Jody Blanke, Professor

1
Title VII

• Jody Blanke, Professor
• Computer Information Systems and Law
• Mercer University, Atlanta

2
Title VII

• It shall be an unlawful employment practice for
  an employer -
• to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment
  because of such individuals race, color,
  religion, sex, or national origin or
• To limit, segregate, or classify his employees or
  applicants for employment in any way which would
  deprive or tend to deprive any individual of
  employment opportunities or otherwise adversely
  affect his status as an employee, because of such
  individuals race, color, religion, sex, or
  national origin. Title VII of the Civil Rights
  Act of 1964, as amended, 42 U.S.C.A. sec. 2000e
  et seq., sec. 703(a)

3
Title VII

• Prohibits discrimination on the basis of
• Race
• Color
• Gender
• Religion
• National origin

4
Title VII

• For purposes of making decisions regarding
• Hiring
• Firing
• Training
• Discipline
• Compensation
• Benefits
• Classification
• Other terms or conditions of employment

5
Title VII

• Applies to all public (federal, state and local)
  and private employers with 15 or more employees
• Covers all levels of employees (managerial and
  hourly)
• Exemption - permits religious institutions and
  associations to discriminate when performing
  their activities
• Petruska v. Gannon University, p.78

6
Filing Claims under Title VII

• Employee files a claim with the EEOC
• EEOC notifies the employer
• Title VII includes antiretaliatory provisions
• Mediation
• EEOC investigation
• No-Reasonable-Cause Finding
• EEOC issues employee a right-to-sue letter
• Exhaustion of administrative remedies
• Reasonable-Cause Finding
• Conciliation
• Civil suit filed in federal district court

7
Filing Claims under Title VII

• In 2007, there were 82,792 charges filed with the
  EEOC
• 12.2 were settled
• 17.8 were closed
• e.g., failure to pursue claim
• 59.3 resulted in findings of no reasonable cause
• 5.0 resulted in findings of reasonable cause
• the EEOC was successful in 91.5 of its litigation

8
State Agencies

• Many state and local agencies often contract with
  the EEOC to become a 706 agency. These
  agencies can process EEOC claims. The EEOC will
  often defer a complaint to a 706 agency before
  investigating the matter itself.
• Georgia Fair Employment Practices Act of 1978
  protects public employees in Georgia, O.C.G.A
  45-19-20 et seq.

9
Theoretical Bases for Title VII Lawsuits

• Disparate Treatment
• Disparate Impact

10
Disparate Treatment

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

11
Disparate Treatment

• Employers Defense
• Employer can defend by showing that it had a
  legitimate, nondiscriminatory reason for its
  decision.
• Employees Counter
• Employee must prove that the grounds offered by
  the employer were merely a pretext for its
  actions and that discrimination was the real
  reason.
• McDonnell Douglas Corp. v. Green, p. 89
• 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.

12
Disparate Treatment

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

13
Disparate Treatment

• BFOQ examples
• Airlines and bus companies can have maximum age
  requirements
• Airlines cannot hire only females as flight
  attendants
• Wilson v. Southwest Airlines, p. 92
• Playboy can hire only females as Playboy Bunny
  servers
• Essence of business male entertainment
• Hooters cannot hire only females as Hooters
  servers
• Essence of business serving spicy chicken wings

14
Disparate Impact

• Discrimination can be established by proving that
  an employment practice, although neutral on its
  face, disproportionately affects a protected
  group in a negative way.
• Courts have determined the that the following
  screening devices have a disparate impact
• Educational requirement race, e.g., Griggs v.
  Duke Power, p. 94
• Credit status gender, race
• Arrest record race
• Unwed pregnancy gender, race
• Height and weight requirements gender, national
  origin
• Marital status gender
• Conviction of crime unrelated to job performance
  - race

15
Disparate Impact

• 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
• 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
• Employer can rebut the employees prima facie
  case by showing the existence of a business
  necessity
• e.g., requirement of credit history may result in
  fewer women hired, but handling large sums of
  money may warrant credit check
• Employee would then have to prove that there is a
  means of addressing the issue that has less of an
  adverse impact