International Union v. Johnson Controls: Resolving the dilemma between fetal protection policies and equal employment opportunities

This article examines the implications that theJohnson Controls decision is likely to have for organizational policies governing fetal protection in the workplace. A brief history of the evolution of legal theory regarding fetal protection policies and Title VII is provided. Particular attention is devoted to examining the appropriate analytical framework for such policies, the changing requirements for the employer's burden of proof, and the likely consequences of applying disparate treatment theory of discrimination over disparate impact theory in analyzing the facts of such cases. Additionally, this article raises some of the social issues that will result from the employer's responsibility to protect the unborn children of its employees and the rights of those employees to equal employment opportunities.     

Legal Protection From Discrimination Based on Sexual Orientation: Findings From Litigation

Since 1964 with the enactment of Title VII of the Civil Rights Act, the courts have held that although Title VII prohibits discrimination because of sex, sex has been construed to mean gender, but gender and sexual orientation are different. Traditionally sexual discrimination has been interpreted to protect women in male/female encounters. Thus protection for homosexuals based on sexual orientation has not been covered. However, there are some interesting aspects to the concept of discrimination due to sexual orientation, including defining same-sex harassment as being harassment, equal opportunity harassment, and sexual stereotypes. In addition, how homosexuals may be protected under state laws, unions, company policy, and the constitution is discussed as well as protection for public sector employees. An analysis of 98 litigated cases alleging discrimination based on same sex or sexual orientation harassment led to the development of a logit model predicting future case outcomes based on case characteristics. These are type of harassment, physical contact, type of employees, and whether there was equal opportunity harassment. Implications from the study are that the issues of protection from discrimination are complex and one cannot necessarily assume that this type of discrimination is not protected. Recommendations for more effective managerial actions are provided.     

Impact of Same-Sex Harassment and Gender-Role Stereotypes on Title VII Protection for Gay, Lesbian, and Bisexual Employees

When victimized in the workplace, gay, lesbian, and bisexual (GLB) employees often find themselves without recourse as Title VII does not recognize sexual orientation to be a protected class. We suggest that recent court decisions that have expanded Title VII to protect individuals from discrimination based upon violations of gender norms can be used to provide a basis for protection of GLB individuals under this statute. Using a review of the role of gender norms in the workplace as well as an analysis of recent court decisions and the Congressional debates on the Federal Marriage Amendment as well as the wording of the Defense of Marriage Act [Defense of Marriage Act (DOMA), Pub. L. 104-199, Stat. 2419 (September 21, 1996)], this paper provides the theoretical background and conceptual argument (but does not attempt to make the legal argument) to suggest that same-sex harassment and discrimination are considered violations of societal gender norms and should therefore be protected under the expanded coverage of Title VII.     

Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace

Reasonable accommodation of religious practices continues to be a problem in the workplace. Recent Supreme Court decisions have enabled employers to exclude employees from the decision-making process of what constitutes a reasonable accommodation of their religious beliefs through the de minimis standard. In this article it is argued that, in most cases, the reason employers have been allowed to discriminate against these employees is the contentious nature of minority religious beliefs with the mainstream religious culture. Because judges view discrimination based on religious beliefs as distinct from the other reasons for discriminatory practices, such as race, sex, or national origin, it appears unlikely that adherents to minority faiths will face any abatement of discrimination in the workplace.     

Weight Discrimination: A Multidisciplinary Analysis

Protection against obesity discrimination is extremely limited under the Americans with Disabilities Act (ADA). No obese plaintiff has won using the actual disability theory, but a few have won under the perceived disability theory. Weight-related appearance standards are legal. We estimate weight-based wage penalties for young men and women. We find that mildly obese (20% over standard weight) white women experience greater wage penalties than black men experience for weight that is 100% over standard weight. Men do not experience wage penalties until their weight exceeds standard weight by over 100 lb. A gender-plus analysis under Title VII is more appropriate than the ADA for addressing the weight-based wage penalties that women experience.     

Racial harassment: Case characteristics and employer responsibilities

This article examines the socio-business issue of racial harassment in the workplace. For two decades, the federal judiciary has been defining and refining the elements of the offense within the parameters of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The Supreme Court’s decision to hear arguments for the first and only time on one of the important aspects of the developing doctrine focused considerable attention on this workplace problem in 1989. The Civil Rights Act of 1991 provides limited money damages to victims of discrimination under Title VII of the Civil Rights Act of 1964, whereas Section 1981 of the Civil Rights Act of 1866 provides unlimited damages to the victims of discrimination and race harassment. The authors discuss the legislative and judicial foundations of race harassment with respect toPatterson v. McLean, provide a profile and analysis of racial harassment cases (1971–1987), and conclude with a discussion of employer liability and recommendations for management.     

The limits of the wage impact of discrimination

In spite of almost 40 years of active enforcement efforts by the EEOC, as well as the strong intervention by the plaintiff bar, the most popular benchmark by which we measure the influence of prejudice on wages paid to female and minority workers has changed very little. This paper maintains that to a large extent this seeming immunity of discriminatory wage gaps to the legal remedies provided by Title VII results from the mismeasurement of those effects. An alternative to the standard Oaxaca decomposition of the wage gap is offered which allows us to put plausible ranges around the true impact of antidiscrimination laws. Not only does this reduce the residual impact of the discrimination that appears to withstand Title VII remedies, it also suggests that the pre‐Title VII impact of discrimination on wages accounted for little of the gap observed at the time of its passage. Copyright © 2005 John Wiley & Sons, Ltd.     

Broadening the Definition of Unlawful Retaliation Under Title VII

Title VII retaliation cases have become a larger part of the Equal Employment Opportunity Commission (EEOC) caseload, and this development should be a growing concern for business. By addressing the question of exactly when a prohibited retaliatory action has been taken against an employee, the United States Supreme Court’s June 2006 decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White ended a significant disagreement among the various appellate courts on the issue. The Supreme Court answered two specific questions regarding retaliation for raising a claim of sexual discrimination. First, the Court decided that the retaliatory conduct need not take place within the employment setting; and, second, it held that a materially adverse action requires only that a reasonable employee would be deterred from making, filing, or supporting a claim of workplace discrimination to the EEOC, the courts, or the employer. Employers need to revise and update their internal policies and procedures to ensure that their firms comply with these new standards.     

Defining the Problem and Problems of Definition: Legal Standards for Expanding Issues in Sexual Harassment

Sexual harassment has been a difficult area of legal interpretation. Legal frameworks used in other areas of Title VII of the Civil Rights Act have not been used in the development of standards by which to judge on the job harassment. Specific difficulties analyzed are the status of group versus individual protection, the notion that harassment is a correctable violation, problems of defining a hostile environment and determining harm, adverse effects on third parties, harassment without sexuality, and same sex harassment. Disagreements between the Circuit Courts and the EEOC are highlighted and effects on individuals and organizations are discussed. Suggestions for organization policy are made.     

The legal history of work-related sexual harassment and implications for employers

Over the years, the courts have come to consider sexual harassment as a kind of sex discrimination under Title VII of the Civil Rights Act of 1964. Employers are held liable for sexual harassment, and have an affirmative action obligation to eliminate sexual harassment from the workplace. The courts and the EEOC Guidelines have defined sexual harassment as tangible employment consequences or behavior that creates a hostile or offensive working environment. Employers can limit their liability by creating a system to detect sexual harassment and to remedy it promptly. Suggestions to wards developing a strong policy to eliminate sexual harassment from the workplace are given.     

Major EEO issues relating to personnel selection decisions

This paper examines recent EEO (Equal Employment Opportunity) case law precedents relating to personnel selection, most notably hiring, training, promotion and downsizing. The statutes referenced include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, the Americans with Disabilities Act (ADA) of 1990 as amended by the ADA Amendments Act of 2008 (ADAAA), Constitutional claims, the Civil Rights Act of 1991 (CRA-91), and Executive Order 11246 on Affirmative action. Seven topics are featured, including: (I) disparate treatment theory, (II) adverse impact theory in the ADEA, (III) adverse impact theory in Title VII, (IV) affirmative action based on operational needs, (V) key ADA rulings and the ADA amendments Act of 2008 (ADAAA), (VI) retaliation, and (VII) mandatory binding arbitration agreements. The case law surveyed reveals costly mistakes employers and HR managers can make, but which can be avoided with proper methods and policies. Some issues may require professional help (e.g., developing and validating selection tests), whereas others (e.g. retaliation), can be addressed in-house with knowledge of policies and procedures recommended by the EEOC to prevent problems from occurring, and to quickly correct them if they occur.     

Keeping the Faith but Losing in Court: Legal Implications of Proselytizing in the Workplace

Proselytizing at work occurs when an employee tries to convince coworkers to change their religions. This presents an interesting set of legal issues, because some employees feel that proselytizing is a requirement of their religion. Therefore, they could perceive a prohibition on proselytizing at work as a discriminatory act against members of their religion. On the other hand, other employees may be offended by attempts to change their religious practices. These employees could perceive workplace proselytizing as religious harassment. Therefore, American employers have to adopt religious harassment policies that are much more complex than their sexual harassment policies. In this paper, we outline the components of a legally compliant religious harassment policy which balances the competing rights of proselytizers and their intended targets.     

Accommodating Religious Expression in the Workplace

Religious expression in the workplace has been gaining more prominence and attention with the increasing diversity of the population. Employers are legally required to reasonably accommodate the religious practices and beliefs of their employees. This article will examine the most common types of religious expression in the workplace and will discuss the extent of the legal obligation of an employer to accommodate those expressions.     

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

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.     

Managing in a Nuevo Mundo: Accommodating Linguistic and Cultural Diversity Under Title VII

This article examines a legal issue that is derivative of the increasingly multicultural character of the American work force. The recent case of Garcia v. Spun Steak (1993, 1994) is illustrative of the challenge managers can face in dealing with cultural and linguistic diversity in the workplace. Over time, there have been conflicting messages in employment discrimination law as to the propriety of employer-imposed restrictions on the use of languages other than English in the workplace. However, the basic question involves the balancing of both the employer's right to manage the business and the right to self-expression in the language of one's choice in the workplace. Recommendations are made as to how each party's rights can be balanced under the law. What will be seen is that in the nuevo mundo of work found at the edge of the twenty-first century, the interests of both employers and employees may be best served by policies favoring language promotion over language restrictions.     

Managing in aNuevo Mundo: Accommodating linguistic and cultural diversity under title VII

This article examines a legal issue that is derivative of the increasingly multicultural character of the American work force. The recent case of Garcia v. Spun Steak(1993, 1994) is illustrative of the challenge managers can face in dealing with cultural and linguistic diversity in the workplace. Over time, there have been conflicting messages in employment discrimination law as to the propriety of employer-imposed restrictions on the use of languages other than English in the workplace. However, the basic question involves the balancing of both the employer’s right to manage the business and the right to self-expression in the language of one’s choice in the workplace. Recommendations are made as to how each party’s rights can be balanced under the law. What will be seen is that in the nuevo mundoof work found at the edge of the twenty-first century, the interests of both employers and employees may be best served by policies favoring language promotion over language restrictions.     

Can Diversity Training Discriminate? Backlash to Lesbian, Gay, and Bisexual Diversity Initiatives

A growing number of companies are including lesbian, gay, and bisexual (LGB) issues as part of their diversity initiatives and training. A potential problem with including LGB issues is the backlash from some employees who believe that such orientations are wrong. Further, given existing civil rights legislation it is not unreasonable for these employees to feel that their religious beliefs should be accommodated. This requires the organization to carefully balance the rights of religious objectors to such training while providing adequate support for LGB employees. This paper analyzes three cases where employees felt they were discriminated against because of their belief systems. In addition to identifying the key factors that led to the feelings of discrimination, the paper offers suggestions to prevent future occurrences.

Sexual Harassments: Criteria for difining hostile enviorment

Sexual harassment in the workplace continues to be one of the most controversial and complex legal and ethical issues facing empolyers. The U.S. Supreme Court's June 1986 decisiion inMeitor Savings Bank v. Vinson, which applied Title VII of the Civil Reights Act to situations involving sexual harassment, is discussed. The Court's definition of hostile environment is reviwed, and federal court cases interpreting the Supreme Court's pronousncements are examined. The cases provide guidance on the kinds of situations that result in employer liability for sexual harassment. A primanry conclusion is that employers may easily avoid liability by exercising learned judgment and sound management practices.     

Same-Sex Sexual Harassment: A Legal Assessment with Implications for Organizational Policy

The legal debate over sexual harassment (SH) has taken an interesting turn concerning the controversial issue of same-sex sexual harassment (SSSH). Disagreement among circuit courts' decisions propelled the U.S. Supreme Court to grant full review to the SSSH case of Oncale v. Sundowner Offshore Services, Inc., et al. (1996) [83 F.3d 118 (5th Cir. 1996) [online]. Available: http://laws.findlaw.com/5th/9530510cvl.html]. In a unanimous decision, the Justices indicated that (a) SSSH not only violates Title VII of the Civil Rights Act of 1964 and (b) that the law does not exclude the idea that one heterosexual male can sexually harass another heterosexual male [Oncale v. Sundowner Offshore Services, Inc., et al., S. Ct. 96-568, Lexis 1599 (1998)]. This paper reviews the history of SSSH law and discusses the implications of the Oncale decision for SH policies and procedures.