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44 Cards in this Set

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Facts of:

Nichols v. Azteca Restaurant Enterprises, Inc.

Antonio Sanchez worked for Azteca Restaurant Enterprises, he was verbally harassed by some male co-workers and a supervisor because he was effeminate and did not meet their views of a male stereotype. This harassment included referring to him with female pronouns in both English and Spanish. The district court ruled that this was not sex-based discrimination.

Question, Decision, Rationale:

Nichols v. Azteca Restaurant Enterprises, Inc.

Question: Was the harassment Sanchez faced sex-based?

Decision: Yes.

Rationale: Sanchez was harassed because he did not conform to the “male” stereotype. The verbal abuse was closely linked with gender.

Facts of:

EEOC v. Brown & Root, 688 F.2d 338 (5th Cir)

Facts: Brown & Root, a construction company, hired Sarah Joan Boyes as an electrician’s helper. After a bout of “acrophobia” (fear of heights), she was discharged and another woman was hired in her place.

Questions, Decision, Rationale:

EEOC v. Brown & Root, 688 F.2d 338 (5th Cir)

Question: Could Brown & Root rightfully terminate a female employee for fear of heights? Decision: No.

Rational: After an investigation by the Equal Employment Opportunity Commission, it was found that at least four male employees had not been discharged after freezing and needed to be assisted down off the beams. One was even made an accommodation to work on the ground because of his fear of heights. If an employee is discharged under circumstance which an employee of another sex would not have been discharged, this is discrimination.

Facts of:

Price Waterhouse v. Hopkins

Price Waterhouse was a nationwide professional accounting partnership that was structured sot that partners could only become partners when another partner submitted their name as a candidate. All the partners are then invited to write comments on each candidate. Ultimately, the firm’s Admissions Committee reviews these comments and makes a recommendation to the Policy Board. Ann Hopkins, a five-year employee, was proposed as a candidate. She was the only woman out of 88 persons. She was “held” for reconsideration along with 19 others. They recommended that she needed to become more “feminine” to succeed because she was aggressive and abrasive. The advised she “walk more feminiely, talk more femininely, dress more femininely, wear make-up, have hair styled and wear jewlery.”

Questions, Decision, Rationale:

Price Waterhouse v. Hopkins

Question: Was Price Waterhouse’s rationale of denying Ann Hopkins a promotion on the basis of deficient interpersonal skills a legitimate basis on which to deny her partnership, or just a pretext for sexual discrimination in violation of Title VII?

Decision: Ruled against Price Waterhouse.

Rational: The company had to prove by a preponderance of the evidence that their decision to deny Hopkins a promotion would have been the same if she had not been discriminated based on her sex and her lack of femininity. The company could not meet that burden; it was implicit that the same treatment would not have applied to a male counterpart. Therefore, the firm was guilty of committing sex-based discrimination against Hopkins in violation of Title VII of the 1964 Civil Rights Act.

Facts of: Lindahl v. Air France

Michelle Lindahl worked for Air France. They were creating a new position of Senior Customer Promotion Agent and invited all employees (who at the time were all female) to apply. Lindahl was told she would be given the position, but then Air France decided not to create the position and Lindahl received no promotion. Five years later, the same position was created and given to Edward Michels without announcement or invitation to apply.

Facts of: Griggs v. Duke Power

Willie Griggs filed a class action, on behalf of several fellow African- American employees, against his employer Duke Power Company . Griggs challenged Duke's "inside" transfer policy, requiring employees who want to work in all but the company's lowest paying Labor Department to register a minimum score on two separate aptitude tests in addition to having a high school education. Griggs claimed that Duke's policy discriminated against African-American employees in violation of Title VII of the 1964 Civil Rights Act. On appeal from a district court's dismissal of the claim, the Court of Appeals found no discriminatory practices. The Supreme Court granted certiorari.

Questions, Decision, Rationale: Griggs v. Duke Power

Question: Did Duke Power Company's intradepartmental transfer policy, requiring a high school education and the achievement of minimum scores on two separate aptitude tests, violate Title VII of the 1964 Civil Rights Act?Decision: Yes.

Rational: After noting that Title VII of the Act intended to achieve equality of employment opportunities, the Court held that Duke's standardized testing requirement prevented a disproportionate number of African-American employees from being hired by, and advancing to higher-paying departments within, the company. Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee's ability to learn or perform a particular job or category of jobs within the company. The Court concluded that the subtle, illegal, purpose of these requirements was to safeguard Duke's long-standing policy of giving job preferences to its white employees.

Facts of: Dothard v. Rawlinson

After her application for employment as a "correctional counselor in Alabama was rejected because she failed to meet the minimum 120-pound weight requirement of an Alabama statute, which also establishes a height minimum of 5 feet 2 inches, Dianne Rawlinson filed a charge with the Equal Employment Opportunity Commission and ultimately brought a class action against appellant corrections officials challenging the statutory height and weight requirements and a regulation establishing gender criteria for assigning correctional counselors to "contact" positions, or positions requiring close physical proximity to inmates, as a violation of Title VII of the Civil Rights Act of 1964, inter alia.

Questions, Decision, Rationale: Dothard v. Rawlinson

Question: Do employment requirements that remove 41% of women as acceptable candidates for the job create a discriminatory practice? Is a woman's choice to work in a °dangerous field" superseded by the need to protect her from harm?

Decision: The Supreme Court decision upheld the lower court's ruling that is was a violation of Title VII of the Civil Rights Act of 1964. The Court did find that bona fide occupational qualifications could permit the hiring of one gender

Rational: The district court ruled in Rawlinson's favor on both counts. It relied on national statistics that outlined the comparative heights and weights of men and women to show that the Alabama prison guard requirements would exclude more than 40 percent of the female population but less than one percent of the male population. The court held that this, on its face, was evidence of sex discrimination against women. On the issue of whether women could fill close contact jobs in all male maximum security prisons the Court ruled 6-3 that the bona fide occupational qualifications defense (BFOQ), where there is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees—qualities that when considered in other contexts would constitute discrimination and thus in violation of civil rights employment law — was legitimate in this case. The reason for this finding is that female prison guards were more vulnerable to male sexual attack than male prison guards.

Facts of: Automobile Workers v. Johnson Controls

Johnson Controls, Inc. ("Johnson") manufactures batteries whose assembly process entails exposure to high levels of lead. After discovering that eight of its female employees became pregnant while maintaining blood lead levels in excess of those thought safe by the Occupational Safety and Health Administration (OSHA), Johnson barred all its female employees - except those with medically documented infertility - from engaging in tasks that require exposure to lead in access of recommended OSHA levels. Following its passage, the United Automobile Workers (UAW) challenged Johnson's fetal-protection policy as sexually discriminatory in violation of Title VII of the 1964 Civil Rights Act (Act). When the Appellate Court affirmed a district court decision in favor of Johnson, the UAW appealed and the Supreme Court granted certiorari.

Questions, Decision, Rationale: Automobile Workers v. Johnson Controls

Question: Does a policy barring the participation of potentially fertile and pregnant women in occupations that could be detrimental to their reproductive capacities constitute sexual discrimination in violation of Title VII of the 1964 Civil Rights Act?

Decision: Yes, unanimous decision.

Rational: In a unanimous decision, the Court noted that even well intentioned proposals are forbidden if they result in discrimination. Johnson's fetal-protection plan discriminated against women by not requiring their male counterparts to demonstrate proof of medical sterility, despite the fact that lead exposure has also proved hazardous to male reproductive systems. The Court added that Johnson's fetal-protection plan fell outside the bona fide occupational qualification exception of Title VII, since the exception only permits employers to discriminate based on qualities that detrimentally impact on an employee's job performance. In the present case, although lead exposure may be harmful to the unborn, Johnson furnished no proof that it detracted from its female employees' abilities to perform any of their essential tasks.

Facts of: Healey v. Southwood Psych

Brenda Healey was hired as a child care specialist at Southwood in October 1987. In this capacity, she was responsible for developing and maintaining a therapeutic environment for the children and adolescents hospitalized at Southwood. Southwood’s patients are emotionally disturbed, and some have been sexually abused. November 1992, Healey was assigned to the night shift at Southwood as a result of a staff reorganization. The reorganization was necessitated by reason of a decline in the patient population. She was selected because they needed a female child care specialist for that shift. Southwood claims using sex as a determination is necessary; Healey says that gender shouldn’t play a role in employment or scheduling. District court granted summary judgement to Southwood. Healey appeals.

Questions, Decision, Rationale: Healey v. Southwood Psych

Question: Does Southwood’s policy of using gender to determine scheduling violate Title VII? Decision: No.

Rational: The “essence” of Southwood’s business is to treat emotionally disturbed and sexually abused adolescents and children. Southwood has presented expert testimony that staffing both males and females on all shifts is necessary to provide therapeutic care. In addition to therapeutic goals, privacy concerns justified Southwood’s discriminatory staffing policy. Southwood established that adolescent patients have hygiene, menstrual, and sexuality concerns which are discussed more freely with a staff member of the same sex. Child patients often must be accompanied to the bathroom, and sometimes must be bathed. The Supreme Court has explicitly left open the question whether sex constitutes a BFOQ when privacy interests are implicated, Johnson Controls, Inc., and the issue so far had been raised but not yet decided by the court. They concluded that due to both therapeutic and privacy concerns, Southwood was an institution in which the sexual characteristics of the employee are crucial to the successful performance of the job of child care specialist. Southwood could not rearrange job responsibilities in order to spare Healey or another female from working the night shift because at least one female and male should be available at all times in order for Southwood to conduct its business. Accordingly, they held that the essence of Southwood’s business would be impaired if it could not staff at least one male and female child care specialist on each shift. They concluded that Southwood had established a BFOQ which justifies its discriminatory employment practice.

Facts of: Tomkins v. PSE&G

Adrienne Tomkins was hired by PSE&G in April 1971, and progressed to positions of increasing responsibility from that time until August 1973, when she began working in a secretarial position under the direction of a named supervisor. The supervisor asked her out to lunch to discuss business, but then told her during the meal that he wanted to have sex to her and it would be necessary for them to in order to have a “satisfactory work experience.” When she went to leave, he threatened to fire her, then threatened her physically, then restrained her. When she tried to quit the next day, they decided instead she would be transfered to an equal position in a different department. She agreed, but when one “never became available” she was demoted. Her complaint was that PSE&G and certain of its agents knew or should have known about his nature, but placed Tomkins in a position where she would be subjected to it. There, she was subjected to false and adverse employment evaluations, disciplinary lay-offs, and threats of demotion by various PSE&G employees. Tomkins maintains that as a result of the supervisor’s conduct and the continued pattern of harassment by PSE&G personnel, she suffered physical and emotional distress, resulting in absenteeism and loss of income. She claimed that the sexual demands imposed a “sex based term or condition” on her employment. The district court overlooked that fact, saying it was for “personal purposes.”

Questions, Decision, Rationale: Tomkins v. PSE&G

Question: Were the sexual demands for “personal purposes” as the district court claimed, or were they “sex-based terms or conditions” for her to keep her job?

Decision: Sided with Tompkins.

Rationale: Title VII is violated when a supervisor, with the actual or constructive knowledge of the employer, makes sexual advances or demands toward a subordinate employee and conditions that employee’s job status— evaluation, continued employment, promotion, or other aspects of career development—on a favorable response to those advances or demands, and the employer does not take prompt and appropriate remedial action after acquiringsuch knowledge.

Facts of: Bundy v. Jackson

Sandra Bundy was hired at the District of Columbia Department of Corrections (DCDC) in 1970 and was promoted several times, becoming a vocational rehabilitation specialist who helped find jobs for ex-offenders. From 1972 onward she was sexually harassed by a number of fellow employees and supervisors, including Delbert Jackson, who later became the director of the DCDC. Bundy's supervisors regularly questioned her about her sexual proclivities and invited her back to their apartments or to motels. When she complained to her supervisors' superior, he told her that "any man in his right mind would want to rape you" and then propositioned her himself. Afterwards, Bundy's supervisors began to criticize her for taking too much time off and poor work performance, though she had never received such criticisms before her attempt to complain. Bundy sought help from the Equal Employment Opportunity officers at the DCDC, but they only cautioned her against bringing unwarranted complaints. However, Bundy filed an informal and then a formal complaint. When no action was taken, Bundy filed suit in 1977 in the United States District Court for the District of Columbia seeking declaratory and injunctive relief.

Questions, Decision, Rationale: Bundy v. Jackson

Question: Does an employer violate Title VII merely by subjecting female employees to sexual harassment, even if the employee’s resistance to that harassment does not cause the employer to deprive her of any tangible job benefits?

Decision: Sided with Bundy.

Rationale: Bundy’s employer did discriminate against her on the basis of sex, and the “terms, conditions, or privelges of employment” include not working in a discriminatory work environment. By changing the psychological and emotional work environment to one that includes sexual-stereotypes and demeaning propositions, the employer creates a “condition” of employment that violates TitleVII.

Facts of: Meritor Savings Bank v. Vinson

Facts: After being dismissed from her job at a Meritor Savings Bank, Mechelle Vinson sued Sidney Taylor, the Vice President of the bank. Vinson charged that she had constantly been subjected to sexual harassment by Taylor over her four years at the bank. She argued such harassment created a "hostile working environment" and was covered by Title VII of the Civil Rights Act of 1964. Vinson sought injunctive relief along with compensatory and punitive damages against Taylor and the bank.

Questions, Decision, Rationale: Meritor Savings Bank v. Vinson

Question: Did the Civil Rights Act prohibit the creation of a "hostile environment" or was it limited to tangible economic discrimination in the workplace?

Decision: Unanimous decision for Vinson.

Rationale: The Court held that the language of Title VII was "not limited to 'economic' or 'tangible' discrimination," finding that Congress intended "'to strike at the entire spectrum of disparate treatment of men and women' in employment. . ." The Court noted that guidelines issued by the EEOC specified that sexual harassment leading to noneconomic injury was a form of sex discrimination prohibited by Title VII. The Court recognized that plaintiffs could establish violations of the Act "by proving that discrimination based on sex has created a hostile or abusive work environment." The Court declined to rule on the degree to which businesses could be liable for the conduct of specific employees.

Facts of: Faragher v. City of Boca Raton

Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher’s immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned.After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher's supervisors' conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher's supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.

Questions, Decision, Rationale: Faragher v. City of Boca Raton

Question: May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

Decision: Yes, 7-2

Rationale: Opinion delivered by Justice David H. Souter - The Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. "The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher's]," wrote Justice Souter, "[u]nder such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct."

Facts of: Robinson v. Jacksonville Shipyards

Facts: Plaintiff Lois Robinson asserted Jacksonville Shipyards, where she worked as a welder for fourteen years, created and encouraged a sexually hostile, intimidating work environment, based on the presence in the workplace of pictures of women in various stages of undress and in sexually suggestive or submissive poses, as well as remarks by male employees and supervisors that demeaned women. Comments such as: “Hey pussycat, come here and give me a whiff”; “The more you lick it, the harder it gets”; “I’d like to get in bed with that”; “I’d like to have some of that”; “Black women taste like sardines.”

Questions, Decision, Rationale: Robinson v. Jacksonville Shipyards

Question: Does the sexual harassment at JSI affect the terms, conditions or privilege of employment, sufficiently severely to alter the conditions of the victims' employment and create an abusive working environment?

Decision: Yes.

Rationale: Because a reasonable woman would find the environment abusive. Two of her coworkers experienced similar harassment while Robinson wasn’t presence. They endorsed Robinson’s idea of putting a sexual harassment policy in place and procedures as an effective remedy for the work environment at JSI.

Facts of: corning glass works v. brennan

These cases arise under the “equal pay for equal work” principal of the EPA. Corning Glass Works pays a higher wage to male nigh shift inspectors than it does to female inspectors during the day shift. The situation developed when the plants, which were currently employing all women for inspecting work, needed a night shift and state law barred women working at night. So they had to take male employees and transfer them to a new position, receiving substantially higher wages. This was on top of a night-shift differential, negotiated by a union. They began to allow women to apply for the position two years after the state law was amended to permit women to work at night. In 1969, the union negotiated a standard base-wage for all inspectors that was higher than that of the night inspectors, for all employees hired after Jan. 20, 1969. However, in this negotiation they alsp created a “red circle” rate for employees hired and working the night-shift before the effective date, increasing the gap between the old day-time workers, who were female, and the old night-shift workers, who were male. Two different circuit courts examining cases involving plants in two different states reached separate conclusions on the matter, New York holding that it violated the act and Pennsylvania saying it did not.

Questions, Decision, Rationale: corning glass works v. brennan

Question: Did Corning violate the EPA by paying male night shift inspectors more than female day shift inspectors? If so, did Corning cure its violation of the EPA by permitting women to work as night shift inspectors? If the violation was not remedied in 1966, was it in 1969 when Corning equalized day and night inspector wage rates but established higher “red circle” rates for existing employees working on night shift? Decision: Yes; no; no

Rationale: While EPA allows for paying more for different working conditions, that is not the case here. Time of day is not considered under “working conditions,” which actually refer to “surroundings” and “hazards” as noted in Corning’s own job evaluation. Therefore, the work of the female day workers and male night workers is “equal” before the eyes of the court. The only way to remedy this is by making the base wages the same; Corning’s action of allowing women to take on night work if “vacancies” became available would “frustrate, not serve” Congress’ intentions with the EPA. New York’s holding is affirmed, Pennsylvania’s reversed.

Facts of: Martinez v. county of monroe

Facts: An employee of Monroe Community College married her same-sex partner in Canada. After their marriage, she applied for spousal health care benefits. The HR director denied the application. Supreme Court granted defendant’s motion for a summary judgement, declaring that the plaintiff’s marriage was not entitled to recognition in NY.

Questions, Decision, Rationale: Martinez v. county of monroe

Question: If a marriage is performed in another jurisdiction, must the state recognize it? Decision: YesRationale: Since New York recognizes out-of-jurisdiction marriages for opposite-sex couples, they must for same. “For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the 'positive law' of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of 'natural law.’”

Facts of: Grutter v. bollinger

Last “use of race in public higher education” case was more than 25 years prior, Bakke, where the only holding that came out of a very divided court was that the “state has a substantial interest that legitimately maybe served by a properly devised admission program involving the competitive consideration of race and ethnic origin.” In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." The District Court concluded that the Law School's stated interest in achieving diversity in the student body was not a compelling one and enjoined its use of race in the admissions process. In reversing, the Court of Appeals held that Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), constituted a binding precedent establishing diversity as a compelling governmental interest sufficient under strict scrutiny review to justify the use of racial preferences in admissions. The appellate court also rejected the district court's finding that the Law School's "critical mass" was the functional equivalent of a quota.

Questions, Decision, Rationale: Grutter v. bollinger

Question: Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Decision: No, 5-4

Rationale: Opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants."

Possible explanations of earnings gap

1) Women workers, as a group possess a different and less valuable set of employment skills than men as a group (explains less than half the difference in earnings).

2) The result of overt sex discrimination on the part of employers that pay women employees less than male employees (little explanatory power due to the EPA).

3) Women tend to be focused in lower-paying occupations.

Equal Pay Act or 1963

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex:

Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

Three main provisions are commonly referred to “equal pay for equal work,” “four affirmative defenses” and “the limitation on remedies”

Burden of Proof in EPA:

If the government shows that the employer used different wage rates for employees of opposite sexes for jobs that are substantially equal in skill, effort, responsibility, and working conditions, the burden of proof shifts to the employer to show that one of the four affirmative defenses applies.

Occupational Segregation

Women and men are concentrated in different occupations, and those traditionally “female” jobs earn lower than traditional “male” jobs. This theory is amply supported by Labor Department data. Are legal remedies available for this?

EEOC v. Sears

EEOC v. Sears: Sears hired mostly men for commission-based sales jobs, and females for lower sales work. Statistically, this was true, however the judge refused to attribute this to sex discrimination because female sales applicants weren’t as “interested” as males in commission, as proved by Sears. “Lack of interest” arguments are seen in conservative courts, while liberal courts reject that idea.

Revolving Doors - Jerry Jacobs

Jerry Jacobs, “Revolving Doors” refutes the “lack of interest” theory:The sex-type of the work to which young women initially aspire does not remain stable over time, but changes substantially after they start working.The sex-type of work to which young women initially aspire does not predict the sex-type of the work they do as their careers unfold.The sex-type of women’s early work does not predict the type of work they do later in life.

Family and Medical Leave Act

Enacted in 1993 and applies to all public agencies. A covered employer must grant an eligible employee (working for them for more than 12 months) up to a total of twelve workweeks of unpaid leave during any twelve-month period for one of the following reasons: the birth or care of the employee’s spouse, child, or parent who has a serious health condition; because the employee is unable to work because of a serious health condition; or for qualifying exigencies arising because the employee’s spouse, son, daughter or parent is on active duty or called active duty status as a member of the National Guard or Reserves in support of a contingency operation.

Pregnancy Discrimination Act of 1978

Amended Title VII to include pregnancy, childbirth, and pregnancy-related medical conditions as sex, but was not retroactive. Now, it is effecting pensions, as women who had to take “personal” leave did not earn towards their pensions, unlike others on “disability” leave.

Affirmative Action

A technical legal expression that consists of extra steps taken to ensure that a legally required result is actually produced. Through the mid 1990’s, court debated the standard for considering constitutional challenges to APP’s using race.

Four part test for "term, condition, privilege" of employment under Title VII:

1) “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ”

2) “This test may be satisfied by a showing that the sexual harassment was sufficiently severe or persistent ‘to affect seriously [the victim’s] psychological well being.’ ”

3) This “is a question to be determined with regard to the totality of the circumstances.”

4) Element four must be tested both subjectively and objectively.

Disparate impact/treatment:

Disparate impact is a way to prove employment discrimination based on the effect of an employment policy or practice rather than the intent behind it.

3-part test developed in Dothard v. Rawlinson:

1) There a significant disparity in the provision of a benefit or service that is basedon race, national origin or sex; and

2) The practice at issue does not serve a substantial legitimate justification (i.e., isnot educationally necessary); or

3) There is an alternative practice that is equally effective in meeting the institution’sgoals and results in lower disparities.

Bona fide occupational qualification (BFOQ)

After Healey v. Southwood: A quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees—qualities that when considered in other contexts would constitute discrimination and thus in violation of civil rights employment law. Such qualifications must be listed in the employment offering.

Title VII prohibits:

(1) 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: or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.