Title VII of the Civil Rights Act of 1964 and its amendments prohibit job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender at any stage of employment. Nearly any employer with fifteen or more employees is covered.
The Equal Employment Opportunity Commission (EEOC) issues guidelines interpreting the law. Also, complaints about violations are registered first with the EEOC. If it is unable to resolve a situation and chooses not to sue to enforce the law, the victim may sue. The EEOC has established a priority as to which cases it will pursue.
In a disparate-treatment employment discrimination case, a plaintiff must initially show only that he or she is a member of a protected class,
- he or she applied and was qualified for the job in question,
- he or she was rejected by the employer, and
- the employer continued to seek applicants for the position or filled the position with a person not in a protected class.
Once this prima facie case is shown, an employer who cannot offer a legitimate defense loses. If the employer offers a legitimate defense, however, the plaintiff, to succeed, must show that the defense is a pretext and that discriminatory intent was the real motivation.
If a plaintiff challenging an employment practice or procedure having a discriminatory impact on a protected class can show a connection between the practice and the impact, he or she makes out a prima facie case, and no evidence of discriminatory intent is necessary. The burden shifts to the employer to show that the practice or procedure is justified.
- A plaintiff can prove disparate impact by comparing the employer’s work force to the pool of qualified members of a protected class available in the local labor market and relating any disparity to the employer’s practice or procedure.
- A plaintiff can also prove disparate impact by comparing the employer’s hiring rates for members of the majority class and members of a protected class. Disparate impact is shown if the rate for the latter is less than four-fifths of the rate for the former.
Discrimination Based on Race, Color, and National Origin
If a company’s standards or policies for selecting or promoting employees have the effect of discriminating against employees or job applicants on the basis of race, color, or national origin and do not have a substantial, demonstrable relationship to realistic qualifications for the job in question, they are illegal. Discrimination against these protected classes in regard to employment conditions and benefits is also illegal. Discrimination on the basis of race in regard to employment conditions and benefits can also take the form of reverse discrimination against the members of a majority
Discrimination Based on Religion
Title VII prohibits government employers, private employers, and unions from discriminating against persons because of their religion. Employers must “reasonably accommodate” the religious practices of their employees.
Discrimination Based on Gender
Employers may not discriminate against employees on the basis of gender. In a gender discrimination suit, a plaintiff must show that gender was a determining factor in an employer’s decision to hire, fire, or promote.
- The Equal Pay Act of 1963 prohibits gender-based discrimination in wages paid for equal work when a job requires equal skill, effort, and responsibility under similar conditions.
The Pregnancy Discrimination Act of 1978 expanded Title VII to include discrimination based on pregnancy. An employer must treat an employee temporarily unable to perform her job due to a pregnancy-related condition the same as the employer would treat others similar in ability to work.
Constructive discharge occurs when an employer causes working conditions to be so intolerable that a reasonable person in an employee’s position would feel compelled to quit. An employee must show that the employer caused the intolerable conditions, and knew, or had reason to know, of the intolerable conditions and failed to correct them within a reasonable time. An employee can seek damages for loss of income, including back pay.
Sexual harassment can take two forms: quid pro quo harassment and hostile-environment harassment. The former occurs when job opportunities, promotions, and the like are doled out on the basis of sexual favors. The latter occurs when an employee is subjected to sexual comments, jokes, or physical contact perceived to be offensive.
To be liable for sexual harassment, an employer must have taken a tangible employment action against an employee. Employers have an affirmative defense, however, if they they took “reasonable care to prevent and correct promptly any sexually harassing behavior” (by establishing effective harassment policies and complaint procedures, for example), and the employee suing for harassment failed to follow these policies and procedures.
Plaintiffs in retaliation cases do not have to prove a challenged action adversely affected their workplace or employment. Instead, the challenged action must have been one that would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.
An employer is liable only if it knew, or should have known, about the harassment, and failed to act. In a case involving a nonemployee, an employer may be liable if it knew, or should have known, about the harassment, could exert control over the nonemployee, and failed to act.
Same gender harassment is covered by Title VII.
“Hostile or Offensive Environment”
In 1974, Mechelle Vinson began working at Meritor Savings Bank. Vinson later sued the bank, claiming that she had “constantly been subjected to sexual harassment.” She claimed that Sidney Taylor, a vice president and branch manager, made sexual advances toward her, to which she acquiesced out of fear of losing her job. She testified that Taylor fondled her in front of other employees and forcibly raped her. Taylor denied the charges. The trial court concluded that any sexual relationship between Vinson and Taylor had no relationship to Vinson’s continued employment and ruled in favor of the bank. Vinson appealed, and the appellate court ruled in her favor, finding that she had made out a case of harassing-environment discrimination. The bank appealed.
In one of the early and often-cited cases involving charges of sexual harassment—Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)—the United States Supreme Court affirmed the appellate court’s decision. The Supreme Court rejected the bank’s argument that in prohibiting discrimination under Title VII, Congress was concerned with “tangible loss” of “an economic character” and not “purely psychological aspects of the workplace environment.” The Court pointed out that courts have uniformly held that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. . . . ‘Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.’” Requiring an individual to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest racial epithets.” Holding that the bank’s liability for the actions of its supervisory employees should be determined according to common law principles of agency, the Court remanded the case to the district court for further proceedings.
“Equal Opportunity” Harassment
The prohibition against sexual harassment in the workplace is an extension of Title VII’s prohibition against gender-based discrimination. This means that there can be no sexual harassment if no gender-based discrimination is involved. It also means, among other things, that Title VII does not protect employees from “equal opportunity” harassers—those who harass both sexes equally—because such persons are not discriminating on the basis of gender.
This point was made clear to Steven and Karen Holman, a married couple who worked for the Indiana Department of Transportation, when they sued their employer for sexual harassment. The Holmans alleged that their supervisor had sexually harassed each of them individually on separate occasions and that the supervisor retaliated against them—by denying them certain privileges and pay—when they rejected his advances. In evaluating their claim, the court looked at the letter of Title VII, which states, “It shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” The court observed that in the Holmans’ case, there was no discrimination “because of . . . sex” because the supervisor harassed both of them. Thus, concluded the court, the Holmans could not maintain a Title VII action against their employer. Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).
The Bottom Line
Harassment in the workplace takes many forms, including harassment based on gender, race, national origin, religion, age, and disability. In cases alleging sexual harassment, however, the harassment must be on the basis of sex (gender), or Title VII will not apply.
Remedies under Title VII
A plaintiff may obtain reinstatement, back pay, retroactive promotions, and damages. Compensatory damages are available only in cases of intentional discrimination. Punitive damages may be recovered in some cases, but the sum of compensatory and punitive damages is limited to specific amounts against specific employers.
E-Mail in the Workplace and “Universal Standards of Behavior”
Many employers today establish and implement policies that specify permissible and impermissible uses of the Internet in the workplace. Yet what if employees who violate such a policy claim that they did not “knowingly” do so? In this situation, if the employer discharges the employees for violating the policy, can the employees successfully claim that they were discharged without “just cause” and thus entitled to unemployment compensation? This question recently came before a Utah appellate court in Autoliv ASP, Inc. v. Department of Workforce Services. 29 P.3d 7 (Utah App. 2001).
Autoliv’s Harassment and E-Mail Policies
Autoliv ASP, Inc., a supplier of auto-safety products, gives each of its more than six thousand employees an employee handbook. Among other things, the handbook states that Autoliv will not “tolerate or permit illegal harassment or retaliation of any nature within our workforce.” The handbook also states that the use of e-mail “for reasons other than transmittal of business-related information” is prohibited and that violations of company policies can result in any of several disciplinary actions, including termination.
In 1999, Autoliv learned that an employee had received offensive and sexually harassing e-mail from other Autoliv employees. The company immediately investigated and learned that two employees had, on numerous occasions, sent messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature. Shortly thereafter, Autoliv terminated the two employees for “improper and unauthorized use of company e-mail.” When the employees applied for unemployment benefits, a threshold question was whether they had been fired for just cause. If so, they would not be entitled to unemployment benefits. If not, they would be entitled to such benefits—and Autoliv would ultimately have to pay higher unemployment taxes as a result.
Were the Employees Fired for “Just Cause”?
Under the relevant state statute, to be fired for “just cause,” employees had to have “knowledge of the conduct which the employer expected.” The two employees testified that they had not “knowingly” engaged in misconduct. Further, if Autoliv concluded that they were engaging in misconduct, Autoliv should have warned them and allowed them to change their conduct. The agency agreed, noting that because abuse of the company’s e-mail system was common among Autoliv employees, Autoliv should have notified the employees that their misconduct would not be tolerated before firing them. Because Autoliv had not done so, the termination was without “just cause.”
Autoliv appealed the agency’s decision to a state appellate court, asserting on appeal that it was “incomprehensible” for the agency to hold that a worker could be unaware of the dangers of sending sexually offensive materials to co-workers through a company’s computer network. The court agreed with Autoliv, stating that “[s]uch materials in the workplace could have subjected the employer to sexual harassment and sex discrimination lawsuits.” The court reversed the agency’s decision, concluding that “in today’s workplace, the e-mail transmission of sexually explicit and offensive jokes, pictures, and videos constitutes a flagrant violation of a universal standard of behavior.”
Perceiving Conduct as Harassment
Sexual harassment is a major problem in the workplace. Over 40 percent of female federal employees, for example, reported incidents of sexual harassment in 1980 and roughly the same number reported incidents in 1987. Sexual harassment cost the federal government $267 million between May 1985 and May 1987 for losses in productivity, sick leave costs, and employee replacement costs. According to the United States Merit Systems Protection Board, victims of sexual harassment “pay all the intangible emotional costs inflicted by anger, humiliation, frustration, withdrawal, dysfunction in family life, as well as medical expenses, litigation expenses, job search expenses, and the loss of valuable sick leave and annual leave.”
Sometimes, a person questions whether conduct he or she perceives as offensive should instead be viewed only as bad taste, poor manners, a lack of social grace, or an off-color sense of humor. It has been suggested that if a person feels belittled by an actor’s conduct, it is harassment. If the person feels that the actor treated the person as an equal, it is not harassment.
Because women are disproportionately victims of rape and sexual assault, many women who are victims of mild forms of sexual harassment may worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.
When, because of a romantic relationship, an employer hires, promotes, or otherwise favors someone (a “paramour”), an applicant or employee who is better qualified may believe that the employer should be held liable under Title VII on the ground of sex discrimination.
In King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), a nurse filed a discrimination claim against her employer because her supervisor had promoted another nurse allegedly on the basis of their romantic relationship. The plaintiff proved that kissing, embracing, and other “amorous behavior” played a part in the promotion decision. The court stated that Title VII is violated if a romantic relationship is a substantial factor in an employment decision. The court ordered the employer to promote the nurse who had been overlooked.
The Equal Employment Opportunity Commission (EEOC) has rejected claims of discrimination based on consensual romantic relationships. According to the EEOC, “[a]n isolated instance of favoritism toward a ‘paramour’ (or a spouse, or a friend)” may be unfair, but it does not constitute discrimination on the basis of sex. The reason is that when preferential treatment is based on a romantic relationship, other employees—both men and women—are equally disadvantaged for reasons other than their gender.
For example, Jane promotes Wallace, her fiancée, over Dora, who believes she is better qualified for the promotion. Dora was not denied the promotion because she is a woman, nor would she have received the promotion if she were a man. Thus, under the EEOC’s guidelines, there would be no liability.
Most courts agree with the EEOC. For example, in DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), the court held that voluntary, romantic relationships cannot form the basis of a sex discrimination suit under Title VII. In that case, in April 1982, the Westchester County Medical Center (WCMC) opened a neonatal intensive care unit for the treatment of critically ill newborn children. The WCMC decided to add to the staff of the new unit a respiratory therapist with supervisory responsibilities at a salary higher than those of other staff respiratory therapists. One of the requirements for the position was certification by the National Board of Respiratory Therapists (NBRT). This had not previously been a requirement for members of the staff, none of whom had NBRT certification. On April 26, Jean Guagenti, a respiratory therapist with NBRT certification, was hired for the new position on the recommendation of James Ryan, the program administrator of the respiratory therapy department. In May, Anthony DeCintio, a staff respiratory therapist, filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging the WCMC with sex discrimination in violation of Title VII arising from the hiring of Guagenti. He alleged that the certification requirement was created to exclude him from consideration for the new position and that the new position was created specifically for Guagenti. Six other male staff respiratory therapists also filed complaints. Eventually, the EEOC dismissed the complaints, and the therapists took their case to court. Finding, among other things, that Ryan and Guagenti had been in a consensual romantic relationship at the time Guagenti was hired and that the certification requirement was a pretext on Ryan’s part to obtain the position for Guagenti, the court ruled in favor of DeCintio and the others. The WCMC appealed.
The U.S. Court of Appeals for the Second Circuit reversed. The court acknowledged that in the context of Title VII, “sex” refers to “membership in a [protected] class delineated by gender.” The court could find no reason for extending Title VII’s reference to “sex” “so broadly as to include an ongoing, voluntary, romantic engagement.” Under the circumstances, “[a]ppellees were not prejudiced because of their status as males; rather, they were discriminated against because Ryan preferred his paramour. Appellees faced exactly the same predicament as that faced by any woman applicant for the promotion.”
What remedies are available under Title VII of the Civil Rights Act of 1964, as amended? Remedies under Title VII include job reinstatement, back pay, retroactive promotions, and damages. (Compensatory damages are available only in cases of intentional discrimination. Punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference to an individual’s rights. The sum of the amount of compensatory and punitive damages is limited by the statute to specific amounts against specific employers.)
State Employees Not Covered by the ADEA
In the late 1990s, suits against state agencies by state employees for age discrimination were dismissed because, under the Eleventh Amendment, a state is immune from a suit brought by a private individual in federal court unless the state consents to the suit.
Federal Employees Explicitly Covered by the ADEA
The ADEA expressly covers federal employees.
Discrimination Based on Disability
The Americans with Disabilities Act (ADA) of 1990, which was designed to eliminate discriminatory hiring and firing practices that prevent otherwise qualified disabled workers from fully participating in the national labor force. Essentially, an employer must reasonably accommodate disabled persons unless to do so would constitute an undue hardship. States are immune from suits by state government employees.
Procedures under the ADA
The EEOC may bring a suit against an employer even if the employer has agreed with the employee to submit a claim to arbitration.
What Is a Disability?
ADA’s definition of a disability is an impairment that “substantially limits” major life activities and outlines its boundaries (how a person functions on medication or with corrective devices). A plaintiff must prove that he or she has a disability. Some conditions are specifically excluded.
How to Interview Workers with Disabilities — Many employers have been held liable under the Americans with Disabilities Act (ADA) of 1990 simply because they asked the wrong questions when interviewing job applicants with disabilities. If you are an employer, you can do several things to avoid violating the ADA.
As a preliminary matter, you should become familiar with the guidelines on job interviews issued by the Equal Employment Opportunity Commission (EEOC). These guidelines indicate the kinds of questions that employers may—and may not—ask job applicants with disabilities. Often, the line between permissible and impermissible questions is a fine one. Consider these examples:
Ability to perform the job. As an employer, you may ask a job applicant, “Can you do the job?” You may also ask whether the applicant can perform specific tasks related to the job. You may not ask the candidate, “How would you do the job?”—unless the disability is obvious, the applicant brings up the subject during the interview, or you ask the question of all applicants.
Absenteeism. You may ask, “Can you meet our attendance requirements?” or “How many days were you absent last year?” You may not ask, “How many days were you sick last year?”
Drug use. Generally, employers may ask about the current or past use of illegal drugs but not about drug addiction. Therefore, as an employer, you may ask, “Have you ever used illegal drugs?” or “Have you done so in the last six months?” You may not ask, “How often did you use illegal drugs?” or “Have you been treated for drug abuse?”
Alcohol use. Generally, employers may ask about a candidate’s drinking habits but not about alcoholism. Therefore, you may ask, “Do you drink alcohol?” or “Have you been arrested for driving while intoxicated?” but you may not ask, “How often do you drink?”
History of job-related injuries. Employers may not ask a job candidate with a disability any questions about the applicant’s previous job-related injuries or about workers’ compensation claims submitted in the past.
Once you have made a job offer, though, you may ask the applicant questions concerning his or her disability, including questions about previous workers’ compensation claims or about the extent of a drinking problem. You may also ask for medical documents verifying the nature of the applicant’s disability. Generally, though, you should ask such questions only if you ask them of all applicants or if they are follow-up questions concerning information about the applicant’s disability that she or he already disclosed during a job interview.
An employer cannot refuse to hire a disabled person who is otherwise qualified for a particular position. That the employer may have to make some reasonable accommodation for a disabled applicant, such as installing ramps for a wheelchair, will not cause the applicant to be considered unqualified.
- Employers who do not wish to make such accommodations must show that the accommodations will cause “undue hardship.” This is subject to a case-by-case determination.
- The job application process, including questions and medical exams, must not be discriminatory. There must also be reasonable accommodation for disabled applicants.
Defenses to Employment Discrimination
Defenses to charges of employment discrimination include the following.
An employer may defend against a claim of disparate-impact discrimination by asserting that a practice that has a discriminatory effect is a business necessity. If there is a definite connection between the practice and business, the practice may stand.
Bona Fide Occupational Qualification (BFOQ)
A trait must be essential to a job to qualify as a BFOQ if discriminating against those who do not have the trait amounts to otherwise illegal employment discrimination.
If no present intent to discriminate is shown, and promotions or other job benefits are distributed according to a fair seniority system, an employer has a good defense against some employment-discrimination suits, including those brought under the ADA.
After-Acquired Evidence of Employee Misconduct
After-acquired evidence of the plaintiff’s wrongdoing cannot shield employers from liability for employment discrimination, though it may limit the amount of damages.
Affirmative action programs have caused much controversy.
The United States Supreme Court applied a strict scrutiny analysis in an equal-protection challenge to an affirmative-action program in the granting of federal highway construction contracts. Such programs cannot make use of quotas or preferences for unqualified persons.
Court Decisions on Race and Ethnicity
Among recent affirmative-action cases, most notably for employment the United States Supreme Court has held that once a program has succeeded, it must be changed or dropped. Some states have ended state-government -sponsored programs.
Generally, states prohibit the same kinds of discrimination prohibited under federal legislation. States also often provide protection for some individuals who are not protected under Title VII and may provide for additional damages. Some states have ended state-government -sponsored affirmative action programs.
Exceptions to the employment-at-will doctrine.
Contract Theory Exceptions. Some courts have held that an implied employment contract exists between employer and employee under an employer’s handbook, personnel bulletin, or the like if the document states that workers will be dismissed only for good cause, and an employer who fires a worker contrary to this promise is liable for breach of contract. In a few states, all employment contracts are considered to contain an implied covenant of good faith, and an employee can claim breach of this covenant, if the employee is fired arbitrarily.
Public Policy Exceptions. An employer may not fire a worker in violation of a fundamental public policy (firing a worker for taking time to serve on a jury, for instance). In most states, firing workers who refuse to perform illegal acts violates public policy. Whistleblowers may be protected for public policy reasons.
Tort Theory Exceptions. In a few cases, discharge may give rise to a tort cause of action (for example, an abusive discharge may result in intentional infliction of emotional distress or defamation).
What are some important provisions of the Fair Labor Standards Act?
The Fair Labor Standards Act (FLSA) of 1938, which covers employers engaged in interstate commerce, regulates child labor, maximum hours, and minimum wages. Children under sixteen years of age cannot work full-time except for a parent under certain circumstances. Children between sixteen and eighteen cannot work in hazardous jobs or in jobs detrimental to their health and wellbeing. Employees who agree to work more than forty hours a week must be paid no less than one and a half times their regular pay for hours over forty. Certain employees are exempt. A minimum wage must be paid to employees in certain industries. Effective July 24, 2009, the federal minimum wage increases to $7.25 per hour. This change reflects the third and final federal minimum wage increase as amended under the Fair Labor Standards Act (FLSA).
Wage includes the reasonable cost to furnish employees with board, lodging, and other facilities if the employer customarily furnishes them.
Do federal labor laws cover all workers? No. Although coverage of the federal labor laws is broad and extends to all employers whose business activity either involves or affects interstate commerce. However, some workers are specifically excluded from these laws due to either the existence of industry-specific legislation. Other workers such as farm laborers and domestic servants are excluded from most federal labor laws but are not covered by other legislation.
What protection do employees have from the financial impact of retirement, disability, death, hospitalization, and unemployment? Federal and state governments participate in insurance programs designed to offer protection in this area. The Social Security Act of 1935 provides for old-age retirement, survivors, disability, and hospital insurance (OASDI). Employers and employees contribute under the Federal Insurance Contributions Act (FICA). Medicare is a federal health insurance program administered by the Social Security Administration for people sixty-five years of age and older and for some under sixty-five who are disabled. Under the Employee Retirement Income Security Act (ERISA) of 1974, the Labor Management Services Administration of the Department of Labor regulates operators of private pension funds (which employers are not required to establish). Employee contributions to pension plans vest immediately, and employee rights to employer contributions vest after five years of employment. Pension managers are required to invest cautiously and refrain from investing more than 10 percent of a fund in an employer’s securities. Under the Federal Unemployment Tax Act of 1939, employers pay quarterly taxes to the states. The states deposit them with the federal government, which maintains an Unemployment Insurance Fund.
Why should immigration be permitted? Currently, immigrants revitalize nations and their economies, as well as enriching their cultures. In many countries, including the United States, the populations would grow increasingly older, resulting in, among other things, fewer workers to support those who are retired. Immigrants contribute to economies in other ways, too, often doing work that citizens reject, for example, and paying taxes without fully participating in the benefits that those taxes help to bestow. Immigrants are often responsible for a disproportionate number of the innovations, inventions, and other achievements that can improve a nation’s life. Immigrants often follow different customs, or religions, or artistic traditions, which can enhance and diversify a culture. Why should immigration be restricted? Immigration should be restricted in some way because a nation might find itself otherwise overwhelmed. There could be too many persons seeking too few jobs, for example, or too many persons fleeing a temporarily discomfiting situation. There might be a movement of too many persons hostile to a nation, or its government, into its borders. There might be a large number of criminals who would seek refuge across international borders with too much ease.
Is penalizing employers the best approach to take in attempting to curb illegal immigration? Yes, because employment is the primary motivation for those who would immigrate illegally. (Why else would anyone voluntarily leave their home to live where they know nearly no one, likely do not speak the language or understand much of the culture, and would be unable to participate in the government?) Sanctioning those who would employ illegal immigrants would reduce the employers’ willingness to hire the immigrants, thus eliminating the reason for the immigration. No, because penalizing employers puts the onus on those who are only taking economic advantage of a situation not of their making. In some cases, those employers might not be able to fill the jobs that they have available.
What is disparate-impact discrimination and how is it proved? Disparate-impact discrimination is caused by a practice or practices that have an unintended discriminatory impact on a protected class (that is, as a result of a practice, an employer’s work force may not reflect the same percentage of members of protected classes that characterizes qualified individuals in the local labor market). A prima facie case is made out if a connection between the practice and the disparity is shown; proof of discriminatory intent is unnecessary.
What are some defenses available in employment discrimination cases? In a disparate-impact case, an employer may assert a business necessity defense (a business reason for a practice—against proof that requiring a high school diploma has a discriminatory effect, for instance, an employer might assert that doing a good job requires a high school education). Another defense is that a specific trait is a bona fide occupational qualification (BFOQ). Race cannot be a BFOQ; gender may be, but only if it is essential to a job. Another defense protects bona fide seniority systems (for example, in a suit seeking promotion of minorities ahead of others to compensate for past discrimination, an employer has a good defense if a present intent to discriminate is not shown, and promotions or other benefits are shown to be distributed according to a fair seniority system).
What is sexual harassment and under what circumstances might an employer be liable? Sexual harassment happens when promotions and so on are parceled out for sexual favors or when, in an employment environment, a worker must put up with comments or physical contact that is perceived as sexually offensive. An employer may be liable when an employee does the harassing, if the employer knew, or should have known, about the harassment and failed to take corrective action, or if the employee was in a supervisory position.
How is it possible for jurors and judges to overcome their own prejudices in deciding cases in which gender or another protected trait plays a key role? Bias can be subtle, unconsciously influencing the decisions of even the most professedly unbiased decision makers. It is the task that these individuals are given, after undergoing questioning to determine and challenge their biases and being reminded not to let prejudice sway their judgment. Jurors can be given instructions that set out considerations for them to evaluate the circumstances of a case and avoid undue prejudices. Is it possible to fully protect employees from discrimination in the workplace? No, because bias can be subtle, unconsciously influencing the actions of even the most avowedly unbiased individuals. Also, “fully protect” is a somewhat vague notion. Yes, if it remains a legal and moral goal, because over time, people are capable of overcoming even the most entrenched, rationalized prejudices.