Chapter Eighteen | Employment Discrimination

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Introduction

Title VII of the Civil Rights Act of 1964 (Title VII) (and amendments) applies to employers with 15 or more employees involved in interstate commerce. Title VII prohibits employers from discriminating against prospective and current employees in the workplace in hiring, upgrading, compensating, firing, promoting, training, transferring, appraising; and in relation to “other terms and conditions of employment” based on race, sex, color, religion, and national origin. Title VII also applies to employment agencies and to employers in charge of training or apprenticeship programs.

The Civil Rights Act Of 1964

Title VII

Specifically Title VIII of the act provides:
“It shall be an unlawful employment practice for an employer —
  • to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
  • to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
Title VII does not apply to every employer but rather, it is limited to the following:
  • Employers with at least 15 employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
  • Labor Unions with at least 15 employees;
  • State and local government entities;
  • Employment agencies who provide workers to companies covered by Title VII; and
  • US citizens employed in foreign countries by a US employer or a US controlled employer.
Certain employment situations are not subject to Title VII, including employment of aliens outside the U.S., religious entities (including educational institutions) when employing individuals of a particular religion to perform work connected with carrying on of the entity’s activities, the Congress of the United States, and elected state representatives.
 
Even though Title VII has a minimum threshold requirement on the number of employees, employers who fall below the 15 employee requirement are generally not free from employment regulation in the area of discrimination. Many states have passed laws prohibiting discrimination in employment for employers with less than fifteen employees. State anti-discrimination statutes may afford employees additional protections beyond Title VII, but may not reduce the protections of the Act. For example, the New Jersey Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.) prohibits discrimination against the protected classes in Title VII relating to race, sex, color, religion and national origin without respect to minimum employer numbers and in fact offers additional protections extending to sexual orientation and gender identity.
 
In 1991, Title VII was amended to protect U.S. citizens employed in foreign countries by a U.S. employer or a U.S. “controlled” employer.
 
Employers are prohibited from retaliating against employees who bring charges of discrimination, testify, assist, or participate in enforcement proceedings. 42 U.S. Code § 2000e-3(a)

Title VII Enforcement 

The Equal Employment Opportunity Commission (EEOC), created pursuant to the Equal Employment Opportunity Act of 1972, and the Department of Justice enforce the provisions of the Civil Rights Act. Members of the EEOC are appointed by the President, by and with the advice and consent of the Senate, for a term of five years. The Department of Justice enforces Civil Rights actions against state and local governments upon referral from the EEOC.
 
In seeking redress under the law, an individual alleging violation of Title VII must file a complaint with the local office of the EEOC within 180 days of any adverse job action.
In actions instituted at the state level, the EEOC works with, and generally defers to, state Equal Employment Opportunity (EEO) agencies for up to 60 days at the end of which the EEOC will commence a preliminary investigation. During and immediately after the investigation, the EEOC is required by statute to engage in conciliation negotiations in an attempt to settle the case. If efforts at conciliation fail, the EEOC may choose to file suit in U.S. District Court against the employer on the employee’s behalf, or may decide not to take any action at all. After 180 days have passed from the time of the complaint, the employee may demand that the EEOC issue a “right to sue letter,” entitling the employee to file a lawsuit in U.S. District Court.

Title VII Damages and Remedies

Depending on the nature of the complaint, and whether it involves intentional or unintentional discrimination, employees claiming discrimination under Title VII may seek monetary damages and equitable remedies. All claimants under Title VII can seek court costs, expert’s fees, and attorney fees.
 
Monetary damages can include both compensatory and punitive damages. Compensatory damages include back pay — lost wages and benefits; front pay, if it is unreasonable for the employee to continue to work for the employer — including costs associated with job searches; reputational harm; emotional distress; pain and suffering; and medical expenses. Compensatory damages are capped as follows based upon the number of employees in the previous year:
  • 15 to 100 employees — $50,000.00
  • 101 to 200 employees — $100,000.00
  • 201 to 500 employees — $200,000.00
  • 501 or more employees — $300,000.00
Punitive damages may be awarded if the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” (42 U.S. Code § 1981a(b)). The award of punitive damages is not automatic. The courts will look to several factors including the intent of the employer; whether the employer was aware of the discrimination; the policies of the employer; and whether the employer disregarded its own policies.
 
Equitable remedies seek to put the employee in the economic position he/she would have been had the discrimination not occurred. Equitable remedies include hiring, reinstatement, promotion, and a possible injunction — enjoining the alleged discriminatory employment practice(s) and any future conduct of the employer.
 
The awarding of damages and remedies are dependent upon the type of discrimination claim. Disparate treatment (intentional discrimination) claims include requests for monetary damages and equitable remedies discussed above. In disparate treatment or mixed motives discrimination claims, the damages and remedies of the plaintiff may be limited. If the employer can prove that it acted with mixed motives and that it would have made the same employment decision in any case, the employee may receive declaratory relief, injunctive relief, attorney’s fees and costs, but may not receive monetary damages (compensatory or punitive) or the equitable remedies of reinstatement, hiring, promotion, or payment. In disparate impact discrimination claims, remedies include equitable relief and attorney’s fees, but no compensatory or punitive damages. The different types of discrimination claims are discussed in the following sections.

Title VII Discrimination Theories 

There are three primary theories for proving discrimination under Title VII: (1) disparate treatment, (2) mixed motives discrimination, and (3) disparate impact discrimination.

Disparate Treatment Discrimination

Considered as overt or intentional discrimination, disparate treatment discrimination occurs when an employee can show that he/she was treated differently because of race, color, sex, religion, or national origin. Disparate treatment discrimination applies to hiring, firing, promotions, post-employment references, transfers, or any term or condition of employment.
 
In McDonnell Douglas Corp. v. Green, 421 U.S. 792 (1973), the Supreme Court heard the case of an African-American mechanic who had been laid off during a workforce reduction and was not rehired. Green claimed that he was not rehired because he protested alleged racial inequality at the plant. The Supreme Court established the following elements necessary to prove disparate treatment discrimination:
 
First, the plaintiff-employee must prove a “prima facie” case of discrimination by establishing the following four steps: (1) Plaintiff belongs to a racial minority (or some protected class); (2) Plaintiff applied for and was qualified for the position; (3) Plaintiff, despite his/her job qualifications, was rejected for employment; (4) After plaintiff’s rejection, someone else was hired for the position.
 
Second, once these four elements are satisfied, the burden of proof shifts to the employer-defendant. The employer must present evidence that its decision was based upon a legitimate, non-discriminatory reason. These reasons may include educational requirements, merit, productivity, the presence of a valid seniority system, or a number of other non-discriminatory reasons used to reach a hiring decision. Employers may also raise affirmative defenses such as a bona fide occupational qualification (BFOQ) and business necessity. These defenses are more fully discussed in the next section.
 
Third, the burden of proof then shifts back to the employee to show that the employer illegally discriminated against him/her and to show that the employer’s reasons were a mere pretext for discrimination. (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Mixed Motives Discrimination

Title VII was amended after the 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 222 (1989), in order to recognize that in some employment discrimination cases, the employer will mix permissible and impermissible reasons for a otherwise discriminatory employment decision or practice. Title VII specifically provides:
“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 practice, even though other factors also motivated the practice.” (42 U.S. Code § 2000e– 2(m)).
 
 

Case Study

Price Waterhouse v. Hopkins

490 U.S. 228 (1989)

Procedural Posture

Defendant employer appealed from the decision of the United States Court of Appeals for the District of Columbia Circuit, which affirmed the lower court’s ruling in favor of plaintiff employee in her sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq.

Overview

Defendant employer appealed a judgment in favor of plaintiff employee in her action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The courts below held that an employer who had allowed a discriminatory impulse to play a motivating part in an employment decision could avoid liability by showing by clear and convincing evidence that it would have made the same decision in the absence of discrimination. Title VII of the Civil Rights Act of 1964 forbids an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment, or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s sex. **** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., condemns employment decisions based on a mixture of legitimate and illegitimate considerations. Therefore, when 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. **** After a plaintiff has made out a prima facie case of discrimination under Title VII of the Civil Right Act of 1964, 42 U.S.C.S. § 2000e et seq., the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason. The plaintiff retains the burden of persuasion on the issue whether gender played a part in the employment decision. **** If an employer allows gender to affect its decision-making process, then it must carry the burden of justifying its ultimate decision. **** 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. **** 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. **** As to the employer’s proof in sex discrimination suits, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive. Moreover, proving that the same decision would have been justified is not the same as proving that the same decision would have been made. An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. **** An employer who had allowed a discriminatory impulse to play a motivating part in an employment decision must prove by a preponderance of the evidence that it would have made the same decision in the absence of discrimination. **** When a plaintiff in a Title VII, 42 U.S.C.S. § 2000e et seq., case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.

Outcome

The Court reversed and remanded the case to the lower court, holding that defendant employer had to prove by a preponderance of the evidence that its employment decision relating to plaintiff employee was not motivated by a discriminatory purpose.

Disparate Impact Discrimination

Disparate impact discrimination occurs when an employer uses an employment practice, rule, or policy that appears to be non-discriminatory, or facially neutral, but, when applied, has a different and negative impact on a protected class. (For example: “House person wanted; must be six-feet-three or better and have a moustache; all sexes may apply.”)
 
Similar to disparate treatment discrimination, disparate impact discrimination is proven in three steps.
  • The plaintiff-employee must make out a prima facie case by pointing to an employment practice, and showing that the practice excludes a disproportionate number of people in a protected class;
  • The defendant-employer must then respond to the plaintiff’s allegations by either disproving the plaintiffs showing of a disparate exclusion of a protected group or showing that the practice in question is job related and necessary for the business, that is, proving the existence of a bona fide occupational qualification or BFOQ.
  • The plaintiff must then prove that the employer’s reason was a mere pretext or that other employment practices would achieve the same results without discrimination.

Discrimination Based on Race, Color, and National Origin

Title VII prohibits discrimination on the basis of an applicant’s or employee’s race, color, or national origin. Recent court cases have included challenges to employers’ policies on interracial association, “English Only” workplace requirements, and other employment policies. Interestingly, the EEOC has stated that “English Only” rules in the workplace violate federal discrimination laws unless the employer can justify the rule as a business necessity. The Monsanto case, 770 F.2d 719 (1985), deals with the requirement that an employment rule must be uniformly applied to all employees regardless of their race.
 
Case Study

Smith v. Monsanto Chemical Co.

770 F.2d 719 (8th Cir. 1985)
 
Procedural Posture
 
Appellant employer sought review of the order of the District Court for the Eastern District of Missouri, which entered judgment in favor of appellee employee in his racially-based employment discrimination action alleging violations of Title VII, 42 U.S.C.S. § 2000e(5), and 42 U.S.C.S. § 1981.
 
Overview
 
After the employee took three rag towels from the employer’s plant and locked them in the trunk of his car, the employee was terminated for the theft of company property. The employee filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging his termination was racially motivated. The EEOC disagreed, but provided the employee a Notice of Right to Sue. The employee filed an action in the district court, and a jury returned a verdict in favor of the employee on the §1981 claim and the district court found in favor of the employee on the Title VII claim. The employer appealed, and the court reversed the judgment of the district court. The employer had a policy that all employees who had less than five years seniority would be discharged for stealing, without consideration of other factors, which was uniformly applied. In connection with the 42 U.S.C.S. § 1981 claim, the court concluded that no reasonable jury could find that the employer disciplined white employees more leniently than the employee. In regard to the Title VII claim, the district court’s finding that the employee’s termination was motivated by racial discrimination was clearly erroneous.
 
Outcome
 
The court reversed the order of the district court, which had entered judgment in favor of the employee.

Discrimination Based on Religion

Discrimination based on religion is prohibited in the workplace under Title VII. Religion is defined in Title VII as including “…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.” Title VII requires that employers must make reasonable accommodations to permit employees to observe their religious practices. These may include giving employees time off without pay to observe religious holidays, permitting workers “early release” in order to attend services, and permitting employees to dress according to the dictates of the religion. The burden of proof is on the employer to show that such an accommodation would create an “undue hardship” for the employer.
 
Recent cases involving religious discrimination in the workplace requiring employers to provide contraceptive care under the Affordable Care Act, and employer rules on body art and piercings.
 
Case Study

EEOC v. Abercrombie & Fitch Stores, Inc.

135 S. Ct. 2028 (2015)
 
Procedural Posture
 
Whether an employer was entitled to summary judgment on a claim that it violated Title VII of the Civil Rights Act of 1964 by refusing to hire a practicing Muslim applicant on the ground that the headscarf she wore would violate the employer’s dress policy. 
 
Overview
 
Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.
 
Outcome
 
It was not necessary to show that the employer had actual knowledge of the applicant’s need for an accommodation in order to establish disparate treatment under 42 U.S.C.S. § 2000e-2(a)(1). Instead, it was only necessary to show that the applicant’s need for an accommodation was a motivating factor in the employer’s decision; [2]-A claim based on failure to accommodate a religious practice did not have to be raised as a disparate impact claim rather than a disparate treatment claim, as religious practice was a protected characteristic that could not be accorded disparate treatment.****
 
The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.**** Title VII of the Civil Rights Act of 1964 does not limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual because of such individual’s religious observance and practice. An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an aspect of religious practice, it is no response that the subsequent failure to hire was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
 
Judgment reversed; case remanded.
In Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004), the employee, who wore an eyebrow ring, claimed that her employer’s dress code ban on any visible facial or tongue jewelry and failure to accommodate her request to do so was religious discrimination due to her religious practice as a member of the Church of Body Modification. The District Court held that the employer had accommodated the employee by offering to reinstate her if she covered the piercing with a band-aid or replaced it with a clear retainer (as per the company policy). The Court held the employee’s request for a complete waiver of the policy would place an undue burden on the employer, precluding it from exercising its managerial discretion and presenting a professional public image to the public.
 
A different outcome was found in EEOC v. Red Robin Gourmet Burgers, Inc., 2005 U.S. Dist. LEXIS 36219 (W.D. Wash. Aug. 29, 2005), in which the Federal District Court found that the employer had failed to provide sufficient evidence of undue hardship in accommodating the employee’s religious beliefs. The employee had two tattoos on his wrists in connection with his Kemetecism (ancient Egyptian) religion. The employee worked for six months for the employer before he was asked to cover the tattoos; when he refused, his employment was terminated. The employer did not have a dress code or grooming policy, had never received any customer complaints regarding the employee’s tattoos, and did not provide any other evidence that accommodating the employee would be an undue hardship.

Sex Discrimination

Title VII of the Civil Rights Act specifically prohibits discrimination in employment decisions and practices on the basis of sex. The Civil Rights Act of 1964 act was amended in 1978 by the Pregnancy Discrimination Act to include prohibitions on discrimination related to pregnancy, childbirth, and related medical conditions. Why would an employer discriminate based on sex? Some argue sex discrimination is grounded in historical perceptions of the sexes, misuse of power, the economics of women in the workforce, a form of workplace control, or in response to threats to previously male-dominated workplaces. In Ellison v. Brady, the 9th Circuit held that Title VII was designed by Congress “to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women.”
 
There is one major problem: The Civil Rights Act does not explicitly define “sex” and recent social developments have led to a debate as to what the term “sex” means or should mean in the Act. Does “sex” mean gender (i.e., male and female), or does the term include sexual preference, gender identity, etc.? [The World Health Organization defines “sex” as “the biological and physiological characteristics that define men and women” whereas “gender” “refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women.”] The EEOC, as the agency that interprets and enforces the Act, has stated that the meaning of “sex” includes gender identity and sexual orientation. As such, the agency has provided protections for lesbian, gay, bisexual, and transgender (LGBT) applicants and employees, regardless of state or local laws to the contrary. In Oncale v. Sundowner Offshore Services., 523 U.S. 75 (1998) the U.S. Supreme Court recognized same-sex sexual harassment as sex discrimination under Title VII. Despite the views of the EEOC, there may be need for Congress to clarify these issues.
 
Other issues related to sex discrimination include fetal protection policies (where the policy seeks to protect a fetus from workplace hazards), discrimination based on “family responsibility,” and issues relating to Title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.] which prohibits discrimination on the basis of sex in any federally funded education program or activity. In Int’l Union v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court held a fetal protection policy restricting all fertile females from certain jobs was too restrictive because the female employee did not have any choice and there was no BFOQ asserted as to safety. In Asad v. Cont’l Airlines, Inc., 328 F. Supp. 2d 772 (N.D. Ohio 2004), the District Court held that the Pregnancy Protection Act did not prevent an employer from transferring a pregnant employee at her request. In Childers v. Trustees of the University of Pennsylvania, No. 14-2439, 2016 U.S. Dist. LEXIS 35827 (E.D. Pa. Mar. 21, 2016), the District Court found that improper comments related to plaintiff’s family responsibilities created a prima facie case of discrimination.
 
Issues in the workplace that can potentially create liability for employers include employer policies relating to office romances, dress codes, displays of sexually explicit or suggestive pictures or calendars, jokes, email, information posted on social media platforms, and sexual innuendoes.

Wage Discrimination

The Civil Rights Act prohibits employer decisions and practices related to wages and benefits that discriminate on the basis of sex (42 U.S. Code Sec. 2000e-5(e)(3)(A).
 
The Lilly Ledbetter Fair Pay Act of 2009 was passed in response to the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). In this case, Ledbetter discovered that she was paid less than men in substantially same positions. The Court held in favor of the employer based upon the 180-day statute of limitations in the CRA, which required claims to be filed from the original date of the pay decision or first pay date. The Lilly Ledbetter Fair Pay Act amends Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and modifies the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.” The Act includes a retroactivity provision that provides the employee may “obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”

Sexual Harassment

Sexual harassment is prohibited under Title VII because it is considered a form of sex discrimination. Sexual harassment is the perpetration of unwelcome sexual advances, requests for favors, or other physical or verbal conduct of a sexual nature conducted in the workplace. Two types of sexual harassment exist in the workplace: “quid pro quo” and hostile environment.
 
Quid pro quo (meaning “something for something”; in Latin: “this for that”) sexual harassment is harassment tied to job performance. This type of harassment occurs when any aspect of a job or employment decision is conditioned upon receiving sexual favors or engaging in sexual activity. Classic examples include when a boss tells his employee, “sleep with me or you are fired” or “if you don’t date me, your chances of promotion are poor.” The quid pro quo offer must be unwelcome.
 
Until 1986, only “quid pro quo” was considered a violation of Title VII. Then, in Vinson v. Meritor Savings Bank, the United States Supreme Court ruled that if the harassment is sufficiently pervasive or severe to create a hostile work environment, it is a violation of Title VII even if the unwelcome conduct is not linked to concrete employment benefits. Hostile environment sexual harassment is far more common, but may be harder to eradicate from the workplace. Hostile environment sexual harassment can occur when sexual talk and innuendo is so pervasive in the workplace that it interferes with employees’ ability to work. Conduct that could lead to a hostile environment includes, but is not limited to, sexual advances; requests for sexual favors; verbal statements or physical actions of a sexual nature; offensive jokes; comments about body parts or clothes; emails of a sexual nature; pornography; non-sexual gender based verbal or physical conduct; inflammatory and patently offensive epithets, slurs, or demeaning comments relating to gender; touching of intimate body parts; pictures; staring; work rules relating to dress codes) sexually suggestive e-mail; and perceived favoritism based on sex.
 
The standard for determining a hostile work environment is based on the persona of a “reasonable victim” (female or male) wherein the court reviews the particular plaintiff’s perceptions as to whether the situation is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. (Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
 
The employee must show conduct that is verbal, physical, frequent, hostile and patently offensive:
  1. that is gender based;
  2. that effects the terms/conditions of employment;
  3. that is unwelcome (a subjective test); and
  4. that is severe/pervasive so as to alter the conditions of the employee’s work environment and create a hostile environment.

The conduct can be that of a coworker, supervisor, client, a customer, or a supplier. In a hostile work environment case, it is the effect of the behavior, not the intent of the person acting that will be judged.

When is an employer responsible for the sexual harassment perpetrated by its employees? Under the legal doctrine of respondeat superior employers are liable for the sexual harassment of their employees if they knew or had reason to know of the sexually offensive atmosphere and they provided no reasonably available means of bringing complaints and seeking redress. Courts have also determined that an employer bears an absolute liability for acts committed by a supervisory employee.
 
In Ellison, the Ninth Circuit held:
“Employers should impose sufficient penalties on employees to assure a workplace free from sexual harassment. In essence, the reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy’s ability to persuade potential harassers to refrain from unlawful conduct. Indeed, meting out punishments that do not take into account the need to maintain a harassment-free working environment may subject the employer to suit by the Equal Employment Opportunity Commission.” 
In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998),the Supreme Court defined the conditions necessary for employer liability:
  1. The victimized employee must have suffered a “tangible employment action” (Ellereth defined this as termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities); or
  2. If the victimized employee has not suffered a tangible negative employment action (under Ellereth “usually economic harm”), the employer can shield itself from liability by showing that:
    • the employer took reasonable care to prevent and correct sexual harassment in its workplace, and
    • the employee unreasonably failed to take advantage of complaint and resolution procedures available to the employee provided by the company as found in Faragher.
 
Case Study

Faragher v. City of Boca Raton

524 U.S. 775 (1998)
 
Procedural Posture
 
Petitioner lifeguard, who worked for respondent city, sought a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit, which reversed a judgment entered in favor of petitioner in an action against respondent under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq., for a sexually hostile work environment created by her supervisors.

 
Overview
 
Petitioner worked as a lifeguard for respondent city. Petitioner lifeguard brought an action against respondent and her two immediate supervisors, asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The complaint alleged that the two supervisors had created a sexually hostile atmosphere at the beach by repeatedly subjecting petitioner and other female lifeguards to uninvited and offensive touching and lewd remarks. Petitioner asserted that the supervisors were agents of respondent and that their conduct amounted to discrimination in the terms, conditions, and privileges of her employment. The judgment of the trial court, which entered judgment in favor of petitioner and held respondent liable, was reversed by the court below. The judgment of the court below was reversed and remanded for reinstatement of the trial court’s judgment. The court’s judgment was based on an application of its holding that an employer may be held vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.
 
In order to be actionable under Title VII of the Civil Rights Act of 1964, 42 UY.S.C.S. § 2000e et seq., a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Courts are directed to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including 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.*** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. Simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment.***
 
The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute. An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.*** the general rule that an employer is subject to vicarious liability, under Title VII of Civil Rights Act of 1964, 42 USCS 2000e et seq., for a supervisor’s actionable sexual harassment, but may raise an affirmative defense looking to reasonableness of the conduct of the employer and the victim…***

 
Outcome
 
Reversed and remanded for reinstatement of the original judgment after the court held that employers may be held liable for actionable discrimination, subject to a defense based on reasonableness of the employer’s conduct.
Employees who are unsuccessful in bringing federal or state claims under the Title VII or under state anti-discrimination statutes may bring a common law tort action or a criminal or civil complaint for assault and battery, rape, intentional infliction of emotional distress, defamation, contractual interference with an employment contract, intrusion of privacy, and wrongful discharge.
 
What can an employer do to satisfy the requirement that it take reasonable care to correct and prevent sexual harassment? First, employers should provide regular and thorough training for all of its employees regarding discrimination and sexual harassment. Second, employers should have a clearly communicated and visible policy regarding the prohibition of discrimination based on sex and the prohibition of sexual harassment. Third, a viable complaint procedure should be in place to handle any complaints, such as a designated employee as a contact for handling sexual harassment complaints, or an anonymous 1-800 complaint telephone line. Fourth, a company should take annual surveys of its employees to ensure that its sexual harassment policy is understood in order to learn whether the current workplace is free of sexual harassment. Last, employers should regularly review policies for compliance with federal, state, and local laws, changing social trends, and developing case law.

Title VII Defenses 

Employers charged with Title VII violations have a limited number of affirmative defenses including business necessity, bona fide occupational qualification, seniority and merit systems, and after-acquired evidence of actions of the employee.

Business Necessity

In order to assert the affirmative defense of business necessity to a claim of disparate impact, the employer must demonstrate that the practice or requirement is related to successful job performance and is necessary for the job. The employer may still face liability if the employee shows “an alternative employment practice and the respondent refuses to adopt such alternative employment practices.” (42 U.S. Code § 2000e–2(k)(1)(i)(ii)). Business necessity is a defense to a claim of disparate impact, but is not a defense against a claim of intentional discrimination. (42 U.S. Code § 2000e–2 (k) (2)). If the employer can show that the employment practice does not cause a disparate impact, the employer does not need to prove a business necessity.

Bona fide Occupational Qualifications (BFOQs)

A second affirmative defense that an employer can raise against a claim of disparate treatment discrimination is the existence of a bona fide occupational qualification (or BFOQ). An employer may discriminate in the workplace based on national origin, religion or sex, but not race or color, where the employer is able to argue affirmatively that national origin, religion, or sex is a bona fide occupational qualification (BFOQ) under 42 U.S. Code § 2000e–2. The burden of proof is on the employer to prove that the subject classification is reasonably necessary for the normal operation of the business—that is, it is “directly related to successful job performance.”
 
Instances where discrimination may be permissible include employment positions where privacy is a critical consideration in hiring (ex: rest room attendants; nursing home attendants); actor/actress or modeling roles which are gender specific; and certain faculty at religious institutions. Mere customer preference for a particular gender, i.e. airline passengers preferring female airline attendants, is never sufficient to establish a BFOQ defense.
 
In the area of job tests (involving paper and paper tests, minimum height requirements, etc.), any testing that is administered or any criteria applied must likewise be related to “successful job performance.”
 
Case Study

Griggs v. Duke Power Co.

401 U.S. 424, (1971)
 
Procedural Posture
 
Petitioner employees sought certiorari to review a decision of the United States Court of Appeals for the Fourth Circuit, which held that respondent employer’s requirement of a high school education or the passing of an intelligence test as a condition of employment did not violate Title VII of the Civil Rights Act, 42 U.S.C.S. § 2000e-2, because there was no showing of a discriminatory purpose in the adoption of the requirements.
 
Overview
 
The employees sought review of the lower court’s decision, which concluded that the requirements of a high school education or the passing of a general intelligence test as a condition of employment in or transfer to jobs did not violate Title VII. The Court reversed on the basis that practices, procedures, or tests that were neutral on their face could not be maintained if they operated to freeze the status quo of prior discriminatory employment practices. The Court found that it was significant that the requirements were not shown to bear a demonstrable relationship to the successful performance of the jobs for which the standards were used and that the requirements operated to disqualify black applicants at a substantially higher rate than white applicants for jobs that were formerly filled only by white employees. The employer’s lack of discriminatory intent was not controlling because courts were required to look to the consequences of the employment practices, not simply the motivation. Tests could be used to measure job performance if they measured the person for the job and not the person in the abstract.
 
Under Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, 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.**** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.**** If an employment practice that operates to exclude members of one racial group cannot be shown to be related to job performance, the practice is prohibited by Title VII of the Civil Rights Act of 1964,.**** 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 unrelated to measuring job capability.**** Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2, authorizes the use of any professionally developed ability test that is not designed, intended, or used to discriminate because of race.
 
Outcome
 
The Court reversed the lower court’s judgment in favor of the employer.

Seniority and Merit Systems

A third defense available to employers against a claim of discrimination applies to a bona fide seniority system or merit system (one based on quality or quantity of production), provided these criteria are not intended, designed, or used to discriminate on the basis of race, color, religion, sex, or national origin. (SEC. 2000e-2(h) and (l)).

After-Acquired Evidence of Employee Actions

Evidence of employee misconduct that is discovered during preparations of the employer’s defense to a claim of discrimination is an affirmative defense used to limit the employer’s liability for a claim of employment discrimination. In order to use the “after acquired evidence” to show nondiscriminatory intent in an employee’s termination, the employer must show that the wrongdoing occurred; the employer was previously unaware of the misconduct; and the employer would have terminated the employee for the wrongdoing in any event having now learned about the employee’s misconduct. (See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995)).
 
Case Study

Ricci v. DeStefano 

557 U.S. 557 (2009)
 
Procedural Posture
 
Petitioners, white and Hispanic firefighters, brought actions against respondent city alleging that the city’s refusal to certify promotion examination results based on disparate racial impact of the examination deprived the firefighters of promotions on the basis of their race. Upon grants of writs of certiorari, the firefighters appealed the judgment of the U.S. Court of Appeals for the Second Circuit which upheld the city’s action.
 
Overview
 
On the basis of the examination results, no black candidates were eligible for immediate promotion, and the city determined not to certify the examination results to avoid potential liability for discrimination based on a disparate impact against the black candidates. The white and Hispanic firefighters contended that they were subjected to disparate treatment in the denial of promotions on the basis of their races in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The U.S. Supreme Court held that the city improperly discarded the examination to achieve a more desirable racial distribution of promotion-eligible candidates, since there was no strong basis in evidence that the examination was deficient and that discarding the examination was necessary to avoid disparate impact. The threshold showing of statistical disparity in the examination results was insufficient by itself to constitute a strong basis in evidence of unlawful disparate impact, the extensively analyzed examinations were job-related and consistent with business necessity, and there was no strong basis in evidence of an equally valid, less-discriminatory testing alternative.
 
Outcome
 
The judgment upholding the city’s refusal to certify the examination results was reversed, and the cases were remanded for further proceedings.

Age Discrimination In Employment Act (ADEA) Of 1967

The ADEA prevents employers from making employment decisions based upon the age of job applicants or employees if those job applicants or employees are over the age of 40. The original legisla­tion had an age cap of 65 that was subsequently raised to age 70. Today, pursuant to an amendment offered by Representative Claude Pepper (who had been in Congress when the original Social Security Act was adopted), unless otherwise provided for, an employer may not require an employee to retire at any age. Exceptions apply relating to certain government employees, judges, police, employees such as airline pilots and others where age may be a BFOQ, and certain “top-level executives” who may be forced to retire at a certain age. The ADEA covers all employers with 20 or more employees. State laws prohibiting age discrimination may also apply.
 
The elements of proof in an age discrimination claim are the same as those used to judge a claim brought under Title VII. Plaintiff must make out a prima facie case; defendant responds with a legitimate, non-discriminatory reason; and plaintiff then shows that the defendant’s reason was merely a pretext for discrimination. The EEOC enforces the provisions of the ADEA.

Americans With Disabilities Act (ADA) of 1990 

The Americans With Disabilities Act (ADA) prohibits discrimination in employment decisions and employment practices on the basis of disability. The ADA is divided into five titles: Title I covers employment matters; and Titles II-IV address access to public walkways, streets, buildings and transportation. The ADA applies to all companies with 15 or more employees. The EEOC enforces the provisions of the ADA.
 
The ADA provides that employers cannot discriminate in any decision, practice, term or condition of employment based on a physical or mental disability. The ADA defines disability as:
“ a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such an impairment. Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, operation of a major bodily function, learning, reading, concentrating, thinking, communicating, and working.”
Conditions such as kleptomania, pyromania, current use of illegal drugs, and sexual disorders are not included as disabilities.
 
Like Title VII and the ADEA, proving disparate treatment discrimination under the ADA uses the three-step proof mechanism articulated McDonnell Douglas v. Green. However, the ADA imposes an additional requirement upon employers. Employers must make reasonable accommodations in order to make it possible for disabled individuals to perform the “essential functions” of their job. Reasonable accommodations include providing facilities that are accessible to the disabled, job restructuring, offering part-time work, effecting modifications of equipment, and providing readers or interpreters for those employees who are visually or hearing impaired. However, there are limits. Employers do not have to grant a request for an accommodation if such request would place an undue hardship on the company in order to provide for the accommodation. Whether or not an employer would suffer an undue hardship from a requested accommodation is based on four factors:
  1. The nature and cost of the accommodation;
  2. The size, workforce, and resources of the specific facility involved;
  3. The size, workforce, and resources of the covered entity, and
  4. The nature of the covered entity’s entire operation.
In addition, employers do not have to accommodate individuals who pose a direct threat to themselves and others in the workplace or who cannot perform necessary job functions with an accommodation being made.

The Rehabilitation Act of 1973

Employment discrimination protections are afforded to those with disabilities under the Rehabilitation Act of 1973 which prohibits discrimination on the basis of disability in programs run by federal agencies, programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The Department of Labor enforces this act.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Employees who take positions in the U.S. military service are afforded employment protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This statute provides job and wage protection (including promotions and benefits) for U.S. military personnel returning to their employment in the private sector. Employers are required to rehire military service personnel and are prohibited from treating employees differently upon rehire. The Department of Labor enforces this act.

Financial Discrimination: Background, Credit and Social Media Checks

Financial discrimination in the workplace involves employment decisions or practices based on the financial situation of the applicant or employee. Employers often use background checks, credit reports, and review social media when determining whether to hire a job applicant or promote an employee. Information contained in these sources could give rise to claim that an employer discriminated against an applicant or employee. Employers who conduct these checks must comply with all federal, state, and local anti-discrimination and privacy laws. In addition, employers must comply with the requirements of the Fair Credit Reporting Act. The Federal Trade Commission enforces the provisions of the FCRA.

Affirmative Action and Diversity Programs

Affirmative action programs set employer’s goals and policies regarding the recruitment, hiring, and retention of employees in a protected class under Title VII, including minorities, disabled individuals, and veterans. Affirmative action programs seek to remedy past employment discrimination or to assure a diverse work environment. The EEOC defines diversity programs as “a business management concept under which employers voluntarily promote an inclusive workplace. Employers that value diversity create a culture of respect for individual differences in order to “draw talent and ideas from all segments of the population” and thereby potentially gain a “competitive advantage in the increasingly global economy.” Affirmative action and diversity programs may be based on effecting social policies, ethics, principles of fairness, and surprisingly, two contradictory provisions found in Section 703 of the Civil Rights Act of 1964.
 
Title VII Section 703(a)(1) of the Civil Right Act of 1964 is called the “equal treatment” section. Under Section 703(a)(1), it is unlawful to discriminate against any individual because the individual belongs to a protected class. Section 703(a)(1) calls for employers to be “class blind” when making employment decisions.
 
However, Section 703(a)(2) is called the “equal opportunity” section. Section 703(a)(2) makes it unlawful to limit or classify employees or applicants in any way that would deprive or tend to deprive them of employment opportunities or otherwise adversely affect the person’s status because of the individual’s membership in a protected class. Section 703(a)(2) calls for employers to consider membership in a protected class in order to determine if an employment practices or policies have resulted in disparate impact on a protected class.. It may be difficult to reconcile the concepts of “equal treatment” and “equal opportunity” at the same time, especially if the latter calls for “affirmative action.” Questions regarding the imposition of employment quotas are often raised in regard to affirmative action.
 
Affirmative action programs may be adopted voluntarily by employers, imposed on an employer by a court as a part of a settlement, or as a remedy when finding that an employer acted as part of a pattern of discrimination against employees. An affirmative action program may also be implemented in cases of government contracting.
 
On the federal level, affirmative action programs began with Executive Order 11246 in 1965, which was issued by President Lyndon Johnson. Executive Order 11246 prohibits federal contractors from discriminating against employees. At the same time, it mandated the creation and implementation of affirmative action plans which would apply to private employers as a condition of being awarded a contract with the federal government. Affirmative action requirements for federal contractors are administered by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Affirmative action and diversity programs are subject to strict scrutiny, i.e., they must be narrowly tailored in order to further a compelling governmental interest. These programs are also subject to judicial review for compliance with the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964 and 42 U.S.C. Sec 1982.
 
In 1979, the U.S. Supreme Court upheld the legality of affirmative action programs in United Steel Workers of America v. Weber, 443 U.S. 193 (1973). The Court held that Title VII of the Civil Rights Act did not condemn all private, voluntary, race conscious affirmative action plans; and held that private sector employers and unions could lawfully implement voluntary affirmative action plans to remedy past discrimination. The EEOC enforces federal laws in connection with private sector affirmative action plans.
 
The EEOC compliance manual (2006), citing the Weber decision, states that:
“in examining whether such a voluntary affirmative action plan is legal under Title VII, courts consider whether the affirmative action plan involves a quota or inflexible goal, whether the plan is flexible enough so that each candidate competes against all other qualified candidates, whether the plan unnecessarily trammels the interests of third parties, and whether the action is temporary, e.g., not designed to continue after the plan’s goal has been met. “
Affirmative action programs enacted by public sector employers, public universities, and other public entities are often contested in courts throughout the United States. In Taxman v. Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996), the Third Circuit Court of Appeals considered whether a school district’s affirmative action program which resulted in the school board’s termination of a teacher in order to achieve diversity in the workplace and not to remedy any past discrimination violated Title VII.
 
Although not a part of the employer-employee relationship, recently-decided cases may provide an insight into the views of the Supreme Court in future affirmative action cases. In Grutter v. Bollinger, 539 U.S. 306 (2003), the U.S. Supreme Court upheld a “holistic” admissions policy in which an applicant’s race was one of several factors to be considered, whereas in the same term, in Gratz v. Bollinger, 539 U.S. 244 (2003), the Court held an admissions policy that instituted a “point system” and assigned 20 automatic points to every member of an underrepresented minority, violated the equal protection clause of the Federal Constitution’s Fourteenth Amendment, because the point program was not narrowly tailored to achieve the interest in educational diversity that the university claimed justified the program.
 
Case Study

Taxman v. Board of Education

91 F.3d 1547 (3d Cir. 1996)
 
Procedural Posture
 
Defendant school board challenged a United States District Court for the District of New Jersey order granting partial summary judgment on liability to plaintiff teacher in a race-based employment discrimination action filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2. The teacher challenged the dismissal of her claim for punitive damages.
 
Overview
 
Plaintiff teacher intervened in an action initiated by the government against defendant school board, asserting race-based employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2. The trial court granted plaintiff partial summary judgment on liability and, after a damages trial, awarded her full back pay. Both sides appealed; defendant claimed error in the grant of partial summary judgment and plaintiff challenged the dismissal of her punitive damages claim. The court affirmed, ruling that defendant violated Title VII when it used its affirmative action plan to grant a non-remedial work force preference, by laying off plaintiff, in order to promote “racial diversity.” Applying a two-prong test, the court ruled that the affirmative action plan, which had no remedial purpose, could not be said to mirror the purposes of the statute because there was no congressional recognition of diversity as a Title VII objective requiring accommodation. In addition, the policy’s lack of definition and structure “unnecessarily trammeled” non-minority interests. The damage award was proper. There was no evidence to support a punitive damages claim.
 
Outcome
 
The court affirmed the judgment awarding plaintiff teacher full back pay and granting her partial summary judgment on liability in an action against defendant school board for race-based employment discrimination. Defendant discriminated when it used its affirmative action plan to lay-off plaintiff in order to achieve “racial diversity.” The award of full back pay was proper. The punitive damages claim lacked evidentiary support.
Affirmative action and diversity programs have continued to be controversial and have continued to create claims by applicants, employees, and students of reverse discrimination. In June of 2016, the U.S. Supreme Court in Fisher v. Univ. of Texas, No. 14-981, 2016 U.S. LEXIS 4059 (June 23, 2016), upheld the constitutionality of the University of Texas at Austin’s affirmative action program. Stating that courts should give deference to a university to define educational goals that include the benefits of diversity in the student body, the Court held that universities must prove that the consideration of race is narrowly tailored to meet the permissible goals of achieving diversity in its student body and that “race-neutral alternatives” will not suffice to meet these goals. The Court applied three key criteria to its analysis:
  1. A university must show that it has a substantial interest in considering race as a factor in its admissions policy and that considering race is necessary to achieve this purpose;
  2. Courts should ordinarily defer to a university’s judgment that there are educational benefits that flow from diversity in the student body; and
  3. The university must prove that race-neutral alternatives will not achieve its goals of increasing diversity.
Specifically the court held:
“The compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity. Enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. Equally important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society. Increasing minority enrollment may be instrumental to these educational benefits, but it is not a goal that can or should be reduced to pure numbers. On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be illusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”
Fisher may provide an insight into the Court’s views on affirmative action in a more general sense.
 
Review the Grutter case carefully.
 
Case Study

Grutter v. Bollinger

539 U.S. 306 (2003)
 
Procedural Posture
 
Petitioner law school applicant sued respondents, a law school, university regents, and university officials, claiming race discrimination in the law school’s admission policy. The trial court concluded that the policy was unlawful and granted an injunction. Sitting en banc, the United States Court of Appeals for the Sixth Circuit reversed the judgment and vacated the injunction. The Supreme Court granted certiorari.
 
Overview
 
The law school had long been committed to racial and ethnic diversity, especially to the inclusion of students from groups that, historically, had been discriminated against. Rather than imposing quotas, the law school admissions program focused on academic ability and a flexible assessment of applicants’ talents, experiences, and potential to contribute to the learning of those around them. It did not define diversity solely in terms of race and ethnicity but considered these as “plus” factors affecting diversity. The Court found that the Equal Protection Clause did not prohibit this narrowly tailored use of race in admissions decisions to further the school’s compelling interest in obtaining the educational benefits that flow from diversity. The goal of attaining a “critical mass” of underrepresented minority students did not transform the program into a quota. Because the law school engaged in a highly individualized, holistic review of each applicant, giving serious consideration to all the ways the applicant might contribute to a diverse educational environment, it ensured that all factors that could contribute to diversity were meaningfully considered alongside race.
 
Outcome
 
The Court affirmed the decision of the circuit court.
 

Ethical Considerations

Affirmative Action
It is often argued that “it is time to end affirmative action” for minorities and women. Has this time now come? On the other hand, some have argued that it is is important to “mend it, not end it.” In light of the reasons for the creation of affirmative action plans in the first place, have “affirmative action” plans become obsolete or unnecessary?
 
Discrimination
Why should the government have the power to override the hiring and firing decisions of an owner of a business even if those decisions might amount to discrimination? After all, it is the business owner and not the government who has risked his or her capital in creating the business.
 
Mandatory Retirement
Should university faculty be subject to mandatory retirement at a certain age?
 
Protected Disability
Is it fair to place the burden of accommodating workers’ identifiable and protected handicaps on employers rather than force employees to seek employment in jobs where their handicaps will not be a factor in their employment? Before you respond, take a look at the website of the EEOC to identify the various types of “impairments” recognized by this administrative agency.
 

Questions

  1. What classes of workers are protected by Title VII?
  2. What are the three theories of discrimination under Title VII?
  3. Who enforces and what damages and remedies are available under Title VII?
  4. What are the prima facie case elements of a sexual harassment suit?
  5. How is wage discrimination addressed in the U.S.?
  6. What does it mean at law that an employer must accommodate an applicant or employee’s religion?
  7. What defenses can an employer raise to avoid or limit liability under Title VII and other discrimination statutes?
  8. How have recent technology innovations complimented the goals of the Americans With Disabilities Act?
  9. What is meant by financial discrimination?
  10. Has the Civil Rights Act of 1964 (as amended) worked a reverse discrimination on certain groups considered to be in the “majority” of the work force? Explain how you reached your conclusion.