Federal Law Governing
- Discrimination
How the Law Works
Prohibited Employment Practices
A number of different theories exist under Title VII for determining whether
employers have engaged in unlawful discrimination. All employers should be
aware of these theories so that they can avoid potential legal problems.
The Civil Rights Act of 1991 makes claims of adverse impact and disparate treatment easier for plaintiffs to prove and more difficult for employers to defend. Among the theories of discrimination are the following:
Disparate Treatment
Under this theory, an employer can be held liable for
discrimination when a member of a protected class is given adverse treatment
compared to a nonmember of that class under similar circumstances. That is,
an employer cannot treat a person within a protected class differently than
one who is not in that class absent some reason other than race, color, religion,
sex, or national origin.
Examples of unlawful disparate treatment might include rejecting a black applicant while hiring a less qualified white employee, firing a Hispanic employee for misconduct that normally would result in only written warnings for white employees, or refusing to hire or promote females for certain positions based on an "assumption" that they cannot handle the demands of some jobs or may be limited by family obligations.
Other examples would include an employment practice of maintaining an all-white or all-male work force in certain more desirable or higher paying jobs or departments, or paying male or white employees more than black or female employees for the same work (also possibly an Equal Pay Act violation for female employees).
Adverse Impact
This theory focuses on statistical patterns in determining
whether minorities, females or ethnic group members are adversely affected
by a neutrally applied employment requirement at a disproportionate rate compared
to a person not in the same protected class.
Such a pattern might exist, for instance, where the percentage of minority employees promoted is significantly less than the representation of minorities in the employer's work force, or where the percentage of female new hires in a particular job category is significantly less than the percentage of qualified female applicants for positions in that category.
If an adverse impact is shown to exist, it requires the employer to show that the criteria that resulted in the impact are job-related and are justified by business necessity.
Sexual Harassment
The EEOC issued
regulatory guidelines in 1980 stating that sexual harassment in the workplace
violates Title VII. The Supreme Court has
accepted these guidelines "[a]s an 'administrative interpretation of the
Act by the enforcing agency.'" Meritor Savings Bank v. Vinson, 105 S.Ct.
2399 (9186).
The EEOC guidelines establish two types of sexual harassment: that which is directly linked to the grant or denial of an economic quid pro quo (see paragraphs (a) and (b) below), and that which has the effect or purpose of creating a hostile work environment (paragraph (c) below).
Sexual harassment is broadly defined in the EEOC guidelines as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" when:
(a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
(b) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (c) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment."
The Court in Vinson adopted the EEOC guideline definition of sexual harassment, and accepted the theory of sexual harassment that a hostile "work environment" leading to non-economic injury can violate Title VII.
The Court also discussed the various theories of employer liability under Title VII. Under the quid pro quo theory of sexual harassment, where a supervisor exercises the authority delegated to him by his employer by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whether or not the employer knew, should have known, or approved of such actions.
However, under the hostile work environment theory of sexual harassment, the Supreme Court in Vinson rejected the EEOC guideline theory of strict (absolute) liability on the part of an employer for the acts of its agents (supervisors) without regard to actual notice to the employer of such illegal acts. The Court indicated that the traditional common law theory of agent-principal tort liability would be generally applicable under the hostile work environment theory of sexual harassment, but that statutory liability under Title VII was more restrictive.
The extent of responsibility an employer will have under the hostile work environment theory of sexual harassment will depend upon who commits the offending act(s), how much knowledge the employer has or should have of the situation, and whether the employer has a sexual harassment policy separate and distinct from its general grievance procedure specifically calculated to encourage victims of sexual harassment to come forward and notify the employer of illegal acts.
A policy setting forth procedures to raise claims of sexual harassment is critical under the work environment theory of sexual harassment since the court in Vinson held that an employee's failure to invoke a general grievance procedure did not insulate the employer from constructive liability for the hostile work environment created by the sexual harassment.
Sexual harassment of an employee by nonsupervisory co-workers will be the employer's responsibility where the employer knows or should know of the situation and fails to take appropriate corrective action.
An employer also may be responsible for the acts of nonemployees if it knows or should know of the situation and does not immediately act to stop it. However, much disagreement exists among the courts and within the present federal administration regarding liability of employers in these circumstances. Because of the heightened awareness of employees about the legal significance of sexual harassment, employers should promulgate a clear policy prohibiting all forms of employee harassment, sexual based or otherwise.
The policy should invite employees to bring such complaints promptly to the attention of their supervisors or, if uncomfortable with that approach, to the attention of the personnel officer or some other designated official. All such complaints should be reviewed immediately and investigated thoroughly but discreetly. Where evidence of misconduct exists, appropriate corrective action should be taken.
Pregnancy
In 1978 Congress amended Title VII to prohibit employment discrimination
against women based upon pregnancy, childbirth, or any other pregnancy-related
conditions.
This provision requires that employers treat women affected by a pregnancy related condition the same as other applicants and employees according to their ability or inability to work. If, for instance, fringe benefits, such as sick leave and health insurance, are provided for employees suffering from nonpregnancy-related disabilities, then the same benefits must be provided for women suffering from pregnancy-related disabilities.
This same principle has been extended to situations in which employers provide fringe benefits for employees' dependents. For example, in Newport News Ship Building & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), the Supreme Court upheld an EEOC guideline stating that employers who cover the medical expenses of female employees' spouses must also cover expenses for male employees' spouses, including those arising from pregnancy related conditions.
Employers also cannot impose terms and conditions upon pregnant female employees that are not made applicable to employees with other types of medical conditions. Thus, an employer cannot require a pregnant female employee to begin her leave at a certain point in her pregnancy when she is able to do her job and no such action is ever taken with respect to employees suffering from other conditions.
However, requirements or restrictions made applicable to employees or applicants suffering from nonpregnancy related conditions can equally be applied to women with a pregnancy-related condition. For example, an employer could probably require a pregnant employee who appears to be experiencing problems doing her job to get a doctor's approval to continue working when the employer's past practice or written policies provide for such actions regarding employees who have encountered work-related problems due to other types of medical conditions.
What is required simply is that employers do not discriminate between pregnancy-related conditions and other temporary disabilities. They need not take any particular actions regarding pregnant applicants and employees that are not taken for other applicants or employees with similar medical conditions, nor must they establish particular benefit programs for such individuals where none have existed before for other temporary disabilities.
On March 20, 1991, the United States Supreme Court ruled that employers may no longer use sex-specific fetal protection policies to bar women from jobs. UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir. 1989), rev'd and remanded, No. 89-1215 (March 20, 1991).
Companies often implement fetal protection policies when it is not technologically feasible to fully protect fetuses from exposure to dangerous substances or when it is not clear whether a danger to fetuses exists.
In the Johnson Controls case, the company implemented a policy barring all women of childbearing age from jobs involving actual or potential exposure to lead in amounts exceeding OSHA recommended levels. Women who wanted to work in these positions were required to submit medical documentation of inability to bear children.
In response, the United Autoworkers Union brought a class-action lawsuit on behalf of "all past, present and future production and maintenance employees," claiming that the policy constituted unlawful sex discrimination under Title VII.
The U. S. Supreme Court held that by excluding only women from the lead exposure jobs, Johnson Controls explicitly discriminated against women on the basis of their sex. Further, the court ruled that by using childbearing capacity as the criterion for exclusion, the company also violated the Pregnancy Discrimination Act of 1978. Thus, because the company policy was discriminatory on its face, a defense based on business necessity was unavailable.
Instead, the court found that the only defense available to a company was the more stringent bona fide occupational qualification (BFOQ) defense. The court explained that the BFOQ defense, when based on a safety theory, is limited to situations where sex or pregnancy actually interferes with an employee's ability to perform job-related duties. Since fertile women perform their duties just as efficiently and safely as other workers, Johnson Controls was unable to establish a BFOQ based upon the absence of fertility.
Further, the court stated that the company's concerns about the welfare of unborn children also failed to establish a BFOQ of sterility. Rather, the court felt decisions about the welfare of future children are best left to the parents who choose to "conceive, bear, support and raise" the children.