Assignment 5-1

Look at attach document. Read Pages 406-441)

Assignment

Conduct your own search of the many resources available and answer each question listed based on applications and impacts in higher education environments. The length of responses should be based on what is needed to appropriately answer the questions.

 

Address each question in paragraph form.

What is a “bona fide occupational qualification” (BFOQ), and how does this term relate to employment law?

The Americans with Disabilities Act (ADA)

· What is the ADA?

· How do you determine whether somebody is “disabled” under the ADA?

· What is qualified person with a disability under the ADA?

· How is reasonable accommodation defined under the ADA?

· Are there any limitations to accommodation under the ADA?

· How is an undue hardship determined under the ADA?

· What actions by an employer may constitute discrimination under the ADA?

· Does an employer have the obligation under the ADA to ensure that the behavior of third parties toward the employer’s disabled employees is non-discriminatory?

· What are the rules governing pre-employment inquiries under the ADA?

· What is the ADA’s position regarding pre-employment medical examinations?

· Is pre-employment testing permissible under the ADA?

· Are there circumstances that permit an employer to inquire about the nature and severity of an applicant’s disability?

· Are alcoholics protected under the ADA?

· How is the ADA enforced?

· Have juries awarded substantial damages amounts in ADA cases?

· Can an employer be sued for either harassment or for retaliation under the ADA?

· Does the ADA allow individual owners and managers to be named as defendants and held personally liable?

· What is the ADA Amendments Act (ADAAA) and how has it modified the ADA?

· What is major life activity under the ADAAA?

· What are the applications and impacts of the ADA and ADAAA on colleges and universities?

 

The Age Discrimination in Employment Act (ADEA)

· What is the ADEA? and what is its application and impact on colleges and universities?

· Who is protected by the ADEA?

· Are involuntary retirement plans illegal under the ADEA?

· What is reverse discrimination and does the ADEA protect younger workers from reverse discrimination?

· How are age discrimination claims proved under ADEA?

· What is necessary to establish a prima facie age discrimination claim?

· What are the differences in how Title VII and ADEA are enforced?

· Can disparate impact cases be maintained under the ADEA?

· Can age be a BFOQ, exempt from illegal age discrimination under ADEA?

· Have there been any amendments to the ADEA?

· What are the applications and impacts of the ADEA on colleges and universities?

Citation: 29 Mercer L. Rev. 677 1977-1978

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Equal Employment Opportunities:
Case Law Overviewt

By Walter B. Connolly*
and

Michael J. Connolly**

I. The Sources of Legal Protection of Equal Employment Op-
p ortu n ities ……………………………………. 6 79

A. The Civil Rights Act of 1866 …………………. 679
B. Title VII of the Civil Rights Act of 1964 ………… 680
C. The Federal Age Discrimination in Employment Act of

19 6 7 …………………………………….. 6 8 0
D . The Equal Pay Act …… ………………….. 680
E. Executive Orders 11246 & 11141: Nondiscrimination

Under Federal Government Contracts ………….. 68

1

F. The National Labor Relations Act …………….. 681
G. The Vocational Rehabilitation Act of 1973 ……… 681
H. The Vietnam Era Veterans Readjustment Act of 1974 68

2

I. State Fair Employment Practices Laws ………… 682

II. Employment Practices, Policies, and Plant Rules Affected by
the E EO Obligation ……………………………. 68

3

A. Advertising, Recruiting, Referral, Preemployment In-
quiries, and Hiring Standards ………………… 683
1. Advertising for Job Applicants …………… 683
2. Recruiting and Referral of Job Applicants ….. 686
3. Preemployment Inquiries ……………….. 68

8

4. H iring Standards ……………………… 691

a. Police Records-Arrests and Convictions … 691
b. High School or College Requirement ……. 691
c. Hiring Standards that Discriminate Against

Women-No Marriage Rules, Pregnancy,
C h ildren ………………………….. 692

t This is an extract from Walter B. Connolly, Jr.’s book, A PRACTcAL GUIDE TO EQUAL
EMPLOYMENT OPPORTUNrY-LAW PINCIPLES AND PRACTICE, which will be published in August,
1978 by Law Journal Press. Copyright 1978 Walter B. Connolly. Reprinted with permission.

* Partner in Pepper, Hamilton & Scheetz, Washington, D.C. Georgetown University and
University of Detroit (A.B., 1964); University of Southern California (J.D., 1966).

** Office of General Counsel, Labor, and Personnel Division, General Motors Corp. Regis
College (A.B., 1971); University of Mississippi (J.D., 1973); Wayne State University (L.L.M.,
1977).

MERCER LAW REVIEW

d. Applicant’s Participation in Illegal Activities 692
e. Preference for Applicants who .are Relatives

of Current Employees ……………….. 692
f. Minimum Height and Weight Requirements 693
g. Rejection of Applicants Because of Poor Credit

R ecords ………. I …………………. 693
h. Differential Pay Rates for Newly Hired Em-

p loyees …………………………… 693
i. Hiring Standards Based on Age ……….. 693
j. Hiring Standards Relating to Religion ….. 694
k. Hiring Standards Based on Citizenship …. 694
1. Hiring Standards Representing Avoidance of

Burdensome Obligations …………….. 694
m. Hiring Standards Based on Performance Re-

ports of Other Employers …………….. 695
B . T esting ………………………………….. 695

1. Regulatory Guidelines ………………….. 695
2. Judicial Interpretation ………………….. 699

C. Promotions, Transfers, Lines of Progression, and Sen-
iority System s …………………………….. 700

D. Maternity Leave and Benefits ………………… 704
E. Fringe Benefit Programs …………………….. 70

7

F. Enforcement of Plant Rules and Work Policies Not Re-

lated to Job Performance ……………………. 710
1. Groom ing Rules ……………………….. 711
2. Discharge for Conviction of “Serious Crime” … 713
3. Discharge for Several Garnishments ……….. 714
4. Falsifying Employment Applications ……… 714
5. Inability to Get Along With Co-Workers ……. 716
6. Fighting and Discriminatory Provocation …… 717

G . Scheduling W ork ………………………….. 718
1. State Laws Restricting Women With Respect to

Overtime, Weight Lifting and the Like …….. 718
2. “Accommodation” to Religious Belief …….. 718

H. Equal Pay for Equal W ork …………………… 720
1. Relationship of Equal Pay Act to Title VII …. 720
2. Establishment Coverage ………………… 721
3. Standards for “Equal Work” . ………….. 721
4. – E qual Skill …………………. ……….. 722
5. E qual E ffort …………………………… 723
6. Equal Responsibility …………………… 723
7. Similarity of Working Conditions …………. 723
8. Physical Facilities and Other Conditions of Em-

ploym ent …………………………….. 724
III. The Elements of Prohibited Discrimination …………. 728

A. Is Discriminatory Intent Required? ……………. 728

[Vol. 29

EEO OBLIGATION

B. The Use of Statistics in Litigation …………….. 729
C. The Present Effects of Past Discrimination ……… 731

IV. Substantive Defenses to Discrimination …………….. 733
A. Business N ecessity ……… ………………… 733
B. Bona Fide Occupational Qualification ………… 734
C. Good Faith Reliance Upon State Protective Laws 736
D. Good Faith Reliance on EEOC Opinion ………… 736
E. Affirmative Action Plans and Consent Decrees …… 737

V . R em edies …………………………………….. 738
A . C lass A ctions ……………………………… 738
B. Types of Relief Awarded …………………….. 7

39

C. Lim itation on Liability ……………………… 743

I. THE SOURCES OF LEGAL PROTECTION OF EQUAL EMPLOYMENT OPPORTUNITY

A. The Civil Rights Act of 1866

Following the Civil War and the passage of the Thirteenth and Four-
teenth Amendments to the Constitution, Congress sought to specify its
intent that the newly freed blacks be accorded full and complete equality
under law with white citizens of the United States. Through a series of
Civil Rights Acts in 1866 and subsequent years, Congress established the
principle of equal rights and equal protection for all citizens of the United
States. Although the initial interpretation of these Acts construed them to
apply only to governmental discrimination, courts have since held that the
Civil Rights Act of 1866′ affords a remedy for racial discrimination by a
private employer.’ Recently, the Supreme Court held that this Act pro-
scribes discrimination because of race against whites as well as blacks.3 At
least one court has held that discrimination against an employee because
of his alien status and the foreign residency of his family is actionable
under the 1866 Act.’ While the courts are split on whether the Act prohibits
discrimination against Spanish-surnamed Americans, 5 it clearly does not
bar discrimination by a private employer on the basis of sex,’ religion,’ or

1. 42 U.S.C.A. §1981 (1974).
2. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); Sanders v. Dobbs House,

Inc., 431 F.2d 1097 (5th Cir.), cert. denied, 401 U.S. 948 (1970). The 1866 Act also has been
held to prohibit racial discrimination by unions. Henry v. Radio Station KSAN, 374 F. Supp.
260 (N.D. Cal. 1974).

3. McDonald v. Santa Fe Trail Transp. Co., 427 U:S. 273

(1976).

4. Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974).
5. Compare Zubero v. Memorex, Inc., 12 FEP Cases 604 (N.D. Cal. 1976] Jones v. United

Gas Improvement Corp., 383 F. Supp. 420 (E.D. Pa. 1975), with Sabala v. Western Gilette,
Inc., 516 F.2d 1251 (5th Cir. 1975), vacated and remanded, 431 U.S. 951 (1977); Maldonado
v. Broadcast Plaza, Inc., 10 FEP Cases 839 (D. Conn. 1974).

6. Jamerson v. Trans World Airlines, Inc., 11 FEP Cases 1475 (S.D. Tex. 1975); Barfield
v. A.R.C. Security, Inc., 10 FEP Cases 789 (N.D. Ga. 1975).

7. Gradillas v. Hughes Aircraft Co., 407 F. Supp. 865 (D. Ariz. 1975); Kurylas v. United

19781

MERCER LAW REVIEW

national origin.’ The Supreme Court has held that a citizenship require-
ment for employment does not violate Title VII

B. Title VII of the Civil Rights Act of 196410

Title VII makes it unlawful for covered employers to discriminate with
respect to any condition of employment, or against any applicant for em-
ployment, because of race, color, sex, religion, or national origin, except
where religion, sex, or national origin is a bona fide occupational qualifica-
tion which is reasonably necessary to the conduct of a particular business.
Title VII applies to all employers who employ 15 or more employees (in-
cluding executives and supervisors) for each working day in each of 20 or
more calendar weeks in the current or preceding calendar year.

The vast majority of employment discrimination claims are brought
under Title VII, which is administered by a five-member Equal Employ-
ment Opportunity Commission in Washington, D.C., and regional and
district offices throughout the country.

C. The Federal Age Discrimination in Employment Act of 1967″

This Act makes it unlawful to discriminate on the basis of age against
employees, or applicants for employment, who are between 40 and 65 years
of age. The Act, which is administered by the Wage-Hour Administrator
of the U.S. Department of Labor, applies to all employers who employ 20
or more employees (including executives and supervisors) for each working
day in each of 20 or more calendar weeks in the current or preceding
calendar year.

D. The Equal Pay Act’ 2

This Act makes it unlawful to pay employees of one sex at a different
rate than those of the other sex for equal work on jobs which require equal
skill, effort and responsibility under similar working conditions in the same
establishment. The Equal Pay Act is administered by the Wage-Hour
Administrator of the U.S. Department of Labor and applies to all employ-

States Dep’t of Agriculture, 373 F. Supp. 1072 (D.D.C. 1974).
8. Marlowe v. General Motors Corp., 11 FEP Cases 1357 (E.D. Mich. 1975).
9. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973).
10. 42 U.S.C.A. §2000e (1974 & Supp. 1977).
11. 29 U.S.C.A. §§621-634 (1975).
12. 29 U.S.C.A. §206(d) (1965).
13. Exec. Order No. 11,246, 3 C.F.R. 339 (1964-1965 Compilation), reprinted in 42

U.S.C.A. §2000e (1974); No. 11,246 was amended by Exec. Order No. 11,375, 3 C.F.R. 684
(1966-1970 Compilation) and superceded in part by Exec. Order No. 11,478, 3 C.F.R. 803
(1966-1970 Compilation). Both 11375 and 11378 are reprinted in 42 U.S.C.A. §2000e (1974).
Exec. Order No. 11,141, 3 C.F.R. 179 (1964-1965 Compilation), reprinted in 5 U.S.C.A. §3301
(1974).

[Vol. 29

EEO OBLIGATION

ers and employees covered by the minimum wage and overtime provisions
of the Fair Labor Standards Act. Moreover, the Equal Pay Act protects
employees of covered employers even though such employees may be ex-
empt from overtime pay requirements as executive, professional, or admin-
istrative employees.

E. Executive Orders 11246 & 11141: Nondiscrimination Under Federal
Government Contracts3

Executive Order 11246 prohibits employment discrimination on the
basis of race, color, religion, sex, or national origin by all employers having
contracts or subcontracts with the U.S. Government in amounts over
$10,000. In addition, covered contractors and subcontractors have an af-
firmative obligation to promote equal employment opportunity. The Exec-
utive Order, which imposes requirements similar to – although in some
instances, more severe than – those imposed by Title VII and the Equal
Pay Act, is enforced by the Office of Federal Contract Compliance Pro-
grams in Washington, D.C., and, if applicable, applies regardless of the
number of employees on the payroll of the employer. Executive Order
11141, administered by federal agency and department heads, prohibits
federal contractors and subcontractors from discriminating against per-
sons because of age except upon the basis of bona fide occupational qualifi-
cation, retirement plan, or statutory requirement.

F. The National Labor Relations Act’4

Although primarily designed and applied to protect employees’ rights to
engage in, or refrain from, self-organization and union-type activities, the
Act has been interpreted to prohibit discrimination in certain circumstan-
ces against employees because of race, alienage or national origin.,5 The
Act is administered and enforced by the National Labor Relations Board,
headquartered in Washington, D.C., with regional offices throughout the
United States.

G. The Vocational Rehabilitation Act of 197311

This Act requires that any contractor who holds contracts with the fed-

13. 3 C.F.R. 339 (1964-1965 Compilation).
14. 29 U.S.C.A. §§141-197 (1973 & Supp. 1977).
15. Steele v. Louisville & N. R.R., 323 U.S. 192 (1944); NLRB v. Mansion House Center

Management Corp., 473 F.2d 471 (8th Cir. 1973); Bekins Moving & Storage Co., 211 N.L.R.B.
138 (1974); Black Musicians of Pittsburgh v. Musicians Local 60-471, 375 F. Supp. 902 (W.D.
Pa. 1974). The Supreme Court, however, had held that the Act does not protect employees
who bypass their lawful bargaining representative and picket their employer for alleged racial
discrimination. Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50
(1975).

16. 29 U.S.C.A. §§701-794 (1975 & Supp. 1977).

19781

MERCER LAW REVIEW

eral government in excess of $2,500, or any subcontractor holding subcon-
tracts in excess of $2,500 entered into with a prime contractor covered by
the Act, take affirmative action to employ and advance handicapped indi-
viduals.’7 A written affirmative action program must be developed by em-
ployers who hold federal contracts or subcontracts of $50,000 or more and
who have 50 or more employees. 8

H. The Vietnam Era Veterans Readjustment Act of 197419

This Act requires employers who hold federal contracts or subcontracts
in excess of $10,000 to take affirmative action to employ and advance in
employment qualified disabled veterans and veterans of the Vietnam era.
Written affirmative action programs must be developed by employers who
hold federal contracts or subcontracts of $50,000 or more and who have 50
or more employees.2 0 The Office of Federal Contract Compliance Programs
enforces this Act’s affirmative action requirements.

I. State Fair Employment Practices Laws

Forty-six states,2′ the District of Columbia, and Puerto Rico have their
own statutes prohibiting discrimination in employment. Most of these
statutes cover sex discrimination, as well as discrimination based on race,
color, religion, and national origin. In addition, 35 states have statutes
prohibiting age discrimination.” These laws are generally administered by
state commissions, and may impose additional requirements of record-
keeping, reporting, and administrative compliance. In addition to these
state statutes, certain local agencies have been established to combat em-
ployment discrimination. 3 Some of these local agencies also have enforce-
ment powers within their municipal or other geographic jurisdiction.

17. 29 U.S.C.A. §793(a) (1975).
18. 41 C.F.R. §60-741.5 (1977).
19. 38 U.S.C.A. §§2011-2014 (Supp. 1977).
20. 41 C.F.R. §60-250.5(a) (1977).
21. Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Ha-

waii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massa-
chusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire,
New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Ore-
gon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
Vermont, Washington, West Virginia, Wisconsin, Wyoming.

22. Alaska, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota,
Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington, West
Virginia, Wisconsin.

23. E.g., Philadelphia, Pittsburgh, St. Louis, and New York City.

[Vol. 29

EEO OBLIGATION

II. EMPLOYMENT PRACTICES, POLICIES, AND PLANT RULES AFFECTED BY THE
EEO OBLIGATION

A. Advertising, Recruiting, Referral, Preemployment Inquiries, and
Hiring Standards

1. Advertising for Job Applicants. Under Title VII, an employer is
prohibited from printing or publishing job notices or advertisements indi-
cating any preference or limitation based on race, color, religion, sex, or
national origin except where religion, sex, or national origin is a bona fide
occupational qualification.24 Obviously in conflict with the Title VII prohi-
bition would be advertisements for “colored” or “white” help or ads pub-
lished in racially or sexually segregated listings.

Ads dealing with common job categories such as “salesman,”
“pressman,” “waitress,” or “waiter” may be suspect under the above pro-
hibition as well, particularly if the male-oriented job title advertisements
are placed in a “help wanted male” column and the female-oriented job
title advertisements are placed in a “help wanted female” column of a
newspaper or other publication. Thus, in one case 5 a violation of Title VII
was found for an advertisement requesting a “stewardess” where the ad
was placed in the “help wanted female” column of a newspaper. The
violation was found even though the man challenging the advertisement
had not applied for a job with the employer (the court ruled that he had
been inhibited from applying for a job because the type of advertisement
challenged was an effective deterrent to men in the industry, particularly
in view of the man’s demonstrated inability to obtain a steward-stewardess
job with another airline which utilized a similar advertisement) and even
though the employer had included in the advertisement the slogan, “An
Equal Opportunity Employer.” The court noted that an injunction re-
straining publication of the advertisement could be obtained to remedy the
violations found.

To avoid the risk of illegal advertising under these Title VII standards,
the use of neutral job titles, such as “salesperson” for “salesman,” should
be considered. Alternatively, if non-neutral job titles, “pressman,”
“waiter,” “waitress,” and the like are utilized in ads, the designation
“M/W,” prominently defined in the ads as meaning “men or women,”
should follow each job listing. Another way to promote nondiscriminatory
advertising is to actively and consistently place advertisements for job
applicants in newspapers and periodicals published by minority groups or
with high minority-group circulation, always using the phrase “An Equal
Opportunity Employer.”. Furthermore, since the Supreme Court has deter-
mined that it is permissible for states and municipalities to ban separate

24. Section 704(B), 42 U.S.C.A. §2000e-3(b) (1974); see also 29 C.FR. §1604.5 (1976).
25. Hailes v. United Air Lines, 464 F.2d 1006 (5th Cir. 1972).

19781

MERCER LAW REVIEW

columns in newspapers for help-wanted male and help-wanted female ad-
vertising where such advertising discriminates by reason of sex because of
the absence of a bona fide occupational qualification based on sex, extreme
caution should be exercised to insure that job advertising is carried in
publications which do not violate such a ban. 6

The Age Discrimination in Employment Act prohibits an employer from
printing or publishing any notice or advertisement relating to employment
which indicates any preference, limitation, specification, or discrimination
against persons between the ages of 40-65, unless age is a bona fide occupa-
tional qualification or unless the differentiation is based on reasonable
factors other than age.Y Executive Order 11141 specifies that contractors
and subcontractors of the federal government in solicitations or advertise-
ments for employees to work on government contracts shall not establish
maximum age limits for such work, unless the maximum age limits are
based on bona fide occupational qualifications, retirement plans, or other
statutory requirements.

Under the Age Discrimination in Employment Act, help-wanted ads
discriminating in favor of persons between the ages of 40-65 are not prohib-
ited, but advertisements tending to discriminate against persons between
those ages are unlawful. The following specifications in advertisements
have been ruled to be unlawful under the Age Discrimination in Employ-
ment Act:28

1. “Age 25 to 35”
2. “Young”
3. “Boy”
4. “Girl”
5. “College Student”
6. “Recent College Graduate”
7. “Age 40 to 50”
8. “Age over 50”
9. “Age over 65”
10. “Retired Person”
11. “Supplement your pension”

The following specifications in advertisements have been determined to be
lawful under the Age Discrimination in Employment Act:29

26. Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376 (1973).
27. 29 U.S.C.A. §623(e) (1975).
28. 29 C.F.R. §860.92(b) (1976). See also Brennan v. C/M Mobile, Inc., 8 FEP Cases 551

(S.D. Ala. 1974). One court, however, has held that it is not unlawful to use the terms “college
students,” “girls,” “boys,” and “June graduates,” finding the Secretary of Labor’s rule
“unconvincing.” Brennan v. Paragon Employ. Agency, 356 F. Supp. 286 (S.D.N.Y. 1973),
aff’d, 489 F.2d 752 (2d Cir. 1974).

29. 29 C.F.R. §860.92(c) (1976).

[Vol. 29

EEO OBLIGATION

1. “College Graduate”
2. “Minimum Age less than 40”
3. “Not under 18”
4. “Not under 21”

Use of the phrase “state your age,” “date of birth,” or the like in help-
wanted notices or ads is not, in itself, a violation of the statute but will be
closely scrutinized to assure that its use is not for purposes proscribed by
the statute.3 1 One way to advise that the use of such phrases is not for a
prohibited purpose is to apprise job applicants of the statutory proscrip-
tions by printing the following language in notices, advertisements, or job
applications incorporating the suspect phrases: “The Age Discrimination
in Employment Act of 1967 prohibits discrimination on the basis of age
with respect to individuals who are at least 40 but less than 65 years of
age.”

3

As part of affirmative action programs instituted pursuant to the re-
quirements of Executive Order 11246, as amended, government contrac-
tors and subcontractors are obligated to do the following in connection with
all advertisements.

32

1. State that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, or na-
tional origin;
2. Use display or other advertising which includes an appropriate
insignia prescribed by the Director of the Office of Federal Con-
tract Compliance;
3. A single advertisement which is grouped with other ads must
clearly state that all employers in the group assure qualified appli-
cants equal employment opportunity;
4. Use the phrase “An Equal Opportunity Employer.”

Many states also regulate employment advertising. 33 The New Jersey
Employment Advertising Guidelines” are an example of a comprehensive
state scheme which prohibits employers, unions, employment agencies,
and newspapers from printing, publishing, or circulating any advertise-
ment which expresses “overtly or subtly, directly or indirectly” any limita-
tion based on “race, creed, color, national origin, ancestry, age, marital

30. Id.
31. 29 C.F.R. §860.95(a) (1976).
32. 29 C.F.R. §60-1.41 (1976).
33. Alaska, Arizona, California, Colorado, Delaware, Hawaii, Idaho, Iowa, Kentucky,

Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsyl-
vania, Rhode Island, South Dakota, Utah, Vermont, Washington, West Virginia, Wisconsin.

34. Employment Advertising Guidelines of New Jersey Division on Civil Rights, § §13:11-
1.1 to 13:11-1.8 (1972). Failure to comply with the rules established therein is a violation of
the New Jersey Law Against Discrimination, N.J. STAT. ANN. §10.5-12 (1972).

1978]

MERCER LAW REVIEW

status, or sex” in the absence of a bona fide occupational qualification.
This scheme not only prohibits the use of such job titles such as
“salesman” or “pressman” without a designation that the job vacancy can
be filled by a man or woman but also proscribes advertisements specifying
“single” or “married” applicants.

2. Recruiting and Referral of Job Applicants. Employer obliga-
tions with respect to recruiting and referral of job applicants have been
developed under Title VII and Executive Order 11246, as amended. These
obligations have been derived from the remedy power of the courts under
Title VII and from the concept of goals and timetables required by affirma-
tive action programs under the Executive Order.

Although Title VII specifically provides that no employer shall be re-
quired to grant preferential treatment to any individual or to any group
because of race, color, religion, sex, or national origin because of an imbal-
ance which may exist with respect to the total number or percentage of
persons of any race, color, religion, sex, or national origin employed,” some
courts have ruled that, to correct the effects of past discriminatory employ-
ment practices, quotas – or preferential treatment of minority groups –

can be ordered to remedy the present effects of past discrimination. 8 Simi-
larly, adherence to goals and timetables establishing minority group par-
ticipation in an employer’s work force specified at fixed percentages under
Executive Order affirmative action programs has been held not to be pro-
scribed preferential treatment,37 although some recent lower court cases
have questioned this practice.38

Recruitment procedures should be standardized, objective and centrally
determined and reviewed. Allowing individual department heads to publi-
cize and determine how to recruit for specific job vacancies within their
departments, as well as to decide subjectively, without review by higher
authority, whether an applicant’s qualifications are satisfactory has been
held to be violative of Title VII for the reason that unstandardized and
subjective recruiting procedures lend themselves to arbitrary and discrimi-
natory action.”

Moreover, recruiting and referral sources utilized by an employer must

35. Section 703(j), 42 U.S.C.A. §2000e-20) (1974). See International Bhd. of Teamsters
v. United States, 431 U.S. 324 (1977); Hazelwood School Dist. v. United States, 433 U.S. 299
(1977).

36. E.g., Rios v. Enterprise Ass’n Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974);
United States v. Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939 (1973).

37. Contractors Ass’n v. Shultz, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854 (1971);
EEOC v. AT& T, 556 F.2d 167 (3d Cir. 1977); Germann v. Kipp, 429 F. Supp. 1323 (D.C.
Mo. 1977).

38. See Weber v. Kaiser Aluminium & Chem. Corp., 415 F. Supp. 761 (E.D. La. 1976);
Cramer v. Virginia Commonwealth Univ., 415 F. Supp. 673 (E.D. Va. 1976).

39. Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 1973), cert. denied, 414 U.S. 854
(1974).

[Vol. 29

EEO OBLIGATION

recruit and refer job applicants in a nondiscriminatory fashion, and it is
unlawful for an employer to knowingly utilize a referral source which dis-
criminates or employs discriminatory screening or testing devices in refer-
ring prospective employees.

To avoid overreliance on referrals from recruiting sources which may not
be adhering to the equal employment opportunity obligations imposed on
them, an employer should actively recruit applicants from minority group
referral sources and from educational institutions with high minority group
enrollment. In this way, an employer’s overall recruitment policy should
achieve a nondiscriminatory effect.

Methods commonly utilized or frequently recommended to increase re-
cruitment of minority groups are:

1. Use of minority groups, e.g., black, Spanish-speaking, and
female recruiters;
2. Use of employment agencies specializing in referral of minority
groups;
3. Job advertising in publications aimed at minority group com-
munities;
4. Participation in “job fairs” and similar efforts sponsored by
minority groups;
5. Requesting referrals from the Urban League, NAACP, from
ghetto job centers, League of United Latin American Citizens,
NOW, welfare rights organizations, Women’s Equity Action
League, Professional Women’s Careers, Negro women’s sororities;
service groups and local community organizations and leaders;
6. Actively recruiting at high schools and colleges with substan-
tial minority group or female enrollments; recruiting at all educa-
tional institutions should incorporate special efforts to reach mi-
norities and women;
7. Encouraging minority group employees to refer friends and
relatives for job openings;
8. Formal briefing sessions on company premises with, and plant
tours for, minority group organizations;
9. Special employment programs for minorities or women, in-
cluding summer jobs for underprivileged students, and the like;
10. Recruiting brochures should picture work situations which
include minority groups and women.

The use of such methods to improve minority group recruiting and refer-
ral is particularly important where an employer’s past recruiting practices
have resulted in a substantially all-white or all-male workforce. Thus,
where an employer with a predominantly white supervisory force resulting
from past discriminatory recruiting practices has relied primarily on word-
of-mouth referrals by existing employees to fill job vacancies, the courts

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MERCER LAW REVIEW

have not hesitated to find violations of Title VII ° Similarly, even where
one segment of an employer’s workforce – production employees, for ex-
ample – has a substantial minority group representation, an employer
may still violate Title VII and be required to utilize other referral sources
if recruiting for segregated segments of his workforce – e.g., clerical and
managerial segments – is confined to word-of-mouth referrals by existing
employees. On the other hand, word-of-mouth recruiting is not prohibited
if there is no pattern of segregation or past discrimination.”

The practice of placing job applications which are not renewed within
two weeks of their initial tender as the last ones to be considered is also
suspect when an employer relies heavily on referrals by friends and rela-
tives of current employees in an all-white workforce. Such a practice tends
to create a priority for those familiar with the practice, who are most likely
to be friends and relatives of current employees.”

The Vocational Rehabilitation Act of 1973 requires any contractor who
enters into a contract in excess of $2,500 with the federal government to
“take affirmative action to employ and advance in employment qualified
handicapped individuals . . . . 4 Subcontractors with contracts in excess
of $2,500 must also comply with this requirement. This affirmative action
obligation entails, for example, active recruitment of and advertising for
handicapped job applicants, filing data with the Department of Labor
pertaining to employment practices with respect to the handicapped, es-
tablishment and publication of procedures and guidelines for encouraging
employment of the handicapped, internal communication about the em-
ployer’s obligation with respect to the handicapped, and the enlisting of
assistance and support from schools, agencies and organizations which
deal with the handicapped.” Under regulations issued pursuant to the
Vietnam Era Veteran’s Readjustment Assistance Act of 1974, 4′ federal con-
tractors and subcontractors are subject to the same affirmative action
obligation with respect to disabled veterans and veterans of the Vietnam
era.

3. Preemployment Inquiries. Although Title VII does not expressly
prohibit preemployment inquiries concerning race, religion, sex, color, or
national origin, the EEOC has taken the position that it will regard such

40. E.g., Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Parham v. Southwest-
ern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970); Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971), cert. denied, 406 U.S. 950 (1972); United States v. Chesapeake & 0. Ry., 471 F.2d 582
(4th Cir. 1972), cert. denied, 411 U.S, 939 (1973); United States v. N.L. Indus., Inc., 479 F.2d
354 (8th Cir. 1973); United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); McCoy
v. Safeway Stores, Inc., 5 FEP Cases 628 (D.D.C. 1973).

41. Gresham v. Chambers, 501 F.2d 687 (2d Cir. 1974).
42. Lea v. Cone Mills, 301 F. Supp. 97 (M.D.N.C. 1969), aff’d in relevant part, 438 F.2d

86 (4th Cir. 1971).
43, Section 503(a), 29 U.S.C.A. §703(a) (1973).
44. 41 C.F.R. §§60-741.3, 60-741.4 (1977).
45. 41 C.F.R. §§60-250.1 to .54 (1977).

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EEO OBLIGATION

inquiries with disfavor except where sex, religion, or national origin is a
bona fide occupational qualification.”

Inquiries into an applicant’s arrest or conviction record are unlawful
absent a showing of business necessity in the particular case, because
certain minority groups experience higher rates of arrests and convictions.”
It would be lawful, however, to inquire into an applicant’s conviction re-
cord when the job vacancy involved is security sensitive and it is shown
that persons with high conviction rates were poor risks for such jobs.’8

It has also been held discriminatory to require job applicants to produce
proof of honorable discharge from the armed services because minorities
receive a higher proportion of general and undesirable discharges.’ 9 Using
similar reasoning, the EEOC has determined that inquiring into job appli-
cants’ financial condition discriminates against minorities since more non-
whites than whites are below the poverty level.50 Moreover, the EEOC has
held that requesting an applicant to state the names of relatives employed
by the employer may be evidence of discrimination if hiring preference is
given to relatives of employees, and minorities are underrepresented in the
employer’s workforce. 5 On the other hand, the EEOC allows inquiries as
to “male,” “female,” “Mr.,” “Mrs.,” or “Miss” provided the inquiry is
made in good faith.52

Under the Age Discrimination in Employment Act, it has been deter-
mined that inquiries into an applicant’s age are not, of themselves, prohib-
ited, unless careful scrutiny shows that an inquiry indicates, directly or
indirectly a preference, limitation, specification, or discrimination based
on age.5″ Similarly, it is not unlawful to require an applicant to “state age”
or “date of birth” on an employment application provided that the inquiry
masks no discriminatory purpose. The absence of such a purpose can be
shown by stating on the application form:

The Age Discrimination in Employment Act prohibits discrimina-
tion on the basis of age with respect to individuals who are at least
40 but less than 65 years of age.’

46. 29 C.F.R. §1604.7 (1976). See also draft of proposed EEOC Guidelines for Preemploy-
ment Inquiries (dated Oct. 20, 1976, released May, 1976).

47. EEOC Dec. No. 74-89, 2 EMPL. PRAc. GUIDE (CCH EEOC Decs.) 6418 (1974); EEOC
Dec. No. 72-1460, 4 FEP Cases 718 (1972); EEOC Dec. No. 74-90, 2 EMPL. PR~c. GUIDE (CCH
EEOC Decs.) 6423 (1974); Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972).

48. Richardson v. Hotel Corp. of America, 468 F.2d 951 (5th Cir. 1972), affirming 332 F.
Supp. 519 (E.D. La. 1971).

49. EEOC Dec. No. 74-25, 2 EMPL. PRAc. GUIDE (CCH EEOC Decs.) 6400 (1973).
50. EEOC Dec. No. 74-02, 2 EMPL. PRAc. GUIDE (CCH EEOC Decs.) 6386 (1973); EEOC

Dec. No. 72-1176, CCH EEOC Decs. 6359 (1972).
51. EEOC Dec. No. 71-797, CCH EEOC Decs. 6181 (1970).
52. 29 C.F.R. §1604.7 (1976).
53. 29 C.F.R. §860.95(a) (1976).
54. Id.

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MERCER LAW REVIEW

Many states55 have issued detailed guidelines on preemployment inquir-
ies. Generally prohibited are the following types of inquiries:

1. Change of name by court order or otherwise;
2. Maiden name of applicant’s spouse;
3. Previous foreign addresses;
4. Birthplace of applicant, applicant’s parents;
5. Applicant’s religion;
6. Applicant’s complexion, color of skin;
7. Applicant’s citizenship or country of national origin;
8. How applicant acquired ability to read, write, or speak a for-
eign language;
9. Applicant’s foreign military service;
10. Name and address of relative to be notified in case of emer-
gency;
11. Applicant’s club or organization membership, except those
which do not reveal applicant’s race, color, national origin, reli-
gion, or sex;
12. An applicant’s arrest record, and in many states, the convic-
tion record as well;
13. Some states prohibit inquiries into an applicant’s height in
the absence of a bona fide occupational qualification.

Generally permitted are the following types of inquiries:

1. Whether applicant has ever worked for employer under an-
other name;
2. The language an applicant speaks or reads;
3. Educational background of applicant;
4. Applicant’s work experience;
5. Applicant’s U.S. military experience;
6. Names and addresses of applicant’s parents if in the U.S.A.;
7. Name of person (not relative) to notify in case of emergency;
8. Names of character references;
9. Whether an applicant is a U.S. citizen, and if not, whether
applicant has a right to remain in the U.S. to work;
10. Applicant’s place of residence;
11. Applicant’s length of residence in state;
12. Names of persons with whom an applicant resides;
13. Whether applicant’s age exceeds the minimum age require-
ment of the state’s child labor laws.

In compliance reviews, agencies enforcing the Affirmative Action Guide-

55. Arizona, California, Delaware, Hawaii, Kansas, Michigan, Minnesota, Missouri, New
Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Washing-
ton, West Virginia.

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EEO OBLIGATION

lines of the Office of Federal Contract Compliance Programs may demand
that preemployment inquiries similar to those generally prohibited by var-
ious states be expunged from employment policies as a part of an em-
ployer’s affirmative action policy.56

4. Hiring Standards. Affirmative recruiting efforts which substan-
tially increase the flow of minority group applicants will not achieve com-
pliance with the substantive equal employment opportunity obligation if,
because of unreasonably high standards for hire, few applicants are hired.
An employer, therefore, must be prepared to demonstrate that its hiring
standards do not automatically screen out minority or female applicants
based on their speech, dress, or work habits unless the hiring standards are
demonstrably job related.

Most requirements for nondiscriminatory hiring standards have been
developed under Title VII and the Age Discrimination in Employment Act.
Most important is the mandate that hiring standards be fixed or reasona-
bly objective. Unstandardized and subjective hiring procedures which vest
broad hiring discretion in department heads or individual supervisors give
rise to an inference of discriminatory conduct.57 What follows are some of
the most frequently encountered hiring criteria and the pitfalls, if any,
connected with their continued use.

a. Police Records-Arrests and Convictions. Preemployment inquiries
into arrests and convictions are unlawful, absent a showing of business
necessity. Many states have flatly prohibited preemployment inquiries
into an applicant’s arrest record. Similarly, the refusal to hire a job appli-
cant because of his arrest record, absent a showing of a reasonable business
purpose or a job whose duties require an arrest-free record, would violate
Title VII.58 Absent a showing of business necessity, the same prohibition
would also apply to a hiring practice which allows rejection of an applicant
based on his conviction record,” but an employer may discharge an em-
ployee who has falsified his application in regard to his arrest record. 0

b. High School or College Requirement.’ In the absence of a showing

56. 41 C.F.R. §60-60.9 Part B(V)(A)(3) (1976).
57. United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); Brown v. Gaston

County Dyeing Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982 (1972); Reed v.
Arlington Hotel Co., 476 F.2d 721 (8th Cir. 1973), cert. denied, 414 U.S. 854 (1974).

58. Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (C.D. Cal. 1970), aff’d, 472 F.2d
631 (9th Cir. 1972); Carter v. Gallagher, 3 FEP Cases 692 (D. Minn. 1971), enforced in part,
3 FEP Cases 900 (8th Cir. 1971), modified, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S.
950 (1972); EEOC Dec. No. 74-25, 10 FEP Cases 260 (1973); EEOC Dec. No. 72-0947, 4 FEP
Cases 1305 (1972); Richardson v. Hotel Corp. of America, 332 F. Supp. 519 (E.D. La. 1971),
aff’d, 468 F.2d 951 (5th Cir. 1972).

59. Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975). EEOC Dec. No. 72-
1460, 4 FEP Cases 718 (1972).

60. Jimerson v. Kisco Co., Inc., 542 F.2d 1008 (8th Cir. 1976); McBride v. Delta Airlines,
551 F.2d 113 (6th Cir. 1977).

61. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

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MERCER LAW REVIEW

that the duties of the job which an applicant seeks require a high school
education for successful performance, a requirement that the applicant
possess a high school diploma is in violation of Title VII.12 The same may
hold true for a college-degree requirement. A mere desire to upgrade overall
workforce quality by such an educational requirement or preference 3 is not
enough to justify such a requirement or preference.

c. Hiring Standards That Discriminate Against Women – No Mar-
riage Rules, Pregnancy, Children. A hiring standard that requires exclu-
sion of women because they are married when married male applicants for
the same job are hired violates the sex discrimination prohibition of Title
VII.64 Similarly, the EEOC has determined that a refusal to hire a woman
solely because she is pregnant will also be found to violate the sex discrimi-
nation prohibition. 5 Moreover, an employer may not, absent a showing
that conflicting family obligations are demonstrably more relevant to job
performance for a woman than for a man, exclude women with preschool-
age children from employment when no such restriction is applied to
men.6 Finally, the EEOC has ruled that a refusal to hire a woman solely
because she is an unwed mother violates Title VII because (1) blacks as a
group incur higher rates of illegitimacy than do whites, and (2) there is no
evidence that unwed fathers are similarly excluded from employment. 7

d. Applicant’s Participation in Illegal Activities. Where an applicant
has participated in civil rights demonstrations against an employer, which
consist of illegally blocking access to the employer’s plant, that employer
may lawfully refuse to hire him, provided that the employer’s reliance on
the applicant’s illegal conduct is not a pretext for engaging in prohibited
discrimination.

68

e. Preference for Applicants who are Relatives of Current Employees.
Restricting hiring to relatives of current employees or to employees who
had formerly been on the payroll can violate Title VII, if minority groups
are poorly represented in an employer’s workforce.”

62. Payne v. Travenol Lab., 416 F. Supp. 248 (N.D. Miss. 1976); Jackson v. Sargent, 394
F. Supp. 162 (D. Mass. 1975); United States v. Lee Way Motor Freight, Inc., 7 FEP Cases
710 (W.D. Okla. 1973).

63. EEOC Dec. No. 73-0499, 2 EMPL. PRAc. GUIDE (CCH EEOC Decs.) 6402 (1972);
EEOC Dec. No. 71-2229, CCH EEOC Decs. 6297 (1971); Roman v. Reynolds Metal Co.,
368 F. Supp. 47 (S.D. Tex. 1973).

64. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991
(1971); Jurinko v. Wiegand Co., 477 F.2d 1038 (3d Cir.), vacated, 414 U.S. 970 (1973), on
remand, 497 F.2d 403 (3d Cir. 1974).

65. 29 C.F.R. §1604.10(a) (1976). Cf. Doe v. Osteopathic Hosp., 333 F. Supp. 1357 (D.
Kan. 1971) (holding that an employer violated Title VII when it discharged an unwed em-
ployee who was pregnant at the time of discharge).

66. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
67. EEOC Dec. No. 71-332, 2 FEP Cases 1016 (1970).
68. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
69. Davis v. American Nat’l Bank, 12 FEP Cases 1052 (N.D. Tex. 1971); EEOC Dec. No.

71-1447, 3 FEP Cases 391 (1971).

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EEO OBLIGATION

f. Minimum Height and Weight Requirements. Rigid adherence to
minimum height and weight requirements often has a discriminatory ef-
fect against women and Spanish-surnamed Americans. Where such an
effect can be shown, the standards will be held to violate Title VII, absent
a showing that the standard falls within the bona fide occupational qualifi-
cation (BFOQ) exception of §703(e). Recently the Supreme Court held
that minimum height and weight requirements were not BFOQ’s for a
position as a prison guard except where, because of the violent physical
contact inherent in the job, a woman could be in more danger than a man.70

g. Rejection of Applicants Because of Poor Credit Records. In the ab-
sence of a business necessity requiring employees to be good credit risks,
it has been held that, because blacks have poorer credit records in propor-
tion to their representation in the population than do whites, a refusal to
hire on the basis of a poor credit record is discriminatory.7

h. Differential Pay Rates for Newly Hired Employees. Differentials in
pay rates for newly-hired employees will not violate the equal pay require-
ments of the Fair Labor Standards Act as long as the factors determining
the rate to be paid each employee are applied equally to men and women.
It is, however, unlawful to pay men at the highest rate of an entry job rate
range if no factor other than sex accounts for the differential. Likewise,
paying a newly-hired woman less than the rate paid the man whom she
replaces, even where there may be no male employees in the establishment
who are currently paid a higher rate for the same work, violates the equal
pay provisions if no factor other than sex accounts for the rate assigned to
the woman. 2

i. Hiring Standards Based on Age. An employer cannot refuse to hire
an individual between the ages of 40 and 65 because of that applicant’s age
unless age is a BFOQ for the particular job73 applied for. Nor can such a
refusal to hire be justified by the requirements of any benefit program.7 4 It

is also unlawful for an employer to refuse to hire older persons solely
because they do not receive social security benefits because such a policy
discriminates against those within the protected age group.7″ However,

70. Dothard v. Rawlinson, 433 U.S. 321 (1977). See, e.g., EEOC Dec. No. 71-1418, 3 FEP
Cases 580 (1961); EEOC Dec. No. 71-2643, 4 FEP Cases 66 (1971); Meadows v. Ford Motor
Co., 62 F.R.D. 98 (W.D. Ky. 1973), modified, 510 F.2d 939 (6th Cir. 1974); Lum v. Civil Serv.
Comm’n, 10 FEP Cases 365 (S.D.N.Y. 1975); League of United Latin Am. Citizens v. City of
Santa Ana, 410 F. Supp. 873 (C.D. Cal. 1976).

71. United States v. City of Chicago, 385 F. Supp. 543 (N.D. Ill. 1974); EEOC Dec. No.
74-02, 2 EM.PL. PRAC. GUIDE (CCH EEOC Decs.) 6386 (1974).

72. 29 C.F.R. §§800.114(c), 800.115 (1976).
73. Section 4(a)(1), 29 U.S.C.A. §623(a)(1) (1975); Hodgson v. Greyhound Lines, Inc., 499

F.2d 859 (7th Cir. 1974), cert. denied, 419 U.S. 1122 (1975); Hodgson v. Tamiami Trail Tours,
Inc., 4 FEP Cases 728 (S.D. Fla. 1972); McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Section 4(a)(1), 29 U.S.C.A. §623(a)(1) (1975).

74. Section 4(f)(2), 29 U.S.C.A. §623(f)(2) (1975).
75. 29 C.F.R. §860.104(a)(1) (1976).

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MERCER LAW REVIEW

when a job applicant is unwilling to accept the number or schedule of hours
requested by an employer because he does not desire to lose his social
security benefits, the refusal to hire such an applicant will not constitute
a violation of the Age Discrimination in Employment Act.’,

j. Hiring tandards Relating to Religion. Under Title VII, an employer
may not refuse to hire because of an applicant’s religion, which is defined
to include all aspects of religious observance and practice as well as belief.”
An employer has the burden of proof of showing that any refusal to hire
an applicant because of his religion occurred because the employer was
unable to “reasonably accomodate” his requirements to the prospective
employee’s religious observances without undue hardship to his business.
Undue hardship in this context has been defined as meaning the unavaila-
bility of any other employee to perform the job for which the applicant
would be otherwise qualified during the time when the applicant was re-
quired to be absent for religious reasons.”5

Guidelines issued by the OFCC pursuant to Executive Order 11246, as
amended, also require affirmative efforts to provide equal employment
opportunities to members of all religious groups and, where necessary, an
accommodation between the employer’s requirements and the religious
beliefs of an applicant.

It would be an “undue hardship,” though, for an employer to be required
to assign more senior employees to work an undesirable shift in order to
accommodate the religious beliefs of a less senior employee in violation of
a collective bargaining agreement.79

k. Hiring Standards Based on Citizenship. Although Title VII does not
prohibit discrimination based on citizenship, as opposed to national ori-
gin, s0 the Civil Rights Act of 1866 has been held to protect aliens from
invidious discrimination.”‘ Thus, in the absence of a bona fide business
reason for refusing employment to aliens based on such considerations as
the necessity for the aliens to possess work permits or permission to remain
in this country, a refusal to hire based on citizenship alone may be held a
violation of the Civil Rights Act of 1866.

1. Hiring Standards Representing Avoidance of Burdensome
Obligations. An employer may not refuse to hire an individual because it
may have to provide separate facilities (e.g., additional rest rooms for men

76. 29 C.F.R. §860.104(a)(2) (1976).
77. 42 U.S.C.A. §2000e(j) (1974).
78. 29 C.F.R. §1605.1 (1976). See also Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir.

1975), aff’d per curiam, 429 U.S. 65 (1976); Reid v. Memphis Publishing Co., 468 F.2d 346
(6th Cir. 1972); Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972).

79. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
80. Espinoza v. Farah Mfg. Co., 462 F.2d 1331 (5th Cir.), aff’d, 414 U.S. 86 (1972); 29

C.F.R. §1601.1 (1976).
81. Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974).

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EEO OBLIGATION

and women) unless the expense is unreasonable.82 Neither may an em-
ployer refuse to hire a woman because the requirements of state law restrict
the number of hours a woman may lawfully work or the amount of weight
a woman may handle or require that certain benefits be paid to members
of one sex. 2-

m. Hiring Standards Based on Performance Reports of Other
Employers. If a performance report of the previous employer of a job appli-
cant is itself due to prohibited discrimination, a refusal to hire the appli-
cant based solely on that report is unlawful.

B. Testing

1. Regulatory Guidelines. The ultilization of tests as a method for
screening job applicants and for determining employee promotion qualifi-
cations is a well-established employer practice. Because the results of these
tests may significantly affect management’s decision to hire a job appli-
cant or approve an employee’s promotion, and since the testing, grading,
and interpretation of test results are entirely under the control of the
employer, it is important that all elements of testing discrimination due
to race, color, religion, sex, or national origin be eliminated.

Title VII expressly approves the use of testing by employers as a basis
for making employment decisions, provided that neither the tests them-
selves nor their administration results in forbidden discrimination. Thus,
Title VII provides:

[Nior shall it be an unlawful employment practice for an employer to
give and to act upon the results of any professionally developed ability test
provided that such test, its administration or action upon the results is
not designed, intended, or used to discriminate because of race, color,
religion, sex, or national origin.83

To promote the development and use of nondiscriminatory tests, the
EEOC issued first in 1966 and then again in 1970, “Guidelines on Employ-
ment Selection Procedures” which enumerate the duties and obligations
placed on the employer in administering tests.84

Similarly, under Executive Order 11246, as amended, the office of Fed-
eral Contract Compliance Programs has issued guidelines on testing which
closely parallel, but do not duplicate, the EEOC’s guidelines.8 1

82. EEOC Dec. Nos. NY6-11-144, NY6-11-144U, 2 FEP Cases 296 (1969).
82.1. 29 C.F.R. §1604.2(b) (1976); Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir.

1971); Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S.
946 (1973); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972); Kober v.
Westinghouse Elec. Corp., 480 F.2d 240 (3d Cir. 1973); Homemakers, Inc. v. Division of Indus.
Welfare, 509 F.2d 20 (9th Cir. 1974); Erickson v. Lustra Lighting Div. of Int’l Tel. & Tel.
Corp., 9 E.P.D. 9892 (N.D. Cal. 1974).

83. §703(h), 42 U.S.C.A. §2000e-2(h) (1974).
84. 29 C.F.R. §1607.1-14 (1976).
85. 41 C.F.R. §§60-3.1 to 3.14 (1977).

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MERCER LAW REVIEW

In July 1976, the OFCC and the Civil Service Commission, under the
auspices of the Equal Employment Coordinating Council, published in the
Federal Register new uniform federal regulations intended to govern the
use of tests under Title VII and Executive Order 11246 and to replace the
existing Guidelines.”6 However, due to disagreements within the federal
agencies, the EEOC has announced its intention to continue applying its
1970 Guidelines as the applicable standards under Title VII.

The guidelines were adopted for use by other federal regulatory agencies
involved in enforcement of equal employment opportunity laws. The Equal
Employment Coordinating Counsel is developing new uniform guidelines.

The basic thrust of the Guidelines is to permit the use of a test or other
selection device which has the effect of excluding significantly larger num-
bers of minority groups or females than whites or males from employment
or advancement only if the test or selection device has been shown to be a
valid predictor of job performance and if alternative hiring, promotion or
screening practices which are equally valid are unavailable.87

Under the Guidelines, a test is broadly defined as any standardized or
formal measure used as a basis for any employment decision. 8 Both sets
of Guidelines require that selection techniques other than tests which do
not use scores to measure performance, such as interviews, be “validated”
by the use of sophisticated statistical methods if different rates of appli-
cant rejection exist for various minority and non-minority groups or if there
are disproportionate representations of minority and non-minority groups
in the workforce.”8

Upon a showing that a test operates to exclude more minorities or
women than whites or men from employment, the burden of proof is on
the test’s user to substantiate the business necessity of the test by showing
that its requirements are “job related” – that the test reliably predicts
which applicants possess the reasonably necessary job skills and traits to
successfully perform the job.8 0

Evidence of a test’s validity should consist of empirical data showing
that the tests sufficiently predict and measure those skills and aptitudes
necessary for the particular job. This evidence should be based on studies
employing generally accepted procedures for determining validity, such as
those described in “Standards for Educational and Psychological Tests
and Manuals”‘” in the Guidelines.

86. 41 Fed. Reg. 29,016 (1976).
87. 29 C.F.R. §1607.3 (1976).
88. See 29 C.F.R. §1607.3 (1976); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert.

denied, 406 U.S. 950 (1972); Hester v. Southern Ry. Co., 497 F.2d 1374 (5th Cir. 1974); EEOC
v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975); Albermarle Paper Co. v. Moody, 422 U.S.
405 (1975).

89. 29 C.F.R. §1607.4 (1976).
90. 29 C.F.R. §1607.3 (1976); Griggs v. Duke Power Co., 401 U.S. 424 (1971).
91. Published by American Psychological Association, 1200 17th St., N.W., Washington,

D.C. 20036. Cited at 29 C.F.R. §1607.5 (1976).

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EEO OBLIGATION

There are several methods recognized by professional psychologists for
evaluating the validity of a test, including criterion-related validity, con-
tent validity and construct validity, and the Guidelines authorize the use
of all three methods, although it states a preference for criterion-related
validation.2 The most accurate but most impractical manner in which to
conduct one of the above-cited validation studies is to administer the test
to be validated to all applicants but proceed to select new employees
without regard to their test performance. After an appropriate period of
work experience, the job performance of employees is then evaluated and
compared with individual test scores. This procedure, known as predictive
validation, is one form of a criterion-related validation study.

Another principal procedure used in conducting criterion-related valida-
tion studies is “concurrent validation” by which a representative sample
of current employees is rated on job performance, then tested, and their
scores compared to their job ratings. Although not specifically condemned
in the Guidelines, “concurrent validation” is inadequate where (a) there
were few, if any, minority group employees in the representative sample
of current evaluated employees, and (b) the supervisory ratings of employ-
ees are not the result of a careful job analysis resulting in specific and
objective criteria for the ratings. 3 However, it should be emphasized that
the Guidelines expressly allow the use of concurrent validation, and EEOC
staff psychologists, while preferring predictive validation, accept properly
conducted concurrent validation studies.

The use of supervisory ratings to measure an employee’s job performance
is permissible under the Guidelines. However, because of the possibility of
bias inherent in subjective evaluation, supervisory performance rating
techniques must be carefully developed for this type of validity study, and
the ratings should be closely examined for evidence of possible bias which
might affect the validity analysis.”

Whenever there is a significant difference in average test scores, passing
rates or selection rates among identifiable subgroups of applicants or em-
ployees, the Guidelines require that validity be established separately or
“differentially” for each minority and female group so that there is assur-
ance that the tests are operating with equal fairness for members of these
subgroups.9 5 It should be noted that there is much disagreement among
psychologists as to the propriety of requiring that tests be differentially
validated. Where absence of sufficient numbers of minority groups or

92. 29 C.F.R. §1607.5(a) (1976).
93. See, e.g., Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); United States v.

Georgia Power Co., 474 F.2d 906 (5th Cir. 1973).
94. 29 C.F.R. §1607.5(b)(4) (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975);

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972).
95. 29 C.F.R. §1607.5(b)(5) (1976); EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975);

United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert. denied, 406
U.S. 906 (1972).

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MERCER LAW REVIEW

women among those employed makes differential validation infeasible, the
tests in question may be regarded as provisionally valid on the basis of
other evidence until separate evidence of validity for the minority or fem-
ale group is produced.”

It should be noted that the Guidelines also require that cut-off scores
and test standards be related to “normal expectations of proficiency” in
the workforce.”

A test user is permitted to give a new job applicant a test based on
abilities for a job other than the one for which the candidate is being
initially selected, where the test is validly designed to measure ability at
a higher than entry job level. However, this type of testing is only permissi-
ble if the new employee will probably progress to such a higher job level
within a short period of time. If job advancement is not highly predictable
or so nearly automatic, then such testing for advanced job levels is not
permitted.

8

As a practical matter, where the same test is used at different plants or
locations in a multi-plant company, the employer need only validate a test
at one location where there is no significant difference between units, jobs,
and applicant populations. Additionally, where the validation of a test is
technically impossible, such as where the size of the test group is inade-
quate, the employer is permitted to rely on validity studies conducted by
other organizations, such as those reported in test manuals and profes-
sional literature, if the jobs are comparable and there are no other major
differences.” However, under no circumstances will the general reputation
of a test, its author, or publisher be accepted in lieu of evidence of valid-
ity. 10

Tests must also be administered and scored under controlled and stand-
ardized conditions, and copies of the tests and test manuals must be in-
cluded as part of the validation evidence. 10′ The work behavior or other
criteria which the tests are to measure must be clearly identifiable and
described.

The use of validated tests is not, per se, a violation of the Age Discrimi-
nation in Employment Act. However, a vital factor in the testing of em-
ployees between the ages of 40 to 65 is the “test-sophistication” or “test-
wiseness” of the individual. This refers to the supposition that younger
persons have a greater familiarity with taking tests than do older individu-
als and, consequently, where an employee test is the sole determining

96. Id. 29 C.F.R. §1607.4(b) (1976); Allen v. City of Mobile, 466 F.2d 122 (5th Cir. 1972);
Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108 (N.D. Ala. 1972), aff’d, 476 F.2d
1287 (5th Cir. 1973).

97. 29 C.F.R. §1607.6 (1976). EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975).
98. 29 C.F.R. §1607.4(c)(1) (1976).
99. 29 C.F.R. §1607.7 (1976).
100. 29 C.F.R. §1607.5(b)(2) (1976).
101. 29 C.F.R. §1607.8 (1976).

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EEO OBLIGATION

factor in the employment selection procedure, such younger persons may
have an advantage over older applicants. Hence, in such situations, the
test questions and administration must be carefully scrutinized to insure
that the test is for a permissible purpose and does not prejudice one age
group over the other.’ 2

In sum, an employer must be able to demonstrate that the tests and
selection procedures utilized are free from factors which would unfairly
depress the scores of any minority group. In this context, the absence of a
specific intent to discriminate against a minority group is irrelevant where
it is shown that the effect of a selection device having no predictive value
for job performance has adversely affected the employment and advance-
ment of minority groups. 03

2. Judicial Interpretation. As noted above, the use of testing by
employers as a basis for making employment decisions is expressly ap-
proved in Title VII, provided that neither the tests themselves nor their
administration results in forbidden discrimination. But in Griggs v. Duke
Power Co.,'”‘ the Supreme Court held that the administration of a test
which was not “demonstrably a reasonable measure of job performance”
violated Title VII where its use operated to exclude disproportionately
more blacks than whites from employment or advancement. The Court
held that, given a test which operates to exclude more blacks than whites
from employment or promotion, the burden of proof is on the employer to
establish the business necessity, or job relatedness, of the test by showing
that it “bear(s) a demonstrable relationship to successful performance of
the jobs for which it was used.”” 0

The Court added that in judging whether an employer’s tests were job-
related, courts should give “great deference” to the EEOC Guidelines. In
its decision in Albemarle Paper Company v. Moody,06 the Supreme Court
reaffirmed and clarified the requirement that an employer can only show
the job relatedness of his tests by conducting a proper validation study.
In that case, the Court measured the adequacy of the employer’s testing
program by referencing specific provisions of the Guidelines. The Court did
not state, however, whether it was necessary for an employer to conduct a
study in strict adherence to all technical provisions of the Guidelines or
whether general adherence was adequate. The degree of conformity with
the Guidelines required by the Supreme Court is made more uncertain by
the Court’s recent decision in Washington v. Davis.07 Although that case
was not decided under Title VII, the Court did expressly state that under

102. 29 C.F.R. §860.104(b) (1976).
103. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
104. Id.
105. Id. at 431.
106. 422 U.S. 405 (1975).
107. 426 U.S. 229 (1976).

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Title VII a selection procedure could be validated in any one of several
ways, citing both the Guidelines and the APA Standards. Consequently,
many observers believe that the Court in Washington v. Davis backed
away from any inference in Albemarle that strict adherence to the Guide-
lines is necessary.

Although lower court decisions subsequent to Griggs have varied in the
strictness of interpretation of an employer’s obligations under the Guide-
lines, all the above-cited aspects of the Guidelines have received general
judicial approval. At a minimum, the Supreme Court’s decision in
Albemarle confirms this approval and the Guidelines thus constitute the
basic obligations of employers in their administration of employment tests.

C. Promotions, Transfers, Lines of Progression, and Seniority Systems

Title VII contains an explicit exception from the statutory prohibition
against application of different terms, conditions, and privileges of em-
ployment for “bona fide” seniority systems in §703(u). Until recently the
cases uniformly provided that where a seniority system had a discrimina-
tory effect, it would be subject to broad modification and members of the
affected class would be entitled to back pay awards, unless the defendant
could show the system’s structure was compelled by business necessity.
The Supreme Court revolutionized this aspect of equal employment oppor-
tunity law in International Brotherhood of Teamsters v. United States.’8

The Court held that the exemption for “bona fide” seniority systems is
absolute, and that these systems cannot be modified on the basis that they
perpetuate pre-Act discrimination. Under Teamsters, only specifically
identifiable victims of post-Act discrimination are entitled to relief, which
may include back pay and advanced seniority.

In order to understand the effect of Teamsters on equal employment
opportunity law and seniority systems it is necessary to review the prior
law. In the past, where the effect of seniority systems was discriminatory,
even though neutral on its face, it could be upheld only if it could be shown
that the seniority transfer systems are “necessary to the safe and efficient
operation of the business.””

This business necessity exception was very narrowly construed in its
application to seniority-transfer systems.”0 Moreover, such seemingly

108. 431 U.S. 324 (1977).
109. United States v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973); United States v.

Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d
791 (4th Cir.), cert. denied, 404 U.S. 1006 (1971); Local 189, United Papermakers & Paper-
workers v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919 (1970); Jones
v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954
(1971); EEOC Dec. No. YAT9-013, 1 FEP Cases 917 (1969); EEOC Dec. No. 71-1477, 3 FEP
Cases 494 (1971).

110. A defense of “business necessity” was rejected in N.L. Industries, 479 F.2d 354 and
Jones, 431 F.2d 245. A similar defense was also discussed at length and rejected in Bing v.

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EEO OBLIGATION

“neutral” seniority systems which involved departmental or job seniority-
transfer schemes, as opposed to plant or company-wide schemes, had been
found to perpetuate or “telescope” the effects of past discrimination where
minority groups or women predominate in a given department or job and
had been denied transfer to other departments, or were granted transfers
only upon the condition that accrued seniority in their old jobs be forfeited
in their new jobs.”‘ Such forfeiture schemes were seen as having one of two
present effects made unlawful by Title VII:

(1) Where those persons formerly discriminated against are not willing
to lose their accrued seniority and its concomitant rights and privileges in
transferring to new jobs, they are effectively “locked in” to their present
positions, which have generally been the least desirable jobs;

(2) Where those persons previously the victims of discrimination do
transfer, they are forced to begin in the lowest-paying classification of the
new department although they would be further advanced in that depart-
ment had not the original discrimination occurred.

To correct the unlawful effects described above, the courts devised reme-
dies based generally upon the “rightful place” theory.”‘ According to this
theory, the junior majority group of male employees would not be dis-
placed by minority group or female employees with a longer work history.
Rather, future job vacancies are to be filled by those persons with the
greatest amount of seniority on a plant or company-wide basis.

Injunctions prohibiting future discrimination and requiring plant-wide
seniority to be employed in certain employee job movements over a speci-
fied future time period (such as one or two years) were frequently awarded
in Title VII lawsuits involving seniority systems.”3 Minority group mem-
bers and women would thereby be permitted to bid for jobs in other depart-
ments on the basis of total service with the employer. Other remedies,
including back pay and attorneys’ fees, where appropriate, have also been
awarded.”‘ It has been held that because of the compensatory nature of

Roadway Express, Inc., 444 F.2d 687 (5th Cir. 1971).
111. E.g., EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); Pettway v. American

Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); United States v. N.L. Indus., 479 F.2d 354

(8th Cir. 1973); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); Robinson
v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971).

112. This remedy was first employed in Quarles v. Philip Morris, Inc., 279 F. Supp. 505

(E.D. Va. 1968). See also Local 189, United Papermakers & Paperworkers v. United States,
416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919 (1970).

113. In addition to Bethlehem Steel, 446 F.2d 642, Lorillard, 444 F.2d 791 and Local 189,

416 F.2d 980, see, e.g., Rock v. Norfolk & W. Ry. Co., 473 F.2d 1344 (4th Cir.), cert. denied,

412 U.S. 933 (1973); Johnson v. Goodyear Tire & Rubber Co., 349 F. Supp. 3 (S.D. Tex. 1972),
modified, 491 F.2d 1364 (1974). In N.L. Indus., 479 F.2d 354, complete abolition of the

departmental job-bidding procedure was not ordered, but was retained for intradepartmental
job movements, and merger of seniority units was not ordered for all departments, although
plant-wide seniority was ordered as the basic remedy.

114. E.g., Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971) (both types of relief
awarded).

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MERCER LAW REVIEW

back-pay award and the strong congressional policy embodied in Title
VII,” 5 plaintiffs who successfully obtain injunctions should ordinarily be
awarded back pay unless to do so would frustrate the central statutory
purposes manifested by Congress in enacting Title VII.” 6 Further,
“redcircling” requirements have been imposed so that transferred minority
employees who must enter another department at a low wage level because
they lack necessary skills or because there are no job vacancies above entry
level may maintain their current rates of pay in a new department) 7

Affirmative action in the form of informing employees about a court-
restructured system may also be necessary to correct past unlawful prac-
tices. Similarly, where low-level jobs in better departments do not provide
necessary training for more advanced positions or where “residence peri-
ods” in such jobs are longer than that required for acquisition of necessary
skills, job skipping and shortening of residence periods have been or-
dered.”‘

The EEOC has held that an employer who previously discriminated
against blacks could not deny a promotion to an employee with long senior-
ity because of his age. But for his race, it appeared that the employee
would have received the promotion long ago, and the past discrimination
could not be carried forward on the basis of any rule not necessary to the
normal and efficient performance of the job.” 9

Under Teamsters some of the above mentioned remedies may still be
utilized by courts where it is shown that specific post-Act victims of dis-
crimination are involved. What Teamsters prohibits is imposition of plant-
wide seniority in order to remedy the discriminatory effect of no transfer
policies between different lines of progression on an “affected class.”
Therefore, an order which permits minority group members and women to
bid on positions based on total seniority with the employer will no longer
be permissible. Only those employees who can show that they applied for
and were denied a transfer, or promotion, or those who can show that they
would have applied but for the discriminatory policies of the employer are
entitled to relief.

This approach significantly cuts down the potential liability of employ-
ees. It was foreshadowed by the Supreme Court’s decision in Franks v.
Bowman Transportation Company.1’0 The Court held in Franks that ad-

115. Section 706(g), 42 U.S.C.A. §2000e-5(g) (1974) specifically provides that a court may
award back pay in cases of Title VII discrimination.

116. Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).
117. E.g., Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.), cert. denied, 429 U.S. 861

(1976); United States v. N.L. Indus., Inc., 479 F.2d 354; Robinson, 444 F.2d 791.
118. See, e.g., Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir.), remanded for

back pay determination, 423 U.S. 809 (1975); Pettway v. American Cast Iron Pipe Co., 494
F.2d 211 (5th Cir. 1974); Watkins v. Scott Paper Co., 530 F.2d 1159.

119. EEOC Dec. No. YAU9-144, 1 FEP Cases 919 (1969).
120. 424 U.S. 747 (1975).

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EEO OBLIGATION

justment of seniority rights would be an appropriate form of relief for an
applicant who can show he was discriminatorily denied employment. This
means that for purposes of seniority rights, the applicant must be treated
as having been fired on the date that he was unlawfully denied employ-
ment.

Seniority-related relief on account of discrimination in hiring must be
limited to individual applicants who can show that they were specific
victims of discrimination. This approach is extended by Teamsters to
women and minority group employees who were locked into the least desir-
able positions by departmental seniority systems.

A plant-wide seniority system is regarded as “bona fide” within the
meaning of Title VII, even when minorities and women historically have
been excluded from an employer’s workforce. Thus, the layoff of employees
pursuant to such a seniority system is not unlawful under Title VII or
§1981, despite the fact that recently hired minority or female employees
may bear the brunt of the reduction in force.’

“Rightful place” modifications to an unlawful departmental seniority
system have been required by the Office of Federal Contract Compliance
Programs pursuant to Executive Order 11246, as amended, as a condition
of doing business with the federal government. 2′ Moreover, OFCCP stan-
dards under Revised Order No. 41n for affirmative action plans required
of governmental contractors include provision of adequate relief for mem-
bers of an “affected class,” i.e., one suffering the present effects of past
discrimination under the above analysis. The OFCCP also proposes to
issue “Affected Class and Back Pay Guidelines,’ ‘2 4 which contain detailed
seniority relief requirements that are generally comparable to the “rightful
place” remedy.

It is an open question whether Teamsters applies to Executive Order
11246; no doubt this will be the subject of intense litigation. It can be
argued that since the Executive Order contains no exemption for bona fide
seniority systems, the Teamsters decision does not alter the principles of
affected class violations and relief under the Executive Order.

This line of argument, however, misses the real impact of Teamsters.
Teamsters, apart from §703(h), holds that only identifiable victims of post-
Act discrimination are entitled to relief. The question is whether the
OFCCP or the courts will require the identification of specified post-Act

121. Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976); Watkins v. Steelworkers
Local 2369, 516 F.2d 41 (5th Cir. 1975); Jersey Central Power & Light Co. v. IBEW Local
327, 508 F.2d 687 (3d Cir. 1975), cert. denied, 425 U.S. 998 (1976). Cf. Waters v. Wisconsin
Steel Works, 502 F.2d 1309 (7th Cir. 1974) (holding that the employer’s seniority system was
racially neutral but collective bargaining agreement restoring contractual seniority rights to
white employees was discriminatory).

122. Bethlehem Steel Co., Daily Labor Report (BNA Jan. 16, 1973) at D-1.
123. 41 C.F.R. §60-2.1 (1977).
124. 40 Fed. Reg. 13,311 (1975), proposed amendments to 41 C.F.R. §60-60.9 (1977).

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MERCER LAW REVIEW

victims of discrimination. Recently, the Third Circuit in EEOC v. Ameri-
can Telephone & Telegraph, Co.,’ held that “entirely apart from Title
VII” the “broader governmental interest [embodied in Executive Order
11246] is sufficient in itself to justify relief directed at classes rather than
individual victims of discrimination.” No other court of appeals has con-
fronted this issue. A strong case can be made for the proposition that relief
under the Executive Order must be limited to specified individual victims,
since according to the Court in Teamsters, that is “the most complete relief
possible.’

‘2

The Rehabilitation Act of 1973127 and regulations issued thereunder pro-
hibit discrimination by government contractors against handicapped indi-
viduals and require affirmative action in hiring and promoting such em-
ployees. The Vietnam Era Veterans Readjustment Act of 1974128 imposes
comparable requirements with respect to disabled veterans and veterans
of the Vietnam era. Where appropriate, contractors may be required to
afford seniority relief to avoid noncompliance with the required affirmative
action contract clauses.

Pursuant to the Age Discrimination in Employment Act, it is unlawful
for an employer to discriminate against employees between 40 and 65 years
of age with respect to “compensation, terms, conditions, or privileges of
employment because of age.”‘” The ban covers a wide spectrum of job-
related factors, including promotions, demotions, and seniority systems.3 0

D. Maternity Leave and Benefits

Under Title VII, the EEOC has determined that disabilities caused or
contributed to by pregnancy, miscarriage, abortion, childbirth and recov-
ery are, for all job-related purposes, temporary disabilities, and should be
treated as such under any health or temporary disability insurance or sick-
leave plan available in connection with employment. Specifically, such
matters as commencement and duration of leave, availability of extension,
the accrual of seniority and other benefits and privileges, reinstatement
and payment under any health or temporary disability insurance or sick
leave plan are all covered by the Title VII prohibition against sex discrimi-
nation.’3′

The EEOC’s general rule is that termination of an employee for tempo-
rary disability either in the absence of a leave plan, or pursuant to a formal

125. 556 F.2d 167, 175 (3d Cir. 1977).
126. 431 U.S. at 364.
127. 29 U.S.C.A. §793 (1976).
128. 38 U.S.C.A. §2011 (Supp. 1977).
129. Section 4(a)(1), 29 U.S.C.A. §623(f)(1) (1975).
130. 29 C.F.R. §860.50 (1976).
131. 29 C.F.R. §1604.10(b) (1976). But see General Electric v. Gilbert, 429 U.S. 125

(1976).

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EEO OBLIGATION

plan, will be considered unlawful if the policy of termination has a dispar-
ate impact on one sex and is not justified by business necessity.’32 In most
instances, discharge as opposed to a leave of absence cannot be justified;
furthermore, EEOC policy requires that a leave of absence be granted for
pregnancy whether or not it is granted for illness.’ The rationale of the
EEOC’s position is that since maternity is a temporary disability unique
to” the female sex, there must be special recognition for absence due to
pregnancy in order to provide substantial equality of employment oppor-
tunity. Conditioning eligibility for maternity leaves of absence on a certain
period of employment may also violate the law, according to the EEOC,
unless the employer can show that the policy is so necessary to the opera-
tion of its business as to justify the discriminatory effects of the policy.’ 3′

Any plan which provides nonoccupational sickness and accident benefits
for employees, but excludes from benefit eligibility disabilities due to preg-
nancy or its attendant circumstances has been determined by the EEOC
to discriminate on the basis of sex. 5 Similarly, a policy of making matern-
ity insurance coverage available to spouses of employees but not to em-
ployees themselves has been held to violate the ban against sex discrimina-
tion. Even where the benefits are made available to both spouses and
employees but the waiting periods for eligibility differ, the law is vio-
lated. ‘3 Provisions for maternity benefits only to “heads of households”
likewise violates the law. ” 7 Provisions of maternity leave only to married
women has been determined to violate Title VII, because unmarried fem-
ale employees would be terminated as a result of pregnancy, while unmar-
ried fathers would not be affected by the rule or contract provision in an
applicable plan.’

The EEOC has ruled that treating female employees who return from a
maternity leave of absence as new hires violates Title VII.’39 Such a system
perpetuates the effects of past discrimination against female employees
because all rights dependent upon seniority are adversely affected as long
as they remained in the company’s employ. Further, a blanket rule of only
one maternity leave for each employee without loss of benefits would ap-
pear to violate the law.

The EEOC’s rules on pregnancy leave and sickness and accident insur-
ance coverage for pregnancy-related disabiltities have been challenged in

132. 29 C.F.R. §1604.10(c) (1976).
133. See, e.g., EEOC Dec. No. 71-308, CCH EEOC Decs. 6170 (1970); EEOC Dec. No.

71-1897, 3 FEP Cases 1100 (1971), in which an airline’s policy of discharging pregnant stew-
ardesses was found to be unlawful. EEOC Dec. No. 70-360, CCH EEOC Decs. 6084 (1969).

134. EEOC Dec. No. 71-562, 3 FEP Cases 233 (1970).
135. EEOC Dec. No. 71-1474, CCH EEOC Decs. 6221 (1971).
136. EEOC Dec. No. 70-495, 2 FEP Cases 499 (1970); EEOC Dec. No. 71-1100, 3 FEP

Cases 272 (1970).
137. EEOC Dec. No. 70-495, CCH EEOC Decs. §6110 (1970).
138. EEOC Dec. No. 71-413, 3 FEP Cases 233 (1970).
139. Id.

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MERCER LAW REVIEW

a number of court cases and in a number of cases they have not been
rejected. In Cleveland Board of Education v. LaFleur,45 the U.S. Supreme
Court held that mandatory maternity leave rules by a government em-
ployer were unconstitutional. Although this case was decided under the
due process clause of the Fourteenth Amendment of the U.S. Constitution
and not Title VII, it does, nevertheless, conform with the position espoused
by the EEOC with respect to private employers.

In June, 1974, the Supreme Court decided, in Geduldig v. Aiello,”, that
California’s failure to insure normal pregnancies under its state disability
insurance program did not constitute invidious discrimination violative of
the Equal Protection Clause of the Fourteenth Amendment. The holding
in Aiello was that the exclusion of normal pregnancies from sickness and
accident insurance coverage did not violate the Constitution. In General
Electric Co. v. Gilbert,”‘ the Supreme Court decided that the exclusion of
disabilities which arise from pregnancy from the employer’s disability plan
is not a violation of Title VII. The Supreme Court has also recently held
that a state statute excluding pregnant women from unemployment com-
pensation for a period commencing twelve weeks prior to the expected date
of birth and ending six weeks after childbirth violates the Fourteenth
Amendment.”‘

The Office of Federal Contract Compliance Programs has also issued
guidelines pursuant to Executive Order 11246, as amended, which ex-
pressly address themselves to pregnancy leaves. These guidelines prohibit
government contractors and subcontractors from penalizing in any aspect
of their employment female employees who take pregnancy leaves. Like
the EEOC, the Office of Federal Contract Compliance Programs has stated
that where an employer does not maintain a leave policy for temporary
disabilities, it must, nevertheless, consider childbirth to be justification for
leave of absence for a reasonable time. When the female employee returns
to work after her pregnancy leave, she must be reinstated to her original
job or to a position of like status and pay, without loss of service credits.’,
It should be noted that the sex discrimination guidelines put out by the
Office of Federal Contract Compliance Programs do not go as far in the
protection of pregnant female employees as the EEOC’s sex discrimination
guidelines. For example, the OFCCP’s sex discrimination guidelines do not

140. 414 U.S. 632 (1974).
141. 417 U.S. 484 (1974).
142. 429 U.S. 125 (1976). However, resolution of this issue under Title VII will not neces-

sarily be controlling on state fair employment practices laws, under which this same issue
may also arise. See, e.g., Wisconsin Tel. Co. v. Department of Indus., Labor & Human
Relations, 68 Wis. 2d 345, 228 N.W.2d 649 (1975); Brooklyn Union Gas Co. v. New York State
Human Rights Appeal Bd., 50 App. Div. 2d 381, 378 N.Y.S.2d 720 (1975), rev’d, 41 N.Y.2d
84, 390 N.Y.S. 884, 359 N.E.2d 393 (1976).

143. Turner v. Department of Employment Security, 423 U.S. 44 (1975).
144. 41 C.F.R. §60-20.3(g)(2) (1977).

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EEO OBLIGATION

require that employee medical benefit plans cover pregnancy-related disa-
bilities as long as an employer makes equal contributions to such plans for
employees of both sexes. 4 Gilbert does not affect the OFCCP guidelines
as it concerned benefit plans which are not covered by the guidelines.

Legislation has been introduced in both houses of Congress which would
overrule Gilbert. 4 This legislation would define the terms “because of sex”
or “on the basis of sex” in Title VII to include medical conditions related
to pregnancy. The legislation adds that pregnant women “shall be treated
the same for all employment related purposes,” including benefits under
fringe benefit programs, as any employee who is not pregnant.

E. Fringe Benefit Programs

Title VII prohibits discrimination based upon race, color, religion, sex,
or national origin in determination of eligibility for fringe benefit pro-
grams. The EEOC has held that “terms of compensation . . . and other
privileges and conditions of employment” encompasses all such pro-
grams. 147 Benefits under these programs may include hospitalization, or
health insurance, sick leave, retirement, pension or life insurance benefits,
and many others. 48

It is obvious that overt classifications which discriminate on any of the
above bases will be found unlawful by both the courts and the EEOC.
However, a number of more subtle developments have centered around the
ban on sex discrimination in Title VII. Thus, it is an unlawful employment
practice for an employer to provide fringe benefits to the wives and families
of male employees while the same benefits are not made available to the
husbands and families of female employees. 49 The availability of benefits
for spouses and families of employees cannot be conditioned upon the
employee’s being the “head of household” or the “principal wage earner
in the family unit.”’50

145. 41 C.F.R. §60-20.3(c) (1977).
146. S. 995 and H.R. 6075, 95th Cong., 1st Sess. (1977). For text of the bills see

Discrimination on Basis of Pregnancy, Hearings on S. 995 Before the Subcomm. on Labor of
the Senate Comm. on Human Resources, 95th Cong., 1st Sess. 3, 459 (1977).

147. EEOC Dec. No. 7075, 2 FEP Cases 227 (1969).
148. 29 C.F.R. §1604.9(a), (b) (1976). Additionally, sick leave pay, vacation time and pay,

classes given on company time, compensatory payments during periods of jury service, and
physical facilities are probably included within the meaning of the term “fringe benefits.”

149. 29 C.F.R. §1604.9(e) (1976); EEOC Dec. No. 71-1100, 3 FEP Cases 272 (1970). See
also Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) wherein the Supreme Court held that a
provision of the Social Security Act which granted survivor’s benefits to widows but not to
widowers violated the equal protection principle of the Fifth Amendment’s due process
clause.

150. 29 C.F.R. §1604.9(d) (1976). See also Frontiero v. Richardson, 411 U.S. 677 (1973)
wherein the Supreme Court held that a military benefit plan, whereby servicemen’s wives
were automatically covered as dependents but servicewomen’s husbands were not covered as
dependents, unless it was shown that the servicewoman contributed more than half of the

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MERCER LAW REVIEW

Specifically, the EEOC has found that plans which provide maternity
benefits to spouses of employees, but deny such benefits to employees
themselves on an equal basis, violate Title VII.’ 5′ Plans which allow cover-
age for spouses of male employees at their own expense but which deny
the possibility of coverage to female employees would also appear to fall
before Title VII. And, in a recent case, an employer was found to have
violated Title VII where, when a female employee married a male em-
ployee, it uniformly removed the female employee from its medical protec-
tion plan and included her under the husband’s policy even though the
female might have more seniority and be entitled to greater coverage.,5

Any difference in group pension or retirement plans with respect to
either the optional or compulsory retirement ages of male and female em-
ployees is unlawful under Title VII. 1′ Further, a requirement of longer
service by one sex in order to obtain the same benefits obtained by the
other sex constitutes a violation of the law.'” Moreover, the EEOC has held
that the use of sex-segregated actuarial tables in computing joint and
survivor annuity and/or lump-sum pension options discriminates against
men in violation of Title VII.’15

That the cost of providing any of these fringe benefits to one sex is
greater than the cost of providing them to the other is not a defense to a
charge of sex discrimination filed pursuant to Title VII.’16 This means that
the resultant benefits must be equal regardless of the varying amounts of
contributions required to achieve such equality. However, under Executive
Order 11246, as amended, if employer contributions to benefit plans are
equal for male and female employees, or if the resulting benefits are equal,
the employer will be considered to be in compliance.’57

Unlawful racial discrimination under Title VII occurs where an employer
enters into and enforces retirement agreements that have the effect- of
requiring black employees to retire at age 65, while white employees are

husband’s support, violated the equal protection principle of the Fifth Amendment.
151. EEOC Dec. No. 71-1100, 3 FEP Cases 272 (1970).
152. Nicodemus v. Chrysler Corp., 12 FEP Cases 1271 (N.D. Ohio 1976).
153. Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S.

939 (1971); Fillinger v. East Ohio Gas Co., 4 FEP Cases 73 (N.D. Ohio 1971); Chastang v.
Flynn & Emrich Co., 541 F.2d 1040 (4th Cir. 1976). See also Monhart v. City of Los Angeles,
Dep’t of Water & Power, 387 F. Supp. 980 (C.D. Cal. 1975), aff’d, 553 F.2d 581 (9th Cir. 1976)
wherein the Court of Appeals held that requiring women to pay higher pension premiums
based on actuarial evidence that women on the average lived longer than men was a violation
of Title VII.

154. Rosen v. Public Serv. Elec. & Gas Co., 477 F.2d 90 (3d Cir. 1973); EEOC Dec. No.
71-562, 3 FEP Cases 233 (1970); Fitzpatrick v. Bitzer, 519 F.2d 559 (2d Cir. 1975), aff’d on
other grounds, 427 U.S. 445 (1976).

155. EEOC Dec. No. 75-147, 11 FEP Cases 1486 (1975); EEOC Dec. No. 74-118, 2 EMPL.
PRAC. GUIDE (CCH EEOC Decs.) 6431 (1974); EEOC Dec. No. 72-1919, 4 FEP Cases 1163
(1972); Henderson v. Oregon, 11 FEP Cases 1218 (D. Ore. 1975).

156. 29 C.F.R. §1604.9(e) (1976).
157. 41 C.F.R. §60-20.3(c) (1977).

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EEO OBLIGATION

forced to retire at age 70. A court has ruled that such an agreement ad-
versely affects the blacks’ status as employees by carrying forward the
effects of prior racially discriminatory employment practices.’ 5

The Age Discrimination in Employment Act makes it unlawful to dis-
criminate against employees between the ages of 40 and 65 with respect to
their terms, conditions or privileges of employment. “Fringe benefit” pro-
grams are explicitly included within the ambit of the law’s prohibitions.”9

Those fringe benefits which typically depend upon the seniority of an
employee, such as vacations, would stand or fall depending upon whether
the seniority system was “bona fide.”‘ 160 It is not unlawful for an employer
to observe the terms of retirement pension or insurance plans which are
“bona fide” and do not evade the purpose of the Act.’ A profit-sharing
plan could not qualify for this exception, unless its purpose was to provide
retirement benefits for the employees. 2

Where the actual amounts of payment made or cost incurred by the
employer under one of the excepted types of plans is the same for younger
and older workers, the Act is not violated even though an older worker may
thereby receive a lesser benefit than a younger worker. 6 ‘ An employer is
not required to provide life insurance in the same amount for older workers
as is provided for younger workers. The premium charged by insurance
companies on behalf of older workers is typically larger under group poli-
cies than the premium which the employer is charged for younger workers.
So long as the same amount of money is contributed on behalf of each
employee, the size of the resulting policy is dependent upon the calcula-
tions of the insurance company providing coverage.”‘ Finally, an employer
may provide varying benefits under a “bona fide” plan to employees cov-
ered by the Act when such benefits are determined by a formula involving
age and length of service requirements. 6 ‘

Involuntary retirement irrespective of age is permitted, provided that
such retirement is made pursuant to a bona fide retirement or pension plan
which is not a subterfuge to avoid the purposes of the Age Discrimination
in Employment Act.’ Involuntary retirement of employees under age 65
may violate the Federal Age Discrimination Act, however, if imposed upon
employees who are not covered by an employer’s retirement or pension
plan which would provide them full benefits at an earlier age were they

158. Peters v. Missouri-Pacific R.R. Co., 483 F.2d 490 (5th Cir.), cert. denied, 414 U.S.
1002 (1973).

159. 29 C.F.R. §860.50(c) (1976).
160. See Part III (C) infra, at 731.
161. Section 4(f)(2), 29 U.S.C.A. §623(f)(2) (1975); 29 C.F.R. §860.120(a) (1976).
162. 29 C.F.R. §860.120(b) (1976).
163. Id.
164. 29 C.F.R. §860.120(a) (1976).
165. Id.
166. 29 C.F.R. §860.110(a) (1976); Section 4(f)(2), 29 U.S.C.A. §623(f)(2) (1975).

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MERCER LAW REVIEW

covered.’67 Some discretion in establishing the dates of involuntary retire-
ment for all classes of employees may be allowed in a “bona fide” plan.
For example, requiring an employee to retire on the December 31st which
is nearest his 65th birthday is probably legal, although the requirement
would compel some workers to retire before reaching 65 and allow others
to work for some time past that age.’ 8 Forfeiture provisions in retirement
programs which state that litigation or participation in a formal proceed-
ing by an employee will result in the loss of his benefit rights are unlawful
insofar as they may apply to those who seek redress under the Act.’ 9

The Equal Pay Act is also relevant to the provision of fringe benefits to
male and female employees. Pursuant to this Act, an employer may not
discriminate on the basis of sex in providing its employees with any form
of compensation in the nature of benefit programs. However, as under the
Age Discrimination in Employment Act and Executive Order 11246, as
amended, discussed above, equal contributions by an employer for both
men and women will not violate the law although resulting benefits may
differ. Also, unequal payments will not constitute a violation of the law
where resultant benefits are equal.’70 However, regardless of overall pay
rates among employees, nothing in the Equal Pay Act allows provision for
coverage under any type of benefit plan for one sex, but not the other.’7′

F. Enforcement of Plant Rules and Work Policies Not Related to Job
Performance

In your plant, office, or facility there are undoubtedly a number of rules
and policies in effect which do not relate directly to job performance, but
which nevertheless govern employee conduct. These include grooming
standards, garnishment limits, etc. Because enforcement and application
of certain of these rules may subject a company to liability under one or
several of the discrimination laws, you should review your practices in light
of the following comments.

Obviously, a plant rule or employment practice which discriminates
against protected minorities on its face is unlawful. For instance, it has
been held that a rule forbidding female employees to marry, while no such
rule applies to male employees, violates Title VII.’72 Another prime exam-
ple of this type of rule is in the area of grooming and appearance.

167. 29 C.F.R. §860.110(b) (1976).
168. 29 C.F.R. §860.110(a) (1976).
169. 29 C.F.R. §860.120(c) (1976).
170. Wage-Hour Opinion Letter No. 265, WHM (BNA) 95:621 (Aug. 25, 1970); Wage-

Hour Opinion Letter No. 484, [Aug. 1961-Nov. 1966 Transfer Binder] LAB. L. REP. (CCH)
30,997.26 (Aug. 3, 1966).

171. Wage-Hour Opinion Letter No. 394 [Aug. 1961-Nov. 1966 Transfer Binder] LAB. L.
REP. 30,996.22 (Oct. 27, 1965).

172. Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991
(1971).

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1978] EEO OBLIGATION

1. Grooming Rules. Grooming and appearance rules or standards vio-
late Title VII if they discriminate against any individual in regard to
compensation, terms, conditions, or privileges of employment or if such
rules limit, segregate, or classify employees in such a manner as to deprive
any individual of employment opportunities or adversely affect employ-
ment status because of such individual’s race, color, religion, sex, or na-
tional origin.’7 3 Of course, Title VII does not prohibit grooming standards
per se. Thus, an employer has every right to adopt dress codes suitable to
various job categories, and may insist that employees present a clean and
neat appearance. Although a few decisions have held that employers may
not establish different dress or grooming standards for male and female
employees,”‘ recent cases indicate that different standards may be im-
posed as long as the difference does not place an unreasonable burden on
the employment of one sex or the other,” 5 or as long as the distinction is
not based on some fundamental right. 7 ‘

Most frequently attacked as discriminatory are grooming rules which
limit the length of male employees’ hair, but place no similar restriction
on female employees. Most courts have refused to hold that a long hair
policy for men only constitutes unlawful discrimination.’ 7 However, some
lower courts have held that such “males-only” rules unlawfully discrimi-
nate against male employees. 178 The EEOC has recently conceded to the

173. Section 703(a), 42 U.S.C.A. §2000e-2(a) (1974).
174. See, e.g., Aros v. McDonnell Douglas Corp., 348 F. Supp. 661 (C.D. Cal. 1972).
175. For example, it was not unreasonable to require only male employees to wear ties

where the employer had a legitimate interest in the appearance of its employees. Fountain
v. Safeway Stores, Inc., 9 E.P.D. 10,197 (N.D, Cal. 1975). See also Baker v. California Land

Title Co., 507 F.2d 895 (9th Cir. 1974), cert. denied, 422 U.S. 1046 (1975); see also Earwood
v. Continental Southeastern Lines, 539 F.2d 1349 (4th Cir. 1976), wherein the court held that

a maximum hair length requirement which applied only to men did not violate Title VII;

Brown v. D.C. Transit System, Inc., 523 F.2d 725 (D.C. Cir.), cert. denied, 862 U.S. 423

(1975), wherein the Court held that grooming regulations prohibiting beards, mustaches, and
sideburns were based on a managerial decision that the neatness of the employees would
promote the best interest of the business; Wamsganz v. Missouri Pac. R.R. Co., 391 F. Supp.
306 (E.D. Mo.), aff’d, 527 F.2d 1249 (8th Cir. 1975); Tardif v. Quinn, 545 F.2d 761 (1st Cir.
1976) wherein the court upheld the discharge of a school teacher for wearing short skirts.

176. Barker v. Taft Broadcasting Co., 10 E.P.D. 10,591 (S.D. Ohio 1975), aff’d, 549 F.2d
400 (6th Cir. 1977).

177. Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975); Willingham v. Macon
Tel. Publishing Co., 507 F.2d 1084 (5th Cir. en banc 1975); Fagan v. National Cash Register
Co., 481 F.2d 1115 (D.C. Cir. 1973); Baker v. California Land Title Co., 507 F.2d 895 (9th
Cir.), cert. denied, 422 U.S. 1046 (1974); Dodge v. Giant Foods, Inc., 488 F.2d 1333 (D.C. Cir.

1973); Bujel v. Borman Food Stores, Inc., 384 F. Supp. 141 (E.D. Mich. 1974); Thomas v.
Firestone Tire & Rubber Co., 392 F. Supp. 373 (N.D. Tex. 1975); Morris v. Texas & Pac. Ry.
Co., 387 F. Supp. 1232 (M.D. La. 1975); Stebbins v. Continental Ins., Co., 10 E.P.D. 10,593
(D.D.C. 1976). A similar result has been reached under the 14th Amendment. Kelley v.
Johnson, 425 U.S. 238 (1976). This decision does not apply to private employers. Earwood v.
Continental Southeastern Lines, 539 F.2d 1349 (4th Cir. 1976).

178. Longo v. Carlisle DeCoppet & Co., 403 F. Supp. 692 (S.D.N.Y. 1975); Aros v. McDon-
nell Douglas Corp., 348 F. Supp. 661 (C.D. Cal. 1972); Roberts v. General Mills, Inc., 337 F.

MERCER LAW REVIEW

weight of judicial authority and will no longer attempt to conciliate cases
in this area. 7 ‘

A grooming rule requiring males to be clean-shaven may be permissible.
Thus, in one case an Orthodox Muslim employee, whose religion required
him to wear a beard, charged that a grooming rule requiring all male
employees to be clean-shaven was discriminatory on the basis of religion.
A state court held that the employer’s policy of having its employees clean-
shaven was reasonably necessary to promote business through greater pub-
lic support, and was not activated by discrimination against any particular
religion. 8 ‘ Rules requiring employees to be clean-shaven have also with-
stood challenges on the bases of race’8 ‘ and sex’ as well as religion. How-
ever, the EEOC has consistently taken the position that rules which pro-
hibit facial hair violate the Title VII bans on sex, 8 3 race, and national
origin’ 4 discrimination, unless they are justified by business necessity.
Moreover, a hair standard which prevented Negro employees from wearing
Afro-American hairstyle was held by EEOC to violate Title VII as discrimi-
nation against Negroes. 8 5

To help insulate your grooming rules from challenge, therefore, it is
essential that whatever rules do exist apply equally to both sexes and do
not prohibit standards of dress or grooming which clearly restrict the sym-
bolic expression of an individual’s race or national origin. However, it
might be noted here that a rule which forbids only women to wear eyeg-
lasses constitutes sex discrimination.’ Furthermore, height and weight
requirements for the sake of appearance, also discussed elsewhere, have
frequently been held unlawful on the basis of sex discrimination.’

Supp. 1055 (N.D. Ohio 1971); Donohue v. Shoe Corp. of America, Inc., 337 F. Supp. 1357
(C.D. Cal. 1972); EEOC Dec. No. 71-1529, CCH EEOC Decs. 6231 (1971); EEOC Dec. No.
72-0979, CCH EEOC Decs. 6343 (1972); EEOC Dec. No. 72-1380, 4 FEP Cases 846 (1972);
EEOC Dec. No. 72-1931, 5 FEP Cases 402 (1972), but cf. EEOC Dec. No. 72-0701, 4 FEP
Cases 316 (1971), (holding that sex can not be considered a factor in discharge where a male
employee was discharged after he refused to cut his hair so as not to create a safety hazard).

179. EEOC COMPL. MAN. (CCH) §421.2.
180. Eastern Greyhound Lines Div. v. New York St. Div. of Human Resources, 27 N.Y.2d

279, 317 N.Y.S.2d 368, 265 N.E.2d 745, 747 (1970).
181. Thomas v. Firestone Tire & Rubber Co., 392 F. Supp. 373 (N.D. Tex. 1975); Dodge

v. Giant Food, Inc., 3 E.P.D. 8184 (D.D.C. 1971); aff’d, 488 F.2d 1333 (D.C. Cir. 1973).
182. Thomas v. Firestone Tire & Rubber Co., 392 F. Supp. 373; Boyce v. Safeway Stores,

Inc., 351 F. Supp. 402 (D.D.C. 1972); Rafford v. Randle Eastern Ambulance Serv., Inc., 348
F. Supp. 316 (S.D. Fla. 1972).

183. EEOC Dec. No. 72-0979, 4 FEP Cases 840 (1972); EEOC Dec. No. 72-1931, 5 FEP
Cases 402 (1972); EEOC Dec. No. 72-1334, 4 FEP Cases 846 (1972); EEOC Dec. No. 72-1380,
CCH EEOC Decs. 6364 (1972).

184. EEOC Dec. No. 72-0979, 4 FEP Cases 840 (1972).
185. EEOC Dec. No. 71-2444, 4 FEP Cases 18 (1971); EEOC Dec. No. 72-0979, 4 FEP

Cases 840 (1972).
186. Laffey v. Northwest Airlines, Inc., 374 F. Supp. 1382, 1388 (D.D.C. 1974).
187. E.g., Laffey v. Northwest Airlines, Inc., id.; Gerdom v. Continental Airlines, Inc., 8

[Vol. 29

EEO OBLIGATION

Just like plant rules which discriminate on their face, disparate enforce-
ment of an otherwise valid plant rule or practice would violate Title VII.
Thus, where a black and white employee were caught “singing and holler-
ing” on the business premises, but only the black employee was disci-
plined, the EEOC found a violation.'”

Similarly, where a company discovered an affair between a male and
female employee, the EEOC held that it violated the Act in discharging
the woman while merely “talking to” the man.”9 This is not to say, how-
ever, that different punishments may not be administered where there are
different degrees of guilt. Thus, a New York State court held that an
employer’s discipline of black and Spanish-American employees, who par-
ticipated in a demonstration at work, was permissible where these employ-
ees actively encouraged and fomented the demonstration, while white
employees-who were not disciplined-only participated therein. 190

A more difficult question is posed by plant rules and policies which on
their face do not appear to discriminate against protected minorities, and
which are in fact applied evenhandedly and fairly to all employees regard-
less of race, color, sex, religion, or national origin. The EEOC and some
courts have held that even in these cases, enforcement of such rules may
nevertheless violate Title VII.

The general principle followed by the EEOC, as enunciated by a federal
court, is that an employment practice will violate Title VII when it has the

foreseeable effect of denying blacks [or other minorities] an equal oppor-
tunity for employment. The policy or practice may be adopted in good
faith with no intent to discriminate, may be racially neutral on its face
and may be objectively and fairly applied; it is nonetheless interdicted by
Title VII if the consequence of the policy or practice is to discriminate and
there is no overriding business purpose.”‘

Some illustrations of this principle follow:
2. Discharge for Conviction of “Serious Crime.” Even though ap-

plied equally to white and black employees, such a rule was held to be
inherently discriminatory against blacks because statistics showed that
blacks made up a disparate proportion of those convicted of such crimes.”2

Accordingly, discharge of a black employee under this rule violates Title

FEP Cases 1237 (C.D. Cal. 1974); Comstock v. Eastern Airlines, Inc., 10 FEP Cases 889 (E.D.
Va. 1975).

188. EEOC Dec. No. 72-0661, 4 FEP Cases 440 (1971).
189. EEOC Dec. No. 71-2678, 4 FEP Cases 24 (1971).
190. General Motors Corp. v. State Div. of Human Rights, 3 FEP Cases 118 (N.Y. Sup.

Ct., App. Div. 1970).
191. Johnson v. Pike Corp. of America, 332 F. Supp. 490, 494 (C.D. Cal. 1971).
192. Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970), aff’d, 4

72

F.2d 631 (9th Cir. 1972). As a result, discharge of a white employee because of his prior
criminal record may not be a violation of Title VII. See EEOC Dec. No. 75-269, 2 EMPL. PRAC.
GUIDE (CCH EEOC Decs.) 6453 (1975). Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972).

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MERCER LAW REVIEW

VII even if the policy is applied evenhandedly. 3 The EEOC has noted,
however, that application of the rule in a particular case might be justified
if all the circumstances demonstrate that the conviction has a particular
effect on the specific individual’s ability to do his job.”‘

3. Discharge for Several Garnishments. Even though applied
evenhandedly to black and white employees, a policy mandating discharge
for several garnishments has been held to be inherently discriminatory
against blacks because blacks generally are found in the lower and middle-
income classes and account for a disproportionate percentage of wage gar-
nishments. Thus, in the absence of any showing of a harmful effect on the
employee’s ability to perform his job, enforcement of such a policy against
a black employee violates the Act. Nor will the defenses of inconvenience,
annoyance, and expense in coping with numerous garnishments justify
such a policy.’

This situation should be contrasted with that which arises when an
employee is discharged for failure to pay “just debts.” In this case, one
court denied relief because the discharged employee could not show that
minorities constituted the majority of poor persons, or that the poor failed
to pay their just debts more often than other classes.’ In another case it
was held that a refusal to hire because of a prior adjudication of bank-
ruptcy was not racially discriminatory.’9 7

It should be noted in this regard that the Federal Consumer Credit
Protection Act’ makes it illegal for an employer to discharge an employee
because of garnishment(s) for a single debt.’ The Consumer Credit Pro-
tection Act apparently does not apply to wage assignments, nor does it
prohibit discharges for garnishments for more than one debt. However, as
noted above, at least two federal courts have held that such a discharge
violates Title VII. In addition, state law may prohibit discharge or disci-
pline for garnishment or wage assignments.

4. Falsifying Employment Applications. In line with its concept of
“inherent discrimination,” the EEOC has held that preemployment in-
quiries into arrests, convictions, and incarcerations violate Title VII be-
cause Negroes account for a disproportionate percentage of such incidents,

193. Green v. Missouri Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975); EEOC Dec. No. 74-
90, 2 EMPL. PaAc. GUIDE (CCH EEOC Decs.) 6423 (1974).

194. EEOC Dec. No. 74-90, 2 EMPL. PRAc. GUIDE (CCH EEOC Decs.) 6423 (1974);
EEOC Dec. No. 72-1497, CCH EEOC Dec. 6352 (1972). See Richardson v. Hotel Corp. of
America, 332 F. Supp. 519 (E.D. La. 1971), aff’d, 468 F.2d 951 (5th Cir. 1972) wherein the
court held that where an employee was in a sensitive position vis-a-vis security, he could be
discharged for a former conviction.

195. Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974); Johnson v. Pike Corp., 332
F. Supp. 490 (C.D. Cal. 1971).

196. Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975).
197. Marshall v. District of Columbia, 10 E.P.D. 10,349 (D.D.C. 1975).
198. 15 U.S.C.A. §§1601-1681t (1974 & Supp. 1977).
199. Section 304, 15 U.S.C.A. §1674 (1974).

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EEO OBLIGATION

at least when there is no showing of a direct harmful effect upon the
individual’s ability to perform his job.2″ A district court in Missouri re-
cently rejected this position on the ground that the plaintiff made no
showing that blacks falsified their applications at a higher rate than whites
or that black applicants were excluded at a higher rate than white appli-
cants for this reason. 0′ Following through on this concept, the EEOC has
also held that a minority applicant may not be discharged for falsifying,
or failing to completely answer, sections of an employment application
calling for such information.

For instance, in one case a black employee neglected to note on her
application form that she had been indicted for carrying a loaded pistol,
and had been convicted of involuntary manslaughter. When the employer
later learned of these facts, the employee was discharged. The EEOC held
that the discharge violated Title VII because “proportionately, Negroes as
a class are arrested and convicted substantially more frequently than Cau-
casians. . . .” The EEOC did note, however, that a discharge on such
grounds might be defended in a particular case if the time, nature, and
number of convictions, as well as the employee’s immediate past employ-
ment record indicated that the employment of that particular person for
that particular job was “manifestly inconsistent with the safe and efficient
operation of that job.”210

In a similar case, the EEOC held an employer violated Title VII when
it discharged a black employee upon discovering that the employee had
falsified the “arrest or contact with police” section of his employment
application. The EEOC’s reasoning was similar to that indicated above. 0

On the other hand, the EEOC has not closed the door to enforcement of
plant rules such as those described above in cases where the employer can
demonstrate a direct connection or relationship to the individual em-
ployee’s ability to properly perform his or her particular job. Thus, the
EEOC has also held that an employer did not violate Title VII when it
discharged a black employee after an arrest revealed the employee’s long
police record, thereby concomitantly revealing that the employee had falsi-
fied his employment application. The EEOC commented that the employ-
ment application clearly stipulated that falsification may result in dis-

200. See, e.g., EEOC Dec. No. 71-2089, 4 FEP Cases 148 (1971); EEOC Dec. No. 72-1460,
4 FEP Cases 718 (1972); EEOC Dec. No. 73-0257, 5 FEP Cases 963 (1972); EEOC Dec. No.
73-6257, 5 FEP Cases 403 (1972). See also Dozier v. Chupka, 395 F. Supp. 836 (S.D. Ohio
1975); City of Cairo v. FEPC, 21 Ill. App. 3d 358, 315 N.E.2d 344 (1974) (city board of fire
and police commissioners violated Illinois FEPA by excluding persons from employment
because they had arrest records since arrest record hiring criteria have an inherently discrimi-
natory impact upon black job applicants).

201. Jimerson v. Kisco Co., 404 F. Supp. 338 (E.D. Mo. 1975), aff’d, 542 F.2d 1008 (8th
Cir. 1976).

202. EEOC Dec. No. 72-1460, 4 FEP Cases 718 (1972). See also EEOC Dec. No. 71-2089,
4 FEP Cases 148 (1971).

203. EEOC Dec. No. 71-2089, 4 FEP Cases 148 (1971). r

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MERCER LAW REVIEW

charge.” ‘ Similarly, in a recent court case, a district court found no Title
VII violation by an employer who discharged a black plaintiff employee for
omitting from his employment application information with respect to the
employee’s conviction for assault with intent to rape and information with
respect to four previous employers.2 01 The court found that the defendant
employer did not consider the conviction as such in its discharge determi-
nation; instead, it considered the felony conviction in determining whether
the employee had falsified his employment application. Moreover, the
court found that white employees had also been discharged for falsifying
employment records. Finally, the court found no indications that the dis-
charge was racially motivated.”‘

It is likely that the EEOC would apply the same approach in cases
involving falsification, or omission, of data concerning gambling convic-
tions and credit references, since the Commission has held that refusals to
hire minority group applicants based on such factors are prima facie dis-
criminatory.27

5. Inability to Get Along With Co-Workers. A frequent reason for
discharge is the inability of a worker to get along with co-workers. The
EEOC will carefully scrutinize such discharges where minority group em-
ployees are involved, to determine whether the “personality conflicts” were
caused by prohibited discrimination. The employer is under a duty in such
cases to investigate the root cause of the conflicts and-if the cause is
discrimination by supervisors or other employees-to remedy such dis-
crimination. 205 Thus, where a Spanish-American employee was continually
insulted and harassed by Anglo fellow employees, transferred, and then
discharged for inability to get along with his co-workers, the EEOC held
the company had violated Title VII. 2

09 However, in another case a dis-
charge of a black employee was held not to be in violation of Title VII
because the employer was able to demonstrate that inability to work with
other employees, and not race, was the motivating factor for the dis-
charge. 10

It should also be noted that a minority employee who quits because of
discriminatory harassment, insults, or disparagement by either supervisors
or employees may be deemed to have been constructively discharged by
the employer, where the employer has had notice of the discrimination and

204. EEOC Dec. No. 7043, 2 FEP Cases 169 (1969).
205. Merriweather v. American Cast Iron Pipe Co., 362 F. Supp. 670 (N.D. Ala. 1973).
206. See also Jimerson v. Kisco Co., 404 F. Supp. 338 (E.D. Mo. 1975).
207. EEOC Dec. No. 71-2682, 4 FEP Cases 25 (1971) (gambling); EEOC Dec. No. 72-1176,

5 FEP Cases 960 (1972) (credit references). Whether the courts will support the EEOC is
uncertain. See, e.g., Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975).

208. Anderson v. Methodist-Evangelical Hosp., 4 FEP Cases 33 (W.D. Ky. 1971), aff’d,
464 F.2d 723 (6th Cir. 1972).

209. EEOC Dec. No. 72-0621, 4 FEP Cases 312 (1971).
210. Barnes v. Lerner Shops of Texas, 323 F. Supp. 617, 622 (S.D. Tex. 1971). See also

Boyd v. Benton & Bowles, Inc., 12 FEP Cases 532 (S.D.N.Y. 1975).

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EEO OBLIGATION

has not taken effective action to remedy its effects.”‘ This is not to say,
however, that friction between white and black, Christian and Jewish,
Anglo and Spanish-American, etc., employees must be resolved in favor
of the minority group employee. Given a full and fair investigation of the
underlying causes, the employer may properly conclude on the facts that
the inability to get along with co-workers is due to personality and/or other
objective deficiencies in the minority group employee. Discharge on these
grounds following such an investigation would not violate Title VII. 1

6. Fighting and Discriminatory Provocation. Care should be taken
to investigate claims of discriminatory provocation in situations involving
fights between a minority group and nonminority group employee. An
employer will be held accountable by both the EEOC and the courts if it
fails to properly investigate and/or correct a discharge which is based in
some manner on unlawful discrimination.”‘ Thus, the EEOC has held that
it was a violation of Title VII when a company’s supervisor referred to a
black employee as a “nigger.” 1’ And, a state Fair Employment Practices
Commission held that a black employee was illegally discharged for fight-
ing when he struck a white employee who had used the same term. On
appeal, this finding was reversed, but on the grounds that the use of the
term by the white employee was inadvertent, and did not refer to the
discharged black employee. The court further noted that the company had
conducted a “reasonable, fair and routine” investigation of all the circum-
stances involved before taking the discharge action. 15

This is not to say that a minority employee cannot be discharged for
violation of valid company rules such as those prohibiting fighting;”, how-
ever, the employer must be able to demonstrate that there were no discrim-
inatory overtones to the incident. Similarly, discipline must be meted out
in a nondiscriminatory manner. An excellent way to show such nondiscri-
mination is through prompt and thorough investigation of any such inci-
dents.

211. EEOC Dec. No. 71-2598, 4 FEP Cases 21 (1971); EEOC Dec. No. 72-0661, 4 FEP
Cases 440 (1971). See also Muller v. U.S. Steel, 509 F.2d 923 (10th Cir.), cert. denied, 423
U.S. 825 (1975).

212. Bradington v. IBM Corp., 360 F. Supp. 845 (D. Md. 1973), aff’d, 492 F.2d 1240 (4th
Cir. 1974).

213. Anderson v. Methodist Evangelical Hosp., Inc., 4 FEP Cases 33 (W.D. Ky. 1971),
aff’d, 464 F.2d 723 (6th Cir. 1972).

214. EEOC Dec. No. 72-0779, 4 FEP Cases 317 (1971). See also Murry v. American
Standard, Inc., 5 E.P.D. 8523 (E.D. La. 1973).

215. Olin Corp. v. Fair Employment Practices Comm., 4 FEP Cases 893 (Il. App. 1972).
216. See, e.g., Sharpe v. R.L. Zeigler Co., 11 FEP Cases 1140 (S.D. Ala. 1975); EEOC Dec.

No. 7007, 2 FEP Cases 604 (1969); Goodloe v. Martin Marietta Corp., 7 FEP Cases 964 (D.
Colo. 1972); Esponilla v. Trans World Airlines, Inc., 7 FEP Cases 1102 (N.D. Cal. 1974);
Lazard v. Boeing Co., 7 E.P.D. 9150 (E.D. La. 1972); McGraw v. General Motors Corp., 6
E.P.D. 8850 (E.D. Mo. 1973); Walker v. Abex Corp., 351 F. Supp. 147 (E.D. Mo. 1972).

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MERCER LAW REVIEW

G. Scheduling Work

1. State Laws Restricting Women With Respect to Overtime,
Weight Lifting and the Like. Many states have enacted laws or promul-
gated administrative regulations with respect to the employment of
women. Such laws may prohibit or limit the employment of women in
certain occupations such as jobs requiring the lifting or carrying of weights
exceeding prescribed limits or jobs requiring work during certain hours of
the night or for more than a specified number of hours per day, or per week,
or for certain periods of time before and after childbirth. Because these
laws are premised upon stereotyped conceptions of a woman’s ability to
perform the duties of a job safely and efficiently, and result in the denial
of employment opportunity without regard to individual merit, capacities,
preferences, and abilities, the EEOC with federal court approval has deter-
mined that state female protective legislation conflicts with, is contrary to,
and is superseded by Title VII.117 Although under this principle adherence
to female state protective legislation will not be considered a complete
defense to an otherwise unlawful employment practice, the courts thus far
have declined to award damages against employers even though a techni-
cal violation of Title VII has been found, when the employer has in good
faith adhered to state protective legislation prior to a determination of its
having been superseded by Title VII. 15

When a specific problem regarding the conflict between state and federal
law with respect to the employment or scheduling of women arises, imme-
diately contact your law department for advice. In the meantime, attempt
to comply with both state law and Title VII whenever possible. It is not
required that the employer extend special benefits under state protective
legislation to men. In a recent case the Court of Appeals for the Ninth
Circuit held that to interpret overtime laws to require extension of over-
time benefits to men in order to avoid conflict with federal law would
amount to usurpation of power of the state legislature.”1 9

2. “Accommodation” to Religious Belief. Title VII defines

217. 29 C.F.R. §1604.2(b)(1) (1976); Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th
Cir. 1971); Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), cert. denied, 410
U.S. 946 (1973); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972);
Kober v. Westinghouse Elec. Co., 480 F.2d 240 (3d Cir. 1973); Homemakers, Inc. of Los
Angeles v. Division of Indus. Welfare, 509 F.2d 20 (9th Cir. 1974), cert. denied, 421 U.S. 1009
(1975); Erickson v. Lustra Lighting Div. of Int’l Tel. & Tel. Corp., 9 E.P.D. 9892 (N.D. Cal.
1974); State v. Fairfield Communities Land Co., 11 FEP Cases 1204 (Ark. Cir. Ct. 1975);
Nicodemus v. Chrysler Corp., 12 FEP Cases 1271 (N.D. Ohio 1976).

218. Id. However, it is possible that some courts will hold that once the principle is
established that female protective laws violate Title VII, an employer may no longer rely on
a good faith defense on a particular state law which has not yet been specifically invalidated.

219. 29 C.F.R. §1604.2(b)(4) (1976); Burns v. Rohr Corp., 346 F. Supp. 994 (S.D. Cal.
1972); Homemakers, Inc. of Los Angeles v. Division of Indus. Welfare, 509 F.2d 20 (9th Cir.
1974), cert. denied, 423 U.S. 1063 (1976).

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EEO OBLIGATION

“religion” to mean all aspects of religious observance and practice, as well
as belief, and to include atheism. 2

11 It is not necessary that the beliefs
involved be a part of a formal, organized religion. Intensely held personal
beliefs are protected under Title VII.221 Further, sincerely held religious
beliefs are included in Title VII’s definition of religion no matter how
unreasonable or irrational they may seem. 222

Under Title VII, an employer is expected to recognize the reasonable
religious needs of his employees and applicants for employment, including
the special needs of an employee who is a minister of his church, 23 in
scheduling regular and overtime work, in granting time off from work for
holidays and vacations, and in observing religious holidays, unless he can
show that he is unable to reasonably accommodate an employee’s or pro-
spective employee’s religious beliefs without undue hardship on the con-
duct of his business. According to the EEOC, such undue hardship may
exist “where the employee’s needed work cannot be performed by another
employee of substantially similar qualifications during the period of ob-
servance of the Sabbath observer.” ‘ 4

Moreover, under this view the employer has the burden of proving that
an undue hardship renders the required accommodation to the religious
needs of the employee unreasonable. 22 5 The question of whether or not an
employer intended to discriminate on the basis of religion appears largely
irrelevant, the critical considerations having shifted to the undue hardship
of accommodating. 226 Under the EEOC’s definition of undue hardship the
employer would have to make a significant effort to accommodate the
religious beliefs of the employee. Many courts also required the employer
to assume added costs, take affirmative steps to procure replacements, and
to deviate from the terms of a collective bargaining agreement, if neces-
sary, to accommodate the religious beliefs of the employee.22 7

The Supreme Court recently rejected this approach in Hardison v. Trans
World Airlines.22 ‘ The Court held that a modification of the seniority sys-
tem or any other accommodation which would require expenditure of
funds, other than a de minimus amount, would constitute an undue hard-

220. Section 701(0), 42 U.S.C.A. §2000e(j) (1974); Young v. Southwestern S & L Ass’n,
509 F.2d 140 (5th Cir. 1975).

221. EEOC Dec. No. 76-104, 12 FEP Cases 1359 (1976).
222. Cooper v. General Dynamics, 533 F.2d 163 (5th Cir. 1976).
223. Weitkenaut v. Goodyear Tire & Rubber Co., 381 F. Supp. 1284 (D. Vt. 1974).
224. 29 C.F.R. §1605.1(b) (1976).
225. 29 C.F.R. §1605.1(c) (1976).
226. Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir. 1972).
227. Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), aff’d per curiam, 429 U.S.

65 (1976); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975); Riley v. Bendix
Corp., 464 F.2d 1113 (5th Cir. 1976); Sheffield v. Northrop Aircraft Serv., Inc., 373 F. Supp.
937 (M.D. Ala. 1974).

228. 432 U.S. 63 (1977).

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MERCER LAW REVIEW

ship. Unions also have a duty to accommodate an employee’s religious
beliefs similar to the one imposed on an employer under Title VII.

The EEOC does not require employers to maintain mathematical exacti-
tude in their religious policies, only that substantially equal treatment to
the various religious needs of employees be afforded. Thus, it is not a
violation of Title VII to grant Jewish employees paid leave for Jewish
holidays although Christian employees do not receive such paid leave for
Christian holidays other than legal holidays.

H. Equal Pay for Equal Work

The Equal Pay Act of 196322 was an amendment to the Fair Labor
Standards Act of 1938, which sets federal requirements for minimum
wages, overtime payments, child labor, and the like. Basically, the cover-
age of the Equal Pay Act is the same as that for the Fair Labor Standards
Act (FLSA). Thus, as a general rule, if an employee is not covered by the
minimum wage requirements of the FLSA, he or she is not entitled to the
protections of the Equal Pay Act either. It should be noted, however, that
employees who are otherwise exempt from FLSA coverage because they
fall under exemptions as executive, administrative, or professional em-
ployees, or as outside salespersons, are not exempt from coverage of the
Equal Pay Act.

The Equal Pay Act makes it illegal for an employer to discriminate
between covered employees on the basis of sex, within the establishment,
by paying lower wages to employees of one sex than to employees of the
other sex for equal work on jobs, the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar
working conditions. 3 ” The Act makes exceptions for differentials based on
seniority systems, merit systems, systems which measure earnings by
quantity or quality of production, or differentials based on any other fac-
tors except sex.

1. Relationship of Equal Pay Act to Title VII. Title VII, of course,
bans employment discrimination based on sex. And, as noted elsewhere in
this Manual, Title VII is potentially much broader in its coverage because
it encompasses far more than discrimination in wages, and because it may
cover employees who are not protected by the Fair Labor Standards Act.
However, Title VII itself provides that its provisions must be harmonized
with those of the Equal Pay Act, 3′ and-as a matter of practice-the

229. 29 U.S.C.A. §206(d) (1965).
230. The Equal Pay Act does not require that jobs being compared be performed simulta-

neously but instead encompasses situations where an employee of one sex is hired for. a
particular job to replace an employee of the opposite sex. See, e.g., Peltier v. City of Fargo,
533 F.2d 374 (8th Cir. 1976).

231. 42 U.S.C.A. §2000e-2(h) (1974).

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EEO OBLIGATION

EEOC will defer to rulings under the Equal Pay Act where sex discrimina-
tion in wages is charged.

2. Establishment Coverage. The Equal Pay Act sets up an
“establishment” test for determining wage discrimination based upon sex.
Thus, comparisons will be made under this Act only between employees
of opposite sexes in the same establishment, which is defined as a “distinct
physical place of business. ‘232 To illustrate, an employer who has two
places of business located close to one another but each of which has its
own building, records, bookkeeping, etc., and minimal or no interchange
of employees between each other will be viewed as having two different
“establishments” under the Equal Pay Act. The fact that women in one
establishment earn a lower wage rate than men working at the same job
in the other establishment will not make out a violation of the Equal Pay
Act (although such practice could very well violate Title VII).

3. Standards for “Equal Work.” Illustrations of sex discrimina-
tion-both under the Equal Pay Act and Title VII-are discussed else-
where throughout this Manual, and no worthwhile purpose would be
served by repeating such examples here. However, further comments
should be made regarding the concept of “equal work” under the Equal
Pay Act.

“Equal work” does not mean identical work. 233 Rather, the test is
whether jobs require equal skill, effort, and responsibility, and whether
they are performed under similar working conditions. 234 The test does not
depend on the job classifications or title, but on the job content, consisting
of actual job requirements and performance. 235 For example, a male and
female employee may both be classified as “stock clerks.” However, if the
male employee spends the bulk of his work time shifting and moving goods
in the stockroom, while the female employee spends most of her work time
taking inventory and keeping records, the equal pay standard would not
apply.2 36 Furthermore, if the pay differential for salesmen and saleswomen
is based on economic benefit to the employer from the work performed by
each group, there would be no discrimination. 37 If the employer can dem-
onstrate that the sale of one type of merchandise requires a substantially
greater amount of skill than sale of another type, the jobs may be consid-
ered unequal .23s

232. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.108 (1976).
233. Coming Glass Works v. Brennan, 417 U.S. 188 (1974); Brennan v. J. M. Fields, Inc.,

488 F.2d 443 (5th Cir. 1974); Orr v. MacNeill & Sons, Inc., 511 F.2d 166 (5th Cir. 1975).
234. Wage-Hour Admn’rs Interp. Bull., 29 C.F.R. §800.120 (1976). See Brennan v. Sears

Roebuck & Co., 410 F. Supp. 84 (N.D. Iowa 1976).
235. Id. at §800.121. See Brennan v. Owensboro-Daviess County Hosp., 523 F.2d 1013 (6th

Cir. 1975), cert. denied, 425 U.S. 973 (1976).
236. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.121 (1976).
237. Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir. 1973), cert. denied, 414

U.S. 866 (1974).
238. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.123 (1976).

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MERCER LAW REVIEW

In Corning Glass Works v. Brennan,2 39 the Supreme Court held that
when an employer consistently treats two jobs as equal, that employer
cannot later argue that those same two jobs are not equal for Equal Pay
Act purposes. Moreover, merely opening the higher base rate job to women
will not cure the violation. Instead, the employer must raise the base rate
of the lower-rated job to a level equal with the higher base rate job. 40

4. Equal Skill. The term “skill” includes such factors as experience,
training, education, and ability, and is measured by the actual require-
ments of the job in question. For example, if an employee must have the
same skill to perform either of two jobs, the jobs will be deemed to require
“equal skill,” even though the employee might use his skill less frequently
at one job than at the other. On the other hand, the fact that an emliloyee
in a given job possesses a certain additional skill is immaterial, if the
requirements of the job do not require him to use that skill. 24′

5. Equal Effort. “Effort” entails the amount of physical or mental
exertion needed for the performance of a job. As in the case of “skill” and
“responsibility,” the effort involved in two jobs need not be identical to
be substantially equal. Thus, where a male checker in a supermarket is
required to spend a portion of his time carrying or lifting heavy items, and
a female checker is required to spend an equivalent amount of time in fill-
in work requiring greater manual dexterity (such as rearranging displays
of small items), the Wage-Hour Administrator deems the jobs to require
“equal effort. 2 2

On the other hand, the Administrator notes that where a number of
employees work on an assembly line, and the last employee on the line-in
addition to his other duties-is required to lift the assembly off the line,
and place it on a pallet, a higher wage rate to compensate for such addi-
tional effort would be justified, as long as this extra duty is a regular one,
and takes up a “considerable portion of the work cycle.2 4

2 Note, however,
that where higher pay is given solely for additional effort, such premium
must be paid to all employees in that job who must exert such effort,
regardless of sex. For example, if all the women and some of the men
performing a certain job do not engage in heavy lifting, it would be a
violation to pay a higher rate to all the men. Only those men who regularly
engage in the heavier lifting would be entitled to the extra pay.2 4 It should

239. 417 U.S. 188 (1974).
240. Id.
241. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.125 (1976); Dunlop v. Allegheny

County Inst. Dist., 401 F. Supp. 501 (W.D. Pa. 1975); Calage v. University of Tenn., 400 F.
Supp. 32 (E.D. Tenn. 1975).

242. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.128 (1976).
243. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.125 (1976).
244. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.128 (1976).

[Vol. 29

EEO OBLIGATION

also be noted that a wage differential is not justified solely because an
employee sporadically or occasionally may be required to perform addi-
tional tasks not performed by an employee of the opposite sex in the same
job.

2 45

The main factor in this inquiry is whether there are additional duties
which are more demanding for the higher paid category. In Shultz v.
Kimberly-Clark,2 4 the court compared the duties involved in the two jobs
which the Department of Labor contended were equal. The Cleaner job
which was held by males required lifting heavy boxes, climbing on scaffold-
ing to wash high windows, and heavier work in general than the Locker
Room Cleaner job which was held by women. The court found that the
different effort involved justified the pay differential.

6. Equal Responsibility. “Responsibility” entails the degree of ac-
countability required in the performance of the job, “with emphasis on the
importance of the job obligation. ‘ 2 As examples of substantial differences
in responsibility, which would justify wage differentials, the Administrator
cites employees who are designated as “relief” supervisors-expected to fill
in for regular supervision in the latter’s absence-and salespersons who, in
addition to their regular selling duties, have the power and obligation to
okay customer checks, order supplies, etc., where other salespersons do not
have this authority.2 8 A federal court has also found a wage differential
justified where a male bank teller-in addition to doing the same work as
female tellers-supervised check-cashing, helped other tellers to balance
out, and acted as a “trouble-shooter. ‘2 4 9 On the other hand, minor addi-
tional responsibilities-such as shutting off the lights at the end of the
business day-would not justify a finding of unequal responsibility32

7. Similarity of Working Conditions. Again, working conditions
need not be “identical” to satisfy this test.’ Thus, the fact that employees
perform jobs in different parts of the shop or establishment generally will
not establish a difference in working conditions. The Supreme Court held
in Corning Glass Works 252 that the term “working conditions” only in-
cluded two factors, i.e., physical surroundings and hazards. For Equal Pay

245. Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 1976) (extra duties of male officers
did not justify pay differential because such duties were insubstantial, consumed a minimal
amount of time and were incidental to actually assigned and performed duties). See also
Wirtz v. Meade Mfg., Inc., 285 F. Supp. 812 (D. Kan. 1968); Shultz v. Wheaton Glass Co.,
421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905 (1970); Hodgson v. Coming Glass
Works, 474 F.2d 226 (2d Cir. 1973), aff’d sub nom., Coming Glass Works v. Brennan, 417 U.S.
188 (1974).

246. 315 F. Supp. 1323 (W.D. Tenn. 1970).
247. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.129 (1976).
248. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.130 (1976).
249. Wirtz v. American Bank of Commerce, 3 E.P.D. 8009 (S.D. Tex. 1970). See also

Kilpatrick v. Sweet, 262 F. Supp. 561 (M.D. Fla. 1966).
250. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.130 (1976).
251. Wage-Hour Adm’rs Interp. Bull., 29 C.F.R. §800.131 (1976).
252. Corning Glass Works v. Brennan, 417 U.S. 188 (1974).

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MERCER LAW REVIEW

Act purposes, the time of day worked was held not to be encompassed by
the term “working conditions.”

However, where the working conditions are different, a pay differential
will be justified. For example, where one group of workers must spend a
substantial amount of time in an unair-conditioned plant and others do
similar work, but in air-conditioned offices, the working conditions are
dissimilar and unequal.2 5 Other factors which are considered are whether
the work is dirty or disagreeable, whether climbing is required, and
Whether the work is in a production area.

8. Physical Facilities and Other Conditions of Employment. It is
unlawful for an employer to maintain company facilities not available to
all employees on a nondiscriminatory basis insofar as race, color, religion,
or national origin are concerned.”5 4 This ban refers to lunchrooms, 55 snack-
bars,2 5 drinking fountains, 57 or locker room/rest rooms.z 8 Employee prefer-
ence, custom and usage, or allowance for freedom of choice on the part of
employees will not justify the maintenance of separate facilities.5 , The
employer has an affirmative duty to eliminate the segregated use of com-
pany facilities and, in order to comply therewith, may be required to assign
facilities and oversee their use on an integrated basis.260 This means simply
that de facto segregation resulting from discriminatory selection and use
of physical facilities on the part of employees is the responsibility of the
employer.

Segregated payroll lines or badge number identification systems have
been held to violate Title VII.11 Maintenance or support of segregated
social clubs for the benefit of employees also has been determined to vio-
late the Title VII ban; it does not matter that white employees maintain
their own club, because the employer has an affirmative obligation to
change the character and, where necessary, the physical facilities of the
entire employer-employee relationship so as to constitute it totally nonse-
gregated and as attractive to members of one group as to those of an-
other.” 2 Segregation for purposes of any social function, such as Christmas
parties, is also unlawful.21

3

253. Shultz v. Kimberly-Clark Corp., 315 F. Supp. 1323 (W.D. Tenn. 1970); Hodgson v.
Brookhaven Gen. Hoop., 436 F.2d 719 (5th Cir. 1973).

254. See United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert.
denied, 406 U.S. 906 (1972).

255. EEOC Dec. No. 70-94, CCH EEOC Deco. 6055 (1969).
256. EEOC Dec. No. AT7-2-112, CCH EEOC Deco. 6040 (1969).
257. EEOC Dec. No. 71-359, CCH EEOC Decs. 6172 (1970).
258. EEOC Dec. No. YME9-068, CCH EEOC Deco. 6039 (1969).
259. EEOC Dec. No. 72-0978, 4 FEP Cases 839 (1972).
260. EEOC Dec. No. 72-1704, 4 FEP Cases 1057 (1972). See also EEOC Dec. No. 71-1418,

3 FEP Cases 580 (1971).
261. EEOC Dec. No. 70-64, CCH EEOC Deco. 6046 (1969).
262. EEOC Dec. No. 71-1418, 3 FEP Cases 580 (1971).
263. EEOC Dec. No. 71-32, CCH EEOC Deco. 6160 (1970).

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EEO OBLIGATION

Maintenance of segregated housing, church, or other living accommoda-
tions in company towns violates Title VII.64 Whether on or off the job
itself, employer maintenance of or contribution toward the maintenance
of any type of physical facility or social gathering for his employees must
be on a basis which does not discriminate because of race, color, religion,
or national origin. As already stated, an affirmative duty to oversee the
nondiscriminatory use by employees of all physical facilities also exists,
regardless of employee choice.

With respect to the ban against sex discrimination under Title VII, a
different series of problems has developed. In this area, an employer is
under an affirmative duty to provide separate and substantially equivalent
restroom facilities for male and female employees. Further, he may not use
the current lack of such facilities as a basis for refusing to hire members
of one or the other sex, unless the cost of providing the facilities is prohibi-
tive.”6 5 A similar rule applies to the provision of living or sleeping accom-
modations for members of both sexes where such accommodations are a
part of the employment relationship. 6′ Under the prohibitive cost or busi-
ness necessity exception, a very narrow exemption exists, so that in most
instances installation of facilities will be required.

In addition to such physical facilities.as are related to personal hygiene
and convenience, an employer is required to provide physical objects which
may be used on the job by members of both sexes. For example, providing
only men’s bicycles for use in travelling around the employer’s industrial
complex has been found to violate Title VII.216

Where Executive Order 11246, as amended, applies to the employer in
question, physical facilities must also be maintained on a nondiscrimi-
natory basis.”6 Further, the Sex Discrimination Guidelines issued by the
OFCCP contain a provision specifically requiring employers to assure the
availability of appropriate physical facilities for both sexes.6 9

Title VII requires an employer to maintain a working environment free
of racial intimidation. That requirement includes positive action where
necessary to redress or eliminate employee or supervisory harassment. For
example, where a black employee is promoted to a formerly all white
department, a racially tense situation may result in the new department.

264. EEOC Dec. No. YB19C-144, CCH EEOC Decs. 6082 (1969); EEOC Dec. No. 71-
453, CCH EEOC Decs. 6205 (1970).

265. EEOC Dec. No. 70-558, CCH EEOC Decs. 6137 (1970).
266. EEOC Dec. Nos. NY6-11-144, NY6-11-144U, 2 FEP Cases 296 (1969).
267. EEOC Dec. No. 70-920, CCH EEOC Decs. 6156 (1970).
268. 41 C.F.R. §60-1.8(a) (1977). Facilities are defined in the OFCCP regulations to in-

clude, “waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms,
washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking foun-
tains, recreation or entertainment areas, transportation and housing facilities provided for
employees.”

269. 41 C.F.R. §60-20.3(e) (1977).

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MERCER LAW REVIEW

Extra support may be necessary on the part of the supervisors and the
management structure as a whole to insure that deterioration of employ-
ment conditions does not prejudice the employee in the new job or force a
resignation therefrom.0

The EEOC will find a Title VII violation where discrimination is found
in the opportunity for training, promotion, transfer, etc. Thus, the EEOC
considered it an unlawful employment practice where supervisory training
was offered to male but not to female employeesY’ Similarly, a Title VII
violation was found where an employer provided an informal, inadequate
training program to discourage blacks from bidding upon and receiving
assistance in traditionally all white job classifications. When a black em-
ployee who had worked for the company for 16 years did bid on such a job,
he was given neither adequate supervision nor did he enjoy the “close and
harmonious relationship with an experienced” employee necessary to learn
the job. The company’s subsequent refusal to promote him on the grounds
that he had not learned the job was found to be discriminatory because of
the inadequate training period which was designed to maintain the status
quo.2

72

Harassment of an employee because of his race or national origin cannot
be allowed as a condition of employment. Tolerance by first-line supervi-
sors of physical and other harassment has been held to violate Title VII. 27

1

Harassment by racial or ethnic epithet from supervisors or fellow workers
also has been determined to violate Title VII, and management has been
ordered to take steps to correct the situation at all levels within its employ-
ment structure. 74 For example, where black and Spanish surnamed em-
ployees were the object of racially and ethnically derogatory oral and writ-
ten remarks, the EEOC ruled that the employer had violated its Title VII
obligation. 5 In that instance, some of the remarks were written by uniden-
tified persons on restroom walls but the remarks were not removed by the
employer. Polish or other racial or ethnic jokes directed at minority group
employees may also violate Title VII’s ban on discrimination in conditions

270. EEOC Dec. No. 7061, 2 FEP Cases 167 (1969).
271. EEOC Opinion Letter of General Counsel No. 158-165 (Oct. 12, 1965); Daily Labor

Report (BNA April 19, 1966) at 2.
272. EEOC Dec. No. 7062, 2 FEP Cases 168 (1969). But see Long v. Ford Motor Co., 496

F.2d 500 (6th Cir. 1974), wherein it was held that inadequate training for minority group
members, in itself, is not sufficient to subject an employer to liability under a fair employ-
ment practices law. Only if an employer’s failure to train minorities constitutes dissimilar
treatment from that given to white employees will the employer be found to have violated
the law. Although the Long case was decided under the Civil Rights Act of 1866, its rationale
seems equally applicable to Title VII.

273. EEOC Dec. No. CL-68-12-431U, 2 FEP Cases 295 (1969).
274. EEOC Dec. No. YME9-068, 1 FEP Cases 913 (1969); EEOC Dec. No. 72-0779, 4 FEP

Cases 317 (1971). See also Anderson v. Methodist Evangelical Hosp., 4 FEP Cases 33 (W.D.
Ky. 1971), aff’d, 464 F.2d 723 (6th Cir. 1972).

275. EEOC Dec. No. 72-1561, 4 FEP Cases 852 (1972).

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EEO OBLIGATION

of employment.27 The EEOC has also held that harassment of an employee
by other workers or by supervisors because of his associations with employ-
ees of another race violates Title VII. 27

7

Adopting different manners of address to employees depending upon
their race or national origin may violate Title VII.8 The manner of address
to one sex or the other may also be suspect. Where female employees were
referred to as “girls” or “counter girls,” the EEOC found an implication
of female inferiority and held that the employer violated Title VII.Y7 A
smoking rule which affects one sex, but not the other, has been held to
violate the ban on discrimination in conditions of employment.20 Prohibit-
ing the use of a foreign language on the job has been held violative of the
national origin discrimination ban in Title VII, unless the rule can be
substantiated as a business necessity.28′ Thus, a Title VII violation was
found where an employer’s supervisors restricted its Latino employees
from speaking Spanish on the premises, both at their work stations and
during lunch and other nonworking times.22 Similarly, when a Latino em-
ployee was discharged in part because he spoke Spanish in the presence
of Anglo customers, a Title VII violation was found because the employer
did not establish that legitimate considerations required it to forbid its
Latino employees from speaking Spanish in the presence of its Anglo cus-
tomers. 2

” Nor may an employer tolerate employee prejudice against the
use of a foreign language.23

The courts have been reluctant to hold a company responsible for the
isolated prejudices of some employees. Title VII prohibits discrimination
by employers, but no employer can prevent all of his employees from
having some prejudice against an ethnic group or racial minority. In cases
based on alleged harassment, the courts require a showing that the em-
ployer knew that the employee was subject to abuse because of his race or
ethnic background and did nothing to prevent continued harassment.8

276. See EEOC Dec. No. CL68-12-431EU, 2 FEP Cases 295 (1969).
277. EEOC Dec. No. 71-909, 3 FEP Cases 269 (1969). See also EEOC Dec. No. 71-1902, 3

FEP Cases 1244 (1971).
278. EEOC Dec. No. 71-32, CCH EEOC Decs. 6160 (1970).
279. EEOC Dec. No. 72-0679, 4 FEP Cases 441 (1971).
280. EEOC Dec. No. 70-503, CCH EEOC Decs. 6113 (1970); EEOC Dec. No. 71-109,

CCH EEOC Decs. 6165 (1970).
281. EEOC Dec. No. 71-446, 2 FEP Cases 1127 (1970).
282. Id.
283. EEOC Dec. No. 72-0281, CCH EEOC Decs. 1 6293 (1971). See also EEOC CoMm.

MAN. (CCH) §466.3, 6123.
284. EEOC Dec. No. 71-1532, EEOC COML. MAN. (CCH) §466.4, 6124.
285. Fekete v. United States Steel Corp., 353 F. Supp. 1177 (W.D. Pa. 1973); Howard v.

National Cash Register, 388 F. Supp. 603 (S.D. Ohio 1975); Causey v. Ford Motor Co., 516
F.2d 416 (5th Cir. 1975).

19781

MERCER LAW REVIEW

III. THE ELEMENTS OF PROHIBITED DISCRIMINATION

A. Is Discriminatory Intent Required?

In Griggs v. Duke Power Co. ,26 the Supreme Court held that the purpose
of Title VII is the removal of artificial, arbitrary, and unnecessary barriers
to employment where the barriers operate invidiously to discriminate on
the basis of race, religion, nationality, or sex. The Act thus proscribes not
only overt or intentional discrimination, but also practices which are fair
in form but discriminatory in operation.

The Supreme Court in Griggs found that an employer’s adoption of a
diploma and test requirement in its hiring procedure operated to exclude
blacks in the context of past discriminatory practices against that minority
group. Although the employer was without any present intent to discrimi-
nate, and had even offered to help the undereducated employees through
the financing of education, the court found that in the absence of “business
necessity,” good intent or absence of discriminatory intent does not redeem
employment procedures or testing mechanisms that perpetuate the effects
of past discrimination and operate as “built-in headwinds” against minor-
ity groups.

In Albemarle Paper Co. v. Moody,”5 7 the Supreme Court expanded the
Griggs decision, holding that an employer’s absence of “bad faith” in
perpetuating present effects of past racial discrimination through testing
procedures and a previously segregated seniority system “is not a sufficient
reason for denying backpay” to individuals adversely affected by such
discrimination. Backpay awards and other remedies under Title VII are
designed to “make whole” employees who have suffered from discrimina-
tion. The remedies are not designed to be a punishment for the employer’s
moral turpitute or bad faith.

Even before the Supreme Court’s decision in Albemarle Paper, numer-
ous courts of appeals had held that discriminatory “intent” is not a neces-
sary element of proof in Title VII case.m Moreover, although Griggs and
Albemarle involved racial discrimination, it has been held that discrimina-
tion because of religion8 9 or sex210 can also violate Title VII without proof

286. 401 U.S. 424 (1971).
287. 422 U.S. 405 (1975).
288. See, e.g., Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); United States

v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973); Spurlock v. United Airlines, Inc., 475 F.2d
216 (10th Cir. 1972). In its recent decision in Washington v. Davis, 426 U.S. 229 (1976), the
Supreme Court held that under the Fourteenth Amendment, a showing of adverse impact is
not sufficient to make a prima facie case, but rather plaintiff must show that a public
authority intentionally discriminated. This ruling, however, presumably does not affect the
Court’s prior decision with respect to alleged discrimination in private employment under
Title VII. Muller v. United States Steel Corp., 457 F.2d 923 (10th Cir. 1975).

289. See, e.g., Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir. 1972); Draper v.
U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975).

290. Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991

[Vol. 29

EEO OBLIGATION

of bad faith. 9′ Lower courts have found various terms and conditions of
employment violative of Title VII although no bad faith on the employer’s
part was shown. For example, a negotiated retirement agreement, “‘ pro-
motion policies, ” applicant arrest record inquiries, 24 a “no marriage rule”
for women,”‘ and a discharge for garnishments policy 29’ have been held to
be unlawful despite a lack of bad faith in their adoption or implementa-
tion.

Although none of the above-cited cases have been overruled, the Su-
preme Court has in some recent cases placed a great deal of emphasis on
the absence of a showing of discriminatory intent in denying relief to al-
leged victims of discrimination. In Washington v. Davis, 2 7 the plaintiffs
challenged the use of a civil service test which had a highly discriminatory
impact in screening out black candidates. The Supreme Court held that
under the constitutional standard which was applied, there had to be a
showing of discriminatory intent. It should be noted that the standard for
showing invidious discrimination under the Constitution is different than
the standard applicable under Title VII.

B. The Use of Statistics in Litigation

In cases concerning employment discrimination, ” . . . statistics often
tell much and Courts listen. ‘ 29′ The Supreme Court has said that its cases
“make it unmistakably clear that statistical analyses have served and will
continue to serve an important role in cases in which the existence of
discrimination is a disputed issue. ’29’ As a matter of law, where gross
statistical disparities can be shown, they alone may constitute a prima
facie case of discrimination. 30 An example of such statistical proofs would

(1971); Kober v. Westinghouse Elec. Corp., 480 F.2d 240 (3d Cir. 1973); Trivett v. Tri-State
Container Corp., 368 F. Supp. 134 (E.D. Tenn. 1973).

291. Presumably, the same principle applies to all the prohibited bases of discrimination.
292. Peters v. Missouri-Pacific R.R., 483 F.2d 490 (5th Cir.), cert. denied, 414 U.S. 1002

(1973).
293. Gates v. Georgia Pac. Corp., 492 F.2d 292 (9th Cir. 1974); Bolton v. Murray Envelope

Corp., 493 F.2d 191 (5th Cir. 1974).
294. Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972); Green v. Missouri-

Pacific R.R., 523 F.2d 1290 (8th Cir. 1975).
295. Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991

(1971).
296. Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974).
297. 426 U.S. 229 (1976); General Electric v. Gilbert, 429 U.S. 125 (1977); Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). But see Dothard v. Rawlin-
son, 433 U.S. 321 (1977) where the Court did not require a showing of discriminatory intent
under Title VII.

298. Alabama v. United States, 304 F.2d 583, 586 (5th Cir.), aff’d per curiam, 371 U.S.
37 (1962); Hazelwood School Dist. v. United States, 433 U.S. 299 (1977).

299. International Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977).
300. Hazelwood School Dist. v. United States, 433 U.S. 299 (1977).

19781

MERCER LAW REVIEW [Vol. 29

be a showing that disproportionately small numbers of minority groups or
women exist in an employer’s workforce as compared with their representa-
tions in the relevant labor force population of the geographic area?”

Another example would be statistics showing that employment criteria
exclude a disproportionate number of minority group members or
women.3 2 When discrimination is alleged with respect to testing, some
courts have held that a showing of differential pass rates sets forth a prima
facie case. 3 Similarly, a showing of a disproportionate distribution of
employees within a company’s workforce or a disproportionate transfer,
assignment or promotion rates may establish a prima facie case of discrim-
ination.” ‘ A prima facie case of discrimination with respect to discharge
or other disciplinary actions may also be established statistically. 5

Statistics also may be used to rebut a prima facie case of discrimination.
For example, a defendant might show that during the period for which a
timely Title VII charge could be filed, it had hired new minority or female
employees or admitted minority or female members at a rate comparing
favorably to the hiring or admission of white males. 06 Or, a defendant
might present its own statistics comparing the distribution of all its em-

301. United States v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973); United States v. St.
Louis-San Francisco R.R., 464 F.2d 301 (8th Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th
Cir. 1971), cert. denied, 406 U.S. 950 (1972); Parham v. Southwestern Bell Tel. Co., 433 F.2d
421 (8th Cir. 1970); United States v. Lathers Local 46, 471 F.2d 408 (2d Cir.), cert. denied,
412 U.S. 939 (1973); Green v. Missouri-Pacific R.R., 523 F.2d 1290 (8th Cir. 1975). Although
community workforce statistics may be more persuasive than gross population statistics, e.g.,
Rios v. Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974), some courts have been content to
rely on population statistics in determining whether minorities are underrepresented in an
employer’s workforce, e.g., EEOC v. Detroit Edison Co., 365 F. Supp. 87 (E.D. Mich. 1973),
aff’d in part, 515 F.2d 301 (6th Cir. 1975); United States v. Hayes Int’l Corp., 456 F.2d 112
(5th Cir. 1972). See also Hill v. Western Elec. Co., Inc., 12 FEP Cases 1175 (E.D. Va. 1976),
wherein the court looked to applicant flow statistics as a measure of adverse impact. Where
discrimination in hiring for jobs requiring certain qualifications is alleged, disparate effect
on minorities is shown by comparing the minority composition of the workforce having the
necessary skills with minority representation in the job classifications involved. Hester v.
Southern Ry., 497 F.2d 1374 (5th Cir. 1974); Patterson v. American Tobacco Co., 535 F.2d
257 (4th Cir. 1976).

302. Dothard v. Rawlinson, 433 U.S. 321 (1977).
303. E.g., Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); Douglas v. Hampton, 512

F.2d 976 (D.C. Cir. 1976); EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); Hester
v. Southern Ry., 497 F.2d 1374 (5th Cir. 1974).

304. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Leisner v. New
York Tel. Co., 358 F. Supp. 359 (S.D.N.Y. 1973); Muller v. United States Steel Corp., 509
F.2d 923 (10th Cir. 1975); Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.), cert.
denied, 423 U.S. 832 (1975).

305. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), on remand, 390 F. Supp.
501 (E.D. Mo. 1975); Bolton v. Murray Envelope Corp., 493 F.2d 191 (5th Cir. 1974).

306. EEOC v. International Union of Operating Engineers, Locals 14 & 15, 553 F.2d 251
(2d Cir. 1977).

EEO OBLIGATION

ployees,107 or perhaps just its new hires,m with a relevant population or
workforce group.

Consequently, the existing composition of an employer’s workforce
and/or applicant, test or other employee group will be critical in any deter-
mination of an employer’s compliance with its substantive EEO obliga-
tions, as well as in any litigation concerning alleged unlawful employment
practices.

C. The Present Effects of Past Discrimination

Because intent is not a necessary element of proof in establishing a
prima facie case of discrimination under Title VII, employment practices,
may, nevertheless, be found to violate Title VII where the practices act to
perpetuate the effects of past discrimination. The most visible employ-
ment policy where effects of past discrimination may carry over is the
application of seniority, with all its concomitant rights. Prior to the Su-
preme Court’s most recent decisions, the courts of appeals uniformly held
that the application of a seniority system which continued the affects of
past discrimination constituted a violation of Title VII. The explicit ex-
emption for “bona fide seniority systems” in Section 703(h) of Title VII
was construed not to apply to those systems unless compelled by business
necessity. This business necessity exception was narrowly construed.0 9

In International Brotherhood of Teamsters v. United States”‘1 and
United Airlines v. Evans,3″ the Supreme Court greatly reduced the num-
ber of persons entitled to relief because of past acts of discrimination. In
Teamsters, the Court held that an individual could not obtain relief from
the discriminatory effect of a neutral seniority system unless he had been
unlawfully refused employment. The Court held that “Section 703(h) on
its face immunizes all bona fide seniority systems, and does not distinguish
between the perpetuation of pre- and post-Act discrimination.”3 ‘, Plain-
tiffs who in the past succeeded through attacks on discriminatory effects
of seniority systems, may now only prevail by showing a discriminatory
refusal to hire or transfer. Only specific post-Act victims are entitled to
relief, which may include retroactive seniority.

The requirement that each plaintiff establish that he or she had in fact
applied after the effective date of the Act for an all-white/all-male job will

307. E.g., Roman v. ESB, Inc., 550 F.2d 1343 (4th Cir. 1976).
308. E.g., Hazelwood School Dist. v. United States, 433 U.S. 299 (1977).
309. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Head v.

Timkin Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); United States v. N.L. Indus., Inc.,
479 F.2d 354 (8th Cir. 1973); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir.
1970), cert. denied, 401 U.S. 954 (1971).

310. 431 U.S. 324 (1977).
311. 429 U.S. 917 (1977).
312. 431 U.S. at 348 n.30.

19781

MERCER LAW REVIEW

greatly reduce the number of persons entitled to financial and seniority
relief under Title VII. There will, therefore, no longer be a need to disman-
tle departmental seniority systems since seniority relief can be limited to
specifically identified victims of post-Act hiring or transfer discrimination.
Back pay will be similarly limited.

In United Airlines, the Court went even further in limiting recovery for
past violations of the Act. In this case the plaintiff had been discharged in
1968 pursuant to a policy which was later discontinued because it was
discriminatory. When Evans was rehired she was not given credit under
the seniority system for her prior service. She filed a charge of discrmina-
tion with the EEOC more than one year later claiming that the refusal to
give her credit for prior service perpetuated her discriminatory discharge
in 1968.

The Court rejected her claim first because, as in Teamsters, the policy
of basing seniority only on current employment was privileged under Sec-
tion 703(h) and second because she did not file a charge of discrimination
within 90 days of her unlawful discharge. This second reason advanced by
the Court to reject Evans’ claim greatly reduces the potential number of
plaintiffs. Under this holding only those victims of an unlawful discharge
or refusal to hire who make a timely complaint are entitled to recovery.
Under this theory, since the original discrimination must be actionable, it
no longer makes any sense to consider these cases under the

perpetuation” theory.
Where there has been a policy of discrimination in hiring and promotion

a charge challenging such discrimination is timely as long as the discrimi-
natory policy exists. To the extent that the policy is thus timely challenged
by one person, all post-Act victims of the policy will be entitled to relief.
In these cases the “perpetuation” theory still has considerable vitality.

Where Executive Order 11246, as amended, is applicable, perpetuation
of past discrimination is also prohibited. Since there is no exemption for
seniority systems under the Executive Order, the Office of Federal Con-
tract Compliance (OFCCP) has taken the position that Teamsters will not
limit attacks on seniority systems.”‘ A related question is whether the
courts will require the identification of specific victims of discrimination
and require that the discriminatory practices be timely challenged, under
the Executive Order.

If as the Supreme Court held in Teamsters, granting relief only to speci-
fied individual victims is “the most complete relief possible,” it would be
difficult to argue that the Executive Order requires more. Whether the
Executive Order justifies sweeping modifications of seniority systems in
light of Teamsters and United Airlines .will no doubt be the subject of
intense litigation.

313. Daily Labor Report (BNA July 28, 1977) at 2.

[Vol. 29

EEO OBLIGATION

IV. SUBSTANTIVE DEFENSES TO DISCRIMINATION

A. Business Necessity

In Griggs v. Duke Power Co.,'” the Supreme Court held that the defense
of “business necessity” would be allowed when an employment practice
which operated to exclude a class of individuals could be shown to be “job
related.” The lower federal courts have elucidated the meaning of this test
indicating that the discriminatory policy or practice must be essential to
the safe and efficient operation of the business in order to be lawful.” 5

Predictably, application of this rule has involved questions as to whether
an employer would be placed at a serious economic disadvantage or would
confront serious safety hazards if the discriminatory practices were aban-
doned.

The “business necessity” test is not synonymous with “business conven-
ience.”3″‘ On the contrary, both the EEOC and courts have emphasized
that it is not enough for a business to show that X class was excluded
simply because that was the best and easiest way of doing business. Before
any such discrimination can be practiced, it must not only be shown that
including X class is impractical but also that the exclusion policy is abso-
lutely essential to the business, not merely tangential. 31 7

In determining what constitutes essential business considerations, it is
clear that the need for preserving or improving the image of the company
does not justify discrimination. 18 The objective of catering to the prefer-
ences of customers or co-workers is not a valid reason for maintaining
discriminatory practices.39 Having to bear additional expense to eradicate
a discriminatory practice will not rise to “business necessity,” and some
courts have required the creation of expensive training programs to remedy
unlawful discrimination. The costs incurred to eliminate a questionable
practice must be extraordinary before the “business necessity” defense can
prevail.310

314. 401 U.S. 424 (1971).
315. Papermakers & Paperworkers Local 189 v. United States, 416 F.2d 980 (5th Cir.

1969), cert. denied, 397 U.S. 919 (1970); Young v. Edgcomb Steel Co., 499 F.2d 97 (4th Cir.
1974); Rodriquez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974), rev’d on other
grounds, 429 U.S. 938 (1977); Dothard v. Rawlinson, 433 U.S. 321 (1977).

316. Stewards v. American Airlines, Inc., 12 FEP Cases 1463 (N.D. Ill. 1976).
317. United States v. St. Louis-San Francisco Ry., 464 F.2d 301 (8th Cir. 1972); Robinson

v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. denied, 404 U.S. 1006 (1971); United States
v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973); Diaz v. Pan American World Airways, Inc.,
442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971); Carey v. Greyhound Bus Co., 500
F.2d 1372 (5th Cir. 1974).

318. EEOC Dec. No. 70-350 (1969).
319. 29 C.F.R. §1604.2 (1976); Diaz, 442 F.2d 385.
320. Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. denied, 404 U.S. 1006

(1971); Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir. 1971); United States v. N.L.
Indus., Inc., 479 F.2d 354 (8th Cir. 1973).

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MERCER LAW REVIEW

The Age Discrimination in Employment Act explicitly recognizes the
defense of business necessity and allows an employer to take action, other-
wise prohibited in an unfair employment practice, where age is a bona fide
occupational qualification reasonably necessary to the normal operation of
a particular business and where such action is not a subterfuge to avoid
the purpose of the Act.3″‘ Where the business necessity relates to public
safety, the courts are apt to give the company’s policy minimal scrutiny.
The court in Hodgson v. Greyhound Lines, Inc. stated that “[a company]
must demonstrate that it has a rational basis in fact to believe that elimi-
nation of its maximum hiring age will increase likelihood of risk of harm
to its passengers. [It] need only demonstrate however a minimal increase
in risk of harm . . .

As under Title VII, this exception is narrowly construed, and the burden
of proof to establish it is upon the employer.3 23 A “business necessity”
exception to the Age Discrimination Act is allowed when federal statutory
and regulatory requirements, provide for compulsory age limitations for
hiring or.compulsory retirement, without reference to the individual’s ac-
tual physical condition at the terminal age, when such conditions are
clearly imposed for the safety and convenience of the public.32 4

B. Bona Fide Occupational Qualification

Often, the “business necessity” defense is more appropriately expressed
in terms of a “bona fide occupational qualification,” which can be based
on age, sex, religion, or national origin, but not on race or color. Thus, Title
VII makes an exception for discrimination resulting from a “bona fide
occupational qualification” (BFOQ) provided it is reasonably necessary to
the normal operation of the enterprise.12

The Title VII bona fide occupational qualification exception has been
interpreted very narrowly by both the EEOC and the courts, and, like the
“business necessity” test, is not to be equated with business convenience . 2

Labels such as “men’s jobs” and “women’s jobs” are suspect, particularly

321. Section 4(f)(1), 29 U.S.C.A. §623(f)(1) (1975); Hodgson v. Greyhound Lines, Inc., 499
F.2d 859 (7th Cir. 1974), cert. denied, 419 U.S. 1122 (1975); Hodgson v. Tamiami Trail Tours,
4 FEP Cases 728 (S.D. Fla. 1972).

322. Hodgson v. Greyhound Lines, Inc., 499 F.2d at 863.
323. Stringfellow v. Monsanto Co., 320 F. Supp. 1175 (W.D. Ark. 1970).
324. 29 C.F.R. §860.102(d) (1976); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859. Cf.

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (compulsory retirement at
age 50 without regard to individual’s physical condition does not violate the Fourteenth
Amendment).

325. Section 703(e), 42 U.S.C.A. §2000e-2(e) (1974).
326. E.g., Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir.), cert. denied, 404

U.S. 950 (1971) (discrimination based on sex is valid only when the essence of a business
would be undermined by not having members of one sex exclusively); 29 C.F.R.
§1604.2(a)(1)(iii) (1976). See also Stewards v. American Airlines, Inc., 12 FEP Cases 1463
(N.D. 11. 1976).

[Vol. 29

EEO OBLIGATION

if they are based on weight-lifting restrictions or maximum hours require-
ments,”2 7 and the Title VII BFOQ exception is not met by reliance upon
assumptions about the characteristics of women as a class of workers. For
example, the assumption that the turnover rate among women is higher
than among men is unlawful.”‘ The assumption that women are less capa-
ble of aggressive salesmanship or are incapable of performing physically
demanding jobs cannot be used to deprive them of jobs.'” Making job
decisions affecting an individual solely because of the preferences of co-
workers, the employer, clients, or customers also violates the Act, except
where it is necessary for the purposes of authenticity or genuineness as in
the case of actors, actresses, fashion models, and some restroom attend-
ants. The Supreme Court recently held that where there was a require-
ment of contact with dangerous male prisoners, sex would be a BFOQ . 3 ‘
Finally, provision of separate facilities for persons of one sex only is unlaw-
ful, unless the expense of duplicate facilities would be clearly unreasona-
ble.3

2

In sum, if there is no reasonable cause to believe that all or substantially
all women are unable to safely and efficiently perform certain jobs, the
employer must permit each applicant who desires it the reasonable oppor-
tunity to demonstrate her ability to perform the job sought.3

3 3

A bona fide occupational qualification defense is also recognized under
the Age Discrimination in Employment Act .3 1 As with the defense under
Title VII, the burden of proof is placed upon the employer.13 As noted
above with respect to the “business necessity” defense, federal statutory
and regulatory requirements establishing compulsory age limitations for
hiring and compulsory retirement can constitute a BFOQ.33 1 Thus, it has
been held reasonable to impose a maximum hiring age for bus drivers
based on the risk of harm to passengers.37 Finally, and again consistently
with the Title VII standards, a BFOQ under the Age Discrimination Act

327. E.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969); Rosenfeld
v. Southern Pac. Ry., 444 F.2d 1219 (9th Cir. 1971); Bowe v. Colgate-Palmolive Co., 416 F.2d
711 (7th Cir. 1969).

328. 29 C.F.R. §1604.2(a)(1)(i) (1976).
329. 29 C.F.R. §1604.2(a)(1)(ii) (1976).
330. 29 C.F.R. §1604.2(a)(1)(iii) (1976); 29 C.F.R. §1604.2(a)(2) (1976).
331. Dothard v. Rawlinson, 433 U.S. 321 (1977).
332. EEOC Dec. No. YN Y9-047 (1969).
333. Long v. Sapp, 502 F.2d 34, 40 (5th Cir. 1974). See also Rundle v. Humane Society,

12 FEP Cases 444 (E.D. Mo. 1975) (sex is not a BFOQ for job of night nurse in an animal
hospital).

334. Section 4(f)(1), 29 U.S.C.A. §623(f)(1) (1975).
335. 29 C.F.R. §860.102(b) (1976); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th

Cir. 1974), cert. denied, 419 U.S. 1122 (1975).
336. 29 C.F.R. §860.102(d) (1976). Cf. Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307 (1976) (compulsory retirement at age 50 without regard to individual’s physical
condition does not violate the Fourteenth Amendment).

337. Hodgson v. Greyhound Lines, Inc., 499 F.2d 859.

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MERCER LAW REVIEW

will also be recognized for authenticity or genuineness, as where actors and
other persons are used to advertise products designated for a specific age
group.

3 3

C. Good Faith Reliance Upon State Protective Laws

Many states have enacted laws or promulgated administrative regula-
tions with respect to the employment of women. Such laws prohibit or
limit the employment of women in certain occupations, such as jobs requir-
ing the lifting or carrying of weights exceeding prescribed limits or jobs
requiring work during certain hours of the night or for more than a speci-
fied nuinber of hours per day or per week, or for certain periods of time
before and after childbirth. This type of law has been categorized as state
protective legislation for women. Both the EEOC and the courts have
taken the position that these state protective laws for women will not be
considered a defense to an otherwise established unlawful employment
practice or as a basis for the application of the bona fide occupational
exception .

39

But the above cases have recognized that the existence of state protec-
tive legislation is relevant when the plaintiff seeks monetary damages in
addition to injunctive relief in a lawsuit. Thus, a “limited defense” is
allowed based upon the fact that such state legislation often places the
employer “on the horns of a dilemma,” and the recovery of monetary relief
has been precluded where an employer has in good faith relied upon a state
female protective law prior to a determination of the validity of the state
protective legislation by the federal courts.3 °

D. Good Faith Reliance on EEOC Opinion

A party may not be held liable or be punished for an unlawful employ-
ment practice under Title VII if he proves that he acted, or failed to act,
in good faith reliance on and in conformity with a written interpretation
or opinion of the EEOC .’ Even if the EEOC subsequently determines that

338. 29 C.F.R. §860.102(e) (1976).
339. 29 C.F.R. §1604.2(b)(1) (1976); Rosenfeld v. Southern Pac. Ry., 444 F.2d 1219 (9th

Cir. 1971); Burns v. Rohr Corp., 346 F. Supp. 994 (S.D. Cal. 1972); Schaeffer v. San Diego
Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972); Kober v. Westinghouse Elec. Co., 480 F.2d
240 (3d Cir. 1973); Homemakers, Inc. v. Division of Indus. Welfare, 509 F.2d 20 (9th Cir.
1974), cert. denied, 423 U.S. 1063 (1976); Erickson v. Lustra Lighting Div. of Int’l Tel. & Tel.
Corp., 9 E.P.D. 9892 (N.D. Cal. 1974); State v. Fairfield Communities Land Co., 11 FEP
Cases 1204 (Ark. Cir. Ct. 1975).

340. 29 C.F.R. §1604.2(b)(1) (1976); Rosenfeld v. Southern Pac. Ry., 444 F.2d 1219; Burns
v. Rohr Corp., 346 F. Supp. 994; Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002;
Kober v. Westinghouse Elec. Co., 480 F.2d 240; Homemakers, Inc. v. Division of Indus.
Welfare, 509 F.2d 20; Erickson v. Lustra Lighting Div. of Int’l Tel. & Tel. Corp., 9 E.P.D.
9892; State v. Fairfield Communities Land Co., 11 FEP Cases 1204.

341. Section 713(b), 42 U.S.C.A. §2000e-12 (1974).

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EEO OBLIGATION

an employment practice it once viewed as lawful is unlawful, the courts
may consider the earlier opinion as a valid defense.” ‘ This holds true even
if such interpretation or opinion is later modified or rescinded, or if a court
later holds that it is invalid. However, only the following may be consid-
ered a “written interpretation or opinion” of the EEOC: (1) a letter enti-
tled “Opinion Letter” and signed by the General Counsel on behalf of the
EEOC, or (2) matter published and so designated in the Federal
Register.3 1

E. Affirmative Action Plans and Consent Decrees

It is not a defense to a charge of discrimination that an employment
practice is permitted or required by an affirmative action plan or a consent
decree. In Stevenson v. International Paper Co.,’ ” the court held that
employees could sue under Title VII to challenge a seniority system which
had been expressly authorized under Executive Order 11246 by the prede-
cessor of the OFCCP. However, the court did note that an award of back-
pay might be inappropriate because of the employer’s reliance on approval
under the Executive Order.

The courts have also held that white male employees who are not hired34
or denied a promotion 36 because of promotion or hiring goals for minorities
or women established in an affirmative action plan or a consent decree may
sue under Title VII. Other courts have, however, reached the opposite
result; 37 and, at least where there is some evidence of discrimination,
numerous courts have approved the use of such hiring or promotion
goals . 3 The law on this point is thus highly unsettled. Until the issue is
definitely resolved, efforts to meet the goals set up in affirmative action
plans should continue to be made. However, in order to reduce the chance
of liability, no applicant or employee ought to be totally excluded from
consideration for hire or promotion solely because he or she is not a mem-

342. Gilbert v. General Electric Co., 429 U.S. 125 (1976).
343. 29 C.F.R. §1601.30 (1976); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.),

cert. denied, 404 U.S. 991 (1971).
344. 516 F.2d 103 (5th Cir. 1975).
345. Cramer v. Virginia Commonwealth Univ., 415 F. Supp. 673 (E.D. Va. 1976); Brunetti

v. City of Berkeley, 12 FEP Cases 937 (N.D. Cal. 1975).
346. McAleer v. A.T.& T. Co., 416 F. Supp. 435 (D.D.C. 1976); Weber v. Kaiser Alumi-

num & Chem. Corp., 415 F. Supp. 761 (E.D. La. 1976); Barnett v. International Harvester,
12 FEP Cases 787 (W.D. Tenn. 1976); EEOC v. A.T.& T., 506 F.2d 735 (3d Cir. 1977);
Germann v. Kipp, 429 F. Supp. 1323 (W.D. Mo. 1977).

347. Lee v. Macon County Bd. of Educ., 483 F.2d 242 (5th Cir. 1973); Taterka v. Wiscon-
sin Tel. Co., 394 F. Supp. 862 (E.D. Wis. 1975); Adcock v. Caddo Parish School Bd., 11 FEP
Cases 1312 (W.D. La. 1974).

348. E.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); United
States v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973).

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MERCER LAW REVIEW

ber of a group for which an affirmative action plan goal has been estab-
lished .

3

V. REMEDIES

A. Class Actions

The class action is a lawsuit in which a common question of law or fact
is presented on behalf of a large number of similarly situated persons who
are represented by a few named individuals.350 The use of the class action
has been approved by the courts in actions brought under Title VII, the
Civil Rights Acts of 1866, the Equal Pay Act, and the Age Discrimination
in Employment Act. The primary advantage of a class action is that it
avoids inconsistent relief for those class members who are similarly situ-
ated. The biggest problems with class actions are that they often are too
large to be manageable and frequently the rights of absent class members
are neglected by the class representatives. 5′ The potential liability of a
corporation found to have committed an unlawful practice against a class
of similarly situated persons can be huge because a class may include past,
present, and future employees. 5 ‘

Under Rule 23(a) the plaintiff must show (1) that there are so many
members of the class that it is impractical to join them all, (2) that a class
does exist, (3) that the claims of the named plaintiffs are typical of those
of the class, and (4) that the plaintiff will be an adequate representative
of the class. If a Title VII plaintiff can show that these requirements are
met, the class will be certified under Rule 23(b)(2) or (b)(3)3 3 depending
on whether the relief sought is predominately injunctive or monetary.

Some courts of appeals have held that Rule 23 of the Federal Rules will
be liberally construed in Title VII class actions. The rationale was that any
charge of race or sex discrimination was by definition an allegation of class
discrimination.3 1 The Supreme Court recently rejected this “across the
board” approach. It indicated in East Texas Motor Freight System, Inc.
v. Rodriquez35 that compliance with the Rule requirements of 23(a) is
absolutely mandatory in Title VII cases.

349. EEOC Dec. 75-268, 10 FEP Cases 1502 (1975).
350. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Bowe v. Colgate-

Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239
(3d Cir.), cert. deni&d, 421 U.S. 1011 (1975).

351. E.g., Piva v. Xerox Corp., 70 F.R.D. 378 (N.D. Cal. 1975); Senter v. General Motors
Corp., 532 F.2d 511 (6th Cir. 1976); Donaldson v. Pillsbury, 554 F.2d 825 (8th Cir. 1977); Cobb
v. Avon Products, Inc., 71 F.R.D. 652 (W.D. Pa. 1976).

352. E.g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S.
1011 (1975); Piva v. Xerox Corp., 70 F.R.D. 378 (N.D. Cal. 1975).

353. FED. R. Civ. P. 23.
354. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969).
355. 431 U.S. 395 (1977).

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EEO OBLIGATION

Under Title VII only one member of the class must file a discrimination
charge with the EEOC; all potential class members need not do so in order
to participate in the action and receive damages if they can show their
rights were violated within the statute of limitations triggered by the
charge.356

Under the Equal Pay Act and the Age Discrimination in Employment
Act a class action may be brought only on behalf of those who file a written
consent authorizing their participation in the action. 57 Additionally, all
participating class members must file a notice of intent to sue with the
Secretary of Labor.358

B. Types of Relief Awarded

Under Title VII, if the district court finds that a respondent has
“intentionally””35 engaged in an unlawful employment practice, it may, in
its discretion, enjoin the respondent from engaging in unlawful conduct
and may order such affirmative action as may be appropriate, including
but not limited to reinstatement or hiring of employees With or without
back pay.36” The prevailing party in a Title VII case may also recover
reasonable attorney’s fees.36 The Supreme Court has held that individuals
establishing a cause of action under the Act are entitled to equitable and
legal relief including, if appropriate, compensatory and punitive dam-
ages.”‘2 For example, damages for psychic injury caused by unlawful dis-
crimination may be awarded.

The most extensive and imaginative remedies awarded have arisen from
attacks on collective bargaining seniority systems. As discussed above, the
Supreme Court’s decision in Teamsters v. United States”3 sounds a death
knoll for court ordered reorganization of “bona fide” seniority systems.

The Supreme Court reaffirmed in Teamsters their holding in Franks v.
Bowman Transportation Co. :34 that identifiable victims of discrimination

356. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976); United Airlines v. Evans,
429 U.S. 917 (1977).

357. Equal Pay Act, 29 U.S.C.A. §216(b) (Supp. 1977); LaChappelle v. Owens-Illinois,
Inc., 64 F.R.D. 96 (N.D. Ga. 1974), aff’d, 513 F.2d 286 (5th Cir. 1975); Age Discrimination in
Employment Act, 29 U.S.C.A. §626(b) (1975) refers to 29 U.S.C.A. §216(b); Price v. Mary-
land Casualty Co., 391 F. Supp. 613, 615 (S.D. Miss. 1975).

358. Price v. Maryland Cas. Co., 391 F. Supp. 613; LaChappelle v. Owens-Illinois, Inc.,
64 F.R.D. 96.

359. See Part III (A) supra, at 728.
360. Section 706(g), 42 U.S.C.A. §2000e-5(g) (1974).
361. Section 706(k), 42 U.S.C.A. §2000e-5(k) (1974). This includes a prevailing defendant:

EEOC v. Datapoint Corp., 412 F. Supp. 406 (W.D. Tex. 1976); Williams v. General Foods
Corp., 492 F.2d 399 (7th Cir. 1974); Matyi v. Beer Bottlers Union Local No. 187, 392 F. Supp.
60 (E.D. Mo. 1974).

362. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1976).
363. 425 U.S. 990 (1977).
364. 424 U.S. 747 (1976).

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MERCER LAW REVIEW

may be granted seniority retroactive to. the date on which the post-Act
discrimination took place. Depending on the circumstances of the case, a
proper remedy could include a grant of “competitive status seniority” for
the purpose of computing such non-competitive benefits as pension rights
or vacation time.”5 To date, however, courts have refused to “bump” white
or male employees from existing positions on the basis of this seniority.3″

Additional affirmative remedies include preferential or accelerated hiring
of minorities or women.

Back pay is frequently awarded in all types of Title VII cases. Because
the statutory standard requires some type of discriminatory “intent,”
courts determining the size of the back pay award may evaluate the em-
ployer’s good or bad faith in relation to a challenged employment practice
and what affirmative action the employer has taken, if any, to eradicate
discriminatory practices. However, the absence of bad faith does not in
itself insulate the employer from back pay liability.3 1

7

Under the Civil Rights Act of 1866, the courts possess authority to award
general legal and equitable relief. 8 Liability for back pay under the 1866
Act can extend beyond the effective date of Title VII subject to the applica-
ble state statute of limitations which governs such actions .3

Actions under the Equal Pay Act may be maintained by the Secretary
of Labor or the aggrieved employee. In cases maintained by the Secretary,
federal courts are authorized to issue injunctions to restrain violations, and
to require the employer to make employees whole.3 70 In individual actions,
an employee may be awarded reasonable attorney’s fees, court costs, the
actual amount of wages lost, and an additional sum as liquidated damages.
The liquidated damage award may vary from zero to an amount equal to
lost wages, depending on the employer’s good faith. 7′ Willful violations of
the Equal Pay Act by an employer are criminal in nature and may subject

365. Id. For other cases involving seniority, see Chance v. Board of Examiners, 534 F.2d
993 (2d Cir. 1976); Acha v. Beame, 531 F.2d 648 (2d Cir. 1976); Waters v. Wisconsin Steel
Works of Int’l Harvester Co., 502 F.2d 1309 (7th Cir. 1974); Watkins v. United Steel Workers
Local No. 2369, 516 F.2d 41 (5th Cir. 1975); Patterson v. American Tobacco Co., 535 F.2d
257 (4th Cir. 1976).

366. The focus has been on awarding seniority to minorities for purposes of qualifying
them for vacant job openings. Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.
1976); EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); United States v. N.L.
Indus., Inc., 479 F.2d 354 (8th Cir. 1973); United States v. Chesapeake & 0. R.R., 471 F.2d
582 (4th Cir. 1972); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); Local
189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969).

367. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). See also Part III (A) supra, at
728.

368. Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975).
369. Id. See also Part V (C) infra at 743.
370. 29 U.S.C.A. §216(b) (Supp. 1977); 29 U.S.C.A. §217 (1975).
371. 29 U.S.C.A. §216(b) (Supp. 1977); 29 C.F.R. §800.166(b) (1976); Boll v. Federal

Reserve Bank of St. Louis, 365 F. Supp. 637 (E.D. Mo. 1973), aff’d, 497 F.2d 335 (8th Cir.
1974).

(Vol. 29

EEO OBLIGATION

the employer to a fine of not more than $10,000 or, upon a second convic-
tion, to imprisonment of not more than six months, or both. 72

In actions initiated by the Secretary of Labor or individuals under the
Age Discrimination in Employment Act, courts are authorized to grant
such legal and equitable relief as may be appropriate, including compelling
employment, reinstatement, or promotion, and requiring payment of lost
wages. 3″ Attorney’s fees and injunctions may be awarded in appropriate
cases, 374 as well as damages for pain and suffering. 7 5 Unless a willful viola-
tion is shown, an individual seeking recovery under the Act may only be
awarded the actual amount of lost wages, although in some cases, this
amount has included sums on account of pension and other benefits . 3 If

a “willful” violation is proven, liquidated damages in amounts up to wages
lost, in addition to actual wages lost, may be awarded.”‘

Sanctions may also be imposed against employers under Executive
Order 11246, the Rehabilitation Act of 1973, 37 and the Vietnam Era Veter-
ans’ Readjustment Act of 1974.171 Enforcement provisions relating to these
requirements differ from those utilized under the other civil rights and
discrimination acts in that their focus is primarily on administrative rather
than judicial review. Agencies enforcing these requirements need not resort
to voluntary conciliation or ultimate judicial action. Each may be enforced
by direct order of the agency after a charge has been lodged against an
employer and an administrative hearing conducted.

Under Executive Order 11246, the Secretary of Labor may:

(1) Publish the names of employers who fail to comply;
(2) Recommend to the Department of Justice that judicial action
be brought to enforce provisions of government contracts relating
to discrimination;
(3) Recommend to the EEOC or Department of Justice that pro-
ceedings be instituted under Title VII;
(4) Recommend to the Department of Justice that criminal pro-
ceedings be brought for furnishing the agency with false reports or
information;
(5) Cancel, terminate, or suspend a government contract or por-
tions of it (this action can be absolute or conditioned on the em-

372. 29 U.S.C.A. §216(a) (1965); 29 C.F.R. §800.166(c) (1976); United States v. Heilig,
137 F. Supp. 462 (D. Md. 1956).

373. 29 U.S.C.A. §626(b) (1975).
374. Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th Cir. 1974); Hodgson v. First

Federal S & L Ass’n, 455 F.2d 818 (5th Cir. 1972).

375. Rogers v. Exxon Research & Engineering Co., 404 F. Supp. 324 (D.N.J. 1975).
376. Ace Hardware, 495 F.2d 368; Bishop v. Jelleff Assocs., 398 F. Supp. 579 (D.D.C.

1974). But see Hodgson v. Ideal Corrugated Box Co., 8 E.P.D. 9805 (N.D.W. Va. 1974).
377. Section 7, 29 U.S.C.A. §626(b) (1975); 29 C.F.R. §800.166(b) (1976).
378. 29 U.S.C.A. §793 (1975).
379. 38 U.S.C.A. §§2011-2014 (Supp. 1977).

19781

MERCER LA W REVIEW

ployer’s future adherence to discrimination guidelines); or
(6) Provide that any government agency shall refrain from enter-
ing into further contracts or extensions of present contracts with
the offending employer. 80

Administrative remedies available to the Department of Labor under
the Rehabilitation Act of 1973 are similar. The Department may:

(1) Cause withholding of any progress payments due under the
contract;
(2) Terminate the contract; or
(3) Bar the employer from contracting with the government.3 1

8

Additionally, the Department of Labor may seek “appropriate judicial
action” which expressly includes specific performance of the affirmative
action clause of the contract. 3

1

The Vietnam Era Veterans’ Readjustment Act of 1974 provides that the
Secretary of Labor shall take such action as the facts and circumstances
of the case warrant, consistent with the terms of the contract involved and
with applicable laws and regulations 3 3

If an employer is found to have violated its obligations under the Veter-
ans’ Act, the contracting agency may withhold progress payments, termi-
nate the contract, or bar the contractor from future federal contracts. In
addition, the Director of the Office of Federal Contract Compliance Pro-
grams may seek judicial enforcement of the employer’s affirmative action
obligation set out in the contract.3 84

Executive Order 11246 does not expressly empower the OFCCP, the
compliance review agencies or private parties to bring lawsuits to enforce
its provisions. The majority of decided cases hold that there is no private
right of action directly against an employer under the Order.3″ However,
two cases have ruled that private parties have a right to sue the OFCCP
and/or compliance agencies to seek a mandamus order requiring that they
enforce the Executive Order.- These cases suggest that a private right of
action may ultimately be found to exist directly against an employer. 87

380. Exec. Order No. 11,246, 3 C.F.R. 339, 343, §209 (1964-1965 Compilation). For subse-
quent history of No. 11,246 see note 13, supra.

381. 41 C.F.R. §60-741.28 (1977).
382. Id.
383. 38 U.S.C.A. §2012 (Supp. 1977).
384. 41 C.F.R. §60-250.28 (1977).
385. Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir.), cert. denied, 389 U.S. 977

(1967); Braden v. University of Pitts., 343 F. Supp. 836 (W.D. Pa. 1972), rev’d on other
grounds, 477 F.2d I (3d Cir. 1973); Rackin v. University of Pa., 386 F. Supp. 992 (E.D. Pa.
1974); Traylor v. Safeway Stores, Inc., 402 F. Supp. 871 (N.D. Cal. 1975).

386. Legal Aid Society v. Brennan, 381 F. Supp. 125 (N.D. Cal. 1974); Lewis v. Western
Airlines, Inc., 379 F. Supp. 684 (N.D. Cal. 1974).

387. Legal Aid Society v. Brennan, 381 F. Supp. 125; Lewis v. Western Airlines, Inc., 379
F. Supp. 684.

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EEO OBLIGATION

Although cases have not arisen under the Vietnam Era Veterans’ Readjust-
ment Act or the Rehabilitation Act, it is probable that affirmative action
programs under these statutes will be susceptible to enforcement through
the mandamus technique if courts come to accept the holdings in the
Alameda and Western Airlines cases.

C. Limitations on Liability

All of the statutes dealing with remedies for discriminatory employment
practices are governed by limitation periods with respect to the recovery
of monetary relief. Under Title VII, back pay liability may not accrue from
a date more than two years prior to the filing of a charge with the EEOC.”8

Under both the Equal Pay Act and the Age Discrimination in Employment
Act, the statute of limitations for the recovery of lost pay is two years after
the cause of action accrued. If willful violations involving criminal prosecu-
tions are involved, the limitations period is three years after the cause of
action accrued. 89 The Civil Rights Act of 1866 has no express limitations
period, but the courts have determined that the most analagous state
statutes of limitations will govern. 90

There are other important judicial interpretations which limit liability
under Title VII and the 1866 Act. Thus, interim earnings or amounts
earnable with reasonable diligence by the person discriminated against
reduce any monetary relief awardable.3 9′ The courts are currently divided
on the question whether the amount of unemployment compensation re-
ceived by the discriminatee should operate to reduce back pay liability.32

Most important is the fact that an award of monetary relief under Title
VII is committed to the sound discretion of the court and may be elimi-
nated or reduced in appropriate cases. 33 Thus, where an employer adhered

388. Section 706(g), 42 U.S.C.A. §2000e-5(g) (1974).
389. Section 6, Portal to Portal Act, 29 U.S.C.A. §255(a) (1975); 29 US.C.A. §626(e)

(1975); see also 29 C.F.R. §800.166(b) (1976).
390. Johnson v. Railway Express Agency, 421 U.S. 454 (1975). These statutes vary from

state to state. See, e.g., Beckum v. Tennessee Hotel, 341 F. Supp. 991 (W.D. Tenn. 1971);
Holly v. Alliance Rubber Co., 380 F. Supp. 1128 (N.D. Ohio 1974); Jones v. United Gas
Improvement Corp., 383 F. Supp. 420 (E.D. Pa. 1975).

391. Section 706(g), 42 U.S.C.A. §2000e-5(g) (1974); Franks v. Bowman Transp. Co., 495
F.2d 398 (5th Cir. 1974), cert. denied, 419 U.S. 1050 (1975); Lowry v. Whitaker Cable Corp.,
348 F. Supp. 202 (W.D. Mo. 1972), aff’d, 472 F.2d 1210 (8th Cir. 1973); Waters v. Wisconsin
Steel Works of Int’l Harvester Co., 502 F.2d 1309 (7th Cir. 1974); Thornton v. East Tex. Motor
Freight, 497 F.2d 416 (6th Cir. 1974); EEOC v. Detroit Edison Co., 515 F.2d 301, 315 (6th
Cir. 1975).

392. Compare Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332 (S.D. Ind. 1967), aff’d in
part and rev’d in part on other grounds, 416 F.2d 711 (7th Cir. 1971) with Mabin v. Lear
Siegler, Inc., 4 FEP Cases 679 (W.D. Mich. 1971), aff’d, 457 F.2d 806 (6th Cir. 1972).

393. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Rodriquez v. East Tex. Motor
Freight, 505 F.2d 40 (5th Cir. 1974); Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.
1975).

19781

MERCER LAW REVIEW

to state female protective legislation in good faith and where the issue of
damages was unsettled with respect to particular issues, refusal to award
monetary relief to discriminatees has been upheld.9 4 A monetary award
has also been reduced when it appeared that the plaintiff had a record of
25% absenteeism. 9 ‘ The courts of appeals are split on the question of
whether the EEOC’s power to obtain relief in the form of back pay is
limited by the 180 day period included in the Act which precludes court
action by the charging party for 180 days so that the EEOC can investigate
the charge and pursue conciliation.”‘ The Fifth Circuit adopted the theory
that when the Commission is bringing suit for the recovery of sums due
individual citizens rather than the treasury, it is a private, not a public
action. The time period under §706(f)(2) was applied to bar an action for
back pay by the EEOC which was instituted more than 180 days after the
EEOC received the charge.397

The Ninth Circuit, on the other hand held that the 180 day period in
§706(f)(1) does not prevent the EEOC from obtaining back pay for individ-
uals. The court adopted the theory that the EEOC acts to vindicate a
public policy regardless of the relief sought. Back pay was considered a
catalyst which spurred compliance with the Act by encouraging unions and
employers to evaluate their employment practices.3 9

It should be noted that each of the courts of appeals which has decided
the issue has held that §706(f)(1) does not preclude suit by the EEOC after
the 180 day period has run. ”

394. Kober v. Westinghouse Elec. Co., 480 F.2d 240 (3d Cir. 1973); Manning v. Interna-
tional Union, 466 F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S. 946 (1973); Schaeffer v.
Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972); LeBlanc v. Southern Bell Tel., 460 F.2d 1228
(5th Cir.), cert. denied, 409 U.S. 990 (1972).

395. Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332 (S.D. Ind. 1967).
396. Section 706(g), 42 U.S.C.A. §2000e-5(g) (1974).
397. EEOC v. Griffin Wheel Co., 511 F.2d 456, aff’d on rehearing, 521 F.2d 223 (5th Cir.

1975); United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973).
398. EEOC v. Occidental Life Ins. Co., 535 F.2d 533 (9th Cir. 1976).
399. EEOC v. Duval Corp., 528 F.2d 945,949 (10th Cir. 1976); EEOC v. Meyer Bros. Drug

Co., 521 F.2d 1364, 1365 (8th Cir. 1975); EEOC v. E. I. dePont de Nemours & Co., 516 F.2d
1297 (3d Cir. 1976); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1356-59 (6th Cir. 1975);
EEOC v. Louisville & N. R.R., 505 F.2d 610 (5th Cir. 1974); EEOC v. Cleveland Mills, 502
F.2d 153 (4th Cir. 1974).

[Vol. 29

institutions defined in Title VII (41 C.F.R. § 60-1.5(a)(5)). While the regulations
contain a partial exemption for state and local government contractors, “edu-
cational institutions and medical facilities” are specifically excluded from this
exemption (41 C.F.R. § 60-1.5(a)(4)). The enforcing agency may hold compli-
ance reviews (41 C.F.R. § 60-1.20), receive and investigate complaints from
employees and applicants (41 C.F.R. §§ 60-1.21 to 60-1.24), and initiate admin-
istrative or judicial enforcement proceedings (41 C.F.R. § 60-1.26(a)(1)). It may
seek orders enjoining violations and providing other relief, as well as orders ter-
minating, canceling, or suspending contracts (41 C.F.R. § 60-1.26(b)(2)). The
enforcing agency may also seek to debar contractors from further contract
awards (41 C.F.R. § 60-1.27(b)).

The requirements of the Executive Orders are enforced by the Office of Fed-
eral Contract Compliance Programs (OFCCP), located within the U.S. Depart-
ment of Labor. The regulations require each federal contractor subject to the
Executive Orders to develop a written affirmative action program (AAP) for each
of its establishments. In November 2000, a provision was added at 41 C.F.R.
§ 60-2.1(d)(4) that permits federal contracts to develop AAPs organized by busi-
ness or functional unit rather than by geographical location. A procedural direc-
tive for determining whether a college or university is eligible to submit a
functional AAP can be found on the OFFCP Web site at http://www.dol.gov/esa.

The regulations interpreting the Executive Orders and explaining the
enforcement process were revised, and a final rule was published at 165 Fed.
Reg. No. 219 (November 13, 2000). The final rule can be accessed from the
OFFCP Web site.

The primary remedy for violation of the Executive Orders is cutoff of federal
funds and/or debarment from future contracts. Individuals alleging employment
discrimination by federal contractors have sought to file discrimination claims
in court, but have been rebuffed. For example, in Weise v. Syracuse University,
522 F.2d 397 (2d Cir. 1975), two women faculty members filed sex discrimina-
tion claims against the university under authority of the Executive Orders. Their
claims were dismissed; the court found no private right of action in the Execu-
tive Orders. Similar outcomes occurred in Braden v. University of Pittsburgh, 343
F. Supp. 836 (W.D. Pa. 1972), vacated on other grounds, 477 F.2d 1 (3d Cir.
1973), and Cap v. Lehigh University, 433 F. Supp. 1275 (E.D. Pa. 1977).17

Sec. 5.3. The Protected Classes

5.3.1. Race. As noted above, race discrimination claims may be brought
under Title VII (see Section 5.2.1 of this book), Section 1981 (Section 5.2.4), the
U.S. Constitution (Section 5.2.7), or federal Executive Orders (Section 5.2.8).
Race discrimination claims may also be brought under state nondiscrimination

406 Nondiscrimination and Affirmative Action in Employment

17Cases related to private rights of action under the Executive Orders are collected in Phillip E.
Hassman, Annot., “Right to Maintain Private Employment Discrimination Action Under Executive
Order 11246, as Amended, Prohibiting Employment Discrimination by Government Contractors
and Subcontractors,” 31 A.L.R. Fed. 108.

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laws.18 In “disparate treatment” race discrimination claims (see Section 5.2.1
above), as in other employment discrimination claims, an employee must
demonstrate that an adverse employment action was motivated by the individ-
ual’s race rather than by some “neutral” reason unrelated to race. Because direct
evidence of race discrimination (in the form of written or oral racist statements,
for example) is very rare, most plaintiffs must use indirect methods of proving
disparate treatment.

An individual alleging race discrimination may demonstrate that “similarly
situated” employees of a different race were treated better than the plaintiff. If
two employees are similar in skills, experience, job responsibilities, and job per-
formance, but are of different races, race discrimination may be the reason that
one employee experiences an adverse employment action while the similarly sit-
uated employee does not. However, if the plaintiff cannot identify a “compara-
tor,” proving race discrimination will be very difficult. For example, in Jackson
v. Northeastern Illinois University, 2001 U.S. App. LEXIS 25339 (7th Cir. 2001)
(unpublished), an African American building service worker fired for hitting his
supervisor was unable to identify a Caucasian employee who had engaged in the
same misconduct but was not terminated. In the absence of such a “similarly
situated” employee, said the court, the plaintiff could not prevail.

As noted in the discussion of Title VII in Section 5.2.1, colleges typically
defend against discrimination claims by asserting that there was a “legitimate
nondiscriminatory reason” to support the adverse employment action. Docu-
mented poor performance of the plaintiff will typically allow the college to pre-
vail unless there is direct evidence of race discrimination or a similarly situated
coworker of a different race who is treated more favorably. (For cases involving
successful defenses against alleged race discrimination by the use of docu-
mented poor performance, see Fortson v. Embry-Riddle Aeronautical University,
1998 U.S. Dist. LEXIS 20701 (N.D. Miss. 1998); and Chambers v. McClenney,
1999 U.S. App. LEXIS 329 (10th Cir. 1999) (unpublished).) Lack of funds may
also provide a legitimate nondiscriminatory reason for a termination if there is
no direct evidence of race discrimination (see Lewis v. Chattahoochie Valley
Community College, 136 F. Supp. 2d 1232 (M.D. Ala. 2001)).

The plaintiff must identify a specific adverse employment action that has
been taken, allegedly on the basis of the plaintiff’s race. Typically, termination,
discipline, demotion, or reducing an individual’s pay are adverse employment
actions. However, an involuntary lateral transfer that does not reduce an indi-
vidual’s salary may not be viewed as an adverse employment action (see, for
example, Adams and Moore v. Triton College, 2002 U.S. App. LEXIS 8622
(7th Cir. 2002) (unpublished)).

5.3.1. Race 407

18Cases involving race discrimination are collected in J. F. Ghent, Annot., “Racial Discrimination
in Hiring, Retention, or Assignment of Teachers—Federal Cases,” 3 A.L.R. Fed. 325. See also
Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Dis-
crimination Violative of Federal Constitution or Statutes—Public Employment Cases,” 168 A.L.R.
Fed. 1; and Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National
Origin Discrimination Violative of Federal Constitution or Statutes—Private Employment Cases,”
150 A.L.R. Fed. 1.

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Harassment on the basis of race is a form of race discrimination, and federal
courts have applied Supreme Court precedent from sexual harassment cases
(see Section 5.3.3.3) to claims of racial harassment. Racial harassment claims
may be brought under Title VII or Section 1981; the latter statute’s lack of a cap
on damages makes it likely that plaintiffs may file under both laws, as well as
state nondiscrimination laws. A dramatic example of a plaintiff’s success
occurred in Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), cert. denied,
535 U.S. 1018 (2002), in which the only African American employee of a small
company quit after five months because of coworkers’ daily racial jokes, which
were observed and condoned by Swinton’s supervisor. The court upheld a
$1 million punitive damage award; his back pay award was less than $6,000.
Conflicts between a supervisor and subordinate of different races, however, will
typically not support a claim of racial harassment unless actual racist language
is used. For example, in Trujillo v. University of Colorado Health Sciences Cen-
ter, 157 F.3d 1211 (10th Cir. 1998), a Hispanic employee’s claim of racial harass-
ment by his African American supervisor was rejected by the court, which
characterized the difficulties he faced as a “personality conflict” and upheld
summary judgment for the college.

Tribal colleges are immune from race discrimination lawsuits, according to
a federal appellate court. In Hagen v. Sisseton-Wahpeton Community College,
205 F.3d 1040 (8th Cir. 2000), the court ruled that because Indian tribes enjoy
sovereign immunity, tribal colleges may not be sued in federal courts. The
court reversed a jury award to two former employees of the college who alleged
that their one-year employment contracts had not been renewed because of
their race.

5.3.2. National origin and alienage. Claims of national origin dis-
crimination may be brought under Title VII, the U.S. Constitution, or federal
Executive Orders and, sometimes, under Section 1981. Title VII prohibits
discrimination “because of [an] individual’s . . . national origin” (42 U.S.C.
§ 2000e-2(a))—that is, discrimination based on the employee’s nationality. In
Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir.
1984), for example, the court held that the defendant had intentionally dis-
criminated against the plaintiff, a Mexican American, because of his national
origin. National origin claims are frequently combined with claims of race
and/or religious discrimination (Sections 5.3.1 & 5.3.6).

The U.S. Supreme Court has ruled that the statutory term “national origin”
does not cover discrimination on the basis of alienage—that is, discrimination
against employees who are not citizens of the United States (Espinoza v. Farah
Manufacturing Co., 414 U.S. 86 (1973)). But the Court cautioned in Espinoza
that a citizenship requirement may sometimes be part of a scheme of, or a
pretext for, national origin discrimination and that “Title VII prohibits discrim-
ination on the basis of citizenship [alienage] whenever it has the purpose or
effect of discriminating on the basis of national origin.” The Court also made
clear that aliens, as individuals, are covered by Title VII if they have been dis-
criminated against on the basis of race, color, religion, or sex, as well as national

408 Nondiscrimination and Affirmative Action in Employment

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origin. To implement the statute and case law, the EEOC has issued guidelines
barring discrimination on the basis of national origin (29 C.F.R. Part 1606).

Claims of alleged national origin discrimination brought under Title VII are
evaluated under the McDonnell Douglas test described in Section 5.2.1. An illus-
trative case is Castro v. Board of Trustees of the University of Illinois, 1999 U.S.
Dist. LEXIS 17303 (N.D. Ill. 1999), in which an individual of Puerto Rican
descent applied for and was denied twenty-seven jobs at the University of Illi-
nois at Chicago. The court ruled that Castro had established a prima facie case
of national origin discrimination for three of the twenty-seven jobs because the
individuals who were hired, who were not of Puerto Rican descent, had simi-
lar or lesser credentials than Castro. The court granted summary judgment to
the university on Castro’s discrimination claims for twenty-four of the twenty-
seven positions, but denied summary judgment with respect to the three for
which Castro had established a prima facie case.

Although Espinoza prevents plaintiffs from attacking citizenship (alienage)
discrimination under Title VII, such plaintiffs may be more successful making
constitutional claims. In Chacko v. Texas A&M University, 960 F. Supp. 1180
(S.D. Tex. 1997), affirmed without opinion, 149 F.3d 1175 (5th Cir. 1998), a
Canadian citizen was terminated shortly after she was hired, allegedly because
coworkers complained that the university was hiring “foreigners.” With respect
to her Title VII claim of national origin discrimination, the federal court awarded
the university summary judgment, characterizing it as “citizenship” discrimi-
nation rather than national origin discrimination. But the court allowed the
plaintiff’s constitutional claims against individuals (but not against the institu-
tion) to proceed under Sections 1981 and 1983 (see Section 5.2.4 of this book).
Her claims against the institution were dismissed on Eleventh Amendment
immunity grounds.

Employers’ requirements that employees speak only English while at work
have stimulated claims of national origin discrimination. Although the EEOC
guidelines state that English-only rules are a form of prohibited discrimination
under Title VII (29 C.F.R. § 1606.7), most federal courts have upheld these rules
if the employer has articulated a legitimate business reason (for example, cus-
tomer service, safety) for the rules. (See, for example, Garcia v. Gloor, 618 F.2d
264 (5th Cir. 1980); and Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).) A
federal trial court ruled that Cornell University could impose a requirement that
employees speak English on the job because the interpersonal conflicts between
the plaintiff and her coworkers made the requirement a business necessity
(Roman v. Cornell University, 53 F. Supp. 2d 223 (N.D.N.Y. 1999)). However, if
the court finds that the rule was applied in a manner indicating national origin
discrimination rather than a legitimate business concern, the court may rule for
an employee terminated for violating the rule. For example, the court in Saucedo
v. Brothers Wells Service, 464 F. Supp. 919 (S.D. Tex. 1979), ruled that an
employee terminated for speaking two words of Spanish on the job had been a
victim of national origin discrimination.

The Arizona Supreme Court invalidated a state constitutional provision
requiring state employees to speak only English on the job as a violation of the

5.3.2. National Origin and Alienage 409

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First Amendment of the U.S. Constitution (Ruiz v. Hull, 957 P.2d 984 (Ariz.
1998), cert. denied, 525 U.S. 1093 (1999)). (The uncertain legality of English-
only rules and a proposal to fully implement the EEOC guidelines are discussed
in Mark Colon, Note, “Line Drawing, Code Switching, and Spanish as Second-
Hand Smoke: English-Only Workplace Rules and Bilingual Employees,” 20 Yale
L. & Pol’y Rev. 227 (2002).)

State laws requiring colleges and universities to certify that non-native U.S.
residents who are teaching assistants are proficient in English may be chal-
lenged as a violation of Title VII or Section 1981, in that no such standards are
applied to individuals born in the United States. Testing the language proficiency
of all teaching assistants should prevent discrimination claims. A statement in
the institution’s college catalog that instruction will be conducted in English
would make English proficiency a bona fide occupational qualification, and as
long as that requirement is applied to all instructors, it should not run afoul of
the nondiscrimination laws.19 Similarly, a requirement that unaccented English
is required for a certain position would also be vulnerable to a national origin
claim if the individual could be understood.20 (For a discussion of bias against
individuals with accents, see M. Matsuda, “Voices of America: Accent, Antidis-
crimination Law, and a Jurisprudence for the Last Reconstruction,” 100 Yale L.J.
1329 (1991).)

The terrorist attacks of September 11, 2001, have stimulated increased atten-
tion to potential national origin discrimination. The EEOC, the U.S. Department
of Justice, and the U.S. Department of Labor have issued a “Joint Statement
Against Employment Discrimination in the Aftermath of the September 11
Terrorist Attacks,” as well as a set of questions and answers concerning the
employee rights and employer responsibilities regarding Muslims, Arabs, South
Asians, and Sikhs. These statements may be found at http://www.eeoc.gov.

In addition to Title VII and Section 1981, the Immigration Reform and Con-
trol Act of 1986 (Pub. L. No. 99-603, 100 Stat. 3359, codified in scattered sec-
tions of 8 U.S.C.) may pose potential liability for college and universities with
regard to race and national origin. The Act prohibits employers from hiring
workers who cannot document that (1) they are in the United States legally and
(2) they are legally entitled to work. Employers must ask applicants for proof
of both elements, and civil penalties may be assessed against the employer for
each undocumented worker hired. The law also forbids discrimination against
aliens who are lawfully entitled to work and describes the complaint procedures
available through the U.S. Department of Justice (8 U.S.C. § 1324b). The law is
discussed in more detail in Section 4.6.5.

410 Nondiscrimination and Affirmative Action in Employment

19Cases related to requiring English proficiency are collected in Tim A. Thomas, Annot.,
“Requirement That Employees Speak English in Workplace as Discrimination in Employment
Under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. §§ 2000e et seq.),” 90 A.L.R. Fed. 806.
20Cases related to employment denials based on an individual’s accent are collected in Timothy
M. Hall, Annot., “When Does Adverse Employment Decision Based on Person’s Foreign Accent
Constitute National Origin Discrimination in Violation of Title VII of Civil Rights Act of 1964?”
104 A.L.R. Fed. 816.

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With the advent of the Immigration Reform and Control Act, discrimination
claims by individuals denied employment because the employer believes they
may not be in the country lawfully have risen. (For discussion of this problem
and a comparison of IRCA’s antidiscrimination provisions with those of Title VII,
see L. S. Johnson, “The Antidiscrimination Provisions of the Immigration Reform
and Control Act,” 62 Tulane L. Rev. 1059 (1988). See also Comment, “IRCA’s
Antidiscrimination Provisions: Protections Against Hiring Discrimination in
Private Employment,” 25 San Diego L. Rev. 405 (1988).)

5.3.3. Sex

5.3.3.1. Overview. Claims of sex discrimination may be brought under
Title VII of the Civil Rights Act of 1964 (see Section 5.2.1 of this book), the
Equal Pay Act (Section 5.2.2), the Constitution, the Executive Orders, or state
civil rights laws.21 In addition to claims that an individual was subject to an
adverse employment action because of his or her sex, claims of sexual harass-
ment may be brought under Title VII because sexual harassment is a form of
discrimination on the basis of sex. Discrimination on the basis of pregnancy is
also a form of sex discrimination, and is specifically prohibited by Title VII. In
addition, differential treatment by sex in retirement plans has been found to vio-
late Title VII. And there has been considerable litigation by coaches of women’s
sports alleging discrimination in salary and coaching assignments. Although
Title VII does not outlaw discrimination on the basis of sexual orientation, sev-
eral states have enacted laws prohibiting such discrimination (see Section 5.3.7).

Most sex discrimination claims against colleges have been brought by women
faculty members. Illustrative cases are discussed in Section 6.4. However, sev-
eral cases brought by nonfaculty employees illustrate significant principles in sex
discrimination litigation.

Treating a similarly situated employee of one sex more favorably than a cor-
responding employee of the opposite sex may violate Title VII or state nondis-
crimination laws. For example, in Lawley v. Dept. of Higher Education, 36 P.3d
1239 (Colo. 2001), the state supreme court ruled that the university had termi-
nated a female director of parking in order to retain two male subordinates. The
court ordered the university to reinstate the plaintiff to her former position. On
the other hand, another federal appellate court reversed a trial court judgment
in favor of a research assistant. In Woodruff v. Ohman, 2002 U.S. App. LEXIS
2087 (6th Cir. 2002) (unpublished), the plaintiff had claimed that her supervi-
sor had mistreated her on the basis of her sex. The trial court had awarded puni-
tive damages and injunctive relief in the form of an apology from the former

5.3.3.1. Overview 411

21Cases and authorities are collected at Thomas Fusco, Annot., “What Constitutes Sex Discrimina-
tion in Termination of Employee so as to Violate Title VII of Civil Rights Act of 1964 (42 U.S.C.
§§ 2000e-2),” 115 A.L.R. Fed. 1; Wesley Kobylak, Annot., “Disparate Impact Test for Sex
Discrimination in Employment Under Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2),”
68 A.L.R. Fed. 19; Thomas Fusco, Annot., “What Constitutes Constructive Discharge of Employee
Due to Sex Discrimination so as to Violate Title VII of Civil Rights Act of 1964 (42 U.S.C.
§§ 2000e-2),” 116 A.L.R. Fed. 1.

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supervisor. The appellate court noted that the trial court had not made specific
findings concerning whether the plaintiff had been treated less favorably than
similarly situated male research assistants, and thus liability had not been
established.

Stereotyping an individual because of his or her gender may provide evidence
of sex discrimination, as in Price Waterhouse v. Hopkins, the U.S. Supreme Court
case discussed in Section 5.2.1. But in Crone v. United Parcel Service, 301 F.3d
942 (8th Cir. 2002), a federal appellate court sided with the company that had
refused to promote a female employee who was not “confrontational enough”
for promotion to a job supervising truck drivers; the court affirmed the dismissal
of the plaintiff’s sex discrimination claims. The court ruled that being “con-
frontational” was a bona fide occupational qualification for the position; it was
the plaintiff’s personality, not her gender, that disqualified her from the position.

5.3.3.2. Pregnancy and health benefits discrimination. The Pregnancy Dis-
crimination Act of 1978 makes it a violation of Title VII for an employer to
discriminate on the basis of pregnancy, childbirth, or related illnesses in employ-
ment opportunities, health or disability insurance programs, or sick leave
plans.22 Regulations issued by the Equal Employment Opportunity Commission
pursuant to this law may be found at 29 C.F.R. § 1604.10 and Appendix, “Ques-
tions and Answers on the Pregnancy Discrimination Act.” Pregnancy-related
conditions must be treated the same as any other disabilities, and health insur-
ance for pregnancy-related conditions must extend not only to female employ-
ees but also to wives of male employees (Newport News Shipbuilding and Dry
Dock Co. v. EEOC, 462 U.S. 669 (1983)). Health benefit plans must also provide
the same level of prescription coverage to women as to men. A federal trial
court ruled that Title VII prohibits employers from excluding contraceptives used
by women from a prescription drug plan if more comprehensive coverage is pro-
vided to men (Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash.
2001)).

Some states have enacted laws that attempt to “level the playing field” for
women, who have the biological responsibility for bearing children, in order to
ease their return to work. For example, a California law requires employers
to give pregnant employees unpaid maternity leave and to reinstate them to the
same or an equivalent position upon their return to work. That law was chal-
lenged in California Federal Savings & Loan v. Guerra, 479 U.S. 272 (1987), in
which the employer claimed that Title VII did not permit more favorable treat-
ment of an individual because of pregnancy, but merely mandated that preg-
nant women not be discriminated against. The Supreme Court ruled that the

412 Nondiscrimination and Affirmative Action in Employment

22Cases and authorities are collected at Paul A. Fischer, Annot., “Pregnancy Leave or Maternity
Leave Policy, or Lack Thereof, as Unlawful Employment Practice Violative of Title VII of the Civil
Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.),” 27 A.L.R. Fed. 537; Sheila A. Skojec, Annot.,
“Job Discrimination Against Unwed Mothers or Unwed Pregnant Women as Proscribed Under
Pregnancy Discrimination Act (42 U.S.C.A. § 2000e(k)),” 91 A.L.R. Fed. 178; J. A. Bryant, Jr.,
Annot., “Termination of Employment Because of Pregnancy as Affecting Right to Unemployment
Compensation,” 51 A.L.R.3d 254; Shauna Cully Wagner, Annot., “Discrimination Against Preg-
nant Employee as Violation of State Fair Employment Laws,” 99 A.L.R.5th 1.

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Pregnancy Discrimination Act provided a “floor” of protection for pregnant
employees, but not a ceiling, and that Title VII did not preempt state laws that
recognized the special circumstances of pregnant employees.23

However, in a challenge to Missouri’s unemployment compensation law,
which denies benefits to women who leave work because of the birth of a child,
the Supreme Court ruled that Title VII does not prevent a state from categoriz-
ing a resignation on account of the birth of a child as a voluntary resignation,
resulting in ineligibility for unemployment benefits (Wimberly v. Labor & Indus-
trial Relations Commission, 479 U.S. 511 (1987)). (For discussion of state unem-
ployment compensation laws, see Section 4.6.7.)

Another issue related to pregnancy, or potential pregnancy, is the lawfulness
of employer policies that exclude pregnant or potentially pregnant employees
from work sites where exposure to substances could cause birth defects. Lab
assistants, postdoctoral fellows, faculty, or students may work with fetotoxins.
And some nonacademic employers have excluded from such jobs all women
who were capable of becoming pregnant.24 They have done so in order to avoid
liability for litigation by children seeking a remedy for birth defects allegedly
traceable to their mothers’ workplace exposure to fetotoxins.

These “fetal vulnerability” policies were challenged in United Auto Workers v.
Johnson Controls, 499 U.S. 187 (1991). The company, which manufactures auto-
mobile batteries, argued that exposure to the lead used in the manufacturing
process could cause birth defects, and that permitting women to work with the
lead was unsafe. The company excluded all women capable of becoming
pregnant—unless they could prove that they were unable to conceive a child—
from the high-paying jobs involving lead exposure; but the company permitted
men, even those who wished to father children, to work in these jobs.

A unanimous Supreme Court ruled that fetal vulnerability policies that
excluded only women constituted intentional disparate treatment discrimina-
tion, and rejected the company’s argument that, on the grounds of safety, inabil-
ity to become pregnant was a bona fide occupational qualification for a position
involving exposure to fetotoxins. The Court stated that the BFOQ is a narrow
concept and is used only in “special situations” (499 U.S. at 201). The opinion
clarifies the concept of BFOQ in the following manner:

Our case law . . . makes it clear that the safety exception is limited to
instances in which sex or pregnancy actually interferes with the employee’s
ability to perform the job. This approach is consistent with the language of the
BFOQ provision itself, for it suggests that permissible distinctions based on sex
must relate to ability to perform the duties of the job [499 U.S. at 204].

5.3.3.2. Pregnancy and Health Benefits Discrimination 413

23The federal Family and Medical Leave Act of 1993 (Pub. L. No. 103-3) requires employers with
fifty or more employees to grant up to twelve weeks of unpaid leave each year to an employee
for the care of a sick, newborn, or recently adopted child, or a seriously ill family member, or for
the employee’s own serious health condition. This law is discussed in Section 4.6.4.
24Cases regarding fetal vulnerability policies are collected in Wesley Kobylak, Annot., “Exclusion
of Women from Employment Involving Risk of Fetal Injury as Violative of Title VII of Civil Rights
Act of 1964 (42 U.S.C.S. §§ 2000e et seq.),” 66 A.L.R. Fed. 968.

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Given the language of Johnson Controls, it is unlikely that a college or univer-
sity could successfully specify gender as a BFOQ for jobs involving exposure to
fetotoxins, or for virtually any other job either.

5.3.3.3. Sexual harassment. Much attention has been given to the issue of
sexual harassment in recent years. The number of sexual harassment claims by
students, staff, and faculty is growing, as individuals become aware that such
conduct is prohibited by law, whether the target is an employee or a student.
Sexual harassment of staff and faculty is addressed in this Section; harassment
of students is discussed in Sections 8.1.5 and 9.3.4.

Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964
(discussed in Section 5.2.1) because it is workplace conduct experienced by an
individual on the basis of his or her sex. It is also a violation of Title IX of the
Education Amendments of 1972 (discussed in Section 5.2.3), although it may
be difficult for an employee to state a sexual harassment claim under Title IX
rather than under Title VII. Sexual harassment victims may be male or female,
and harassers may be of either gender as well. Furthermore, same-sex sexual
harassment is also a violation of Title VII and Title IX.

The EEOC’s guidelines prohibiting sexual harassment expansively define sex-
ual harassment and establish standards under which an employer can be liable
for harassment occasioned by its own acts as well as the acts of its agents and
supervisory employees. The guidelines define sexual harassment as:

(a) . . . Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a term or
condition of an individual’s employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive working environment . . . [29 C.F.R. § 1604.11].

Whether or not the alleged harasser is an employee, if the target of the harass-
ment is an employee, the employer may be liable for the unlawful behavior.
Because the EEOC guidelines focus on both speech and conduct, the question of
the interplay between sexual harassment and academic freedom arises, particu-
larly in the classroom context. This interplay is discussed in Sections 7.2.2
and 9.3.4.

Two forms of sexual harassment have been considered by the courts, and
each has a different consequence with regard to employer liability and poten-
tial remedies. Harassment that involves the exchange of sexual favors for
employment benefits, or the threat of negative action if sexual favors are not
granted, is known as “quid pro quo harassment.” The U.S. Supreme Court
addressed this form of sexual harassment for the first time in Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986), ruling that, if quid pro quo harassment were
proven, employer liability under Title VII would ensue even if the victim had
not reported the harassment. Using principles of agency law, the Court asserted

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that harassment involving an actual or threatened change in terms and condi-
tions of employment would result in a form of strict liability for the employer.25

The Court did not elaborate on the showing that the plaintiff must make to
demonstrate that the employer “knew or should have known,” but it did men-
tion two tests to assist courts in determining whether a plaintiff’s decision not to
report alleged sexual harassment was reasonable:

1) the employer should have a clearly-worded policy prohibiting sexual harass-
ment in the workplace that is communicated to all employees;

2) the employer should have a system for reporting sexual harassment that pro-
vides an alternate channel so that the victim, if harassed by a supervisor, can
avoid the traditional complaint procedure of discussing the problem with that
supervisor [477 U.S. at 71–73].

The other form of harassment, the creation of a hostile or offensive environ-
ment, may involve virtually anyone that the target employee encounters because
of the employment relationship. Supervisors, coworkers, clients, customers, and
vendors have been accused of sexual harassment. (For an example of potential
university liability for harassment of an employee by a homeless individual who
frequented the law school library, see Martin v. Howard University, 1999 U.S.
Dist. LEXIS 19516 (D.D.C. 1999).) If the allegations are proven, and if the
employer cannot demonstrate that it responded appropriately when it learned
of the harassment, the employer may be found to have violated Title VII or
state law.

The U.S. Supreme Court has decided several cases involving hostile envi-
ronment sexual harassment, beginning with Harris v. Forklift Systems, 510 U.S.
17 (1993). In Harris, the plaintiff had demonstrated that her supervisor had
repeatedly engaged in verbal sexual harassment. The major issue in the case
was not whether the behavior was harassment (the defense had conceded that
it was), but whether the plaintiff must demonstrate serious psychological harm
in order to convince a court that the harassment was sufficiently severe and per-
vasive to constitute a “hostile or offensive environment.” In a unanimous opin-
ion, the U.S. Supreme Court rejected the argument that serious harm must be
demonstrated. The Court determined that the harassing conduct itself is unlaw-
ful, and whether it has a psychological, or even a financial, impact on the
plaintiff is irrelevant.

Although the standard for quid pro quo harassment is clear in that the
accused harasser must have the power to affect the target’s terms and condi-
tions of employment, the standard for establishing hostile or offensive envi-
ronment is less clear, and is particularly fact sensitive. Name calling, sexual
jokes, sexual touching, sexually explicit cartoons, and other sexual behavior by

5.3.3.3. Sexual Harassment 415

25Cases and authorities are collected at Ethel R. Alston, Annot., “Sexual Advances by Employee’s
Superior as Sex Discrimination Within Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e
et seq.),” 46 A.L.R. Fed. 224; Linda A. Sharp, Annot., “Workers’ Compensation as Precluding
Employee’s Suit Against Employer for Sexual Harassment in the Workplace,” 51 A.L.R.5th 163.

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supervisors or coworkers have been found to constitute sexual harassment (see,
for example, Alston v. North Carolina A&T State University, 304 F. Supp. 2d 774
(M.D.N.C. 2004)). Furthermore, vandalism or harassing conduct of a nonsex-
ual nature directed at a target because of his or her gender has also been found
to violate Title VII, sometimes as sexual harassment and sometimes as sex dis-
crimination (see, for example, Hall v. Gus Construction Co., 842 F.2d 1010 (8th
Cir. 1988)).

Words alone may be sufficient to constitute sexual harassment. In a case
involving a female faculty member, Jew v. University of Iowa, 749 F. Supp. 946
(S.D. Iowa 1990), false rumors that the plaintiff had engaged in a sexual rela-
tionship with her department chair in order to obtain favorable treatment were
found to constitute actionable sexual harassment, and the institution was
ordered to promote the plaintiff and to give her back pay and attorney’s fees.
But a single remark, even if “crude,” will probably not be sufficient to establish
a claim of sexual harassment, according to the U.S. Supreme Court (Clark
County School District v. Breeden, 532 U.S. 268 (2001)).

The U.S. Court of Appeals for the Ninth Circuit, in Jordan v. Clark, 847 F.2d
1368 (9th Cir. 1988), described the showing that the plaintiff must make in order
to demonstrate a hostile environment. The plaintiff must prove:

1) that he or she was subjected to demands for sexual favors, or other verbal or
physical conduct of a sexual nature;

2) that this conduct was unwelcome;

3) that the conduct was sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment
[847 F.2d at 1373].

But the definition of an “abusive working environment” has not been uniformly
interpreted. Establishing whether the conduct is sufficiently severe or pervasive,
and whether the plaintiff’s claim that the behavior was offensive meets the stan-
dard for liability, has been a problem for the courts.

The U.S. Court of Appeals for the Ninth Circuit created a special standard by
which to determine whether the complained-of conduct constituted a hostile
environment. In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), the court created
the “reasonable woman” standard, in which the court assumes the perspective
of a reasonable person of the plaintiff’s gender, since “conduct that many men
consider unobjectionable may offend many women” (924 F.2d at 878).

EEOC guidelines use the “reasonable person” standard (Policy Guidance on
Sexual Harassment, available at http://www.eeoc.gov), but several state courts
have decided that the “reasonable woman” standard is appropriate (see, for
example, Lehman v. Toys ‘R’ Us, 626 A.2d 445 (N.J. 1993)). While the U.S.
Supreme Court did not discuss the question of standards in Harris, Justice
O’Connor appeared to use the “reasonable person” rather than the “reasonable
woman” standard. (For a brief discussion of interpretation problems related to
the “reasonable woman” standard, see E. H. Marcus, “Sexual Harassment
Claims: Who Is a Reasonable Woman?” 44 Labor L.J. 646 (1993).)

416 Nondiscrimination and Affirmative Action in Employment

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As sexual harassment jurisprudence developed in the federal courts, there
was disagreement as to whether an employer could escape liability for harass-
ment if it were unaware of the harassment or if no negative employment action
had been taken. In 1998, the U.S. Supreme Court issued opinions in two cases
that crafted guidelines for employer responses to harassment complaints, and
also created an affirmative defense for employers who had acted in good faith.
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and in Burlington Indus-
tries v. Ellerth, 524 U.S. 742 (1998), the Court addressed the issue of an
employer’s liability for a supervisor’s verbal sexual harassment when no nega-
tive employment action had been taken against the target of the harassment. In
both cases, supervisors had made numerous offensive remarks based on the tar-
gets’ gender and had threatened to deny them job benefits. Neither of the plain-
tiffs had filed an internal complaint with the employer; both had resigned and
filed a sexual harassment claim under Title VII. The employers in both cases
had argued that, because no negative employment actions were taken against
the plaintiffs, and because the plaintiffs had not notified the employer of the
alleged misconduct, the employers should not be liable under Title VII.

The Supreme Court rejected this argument, ruling that an employer can be
vicariously liable for actionable discrimination caused by a supervisor. The
employer, however, may assert an affirmative defense that examines the rea-
sonableness of the employer’s and the target’s conduct. If the employer had not
circulated a policy against sexual harassment, had not trained its employees con-
cerning harassment, and had not communicated to employees how to file a
harassment complaint, then the target’s failure to use an internal complaint
process might be completely reasonable, according to the Court. But if the
employer had been proactive in preventing and responding to sexual harassment,
then a plaintiff’s failure to use an internal complaint process might not be
reasonable.

The Court explained that the employer can establish an affirmative defense
to a sexual harassment claim if it can demonstrate:

(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior and

(b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise [524 U.S. at 807].

The Court’s rulings in Ellerth and Faragher blur the previous distinction
between liability for quid pro quo harassment and liability for hostile environ-
ment harassment. But the cases also recognize an important defense for those
“good employers” who have developed clear policies, advised employees of the
complaint process, and conducted training about avoiding harassment.
The approach taken by the Court has subsequently been applied to litigation
concerning harassment on the basis of race (Wright-Simmons v. The City of
Oklahoma City, 155 F.3d 1264 (10th Cir. 1998)).

An example of a college’s successful use of the affirmative defense is Gawley
v. Indiana University, 276 F.3d 301 (7th Cir. 2001). A female police officer alleged

5.3.3.3. Sexual Harassment 417

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that she had endured verbal and physical sexual harassment by a supervisor for
a period of seven months. At that point, the plaintiff filed a formal complaint
under the university’s harassment complaint process. The university investi-
gated promptly, issued a report finding that harassment had occurred, and the
harassment stopped as soon as the report was issued. The court ruled that
the plaintiff’s delay in reporting the harassment was unreasonable, and that,
given the university’s response when it learned of the harassment, filing a com-
plaint promptly would have ended the harassment at a much earlier point in
time. The appellate court affirmed the trial court’s award of summary judgment
to the university.

In order to take advantage of the Faragher/Ellerth affirmative defense, the
employer must demonstrate that its policy effectively communicates to super-
visors how they should handle harassment complaints and provides an effec-
tive mechanism for bypassing the supervisor should that individual be the
alleged harasser. In Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998),
the Court ruled that the college had not established an affirmative defense
because its complaint procedure was inadequate and it did not take timely and
effective remedial action. The court criticized the college’s harassment policy
because it did not discuss the responsibilities of a supervisor who learned of
alleged harassment through informal means. Furthermore, said the court, the
unavailability of individuals to receive harassment complaints during
the evening or on weekends, when the college was open and students and
employees were present, was additional evidence of an ineffective harassment
policy.

The U.S. Supreme Court addressed the question of whether a plaintiff who
quit as a result of exposure to a sexually hostile work environment could estab-
lish a “constructive discharge” theory, and if so, whether the employer then lost
the benefit of the Faragher/Ellerth affirmative defense. In Pennsylvania State
Police v. Nancy Drew Suders, 542 U.S. 129 (2004), the Court, in an 8-to-1 ruling,
determined that the plaintiff could establish constructive discharge by showing
that the abusive work environment “became so intolerable that her resignation
qualified as a fitting response.” The Court stated that the employer would not
be able to use the affirmative defense if a supervisor’s “official act” (such as
demotion or discipline) precipitated the constructive discharge, but that absent
such a “tangible employment action,” the affirmative defense would be avail-
able to employers if the employee resigned and then established a constructive
discharge.

Consensual relationships that turn sour may result in sexual harassment
claims and liability for the college. For example, in Green v. Administrators of
the Tulane Education Fund, 284 F.3d 642 (5th Cir. 2002), a former office man-
ager for a department chair alleged that the chair harassed her because their
sexual relationship had ended and because the chair’s new love interest insisted
that the plaintiff be fired. Although the university provided evidence that it had
attempted to transfer the plaintiff to another position and had attempted to
ensure that the chair did not retaliate against her, a jury reached a verdict for

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the plaintiff and awarded her $300,000 in compensatory damages, in addition to
back pay and front pay awards, and more than $300,000 in attorney’s fees. The
trial court had not allowed the jury to address the plaintiff’s claim for punitive
damages.

Although the appellate court upheld the jury award, it agreed with the uni-
versity’s argument that the standard for awarding punitive damages had not
been met. Analyzing the facts under the standard established by the U.S.
Supreme Court in Kolstad v. American Dental Association, 527 U.S. 526 (1999),
the appellate court held that because the university had attempted in good faith
to respond to the plaintiff’s complaints about the chair’s behavior, its behav-
ior did not meet the “malice” or “reckless indifference” showing required by
Kolstad.

Although most federal courts have ruled that liability for sexual harassment
under Title VII is corporate rather than individual, some state laws provide for
individual liability of supervisors for harassment (see, for example, Matthews v.
Superior Court, 40 Cal. Rptr. 2d 350 (Cal. App. 2 Dist. 1995)). (For a discussion
of individual liability under Title VII, see Scott J. Connolly, Note, “Individual
Liability of Supervisors for Sexual Harassment Under Title VII: Courts’ Reliance
on the Rules of Statutory Construction,” 42 B.C. L. Rev. 421 (2001).)

Although Title VII does not forbid harassment on the basis of sexual orien-
tation, it does permit claims of same-sex sexual harassment if the target can
demonstrate that the harassment was based on the sex of the target. The U.S.
Supreme Court addressed this issue for the first time in Oncale v. Sundowner
Offshore Services, 523 U.S. 75 (1997). The Court ruled that a claim of male-to-
male harassment was cognizable under Title VII if the plaintiff could demon-
strate that the offensive conduct occurred “because of” his gender. In a
unanimous opinion, the Court, through Justice Scalia, stated that “[Title VII]
does not reach genuine but innocuous differences in the ways men and women
routinely interact with members of the same sex and of the opposite sex. [The
law] forbids only behavior so objectively offensive as to alter the ‘conditions’
of the victim’s employment” (523 U.S. at 81).

Same-sex sexual harassment claims have increased substantially since
the Court’s ruling in Oncale (see Reed Abelson, “Men, Increasingly, Are the
Ones Claiming Sex Harassment by Men,” New York Times, June 10, 2001, p. 1).
Courts have allowed plaintiffs to state claims of same-sex sexual harassment if
the alleged harasser is homosexual. For example, in Mota v. University of Texas
Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001), the appellate court
affirmed an award of back pay, front pay, and compensatory damages and attor-
ney’s fees to a male professor harassed and retaliated against by a male supe-
rior whose sexual advances he had rejected. The trial judge had given the
plaintiff a substantial award of front pay because, after the jury returned a ver-
dict of retaliation against the plaintiff by the university, the university president
sent an e-mail message to eight thousand university employees stating that the
plaintiff had not been terminated but had failed to return from a leave of
absence. Because of those comments, the trial judge added five years of front

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pay to the plaintiff’s original front pay award, reasoning that such negative
remarks would make it difficult for the plaintiff to find another position.

In other cases, plaintiffs who can demonstrate that they are harassed because
of hatred or hostility toward them because of their gender may be allowed to
state same-sex harassment claims. For example, a male employee who was ver-
bally harassed by male coworkers because he was viewed as effeminate pre-
vailed in his claim of sexual harassment in Nichols v. Azteca Restaurant
Enterprises, 256 F.3d 864 (9th Cir. 2001). The court sided with the plaintiff’s
argument that the Supreme Court’s theory developed in Price Waterhouse v.
Hopkins (discussed in Section 5.2.1) should apply in this case, stating that the
verbal abuse that the plaintiff endured was “closely linked to gender.”

(For a discussion and analysis of same-sex sexual harassment claims in both
academic and nonacademic settings, see Mary Ann Connell, “Evolving Law in
Same-Sex Harassment and Sexual Orientation Discrimination,” 23rd Annual
National Conference on Law and Higher Education, Stetson University College
of Law, 2002. See also Nailah A. Jaffree, Note, “Halfway Out of the Closet:
Oncale’s Limitations in Protecting Homosexual Victims of Sex Discrimination,”
54 Fla. L. Rev. 799 (2002).)

Subsection (f) of the EEOC guidelines emphasizes the advisability of imple-
menting clear internal guidelines and sensitive grievance procedures for resolv-
ing sexual harassment complaints. The EEOC guidelines’ emphasis on prevention
suggests that the use of such internal processes may alleviate the postsecondary
institution’s liability under subsections (d) and (e) and diminish the likelihood
of occurrences occasioning liability under subsections (c) and (g). Title IX
requires grievance procedures.

In light of the social and legal developments, postsecondary institutions
should give serious attention and sensitive treatment to sexual harassment
issues. Sexual harassment on campus may be not only an employment issue
but, for affected faculty and students, an academic freedom issue as well.
Advance preventive planning is the key to successful management of these
issues, as the EEOC guidelines indicate. Institutions should involve the aca-
demic community in developing specific written policies and information on
what the community will consider to be sexual harassment.

5.3.3.4. Application to athletics coaches. Although there have been several
federal appellate rulings on the application of Title IX of the Education Amend-
ments of 1972 to participants in collegiate athletics activities (see Section 10.4.3),
less attention has been paid to alleged discrimination against women coaches,
or against coaches of either gender who coach women’s teams. A survey of gen-
der equity data collected under the Equity in Athletics Disclosure Act of 1994
(Pub. L. 103-382, 108 Stat. 3969, codified at 20 U.S.C. § 1092 (2002)) revealed
that the average salary of women coaches was roughly two-thirds of the average
salary of male coaches, and that pay disparities exist in all divisions (see Jennifer
Jacobson, “Female Coaches Lag in Pay and Opportunities to Oversee Men’s
Teams,” Chron. Higher Educ., June 8, 2001, A38). Discrimination claims may be
brought by coaches under Title VII of the Civil Rights Act of 1964 (see Section
5.2.1 of this book), the Equal Pay Act (Section 5.2.2), and Title IX (5.2.3).

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Although the requirements of an Equal Pay Act claim differ somewhat from those
of a Title VII or Title IX claim (in that a four-part test is required under the Equal
Pay Act in order for a plaintiff to make a prima facie case of salary discrimina-
tion based on sex), in practice the courts have used the Equal Pay Act standards
to evaluate these claims under all three statutes. In a few cases, male coaches
have been the plaintiffs.

In 1997, the Equal Employment Opportunity Commission issued an
“Enforcement Guidance on Sex Discrimination in the Compensation of Sports
Coaches in Educational Institutions” (available at http://www.eeoc.gov/
docs/coaches/). Cases decided prior to the issuance of the Guidance tended to
reject the salary discrimination claims of women coaches. For example, plain-
tiffs who argued that the gender of the team members, rather than the gender
of the coach, was responsible for the lower salary were not able to satisfy the
prima facie case requirements of Title VII or the Equal Pay Act because team
members are not employees (Deli v. University of Minnesota, 863 F. Supp. 958
(D. Min. 1994)). And plaintiffs who could not link institutional decisions regard-
ing the status and value of women’s sports to gender discrimination also did
not prevail (Bartges v. University of North Carolina at Charlotte, 908 F. Supp.
1312 (W.D.N.C. 1995), affirmed without opinion, 94 F.3d 641 (4th Cir. 1996)).

The EEOC Guidance discusses the standards for evaluating claims of coaches
alleging salary discrimination under the Equal Pay Act and Title VII. For Equal
Pay Act claims, the Guidance states that plaintiffs must identify one or more
comparators; “a plaintiff must show that a specific employee of the opposite sex
earned higher wages for a substantially equal job,” rather than using a hypo-
thetical employee or the composite features of jobs of several employees. The
Guidance notes that plaintiffs must demonstrate that they have equal skills,
exert equal effort, have equal responsibility, and share the same working con-
ditions as the individual with whom they wish to be compared. Therefore, if a
plaintiff cannot prove that her skills or experience are equivalent to those of the
comparator, she will not be able to make out a prima facie case.

With respect to employer defenses to Equal Pay Act claims, the most likely
defense is that the salary differential was based on “any factor other than sex”
(29 U.S.C. § 206(d)(1)). The Guidance states that, under the defense, the fol-
lowing justifications for differential pay are acceptable, if proven: additional
responsibilities (for example, the size of the team, the number of assistants, the
demands of event and media management, scheduling, and budgetary respon-
sibilities); superior experience, ability, or skills as long as they are closely related
to the coaching position; and “marketplace value of the particular individual’s
job-related characteristics.” The Guidance rejects the following justifications for
differential pay: that the salary is the “going rate” for a particular sport, the gen-
der of the team members, and prior salary without examination of whether it
was linked to prior discrimination. With respect to the argument that sports pro-
ducing more revenue justify higher salaries for their coaches, the Guidance
reserves judgment. Although recognizing that differentials in revenue might be
a legitimate “factor other than sex,” the Guidance states that “the Commission
is also aware of the studies showing that women’s athletic programs historically

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and currently receive considerably less resources than men’s programs,” and
notes that the Commission will examine whether an institution has discrimi-
natorily provided reduced support to a female coach to produce revenue for her
team. (For a case in which the court rejected the Equal Pay Act claim of a male
assistant coach on the grounds that his female counterpart had more numerous
and significant responsibilities, see Horn v. University of Minnesota, 362 F.3d
1042 (8th Cir. 2004).)

The analysis for Title VII claims under the Guidance is similar to that for
Equal Pay Act claims, insofar as the plaintiff asserts that the coaching positions
are substantially equal. The Guidance notes that the sports need not be the
same or similar; it is the functional duties of the coaches that are compared, not
the nature of the sports. While an employment practice that violated Title VII
would not necessarily violate the Equal Pay Act, a violation of the Equal Pay
Act would also violate Title VII.

An illustrative case litigated under the Equal Pay Act, Title VII, and Title IX
is Weaver v. Ohio State University, 71 F. Supp. 2d 789 (S.D. Ohio 1998), affirmed
194 F.3d 1315 (6th Cir. 1999). Weaver, the women’s field hockey coach, brought
claims of discriminatory termination, salary discrimination, and retaliation
against the university. For her salary discrimination claims, she compared her-
self to the male ice hockey coach. The court rejected her claims, noting that
there were sufficient differences between the responsibilities, skill, and effort
required of the coaches. The ice hockey season was longer, and more games
were played. Furthermore, there were more players to coach on the ice hockey
team. The court also ruled that the male coach had additional responsibilities
with respect to public relations and marketing, and that prevailing market rates
for ice hockey coaches were higher than for field hockey coaches. The appel-
late court affirmed these rulings and declined the trial court’s invitation to rule
on whether Weaver’s Title IX claim was preempted by Title VII.

Jan Lowery, the former women’s basketball coach and women’s athletics coor-
dinator at Tarleton State University, asserted claims of salary discrimination under
Title VII, the federal equal protection clause, and Title IX, as well as Title IX and
First Amendment retaliation claims (for her opposition to allegedly discrimina-
tory practices related to women’s athletics at the university). Although Lowery
resigned from Tarleton, she claimed constructive discharge, demotion, and failure
to promote her to the position of overall athletic director.

In Lowery v. Texas A&M University System, 117 F.3d 242 (5th Cir. 1997), the
court dismissed Lowery’s Title IX salary discrimination claim, stating that there
was no private right of action under Title IX for employment discrimination, but
allowed her retaliation claims and other salary discrimination claims to proceed.
The university then sought summary judgment on the remaining claims. The
trial court denied the university’s motion for summary judgment on these claims
(11 F. Supp. 2d 895 (S.D. Tex. 1998)).

With respect to the Equal Pay Act claim, the university had conceded that
Lowery and the male coach-athletic coordinator with whom she compared her-
self had comparable duties and responsibilities. The court ruled that Lowery
had raised issues of fact that could not be resolved at the summary judgment

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stage about how the two individuals were paid, whether salary increases they
received were for additional responsibilities or their current responsibilities, and
other apparent inconsistencies in the way the two employees were treated. With
respect to Lowery’s Title VII claim, the court ruled that a demotion is an adverse
employment action, and thus Lowery had established a prima facie case of retal-
iation under Title VII. With respect to the retaliation claims, the court held that
Lowery could make out a prima facie case of retaliation under Title IX because
the evidence showed that the university had reprimanded her for discussing her
concerns about alleged Title IX violations with individuals outside the athletic
department, and demoted her from the position of women’s athletics coordi-
nator shortly thereafter. Regarding Lowery’s First Amendment retaliation claim,
the court ruled that her stated concerns about potential Title IX violations were
matters of public concern and thus were protected by the First Amendment’s
free speech clause (see Section 7.1.1).

But another women’s basketball coach was less successful in her discrimi-
nation claims against the University of Southern California (USC). Marianne
Stanley was hired by USC in 1989 and given a four-year contract at a salary sub-
stantially below that of the coach of the men’s basketball team, George Ravel-
ing. The women’s basketball team was very successful during Stanley’s term as
coach, and when it came time to negotiate a renewal of her contract, Stanley
asked that she be paid a salary equivalent to Raveling’s. The athletic director
refused to pay her at that level, but offered her a new contract at a higher salary.
Stanley held out for an equivalent salary, but the parties could not agree, and
when Stanley’s initial contract expired, it was not renewed. Stanley filed
claims under the Equal Pay Act and Title IX, as well as state claims, including
several under the California Fair Employment and Housing Act and the
California constitution.

In 1995, the trial court awarded summary judgment to the university, and
Stanley appealed. Four years later, the appellate court affirmed in Stanley v. Uni-
versity of Southern California, 178 F.3d 1069 (9th Cir. 1999). The university
argued that the jobs held by Stanley and Raveling were different (primarily
because the men’s coach bears greater revenue-generating responsibilities and is
under greater pressure from the media and fans to have a winning season, and
because Raveling did generate more revenue than did Stanley), while Stanley
argued that differences between the two jobs were primarily attributable to the
university’s prior gender-based decisions about resource allocation to men’s and
women’s sports. The court assumed without ruling that the jobs were substan-
tially equal for Equal Pay Act purposes, and then found that Raveling had qual-
ifications superior to Stanley’s. The court cited the following differences in their
qualifications at the time each was hired: Raveling had thirty-one years of
coaching experience (compared with Stanley’s seventeen); Raveling had
coached the men’s Olympic basketball team, and had twice been named
national coach of the year (Stanley had done neither); Raveling had nine years
of marketing and promotional experience (Stanley had none); and Raveling had
written several books on basketball, which Stanley had not. The court noted
that the EEOC Guidance specifically permitted superior experience to justify pay

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differentials, and ruled that the university had successfully demonstrated that
the salary differential was a result of a factor “other than sex.” The court
rejected Stanley’s other discrimination claims on the same basis. Furthermore,
the court ruled that the university had not retaliated against Stanley by refus-
ing to enter a new contract, and that she was not constructively discharged sim-
ply because the parties could not agree on the terms of a new contract.

Claims of discrimination by athletics coaches are very fact sensitive, as the
following case illustrates. The case also illustrates the effect of allowing a case
to go to a jury, which most of the cases involving alleged discrimination against
women coaches do not. A federal jury awarded the women’s basketball coach
and women’s sports administrator at Brooklyn College, City University of New
York (CUNY), $85,000 in compensatory damages plus back pay of $274,920 in
her Equal Pay Act and Title VII claims. In Perdue v. City University of New York,
13 F. Supp. 2d 326 (E.D.N.Y. 1998), Molly Perdue established that she per-
formed jobs that were substantially equal to the men’s basketball coach and the
men’s sports administrator. She was paid less than half of the average salaries
of the two male comparators, but asserted that she had the same responsibili-
ties as each of these individuals. Furthermore, she had a smaller office, a smaller
budget, fewer assistant coaches, and no locker room for her team; she also
cleaned the gym and washed the players’ uniforms, which the male coach did
not. The court ruled that there was enough evidence for the jury to find that
Perdue’s job responsibilities, skill, and effort were comparable to each of the
male comparators, despite the fact that each of the male comparators had more
experience in these roles than did Perdue.

The laws prohibiting sex discrimination in employment protect male coaches
as well as female coaches. The EEOC ruled in 1998, for instance, that the Uni-
versity of Pennsylvania had discriminated against the assistant coach of its
men’s rowing team by not permitting him to apply for the vacant position of
head coach of the women’s crew team (Medcalf and University of Pennsylva-
nia, Charge No. 170980294, decided December 9, 1998). A federal trial court
rejected the University’s motion for summary judgment (Medcalf v. Trustees of
the University of Pennsylvania, 2001 U.S. Dist. LEXIS 10155 (E.D. Pa. June 19,
2001)), and a federal jury found for the plaintiff, awarding him compensatory
and punitive damages and lost wages. The university appealed, and a federal
appellate court affirmed the jury’s verdict (71 Fed. Appx. 924 (3d Cir. 2003))
(unpublished).

This area of the law is still developing, and it remains to be seen whether
courts will follow the EEOC Enforcement Guidance’s framework for analyzing
claims of salary discrimination or will defer to the “business judgment” of the
institution with respect to how it allocates resources for athletic programs.
Coaches who believe that their pay is lower than that of similar coaches because
of their gender (rather than the gender of the team members) may find some
success under Title IX (at least for retaliation claims), the Equal Pay Act (if they
can find a suitable comparator), or under Title VII. In fact, the EEOC’s state-
ment that the sports do not have to be the same suggests that coaches of
women’s teams, such as basketball or softball, might wish to compare

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themselves with coaches of different sports with similar-sized teams, responsi-
bilities, and experience. The issue of whether revenue production is a neutral
factor “other than sex” will have to be resolved on a case-by-case basis.

These cases suggest a strategy for avoiding litigation on, or defending against,
claims of sex discrimination in coaches’ salaries. First, the institution may find
it useful to conduct an audit of coaches’ salaries and to adjust the salaries of
those coaches whose functions are similar to those of higher-paid coaches with
similar experience, seniority, and coaching success. Written position descrip-
tions for coaches should specify the duties, skills, and responsibilities necessary
for satisfactory performance. New coaches should be recruited from a diverse
pool that includes other-gender applicants and minorities. Drafting contracts
that specify the duties of the coach, whether there will be bonuses and under
what circumstances, and what other responsibilities are expected of each coach
may also help an institution avoid liability. And the institution will need to clar-
ify the basis for any negative employment action to defend against retaliation
claims by coaches, which in some cases have been more successful than their
underlying discrimination claims.

(For an analysis of how discrimination law is applied to pay disparities
among coaches, see John Gaal, Michael S. Glazier, & Thomas S. Evans,
“Gender-Based Pay Disparities in Intercollegiate Coaching: The Legal Issues,”
28 J. Coll. & Univ. Law 519 (2002). For practical advice on this subject, see Janet
Judge, David O’Brien, & Timothy O’Brien, “Pay Equity: A Legal and Practical
Approach to the Compensation of College Coaches,” 6 Seton Hall J. Sports L.
549 (1996).)

5.3.4. Disability. Colleges have not escaped the flood of disability discrim-
ination cases that resulted from the enactment of the Americans With Disabili-
ties Act (ADA) of 1990. Like their counterparts in nonacademic organizations,
college employees have usually been unsuccessful in establishing claims under
this law.26 Depending on the protections offered by state law, plaintiffs’ coun-
sel may prefer to bring these claims under state nondiscrimination law because
of the narrowness of the ADA’s definition of disability and the complications of
establishing under the ADA that the plaintiff is “qualified.”27

Employer defenses to ADA claims typically focus on the effect of the disor-
der on the employee’s work performance, attendance, behavior, or some other
relevant concern. In some cases, however, the employer’s defense is that the
disability was irrelevant to the negative employment action.

5.3.4. Disability 425

26A study of ADA employment cases litigated between the law’s enactment and June 2000 con-
cluded that plaintiffs succeeded on the merits only 4 percent of the time (Barbara A. Lee, “A
Decade of the Americans With Disabilities Act: Judicial Outcomes and Unresolved Problems,”
42 Industrial Relations 11 (2003)).
27For example, both California’s and New Jersey’s nondiscrimination laws have a more expansive
definition of “disability” than the ADA, which greatly improves plaintiffs’ ability to get their cases
to a jury (California Fair Employment and Housing Act, Cal. Gov’t. Code § 12940; New Jersey
Law Against Discrimination, N.J.S.A. 10:5–5(q)).

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IS THE EMPLOYEE DISABLED FOR ADA PURPOSES? As discussed in Section 5.2.5,
an employee seeking a remedy for alleged disability discrimination must first
demonstrate that he or she meets the Act’s definition of disability. This has been
a substantial hurdle for many plaintiffs. The law requires the plaintiff to demon-
strate that the disorder “substantially limits” one or more “major life functions.”
The U.S. Supreme Court has determined that the effect of the disorder on the
plaintiff must be evaluated taking into consideration any “mitigating measures,”
such as medication or physical aids (such as a prosthetic device). And if the dis-
order limits the plaintiff’s ability to perform a particular job, but not a class of
jobs, the courts have ruled that the individual is not “disabled” under the Act’s
definition (see discussion in Section 5.2.5).

The opinion in Palotai v. University of Maryland at College Park, 2002 U.S.
App. LEXIS 12757 (4th Cir. 2002) (unpublished), provides an example of the
application of ADA principles to a discrimination claim. The plaintiff, Thomas
Palotai, was hired as a greenhouse technician. Because the greenhouse plants
were used for research and teaching, Palotai was required to adhere to a speci-
fied schedule of care for the plants. On several occasions, Palotai was unable to
complete his tasks within the time framework required by his supervisor. Seven
months after he was hired, he informed his supervisor that he had a learning
disability that made it impossible for him to meet the time frames. Several meet-
ings were held with his supervisor to discuss his performance problems; he was
disciplined after each meeting. In addition, Palotai disregarded safety rules, such
as failing to wear protective glasses while spraying the plants with pesticides
and wearing shorts in an area where the safety rules required that long pants
be worn.

After several written warnings, the university suspended Palotai, who then
requested sick leave because of an eye injury related to his pesticide spraying
responsibilities. After returning from sick leave, his performance problems per-
sisted, and he was terminated. Palotai filed a Fourteenth Amendment due
process claim and an ADA claim. He claimed three “disabilities” under the ADA:
a learning disorder, obsessive-compulsive disorder, and the eye injury sustained
while working for the university. Noting that Palotai held a B.S. in biology and
had completed thirty hours of graduate work, the court rejected the claim that
Palotai’s learning disability interfered with a major life function (learning). The
court refused to characterize Palotai’s obsessive-compulsive disorder as an ADA-
protected disability because there was no evidence that it limited his ability to
work. And because the visual impairment was quite moderate, the court con-
cluded as well that Palotai was not disabled in this respect. The court concluded
by ruling that, even assuming that Palotai’s disorders met the ADA’s definition
of disability, the university’s insistence that he perform his tasks within a spe-
cific time frame was reasonable, and an accommodation that disregarded those
time frames would have been an undue hardship.

Similarly, a nurse with multiple sclerosis was found not to be disabled for
ADA purposes in Sorensen v. University of Utah Hospital, 194 F.3d 1084 (10th
Cir. 1999). Although her physician had cleared her to return to work after a five-
day hospitalization related to her disorder, the physician in charge of the burn

426 Nondiscrimination and Affirmative Action in Employment

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unit, where the plaintiff had worked, refused to allow her to return to work
because he was concerned that she would encounter further problems related
to her disorder. She was, however, allowed to work in the emergency room and
in the surgical intensive care unit. Because of the hospital’s continuing refusal to
allow the plaintiff to return to the burn unit, she resigned and filed a claim of
constructive discharge and disability discrimination. The court ruled that she
was not disabled (she could perform all functions without accommodation),
that she was not regarded as disabled, nor was she discriminated against
because of a record of a disability, basing its ruling on the fact that the position
in the burn unit was the only position from which the plaintiff had been
excluded. Citing Sutton (Section 5.2.5), the court ruled that the inability to per-
form one job does not meet the ADA’s definition of substantial limitation, and
that the plaintiff was not excluded from a wide class of jobs. Similar reasoning
led to a similar outcome for the parties in Broussard v. University of California,
192 F.3d 1252 (9th Cir. 1999), in which an animal care technician with carpal
tunnel syndrome was found not be disabled under the ADA because her par-
ticular job was the only job she could not perform as a result of her disability.

Employees with mental disorders are also potentially protected by the ADA
if the employee can meet the Act’s definition of disability. But a mental disor-
der that is linked to a particular job or supervisor will probably not qualify as
a disability for ADA purposes. For example, in Schneiker v. Fortis Insurance Co.,
200 F.3d 1055 (7th Cir. 2000), an employee diagnosed with major depression
was unsuccessful in her discrimination claim because her work performance
had been acceptable until she began working for a new supervisor. The court
characterized her difficulties as a personality conflict rather than a disability.

IS THE EMPLOYEE QUALIFIED? If the plaintiff can convince the court that he
or she has a disability that meets the ADA’s narrow definition, the plaintiff’s
next task is to demonstrate that he or she is qualified for the position held or
desired. The Act requires that the individual demonstrate that he or she can
perform the “essential functions” of the position in question.

Hatchett v. Philander Smith College, 251 F.3d 670 (8th Cir. 2001) provides an
analysis of whether an employee is qualified. Hatchett was the business man-
ager for the college. When the position was upgraded to a dean of administra-
tive services, Hatchett applied for, but was not offered, the position, and
continued working as the business manager.

Approximately eight months after applying for the deanship, Hatchett was
injured by falling debris while on college business. Although being treated by
a neurologist and a psychologist for her injuries, Hatchett continued working,
but could not perform all of the functions of the business manager. She then
took medical leave, and the college eliminated the business manager position
while she was on leave. A male employee whom Hatchett had trained, and who
had performed the business manager responsibilities while she was on leave,
was promoted to the deanship. The college president offered Hatchett three part-
time positions, which she declined.

The court reviewed the recommendations of Hatchett’s physician that she
avoid conflict, only deal with individuals one on one, and not confer with

Is the Employee Qualified? 427

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students or attend meetings. The written job description for the deanship, in
addition to Hatchett’s own testimony, included these duties. The court deter-
mined that these duties, which Hatchett’s physician stated that she could not
perform, were essential functions of the position, and denied Hatchett’s ADA
claim.

Menes v. C.U.N.Y., 92 F. Supp. 2d 294 (S.D.N.Y. 2000) demonstrates how a
college’s adherence to the ADA’s “interactive” process of attempting to accom-
modate a disabled employee provides protection against an ADA claim. The
plaintiff had been diagnosed with depression, and his doctor had recommended
a three-day work week as an accommodation. The college complied, but the
plaintiff’s performance was unsatisfactory even with the shorter work week.
The court ruled that, although the plaintiff had established that he was disabled
for ADA purposes, he could not perform the essential functions of his position,
and thus was not qualified.

Another case demonstrates the interplay between the Family and Medical
Leave Act (FMLA) (Section 4.6.4) and the ADA. A finding that an employer
complied with the FMLA does not necessary lead to a finding of compliance
with the ADA. A federal trial court rejected a college’s motion for summary
judgment in an ADA claim that involved the matter of the employee’s qualifi-
cations. In Rogers v. New York University, 250 F. Supp. 2d 310 (S.D.N.Y. 2002),
an administrative assistant had taken FMLA leave in order to cope with her
mental disorders. Although the employee’s FMLA claim was dismissed because
the employee had received the twelve weeks of leave to which she was entitled
and did not provide the proper written documentation of her fitness to return
to work, the court ruled that her ADA claim must be tried to a jury. Her doctor
had stated that an additional month’s leave would have been sufficient to
accommodate a return to work; the court ruled that the plaintiff was entitled
to demonstrate that alternate positions had been available for which she was
qualified. On the other hand, most courts concur that an indefinite leave of
absence without a target date of return is not a reasonable accommodation
under both state and federal law (see, for example, Scott v. University of Toledo,
739 N.E.2d 351 (Ct. App. Ohio 2000)).

An accommodation that requires other employees to perform essential func-
tions of an individual’s job is not required under the ADA. In Piziali v. Grand
View College, 2000 U.S. App. LEXIS 1823 (8th Cir. 2000) (unpublished), a fed-
eral appellate court upheld a trial court’s grant of summary judgment to the col-
lege on the grounds that the plaintiff was not qualified. The accommodations
requested by the plaintiff would have required other faculty to perform some of
her duties, which the court viewed as essential functions of her position.

IS THE REQUESTED ACCOMMODATION REASONABLE? The law states that an
accommodation is not reasonable if it poses an undue hardship for the
employer. Thus, indefinite leaves of absence, the creation of new light-duty posi-
tions, or the removal of a job’s essential functions are typically viewed as undue
hardships. In addition, the employer need not “bump” a nondisabled individ-
ual out of a position in order to accommodate an employee who is disabled
(Lucas v. W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001)).

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On the other hand, the law and its Interpretive Guidance require an employer
to attempt to restructure the position, reassign the individual to a vacant posi-
tion, or accommodate the employee in other ways that do not pose an undue
hardship. Because so many plaintiffs cannot establish that they are disabled
under the ADA, there are relatively few cases that examine the reasonableness
of a requested accommodation, particularly those involving colleges or univer-
sities. One such case is Norville v. Staten Island University Hospital, 196 F.3d 89
(2d Cir. 1999). Norville, a nurse, sustained a spinal injury that prevented her
from engaging in heavy lifting, stretching, or bending. The hospital offered her a
transfer to other positions, but the positions were not equivalent in benefits.
They involved the loss of seniority and the freezing of her pension benefits, and
made her more vulnerable to layoffs. The plaintiff had claimed that vacant posi-
tions comparable to her former position were available, but were not offered to
her. Although a jury had returned a verdict in favor of the hospital, the appel-
late court reversed, stating that the jury instructions were inadequate, and
remanded for a new trial.

But in Wright v. N.C. State University, 169 F. Supp. 2d 485 (E.D.N.C. 2000),
the trial court awarded summary judgment to the college, rejecting the plain-
tiff’s claims that the employer had refused to provide a reasonable accommo-
dation. The plaintiff, who was deaf and worked on the night shift in a building
considered to be dangerous, requested either a different shift or a transfer to the
library. The university had offered her an alternate accommodation: transfer to
a new, safer building. The court ruled that the university’s accommodation pro-
posal was reasonable, noting that the employer is not required to provide the
accommodation that the employee prefers if another accommodation is also
reasonable.

THE “NONDISCRIMINATION” DEFENSE. Although most ADA cases involve an
employer’s acknowledgment that the employee’s disorder was related in some
way to the negative employment action (but not unlawful), in some instances
the employer’s defense is that discrimination was unrelated to the employment
decision. For example, in King v. Hawkeye Community College, 2000 U.S. Dist.
LEXIS 1695 (N.D. Iowa 2000), a professor who was morbidly obese was not
returned to his teaching job after taking medical leave for gastric bypass surgery.
Although the court ruled that the college’s failure to allow him to return was a
breach of contract, it granted the college summary judgment on the employee’s
ADA claim. The court found that the individual who decided not to allow the
employee to return to work was also morbidly obese, and thus found that
disability discrimination was not a factor in the decision.

Although the federal circuits and state supreme courts differ on the issue,
several courts have ruled that obesity is a disability under federal or state law.
For example, in Cook v. State of Rhode Island, 10 F.3d 17 (1st Cir. 1993), a case
brought under the Rehabilitation Act, the court ruled that a state agency’s
refusal to rehire a qualified former employee because of its concern that her
weight (320 pounds) would interfere with her ability to evacuate patients in the
event of an emergency, and its speculation that she had a higher probability of
injury or illness than employees who were not obese, violated Section 504. The

The “Nondiscrimination” Defense 429

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court did not say whether, in its view, obesity is a disability, but rather ruled
that her obesity was perceived as a disability, which brought her under the law’s
protections. (The ADA has the same protections for nondisabled individuals
who are perceived as disabled.) The EEOC has argued that obesity should be
characterized as a disability protected under both Section 504 and the ADA.

Although the ADA is similar to the Rehabilitation Act in most respects (see
Section 5.2.5), several differences suggest that employees will turn to the ADA
first for relief when they believe discrimination has occurred. The ADA includes
reassignment to a vacant position as a form of accommodation that the employer
must consider (42 U.S.C. § 12111(9)(B)), a requirement absent from the language
of the Rehabilitation Act, although it is included in its regulations. The ADA pro-
tects individuals with alcoholism, and it is not yet clear whether, or how often, a
college or university would be required to offer an employee with alcoholism an
opportunity for inpatient rehabilitation. The ADA has strict confidentiality
requirements for medical information related to employees’ disabilities (42 U.S.C.
§ 12112(d)(3)(B)); the interplay between these requirements and the right of a
labor union to receive information related to an employment grievance is as yet
unresolved.

5.3.5. Age. With the elimination of the age-seventy cap from the ADEA,
mandatory retirement for age is no longer legal, with the exception of certain
law enforcement and public safety employees. This “uncapping” has required
colleges that wish to terminate an older worker either to provide documenta-
tion of poor performance or financial reasons for the termination or to provide
incentives for the employees to retire.

Although most lawsuits brought by college employees claiming age discrim-
ination are unsuccessful for the plaintiffs, colleges can improve their chances
of successfully defending such cases by careful documentation of performance
problems, training of supervisors to refrain from ageist comments and actions,
and consistent treatment of employees irrespective of age. A case illustrative of
some of the problems that a college may encounter in defending an age dis-
crimination claim is Manning v. New York University, 2000 U.S. Dist. LEXIS
19606 (S.D.N.Y. 2000). The court rejected the university’s motion for summary
judgment in an age discrimination case brought by the former director of secu-
rity for the university. The director had been terminated at age sixty-seven,
according to the university, for “poor communication skills,” a contentious
relationship with his supervisors, and inability to represent the university appro-
priately to outside agencies. The court, reviewing the plaintiff’s claims, deter-
mined that the plaintiff had made a prima facie case of age discrimination based
upon the following evidence: the supervisor had made negative comments
about the plaintiff’s age and noted the need for “new blood”; the supervisor had
stated that the plaintiff would soon be “on the golf course” and need not be
involved in contract negotiations; the supervisor insisted that the plaintiff bring
his thirty-year-old assistant to meetings but did not require the same of other
employees at the plaintiff’s level; the supervisor’s decision to promote all but
the three oldest directors to assistant vice presidents; and the assignment of an

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important security responsibility to the plaintiff’s young assistant rather than to
the plaintiff. Furthermore, there were no written documents criticizing the
plaintiff’s performance, and he had received regular merit raises. The judge
ruled that these allegations raised material factual issues that must be resolved
at trial.

Similarly, remarks by trustees and a college president that could be interpreted
as ageist were sufficient to persuade a court to deny summary judgment to a col-
lege accused of age discrimination in the termination of the former academic
vice president. In Lepanto v. Illinois Community College District #525, 2000 U.S.
Dist. LEXIS 46 (N.D. Ill. 2000), a new president told the academic vice president,
who had served in that role for eleven years, that he wanted a “fresh start” and
a “new mix” of leadership, and terminated the plaintiff at age sixty-one.
Although the plaintiff was unable to persuade the court that these remarks, in
addition to statements by trustees that there was a new majority on the board,
“a younger group of people trying to break up this good old boy network who
had their way for thirty years at the college,” were direct evidence of age dis-
crimination, the remarks were sufficient to support a prima facie case of
discrimination. Given the lack of written criticism of the vice president’s perfor-
mance, the court ruled that a jury might conclude that the defendants’ claim of
poor performance was a pretext for discrimination.

On the other hand, if the college has investigated and documented an
employee’s performance problems, the college’s motion for summary judgment
may be successful. For example, in Debs v. Northeastern Illinois University, 153
F.3d 390 (7th Cir. 1998), a former chief engineer in the university’s heating plant
challenged his demotion at age fifty-five, alleging age discrimination. The uni-
versity, after receiving complaints from several employees who had worked for
the plaintiff, had engaged an outside consultant to investigate the employees’
complaints, which included allegations of safety violations as well as dishon-
esty and abusive behavior toward subordinates. The investigator’s report
substantiated the employees’ complaints and recommended that the plaintiff be
relieved of supervisory responsibility. A state civil service Merit Board upheld
the demotion, and the plaintiff filed a claim with the EEOC. This lawsuit
followed.

The sole evidence of age discrimination provided by the plaintiff was an alle-
gation that the plaintiff’s supervisor had asked him when he was going to retire
and a comment that the plaintiff was too old to work in the heating plant. These
allegations were insufficient, according to the court, to rebut the university’s
legitimate nondiscriminatory reasons for demoting him. The court found the
investigator’s report credible because of her independence, and because she did
not make the demotion decision.

In order to be helpful to the defendant college, the documentation must be
contemporaneous and untainted by age-related language. In EEOC v. Board of
Regents of the University of Wisconsin System, 288 F.3d 296 (7th Cir. 2002), a
federal appellate court affirmed a jury verdict against the university for ter-
minating four employees of the University of Wisconsin (UW) Press for age-
related reasons. Although the plaintiffs could not have brought this claim

5.3.5. Age 431

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against the university in federal court because of Kimel’s holding that state
entities are protected from ADEA claims by sovereign immunity (see Section
5.2.6), the EEOC can bring claims on their behalf without constitutional
limitations.

The UW Press was facing financial difficulties and decided to reduce its staff
by four. The director of the Press selected the four oldest employees for layoff.
When asked for a rationale for their selection (after determining who would be
laid off), he created a written justification for selecting these four individuals,
but he apparently did not conduct an overall evaluation of all the Press employ-
ees. The responsibilities of the laid-off workers were assumed by younger
employees, some of whom were hired at the same time or shortly after the
plaintiffs were laid off. According to the court, the justification document
included language that could be viewed as age biased, and included several
incorrect statements about the purportedly superior skills of younger staff. The
court also upheld the jury’s finding that the director’s conduct was willful, a
finding that allows a court to order that double damages be paid to prevailing
plaintiffs.

Early retirement incentive programs are regulated by the ADEA, as amended
by the Older Workers Benefit Protection Act (OWBPA), discussed in Section
5.2.6. The amendments to the ADEA that took effect January 1, 1988, require,
among other things, that institutions continue pension contributions without
regard to the individual’s age. An opinion by the U.S. Court of Appeals for the
Ninth Circuit applied the provisions of the OWBPA to a university’s disability
and retirement plans. In Kalvinskas v. California Institute of Technology, 96 F.3d
1305 (9th Cir. 1996), the plaintiff, a research scientist at CalTech’s Jet Propul-
sion Laboratory, developed Parkinson’s disease. He took a medical leave and
began receiving long-term disability benefits. CalTech’s disability plan provided
that disability benefits could be reduced by pension payments or other disabil-
ity benefits. The college’s retirement plan did not allow the payment of pension
benefits until an employee actually retired.

When the plaintiff reached age sixty-five, he was eligible to retire but chose
not to. He was still receiving disability benefits. CalTech then offset his disabil-
ity benefits by the amount of pension payments he would have received had he
chosen to retire. Since the retirement benefits exceeded the disability benefits,
the plaintiff received no payments after the age of sixty-five. He sued CalTech
under the ADEA and California’s nondiscrimination law, arguing that the offset
policy forced him to retire at age sixty-five.

This was a case of first impression for the interpretation of provisions added
to the ADEA by the OWBPA. The court was required to interpret two provisions
of the ADEA: Section 4(f)(2), which forbids any action that would “require or
permit the involuntary retirement of any individual,” and Section 4(1)(3)(B),
which permits the offset of benefits in order to prevent “double dipping”—
circumstances in which a retiree would receive a windfall of both pension
benefits and disability benefits. The appellate court ruled that reducing the
plaintiff’s disability benefits to zero effectively forced him to retire, a violation

432 Nondiscrimination and Affirmative Action in Employment

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of Section 4(f)(2). Given the college’s actions, said the court, a reasonable
person would have believed he had no choice but to retire. With respect to the
application of Section 4(1)(3)(B), the court examined the legislative history of
the OWBPA. Since the plaintiff was not in a position to receive a windfall, this
section did not protect CalTech’s actions.

More recently, several retired employees sued the University of Rhode Island,
asserting that the voluntary retirement incentive plan (VRIP) that they accepted
violated both state and federal age discrimination laws. The plan provided that
the university would pay a stipend for retiree health benefits that was based
on the actual cost of these benefits. Employees who were under sixty-five when
they retired received a $5,000-per-year health benefit stipend, while employees
aged sixty-five or older received a stipend of $2,000 per year because they were
eligible for Medicare. The court determined that, under the “safe harbor” pro-
visions of the ADEA (29 U.S.C. § 623(f)(2)(B)(ii)) (discussed in Section 5.2.6),
the VRIP was voluntary and the difference in stipends was linked directly to the
differences in the actual cost of medical benefits.

The complexity of designing retirement incentive programs that do not run
afoul of the ADEA may discourage some colleges from offering these programs.
(For a discussion of these issues, see Christopher Condeluci, Comment,
“Winning the Battle but Losing the War: Purported Age Discrimination May Dis-
courage Employers from Providing Retiree Medical Benefits,” 35 J. Marshall L.
Rev. 709 (2002). See also Marianne C. DelPo, “Too Old to Die Young, Too Young
to Die Now: Are Early Retirement Incentives in Higher Education Necessary,
Legal, and Ethical?” 30 Seton Hall L. Rev. 827 (2000).)

5.3.6. Religion. Discrimination on the basis of religion is one of the
prohibited forms of discrimination under Title VII (42 U.S.C. § 2000e-2(a)),
subject to an exception for situations where a particular religious characteristic
is a bona fide occupational qualification for the job (42 U.S.C. § 2000e-2(e)(1)).
A related exception, applicable specifically to educational institutions, permits
the employment of persons “of a particular religion” if the institution is “owned,
supported, controlled, or managed” by that religion or if the institution’s cur-
riculum “is directed toward the propagation of a particular religion” (42 U.S.C.
§ 2000e-2(e)(2)). The application of nondiscrimination laws to religious colleges
is discussed in Section 5.5.

Title VII defines “religion” to include “all aspects of religious observance and
practice, as well as belief” (42 U.S.C. § 2000e(j)). The same section of the
statute requires that an employer “reasonably accommodate to” an employee’s
religion unless the employer can demonstrate an inability to do so “without
undue hardship.”28 In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the

5.3.6. Religion 433

28Cases and authorities are collected in Andrew M. Campbell, Annot., “What Constitutes
Employer’s Reasonable Accommodation of Employee’s Religious Preferences Under Title VII
of Civil Rights Act of 1964,” 134 A.L.R. Fed. 1.

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U.S. Supreme Court narrowly construed this provision, holding that it would be
an undue hardship to require an employer to bear more than minimal costs in
accommodating an employee’s religious beliefs. To further explicate the statute
and case law, the EEOC has issued revised guidelines on the employer’s duty
under Title VII to reasonably accommodate the religious practices of employees
and applicants (29 C.F.R. Part 1605).

The Supreme Court addressed religious discrimination a second time in Anso-
nia Board of Education v. Philbrook, 479 U.S. 60 (1986). In Ansonia a school-
teacher had asked to use the paid “personal days” provided by the collective
bargaining agreement for the observance of religious holidays. The collec-
tive bargaining agreement provided that religious holidays taken beyond those
that were official school holidays would be taken as unpaid leave. Philbrook
sued, alleging religious discrimination under Title VII and stating that the school
board should have accommodated his religious needs by permitting him to use
paid leave. In analyzing the scope of the “reasonable accommodation” require-
ment, the Court ruled that the employer need not accede to the employee’s pre-
ferred accommodation, but could offer its own as long as that accommodation
also met the “reasonableness” criterion articulated in Hardison. The employer
did not have to prove that the employee’s preferred accommodation would pose
an undue hardship; it only had to prove that the accommodation it offered was
a reasonable one.

Most litigation involving alleged religious discrimination against college staff
involves scheduling disputes, as in the Hardison case, discussed above. For exam-
ple, in Gay v. SUNY Health Science Center of Brooklyn, 1998 U.S. Dist. LEXIS
20885 (E.D.N.Y. 1998) (unpublished), a federal trial court rejected the claim of
a hospital orderly that the hospital’s decision to change his schedule was a form
of religious discrimination. The hospital had accommodated the orderly, a
Muslim, by allowing him to work a four-day week, with Friday off as a religious
accommodation. When the hospital’s staffing needs changed, the plaintiff was
also required to work Friday mornings, but was allowed to leave in time to attend
religious services on Friday.

Other conflicts involving alleged religious discrimination involve conflicts
between an employee’s religious beliefs and work assignments. For example, in
Shelton v. University of Medicine and Dentistry of New Jersey, 223 F.3d 220
(3d Cir. 2000), a nurse working in the labor and delivery unit at the university’s
hospital refused because of her religious beliefs to accept assignments that
involved the termination of pregnancies. After she refused to participate in
emergency procedures determined necessary to save the life of the mother, the
hospital offered her a transfer to the newborn intensive care unit as an accom-
modation to her religious beliefs. The nurse refused the transfer, however,
because she had been told that newborn infants with serious medical prob-
lems were not treated but were allowed to die. Because there were no other
positions for which the nurse was qualified, she was terminated. Although the
trial court determined that the plaintiff had established a prima facie case of
religious discrimination, the court found that the hospital had attempted to

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accommodate her. Because there was no corroboration for the claim that infants
were untreated and allowed to die, the plaintiff could not rebut the employer’s
nondiscriminatory reason for her termination. The appellate court affirmed the
trial court’s summary judgment award.

The line between allowing an employee the right to exercise his or her reli-
gion freely and the employer’s right to forbid proselytizing in the workplace
may be difficult to draw, particularly for publicly supported colleges. For
example, in Knight v. Connecticut Department of Public Health, 275 F.3d 156
(2d Cir. 2001), two employees of state agencies were disciplined for prosely-
tizing clients of the agency during their work assignments. The court assumed
without deciding that the speech involved a matter of public concern, but
ruled that, because the proselytizing upset the clients in both instances, the
speech was disruptive and thus was not entitled to First Amendment protec-
tion. The court ruled further that allowing these employees to proselytize at
work was not a reasonable accommodation for their religious beliefs, because
it hampered the state agency’s ability to provide services on a religion-neutral
basis.

But if the employee’s religious beliefs or behavior do not interfere with work
performance, and discipline is imposed solely because of those beliefs, a court
may find that discrimination has occurred. In EEOC v. University of Chicago Hos-
pitals, 276 F.3d 326 (7th Cir. 2002), a federal appellate court reversed an award
of summary judgment for the defendant hospital, ruling that the hospital staff
had engaged in religious discrimination. A supervisor had discharged a South-
ern Baptist staff recruiter because the recruiter used her own church as a source
of hospital employees. The supervisor had called the plaintiff a “religious
fanatic,” had ordered her to remove a religious calendar and clock from her
desk, and had fired another supervisor for refusing to terminate the plaintiff
after criticizing her for “bringing religion into the workplace.” The defendant
hospital had not provided evidence of any disruption caused by the plaintiff’s
religious beliefs, and the evidence was sufficient, said the court, to reverse the
summary judgment award and send the case to a jury.

According to the Supreme Court in Hardison, the employer’s responsibility
to provide a reasonable accommodation for an employee’s religious beliefs is
not a heavy one. When faced with a request for an accommodation, such as the
reallocation of job responsibilities so that those that are offensive to the indi-
vidual need not be performed, or revising work schedules so that an employee
may attend religious services, the employer needs to determine whether these
requests will pose an undue hardship. An undue hardship may be financial, or
it may involve the employer’s determination that the request will disrupt the
efficiency or effectiveness of the workplace. Although the reasonable accom-
modation requirement under Title VII is easier to satisfy than the accommoda-
tion requirement under the Americans With Disabilities Act (see Section 5.2.5),
the employer will need to document its attempt(s) to accommodate the reli-
gious needs of its workers in order to defend successfully a Title VII religious
discrimination claim.

5.3.6. Religion 435

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5.3.7. Sexual orientation. Discrimination on the basis of sexual orienta-
tion is not prohibited by Title VII, nor is there any other federal law directed at
such discrimination. However, seventeen states prohibit employment discrimi-
nation on the basis of sexual orientation in both the public and private
sectors,29 and numerous municipalities have enacted similar local laws pro-
hibiting such discrimination. Laws prohibiting employment discrimination
against gays were repealed in Iowa and Maine, and protections for gay employ-
ees in Ohio and Louisiana have been withdrawn.

Employment issues related to sexual orientation go beyond the issues—such
as discipline, discharge, or salary discrimination—faced by other protected
class members. Access to benefits for unmarried same-sex partners, access to
campus housing reserved for heterosexual couples, and the effect of the mili-
tary’s refusal to recruit homosexuals add to the complexity of dealing with this
issue.

The U.S. Supreme Court has not yet ruled in a case directly involving alleged
employment discrimination on the basis of sexual orientation. The Court’s opin-
ion in Oncale, discussed in Section 5.3.3.3, involved same-sex sexual harass-
ment, rather than sexual orientation discrimination, and was brought under
Title VII. In March 2003, however, the Court overruled its earlier holding in
Bowers v. Hardwick, 478 U.S. 186 (1986) that had upheld a Georgia law crimi-
nalizing sodomy. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck
down a Texas law that made sodomy a criminal offense on due process clause
grounds. The Court stated that the individuals’ “right to liberty under the
Due Process Clause gives them the full right to engage in private conduct
without government intervention. . . . The Texas statute furthers no legitimate
state interest which can justify its intrusion into the individual’s personal and
private life.”

On the other hand, the Court upheld the right of the Boy Scouts of America
to exclude homosexuals from positions as volunteer leaders, ruling that the First
Amendment’s freedom of association protections prohibited New Jersey from
using its nondiscrimination law, which includes sexual orientation as a protected
class, to require that the Boy Scouts accept leaders who are homosexual. (Boy
Scouts of America v. Dale, 530 U.S. 640 (2000)).

Although the EEOC has stated that Title VII does not extend to sexual orien-
tation discrimination (EEOC Compliance Manual § 615.2(b)(3)), state and fed-
eral courts have been more responsive to sexual orientation discrimination
claims brought under Section 1983 of the Civil Rights Act (see Section 3.5 of

436 Nondiscrimination and Affirmative Action in Employment

29As of late 2005, the following states prohibited discrimination on the basis of sexual orientation
in both private and public sector employment: California, Connecticut, Hawaii, Illinois, Maine,
Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New
York, Oregon, Rhode Island, Vermont, and Wisconsin. The District of Columbia also prohibits
such discrimination in both private and public employment. In six states, sexual orientation dis-
crimination is prohibited in public employment by law or Executive Order (Alaska, Arizona,
Colorado, Delaware, Indiana, Kentucky, Louisiana, Montana, Pennsylvania, and Washington)
(see http://www.lambdalegal.org).

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this book), alleging violations of the Fourteenth Amendment’s equal protection
clause.30 For example, in Miguel v. Guess, 51 P.3d 89 (Wash. Ct. App. 2002), a
state appellate court rejected the employer’s motion to dismiss a claim brought
by a hospital employee under Section 1983 that her dismissal was a result of
her sexual orientation, and that the dismissal violated the equal protection
clause. Although the employee was allowed to proceed on her Section 1983
claim, the court rejected her claim that a dismissal based on one’s sexual ori-
entation violated the public policy of the State of Washington because the state
legislature had not enacted a law prohibiting discrimination on the basis of sex-
ual orientation (Washington’s protection for gay employees is by Executive
Order, not statute). Similarly, in Lovell v. Comsewogue School District, 214 F.
Supp. 2d 319 (E.D.N.Y. 2002), a federal trial court denied the school district’s
motion to dismiss a teacher’s claims that the school principal was less respon-
sive to claims of sexual orientation harassment than he was to other types of
harassment claims. The court stated that treating harassment complaints on the
basis of sexual orientation differently than other types of harassment claims
was, if proven, an equal protection clause violation, and actionable under Sec-
tion 1983. On the other hand, a college that responded promptly to a staff mem-
ber’s complaints of sexual orientation harassment was successful in obtaining
a summary judgment when the staff member resigned and then sued under
Section 1983, asserting an equal protection clause violation (Cracolice v. Metro-
politan Community College, 2002 U.S. Dist. LEXIS 22283 (D. Neb., November
15, 2002)).

Although not all same-sex harassment claims involve claims of sexual ori-
entation discrimination, there is considerable overlap between the two. Same-
sex harassment claims are potentially actionable under Title VII, while claims
of sexual orientation discrimination and/or harassment are not. (The following
discussion is adapted from Mary Ann Connell, “Evolving Law in Same-Sex
Harassment and Sexual Orientation Discrimination,” 23rd Annual National
Conference on Law and Higher Education, Stetson University College of Law,
February 18, 2002.)

The U.S. Supreme Court recognized a cause of action for same-sex sexual
harassment in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1997), dis-
cussed in Section 5.3.3.3. Connell divides post-Oncale claims of same-sex
harassment into three categories: (1) “desire” cases, in which there is evidence
that the harasser sexually desires the target; (2) “hate” cases, in which there is
evidence that the harasser is hostile to the presence of a particular sex in the

5.3.7. Sexual Orientation 437

30Cases and authorities are collected in Elizabeth Williams, Annot., “Same-Sex Harassment Under
Title VII (42 U.S.C. §§ 2000e et seq.) of Civil Rights Act,” 135 A.L.R. Fed. 307; Norma Rotunno,
Annot., “Same-Sex Sexual Harassment Under State Antidiscrimination Laws,” 73 A.L.R.5th 1;
Robin Cheryl Miller, Annot., “Validity, Construction, and Application of State Enactment, Order,
or Regulation Expressly Prohibiting Sexual Orientation Discrimination,” 82 A.L.R.5th 1; and
Robin Cheryl Miller, Annot., “Federal and State Constitutional Provisions as Prohibiting Discrimi-
nation in Employment on Basis of Gay, Lesbian, or Bisexual Sexual Orientation or Conduct,”
96 A.L.R.5th 391.

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workplace; and (3) cases in which the court examines the alleged harasser’s
treatment of both sexes in the workplace.

An illustrative “desire” case is Mota v. University of Texas Houston Health
Science Center, 261 F.3d 512 (5th Cir. 2001). The plaintiff claimed that he was
harassed repeatedly by his male supervisor and department chair, who made
unwanted and offensive sexual advances toward the plaintiff on several occa-
sions at out-of-town conferences. The jury found for the plaintiff against the
university (the alleged harasser had settled with the plaintiff prior to trial);
the appellate court upheld the jury verdict, ruling that the university had failed
to respond properly and to correct the harassment.

“Hatred” cases involve claims either that the plaintiff was harassed because
he or she did not conform to gender stereotypes, or because the alleged
harasser was motivated by contempt for the individual’s sexual orientation.
Plaintiffs bringing hatred cases based on sex stereotyping have been success-
ful in a limited number of cases, but plaintiffs attempting to attack alleged
harassment based on sexual orientation have been unsuccessful under
Title VII. For example, the U.S. Court of Appeals for the Ninth Circuit found
for a plaintiff who claimed that he was harassed because his behavior did not
conform to the male stereotype. In Nichols v. Azteca Restaurant Enterprises,
256 F.3d 864 (9th Cir. 2001), the court ruled that a four-year pattern of verbal
abuse by coworkers based on the plaintiff’s effeminate behavior violated Title
VII. But those courts that have characterized a same-sex harassment claim as
grounding in sexual orientation discrimination rather than stereotyping have
rejected plaintiffs’ Title VII claims (see, for example, Dandan v. Radisson Hotel
Lisle, 2000 U.S. Dist. LEXIS 5876 (N.D. Ill. March 28, 2000)), even if the harass-
ment was instigated by individuals who disliked the plaintiff’s nonconforming
behavior.

An en banc ruling by the U.S. Court of Appeals for the Ninth Circuit, if fol-
lowed by other circuits, may enable plaintiffs to establish sexual orientation
harassment claims under Title VII. In Rene v. MGM Grand Hotel, Inc., 243 F.3d
1206 (9th Cir. 2001), reversed and remanded, 305 F.3d 1061 (9th Cir. 2002)
(en banc), the plaintiff asserted that he had endured severe and pervasive offen-
sive physical conduct of a sexual nature, including numerous assaults, because
of his perceived homosexuality. The trial court had granted the employer’s
motion for summary judgment, ruling that the plaintiff had not stated a claim
under Title VII because the law did not prohibit discrimination on the basis of
sexual orientation. A split three-judge panel of the Ninth Circuit agreed. That
ruling was vacated, and the eleven-judge en banc court reversed. With four
dissenting votes, the judges ruled that

an employee’s sexual orientation is irrelevant for purposes of Title VII. It neither
provides nor precludes a cause of action for sexual harassment. That the harasser
is, or may be, motivated by hostility based on sexual orientation is similarly irrel-
evant, and neither provides nor precludes a cause of action. It is enough that the
harasser have [sic] engaged in severe or pervasive unwelcome physical conduct
of a sexual nature. We therefore would hold that the plaintiff in this case has
stated a cause of action under Title VII [305 F.3d at 1063–64].

438 Nondiscrimination and Affirmative Action in Employment

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The en banc court justified its reasoning by explaining that the conduct in
Rene was similar to the offensive conduct in Oncale, which occurred in an all-
male work environment, as did the harassment in Rene. But the ruling in this
case appears to be a departure from the language of Oncale, which states that the
offensive conduct must be directed at the target because of his or her sex; Rene
appears to base its ruling on the sexual nature of the conduct, not the sex of
the target. Two judges wrote opinions concurring in the result, but stating that
they believed the proper theory of the case was sexual stereotyping, citing
Price Waterhouse v. Hopkins (Section 5.2.1) and the Ninth Circuit’s opinion in
Nichols, discussed above. The dissenters disagreed with the majority’s assertion
that the sex or motive of the harasser was irrelevant as long as the conduct was
sexual in nature.

The third category of post-Oncale cases involves claims that both men and
women were subject to offensive sexualized treatment at work. In these cases,
if the employer can demonstrate that both sexes were equally subject to the
same type of offensive behavior, there is no Title VII violation (see, for exam-
ple, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000)). But in some cases, the
courts have ruled that the motives for the sexualized treatment of men were dif-
ferent than the motives of the offensive behavior toward women, and have
allowed the claims to go forward (see, for example, Steiner v. Showboat
Operating Company, 25 F.3d 1459 (9th Cir. 1994)).

Title IX prohibits discrimination on the basis of sex at colleges and universi-
ties receiving federal funds, and its enforcement guidelines specifically address
the possibility of claims involving same-sex discrimination or harassment (OCR,
Revised Sexual Harassment Guidance: Harassment of Students by School Employ-
ees, Other Students, or Third Parties (available at http://www.ed.gov/ocr/
shguide/index.html)). Most federal courts, however, have ruled that claims of
employment discrimination cannot be brought under Title IX because Title VII
provides the federal remedy for sex discrimination (see Section 5.2.3).

In addition to employment discrimination or harassment claims, some col-
leges have faced litigation concerning the availability of medical and other
benefits for the partners of gay employees. According to a survey conducted by
the Lambda Legal Defense and Education Fund in mid-2001, more than eighty
colleges offer domestic partner benefits to their employees (see http://www.
lambdalegal.org/cgi-bin/iowa/documents/record?record-21).

Access to employment benefits for the partners of homosexual employees is a
matter generally governed by state or local law.31 One state, Vermont, has
enacted a law that allows same-sex couples to enter into civil unions, a sta-
tus that provides the couple with the same legal benefits and responsibilities
enjoyed by married heterosexual couples (Vt. Stat. Ann. Tit. 32, 3001(c)). Other
state legislatures may follow suit, although there is considerable opposition to
these laws and their future is uncertain. Unless state law forbids it, a college
may offer benefits to unmarried domestic partners, and may choose to limit this

5.3.7. Sexual Orientation 439

31As of late 2005, twelve states offered domestic partnership benefits to public employees (see
http://www.lambdalegal.org).

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benefit to same-sex domestic partners on the grounds that they are not allowed
to marry.

With respect to the availability of domestic partner benefits in states that
have not enacted civil union laws, state courts have made opposing rulings in
litigation concerning health insurance coverage for the domestic partners of gay
employees. The state supreme court of Alaska ruled that the university’s refusal
to provide health insurance for the domestic partners of unmarried employees
was a violation of the Alaska Human Rights Act (AS 18.80.220(a)(1)), which
forbids employment discrimination on the basis of marital status. However, a
New Jersey appellate court has ruled that Rutgers University did not violate state
law when it refused to provide health benefits to the domestic partners of gay
employees.

In the Alaska case, University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska
1997), the court noted that the university had admitted that its position on
health insurance constituted discrimination on the basis of marital status. But
the university argued that the Human Rights Act’s prohibition against such dis-
crimination did not apply to these circumstances because the plaintiffs were not
“similarly situated” to married couples in that they were not legally obligated
to pay the debts of their domestic partners. The state’s high court disagreed,
saying that the university had three options, all of which complied with the
Human Rights Act.

1. It could refuse to provide health insurance for spouses of its employees;

2. It could rewrite its plan to include within the category of “dependents” all
individuals for whom its employees provide the majority of financial
support;

3. It could rewrite the plan to specifically include coverage for domestic partners
and could require employees and their partners to provide affidavits of
spousal equivalency [933 P.2d at 1148].

Nor did the state laws governing health benefits for public employees super-
sede the Human Rights Act or prohibit the university from providing health
insurance for unmarried domestic partners. Stating that the “clear language”
of the law prohibits marital status discrimination, the court unanimously ruled
for the plaintiff-employees. (In 1995, the university had changed its policy to
provide benefits to those who provided “spousal equivalency” affidavits; in the
Tumeo litigation, it had sought clarification of whether the law actually required
such a program; see Lisa Guernsey, “State Courts Split on Benefits for Domes-
tic Partners,” Chron. Higher Educ., March 28, 1997, A13.)

The New Jersey case, Rutgers Council of AAUP Chapters v. Rutgers, The State
University, 689 A.2d 828 (N.J. Super. A.D. 1997), certification denied, 707 A.2d
151 (N.J. 1998), differs from the Alaska situation in several respects. First,
although the state’s Law Against Discrimination outlaws employment discrim-
ination on the basis of both marital status and sexual orientation, the law con-
tains an exemption for employee benefits plans. Therefore, the court was
required to examine the wording of the state’s statute on health benefits for state

440 Nondiscrimination and Affirmative Action in Employment

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Account: leland

employees, which defines “dependents” as children of married spouses. Find-
ing no language in the benefits statute that would compel the university to pro-
vide insurance for unmarried domestic partners, the trial judge noted that the
impetus for providing such benefits should come from the legislature, not
the courts; a first step would be to legalize marriage between gay or lesbian cou-
ples, according to the judge. Concurring judges noted that, although they could
not disagree with the legal analysis, they found the decision “distasteful” and
unfair, and urged the legislature to take action. The legislature did so, passing
the Domestic Partnership Act (N.J. Stat. §§ 26:8A-1 et seq.) in 2004. The law
requires the state to provide health benefits to dependent domestic partners of
state employees.

In a third case, an Oregon appellate court ruled that the state constitution
requires the Oregon Health Sciences University to provide life and health insur-
ance benefits for the domestic partners of gay and lesbian employees. In Tanner
v. Oregon Health Sciences University, 971 P.2d 435 (Ore. Ct. App. 1998), three
lesbian nursing professionals challenged the university’s refusal to provide med-
ical and dental insurance benefits for their domestic partners. (Although the
university had adopted an employee benefit plan during the pendency of this
litigation that provided benefits for domestic partners of its employees, it
maintained that it was not legally required to do so.)

The plaintiffs presented both statutory and constitutional claims. In regard
to the former, the plaintiffs had argued that the university’s policy of “treating
all unmarried employees alike” with respect to the availability of benefits for
domestic partners was a violation of the state’s nondiscrimination law, which
includes sexual orientation as a protected class, because homosexual couples
could not marry. Although the court found that the university’s “practice of
denying insurance benefits to unmarried domestic partners of its homosexual
employees had an otherwise unlawful disparate impact on a protected class,”
it also found that the university’s benefits policy was not a subterfuge to dis-
criminate against homosexuals, and thus, under Oregon statutory law, the uni-
versity did not engage in an unlawful employment practice (971 P.2d at 444).

But the constitutional claim was a different matter. The court had to deter-
mine whether unmarried homosexual couples are members of a suspect class.
The court determined that they were:

[S]exual orientation, like gender, race, alienage, and religious affiliation is
widely regarded as defining a distinct, socially recognized group of citizens, and
certainly it is beyond dispute that homosexuals in our society have been and
continue to be the subject of adverse social and political stereotyping and preju-
dice [971 P.2d at 447].

Although there was no showing that the university intended to discriminate
against the plaintiffs on the basis of their sexual orientation, “its actions have
the undeniable effect of doing just that. . . . What is relevant is the extent to
which privileges or immunities are not made available to all citizens on equal
terms” (971 P.2d at 447). Since homosexual couples were not permitted to

5.3.7. Sexual Orientation 441

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Account: leland

marry, said the court, denying homosexual employees benefits for their domes-
tic partners on the basis of marital status violated Article I, Section 20 of the
Oregon constitution.

The issue of domestic partner benefits has been addressed in two opinions
of the Vermont Labor Relations Board. In the first, Grievance of B.M.S.S. et al.,
16 VLRB 207 (1993), a case arising prior to the passage of the Vermont Civil
Union law, the state labor board ruled that the university had committed an
unfair labor practice under the State Employee Labor Relations Act (3 V.S.A.
§ 901 et seq.) by denying medical and dental benefits to the partners of gay and
lesbian employees. Section 961(6) of the law prohibits discrimination on the
basis of sexual orientation. The labor board concurred with the grievants’ char-
acterization of the denial of benefits as disparate impact discrimination, fol-
lowing the theory of Griggs v. Duke Power Co. (discussed in Section 5.2.1), and
ordered the university to provide medical and dental benefits to the domestic
partners of its gay and lesbian employees within sixty days.

In a second case involving the same university, Willard Miller v. UVM, 24
VLRB 1 (2001), an unmarried faculty member claimed that the university’s
refusal to provide medical and dental benefits to his female domestic partner
violated the university’s own policies against discrimination on the basis of
sexual orientation. Shortly after the Vermont Civil Union law was passed, the
university notified all of its employees that dependents (whose definition
includes spouses or “same-sex spousal equivalents”) would be entitled to med-
ical and dental benefits only if the employee was either married to the spouse
or had entered a civil union with a “same-sex spousal equivalent.” The labor
board reasoned that there was no disparate impact on unmarried heterosexual
employees with domestic partners because there was no legal impediment to
their marrying. Now that employees could qualify for health benefits for spouses
by either marrying or entering a civil union, there was no disparate impact on
the grounds of sexual orientation. The labor board denied Miller’s claim.

The military services’ ban on homosexuals has posed several problems for col-
leges whose employment and student life policies prohibit discrimination on the
basis of sexual orientation. The military’s policy has raised issues of whether
the military may recruit students at campus locations, whether a campus is will-
ing to host Reserve Officer Training Corps units, and eligibility for research funds
from the U.S. Department of Defense. Under current federal law, institutions
whose nondiscrimination policies include protections for sexual orientation or
gender identity must, however, give the military access to their students for
recruitment purposes. The “Solomon Amendment,” discussed in Section 13.4.3,
requires that colleges provide such access or risk the loss of federal funds.

Sec. 5.4. Affirmative Action

5.4.1. Overview. Affirmative action has been an intensely controversial con-
cept in many areas of American life. While the ongoing debate on affirmative
action in student admissions (Section 8.2.5) parallels in its intensity the

442 Nondiscrimination and Affirmative Action in Employment

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affirmative action debate on employment, the latter has been even more contro-
versial because it is more crowded with federal regulations and requirements.
In addition, beneficiaries of affirmative action in employment may be more
visible because they compete for often-scarce openings, particularly for faculty
or other professional positions.

Affirmative action in employment is governed by federal Executive Orders
(Section 5.2.8) and related federal contracting statutes, by Title VII of the Civil
Rights Act of 1964 (Section 5.2.1), and by the equal protection clause of the
Constitution’s Fourteenth Amendment (Section 5.2.7). The affirmative action
requirements of the Executive Orders apply to contractors with fifty or more
employees who receive federal contracts of at least $50,000 (which covers most
colleges and universities), while the equal protection clause applies only to pub-
lic colleges and universities. Title VII applies to both private and public colleges.
Each of these authorities poses somewhat different obligations for employers
and involves different legal analyses.

Affirmative action became a major issue because the federal government’s
initiatives regarding discrimination have a dual aim: to “bar like discrimination
in the future” and to “eliminate the discriminatory effects of the past”
(Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)). Addressing this latter
objective under Title VII, courts may “‘order such affirmative action as may be
appropriate’” (Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), quot-
ing Albemarle). Affirmative action can be appropriate under Franks even though
it may adversely affect other employees, since “a sharing of the burden of
the past discrimination is presumptively necessary.” Under statutes other than
Title VII, and under Executive Orders 11246 and 11375, courts or administrative
agencies may similarly require employers, including public and private post-
secondary institutions, to engage in affirmative action to eliminate the effects of
past discrimination.

Executive Orders 11246 and 11375 (see Section 5.2.8) have been the major
focus of federal affirmative action initiatives. Aside from their basic prohibition
of race, color, religion, sex, and national origin discrimination, these executive
orders require federal contractors and subcontractors employing fifty or more
employees and receiving at least $50,000 in federal contracts to develop affir-
mative action plans. The implementing regulations were revised in 2000 (65 Fed.
Reg. No. 219, November 13, 2000) and are codified at 41 C.F.R. Parts 60-1 and
60-2. Section 60-1.40 of the regulations requires that a contractor have an affir-
mative action program. 41 C.F.R. Section 60-2.10 lists the required elements of
an affirmative action program. One requirement is “placement goals” (41 C.F.R.
§ 60-2.16), which the contractor must establish in light of the availability of
women and minorities for each job group. The regulation states that “placement
goals may not be rigid and inflexible quotas which must be met, nor are they to
be considered as either a ceiling or a floor for the employment of particular
groups. Quotas are expressly forbidden” (41 C.F.R. § 60-2.16 (e)(1)).

An institution’s compliance with affirmative action requirements is monitored
and enforced by the Office of Federal Contract Compliance Programs (OFCCP),

5.4.1. Overview 443

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