Sinclair Community College please help me to answer the following question

After read the materials I provided below to answer the questions (I have uploaded the content of course material). The questions are in the document named “work”, and please use this document to answer the question. The file named ” Employment Law” is the chapter 16 of the text book which is what I am learning right now (I have upload below). I also upload the assignment rubric named “rubric”.

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Chapter 16
Employment Law
LEARNING OBJECTIVES
After reading this chapter, you should understand the following:
1. How common-law employment at will is modified by common-law doctrine, federal
statutes, and state statutes
2. Various kinds of prohibited discrimination under Title VII and examples of each kind
3. The various other protections for employees imposed by federal statute, including the Age
Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA)
In the next chapter, we will examine the laws that govern the relationship between the employer and
the employee who belongs, or wants to belong, to a union. Although federal labor law is confined to
that relationship, laws dealing with the employment relationship—both state and federal—are far
broader than that. Because most employees do not belong to unions, a host of laws dealing with the
many faces of discrimination shapes employers’ power over and duties to their employees. Beyond the
issue of discrimination, the law also governs a number of other issues, such as the extent to which an
employer may terminate the relationship itself. We examine these issues later in this chapter.
Even before statutes governing collective bargaining and various state and federal discrimination
laws, the common law set the boundaries for employer-employee relationships. The basic rule that
evolved prior to the twentieth century was “employment at will.” We will look at employment at will
toward the end of this chapter. But as we go through the key statutes on employment law and
employment discrimination, bear in mind that these statutes stand as an important set of exceptions
to the basic common-law rule of employment at will. That rule holds that in the absence of a
contractual agreement otherwise, an employee is free to leave employment at any time and for any
reason; similarly, an employer is free to fire employees at any time and for any reason.
16.1 Federal Employment Discrimination Laws
LEARNING OBJECTIVES
1. Know the various federal discrimination laws and how they are applied in various cases.
2. Distinguish between disparate impact and disparate treatment cases.
3. Understand the concept of affirmative action and its limits in employment law.
As we look at federal employment discrimination laws, bear in mind that most states also have
laws that prohibit various kinds of discriminatory practices in employment. Until the 1960s, Congress
had intruded but little in the affairs of employers except in union relationships. A company could
refuse to hire members of racial minorities, exclude women from promotions, or pay men more than
women for the same work. But with the rise of the civil rights movement in the early 1960s, Congress
(and many states) began to legislate away the employer’s frequently exercised power to discriminate.
The most important statutes are Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963,
the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990.
Title VII of the Civil Rights Act of 1964
The most basic antidiscrimination law in employment is in Title VII of the federal Civil Rights Act of
1964. The key prohibited discrimination is that based on race, but Congress also included sex,
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religion,
national origin, and color as prohibited bases Table
for hiring,
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decisions. To put the Civil Rights Act in its proper context, a short history of racial discrimination in
the United States follows.
The passage of the Civil Rights Act of 1964 was the culmination of a long history that dated back to
slavery, the founding of the US legal system, the Civil War, and many historical and political
developments over the ninety-nine years from the end of the Civil War to the passage of the act. The
years prior to 1964 had seen a remarkable rise of civil disobedience, led by many in the civil rights
movement but most prominently by Dr. Martin Luther King Jr. Peaceful civil disobedience was
sometimes met with violence, and television cameras were there to record most of it.
While the Civil War had addressed slavery and the secession of Southern states, the Thirteenth,
Fourteenth, and Fifteenth Amendments, ratified just after the war, provided for equal protection
under the law, guaranteed citizenship, and protected the right to vote for African Americans. The
amendments also allowed Congress to enforce these provisions by enacting appropriate, specific
legislation.
But during the Reconstruction Era, many of the Southern states resisted the laws that were passed in
Washington, DC, to bolster civil rights. To a significant extent, decisions rendered by the US Supreme
Court in this era—such as Plessy v. Ferguson, condoning “separate but equal” facilities for different
races—restricted the utility of these new federal laws. The states effectively controlled the public
treatment of African Americans, and a period of neglect set in that lasted until after World War II.
The state laws essentially mandated segregated facilities (restaurants, hotels, schools, water
fountains, public bathrooms) that were usually inferior for blacks.
Along with these Jim Crow laws in the South, the Ku Klux Klan was very strong, and lynchings
(hangings without any sort of public due process) by the Klan and others were designed to limit the
civil and economic rights of the former slaves. The hatred of blacks from that era by many whites in
America has only gradually softened since 1964. Even as the civil rights bill was being debated in
Congress in 1964, some Young Americans for Freedom in the right wing of the GOP would
clandestinely chant “Be a man, join the Klan” and sing “We will hang Earl Warren from a sour apple
tree,” to the tune of “Battle Hymn of the Republic,” in anger over the Chief Justice’s presiding over
Brown v. Board of Education, which reversed Plessy v. Ferguson.
But just a few years earlier, the public service and heroism of many black military units and
individuals in World War II had created a perceptual shift in US society; men of many races who had
served together in the war against the Axis powers (fascism in Europe and the Japanese emperor’s
rule in the Pacific) began to understand their common humanity. Major migrations of blacks from the
South to industrial cities of the North also gave impetus to the civil rights movement.
Bills introduced in Congress regarding employment policy brought the issue of civil rights to the
attention of representatives and senators. In 1945, 1947, and 1949, the House of Representatives
voted to abolish the poll tax. The poll tax was a method used in many states to confine voting rights to
those who could pay a tax, and often, blacks could not. The Senate did not go along, but these bills
signaled a growing interest in protecting civil rights through federal action. The executive branch of
government, by presidential order, likewise became active by ending discrimination in the nation’s
military forces and in federal employment and work done under government contract.
The Supreme Court gave impetus to the civil rights movement in its reversal of the “separate but
equal” doctrine in the Brown v. Board of Education decision. In its 1954 decision, the Court said, “To
separate black children from others of similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the community that may affect their hearts and
minds in a way never to be undone.…We conclude that in the field of public education the doctrine of
separate but equal has no place. Separate educational facilities are inherently unequal.”
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decision meant that white and black children could
not be
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schools. By itself, however, this decision did not create immediate gains, either in public school
desegregation or in the desegregation of other public facilities. There were memorable standoffs
between federal agents and state officials in Little Rock, Arkansas, for example; the Democratic
governor of Arkansas personally blocked young black students from entering Little Rock’s Central
High School, and it was only President Eisenhower’s order to have federal marshals accompany the
students that forced integration. The year was 1957.
But resistance to public school integration was widespread, and other public facilities were not
governed by the Brown ruling. Restaurants, hotels, and other public facilities were still largely
segregated. Segregation kept blacks from using public city buses, park facilities, and restrooms on an
equal basis with whites. Along with inferior schools, workplace practices throughout the South and
also in many Northern cities sharply limited African Americans’ ability to advance economically. Civil
disobedience began to grow.
The bus protests in Montgomery, Alabama, were particularly effective. Planned by civil rights leaders,
Rosa Parks’s refusal to give up her seat to a white person and sit at the back of the public bus led to a
boycott of the Montgomery bus system by blacks and, later, a boycott of white businesses in
Montgomery. There were months of confrontation and some violence; finally, the city agreed to end
its long-standing rules on segregated seating on buses.
There were also protests at lunch counters and other protests on public buses, where groups of
Northern protesters—Freedom Riders—sometimes met with violence. In 1962, James Meredith’s
attempt to enroll as the first African American at the University of Mississippi generated extreme
hostility; two people were killed and 375 were injured as the state resisted Meredith’s admission. The
murders of civil rights workers Medgar Evers and William L. Moore added to the inflamed
sentiments, and whites in Birmingham, Alabama, killed four young black girls who were attending
Sunday school when their church was bombed.
These events were all covered by the nation’s news media, whose photos showed beatings of
protesters and the use of fire hoses on peaceful protesters. Social tensions were reaching a postwar
high by 1964. According to the government, there were nearly one thousand civil rights
demonstrations in 209 cities in a three-month period beginning May 1963. Representatives and
senators could not ignore the impact of social protest. But the complicated political history of the Civil
Rights Act of 1964 also tells us that the legislative result was anything but a foregone conclusion.See
CongressLink, “Major Features of the Civil Rights Act of 1964,” at
http://www.congresslink.org/print_basics_histmats_civilrights64text.htm.
In Title VII of the Civil Rights Act of 1964, Congress for the first time outlawed discrimination in
employment based on race, religion, sex, or national origin:. Title VII declares: “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 individual’s race, color, religion, sex, or
national origin.” Title VII applies to (1) employers with fifteen or more employees whose business
affects interstate commerce, (2) all employment agencies, (3) labor unions with fifteen or more
members, (4) state and local governments and their agencies, and (5) most federal government
employment.
In 1984, the Supreme Court said that Title VII applies to partnerships as well as corporations when
ruling that it is illegal to discriminatorily refuse to promote a female lawyer to partnership status in a
law firm. This applies, by implication, to other fields, such as accounting.Hishon v. King & Spalding,
467 U.S. 69 (1984). The remedy for unlawful discrimination is back pay and hiring, reinstatement, or
promotion.
Title VII established the Equal Employment Opportunity Commission (EEOC) to investigate
violations of the act. A victim of discrimination who wishes to file suit must first file a complaint with
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the EEOC
to permit that agency to attempt conciliationTable
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dispute.
The EEOC has filed a number
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of lawsuits to prove statistically that a company has systematically discriminated on one of the
forbidden bases. The EEOC has received perennial criticism for its extreme slowness in filing suits
and for failure to handle the huge backlog of complaints with which it has had to wrestle.
The courts have come to recognize two major types of Title VII cases:
1. Cases of disparate treatment
In this type of lawsuit, the plaintiff asserts that because of race, sex, religion, or national
origin, he or she has been treated less favorably than others within the organization. To
prevail in a disparate treatment suit, the plaintiff must show that the company intended to
discriminate because of one of the factors the law forbids to be considered. Thus in
McDonnell Douglas Corp. v. Green, the Supreme Court held that the plaintiff had shown that
the company intended to discriminate by refusing to rehire him because of his
race.McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In general, there are two types
of disparate treatment cases: (1) pattern-and-practice cases, in which the employee asserts
that the employer systematically discriminates on the grounds of race, religion, sex, or
national origin; and (2) reprisal or retaliation cases, in which the employee must show that
the employer discriminated against him or her because that employee asserted his or her Title
VII rights.
2. Cases of disparate impact
In this second type of Title VII case, the employee need not show that the employer intended
to discriminate but only that the effect, or impact, of the employer’s action was
discriminatory. Usually, this impact will be upon an entire class of employees. The plaintiff
must demonstrate that the reason for the employer’s conduct (such as refusal to promote)
was not job related. Disparate impact cases often arise out of practices that appear to be
neutral or nondiscriminatory on the surface, such as educational requirements and tests
administered to help the employer choose the most qualified candidate. In the seminal case of
Griggs v. Duke Power Co., the Supreme Court held that under Title VII, an employer is not
free to use any test it pleases; the test must bear a genuine relationship to job
performance.Griggs v. Duke Power Co., 401 U.S. 424 (1971). Griggs stands for the
proposition that Title VII “prohibits employment practices that have discriminatory effects as
well as those that are intended to discriminate.”
Figure 16.1 A Checklist of Employment Law
Discrimination Based on Religion
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An employer
Jews,
Buddhists, or members of any other
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religious group engages in unlawful disparate treatment under Title VII. But refusal to deal with
someone because of his or her religion is not the only type of violation under the law. Title VII defines
religion as including religious observances and practices as well as belief and requires the employer to
“reasonably accommodate to an employee’s or prospective employee’s religious observance or
practice” unless the employer can demonstrate that a reasonable accommodation would work an
“undue hardship on the conduct of the employer’s business.” Thus a company that refused even to
consider permitting a devout Sikh to wear his religiously prescribed turban on the job would violate
Title VII.
But the company need not make an accommodation that would impose more than a minimal cost. For
example, an employee in an airline maintenance department, open twenty-four hours a day, wished
to avoid working on his Sabbath. The employee belonged to a union, and under the collective
bargaining agreement, a rotation system determined by seniority would have put the worker into a
work shift that fell on his Sabbath. The Supreme Court held that the employer was not required to pay
premium wages to someone whom the seniority system would not require to work on that day and
could discharge the employee if he refused the assignment.Trans World Airlines v. Hardison, 432
U.S. 63 (1977).
Title VII permits religious organizations to give preference in employment to individuals of the same
religion. Obviously, a synagogue looking for a spiritual leader would hire a rabbi and not a priest.
Sex Discrimination
A refusal to hire or promote a woman simply because she is female is a clear violation of Title VII.
Under the Pregnancy Act of 1978, Congress declared that discrimination because of pregnancy is a
form of sex discrimination. Equal pay for equal or comparable work has also been an issue in sex (or
gender) discrimination. Barbano v. Madison County (see Section 16.4.1 “Disparate Treatment:
Burdens of Proof”), presents a straightforward case of sex discrimination. In that case, notice how the
plaintiff has the initial burden of proving discriminatory intent and how the burden then shifts to the
defendant to show a plausible, nondiscriminatory reason for its hiring decision.
The late 1970s brought another problem of sex discrimination to the fore: sexual harassment.
There is much fear and ignorance about sexual harassment among both employers and employees.
Many men think they cannot compliment a woman on her appearance without risking at least a
warning by the human resources department. Many employers have spent significant time and money
trying to train employees about sexual harassment, so as to avoid lawsuits. Put simply, sexual
harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature.
There are two major categories of sexual harassment: (1) quid pro quo and (2) hostile work
environment.
Quid pro quo comes from the Latin phrase “one thing in return for another.” If any part of a job is
made conditional on sexual activity, there is quid pro quo sexual harassment. Here, one person’s
power over another is essential; a coworker, for example, is not usually in a position to make sexual
demands on someone at his same level, unless he has special influence with a supervisor who has
power to hire, fire, promote, or change work assignments. A supervisor, on the other hand, typically
has those powers or the power to influence those kinds of changes. For example, when the male
foreman says to the female line worker, “I can get you off of the night shift if you’ll sleep with me,”
there is quid pro quo sexual harassment.
In Harris v. Forklift Systems, Inc.Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). and in Meritor
v. Vinson,Meritor v. Vinson, 477 U.S. 57 (1986). we see examples of hostile work environment.
Hostile work environment claims are more frequent than quid pro quo claims and so are more
worrisome to management. An employee has a valid claim of sexual harassment if sexual talk,
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imagery,
or behavior becomes so pervasive that it interferes
the employee’s ability to work to her
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best capacity. On occasion, courts have found that offensive jokes, if sufficiently frequent and
pervasive in the workplace, can create a hostile work environment. Likewise, comments about body
parts or public displays of pornographic pictures can also create a hostile work environment. In short,
the plaintiff can be detrimentally offended and hindered in the workplace even if there are no
measurable psychological injuries.
In the landmark hostile work environment case of Meritor v. Vinson, the Supreme Court held that
Title VII’s ban on sexual harassment encompasses more than the trading of sexual favors for
employment benefits. Unlawful sexual harassment also includes the creation of a hostile or offensive
working environment, subjecting both the offending employee and the company to damage suits even
if the victim was in no danger of being fired or of losing a promotion or raise.
In recalling Harris v. Forklift Systems (Chapter 1 “Introduction to Law and Legal Systems”, Section
1.6 “A Sample Case”), we see that the “reasonable person” standard is declared by the court as follows:
“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive
there is no need for it also to be psychologically injurious.” In Duncan v. General Motors Corporation
(see Section 16.4.2 “Title VII and Hostile Work Environment”), Harris is used as a precedent to deny
relief to a woman who was sexually harassed, because the court believed the conditions were not
severe or pervasive enough to unreasonably interfere with her work.
Sex discrimination in terms of wages and benefits is common enough that a number of sizeable class
action lawsuits have been brought. A class action lawsuit is generally initiated by one or more people
who believe that they, along with a group of other people, have been wronged in similar ways. Class
actions for sexual harassment have been successful in the past. On June 11, 1998, the EEOC reached a
$34 million settlement with Mitsubishi over allegations of widespread sexual harassment at the
Normal, Illinois, auto plant. The settlement involved about five hundred women who split the $34
million, although only seven received the maximum $300,000 allowed by law. The others received
amounts ranging from $8,000 to $225,000.
Class action lawsuits involve specific plaintiffs (called class plaintiffs or class representatives) who are
named in the class action lawsuit to assert the claims of the unnamed or absent members of the class;
thus all those with a common complaint need not file their own separate lawsuit. From the point of
view of plaintiffs who may have lost only a few thousand dollars annually as a result of the
discrimination, a class action is advantageous: almost no lawyer would take a complicated civil case
that had a potential gain of only a few thousand dollars. But if there are thousands of plaintiffs with
very similar claims, the judgment could be well into the millions. Defendants can win the procedural
battle by convincing a court that the proposed class of plaintiffs does not present common questions
of law or of fact.
In the Wal-Mart class action case decided by the Supreme Court in 2011, three named plaintiffs
(Dukes, Arana, and Kwapnoski) represented a proposed class of 1.5 million current or former WalMart employees. The plaintiffs’ attorneys asked the trial court in 2001 to certify as a class all women
employed at any Wal-Mart domestic retail store at any time since December of 1998. As the case
progressed through the judicial system, the class grew in size. If the class was certified, and
discrimination proven, Wal-Mart could have been liable for over $1 billion in back pay. So Wal-Mart
argued that as plaintiffs, the cases of the 1.5 million women did not present common questions of law
or of fact—that is, that the claims were different enough that the Court should not allow a single class
action lawsuit to present such differing kinds of claims. Initially, a federal judge disagreed, finding the
class sufficiently coherent for purposes of federal civil procedure. The US Court of Appeals for the
Ninth Circuit upheld the trial judge on two occasions.
But the US Supreme Court agreed with Wal-Mart. In the majority opinion, Justice Scalia discussed
the commonality condition for class actions.
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Quite
obviously, the mere claim by employees of the same
company
that they have suffered a Title VII
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injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can
productively be litigated at once. Their claims must depend upon a common contention—for example,
the assertion of discriminatory bias on the part of the same supervisor. That common contention,
moreover, must be of such a nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.564 U.S. ___ (2011).
Finding that there was no common contention, the Supreme Court reversed the lower courts. Many
commentators, and four dissenting Justices, believed that the majority opinion has created an
unnecessarily high hurdle for class action plaintiffs in Title VII cases.
Discrimination Based on Race, Color, and National Origin
Title VII was primarily enacted to prohibit employment discrimination based on race, color, and
national origin. Race refers to broad categories such as black, Caucasian, Asian, and Native American.
Color simply refers to the color of a person’s skin, and national origin refers to the country of the
person’s ancestry.
Exceptions to Title VII
Merit
Employers are allowed to select on merit and promote on merit without offending title VII’s
requirements. Merit decisions are usually based on work, educational experience, and ability tests. All
requirements, however, must be job related. For example, the ability to lift heavy cartons of sixty
pounds or more is appropriate for certain warehouse jobs but is not appropriate for all office workers.
The ability to do routine maintenance (electrical, plumbing, construction) is an appropriate
requirement for maintenance work but not for a teaching position. Requiring someone to have a high
school degree, as in Griggs vs. Duke Power Co., is not appropriate as a qualification for common
labor.
Seniority
Employers may also maintain seniority systems that reward workers who have been with the
company for a long time. Higher wages, benefits, and choice of working hours or vacation schedules
are examples of rewards that provide employees with an incentive to stay with the company. If they
are not the result of intentional discrimination, they are lawful. Where an employer is dealing with a
union, it is typical to see seniority systems in place.
Bona Fide Occupational Qualification (BFOQ)
For certain kinds of jobs, employers may impose bona fide occupational qualifications
(BFOQs). Under the express terms of Title VII, however, a bona fide (good faith) occupational
qualification of race or color is never allowed. In the area of religion, as noted earlier, a group of a
certain religious faith that is searching for a new spiritual leader can certainly limit its search to those
of the same religion. With regard to sex (gender), allowing women to be locker-room attendants only
in a women’s gym is a valid BFOQ. One important test that the courts employ in evaluating an
employer’s BFOQ claims is the “essence of the business” test.
In Diaz v. Pan American World Airways, Inc., the airline maintained a policy of exclusively hiring
females for its flight attendant positions.Diaz v. Pan American World Airways, Inc., 442 F.2d 385
(5th Cir. 1971). The essence of the business test was established with the court’s finding that
“discrimination based on sex is valid only when the essence of the business operation would be
undermined by not hiring members of one sex exclusively.” Although the court acknowledged that
females might be better suited to fulfill the required duties of the position, this was not enough to
fulfill the essence of the business test:
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primary function of an airline is to transport passengers
from one point to another. While a
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pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as
well as…their apparent ability to perform the non-mechanical functions of the job in a more effective
manner than most men, may all be important, they are tangential to the essence of the business
involved. No one has suggested that having male stewards will so seriously affect the operation of an
airline as to jeopardize or even minimize its ability to provide safe transportation from one place to
another.Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971).
The reason that airlines now use the gender-neutral term flight attendant is a direct result of Title
VII. In the 1990s, Hooters had some difficulty convincing the EEOC and certain male plaintiffs that
only women could be hired as waitstaff in its restaurants. With regard to national origin, directors of
movies and theatrical productions would be within their Title VII BFOQ rights to restrict the roles of
fictional Asians to those actors whose national origin was Asian, but could also permissibly hire
Caucasian actors made up in “yellow face.”
Defenses in Sexual Harassment Cases
In the 1977 term, the US Supreme Court issued two decisions that provide an affirmative defense in
some sexual harassment cases. In Faragher v. City of Boca RatonFaragher v. City of Boca Raton,
524 U.S. 775 (1998). and in Burlington Industries, Inc. v. Ellerth,Burlington Industries v. Ellerth,
524 U.S. 742 (1988). female employees sued for sexual harassment. In each case, they proved that
their supervisors had engaged in unconsented-to touching as well as verbal sexual harassment. In
both cases, the plaintiff quit her job and, after going through the EEOC process, got a right-to-sue
letter and in fact sued for sexual harassment. In Faragher, the employer had never disseminated the
policy against sexual harassment to its employees. But in the second case, Burlington Industries, the
employer had a policy that was made known to employees. Moreover, a complaints system had been
established that was not used by the female employee.
Both opinions rejected the notion of strict or automatic liability for employers when agents
(employees) engage in sexual harassment. But the employer can have a valid defense to liability if it
can prove (1) that it exercised reasonable care to prevent and correct any sexual harassment behaviors
and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to otherwise avoid harm. As with all affirmative
defenses, the employer has the burden of proving this defense.
Affirmative Action
Affirmative action is mentioned in the statutory language of Title VII, as courts have the power to
order affirmative action as a remedy for the effects of past discriminatory actions. In addition to
court-ordered affirmative action, employers may voluntarily use an affirmative action plan to remedy
the effects of past practices or to achieve diversity within the workforce to reflect the diversity in their
community. In Johnson v. Santa Clara County Transportation Agency,Johnson v. Santa Clara
County Transportation Agency, 480 U.S. 616 (1987). the agency had an affirmative action plan. A
woman was promoted from within to the position of dispatcher, even though a male candidate had a
slightly higher score on a test that was designed to measure aptitude for the job. The man brought a
lawsuit alleging sex discrimination. The Court found that voluntary affirmative action was not reverse
discrimination in this case, but employers should be careful in hiring and firing and layoff decisions
versus promotion decisions. It is in the area of promotions that affirmative action is more likely to be
upheld.
In government contracts, President Lyndon Johnson’s Executive Order 11246 prohibits private
discrimination by federal contractors. This is important, because one-third of all US workers are
employed by companies that do business with the federal government. Because of this executive
order, many companies that do business with the government have adopted voluntary affirmative
action programs. In 1995, the Supreme Court limited the extent to which the government could
require contractors to establish affirmative action programs. The Court said that such programs are
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permissible
are “narrowly tailored” so that they
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minimize the harm to white males. To make a requirement for contractors, the government must
show that the programs are needed to remedy past discrimination, that the programs have time
limits, and that nondiscriminatory alternatives are not available.Adarand
Ada
Constructors, Inc. v. Pena,
515 U.S. 200 (1995).
The Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) of 1967 (amended in 1978 and again in 1986)
prohibits discrimination based on age, and recourse to this law has been growing at a faster rate than
any other federal antibias employment law. In particular, the act protects workers over forty years of
age and prohibits forced retirement in most jobs because of age. Until 1987, federal law had permitted
mandatory retirement at age seventy, but the 1986 amendments that took effect January 1, 1987,
abolished the age ceiling except for a few jobs, such as firefighters, police officers, tenured university
professors, and executives with annual pensions exceeding $44,000. Like Title VII, the law has a
BFOQ exception—for example, employers may set reasonable age limitations on certain high-stress
jobs requiring peak physical condition.
There are important differences between the ADEA and Title VII, as Gross v. FBL Financial Services,
Inc. (Section 16.4.3 “Age Discrimination: Burden of Persuasion”) makes clear. It is now more difficult
to prove an age discrimination claim than a claim under Title VII.
Disabilities: Discrimination against the Handicapped
The 1990 Americans with Disabilities Act (ADA) prohibits employers from discriminating on the basis
of disability. A disabled person is someone with a physical or mental impairment that substantially
limits a major life activity or someone who is regarded as having such an impairment. This definition
includes people with mental illness, epilepsy, visual impairment, dyslexia, and AIDS. It also covers
anyone who has recovered from alcoholism or drug addiction. It specifically does not cover people
with sexual disorders, pyromania, kleptomania, exhibitionism, or compulsive gambling.
Employers cannot disqualify an employee or job applicant because of disability as long as he or she
can perform the essential functions of the job, with reasonable accommodation. Reasonable
accommodation might include installing ramps for a wheelchair, establishing more flexible working
hours, creating or modifying job assignments, and the like.
Reasonable accommodation means that there is no undue hardship for the employer. The law does
not offer uniform standards for identifying what may be an undue hardship other than the imposition
on the employer of a “significant difficulty or expense.” Cases will differ: the resources and situation
of each particular employer relative to the cost or difficulty of providing the accommodation will be
considered; relative cost, rather than some definite dollar amount, will be the issue.
As with other areas of employment discrimination, job interviewers cannot ask questions about an
applicant’s disabilities before making a job offer; the interviewer may only ask whether the applicant
can perform the work. Requirements for a medical exam are a violation of the ADA unless the exam is
job related and required of all applicants for similar jobs. Employers may, however, use drug testing,
although public employers are to some extent limited by the Fourth Amendment requirements of
reasonableness.
The ADA’s definition of disability is very broad. However, the Supreme Court has issued several
important decisions that narrow the definition of what constitutes a disability under the act.
Two kinds of narrowing decisions stand out: one deals with “correctable conditions,” and the other
deals with repetitive stress injuries. In 1999, the Supreme Court reviewed a case that raised an issue
of whether severe nearsightedness (which can be corrected with lenses) qualifies as a disability under
the ADA.Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). The Supreme Court ruled that disability
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under
the ADA will be measured according to how a person
with corrective drugs or devices
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and not how the person functions without them. In Orr v. Wal-Mart Stores, Inc., a federal appellate
court held that a pharmacist who suffered from diabetes did not have a cause of action against WalMart under the ADA as long as the condition could be corrected by insulin.Orr v. Wal-Mart Stores,
Inc., 297 F.3d 720 (8th Cir. 2002).
The other narrowing decision deals with repetitive stress injuries. For example, carpal tunnel
syndrome—or any other repetitive stress injury—could constitute a disability under the ADA. By
compressing a nerve in the wrist through repetitive use, carpal tunnel syndrome causes pain and
weakness in the hand. In 2002, the Supreme Court determined that while an employee with carpal
tunnel syndrome could not perform all the manual tasks assigned to her, her condition did not
constitute a disability under the ADA because it did not “extensively limit” her major life activities.
(See Section 16.4.4 “Disability Discrimination”.)
Equal Pay Act
The Equal Pay Act of 1963 protects both men and women from pay discrimination based on sex. The
act covers all levels of private sector employees and state and local government employees but not
federal workers. The act prohibits disparity in pay for jobs that require equal skill and equal effort.
Equal skill means equal experience, and equal effort means comparable mental and/or physical
exertion. The act prohibits disparity in pay for jobs that require equal responsibility, such as equal
supervision and accountability, or similar working conditions.
In making their determinations, courts will look at the stated requirements of a job as well as the
actual requirements of the job. If two jobs are judged to be equal and similar, the employer cannot
pay disparate wages to members of different sexes. Along with the EEOC enforcement, employees can
also bring private causes of action against an employer for violating this act. There are four criteria
that can be used as defenses in justifying differentials in wages: seniority, merit, quantity or quality of
product, and any factor other than sex. The employer will bear the burden of proving any of these
defenses.
A defense based on merit will require that there is some clearly measurable standard that justifies the
differential. In terms of quantity or quality of product, there may be a commission structure,
piecework structure, or quality-control-based payment system that will be permitted. Factors “other
than sex” do not include so-called market forces. In Glenn v. General Motors Corp., the US Court of
Appeals for the Eleventh Circuit rejected General Motor’s argument that it was justified in paying
three women less than their male counterparts on the basis of “the market force theory” that women
will work for less than a man.Glenn v. General Motors Corp., 841 F.2d 1567 (1988).
K E Y TA K E AWAY
Starting with employment at will as a common-law doctrine, we see many modifications by
statute, particularly after 1960. Title VII of the Civil Rights Act of 1964 is the most significant,
for it prohibits employers engaged in interstate commerce from discriminating on the basis of
race, color, sex, religion, or national origin.
Sex discrimination, especially sexual harassment, has been a particularly fertile source of
litigation. There are many defenses to Title VII claims: the employer may have a merit system
or a seniority system in place, or there may be bona fide occupational qualifications in religion,
gender, or national origin. In addition to Title VII, federal statutes limiting employment
discrimination are the ADEA, the ADA
ADA, and the Equal Pay Act.
EXERCISES
1. Go to the EEOC website. Describe the process by which an employee or ex-employee
who wants to make a Title VII claim obtains a right-to-sue letter from the EEOC.
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2. Again, looking at the EEOC website, find the statistical
of Title VII claims brought
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to the EEOC. What kind of discrimination is most frequent?
3. According to the EEOC website, what is “retaliation”? How frequent are retaliation claims
relative to other kinds of claims?
4. Greg Connolly is a member of the Church of God and believes that premarital sex and
abortion are sinful. He works as a pharmacist for Wal-Mart, and at many times during the
week, he is the only pharmacist available to fill prescriptions. One product sold at his WalMart is the morning-after pill (RU 468). Based on his religious beliefs, he tells his employer
that he will refuse to fill prescriptions for the morning-after pill. Must Wal-Mart make a
reasonable accommodation to his religious beliefs?
16.2 Employment at Will
LEARNING OBJECTIVES
1. Understand what is meant by employment at will under common law.
2. Explain the kinds of common-law (judicially created) exceptions to the employment-at-will
doctrine, and provide examples.
At common law, an employee without a contract guaranteeing a job for a specific period was an
employee at will and could be fired at any time and for any reason, or even for no reason at all. The
various federal statutes we have just examined have made inroads on the at-will doctrine. Another
federal statute, the Occupational Safety and Health Act, prohibits employers from discharging
employees who exercise their rights under that law.
The courts and legislatures in more than forty states have made revolutionary changes in the at-will
doctrine. They have done so under three theories: tort, contract, and duty of good faith and fair
dealing. We will first consider the tort of wrongful discharge.
Courts have created a major exception to the employment-at-will rule by allowing the tort of wrongful
discharge. Wrongful discharge means firing a worker for a bad reason. What is a bad reason? A bad
reason can be (1) discharging an employee for refusing to violate a law, (2) discharging an employee
for exercising a legal right, (3) discharging an employee for performing a legal duty, and (4)
discharging an employee in a way that violates public policy.
Discharging an Employee for Refusing to Violate a Law
Some employers will not want employees to testify truthfully at trial. In one case, a nurse refused a
doctor’s order to administer a certain anesthetic when she believed it was wrong for that particular
patient; the doctor, angry at the nurse for refusing to obey him, then administered the anesthetic
himself. The patient soon stopped breathing. The doctor and others could not resuscitate him soon
enough, and he suffered permanent brain damage. When the patient’s family sued the hospital, the
hospital told the nurse she would be in trouble if she testified. She did testify according to her oath in
the court of law (i.e., truthfully), and after several months of harassment, was finally fired on a
pretext. The hospital was held liable for the tort of wrongful discharge. As a general rule, you should
not fire an employee for refusing to break the law.
Discharging an Employee for Exercising a Legal Right
Suppose Bob Berkowitz files a claim for workers’ compensation for an accident at Pacific Gas &
Electric, where he works and where the accident that injured him took place. He is fired for doing so,
because the employer does not want to have its workers’ comp premiums increased. In this case, the
right exercised by Berkowitz is supported by public policy: he has a legal right to file the claim, and if
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he can
establish that his discharge was caused by his filing
theofclaim,
he will prove the tort of
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wrongful discharge.
Discharging an Employee for Performing a Legal Duty
Courts have long held that an employee may not be fired for serving on a jury. This is so even though
courts do recognize that many employers have difficulty replacing employees called for jury duty. Jury
duty is an important civic obligation, and employers are not permitted to undermine it.
Discharging an Employee in a Way That Violates Public Policy
This is probably the most controversial basis for a tort of wrongful discharge. There is an inherent
vagueness in the phrase “basic social rights, duties, or responsibilities.” This is similar to the
exception in contract law: the courts will not enforce contract provisions that violate public policy.
(For the most part, public policy is found in statutes and in cases.) But what constitutes public policy
is an important decision for state courts. In Wagenseller v. Scottsdale Memorial
Hospital,Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370; 710 P.2d 1025 (1085). for
example, a nurse who refused to “play along” with her coworkers on a rafting trip was discharged. The
group of coworkers had socialized at night, drinking alcohol; when the partying was near its peak, the
plaintiff refused to be part of a group that bared their buttocks to the tune of “Moon River” (a
composition by Henry Mancini that was popular in the 1970s). The court, at great length, considered
that “mooning” was a misdemeanor under Arizona law and that therefore her employer could not
discharge her for refusing to violate a state law.
Other courts have gone so far as to include professional oaths and codes as part of public policy. In
Rocky Mountain Hospital and Medical Services v. Diane Mariani, the Colorado Supreme Court
reviewed a trial court decision to refuse relief to a certified public accountant who was discharged
when she refused to violate her professional code.Rocky Mountain Hospital and Medical Services v.
Diane Mariani, 916 P.2d 519 (Colo. 1996). (Her employer had repeatedly required her to come up
with numbers and results that did not reflect the true situation, using processes that were not in
accord with her training and the code.) The court of appeals had reversed the trial court, and the
Supreme Court had to decide if the professional code of Colorado accountants could be considered to
be part of public policy. Given that accountants were licensed by the state on behalf of the public, and
that the Board of Accountancy had published a code for accounting professionals and required an
oath before licensing, the court noted the following:
The Colorado State Board of Accountancy is established pursuant to section 12-2-103, 5A C.R.S.
(1991). The Board has responsibility for making appropriate rules of professional conduct, in order to
establish and maintain a high standard of integrity in the profession of public accounting. § 12-2-104,
5A C.R.S. (1991). These rules of professional conduct govern every person practicing as a certified
public accountant. Id. Failure to abide by these rules may result in professional discipline. § 12-2-123,
5A C.R.S. (1991). The rules of professional conduct for accountants have an important public purpose.
They ensure the accurate reporting of financial information to the public. They allow the public and
the business community to rely with confidence on financial reporting. Rule 7.1, 3 C.C.R. 705-1 (1991).
In addition, they ensure that financial information will be reported consistently across many
businesses. The legislature has endorsed these goals in section 12-2-101, 5A C.R.S.
The court went on to note that the stated purpose of the licensing and registration of certified public
accountants was to “provide for the maintenance of high standards of professional conduct by those
so licensed and registered as certified public accountants.” Further, the specific purpose of Rule 7.1
provided a clear mandate to support an action for wrongful discharge. Rule 7.1 is entitled “Integrity
and Objectivity” and states, “A certificate holder shall not in the performance of professional services
knowingly misrepresent facts, nor subordinate his judgment to others.” The fact that Mariani’s
employer asked her to knowingly misrepresent facts was a sufficient basis in public policy to make her
discharge wrongful.
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Contract
at Will
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Contract law can modify employment at will. Oral promises made in the hiring process may be
enforceable even though the promises are not approved by top management. Employee handbooks
may create implied contracts that specify personnel processes and statements that the employees can
be fired only for a “just cause” or only after various warnings, notice, hearing, or other procedures.
Good Faith and Fair Dealing Standard
A few states, among them Massachusetts and California, have modified the at-will doctrine in a farreaching way by holding that every employer has entered into an implied covenant of good faith and
fair dealing with its employees. That means, the courts in these states say, that it is “bad faith” and
therefore unlawful to discharge employees to avoid paying commissions or pensions due them. Under
this implied covenant of fair dealing, any discharge without good cause—such as incompetence,
corruption, or habitual tardiness—is actionable. This is not the majority view, as the case in Section
16.4.4 “Disability Discrimination” makes clear.
K E Y TA K E AWAY
Although employment at will is still the law, numerous exceptions have been established by
judicial decision. Employers can be liable for the tort of wrongful discharge if they discharge an
employee for refusing to violate a law, for exercising a legal right or performing a legal duty, or
in a way that violates basic public policy.
EXERCISES
1. Richard Mudd, an employee of Compuserve, is called for jury duty in Wayne County,
Michigan. His immediate supervisor, Harvey Lorie, lets him know that he “must” avoid jury
duty at all costs. Mudd tells the judge of his circumstances and his need to be at work, but
the judge refuses to let Mudd avoid jury duty. Mudd spends the next two weeks at trial. He
sends regular e-mails and texts to Lorie during this time, but on the fourth day gets a text
message from Lorie that says, “Don’t bother to come back.” When he does return, Lorie
tells him he is fired. Does Mudd have a cause of action for the tort of wrongful discharge?
2. Olga Monge was a schoolteacher in her native Costa Rica. She moved to New Hampshire
and attended college in the evenings to earn US teaching credentials. At night, she
worked at the Beebe Rubber Company after caring for her husband and three children
during the day. When she applied for a better job at the plant, the foreman offered to
promote her if she would be “nice” and go out on a date with him. She refused, and he
assigned her to a lower-wage job, took away her overtime, made her clean the
washrooms, and generally ridiculed her. She finally collapsed at work, and he fired her.
Does Monge have any cause of action?
16.3 Other Employment-Related Laws
LEARNING OBJECTIVE
1. Understand the various federal and state statutes that affect employers in the areas of
plant closings, pensions, workers’ compensation, use of polygraphs, and worker safety.
The Federal Plant-Closing Act
A prime source of new jobs across the United States is the opening of new industrial plants—which
accounted for millions of jobs a year during the 1970s and 1980s. But for every 110 jobs thus created,
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nearly
100 were lost annually in plant closings during that
period.
In the mid-1980s alone, 2.2 million
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plant jobs were lost each year. As serious as those losses were for the national economy, they were no
less serious for the individuals who were let go. Surveys in the 1980s showed that large numbers of
companies provided little or no notice to employees that their factories were to be shut down and
their jobs eliminated. Nearly a quarter of businesses with more than 100 employees provided no
specific notice to their employees that their particular work site would be closed or that they would
suffer mass layoffs. More than half provided two weeks’ notice or less.
Because programs to support dislocated workers depend heavily on the giving of advance notice, a
national debate on the issue in the late 1980s culminated in 1988 in Congress’s enactment of the
Worker Adjustment and Retraining Notification (WARN) Act, the formal name of the federal plantclosing act. Under this law, businesses with 100 or more employees must give employees or their local
bargaining unit, along with the local city or county government, at least sixty days’ notice whenever
(1) at least 50 employees in a single plant or office facility would lose their jobs or face long-term
layoffs or a reduction of more than half their working hours as the result of a shutdown and (2) a
shutdown would require long-term layoffs of 500 employees or at least a third of the workforce. An
employer who violates the act is liable to employees for back pay that they would have received during
the notice period and may be liable to other fines and penalties.
An employer is exempted from having to give notice if the closing is caused by business circumstances
that were not reasonably foreseeable as of the time the notice would have been required. An employer
is also exempted if the business is actively seeking capital or business that if obtained, would avoid or
postpone the shutdown and the employer, in good faith, believes that giving notice would preclude
the business from obtaining the needed capital or business.
The Employee Polygraph Protection Act
Studies calling into question the reliability of various forms of lie detectors have led at least half the
states and, in 1988, Congress to legislate against their use by private businesses. The Employee
Polygraph Protection Act forbids private employers from using lie detectors (including such devices
as voice stress analyzers) for any reason. Neither employees nor applicants for jobs may be required
or even asked to submit to them. (The act has some exceptions for public employers, defense and
intelligence businesses, private companies in the security business, and manufacturers of controlled
substances.)
Use of polygraphs, machines that record changes in the subject’s blood pressure, pulse, and other
physiological phenomena, is strictly limited. They may be used in conjunction with an investigation
into such crimes as theft, embezzlement, and industrial espionage, but in order to require the
employee to submit to polygraph testing, the employer must have “reasonable suspicion” that the
employee is involved in the crime, and there must be supporting evidence for the employer to
discipline or discharge the employee either on the basis of the polygraph results or on the employee’s
refusal to submit to testing. The federal polygraph law does not preempt state laws, so if a state law
absolutely bars an employer from using one, the federal law’s limited authorization will be
unavailable.
Occupational Safety and Health Act
In a heavily industrialized society, workplace safety is a major concern. Hundreds of studies for more
than a century have documented the gruesome toll taken by hazardous working conditions in mines,
on railroads, and in factories from tools, machines, treacherous surroundings, and toxic chemicals
and other substances. Studies in the late 1960s showed that more than 14,000 workers were killed
and 2.2 million were disabled annually—at a cost of more than $8 billion and a loss of more than 250
million worker days. Congress responded in 1970 with the Occupational Safety and Health Act, the
primary aim of which is “to assure so far as possible every working man and woman in the Nation safe
and healthful working conditions.”
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The Chapter
act imposes on each employer a general duty to furnish
place
of employment free from
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recognized hazards likely to cause death or serious physical harm to employees. It also gives the
secretary of labor the power to establish national health and safety standards. The standard-making
power has been delegated to the Occupational Safety and Health Administration (OSHA), an agency
within the US Department of Labor. The agency has the authority to inspect workplaces covered by
the act whenever it receives complaints from employees or reports about fatal or multiple injuries.
The agency may assess penalties and proceed administratively to enforce its standards. Criminal
provisions of the act are enforced by the Justice Department.
During its first two decades, OSHA was criticized for not issuing standards very quickly: fewer than
thirty national workplace safety standards were issued by 1990. But not all safety enforcement is in
the hands of the federal government: although OSHA standards preempt similar state standards,
under the act the secretary may permit the states to come up with standards equal to or better than
federal standards and may make grants to the states to cover half the costs of enforcement of the state
safety standards.
Employee Retirement Income Security Act
More than half the US workforce is covered by private pension plans for retirement. One 1988
estimate put the total held in pension funds at more than $1 trillion, costing the federal Treasury
nearly $60 billion annually in tax write-offs. As the size of the private pension funds increased
dramatically in the 1960s, Congress began to hear shocking stories of employees defrauded out of
pension benefits, deprived of a lifetime’s savings through various ruses (e.g., by long vesting
provisions and by discharges just before retirement). To put an end to such abuses, Congress, in 1974,
enacted the Employee Retirement Income Security Act (ERISA).
In general, ERISA governs the vesting of employees’ pension rights and the funding of pension plans.
Within five years of beginning employment, employees are entitled to vested interests in retirement
benefits contributed on their behalf by individual employers. Multiemployer pension plans must vest
their employees’ interests within ten years. A variety of pension plans must be insured through a
federal agency, the Pension Benefit Guaranty Corporation, to which employers must pay annual
premiums. The corporation may assume financial control of underfunded plans and may sue to
require employers to make up deficiencies. The act also requires pension funds to disclose financial
information to beneficiaries, permits employees to sue for benefits, governs the standards of conduct
of fund administrators, and forbids employers from denying employees their rights to pensions. The
act largely preempts state law governing employee benefits.
Fair Labor Standards Act
In the midst of the Depression, Congress enacted at President Roosevelt’s urging a national minimum
wage law, the Fair Labor Standards Act of 1938 (FLSA). The act prohibits most forms of child labor
and established a scale of minimum wages for the regular workweek and a higher scale for overtime.
(The original hourly minimum was twenty-five cents, although the administrator of the Wage and
Hour Division of the US Department of Labor, a position created by the act, could raise the minimum
rate industry by industry.) The act originally was limited to certain types of work: that which was
performed in transporting goods in interstate commerce or in producing goods for shipment in
interstate commerce.
Employers quickly learned that they could limit the minimum wage by, for example, separating the
interstate and intrastate components of their production. Within the next quarter century, the scope
of the FLSA was considerably broadened, so that it now covers all workers in businesses that do a
particular dollar-volume of goods that move in interstate commerce, regardless of whether a
particular employee actually works in the interstate component of the business. It now covers
between 80 and 90 percent of all persons privately employed outside of agriculture, and a lesser but
substantial percentage of agricultural workers and state and local government employees. Violations
of the act are investigated by the administrator of the Wage and Hour Division, who has authority to
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negotiate
back pay on the employee’s behalf. If no settlement
is reached,
the Labor Department may
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sue on the employee’s behalf, or the employee, armed with a notice of the administrator’s calculations
of back wages due, may sue in federal or state court for back pay. Under the FLSA, a successful
employee will receive double the amount of back wages due.
Workers’ Compensation Laws
Since the beginning of the twentieth century, work-related injuries or illnesses have been covered
under state workers’ compensation laws that provide a set amount of weekly compensation for
disabilities caused by accidents and illnesses suffered on the job. The compensation plans also pay
hospital and medical expenses necessary to treat workers who are injured by, or become ill from, their
work. In assuring workers of compensation, the plans eliminate the hazards and uncertainties of
lawsuits by eliminating the need to prove fault. Employers fund the compensation plans by paying
into statewide plans or purchasing insurance.
Other State Laws
Although it may appear that most employment law is federal, employment discrimination is largely
governed by state law because Congress has so declared it. The Civil Rights Act of 1964 tells federal
courts to defer to state agencies to enforce antidiscrimination provisions of parallel state statutes with
remedies similar to those of the federal law. Moreover, many states have gone beyond federal law in
banning certain forms of discrimination. Thus well before enactment of the Americans with
Disabilities Act, more than forty states prohibited such discrimination in private employment. More
than a dozen states ban employment discrimination based on marital status, a category not covered
by federal law. Two states have laws that protect those that may be considered “overweight.” Two
states and more than seventy counties or municipalities ban employment discrimination on the basis
of sexual orientation; most large companies have offices or plants in at least one of these jurisdictions.
By contrast, federal law has no statutory law dealing with sexual orientation.
K E Y TA K E AWAY
There are a number of important federal employment laws collective bargaining or
discrimination. These include the federal plant-closing act, the Employee Polygraph Protection
Act, the Occupational Safety and Health Act, the Employee Retirement Income Security Act,
and the Fair Labor Standards Act. At the state level, workers’ compensation laws preempt
common-law claims against employers for work-related injuries, and state equal opportunity
employment laws provide remedies for certain kinds of workplace discrimination that have no
parallel at the federal level.
EXERCISES
1. United Artists is a corporation doing business in Texas. United Pension Fund is a definedcontribution employee pension benefit plan sponsored by United Artists for employees.
Each employee has his or her own individual pension account, but plan assets are pooled
for investment purposes. The plan is administered by the board of trustees. From 1977 to
1986, seven of the trustees made a series of loans to themselves from the plan. These
trustees did not (1) require the borrowers to submit a written application for the loans, (2)
assess the prospective borrower’s ability to repay loans, (3) specify a period in which the
loans were to be repaid, or (4) call the loans when they remained unpaid. The trustees
also charged less than fair-market-value interest for the loans. The secretary of labor sued
the trustees, alleging that they had breached their fiduciary duty in violation of ERISA.
Who won?Mc Laughlin v. Rowley, 69 F.Supp. 1333 (N.D. Tex. 1988).
2. Arrow Automotive Industries remanufactures and distributes automobile and truck parts.
Its operating plants produce identical product lines. The company is planning to open a
new facility in Santa Maria, California. The employees at the Arrow plant in Hudson,
Massachusetts, are represented by a union, the United Automobile, Aerospace, and
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Agricultural Implement Workers of America. The
Hudson
plant has a history of unprofitable
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operations. The union called a strike when the existing collective bargaining agreement
expired and a new agreement could not be reached. After several months, the board of
directors of the company voted to close the striking plant. The closing would give Arrow a
24 percent increase in gross profits and free capital and equipment for the new Santa
Maria plant. In addition, the existing customers of the Hudson plant could be serviced by
the Spartanburg, South Carolina, plant, which is currently being underutilized. What would
have to be done if the plant-closing act applied to the situation?Arrow Automotive
Industries, Inc. v. NLRB, 853 F.2d 233 (4th Cir. 1989).
16.4 Cases
Disparate Treatment: Burdens of Proof
Barbano v. Madison County
922 F.2d 139 (2d Cir. 1990)
Factual Background
At the Madison County (New York State) Veterans Service Agency, the position of director became
vacant. The County Board of Supervisors created a committee of five men to hold interviews for the
position. The committee interviewed Maureen E. Barbano and four others. When she entered the
interview room, she heard someone say, “Oh, another woman.” At the beginning of the interview,
Donald Greene said he would not consider “some woman” for the position. Greene also asked
Barbano some personal questions about her family plans and whether her husband would mind if she
transported male veterans. Ms. Barbano answered that the questions were irrelevant and
discriminatory. However, Greene replied that the questions were relevant because he did not want to
hire a woman who would get pregnant and quit. Another committee member, Newbold, agreed that
the questions were relevant, and no committee member said the questions were not relevant.
None of the interviewers rebuked Greene or objected to the questions, and none of them told Barbano
that she need not answer them. Barbano did state that if she decided to have a family she would take
no more time off than medically necessary. Greene once again asked whether Barbano’s husband
would object to her “running around the country with men” and said he would not want his wife to do
it. Barbano said she was not his wife. The interview concluded after Barbano asked some questions
about insurance.
After interviewing several other candidates, the board hired a man. Barbano sued the county for sex
discrimination in violation of Title VII, and the district court held in her favor. She was awarded
$55,000 in back pay, prejudgment interest, and attorney’s fees. Madison County appealed the
judgment of Federal District Judge McAvoy; Barbano cross-appealed, asking for additional damages.
The court then found that Barbano had established a prima facie case of discrimination under Title
VII, thus bringing into issue the appellants’ purported reasons for not hiring her. The appellants
provided four reasons why they chose Wagner over Barbano, which the district court rejected either
as unsupported by the record or as a pretext for discrimination in light of Barbano’s interview. The
district court then found that because of Barbano’s education and experience in social services, the
appellants had failed to prove that absent the discrimination, they still would not have hired Barbano.
Accordingly, the court awarded Barbano back pay, prejudgment interest, and attorney’s fees.
Subsequently, the court denied Barbano’s request for front pay and a mandatory injunction ordering
her appointment as director upon the next vacancy. This appeal and cross-appeal followed.
From the Opinion of FEINBERG, CIRCUIT JUDGE
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Appellants
argue that the district court erred in findingTable
that Greene’s
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showed that the Board discriminated in making the hiring decision, and that there was no direct
evidence of discrimination by the Board, making it improper to require that appellants prove that
they would not have hired Barbano absent the discrimination. Barbano in turn challenges the
adequacy of the relief awarded to her by the district court.
A. Discrimination
At the outset, we note that Judge McAvoy’s opinion predated Price Waterhouse v. Hopkins, 490 U.S.
228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1990), in which the Supreme Court made clear that a
“pretext” case should be analyzed differently from a “mixed motives” case. Id. 109 S. Ct. at 1788-89.
Judge McAvoy, not having the benefit of the Court’s opinion in Price Waterhouse, did not clearly
distinguish between the two types of cases in analyzing the alleged discrimination. For purposes of
this appeal, we do not think it is crucial how the district court categorized the case. Rather, we need
only concern ourselves with whether the district court’s findings of fact are supported by the record
and whether the district court applied the proper legal standards in light of its factual findings.
Whether the case is one of pretext or mixed motives, the plaintiff bears the burden of persuasion on
the issue of whether gender played a part in the employment decision. Price Waterhouse v. Hopkins,
at 1788. Appellants contend that Barbano did not sustain her burden of proving discrimination
because the only evidence of discrimination involved Greene’s statements during the interview, and
Greene was an elected official over whom the other members of the Board exercised no control. Thus,
appellants maintain, since the hiring decision was made by the 19-member board, evidence of
discrimination by one member does not establish that the Board discriminated in making the hiring
decision.
We agree that discrimination by one individual does not necessarily imply that a collective decisionmaking body of which the individual is a member also discriminated. However, the record before us
supports the district court’s finding that the Board discriminated in making the hiring decision.
First, there is little doubt that Greene’s statements during the interview were discriminatory. He said
he would not consider “some woman” for the position. His questioning Barbano about whether she
would get pregnant and quit was also discriminatory, since it was unrelated to a bona fide
occupational qualification. King v. Trans World Airlines, 738 F.2d 255, 258 n.2 (8th Cir. 1984).
Similarly, Greene’s questions about whether Barbano’s husband would mind if she had to “run
around the country with men,” and that he would not want his wife to do it, were discriminatory,
since once again the questions were unrelated to bona fide occupational qualifications. Hopkins, at
1786.
Moreover, the import of Greene’s discriminatory questions was substantial, since apart from one
question about her qualifications, none of the interviewers asked Barbano about other areas that
allegedly formed the basis for selecting a candidate. Thus, Greene’s questioning constituted virtually
the entire interview, and so the district court properly found that the interview itself was
discriminatory.
Next, given the discriminatory tenor of the interview, and the acquiescence of the other Committee
members to Greene’s line of questioning, it follows that the judge could find that those present at the
interview, and not merely Greene, discriminated against Barbano. Judge McAvoy pointed out that the
Chairman of the Committee, Newbold, thought Greene’s discriminatory questions were relevant.
Significantly, Barbano protested that Greene’s questions were discriminatory, but no one agreed with
her or told her that she need not answer. Indeed, no one even attempted to steer the interview in
another direction. This knowing and informed toleration of discriminatory statements by those
participating in the interview constitutes evidence of discrimination by all those present. That each
member was independently elected to the Board does not mean that the Committee itself was unable
to control the course of the interview. The Committee had a choice of how to conduct the interview,
and the court could find that the Committee exercised that choice in a plainly discriminatory fashion.
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discrimination directly affected the hiring decision.
At the
of the interviewing process, the
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interviewers evaluated the candidates, and on that basis submitted a recommendation as to which
candidate to hire for the position. “Evaluation does not occur in a vacuum. By definition, when
evaluating a candidate to fill a vacant position, one compares that candidate against other eligible
candidates.” Berl v. County of Westchester, 849 F.2d 712, 715 (2d Cir. 1988). Appellants stipulated
that Barbano was qualified for the position. Again, because Judge McAvoy could find that the
evaluation of Barbano was biased by gender discrimination, the judge could also find that the
Committee’s recommendation to hire Wagner, which was the result of a weighing of the relative
merits of Barbano, Wagner and the other eligible candidates, was necessarily tainted by
discrimination.
The Board in turn unanimously accepted the Committee’s recommendation to hire Wagner, and so
the Board’s hiring decision was made in reliance upon a discriminatory recommendation. The
Supreme Court in Hopkins v. Price Waterhouse found that a collective decision-making body can
discriminate by relying upon discriminatory recommendations, and we are persuaded that the
reasoning in that case applies here as well.
In Hopkins’ case against Price Waterhouse, Ann Hopkins, a candidate for partnership at the
accounting firm of Price Waterhouse, alleged that she was refused admission as a partner because of
sex discrimination. Hopkins’s evidence of discrimination consisted largely of evaluations made by
various partners. Price Waterhouse argued that such evidence did not prove that its internal Policy
Board, which was the effective decision-maker as to partnership in that case, had discriminated. The
Court rejected that argument and found the evidence did establish discrimination:
Hopkins showed that the partnership solicited evaluations from all of the firm’s partners; that it
generally relied very heavily on such evaluations in making its decision; that some of the partners’
comments were the product of [discrimination]; and that the firm in no way disclaimed reliance on
those particular comments, either in Hopkins’ case or in the past. Certainly, a plausible—and, one
might say, inevitable—conclusion to draw from this set of circumstances is that the Policy Board in
making its decision did in fact take into account all of the partners’ comments, including the
comments that were motivated by [discrimination].
Hopkins, at 1794.
In a very significant sense, Barbano presents an even stronger case of discrimination because the only
recommendation the Board relied upon here was discriminatory, whereas in Price Waterhouse, not all
of the evaluations used in the decision-making process were discriminatory. On the other hand, it is
true that the discriminatory content of some of the evaluations in Price Waterhouse was apparent
from reading them, whereas here, the recommendation was embodied in a resolution to the Board
and a reading of the resolution would not reveal that it was tainted by discrimination. Nonetheless,
the facts in this case show that the Board was put on notice before making the appointment that the
Committee’s recommendation was biased by discrimination.
Barbano was a member of the public in attendance at the Board meeting in March 1980 when the
Board voted to appoint Wagner. Before the Board adopted the resolution appointing Wagner,
Barbano objected and asked the Board if male applicants were asked the questions she was asked
during the interview. At this point, the entire Board membership was alerted to the possibility that
the Committee had discriminated against Barbano during her interview. The Committee members did
not answer the question, except for Newbold, who evaded the issue by stating that he did not ask such
questions. The Board’s ability to claim ignorance at this point was even further undermined by the
fact that the Chairman of the Board, Callahan, was present at many of the interviews, including
Barbano’s, in his role as Chairman of the Board. Callahan did not refute Barbano’s allegations,
implying that they were worthy of credence, and none of the Board members even questioned
Callahan on the matter.
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clear that those present understood Barbano was alleging
she had been subjected to
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discrimination during her interview. John Patane, a member of the Board who had not interviewed
Barbano, asked Barbano whether she was implying that Madison County was not an equal
opportunity employer. Barbano said yes. Patane said the County already had their “token woman.”
Callahan apologized to Barbano for “any improper remarks that may have been made,” but an
apology for discrimination does not constitute an attempt to eliminate the discrimination from the
hiring decision. Even though the Board was aware of possible improprieties, it made no investigation
whatsoever into the allegations and did not disclaim any reliance upon the discrimination. In short,
the circumstances show the Board was willing to rely on the Committee’s recommendation even if
Barbano had been discriminated against during her interview. On these facts, it was not clearly
erroneous for the district court to conclude that Barbano sustained her burden of proving
discrimination by the Board.
B. The Employer’s Burden
Having found that Barbano carried her burden of proving discrimination, the district court then
placed the burden on appellants to prove by a preponderance of the evidence that, absent the
discrimination, they would not have hired Barbano for the position. Appellants argue that this burden
is only placed on an employer if the plaintiff proves discrimination by direct evidence, and since
Barbano’s evidence of discrimination was merely circumstantial, the district court erred by placing
the burden of proof on them. Appellants, however, misapprehend the nature of Barbano’s proof and
thus the governing legal standard.
The burden is properly placed on the defendant “once the plaintiff establishes by direct evidence that
an illegitimate factor played a motivating or substantial role in an employment decision.” Grant v.
Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989). Thus, the key inquiry on this aspect
of the case is whether the evidence is direct, that is, whether it shows that the impermissible criterion
played some part in the decision-making process. See Hopkins, at 1791; Grant, 880 F.2d at 1569. If
plaintiff provides such evidence, the fact-finder must then determine whether the evidence shows that
the impermissible criterion played a motivating or substantial part in the hiring decision. Grant, 880
F.2d at 1569.
As we found above, the evidence shows that Barbano’s gender was clearly a factor in the hiring
decision. That the discrimination played a substantial role in that decision is shown by the
importance of the recommendation to the Board. As Rafte testified, the Board utilizes a committee
system, and so the Board “usually accepts” a committee’s recommendation, as it did here when it
unanimously voted to appoint Wagner. Had the Board distanced itself from Barbano’s allegations of
discrimination and attempted to ensure that it was not relying upon illegitimate criteria in adopting
the Committee’s recommendation, the evidence that discrimination played a substantial role in the
Board’s decision would be significantly weakened. The Board showed no inclination to take such
actions, however, and in adopting the discriminatory recommendation allowed illegitimate criteria to
play a substantial role in the hiring decision.
The district court thus properly required appellants to show that the Board would not have hired
Barbano in the absence of discrimination. “The employer has not yet been shown to be a violator, but
neither is it entitled to the…presumption of good faith concerning its employment decisions. At this
point the employer may be required to convince the fact-finder that, despite the smoke, there is no
fire.” Hopkins, at 1798-99 (O’Connor, J., concurring).
Judge McAvoy noted in his opinion that appellants claimed they chose Wagner over Barbano because
he was better qualified in the following areas: (1) interest in veterans’ affairs; (2) experience in the
military; (3) tactfulness; and (4) experience supervising an office. The judge found that the evidence
before him supported only appellants’ first and second reasons for refusing to hire Barbano, but
acknowledged that the Committee members “were enamored with Wagner’s military record and
involvement with veterans’ organizations.” However, neither of these is listed as a job requirement in
the job description, although the district court found that membership in a veterans’ organization
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indicate an interest in veterans’ affairs. Nonetheless,
the of
district
court found that given Barbano’s
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“education and experience in social services,” appellants failed to carry their burden of proving by a
preponderance of the evidence that, absent discrimination, they would not have hired Barbano.
The district court properly held appellants to a preponderance of the evidence standard. Hopkins, 109
S. Ct. at 1795.…
At the time of the hiring decision in 1980, Barbano had been a Social Welfare Examiner for Madison
County for the three previous years. In this position, she determined the eligibility of individuals for
public assistance, medicaid or food stamps, and would then issue or deny the individual’s application
based on all federal, state and local regulations pertaining to the program from which the individual
was seeking assistance. Barbano was thus familiar with the operation of public assistance programs,
knew how to fill out forms relating to benefits and had become familiar with a number of welfare
agencies that could be of use to veterans. Barbano was also working towards an Associate Degree in
Human Services at the time. Rafte testified that Barbano’s resume was “very impressive.” Moreover,
Barbano, unlike Wagner, was a resident of Madison County, and according to Rafte, a candidate’s
residency in the county was considered to be an advantage. Finally, Barbano had also enlisted in the
United States Marine Corps in 1976, but during recruit training had been given a vaccine that affected
her vision. She had received an honorable discharge shortly thereafter.
Wagner had nine years experience as an Air Force Personnel Supervisor, maintaining personnel
records, had received a high school equivalency diploma and took several extension classes in
management. He had been honorably discharged from the Air Force in 1965 with the rank of Staff
Sergeant. Wagner was a member of the American Legion, and his application for the position
included recommendations from two American Legion members. However, for the six years prior to
his appointment as Director, Wagner’s sole paid employment was as a school bus driver and parttime bartender at the American Legion. Wagner admitted that before he was hired he had no
knowledge of federal, state and local laws, rules and regulations pertaining to veterans’ benefits and
services, or knowledge of the forms, methods and procedures used to process veteran benefits claims.
Wagner also had not maintained liaison with welfare agencies and was unfamiliar with the various
welfare agencies that existed in the county.
To be sure, both candidates were qualified for the Director’s position, and it is not our job—nor was it
the district court’s—to decide which one was preferable. However, there is nothing to indicate that
Judge McAvoy misconceived his function in this phase of the case, which was to decide whether
appellants failed to prove by a preponderance of the evidence that they would not have hired Barbano
even if they had not discriminated against her. The judge found that defendants had not met that
burden. We must decide whether that finding was clearly erroneous, and we cannot say that it was.
CASE QUESTIONS
1. Madison County contended that Barbano needed to provide “direct evidence” of
discrimination that had played a motivating or substantial part in the decision. What would
such evidence look like? Is it likely that most plaintiffs who are discriminated against
because of their gender would be able to get “direct evidence” that gender was a
motivating or substantial factor?
2. The “clearly erroneous” standard is applied here, as it is in many cases where appellate
courts review trial court determinations. State the test, and say why the appellate court
believed that the trial judge’s ruling was not “clearly erroneous.”
Title VII and Hostile Work Environment
Duncan v. General Motors Corporation
300 F.3d 928 (8th Cir. 2002)
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OPINION
BY HANSEN, Circuit Judge.
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The Junior College District of St. Louis (the College) arranged for Diana Duncan to provide in-house
technical training at General Motors Corporation’s (GMC) manufacturing facility in Wentzville,
Missouri. Throughout her tenure at GMC, Duncan was subjected to unwelcome attention by a GMC
employee, James Booth, which culminated in Duncan’s resignation. Duncan subsequently filed this
suit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, see 42 U.S.C. §§
2000e-2000e-17; Mo. Rev. Stat. §§ 213.010-213.137,2 alleging that she was sexually harassed and
constructively discharged. A jury found in favor of Duncan and awarded her $4600 in back pay,
$700,000 in emotional distress damages on her sexual harassment claim, and $300,000 in
emotional distress damages on her constructive discharge claim. GMC appeals from the district
court’s denial of its post trial motion for judgment as a matter of law, and the district court’s award of
attorneys’ fees attendant to the post trial motion. We reverse.
I.
Diana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the
College’s Center for Business, Industry, and Labor program from August 1994 until May 1997.
Duncan provided in-house training support to GMC employees.
Duncan first learned about the College’s position at GMC from Booth, a United Auto Workers Union
technology training coordinator for GMC. Booth frequented the country club where Duncan worked
as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing
skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth
brought the pre-employment forms to Duncan at the country club, and he forwarded her completed
forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese
arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth’s management
counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work
at GMC in August 1994.
Two weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a
local restaurant. Booth explained to Duncan that he was in love with a married coworker and that his
own marriage was troubled. Booth then propositioned Duncan by asking her if she would have a
relationship with him. Duncan rebuffed his advance and left the restaurant. The next day Duncan
mentioned the incident to the paint department supervisor Joe Rolen, who had no authority over
Booth. Duncan did not report Booth’s conduct to either Reese (her supervisor) at the College or Ish
(Booth’s management counterpart) at GMC. However, she did confront Booth, and he apologized for
his behavior. He made no further such “propositions.” Duncan stated that Booth’s manner toward her
after she declined his advance became hostile, and he became more critical of her work. For example,
whenever she made a typographical error, he told her that she was incompetent and that he should
hire a “Kelly Services” person to replace her. Duncan admitted that Booth’s criticisms were often
directed at other employees as well, including male coworkers.
Duncan testified to numerous incidents of Booth’s inappropriate behavior. Booth directed Duncan to
create a training document for him on his computer because it was the only computer with the
necessary software. The screen saver that Booth had selected to use on his computer was a picture of a
naked woman. Duncan testified to four or five occasions when Booth would unnecessarily touch her
hand when she handed him the telephone. In addition, Booth had a planter in his office that was
shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man’s
pants that allowed for a cactus to protrude. The planter was in plain view to anyone entering Booth’s
office. Booth also kept a child’s pacifier that was shaped like a penis in his office that he occasionally
showed to his coworkers and specifically to Duncan on two occasions.
In 1995, Duncan requested a pay increase and told Booth that she would like to be considered for an
illustrator’s position. Booth said that she would have to prove her artistic ability by drawing his
planter. Duncan objected, particularly because previous applicants for the position were required to
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automotive parts and not his planter. Ultimately,Table
Duncan
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the position because she did not possess a college degree.
Additionally in 1995, Booth and a College employee created a “recruitment” poster that was posted on
a bulletin board in the high-tech area. The poster portrayed Duncan as the president and CEO of the
Man Hater’s Club of America. It listed the club’s membership qualifications as: “Must always be in
control of: (1) Checking, Savings, all loose change, etc.; (2) (Ugh) Sex; (3) Raising children our way!;
(4) Men must always do household chores; (5) Consider T.V. Dinners a gourmet meal.”…
On May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the “He-Men Women Hater’s
Club.” The beliefs included the following:
—Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real HeMen indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course,
drinking beer.
—Women really do have coodies [sic] and they can spread.
—Women [are] the cause of 99.9 per cent of stress in men.
—Sperm has a right to live.
—All great chiefs of the world are men.
—Prostitution should be legalized.
Duncan refused to type the beliefs and resigned two days later.
Duncan testified that she complained to anyone who would listen to her about Booth’s behavior,
beginning with paint department supervisor Joe Rolen after Booth propositioned her in 1994. Duncan
testified that between 1994 and 1997 she complained several times to Reese at the College about
Booth’s behavior, which would improve at least in the short term after she spoke with Reese.…
Duncan filed a charge of sex discrimination with the Equal Employment Opportunity Commission
(EEOC) on October 30, 1997. The EEOC issued Duncan a right to sue notice on April 17, 1998.
Alleging sexual harassment and constructive discharge, Duncan filed suit against the College and
GMC under both Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan settled
with the College prior to trial. After the jury found in Duncan’s favor on both counts against GMC,
GMC filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial. The
district court denied the motion. The district court also awarded Duncan attorneys’ fees in
conjunction with GMC’s post-trial motion. GMC appeals.
II.
A. Hostile Work Environment
GMC argues that it was entitled to judgment as a matter of law on Duncan’s hostile work environment
claim because she failed to prove a prima facie case. We agree.…
It is undisputed that Duncan satisfies the first two elements of her prima facie case: she is a member
of a protected group and Booth’s attention was unwelcome. We also conclude that the harassment
was based on sex.…Although there is some evidence in the record that indicates some of Booth’s
behavior, and the resulting offensive and disagreeable atmosphere, was directed at both male and
female employees, GMC points to ten incidents when Booth’s behavior was directed at Duncan alone.
GMC concedes that five of these ten incidents could arguably be based on sex: (1) Booth’s proposition
for a “relationship”; (2) Booth’s touching of Duncan’s hand; (3) Booth’s request that Duncan sketch
his planter; (4) the Man Hater’s Club poster; and (5) Booth’s request that Duncan type the He-Men
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subjected to harassment, so long as she shows that women were the primary target of such
harassment.” We conclude that a jury could reasonably find that Duncan and her gender were the
overriding themes of these incidents. The evidence is sufficient to support the jury finding that the
harassment was based on sex.
We agree, however, with GMC’s assertion that the alleged harassment was not so severe or pervasive
as to alter a term, condition, or privilege of Duncan’s employment.…To clear the high threshold of
actionable harm, Duncan has to show that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295,
114 S. Ct. 367 (1993) (internal quotations omitted). “Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII’s purview.” Oncale, 523 U.S. at 81 (internal
quotation omitted). Thus, the fourth part of a hostile environment claim includes both objective and
subjective components: an environment that a reasonable person would find hostile and one that the
victim actually perceived as abusive. Harris, 510 U.S. at 21-22. In determining whether the conduct is
sufficiently severe or pervasive, we look to the totality of the circumstances, including the “frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.”…These standards are designed to “filter out complaints attacking the ordinary
tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct.
2275 (1998) (internal quotations omitted).
The evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of
the derogatory poster and was disturbed by Booth’s advances and his boorish behavior; but, as a
matter of law, she has failed to show that these occurrences in the aggregate were so severe and
extreme that a reasonable person would find that the terms or conditions of Duncan…