Employment Discrimination
Fifth Amendment – Prohibits the federal government from:◦ Depriving individuals of “life, liberty, or property”
without due process of law Fourteenth Amendment – Prohibits state
governments from:◦ Violating an individual’s right to due process and
equal protection
Title VII ◦ Illegal for employers with 15 or more employees
to discriminate on the basis of race, color, religion, sex, or national origin
Prohibited activities◦ Disparate treatment
Step 1 – Plaintiff presents evidence that: He belongs to a protected category He was treated differently from other similar people who
are not protected Prima facie: From Latin, meaning “from its first
appearance,” something that appears true upon first look
Prohibited activities◦ Disparate treatment
Step 2 – Defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons
Step 3 – To win, plaintiff must prove that the employer intentionally discriminated by showing that: Reasons offered were simply pretext Discriminatory intent is more likely than not
Prohibited activities◦ Disparate impact
Step 1 – Plaintiff must present a prima facie case Step 2 – Defendant must offer some evidence that
the employment practice was a job-related business necessity
Step 3 – To win, plaintiff must prove either that: Employer’s reason is a pretext or that other, less
discriminatory, rules would achieve the same results
Prohibited activities◦ Hostile work environment
Sexual harassment – Unwelcome sexual advances Requests for sexual favors Severe verbal or physical conduct of sexual nature that
interfere with an employee’s ability to work Categories:
Quid pro quo: One thing in return for another Hostile work environment
Prohibited activities◦ Hostile work environment
Same-sex harassment Employer liability for sexual harassment
The company is also liable for the employee’s conduct Hostile environment based on race Hostile environment based on color Hostile environment based on national origin
Prohibited activities◦ Retaliation – Employer has done something that
would deter a reasonable worker from complaining about discrimination
Religion◦ Employers cannot discriminate against a worker
because of his religious beliefs Sex
◦ Gender must be irrelevant to employment decisions
Family responsibility discrimination◦ Parenthood is a protected category under Title VII
Sexual orientation◦ Half the states and hundreds of cities have
statutes that prohibit discrimination based on sexual orientation
Gender identity◦ Discriminating against someone for being
transgender is a violation of Title VII
Merit◦ Defendant is not liable if he shows that the person
he favored was the most qualified Seniority
◦ Legitimate seniority system is legal even if it perpetuates past discrimination
Bona fide occupational qualification (BFOQ):◦ Employer is permitted to establish discriminatory
job requirements if they are essential to the position in question
◦ Employers consider customer preference in such situations Safety Privacy Authenticity
Affirmative action – Goal is to remedy the effects of past discrimination◦ Sources
Litigation Voluntary action Government contracts
Employee may not be paid at a lesser rate than employees of the opposite sex for equal work◦ Equal work – Tasks that require equal skill, effort,
and responsibility under similar working conditions
An employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant
An employer with 20 or more workers may not fire, refuse to hire, fail to promote or otherwise: ◦ Reduce a person’s employment opportunities
because he is 40 or older Plaintiff can show discrimination in:
◦ Disparate treatment◦ Disparate impact◦ Hostile work environment
Step 1 – Plaintiff must show that:◦ He is 40 or older◦ He suffered an adverse employment action◦ He was qualified for the job for which he fired or
not hired◦ Replaced by younger person
Step 2 – Employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons
Step 3 – Plaintiff must show that employer’s reasons are a pretext
Step 1 – Plaintiffs must present a prima facie case that employment practice excludes a number of people 40 and older
Step 2 – Employer wins if decision was based on “reasonable factor other than age”
Bona fide occupational qualification◦ To set a maximum age, employer must show that:
Age limit is necessary to the essence of business Virtually everyone that age is unqualified for the job Age is the only that an employer can determine who
is qualified
Rehabilitation Act of 1973◦ Prohibits discrimination on the basis of disability
by: Executive branch of the federal government Federal contractors Entities that receive federal funds
Disability◦ Disabled person is:
Someone with a physical or mental impairment that limits a major life activity
Someone who is regarded as having such an impairment
Accommodating the disabled worker◦ Reasonable accommodation – Employers are
expected to: Make facilities accessible Permit part-time schedules Acquire or modify equipment Assign a disabled person to an open position that he
can perform◦ Can perform essential functions of the job◦ Accommodation is not reasonable if it would
create undue hardship for the employer
Medical exams – Three stages◦ With applicants, employer may not require
medical exam, interviewer may ask: Whether an applicant can perform the work Applicant to demonstrate the work What accommodation applicant would need
◦ With entering employees, medical test must be: Required of all employees Treated as confidential
◦ With existing employees, medical exam are required to determine: If a worker is still able to perform the existing
function of the job
An employer may not discriminate against someone because of his relationship with a disabled person
Physical and mental abilities are to be treated the same
Disparate treatment and disparate impact Hostile work environment
Employers with 15 or more workers may not require:◦ Genetic testing or discriminate against workers
because of their genetic makeup Health insurers may not use such
information to decide coverage or premiums
Constitutional claims◦ People bringing a claim under the Constitution
must file a suit on their own Civil Rights Act of 1866
◦ Advantages over Title VII Four-year statute of limitations Unlimited compensatory and punitive damages Applicability to all employers
Rehabilitation Act of 1973◦ Statute is enforced by the EEOC, Department of
Labor, and Department of Justice Other statutory claims
◦ EEOC responsible for enforcing: Title VII Equal Pay Act Pregnancy Discrimination Act ADEA ADA GINA