Overview of the Law
By: Larry J. Laurent, Attorney at Law
This article is intended to provide an overview of employment discrimination and sexual harassment law and some tips for doctors of chiropractic dealing with cases in these areas.
A. Statutes Prohibiting Discrimination
There is now an abundance of federal and state statutes prohibiting discrimination by employers in various contexts. Health care practitioners should be aware of at least the following:
o Texas Commission on Human Rights Act’ – Prohibits discrimination with respect to hiring, firing, compensation or other conditions of employment on the basis of race, color, sex, religion, age, national origin, or disability.
o Americans with Disabilities Act of 1990 (ADA) – Prohibits discrimination against qualified individuals with disabilities with regard to hiring, promotion, compensation, termination, and training.
Civil Rights Act of 1964 and Pregnancy Discrimination Act of 1978 MUM VII – Prohibits discrimination on basis of race, color, sex, religion, pregnancy, or national origin in hiring, firing, promotion, compensation and other conditions of employment.
Age Discrimination in Employment Act of 1967 (ADEA) – Prohibits discrimination based on age as to anyone over forty years old in hiring, firing, promotion, compensation and other conditions of employment.
Civil Rights Act of 1866 – Prohibits action by persons (including employers) based on race, and arguably national origin, the effect of which is to deny the claimant the right to enjoy contractual or property rights.
Equal Pay Act of 1963 – Prohibits differentials in pay for equal work based on sex. Equal work is work that requires substantially equal skill, effort, and responsibility and that is performed under similar working conditions.
Immigration Reform and Control Act of 1986 – Prohibits discrimination with respect to hiring and firing based on national origin or citizenship status.
B. Discrimination Theories of Liability
The two most common legal theories used to establish unlawful employment discrimination are those of disparate treatment and disparate impact. A third theory that can be applied to find liability is that of failure to make reasonable accommodation.
1. Disparate Treatment
The disparate treatment theory is applied where individuals in a protected group are deliberately treated less favorably than similarly situated persons outside that group. For example, a forty-five-year-old applicant is not hired for a job, and the job is given to a thirty-year-old applicant of similar or lesser qualifications because he is younger. Disparate treatment cases require the complainant to prove intentional discrimination. In the example of the disappointed forty-five-year-old applicant, the complainant might offer as direct evidence the employer’s statement that he wanted a young man for the job or proof that the employer acted on stereotypical beliefs about the capabilities of persons over forty. A slight variation on the direct evidence disparate treatment case is presented by the mixed motive case. In a mixed motive case there is some direct evidence that an impermissible factor such as race or sex entered into the hiring decision, though there is evidence of legitimate motivation as well. Mixed motive liability is established by proof that the impermissible factor was a motivating factor, even if other legitimate motivating factors would have resulted in the same outcome. Under Title VII, the employer which proves that it would have made the same decision even without considering the impermissible factor simply reduces the remedies available to the complainant. The complainant in such a case would be limited to declaratory and injunctive relief, attorneys fees, and costs; the employer could not be required to place the complainant in the job position in question or to pay back wages or damages.
Relatively few cases involve direct evidence of discriminatory motives. More often the complainant relies on circumstantial evidence to establish a prima facie case and thereby creates an inference of discriminatory motivation. A disappointed job applicant, for example, establishes such a prima facie case of discrimination by proving that he/she is a member of the protected group, that he/she was qualified for the job opening, that he/she did not get the job despite those qualifications, and that after his/her rejection, the job remained open and the employer continued seeking applicants from persons of similar qualifications. Once the complainant creates a presumption of discrimination, the employer must articulate a legitimate reason for its decision. For example, the employer may produce evidence that shows that the complainant was not, in fact, qualified or that the successful applicant was more qualified.
Once the employer has offered a legitimate reason for its action, the complainant can prevail only by showing that the articulated reason is actually just a pretext for discrimination. In 1993 the Texas Supreme Court attempted to clarify a discrimination complainant’s burden to show pretext after a defendant employer articulates a legitimate, nondiscriminatory reason for taking adverse action against the employee. The Supreme Court held that after the employer articulates such a reason, the complainant must show not only that the employer’s articulated reason was not the true reason for its employment decision, but also that unlawful discrimination was the reason. Despite the Supreme Court’s 1993 opinion, many federal courts are still wrestling with what effect to give evidence that an employer has offered a false explanation for discharge or other adverse employment action. The federal courts have disagreed as to whether a complainant must present direct or circumstantial evidence of the employer’s discriminatory animus or whether the jury may infer such animus from the complainant’s successful rebuttal of the employer’s proffered reasons for its employment decision.
The damages provisions of the Civil Rights Act of 1991 suggest that most Title VII discrimination claims will be brought under the disparate treatment theory. The Act permits disparate treatment complainants to recover compensatory damages (e.g., for future economic losses and mental anguish) and, upon demonstrating that the employer acted with malice or reckless indifference to the employee’s rights, punitive damages. The disparate treatment complainant also continues to be eligible for equitable relief such as back pay and hiring into the position for which he applied and was rejected. The disparate impact complainant on the other hand, is eligible only for such equitable relief.
2. Disparate Impact
Adverse or disparate impact addresses employment policies or practices that are neutral on their face but have the effect of adversely impacting members of protected minority groups. This theory is probably most likely to come up in the hiring context, where examples of such facially neutral practices would be requirements that applicants have a high school diploma or meet certain height or weight restrictions. Because the disparate impact approach focuses on outcomes rather than employer intent, statistics are often relied on heavily and may be used by themselves to establish a prima facie case of discrimination.
The first hurdle that must be cleared by the complainant is demonstrating that an adverse impact does, in fact, result from the employer’s use of some selection device or employment practice. A variety of methods have been used to assess the impact of selection procedures on protected groups.
The Civil Rights Act of 1991 provided the first legislative recognition of the disparate impact theory as a basis of recovery under TitleVII. Congress provided that the complainant in a disparate impact case must identify a specific employment practice rather than just an undifferentiated group of practices and must show that the specific practice causes a disparate impact. The Act provides, however, that where the complainant demonstrates that the elements of an employment decision making process cannot be separated for analysis, the complainant can challenge the whole process as a single practice.
Once the complainant has identified a specific practice with a demonstrated adverse impact on a protected group, the burden of proof shifts to the employer to show that the practice is “job related for the position in question and consistent with business necessity.” Even if the employer meets its burden of proving that its practice is job-related and consistent with business necessity, the complainant can still prevail by showing that an alternative practice with a lesser disparate impact was available but the employer refused to adopt it.
3. Failure to Make Reasonable Accommodation
Unlike the theories of disparate treatment and disparate impact, which measure unlawful conduct by differences in treatment of or effects on protected groups, the reasonable accommodation theory imposes liability on the employer who fails to treat employees or applicants differently based on the characteristics that make them part of a protected group. This theory has been used in both religious and disability-based discrimination claims.
a. Religious Accommodation
The concept of reasonable accommodation has received considerable attention under the Americans with Disabilities Act (ADA), which obligates employers to make reasonable accommodations to allow disabled workers to perform essential job functions, unless such accommodations would impose undue hardship on the business. The EEOC rules that implement the employment title of the ADA provide specific descriptions of the types of modifications or adjustments included within “reasonable accommodation” and some guidance for determining when undue hardship exists.
The EEOC Technical Assistance Manual also states that an employer need not provide the best accommodation or the accommodation requested by the employee, so long as it gives the disabled person an equal opportunity to be considered for a job, to perform the job’s essential functions, and to enjoy equal benefits and privileges related to the job.
Most of the cases decided under the ADA thus far show that there are limits on an employer’s obligation to accommodate a disabled employee. For example, an employer does not have to eliminate essential job duties or create a new job position in order to reasonably accommodate a disabled employee. In American Federation of Government Employees’ Council 33 V. Bentsen, the Ninth Circuit Court of Appeals reversed a district court’s order requiring an employer to accommodate an employee in a way the appellate court believed was not reasonable. The district court had found that the employee’s disability prevented him from meeting the daily production quota required of Treasury Department coin checkers, but held that the daily production quota was not an “essential function of the position, was not reasonable, and was unlawful. Accordingly, the district court ordered the Treasury Department to waive the quota and to let the employee work permanently in a special coin division that did not have any permanent employees. On appeal, the Ninth Circuit reversed the district court because it had interfered with the Treasury Department’s prerogative to establish performance standards for its employees. The court of appeals said that the district court’s ruling went “well beyond reassignment or restructuring because the [Treasury Department] is not required to accommodate [the employee] by creating a new position … [and] is also not required to accommodate [the employee] by eliminating one of the essential functions of her job.” Likewise, in Carrozza v. Howard County, the court refused to read the ADA as requiring an employer to change fundamental requirements of a job, such as the ability to cope with its inherent stressors.
The ADA does not require an employer to make substantial modifications in operations to assure a disabled individual the benefit of employment, nor does the ADA require an employer to promote a disabled employee to a less taxing position. Moreover, an employer does not have to create a light-duty position eliminating certain physical tasks in order to accommodate a disabled employee.
The courts also recognize that an employer need not always provide the accommodation requested by the employee. Rather, the employer may exercise its discretion to choose among multiple reasonable accommodations and may choose an alternative that is less expensive or easier to provide than the requested accommodation. At least one court has suggested the focus of an accommodation should be to make the employee able to perform the essential functions of his or her job, not necessarily to do whatever is best for the employee’s health. In other words, according to the case law, an employee must accept any reasonable accommodation offered and cannot bring suit merely because he would have preferred or been better served by a different accommodation. Also, although courts have recognized that determining a reasonable accommodation is supposed to be an interactive process, the ADA does not require an employer to repeatedly search out information, such as medical advice, that is uniquely in the hands of the employee when attempting to make a reasonable accommodation. The following list Provider, some examples of accommodations that courts have found reasonable under the circumstances:
* Employee with pulmonary disability who requested a smoke-free workplace was reasonably accommodated where employer provided fans, smokeless ashtrays and air purifiers, moved smoking employees away from complaining employee, and restricted smoking to smokers’ cubicles.
* Employee who was occasionally absent due to migraine headaches, causing him to exceed his sick leave, could be reasonably accommodated by letting him use vacation days as sick days.
* Insulin-dependent diabetic delivery driver could be reasonably accommodated if employer provided that food be within his reach while driving the delivery truck and that driver be barred from delivering hazardous material or carrying passengers.
* Employer that allowed paraplegic employee to perform her work at home went above and beyond its duty to reasonably accommodate employee.
* Employer that, gave bi-polar employee time off to seek psychiatric help and provided employee with job counseling and additional training and practice opportunities supplied a reasonable accommodation
The Civil Rights Act of 1991 addresses damages for the plaintiff who claims that an employer failed to provide reasonable accommodation required by the ADA or the Rehabilitation Act of 1973.84 It provides that an employer sued for discrimination that involves reasonable accommodation will not be subject to compensatory and punitive damages otherwise available in cases of intentional discrimination if the employer can demonstrate good faith efforts, in consultation with the person with the disability who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.
C. Sexual Harassment Theories of Liability
Although sexual harassment is simply a subcategory of Title VII sex discrimination, the proof required to establish liability for sexual harassment is quite different from other discrimination claims and merits separate discussion. While Title VII’s prohibition of discrimination on the basis of sex has been law for more than thirty years, Title VII lawsuits based on acts of alleged sexual harassment are of considerably more recent vintage. The first reported case to acknowledge sexual harassment as a form of sex discrimination under Title VII was decided in 1976.86
Sexual harassment is generally defined as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that affects an employee in one of three ways: (i) submission is made explicitly or implicitly a term or condition of that person’s employment; (ii) submission to or rejection of the conduct is used as the basis for employment decisions affecting that person; or (iii) the person’s work performance is interfered with unreasonably or the person is subjected to an intimidating, hostile or offensive working environment.
The EEOC addressed sexual harassment in 1980 as a brief amendment to its Guidelines on Discrimination Because of Sex. By including both sexual conduct that results in concrete economic detriment to the employee and that which results in creation of an unproductive or offensive working atmosphere, the EEOC guidelines recognized what would later be referred to as quid pro quo sexual harassment and environmental or hostile environment sexual harassment, respectively.
A few years later, the Supreme Court relied heavily on the EEOC’s guidelines when it first addressed sexual harassment in Meritor Savings Bank v. Vinson, putting to rest the argument that Title VII applies only to sexual harassment that results in a tangible loss of an economic character. The EEOC provided further guidance in light of the developing law after Meritor Savings in its Policy Guidance N-915-035, issued in October of 1988.91 The EEOC replaced the 1988 Guidance with EEOC Policy Guidance N-915-050 in March of 1990, designed to address (i) determining whether sexual conduct is unwelcome, (ii) evaluating evidence of harassment, (iii) determining whether a work environment is sexually hostile, (iv) holding employers liable for sexual harassment by supervisors, and (v) evaluating preventive and remedial action taken in response to claims of sexual harassment. The EEOC’s 1990 Policy Guidance is frequently cited in court decisions and should be reviewed by any lawyer litigating a sexual harassment case.
1. Quid Pro Quo Sexual Harassment
Quid pro quo harassment occurs when “submission to or rejection of unwelcome sexual advances, requests for sexual favors, and other
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verbal or physical conduct of a sexual nature by an individual is used as the basis for employment decisions affecting such individual.” Typically, quid pro quo harassment cases involve a supervisor who conditions the granting of an economic or other job benefit upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply with demands for such favors. The employee must show that (i) he or she is a member of a protected group, (ii) the sexual advances were unwelcome, (iii) the harassment was sexually motivated, (iv) the employee’s reaction to the advances actually affected a tangible aspect of her employment, and (v) the employer is liable. A helpful discussion of the requirements for proving a quid pro quo claim is found in Humphreys v. Medical Towers Ltd.
2. Hostile Environment Sexual Harassment
Hostile environment sexual harassment generally does not involve an actual or threatened economic detriment but consists of conduct that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The elements of such a claim (while differing slightly among circuits) are generally that: (i) the employee belongs to a protected group, (ii) the employee was subject to unwelcome sexual harassment, (iii) the harassment was based on the employee’s sex, (iv) the harassment was sufficiently pervasive to alter the conditions of employment and create an abusive working environment, and (v) the employer knew or should have known of the harassment and failed to take prompt remedial action.
The topic of sexual harassment was most recently addressed by the Supreme Court in Harris v. Forklift Systems, Inc. The Court reversed the Sixth Circuit’s holding that, to establish an “abusive work environment,” the plaintiff must present proof of “serious” psychological injury. Prior to the Court’s decision, there was a split among the circuits as to whether proof of psychological injury was required to recover for hostile environment sexual harassment.
The Court announced in Harris that it was taking a “middle path” between declaring conduct that is “merely offensive” to be actionable and requiring the conduct in question to cause an actual psychological injury. The Court made clear, however, that the alleged conduct must satisfy both an objective and a subjective standard to be actionable. In other words, the conduct must be severe or pervasive enough to create an environment that a “reasonable person” would find hostile or abusive, and the victim herself must subjectively perceive the environment to be abusive. To determine if the conduct is actionable, the Court said that consideration must be given to all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating as opposed to a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Psychological harm, the Court said, is simply one of many relevant factors.
The Fifth Circuit has published a number of sexual harassment decisions in the last seven or eight years, particularly in the hostile environment sexual harassment area. In Jones v. Flagship International, the plaintiff was the Equal Employment Manager for a large food service company. She claimed the existence of a hostile work environment because her supervisor propositioned her at least twice and made numerous other advances, and the company had figures of bare-breasted mermaids as ice sculpture decorations at its Christmas party. Upon trial of the case, the lower court found and the Fifth Circuit ultimately agreed that the alleged conduct was not sufficiently pervasive to constitute a hostile environment.
Next, in Waltman v. International Paper Co., a plaintiff working in the powerhouse of a paper mill alleged numerous incidents of offensive touching (some of which were seriously threatening), suggestive comments, and the existence of sexually explicit graffiti, much of it directly addressed to her. In reversing the lower court’s summary judgment for the paper mill, the Fifth Circuit held that such evidence was sufficient to raise an issue regarding the existence of a hostile environment.”‘
The court also disagreed with the lower court’s conclusion that the company had taken sufficient remedial measures in response to the employee’s claims. The court noted that the employer had actual knowledge of the problem because the employee had complained to management three times about the misconduct and that the existence of the sexual graffiti also evidenced constructive knowledge of the misconduct. With respect to the first complaint that a coworker had made a comment about her over the public address system, the company told the employee to stop, but did not reprimand him or note the incident in his file. With respect to the second complaint concerning a variety of incidents, the manager transferred the plaintiff to another shift but, other than talking to her supervisor, did not conduct an investigation or talk to any of the other accused employees. Her third complaint was likewise not investigated; in fact, she was discouraged from seeking an investigation. Moreover, other than occasionally washing its walls, the company did nothing to remove and prohibit the graffiti or find out who was responsible. In fact, the only remedial action the company took was to have the sexual harassment policy read to its work crews, which the Fifth Circuit obviously found lacking.
In Collins v. Baptist Memorial Geriatric Center, the plaintiff was the personnel director for a geriatric center who claimed that the center’s executive director engaged in hugs and other physical contact with her and others. She conceded that the director hugged her only during a short period when she first began working there and based her hostile environment claim mostly on his physical contacts with other women. She claimed this conduct toward her coworkers affected the psychological terms of her employment. After a trial, the court decided in the employer’s favor and the employee appealed.
The Fifth Circuit noted that, while psychological well being is a term, condition, or privilege of employment, a claim based on psychological harm requires a higher showing – namely that the sexually harassing conduct was pervasive and destructive of the working environment. The court agreed that the plaintiff did not meet that test with respect to the incidents involving other women. In Cortes v. Maxus Exploration Co., the plaintiff was a drafting technician for an oil exploration company. Her immediate supervisor repeatedly asked her to have sex, made lewd remarks about her body, told her vulgar jokes, showed her pornographic pictures, brushed up against her, and bragged about the size of his private parts. She complained to management twice, but no investigation was done. When she later complained to the company’s human resources manager, he told her to imagine that the offender’s advances and jokes were nothing more than little pink elephants and that when he snapped his fingers, she should forget them. In this case, the lower court entered judgment for the employee and the company appealed. 129 The Fifth Circuit agreed completely with the lower court. 130
In Nash v. Electrospace System, Inc., the plaintiff was a secretary and researcher in the defendant’s accounting department. The court affirmed summary judgment for defendant because there was no evidence that the company hierarchy knew or should have known of the plaintiff s sexual harassment complaints until she took them to personnel. The court also held that the company took prompt remedial action after receiving the complaint. 133 Specifically, the company immediately began an investigation of the offender, who denied the conduct, and coworkers, who had not experienced similar misconduct. 134 The plaintiff was transferred within a week to another department at no loss of pay or benefits, and the plaintiff got along well with her new boss and soon got a raise. The court further noted that the company had a written policy against sexual harassment and that information about the policy was specifically conveyed to all new hires. Based on these facts, the court stated, “the uncontested evidence demonstrates a model of prompt, sensitive employer handling of these very traumatic cases.”
In Carmon v. Lubrizol Corp., the plaintiff was an operator for a specialty chemical company who complained on one occasion of sexual insults and innuendo by a coworker and a second time concerning conduct of other coworkers. 138 The court found the company had taken prompt remedial action and entered judgment for the employer. Once again, the Fifth Circuit affirmed, noting that, on the first occasion, Lubrizol “immediately sprang into action” by meeting with the plaintiff on the same day she complained, telling her that they appreciated her coming forward, that the company would not tolerate sexual harassment, and that a prompt investigation would be conducted. They then interviewed the offender and six coworkers, none of whom could corroborate the plaintiffs complaint. However, the offender admitted to using foul language, and he was reprimanded in writing and transferred to another shift. The investigation and disciplinary action were complete within three days after the complaint.
On the second complaint, the company promptly sent two employees from its corporate headquarters, and they interviewed the employees named by the plaintiff. Although they asked the plaintiff to provide additional information, she declined. The investigators did not find sexual harassment, but did find that employees engaged in horseplay and other inappropriate behavior. A memorandum was distributed to all employees making clear that vulgar and abusive language, practical jokes and horseplay would not be tolerated and that action would be taken against anyone participating in such behavior. The company also held meetings to inform employees of what constitutes appropriate workplace behavior. The court concluded its opinion by saying, “Lubrizol twice did what a company ought to do when faced with allegations that an employee has been subjected to sexual harassment, engendering a hostile work environment: It took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.”
In Garcia v. Elf Atochem North America, a male employee claimed he had been sexually harassed by a male supervisor. The court held, among other things, that alleged harassment by a male supervisor against a male subordinate is not actionable under Title VII, whether or not it has sexual overtones.
In Ellert v. University of Texas, the plaintiff was the former secretary of the university’s Dean of Graduate Studies. She asserted a sexual harassment claim on the theory that she was terminated for refusing sexual advances by the Dean and because she knew of his sexual relationship with another employee. The opinion concludes that any direct sexual harassment of the plaintiff was time barred and that she has no viable claim under Title VII if the basis for her termination was merely her knowledge of her boss’s affair with someone else. The case contains a clear statement of what a plaintiff must prove to show quid pro quo sexual harassment. In DeAngelis v. El Paso Municipal Police Officers Ass’n, the plaintiff was a female police officer who complained of comments about her and other female officers that appeared in four columns of the police association newsletter. The lower court entered judgment for the plaintiff after a jury awarded her $10,000 in compensatory damages and $50,000 in punitive damages. The Fifth Circuit strongly disagreed, reversing and rendering a judgment for the police association. 1-58
The opinion was written by Edith Jones who had entered a strong dissent in the 1989 Waltman case, discussed above. The DeAngelis opinion points out that hostile environment law is intended to level the playing field for women by preventing conduct that impairs their ability to compete on an equal basis with men. It is not intended to protect women “from everyday insults as if they remained models of Victorian reticence.” The court concluded that:
Title VII cannot remedy every tasteless joke or groundless rumor that confronts women in the workplace. For [the plaintiff] the price of success as the police department’s first woman sergeant included transitory ribbing by (the column’s author]. The newsletter columns, however, were not so frequent, pervasive or pointedly insulting to [plaintiff] as to create an objectively hostile working environment, The totality of circumstances do not prove that her working conditions were disadvantaged because she was mentioned in four … columns.