Discrimination Cases

1. Discrimination Cases Reviews of Discrimination Cases in the United States

2. Federal Equal Employment Opportunity Laws Title VII of the Civil Rights Act of 1964: the centerpiece of federal employment discrimination law. This law prohibits employment discrimination by employers, unions, and employment agencies on the basis of race, color, religion, sex, or national origin. Note also that sexual harassment is prohibited.

3. Pregnancy Discrimination Amendment To Title VII ruled that sex includes “pregnancy, childbirth or related medical conditions,” and requires that employers treat pregnancy and childbirth the same as any other condition similarly affecting the ability to work.

4. Family Medical Leave Act FMLA 1993: allows employees of firms with more than 50 employees up to 12 weeks of unpaid leave in a 12-month period for birth or adoption of a child, to care for a family member, or for own health.

5. Equal Pay Act EPA 1963: requires that men and women who perform equal work within a particular establishment receive equal pay unless justified by a system of seniority, a merit or production system, or “any other factor other than sex.”

6. Can An Employer Ever Legally Make Decisions Based on Group Membership? Yes! • When group membership is essential for job performance or • As part of an affirmative action plan.

7. BFOQ Bona Fide Occupational Qualification This condition is interpreted narrowly and must go to the essence of the employer’s business. It is not enough for the employer to claim they would make more money by discriminating, or that customer preference or customer discrimination forces them to discriminate.

8. Legal Theories of Discrimination Title VII claims are filed under one of two theories of discrimination: • Disparate treatment (intentional discrimination) • Disparate impact

9. Disparate Treatment The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical. Generally individual claims.

10. Disparate Impact Involve employment practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required. May be class action suits where the plaintiff alleges pattern and practice of discrimination.

11. Legal Remedies? Until recently only making an individual “whole”: restoring the individual to the condition they would have been in but for the discrimination. Includes: back pay, hiring, promotino, reinstatement, etc.

12. Civil Rights Act of 1991 Permitted compensatory and punitive damages as well as jury trials for intentional discrimination. This includes: payments for actual and potential monetary losses as well as compensation for mental anguish and inconvenience. If found employer acted with malice: punitive damages.

13. Types of Discrimination that the Court Has Addressed • Sexual Harassment • Discriminatory treatment – hiring/promoting/firing • Disparate Impact

14. .Lois E. Jensen v. Eveleth Taconite Co. Judge Kyle made numerous findings regarding the nature of the working environment at Eveleth Mines. He found Eveleth Mines male-dominated in terms of power, position, and atmosphere. Jenson II , 824 F. Supp. at 879. Judge Kyle found that male-focused references to sex and to women as sexual objects created a sexualized work place. Id. These references included graffiti, photos, and cartoons that male employees, including bargaining unit and salaried employees such as foremen, displayed throughout Eveleth Mines. Id. at 879- 880. Other references included "verbal statements and language reflecting a sexualized, male-oriented, and anti-female atmosphere." Id. at 880. Some male employees subjected female employees to physical conduct of a sexual nature. In one incident, a male employee pretended to perform oral sex on a sleeping female co-worker. Id. at 880. Other incidents involved men touching women in an objectionable manner. Id. Some women were presented with various sexual materials. Id. Judge Kyle concluded "the presence of sexual graffiti, photos, language and conduct . . . told women that the sex stereotypes reflected in and reinforced by such behavior were part and parcel of the working environment at Eveleth Mines." Id. at 884.

15. Meritor Savings Bank v. Vinson • This case marked the US Supreme Court’s recognition of certain forms of sexual harassment as a violation of the Civil Rights Act of 1964, Title VII.

16. What is Sexual Harassment? • Unwelcome attention of a sexual nature. It includes a range of behavior from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault. • Approximately 15,000 cases are brought to the US EEOC each year. 16% of claims made by men. • See:http://en.wikipedia.org/wiki/Sexual_harassment

17. Case Facts: Meritor v. Vinson • After being fired from her job, Mechelle Vinson sued Sidney Tayolor (the vp of the bank). She charged that he had coerced her to have sexual relations with him and made demands for sexual favors at work. • She stated she had had intercourse with him 40-50 times. Additionally, she testified that he had touched her in public, exposed himself to her, and forcibly raped her multiple times. • The primary question of the case was “is a hostile work environment a form of unlawful discrimination under the Civil Rights Act or is the act limited to ‘tangible economic discrimination’ in the workplace?”

18. Plaintiff’s Burden of Proof • Plaintiff’s hostile environment claims must prove that the challenged conduct: • Was severe and pervasive • Created a hostile or abusive working environment • Was unwelcome, and • Was based on the plaintiff’s gender

19. The Supreme Court Wrote • “First, the language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.”

20. Disparate Impact Examples Height and weight minimums for prison guards, which are met by fewer women than men. Informal recruitment such as recommendations from current employees.

21. The Legal Response to Anti-discrimination Laws Early cases were based on very explicit discriminatory treatment of women: Weeks v. Southern Bell Te. & Tel. co. (1969): the employer refused to hire the female plaintiff for the job of switchman because it was deemed “strenuous” and required emergency work at night and in locations that might be considered dangerous.

22. Result in Weeks v. Bell The district Ct. judge found this a violation of Title VII: “[m]en have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The promise of Title VII is that women are now to be on an equal footing.”

23. Anti-discrimination Laws Lead to Less Explicit Discrimination Individual disparate treatment claims are based on circumstantial evidence (this is where the discriminatory motive is inferred) rather than on direct evidence. This case proceeds by process of elimination: Once non-discriminatory reasons are ruled out, the inference is that the employment decision was motivated by unlawful discrimination. If the defendant can’t rebut the plaintiff’s case, the plaintiff wins.

24. Defendant Denial Deny that discrimination motivated the decision and offer a non-discriminatory reason for the employment decision. Now, plaintiff needs to show that the employment decision was actually due to discrimination and that the proffered reason is “pretextual”

25. Price Waterhouse v. Hopkins (1989) Ann Hopkins sued her employer Price Waterhouse when it refused to offer her partnership. A number of the firm’s partners supported her for partnership. Evidence produced at trial indicated that her clients thought very highly of her, and she had been successful in securing for her firm a $25 million contract.

26. So Why Didn’t They Partner Her? Numerous concerns and comments about her “interpersonal skills,” particularly with staff members, and that “supporters and opponents of her candidacy indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff.”

27. Other Grounds Partners described her as “macho,” and that she “overcompensated for being a woman,” and she was advised to “walk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry” to improve her chance for promotion.

28. What Happened? The Supreme Court decided that the employer is not liable for discrimination if the employer would have made the same decision under legitimate criteria. Legacy of Price Waterhouse is unclear. Congress later said that Title VII is violated when unlawful discrimination is a motivating factor even if the same result would have been produced under legitimate criteria.

29. Harris v. Forklift Systems Inc • Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 to October 1987. Charles Hardy was Forklift’s president.

30. What Happened? • The Magistrate found that, throughout Harris' time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, "You're a woman, what do you know" and "We need a man as the rental manager"; at least once, he told her she was "a dumb ass woman." App. to Pet. for Cert. A-13. Again in front of others, he suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise." Id., at A-14. Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. Ibid. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. Id., at A-14 to A-15. He made sexual innuendos about Harris' and other women's clothing. Id., at A-15.

31. What the Court Did • The United States District Court for the Middle District of Tennessee, …found this to be "a close case,“ • The court found that some of Hardy's comments "offended [Harris], and would offend the reasonable woman," id., at A-33, but that they were not • "so severe as to be expected to seriously affect [Harris'] psychological well being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance. • "Neither do I believe that [Harris] was subjectively so offended that she suffered injury . . . . Although Hardy may at times have genuinely offended [Harris], I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [Harris]."

32. The Supreme Court Reversed

33. Oncale v. Sundowner • This case presents the question whether workplace harassment can violate Title VII’s prohibition against “discriminat[ion] . . . because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex.

34. The Facts • Joseph Oncale was working for Sundowner Offshore Services on an oil platform in the Gulf of Mexico. He was employed as a roustabout on an 8-man crew which included John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape.

35. The court cited Harris: • “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.”

36. And another case: • Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC,

37. Their finding • If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. • Our holding that this includes sexual harassment must extend tosexual harassment of any kind that meets the statutory requirements.

38. Systemic Disparate Treatment United Auto Workers v. Johnson Controls, Inc. Battery firm. Manufacturing process workers exposed to lead which has been linked to the risk of harm to the fetus and the reproductive abilities of both men and women. 1982: Johnson Controls excluded women of childbearing age from jobs that involved lead exposure. The Supreme Ct. found this practice to be illegal sex discrimination.

39. EEOC v. Sears, Roebuck & Co. (1988) Sears was the largest employer of women and the majority of its salespersons were women, but relatively few of the higher-paid commission salespersons were female. EEOC sought to prove that Sears engaged in a national pattern or practice of discrimination. Case lasted 15 years. 1984: verdict in favor of Sears. Courts accepted view that women were not interested in commission sales, based on Sears’ evidence that commission sales involved risk, unusual hours and a high degree of technical knowledge, expertise and motivation.

40. Dothard v. Rawlinson (1977) The issue involved height and weight requirements for prison guards employed by the Alabama state penitentiary system. Minimums excluded < 1% men but >40% women. Thus disparate impact. But, was height and weight a BFOQ?

41. BFOQ? Supreme Court ruled that the employer could hire only male guards in contact areas of maximum security penitentiaries because more was at stake than the “individual woman’s decision to weigh and accept the risks of employment.” Sex was found to be BFOQ since it related to the guard’s ability to maintain prison security, referring to the likelihood that inmates will sexually assault women guards.

42. Justice Marshall’s Response “. . . This rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults.”

43. Other Disparate Impact Cases • Lanning v. Southeastern Pennsylvania Transportation Authority (1999): run 1.5 miles under 12 minutes. Not a BFOQ. • UPS: changed min weight that its truck drivers are required to lift from 50 to 150 lbs.

44. Wal-Mart & Women Four out of every ten American women visit one of Wal-Mart’s stores weekly. Nation’s largest private employer and the majority of the “associates” are women. Average pay is $7.50/hr, out of which they must pay for their own health insurance (only 2/5 buy it).

45. Dukes v. Wal-Mart Seven California women—current and former Wal-Mart employees—are charging the company with systematic sex discrimination in: Promotions Assignments Training Pay

46. Betty Dukes: Lead Plaintiff 52 year old African American woman Hired by Wal-Mart in 1994 as a part-time cashier in Pittsburg, CA. 1995: given excellent performance reviews, a merit pay raise and a full-time job. Started experiencing discrimination: Denied training/not allowed to work in hardware, etc.

47. Patricia Surgeson • § In August 1997, Patricia Surgeson, then a single mother of two, began working evenings as a part-time cashier in a Wal-Mart tire and lube department while attending community college. Within two weeks, while she was stocking shelves, she says, a male co-worker began grabbing and propositioning her. He was allowed to remain in his job, while she was transferred to the health and beauty aids department. Over the next four years, Surgeson held more responsible jobs at Wal-Mart, but these promotions weren't accompanied by raises. Many of her male co-workers were paid better than she was, she charges, even though they had less responsibility and were newer to the company.

48. Cleo Page • § Hired to work in the returns department in the Livermore, California, store in fall 1998, Cleo Page, who had already worked in two other Wal-Mart stores, was quickly promoted to a customer service manager position. Interviewing a little over a year later for a promotion, she charges, she was told that it was a man's world, and that men controlled management positions at Wal-Mart. She was repeatedly passed over for promotions, which were given to male employees, and to white women. (Page, who is African-American, also has a race discrimination claim against Wal-Mart, as does Betty Dukes, but these charges are not part of the class-action suit.) At one point, her store manager discouraged her from applying for the sporting-goods department manager position, she says, because "customers would feel comfortable" buying sporting goods from a man. She heard male co-workers complain that "women were taking over" the store, and she heard them ask each other if they knew other men who would be interested in working at Wal-Mart.

49. Christine Kwapnoski • § Christine Kwapnoski, who is still employed in a Concord, California, Sam's Club (a division of Wal-Mart), has worked for the company since 1986. She charges that management positions were never posted, though when she heard one was opening up she'd tell supervisors she was interested. Still, the jobs were given to men less qualified than herself, whom she then had to train. A store manager suggested that she "needed to blow the cobwebs off" her makeup and "doll up." She says she saw men getting paid at higher rates than she was, and getting raises more often; in one instance, Kwapnoski, a divorced mother of two, questioned a male co-worker's raise, and was told he had a family to support.

50. Deborah Gunter • § After thirty years of retail experience, Deborah Gunter began working at a Riverside, California, Wal-Mart in 1996 as a photo lab clerk. She says she applied for management positions and was passed over for less experienced men. She requested further training and never got it. When she was transferred to the Tire Lube Express department, she did the work of a support manager but never got the title or the pay. Her supervisor sexually harassed her, and when she complained, her hours were reduced, she says. After she trained a man to fill the support manager job, he got the title and salary, and her hours were reduced. When she complained about her reduced hours and requested a meeting with the district manager to protest the discriminatory treatment, she was fired.