schools if they did not allow military recruiters campus access. Several of the schools involved filed suit, challenging the Solomon Amendment. The Supreme Court held that the Solomon Amendment did not violate law schools’ First Amendment freedom of expressive association.43
ThE WORKING LAw Introduction
Rape and Sexual Assault: A Call to Action
The numbers alone are stunning: nearly 1 in 5 women—or almost 22 million—have been raped in their lifetimes. And the numbers don’t begin to tell the whole story. They don’t tell of the physical, emotional and psychological scars that a victim can carry for life. They don’t speak to the betrayal and broken trust when the attacker is a friend, a trusted colleague, or a family member. And they don’t give voice to the courage of survivors who work every day to put their lives back together.
Twenty years ago, then-Senator Joe Biden authored the Violence Against Women Act (VAWA) to bring the problem of domestic violence and sexual assault out from the shadows and into the national spotlight. In the intervening decades, help has come: rape crisis centers have been built; hotlines are up and running; dedicated activists,
advocates and service providers have more resources; states have passed tough new laws; and more abusers and sex offenders have been put behind bars.
In 2010, President Obama called upon all federal agencies to make domestic and sexual violence a priority. And in March 7, 2013, he signed the third reauthorization of VAWA, which provides states, tribes, and local communities with unprecedented resources to combat sexual assault. This and other federal programs put federal dollars where they are most needed and effective: for crisis intervention, counseling, criminal justice advo- cacy, forensic evidence-gathering, medical and social services, law enforcement training and prosecutorial resources. In 2012, President Obama directed federal agencies to develop policies to address domestic violence, sexual assault, and stalking in the federal workplace.
Federal agencies have heeded the President’s call to action in many innovative and wide-ranging ways. Among other initiatives, the Administration has issued new guid- ance to help schools, colleges and universities better understand their obligations to prevent and respond to sexual assault on their campuses; promulgated a series of execu- tive actions to better protect our service members from military sexual assault; developed a national, best-practices protocol for conducting sexual assault forensic examinations; modernized the definition of “rape” for nationwide data collection, ensuring a more accurate accounting of the crime; launched new technologically advanced ways for young women to get help; and enlisted men and boys to take an active stand against sexual violence. And today, the President is establishing a White House Task Force to Protect Students from Sexual Assault—which will go even further to make our schools safer for all students.
More of the Administration’s efforts are catalogued in this report—and they are making a real difference.
But despite all the progress, too many of our friends, wives, sisters, daughters and sons are still raped or sexually assaulted every day.
A new generation of anti-rape activists, both women and men, are having a national conversation about rape and sexual assault—and about attitudes toward victims and the role of the criminal justice system in holding offenders accountable.
This report aims to be part of that conversation. It provides an overview of the scope of the problem, identifies those most at risk, describes the costs of this violence (both to survivors and society as a whole), and takes a look at the response of the crim- inal justice system. The report discusses steps this Administration has taken to address rape and sexual assault, and identifies challenging new fronts on which we should set our sights.
Summary
Title VII allows employers to select employees based on their gender, religion, or national ori- gin when these criteria are bona fide occupational qualifications (BFOQs) that are necessary for the safe and efficient operation of the business. The courts will look closely at the particular job in question and the employer’s justification for the BFOQ. Title VII does not allow the use of race or color as a BFOQ.
• Employers need to ensure that all aspects of the employment process are free from gender discrimi- nation. Promotions and work assignments must not be based on stereotypical assumptions about men’s and women’s roles or capabilities. Pay and benefits must comply with the Equal Pay Act and with Title VII, and employers must not restrict the job opportunities of females because of con- cerns about potential hazards to pregnant women
or their children. The Family and Medical Leave Act requires larger employers to allow employees unpaid leave for childbirth, adoption, and medical conditions; for issues arising from the call to active military service; and to care for injuries or illness suffered during military service.
• Sexual harassment in the workplace can pose seri- ous legal and morale problems; employers should take positive steps to inform employees that sexual harassment will not be tolerated and that the em- ployer has a policy in place to resolve sexual com- plaints fairly and effectively. Title VII does not prohibit discrimination based on sexual orientation or sexual preference, but some states do outlaw such discrimination. The equal protection clause of the U.S. Constitution may restrict sexual orienta- tion or sexual preference discrimination by public sector employers.
CHAPTER8
Discrimination Based on Religion and National Origin and Procedures Under Title VII
8-1
The preceding chapters dealt with Title VII of the Civil Rights Act of 1964 and its prohi- bitions on employment discrimination based on race and sex. This chapter deals with the Title VII provisions and procedures regarding discrimination based on religion and national origin. The section dealing with religion also touches upon recent developments involving the Religious Freedom Restoration Act (RFRA).1
Discrimination on the Basis of Religion
Title VII prohibits employment discrimination because of religion. The definition of reli- gion under Title VII is fairly broad; it includes “… all aspects of religious observance and practice, as well as belief….” Harassment because of an individual’s religious beliefs (or lack thereof ) that creates a hostile work environment is also prohibited under Title VII. Title VII protection extends to the beliefs and practices connected with organized religions but also includes what the EEOC Guidelines2 define as a person’s moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Such personal moral or ethical beliefs are protected even if the beliefs are not connected with any formal or organized religion. Atheism is included under the Title VII definition of religion according to Young v. Southwestern Savings & Loan Association,3 but personal political or social ideologies are not protected. The racist and anti-Semitic beliefs of the Ku Klux Klan do not fall under the definition of religion,4 and harassment of an individual because of that person’s self-identification as a member of the Ku Klux Klan was not harass- ment because of religion and did not give rise to a claim under Title VII.5
8-1a Exceptions for Religious Preference and Religious Employers Constitutional Issues
Government action involving religion raises issues under the First Amendment of the U.S. Constitution. The U.S. Constitution regulates the relationship between the government and the governed. That means that public sector employers, in addition to being covered by Title VII, are also subject to the constitutional protections for freedom of religion under the First Amendment of the U.S. Constitution. The First Amendment prohibits the establishment of religion by government (generally interpreted as government conduct favoring or promoting religion) and also prohibits undue government interference with the free exercise of religion. The Supreme Court has broadly interpreted religion in determining the scope of protection under the First Amendment, requiring only that the plaintiff demonstrate that her belief is “religious” in her own scheme of things and that it is sincerely held with the strength of traditional religious beliefs.6 The case of Lemon v. Kurtzman7 (discussed in the Amos case, see Case 8.1) set out a three- part test to determine if government action affecting religion violates the First Amendment:
• • •
Does the government action have a secular purpose? Does the action neither advance nor inhibit religion? Does the government action involve “entanglement” of church and state?
In Estate of Thornton v. Caldor, Inc.,8 the Supreme Court held that a Connecticut statute requiring employers to allow employees to take off work on their religious Sabbath was unconstitutional. That statute violated the First Amendment because it advanced a religious purpose: It gave Sabbath observers an unqualified right not to work, and it ignored the inter- ests and convenience of the employer and other employees who did not observe a Sabbath.
In 1993, believing that the Supreme Court’s so-called “Lemon Test” gave government entities too much leeway in enforcing laws against religious entities, Congress overwhelm- ingly enacted bipartisan legislation, known as the Religious Freedom Restoration Act (RFRA). The statute, signed by President Clinton, was soon declared unconstitutional to the extent that its provisions applied to state and local laws. However, the statute remains operative with regard to the federal government. In 2014, the Supreme Court heard the case of a closely held corporation, the family shareholders of which objected to providing certain contraceptives to their employees under the company’s group health-insurance plan.
The WORKING
A Divided Supreme Court Holds that RFRA Trumps Obamacare
hobby Lobby Stores, Inc. began out of founder David Green’s garage and has grown from one 300-square-foot store to more than 550 stores across the country, becom- ing one of the nation’s leading arts and crafts retailers.
Devout Christians, the Green family believes that “it is by God’s grace and provision that Hobby Lobby has endured.” Therefore, the Greens seek to honor God by “operating their company in a manner consistent with Biblical principles.”
Believing their employees should have the opportunity to spend Sundays with their families, the company is closed on Sundays and only operates 66 hours per week. Indeed, the Greens strive to apply the Christian teachings on respect and fairness to their employees, increasing the pay of Hobby Lobby’s full- and part-time hourly workers for four years in a row. Full-time hourly workers now start at 90 percent above the federal minimum wage.
The Hobby Lobby success story is a true example of the American dream. Now the Greens want to live another American dream: that every American, including business owners like the Greens, should be free to live and do business according to their beliefs.
The HHS mandate requires the family-owned business to provide insurance coverage for potentially life-terminating drugs and devices, contrary to the Greens’ religious convictions—or pay fines to the IRS.
The Green family has no moral objection to the use of 16 of 20 preventive contracep- tives required in the mandate, and Hobby Lobby will continue its longstanding practice of covering these preventive contraceptives for its employees. However, the Green family cannot provide or pay for four potentially life-threatening drugs and devices. These drugs include Plan B and Ella, the so-called morning-after pill and the week-after pill. Covering these drugs and devices would violate their deeply held religious belief that life begins at the moment of conception, when an egg is fertilized.
The Greens believe that Hobby Lobby cannot fulfill its mission while paying for drugs and devices that conflict with their beliefs. That is why Hobby Lobby filed suit to defend its constitutional freedom to carry out its mission, consistent with its owners’ religious prin- ciples. Their case has now gone all the way to the Supreme Court.
The Green family respects the religious convictions of all Americans, including those who do not agree with them. All they are asking is that the government give them the same respect by not forcing them to violate their religious beliefs.
The Supreme Court heard oral argument in this case on March 25, 2014. On June 30, the Court ruled 5–4 in favor of David and Barbara Green and their family business, Hobby Lobby.
Ministerial Exemption Under Title VII
Religious organizations, like individuals, enjoy the right of free exercise of religion under the First Amendment. Subjecting the actions of religious organizations to the provisions of Title VII could involve “excessive entanglement” of the government into the affairs of the religious organization. To avoid such constitutional concerns, and to avoid government interference with the free exercise rights of the religious organization, the federal courts have created a “ministerial exemption” under Title VII when a discrimination complaint involves personnel decisions of religious organizations regarding who would perform spiritual functions and about how those functions would be organized. For example, in
Petruska v. Gannon University,9 a female chaplain of a private Catholic university was removed from her position and replaced by a male. She claimed that the action was prompted by her gender and by the fact that she had complained about the university’s response to sexual harassment claims. The U.S. Court of Appeals for the Third Circuit held that university’s actions were protected by the “ministerial exception” because the position of chaplain served a spiritual function, and the religious institution was free to determine how to structure or reorganize that spiritual position. Most courts have limited the ministe- rial exemption to employment decisions of the religious employer—such as the Catholic Church’s ban on female priests. Actions such as sexual harassment or retaliation by a reli- gious employer may not be exempt because they do not involve protected employment decisions, according to Elvig v. Calvin Presbyterian Church.10
Statutory Provisions for Religious Preference
In addition to the ministerial exemption created by the courts under Title VII, the act contains several statutory provisions that allow employers to exercise religious preference in certain situations.
Religion as a BFOQ Section 703(e)(1) of Title VII includes religion within the BFOQ exception. Religion, as with gender or national origin, may be used as a BFOQ when the employer establishes that business necessity (the safe and efficient performance of the job) requires hiring individuals of a particular religion. Only rarely will a private sector business be able to establish a BFOQ based on religion. For example, an employer who is providing helicopter pilots under contract to the Saudi Arabian government to fly Muslim pilgrims to Mecca may require that all pilots be of the Muslim religion because Islamic law prohibits non-Muslims from entering the holy areas of the city of Mecca. The penalty for violating the prohibition is beheading. The employer could therefore refuse to hire non-Muslims or require all pilots to convert to Islam.11
Educational Institutions Under Section 703(e)(2)
Religiously affiliated schools, colleges, universities, or other educational institutions are permitted to give preference to members of their particular religion in hiring. This excep- tion is broader than that available under the BFOQ provisions. Under Section 703(e)(2), the educational institution does not have to demonstrate business necessity to give prefer- ence to members of its religion when hiring employees. Therefore, a Hebrew day school can require that all of its teachers be Jewish, and a Catholic university like Notre Dame can require that the university president be Catholic. However, it is important to note that other federal agencies, such as the National Labor Relations Board, accord educational institutions with religious affiliations a lesser level of exemption from their jurisdiction.12
Section 702(a)
In addition to the exception granted to religious schools or colleges under Section 703(e) (2), Section 702(a) provides an exception under Title VII to all
• • • •
religious societies; religious corporations; religious educational institutions; or religious associations.
This exception covers all religious entities and is wider than that under Section 703(e)(2), which is limited to religious educational institutions. Section 702(a) states:
This Title shall not apply to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.
But how broad is the scope of the exemption under Section 702(a)? Does it extend to all activities of a religious corporation, even those that are not really religious in character? The Supreme Court considered that question in the next case.
CaSe 8.1
Corporation of the presiding Bishop of the ChurCh of
Jesus Christ of Latter-day saints v. amos
483 U.S. 327 (1987)
[Note that this case was decided prior to the 1991 amendments to Title VII, when Section 702(a) was simply Section 702.]
White, J.
Section 702 of the Civil Rights Act of 1964, as amended, exempts religious organizations from Title VII’s prohibi- tion against discrimination in employment on the basis of religion. The question presented is whether applying the Section 702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment. The District Court held that it does, and the case is here on direct appeal.
The Deseret Gymnasium (Gymnasium) in Salt Lake City, Utah, is a nonprofit facility, open to the public, run by the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB), and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). The CPB and the COP are reli- gious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association sometimes called the Mormon or LDS Church.
Mayson worked at the Gymnasium for some 16 years as an assistant building engineer and then building engineer.
He was discharged in 1981 because he failed to qualify for a temple recommend; that is, a certificate that he is a member of the Church and eligible to attend its temples.
Mayson and others purporting to represent a class of plaintiffs brought an action against the CPB and the COP alleging, among other things, discrimination on the basis of religion in violation . . . of the Civil Rights Act of 1964. . . . The defendants moved to dismiss this claim on the ground that Section 702 shields them from liability. The plaintiffs contended that if construed to allow religious employers to discriminate on religious grounds in hiring for nonreligious jobs, Section 702 violates the Establishment Clause [of the First Amendment].
The District Court first considered whether the facts of this case require a decision on the plaintiffs’ constitutional argument. Starting from the premise that the religious activities of religious employers can permissibly be exempted under Section 702, the court developed a three-part test to determine whether an activity is religious. Applying this test to Mayson’s situation, the court found: first, that the Gymnasium is intimately connected to the Church finan- cially and in matters of management; second, that there is no clear connection between the primary function which the Gymnasium performs and the religious beliefs and tenets of the Mormon Church or church administration; and third, that none of Mayson’s duties at the Gymnasium are “even tangentially related to any conceivable religious belief or ritual of the Mormon Church or church administration,” … The court concluded that Mayson’s case involves nonre- ligious activity.
The court next considered the plaintiffs’ constitutional challenge to Section 702. Applying the three-part test set out in Lemon v. Kurtzman . . ., the court first held that Section 702 has the permissible secular purpose of “assuring that the government remains neutral and does not meddle in religious affairs by interfering with the decision-making process in religions. . . .” The court concluded, however, that Section 702 fails the second part of the Lemon test because the provision has the primary effect of advancing religion. Among the considerations mentioned by the court were: that Section 702 singles out religious entities for a benefit, rather than benefiting a broad grouping of which religious organi- zations are only a part; that Section 702 is not supported by long historical tradition; and that Section 702 burdens the free exercise rights of employees of religious institutions who work in nonreligious jobs. Finding that Section 702 imper- missibly sponsors religious organizations by granting them “an exclusive authorization to engage in conduct which can directly and immediately advance religious tenets and practices,” the court declared the statute unconstitutional as applied to secular activity. The court entered summary judgment in favor of Mayson and ordered him reinstated with backpay. Subsequently, the court vacated its judgment so that the United States could intervene to defend the constitutionality of Section 702. After further briefing and argument the court affirmed its prior determination and reentered a final judgment for Mayson. . . .
We find unpersuasive the District Court’s reliance on the fact that Section 702 singles out religious entities for a benefit. Although the Court has given weight to this consid- eration in its past decisions, it has never indicated that stat- utes that give special consideration to religious groups are per se invalid. That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause.
Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemp- tion come packaged with benefits to secular entities. We are also unpersuaded by the District Court’s reliance on the argument that Section 702 is unsupported by long historical tradition. There was simply no need to consider
the scope of the Section 702 exemption until the 1964 Civil Rights Act was passed, and the fact that Congress concluded after eight years that the original exemption was unnecessarily narrow is a decision entitled to defer- ence, not suspicion.
Appellees argue that Section 702 offends equal protec- tion principles by giving less protection to the employees of religious employers than to the employees of secular employers.
… In a case such as this, where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, we see no justification for applying strict scrutiny to a statute that passes the Lemon test. The proper inquiry is whether Congress has chosen a rational classification to further a legitimate end. We have already indicated that Congress acted with a legitimate purpose in expanding the Section 702 exemption to cover all activities of religious employers…. it suffices to hold—as we now do—that as applied to the nonprofit activities of religious employers, Section 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.
It cannot be seriously contended that Section 702 imper- missibly entangles church and state; the statute effectuates a more complete separation of the two and avoids the kind of intrusive inquiry into religious belief that the District Court engaged in this case. The statute easily passes muster under the third part of the Lemon test.
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Brennan, J., with whom Marshall, J. joins (concurring) … my concurrence in the judgment rests on the fact that this case involves a challenge to the application of Section 702’s categorical exemption to the activities of a nonprofit organization. I believe that the particular char- acter of nonprofit activity makes inappropriate a case- by-case determination whether its nature is religious or secular….
. . . I concur in the Court’s judgment that the nonprofit Deseret Gymnasium may avail itself of an automatic exemption from Title VII’s proscription on religious discrimination.
O’Connor, J. (concurring)
… I emphasize that under the holding of the Court, and under my view of the appropriate Establishment Clause analysis, the question of the constitutionality of the Section 702 exemption as applied to for-profit activities of religious organizations remains open.
Case Questions
1. What is the relevance of the three-part test set out in Lemon v. Kurtzman to a claim under Title VII?
2. What, according to the Supreme Court, was the rationale for the enactment of the Section 702(a) exemption for religious organizations? How does that purpose relate to the three-part test from Lemon v. Kurtzman?
3. Does the Section 702(a) exemption apply to all ac- tivities of religious organizations, even to commercial activities? Does the exemption allow religious organi- zations to discriminate on the basis of race or gender? Explain your answers.
Reasonable Accommodation
Even when religion is not a BFOQ and the employer is not within the Section 702 exemp- tion, the prohibition against discrimination on the basis of religion is not absolute. Section 701(j) defines religion as:
includ[ing] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
An employer must make reasonable attempts to accommodate an employee’s religious beliefs or practices, but if such attempts are not successful or involve undue hardship, the employer may discharge the employee. The following case explores the extent to which an employer is required to accommodate an employee’s beliefs.
Page 211-213
CaSe 8.2
Trans World Airlines v. Hardison
432 U.S. 63 (1977)
White, J.
Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee’s job in that department is not filled, an employee must be shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.
Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collective-bargaining agreement which TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM).
The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs.
In the spring of 1968 Hardison began to study the reli- gion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays.
When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction
regarding observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 P.M.–7 A.M. shift. Working this shift permitted Hardison to observe his Sabbath.
The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and while in Building 1 Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list.
In Building 2 Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective-bargaining contract, and Hardison had insufficient seniority to bid for a shift having Saturdays off.
A proposal that Hardison work only four days a week was rejected by the company. Hardison’s job was essential, and on weekends he was the only available person on his shift to perform it. To leave the position empty would have impaired Supply Shop functions, which were critical to airline operations; to fill Hardison’s position with a super- visor or an employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.
When an accommodation was not reached, Hardison refused to report for work on Saturdays. . . . [Hardison was fired by TWA.]
The Court of Appeals found that TWA had committed an unlawful employment practice under Section 703(a)(1) of the Act. . . .
In 1967 the EEOC amended its guidelines to require employers “to make reasonable accommodations to the reli- gious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” The Commission did not suggest what sort of accommodations are “reason- able” or when hardship to an employer becomes “undue.”
This question—the extent of the required accommodation—remained unsettled. . . . Congress [then]
included the following definition of religion in its 1972 amendments to Title VII:
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. [Section 701(j)] …
The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison’s religious needs. . . .
We disagree. . . .
. . . As the record shows, Hardison himself testified that Kussman was willing, but the union was not, to work out a shift or job trade with another employee.
. . . it appears to us that the [seniority] system itself repre- sented a significant accommodation to the needs, both reli- gious and secular, of all of TWA’s employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. . . .
We are also convinced, contrary to the Court of Appeals, that TWA cannot be faulted for having failed itself to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison. . . .
Had TWA nevertheless circumvented the seniority system by relieving Hardison of Saturday work and ordering a senior employee to replace him, it would have denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective-bargaining agreement.
Title VII does not contemplate such unequal treat- ment. . . . we conclude that Title VII does not require an employer to go that far.
. . . [T]he Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or as higher wages.
To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship…. As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in
employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.
Reversed. Case Questions
1. Did Hardison’s religious beliefs present a scheduling problem when he was hired? Is the employer required
to accommodate religious beliefs if a conflict arises only after the employee has been hired? Explain your answers.
2. Did the union’s refusal to grant Hardison a variance from the seniority requirements of the collective bar- gaining agreement violate the union’s duty to accom- modate Hardison’s beliefs under Title VII? Explain.
3. Why was TWA unwilling to pay some other employee overtime to work for Hardison on Saturdays? Was TWA required to do so under Title VII? Explain.
The Duty of Reasonable Accommodation
As the Hardison case illustrates, the prohibition of religious discrimination under Title VII is not absolute. An employee may not be protected under Title VII if the employer is unable to make reasonable accommodation to the employee’s religious beliefs or practices without undue hardship to the employer’s business. The determination of what accommodation is reasonable, and whether it would impose an undue hardship on the employer, is to be based on each individual case and the facts of each situation. The EEOC Guidelines indicate that the following factors will be considered in determining what a reasonable accommodation is and whether it results in undue hardship:
• The size of the employer’s work force and the number of employees requiring accommodation
• The nature of the job or jobs that present a conflict • The cost of the accommodation • The administrative requirements of the accommodation • Whether the employees affected are under a collective bargaining agreement • What alternatives are available and have been considered by the employer.
The employee seeking accommodation must first inform the employer of the conflict with his or her religious beliefs or practices and must request accommodation. The employee is also required to act reasonably in considering the alternative means of accommodation available.13
CaSe 8.3
WeBB v. City of phiLadeLphia
562 F.3d 256 (3d Cir. 2009)
Facts: Kimberlie Webb, a practicing Muslim, was a police officer for the City of Philadelphia. She requested permis- sion to wear a traditional headscarf (known as a khimar or
hijaab) with her uniform while on duty. The commanding officer denied the request because of Philadelphia Police Department Directive 78, which defines the approved
Philadelphia police uniforms and prohibits the wearing of any religious symbols or garb as part of the uniform. Webb then filed a complaint of religious discrimination under Title VII with the Pennsylvania Human Relations Commission and the federal Equal Employment Opportunity Commission. While her complaint was pending before the EEOC, Webb arrived for work wearing the headscarf. She refused requests to remove it, and was sent home for failing to comply with Directive 78. The department ultimately suspended her for 13 days for insubordination. Webb filed suit against the City of Philadelphia, alleging violations of Title VII because of religious discrimination, hostile work environment, and retaliation. The trial court granted the city’s motion for summary judgment. The court stated that Directive 78 prevents any accommodation for religious symbols and attire not only because of the need for unifor- mity but also to enhance cohesiveness, cooperation, and the esprit de corps of the police force. The court also held that the city would suffer an undue hardship if forced to permit officers to wear religious symbols or clothing or ornamenta- tion with their uniforms. Webb appealed to the U.S. Court of Appeals for the Third Circuit.
Issue: Would allowing Webb to wear a headscarf while on duty constitute an undue hardship on the Philadelphia Police Department?
Decision: Once the plaintiff has established a prima facie case, the employer then has the burden to show that it made a good faith effort to accommodate the employee’s religious belief or that such an accommodation would work an
undue hardship upon the employer’s business. According to Trans World Airlines, Inc. v. Hardison, an accommodation would cause an undue hardship if it imposes more than a de minimis cost on the employer. Noneconomic costs such as violations of the seniority provisions of a collective agree- ment or the threat of possible criminal sanctions could also pose an undue hardship on employers. The U.S. Supreme Court has considered the importance of dress regulations for law enforcement personnel and for the military in Goldman v. Weinberger.1 The Court there stated that the standardization of uniforms encourages “the subordina- tion of personal preferences and identities in favor of the overall group mission.” In Daniels v. City of Arlington,2 the court held that a police department could refuse to allow a police officer to wear a gold cross on his uniform in viola- tion of an official “no pins” policy. The court held that the department’s uniform standards were proper and that an accommodation of the officer’s religious belief would have imposed an undue hardship. Here, the city demonstrated that the strict enforcement of Directive 78 was essential to the values of impartiality, religious neutrality, uniformity, and the subordination of personal preference necessary to the proper functioning of the police department.
The Third Circuit held that the uniform requirements were crucial to the safety of officers, to their morale and esprit de corps, and to public confidence in the police. The court of appeals therefore affirmed the trial court grant of summary judgment to the city.
1 475 U.S. 503 (1986). 2 246 F.3d 500 (5th Cir. 2001).
• she could cover the button while at work; or • she could wear a different antiabortion button without the photograph.
The employee refused, insisting that she had to wear the button to be a “living witness” to her religious beliefs. The employer ultimately fired the employee, and the former employee filed suit under Title VII, alleging religious discrimination. She argued that the disruption in the workplace was caused by the reaction of the coworkers, not by her wearing the button. The court of appeals held that the employer did not violate Title VII by firing the employee. Title VII requires that an employer reasonably accommodate an employee’s religious beliefs but does not require that the employer allow that employee to impose her or his religious views on others.
If there are several ways to accommodate the employee’s religious beliefs, is the employer required to provide the accommodation that is preferred by the employee? In Ansonia Board of Education v. Philbrook,15 the Supreme Court held the following:
… We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it “demonstrates that [it] is unable to reasonably accommodate … an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship. As Hardison illustrates, the extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship. Once the Court of Appeals assumed that the school board had offered to Philbrook a reasonable alternative, it erred by requiring the board to nonetheless demonstrate the hardship of Philbrook’s alternatives…. We accordingly hold that an employer has met its obligation under Section 701(j) when it demonstrates that it has offered a reasonable accommodation to the employee.
Ethical DILEMMA
AllAh in the WorkplAce?
A small group of employees at Wydget are Muslims; some wear turbans and burkas (robes covering their body). They have asked you, the human resource manager, to allow them to conduct religious prayer services in the plant cafeteria during their morning and afternoon coffee breaks and their lunch break. In general, those employ- ees are good workers, and you do not want to do anything that would undermine their morale. However, a number of other Wydget employees have complained to you that they are suspicious of such meetings, which they fear may be a cover for ter- rorist or subversive activities. You are concerned that if you allow the lunchtime prayer services, other employees who are Buddhists, Hindus, or Christians may also seek to conduct religious or prayer services.
Should you allow the Muslim employees to hold the prayer services? What argu- ments can you make in favor of allowing the services? What arguments can you make against allowing them? How should you respond to the fears and perceptions of the other employees? Can Wydget allow the prayer services for the Muslims while refusing other employees the right to hold their own prayer services? Prepare a memo for the CEO on this question. The memo should list the arguments in favor of, and against, allowing the prayer services and should recommend a decision, with appro- priate explanation and justification, for the CEO.
See the EEOC’s “Questions and Answers About Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians and Sikhs” at http:// www.eeoc.gov/facts/backlash-employer.html.
Concept Summary 8.1
DiscriminAtion BAseD on religion
• Religion includes: + All aspects of religious observance, practice, and belief
• Exceptions: + Constitutional protections (First Amendment)
j Lemon test + Religion as a BFOQ (Section 703(e)(1)) + Religious organizations (Section 702 (a)) + Religiously affiliated educational institutions (Section 703(e)(2)) + Religious societies, corporations, associations (Section 702 (a))
• Employer’s duty of reasonable accommodation of religion:
+ Employee must inform employer of religious belief or conduct in conflict with work requirement
+ Employer must then attempt to make reasonable accommodation to belief or conduct—or show that accommodation would impose undue hardship
+ Undue hardship—employer not required to:
8-2
j j j
Pay more than minimal costs Regularly pay overtime or premium wages Act in violation of the seniority provisions of a collective agreement
Discrimination Based on National Origin
Title VII prohibits employment discrimination against any applicant or employee because of national origin, although it does recognize that national origin may be a BFOQ, where the employer demonstrates that hiring employees of a particular ethnic or national
origin is a business necessity for the safe and efficient performance of the job in question. The government’s response to the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, and the public’s heightened awareness regarding secu- rity and fear of potential threats led to increased scrutiny of individuals who appeared to be Muslims or of Middle Eastern origin. Incidents of “ethnic profiling” were common; persons (primarily males) perceived to be from Middle Eastern countries were subjected to security checks, searches, interrogation by authorities, and general public suspicion. Is such ethnic profiling permissible under Title VII? In general, no. Any employment discrimina- tion against an individual because of that individual’s (actual or perceived) national origin, ethnicity, or religion is a violation of Title VII unless it is justified by a BFOQ.
Following the events of September 11, 2001, the EEOC reported an increase in complaints alleging discrimination against individuals because they were perceived as being Muslim, Arabic, Middle Eastern, South Asian, or Sikh. More than 800 complaints of “backlash” discrimination were filed by individuals who alleged that they were discrimi- nated against because of their religion or national origin. Most of the complaints involved discharge or harassment. EEOC enforcement efforts have resulted in nearly 100 individ- uals receiving over $1.45 million in benefits as resolution of employment discrimination complaints related to the September 11 attacks. The EEOC has also conducted numerous outreach and education efforts for employers to promote voluntary compliance with Title VII.16 In recent years, the number of national origin discrimination complaints filed with the EEOC has been increasing, from 8,025 in its fiscal year (FY) 2001, to 10,601 in FY 2008. The EEOC recovered damage settlements of $22.8 million for national origin discrimina- tion claims in FY 2007, and $25.4 million in FY 2008.17 During the years 2009 to 2012, EEOC charges based on allegations of Muslim discrimination have hovered steadily around 800 per year, or a bit more than 20 percent of all religious discrimination charges.18
8-2a Definition
National origin discrimination includes any discrimination based upon the place of origin of an applicant or employee or his or her ancestor(s) and any discrimination based upon the physical, cultural, or linguistic characteristics of an ethnic group. Title VII’s prohibition on national origin discrimination includes harassment of employees because of their national origin and extends to discrimination based upon reasons related to national origin or ethnic considerations, such as:
• a person’s marriage to a person of, or association with persons of, an ethnic or national origin group;
• a person’s membership in, or association with, an organization identified with or seek- ing to promote the interests of any ethnic or national origin group;
a person’s attendance or participation in schools, churches, temples, or mosques generally used by persons of an ethnic or national origin group; or
a person’s name, or the name of the person’s spouse, which is associated with an ethnic or national origin group.
• •
An employer may violate the statute by discriminating against an applicant or employee whose education or training is foreign or, conversely, by requiring that training or educa- tion be done abroad. Title VII does allow employers to hire employees based on legiti- mate business, safety, or security concerns. Employers may impose heightened background screening for employees or applicants, as long as such requirements are related to legitimate job concerns and are applied uniformly to the employees in similar situations or job classes. Section 703(g) states that it is not a violation of Title VII for an employer to refuse to hire or to discharge an employee who is unable to meet the requirements for a national security clearance where federal law or regulations require such a clearance for the job in question.
As the following case illustrates, employers must also ensure that employees are not subjected to harassment based on their national origin.
CaSe 8.4
equaL empLoyment opportunity Commission v. WC&m enterprises, inC.
496 F.3d 393 (5th Cir. 2007)
[Mohommed Rafiq was born in India and was a practicing Muslim. He was a car salesman at WC&M Enterprises’ Honda dealership in Conroe, Texas. After the September 11, 2001, terrorist attacks, Rafiq began to be subjected to ongoing harassment based on his religion and national origin by his managers and coworkers. When Rafiq arrived at work for his afternoon shift on 9/11, a number of his coworkers and managers, including Matthew Kiene (a coworker), Kevin Argabrite (a finance manager), Jerry Swigart (Rafiq’s direct supervisor), and Richard Burgoon (the general manager of the dealership), were watching television coverage of the attacks. Upon seeing Rafiq, Kiene called out, “Hey, there’s Mohommed,” and Argabrite said, “Where have you been?” in a mocking way, at which point everyone began to laugh. Rafiq inferred from these comments that the supervisors and colleagues were implying that he had participated in the terrorist attacks. After the U.S. began military action against Afghanistan, his coworkers and some managers began calling Rafiq “Taliban.” Rafiq repeatedly asked them to stop calling him “Taliban,” to no avail. He also complained a number of times to the managers without any real success.
Coworkers and some managers also ridiculed and harassed Rafiq in other ways, such as asking him, “Why don’t you just go back where you came from since you
believe what you believe?” and mocking Rafiq’s religious dietary restrictions and his need to pray during the workday. They also often referred to Rafiq as an “Arab,” even though Rafiq told them on numerous occasions that he was from India. This harassment continued through the end of his employment.
On October 16, 2002, Rafiq got into a dispute with his manager, Swigart, after being told that it was mandatory for all employees to attend a United Way meeting. When Rafiq questioned what, if any, connection there was between the United Way and his job, Swigart said, “This is America. That’s the way things work over here. This is not the Islamic country where you come from.” After the confron- tation, Swigart issued Rafiq a written warning, which stated that Rafiq “was acting like a Muslim extremist” and that he could not work with Rafiq because of his “militant stance.” On October 26, 2002, Argabrite “banged” on the partition separating Rafiq’s office space from the sales floor; Argabrite did this to try to startle Rafiq whenever he walked by his office. This time, however, Rafiq responded by banging on the partition himself and saying, “Don’t do that.” Argabrite then confronted Rafiq and told Rafiq that he was a manager, so Rafiq could not tell him what to do. Rafiq later complained to Burgoon about Argabrite’s continual harassment.
Two days later, Rafiq was fired. Rafiq filed a charge of discrimination with the EEOC, and the EEOC filed suit against the employer, alleging that WC&M subjected Rafiq to a hostile work environment on the basis of his religion and national origin, in violation of Title VII. The district court granted summary judgment to the employer, stating that the EEOC could not establish that Rafiq was harassed on the basis of his national origin, that the EEOC did not establish the existence of severe and pervasive harassment, and the EEOC had not shown that Rafiq’s emotional distress or mental anguish from the harassment was so severe that it interrupted his daily life. The EEOC appealed to the U.S. Court of Appeals for the Fifth Circuit.]
Dennis, Circuit Judge
In this case involving allegations of a hostile work environ- ment, the Equal Employment Opportunity Commission (“EEOC”) appeals the district court’s decision to enter summary judgment in favor of the defendant-appellee, WC&M Enterprises, Inc….
… the district court made two findings that essentially disposed of the EEOC’s hostile work environment claim on the merits: (1) that the EEOC had not shown that Rafiq lost sales as a result of the alleged harassment that he suffered; and (2) that the EEOC could not bring a claim based on Rafiq’s national origin because none of the harassing comments specifically referred to the fact that Rafiq was from India. The EEOC argues that the district court erred in each respect….
The Supreme Court has emphasized that Title VII’s prohibition “is not limited to ‘economic’ or ‘tangible’ discrimination.” Rather, “[w]hen the workplace is perme- ated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the condi- tions of the victim’s employment and create an abusive working environment,’ Title VII is violated.” [Harris v. Forklift Sys.] …
For harassment to be sufficiently severe or pervasive to alter the conditions of the victim’s employment, the conduct complained of must be both objectively and subjectively offensive…. As the Supreme Court stated, “even without regard to … tangible effects, the very fact that the discrimi- natory 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.”
Under the totality of the circumstances test, a single inci- dent of harassment, if sufficiently severe, could give rise to
a viable Title VII claim as well as a continuous pattern of much less severe incidents of harassment….
Here, the district court held that even if Rafiq could prove that any harassment occurred, “he has not shown that it was so severe that it kept him from doing his job.” In so holding, the district court applied an incorrect legal standard. Whether Rafiq lost sales as a result of the alleged harassment is certainly relevant to his hostile work environ- ment claim; but it is not, by itself, dispositive. The district court erred in concluding otherwise.
Applying the totality of the circumstances test, we conclude that the EEOC has presented sufficient evidence to create an issue of fact as to whether the harassment that Rafiq suffered was so severe or pervasive as to alter a condi- tion of his employment. The evidence showed that Rafiq was subjected to verbal harassment on a regular basis for a period of approximately one year. During that time, Rafiq was constantly called “Taliban” and referred to as an “Arab” by Kiene and Argabrite, who also mocked his diet and prayer rituals. Moreover, Rafiq was sporadically subjected to additional incidents of harassment …
Although no single incident of harassment is likely sufficient to establish severe or pervasive harassment, when considered together and viewed in the light most favorable to the EEOC, the evidence shows a long-term pattern of ridicule sufficient to establish a claim under Title VII….
In addition, the evidence is sufficient to show that the harassment Rafiq suffered was based on his religion and national origin.
Indeed, the EEOC’s guidelines on discrimination define “discrimination based on national origin” broadly, to include acts of discrimination undertaken “because an individual has the physical, cultural or linguistic character- istics of a national origin group.” Nothing in the guidelines requires that the discrimination be based on the victim’s actual national origin. The EEOC’s final guidelines make this point clear:
In order to have a claim of national origin discrimination under Title VII, it is not necessary to show that the alleged discriminator knew the particular national origin group to which the complainant belonged…. [I]t is enough to show that the complainant was treated differently because of his or her foreign accent, appearance, or physical characteristics….
… In this case, the evidence that the EEOC presented supports its claim that Rafiq was harassed based on his national origin. Indeed, several of the challenged statements refer to national origin generally (even though they do not accurately describe Rafiq’s actual country of origin): (1) Kiene’s comment to Rafiq, “Why don’t you just go back where you came from since you believe what you believe?”; (2) Swigart’s statement, “This is America. That’s the way things work over here. This is not the Islamic country where you come from”; and (3) Kiene’s and Argabrite’s practice of referring to Rafiq as “Taliban” and calling him an “Arab.”
Accordingly, we conclude that the EEOC has submitted sufficient evidence to support its claim that Rafiq was subjected to a hostile work environment both on the basis of religion and on the basis of national origin.
… Rafiq testified at his deposition that the alleged harassment caused problems with his family life that led him to seek counseling from several mosques, that he had difficulty sleeping, lost 30 pounds, and suffered gastro- intestinal problems. Although Rafiq equivocated about whether his gastrointestinal problems were attributable to the harassment, the record evidence is sufficient to show that the harassment caused some discernible injury to his mental state even when those symptoms are not considered.
Accordingly, the district court erred in concluding that the EEOC could not recover for any mental anguish that Rafiq suffered.
. . . [W]e reverse the district court’s grant of summary judgment in favor of the defendant . . . and remand this matter to the district court for proceedings consistent with this opinion.
Reversed and Remanded. Case Questions
1. On what basis was Rafiq being harassed? What evidence supports his claim that the harassment was based on national origin and religion?
2. How did the harassing conduct here affect Rafiq? Must Rafiq show that the harassment caused him to lose sales or otherwise affected his work performance? Explain.
3. What is an employer’s obligation under Title VII to prevent workplace harassment based on race, color, sex, national origin, or religion? What had the employer done in this case to stop the harassment?
8-2b Disparate Impact
Employers should avoid arbitrary employment criteria, such as height or weight require- ments, for applicants or employees because such requirements may have a disparate impact on national origin. They have the effect of excluding large numbers of certain ethnic groups. For example, height requirements may exclude most persons of Asian or Hispanic origin, and the refusal to recognize educational qualifications from foreign institutions may exclude foreign-born applicants. If such requirements or practices have a disparate impact, they constitute discrimination in violation of Title VII, unless they can be shown to be required for the effective performance of the job in question.
The WORKING Mining Company Fired Foreman Because He Complained About Pervasive
EEOC Sues Rhino Eastern for National Origin Discrimination and Retaliation
Harassment Based on His Polish Ancestry, Federal Agency Says
BECKLEY, W.V.–Mining company Rhino Eastern LLC violated federal law when it subjected a mine foreman to pervasive national origin discrimination and retaliated against him for his opposition to the harassment, the U.S. Equal Employment Oppor-
tunity Commission (EEOC) charged in a lawsuit it announced today.
The EEOC says that supervisory and non-supervisory personnel regularly subjected Michael Jagodzinski to degrading and humiliating comments, taunts and slurs based on his Polish ancestry. The harassment included calling Jagodzinski a “stupid Polack,” a “dumb Polack,” and other offensive names, displaying offensive graffiti about Jagodzinski on mine walls and elsewhere in the workplace, and taunting Jagodzinski with derogatory remarks about his national origin, the EEOC charged.
Despite Jagodzinksi’s complaints about, and Rhino Eastern’s knowledge of, the hostile work environment, the company failed to prevent or correct the harassment, the EEOC said. Instead, the company retaliated against Jagodzinski by issuing a pretextual disci- plinary action and then firing him.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on national origin. Title VII also forbids employers from firing or otherwise disciplining an employee because he or she complained about discriminatory conduct. The EEOC filed suit (EEOC v. Rhino Energy WV LLC d/b/a Rhino Eastern LLC, Civil Action No 5:14-cv-26250) in the U.S. District Court for the Southern District of West Virginia, Beckley Division, after first attempting to reach a voluntary pre- litigation settlement through its conciliation process.
“No employee should be subjected to degrading and humiliating harassment in order to earn a living,” said Philadelphia District Director Spencer H. Lewis, Jr. “The EEOC will take action when employers fail to protect employees from a hostile work environment or retaliate against those who oppose it.”
Debra M. rence, regional attorney of the EEOC’s Philadelphia District Office, said, “As we celebrate the 50th anniversary of Title VII this year, it is unfortunate that some employers still permit pervasive national origin harassment to continue unchecked in the workplace and punish an employee who complains about the unlawful misconduct instead of taking action against the wrongdoers.”
The Philadelphia District Office of the EEOC oversees Pennsylvania, Maryland, Delaware, West Virginia, and parts of New Jersey and Ohio. The legal staff of the Philadelphia District Office of the EEOC also prosecutes discrimination cases arising from Washington, D.C. and parts of Virginia.
The EEOC Guidelines on Discrimination Because of National Origin19 take the position that blanket English-only rules violate Title VII unless they are required by busi- ness necessity. The EEOC believes that such rules may create an “atmosphere of inferi- ority, isolation, and intimidation” based on an employee’s ethnicity, which could result in a discriminatory working environment and tend to be “a burdensome term and condition of employment.” However, not all courts have agreed with the EEOC position on blanket English-only rules, as the following case illustrates.
CaSe 8.5
CastiLLo v. WeLLs fargo Bank, n.a.
554 Fed. appx. 646 (9th Cir. 2014
Facts: The Wells Fargo Team Member Handbook states at page 132, “English is the business language for Wells Fargo’s U.S. operations. At the same time, we recognize that we serve a highly diverse customer base, and in some cases, it’s both necessary and desirable to conduct business in languages other than English. In fact, some of our team members have been hired specifically because of their multilingual business skills.
“So, while business communications in the United States should be in English, it is recognized that the specific business needs of a unit or position may peri- odically dictate otherwise. By establishing this language policy, we don’t intend to prevent team members from using other languages in appropriate business or social communications. In fact, Wells Fargo encourages an environment that supports our diverse workforce as well as our multicultural customer base. We respect our team members’ desire to communicate in languages other than English.
“However, this policy allows managers to limit non- English communications if they interfere with clear business communications or with efficient work performance.”20
Plaintiff Martha Castillo challenged this Wells Fargo rule on the basis of national origin discrimination. The trial judge granted the defendant’s motion for summary judg- ment and Castillo appealed.
Issue: Does the “English only” rule violate Title VII?
Decision: The district court granted summary judgment on Castillo’s claims on the bases that (1) Wells Fargo’s enforcement of its language policy against Castillo was not racially discriminatory; (2) Castillo failed to exhaust administrative remedies as to her Title VII retaliation claims; (3) Castillo failed to put Wells Fargo on notice of her § 1981 claims regarding her eventual termination and the denial of her transfer request; and (4) Castillo’s remaining § 1981 claims lacked merit because the incidents alleged are not actionable retaliation.
The appellate judges agreed that Wells Fargo’s language policy was a “limited, reasonable and business-related English-only rule” that Wells Fargo enforced against “an employee who can readily comply with the rule [but] volun- tarily chooses not to observe it as a matter of individual pref- erence.” Jurado v. Eleven–Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987). Wells Fargo’s enforcement of its language policy against Castillo was not racially discriminatory.
With regard to Castillo’s retaliation claim, the court found that (1) Wells Fargo’s verbal counseling did not rise to the level of an adverse employment action, while the denial of a transfer request, coming 15 months after she filed her EEOC complaint, was not sufficiently proximate to support the charge.
Citizenship
Title VII protects all individuals, both citizens and noncitizens, who reside in or are employed in the United States from employment discrimination based on race, color, religion, sex, or national origin. However, the Supreme Court in Espinoza v. Farah Mfg. Co.21 held that Title VII’s prohibition on national origin discrimination does not include discrimination on the basis of citizenship. Section 703(g) of Title VII also allows employers to refuse to hire applicants who are denied national security clearances for positions subject to federal security requirements.
8-2d The Immigration Reform and Control Act of 1986 and Discrimination Based on National Origin or Citizenship
The Immigration Reform and Control Act of 1986 (IRCA) prohibits employment discrimi- nation because of national origin or citizenship against applicants or employees, other than illegal aliens, with respect to hiring, recruitment, discharge, or referral for a fee. Employers may, however, discriminate based upon citizenship when it is necessary to comply with other laws or federal, state, or local government contracts or when determined by the attorney general to be essential for an employer to do business with a government agency. Employers are permitted under the IRCA to give a U.S. citizen preference over an alien when both the citizen and the alien are “equally qualified” for the job for which they are being considered.
The Immigration Act of 1990 expanded the protection of the IRCA to cover seasonal agricultural workers. It is unlawful to intimidate, threaten, coerce, or retaliate against any person for the purpose of interfering with the rights secured under the IRCA’s antidiscrimi- nation provisions. Employers are also prohibited from requesting more or different employ- ment-eligibility documents than are required under the IRCA and from refusing to honor documents that reasonably appear to be genuine.
The IRCA is enforced by the Department of Justice through the Special Counsel for Immigration-Related Unfair Employment Practices, a position created by the act. The nondiscrimination provisions of the IRCA apply to employers with more than three employees, but they do not extend to national origin discrimination that is prohibited by Title VII. Consequently, employers who are subject to Title VII (those with 15 or more employees) are not subject to the IRCA’s provisions on national origin discrimination. However, because Title VII does not expressly prohibit discrimination based upon citizen- ship, all employers with more than three employees are covered by the IRCA’s provisions against discrimination based upon citizenship.
Enforcement of Title VII
This section focuses on the procedures for filing and resolving complaints of employment discrimination that arise under Title VII.
8-3a The Equal Employment Opportunity Commission
Title VII is administered and enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC is headed by a five-member commission; the commissioners are appointed by the president with Senate confirmation. The general counsel of the EEOC is also appointed by the president, also with Senate confirmation.
Unlike the National Labor Relations Board (NLRB; another federal enforcement agency discussed in Chapter 12) the EEOC does not adjudicate, or decide, complaints alleging violations of Title VII, nor is it the exclusive enforcement agency for discrimina- tion complaints. The EEOC staff investigates complaints filed with it and attempts to settle such complaints voluntarily. If a settlement is not reached voluntarily, the EEOC may file suit against the alleged discriminator in the federal courts.
The EEOC also differs from the NLRB in that the EEOC may initiate complaints on its own when it believes a party is involved in a “pattern or practice” of discrimination. In these cases, the EEOC need not wait for an individual to file a complaint with it. When a complaint alleges discrimination by a state or local government, Title VII requires that the Department of Justice initiate any court action against the public sector employer.
8-3b Procedures Under Title VII Filing a Complaint
Title VII, unlike the National Labor Relations Act (discussed in Chapter 12), does not give the federal government exclusive authority over employment discrimination issues. Section 706(c) of Title VII requires that an individual filing a complaint of illegal employment discrimination must first file with a state or local agency authorized to deal with the issue, if such an agency exists. The EEOC may consider the complaint only after the state or local agency has had the complaint for 60 days or ceased processing the complaint, whichever occurs first.
State Agency Role
A number of states and municipalities have created equal employment opportunity agen- cies, also known as “fair employment” or “human rights” commissions. Some state agen- cies have powers and jurisdiction beyond those given to the EEOC. The New York State Human Rights Division enforces the New York State Human Rights . In addition to prohibiting discrimination in employment on the basis of race, color, religion, gender, and national origin, the New York legislation also prohibits employment discrimination on the basis of age, marital status, disability, and criminal record. The Pennsylvania Human Relations Act established the Human Rights Commission, which is empowered to hold hearings before administrative law judges to determine whether the act has been violated. The Pennsylvania legislation goes beyond Title VII’s prohibitions by forbidding employ- ment discrimination on the basis of disability.
Filing with the EEOC
When the complaint must first be filed with a state or local agency, Section 706(e) requires that it be filed with the EEOC within 300 days of the act of alleged discrimination. If there is no state or local agency, the complaint must be filed with the EEOC within 180 days of the alleged violation. By contrast, the limitation for filing a complaint under the New York State Human Rights is one year and under the Pennsylvania Human Relations Act is 90 days.
As noted earlier, an individual alleging employment discrimination must first file a complaint with the appropriate state or local agency, if such an agency exists. Once the complaint is filed with the state or local agency, the complainant must wait 60 days before filing the complaint with the EEOC. If the state or local agency terminates proceedings on the complaint prior to the passage of 60 days, the complaint may then be filed with the EEOC. This means that the individual filing the complaint with the state or local agency must wait for that agency to terminate proceedings or for 60 days, whichever comes first. Mohasco Corp. v. Silver22 involved a situation in which an individual filed a complaint alleging that he was discharged because of religious discrimination with the New York Division of Human Rights 291 days after the discharge. The state agency began to process and investigate the complaint; the EEOC began to process the complaint some 357 days after the discharge. The Supreme Court held that the complaint had not been properly filed with the EEOC within the 300-day limit. The Court held that the EEOC has a duty,
under the statute, to begin processing a complaint within 300 days of the alleged violation. In order to allow the state agency the required 60 days for processing, the complaint must have been filed with the state agency within 240 days so that, when the EEOC began to process the complaint, it would be within the 300-day limit. However, as noted, when the state or local agency terminates proceedings on the complaint before 60 days have passed, the EEOC may begin to process the complaint upon the other agency’s termination.
8-3c EEOC Procedure and Its Relation to State Proceedings
The EEOC has entered into “work-sharing” agreements with most state equal employment opportunity agencies to deal with the situation that arose in the Mohasco decision. Under such agreements, the agency that initially receives the complaint processes it. When the EEOC receives the complaint first, it refers the complaint to the appropriate state agency. The state agency then waives its right to process the complaint and refers it back to the EEOC. The state agency does retain jurisdiction to proceed on the complaint in the future, after the EEOC has completed its processing of the complaint. The EEOC treats the referral of the complaint to the state agency as the filing of the complaint with the state agency, and the state’s waiver of the right to process the complaint is treated as termination of state proceedings, allowing the filing of the complaint with the EEOC under Section 706(c) of Title VII.
In EEOC v. Commercial Office Products Co.,23 the complainant filed a sex discrimi- nation complaint with the EEOC on the 289th day after her discharge. The EEOC, under a work-sharing agreement, sent the complaint to the state agency, which returned the complaint to the EEOC after indicating that it waived its right to proceed on the complaint. The EEOC then began its investigation into the complaint and ultimately brought suit against the employer. The trial court and the court of appeals held that Section 706(c) required that either 60 days must elapse from the filing of the complaint with the state agency, or the state agency must both commence and terminate its proceedings, before the complaint could be deemed to have been filed with the EEOC. The Supreme Court, on appeal, reversed the court of appeals. The Supreme Court held that the state agency’s waiver of its right to proceed on the complaint constituted a termination of the state proceedings under Section 706(c), allowing the EEOC to proceed with the complaint. As a result of this decision, in states where the EEOC and the state agency have work-sharing agreements, a complaint filed with the EEOC anytime within the 300-day time limit will be considered properly filed, and the EEOC can proceed with its processing of the complaint.
When Does the Violation Occur?
Because the time for filing a complaint under Title VII is limited, it is important to deter- mine when the alleged violation occurred. In most situations, it is not difficult to determine the date of the violation from which the time limit begins to run, but in some instances, it may present a problem. The Supreme Court, in Delaware State College v. Ricks,24 held that the time limit for a Title VII violation begins to run on the date that the individual is aware of, or should be aware of, the alleged violation, not on the date that the alleged violation
has an adverse effect on the individual. Following the rationale in the Ricks decision, the Supreme Court in Ledbetter v. Goodyear Tire and Rubber Co.25 held that the time limit to challenge pay discrepancies based on a sexually discriminatory performance evaluation begins when the evaluation is made, not when paychecks reflecting that discriminatory evaluation are received. However, Congress overruled the Ledbetter decision by legislation signed into law by President Obama in 2009. The Lilly Ledbetter Fair Pay Act of 200926 added Section 706(e)(3)(A) to Title VII,27 which states:
For purposes of this section, an unlawful employment practice occurs, with respect to discri- mination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
The effect of the Lilly Ledbetter Fair Pay Act is to allow an employee to file a complaint with the EEOC within 180 days (or 300 where a state or local EEO agency exists) from the latest of three dates:
• • •
when the discriminatory pay policy is adopted; when the employee becomes subject to the discriminatory pay policy; or when the employee is affected by the policy.
The act also specifies that each time the employee receives a paycheck reflecting the discriminatory pay policy, it is a new violation of Title VII. In deciding Ledbetter v. Goodyear Tire and Rubber Co., the Supreme Court majority relied upon Lorance v. AT&T Technologies, Inc.28 (see Chapter 6), where the Supreme Court ruled that the time limit for filing a complaint against an allegedly discriminatory change to a seniority system begins to run at the time the actual change is made—not when the employee becomes subject to the system or when the seniority system has an adverse effect on the employee. But just as was the case with the Ledbetter, the decision in Lorance was reversed by Congress as part of the 1991 amendments to Title VII. Section 706(e)(2) now provides that for claims involving the adoption of a seniority system for allegedly discriminatory reasons, the violation can occur when the seniority system is adopted, when the complainant becomes subject to the seniority system, or when the complainant is injured by the application of the seniority system.
Continuing Violation
In Bazemore v. Friday,29 the plaintiffs challenged a pay policy that discriminated against African American employees. The pay policy had its origins in the era of racial segrega- tion, prior to the date that Title VII applied to the employer, but the Supreme Court held that the violation was a continuing one—a new violation occurred every time the employees received a paycheck based on the racially discriminatory policy. Where the plaintiff alleges a continuing violation of Title VII, the plaintiff need only file within 180 or 300 days (depending on whether there is an appropriate local or state agency involved) of the latest incident of the alleged continuing violation. As noted above, the Lilly Ledbetter Fair Pay Act reaffirms the decision in Bazemore by stating that each paycheck reflecting the discriminatory pay policy is a new and separate violation of Title VII.
Hostile Environment Harassment
Employees alleging harassment creating a hostile environment in violation of Title VII must file their complaint with the EEOC within 180 days (if there is no state or local agency involved) or 300 days (it there is an appropriate state and local agency) of the most recent discrete incident of harassment, according to National Railroad Passenger Corp. v. Morgan.30
8-3d EEOC Procedure for Handling Complaints
Upon receipt of a properly filed complaint, the EEOC has 10 days to serve a notice of the complaint with the employer, union, or agency alleged to have discriminated (the respon- dent). Following service upon the respondent, the EEOC staff conducts an investigation into the complaint to determine whether reasonable cause exists to believe it is true. If no reasonable cause is found, the charge is dismissed. If reasonable cause to believe the complaint is found, the commission will attempt to settle the complaint through voluntary conciliation, persuasion, and negotiation. If the voluntary procedures are unsuccessful in resolving the complaint after 30 days from its filing, the EEOC may file suit in a federal district court.
If the EEOC dismisses the complaint or decides not to file suit, it notifies the complainant that he or she may file suit on his or her own. The complainant must file suit within ninety days of receiving the right-to-sue notice.
When the EEOC has not dismissed the complaint but has also not filed suit or acted upon the complaint within 180 days of its filing, the complainant may request a right-to- sue letter. Again, the complainant has ninety days from the notification to file suit. The suit may be filed:
• in the district court in the district where the alleged unlawful employment practice occurred;
• where the relevant employment records are kept; or • where the complainant would have been employed.
In Yellow Freight System, Inc. v. Donnelly,31 the Supreme Court held that the federal courts do not have exclusive jurisdiction over Title VII claims; state courts are competent to adjudicate claims based on federal law such as Title VII. This means that the individual may file suit in either the federal or appropriate state court.
Because the complainant may be required to file first with a state or local agency and may file his or her own suit if the EEOC has not acted within 180 days, several legal proceedings involving the complaint may occur at the same time. What is the effect of a state court decision dismissing the complaint on a subsequent suit filed in federal court? In Kremer v. Chemical Construction Co.,32 the U.S. Supreme Court held that a plaintiff who loses a discrimination suit in a state court is precluded from filing a Title VII suit based on the same facts in federal court. According to Kremer, the complainant who is unsuccessful in the state courts does not get a second chance to file a suit based on the same facts in federal court because of the full-faith-and-credit doctrine. However, the holding in Kremer was limited only to the effect of a state court decision.
What is the effect of a negative determination by a state administrative agency on the complainant’s right to sue in federal court? In University of Tennessee v. Elliot,33 the Supreme Court held that the full-faith-and-credit doctrine did not apply to state admin- istrative agency decisions. Hence, a negative determination by the state agency would not preclude the complainant from suing in federal court under Title VII. (The Court in Elliot did hold that the findings of fact made by the state agency should be given preclusive effect by the federal courts in suits filed under 42 U.S. 1981 and 1983.)
The Relationship Between Title VII and Other Statutory Remedies
In Tipler v. E. I. du Pont de Nemours,34 the U.S. Court of Appeals for the Sixth Circuit held that the NLRB’s rejection of an unfair labor practice charge alleging racial discrimination does not preclude the filing of a Title VII suit growing out of the same situation. However, if an employee had voluntarily accepted reinstatement with back pay in settlement of his or her grievance against the employer, the U.S. Court of Appeals for the Fifth Circuit held that the employee had waived his or her right to sue under Title VII on the same facts.35
In the case of Johnson v. Railway Express Agency,36 the Supreme Court held that an action under Title VII is separate and distinct from an action alleging race discrimination under the Civil Rights Act of 1866, 42 U.S.C., Section 1981 (see Chapter 11).
8-4 Burdens of Proof: Establishing a Case
Once the complaint of an unlawful employment practice under Title VII has become the subject of a suit in a federal district court, the question of the burden of proof arises. What must the plaintiff show to establish a valid claim of discrimination? What must the defen- dant show to defeat a claim of discrimination?
The plaintiff in a suit under Title VII always carries the burden of proof; that is, the plaintiff must persuade the trier of fact (the jury or the judge if there is no jury) that there has been a violation of Title VII. To do this, the plaintiff must estab- lish a prima facie case of discrimination—enough evidence to raise a presumption of discrimination. If the plaintiff is unable to establish a prima facie case of discrimina- tion, the case will be dismissed. The specific elements of a prima facie case, or the means to establish it, will vary depending on whether the complaint involves disparate treatment (intentional discrimination) or disparate impact (the discriminatory effects of apparently neutral criteria).
The plaintiff may use either anecdotal evidence or statistical evidence to establish the prima facie case. In Bazemore v. Friday, the plaintiffs offered a statistical multiple- regression analysis to demonstrate that pay policies discriminated against African American employees. The employer argued that the multiple-regression analysis did not consider several variables that were important in determining employees’ pay. The trial court and the court of appeals refused to admit the multiple-regression analysis as evidence because it did not include all relevant variables. On appeal, however, the Supreme Court held that the multiple-regression-analysis evidence should have been admitted. The failure of the analysis to include all relevant variables affects its probative value (the weight given to it by the trier of fact), not its admissibility.
According to the U.S. Supreme Court decision in Desert Palace, Inc. v. Costa,37 a plaintiff seeking to establish a mixed-motive case under Section 703(m) of Title VII need only demonstrate that the defendant used a prohibited factor (race, color, gender, religion, or natural origin) as one of the motives for an employment action. That demonstration can be made either by circumstantial evidence or direct evidence. The act does not require direct evidence to raise the mixed-motive analysis under Section 703(m).
8-4a Disparate Treatment Claims
Claims of disparate treatment involve allegations of intentional discrimination in employ- ment. A plaintiff alleging disparate treatment must establish that he or she was subjected to less favorable treatment because of his or her race, color, religion, gender, or national origin. The specific elements of a prima facie case of disparate treatment under Title VII are discussed in the following case.
CaSe 8.6
mCdonneLL dougLas Corp. v. green
411 U.S. 792 (1973)
232 Part 2 Equal Employment Opportunity
Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
CaSe 8.6
mCdonneLL dougLas Corp. v. green
411 U.S. 792 (1973)
Powell, J.
The case before us raises significant questions as to the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964.
Petitioner, McDonnell Douglas Corporation, is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for peti- tioner as a mechanic and laboratory technician from 1956 until August 28, 1964 when he was laid off in the course of a general reduction in petitioner’s work force.
Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent’s participation in, the “stall-in” as follows:
… five teams, each consisting of four cars, would “tie-up” five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour….
… On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though respondent apparently knew beforehand of the “lock-in,” the full extent of his involvement remains uncertain.
Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent’s trade, and respondent promptly applied for reemployment. Petitioner turned down respondent, basing its rejection on respondent’s participation in the “stall-in” and “lock-in.” Shortly thereafter, respondent filed a formal
complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement in violation of Sections 703(a)(1) and 704(a)…. The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.
The Commission made no finding on respondent’s alle- gation of racial bias under Section 703(a)(1), but it did find reasonable cause to believe petitioner had violated Section 704(a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.
On April 15, 1968, respondent brought the present action, claiming initially a violation of Section 704(a) and, in an amended complaint, a violation of Section 703(a)(1) as well. The District Court dismissed the latter claim of racial discrimination in petitioner’s hiring procedures…. The District Court also found that petitioner’s refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or Section 704 protected “such activity as employed by the plaintiff in the ‘stall-in’ and ‘lock-in’ demonstrations.”
… On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under Section 704(a), but reversed the dismissal of respondent’s Section 703(a)(1) claim relating to racially discriminatory hiring practices … The court ordered the case remanded for trial of respon- dent’s claim under Section 703(a)(1).
… The critical issue before us concerns the order and allocation of proof in a private, single-plaintiff action chal- lenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.
As noted in [Griggs v. Duke Power Co.]:
Congress did not intend Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification….
There are societal as well as personal interests on both sides of this equation. The broad, overriding interest shared by employer, employee, and consumer, is efficient and trust- worthy workmanship assured through fair and racially neutral employment and personnel decisions. In the imple- mentation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.
In this case, respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.” Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions….
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he had applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the posi- tion remained open and the employer continued to seek applicants from persons of complainant’s qualifications. In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case…. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner, moreover, does not dispute respondent’s qualifications and acknowledges that his past work performance in petitioner’s employ was “satisfactory.”
The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for respondent’s rejection. We need not attempt in the instant case to detail
every matter which fairly could be recognized as a reason- able basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.
The Court of Appeals intimated, however, that peti- tioner’s stated reason for refusing to rehire respondent was a “subjective” rather than objective criterion which “carries little weight in rebutting charges of discrimina- tion.” Regardless of whether this was the intended import of the opinion, we think the court below seriously under- estimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access and egress to petitioner’s plant at a peak traffic hour. Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it….
… Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimi- nation prohibited by Section 703(a)(1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretextual. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were neverthe- less retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
Other evidence that may be relevant to any showing of pretextuality includes facts as to the petitioner’s treat- ment of respondent during his prior term of employment, petitioner’s reaction, if any, to respondent’s legitimate civil rights activities, and petitioner’s general policy and prac- tice with respect to minority employment. On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by compe- tent evidence that the presumptively valid reasons for his
rejection were in fact a coverup for a racially discrimina- tory decision….
Case Questions
1. How can a plaintiff establish a prima facie case of dis- parate treatment discrimination?
2. What was McDonnell Douglas’s reason for refusing to rehire Green? Why did Green argue that the reason was a pretext for illegal discrimination?
3. How could Green convince the Court that McDonnell Douglas’s reason was a pretext? What evidence would be relevant to such a showing? What would be the effect of such a showing?
Defendant’s Burden
If the plaintiff is successful in establishing a prima facie case of disparate treatment, the defendant must then try to overcome the plaintiff’s claims. Is the defendant required to disprove those claims, prove that there was no discrimination, or merely explain the apparent discrimination? What is the nature of the defendant’s burden in a disparate treatment case? In Texas Department of Community Affairs v. Burdine,38 the U.S. Supreme Court stated:
The nature of the burden that shifts to the defendant should be understood in light of the plaintiffs ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff…. The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff ’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted….
According to Burdine, the defendant need only “articulate” some legitimate justifica- tion for its actions; the burden of proof—of persuading the trier of fact—remains with the plaintiff. Although the defendant need not prove that there was no discrimination, the nondiscriminatory justification or explanation offered by the defendant must be believable. Obviously, if the defendant’s justification is not credible, then the plaintiff ’s prima facie case will not be rebutted, and the plaintiff will prevail.
Plaintiff’s Burden of Showing Pretext
After the defendant has advanced a legitimate justification to counter, or rebut, the plain- tiff ’s prima facie case, the focus of the proceeding shifts back to the plaintiff. The plaintiff, as was discussed in the McDonnell Douglas case, must be afforded an opportunity to show that the employer’s justification is a mere pretext, or cover-up. This can be shown either directly, by persuading the court that a discriminatory reason likely motivated the defen- dant, or indirectly, by showing that the offered justification is not worthy of credence. The burden of showing that the defendant’s offered justification is a pretext for discrimination is
a very difficult one. According to the Supreme Court decision in St. Mary’s Honor Center v. Hicks,39 the plaintiff, in addition to demonstrating that the defendant’s justification is false, still has to convince the trier of fact that the defendant was motivated by illegal discrimina- tion. In Reeves v. Sanderson Plumbing Products, Inc.,40 when the plaintiff has established a prima facie case of discrimination, and in doing so has provided enough evidence for the trier of fact (jury or judge) to reject the employer’s offered excuse as false, there was sufficient evidence to support a finding that the employer had intentionally discriminated against the plaintiff. (Note that the Reeves case involved a claim under the Age Discrimination in Employment Act, which is discussed in the next chapter, but the burden of proof analysis is also applicable under Title VII.)
8-4b Disparate Impact Claims
Unlike a disparate treatment claim, a claim of disparate impact does not involve an allega- tion of intentional discrimination. Rather, as in Griggs v. Duke Power Co., it involves a claim that neutral job requirements have a discriminatory effect. The plaintiff, in order to estab- lish a prima facie case, must show that the apparently neutral employment requirements or practices have a disproportionate impact upon a class protected by Title VII.
The Supreme Court in the Wards Cove Packing Co. v. Atonio and Watson v. Fort Worth Bank & Trust decisions (see Chapter 6) held that a plaintiff alleging a disparate impact claim must “offer statistical evidence of a kind and degree sufficient to show that the prac- tice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.”
Four-Fifths Rule
As discussed in Chapter 6, one way to establish proof of a disproportionate impact is by using the Four-Fifths Rule from the EEOC Guidelines. The rule states that a disparate impact will be presumed to exist when the selection or pass rate for the protected class with the lowest selection rate is less than 80 percent of the selection or pass rate of the protected class with the highest rate. The Four-Fifths Rule is used primarily when chal- lenging employment tests or requirements such as a high school diploma or minimum height and weight requirements.
Using
Another method of establishing a disparate impact may be by making a statistical compar- ison of the minority representation in the employers’ work force and the minority repre- sentation in the population as a whole (or in the relevant area or labor market). When a job requires specific skills and training, the population used for comparison with the work force may be limited to available qualified individuals within the relevant area or labor market. The court may require specific demographic and geographic comparisons when using statistical evidence, as demonstrated in Hazelwood School Dist. v. U.S.41
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Defendant’s Burden
When the plaintiff has established a prima facie case of disparate impact, the defendant has two methods of responding. The defendant may challenge the statistical analysis, the methods of data collection, or the significance of the plaintiff ’s evidence. The defendant may also submit alternative statistical proof that leads to conclusions that contradict those of the plaintiff’s evidence.
Rather than attacking the plaintiff’s statistical evidence, the defendant alternatively may show that the employment practice, test, or requirement having the disparate impact is job related.
Although the Supreme Court decisions in Watson v. Fort Worth Bank & Trust and Wards Cove Packing Co. v. Atonio both held that the employer need only show some busi- ness justification for the challenged practice, and the plaintiff has the burden of persuasion for showing that the challenged practice is not job related, the 1991 amendments to Title VII overruled those cases. Section 703(k) requires that, once the plaintiff has demonstrated that the challenged practice has a disparate impact, the employer has the burden of persua- sion for convincing the court that the practice is job related.
A defense of job relatedness can be established by using the methods of demonstrating validity set out in the Uniform Guidelines for Employee Selection. (The methods of demonstrating that a test or requirement is content valid, construct valid, or criterion valid are described in Chapter 6.)
If the defendant establishes that the practice, requirement, or test is job related, the plaintiff may still prevail by showing that other tests, practices, or requirements that do not have disparate impacts on protected classes are available and would satisfy the defendant’s legitimate business concerns. The plaintiff may also try to show that the job-related justifi- cation is really just a pretext for intentional discrimination.
237
After-Acquired Evidence
What happens when the employer, after an employee who was allegedly fired for discrimi- natory reasons has filed a Title VII claim, discovers that the employee had falsified creden- tials on the application for employment? Does the evidence of the plaintiff employee’s misconduct (known as after-acquired evidence) preclude the right of the plaintiff to sue? In McKennon v. Nashville Banner Publishing Co.,42 the Supreme Court held that the after- acquired evidence does not preclude the plaintiff’s suit but rather goes to the issue of the remedies available. If the employer can demonstrate that the employee’s wrongdoing is severe enough to result in termination had the employer known of the misconduct at the time the alleged discrimination occurred, the court must then consider the effect of the wrongdoing on the remedies available to the plaintiff. In such a case, the Supreme Court held that rein- statement would not be appropriate, and back pay may be awarded from the date of the alleged discrimination by the employer to the date upon which the plaintiff’s misconduct was discovered. McKennon involved a suit under the Age Discrimination in Employment Act, but the after-acquired evidence rule has also been applied in Title VII suits, like Wallace v. Dunn Construction Co.43 Evidence of the plaintiff’s misconduct that occurs after the plaintiff was terminated was not relevant to the plaintiff ’s claim of discrimination and was excluded by the court in Carr v. Woodbury County Juvenile Detention Center.44
8-4c Arbitration of Statutory EEO Claims
Unions and employers generally agree that any disputes arising under their collective agree- ments will be settled through arbitration. More recently, an increasing number of employers whose employees are not unionized are requiring their employees to agree to settle any employment disputes through arbitration rather than litigation in the courts. Employers tend to favor arbitration because it is generally quicker than litigation, it is confidential while court decisions are public, and the remedies available under arbitration may be less generous than those available through the courts. What is the effect of such arbitration agreements on the employee’s ability to bring a suit under Title VII or other EEO legislation?
In Alexander v. Gardner Denver Co.,45 the Supreme Court held that an arbitration proceeding under a collective agreement did not prevent an employee from filing suit alleging a violation of Title VII. The employee had lost in an arbitration challenging his discharge under the collective agreement but was still permitted to bring a Title VII suit in court. The Supreme Court held that the arbitration dealt with the employee’s rights under the collective agreement, which were distinct from the employee’s statutory rights under Title VII.
Seventeen years later, in Gilmer v. Interstate/Johnson Lane Corp.,46 the Supreme Court held that a securities broker was required to arbitrate, rather than litigate, his age discrimi- nation claim because he had signed an agreement to arbitrate all disputes arising from his employment. The arbitration agreement was included in Gilmer’s registration with the New York Securities Exchange, which was required for him to work as a broker. The Supreme
Court in Gilmer held that the individual agreement to arbitrate, voluntarily agreed to by Gilmer, was enforceable under the Federal Arbitration Act (FAA) and required Gilmer to submit all employment disputes, including those under EEO legislation, to arbitration. The agreement to arbitrate did not waive Gilmer’s rights under the statutes but simply required that those rights be determined by the arbitrator rather than the courts. The Court in Gilmer emphasized that it involved a different situation from Alexander v. Gardner Denver, which continued to apply when arbitration under a collective agreement was involved.
The distinctions between the Alexander case and the Gilmer case need to be emphasized. In Gilmer, the individual employee had agreed, as part of an agreement connected with his employment, to arbitrate all disputes growing out of that employment. In Alexander, the union and the employer had agreed, as part of a collective agreement, to arbitrate employ- ment disputes arising under that collective agreement. The individual employee, while subject to the collective agreement, had not personally agreed to arbitrate any disputes.
The WORKING
Equal Employment Opportunity Commission Adopts Mediation
Mediation ediation is an informal and confidential way for people to resolve disputes with the help of a neutral mediator who is trained to help people discuss their
differences. The mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps the parties work out their own solutions to problems.
Note: Federal agencies are required to have an alternative dispute resolution program. Most use mediation, but not necessarily the EEOC process.
Benefits of Mediation
One of the greatest benefits of mediation is that it allows people to resolve the charge in a friendly way and in ways that meet their own unique needs. Also, a charge can be resolved faster through mediation. While it takes less than 3 months on average to resolve a charge through mediation, it can take 6 months or longer for a charge to be investigated. Mediation is fair, efficient and can help the parties avoid a lengthy investigation and litigation.
EEOC’s Mediation Process
Shortly after a charge is filed, we may contact both the employee and employer to ask if they are interested in participating in mediation. The decision to mediate is completely volun- tary. If either party turns down mediation, the charge will be forwarded to an investigator. If both parties agree to mediate, we will schedule a mediation, which will be conducted by a trained and experienced mediator. If the parties do not reach an agreement at the media- tion, the charge will be investigated like any other charge. A written signed agreement reached during mediation is enforceable in court just like any other contract.
Duration and Cost of Mediation
A mediation session usually lasts from 3 to 4 hours, although the time can vary depending on how complicated the case is. There is no charge to either party to attend the mediation.
Who Should Attend the Mediation
All parties to the charge should attend the mediation session. If you are representing the employer, you should be familiar with the facts of the charge and have the authority to settle the charge on behalf of the employer. Although you don’t have to bring an attorney with you to the mediation, either party may choose to do so. The mediator will decide what role the attorney will play during the mediation.
Learn More About Mediation
If you would like to learn more about mediation, we have extensive information about EEOC’s Mediation Program available.
Source: EEOC, “Employees & Applicants: Mediation,” available at http://www.eeoc.gov/ employees/mediation.cfm.
Arbitration Clauses in Collective Agreements
The U.S. Supreme Court took a step toward resolving the distinction between Gilmer and Alexander when it decided the case of 14 Penn Plaza v. Pyett.47 That case involved age discrimination claims filed by employees covered by a collective agreement that included an arbitration clause that specifically covered any claims under Title VII, the Age Discrimination in Employment Act, and other EEO legislation. The Court held that the employees were required to arbitrate their age discrimination claims. The Court noted that Alexander rationale that arbitration dealt with contractual rights while litigation dealt with the employee’s statutory rights did not apply where the collective bargaining agreement’s arbitration provision expressly includes statutory claims as well as contractual claims arising under the terms of the collective agreement. The effect of the decision in 14 Penn Plaza v. Pyett may not be to completely overrule Alexander, however, because the Court specifically refrained from holding that employees must arbitrate their statutory EEO claims when the union controls access to arbitration and may prevent the employees from pursuing their EEO claims through arbitration.
Individual Agreements to Arbitrate Employment Discrimination Disputes
The Gilmer case involved a claim of age discrimination under the Age Discrimination in Employment Act, but courts soon applied its reasoning to discrimination claims under Title VII and other federal and state employment discrimination legislation.
The FAA requires federal courts to enforce agreements to arbitrate if they are voluntary and knowing. However, Section 1 of the FAA states that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” How broadly should the courts read the exception for “contracts of employment” in Section 1 of the FAA? Does it encompass all employment contracts, or is it limited to the specific kinds of contracts mentioned? This issue, which was not directly addressed by the Gilmer case, was decided by the U.S. Supreme Court in the case of Circuit City Stores, Inc. v. Adams.48 The Supreme Court held that Section 1 of the FAA excludes only contracts of employment of the specific classes of workers listed in the statute. In Circuit
City, the employer’s application for employment contained a dispute resolution agreement requiring employees to submit all employment disputes to binding arbitration. Applicants who refused to sign the dispute resolution agreement were not hired. The Supreme Court held that such an agreement is enforceable under the FAA and that employees signing the agreement are precluded from suing the employer over employment disputes. While indi- vidual employees may be bound by arbitration agreements in their contracts of employment, the individual arbitration agreements do not prevent the EEOC from bringing suit against an employer to enforce EEO laws according to EEOC v. Waffle House, Inc.49 The EEOC can bring legal action to enforce the EEO statutes and may also seek individual remedies (such as back pay and reinstatement) for the employee who had signed the arbitration agreement.
Challenges to the Enforceability of Agreements to Arbitrate
The Circuit City decision means that employers may insist upon employees agreeing to arbitrate employment disputes as a condition of employment; applicants or employees who refuse to agree to such provisions will not be hired or will be fired. Because employers can force such arbitration agreements upon employees, a court asked to enforce an agreement to arbitrate must be satisfied that the agreement is knowing and reasonable. In Brisentine v. Stone & Webster Engineering Corp.,50 the U.S. Court of Appeals for the Eleventh Circuit stated that, for an arbitration agreement to be enforced, it must meet three requirements:
• The employee must have individually agreed to the arbitration provision
• The arbitration must authorize the arbitrator to resolve the statutory EEO claims
• The agreement must give the employee the right to insist on arbitration if the statu- tory EEO claim is not resolved to his or her satisfaction in any grievance procedure or dispute resolution process of the employer
Most courts now take the position that an agreement to arbitrate, knowingly and voluntarily agreed to by an employee, is binding and requires the employee to arbitrate EEO claims instead of taking them to court. Arbitration agreements that were not know- ingly agreed to will not be enforced, as shown in Prudential Insurance Co. v. Lai,51 nor will the courts enforce agreements that are not binding upon the employer or that are unfair to the employee, according to Hooters of America, Inc. v. Phillips52 and Floss v. Ryan’s Family Steak Houses.53 The courts will also refuse to enforce arbitration agreements that restrict remedies available to employees less than those remedies available under the appropriate EEO statute.54 The California Supreme Court, in the case of Armendariz v. Foundation Health Psychcare Services, Inc.,55 set out requirements for enforcing agreements requiring arbitration of claims under California state employment discrimination legislation:
• the arbitration must be by a neutral arbitrator; • the arbitration procedures must allow the parties access to witnesses and essential documents;
• the arbitrator must provide a written decision;
• the remedies available under the arbitration must be similar to those available in court; and
• the employee may not be required to pay any arbitrators’ fees or expenses or any unrea- sonable costs as a condition of going to arbitration.
While Armendariz deals with state law, some federal courts have adopted its analysis with regard to enforcing mandatory agreements to arbitrate.
Costs of Arbitration
Some challenges to the enforceability of arbitration agreements involve the question of cost: Does the arbitration agreement require the employee to bear unreasonable costs? As mentioned in Armendariz, arbitration agreements that impose excessive costs on employees could operate to deter those employees from bringing complaints of employment discrimi- nation. Because the employees may be required to arbitrate rather than litigate their claims, they are effectively denied the protection of the EEO laws. As a result, the courts have refused to enforce arbitration agreements that require the employee to bear unreasonable expenses associated with the arbitration. In Green Tree Financial Corp. v. Randolph,56 which was not an employment case, the Supreme Court held that the party seeking to invalidate an arbitration agreement because it would be prohibitively expensive has the burden of demonstrating the likelihood of incurring such costs.
After Green Tree, the federal courts have struggled with the question of when the cost requirements of arbitration become prohibitively or unreasonably expensive. Plaintiffs who file EEO suits in the federal courts are required to pay a filing fee (currently less than $300) and must also bear the cost of legal representation. Attorneys for plaintiffs are likely to take such cases on a contingency basis (they will only charge legal fees if the plaintiff wins the suit). Title VII also provides that successful plaintiffs may recover legal fees as part of the statutory remedies available. In contrast, the employee filing for arbi- tration will be required to pay a filing fee and will also generally be held to pay at least half of the arbitrator’s fees and expenses. There may be additional fees for administrative costs, for discovery proceedings, and for subpoenas of witnesses. One study estimated that the costs of filing for arbitration (based on holding three days of hearings) ranged between $3,950 and $10,925.57 Requiring an employee to pay such expenses to pursue an employment discrimination claim may have the effect of deterring the employee from doing so. Some employers may have an incentive to impose arbitration requirements with high costs to prevent employees from filing employment discrimination claims. As a result, the courts have been sensitive to claims that the arbitration agreement imposes unreasonable costs on the employee.
In Armendariz v. Foundation Health Psychcare Services, Inc., the California Supreme Court held that an arbitration agreement that required the employee to pay any expenses beyond that which would be required to file a suit in court would be unreasonable and not enforceable. In Morrison v. Circuit City Stores, Inc.,58 the court held that a “fee-splitting clause (which required the employee and the employer to split the costs of the arbitration
and the arbitrator’s fees) would be unreasonable and unenforceable when it would deter a substantial number of potential claimants from exerting their statutory rights.
The court, in making such a determination, should consider the employee’s income and resources available, the potential costs of arbitration, and the costs of litigation as an alternative to arbitration. Such an approach may yield different results for different employees: For highly paid executive employees, fee-splitting requirements would be affordable and therefore enforceable, but for lower-level employees, such cost require- ments would not be enforceable. In the Morrison case, the court required the employee to arbitrate her claim but held that the employer had to pay the costs of the arbitration. Other courts have held fee-splitting clauses unreasonable per se. Such requirements are unenforceable because, by requiring the employee to pay at least some of the costs of arbitration, they automatically limit the remedies that would be available to the employee under Title VII.59
8-4d Private Settlement and Release Agreements
In 2014, the EEOC took the position that private settlement-and-release agreements between employers and current or former employers are unenforceable to the extent that they potentially interfere with the employee’s future access to the agency and/or future ability to cooperate in agency investigations. On February 7, 2014, the EEOC sued CVS for unlawfully violating employees’ right to communicate with the agency and to file charges.
According to the EEOC, CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print. The agreement interfered with employees’ right to file discrimination charges and/or communicate and cooperate with the EEOC, the agency said.
Interfering with these employee rights violates Section 707 of Title VII of the Civil Rights Act of 1964, which prohibits employer conduct that constitutes a pattern or practice of resistance to the rights protected by Title VII, the EEOC said. Section 707 permits the agency to seek immediate relief without the same pre-suit administrative process that is required under Section 706 of Title VII, and does not require that the agency’s suit arise from a discrimination charge.60
8-4e Remedies Under Title VII Plaintiffs under Title VII are entitled to a jury trial on their claims. The remedies available to a
successful plaintiff under Title VII are spelled out in Section 706(g). These remedies include:
• Judicial orders requiring hiring or reinstatement of employees • Awarding of back pay and seniority
Injunctions against unlawful employment practices • “Such affirmative action as may be appropriate”
Section 706(k) provides that the court, in its discretion, may award legal fees to a prevailing party other than the EEOC or the United States. The Civil Rights Act of 1991 added the right to recover compensatory and punitive damages for intentional violations of Title VII. Individual employees, even those in supervisory or managerial positions, are not personally liable under Title VII.61
Back Pay
Section 706(g) states that the court may award back pay to a successful plaintiff. Back-pay orders spelled out by that section have some limitations, however. Section 706(g) provides that no back- pay order shall extend to a period prior to two years before the date of the filing of a complaint with the EEOC. It also provides that “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” That section imposes a duty to mitigate damages upon the plaintiff.
Although Section 706(g) states that a court may award back pay, it does not require that such an award always be made. What principles should guide the court on the issue of whether to award back pay?
According to the Supreme Court in Albemarle Paper Co. v. Moody,62 Title VII is remedial in nature and is intended to “make whole” victims of discrimination. Therefore, a successful plaintiff should be awarded back pay as a matter of course. Back pay should be denied only in exceptional circumstances, such as when it would frustrate the purpose of Title VII.
In Ford Motor Co. v. EEOC,63 the Supreme Court held that an employer’s back-pay liability may be limited to the period prior to the date of an unconditional offer of a job to the plaintiff, even though the offer did not include seniority retroactive to the date of the alleged discrimination. The plaintiff ’s rejection of the offer, in the absence of special circumstances, would end the accrual of back-pay liability of the employer.
In addition, Section 706(g)(2)(B), added by the 1991 amendments to Title VII, limits an employer’s liability in mixed-motive cases, provided that the employer can demonstrate that it would have reached the same decision even without consideration of the illegal factor. In these situations, the employer is subject to the court’s injunctive or declaratory remedies and is liable for legal fees but is not liable for back pay or other damages, nor is the employer required to hire or reinstate the complainant.
Front Pay
In some cases, if a hiring or reinstatement order may not be appropriate or if there is exces- sive animosity between the parties, the court may award the plaintiff front pay—monetary damages in lieu of reinstatement or hiring. The question of whether front pay is appro- priate is a question for the judge, as is the determination of the amount of front pay. The amount of front pay depends upon the circumstances of each case. The court will consider factors such as the employability of the plaintiff and the likely duration of the employment.
Any front pay awarded to the plaintiff by the court is separate from any compensatory and punitive damages awarded. The front-pay award is not subject to the statutory limits (discussed in the next section) placed on the compensatory and punitive damages awards, according to the Supreme Court decision in Pollard v. E. I. du Pont de Nemours & Co.64
8-4f Compensatory and Punitive Damages
The right to recover compensatory and punitive damages for intentional violations of Title VII was created by the Civil Rights Act of 1991, which amended Title VII. The 1991 act allows claims for compensatory and punitive damages, in addition to any remedies recover- able under Section 706(g) of Title VII, to be brought under 42 U.S.C. Section 1981, as amended by the 1991 act. Section 1981 (discussed in detail in Chapter 11) allows recovery of damages for intentional race discrimination. The Civil Rights Act of 1991 added a section to 42 U.S.C. Section 1981 that allows damages suits for intentional discrimina- tion in violation of Title VII, for which the plaintiff could not recover under Section 1981 (i.e., discrimination because of gender, religion, or national origin).
If the plaintiff can demonstrate that a private sector defendant (not a governmental unit, agency, or other public sector entity) has engaged “in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual,” the plaintiff can recover compensatory and puni- tive damages. Punitive damages are not recoverable against public sector defendants. The compensatory and punitive damages are separate from, and in addition to, any back pay, interest, front pay, legal fees, or other remedies recovered under Section 706(g) of Title VII.
The compensatory and punitive damages recoverable under the amended Section 1981 are subject to statutory limits, depending on the number of employees of the defendant-employer:
• For employers with more than 14 but fewer than 101 employees, the damages recover- able are limited to $50,000
• For defendants with more than 100 but fewer than 201 employees, the limit is $100,000 • For more than 200 but fewer than 501 employees, it is $200,000 • For employers with more than 500 employees, the limit is $300,000
The number of people employed by a defendant-employer is determined by consid- ering the number employed in each week of 20 or more calendar weeks in the current or preceding year.
Plaintiffs bringing a claim for damages under the amended Section 1981 have the right to a jury trial. As noted, punitive and compensatory damages are not recoverable against a public sector employer; punitive and compensatory damages are only recoverable for inten- tional discrimination and not for claims of disparate impact discrimination. Punitive and compensatory damages under the amended Section 1981 are also recoverable for inten- tional violations of the Americans with Disabilities Act of 1990 (discussed in Chapter 10.)
When an employee has convinced the court that there was hostile environment harass- ment (based on race, sex, religion, or national origin) in violation of Title VII, the employer may be held liable for damages for all the acts that contributed to the hostile environment,
even though some of those acts may have occurred more than 300 days (or 180 days, if appropriate) prior to the date on which the employee filed the complaint according to National Railroad Passenger Corp. v. Morgan.65
The federal courts of appeals have split on the question of whether a plaintiff who prevails under state law in a state agency and state court can file suit in federal court under Title VII to recover remedies that were not available under state law. In Nestor v. Pratt & Whitney,66 the U.S. Court of Appeals for the Second Circuit allowed a plaintiff alleging sex discrimination to bring a suit under Title VII to recover compensatory and punitive damages. The plaintiff had been awarded back pay under Connecticut legislation, which did not provide for compensatory and punitive damages. The U.S. Court of Appeals for the Eighth Circuit, in Jones v. American State Bank,67 and the U.S. Court of Appeals for the Seventh Circuit, in Patzer v. Board of Regents,68 have also allowed such suits. However, the U.S. Court of Appeals for the Fourth Circuit has held a plaintiff who is successful before a state administrative agency may not file suit under Title VII to recover remedies that were not available under the state law.69
Limitations on Remedies for Mixed Motive Discrimination
In cases involving mixed motive discrimination claims under Section 703(m) of Title VII [see the discussion of the Hopkins case and Section 703(m) in Chapter 6], Section 706(g)(2)(B) provides that an employer will not be liable for damages when the employer can demonstrate that it would have reached the same decision even without consideration of the illegal factor. Where the employer has met the “same decision” test, the court will only issue a declaration or injunction and award the plaintiff legal fees. The plaintiff is not entitled to be hired, rein- stated, or receive back pay, front pay, or compensatory and punitive damages.
Employer Liability for Punitive Damages Under Title VII
Prior to being amended in 1991, Title VII did not provide for the recovery of punitive or compensatory damages. Successful plaintiffs were limited to recovering wages, benefits, and legal fees. The Civil Rights Act of 1991 amended Title VII to allow recovery of puni- tive damages in cases in which the employer has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Under what circumstances should employers be held liable for punitive damages under Title VII? Are there any defenses that employers may raise to avoid liability for punitive damages? In Kolstad v. American Dental Association,70 the Supreme Court answered those questions:
The employer must act with “malice or with reckless indifference to [the plaintiffs] federally protected rights.” The terms “malice” or “reckless indifference” pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination…. An employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages. There will be circumstances
where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability…. Holding employers liable for punitive damages when they engage in good faith efforts to comply with Title VII, however, is in some tension with the very principles underlying common law limitations on vicarious liability for punitive damages—that it is “improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously.” Where an employer has undertaken such good faith efforts at Title VII compliance, it “demonstrates] that it never acted in reckless disregard of federally protected rights.”
… We agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith efforts to comply with Title VII.”
8-4g Remedial Seniority
The Teamsters case, discussed in Chapter 6, held that a bona fide seniority system is protected by Section 703(h), even when it perpetuates the effects of prior discrimina- tion. If the court is prevented from restructuring the bona fide seniority system, how can the court remedy the prior discrimination suffered by the plaintiffs? In Franks v. Bowman Transportation Co.,71 the Supreme Court held that remedial seniority may be awarded to the victims of prior discrimination to overcome the effects of discrimination perpetuated by the bona fide seniority system. The Court stated that “the denial of seniority relief to victims of illegal … discrimination in hiring is permissible ‘only for reasons which, if applied gener- ally, would not frustrate the central statutory purposes of eradicating discrimination … and making persons whole for injuries suffered through past discrimination….’”
The granting of remedial seniority may be necessary to place the victims of discrimina- tion in the position they would have been in had no illegal discrimination occurred.
8-4h Legal Fees
Section 706(k) provides that the court, in its discretion, may award “reasonable attorney’s fees” under Title VII. The section also states that the United States or the EEOC may not recover legal fees if they prevail, but shall be liable for costs “the same as a private person” if they do not prevail.
In New York Gaslight Club v. Carey,72 the Supreme Court held that an award of attor- ney’s fees under Section 706(k) can include fees for the legal proceedings before the state or local agency when the complainant is required to file with that agency by Section 706(c).
Section 706(k) does not require that attorney’s fees be awarded to a prevailing party; the award is at the court’s discretion. In Christianburg Garment Co. v. EEOC,73 the Supreme Court held that a successful plaintiff should generally be awarded legal fees except in special circumstances. A prevailing defendant should be awarded legal fees only when the court determines that the plaintiff’s case was frivolous, unreasonable, vexatious, or meritless. A case is meritless, according to the Court, not simply because the plaintiff lost, but
where the plaintiff ’s case was “groundless or without foundation.” Why should prevailing defendants be treated differently than prevailing plaintiffs under Title VII?
8-4i Class Actions
The rules of procedure for the federal courts allow an individual plaintiff to sue on behalf of a whole class of individuals allegedly suffering the same harm. Rule 23 of the Federal Rules of Civil Procedure allows such suits, known as class actions, when several conditions are met. First, the number of members of the class is so numerous that it would be “impracticable” to have them join the suit individually. Second, there must be issues of fact or law common to the claims of all members. Third, the claims of the individual seeking to represent the entire class must be typical of the claims of the members of the class. Finally, the individual representative must fairly and adequately protect the interests of the class.
When these conditions are met, the court may certify the suit as a class-action suit on behalf of all members of the class. Individuals challenging employment discrimination under Title VII may sue on behalf of all individuals affected by the alleged discrimination by complying with the requirements of Rule 23. In General Telephone Co. of the Southwest v. Falcon,74 the Supreme Court held that an employee alleging that he was denied promotion due to national origin discrimination is not a proper representative of the class of indi- viduals denied hiring by the employer due to discrimination. The plaintiff had not suffered the same injuries allegedly suffered by the class members.
The EEOC need not seek certification as a class representative under Rule 23 to seek classwide remedies under Title VII, according to the Supreme Court decision in General Telephone v. EEOC.75 The EEOC, said the Court, acts to vindicate public policy and not just to protect personal interests.
Remedies in Class Actions
Classwide remedies are appropriate under Title VII according to the Supreme Court’s holding in Franks v. Bowman Transportation Co.,76 which authorized such classwide “make whole” orders. In Local 28, Sheet Metal Workers v. EEOC (see Chapter 6), the Supreme Court upheld court-ordered affirmative action to remedy prior employment discrimination. The Court specifically said affirmative relief may be available to minority group members who were not personally victimized by the employer’s prior discrimination. Additionally, in Local 93, Int’l Ass’n. of Firefighters v. Cleveland (see Chapter 11), the Supreme Court approved a consent decree that imposed affirmative action to remedy prior discrimination, again upholding the right of nonvictims to benefit from the affirmative remedy.
8-4j Public Employees Under Title VII
Title VII was amended in 1972 to cover the employees of state and local employers. These employees are subject to the same procedural requirements as private employees. However, Section 706(f)(1) authorizes the U.S. attorney general, rather than the EEOC, to file suit under Title VII against a state or local public employer.
Most federal employees are covered by Title VII but are subject to different procedural requirements. Section 701(b) excludes the United States, wholly owned federal government corporations, and any department or agency of the District of Columbia subject to civil service regulations from the definition of “employer” under Title VII. Section 717 of the act does provide, however, that “All personnel actions affecting employees or applicants for employment … in posi- tions under the federal civil service, the D.C. Civil Service and the U.S. Postal Service … shall be made free from any discrimination based on race, color, religion, sex or national origin.”
Section 717 also designated the federal Civil Service Commission as the agency having jurisdiction over complaints of discrimination by federal employees. However, that authority was transferred to the EEOC under Reorganization Plan No. 1 of 1978. The EEOC adopted procedural regulations regarding Title VII complaints by federal employees. A federal employee alleging employment discrimination must first consult with an Equal Employment Opportunity (EEO) counselor within the employee’s own agency. If the employee is not satisfied with the counselor’s resolution of the complaint, the employee can file a formal complaint with the agen- cy’s designated EEO official. The EEO official, after investigating and holding a hearing, renders a decision. That decision can be appealed to the head of the agency. If the employee is not satis- fied with that decision, he or she can either seek judicial review of it or file an appeal with the EEOC. If the employee chooses to file with the EEOC, the complaint is subject to the general EEOC procedures. The employee has 90 days from receiving notice of the EEOC taking final action on the complaint to file suit. The employee may file suit, as well, when the EEOC has not made a decision on the complaint after 180 days from its filing with the EEOC.
Employees of Congress and the White House
The Civil Rights Act of 1991 extended the coverage of Title VII to employees of Congress. Employees of the following offices are subject to Title VII through the Congressional Accountability Act of 1995:
• House of Representatives • Senate • Capitol Guide Service • Capitol Police
• Congressional Budget Office • Office of the Architect of the Capitol • Office of the Attending Physician • Office of Technology Assessment
Those employees can file complaints of illegal discrimination with the Office of Compliance, created by the act, within 180 days of the alleged violation. The Office of Compliance initially attempts to resolve the complaint through counseling and mediation. If the complaint is still unresolved after the counseling and mediation period, the employee may either seek administrative resolution of the complaint through the Office of Compliance or file suit in federal court. Employees of the executive office of the president, the executive residence at the White House, and the official residence of the vice president are subject to Title VII through the Presidential and Executive Office Accountability Act. Complaints by those employees of violations of Title VII are subject to an initial counseling and mediation period. The employee may then choose to pursue the complaint with the EEOC or file suit in federal court.
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