Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any The Employment Toolkit: Resources for Understanding the and manner+ This document may not Law e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site*Law in whole or part+

2/& Chapter 2

Recurring Legal Concepts

[Note to users: You can click on the case icon end of the IM chapter.] Chapter Ob ecti!es:

to access the case brief included at the

The o !ecti"es for the chapter are to introduce students to Title #$$ of the Ci"il Rights %ct of &'()* pro"ide the mechanics of the %ct* including to whom it applies* the prohi ited categories* how to proceed with alleged "iolations under the %ct* the two theories upon which claims can e rought and the cases which spawned the theories+ ,hen finished with the chapter* the student should ha"e a good o"er"iew of the mechanics and specifics of Title #$$ and why the law was enacted+ Learning Objectives (Click on the icon following the learning objective to be linked to the location in the outline where the chapter addresses that particular objective.) At the conclusion of this chapter, students should be able to:
1. 2.

Explain the history leading up to passage of the Civil Rights Act of 1964. Give examples of the ways that certain groups of people were treated differently before passage of the Civil Rights Act. Discuss what is prohibited by Title VII. Recognize who is covered by Title VII and who is not. State how a Title VII claim is filed and proceeds through the administrative process. Define disparate treatment and an employers defenses to such a claim.

3. 4. 5. 6. 7.

Define disparate impact and how it works, including the four-fifths rule and employer defenses to disparate impact claims. 8. Discuss what management can do to comply with Title VII. Authors Note -uring the first few minutes of your first Employment Law class* if you were to ask students whether it is illegal to discriminate in employment on the asis of gender* race* etc+* "irtually all of them would say yes+ .early e"eryone knows this* yet the area of Employment Law remains ali"e and well//and in fact flourishing mightily//in the courts+ 0ost of the cases of discrimination for which employers are found lia le today stem not from the employer eing o"ertly discriminatory or intentionally malicious+ $nstead* much of it comes from policies or responses ased upon

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/2 societal notions a out certain groups which notions many of us grew up with or ha"e gotten 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any throughmanner+ the media+ Therefore* the student simply knowing the mechanics the orlaw This document may not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site*of in whole part+ is not enough+ 6nowing they should not discriminate is not enough+ ,e must teach them how discrimination occurs+

$f we are to effecti"ely teach students how to a"oid lia ility for workplace discrimination* we must also teach them how to recogni5e it in all of its manifestations+ $t will do little good for them to learn that they must not discriminate on the asis of gender and think they understand this* then* for instance* not recogni5e that it is gender discrimination when an employer refuses to allow a female employee to ha"e toileting facilities that do not cause her to ecome ill 7 Lynch v. Freeman* the 3ender chapter8+ Thus* inherent in a good deal of the su !ect matter* and !ust as important* is making students aware of the e9istence of employment discrimination and its manifestations and impacts+ ,ithout appropriate ackground* students will think of discrimination only as something :awful: people do* and miss the su tleties they might engage in which can e !ust as great a source of employer lia ility+ $t is important to keep in mind that most students taking the course will ha"e een orn more than twenty years after the &'() Ci"il Rights %ct was passed+ ;or all of their li"es it has een illegal to discriminate on the asis of the prohi ited categories+ "ringing students# attention to the actual newspaper classified ad inde$ from ust before passage of the %&'( Ci!il Rights )ct is helpful to show them in a "ery real way what not ha"ing the law meant+ 4owe"er* since discrimination has een illegal all their li"es* they will ha"e little or no e9perience with o"ert* institutionali5ed discrimination* though they will e "aguely aware of the sla"ery* <im Crow laws* and ci"il rights eras of U= history+ -o not take too much for granted in this area+ >ur e9perience with oth students and employees is that many will ha"e only the "aguest knowledge of this+ Using resources such as the *eb+ your library#s !ideos or books on the sub ect+ or tele!ision shows or news items to supplement the introduction to the %ct set forth in the te9t* will e most helpful in pro"iding a measure of historical perspecti"e on why such a law should e passed and is still so acti"e today+ 0uch of the students? ideas 7as well as those of employers* managers and super"isors 8 of what employment discrimination is has een shaped y the media* their family and friends* and y what they ha"e heard of the concept of affirmati"e action+ To them the concept tends to e negati"e and mean lacks and women get !o s they are not @ualified for* while whites and males who are @ualified and had nothing to do with discrimination are left out+ $t can also mean someone has een Aplaying the race cardB or eing Atoo sensiti"eB a out something+ =ince this attitude can get in the way of them seeing the reality of how employment discrimination occurs and when lia ility may e likely to attach to an employer* it should e dispelled+ $t is also important to note that the world the students ha"e li"ed in is @uite different than the one that has heretofore e9isted+ They ha"e seen a female and a lack man as serious contenders for the presidency of the U+=+ They ha"e seen an %frican %merican female secretary of state and an 4ispanic as head of the U+=+ -epartment of <ustice+ They ha"e seen two states pass legislation permitting same/gender marriages+ They ha"e watched* admired and cheered on high profile %frican %merican athletes and perhaps listened to the music or worn the clothing lines of %frican %merican performers or athletes+ They may well ha"e gone to school with students different from

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/H $t may take an effort to get them see that e"en themsel"es and ne"er ha"e noticed a difference+ 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any the possi ility ofdocument discrimination stillscanned* e9istsduplicated* since itforwarded* seems distri so at odds with what they ha"e percei"ed manner+ This may not e copied* uted* or posted on a we site* in whole or part+ as their reality+ 4owe"er* our e9perience has een that the effort is worth it+ >nce students are aware of the reality* they tend to e incensed that the world is not as they thought it was and they wish to get on with the usiness of making sure the laws are enforced so that it will e+

$n order for students to understand where we are today* it is important for them to understand from the outset that the reason the law was passed was ecause of an entire societal approach to certain groups which negati"ely impacted them in the workplace* in housing* education* etc+* therefore protecting them from discrimination did not afford them special pri"ileges* ut was necessary in order to attempt to pro"ide them with the same opportunities as e"eryone else//a concept with its roots in our constitution+ %lso make clear that affirmati"e action is not a out Amaking up for sla"ery*B which has long passed+ $t is a out correcting im alances in employment 7generally "iewed as "estiges of a discriminatory system8 which ha"e een found to e9ist in the employerCs workplace today+ The students ha"e little direct knowledge of the historical asis for the passage of the Ci"il Rights %ct* and this forms an important platform on which the rest of the course is uilt* therefore we ha"e found it most helpful to spend some time discussing these matters+ Dou may want to conduct discussion in which they simply tell you what they know of employment discrimination+ or discrimination in general+ Dou may ,uestion them on issues such as: whether they think discrimination occurs with any fre@uency what they think it isEha"e them gi"e e9amples whether they* or someone they know has e"er e9perienced it what they think the effect is on the employee discriminated against what they think the effect is on the workplace how they think it can e stopped what their feelings are a out the groups we hear most a out alleging discrimination: that is* are they eing o"erly sensiti"e* too confrontational and impatient* etc+ what would they suggest as alternati"esF if discrimination occurs* how do they think it takes placeG that is* does an employer simply say* :we don?t hire womenF*: is it su tle harassment y fellow employeesF* etc+ if they had een in a position of power in the (2?s and this issue arose* how would they ha"e addressed itF =ame legislation as Title #$$F -ifferent in some wayF 4owF what do they think is an appropriate role for an employer who sees employment discrimination occurF

The purpose of the discussion is to assess where the students are in their knowledge of the issues and to lay a foundation for what is to come+ There are no right or wrong answers+ 4owe"er* it is important for students to think a out their attitudes ecause their attitudes form a good deal of what they take into the workplace as managers and super"isors and use as a asis for making !udgment calls a out situations that arise once there+ This greatly impacts what action they will take when employees come to them with complaints of discrimination* or they themsel"es "iew instances of discrimination and determine what action will e taken+ This response can ultimately either help or hurt an employer?s lia ility* depending upon the nature of the attitude and response+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any ,e ha"e found that it may is not an e important part of discussing issues for or you* manner+ This document copied* scanned* duplicated* forwarded* distridiscrimination uted* or posted on a we site* in whole part+ as the

2/)

professor and the one in charge of the class* to pro"ide a safe* non!udgmental classroom en"ironment in which students feel comforta le to share their real feelings a out these issues+ .ot much real learning can take place without this+ This can e done* in part* y telling them your intent and discussing with them the importance of their perceptions a out these issues to the decisions they will make as managers and super"isors* the importance of the classroom en"ironment to the @uality of discussion* including students eing respectful of each other and of the professor and "ice "ersa+ ,e make it clear that each and e"ery student has a right to feel howe"er they want a out the groups discussed* and e"en to e9press their "iews respectfully* ut it is important for them to separate their personal feelings from their legal responsi ilities to their employer in this area+ This relie"es students of the urden of thinking they must make sure they Asay the right thingB all the time 7what some call eing Apolitically correctEa term we do not use8+ $t also means they do not feel like you as their professor are pushing a particular agenda 7if the information you pro"ide happens to e different from their position8+ %llowing the free flow of ideas and e9ploration of our "iews creates the opportunity for new learning to take place that etter informs the studentsC approach to making decisions as managers and super"isors in the future+ =emester after semester we find we are a le to discuss e"en the most contro"ersial topics with the most sensiti"e students* simply y approaching it the right way+ =tudents appreciate the head/on approach and the opportunity to e a le to discuss these issues in a non/!udgmental forum that pro"ides them with information they wanted to know ut did not know where to comforta ly go for answers+ >ur students ha"e een profoundly challenged and ha"e come away from classes with fundamental changes in their "iews simply ecause they ha"e now had e9posure to more information+ $t is touching to see the classes ond as they take the !ourney together and go through the process of gaining insight and information from each other on su !ects they may ne"er ha"e discussed openly across racial* cultural* gender* religious* affinity orientation or ethnic grounds efore+ $t is also important to con"ey that history is history and cannot e changed+ -iscussing history* in which white males may ha"e had o"erwhelming responsi ility for what occurred* is not at all a condemnation of all white males* is not Apicking onB or Asingling outB white males for derision* or any such thing* and make sure that they recogni5e this+ -iscussing history is not for the purpose of making anyone feel guilty* ut rather to gain a proper perspecti"e on where we find oursel"es today and where we can go from here+ ,e ha"e found it helpful to remind our students that they are not responsi le for history and should not lament what cannot e changed+ 4owe"er* they can insure that history not repeat itself y the choices they make today+ ,e ha"e had e9cellent success in getting the students to open up and frankly discuss issues which they may not ha"e heretofore done+ This* in turn* has gi"en them an incredi ly rich appreciation of the depth of the challenges discrimination causes which goes far eyond newspaper headlines and dinner ta le speculation+ $n turn* that etter prepares them to e more effecti"e managers and super"isors+ Dou may ha!e the students keep a ournal for the class+ They should detail what their thoughts are on the area discussed that day+ >"er the course* they are ound to change a great deal and will surprise e"en themsel"es with what they ha"e learned+ The !ournal also has the impact of forcing them to think a out what they ha"e learned and it thus tends to stay with them etter+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/J -uring the course of the class* it has een our e9perience that they will ecome much more aware 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any of theirmanner+ own This attitudes* those of their friends* family and distri media* and they more document may not e copied* scanned* duplicated* forwarded* uted* or posted on a will we site* ecome in whole ormuch part+ sensiti"e to the potential for lia ility in the workplace+ <ournaling* e"en for those who ha"e not done so efore* greatly helps with this+ $n fact* the idea came from our e9perience of ha"ing so many students at the end of the class tell us how far they ha"e come in their thinking a out our issues+ ,e finally decided they would get a kick out of seeing it for themsel"es+ $t has een a success+

,e ha"e found it profoundly helpful to assign students to read articles which are particularly helpful in shedding light on e"aluating and sharing* the reality and "iews of others to which they may otherwise not e e9posed* ut who they may ha"e to address as managers in the workplace+ Reading a out how middle class lack professionals e9perience race discrimination in the workplace and life* the terrain a gay employee must tra"erse in the workplace each day* or how a disa led person percei"es her life and disa ility gi"es the students a new appreciation of the depth and range of these issues+ $n turn* this etter prepares them as managers and super"isors* to e sensiti"e to potential trou le spots which may lead to lia ility+ ;or ideas for articles* feel free to access the ,e page for Iennett/%le9anderCs Employment Law class for a look at the articles she assigns students to read+ The URL is http:--www.terry.uga.edu-/dawndba-+ % one page paper a out the article is generally assigned* e9ploring how the student thinks this article impacts the workplace and their role as a manager or super"isor+ ,hile they think of the assignments as a pain* students ha"e routinely een very glad they read the articles and were re@uired to put their thoughts in the form of a paper+ $t allows them to process their thoughts and con"ey them in a way they would not e a le to do otherwise* and they gain in"alua le insight into issues they had only heard of efore//issues which they now reali5e greatly impact the workplace and their role as managerial employees+ % good tool for making students aware* on an on/going asis* and in the conte9t of the world in which they li"e is to ha"e one of them assigned to bring in and discuss a news article each day + The article may come from any source* ut it must ha"e as its su !ect matter some type of discrimination+ ,e do not limit the articles to employment discrimination ecause we want them to see discrimination in all of its manifestations* only one of which happens to e employment+ $t is important for students to understand that employment discrimination is not isolated+ $t is part of a larger en"ironment of discrimination in e"erything from housing loans to hospital care+ The presenter tells the class a out the article* then the class can ask @uestions for clarification or insight+ $t will not take long efore students egin to see many of the ways in which discrimination is manifested* what its impact on the workplace can e* and how costly it can e for an employer+ The more ways they see discrimination manifested* the more open their eyes will e as managers* super"isors and usiness owners* to recogni5e the possi ility of it when they see it in the workplace+ ,hen articles are not directly a out employment discrimination* ut some other kind of discrimination* it will not e difficult to use this an e9ample of the ripple effect of employment discrimination 7or "ice "ersa8* and also to gi"e further manifestations of ways in which people may e treated differently and its impact on them and society and societyCs "iews a out such matters+ -iscrimination in areas other than employment pro"ide an o"erall conte9t for discrimination* in which discrimination in employment can e seen as !ust one manifestation+ ,e were initially concerned with whether there would e enough appropriate discrimination articles to co"er the entire academic term+ Unfortunately* our fears were unfounded+ There has always een more than enough for students to report on for the entire time we were in class+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/( of the issues arising* and how lind they had =tudents are routinely astonished at the fre@uency 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any een to manner+ them This efore 7their not ours8+ document may characteri5ations* not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site* in whole or part+

,e ha"e found that showing the !ideo of the AB !rime "ime Live tele"ision piece* 0True Colors0 is "ery helpful in setting up the class for a discussion of discrimination+ >ur e9perience is that some of the students may ha"e already seen the piece and now ha"e a conte9t in which to "iew it as more than !ust tele"ision entertainment+ Though it was aired in &''&* the show is still astonishingly 7and unfortunately8 rele"ant+ $n the piece* two men* one lack and one white* who are "irtually the same on paper* are sent to =t+ Louis to see what their e9periences will e when they try to start life there+ They look for a place to li"e* look for !o s* shop at a car dealer* shoe store* !ewelry store and music store+ Each has a hidden camera that records their e9periences+ $n each instance* there is little o"ert discrimination* ut rather* things such as the white man eing warmly greeted as he walks into the shoe store* while the lack man is left to fend for himself as the salesman simply ignores him+ % stopwatch records the time it takes for each to e waited on+ $t is always much longer for the lack man+ The lack man is followed around in the music store* without the clerk e"en asking to help him* while the white male is not+ The lack male is made to wait when shopping for a car* while sales personnel are gathered near y talking* while they immediately come out to help the white customer+ The lack customer is @uoted a larger down payment and higher interest costs than the white customer+ ,hen looking for a !o * the lack man is lectured on lacks eing la5y and gi"ing away !o leads to others who did not pay for the ser"ice* while the white man is pleasantly told of the !o + %t the !o site the lack man is told the !o is no longer open* while the white man is told that it is+ $n searching for an apartment* the white man is gi"en a key to the apartment and told a out the neigh orhood* as if welcoming him+ The lack man is lectured a out how strict the place is* is not gi"en a key* is escorted around* and at one place is told an apartment is taken* while it is offered to the white man+ $f your school does not ha"e a copy* the "ideoKC- can e ordered: Lhone &/M22/JHN/H&H2 or order on line at http:KKCor"ision+com The segment title is ATrue ColorsB and it aired 'K2(K'& The piece is an e9cellent demonstration for students to see how often su tle* unconscious actions towards mem ers of "arious groups may form a per"asi"e pattern of discrimination+ $t makes them aware of the fact that we may not always e looking for workplace discrimination which is o "ious or people who :look: like they would discriminate+ ,e do not want workplace lia ility for discrimination to attach due to our eing unaware of the possi ilities+ ,e ha"e also had great success with an e$ercise we do prior to discussing the specifics of discrimination+ Called Acultural introductionsB* students are put into groups of H to J and are told that each of them has a out J minutes or so to tell the others their name* where they grew up* their socio/economic status* and messages they recei"ed growing up a out 7each8 race* gender* affinity orientation* ethnicity* disa ilities* age* weight and religion+ 0essages means not !ust what their parents told them* ut what general idea they came away with a out the issue from parents* friends* church* teachers* T#* mo"ies* music* ooks* etc+ >ur e9perience is that they will end up wanting to spend far longer talking once the groups get started+ %s the professor* stay away from the groups while discussions are ongoing so that the students are not tempted to change their discussion ecause you are there+ ,hen the groups are finished* ring the students ack together and take each topic in turn and ask the students what they disco"ered+ %nyone can speak+ Dou

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/N can write their comments on the oard+ >ur e9perience with thousands of people 7students and 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any employees8 has een that ecomes apparent that no matter where they grew up* certain manner+ This document may it not@uickly e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site* in whole or part+ ideas tend to pre"ail: women are the caretakers* men are readwinners* white is etter than lack* 4ispanics ha"e lots of kids* eing gay is a no/no* people with disa ilities make us uncomforta le ut we are supposed to e nice to the disa led* etc+ Let their responses flow and put no !udgments on them+ -o not let the students argue a out what comes out in the discussion+ $t is not a out whether the message is right or wrong* AcorrectB or AincorrectB+ $t is a out what the messages were that were recei"ed+

,hen you ha"e recei"ed all the comments for a particular category* clarify for the students the ottom line that seems to come from their discussions+ >ur e9perience has een that they see that no matter where they come from* what their personal e9perience has een* etc+* we pretty much all recei"ed the same asic messages+ Let them know that we come here as empty trash cans with no filters and much goes in long efore we de"elop filters for oursel"esEoften this is not until they come to college+ These ideas stay with us and are known to us* consciously or unconsciously* e"en after we are old enough to form our own ideas and may think differently+ $t is e9tremely important for them to know what is in their heads* as this forms the foundation for many of the thoughts* stereotypes and ideas they ha"e a out others and the decisions they may make as managers and super"isors+ .othing magic happens when we step foot into the workplace+ %ll of this does not magically empty out of our heads+ $t is in there somewhere and we should know that so that it does not lead to trou le in decisions we make as managers and super"isors+ ,ith the discussions which take place regarding the history of the %ct* the social climate surrounding its passage* the students? assessment as to their own knowledge and appreciation for how it fits into the Title #$$* their disco"ery of the messages they ha"e recei"ed in their lifetimes* and the information from the daily articles* a solid foundation is laid for the su se@uent chapters+ ,e made the decision to include this authorCs note for you ecause we understand that it can e uncomforta le discussing matters of race* color* gender* affinity orientation* religion* and national origin+ 0ost of us do not ha"e e9perience discussing such issues in a meaningful way or e"en with others outside of close family or friends+ Ellis Cose* in his ook* "he #a$e of a !rivile$ed lass* says that as %mericans* our discussions on race are generally in shouts or whispers and it is true+ ,e know that it does not ha"e to e this way+ ,e ha"e e9perienced the e9hilaration that comes from connecting with a room of students or employees who ha"e engaged in meaningful and producti"e discussions on these thorny issues and really connected with it and understood the "alue+ ,e are sure that you can ha"e the same e9perience+ %s for the pedagogy* recall that the case @uestions generally ha"e no pre/set answers+ They are pro"ided in an effort to prompt students to think of the cases they ha"e read from the point of "iew of what management should consider and issues to e analy5ed+ There are no real right or wrong answers and students should e encouraged to let their minds flow during discussions+ %s the professor* you will see from the students? input that the discussions take on a life of their own which you can de"elop as you think appropriate+ $n some instances thoughts a out the case @uestions ha"e een pro"ided* ut they are in no way dispositi"e* and merely pro"ide food for thought+ ;eel free to disregard the insights and de"elop the @uestions and discussions as you see fit+ The reason the @uestions are structured as they are* asking for studentsC input* is to get them used to thinking on

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/M their own+ $t is not a out legal analysis* ut rather* a out the management decisions that ha"e 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any resultedmanner+ in the situation ecoming a legal case+ This document may not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site* in whole or part+

Birdcage / Loints for -iscussion This piece has een incredi ly insightful in helping students to understand how e"eryday* seemingly insignificant matters end up helping to create or continue a system of discrimination+ $t is effecti"e for all types of discrimination* ut it is particularly helpful with affirmati"e action and gender discrimination+ ,ith affirmati"e action* students often ring up a scenario in which a friend or family mem er or someone they heard of 7generally a white male8 has had a negati"e e9perience with affirmati"e action+ That is* their friend said he didnCt get hired ecause the employer told him they had to hire someone lack or female or some "ariation on this theme+ ,ith gender* students* oth male and female* often ha"e difficulty understanding how something like making catcalls at a woman* or ogling ig reasts* can ha"e an impact on their attitudes at work+ $t seems like such a small thing* a personal thing* and in no way related to discrimination+ 4owe"er* in oth these instances* seeing that the A igB discrimination is made up of little* daily attitudes* helps them to see the igger picture+ $t has worked wonders with our students in facilitating them coming to grips with how they fit into the e@uation* and why it is important not to !ust look at the little picture 7i+e+* what happened to their friend with affirmati"e action8 ut also the larger picture 7affirmati"e action addressing an institutionali5ed system of discrimination that ad"ersely impacts people today* e"en though the system may ha"e egun long ago8+ $t is this larger picture that is always at work* so it is in their est interest to understand it+ Understanding that things cannot e addressed in a "acuum 7i+e+* the pro lem is much larger than !ust their friend and his o taining this particular !o 8 really helps to put these matters into a much etter perspecti"e for the students+ 1cenarios / Loints for -iscussion Scenario 1: The class may well respond to the o "ious issue of whether national origin is co"ered y Title #$$* which it is+ 4owe"er* there still remains the issue of e9haustion of administrati"e remedies+ The employer must first file a complaint with the EE>C or the appropriate state agency efore going to court* therefore the lawyer would tell the employee that it would e useless to file a law suit efore the EE>C procedures had een followed first+ Scenario 2: %s an inter"iewer* <ill is in the position of screening applicants for the !o + Though <ill does not ha"e ultimate authority to hire and fire* she needs to know the intricacies of Title #$$ ecause she may use illegal criteria to screen out employees* in "iolation of Title #$$+ Scenario 3: The policy is pro a ly illegal ecause it has a disparate impact on females since most women would not e a le to @uality for the position purely ased on the height and weight re@uirement rather than a ility to do the !o + $f the re@uirement has a disparate impact on females* ut is shown to e a usiness necessity* it is not illegal+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

) 2istoric Rights )ct

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any manner+ This document may not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site* in whole or part+

2/'

Learnin$ %b&ective ': ()plain the history leadin$ up to passa$e of the ivil #i$hts Act of '*+,.

Learnin$ %b&ective -: .ive e)amples of the /ays that certain $roups of people /ere treated differently before passa$e of the ivil #i$hts Act. Use the information in this chapter as a strong background for the students to be introduced to the need for the Ci!il Rights )ct of %&'(. Timeline: &(&'/&M(J O =la"ery &M(J O &'() O <im Crow &'J)/ Irown "+ Id+ >f Education decision desegregating pu lic schools &'(H O %ugust 2M* 0arch on ,ashington for Ci"il Rights &'(H / =eptm er &J* ) little girls killed in =i9teenth =t+ Iaptist Church om ing &'() O Lassage of Ci"il Rights %ct of &'() &'(J O Lassage of #oting Rights %ct of &'(J 4a"e the students read E9hi it 2+2* the A$ 4a"e a -reamB speech* and see if it appears to them that the dream has een reali5ed+ The 1tructure of Title 344 Learnin$ %b&ective "hree: 0iscuss /hat is prohibited by "itle 1II.

Learnin$ %b&ective Four: #eco$ni2e /ho is covered by "itle 1II and /ho is not. &+ Title #$$ prohi its employers who employ &J or more employees from discriminating in any aspect of employment on the asis of race* color* gender* national origin or religion+ 2+ Unions and employment agencies are co"ered also* ut not independent contractors+

H+ The law only applies to employers who deal in interstate commerce* ut that is almost a non/issue* as the interpretation of interstate commerce y courts has een so road until it would e difficult for an employer to use that as a asis upon which to e e9empted+ )+ Religious esta lishments which employ workers* those whose usiness is operated near .ati"e %merican reser"ations 7and who discriminate in fa"or of .ati"e %mericans8* and those who wish to discriminate on the asis of mem ership in a Communist organi5ation are permitted to disregard Title #$$?s prohi itions+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any J+ Until ofmay the Rights of &''& compensatory and puniti"e damages manner+ passage This document notCi"il e copied* scanned*%ct duplicated* forwarded* distri uted* or posted on a we site* in whole or part+ were

2/&2

not allowed in Title #$$ cases* nor were !ury trials permitted+

(+ Llaintiffs may now recei"e compensatory and puniti"e damages* and in cases where damages are re@uested* either party may re@uest a !ury trial+ N+ -amages in all ut race and national origin cases are capped at PH22*222 total* depending upon the num er of employees* though medical payments are not su !ect to the cap+ M+ %mericans working outside the U+=+ are co"ered y the law unless it "iolates the law of the country they are in+ '+ Undocumented workers are co"ered y the law* ut EE>C has recently limited remedies so that they do not conflict with o"erriding immigration considerations+

!etruska v. .annon 3niversity 5iling Claims Under Title 344

Learnin$ %b&ective Five: 4tate ho/ a "itle 1II claim is filed and proceeds throu$h the administrative process. &+ Employees who feel they ha"e a claim under Title #$$ must first go through the administrati"e process set up y the %ct+ 2+ Under this process* nonfederal employees must first file the claim with the federal or state 7AN2( agencyB8 e@ual employment opportunity office within &M2 days of the precipitating e"ent+ ;ederal employee claims are handled differently and their procedure is currently under re"iew y the EE>C to make them more consistent with non/federal claims+ H+ $f an employee rings the claim in a federal office when a state office is a"aila le* the federal office will defer action on it for (2 days in order to allow the state office to act+ $f there is a N2( agency* the employee has H22 days to file a claim rather than &M2 days+ )+ Under EE>CCs e9panded mediation program* it screens all new charges for mediation referral+ Comple9 and weak cases will not e referred for mediation+ J+ Ioth parties are sent letters offering mediation* and each has ten days to respond to the offer+ (+ $f oth parties elect mediation* the charge must e mediated within (2 days for in/house of

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

)J days for e9ternal mediation+

N+ -uring mediation* each party will ha"e the opportunity to present its position* pro"ide information* and e9press their re@uest for relief+ $f the parties reach agreement* it is inding+ M+ $f the parties choose not to mediate or the mediation is unsuccessful* the charge goes ack to EE>C for the usual handling of eing in"estigated y EE>C talking to any necessary parties and witnesses+ '+ $f no reasona le cause for the claim is found* the complainant is gi"en a right/to/sue letter which can e used as a asis for taking the claim to court+ &2+ $f reasona le cause is found* an appropriate remedy is imposed+ The employer* in such a case* may appeal the cause finding up to the Commission itself+ &&+ %fter e9haustion of Title #$$?s administrati"e remedies* if the case is taken to court* the district court re"iews the case de novo* as if it had not een pre"iously addressed+ &2+ 0ost claims are sifted out of the EE>C system for "arious reasons* ut EE>CCs success rate is pretty high+ 7'2Q percent8+ &H+ 0andatory ar itration of EE>C cases is recei"ing a good deal of attention recently and should e monitored for change+ &)+ $n Circuit City v. Adams+ 672 U.1.%86 9288%: the U+=+ =upreme Court held that mandatory ar itration clauses are enforcea le+ EE C v. !a""lehouse held that e"en though the employee is su !ect to such a clause* it does not pre"ent EE>C from pursuing "ictim/specific relief+ 67( U1 2;& 92882 : Theoretical "asis for Title 344 1uits &+ There are two asis upon which an employee can sue: disparate impact and disparate treatment+ 2+ Cases in"ol"ing one employee eing treated differently from another ased on a policy discriminatory on its face prohi ited category are addressed y the disparate treatment theory+ H+ Cases in which the employment policy is neutral on its face* ut which ha"e a disparate or greater negati"e impact on a protected class are addressed under the disparate treatment theory+ <isparate Treatment

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any manner+ This document may not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we site* in whole or part+

2/&&

Learnin$ %b&ective 4i): 0efine disparate treatment and an employer5s defenses to such a claim.

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any The theory is that isduplicated* treating an indi"idual who is mem of or apart+ Title #$$ manner+ This document may the not eemployer copied* scanned* forwarded* distri uted* or posted on a a we site* iner whole

2/&2 %. This theory is used for cases of discrimination against an indi"idual rather than a group+

group differently from a similarly situated non/Title #$$ group mem er+ ;or instance* allowing unduly critici5ing a lack employee pu licly* while telling a white employee of their shortcomings in a more professional and pri"ate way+

2. -isparate treatment is shown y the employee esta lishing that: 7i8 the employee elongs to a racial minority 7ii8 the employee applied and was @ualified for a !o for which the employer was seeking applicantsG 7iii8 despite his @ualifications* the employee was re!ectedG and
7i"8 after re!ection* the position remained open and the employer continued to seek applicants from persons with employee?s @ualifications+

Mc0onnell 0ou$las orp. v. .reen Legitimate+ =ondiscriminatory Reason <efense

Learnin$ %b&ective 4i): 0efine disparate treatment and an employer5s defenses to such a claim. &+ Esta lishing the four elements of disparate treatment only sets up a re utta le presumption+ 2+ The re utta le presumption can e re utted y a showing y the employer that there was a legitimate* nondiscriminatory reason for the employerCs action which had nothing to do with discrimination+ H+ $f this is esta lished* the employer is not lia le for discrimination in the action taken regarding the employee+ )+ E"en if the employer esta lishes a legitimate nondiscriminatory reason for the employerCs action* the employee can still re ut this with a showing that the employer is using this reason as a mere prete9t for discrimination+ The "ona 5ide Occupational >ualification 9"5O>: <efense

Learnin$ %b&ective +: 0efine disparate treatment and an employer5s defenses to such a claim.

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/&H &+ I;>R is a"aila le only for disparate treatment cases in"ol"ing gender* religion and 1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any national origin* is not le for race or color or for disparate impact manner+ Thisand document may a"aila not e copied* scanned* duplicated* forwarded* distri uted* or posted on a we cases+ site* in whole or part+

2+ I;>R is legali5ed discrimination and therefore I;>Rs are "ery narrowly construed+ To ha"e a successful I;>R defense* the employer must e a le to show that the asis for preferring one group o"er another goes to the essence of what the employer is in usiness to do and the attri ute of the group discriminated against is at odds with that

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

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2/&)

6ilson v. 4outh/est Airlines ompany <isparate 4mpact

Learnin$ %b&ective 4even: 0efine disparate impact and ho/ it /orks7 includin$ the four8fifths rule and employer defenses to disparate impact claims. &+ The second theory which a claimant can use as a asis for Title #$$ actions is disparate impact+

2+ This theory is used when an employer has a policy which is neutral on its face ut has a negati"e impact upon a category protected y Title #$$+ H+ The impact re@uired is that the protected employees do not fare at least M2S as well as the ma!ority under the policy+ )+ This is a statistical argument ased on groups of employees* rather than an indi"idual employee* as is the case with disparate treatment+ J+ -isparate impact can e used for su !ecti"e as well as o !ecti"e criteria 7see "eal elow8+ "usiness =ecessity <efense

Learnin$ %b&ective 4even: 0efine disparate impact and ho/ it /orks7 includin$ the four8fifths rule and employer defenses to disparate impact claims. &+ .ri$$s v. 0uke !o/er o. was the real eginning of Title #$$+ $t was not until .ri$$s esta lished the disparate impact in &'N& that litigation under Title #$$ egan in earnest+ The usiness necessity defense was also esta lished y the case+ 2+ Iusiness necessity is only used for a defense to a disparate impact claim which is facially neutral ut has a harsher impact on employees in a category protected y Title #$$+ H+ This is a defense to a disparate impact claim of discrimination+ )+ To esta lish this defense* the employer must show that the screening de"ice that results in a disparate impact on a group co"ered y Title #$$ is eing used as a usiness necessity and is needed for the !o + $f this can e shown* the employer may use the screening de"ice unless it can e shown that there is a way to address the usiness necessity without so much of an ad"erse impact+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

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2/&J

.ri$$s v. 0uke !o/er o. &+ .ri$$s was se"erely impacted y 6ards ove !ackin$ o. v. Atonio 7)'2 U+=+ ()2 7&'M'88 which held that it was the urden of the employee to show that the employerCs policy that had a disparate impact and was not !o related* rather than the employer pro"ing that the employerCs policy was !o related+ =ince this was considered a set ack to well/esta lished .ri$$s precedent* Congress codified the .ri$$s precedent into law under the Ci"il Rights %ct of &''&+ 2+ %nything used to separate one employee from another for purposes of determining workplace decisions* whether it is o !ecti"e and written* or unspoken and su !ecti"e* can e su !ected to the disparate impact analysis+ H+ The four/fifths or M2 percent rule is only a rule of thum for determining the disparate impact of a policy. "he ourt said in 6atson "+ ;ort ,orth Iank and Trust 7)MN U+=+ ''N 7&'MM88 that it had ne"er used mathematical precision to determine disparate impact+ )+ 6atson determined that not only o !ecti"e* ut also su !ecti"e criteria could form a asis for a disparate impact+ The su !ecti"e criteria that caused a disparate impact in 6atson was a policy of using its all/white super"isory staff to determine promotions* which resulted in lack employees not eing promoted at the ank+ J+ Lre/employment inter"iews and employment applications are often the asis for disparate impact claims ecause they ask @uestions that may tend to screen out more of one group than another and screen them out at a higher rate* with no usiness necessity for the @uestion+ ;or e9ample* asking females if they are married and ha"e children and not asking males+ This presents the possi ility that the employer is considering not hiring women who are married or who ha"e children* while not using the same screening de"ice for men+ Other <efenses to Title 344 Claims &+ >nce employee pro"ides prima facie e"idence that the employer has discriminated* in addition to the other defenses a o"e* the employer has the opportunity to present e"idence that employee?s e"idence is not true+ 2+ Employers cannot a"oid lia ility under Title #$$ y arguing that their discriminatory employment policies are permitted ecause the ottom line num ers resulting from use of the de"ice did not e9hi it a disparate impact* as it is e@ual employment opportunity that the law was made to guarantee* not e@ual employment+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any minorities hired may that corresponds with what will not a disparate impact+ They do manner+ This document not e copied* scanned* duplicated* forwarded* distriindicate uted* or posted on a we site* in whole or part+

H+ Employers ha"e fre@uently chosen to2/&( impose a limit on the num er of women or this in order to a"oid claims of disparate impact of their policies+ This is often where the mistaken idea of @uotas comes from+ $t is not ecause the law imposed them* ut rather* ecause the employer chose to do this rather than simply adopt an open* fair employment process+ This is not ad"isa le* as the ottom line defense was soundly re!ected y the U+=+ =upreme Court in onnecticut v. "eal 7)JN U+=+ ))2 7&'M288+

onnecticut v. "eal )n 4mportant =ote &+ There is a common misconception that all an employee or applicant must do to ring home tons of money from court is to allege discrimination and sue an employer+ This is not so+ 2+ -iscrimination cases must e pro"ed !ust as any other cases are re@uired to e pro"ed* and failure to do so results in dismissal of the case or plaintiff otherwise not winning+

Ali v. Mount 4inai 9ospital ?anagement Tips

Learnin$ %b&ective (i$ht: 0iscuss /hat mana$ement can do to comply /ith "itle 1II. =ince potentially all employees can ind the employer y their discriminatory actions* it is important for all employees to understand the law+ This not only will greatly aid them in a"oiding acts that may cause the employer lia ility* ut it will also go far in creating a work en"ironment in which discrimination is less likely to occur+ Through training* make sure that all employees understand

,hat Title #$$ is+ ,hat Title #$$ re@uires+ ,ho Title #$$ applies to+ 4ow the employeesC actions can ring a out lia ility for the employer+ ,hat kinds of actions will e looked at in a Title #$$ proceeding+ That the employer will not allow Title #$$ to e "iolated+ That all employees ha"e a right to a workplace free of illegal discrimination+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

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2/&N

Case 4cons #etrus$a v. %annon &niversity 3'( ). Supp. 2d *** +!. ,. #A 2((-. : 4ssue: ,hether a church affiliated uni"ersity could discriminate on the asis of gender against a female chaplain who reported Title #$$ "iolations of a superior+ 5acts: % female chaplain at 3annon Uni"ersity* a pri"ate* Catholic diocesan college was instrumental in ringing to the attention of the area ishop accusations of se9ual harassment of a female employee y the president of the uni"ersity for a num er of years+ The uni"ersity engaged in a co"er/up of the e"ents as per instructions of the ishop+ Employee was "ocal in opposing the co"erup and the uni"ersityCs policies she "iewed as discriminatory against females+ $n her capacity as chair of the uni"ersityCs $nstitutional $ntegrity Committee* she was instrumental in su mitting an accreditation report which raised gender/ ased pay ine@ualities of 3annon employees and was critical of its procedures for addressing se9ual harassment and other discrimination claims+ The uni"ersity pressured her to change the report and she refused+ =he alleges that they retaliated against her and in contemplation of eing terminated* she resigned+ The ne9t day she was notified her resignation was immediately effecti"e and she was to gather her things and lea"e campus+ 4er access to the campus and student was limited y the uni"ersity+ <ecision: The court said the ministerial e9ception to Title #$$ applied in discrimination cases in"ol"ing religious institutions* rooted in the ;irst %mendmentCs prohi ition on go"ernment entanglement with religion* precludes courts from ad!udicating employment discrimination suits etween church and minister+ These are matters of church administration and would necessarily in"ol"e an in"estigation and re"iew of church practices and administration and threaten the separation of church and state+ Case >uestions &+ -o you agree with the courtCs decisionF E9plain+ "his $ives the students a chance to discuss the issue of ho/ &ust because somethin$ is discriminatory doesn5t necessarily mean it is covered by "itle 1II. 4tudents have a common misconception that any /orkplace discrimination is ille$al7 but this is an e)ample of the fact that there are limitations. %nly /hat "itle 1II says is discriminatory violates the la/. 2+ %s a manager in this situation* how do you think you would ha"e handled the chaplainCs complaintsF 4tudents are pushed to try to think of /ays to create an or$ani2ation that is pretty much discrimination free even in the absence of la/s coverin$ such thin$s.

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any H+ 3i"en the power organi5ations ha"e Title #$$* how do you think manner+ This document maythat not e religious copied* scanned* duplicated* forwarded* distri under uted* or posted on a we site* in whole or part+

2/&M

employment discrimination concerns can e addressed in the religious workplaceF

"hou$ht :uestion for the students7 in order to e)pand their vie/ of possibilities7 as /ell as to deal /ith bein$ /ithin le$al limitations. lick here to return to chapter outline at location of above case reference. /c,onnell ,ouglas Corp. v. %reen+ (%% U.1. ;&2 9%&;7: 4ssue: ,hat is the proper method of proceeding with a disparate treatment case under Title #$$F 5acts: 3reen* an employee of 0c-onnell -ouglas and a lack ci"il rights acti"ist* engaged with others in :disrupti"e and illegal acti"ity: acti"ity against his employer+ The acti"ity was done as part of 3reen?s protest that his discharge from 0c-onnell -ouglas was racially moti"ated* as were the firm?s general hiring practices+ 0c-onnell -ouglas later re!ected 3reen?s re/employment application on the ground of the illegal conduct+ 3reen sued alleging race discrimination+ <ecision: The case was remanded for further fact finding in accord with the Court?s decision* ut the Court?s language fa"ored the employee+ The case is important ecause the U+=+ =upreme Court for the first time set forth how to pro"e a disparate treatment case+ $n these cases the employee can use an inference of discrimination drawn from a set of in@uiries the Court set forth+ The complainant in a Title #$$ trial must carry the initial urden under the statute of esta lishing a prima facie case of racial discrimination+ This may e done y showing 7i8 that he elongs to a racial minorityG 7ii8 that he applied and was @ualified for a !o for which the employer was seeking applicantsG 7iii8 that* despite his @ualifications* he was re!ectedG and 7i"8 that* after his re!ection* the position remained open and the employer continued to seek applicants from persons with complainant?s @ualifications+ The Court recogni5ed that the facts necessarily will "ary in different types of Title #$$ cases* and the specification of the prima facie proof re@uired from 3reen is not necessarily applica le in e"ery respect to differing factual situations+ Case >uestions &+ -o you think the Court should re@uire actual e"idence of discrimination in disparate treatment cases rather than permitting an inferenceF ,hat are the ad"antagesF -isad"antagesF "his is for purposes of havin$ the students discuss the underpinnin$s of the ourt;s lo$ic. %ften students do not a$ree /ith court decisions7 and think it harsh to impose liability /hen no actual discrimination is sho/n. "his $ives them the opportunity to think throu$h the conse:uences of such thou$hts7 propose alternative analyses7 and think throu$h the different approaches. 2+ Lractically speaking* is an employer?s urden really met after the employer :articulates: a legitimate nondiscriminatory reason for re!ecting the employeeF E9plain+

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any "his $ets the student see scanned* the futility offorwarded* an employer not presentin$ ainvi$orous manner+ This document may not to e copied* duplicated* distri uted* or posted on a we site* whole or part+defense

2/&'

to the plaintiff;s prima facie case so that the plaintiff /ill not be able to come back and /in on rebuttal. -oes the Court say that 3reen must e kept on in spite of his illegal acti"itiesF -iscuss+ %ften employers have trouble distin$uishin$ bet/een the fact that the ourt set forth the test to be applied in disparate treatment cases on the one hand7 and the fact that it did not out and out permit .reen to be kept out of the /orkplace7 on the other. "his :uestion permits the students to analy2e those t/o different issues and see that they are7 in fact7 separate. <ust because the ourt re:uired that certain re:uirements be met in order to prove a disparate treatment case does not mean that once an employee alle$es discrimination7 liability attaches7 re$ardless of /hat else the employee has done /hich serves as a basis for the employer;s action of termination.

H+

lick here to return to chapter outline at location of above case reference. !ilson v. South0est Airlines Company+ 6%; 5. 1upp. 2&2 9=.<. Te$. <allas <i!. %&@%: 4ssue: ,hether eing female is a I;>R for a position as a flight attendant+ 5acts: % male sued =outhwest %irlines after he was not hired as a flight attendant ecause he was male+ The %irline argued that eing female was a I;>R for eing a flight attendant ecause* among other things* it was consistent with its successful marketing scheme of ad"ertising itself as the :lo"e airline:+ <ecision: The court disagreed and said this Circuit?s decisions ha"e gi"en rise to a two step I;>R test: 7&8 does the particular !o under consideration re@uire that the worker e of one gender onlyG and if so* 728 is that re@uirement reasona ly necessary to the :essence: of the employer?s usiness+ To rely on the ona fide occupational @ualification e9ception* an employer has the urden of pro"ing that he had reasona le cause to elie"e* that is a factual asis for elie"ing* that all or su stantially all women would e una le to perform safely and efficiently the duties of the !o in"ol"ed+ The second le"el is designed to assure that the @ualification eing scrutini5ed is one so important to the operation of the usiness that the usiness would e undermined if employees of the :wrong: gender were hired+ +++ -iscrimination ased on gender is "alid only when the essence of the usiness operation would e undermined y not hiring mem ers of one gender e9clusi"ely+ That was not the case here+ Case >uestions &+ ,hat should e done if* as here* the pu lic likes the employer?s schemeF 4tudent response. 4tudents /ill probably opine that employers should be able to have /hatever successful marketin$ schemes they /ish7 and the courts should not interfere if people /ish to support it. You may discuss the si$nificance of the re$ulation of la/ as it relates to certain kinds of activity. Are /e usually permitted to do /hatever /e like7

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any sodomy7 takin$?possessin$ dru$s7forwarded* and porno$raphy@. 6hat isinthe manner+ This document may not e copied*ille$al scanned* duplicated* distri uted* or posted on a we site* wholedistinction= or part+

2/22 simply because the parties involved consent= >cite thin$s like la/s a$ainst consensual

6hat is the purpose to be accomplished by the re$ulation=

2+

-o you think the standards for I;>Rs are too strictF E9plain+ 4tudent response. 4tudent often say the la/ has no business re$ulatin$ such areas because there should be reasons other than those narro/ly defined by the courts for BF%As. 0iscuss the Bflood$atesB and BprecedentB ar$uments /hich say that if e)ceptions are $ranted7 it /ill open the flood$ates to other e)ceptions. %nce there is precedent for permittin$ the e)ceptions7 it /ill be harder to ar$ue a narro/ vie/ should be taken.

H+

=hould a commercial success argument e gi"en more weight y the courtsF 4ow should that e alanced with concern for CongressC position on discriminationF 4tudent response. 4ee above comments. ()plore /ith the students the /hy or /hy not of their ans/ers. 4ince many students believe businesses should be able to market or have /hatever themes they /ish7 this $ets them to consider /hat happens if these schemes run afoul of simple considerations like a person5s bein$ :ualified to do the &ob7 yet not Cfittin$ inD /ith the employer5s marketin$ idea. 9opefully they come to see that in the balance7 bein$ :ualified ou$ht to count for a $ood deal.

lick here to return to chapter outline at location of above case reference.

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

2/2& %riggs v. ,u$e #o0er Co.+ (8% U.1. (2( 9%&;%:.

4ssue: ,hether an employer can e held lia le for race discrimination if its policy of re@uiring a high school diploma has an ad"erse impact on lack employees and diploma is not related to the !o + 5acts: Ilack employees rought this action under Title #$$ of the Ci"il Rights %ct of &'()* challenging the employer?s re@uirement of a high school diploma or the passing of intelligence tests as a condition of employment in or transfer to !o s at the power plant+ They alleged the re@uirements are not !o related and ha"e the effect of dis@ualifying lacks from employment or transfer at a higher rate than whites+ <ecision: The U+=+ =upreme Court held that Title #$$ dictated that !o re@uirements which ha"e a disproportionate impact on groups protected y Title #$$ e shown to e !o related+ $n some of the most @uoted language under Title #$$* the Court said that what is re@uired y Congress [under Title #$$] is the remo"al of artificial* ar itrary* and unnecessary arriers to employment when the arriers operate in"idiously to discriminate on the asis of racial or other impermissi le classifications+ :The %ct proscri es not only o"ert discrimination ut also practices that are fair in form* ut discriminatory in operation+ The touchstone is usiness necessity+ $f an employment practice which operates to e9clude .egroes cannot e shown to e related to !o performance* the practice is prohi ited+: Case >uestions &+ -oes this case make sense to youF ,hyK,hy notF 0iscussion may center on the fact that the ourt;s decision may make sense here because the hi$h school diploma7 instituted as it /as7 directly after passa$e of "itle 1II7 and after $randfatherin$ in virtually all /hite employees7 many of /hom did not have hi$h school diplomas7 /as obviously an attempt to circumvent "itle 1II. %n the other hand7 students often /ish to ar$ue that an employer havin$ a hi$h school diploma re:uirement seems reasonable88despite the re:uirement that the re:uirement must be reasonably related to the &ob. 2+ The Court said the employer?s intent does not matter here+ =hould it=

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4tudents and employers often find it difficult to deal /ith the fact that "itle 1II does not re:uire specific intent by the employer to discriminate. 0iscussion may involve the alternative. "hat is7 ho/ the la/ may accomplish its $oal of eliminatin$ employment discrimination if all an employer had to do /as to say there /as no intent. "he students can be reminded of the lon$ history our country has re$ardin$ race7 $ender7 reli$ious and other discrimination7 and the impact on the /orkplace and the protected employees /hether or not the discrimination /as intentional. H+ ,hat would e your iggest concern as an employer who read this decision= 4tudents may discuss that the decision may make it easier for insincere employees to fei$n discrimination since no sho/in$ of intent is involved. Also7 that the employer may

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

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be held liable for discrimination /hich 2/22 /as not intentional and /hich could7 conceivably

lick here to return to chapter outline at location of above case reference. Connecticut v. 1eal+ (6; U.1. ((8 9%&@2: 4ssue: ,hether an employee can ring a disparate impact case if the employer?s screening de"ice resulted in a disparate impact* ut the employer?s ad!ustment of those results concluded in a ottom line percentage which did not reflect an ad"erse impact+ 5acts: Unsuccessful lack promotion candidates sued the employer for race discrimination+ Employees alleged that e"en though the employer?s final promotion figures showed no disparate impact* the employer?s process of arri"ing at the ottom line figures should e su !ect to scrutiny for disparate impact+ <ecision: The =upreme Court agreed and held for employees+ The Court held that the : ottom line: does not preclude employees from esta lishing a prima facie case* nor does it pro"ide the employer with a defense to such a case+ % non/!o /related test that has a disparate racial impact* and is used to :limit: or :classify: employees* is :used to discriminate: within the meaning of Title #$$* whether or not it was :designed or intended: to ha"e this effect and despite an employer?s efforts to compensate for its discriminatory effect+ $t is clear eyond ca"il that the o ligation imposed y Title #$$ is to pro"ide an e@ual opportunity for each applicant regardless of race* without regard to whether mem ers of the applicant?s race are already proportionately represented in the work force+ Case >uestions &+ %fter eing sued* ut efore trial* why do you think that the agency promoted a larger percentage of lacks than whites when a larger percentage of whites passed the e9amF 4tudent response. 4tudents should discuss means mana$ement mi$ht use to avoid liability and the pros and cons of doin$ such. 2+ =hould the employees ha"e discriminationF een allowed to sue if the ottom line showed no

4tudent response. 4ome students /ill say yes7 because it is not in keepin$ /ith "itle 1II to permit the la/ to be circumvented in this /ay. %thers /ill probably say no because the la/ re:uires a sho/in$ of disparate impact and if a case can be brou$ht /ithout it7 then the re:uirement is of little use. For the latter7 the professor can discuss the effect that upholdin$ the letter of the la/ has /hen to do so is not in keepin$ /ith the spirit of the la/. H+ 4ow could the employer here ha"e a"oided lia ilityF 4tudent response. Amon$ other thin$s7 the employer could have used valid &ob

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re:uirements such as the e)perience 2/2H of the candidates in their t/o8year provisional the process7 and made a sincere and $ood faith effort to base promotions on necessary &ob :ualifications rather than upon unnecessary barriers unrelated to the &ob;s re:uirements

lick here to return to chapter outline at location of above case reference. Ali v. /ount Sinai 2ospital + '@ Empl. Arac. <ec. 9CC2: B((+%@@ 9'-%2-&': 4ssue: ,hether an employee can recei"e a !udgment in a race discrimination case without offering e"idence of racial discrimination+ 5acts: % lack female employee sued the employer for racial discrimination in "iolation of Title #$$* for discriminatory enforcement of the employerCs dress code+ Employee alleged she was disciplined for "iolation of the code while whites were not+ $n support of her claim* employee ga"e e"idence that other employees had "iolated the dress code* ut she ga"e no e"idence that they had not een disciplined as she was for similar offenses+ -espite the fact that employer had made statements to employee which employee percei"ed as derogatory* there was no showing of race discrimination+ <ecision: The court found that the employee offered no e"idence of discriminatory enforcement* therefore it had no choice ut to hold for the employer+ Case >uestions &+ ,hat do you think of the way in which %li was approached y -r+ =hields a out her "iolation of the dress codeF -oes this seem ad"isa le to youF 4tudent response. "he purpose of this :uestion is to $et students to think7 as mana$ers7 of other /ays to approach undesirable situations rather than sayin$ the first thin$ that comes to mind /ithout thinkin$ of the possible le$al conse:uences. "he employee could have easily been approached in a /ay that $ave her the necessary feedback7 in the stron$est terms7 /ithout bein$ belittlin$7 unnecessarily harsh and potentially racial >steer clear of references to black employees bein$ e:uated /ith animals7 since the history of race relations in our country has included comparin$ blacks /ith monkeys7 apes7 Ccoons7D etc.@ 2+ 4ow much of a role do you think different cultural "alues played in this situationF E9plain+ learly the employee5s response as to ho/ she looked CbeautifulD differed from ho/ 0r. 4hields thou$ht employee looked Clike somethin$ in a 2oo... or discoD. 4ince 0r. 4hields did not confine her comments merely to employee5s violation of the dress code by the /earin$ of inappropriate apparel and hairstylin$ at odds /ith the code7 she leaves herself open for analysis of her estimation of the differences bein$ based on a :ualitative7 culturally8based difference in the employee5s appearance. "hat is7 of course7

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

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2/2) based on cultural preferences. "hat is7 4hield5s did not merely say to employee7 CYour

looked like somethin$ in the 2oo and someone $oin$ to a disco. 9ave students discuss /hat the role of cultural differences may be in mana$ers5 perceivin$ and &ud$in$ the behavior7 includin$ attire7 of employees. For instance7 ho/ somethin$ like sayin$ Cconservative dressD is a particular cultural concept /hich means it can be left open to interpretations /hich may differ based on one5s culture. #emind the students that this is aside from the fact that the dress code /as clear7 the code /as specifically desi$ned to meet the needs of the particular /orkplace involved7 and employee7 in fact7 violated her boss5s interpretation of the code. ,hat can the employer do a"oid e"en the appearance of unfair enforcement of its dress policy in the futureF 4tudent response.

H+

lick here to return to chapter outline at location of above case reference.

ChapterCEnd >uestions &+ ,hile re"iewing pre/employment reports as part of her !o * claimant read a report in which an applicant admitted commenting to an employee at a prior !o that Amaking lo"e to you is like making lo"e the 3rand Canyon+B Later* at a meeting con"ened y her super"isor* the super"isor read the @uote and said he didnCt understand it+ % male su ordinate said he would e9plain it to him later* and oth chuckled+ The claimant alleges that nearly e"ery action after the incident constituted retaliation for her complaint* including a lateral transfer+ ,ill the court agreeF 9Clark Count 1chool <istrict !. "reeden+ '32 &.S. 2*3 9288%:: No7 the 4upreme ourt did not a$ree. In its per curiam decision it said that claimin$ se)ual harassment for incidents that do not alter the conditions of employment to be able to claim retaliation should there be later employment actions /ith /hich the employee disa$rees7 is not permissible. 9ere7 the ourt held that no one could reasonably believe that the incident violated "itle 1II7 and based on its precedent7 "itle 1II forbids only behavior so ob&ectively offensive that it alters the conditions of the employee5s employment. "he ourt made clear that every sin$le occurrence of se)ual harassment dies not constitute le$ally actionable se)ual harassment either for purposes of violation of the $ender provision of se)ual harassment or for the anti8retaliation provisions of "itle 1II. 2+ 4ow long does a pri"ate employee ha"e to file a claim with EE>C or e arred from doing soF 'EF days. H+ Lin Teung files a complaint with EE>C for national origin discrimination+ 4is !urisdiction

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

1 22&2 y 0c3raw/4ill Education+ This is proprietary material solely for authori5ed instructor use+ .ot authori5ed for sale or distri ution in any is progressing* he not learns that EE>C has forwarded* not yetdistri mo"ed on it+ onTeung feels EE>C is manner+ This document may e copied* scanned* duplicated* uted* or posted a we site* in wholethe or part+

2/2J has a N2( agency+ ,hen Teung calls up EE>C after )J days in order to see how his case

"iolating its own rules+ $s itF

No. If there is a state or local GF+ a$ency7 and the complainant files /ith ((% 7 ((% must hold off on investi$atin$ the complaint7 for +F days. )+ %lthea* lack* has een a dee !ay for a local Christian music station for se"eral years+ The station gets a new general manager and within a month he terminates %lthea+ The reason he ga"e was that it was inappropriate for a lack dee !ay to play music on a white Christian music station+ %lthea sues the station+ ,hat is her est theory for proceedingF 0isparate treatment. Based on an actual situation. 4ince the statistical base /ould be so small here7 Althea has a better case for disparate treatment. J+ 0elinda wants to file a se9ual harassment claim against her employer ut feels she cannot do so ecause he would retaliate against her y firing her+ =he also has no money to sue him+ %ny ad"ice to 0elindaF It is a separate offense under "itle 1II to retaliate a$ainst an employee for pursuin$ his or her ri$hts under the Act. Melinda can file her se)ual harassment and retaliation claims /ith the ((% and need pay nothin$. (+ =aeid* a 0uslim* alleges that his super"isor made numerous remarks elittling his 0uslim religion* %ra s generally* and him specifically+ The comments were not made in the conte9t of a specific employment decision affecting =aeid+ $s this sufficient for the court to find discriminatory ill willF 9?aarouf !. *alker ?anufacturing Co.+ 2%8 5.7d ;68 9; th Cir. 2888:: Yes. "he court determined that even under the circumstances7 the comments /ere evidence that the supervisor5s opinion of the employee /as tainted by discriminatory ill /ill7 thou$h not direct evidence of discrimination. N+ % construction company was sued for harassment when it failed to take seriously the complaints a out offensi"e graffiti scrawled on rented porta le toilets+ The employer defended y saying 7&8 employees should e used to such rude and crude eha"ior+ 728 the employer did not own or maintain the e@uipment* which came with graffiti already on it+ 7H8 it took action after a formal employee complaint* and 7)8 the graffiti insulted e"eryone+ ,ill the defenses e successfulF 9?alone !. 5osterC*heeler Constructors+ *estlaw 2% 5ed. )pp$. (;8 9;th Cir. 288%: unpub. opinion::. No the court did not buy the defenses. As to >'@ the court said that even thou$h employees in the construction industry may re$ularly see $raffiti7 it did not mean the employer could i$nore it. >-@ the employer /as responsible for the $raffiti even thou$h it did not o/n the e:uipment since it /as responsible for providin$ employees /ith restroom or other facilities that did not create a hostile environment. >H@ Because the employer could see the $raffiti on the toilets7 it should not take a formal complaint for the employer to abate the harassment. >,@ .raffiti that is e:ually insultin$ to everyone

Chapter 2: The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts

M+

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does not make the $raffiti that creates a2/2( hostile environment acceptable.

%n employee files a race discrimination claim against the employer under Title #$$+ The employee alleges that after filing a claim with EE>C* her ratings went from outstanding to satisfactory and she was e9cluded from meetings and important workplace communications* which made it impossi le for her to satisfactorily perform her !o + The court denied the race discrimination claim+ 0ust it also deny the retaliation claimF 9Lafate !. Chase ?anhattan "ank+ %27 5. 1upp. 2;;7 9<. <E 2888::. No7 the &ury re&ected the race claim7 but found sufficient evidence for the retaliation claim and $ranted the claimant I+FF7FFF.

'+

-ay Care Center has a policy stating that no employee can o"er J foot ) ecause the employer thinks children feel more comforta le with people who are closer to them in si5e+ -oes Tiffany* who is J foot N* ha"e a claimF $f so* under what theory could she proceedF "he employer;s policy is neutral on its face7 but has a disparate impact on men7 since7 statistically speakin$7 most men /ould be taller. 9o/ever7 "iffany is not a man7 and thus7 does not have standin$ to sue on the policy. 4he is not adversely affected by the policy based on $ender7 but rather7 on hei$ht7 /hich7 in and of itself7 is not a protected cate$ory. It /ould only be a problem if it adversely impacted those of the $ender of the claimant. .ender7 throu$h the hei$ht re:uirement7 /ould not be appropriate as a BF%A because hei$ht is not reasonably necessary to the employer;s business of carin$ for children. "hat is7 those over a certain hei$ht do not lose the ability to care for the children.

&2+

-uring the inter"iew 3ale had with Leslie %ccounting ;irm* 3ale was asked whether she had any children* whether she planned to ha"e any more children* to what church she elonged and what her hus and did for a li"ing+ %re these @uestions illegalF E9plain+ Yes. "hese :uestions are often asked of /omen in intervie/s7 but they are ille$al. Auestions about children7 childbearin$ and /hat one does for a livin$ are almost e)clusively asked only of /omen7 and thus7 is disparate treatment7 since men do not receive the same :uestions. %nce a :uestion is asked7 it is assumed that the employer must plan to use the ans/er in makin$ a determination as to suitability of the candidate for the &ob. It is virtually impossible to prove other/ise. "herefore7 it is best to fore$o such :uestions or ask more direct7 relevant :uestions. For instance7 it is appropriate to ask every intervie/ee if there is anythin$ /hich /ill interfere /ith his or her ability to come to /ork consistently and on time. For the reli$ion :uestion7 since most employers ask it to find out /here an ill employee should be taken for medical assistance7 or /hat reli$ious fi$ure to call in case of serious on the &ob in&ury7 simply askin$ this specific :uestion7 and doin$ so after hire7 /ould accomplish the employer;s $oal7 /hile eliminatin$ the liability.