CHAPTER 51
Employment Law
T
wo residents of Wheatfield Health Care Center, a privately run nursing home, requested
that only white employees provide their care. Wheatfield complied with its residents’ racial
preference partly due to its interpretation of a state regulation governing long-term care facilities,
which supposedly gave residents the right to “choose a personal attending physician and other
providers of services.”
Supervisors at Wheatfield instructed Jennifer Jackson, who worked as a certified nursing
assistant (CNA) and who was the only African American employee at Wheatfield, about the care
restrictions for these residents. In addition, the shift assignment sheet, which Jackson received
every day, included a notation next to the residents’ names stating, “No Black CNA!” Jackson
found this embarrassing and frustrating; however, to keep a job she badly needed, she did not
complain and complied with the restriction. Nonetheless, she believed this situation contributed to
a general air of hostility toward her. Several employees used vulgar racial epithets to refer to
Jackson. One white employee complained loudly that Wheatfield should stop hiring Black
employees because it made more work for her. Jackson’s friend, Arnie Lucas, complained to the
human resources department on Jackson’s behalf about the coworkers’ behavior. Shortly
thereafter, Lucas was placed on probation, making him ineligible for overtime shifts.
Jackson badly injured her back helping a resident into bed. She required extensive surgical
care, physical therapy, and rehabilitation. When she was ready to return to work, her doctor
restricted how much weight she could lift. The restriction was expected to be permanent. Jackson’s
supervisor refused to allow her to return to work with the restriction and, eventually, Jackson was
fired.
Wheatfield required all of its health care workers to submit to periodic mandatory drug tests.
Not wanting Jackson to get any unemployment compensation after her termination, Wheatfield’s
president and CEO instructed Bettina Collins, the human resources manager, to testify falsely at
Jackson’s eligibility hearing that Jackson had failed her last drug test. When Collins refused to lie,
she was fired.
• Was Jackson subjected to illegal discrimination by Wheatfield when it restricted her work
assignments based on her race and allowed Jackson’s coworkers to make derogatory
statements to her?
• Can Wheatfield rely on the residents’ preferences and/or the state regulations to defend a claim
of race discrimination by Jackson?
• Does Lucas have any possible claim against Wheatfield for apparently punishing him for
defending Jackson?
• What responsibility does Wheatfield have to Jackson regarding the medical treatment and
rehabilitation she required as a result of her injury?
•
•
•
•
Did Wheatfield violate Jackson’s rights when it refused to accommodate her restrictions and
ultimately fired her?
Can Wheatfield require its health care workers to undergo periodic mandatory drug testing?
Was Jackson entitled to unemployment compensation?
Does Collins have any recourse to remedy her discharge for refusing to lie at the hearing?
page 51-2
LO
LEARNING OBJECTIVES
After studying this chapter, you should be able to:
1.
51-1Explain the structure and operation of a workers’ compensation regime, including the elements of a
work-related injury.
2.
51-2Identify and describe legislation that protects workers’ safety, health, and well-being; that regulates
employees’ wages and hours, pensions and benefits, and income security; and that governs unionized
workforces.
3.
51-3Analyze and apply the appropriate legislation for a workplace scenario for potential unlawful
discrimination and assess the possibility for liability, including an employer’s potential defenses.
4.
51-4Distinguish the relative privacy rights of private-sector and public-sector employees.
5.
51-5Describe the employment-at-will doctrine and its major exceptions.
6. YEARS AGO, IT WAS unusual to see a separate employment law chapter in a
business law text. At that time, the rights, duties, and liabilities accompanying
employment usually were determined by basic legal institutions such as contract,
tort, and agency. Today, these common law principles still control employer—
employee relations unless displaced by government regulations or by new judgemade rules applying specifically to employment. By now, however, such rules
and regulations are so numerous that they touch almost every facet of
employment. This chapter discusses the most important of these modern legal
controls on the employer—employee relation.
7. Modern U.S. employment law is so vast and complex a subject that texts
designed for lawyers seldom address it in its entirety. Indeed, specialized subjects
like labor law, employee benefits, and employment discrimination often get
book-length treatment on their own. This chapter’s overview of employment law
emphasizes three topics that have attracted much recent attention—employment
discrimination, employee privacy, and common law claims for wrongful
discharge. But no discussion of employment law is complete without outlining
certain basic regulations that significantly affect the conditions of employment
for most Americans. Figure 51.1 notes these regulations and briefly states the
functions they perform.
8. Figure 51.1 The Ends and Means of Modern Employment Law
9.
10.
Legislation Protecting Employee Health, Safety, and
Well-Being
11.
LO51-1
Explain the structure and operation of a workers’ compensation regime, including the
elements of a work-related injury.
12. Workers’ Compensation Nineteenth-century law made it difficult for employees to
recover when they sued their employer in negligence for on-the-job injuries.1 At that time,
employers had an implied assumption of risk defense under which an employee assumed
all the normal and customary risks of his employment simply by taking the job. If an
employee’s own carelessness played some role in his injury, employers often could avoid
negligence liability under the traditional rule that even a slight degree of contributory
negligence is a complete defense. Another employer defense, the fellow-servant rule,
excused an employer from liability when an employee’s injury resulted from the
negligence of a coemployee (or fellow servant). Finally, an employee sometimes had
problems proving the employer’s negligence. State workers’ compensation statutes, which
first appeared early in the 20th century, were a response to all these problems. Today all
50 states have such systems.2
Basic Features Workers’ compensation protects only employees and not independent
contractors.3 However, many states exempt casual, agricultural, and domestic
employees, among others. State and local government employees may be covered by
workers’ compensation or page 51-3 by some alternative state system. Also, states usually
exempt certain employers—for example, firms employing fewer than a stated number
of employees (often three).
Where they apply, however, all workers’ compensation systems share certain basic
features. They allow injured employees to recover under strict liability, thus removing
any need to prove employer negligence. They also eliminate the employer’s three
traditional defenses: contributory negligence, assumption of risk, and the fellow-servant
rule. In addition, they make workers’ compensation an employee’s exclusive
remedy against her employer for covered injuries. There are some exceptions to the
exclusivity of workers’ compensation, however. In cases in which an
employer intentionally injures an employee, the injured employee can usually sue the
employer outside of workers’ compensation. In some states, this intentional injury
exception has expanded beyond intentional torts to situations in which the employer
did page 51-4 something or maintained a condition in the workplace that the employer
knew was substantially certain to harm the employee. An example of this approach
would be holding an employer responsible outside of workers’ compensation when the
employer knew that an employee was being sexually harassed but did nothing about it.
In addition, in a number of states, an employee can sue outside of workers’
compensation when the employer was acting in a dual capacity in relation to the
employee. An example of this would be a case in which an employee is injured on the
job by a defect in a product manufactured by the employer.
Workers’ compensation basically is a social compromise. Because it involves strict
liability and eliminates the three traditional employer defenses, workers’ compensation
greatly increases the probability that an injured employee will recover. Such recoveries
usually include (1) hospital and medical expenses (including vocational rehabilitation),
(2) disability benefits, (3) specified recoveries for the loss of certain body parts, and (4)
death benefits to survivors and/or dependents. But the amount recoverable under each
category of damages frequently is less than would be obtained in a successful
negligence suit. Thus, injured employees sometimes deny that they are covered by
workers’ compensation so that they can pursue a tort suit against their employer instead.
Although workers’ compensation is usually an injured employee’s sole remedy
against her employer, she may be able to sue other parties whose behavior helped cause
her injury. One example is a product liability suit against a manufacturer who supplies
an employer with defective machinery or raw materials that cause an on-the-job injury.
However, many states immunize coemployees from ordinary tort liability for injuries
they inflict on other employees. Complicated questions of contribution, indemnity, and
subrogation can arise where an injured employee is able to recover against both an
employer and a third party.
The Work-Related Injury Requirement Another basic feature of workers’ compensation
is that employees recover only for work-related injuries. To be work-related, the injury
must (1) arise out of the employment and (2) happen in the course of the employment.
These tests have been variously interpreted.
The arising-out-of-the-employment test usually requires a sufficiently close
relationship between the injury and the nature of the employment. Different states use
different tests to define this relationship. Examples include:
1. 1.Increased risk. Here, the employee recovers only if the nature of her job
increases her risk of injury above the risk to which the general public is
exposed. Under this test, a factory worker assaulted by a trespasser probably
would not recover, while a security guard assaulted by the same trespasser
probably would.
2. 2.Positional risk. Under this more liberal test, an injured employee recovers
if her employment caused her to be at the place and time where her injury
occurred. Here, the factory worker probably would recover.
The in-the-course-of-the-employment requirement inquires whether the injury
occurred within the time, place, and circumstances of the employment. Employees
injured off the employer’s premises generally are outside the course of the employment.
For example, injuries suffered while traveling to or from work usually are not
compensable. But an employee may be covered where the off-the-premises injury
occurred while she was performing employment-related duties such as going on a
business trip or running an employment-related errand.
Other work-related injury problems on which courts have disagreed include mental
injuries allegedly arising from the employment and injuries resulting from employee
horseplay. Virtually all states, however, regard intentionally self-inflicted injuries as
outside workers’ compensation. Recovery for occupational diseases, on the other hand,
usually is allowed today. An employee whose preexisting diseased condition is
aggravated by her employment sometimes recovers as well.
Sometimes an employee is injured during a work-related event but not while
performing the employee’s day-to-day job. In American Greetings Corp. v.
Bunch, which follows shortly, the Kentucky Supreme Court considered whether an
injury during a company-sponsored fundraiser was covered by workers’ compensation.
American Greetings Corp. v. Bunch331 S.W.3d 600 (Ky. 2010)
An employee, Sheila Bunch, injured her knee in a relay race while participating in a fundraising event for United Way, in her
company cafeteria. The race was in the company cafeteria during her unpaid lunch hour. The employer, American Greetings Corp.,
sponsored a month-long fundraising campaign each year. Employee participation was voluntary with no penalties for not
participating. Employees promoted the event (posting flyers on company bulletin boards, for example), both on and off the clock.
The company donated prizes for the fundraising events, page 51-5 some of which were held on company property during work
hours. The company encouraged employees to participate. It paid them to attend a one-hour presentation, and for employees who
chose to donate, it deducted those contributions from employee paychecks.
The Kentucky Court of Appeals ruled that the injury was within the scope of employment (and therefore the employee was
entitled to workers’ compensation benefits). The employer appealed that decision, urging the Kentucky Supreme Court to find that
the injury was outside the scope of employment. The court refers at some points to the administrative bodies that considered the
case originally, the ”ALJ’ (administrative law judge) and “the Board” (the state Worker’s Compensation Board).
Per Curiam
An injured worker bears the burden of proof and risk of non-persuasion with regard to every element of a claim. . . . Smart [v.
Georgetown Community Hospital, 170 S.W.3d 370 (Ky. 2005),] established four independent tests to determine whether an injury
that occurs during a recreational activity comes within the course and scope of the employment (i.e., is workrelated). Smart indicates that an injury occurring during a recreational activity may be viewed as being work-related if:
1.
2.
3.
4.
1.It occurs on the premises, during a lunch or recreational period, as a regular incident of the employment;
or
2.The employer brings the activity within the orbit of the employment by expressly or impliedly requiring
participation or by making the activity part of the service of the employee; or
3.The employer derives substantial direct benefit from the activity beyond the intangible benefit of an
improvement in employee health and morale that is common to all kinds of recreation and social life; or
4.The employer exerts sufficient control over the activity to bring it within the orbit of the employment.
No single factor should receive conclusive weight when deciding whether an injury is work-related.
In Smart the employee’s injury occurred during a picnic for hospital employees, which was held off the employer’s premises
and outside Ms. Smart’s normal working hours. Although the employer strongly encouraged employees to attend the function,
Smart did not think she was required to attend. Any benefit to the employer consisted of improving employee morale, which was
intangible. Moreover, the pickup volleyball game in which she was injured was neither organized nor controlled by the employer
and Smart’s participation was purely voluntary. . . . [T]he court determined that such evidence did not compel a finding that an
injury sustained in the volleyball game occurred within the course and scope of Smart’s employment.
The ALJ determined in the present case that “the only section of the test under which the [relay race] could conceivably fall
is Paragraph 1.” The ALJ acknowledged that the activity took place in the cafeteria, during meal break, while employees were off
work but considered it “a tremendous stretch” to view “yearly voluntary participation in a charitable event” to be a regular incident
of employment. Convinced that the activity also did not come within the second, third, or fourth paragraphs of the test set forth
in Smart, the ALJ found “not a shred of evidence” that the employer required participation in United Way fundraising activities,
noting that only 39 of 700 employees participated in the relay event and that the claimant did not attend the one-hour United Way
presentation. The ALJ also found no evidence that the employer derived any benefit from the activity except by “being a good
corporate citizen in allowing the use of its facility” and “[allowing] its employees to fulfill their sense of community responsibility.”
Unlike Smart this case concerns an injury that occurred on the employer’s premises, during normal working hours, during
the claimant’s lunch hour. Thus, the injury would be compensable under the first test listed in Smart if the activity during which it
occurred was “a regular incident of the employment.” The Board determined that the ALJ took an “overly narrow” view of the
evidence and confined the analysis to the specific event in which the claimant was injured rather than considering the event in
context, as part of the annual, month-long fundraising campaign. In other words, the Board determined that the ALJ applied an
incorrect legal standard to the evidence and that the evidence compelled a favorable finding when considered under the correct
standard. We agree.
An accepted and normal activity conducted on the employer’s premises becomes a regular incident of the employment. The
relay race in which the claimant was injured took place on the employer’s premises and was not an isolated annual charitable event
but part of a month-long charitable campaign that the employer allowed employees to conduct in the workplace annually. Such
evidence compelled a finding that an activity conducted as part of the campaign was an incident of the employment.
The evidence that was reliable, probative, and material with respect to employer control compelled a finding that the employer
exercised sufficient control to bring the claimant’s injury within the orbit of her employment. An employer clearly has the right to
control all activities that occur on its premises. Although the claimant’s employer did not control the United Way fundraising
campaign directly, it permitted the campaign to be conducted on its business premises and facilitated the campaign by permitting
payroll deduction to be used for contributions; allowing workers to attend a one-hour United Way presentation while on the clock;
allowing at least some organizational activities to be performed by workers while on the clock; and allowing events such as the
relay race to be conducted on the premises, during the lunch hour.
The decision of the Court of Appeals is affirmed.
page 51-6
Administration and Funding Workers’ compensation systems usually are administered by a state
agency that adjudicates workers’ claims and oversees the system. Its decisions on such claims
normally are appealable to the state courts. The states fund workers’ compensation by compelling
covered employers to (1) purchase private insurance, (2) self-insure (e.g., by maintaining a
contingency fund), or (3) make payments into a state insurance fund. Because employers generally
pass on the costs of insurance to their customers, workers’ compensation tends to spread the
economic risk of workplace injuries throughout society.
The Occupational Safety and Health Act
Although it may stimulate employers to remedy hazardous working conditions, workers’
compensation does not directly forbid such conditions. The most important measure directly
regulating workplace safety is the federal Occupational Safety and Health Act of 1970. With its
general duty clause, the Occupational Safety and Health Act imposes a duty on employers to
provide their employees with a workplace and jobs free from recognized hazards that may cause
death or serious physical harm. In addition to the general duty clause requirement, employers are
required to comply with many detailed regulations promulgated by the Occupational Safety and
Health Administration (OSHA). One of these regulations, for example, requires employers to
inform employees who could be exposed to hazardous chemicals in the workplace about the
chemicals and to provide employees with training so that they can effectively protect themselves
from harm. The act also requires employers to report to the secretary of labor any on-the-job
injuries that require hospitalization. Because information about workplace dangers provided by
employees themselves is important to the effectiveness of the act, employees who provide such
information are protected from retaliation.
The Occupational Safety and Health Act applies to all employers engaged in a business
affecting interstate commerce. Exempted, however, are the U.S. government, the states and their
political subdivisions, and certain industries regulated by other federal safety legislation like the
Mine Safety and Health Act. The Occupational Safety and Health Act mainly is administered by
the Occupational Safety and Health Administration (OSHA) of the Labor Department. It does not
preempt state workplace safety regulation, but OSHA must approve any state regulatory plan.
OSHA can inspect places of employment for violations of the act and its regulations. If an
employer is found to violate the act’s general duty clause or any specific standard, OSHA issues a
written citation.
The main sanctions for violations of the act and the regulations are various civil penalties. In
addition, any employer who commits a willful violation resulting in death to an employee may
suffer a fine, imprisonment, or both. Also, the secretary of labor may seek injunctive relief when
an employment hazard presents an imminent danger of death or physical harm that cannot be
promptly eliminated by normal citation procedures. An employee cannot sue her employer for a
violation of OSHA, however. The statute provides no private right of action to covered employees.
The Family and Medical Leave Act
LO51-2
Identify and describe legislation that protects workers’ safety, health, and well-being; that regulates
employees’ wages and hours, pensions and benefits, and income security; and that governs unionized workforces.
After concluding that proper child-raising, family stability, and job security require that employees
get reasonable work leave for family and medical reasons, Congress passed the Family and
Medical Leave Act (FMLA) in 1993. In general, the act covers those employed for at least 12
months, and for 1,250 hours during those 12 months, by an employer employing 50 or more
employees at the employee’s work site or within a 75-mile radius of that work site. Covered
employers include federal, state, and local government agencies.
Under the FMLA, covered employees are entitled to a total of 12 workweeks of leave during
a 12-month period for one or more of the following reasons: (1) the birth of a child and the need
to care for that child; (2) the adoption of a child; (3) the need to care for a spouse, child, or parent
with a serious health condition; and (4) the employee’s own serious health condition. The
definition of “serious health condition” is complex. It generally requires inpatient care in a hospital
or continuing care by a health care provider. Thus, ear aches, the common cold, and mild cases of
influenza generally do not qualify for FMLA leave, even when a parent must stay home from work
to care for a child with one of those conditions.
Usually, the leave is without pay. Upon the employee’s return from leave, the employer
ordinarily must put her in the same or an equivalent position and must not deny her page 51-7 any
benefits accrued before the leave began. The National Defense Authorization Act of 2008 included
provisions that revised the FMLA with respect to military families. The new provisions permit
eligible employees who are employed by covered employers to take up to 12 weeks of leave
because of any “qualifying exigency” arising from the fact that the employee’s spouse, son,
daughter, or parent is on active military duty or has been notified of an impending call to active
duty status.4
Employers who deny any of an employee’s FMLA rights are civilly liable to the affected
employee for resulting lost wages or, if no wages were lost, for any other resulting monetary losses
not exceeding 12 weeks’ wages. Employees may also recover an additional equal amount as
liquidated damages, unless the employer acted in good faith and had reasonable grounds for
believing that it was not violating the act. Like the Fair Labor Standards Act (FLSA), to be
discussed later in this chapter, the FMLA permits civil actions by the secretary of labor, with any
sums recovered distributed to affected employees. In such actions, employees may also obtain
equitable relief, including reinstatement and promotion.
On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus
Response Act (FFCRA), which Congress passed in response to the coronavirus pandemic. The
FFCRA imposed a paid leave requirement on a broad swath of private and public employers.
Eligible employees of covered employers are entitled to receive paid leave under several
circumstances. First, all employees of covered employers were entitled to two weeks of sick leave
at full pay when the employee was unable to work due to being officially quarantined or when the
employee was experiencing symptoms of COVID-19 infection and is seeking medical diagnosis.
Second, all employees of covered employers were entitled to two weeks of sick leave at two-thirds
their regular rate of pay to care for an individual subject to official quarantine or to care for a child
whose school or child-care provider was closed or unavailable for reasons related to the pandemic.
Third, in addition to the two weeks of paid leave in the second condition, employees who had been
employed by a covered employer for at least 30 calendar days were entitled to extended family
and medical leave at two-thirds pay for up to 10 additional weeks when the employee was unable
to work due to the need to care for a child whose school or child-care provider was closed or
unavailable for reasons related to the pandemic. Covered employers included certain public
employers and private employers with 500 or fewer employees. The smallest employers, with
fewer than 50 employees, could apply for an exemption from the extended family leave provision,
provided they could show the requirement would jeopardize the operation of their business as a
going concern. Regulations regarding how employers were to count their employees were
complex, but note that this law was fairly unique in that it did not cover the largest employers of
more than 500 employees. As this book went to press, the FFCRA was set to expire on December
31, 2020, and Congress had taken no steps to extend it despite the ongoing impacts of the
pandemic.
Legislation Protecting Wages, Pensions, and Benefits
Social Security Today, the law requires that employers help ensure their employees’ financial
security after the employment ends. One example is the federal Social Security system. Social
Security mainly is financed by the Federal Insurance Contributions Act (FICA). FICA imposes a
flat percentage tax on all employee income below a certain base figure and requires employers to
pay a matching amount. Self-employed people pay a different rate on a different wage base. FICA
revenues finance various forms of financial assistance besides the old-age benefits that people
usually call Social Security. These include survivors’ benefits to family members of deceased
workers, disability benefits, and medical and hospitalization benefits for the elderly (the Medicare
system).
Unemployment Compensation Another way that the law protects employees after their
employment ends is by providing unemployment compensation for discharged workers. Since
1935, federal law has authorized joint federal—state efforts in this area. Today, each state
administers its own unemployment compensation system under federal guidelines. The system’s
costs are met by subjecting employers to federal and state unemployment compensation taxes.
Unemployment insurance plans vary from state to state but usually share certain features.
States often condition the receipt of benefits on the recipient’s having worked for page 51-8 a
covered employer for a specified time period, and/or having earned a certain minimum income
over such a period. Generally, those who voluntarily quit work without good cause, are fired for
bad conduct, fail to actively seek suitable new work, or refuse such work are ineligible for benefits.
Benefit levels vary from state to state, as do the time periods during which benefits can be received.
ERISA Many employers voluntarily contribute to their employees’ postemployment income by
maintaining pension plans. For years, pension plan abuses such as arbitrary termination of
participation in the plan, arbitrary benefit reduction, and mismanagement of fund assets were not
uncommon. The Employee Retirement Income Security Act of 1974 (ERISA) was a response to
these problems. ERISA does not require employers to establish or fund pension plans and does not
set benefit levels. Instead, it tries to check abuses and to protect employees’ expectations that
promised pension benefits will be paid.
ERISA imposes fiduciary duties on pension fund managers. For example, it requires that
managers diversify the plan’s investments to minimize the risk of large losses, unless this is clearly
imprudent. ERISA also imposes record-keeping, reporting, and disclosure requirements. For
instance, it requires that covered plans provide annual reports to their participants and specifies the
contents of those reports. In addition, the act has a provision guaranteeing employee
participation in the plan. For example, certain employees who complete one year of service with
an
employer
cannot
be
denied
plan
participation.
Furthermore,
ERISA
contains funding requirements for protecting plan participants against loss of pension income.
Finally, ERISA contains complex vesting requirements that determine when an employee’s right
to receive pension benefits becomes nonforfeitable. These requirements help prevent employers
from using a late vesting date to avoid pension obligations to employees who change jobs or are
fired before that date. ERISA’s remedies include civil suits by plan participants and beneficiaries,
equitable relief, and criminal penalties.
The Fair Labor Standards Act Although federal labor law regulates several aspects of labor—
management relations, it still permits many terms of employment to be determined by private
bargaining. Nonetheless, sometimes the law directly regulates such key terms of employment as
wages and hours worked. The most important example is the Fair Labor Standards Act (FLSA) of
1938.
The FLSA regulates wages and hours by entitling covered employees to (1) a specified
minimum wage whose amount changes over time and (2) a time-and-a half rate for work exceeding
40 hours per week. The FLSA’s complicated coverage provisions basically enable its wages-andhours standards to reach most significantly sized businesses that are engaged in interstate
commerce or produce goods for such commerce. Also covered are the federal, state, and local
governments. The many exemptions from the FLSA’s wages-and-hours provisions include
executive, administrative, and professional personnel.
The FLSA also forbids oppressive child labor by any employer engaged in interstate
commerce or in the production of goods for such commerce and also forbids the interstate shipment
of goods produced in an establishment where oppressive child labor occurs. Oppressive child labor
includes (1) most employment of children below the age of 14; (2) employment of children aged
14—15, unless they work in an occupation specifically approved by the Department of Labor; and
(3) employment of children aged 16—17 who work in occupations declared particularly hazardous
by the Labor Department.
Both affected employees and the Labor Department can recover any unpaid minimum wages
or overtime, plus an additional equal amount as liquidated damages, from an employer that has
violated the FLSA’s wages-and-hours provisions. Violations of the act’s child labor provisions
may result in civil penalties. Other FLSA remedies include injunctive relief and criminal liability
for willful violations.
Collective Bargaining and Union Activity
Entire legal treatises are devoted to the topic of collective bargaining by unions. What follows is
only a brief historical outline of the subject. Early in the 19th century, some courts treated labor
unions as illegal criminal conspiracies. After this restriction disappeared around midcentury,
organized labor began its lengthy—and sometimes violent—rise to power. During the late 19th
and early 20th centuries, unions’ growing influence and wage earners’ increasing presence in the
electorate spurred the passage of many laws benefiting labor. These included statutes outlawing
“yellow-dog” contracts (under which employees agreed not to join or remain a union member),
minimum wage and maximum hours legislation, laws regulating page 51-9 the employment of
women and children, factory safety measures, and workers’ compensation. But during this period,
some say, the courts tended to represent business interests. Perhaps for this reason, some prolabor
measures were struck down on constitutional grounds. Also, some courts were quick to issue
temporary and permanent injunctions to restrain union picketing and boycotts and to help quell
strikes.
Organized labor’s political power continued to grow during the first part of the 20th century.
In 1926, Congress passed the Railway Labor Act, which regulates labor relations in the railroad
industry, and which later included airlines. This was followed by the Norris—LaGuardia Act of
1932, which limited the circumstances in which federal courts could enjoin strikes and picketing
in labor disputes, and also prohibited federal court enforcement of yellow-dog contracts.
The most important 20th-century American labor statute, however, was the National Labor
Relations Act of 1935 (the NLRA or Wagner Act). The NLRA gave employees the right to
organize by enabling them to form, join, and assist labor organizations. It also allowed them
to bargain collectively through their own representatives. In addition, the Wagner Act prohibited
certain unfair labor practices that were believed to discourage collective bargaining. These
practices include (1) interfering with employees’ rights to form, join, and assist labor unions; (2)
dominating or interfering with the formation or administration of a labor union, or giving a union
financial or other support; (3) discriminating against employees in hiring, tenure, or any term of
employment due to their union membership; (4) discriminating against employees because they
have filed charges or given testimony under the NLRA; and (5) refusing to bargain collectively
with any duly designated employee representative. The NLRA also established the National Labor
Relations Board (NLRB). The NLRB’s main functions are (1) handling representation cases
(which involve the process by which a union becomes the certified employee representative within
a bargaining unit) and (2) deciding whether challenged employer or union activity is an unfair
labor practice.
In 1947, Congress amended the NLRA by passing the Labor Management Relations Act
(LMRA or Taft—Hartley Act). The act declared that certain acts by unions are unfair labor
practices. These include (1) restraining or coercing employees in the exercise of their guaranteed
bargaining rights (e.g., their right to refrain from joining a union), (2) causing an employer to
discriminate against an employee who is not a union member, (3) refusing to bargain collectively
with an employer, (4) conducting a secondary strike or a secondary boycott for a specified illegal
purpose,5 (5) requiring employees covered by union-shop contracts to pay excessive or
discriminatory initiation fees or dues, and (6) featherbedding (forcing an employer to pay for work
not actually performed). The LMRA also established an 80-day cooling-off period for strikes that
the president finds likely to endanger national safety or health. In addition, it created a Federal
Mediation and Conciliation Service to assist employers and unions in settling labor disputes.
Congressional investigations during the 1950s uncovered corruption in internal union affairs
and also revealed that the internal procedures of many unions were undemocratic. In response,
Congress enacted the Labor Management Reporting and Disclosure Act (or Landrum—Griffin
Act) in 1959. The act established a “bill of rights” for union members and attempted to make
internal union affairs more democratic. It also amended the NLRA by adding to the LMRA’s list
of unfair union labor practices. The proportion of U.S. workers who are members of labor unions
has decreased fairly steadily over the past 40 years. Today, less than 13 percent of the workforce
are members of labor unions.
Two recent Supreme Court decisions appear to further weaken unions. First, in Janus v.
AFSCME, 138 S. Ct. 2448 (2018), the Court ruled that the First Amendment prohibited publicsector unions from collecting fees from nonmembers of the union who benefit from the work of
the union. Under the Taft—Hartley Act, state laws can authorize union security agreements,
whereby a collective bargaining agreement can require even nonmembers to pay dues, fees, and
assessments to the union. (Many states, however, prohibit union security agreements and are
known euphemistically as “right-to-work” states.) Janus, which overruled a directly contrary
precedent called Abood v. Detroit Board of Education, 431 U.S. 209 (1977), ruled in the context
of public-sector unions that nonmembers’ free speech rights under the First Amendment are
violated when they are forced to pay union fees, despite any benefit they may receive from union
activities.
Second, in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court held that
employers can require employees and prospective employees, as a condition of employment, to
agree to submit any wage and hour or other workplace-condition claims to individual, not group,
arbitration, despite the NLRA’s protections for concerted and union activities. The Supreme Court
determined that the Federal Arbitration Act protected employers from claims page 51-10 that they
violated the NLRA in such circumstances, even though such individual arbitration agreements
clearly undermine employees’ attempt to engage in collective action through class arbitration
actions. In other words, the Court rejected any notion that the NLRA might trump the FAA.
Equal Opportunity Legislation
The Equal Pay Act The Equal Pay Act (EPA), which forbids sex discrimination regarding pay,
was a 1963 amendment to the FLSA. Its coverage resembles the coverage of the FLSA’s minimum
wage provisions. Unlike the FLSA, however, the EPA covers executive, administrative, and
professional employees.
The typical EPA case involves a woman who claims that she has received lower pay than a
male employee performing substantially equal work for the same employer. The substantially
equal work requirement is met if the plaintiff’s job and the higher-paid male employee’s job
involve each of the following: (1) equal effort, (2) equal skill, (3) equal responsibility, and (4)
similar working conditions.
Effort basically means physical or mental exertion. Skill refers to the experience, training,
education, and ability required for the positions being compared. Here, the question is not whether
the employees being compared have equal skills but whether their jobs require or utilize
substantially the same skills. Responsibility (or accountability) involves such factors as the degree
of supervision each job requires and the importance of each job to the employer. For instance, a
retail sales position in which an employee may not approve customer checks probably is not equal
to a sales position in which an employee has this authority. Working conditions refers to such
factors as temperature, weather, fumes, ventilation, toxic conditions, and risk of injury. These need
only be similar, not equal.
If the two jobs are substantially equal and they are paid unequally, an employer must prove
one of the EPA’s four defenses or it will lose the case. The employer has a defense if it shows that
the pay disparity is based on (1) seniority, (2) merit, (3) quality or quantity of production (e.g., a
piecework system), or (4) any factor other than sex. The first three defenses require an employer
to show some organized, systematic, structured, and communicated rating system with
predetermined criteria that apply equally to employees of each sex. The any-factor-other-than-sex
defense is a catchall category that includes shift differentials, bonuses paid because the job is part
of a training program, and differences in the profitability of the products or services on which
employees work, as well as employees’ personal characteristics other than sex, like education and
work experience. Relying on such personal characteristics, however, can be risky because they
may be closely related to—or even based on—sex.
The EPA’s remedial scheme resembles the FLSA’s scheme. Under the EPA, however,
employee suits are for the amount of back pay lost because of an employer’s discrimination, not
for unpaid minimum wages or overtime. An employee may also recover an equal sum as liquidated
damages. The EPA is enforced by the Equal Employment Opportunity Commission (EEOC) rather
than the Labor Department.6 Unlike some of the employment discrimination statutes described
later, however, the EPA does not require that private plaintiffs submit their complaints to the
EEOC or a state agency before mounting suit.
In March 2019, the U.S. Women’s National Soccer Team (WNT) filed a high-profile claim
against the U.S. Soccer Federation (USSF) claiming a violation of the EPA and seeking $67
million in damages. Twenty-eight players on the WNT claimed that the USSF discriminated
against them by engaging in “institutionalized gender discrimination” that “caused, contributed to,
and perpetuated gender-based pay disparities” that manifested “in nearly every aspect of their
employment.”7 The WNT players noted that they were paid significantly less than their
counterparts on the U.S. Senior Men’s National Soccer Team, despite the WNT’s significant
superior results relative to the men. In May 2020, the district court judge dismissed the EPA claim
on a summary judgment ruling, finding that the pay differentials were largely a result of different
collective bargaining agreements (CBAs) between USSF and the two teams, which the WNT
negotiated. According to the judge:
The WNT rejected an offer to be paid under the same pay-to-play structure as the [Senior Men’s National Team] and . . . the WNT
was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of
contracted players. Accordingly, Plaintiffs page 51-11 cannot now retroactively deem their CBA worse than the [men’s] CBA by
reference to what they would have made had they been paid under the . . . pay-to-play structure when they themselves rejected such
a structure.8
When this book went to press, the judge rejected the WNT’s request for an immediate appeal
of the decision.
LOG ON
The WNT released a statement indicating they were “shocked and disappointed” by the dismissal of their EPA
claim. Professor Julie Manning Magid argues that perhaps they should not have been, given shortcomings in the EPA
and
Title
VII,
which
require
evidentiary
proof
that
allows
real-life
inequities
to
persist.
See https://theconversation.com/as-professional-sports-come-back-members-of-the-us-womens-soccerteam-are-still-paid-less-than-the-mens-139453.
Title VII
LO51-3
Analyze and apply the appropriate legislation for a workplace scenario for potential unlawful
discrimination and assess the possibility for liability, including an employer’s potential defenses.
Employment discrimination might be defined as employer behavior that penalizes certain
individuals because of personal traits that they cannot control and that bear no relation to effective
job performance. Of the many employment discrimination laws in force today, the most important
is Title VII of the 1964 Civil Rights Act. Unlike the Equal Pay Act, which merely forbids sex
discrimination regarding pay, Title VII is a wide-ranging employment discrimination provision. It
prohibits discrimination based on race, color, religion, sex, and national origin in hiring, firing,
job assignments, pay, access to training and apprenticeship programs, and most other employment
decisions.
Basic Features of Title VII In discussing Title VII, we first examine some general rules that
govern all the kinds of discrimination it forbids. Then we examine each forbidden basis of
discrimination in detail.
Covered Entities Title VII covers all employers employing 15 or more employees and
engaging in an industry affecting interstate commerce. Employers include individuals,
partnerships, corporations, colleges and universities, labor unions and employment agencies (with
respect to their own employees), and state and local governments.9 Also, referrals by employment
agencies are covered no matter what the size of the agency, if an employer serviced by the agency
has 15 or more employees. In addition, Title VII covers certain unions—mainly those with 15 or
more members—in their capacity as employee representative.
Procedures Although the EEOC sometimes sues to enforce Title VII, the usual Title VII suit is a
private claim. The complicated procedures governing private Title VII suits are beyond the scope
of this text, but a few points should be kept in mind. Private parties with a Title VII claim have no
automatic right to sue. Instead, they first must file a charge with the EEOC, or with a state agency
in states having suitable fair employment laws and enforcement schemes. This allows the EEOC
or the state agency to investigate the claim, attempt conciliation if the claim has substance, or sue
the employer itself. The EEOC has entered worksharing agreements with many of the state
agencies. Among other things, the agreements relieve an employee of the hassle of separately filing
charges with the EEOC and with the state agency. Instead, when an employee files a charge with
a state agency that is party to a worksharing agreement, the charge is considered “dual filed” at the
EEOC (and vice versa). Usually, the charge is investigated by the organization with which it was
originally filed.
Regardless of whether the EEOC or a state agency conducts the investigation or attempts
conciliation, at the close of the process the employee will receive a “right-to-sue letter.” Until the
employee receives the letter, a court has no authority to adjudicate the claim. Once the employee
receives the letter, she has 90 days in which to file her lawsuit in court.
Theories of Discrimination Title VII incorporates two theories of discrimination: disparate
treatment and disparate impact. Disparate treatment claims involve allegations that an employer
treated an employee differently because of the employee’s protected status (race, color, religion,
sex, or national origin). Disparate treatment theory encompasses both individual claims by a single
employee or systemic claims by a group of mistreated employees. Disparate impact claims involve
allegations that an employer’s policies or practices that are seemingly neutral with regard to race,
color, religion, sex, or national origin have a disproportionate negative impact (or “adverse
impact”) on members of one of those groups. Disparate impact theory is most often used when the
alleged discrimination affects many employees.
page 51-12
How plaintiffs in Title VII cases prove that their employer discriminated against
them varies depending on the theory of discrimination. Because the ability to muster
sufficient proof is critical to any claim, we discuss the methods of proof under each
theory in more detail here.
There are several ways a plaintiff can prove a disparate treatment claim.10 Title VII
prohibits employers from making employment decisions based, even in part, on an
employee’s protected status. An employee proves a disparate treatment claim if he can
“demonstrate that race, color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also motivated the
practice.”11 This is often referred to as a “mixed-motives” claim, in which an
employer’s decision is an amalgam of both prohibited and lawful motives. As discussed
briefly below, the employer may limit an employee’s recovery in mixed-motives cases
by proving that it would have made the same challenged employment decision even in
the absence of the unlawful motive (i.e., the “same-decision defense”); nonetheless, if
one of the factors in the employer’s challenged decision was the employee’s protected
status, the employer has violated Title VII. Proving an unlawful motivating factor is
easy in cases where the employer announces an express policy of disfavoring one of
Title VII’s protected classes. Similarly, sometimes a supervisor or manager makes an
oral or written statement admitting to treating an employee differently based on her
protected status. These are examples of direct evidence of a discriminatory motive.
The Gaskell v. University of Kentucky case, which appears later in this chapter,
illustrates that direct evidence need not be as explicit as these examples.
Employers often discriminate without being so obvious about it. Employees
frequently rely on circumstantial evidence to prove the employer’s discriminatory
motive. Circumstantial evidence relies on reasonable inferences, rather than on
admissions or policies, to prove the employer’s unlawful motive. The Supreme Court
clarified that circumstantial evidence is just as useful as direct evidence to prove claims
of employment discrimination.12
Many Title VII plaintiffs face an uphill battle because proving an employer’s
discriminatory motive requires the employee to “get in the head” of the employer.
Without direct evidence or strongly suggestive circumstantial evidence, proving a
disparate treatment case can be difficult, especially when the employer purposefully
tries to conceal its discriminatory motive. As a result, courts have adopted a specialized
burden-shifting method of presenting circumstantial evidence of a cover-up upon which
many Title VII plaintiffs rely. In such suits, the plaintiff is typically not proceeding
under a mixed-motives approach, but rather trying to show that the only credible motive
is an unlawful one. The plaintiff first must show a prima facie case: a case that
eliminates the most common nondiscriminatory reasons for the challenged employment
decision (e.g., hiring, promotion, or termination) and creates a presumption of
discrimination. The proof needed for a prima facie case varies with the nature of the
challenged employment decision, but usually it is not onerous and is easily made. To
establish a prima facie case to challenge a hiring decision, for example, the plaintiff
must prove that she applied for the job and was minimally qualified for it, that she is a
member of the protected class that she claims was the unlawful motivating factor the
employer considered, that she was rejected, and that the employer continued to attempt
to fill the job or filled it with someone who is not a member of the relevant protected
class.
Once the plaintiff establishes a prima facie case, the employer must rebut the
presumption of discrimination by producing evidence that the challenged employment
decision was taken for legitimate, nondiscriminatory reasons. If the employer refuses
or fails to produce such evidence, the plaintiff automatically wins. In response to a
prima facie case challenging a hiring decision, for example, the employer might
produce evidence that it rejected the plaintiff because she was late to the interview.
If the employer produces satisfactory nondiscriminatory reasons, the plaintiff must
then show that the discrimination actually occurred, typically by showing that the
employer’s reasons were a mere pretext for discrimination. For example, she might
show that the employer has hired men for similar positions despite their tardiness for
an interview.
The method of proving a disparate impact claim is more straightforward because it
does not require proof of the employer’s motive. Instead, disparate impact focuses on
results. If a policy or practice—for example, a height, weight, or high school diploma
requirement for hiring or a written test for hiring or promotion—results in an adverse
impact on a protected group, the employer may have violated Title VII, even though
the requirement is neutral as to Title VII’s protected classes and the employer had no
specific desire to discriminate against the affected employees. A prima facie case of
disparate impact involves showing that the challenged, facially neutral practice has an
adverse impact on the plaintiff’s race, color, religion, sex, or national origin. Adverse
impact is usually established by statistical evidence showing that the practice results in
disproportionately page 51-13 harsher outcomes for the protected class. For example, a
plaintiff may show that a standardized test that the employer uses to screen candidates
for promotion has a disproportionately lower pass rate for individuals of a particular
national origin than for others, or that a minimum height requirement screens out
proportionally many more women than men. If the plaintiffs show a disparate impact,
the employer loses unless it demonstrates that the challenged practice is job-related for
the position in question and consistent with business necessity. For example, the
employer might show that its promotion test really predicts effective job performance
and that effective performance in the relevant job is necessary for its operations. Even
if the employer makes this demonstration, the plaintiffs have another option: to show
that the employer’s legitimate business needs can be advanced by an alternative
employment practice that is less discriminatory than the challenged practice. For
example, the plaintiffs might show that the employer’s legitimate needs can be met by
a different promotion test that has less adverse impact on the protected group. If the
employer refuses to adopt this practice, the plaintiffs win.
The following Gaskell case involves a mixed-motives claim of disparate treatment
on the basis of religion, in which the court must sort out the plaintiff’s evidence of a
discriminatory motive and the defendant’s evidence that it was motivated by
nondiscriminatory reasons.
Gaskell v. University of Kentucky2010 WL 4867630 (E.D. Ky. Nov. 23, 2010)
In 2007, the University of Kentucky (UK) commenced a search for the founding director of its new astronomics observatory. Martin
Gaskell applied for the position and, initially, was regarded by the Search Committee as the leading candidate. He was far more
qualified and experienced than any of the other applicants. At the time of his application, Gaskell worked at the University of
Nebraska—Lincoln (UNL), where he had secured funding for, had overseen the design and construction of, and eventually ran the
student observatory.
The Search Committee conducted an initial round of phone interviews with Gaskell and several other candidates. Following
the phone interviews, the committee ranked Gaskell first among the candidates.
Gaskell’s candidacy hit some snags, though. When Michael Cavagnero, the chair of the Department of Physics & Astronomy
and a member of the Search Committee, contacted Gaskell’s supervisor at UNL, he learned that Gaskell had caused some conflict
at UNL because he was sometimes obstinate. In addition, members of the Search Committee discovered articles, lecture notes, and
public statements by Gaskell revolving around the theme of “Modern Astronomy, the Bible, and Creation.” These raised concerns
that Gaskell was a “creationist.” Several Search Committee members perceived that Gaskell blended religious thought with
scientific theory, which they believed would adversely affect his ability to perform the outreach functions of the job.
Cavagnero again contacted Gaskell’s supervisor at UNL and asked him whether Gaskell’s personal religious beliefs had
interfered with his duties in the classroom and in the community at UNL. According to the supervisor, a handful of students had
mentioned in their teacher evaluations that it was refreshing to have a professor who believed in God, but that otherwise, Gaskell’s
views on religion had not interfered with his work.
Cavagnero also asked some of his colleagues to read Gaskell’s work to determine if it was “good science.” Notably, members
of the UK Biology Department participated in this review and determined that Gaskell’s writing included scientific statements
about evolution that showed a fundamental lack of appreciation for the scientific method and for well-established scientific
principles. The biologists ultimately told Cavagnero that they would not work with one of “these types of individuals” if he was
hired to direct the observatory.
UK ultimately hired Timothy Knauer, a former student and employee of UK’s Department of Physics and Astronomy.
Although UK concedes that Gaskell had more education and experience, it contends that it hired Knauer because he demonstrated
more of the qualities that UK wanted in its Observatory Director.
Gaskell sued UK claiming that he was not hired because of his religion in violation of Title VII. Both parties moved for
summary judgment.
Forester, Senior Judge
Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful employment practice for an employer . . . to
discharge any individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . religion.” The term “religion” is defined to include “all aspects of
religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate
to an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.”
As in any other discriminatory discharge or refusal to hire case, the plaintiff can establish that he was discharged or not hired
on the basis of his religion through direct or indirect means. Direct evidence page 51-14 is evidence which, if believed, “requires
the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Direct evidence “does not
require the factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in
part by prejudice against members of the protected group.” Evidence which in and of itself suggests that the person or persons with
the power to hire, fire, promote, or demote the plaintiff were animated by an illegal employment criterion amounts to direct proof
of discrimination. Remarks to the effect that “I won’t hire you because you’re a woman,” or “I’m firing you because you’re not a
Christian,” are obvious examples of direct evidence of discrimination. However, other, less obvious remarks, have been found to
be direct evidence of discrimination. Remarks and other evidence that reflect a propensity by the decisionmaker to evaluate
employees based on illegal criteria can suffice as direct evidence of discrimination even if the evidence stops short of a virtual
admission of illegality. Proof of this nature supports the inference that a statutorily prescribed factor such as religion was at least a
motivating factor in the adverse employment action at issue.
If there is no direct evidence of discrimination, then courts rely on the framework established in the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff carries the burden of proving by
a preponderance of the evidence a prima facie case of discrimination. If the plaintiff is able to prove a prima facie case, then the
burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” If the
defendant is able to carry this burden, then the plaintiff must prove by a preponderance of the evidence that the legitimate reasons
offered were not true reasons but were a pretext for discrimination.
UK argues that it hired a different candidate for the Observatory Director for reasons that have nothing to do with Gaskell’s
religion. Because Gaskell has failed to show by a preponderance of the evidence that UK’s reasons were a pretext for discrimination,
UK contends that, based on McDonnell Douglas analysis, Gaskell’s claims must be dismissed.
Although UK argues that the McDonnell Douglas framework applies to this case, Gaskell contends that he has presented
direct evidence of discrimination. The record contains substantial evidence that Gaskell was a leading candidate for the position
until the issue of his religion (as Gaskell calls it) or his scientific position (as UK calls it) became an issue. Specifically, he points
to the e-mail written by [Professor Thomas] Troland, the Search Committee Chair, to Cavagnero just days prior to the Search
Committee’s vote to recommend Knauer for the position and thereby reject Gaskell. The e-mail, with the subject line “The Gaskell
Affair,” states:
It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand far above
those of any other applicant. Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real
reason why we will not offer him the job is because of his religious beliefs in matters that are unrelated to astronomy or to any of
the duties specified for this position. (For example, the job does not involve outreach in biology.) . . . If Martin were not so superbly
qualified, so breathtakingly above the other applicants in background and experience, then our decision would be much simpler.
We could easily choose another applicant, and we could content ourselves with the idea that Martin’s religious beliefs played little
role in our decision. However, this is not the case. As it is, no objective observer could possibly believe that we excluded Martin
on any basis other than religious. . . .
Certainly, Troland, who was chair of the Search Committee, participated in the interviews of the candidates, discussions of
the committee, [and] e-mail exchanges involving the process played an obvious and important role in the decisionmaking process.
As he explained to Patty Bender, the University Equal Employment Officer who investigated [a] complaint of religious
discrimination submitted by [another member of the Search Committee]:
I was part of the entire process that led to this decision. I know what observatory committee members said in meetings and privately,
not just their e-mail comments. I know that the university (not your office!) chose an applicant with almost no relevant experience
over one with immense experience in virtually every aspect of the observatory director’s duties. And I know that this choice was
made (to a significant extent) on grounds that have nothing to do with the job as advertised nor with the job as envisioned by our
department.
His comments, if true, are direct evidence of religious discrimination.
Additional direct evidence of religious discrimination can be found in the deposition of Cavagnero, who stated that the debate
generated by Gaskell’s website and his religious beliefs, was an “element” in the decision not to hire Gaskell. Also, [another
professor] testified in his deposition that Gaskell’s “views of religious things in relation to reconciling what is known scientifically
about how the world developed and what is represented in the Bible” was “a factor” in his decision not to support Gaskell. [Yet
another] committee member stated in his deposition that religion was an “underlying theme in everything we discussed.”
Gaskell points to other evidence that suggests a propensity by the Search Committee to evaluate employees based on illegal
criteria, including an e-mail by a Search Committee member stating: “Clearly this man is complex and likely fascinating to talk
with—but potentially evangelical.” That same member also said, “If the job were solely about physics and astronomy and within
the university I would strongly agree with you that Martin’s beliefs on biology and religion don’t matter a hoot and should not
figure in the discussion at all.” The negative implication is clear: because the job was not solely page 51-15 about physics and
astronomy within the university, Gaskell’s beliefs on biology and religion do matter.
Gaskell’s allegations, when considered together and taken as true, raise a triable issue of fact as to whether his religious
beliefs were a substantial motivating factor in UK’s decision not to hire him. With the direct evidence of religious discrimination
present in this case, it is not necessary for the Court to engage in the McDonnell Douglas burden-shifting framework.
***
Accordingly, based on Gaskell’s presentation of direct evidence of discrimination, UK’s motion for summary judgment will
be denied. The Court now turns to Gaskell’s motion for partial summary judgment.
In 1991, Title VII of the Civil Rights Act was amended to include . . . Section 2000e-2(m). This section provides as follows:
an employer commits an unlawful employment practice “when the complaining party demonstrates that race, color, religion, sex,
or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. [T]he
purpose and effect of this section was ”to eliminate the employer’s ability to escape liability in mixed-motives cases by proving
that it would have made the same decision in the absence of the discriminatory motivation.’” As the Sixth Circuit has stated, “in
mixed-motive cases, a plaintiff can win simply by showing that the defendant’s consideration of a protected characteristic
”was a motivating factor for any employment practice, even though other factors also motivated the practice.’” The McDonnell
Douglas burden-shifting framework does not apply to mixed-motive claims. . . . [T]o survive a defendant’s motion for summary
judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1)
the defendant took an adverse employment action against the plaintiff; and (2) “race, color, religion, sex, or national origin
was a motivating factor” for the defendant’s adverse employment action.
There is no dispute that UK’s decision not to hire Gaskell was an adverse employment action. The issue, then, is whether
Gaskell’s religion was “a motivating factor.” As set out above, Gaskell has presented direct and other evidence which, if believed,
establishes that his religion was a factor in UK’s employment decision. However, UK has also come forward with other evidence
that religion was not a motivating factor in its decision to hire Knauer. UK notes that the only question that was asked of Gaskell
regarding his statement on evolution was posed by Cavagnero who was concerned that Gaskell would violate UK policy by
representing his own opinion as that of the University should he link his university webpage to his personal webpage containing
religious material. UK contends that the Search Committee did not act improperly when it considered Gaskell’s comments about
evolution because Gaskell made those comments public not only during his 1997 lecture at UK, but also by posting his lecture
notes on his webpage. UK also contends that it did not consider Gaskell’s religious beliefs, only his public comments that there
were scientific problems with the theory of evolution. According to UK, the Search Committee was concerned that these publicly
expressed views would impair Gaskell’s ability to serve effectively as Observatory Director.
UK’s motivation for its decision not to hire Gaskell is very fact intensive and difficult to determine at the summary judgment
stage. Because UK has come forward with more than a scintilla of evidence to support its argument that religion was not a
motivating factor in its decision, Gaskell’s motion for partial summary judgment will be denied.
Gaskell’s motion for partial summary judgment is denied; UK’s motion for summary judgment is denied; and this matter
remains pending.
Defenses Title VII provides employers several defenses, which either limit
plaintiff’s recovery or completely excuse the employer from liability. The most
important such defenses include:
1. 1.Same-decision defense. Title VII allows an employer to limit a plaintiff’s
recovery in a mixed-motives disparate treatment claim if the employer
proves that it would have taken the same action in the absence of the unlawful
motivating factor. In other words, if an employer proves it would have made
the same decision regardless of the employee’s protected status, the
employee is not entitled to any personal recovery. The employer has violated
the law and can be enjoined from continuing to do so, but the employee
cannot recover money damages or be reinstated. An employee may still be
entitled to recover his attorney fees for the attorney’s work on the successful
portion of the mixed-motives claim. In the preceding Gaskell case, for
instance, if a jury found that UK was motivated not to choose Gaskell as
Observatory Director because of his religion, the same-decision defense
might allow UK to escape paying money damages (e.g., back pay,
compensatory, and punitive damages) to Gaskell. For example, UK might
try
to
prove
page 51-16 that it would not have hired Gaskell because of reports of his
obstinacy at his previous employment, regardless of his religious beliefs.
2. 2.Seniority. Title VII is not violated if the employer treats employees
differently pursuant to a bona fide seniority system. To be bona fide, such a
system at least must treat all employees equally on its face, not have been
created for discriminatory reasons, and not operate in a discriminatory
fashion.
3. 3.The various “merit” defenses. An employer also escapes Title VII liability
if it acts pursuant to a bona fide merit system, a system basing earnings
on quantity or quality of production, or the results of a professionally
developed ability test. Presumably, such systems and tests at least must meet
the general standards for seniority systems stated above. Also, the EEOC has
promulgated lengthy Uniform Guidelines on Employee Selection
Procedures that speak to these and other matters.
4. 4.The BFOQ defense. Finally, Title VII allows employers to discriminate on
the bases of sex, religion, or national origin where one of those traits is
a bona fide occupational qualification (BFOQ) that is reasonably necessary
to the business in question. The BFOQ defense is applied to cases of
disparate treatment, whereas the business necessity defense, which was
discussed earlier, applies in disparate impact cases. The BFOQ defense does
not protect race or color discrimination. Moreover, the defense is a narrow
one. Generally, it is available only where a certain sex, religion, or national
origin is necessary for effective job performance. For example, a BFOQ
probably would exist where a female is employed to model women’s
clothing or to fit women’s undergarments. But the BFOQ defense usually is
unavailable where the discrimination is based on stereotypes (e.g., that
women are less aggressive than men) or on the preferences of coworkers or
customers (e.g., the preference of airline travelers for female rather than male
flight attendants). The defense also is unavailable where the employer’s
discriminatory practice promotes goals, such as fetal protection, that do not
concern effective job performance. In addition, required or desired traits or
characteristics cannot be the basis for a BFOQ defense unless those traits or
characteristics are synonymous with a particular sex, religion, or national
origin. Otherwise, an individualized evaluation of the trait or characteristic
in each applicant is required.
Remedies Various remedies are possible once private plaintiffs or the EEOC wins
a Title VII suit. If intentional discrimination has caused lost wages, employees can
obtain back pay. At the court’s discretion, successful private plaintiffs also may recover
reasonable attorney fees. In addition, victims of intentional discrimination can
recover compensatory damages for harms such as emotional distress, sickness, loss of
reputation, or denial of credit. Victims of intentional discrimination also can
recover punitive damages where the defendant discriminated with malice or with
reckless indifference to the plaintiff’s rights. However, Title VII caps the sum of the
plaintiff’s recoverable compensatory and punitive damages to certain amounts that vary
with the size of the employer. For example, they cannot total more than $300,000 for
an employer with more than 500 employees. If a jury verdict awards a plaintiff an
amount in excess of the statutory cap, a defendant can request a reduction of the award
in a posttrial order by the judge.
Discrimination may also entitle successful plaintiffs to equitable relief. Examples
include orders compelling hiring, reinstatement, or retroactive seniority. On occasion,
moreover, the courts have ordered quotalike preferences in Title VII cases involving
race and (occasionally) gender discrimination. For example, a court might order that
whites and minorities be hired on a 50—50 basis until minority representation in the
employer’s work force reaches some specified percentage. Generally speaking, such
orders are permissible if (1) an employer has engaged in severe, widespread, or
longstanding discrimination; (2) the order does not unduly restrict the employment
interests of white people; and (3) it does not force an employer to hire unqualified
workers. Minority preferences also may appear in the consent decrees courts issue
when approving the terms on which the parties have settled a Title VII case.
Race or Color Discrimination At this point, we consider each of Title VII’s prohibited
bases of discrimination in more detail. Race or color discrimination includes
discrimination against Blacks, other racial minorities, Alaska Natives, and American
Indians, among others. Title VII also prohibits racial discrimination against whites.
Nonetheless, voluntary racial preferences that favor minorities who are qualified for the
job in question survive a Title VII attack if they (1) are intended to correct a racial
imbalance involving underrepresentation of minorities in traditionally segregated job
categories, (2) do not “unnecessarily trammel” the rights of white employees or create
an absolute bar to their advancement, and (3) are only temporary. Note that here our
concern is not the use of minority preferences as a remedy for a Title VII violation, but
whether such preferences themselves violate Title VII when voluntarily established by
an employer.
National Origin Discrimination National origin discrimination includes discrimination
based on (1) the country page 51-17 of one’s or one’s ancestors’ origin or (2) one’s
possession of physical, cultural, or linguistic characteristics identified with people of a
particular nation. Thus, plaintiffs in national origin discrimination cases need not have
been born in the country at issue. In fact, if the discrimination is based on physical,
cultural, or linguistic traits identified with a particular nation, even the plaintiff’s
ancestors need not have been born there. Thus, a person of pure French ancestry may
have a Title VII case if she suffers discrimination because she looks like, acts like, or
talks like a German.
Certain formally neutral employment practices can also constitute national origin
discrimination. Employers who hire only U.S. citizens may violate Title VII if their
policy has the purpose or effect of discriminating against one or more national origin
groups. This could happen where the employer is located in an area where aliens of a
particular nationality are heavily concentrated. Also, employment criteria such as
height, weight, and fluency in English may violate Title VII if they have a disparate
impact on a national origin group and are not job related.
Religious Discrimination For Title VII purposes, the term religion is broadly defined.
The EEOC says that it includes any set of moral beliefs that are sincerely held with the
same strength as traditional religious views. Courts have followed the EEOC’s
expansive interpretation. In fact, Title VII forbids religious discrimination against
atheists. It also forbids discrimination based on religious observances or practices—for
example, grooming, clothing, or the refusal to work on the Sabbath. But such
discrimination is permissible if an employer cannot reasonably accommodate the
religious practice without suffering undue hardship. Undue hardship exists when the
accommodation imposes more than a minimal burden on an employer. The Americans
with Disabilities Act, discussed later in this chapter, also includes an accommodation
mandate. Despite both using the same “hardship” language, courts have expected
employers to shoulder substantially more inconvenience and expense to accommodate
disabled employees than religious employees.
In a 2015 case, the Supreme Court clarified that a claim of failure to accommodate
to an employee’s religious observance or practice is simply a type of disparate treatment
claim.13 As such, the employee is not required to prove the employer had knowledge of
the religious nature of the observance or practice, provided the employee can prove that
the employer’s negative treatment of the employee (or applicant) was motivated at least
in part by the observance or practice. Practically, this ruling relieves the employee of
what was sometimes an uncomfortable expectation of some courts that the employee
had to notify the employer of her religiously motivated observances or practices prior to
the employee being aware of any need for an accommodation.
Sex Discrimination Title VII’s ban on sex discrimination applies to gender
discrimination against both men and women. Still, voluntary employer programs
favoring women in hiring or promotion survive a Title VII attack if they meet the
previous tests for voluntary racial preferences (reformulated in terms of gender).
Through an important amendment to the 1964 Civil Rights Act in 1978 called the
Pregnancy Discrimination Act, Title VII also forbids discrimination on the bases of
pregnancy and childbirth and requires employers to treat these conditions like any other
condition similarly affecting working ability in their sick leave programs, medical
benefit and disability plans, and so forth. Finally, sexual stereotyping violates Title VII.
This is employer behavior that either (1) denies an employee opportunities by requiring
that he or she must have traits traditionally associated with his or her sex (e.g., requiring
a woman to have a nurturing demeanor) or (2) penalizes him or her for lacking such
traits (e.g., penalizing a man for lacking aggression or for shying away from physical
confrontation).
For most of Title VII’s history, courts had consistently interpreted the prohibition
against sex discrimination narrowly, holding that it did not forbid discrimination on the
basis of sexual orientation or gender identity.14 Throughout the past decade, however,
the EEOC and several courts departed from the traditional approach. The EEOC
adopted an interpretation that discrimination on the basis of sexual orientation and/or
gender identity is sex discrimination.15 In addition, the Courts of Appeals for the
Second, Sixth, and Seventh Circuits interpreted Title VII to prohibit sexual orientation
discrimination as a form of sex discrimination, while the Eleventh Circuit had held the
opposite. In 2019, the Supreme Court heard appeals of three such cases to resolve that
split among the circuit courts. The following Bostock decision, issued by the Supreme
Court in June 2020, ruled that Title VII’s prohibition against sex discrimination in
employment by necessity prohibits discrimination on the basis of sexual orientation and
gender identity.
Bostock v. Clayton County, Georgia140 S. Ct. 1731 (2020)
The U.S. Supreme Court consolidated the appeal of three cases. Each began similarly: An employer fired a long-time employee
shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the
employee’s homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won
national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league.
Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual
orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company,
Mr. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens
presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately,
clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the
company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after
she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”
Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. In Bostock’s case, the U.S.
Court of Appeals for the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay. It
upheld the dismissal of his suit. In Zarda’s case, the U.S. Court of Appeals for the Second Circuit concluded that sexual orientation
discrimination does violate Title VII and allowed his case to proceed. In Stephens’s case the U.S. Court of Appeals for the Sixth
Circuit held that Title VII bars employers from firing employees because of their transgender status.
The Supreme Court granted certiorari in the matters to resolve the disagreement among the courts of appeals over the scope
of Title VII’s protections for homosexual and transgender persons.
Gorsuch, J.
II
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After
all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to,
remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk
amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right
to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.
With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is
“unlawful . . . for an employer 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.” § 2000e-2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here
1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming
our work against this Court’s precedents.
A
The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose
meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term
“sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by
submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms
concerning sex identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the
parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex”
signified what the employers suggest, referring only to biological distinctions between male and female.
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the
statute prohibits employers from taking certain actions “because of” sex. And, as this Court has previously explained, “the ordinary
meaning of ”because of’ is ”by reason of’ or ”on account of.’” University of Tex. Southwestern Medical Center v. Nassar, 570 U.S.
338, 350 (2013). In the language of law, this means that Title VII’s “because of” test incorporates the “”simple’” and “traditional”
standard of but-for causation. Nassar, 570 U.S. at 346, 360. That form of causation is established whenever a particular outcome
would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and
see if the outcome changes. If it does, we have found a but-for cause.
page 51-19
This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident
occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might
call each a but-for cause of the collision. When it comes to Title VII, the adoption of the traditional but-for causation standard
means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.
So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law. . . .
As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens
“because of” sex. The statute imposes liability on employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . .
. discriminate against” someone because of a statutorily protected characteristic like sex. The employers acknowledge that they
discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . .
discriminate against.” By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge,
only with those discharges that involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out,
it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” Webster’s
New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that
individual worse than others who are similarly situated. In so-called “disparate treatment” cases like today’s, this Court has also
held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person
for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.
...
B
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An
employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors
besides the plaintiff’s sex contributed to the decision. . . . If the employer intentionally relies in part on an individual employee’s
sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different
choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual
employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490
U.S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status
is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or
transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees,
both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that
one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to
men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer
intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause
of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies
as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer
intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female
at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female
employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have
tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and
transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some
vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate
on these grounds requires an employer to intentionally treat individual employees differently because of their sex. . . .
[I]ntentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s
ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays
here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an
employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who
has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to
bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that page 5120 employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is
a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to
achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s
sex.
An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are
homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions,
treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an
individual employee because of that individual’s sex an independent violation of Title VII. . . .
III
What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being
homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of
that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their
homosexuality or transgender status supplies no basis for liability under Title VII. . . . In the end, the employers are left to retreat
beyond the statute’s text, where they fault us for ignoring the legislature’s purposes in enacting Title VII or certain expectations
about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions
about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t
referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even
today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the
employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion
that the employees now before us were fired because of sex.
But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In
conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just
been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would
be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was
a but-for cause. . . .
Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or
transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. . . .
What . . . do the employers mean when they insist intentional discrimination based on homosexuality or transgender status
isn’t intentional discrimination based on sex? [T]he employers may mean that they don’t perceive themselves as motivated by a
desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations)
for its conduct beyond sex discrimination. . . .
Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual
without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its
application form. The employer then had someone else redact any information that could be used to discern sex. The resulting
applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be
men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons
cannot be sex discrimination?
No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change
the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to
check if the applicant is either Black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude
the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of
course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he
might know or not know about individual applicants.
The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without
considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing
out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.
Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without
discriminating in part because of an applicant’s sex. . . .
Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy.
Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and
transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before
recognizing liability? . . .
Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a
statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might
mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a
different meaning than the terms do when viewed individually or literally. . . .
[A]s we have seen, the employers agree with our unders...
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