Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta 1

Title VII a. It shall be an unlawful employment practice for an employer - 1. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or 2. To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. sec. 2000e et seq., sec. 703(a) 2

Title VII Prohibits discrimination on the basis of: Race Color Gender Religion National origin 3

Title VII For purposes of making decisions regarding: Hiring Firing Training Discipline Compensation Benefits Classification Other terms or conditions of employment 4

Title VII Applies to all public (federal, state and local) and private employers with 15 or more employees Covers all levels of employees (managerial and hourly) Exemption - permits religious institutions and associations to discriminate when performing their activities Petruska v. Gannon University, p.78 5

Filing Claims under Title VII Employee files a claim with the EEOC EEOC notifies the employer Title VII includes antiretaliatory provisions Mediation EEOC investigation No-Reasonable-Cause Finding EEOC issues employee a right-to-sue letter Exhaustion of administrative remedies Reasonable-Cause Finding Conciliation Civil suit filed in federal district court 6

Filing Claims under Title VII In 2007, there were 82,792 charges filed with the EEOC 12.2% were settled 17.8% were closed e.g., failure to pursue claim 59.3% resulted in findings of no reasonable cause 5.0% resulted in findings of reasonable cause the EEOC was successful in 91.5% of its litigation 7

State Agencies Many state and local agencies often contract with the EEOC to become a “706” agency. These agencies can process EEOC claims. The EEOC will often defer a complaint to a 706 agency before investigating the matter itself. Georgia Fair Employment Practices Act of 1978 protects public employees in Georgia, O.C.G.A §§ et seq. 8

Theoretical Bases for Title VII Lawsuits Disparate Treatment Disparate Impact 9

Disparate Treatment Employee’s Prima Facie Case: Employee is a member of the class of persons protected by Title VII, Employee applied for and was qualified for a job for which the employer was seeking applicants, That despite these qualifications, employee was rejected, and After this rejection, the position remained open and the employer continued to seek applicants with those same qualifications. 10

Disparate Treatment Employer’s Defense: Employer can defend by showing that it had a legitimate, nondiscriminatory reason for its decision. Employee’s Counter: Employee must prove that the grounds offered by the employer were merely a pretext for its actions and that discrimination was the real reason. McDonnell Douglas Corp. v. Green, p. 89 Black civil rights activist protested after being laid off and was not rehired when new position became available. Supreme Court remanded case to give Green a chance to prove pretext. 11

Disparate Treatment Employer may defend by showing that there is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the employer’s business Available only in cases involving gender, religion and national origin (not for race or color) The basis for preferring one group over another goes to the essence of what the employer is in business to do Predominant attributes of the group discriminated against are inconsistent with that business 12

Disparate Treatment BFOQ examples Airlines and bus companies can have maximum age requirements Airlines cannot hire only females as flight attendants Wilson v. Southwest Airlines, p. 92 Playboy can hire only females as Playboy Bunny servers Essence of business – male entertainment Hooters cannot hire only females as Hooters servers Essence of business – serving spicy chicken wings 13

Disparate Impact Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way. Courts have determined the that the following screening devices have a disparate impact: Educational requirement – race, e.g., Griggs v. Duke Power, p. 94 Credit status – gender, race Arrest record – race Unwed pregnancy – gender, race Height and weight requirements – gender, national origin Marital status – gender Conviction of crime unrelated to job performance - race 14

Disparate Impact The Four-Fifths Rule is a rule of thumb that permits a 20% margin between the outcomes of the majority and the minority under a given screening device i.e., disparate impact is statistically demonstrated when the rate for a protected group is less than 80% (or four-fifths) of the higher scoring majority group Employer can rebut the employee’s prima facie case by showing the existence of a business necessity e.g., requirement of credit history may result in fewer women hired, but handling large sums of money may warrant credit check Employee would then have to prove that there is a means of addressing the issue that has less of an adverse impact 15