Employment Discrimination Concepts Jody Blanke Distinguished Professor of

Employment Discrimination Concepts Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

Title VII o Prohibits discrimination on the basis of: n n n Race Color Gender Religion National origin 2

Theoretical Bases for Title VII Lawsuits o Disparate Treatment o Disparate Impact 3

Disparate Treatment o Employee’s Prima Facie Case: n Employee is a member of the class of persons protected by Title VII, n Employee applied for and was qualified for a job for which the employer was seeking applicants, n That despite these qualifications, employee was rejected, and n After this rejection, the position remained open and the employer continued to seek applicants with those same qualifications. 4

Disparate Treatment o Employer’s Defense: n Employer can defend by showing that it had a legitimate, nondiscriminatory reason for its decision. o Employee’s Counter: n Employee must prove that the grounds offered by the employer were merely a pretext for its actions and that discrimination was the real reason. o Mc. Donnell Douglas Corp. v. Green, p. 93 n Black civil rights activist protested after being laid off and was not rehired when new position became available. Supreme Court remanded case to give Green a chance to prove pretext. 5

Disparate Treatment o Employer may defend by showing that there is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the employer’s business n Available only in cases involving gender, religion and national origin (not for race or color) n The basis for preferring one group over another goes to the essence of what the employer is in business to do n Predominant attributes of the group discriminated against are inconsistent with that business 6

Disparate Treatment o BFOQ examples n Airlines and bus companies can have maximum age requirements n Airlines cannot hire only females as flight attendants o Wilson v. Southwest Airlines, p. 95 n Playboy can hire only females as Playboy Bunny servers o Essence of business – male entertainment n Hooters cannot hire only females as Hooters servers o Essence of business – serving spicy chicken wings 7

Disparate Impact o Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way. o Courts have determined the that the following screening devices have a disparate impact: n n Educational requirement – race, e. g. , Griggs v. Duke Power, p. 94 Credit status – gender, race Arrest record – race Height and weight requirements – gender, national origin 8

Disparate Impact o The Four-Fifths Rule is a rule of thumb that permits a 20% margin between the outcomes of the majority and the minority under a given screening device n i. e. , disparate impact is statistically demonstrated when the rate for a protected group is less than 80% (or four-fifths) of the higher scoring majority group o Employer can rebut the employee’s prima facie case by showing the existence of a business necessity n e. g. , requirement of credit history may result in fewer women hired, but handling large sums of money may warrant credit check o Employee would then have to prove that there is a means of addressing the issue that has less of an adverse impact 9