Chapter 7 Hiring & Promotion

Decisions

Facially Discriminatory Policies• Employers that base hiring and promotion decisions on

protected class characteristics are engaging in disparate treatment discrimination.

• When they argue that it is necessary for business reasons, this type of disparate treatment is termed a facially discriminatory policy or practice.

• A limited defense is a bona fide occupational qualification (BFOQ).

• If an employer can establish a BFOQ, the practice is legal.

Elements of a BFOQ

• The employer must show:– That only persons with the specified protected class

characteristic can do the job, AND– That the job, as currently configured, is integral to the

operation of the business.– Example: A petrochemical firm claimed that being a

male was a BFOQ for the position of VP of International Operations because Latin American clients would refuse to deal with a woman, and that she would be unable to conduct business from hotel rooms. These arguments were NOT sufficient to establish a BFOQ.

Grounds for a BFOQ

• Authenticity (actor in a movie role)• Public safety (female prison guards in female prison)• Privacy (nurses on duty in hospital facility where

victims of sexual assault are admitted• Note: The BFOQ defense NEVER applies to race

Everson v. Michigan DOC

• Facts: In response to lawsuits over rampant sexual abuse of female prisoners, the Michigan Department of Corrections instituted a “female only” requirement for female prisons. Some employees challenged the requirement, and the District Court ruled that MDOC had not established a BFOQ.

• Issue: Whether the employer could establish a BFOQ for this facially discriminatory policy under these facts.

• Held: Yes. The requirement of female guards in the women’s prisons was reasonably necessary for the security of the prison, which was central to its mission.

Just the Facts

• A hospital had the following policy: “All pregnant personnel must immediately report pregnancy status to the director. … The pregnant personnel shall not partake in any fluoroscopy or portable procedures during her term. This will ensure safety and protection.” Fluoroscopy involves high-intensity radiation. The EEOC sued the hospital based on the policy and its effect on two female employees who complied with the policy and were re-assigned to work in other areas of the hospital during their pregnancies. Did the hospital’s policy constitute sex discrimination?

• EEOC v. Catholic Healthcare West, 530 F. Supp. 2d 1096 (C.D. Cal. 2008)

• Employment discrimination based on gender and some other factor such as marital status, pregnancy, children or age

• Policies like these obviously do not apply to men

• While BFOQs are permitted, the courts construe them very narrowly

“Gender-Plus” Discrimination

“Sex-Plus” Cases

• Discrimination may occur when neutral criteria are applied to some protected class groups, but not others.– Example: One employer refused to hire women with

children under 5, but did hire men with children under 5. The employer was unable to establish a BFOQ for this conduct.

• Gender stereotyping – workplace decisions based on ideas of how a certain gender should act

• Grooming codes can be discriminatory if they hold different genders to different standards

• Customer or employee preferences are not legitimate reasons to treat employees differently

Gender Issues

Sex Stereotyping

• Sex stereotyping may be the basis for a claim of discrimination.– Example: A retailer required female clerks to wear

maternal looking smocks, while male clerks wore business attire. This policy constituted discrimination on the basis of a sexual stereotype.

Sex Stereotyping

• See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Just the Facts

• A female bartender had worked at Harrah’s Casino for 20 years. Her job performance was rated as excellent. A “Beverage Department Image Transformation” program was implemented, requiring that all beverage servers be “well-groomed, appealing to the eye, firm, and body toned.” Female beverage servers were required to wear make-up and stockings, use colored nail polish, and wear their hair “teased, curled, or styled.” Male beverage servers were prohibited from wearing makeup or colored nail polish and were required to maintain short haircuts and trimmed fingernails. The bartender objected to the makeup requirement because she had tried it on the job, but found that it made her feel like a sexual object and that it was more difficult to deal with unruly guests. Because she refused to wear makeup, she was terminated. What should the court decide? Why? – Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006)

Subjective Criteria

• Subjective criteria are those for which the standards and means of assessment are not clearly specified and are likely to vary across decision-makers.

• Often, people are unaware that discrimination plays a role in decisions.– Example: The chances of women being selected to

play in orchestras rose when the auditions were “blind,” so that the judges could not see the applicants, but only hear them.

Medina v. Ramsey Steel

• Facts: A long-time employee who sought a sales position was passed over 3 times, though he had sales experience. Each time, the employer promoted people many years younger, telling him he was unqualified because he lacked “significant sales experience.” He sued for age discrimination; summary judgment was entered against him.

• Issue: Whether an employer’s subjective judgment that he was unqualified would defeat a prima facie case of disparate treatment.

• Held: No, since the “minimum qualifications for the position” element of a prima facie case refers only to objective criteria. Judgment reversed, for trial.

Offering & Accepting Employment

• Because of the common law doctrine of Employment at Will, a promise of a job which is then revoked will not result in a valid claim for breach of contract.

• Only if the employee has relied to his detriment on the promise (relocating, buying or renting a residence, etc.) are the courts likely to recognize a claim for the equitable remedy of promissory estoppel.

Promotions

• For women and persons of color: – Often lines of progression in firms mean that one job leads to

another, so that if they are not hired for such jobs, they will not be promoted.

– Where promotions are not posted or announced, they are less likely to be promoted.

– If training and development programs are not made available to them, they are less likely to be promoted.

– Subjective criteria are relied on more heavily in decisions for promotion, making them less likely to be promoted.

• Recommended: Establish procedures for promotions, publicize the opportunities, and facilitate applications from all interested employees.

Glass Ceilings

• The U.S. Department of Labor defines a glass ceiling as:– “Those artificial barriers based on attitudinal or organizational bias

that prevent qualified individuals from advancing in their organization into upper management positions.”

• Recommended: Employers should examine the protected class composition of positions from which promotions are made and the manner in which key projects and other developmental opportunities are assigned.

Seniority and the BFSS Defense

• Seniority, the length of service of an employee at a firm, is a common criterion used in many employment decisions, but women and persons of color frequently have less seniority.

• To defend a claim of discriminatory impact (but not intentional, disparate treatment claims), Title VII provides the defense of a bona fide seniority system (BFSS):– A genuine seniority system having formal rules for tracking

seniority– Applying equally to all employees, not for the purpose of

discrimination

What Would You Do?

• Your new firm has been growing rapidly and you have been hiring sales people for the past 18 months. You recently made a verbal job offer to one such applicant from out of state who was due to start within a month and then the economy took a significant turn for the worse. Your boss has told you that you cannot afford to hire more sales people and that you need to withdraw the job offer you just made. You know that the sales person has already sold her house in anticipation of the move. What would you do?