IX. THE LAW OF EMPLOYMENT DISCRIMINATION

The 1964 Civil Rights Act was the most far-reaching anti-discrimination legislation passed by the United States Congress. The legislation was a product of the civil rights movement in the south to end racial segregation and discrimination. Many of its protections, however, covered not only discrimination based on race, but on other characteristics, such as sex, national origin and religion. Perhaps the title (section) of that legislation with the greatest overall impact was Title VII.

Title VII prohibits discrimination on the basis of race, color, religion, sex and national origin by any private employer with 15 or more employees, in an industry affecting interstate commerce. As a practical matter that means any employer with 15 or more employees. The success of Title VII led to a subsequent expansion of employment discrimination law to other employers and other kinds of discrimination. Title VII was amended in 1972 to cover most government employers. Also, many states passed statutes modeled after Title VII, which covered employers with fewer (usually 4) employees. Subsequently, Congress passed similar statutes prohibiting employment discrimination based on age and on handicap.

Title VII was originally designed to address racial discrimination and did not, as first introduced, apply to discrimination based on sex. The prohibition on discrimination based on sex was added at the last moment by opponents of the bill in an attempt to defeat it. They believed that requiring employers to consider and hire women equally with men for all jobs would be so unpopular that the entire bill would be defeated. This attempt to defeat the bill failed. Title VII passed with the prohibition on sex discrimination intact and become a mainstay in the women’s movement for equal rights. This chapter will concentrate on the application of Title VII to employment discrimination based on sex (gender) and some of the special issues raised in this area.

A. Disparate Treatment

Under the common law, before the passage of Title VII, employers were free to treat men and women differently. They could refuse to hire women for certain jobs or, if they chose, refuse to hire women altogether. They could promote a man rather than a woman, even if admitting that she deserved the promotion more. They could fire a woman and replace her with a man for no other reason than gender. Until the Equal Pay Act (passed one year before Title VII), they could pay a woman less than a man for doing the same job.

Title VII prohibits all such disparate treatment based on sex. The only exception is when sex is “a bona fide occupational qualification” (BFOQ), that is, where a person of one sex or the other is absolutely necessary to the job. The BFOQ defense has been interpreted very strictly. It may not be based on customer preference or on stereotyping one sex as better at certain tasks than another. Normally, a BFOQ will be allowed only when all members of one sex are physically incapable of performing a central task (i.e., only men can be sperm donors) or for accuracy (only men could be recruited to play the male lead in a movie).

So called “protective legislation,” passed by many states to prohibit women (supposedly for their own good) from performing certain dangerous or physically demanding work, has been rendered invalid by Title VII. Employers cannot avoid the prohibition on disparate treatment by linking gender to another characteristic (sex-plus discrimination). For example, the courts have not allowed a company to hire men with young children, but not women with young children.

The biggest problems that arise in disparate treatment cases involve issues of proof. Employers are now smart enough to avoid explicitly basing their decisions on sex. Therefore, when a man is given a promotion over a woman, it may be difficult to determine whether this was the result of sex discrimination or whether he was the better-qualified candidate. The courts have developed complicated rules apportioning the order of proof between the employee and employer to help judges and juries determine this question. Often, disparate treatment lawsuits are brought as class actions (on behalf of large numbers of women employees) where statistical evidence may be used to show a pattern of discrimination.

B. Disparate Impact

Sometimes an employer has a seemingly neutral rule, which is applied to both men and women, but has a greater impact on one sex than the other. For example, a city may have a rule that all police officers and firefighters must be 6 feet tall and weigh at least 160 pounds. This rule would obviously prevent many more women than men from becoming firefighters. Such a rule is said to have a “disparate impact” on women and would not be allowed unless the employer could show that it was a “business necessity.”

The courts are not in complete agreement over how strong the employer’s need for the particular rule has to be in order to justify it as a “business necessity.” The courts do take into account whether alternative, less discriminatory methods could be used. For example, most courts have held that minimum height and weight requirements for police officers cannot be justified as a business necessity, since size and strength are not necessary for most of what such officers do. As to firefighters, courts have recognized that a certain amount of strength may be required to carry heavy equipment, but that it would be better to actually test the applicants’ ability, rather than to make assumptions based on size.

It should be noted that the disparate impact test used to measure discrimination under Title VII is more stringent than the test under the Equal Protection Clause, where only intentional discrimination is prohibited. Since public employers are now covered by Title VII, a city would be subject to the disparate impact test for employment practices, but to the more lenient intent test for its other actions.

C. What is Discrimination Because of Sex?

Title VII prohibits discrimination because of sex. The use of the word sex has been equated with gender (whether a person is male or female). The courts have held that Title VII does not protect against discrimination because of sexual orientation (discrimination against gays and lesbians). A number of local governments have passed ordinances prohibiting sexual orientation discrimination, but as yet there is no federal remedy for this type of discrimination.

Shortly after the passage of Title VII, an issue arose as to whether discrimination against pregnant employees constituted discrimination because of sex. The Supreme Court held that discrimination against “pregnant persons” was not discrimination against women. Congress reacted by passing the Pregnancy Discrimination Act of 1978. This statute provides that pregnancy discrimination is sex discrimination and requires that pregnant employees be treated the same as any other employees whose ability to work is similar. For example, employers are not required to provide health insurance to their employees, but if they do, they cannot exclude coverage for pregnancy and childbirth. One benefit that must be provided to either or both parents of a newborn or newly adopted child is at least 12 weeks of unpaid leave. The Family and Medical Leave Act of 1993 requires employers to continue to pay certain benefits during the leave and guarantees that the employee can return to the same or an equivalent job.

Courts have also struggled with the issue of an employer’s liability for sexual harassment. When employees are denied a promotion or fired or subjected to some other adverse action because they rebuffed a supervisor’s sexual advances, this constitutes “quid pro quo” harassment and subjects the employer (the company) to liability whether or not it had knowledge of the action. There is another form of harassment, hostile environment,” which is more complicated.

If an employee is subjected to unwelcome and unreasonable sexual harassment to the extent that it creates a hostile work environment, an employee may be able to bring suit under Title VII, even if she was not injured in a tangible way or subjected to a negative employment action. Courts have been struggling to distinguish merely rude or boorish conduct from true sexual harassment on a case-by-case basis. An employer is not automatically liable for damages for this kind of sexual harassment by an employee’s supervisor or co-workers. Here liability will be based on whether the employer took reasonable steps to prevent or stop the harassment. Because of this threat of liability, many employers have instituted formal policies designed to educate employees and to prevent and punish sexual harassment.