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Chapter 13 DISCRIMINATION Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment of companies engaged in interstate commerce. States also have non-discriminatory laws covering companies engaged in intra-state commerce.

Not all discrimination is prohibited. In order to be protected from discriminatory employment practices, a person must prove that he or she is a member of a protected class, and that the discrimination IS BECAUSE OF THEIR PROTECTED CLASS STATUS.

Protected Classes:

1. Race
2. Color
3. Creed or religion
4. National origin
5. Sex
6. Age
7. Disability

The Civil Rights Act of 1991 modifies the basis upon which proof of discrimination may be shown. Assuming a claimant has proven that an employer has engaged in discriminatory employment practices, the burden of going forward shifts to the employer to show a BUSINESS NECESSITY, in order to establish a valid defense. However, even if a business necessity is shown, a claimant may still prevail, if he or she is able to show, on rebuttal, that there existed a less discriminatory alternative, but that the employer chose not to implement such alternative.

DISPARATE TREATMENT- Blatant discrimination. The employment practice is based on a practice which intentionally treats (a) protected class member(s) less favorably. Because the practice is intentional, punitive damages may be imposed.

ADVERSE/DISPARATE IMPACT- "Subtle" discrimination. The employment practice appears, on its face, to be neutral, but the effect or impact unreasonably discriminates against (a) protected class(es). See generally Griggs v. Duke Power, p. 558.

Defenses to a discrimination claim include: (1) seniority, (2) employee testing, (3) bona fide occupational qualification (discussed below), and, (4) veterans' preferences.

Additional considerations:

Reasonable Relation: And condition of employment must serve a reasonable relation to the position or job to be filed. Failure to show such association may serve as evidence of discrimination if the condition has the effect to discriminate based on a protected class status.

Essential Job Function: In determining whether one person is qualified over another, an employer must remain focused on the essential job and the function thereof. Attempting to disqualify a protected class person because of his or her inability to perform some ancilliary task may be proof of discrimination.

Reasonable Accomodation: In ascertaining whether an alternative to discriminatin exists, an employer may have to show that, having become aware of the protected class status of an applicant or employee, the employer sought to adopt a reasonable alternative to the employment action which may have discriminated. An employee who refuses such alternative may have no recourse, should he or she refuse such alternative.

Bona Fide Occupational Qualification: In some cases, an employer who establishes, in good faith, that the essential job function mandates a discrimination of a protected class, may discriminate to the extent that there exists no reasonable accomodation. This defense is available, but is not used with a great deal of frequency.

SEX DISCRIMINATION- Determined by the same standards used for other discriminatory practices, i.e. disparate treatment and adverse/disparate impact. Use of BFOQ is prevalent in sex discrimination claims. See generally E.E.O.C. v. Sedita, page 568. See also the "Hooter" discussion, page 572.

SEXUAL HARASSMENT- Ellerth and Faragher have further clarified this area. Rather than utilizing the quid pro quo and hostile environment distinction, these cases stand for the following proposition:

Ellerth-Faragher- If a victim-employee can demonstrate that a harassing supervisor took "a tangible employment action" against the employee as a result of the harassment, then the employer will be held vicariously liable for the alleged conduct. This assumes that the activity occurred as a result of the employment relationship. No defense is available-liability is automatic.
Ellerth-Faragher- If, however, the harassing supervisor did not take tangible employment action against the victim-employee, the inquiry then focuses on the more traditional analysis of whether the harassment was severe or pervasive. If not, employer is not liable. If so, the employer may have a defense: 1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, AND 2) that the victim-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Ellerth-Faragher-These cases appear to do nothing to the standards pertaining to "hostile environment" by fellow workers. Since fellow workers are probably not able to take "tangible employment action" against a co-worker, quid pro quo does not apply here. However, the liability for co-workers harassing a victim in a "hostile environment" still exists, requiring proof: 1) that the employer knew or should have known of the conduct, and 2) having this knowledge, failed to take steps to correct it, under a harassment policy. The activity again must occur in the context of the employment relationship.

The dilemma faced by an employer, as a result of these cases, is that an effective sexual harassment policy must be in place, enforced and revised, and all employees must be shown to have known of it, been trained about it, and agreed to comply with its terms.

Other problems for the employer regarding sexual harassment:

1. The Civil Rights Act of 1866.
2. Assault
3. Battery
4. Infliction of emotional distress (intentional or negligent)
5. Some states (including Ohio) has identified sexual harassment as a tort.
6. The effects of sexual harassment may be the basis for worker's comp.

AFFIRMATIVE ACTION: A plan addressing discrimination whereby an employer agrees to give preferential treatment to (a) protected class(es), assuming all other qualifications of the applicant/employee is equal to others. It must be temporary, and designed to correct past or present discriminatory practices. See generally, Adarand v. Pena, Page 585.

AMERICANS WITH DISABILITY ACT (ADA)
Effective since 1992, employers are prohibited from discriminating against persons with a disability in the hiring and retention of employees. This is not an affirmative action law, rather, it is designed to require employees, even with a qualified disability, for hiring or retention, independent of their disability, assuming a reaonable accomodation may exist.

DEFINITION: A qualified person with a disability is:

1. one who has a physical or mental impairment which substantially limits one or more major life function, or
2. one who has a history of having such impairment, or,
3. one who is regarded as having such impairment.

According to recent case law, in determining whether a person qualifies under any of the above, the determination of whether an individual is disabled should be made with reference to measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment. See generally, Sutton et al. v. United Air Lines, Inc., Case No. 97-1943, decided by the U.S. Supreme Court June 22, 1999, and Murphy v. United Parcel Service, Inc., Case No. 97-1992, decided by the U.S. Supreme Court June 22, 1999.

Assuming a person qualifies as a person with a disability by meeting the requirements of #1-#3 above, an employer may not refuse to consider the person for employment, and may NOT inquire of the mental or physical condition of a job applicant until AFTER an offer of employment is made. After an offer is made, an employer may then inquire of the person's mental or physical condition, and if the same does affect the applicant's ability to perform the essential job function(s) the employer must seek to make a "reasonable accomodation" regarding such impairment. If the employer is unable to, the burden is on the employer to show that no "reasonable accomodation" was available. Health and safety concerns may allow an employer to discriminate, assuming such concerns are verifiable, and affect the essence of the job. Financial concerns must be substantial in order to show a defense.

Likewise, an employer may not take job action against a qualified person with a disability, unless the reasonable accomodation does not exist. See generally Milton v. Scrivner, page 595.

AGE DISCRIMINATION-employees over 40 years of age are protected against termination, because of their age.

RELIGIOUS DISCRIMINATION-Unless an employer is under a duty to make a reasonable accomodation, employment action cannot be taken against a person whose legitimate religious belief conflict with his or her job.