Posted: April 24th, 2025

Discussion Management Law 3

please discuss, your experience and your opinion on the following scenarios:

1) Chapter 8: Opening Scenario 2
2) Chapter 12: Opening Scenario 2

Employment Law for Business

Chapter 1

Age Discrimination

Because learning changes everything.®

Learning Objectives 1

Differentiate the reality of the value that an older worker could bring to the workplace from the bias that permeates some of our perception of them.

Describe the history of protection of older workers in the United States.

Distinguish the ADEA and state-based age discrimination laws.

Identify the legal options available to an employee who believes that he or she is a victim of age discrimination.

Articulate the prima facie case of discrimination based on age.

Learning Objectives 2
Describe the bona fide occupational qualification defenses available to employers under the ADEA.
Explain the difference between situations where disparate impact and disparate treatment apply in connection with age discrimination.
Analyze factual circumstances when employer economic concerns may justify adverse action against particular groups of workers.
Recognize necessary elements to establish pretext under the ADEA.
Define the parameters of a valid waiver of ADEA rights.
3

Statutory Basis – ADEA
Exhibit 12.1: Age Discrimination in Employment Act.
Sec. 4 (a) It shall be unlawful for an employer:
To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment, because of such individual’s age;
To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunity or otherwise adversely affect his status as an employee, because of such individual’s age; or,
To reduce the wage rate of any employee in order to comply with this chapter.
Source: 20 U.S.C. § 623.
The ADEA law is distinct from the Civil Rights Act of 19 64; its interpretations are not identical and are generally less favorable to claimants.
4

Age Discrimination Context 1
American culture values youth.
Ageist stereotypes regarding energy, innovation, interest and productivity declines.
Information technology industry in particular faces challenges to its ageist culture.
Examples: Zuckerberg’s speech to Stanford University audience and Google settlement with 54-year-old former executive Brian Reid.
EEOC: “Despite decades of research finding that age does not predict ability or performance, employers often fall back on precisely the ageist stereotypes the ADEA was enacted [in the 19 60s] to prohibit.”
5

Age Discrimination Context 2
Concurrently, older workers are tending to stay on the job longer.
Better health.
Lingering economic/savings effects of Great Recession.
Older employees may be perceived as more expensive because of greater experience, seniority.
Research suggests experience may be under-valued, and ‘Switching Costs’ and associated productivity losses not fully accounted-for.
As always, generalizations lead to wrongful discrimination.
Individualized consideration and conclusions are required.
6

Regulation: Age Discrimination in Employment Act (ADEA) 1
Age Discrimination in Employment Act:
Prohibits discrimination in employment on the basis of age.
Applies to individuals who are at least 40 years old.
Coverage: Businesses with 20+ FTEs, all governments.
Individuals 40, if claim based on age.
Significant age gap (for example, 55 v. 45) lends credibility.
No “reverse discrimination” claims available to protect younger workers (some state laws vary).
Applies to disfavored workers 40.
9

Distinctions between ADEA and Title VII 2
Some states’ sovereign immunity insulates them from ADEA claims by state employees.
ADEA has specific record-keeping provisions for employers regarding applicants and employees to ensure that appropriate and adequate information exists as to age-related hiring practices.
3 years: name, address, DoB, Occupation, Pay Rate, Compensation.
1 year: apps, resumes, no-hire decisions, job changes/employee, recruiting orders to agencies (incl. temps), test scores, physical exams, sourcing and overtime opportunity announcements.
Note: re benefits: compliance choice between equal benefiots for All workers or equal expense/worker (older worker benefits typically cost more).
10

State Law Claims 1
State laws on age discrimination vary widely.
South Dakota has no age discrimination law – employees are limited to the remedies provided by the ADEA.
Other states have laws that protect against age discrimination.
Some of these state laws track the ADEA.
Others expand the protections for age-based discrimination.
See Exhibit 12.5 for variations among states.
Enforcement trends have varied with political administrations.
11

State Law Claims 2
Claimants’ reasons to file under applicable state statutes include:
Broader application, esp. to smaller employers.
Broader remedies, including emotional distress, punitive damages.
Longer time to file, both initial agency claims and later litigation complaints.
Note: Split among federal appeals circuits as to whether ADEA coverage in limited to employees, or extends to applicants, as well.
12

Employee’s Options 1
Employee may file a complaint using employer’s internal grievance procedure (if it exists – not required).
Further (concurrent) legal options.
File a complaint with the federal Equal Employment Opportunity Commission (EEOC).
File a complaint with the state equivalent of the EEOC (if one exists).
File a lawsuit in federal court under the ADEA (with ‘right-to-sue’ letter).
File a lawsuit in state court under state age discrimination laws.
13

Employee’s Options 2
Deadline for filing a complaint with the EEOC.
180 days from when the discrimination occurred.
Extended to 300 days if the state has age discrimination laws and an administrative agency to oversee age discrimination complaints.
Upon receiving the complaint, EEOC can:
Dismiss the complaint if it believes that the charges have no merit.
Investigate the charges (per CH 3 process).
Issue a right-to-sue letter → 90-day limitations period to file suit.
14

Employee’s Prima Facie Case: Disparate Treatment 1
Both Disparate Treatment and Disparate Impact claims are available to employees under ADEA.
Four elements to persuade the court about a claim for age discrimination.
Employee is a member of the protected class: age = 40+.
Adverse employment action: termination, demotion, etc.
Qualified for the job: meeting/able to meet position’s legitimate requirements
Dissimilar Treatment versus non-protected or younger employees based on age.
Re ads: overall ‘context > ‘trigger words’ in judging discriminatory intent
Note: ‘microtargeting’ esp. of on-line ads to specific demographic segments may exclude protected individuals.
15

Employee’s Prima Facie Case: Disparate Treatment 2
Burden shifting prior to Supreme Court’s Gross case, 2009 (similar to Civil Rights Act).
Once prima facie case presented, burden of proof shifted to employer to present a legitimate nondiscriminatory reason (LNDR) for its actions.
In ‘mixed-motives’ cases, discrimination could be found to be a sufficient motivating factor, even in presence of LNDRs. Discrimination could be among several reasons for employer’s action.
Gross case holding: under the ADEA claims require proof that age was the “but for” cause of the adverse employment action (see next slide).
16

Burden Shifting No More: Gross
Case: Gross v. FBL Financial Services. Inc. 2009.
No burden shifting occurs in ADEA cases: plaintiff must prove age was the “but-for” factor.
Mixed-motives age discrimination claims do not exist under the ADEA in disparate treatment cases.
Employee could recover only if the employment action would not have taken place but for age discrimination.
Employer may rebut evidence of the but-for factor.
Gross has been difficult to apply: Courts of Appeal have since concluded:
Age need not be the Only factor, but Primary factor in employer decision.
Burden of producing evidence has shifted to claimant, who has always borne the burden of persuasion in all discrimination cases.
Public sector cases: mixed motives standard applies.
Note: multiple attempts at legislative clarification, so far unsuccessful (2023).
17

Employer Defenses
Bona Fide Occupational Qualification (BFOQ).
Age is one of the most consistently applied BFOQs.
EEOC guidelines for employers in ADEA cases:
The age limit is reasonably necessary to the essence of the employer’s business.
All or substantially all of the individuals over that age are unable to perform the job’s requirements adequately.
Some of the individuals over the age possess a disqualifying trait that cannot be ascertained except by reference to age (per competent expert evidence – perception is inadequate).
Case: Western Airlines v. Criswell – individualized health assessments possible (note that EEOC requires individualized assessments re pandemic response).
NOTE: Employers may also observe terms of bona fide seniority system, voluntary retirement plans, and may discipline employees for good cause.
18

Summary: Employee’s Prima Facie Case Disparate Treatment
Disparate Treatment
Step 1: Employee’s prima facie case.
The employee is in the protected class.
She or he was not hired, terminated or demoted.
Employee met employer’s legitimate expectations.
Others not in the protected class were treated more favorably.
Discrimination is ‘but-for’ factor in employer’s decision.
Step 2: Employer defenses.
Bona fide occupational qualification.
RFOA – evidence disputing the ‘but-for’ claim.
Step 3: Employee may evidence pretext for employer actions.
19

Mandatory Retirements
Mandatory retirement: Employee must retire upon reaching a specified age.
Deemed illegal by the 19 86 amendments to the ADEA, with few exceptions. Limited to:
Retirement at age 65 or beyond for high-level executives (only) who receive a company pension of $44,000 or more.
Police officers and firefighters.
Note: voluntary retirement plans are permitted (see later slides).
Employer cannot base employment decisions on age-related stereotypes.
20

Proving a Case of Age Discrimination: Disparate Impact
Step 1: Employee’s prima facie case.
A facially neutral policy or rule is imposed by an employer.
Which has a different effect on an older group of workers.
No intent to discriminate is necessary.
Step 2: Employer defenses.
Reasonable factor other than age (RFOA).
Economic concerns.
Seniority.
21

Employee’s Prima Facie Case: Disparate Impact
Reasonable Factors Other than Age (RFOA):
Defense to a prima facie claim of age discrimination, offered by employers.
May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related.
Lower standard than business necessity: effect is to narrow viability of ADEA claims.
“While there may have been other reasonable ways for the employer to reach its goals [without] a disparate impact on a protected class, the ‘reasonableness’ inquiry includes no such requirement.”
There is no RFOA-type defense in Title VII cases.
Case: Smith v. City of Jackson.
22

Employee’s Prima Facie Case: Disparate Impact – Economic concerns
Firm may opt to reduce its workforce (RiF) based in part on salary amounts to have the greatest economic impact.
Despite Smith, some courts reluctant to accept this justification.
Burden is on Employer to establish RFOA as an affirmative defense (Meacham case).
Note: to counter concerns that economics are a proxy for age bias, it is crucial that discharges be made per an objective standard and procedure that serves the business need.
23

Employee’s Prima Facie Case: Disparate Impact – What Constitutes an RFOA?
EEOC lists five considerations for assessing reasonableness of an RFOA.
Extent to which:
Factor is related to the employer’s stated business purpose.
Factor was well defined and applied fairly and accurately.
Employer limited supervisors’ subjective discretion.
Employer assessed the effect of the employment practice on older workers.
Degree of the harm to individuals within the protected age group, and Employer’s attempts to reduce that harm.
24

Reductions in Force (RIFs) 1
Generally, RFOA defense standard easier to meet that ‘business necessity’ defense under Title VII.
Case: Meacham v. Knolls Atomic Power Lab.
Employer burden to establish RFOA defense.
Employer need not meet every factor in EEOC rule, but it has the burden of persuasion that defense is appropriate to case facts.
Note: may higher paid, older workers be offered lower wage terms to avoid lay-off? No, per statute section 4(a)(3).
Murky application of standard – seek counsel.
Some authority that failure to accept such an offer may lead to age discrimination if successor ultimately paid more.
25

Reductions in Force (RIFs) 2
In the event of an RiF, age discrimination may be proved where an Employer:
Refuses to allow the discharged (or demoted) employee to bump others with less seniority.
Hires younger workers when the jobs become available after the employee was discharged (or demoted) at the prior salary of the older worker.
26

Defenses Based on Benefit Plans and Seniority Systems
ADEA specifically excludes bona fide retirement plans that distinguish based on age but are “not a subterfuge to evade the purpose of [the] Act.”
Bona fide voluntary retirement options must be truly voluntary.
Reasonable person would not feel compelled to retire under similar circumstances.
27

“Same Actor” Defense
When the same “actor” both hires and fires a worker protected by the ADEA, in some Circuits there is a permissible inference that the employee’s age was not a motivating factor in the decision.
Case: Lodis v. Corbis Holdings, Inc.
Defense may be subject to extenuating circumstances, including who ‘actually’ ordered the termination.
28

Retaliation
ADEA prohibits retaliation in response to an age discrimination complaint filed.
Protects the person filing the complaint and any other employee who might have participated in the claim.
Punitive damages.
Money over-and-above compensatory damages.
Imposed by a court to punish a defendant for willful acts and to act as a deterrent.
Designed to punish the employer.
Not Available for ADEA claims but may apply to retaliation claims.
29

Employee’s Response: Proof of Pretext
Where there is direct evidence of discrimination, proof of pretext is not required. (Mauer v. Deloitte case)
Showing pretext:
Offered reasons for the adverse employment action have no basis in fact.
Offered reasons did not actually motivate the adverse employment action.
Offered reasons are insufficient to motivate the adverse action taken. (Westmoreland v TWC case).
See also: Reeves v. Sanderson Plumbing Products.
30

Harassment: Employee’s ADEA Prima Facie Case: Hostile Environment Based on Age
Recognized by some circuit courts – no USSCt precedent yet (recall absence of statutory language on harassment under Civil Rights Act).
Prima facie case for hostile environment under the Act:
Employer is 40 years old or older.
Employee was harassed, through words or actions, based on age.
Harassment unreasonably interferes with employee’s work performance and creates objectively intimidating, hostile or offensive work environment.
Basis for inferring liability to employer (for example, complaints not responded-to).
31

Waivers under the Older Workers’ Benefit Protection Act of 19 90 1
Waiver: Intentional relinquishment of a known right.
Older Workers’ Benefit Protection Act (OWBPA) concerns the legality and enforceability of early retirement incentive programs and waivers of rights under the ADEA.
Prohibits age discrimination regarding employee benefits.
Requires that every waiver must be ‘knowing and voluntary’.
Seven requirements met: checklist, next slide.
32

Waivers under the Older Workers’ Benefit Protection Act of 19 90 2
The waiver must be written in a manner calculated to be understood by an average employee.
The waiver must specifically refer to ADEA rights or claims (but may refer to additional acts, such as Title VII or applicable state acts).
The waiver only affects those claims or rights that have arisen prior to the date of the waiver (i.e., the employee is not waiving any rights that will be acquired after signing the waiver).
The waiver of rights to claims may only be offered in exchange for some consideration in addition to anything to which the individual is already entitled. (This usually involves inclusion in an early retirement program.)
The employee must be advised in writing to consult with an attorney prior to execution of the waiver. (This does not mean that the employee must consult with an attorney; the employee must merely be advised of the suggestion.)
The employee must be given a period of 21 days in which to consider signing a waiver and an additional 7 days in which to revoke the signature. Note that where a waiver is offered in exchange for an early retirement plan, as opposed to some other consideration, the individual must have 45 days in which to consider signing the agreement.
If the waiver is executed in connection with an exit incentive (early retirement) or other employment termination program, the employer must inform the employee in writing of the exact terms and inclusions of the program. This information must be sufficient for the employee to test the impact of the selection decision made; in other words, does the decision about inclusion in the program have any discriminatory impact?
33

Waivers under the Older Workers’ Benefit Protection Act of 19 90 3
Waiver may not bar the employee from filing a claim with the EEOC.
If employee signs a defective waiver, the employee is not required to give back any benefits received under the waiver.
Case: Oubre v. Entergy Operations.
OWBPA also contains provisions in connection with early retirement plans.
Employers may set a minimum age as a condition of eligibility for normal or early retirement benefits.
A benefit plan may provide a subsidized benefit for early retirement.
A benefit plan may provide for Social Security supplements in order to cover the time period between the time when the employee leaves the firm and the time when the employee is eligible for Social Security benefits.
While severance pay cannot vary based on the employee’s age, the employer may offset the payments made by the value of any retiree health benefits received by an individual eligible for immediate pension.
34

Use of Statistical Evidence
Generally, more useful in disparate impact cases, vs. disparate treatment.
Skepticism relating to statistical evidence in age discrimination cases because of normal attrition in the workforce.
Supreme Court guidelines:
Difference of more than two or three standard deviations variation can be considered suspect.
Context is crucial – Statistical evidence depends on all of the surrounding facts and circumstances.
35

ADEA Remedies
Equitable relief: Relief that is not in the form of money damages.
Reinstatement, promotions, and injunctions.
Not granted if adequate money damages (back pay or front pay) have been given.
Monetary damages for pain-and-suffering or emotional distress are not available under the ADEA.
Liquidated damages: Predetermined amount of damages, equal to the unpaid wage liability.
Available in ‘willful’ cases (lack of recruiter training does not defeat ‘willfulness’ claim Mathis v. Phillips Chevrolet case).
36

Employee Retirement Income Security Act (ERISA)
Regulates private employee benefit plans, including retirement plan provisions and other benefits.
Protects employees from wrongful denial of all types of benefits.
No denial based on employee age, as long as they are at least 21 years of age and a full-time employee with at least one year of service.
No federal requirement that retirement plans be offered.
Arbitration of disputes available if agreed-to. Terms of agreement may limit Employee to bring their individual (for example, not class action) cases.
Some current uncertainty regarding Statute of limitations issues.
Across-the-board benefits decreases allowed under ERISA (for example, if not age-related).
Interplay of ERISA Sec. 510 and cost-based terminations. Seek counsel for specifics.
37

Management Considerations 1
Employers should:
Evaluate the true requirements of a position.
Test for those characteristics.
Individualized consideration. Locate those workers who are the most qualified for the position, while not excluding older workers based on preconceptions.
Pay attention to the basis for decision making and selection in connection with training and development opportunities.
38

Management Considerations 2
Problems with RIFs:
Employers may not have retained adequate written analyses of performance.
Managers and supervisors will likely evaluate an employee as compared to other employees – a record that all are ‘good’ or better may undercut defense of performance-based RIF.
RIF defense should describe processes and decision rules.
Defense has holes if process makes choices based on other factors, even humanitarian ones.
Be sure all employees periodically receive an objective, detailed, documented performance appraisal.
39

Management Tips 1
Any job requirement on the basis of age must be subject to your highest scrutiny.
Review all termination decisions carefully in order to ensure fair procedures, balanced across workforce.
RiFs are prone to problems on salary economics. Create objective system and work it.
Terminating an older worker and replacing her or him with another worker who is over 40 does not protect you from a charge of age discrimination.
Train managers to consider possible accommodations to age.
40

Management Tips 2
Review all recruiting literature to remove all age-based classifications.
You may not terminate an older worker on the basis of age.
Review the waiver of discrimination to ensure compliance with the OWBPA.
Employers should neither encourage nor permit age-based remarks, comments, or jokes to avoid liability under the ADEA for age-related harassment.
Employers should be sensitive about the inclination in the past to single out workers over 40 for medical exams.
41

Management Tips 3
Beware the situation where an older worker laid off for economic reasons offers to take a pay cut, especially if the offered pay cut is less than what would be paid to a younger replacement.
Remember that retaliation for filing a claim of age discrimination is forbidden.
The chances of retaliation occurring can be reduced by proper management training and by making sure that all employee handbooks adequately address the issue.
Make sure that all employee handbooks adequately address the issue of age discrimination.
42

Chapter Summary 1
Employees are protected against discrimination on the basis of their age under the ADEA, unless age is a bona fide occupational qualification.
Employees who believe that they are victims of age discrimination have available to them a wide array of choices under both state and federal law.
To prove a case of age discrimination, the employees must show that:
They are 40 years of age or older.
They suffered an adverse employment decision.
They are qualified for the position (either that they meet the employer’s requirements or that the requirements are not legitimate).
They were replaced by someone younger.
Once the employee has presented this information, the employer may defend its decision by showing that
1. Age requirement of a job is a bona fide occupational qualification. This can be done by showing
The age limit is reasonably necessary to the employer’s business and,
All or a substantial number of people over that age are unable to perform the requirements of the job adequately; or,
Some of the people over that age possess a trait that disqualifies them for the position and it cannot be ascertained except by reference to age.
2. The decision was made based on some reasonable factor other than age.
43

Chapter Summary 2
The employee was not qualified for the position.
The decision to leave was because of a voluntary retirement plan.
The “same actor” defense may be used in some courts. The presumption is that when the same person hires and fires a worker protected by the ADEA, there is a permissible inference that the employee’s age was not a motivating factor in the decision to terminate.
Once the employer presents its defense, the employee will have the opportunity to prove that this defense is mere pretext for the actual discrimination that exists.
The Gross decision seemingly altered the burden-shifting requirement, but subsequent lower court rulings have suggested that the shifting does still apply in age discrimination cases.
The ADEA prohibits retaliation, against the employee who alleges age discrimination and any other employee who assists the employee in their claim.
Federal courts are split as to whether an employer can terminate an older employee due to economic considerations.
44

Chapter Summary 3
Benefit plans and seniority systems cannot be created for the purpose of evading the ADEA or the OWBPA.
The OWBPA amended section 4(f) of the ADEA and places restrictions where employers offer employees amounts of money through retirement plans as incentives for leaving the company.
The Employee Retirement Income Security Act (ERISA) regulates private employee benefit plans. It governs the operation of welfare and retirement plan provisions. (Refer to Chapter 16 for a further discussion of ERISA.)
A variety of remedies are available to those discriminated against due to their age.
A reduction in force (RIF) occurs when a company is forced to downscale its operations to address rising costs or the effects of a recession. When an individual is terminated pursuant to a bona fide RIF, the employer’s actions are protected. In the event of a RIF, age discrimination may be proven when,
The employer refuses to allow a discharged or demoted employee to bump others with less seniority.
The employer hires younger workers when jobs become available.
45

End of Main Content
© McGraw Hill LLC. All rights reserved. No reproduction or distribution without the prior written consent of McGraw Hill LLC.

Because learning changes everything.®
www.mheducation.com

image8

image1

Employment Law for Business

Chapter 8

Gender Discrimination

Because learning changes everything.®

Learning Objectives 1

Review Title VII and other laws relating to gender discrimination.

Understand the background of gender discrimination and how we know it still exists.

Recognize many different ways in which gender discrimination is manifested in the workplace.

Analyze a situation and determine if there are gender issues that may result in employer liability.

Learning Objectives 2
Define fetal protection policies, ‘gender-plus’ and pregnancy discrimination, workplace lactation issues, and gender-based logistical concerns.
Differentiate between legal and illegal grooming policies.
List common gender realities at odds with common bases for illegal workplace determinations.
Distinguish between equal pay and comparable worth and discuss proposed legislation.
Note: Reread the Preface regarding the use of gender terminology before reading this chapter.
3

Statutory Bases 1
Civil Rights Act of 1964, Title VII: It shall be an unlawful employment practice for an employer—
(1) 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 individual’s . . . sex [gender] . . . [42 U.S.C. § 2000e-2 (a).]
Equal Pay Act of 1963: No employer … shall discriminate between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he plays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex … [29 USCA section 206(d).]
4

Statutory Bases 2
Pregnancy Discrimination Act of 1978:
(k) The term “because of sex” or “on the basis of sex” includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. . . . [42 U.S.C. § 2000e.]
5

Does it Really Exist? 1
Statistical and incident evidence abounds.
EEOC chair: “Sex discrimination against males and females alike continues to be a problem in the 21st century workplace”.
EEOC 2019: 32.4% of substantive discrimination claims; large majority filed by women.
Gender pay gap persists across trades and professions.
Race and ethnicity ‘intersectionality’ worsens pay equity stats.
6% of S&P 500 CEOs are women.
Walmart saga: 2001 Dukes class action filed; numerous follow-on cases, including EEOC charges filed in 2022.
Note: ‘sex’ amended into Civil Rights Act by an opposing Congressman, hoping to scuttle the entire bill.
Pregnancy expressly added by statute; ‘sex’ includes sexual orientation and trans-gender status per 2020 Bostock case (see CH 10).
6

Does it Really Exist? 2
Exhibit 8.1: Gender-Neutral Language?
Attorney Harry McCall, arguing before the U.S. Supreme Court, stated, “I would like to remind you gentlemen” of a legal point. Associate Supreme Court Justice Sandra Day O’Connor asked, “Would you like to remind me, too?” McCall later referred to the Court as “Justice O’Connor and gentlemen.” Associate Justice Byron White told McCall, “Just ‘Justices’ would be fine.”*
According to the National Conference of State Legislatures, nearly half of states have moved to make the language in their official documents gender-neutral. Changes include replacements such as handwriting for penmanship, first-year student for freshman, and outdoor enthusiast for sportsman. The state of Washington finds it more difficult to replace airman, manhole, and manlock.†
MIT, USC San Diego, and University of Pottsdam linguists and cognitive scientists found that Americans were reluctant to use the word she in the context of a hypothetical president and that reading the word, when it referred to a future president, caused subjects “considerable disruption” in reading time. The study was based on experiments conducted during the run-up to the 2016 election. “People had difficulties reading ‘she’ even if the text had previously used ‘she,’ showing how persistent and deeply ingrained this bias is,” said one of the scientists. Bennett, Jessica, “She’s the Next President. Wait, Did You Read That Right?,” The New York Times (January 24, 2020), https://www.nytimes.com/2020/01/24/us/ politics/woman-president-she-her.html.

Source: Newsweek (November 25, 1991), p. 17. † Time (February 18, 2013), p. 12.
7

Does it Really Exist? 3

Steady growth in female C E O’s, but 20 of Fortune 500?
Focus of E E O C claims has shifted from hiring discrimination to on-the-job issues.
Equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities, and domestic violence.

Access the text alternative for slide images.

Gender Stereotypes Persist
Exhibit 8.5: Gender Realities.
Due to the particular historical development of gender in our country, there are many stereotypes about gender that affect how those of a given gender are perceived. Here are some of the stereotypes we have actually heard from managers and supervisors. These stereotypes greatly impact how employees of a given gender are perceived in the workplace. See if any are familiar.
Women are better suited to repetitive, finemotor-skill tasks.
Women are too unstable to handle jobs with a great deal of responsibility or high pressure.
Men make better employees because they are more aggressive.
Men do not do well at jobs requiring nurturing skills such as day care, nursing, elder care, and the like.
When women marry, they will get pregnant and leave their jobs.
When women are criticized at work, they will become angry or cry.
A married woman’s income is only extra family income.
A woman who changes jobs is being disloyal and unstable.
A woman cannot have a job that requires her to have lunch or dinner meetings with men.
Women cannot have jobs that require travel or a good deal of time away from home.
9

Gender Discrimination in General 1
Advertising/sourcing.
Sex-specific Application, Interview questions.
Requiring one gender to work different hours or job positions.
Training opportunities.
Discipline, Termination differences.
Some seniority system effects.
Pay and benefits disparities.
Differential conduct standards, express or unconscious.
Not considering legitimate differences between genders (for example, firefighting apparel ‘fit’).
Case: Wedow v. City of Kansas City, Missouri (Disparate Treatment).
10

Gender Discrimination in General 2
Exhibit 8.9: Illegal or Unfair?
Several courts have wrestled with the issue of what constitutes gender discrimination under Title VII. One issue that has arisen several times is whether it is illegal gender discrimination under Title VII if a female who is having a relationship with a supervisor receives a job or promotion over a qualified male who applies for the position. In Womack v. Runyon, 77 FEP Cases 769 (11th Cir. 1998), Paul Womack, having excellent credentials, experience, and training, applied for a carrier supervisor position in Waycross, Georgia. He was unanimously selected as the best qualified candidate by a review board, but O. M. Lee, the newly appointed postmaster of Waycross, instead appointed Lee’s paramour, Jeanine Bennett. In rejecting Womack’s Title VII claim of gender discrimination, the court held that Title VII did not cover claims of favoritism, saying that such decisions may not be fair, but they are not illegal under Title VII. According to an EEOC policy guidance, “Title VII does not prohibit . . . preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour . . . may be unfair, but it does not [amount to] discrimination against women or men in violation of Title VII, since both [genders] are disadvantaged for reasons other than their genders.”
Individually ‘small’ workplace incidents can accumulate.
See Exhibit 8.10 ‘Real Life in the Trenches, by firefighter Chela Gutierrez.
11

Recognizing Gender Discrimination
Does a facially neutral policy differentially exclude one gender from the workplace or some workplace benefit?
Case: Dothard v. Rawlinson. (Disparate Impact)
Height and weight requirements statistically exclude certain groups.
Do these tests/screening mechanisms directly correlate to ability to do the job? Are they job-related, Validated?
Are there better, less discriminatory requirements that achieve same purpose?
12

Real Life in the Trenches, by firefighter Chela Gutierrez 1
Exhibit 8.10: Real Life in the Trenches of Traditionally Male Jobs: Chela Gutierrez, Firefighter.
“Pitch Isn’t the Problem”
In this piece, a female firefighter, shares the frustration of being perceived differently than her male coworkers. At first she thought she was speaking too softly to be heard but came to realize that was not the issue. She learned that as a female firefighter, what she had to say was disregarded or not taken as seriously as input from male firefighters, even when it solved the problem involved. Since her focus was getting the problem taken care of, her fix was simply to let a man deliver the information.
Of the approximately 330 firefighters working at my fire department, only 10 are female. We are never assigned at a station together. They spread us out to be seen at the different stations. So, it’s normal to be the only woman on the fireground.
In recruit school I learned the guys couldn’t hear me on the fireground. I figured it was my pitch, so I used my diaphragm to push my voice out an octave lower when I wanted to be heard in a noisy environment. After recruit school I learned that pitch has nothing to do with it.
13

Real Life in the Trenches, by firefighter Chela Gutierrez 2
Exhibit 8.10: Real Life in the Trenches of Traditionally Male Jobs: Chela Gutierrez, Firefighter.
When I was the driver of Engine 9, we responded to the smell of gas outside a structure. We arrived on scene with another engine company and a truck company—a total of 10 firefighters. A diverse group of men and me. The only woman. Each company investigated and reported to the captain their findings.
I noticed a patch of dead grass everyone walked over. It had a concrete island curb, like there may have been a gas station there years ago. I figured there may be gas left in the underground tanks. Just like the men, I reported my observations to the captain.
He said nothing.
Other firefighters gave their reports, were acknowledged, and were sent on another task.
I reported it to him again, and nothing. It was like he couldn’t hear me. Since I was the only odd thing in the mix, I pulled one of the firefighters to the side, showed him what I saw, and told him to go tell the captain.
I watched from the sideline as the captain listened intently, looked at the spot, and got everybody focused on that area. Chela Gutierrez.
14

‘Romantic Favoritism’
Exhibit 8.9: Illegal or Unfair?
Several courts have wrestled with the issue of what constitutes gender discrimination under Title VII. One issue that has arisen several times is whether it is illegal gender discrimination under Title VII if a female who is having a relationship with a supervisor receives a job or promotion over a qualified male who applies for the position. In Womack v. Runyon, 77 FEP Cases 769 (11th Cir. 1998), Paul Womack, having excellent credentials, experience, and training, applied for a carrier supervisor position in Waycross, Georgia. He was unanimously selected as the best qualified candidate by a review board, but O. M. Lee, the newly appointed postmaster of Waycross, instead appointed Lee’s paramour, Jeanine Bennett. In rejecting Womack’s Title VII claim of gender discrimination, the court held that Title VII did not cover claims of favoritism, saying that such decisions may not be fair, but they are not illegal under Title VII. According to an EEOC policy guidance, “Title VII does not prohibit . . . preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a paramour . . . may be unfair, but it does not [amount to] discrimination against women or men in violation of Title VII, since both [genders] are disadvantaged for reasons other than their genders.
15

“Gender-Plus” Discrimination
“Gender-plus” discrimination: Employment discrimination based on gender and some other factor such as marital status or children.
Males may not be subject to the same limitations.
Case: Phillips v. Martin Marietta Corp.
Employer had a policy of not hiring women with preschool-aged children for certain jobs with variable schedules.
Domestic duties assumption basis.
Court found discrimination, but mused whether employer might have claimed a BFOQ exception. See Justice Marshall’s response in his Concurring Opinion, next slide.
16

Aside: Phillips v. Martin Marietta Corp
Marshall’s powerful concurring opinion
“I cannot agree with the Court’s indication that a ’bona fide occupational qualification reasonably necessary to the normal operation of’ Martin Marietta’s business could be established by a showing that some women, even the vast majority, with pre-school-age children have family responsibilities that interfere with job performance and that men do not usually have such responsibilities.
Certainly, an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to ensure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with.
But the Court suggests that it would not require such uniform standards. I fear that, in this case, where the issue is not squarely before us, the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination. Congress, however, sought just the opposite result.”
Note: If you ever needed a demonstration of why ‘diversity’ of perspectives can be important, here it is. Marshall was the first and only minority Justice at the time of this case and differentially sensitive to discrimination’s impacts. BFOQ claims have found no traction in similar, later cases.
17

Gender Stereotyping 1
Gender stereotypes: The assumption that most or all members of a particular gender must act a certain way.
Workplace decisions based on stereotypes are prohibited by Title VII.
Case: Price Waterhouse v. Hopkins.
Female candidate denied partnership because of aggressive, typically ‘male’ personality and actions.
Would she have qualified if she had met the female stereotype?
Even supporters considered her a “lady partner” candidate – company needed one set of criteria for one kind of partnership.
Echoes of case in EEOC approach to ‘sex’ in sexual orientation/transgender cases (chapter 10).
18

Gender Stereotyping 2, further examples
Exhibit 8.13: Stereotypes.
Do any of the following stereotypes, taken from actual cases, sound familiar? Even though women may have come a long way, such ideas are still startlingly omnipresent in the workplace. Just because you haven’t heard them doesn’t mean they are not operating. Keep in mind that these are taken from actual workplace situations.
Women being included in workplace events are a “buzz kill.”
Employer would not consider “some woman” for the position, questioned applicant about future pregnancy plans, and asked whether her husband would object to her “running around the country with men.”
Women are not aggressive enough for certain jobs.
A lesser job position was sufficient for women and no woman would be named to the higher position.
Men are the family breadwinner.
Once a woman gets married, she will get pregnant.
Once a woman goes on maternity leave, she will not return to work.
Women cannot take the pressure necessary for certain jobs.
If a woman is away from her desk, she is in the bathroom; the man is elsewhere talking business to colleagues.
Women are unstable and not equipped for important positions because they are too hormonal or have a menstrual period.
19

Grooming Codes
Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes.
Needn’t be identical, if generally similar.
Employer discretion: grooming codes rarely affect opportunity.
Codes that do affect opportunity (salesmen: suits, saleswomen: smocks) may be challenged.
Scenario 2.
Gender-based grooming policy that subjects only one gender to different conditions of employment would not be allowed.
Jespersen v. Harrah’s case may be an outlier.
Note: ‘CROWN’ Acts in various states outlaw restrictions on ‘natural’ hairstyles.
20

Customer or Employee Preferences; Application of Title VII outside US
Customer or co-worker preferences not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender.
The Hooters situation (Scenario 2) – legal defiance in favor of marketing to a hormonal male demographic. (Male students invited to apply there and report back to us.)
Note: policy would be defensible in adult entertainment context; Hooter’s calls itself a ‘family restaurant’ (with crayons, even), Marketing effect endures (every semester more Q’s).
1991 amendment to Title VII – Application outside US.
Title VII applies to U.S. citizens employed by American-owned or -controlled companies doing business outside the United States (unless local law directly forbids it).
21

Logistical Considerations
Employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden.
Examples:
Female sports reporters going into male athletes’ locker rooms (and vice versa).
Female firefighters sleeping at a fire station.
Lack of bathrooms at a construction site, case: Lynch v. Freeman.
Breast-feeding or expressing milk at work.
ACA/Obamacare requires 50+ FTE employers to provide reasonable and private non-restroom facilities.
Some state laws go further (CA) Check local requirements.
22

Equal Pay and Comparable Worth 1
Statutory basis: (1) No employer . . . shall discriminate between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . . [Equal Pay Act, 29 U.S.C.A § 206(d).]
The Equal Pay Act (EPA) overlaps with Title VII’s general terms outlawing discrimination in employment based on gender.
EPA concerns the practical content of the job, not title or description, but has been ineffective closing wage gap.
Recent state laws put burden on employer to justify differences (CA).
23

Equal Pay and Comparable Worth 2

Access the text alternative for slide images.

Equal Pay and Comparable Worth 3
Title VII’s Bennett Amendment:
Exceptions permitted by the E P A (jobs compared in a Title VII unequal pay action need not be substantially equal).
Comparable worth: Title VII action for pay discrimination based on gender.
Jobs held mostly by women are compared with comparable jobs held mostly by men.
Pay is compared to determine if there is gender discrimination.
Lilly Ledbetter Fair Pay Act: extends statute of limitations period with each discriminatory paycheck.
Note: Since 2017, 34 states and localities have banned the use of prior salary history in determining compensation. Check local laws.
25

Equal Pay and Comparable Worth 4
Exhibit 8.17: Not All Women Are Paid Less . . . But What a Choice.
According to a study of 2008 census data by Reach Advisors, single, childless women in their twenties working full-time who live in 39 out of the 50 biggest cities in the United States earn more than comparable men, and they match them in 8 other cities. Women 22 to 30 with no husband or children earn a median of $27,000 per year. This is 8 percent more than comparable men in the top 366 metropolitan areas. In Atlanta the difference is most pronounced, with women earning 21 percent more than comparable men. Women in their twenties who do not meet these criteria earn only 90 percent of what men do. [Notice the difference in the 90 percent figure and the 75–80 percent earnings gap figure given earlier in the chapter. The overall figure includes all women, not just those in their twenties, and thus is lower.] Researchers believe the shift is because women go to college in bigger numbers. Three-fourths of women go to college from high school, but only two-thirds of men do. In addition, women are one and a half times more likely to go on to graduate school. It is also due to the loss of well-paying manufacturing jobs for men who did not go to college.
The trend is most apparent in cities with more than a 50 percent population of underrepresented racial and ethnic groups since Black and Hispanic women are more than twice as likely as their male counterparts to earn college degrees. The trend has interesting implications for society and the economy. Not only are male-oriented businesses such as cars and sporting goods increasingly targeting women, but builders who expected this generation to drive demand for apartments are disappointed since these women increasingly live at home with their parents.
Source: Agustin, Heidi, Citytowninfo.com (September 2, 2010), https://www.citytowninfo.com/ career-and-education-news/articles/salaries-for-youngwomen-exceed-male-counterparts-10090201.
Note: Gender discrimination and Artificial Intelligence: strong growth in use of HR technology, including AI. EEOC Concern for discriminatory implications as apps may ‘inherit’ biases of their programmers. If discrimination occurs, AI does not insulate employer from potential liability.
26

Gender as a BFOQ
Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances (for example, theatrical roles).
EEOC hostility to ‘legalized discrimination’ – guidelines for gender BFOQ are very strict.
Agency would limit to sperm donors or wet nurses.
EEOC v. Women’s Workout World illustrates tension between lingering gender-based privacy issues/customer preferences and equal opportunity.
BFOQ has been found by courts in limited circumstances (for example, counselors at in-patient recovery center for victims of domestic abuse).
27

Pregnancy Discrimination
The Pregnancy Discrimination Act (PDA)
Prohibits discrimination based on pregnancy, childbirth, or related medical conditions.
Enacted following Supreme Court’s conclusion that discrimination on the basis of pregnancy was not gender discrimination under Title VII.
Two years later Congress passed the PDA, amending Title VII to expressly include pregnancy.
EEOC: 182% increase in the filing of pregnancy discrimination charges over the past 10 years.
Case: Young v. UPS (2015)
Extension of ‘reasonable accommodation’ concept to assist pregnant employees, if company’s policies include other similar temporary disabilities.
28

Fetal Protection Policies
Fetal protection policies: Policies an employer institutes to protect the fetus or the reproductive capacity of employees.
Limit or prohibit employees from performing certain jobs or working in certain areas.
If health effects extend to both sexes, then limitation of policies to only fertile females is discriminatory.
For example, UAW v. Johnson Controls.
29

Management Tips
As you have seen from the chapter, gender discrimination can manifest itself in many forms, some of which may take the employer by surprise. Following these tips can help keep the surprises to a minimum:
Let all employees know from the beginning that gender bias in the workplace will not be tolerated in any way. Give them examples of unacceptable behavior.
Back up the strong gender message with appropriate enforcement as necessary.
Take employee claims of gender discrimination or bias seriously and make adjustments as necessary.
Promptly and thoroughly investigate all complaints, keeping privacy issues in mind.
Don’t go overboard in responding to offenses substantiated by investigation. Make sure the “punishment fits the crime.”
Conduct periodic training to keep communication lines open and to act as an ongoing reminder of the employer’s antibias policy.
Conduct periodic audits to make sure gender is not adversely affecting hiring, promotion, and raises.
Review workplace policies to make sure there are no hidden policies or practices that could more adversely impact one gender than another.
In dealing with gender issues, keep in mind that none of the actions need make the workplace stilted and formal. Employees can respect each other without discriminating against each other.
30

Chapter Summary
Discrimination on the basis of gender is illegal and not in keeping with good business practices of efficiency, maximizing resources, and avoiding unnecessary liability.
Gender discrimination has many manifestations, including discrimination in hiring, firing, compensation, training, pregnancy, lactation issues, fetal protection policies, client preferences, dress codes, and child care leave.
In determining whether employment policies are gender biased, look at the obvious, but also look at the subtle bias that may arise from seemingly neutral policies adversely impacting a given gender, such as height and weight requirements. Both types of discrimination are illegal.
Where employees must be treated differently, ensure that the basis for differentiation is grounded in factors not gender based but, instead, that address the actual limitation of the employee’s or applicant’s qualifications.
Dress codes are not prohibited under Title VII, but dress code differences based on gender should be reasonable and not based on limiting stereotypical ideas about gender.
Logistical concerns of bathrooms, lactation rooms, and other such matters should be handled in a way that does not overly burden or unnecessarily exclude any employees.
Under the PDA, employers must treat a pregnant employee who is able to perform the job just as they treat any other employee with a short-term disability.
Because of health and other considerations, an employer may use pregnancy as a BFOQ and may have policies excluding or limiting pregnant employees if there is a reasonable business justification for such policies.
If there are legitimate bases for treating pregnant employees differently, an employer has ample flexibility to make necessary decisions.
Outmoded ideas regarding pregnant employees may not be the basis of denying them equal employment opportunities.
Fetal protection policies may not operate to discriminate against employees and fail to extend to them equal employment opportunities.
Sirikorn thamniyom/Shutterstock
31

Because learning changes everything.®
www.mheducation.com

accessibility Content: Text Alternatives for Images
33

Does it Really Exist? 3 – Text Alternative

Return to parent-slide containing images.

The horizontal axis represents the years, ranging from 1995 to 2013, marked in increments of one year. The vertical axis represents the number of female C E O’s. The data points are as follows: (1996: 1); (1997: 2); (1998: 2); (1999: 2); (2000: 2); (2001: 4); (2002: 6); (2003: 7); (2004: 8); (2005: 9); (2006: 10); (2007: 12); (2008: 12); (2009: 15); (2010: 15); (2011: 12); (2012: 18); (2013: 20). The values are estimated.

Return to parent-slide containing images.

Equal Pay and Comparable Worth 2 – Text Alternative

Return to parent-slide containing images.

The horizontal axis represents states, while the vertical axis represents percentages. The legends are Overall, White women, Asian women, Black women, and Hispanic women.
The given data is as follows: Los Angeles, CA: 90%. Miami, FL: 110%. Tampa, FL: 88%. San Diego, CA: 92%. San Antonio, TX: 110%. Orlando, FL: 88%. Dallas, TX: 95%. Phoenix, AZ: 102%. Riverside, CA: 110%. Houston, TX: 92%. New York, NY: 82%. Atlanta, GA: 81%. Washington, DC: 85%. Baltimore, MD: 82%. Philadelphia, PA: 82%. Charlotte, NC: 80%. Minneapolis, MN: 82%. Denver, CO: 81%. Portland, OR: 81%. Saint Louis, MO: 90%. Chicago, IL: 95%. Boston, MA: 95%. San Francisco, CA: 82%. Detroit, MI: 100%. and Seattle, WA: 78%.
The given data with respect to each state is as follows: Los Angeles: Hispanic women: 55%; Black women: 30%; White women: 2%; Asian women: 5%. Miami, FL: Hispanic women: 70%; Black women: 1%; White women: 10%; Asian women: 20%; Overall: 1%. Tampa, FL: Hispanic women: 65%; Black women: 10%; White women: 12%; Asian women: 1%; Overall: 1%. San Diego, CA: Hispanic women: 62%; Black women: 5%; White women: 20%; Asian women: 3%; Overall: 2%. San Antonio, TX: Hispanic women: 70%; Black women: 1%; White women: 10%; Asian women: 3%; Overall: 1%. Orlando, FL: Hispanic women: 1%; Black women: 60%; White women: 20%; Asian women: 5%; Overall: 1%. Dallas, TX: Hispanic women: 58%; Black women: 20%; White women: 6%; Asian women: 6%; Overall: 1%. Phoenix, AZ: Hispanic women: 60%; Black women: 15%; White women: 5%; Asian women: 20%; Overall: 1%. Riverside, CA: Hispanic women: 60%; Black women: 18%; White women: 1%; Asian women: 20%; Overall: 2%. Houston, TX: Hispanic women: 57%; Black women: 20%; White women: 3%; Asian women: 12%; Overall: 1%. New York, NY: Hispanic women: 50%; Black women: 10%; White women: 2%; Asian women: 20%; Overall: 1%. Atlanta, GA: Hispanic women: 49%; Black women: 18%; White women: 3%; Asian women: 20%; Overall: 1%. Washington, DC: Hispanic women: 40%; Black women: 25%; White women: 3%; Asian women: 10%; Overall: 5%. Baltimore, MD: Hispanic women: 57%; Black women: 7%; White women: 20%; Asian women: 1%; Overall: 1%. Philadelphia, PA: Hispanic women: 57%; Black women: 10%; White women: 2%; Asian women: 18%; Overall: 1%. Charlotte, NC: Hispanic women: 50%; Black women: 15%; White women: 1%; Asian women: 15%; Overall: 1%. Minneapolis, MN: Hispanic women: 52%; Black women: 3%; White women: 7%; Asian women: 7%; Overall: 2%. Denver, CO: Hispanic women: 58%; Black women: 5%; White women: 10%; Asian women: 2%. Portland, OR: Hispanic women: 60%; Black women: 2%; White women: 17%; Asian women: 18%; Overall: 1%. Saint Louis, MO: Hispanic women: 5%; Black women: 55%; White women: 17%; Asian women: 12%; Overall: 1%. Chicago, IL: Hispanic women: 52%; Black women: 8%; White women: 12%; Asian women: 10%; Overall: 1%. Boston, MA: Hispanic women: 52%; Black women: 3%; White women: 1%; Asian women: 10%; Overall: 20%. San Francisco, CA: Hispanic women: 48%; Black women: 10%; White women: 10%; Asian women: 20%; Overall: 2%. Detroit, MI: Hispanic women: 50%; Black women: 5%; White women: 1%; Asian women: 22%; Overall: 8%. Seattle, WA: Hispanic women: 52%; Black women: 5%; White women: 1%; Asian women: 20%; Overall: 1%.
The values are estimated.
The following note is specified below the graph: The overall gender gap pay ratio compares the median annual earnings of full-time, year-round female workers to male workers. The gender pay gap in dollars is the difference between median annual earnings for those two groups. Gender pay gap ratios for women self-identifying in particular racial and ethnic groups compare median annual earnings for full-time, year-round female workers in those groups to full-time, year-round white male workers.

Return to parent-slide containing images.

image8

image9

image1

Expert paper writers are just a few clicks away

Place an order in 3 easy steps. Takes less than 5 mins.

Calculate the price of your order

Type of paper needed:

Pages:

You will get a personal manager and a discount.

Academic level:

We'll send you the first draft for approval by at

Total price:

$0.00