THE BASIC LAW OF EMPLOYMENT DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED

Transcription

1 THE BASIC LAW OF EMPLOYMENT DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED I. INTRODUCTION This section is designed to help you recognize and prevent discriminatory employment practices on the bases of race, color, religion, sex and national origin under Title VII of the Civil Rights Act of First, it discusses and gives examples of the two major types of employment discrimination -- (1) different or disparate treatment and (2) neutral conduct that has an adverse impact on groups protected by the law, disparate impact. Next, guidance is provided on three specific Title VII provisions: the prohibition of harassment, the bar against retaliating against persons who oppose employment discrimination, and the obligation for religious accommodation. More detailed guidance on specific issues of sex discrimination -- including sexual harassment, pregnancy discrimination and wage discrimination under Title VII and the Equal Pay Act -- and guidance on national origin, age and disability discrimination is provided in other volumes of this series. The legal theories of discrimination are presented from a practical standpoint, focusing on the bases on which courts have found employers liable for violations of Title VII. By understanding the theories of discrimination, you will be in a better position to determine whether actions undertaken in your own workplace violate Title VII. You will also be in a better position to prevent unlawful discrimination from occurring in the future. Note that while this publication focuses on the legal theories of discrimination under Title VII, some of the same theories apply under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). For more specific B - 1

2 applications under those statutes, consult the volumes in this series on Age and Disability Discrimination. II. GENERAL OVERVIEW OF TITLE VII Title VII of the Civil Rights Act of 1964 prohibits discrimination on the bases of race, color, religion, sex and national origin. Note that whites or blacks can be victims of race discrimination, and men or women can be victims of sex discrimination. Title VII s prohibition of discrimination includes discrimination in hiring, firing, promotions, wages, job assignments, fringe benefits and other terms and conditions of employment. Title VII covers private employers with 15 or more employees, and state and local government, as well as federal government employees. Title VII also prohibits employment agencies from discriminating when they refer people for jobs, and it prohibits unions from discriminating with regard to their membership. An employer or other covered entity that is found to violate Title VII is subject to the following remedies: Remedies for Title VII Violations Injunctive relief This is a court order prohibiting future discrimination. Hiring, Promotion or Reinstatement This means that the employer will be required to give the complainant the job that he or she would have had but for the discrimination. B - 2

3 Backpay with interest Back wages accrue from the date on which the discrimination first occurred, but not earlier than two years prior to the filing of an EEOC charge. Frontpay If it is determined that an individual was discriminatorily denied or terminated from a job, but there is no current vacancy, he or she can be awarded frontpay until a vacancy occurs. Frontpay has also been awarded in lieu of reinstatement where hostility between the employer and employee would make the employment relationship difficult and ineffective. Attorney s fees Compensatory damages In cases of intentional discrimination, complainants are eligible for compensatory damages for monetary and nonmonetary harm suffered as a result of the discrimination. Compensatory damages include damages for past pecuniary loss (out-of-pocket loss), future pecuniary loss (projected out-of-pocket loss) and non-pecuniary loss (emotional harm). B - 3

4 Punitive damages Punitive damages are available against non-governmental entities, where the discrimination was undertaken with malice or reckless indifference to the complainant s rights. The total amount of compensatory and punitive damages is subject to a cap ranging from $50,000 for employers with employees, to $300,000 for employers with more than 500 employees. That cap, however, does not apply to damages for past pecuniary losses due to the discrimination, nor does it apply to backpay or frontpay. (See additional guidance in this volume on Compensatory and Punitive Damages Under the Civil Rights Act of 1991 ). III. DISPARATE TREATMENT The most common type of Title VII violation is intentional discrimination, otherwise known as disparate treatment. A. Proof of Disparate Treatment Often, an individual who is fired or is denied a promotion feels that the employer s action was unfair. Even if it s true that the action was unfair, it might not necessarily be true that the action was discriminatory. The bottom line is this: was the person treated differently because of his or her race, sex, religion, color or national origin? Put another way, did a person s race, sex, religion, color, or national origin affect his or her job opportunities? For example, in the following scenario, Angela might well have felt that it was unfair that she didn t get a promotion for which she was qualified. However, her supervisor s decision cannot be described as discriminatory unless it can be shown that Angela s gender was a motivating factor in the rejection. How might Angela prove this? B - 4

5 Scenario 1 Angela Collins works as a salesperson at Comp-America, a computer company. She applies for a promotion into a managerial position for which she meets the stated qualifications, but is rejected. When she finds out that a male co-worker with less sales experience has been selected for the position, she suspects that she has been subjected to sex discrimination. She asks John Quinn, the manager who made the promotion decision, why the co-worker was selected over her and is told that the co-worker was more qualified for the job because he has a master s degree in Business Administration. Angela, nevertheless, suspects that the real reason why she was rejected was because of her sex and files a charge with EEOC. Certainly, if Mr. Quinn was overheard saying that he preferred to put a man rather than a woman into the management slot for which Angela applied, then Angela would likely be able to establish sex discrimination. This sort of evidence is known as direct evidence of discrimination. In the real world, it s rare that managers admit to such conscious unlawful discrimination. Let s say that Angela cannot produce this sort of smoking gun evidence. Is Comp-America off the hook? Could it nevertheless be found in violation of Title VII? Typically, intentional discrimination is proved circumstantially, by persuading a court that the employer s explanation for its action is not believable and that it s reasonable to infer that the true explanation was discrimination. This is called evidence of pretext -- the evidence shows that the explanation offered by the employer is in fact a pretext to cover discrimination. B - 5

6 In scenario 1, Comp-America may argue that Angela s co-worker was better qualified for the promotion because of his M.B.A. What might make this argument dubious? Methods of Proving Pretext False information If the employer offers an explanation that it knows is false, then the Commission would generally take the position that pretext is proved. Similarly situated individuals of a different class were treated differently than complainant This is the most common method of showing pretext. Similarly situated employees are people whom one would expect would be treated the same because of their similar qualifications or other similar job-related situations. For example, in scenario 1, if Angela can show that Comp-America has promoted men with qualifications comparable or even inferior to hers, or that Comp-America has never before made such selections on the basis of graduate degrees, then Mr. Quinn s explanation for rejecting Angela will not be believable. Evidence of bias For example, let s say that Angela s co-worker testifies that she heard John Quinn say that he thinks that women are too often given preferential treatment at the expense of men. This sort of evidence would not directly prove by itself that Mr. Quinn acted on the basis of discrimination when he decided in this situation not to promote Angela, but it may cast doubt on his explanation of the promotion decision. B - 6

7 Statistical evidence. Evidence that Comp-America hardly ever puts females into management positions, despite their availability, could also help prove that its explanation for failing to promote Angela was pretextual. One more point about circumstantial proof of intentional discrimination: In a Supreme Court decision, Hicks v. St. Mary s Honor Center (see related guidance in this volume), the Court held that even if a person claiming discrimination proves that the employer s explanation is a lie, she might not necessarily win her case. In a second decision, Reeves v. Sanderson Plumbing Prods., Inc., the Court further stated that where the plaintiff provides enough evidence to establish a prima facie case and also presents sufficient evidence for the court to disbelieve the employer s nondiscriminatory explanation for its actions, the plaintiff may prevail. Thus, if Angela proves that Comp-America s explanation is not believable she might well win her case, especially if she further provides evidence that undermines her employer s explanation. Evidence that shows the employer s explanation is weak or lacks credibility would enable a court to rule that the true reason for its actions was discrimination. The EEOC has taken the position, consistent with Reeves, that if an employer s explanation is proved to be a lie, the Commission will generally assume that it was a lie to cover discrimination. B. Mixed Motives Cases Suppose that John Quinn is overheard saying that he preferred to put a man in the position sought by Angela. As we said earlier, testimony as to this sort of statement will generally prove that Angela was subjected to sex discrimination. But suppose that Comp-America argues that more than one reason played into the promotion decision while it s true that Mr. Quinn preferred to give the promotion to a man rather than a woman, there s also evidence that he made the decision at least in part because of Angela s mediocre job B - 7

8 performance. Suppose that Comp-America can prove that Angela indeed had a bad year in terms of sales performance and the co-worker who was selected for the promotion performed far better. This is what is called a mixed motives case. In this sort of case, Angela is eligible, at a minimum, for an injunction prohibiting Comp-America from committing future sex discrimination, and attorney s fees. But if Comp-America can prove that John Quinn would have rejected Angela for the promotion even in the absence of sex discrimination, then Comp-America will avoid having to award Angela the promotion, backpay or any monetary damages. To summarize: Mixed Motives Cases If discrimination is one of the motives for an employment decision, the plaintiff is entitled, at a minimum, to injunctive relief and attorney s fees. If the employer proves that it would have made the same decision in the absence of discrimination, it will not be liable for reinstatement, backpay or damages. C. After-Acquired Evidence Suppose that Angela persuades a court that the real reason John Quinn denied her the promotion was sex discrimination. But suppose that in the course of preparing for the litigation, Comp-America discovers that Angela lied when she first applied to work at Comp-America. Her résumé stated that she received a college degree, but Comp-America now finds out that she never completed college. Comp-America argues that even if John Quinn discriminated against her, the résumé deception would have constituted a legitimate reason not only to deny her the promotion, but even to fire her. B - 8

9 This is what is known as after-acquired evidence. The Supreme Court addressed the issue of after-acquired evidence under the ADEA. The Court held that liability for discrimination is not foreclosed by after-acquired evidence of the plaintiff s misconduct. Thus, injunctive relief and attorneys fees are appropriate remedies. The Court further held that backpay is an appropriate remedy when calculated from the date of the unlawful discharge to the date that the new information was discovered, but that reinstatement and frontpay are generally not appropriate remedies. McKennon v. Nashville Banner Publishing Co., 513 U. S. 352 (1995). (See related guidance in this volume.) The Supreme Court indicated that the principles articulated in McKennon also apply to Title VII and the ADEA. Because compensatory and punitive damages are not available under the ADEA, however, the Supreme Court did not address the effect of after-acquired evidence on the availability of these remedies. The Commission takes the position that damages for out-ofpocket costs should generally be limited in the same way as backpay - that is, that they should be available from the date of the unlawful adverse action to the date the new information is discovered. On the other hand, the Commission believes that after-acquired evidence does not affect an individual s entitlement to punitive damages or to compensatory damages for emotional harm; these remedies should thus be available without any time limitation. The Commission also believes that after-acquired evidence does not preclude an award of liquidated damages in an EPA or ADEA case. IV. ADVERSE IMPACT In the two types of cases addressed so far, someone claims that an employer has deliberately taken an adverse action based on his or her race, sex, religion, color, or national origin. Another category of cases arises when employers do not necessarily intend to exclude people of a particular race, color, national origin, gender or religion, but they engage in practices that have the effect of doing so. This form of discrimination is known as disparate -- or adverse -- impact. B - 9

10 A. Determining Adverse Impact The first step in a disparate impact situation is to assess whether a particular employment practice disproportionately excludes members of a protected group. This will typically be done with statistics that compare the rate at which protected group members are excluded by the employer s practice, as compared to the rate at which non-group members are excluded. In a court case, it is the person challenging the practice who must prove that it has adverse impact. There are ways, however, in which employers can assess if their practices have disparate impact before a suit arises. First, there are numerous practices that have been found by courts in the past to have adverse impact on particular protected groups. While unlawful impact may not occur in every case in which an employer uses these practices, employment policies that might subject an employer to challenge include the following: Minimum height requirements These have been found by numerous courts to disproportionately screen out women and people of various national origins, such as Hispanics and Asians. Certain educational requirements Educational requirements, such as requirements that employees have a high school diploma, have been found in some cases to have an adverse impact on certain protected groups. Physical agility tests Tests that measure physical agility can have an adverse impact on women. B - 10

11 No beards policies Requirements that employees be clean-shaven have been found to have an adverse effect on African American men, who are disproportionately affected by a medical condition that is aggravated by shaving. Cognitive ability tests Cognitive ability tests can have an adverse impact on certain protected groups. Guidelines adopted by EEOC and other federal agencies require that employers keep records to determine whether selection procedures for each job have an adverse impact. The guidelines also set forth a rough rule of thumb, called the four-fifths rule, for assessing impact. The Guidelines were adopted more than twenty years ago. Today courts use much more sophisticated statistical measures to determine whether an employment practice has a disparate impact. Software is available to enable employers to apply court-sanctioned statistical measures. Only an analysis based on those formulas will determine whether a practice has an unlawfully adverse impact. However, as an initial cut, to get a ballpark idea of whether a practice may be problematic, you can use the four-fifths rule. Four-Fifths Rule A selection rate for any race, sex or ethnic group which is less than four-fifths (or 80 percent) of the rate for the group with the highest rate of selection will generally be regarded as evidence of adverse impact. What does this mean in practice? Suppose that 12 out of 48 female candidates pass an employer s physical agility test, and 15 out of 25 male candidates pass the test. The passing rate for women is 12 out of B - 11

12 48, or 25%, and the passing rate for men is 15 out of 25, or 60%. The selection rate for women is less than 80% of the selection rate for men; therefore, it may constitute evidence of adverse impact. Note that the 4/5 rule is only a rule of thumb -- lesser disparities can also be found to have an adverse impact, and greater disparities might not. Nonetheless, if an employment practice does violate the 4/5 rule, it may well be found to have an adverse impact. B. Justification for Practices that Have Adverse Impact What happens if adverse impact is found? The employment practice is not automatically invalidated. Rather, the employer has an opportunity to prove that the policy is job related and consistent with business necessity. The meaning of this language is currently being developed in court cases. What an employer has to show depends on the particular facts of each case, including the nature of the practice and the functions of the job for which the practice is used as a selection standard. Some general points include the following: EEOC s guidelines provide that tests and other scored selection procedures should generally be validated -- which is to say, analyzed under various technical standards to assess whether they accurately measure skills that are necessary for job performance. Courts have also accepted as proof of business necessity evidence that the measures are necessary to ensure worker safety. Thus, a court upheld a fire department s no beards rule based on the department s showing that firefighters must be clean-shaven in order to wear the respirators required to be able to breathe in smoke-filled environments. B - 12

13 On the other hand, a customer preference that does not relate to a person s ability to perform his job would not amount to business necessity. Thus, a court rejected a no beards rule that was adopted based simply on the employer s belief that its customers preferred to deal with clean-shaven delivery people. How might this standard play out in the following scenario? Scenario 2 The Supercars Company requires each new employee for an assembly line job to have a high school diploma. Al Mechanic applies for a job but is rejected because he lacks a diploma. Mechanic, who is African American, feels he is qualified for the job because he has worked on the assembly line for Wondercars, one of Supercars competitors, for the last three years. Mechanic files a charge with the EEOC, asserting that Supercars diploma requirement is discriminatory because it disqualifies more African Americans than whites. Assuming the requirement has an adverse impact, Supercars might try to prove that there is a direct correlation between graduation from high school and performance on the job, that those with high school degrees consistently get better performance evaluations, or that high schools require courses in auto mechanics that teach skills specifically required for these jobs. Whether those arguments would be successful would depend on the particular facts of the case. Note that whatever the basis for its claim of business necessity, an employer must prove that its policy is justified. In Scenario 2, therefore, Supercars could not rely on subjective beliefs or speculation. Rather, claims that the practice is related to job performance would have to be documented, for instance by studies, expert testimony or proof of its prior results. B - 13

14 C. Alternatives with Less Adverse Impact V. HARASSMENT If Supercars cannot prove that its practice is justified, then Mechanic will win. Even if Supercars shows business necessity, Mechanic can still prevail if he can show that there are alternatives with less adverse impact that will serve Supercars legitimate business goals as well. In Scenario 2, alternatives might include giving a validated test to applicants that directly measures the ability to perform specific job tasks; using experience as a substitute for education; or simply asking for proof of completion of particular auto mechanics courses, regardless of whether the applicant has a high school diploma. Whether these would be viable alternatives depends on numerous factors, including the extent to which the measures would have less of an adverse impact and would produce an equally qualified workforce. Harassment of an individual on the basis of race, color, sex, national origin, religion, age or disability is a discriminatory practice under Title VII, the ADA and the ADEA. Although much attention has been given in recent years to sexual harassment discrimination, it is important to stress that many of the same principles apply to other types of harassment, and that an employer should be equally vigilant in preventing such harassment. The types of behavior that create a hostile environment of sexual harassment generally will constitute discriminatory harassment if directed at persons because of their race, color, national origin, religion, age or disability. In addition, while sexual harassment involves sexual conduct, there also may be gender harassment on the basis of sex where no sexual conduct is involved. Hostile environment harassment includes unwelcome comments or conduct unreasonably interfering with an individual s work performance or creating an intimidating, hostile or offensive work environment. The harasser can be the victim s supervisor, co-worker or a non-employee. B - 14

15 Detailed guidance on recognizing and preventing hostile environment harassment is provided in the Sex Discrimination volume of this series. This guidance should be consulted and applied, with appropriate preventive actions, including management training, to avoid all forms of discriminatory harassment. VI. RELIGIOUS ACCOMMODATION As stated earlier, Title VII prohibits employment discrimination on the basis of religion. For example, an employer may not deny a job to an individual because of his or her particular faith or an absence of faith. Title VII imposes an additional obligation with respect to religion: employers, labor organizations and employment agencies are required to accommodate the religious practices of employees and prospective employees unless doing so causes an undue hardship. Accommodation issues typically arise when an employee s religious practices conflict with the work schedule assigned to him or her. A. What is a Religious Belief? The EEOC has defined religious beliefs to include moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views. An employer may not question the truth, validity or reasonableness of an individual s religious beliefs: as long as they are sincerely held by the individual, then the employer must attempt to provide an accommodation. B - 15

16 The scenario below provides a good example for analysis. Scenario 3 Marcus Webber has been working for Robertson s Caterers for five years. Recently, Webber converted to a religion called Machintoism, which requires him to refrain from work on seven occasions each year in order to observe holy days. Employees at Robertson s are offered two days of personal leave each year for family emergencies, seven sick days and ten days of annual leave. Webber requests that Robertson s allow him to use a combination of personal and annual leave for his religious holidays. Robertson s insists that Webber use only annual leave for the holy days. Webber files a charge with the EEOC claiming that Robertson s has failed to accommodate his religious beliefs. In this scenario, Mr. Webber stated that he had become a Machintoist and could not work on seven occasions each year due to religious holidays. Although no one at Robertson s may have ever heard of Machintoism, that does not mean that Robertson s can ignore Mr. Webber s request. As a general rule and absent proof of undue hardship, an individual s religious beliefs must be accommodated even if others might find the beliefs incomprehensible or incorrect, and even if no specific religious group espouses those beliefs. Robertson s should err on the side of concluding that the practice or belief in question is sincere and should be accommodated if feasible. Suppose that an employer holds a prayer breakfast every Wednesday morning and expects all employees to be present. Two employees assert that they are atheists and therefore do not wish to attend these breakfasts. In effect, they want their employer to accommodate their lack of religious beliefs. Must the employer do so? The EEOC and some courts have held that Title VII protection extends to those who choose not to believe in religion. Moreover, in B - 16

17 most cases an employer may not require that its employees attend prayer meetings or other religious events as a condition of employment. B. The Duty to Provide Reasonable Accommodation The duty to provide reasonable accommodation arises if an employee notifies the employer that there is a conflict between his or her religious beliefs and a job requirement. Thus, in Scenario 3, Robertson s duty to accommodate Webber arose when Webber informed Robertson of his religion s requirement that he not work on seven occasions each year in order to observe religious holidays. Title VII simply requires that an employer offer a reasonable accommodation of the employee s religious beliefs unless it would present an undue hardship (discussed in Item C below). The employer need not accept a particular alternative posed by the employee nor need it show that each alternative posed by the employee would result in undue hardship. When there is more than one means of accommodation that would not cause undue hardship, the employer should offer the accommodation that least disadvantages the employee s employment opportunities. In Scenario 3, since personal days were, like sick days, available only in a narrow range of circumstances, Roberston s did not have to accept Webber s proposal that he use a combination of personal and annual leave for the religious holidays. Instead it allowed him to use annual leave for this purpose. This satisfied Robertson s duty to provide a reasonable accommodation. On the other hand, if employees are permitted to use personal days for a variety of purposes and they have discretion about using those days, the failure to allow the employee to use the days for religious purposes would be discriminatory. B - 17

18 Examples of Alternatives for Religious Accommodation Voluntary swaps The employer may be able to resolve a religious conflict involving work scheduling by arranging for a voluntary swap of schedules. Flexible scheduling examples: flexible arrival and departure times flexible work breaks permitting employees to make up time lost due to observance of religious practices Lateral transfer or change of assignment C. Undue Hardship If the employee cannot be accommodated within his or her present job, the employer may consider allowing the employee to transfer to another comparable job within the company. An employer will be excused from providing a religious accommodation if the accommodation causes it to suffer undue hardship. To demonstrate undue hardship, the employer must show that the accommodation would require more than a de minimis cost, in other words, more than just administrative or marginal costs. The hardship to the employer will be measured by considering the cost of the accommodation in relation to the size and operating costs of the employer, as well as the number of individuals who require such an accommodation. B - 18

19 A showing of undue hardship cannot be based on pure speculation. Thus, a mere assumption that many employees may require the same accommodation requested by one particular employee is not evidence of undue hardship. For example, if a Jewish employee requests leave in order to observe Yom Kippur, the employer may not deny leave on the grounds that if all its Jewish employees were to take leave for Yom Kippur, the employer would be understaffed on that day and would suffer undue hardship. If that assumption actually comes to pass, and other employees request the same accommodation, this will be taken into account in determining whether the employer would suffer undue hardship. To summarize: Religious Accommodation If an employee asserts a need for religious accommodation, the employer should do the following: 1. Inquire as to the nature of the employee s beliefs. 2. Consider the sincerity with which the employee holds those beliefs. 3. Consider the nature of the conflict between the employee s religious beliefs and his or her job obligation. 4. Consider possible accommodations. 5. Consider the burdens on business of each accommodation. 6. Offer an accommodation unless to do so would cause undue hardship. B - 19

20 VII. RETALIATION Title VII prohibits retaliation against an individual because she or he has either: (1) opposed an unlawful employment practice; or (2) made a charge, testified, assisted or participated in an investigation, proceeding or hearing under the statute. (Retaliation is also unlawful under the EPA, ADA and ADEA.) The retaliation provisions provide exceptionally broad protection to individuals who file charges or otherwise aid the EEOC s enforcement function. It is the EEOC s policy to expedite the investigation of retaliation charges and seek injunctive relief, since it has a unique interest in preserving the integrity of its investigative process and preventing a chilling effect on the willingness of individuals to protest discriminatory conduct. An employee is protected against retaliation for his or her opposition to discrimination as long as the employee has a reasonable and good faith belief that the employer s conduct is illegal, even if it turns out that the employee was mistaken as to the legality of the employer s conduct. If, however, the manner in which an individual protests perceived discrimination is unreasonable or if opposition is false and malicious, then the anti-retaliation provisions will not apply. In contrast, participation in the EEO process, such as filing a charge, receives absolute protection. Examples of Protected Forms of Opposition Threatening to file or to assist in filing a charge, complaint, grievance or lawsuit alleging discrimination. This also can be considered participation in the EEO process. Complaining about discrimination. This would include complaining about discrimination to high management, union officials, other employees, newspapers. B - 20

21 Refusing to obey an order because of a belief that it constitutes unlawful employment discrimination. Opposing employment discrimination by persons other than the employer. For example, the opposition can be to perceived discrimination by co-workers or a former employer. If the current employer retaliates against the employee due to his or her opposition to the perceived discrimination, the retaliation would violate Title VII. Note that persons protected from retaliatory conduct are not limited to those who protest discrimination against themselves. For example, the retaliation provision protects: men who protest discrimination against women; whites who protest discrimination against blacks; Christians who protest the religious harassment of Jews; employees whose spouses, family members, friends or co-workers protest discrimination. Examples of Unlawful Retaliation Denial of right to oppose discrimination or participate in EEO process. For example, an employer may not threaten to take adverse action if the employee refuses to cease complaining of discrimination. B - 21

22 Harassment and intimidation. Denial of employment benefits. Discharge, discipline, demotion, reassignment. Unjustified evaluations and reports. Acceleration of disciplinary action. Two examples of unlawful post-employment retaliation: Issuance of undeserved negative reference regarding former employee in retaliation for that individual s opposition to discrimination or participation in EEO process. Unwarranted contesting of unemployment compensation claim. Scenario 4 Edward s supervisor occasionally made racially derogatory comments to Edward s co-worker, Leroy Johnson. Edward informed his supervisor that this conduct was unprofessional and that it should cease. Edward further informed his supervisor that if he continued to harass Mr. Johnson he would assist Mr. Johnson in filing a charge with the EEOC. At the next performance appraisal period, the general manager called Edward into her office and informed him that his supervisor had just evaluated Edward s performance as below average on the semi-annual performance review. Edward s performance had been consistently rated as above average before this incident. The general manager informed Edward that, as a result of his performance appraisal, she had no choice but to place him on probation. Edward then filed a charge of retaliation with the EEOC. B - 22

23 Edward s complaint concerning the supervisor s harassment of his co-worker and his threat to assist in the filing of an EEOC charge may constitute both opposition to discrimination and participation in the EEO process. Even if it turns out that the supervisor s conduct wasn t severe or pervasive enough to amount to unlawful racial harassment, Edward s opposition to the conduct was protected because he had a reasonable and good faith belief that the conduct was unlawful. If it is found that the poor evaluation that Edward received was related to his complaint about the perceived harassment, unlawful retaliation would be found. Remedies for Title VII Violations Injunctive relief SUMMARY - BASIC LAW OF EMPLOYMENT DISCRIMINATION Hiring, Promotion or Reinstatement Back pay with interest Frontpay Attorney s fees Compensatory damages Punitive damages B - 23

24 Methods of Proving Pretext False information Similarly situated individuals of a different class were treated differently than complainant Evidence of bias Statistical evidence Mixed Motives Cases If discrimination is one of the motives for an employment decision, the plaintiff is entitled, at a minimum, to injunctive relief and attorney s fees. If the employer proves that it would have made the same decision in the absence of discrimination, it will not be liable for reinstatement, back pay or damages. Examples of Practices Found To Have Adverse Impact Under Title VII Include: Minimum height requirements Certain educational requirements Physical agility tests No beards policies Cognitive ability tests B - 24

25 Four-Fifths Rule A selection rate for any race, sex or ethnic group which is less than four-fifths (or 80 percent) of the rate for the group with the highest rate of selection will generally be regarded as evidence of adverse impact. Religious Accommodation If an employee asserts a need for religious accommodation, the employer should do the following: Inquire as to the nature of the employee s beliefs. Consider the sincerity with which the employee holds those beliefs. Consider the nature of the conflict between the employee s religious beliefs and his or her job obligation. Consider possible accommodations. Consider the burdens on business of each accommodation. Offer a reasonable accommodation unless to do so would cause undue hardship. Examples of Alternatives for Religious Accommodation Voluntary swaps Flexible scheduling Lateral transfer or change of assignment B - 25