Discrimination

Antidiscrimination Laws

The “big three” federal antidiscrimination statutes—Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA)—are discussed below. The cumulative effect of these laws is that employers may not discriminate against employees on the basis of race, color, national origin, religion, sex (gender), age (40 years and older), or disability. A host of other federal laws and myriad state and local laws forbid discrimination based on additional criteria, such as sexual orientation, gender identity, marital status, familial status, medical condition, political affiliation, military discharge status, weight, height, and physical appearance.8

In public employment, an oft-cited goal of antidiscrimination laws and affirmative action initiatives is a representative bureaucracy. Has this objective been accomplished? A study using data from 2000 found that the federal government employed a higher proportion of African Americans, Asian Americans, and persons categorized as “Native Americans and others” and a lower proportion of Hispanics than would be expected based on the labor pool, leading the authors to conclude that affirmative action programs have increased the overall representation of minorities but benefited certain groups at the expense of others (Kogut & Short, 2007). Other scholars have noted that, as of 2000, women were still grossly underrepresented in high-level positions (Hsieh & Winslow, 2006). More generally, critics contend that current antidiscrimination law is out-of-date because it addresses only conscious prejudice, not unconscious bias, which persists (Cunningham, Preacher, & Banaji, 2001). The demographic changes in America’s workforce, the legal erosions of affirmative action, and new understandings derived from psychological and sociological research pose ongoing challenges to those devising future diversity efforts, a topic covered in Chapters 3 and 4. (Exhibit 2.6 explains how antidiscrimination laws are enforced in the public sector.)

Exhibit 2.6 It’s Good to Be the Government

Intentional Discrimination

Title VII, the ADEA, and the ADA make it unlawful for an employer to make an adverse employment decision because of an individual’s race, color, religion, sex, national origin, age, or disability. The most straightforward claim is one alleging disparate treatment discrimination, also known as intentional discrimination. Under this theory of liability, proving the motivation of the employer is key. But proving a person’s state of mind is difficult; a manager’s thought process cannot be observed, so her motivation must be inferred from statements and actions. One way a plaintiff may prove discriminatory motivation is with direct evidence—a written or oral statement revealing bias—for example, a supervisor calling an employee a “black radical” while firing him. The timing and context of a statement are important. For example, a supervisor’s remark that all Italians are “mobsters and goombahs,” uttered to a coworker several months before the employee’s discharge, was not adequate to prove anti-Italian bias toward the plaintiff at the time of his discharge.

The civil rights laws are decades old, and few supervisors, even if they harbor strong prejudices, are unwise enough to vent them. A more common and more complicated way an employee may prove intentional discrimination is through indirect evidence. Here, the plaintiff relies on the employer’s actions to support an inference of unlawful motive. First, the plaintiff must present evidence that he or she was treated differently based on a forbidden criterion. (In a hiring case alleging race discrimination, the Supreme Court said the plaintiff could do this by proving that the complainant belongs to a racial minority; that the complainant applied for and was qualified for a job for which the employer was seeking applicants; that, despite the complainant’s qualifications, he or she was rejected; and that, after the rejection, the position remained open and the employer continued to seek applicants from persons of the complainant’s qualifications. These elements can be adapted to fit promotion, discharge, and other adverse action claims.) Second, the employer can defeat the plaintiff’s claim by presenting evidence that it had a legitimate business reason for its action. Third, the plaintiff can introduce evidence to show that the employer’s stated business reason was a pretext to hide its real discriminatory motive. This analytical approach, known as the McDonnell Douglas burden-shifting framework, was announced by the Supreme Court in McDonnell Douglas Corp. v. Green (1973), and it is used in the vast majority of discrimination cases.

Employers have many defenses available. Typically, an agency argues that the adverse action was prompted by a legitimate business reason and the supervisor had no discriminatory intent. But sometimes the evidence shows that the supervisor had

a mixed motive, meaning that he or she was motivated by a legitimate business reason and an unlawful criterion. Imagine, for example, a boss who fires a prison guard for arriving late and for speaking Spanish to coworkers on breaks. Under Title VII, if an employer proves it would have made the same decision without considering the illegal factor, the victim’s remedies are limited to a declaration that the conduct was unlawful, reinstatement, and attorney’s fees. Under the ADEA and ADA, a mixed motive is an absolute defense; the plaintiff receives nothing.

Title VII and the ADEA prevent employers from segregating workers in positions on the basis of a proscribed dimension. For example, employers may not limit job applicants for a position to those under 40 years of age. But these acts allow segregation in the rare circumstances where it is an essential requirement of the position, known as a bona fide occupational qualification (BFOQ). An example would be auditioning only female actors for a female role. Race is never a BFOQ. Today, BFOQs are seldom utilized because they are difficult to defend. Thus, a men’s prison may not make “being male” a job qualification for guards unless it can show that, for job-related reasons, females must be excluded. (Exhibit 2.7 discusses the need to prohibit employers from making decisions based on sexual orientation and gender identity.)

Exhibit 2.7 Inclusive Nondiscrimination Policies: Sexual Orientation and Gender Identity and Expression

Retaliation

The antidiscrimination statutes not only prohibit discrimination but also prohibit reprisal. Title VII, the ADEA, and the ADA make it unlawful to discriminate against an individual because of opposition to a prohibited employment practice or because of participation in an investigation, proceeding, or hearing. An employee who reports being sexually harassed and is fired as a consequence is a victim of retaliation. To prevail on a retaliation claim, a plaintiff must prove that she engaged in a protected activity, that adverse action was taken against her, and that there was a causal connection between the two. As with discrimination claims, the employer’s motive may be proven with direct or indirect evidence. Many other laws, including the FLSA, the FMLA, 42 U.S.C. § 1981, whistleblower acts, civil rights acts, and workers’ compensation acts, protect employees from retaliation.

In 2013, retaliation claims accounted for approximately 41% of all charges filed with the EEOC. Strategically, such claims offer plaintiffs an advantage: Causation is often easier to prove than in discrimination claims. The time sequence alone— protected activity followed by discipline—may be enough to suggest a cause-and-effect relationship, especially if the events occurred close together. From the employer’s perspective, these claims are a disincentive to discipline individuals who recently engaged in protected activity. Exhibit 2.8 demonstrates how an employer might respond to an accusation that it failed to hire an employee for a new position because he previously filed a discrimination complaint.

Harassment

Title VII makes it unlawful for an employee to be subjected, on the basis of a proscribed criterion, to unwelcome harassment that is severe or pervasive enough to create an objectively hostile or abusive work environment. Many people associate harassment claims with gender discrimination (i.e., sexual harassment), but a claim is viable if an employee is harassed due to any characteristic listed in Title VII, the ADEA, or the ADA. Typically, it is the behavior of supervisors, coworkers, and others who interact regularly with the employee that creates a hostile environment.

Exhibit 2.8 Employer’s Response to Charge of Retaliation

SOURCE: Sally Gertz, Clinical Professor

Whether objectionable conduct is severe or pervasive enough to be unlawful is often the pivotal question. These laws are not “general civility codes,” and they do not provide redress for behavior that is simply rude, abrasive, unkind, or insensitive. Courts look at the gravity, frequency, duration, character, and threatening nature of the conduct. Occasional racial or ethnic slurs are seldom enough to create a hostile environment, but a 6-month period of being called “ayatollah” and “camel jockey” was sufficient to support an Iraqi employee’s claim.

In another case, a female employee who acquiesced to her supervisor’s ongoing unwelcome sexual conduct established a claim. And non-English-speaking workers forced to abide by an employer’s English-only rules were successful.

An employer has a defense to a hostile environment claim, the Ellerth/Faragher affirmative defense, if it exercises reasonable care to prevent and correct the harassment, and if the employee unreasonably fails to use the remedial procedures. An organization can reasonably prevent harassment by adopting adequate policies and procedures, ensuring that all staff members receive the policies, and training supervisors to handle complaints properly. The Virginia Department of Corrections is a good example of an employer that avoided liability by quickly correcting harassment. A supervisor distributed a memo to prison personnel about dress codes and identified the plaintiff as someone who wore attire that was too revealing. After the memo was distributed, coworkers made crude jokes. Managers at the prison prevented public posting of the memo, counseled the supervisor who wrote and distributed it, admonished the employees who made the offensive remarks, and stopped the harassment. When nonsupervisory coworkers or nonemployees (such as customers, contractors, or others sharing the work site) create a hostile work environment, the agency is responsible if it was negligent, meaning if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

One of the toughest hostile environment claims to defend against is one that involves tangible employment action—a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a significant change in benefits. An example would be an administrative assistant who resists a boss’s sexual demands and is given less desirable work assignments. If a supervisor takes tangible employment action against a victim based on unwelcome sexual conduct, the employer faces a tough legal battle because the Ellerth/Faragher affirmative defense is not available. For managers, the lesson is that all personnel actions should be scanned for improper motivation.

Affirmative Action

Beginning in the early 1960s, many government employers voluntarily adopted affirmative action plans to increase the numbers of employees from groups historically excluded from their workplaces. They also adopted rules requiring vendors seeking contracts from the government to adopt such plans. These plans used various means to achieve a more representative workforce, including targeted recruitment and training programs, numerical goals and timetables, and special preferences in hiring and promotion. In the 1980s and 1990s, court decisions raised doubts about the lawfulness of these plans under both Title VII and the Equal Protection Clause, and most were modified or suspended. Even when affirmative action programs are legal they are contentious because they contain a conspicuous paradox: They use race-based decision making to remedy harm caused by race-based decision making. Understandably, critics ask: If race was an unfair criterion to use in the past, how can it be a fair criterion to use now? (Such programs do include women and other minorities, but the debate over affirmative action usually is couched in terms of race.)

Title VII protects all groups, including majority groups, from discrimination. As a result, a white employee, for example, who has been treated disparately on the basis of race due to an affirmative action plan may use Title VII to bring an action for reverse discrimination. Additionally, Title VII requires any affirmative action program to be described in a formally adopted plan. The plan must remedy conspicuous racial imbalances in traditionally segregated job categories, it must be temporary, its purpose must be to remedy underrepresentation (not to maintain gender or racial balances indefinitely), and it must not unduly trammel the rights of the majority.

Under the Equal Protection Clause, a government affirmative action program based on race or ethnicity is reviewed using the exacting strict scrutiny standard. It is constitutional only if it is narrowly tailored to further a compelling governmental interest. To date, only the goal of remedying past discrimination has been compelling enough for the Supreme Court to approve a plan. Furthermore, the government adopting the plan must provide convincing proof of its own past discrimination.9 If an affirmative action program is based on gender rather than on race or ethnicity, it receives less rigorous intermediate judicial scrutiny; it will be approved if it has a substantial relationship to an important governmental interest.

The most prominent case in this area in the recent past did not involve employment. In 2003, the Supreme Court decided in Grutter v. Bollinger that the University of

Michigan Law School could constitutionally use a race-conscious admissions policy because the law school had a compelling interest in attaining a diverse student body. The impact of this decision in the public employment context is still unclear. Prior to Grutter, it was widely accepted that attaining workforce diversity was not a sufficiently compelling reason for a race-based program. But after Grutter, the Seventh Circuit approved a plan by the city of Chicago to increase diversity among its police sergeants. The city’s compelling reason was its desire to set the proper tone in the department and to earn the trust of the community, which in turn would increase police effectiveness. This is an area where caution and expert advice are necessary. A plan that seeks cultural diversity runs the risk of being denounced as unlawful racial or ethnic balancing.

In rare cases, affirmative action plans may be involuntarily imposed on employers by courts to remedy past discrimination. In 1987, for example, after years of litigation, a federal court ordered the Alabama Department of Public Safety to use quotas to increase the number of minority state troopers. The Supreme Court approved the plan because of the department’s history of overt and defiant racism.

Unintentional Discrimination

In addition to intentional discrimination, Title VII, the ADA, and the ADEA prohibit neutral practices that inadvertently produce a disproportionate or disparate impact on a protected group. The Supreme Court first accepted the theory in Griggs v. Duke Power Co. (1971), and it was codified in the Civil Rights Act of 1991. Disparate impact discrimination claims most frequently challenge hiring and promotion devices, but the theory can be used for layoffs and other employment practices. To aid enforcement, the EEOC requires employers to maintain records of all hiring, promotion, and firing by race, sex, and national origin. Hiring and promotion test scores also must be kept.

To prove disparate impact, an employee must show that a specific selection device had an exclusionary effect. In Griggs, a high school graduation requirement and a battery of aptitude tests disproportionately excluded blacks from being hired. There is no “bright line” rule stating how much disparity is unlawful, but the EEOC uses an 80%, or four-fifths, “rule of thumb.” If the qualification rates of protected groups are less than 80% of the rate of the highest group, then the selection device is suspect. The Supreme Court has disparaged the EEOC’s 80% rule and has stated that

· “case-by-case” approach is necessary because “statistics come in a variety and their usefulness depends on all the surrounding facts and circumstances” (Watson v. Fort Worth Bank & Trust, 1988). Still, since the EEOC investigates and determines the merit of claims, and sometimes prosecutes them, agencies should use the 80% rule as a guide.

An employer can defend against a disparate impact claim by showing that a challenged practice is job related and a business necessity. This defense can be used for subjective procedures, such as interviews, and objective procedures, such as tests. To defend tests as job related, agencies must prove their validity. The EEOC adopted the Uniform Guidelines on Employee Selection Procedures to assist organizations with this endeavor. If a test is proven to have predictive validity, content validity, or construct validity under these guidelines, then it is job related and its use is justified even if it has a disparate impact. (Chapter 4 explains these validation methods in detail.)

Rather than validating tests, some employers have sought to avoid disparate impact claims by using scores creatively. For example, one agency adopted a cutoff score above which test performance was irrelevant; the court, however, ruled that the cutoff score had to be validated. Another minimized the relative weight of the exam in the selection process; here, the court found the practice to be an unlawful

affirmative action plan. Others took the top scores in each racial and gender group, a practice known as race norming, now prohibited by the Civil Rights Act of 1991. Still others used banding, meaning they treated applicants within a certain range as having identical scores. So far, this process has not been found unlawful, but certain aspects (such as bandwidth) may need to be validated. Finally, the city of New Haven invalidated test results altogether because none of the minority firefighters who passed the exam scored high enough to be considered for the vacant positions, and the city did not want to risk being found guilty of disparate impact discrimination. The Supreme Court held that New Haven’s decision to ignore test results violated Title VII.

Age

The ADEA is the main federal statute prohibiting age discrimination. It forbids discrimination against those at least 40 years old, on the basis of age, in the terms and conditions of employment. There is no claim for reverse discrimination by the young. Involuntary retirement generally may not be required, but mandatory retirement is permissible in public safety and executive policy-making positions. Voluntary early retirement incentives are permitted. The act provides a defense for an employer that uses a bona fide seniority system, and in rare instances age may be a bona fide occupational qualification. But employers cannot rely on stereotyped assumptions about older workers’ strength, endurance, or speed. Courts have struck down rules that limited the position of flight engineer to those under age 60 and that of bus driver to those under 65.

Disability

The ADA prohibits discrimination against any qualified person with a physical or mental impairment that substantially limits a major life activity. It also protects those with records of impairment, those regarded as impaired, and those who associate with impaired persons. Employers must provide qualified disabled persons with reasonable accommodation. The terms “qualified person,” “substantially limits,” and “major life activity” have spawned considerable litigation. When it was enacted, the ADA was hailed as a major step toward eradicating disability discrimination, but the Supreme Court issued several decisions that sharply limited the scope of the statute (Selmi, 2008). In response, Congress amended the ADA in 2008. The ADA Amendments Act (ADAAA) rejected numerous Supreme Court decisions and EEOC regulations narrowing the act’s coverage, and emphasized that the definition of “disability” should be interpreted broadly. One change is that the determination of whether a person has an impairment that qualifies for coverage now is made without any consideration of the impact of mitigating measures, such as medication or prosthetics (the impact of ordinary eyeglasses and contact lenses is considered). Still, even after the amendments, the line between minor conditions that are not covered by the act and substantially limiting impairments that are covered at times is fuzzy. In an attempt to provide more clarity, the EEOC issued regulations with examples of impairments that easily should be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.

To be covered by the ADA, a disabled person must be able to perform essential job functions. This means managers should identify essential job functions in a written job description and ask applicants if they can do them. When an employee requests to be accommodated, managers should make an individualized assessment, with the assistance of the human resource and legal departments, to determine if the person meets threshold conditions to be covered by the act. (Of course, an employer may voluntarily provide accommodation even when it is not legally required.) For qualified persons, accommodations likewise should be determined through individualized assessments. These might include, for example, reserved parking, special equipment, personal aides, part-time or flextime work schedules, and building renovations. Accommodations that cause undue hardship to employers are not required.

Religion

Religious employees may request time off for sacred holidays, schedules omitting work on the Sabbath, breaks during the workday to pray and a place to do so, and exceptions to dress and grooming codes. Title VII does more than simply prohibit religious discrimination. Similar to the ADA, it requires employers to make reasonable accommodation for religious beliefs and practices that do not impose undue hardship. “Reasonable accommodation” means that which is minimally necessary for the individual to fulfill his or her religious obligation or conscience. Organizations are not required to compensate workers for time off the job fulfilling religious duties, or to alter work schedules or duty assignments. According to the EEOC (2008), the most common forms of accommodation are (1) flexible scheduling, (2) voluntary substitutes or swaps of shifts and assignments, (3) lateral transfer or change of job assignment, and (4) modification of workplace practices, policies, or procedures. The Free Exercise Clause of the First Amendment (as balanced by the Establishment Clause) may expand a public employer’s duty to accommodate religiously motivated requests, but the law is unclear. The impact of the Religious Freedom Restoration Act of 1993 on the duty to accommodate also is uncertain. Managers need not accept an employee’s suggestion for accommodation, but if the employee offers one, it should be considered. The “Religious Discrimination” section of the EEOC Compliance Manual is available online and is a helpful resource for managers responding to accommodation requests (EEOC, 2008).

Preventing and Responding to Discrimination Claims

How can managers prevent discrimination and retaliation claims from occurring and successfully defend those that do arise? Agencies should have and be able to prove legitimate business reasons for the actions they take. Some basic strategies enable managers to do this. First, agency leaders should not act rashly, but should carefully gather and review all the facts before making personnel decisions. They should consciously articulate and use job-related criteria. By deliberating with other professionals, managers can make sounder and more defensible decisions, as such collective decisions are less likely to have been influenced by any one individual’s bad motives. Communication with employees also is essential. Open, two-way communication eliminates surprises, reduces the likelihood of suit, and increases the agency’s odds of winning. This should include regular, timely performance evaluations, with positive and negative feedback, and articulation of organizational expectations. When problems arise, supervisors should promptly discuss them with staff members and immediately write summaries of the conferences. Documenting such communication not only underscores management’s seriousness but also provides credible evidence. Judges and juries consider contemporaneous business records eminently more reliable than the self-serving testimony of individuals. Organizations should have policies in place prohibiting discrimination, should update them regularly, and should ensure that supervisors and employees receive them. Finally, supervisors and managers should treat all complaints of discrimination and retaliation seriously, regardless of whether complaints are made formally or informally.