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Employment discrimination

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Description: Act of making decisions related to hiring and promoting workers based on nonjob-related characteristics such as race, color, religion, national origin, gender, age, and disability.


Significance: The Fourteenth Amendment prohibits state-sponsored discrimination, and Congress, through its authority to regulate interstate commerce, passed several important statutes preventing employment discrimination. Through the Supreme Court's power to interpret these statutes, it influences employment discrimination law and policy.


Title VII of the Civil Rights Act of 1964 (including its amendments) is the most important employment discrimination statute in U.S. law. It forbids employment discrimination on the grounds of race, color, religion, sex, or national origin by private companies (with at least fifteen employees), labor unions, employment agencies, and federal, state, and local governments. The statute also created the Equal Employment Opportunity Commission (EEOC) to investigate charges of discrimination, attempt to work an agreement, and if necessary file suit in federal court on behalf of the plaintiff. Congress also passed the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990, which extend similar protections against age and disability discrimination in the workplace. Although some Supreme Court litigation addressed employment discrimination in religion, national origin, disability, and age, the bulk of the Court's influence was in the areas of race and gender.


Race

Because racial discrimination has been so prominent in U.S. history, most of the Court's rulings involving Title VII concern race. In Griggs v. Duke Power Co. (1971), the Court had to decide whether African Americans could pursue a Title VII claim for employment practices that were not intended to discriminate but nevertheless put them at a disadvantage. The Duke Power Company used an examination as a standard for hiring and promotion. On this test, not directly related to job duties, blacks generally scored lower than whites. The Court ruled unanimously that even if there is no discriminatory intent, a practice that has a disparate impact on a protected class constitutes a Title VII violation. However, in Wards Cove Packing Co. v. Atonio (1989), the Court held that to establish disparate impact, plaintiffs needed to go beyond demonstrating that a particular practice caused a statistical disparity. Plaintiffs must also prove that the disparity did not result from a business necessity. The Civil Rights Act of 1991 reversed the Court's interpretation in Wards Cove, shifting the burden of proof to the employer to show that the employment practice is directly related to the position in question and is necessary for the normal operation of the business. Furthermore, in McDonnell Douglas Corp. v. Green (1973), the Court addressed how to prove discriminatory intent (disparate treatment). McDonnell Douglas refused to rehire a black worker who had protested his layoff by criminally trespassing on McDonnell Douglas property. Although the Court sided with McDonnell Douglas, it did articulate a procedure for proving disparate treatment, which generally favors plaintiffs. First, the employee must show only that he/she is a member of a racial minority, applied and was qualified for the job, was rejected, and the position remained open. Then, the employer has a chance to provide a nondiscriminatory reason for its practice, but the plaintiff still has an opportunity to demonstrate that the employer's claim is a pretext for discrimination. In short, when a plaintiff alleges disparate treatment, the employer shoulders the burden of justifying the employment practice. Not all racial employment discrimination litigation is based on Title VII. In Johnson v. Railway Express Agency (1975), the Court ruled that the Civil Rights Act of 1866 prohibited racial discrimination in private contracts, including discriminatory hiring. In Patterson v. McLean Credit Union (1989), the Court refused to apply this statute to racial harassment in the workplace. However, the Civil Rights Act of 1991 amended the 1866 act to cover racial harassment.


Gender

Because gender discrimination is covered under Title VII, the landmark rulings for race apply to women as well, although there are several issues that are distinct for sex discrimination. First, Title VII allows for discrimination in cases in which it may be reasonably necessary for the operation of the business in question, thus establishing the bona fide occupational qualification exception. In upholding Alabama's exclusion of women from guard positions in maximum security prisons, the Court nevertheless articulated a stringent standard for allowing an occupational qualification exception in Dothard v. Rawlinson (1977). Any bona fide occupational qualification must be a “business necessity,” which is usually difficult for an employer to establish. In Automobile Workers v. Johnson Controls (1991), the Court ruled that a battery manufacturer may not use the bona fide occupational qualification to exclude women of childbearing age from jobs that expose them to toxic materials that may damage a potential fetus. Another gender discrimination issue concerns sexual harassment. In Meritor Savings Bank v. Vinson (1986), the Court ruled that sexual harassment did constitute sexual discrimination under Title VII. It decided further that a plaintiff could bring Title VII action even if she does not suffer any physical or psychological damage (Harris v. Forklift Systems, 1993) or is unable to establish employer negligence (Burlington Industries v. Ellerth, 1998).



Further Reading

  • Bloch, Farrell. Antidiscrimination Law and Minority Employment. Chicago: University of Chicago Press, 1994.
  • Epstein, Richard A. Forbidden Grounds: The Case Against Employment Discrimination Laws. Cambridge, Mass.: Harvard University Press, 1992.
  • Friedman, Joel William, and George M. Strickler. Cases and Materials on the Law of Employment Discrimination. Westbury, N.Y.: Foundation Press, 1997.
  • Hall, Kermit L. Freedom and Equality: Discrimination and the Supreme Court. New York: Garland, 2000.
  • Player, Mack A., Elaine W. Shoben, and Risa L. Liebowitz. Employment Discrimination Law Cases and Materials. St. Paul, Minn.: West Publishing, 1995.