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Table of Contents
After reading this chapter, you should understand the following:
1. How common-law employment at will is modified by common-law doctrine, federal
statutes, and state statutes
2. Various kinds of prohibited discrimination under Title VII and examples of each kind
3. The various other protections for employees imposed by federal statute, including the Age
Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA)
In the next chapter, we will examine the laws that govern the relationship between the employer and
the employee who belongs, or wants to belong, to a union. Although federal labor law is confined to
that relationship, laws dealing with the employment relationship—both state and federal—are far
broader than that. Because most employees do not belong to unions, a host of laws dealing with the
many faces of discrimination shapes employers’ power over and duties to their employees. Beyond the
issue of discrimination, the law also governs a number of other issues, such as the extent to which an
employer may terminate the relationship itself. We examine these issues later in this chapter.
Even before statutes governing collective bargaining and various state and federal discrimination
laws, the common law set the boundaries for employer-employee relationships. The basic rule that
evolved prior to the twentieth century was “employment at will.” We will look at employment at will
toward the end of this chapter. But as we go through the key statutes on employment law and
employment discrimination, bear in mind that these statutes stand as an important set of exceptions
to the basic common-law rule of employment at will. That rule holds that in the absence of a
contractual agreement otherwise, an employee is free to leave employment at any time and for any
reason; similarly, an employer is free to fire employees at any time and for any reason.
16.1 Federal Employment Discrimination Laws
1. Know the various federal discrimination laws and how they are applied in various cases.
2. Distinguish between disparate impact and disparate treatment cases.
3. Understand the concept of affirmative action and its limits in employment law.
As we look at federal employment discrimination laws, bear in mind that most states also have
laws that prohibit various kinds of discriminatory practices in employment. Until the 1960s, Congress
had intruded but little in the affairs of employers except in union relationships. A company could
refuse to hire members of racial minorities, exclude women from promotions, or pay men more than
women for the same work. But with the rise of the civil rights movement in the early 1960s, Congress
(and many states) began to legislate away the employer’s frequently exercised power to discriminate.
The most important statutes are Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963,
the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990.
Title VII of the Civil Rights Act of 1964
The most basic antidiscrimination law in employment is in Title VII of the federal Civil Rights Act of
1964. The key prohibited discrimination is that based on race, but Congress also included sex,
national origin, and color as prohibited bases Table
promotion, layoff, and discharge
decisions. To put the Civil Rights Act in its proper context, a short history of racial discrimination in
the United States follows.
The passage of the Civil Rights Act of 1964 was the culmination of a long history that dated back to
slavery, the founding of the US legal system, the Civil War, and many historical and political
developments over the ninety-nine years from the end of the Civil War to the passage of the act. The
years prior to 1964 had seen a remarkable rise of civil disobedience, led by many in the civil rights
movement but most prominently by Dr. Martin Luther King Jr. Peaceful civil disobedience was
sometimes met with violence, and television cameras were there to record most of it.
While the Civil War had addressed slavery and the secession of Southern states, the Thirteenth,
Fourteenth, and Fifteenth Amendments, ratified just after the war, provided for equal protection
under the law, guaranteed citizenship, and protected the right to vote for African Americans. The
amendments also allowed Congress to enforce these provisions by enacting appropriate, specific
But during the Reconstruction Era, many of the Southern states resisted the laws that were passed in
Washington, DC, to bolster civil rights. To a significant extent, decisions rendered by the US Supreme
Court in this era—such as Plessy v. Ferguson, condoning “separate but equal” facilities for different
races—restricted the utility of these new federal laws. The states effectively controlled the public
treatment of African Americans, and a period of neglect set in that lasted until after World War II.
The state laws essentially mandated segregated facilities (restaurants, hotels, schools, water
fountains, public bathrooms) that were usually inferior for blacks.
Along with these Jim Crow laws in the South, the Ku Klux Klan was very strong, and lynchings
(hangings without any sort of public due process) by the Klan and others were designed to limit the
civil and economic rights of the former slaves. The hatred of blacks from that era by many whites in
America has only gradually softened since 1964. Even as the civil rights bill was being debated in
Congress in 1964, some Young Americans for Freedom in the right wing of the GOP would
clandestinely chant “Be a man, join the Klan” and sing “We will hang Earl Warren from a sour apple
tree,” to the tune of “Battle Hymn of the Republic,” in anger over the Chief Justice’s presiding over
Brown v. Board of Education, which reversed Plessy v. Ferguson.
But just a few years earlier, the public service and heroism of many black military units and
individuals in World War II had created a perceptual shift in US society; men of many races who had
served together in the war against the Axis powers (fascism in Europe and the Japanese emperor’s
rule in the Pacific) began to understand their common humanity. Major migrations of blacks from the
South to industrial cities of the North also gave impetus to the civil rights movement.
Bills introduced in Congress regarding employment policy brought the issue of civil rights to the
attention of representatives and senators. In 1945, 1947, and 1949, the House of Representatives
voted to abolish the poll tax. The poll tax was a method used in many states to confine voting rights to
those who could pay a tax, and often, blacks could not. The Senate did not go along, but these bills
signaled a growing interest in protecting civil rights through federal action. The executive branch of
government, by presidential order, likewise became active by ending discrimination in the nation’s
military forces and in federal employment and work done under government contract.
The Supreme Court gave impetus to the civil rights movement in its reversal of the “separate but
equal” doctrine in the Brown v. Board of Education decision. In its 1954 decision, the Court said, “To
separate black children from others of similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the community that may affect their hearts and
minds in a way never to be undone.…We conclude that in the field of public education the doctrine of
separate but equal has no place. Separate educational facilities are inherently unequal.”
decision meant that white and black children could
to attend separate public
schools. By itself, however, this decision did not create immediate gains, either in public school
desegregation or in the desegregation of other public facilities. There were memorable standoffs
between federal agents and state officials in Little Rock, Arkansas, for example; the Democratic
governor of Arkansas personally blocked young black students from entering Little Rock’s Central
High School, and it was only President Eisenhower’s order to have federal marshals accompany the
students that forced integration. The year was 1957.
But resistance to public school integration was widespread, and other public facilities were not
governed by the Brown ruling. Restaurants, hotels, and other public facilities were still largely
segregated. Segregation kept blacks from using public city buses, park facilities, and restrooms on an
equal basis with whites. Along with inferior schools, workplace practices throughout the South and
also in many Northern cities sharply limited African Americans’ ability to advance economically. Civil
disobedience began to grow.
The bus protests in Montgomery, Alabama, were particularly effective. Planned by civil rights leaders,
Rosa Parks’s refusal to give up her seat to a white person and sit at the back of the public bus led to a
boycott of the Montgomery bus system by blacks and, later, a boycott of white businesses in
Montgomery. There were months of confrontation and some violence; finally, the city agreed to end
its long-standing rules on segregated seating on buses.
There were also protests at lunch counters and other protests on public buses, where groups of
Northern protesters—Freedom Riders—sometimes met with violence. In 1962, James Meredith’s
attempt to enroll as the first African American at the University of Mississippi generated extreme
hostility; two people were killed and 375 were injured as the state resisted Meredith’s admission. The
murders of civil rights workers Medgar Evers and William L. Moore added to the inflamed
sentiments, and whites in Birmingham, Alabama, killed four young black girls who were attending
Sunday school when their church was bombed.
These events were all covered by the nation’s news media, whose photos showed beatings of
protesters and the use of fire hoses on peaceful protesters. Social tensions were reaching a postwar
high by 1964. According to the government, there were nearly one thousand civil rights
demonstrations in 209 cities in a three-month period beginning May 1963. Representatives and
senators could not ignore the impact of social protest. But the complicated political history of the Civil
Rights Act of 1964 also tells us that the legislative result was anything but a foregone conclusion.See
CongressLink, “Major Features of the Civil Rights Act of 1964,” at
In Title VII of the Civil Rights Act of 1964, Congress for the first time outlawed discrimination in
employment based on race, religion, sex, or national origin:. Title VII declares: “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.” Title VII applies to (1) employers with fifteen or more employees whose business
affects interstate commerce, (2) all employment agencies, (3) labor unions with fifteen or more
members, (4) state and local governments and their agencies, and (5) most federal government
In 1984, the Supreme Court said that Title VII applies to partnerships as well as corporations when
ruling that it is illegal to discriminatorily refuse to promote a female lawyer to partnership status in a
law firm. This applies, by implication, to other fields, such as accounting.Hishon v. King & Spalding,
467 U.S. 69 (1984). The remedy for unlawful discrimination is back pay and hiring, reinstatement, or
Title VII established the Equal Employment Opportunity Commission (EEOC) to investigate
violations of the act. A victim of discrimination who wishes to file suit must first file a complaint with
to permit that agency to attempt conciliationTable
The EEOC has filed a number
of lawsuits to prove statistically that a company has systematically discriminated on one of the
forbidden bases. The EEOC has received perennial criticism for its extreme slowness in filing suits
and for failure to handle the huge backlog of complaints with which it has had to wrestle.
The courts have come to recognize two major types of Title VII cases:
1. Cases of disparate treatment
In this type of lawsuit, the plaintiff asserts that because of race, sex, religion, or national
origin, he or she has been treated less favorably than others within the organization. To
prevail in a disparate treatment suit, the plaintiff must show that the company intended to
discriminate because of one of the factors the law forbids to be considered. Thus in
McDonnell Douglas Corp. v. Green, the Supreme Court held that the plaintiff had shown that
the company intended to discriminate by refusing to rehire him because of his
race.McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In general, there are two types
of disparate treatment cases: (1) pattern-and-practice cases, in which the employee asserts
that the employer systematically discriminates on the grounds of race, religion, sex, or
national origin; and (2) reprisal or retaliation cases, in which the employee must show that
the employer discriminated against him or her because that employee asserted his or her Title
2. Cases of disparate impact
In this second type of Title VII case, the employee need not show that the employer intended
to discriminate but only that the effect, or impact, of the employer’s action was
discriminatory. Usually, this impact will be upon an entire class of employees. The plaintiff
must demonstrate that the reason for the employer’s conduct (such as refusal to promote)
was not job related. Disparate impact cases often arise out of practices that appear to be
neutral or nondiscriminatory on the surface, such as educational requirements and tests
administered to help the employer choose the most qualified candidate. In the seminal case of
Griggs v. Duke Power Co., the Supreme Court held that under Title VII, an employer is not
free to use any test it pleases; the test must bear a genuine relationship to job
performance.Griggs v. Duke Power Co., 401 U.S. 424 (1971). Griggs stands for the
proposition that Title VII “prohibits employment practices that have discriminatory effects as
well as those that are intended to discriminate.”
Figure 16.1 A Checklist of Employment Law
Discrimination Based on Religion
Buddhists, or members of any other
Chapterwho systematically refuses to hire Catholics,
religious group engages in unlawful disparate treatment under Title VII. But refusal to deal with
someone because of his or her religion is not the only type of violation under the law. Title VII defines
religion as including religious observances and practices as well as belief and requires the employer to
“reasonably accommodate to an employee’s or prospective employee’s religious observance or
practice” unless the employer can demonstrate that a reasonable accommodation would work an
“undue hardship on the conduct of the employer’s business.” Thus a company that refused even to
consider permitting a devout Sikh to wear his religiously prescribed turban on the job would violate
But the company need not make an accommodation that would impose more than a minimal cost. For
example, an employee in an airline maintenance department, open twenty-four hours a day, wished
to avoid working on his Sabbath. The employee belonged to a union, and under the collective
bargaining agreement, a rotation system determined by seniority would have put the worker into a
work shift that fell on his Sabbath. The Supreme Court held that the employer was not required to pay
premium wages to someone whom the seniority system would not require to work on that day and
could discharge the employee if he refused the assignment.Trans World Airlines v. Hardison, 432
U.S. 63 (1977).
Title VII permits religious organizations to give preference in employment to individuals of the same
religion. Obviously, a synagogue looking for a spiritual leader would hire a rabbi and not a priest.
A refusal to hire or promote a woman simply because she is female is a clear violation of Title VII.
Under the Pregnancy Act of 1978, Congress declared that discrimination because of pregnancy is a
form of sex discrimination. Equal pay for equal or comparable work has also been an issue in sex (or
gender) discrimination. Barbano v. Madison County (see Section 16.4.1 “Disparate Treatment:
Burdens of Proof”), presents a straightforward case of sex discrimination. In that case, notice how the
plaintiff has the initial burden of proving discriminatory intent and how the burden then shifts to the
defendant to show a plausible, nondiscriminatory reason for its hiring decision.
The late 1970s brought another problem of sex discrimination to the fore: sexual harassment.
There is much fear and ignorance about sexual harassment among both employers and employees.
Many men think they cannot compliment a woman on her appearance without risking at least a
warning by the human resources department. Many employers have spent significant time and money
trying to train employees about sexual harassment, so as to avoid lawsuits. Put simply, sexual
harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature.
There are two major categories of sexual harassment: (1) quid pro quo and (2) hostile work
Quid pro quo comes from the Latin phrase “one thing in return for another.” If any part of a job is
made conditional on sexual activity, there is quid pro quo sexual harassment. Here, one person’s
power over another is essential; a coworker, for example, is not usually in a position to make sexual
demands on someone at his same level, unless he has special influence with a supervisor who has
power to hire, fire, promote, or change work assignments. A supervisor, on the other hand, typically
has those powers or the power to influence those kinds of changes. For example, when the male
foreman says to the female line worker, “I can get you off of the night shift if you’ll sleep with me,”
there is quid pro quo sexual harassment.
In Harris v. Forklift Systems, Inc.Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). and in Meritor
v. Vinson,Meritor v. Vinson, 477 U.S. 57 (1986). we see examples of hostile work environment.
Hostile work environment claims are more frequent than quid pro quo claims and so are more
worrisome to management. An employee has a valid claim of sexual harassment if sexual talk,
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