Skip to main content
SpringerLink
Log in

Dissection and Analysis of the Recent Cases on Employment Discrimination Under Title VII of the Civil Rights Act of 1964

  • Published:
Employee Responsibilities and Rights Journal Aims and scope Submit manuscript

Abstract

This article begins with an overview of the existing law of employment discrimination under Title VII of the Civil Rights Act of 1964, within which it explains disparate treatment discrimination, disparate impact discrimination, pregnancy discrimination and sexual harassment. This article then dissects the recent U.S. Supreme Court and U.S. Courts of Appeal cases that have interpreted and provided specificity to various concepts used in the application of Title VII. This article then analyzes the details of the new substantive aspects of the law of employment discrimination, the philosophical positions within the cases, and how the intricacies of employment discrimination law are applied.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Nos. 04-16688 & 04-16720, D.C. No. CV-01-02252-MJJ, 6137 (9th Cir. Apr. 26, 2010).

  2. Steven Greehouse, Wal-Mart Gender Case Divides Court, N.Y. Times, April 26, 2010, at 1. http://www.nytimes.com/2010/04/27/business/27suit.html?src=busln.

  3. Id.

  4. Nos. 04-16688 & 04-16720, D.C. No. CV-01-02252-MJJ, at 6278.

  5. http://www.bea.gov/newsreleases/international/intinv/intinvnewsrelease.htm

  6. Treaty Establishing the European Community, Article 13 (1997); Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain Community measures to combat discrimination, p. 1 (Dec. 21, 1999); Decision No 771/2006/EC of the European Parliament of the Council 17 May 2006 establishing the European Year of Equal Opportunities for All (published May 31, 2006).

  7. Case C-54/07, Centrum Voor Gelijkheid Van Kansen En Voor Racismebestriding v. Firma Feryn NV, 2008 ECR I-05187, p.4. (July 16, 2008); EU Council Directive 2000/43/EC/Article 3(1)(a) (June 29, 2000).

  8. Jarrett Haskovec, A Beast of a Burden? The New EU Burden-of-Proof Arrangement in Cases of Employment Discrimination Compared to Existing U.S. Law, 14 Transnat’l L. & Contemp. Prob. 1069, 1090 (2005).

  9. Case C-54/07, Centrum Voor Gelijkheid Van Kansen En Voor Racismebestriding v. Firma Feryn NV, 2008 ECR I-05187, p.6 (July 16, 2008).

  10. Haskovec, supra note 8, at 1090.

  11. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). See also Teamsters v. United States, 431 U.S. 324, 348 (1977); Albermarle Paper Co. v. Moody, 422 U.S. 405, 417–18 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971).

  12. The phrase “prima facie case” is used by courts to mean either: (1) the plaintiff produced sufficient evidence to render a reasonable conclusion in favor of the allegation he or she asserts or (2) not only that the plaintiff’s evidence would reasonably allow the conclusion the plaintiff seeks, but also that the plaintiff’s evidence compels such a conclusion if the defendant produces no evidence to rebut it. Black’s Law Dictionary 1190 (6th ed. 1990). This latter meaning is often called a rebuttable presumption. In the context of Title VII, the Supreme Court uses the phrase “prima facie case” in the latter sense. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253–54 (1981).

  13. 411 U.S. at 802.

  14. 411 U.S. at 802.

  15. Michael v. Caterpiller Financial Services Corp., 496 F.3d 584, 597 (6th Cir. 2007); Hopson v. Daimler Chrysler Corp., 306 F.3d 427, 434 (6th Cir. 2002) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

  16. Dunlap v. Tennessee Valley Authority, 519 F.3d 626, 629 (6th Cir. 2008); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92 (6th Cir. 1982); Johnson v. U.S. Department of Health and Human Services, 30 F.3d 45, 48 (6th Cir. 1994); Scales v. J.C. Bradford & Co., 925 F.2d 901, 907–08 (6th Cir. 1991).

  17. Dunlap, 519 F.3d at 629; Griggs, 401 U.S. at 431.

  18. Dunlap, 519 F.3d at 629; Albemarle, 422 U.S. at 425, 432.

  19. 42 U.S.C. § 2000e(k) (2009); Prior to the PDA, the EEOC had promulgated guidelines stating that employment discrimination because of pregnancy, miscarriage, childbirth or related conditions violates Title VII. See 29 C.F.R. § 1604.10(a) (1975).

  20. The PDA states that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work....” See 42 U.S.C. § 2000e(k) (2009).

  21. Title VII contains an exception to the prohibition of sex discrimination, which is applicable to any employment action, where sex is a “bona fide occupational qualification.” 42 U.S.C. § 2000e-2(e)(1) (2009).

  22. The BFOQ provision of Title VII states that: “it shall be an unlawful employment practice for an employer to hire and employ employees... on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operations of that particular business or enterprise....” 42 U.S.C. § 2000e-2(e)(1) (2009).

  23. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).

  24. Id.; 29 CFR § 1604.11(a) (1985).

  25. Meritor, 477 U.S. at 65; 29 CFR § 1604.11(a)(3) (1985).

  26. In determining that “hostile environment” (i.e. non quid pro quo) harassment violates Title VII, the EEOC relied on a substantial number of judicial decisions and EEOC precedent to conclude that Title VII gives employees “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65; See generally 45 Fed. Reg. 74676 (1980).

  27. 477 U.S. 57 (1986).

  28. 550 U.S. 618 (2007).

  29. Specifically, the petitioner was seeking a resolution of the following issue: “Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” Petition for Certiorari, at i., quoted in Ledbetter, 550 U.S. at 623.

  30. The petitioner abandoned her claim under the Equal Pay Act and petitioned the Court to deviate from its prior decisions to permit her to assert her claim under Title VII. See Ledbetter, 550 U.S. at 621.

  31. Ledbetter, 550 U.S. at 638.

  32. Id.

  33. Id. at 648; National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).

  34. 129 S. Ct. 2658 (2009).

  35. Id. at 2673.

  36. Id.

  37. Id.; See § 2000e-2(a)(1) (2009).

  38. 561 F.3d 38 (2009).

  39. Id. at 44; See Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 730 (2003); Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 120 (2nd Cir. 2004) (finding sex-stereotyping where employer stated that a woman could not “be a good mother” and work long hours, and that a woman “would not show the same level of commitment... because [she] had little ones at home”); Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004) (sex-stereotyping held where person making the decision admitted he didn’t promote plaintiff “because she had children and he didn’t think she’d want to relocate her family, though she hadn’t told him that”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (noting proof of sex-based discriminatory animus existed where direct supervisor questioned “whether [the plaintiff] would be able to manage her work and family responsibilities”); Sheehan v. Donlen Corp., 173 F.3d 1039, 1045 (7th Cir 1999) (a case under the PDA finding direct evidence of discrimination where supervisor told employee “that she was being fired so that she could ‘spend more time at home with her children’” because statement “invoked widely understood stereotypes the meaning of which is hard to mistake”).

  40. Chadwick, 561 F.3d at 42.

  41. Id.

  42. Id.

  43. This phrase refers to circumstances where “an employer classifies employees on the basis of sex plus another characteristic.” 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 456 (3rd ed. 1996) (emphasis in original).

  44. Chadwick, 561 F.3d at 43; Back, 365 F.3d at 118.

  45. 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 456 (3rd ed. 1996).

  46. Chadwick, 561 F.3d at 46; See 42 U.S.C. § 2000e-2(m) (2009) (requiring a plaintiff merely to “demonstrate” that an employer used a prohibited consideration as a motivating factor with regard to an employment decision); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98–99 (2003) (holding in a mixed-motive case Title VII “does not mention, much less require, that a plaintiff made a heightened showing through direct evidence”); Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999) (holding that in application of the requirement of direct evidence “the McDonnell Douglas/Burdine framework would no longer serve the purpose for which it was designated: allowing plaintiffs to prove discrimination by circumstantial evidence”).

  47. 499 U.S. 187 (1991).

  48. 129 S. Ct. 1962 (2009).

  49. Id. at 1968; California Brewers Association v. Bryant, 444 U.S. 598, 605–606 (1980).

  50. AT&T Corp., 129 S. Ct. at 1968; Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81 (1977) (finding that seniority systems are given “special treatment under Title VII); Title VII states that: “Notwithstanding any other provision of this title [42 USC §§ 2000e et seq.], it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority... system... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(h) (2009).

  51. AT&T Corp., 129 S. Ct. at 1966.

  52. 336 F.3d 606 (2002).

  53. Id. at 618.

  54. Id. at 612; 42 U.S.C. § 2000e-(k) (2009).

  55. 20 F.3d 734 (7th Cir. 1994).

  56. Venturelli, 336 F.3d at 616.

  57. Id. at 619.

  58. 489 F.3d 838 (7th Cir. 2007).

  59. Id. at 842–843; Newport News Shipbuilders & Dry Dock Co. v. EEOC, 462 U.S. 669, 676 (1983) (holding that an employee-benefits plan that affords greater benefits to female employees who became pregnant than to the pregnant wives of male employees violates Title VII because the policy discriminates against men).

  60. Griffin, 489 F.3d at 845; See Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir. 2000); Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000).

  61. 532 U.S. 268 (2001).

  62. Id. at 269.

  63. Id.

  64. Id.

  65. Clark County School District, 532 U.S. at 270; Faragher, 524 U.S. at 786; Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

  66. Clark County School District, 532 U.S. at 271; Faragher, 524 U.S. at 788.

  67. 542 U.S. 129 (2004).

  68. The doctrine of constructive discharge originated in the 1930’s in labor law cases under the National Labor Relations Act. Steven D. Underwood, 1 U. Pa. J. Lab. & Emp. L. 343 (1998). The National Labor Relations Board (NLRB) developed the concept to address situations where employers coerced employees to resign, frequently by creating intolerable working conditions, in retaliation for employees’ engagement in collective bargaining activities. Roslyn C. Lieb, Constructive Discharge Under Section 8(a)(3) of the National Labor Relations Act: A Study in Undue Concern Over Motives, 7 Indus. Rel. L.J. 143, 146–148 (1985); See Sterling Corset Co., Inc., 9 N.L.R.B. 858, 865 (1938) (first case to use the phrase “constructive discharg[e]”); The doctrine of constructive discharge has now been applied in almost every context where wrongful actual discharges have been found. Underwood, 1 U. Pa. J. Lab. & Emp. L. at 344.

  69. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894 (1984) (holding that an unfair labor practice exists “when, for the purpose of discouraging union activity,... [the employer] creates working conditions so intolerable that the employee has no option but to resign—a so-called ‘constructive discharge.’”).

  70. Pennsylvania State Police, 542 U.S. at 142.

  71. Suders v. Easton, 325 F.3d 432, 445 (3rd Cir. 2003).

  72. Id.

  73. Restatement (Second) of Agency § 219(1) (1957); 2A C.J.S. Agency § 425 (2003).

  74. Restatement (Second) of Agency § 228(1) (1957); 2A C.J.S. Agency § 428 (2003) (The phrase “scope of employment is a relative term which takes into account the “surrounding circumstances, including the character of the employment, and the nature of the wrongful deed, for the purpose of establishing the principal’s liability for the tort of the agent”).

  75. Ellerth, 524 U.S. at 765; accord Faragher, 524 U.S. at 807.

  76. This defense is based on the cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). In both of those cases, the Court distinguished between harassment by a supervisor which unaccompanied by an adverse official act and harassment by a supervisor accompanied by “a tangible employment action.” Ellerth, 524 U.S. at 765, accord Faragher, 524 U.S. at 808. Both decisions hold that an employer is strictly liable for harassment by a supervisor which “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765, accord Faragher, 524 U.S. at 808. However, where no tangible employment action is taken, both cases also hold that the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765, accord Faragher, 524 U.S. at 807.

  77. Clark County School District, 542 U.S. at 141.

  78. 129 S. Ct. 846 (2009).

  79. Id. at 850.

  80. Id.

  81. Id.

  82. Id.

  83. Id.; Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003).

  84. Crawford, 129 S. Ct. at 850; Perrin v. United States, 444 U.S. 37, 42 (1979).

  85. Crawford, 129 S. Ct. at 850; Webster’s New International Dictionary 1710 (2d ed. 1958).

  86. Crawford, 129 S. Ct. at 851.

  87. Id.; EEOC Compliance Manual §§ 8-II-B(1),(2), p. 614:003 (Mar. 2003); See also Federal Express Corp. v. Holowcki, 128 S. Ct. 1147 (2008) (stating that the EEOC compliance manuals “reflect a ‘body of experience and informed judgment to which courts and litigants may properly resort for guidance); Bragdon v. Abbort, 524 U.S. 624 (1968).

  88. Crawford, 129 S. Ct. at 859.

  89. Ledbetter, 550 U.S. at 631.

  90. Id.

  91. Id.; See also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1004 (1998) (Blackmun, J., joined by Brennan and Marshall, JJ. concurring in part and concurring in judgment) (noting that in a disparate treatment case the proof of the prima facie case by the plaintiff establishes an inference of discrimination); See also, e.g., Zhuang v. Datacard Corp., 414 F.3d 849 (8th Cir. 2005) (rejecting inference of discrimination based upon performance evaluations); Coopers v. Southern Co., 390 F.3d 695, 732–733 (11th Cir. 2004).

  92. 129 S. Ct. 2658 (2009).

  93. A writ of certiorari is an order of a Supreme Court directing a lower court to send up the case. This type of order is at the discretion of the Supreme Court. Willis W. Hagen II and Gordon H. Johnson, Digest of Business Law 5 (3rd ed. 1986).

  94. Venturelli, 336 F.3d at 612; Rogers v. City of Chicago, 320 F.3d 749, 753 (7th Cir. 2003).

  95. Troupe v. May Department Stores, Co., 20 F.3d 734, 736 (7th Cir. 1994).

  96. Id.

  97. Id.

  98. Venturelli, 336 F.3d at 616; Heerdink v. Amoco Oil, Co., 919 F.2d 1256, 1259 (7th Cir. 1990).

  99. Venturelli, 336 F.3d at 616; Mills v. Health Care Service Corp., 171 F.3d 450, 454 (7th Cir. 1999); EEOC v. Our Lady of Resurrection Medical Center, 77 F.3d 145, 148 (7th Cir. 1996).

  100. Venturelli, 336 F.3d at 612; Rogers, 320 F.3d at 755.

  101. Hunt-Golliday v. Metro. Water Reclamation District, 104 F.3d 1004, 1010 (7th Cir. 1997) (emphasis added); see Dormeyer v. Commercial Bank-Illinois, 223 F.3d 579, 583 (7th Cir. 2001) (explaining that the PDA forbids “discrimination against an employee on account of her being pregnant”); Maldonado v. U.S. Bank, 186 F.3d 759, 762 (7th Cir. 1999) (“Congress amended Title VII in 1978 to explicitly extend protection to pregnant women.”).

  102. Clark County School District, 532 U.S. at 270; Faragher v. Boca Raton, 524 U.S. 775, 786 (1998); Meritor, 477 U.S. at 67; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998).

  103. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).

  104. Stan Malos, Appearance-based Sex Discrimination and Stereotyping in the Workplace: Whose Conduct Should We Regulate?, 19 Emp. Responsibilities & Rights J. 95 (2007).

Author information

Authors and Affiliations

  1. College of Business, University of Wisconsin-Oshkosh, Oshkosh, WI, 54901, USA

    Willis W. Hagen II

Authors
  1. Willis W. Hagen II
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Willis W. Hagen II.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Hagen, W.W. Dissection and Analysis of the Recent Cases on Employment Discrimination Under Title VII of the Civil Rights Act of 1964. Employ Respons Rights J 23, 171–186 (2011). https://doi.org/10.1007/s10672-010-9163-x

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10672-010-9163-x

Key words

Search

Navigation