Chapter 2 — The Law and Talent Management

Chapter 2 opens with eight learning goals, numbered 2.1 through 2.8. They are reproduced verbatim below because Cascio and Aguinis use this exact numbering scheme throughout the book, and the goals map directly onto the chapter's own section headings.

1. 2.1 Describe the framework of the U.S. legal system.
2. 2.2 Describe alternative legal routes for complaints against an employer's employment practices.
3. 2.3 Explain the two major legal theories of unfair employment discrimination.
4. 2.4 Understand the major legal principles that define key civil rights laws.
5. 2.5 Identify the six exemptions to Title VII coverage.
6. 2.6 Define sexual harassment and identify preventive steps employers should take.
7. 2.7 Know when you can and cannot justify “English-only” rules in the workplace.
8. 2.8 Understand how to prevent age-discrimination claims when downsizing or terminating workers for cause.

The chapter opens with the constitutional hierarchy: the U.S. Constitution is the supreme law of the land. Powers not given to the federal government are reserved for the states, and state constitutions must remain consistent with the U.S. Constitution. Some activities are regulated exclusively by the federal government (interstate commerce), while others — equal employment opportunity (EEO) among them — are subject to concurrent regulation by both federal and state governments. Where a state law conflicts with the Constitution or federal law, federal requirements take precedence; a state or local law that violates the Constitution is, in effect, unconstitutional, and “I was following state law” is no defense.

The legislative branch (Congress) enacts statutes, which are primary authority. Court decisions and the decisions and guidelines of regulatory agencies are not laws — they are interpretations of laws for situations the law itself doesn't specify — but they form a body of legal opinion and precedent that carries great deference.

The Federal Court Structure

Article III of the Constitution vests judicial power “in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” U.S. district courts are the federal trial courts in each state, hearing cases under federal jurisdiction (disputes between citizens of different states, or cases involving the Constitution or federal law). Decisions of district courts may be appealed to one of 12 U.S. courts of appeals, organized by geographic “circuit.” Those courts' decisions may in turn be appealed to the U.S. Supreme Court — not as a matter of right, but only when the Court grants certiorari (review), typically when two or more circuit courts disagree on the same point of law or a major constitutional question is at stake. If the Supreme Court denies certiorari, the lower court's ruling stands as binding.

The state court structure parallels the federal one: state district courts, then state appellate courts, then a state supreme court. The U.S. Supreme Court may review a state supreme court decision only when a question of federal law is involved; otherwise the state supreme court's ruling is final.

Legal Routes for EEO Complaints

The chapter's Figure 2.2 maps the possible routes for an EEO complaint. The simplest and least costly route is an informal, out-of-court settlement with the employer — but many employers lack an established mechanism for this, or employees don't know it exists. Absent that, a complainant escalates to more formal means: state and local fair employment practice agencies (where they exist), federal regulatory agencies (the EEOC or the OFCCP), or the federal and state district courts. Litigation is described as “a luxury few can afford,” which is why the chapter's practical advice to employers is to build a sound internal complaint system before problems escalate to formal proceedings.

No law has ever precisely defined “discrimination.” In the employment context, the chapter treats it broadly as giving an unfair advantage or disadvantage to members of one group relative to another, usually resulting in denied or restricted employment opportunities. Selection always implies exclusion, and exclusion based on demonstrably job-related criteria is proper. Unlawful discrimination exists only when candidates are excluded on a prohibited basis unrelated to the job — age, race, gender, or disability, for example.

Disparate (Unequal) Treatment

Disparate treatment rests on an intention to discriminate, including retaliatory intent against someone who opposed discrimination or participated in an investigation. The chapter names three subtheories:

1. Direct evidence of intent — proven through open expression of hatred, disrespect, or inequality knowingly directed at a group (e.g., a blanket exclusionary policy against a disability irrelevant to the job).
2. Circumstantial evidence of intent (see Schwager v. Sun Oil Co. of Pa., 1979), including statistical evidence used to circumstantially prove systematic discrimination against a class.
3. Mixed-motive cases — a hybrid theory relying on both direct evidence of an impermissible motive and proof that the employer's stated legitimate reason is pretext for illegal discrimination.

Adverse Impact (Unintentional Discrimination)

Adverse impact occurs when identical standards applied to everyone nonetheless produce a substantial difference in outcomes (selection, promotion, layoffs) for one group, and the standard is unrelated to job success. The chapter's illustrative example: a minimum height requirement of 5'8" for police cadets is neutral on its face but disadvantages Asians, Hispanics, and women. To use such a requirement, the employer must show it is necessary to perform the job.

Employers in the public and private sectors, employment agencies, unions, and joint labor–management apprentice committees are all subject to nondiscrimination laws. Government contractors and subcontractors are additionally subject to executive orders, which carry the force of law even though issued unilaterally by the president (and can be altered unilaterally as well). The chapter lists ten federal laws of broad scope that every HR professional should understand at the level of major legal principle, in this order:

1. The U.S. Constitution — Thirteenth and Fourteenth Amendments
2. Civil Rights Acts of 1866 and 1871
3. Equal Pay Act of 1963
4. Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972)
5. Age Discrimination in Employment Act of 1967 (as amended in 1986)
6. Immigration Reform and Control Act of 1986
7. Americans with Disabilities Act of 1990 (as amended in 2008)
8. Civil Rights Act of 1991
9. Family and Medical Leave Act of 1993
10. Uniformed Services Employment and Reemployment Rights Act of 1994

The Thirteenth and Fourteenth Amendments

The Thirteenth Amendment prohibits slavery and involuntary servitude; any form of discrimination can be treated as an incident of slavery or involuntary servitude and thus subject to legal action under it. The Fourteenth Amendment guarantees equal protection of the law for all citizens. Both amendments granted Congress the constitutional power to enact enforcing legislation — the source of power from which all subsequent civil rights legislation originates.

Civil Rights Acts of 1866 and 1871

The 1866 Act grants all citizens the right to make and enforce employment contracts; the 1871 Act grants all citizens the right to sue in federal court for deprivation of constitutional rights or privileges. It applies only to “persons within the jurisdiction of the United States” and does not reach discriminatory conduct occurring overseas (Peikes & Mitchell, 2006). Once viewed narrowly as a Reconstruction-era racial remedy, the 1866 Act was reinterpreted in Johnson v. Railway Express Agency (1975): the Supreme Court held that Section 1981 also provides a federal remedy against private-employment race discrimination — a powerful one. The Civil Rights Act of 1991 amended the 1866 Act so protection covers all aspects of employment, not just hiring and promotion. The 1866 Act allows jury trials and compensatory and punitive damages for intentional racial and ethnic discrimination, covers employers of any size (even under 15 employees), and the Supreme Court has ruled employees may sue for retaliation under it (Smith, 2008).

In 1987 the Supreme Court unanimously broadened the 1866 Act's definition of “race”: because race was equated with ethnicity during Reconstruction-era debate, Arabs, Jews, and other ethnic groups thought of as “white” are not barred from suing under it — Congress intended to protect identifiable classes subjected to intentional discrimination because of ancestry or ethnic characteristics.

Equal Pay Act of 1963

Passed as an amendment to the Fair Labor Standards Act (FLSA) of 1938, the Equal Pay Act requires that men and women in the same establishment be paid equally for work substantially equal in skill, effort, responsibility, and working conditions. Pay differentials are legal if based on seniority, merit, a quality/quantity-of-work measurement system, or any factor other than sex (shift differentials, completion of job-related training). The EEOC administers the Act — the first in a series of 1960s federal civil rights laws — receiving roughly 1,000 complaints per year and recovering $8.1 million for aggrieved individuals in 2016 alone (excluding litigation proceeds). Violations are treated as unpaid minimum wage or overtime under the FLSA; correcting an inequity ordinarily means raising the lower rate. In 2011, Novartis Pharmaceutical Corporation settled a sex-discrimination suit for $152.5 million.

Equal Pay for Jobs of Comparable Worth

The chapter distinguishes two standards precisely: the Equal Pay Act requires equal pay for men and women doing substantially equal work; comparable worth would require equal pay for work of equal value to the employer even across dissimilar jobs (e.g., librarian and electrician). Existing federal law does not support the comparable-worth standard, though some states and cities require it for public employees. The chapter notes an irony: the Equal Pay Act sought to eliminate gender as a wage basis, while comparable worth, by its nature, requires labeling some jobs “male” and others “female.” Court decisions imply that pay differentials between dissimilar jobs will not be prohibited if shown to rest on the content and value of the work and the employer's need to attract/retain talent in competitive labor markets — the appropriate fix is removing barriers to equal pay for equal work, not abolishing supply and demand.

The 1964 Civil Rights Act splits into several titles covering different facets of discrimination (voting rights, public accommodations, public education). Title VII, as amended by the Equal Employment Opportunity Act of 1972, is the principal body of federal fair-employment legislation, and it established the EEOC to ensure employer, agency, and union compliance.

Section 703(a) — The Core Prohibition

Section 703(a) makes it unlawful for an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin; or to limit, segregate, or classify employees or applicants in a way that would deprive them of employment opportunities on those same bases. The chapter stresses that race and color are not synonymous — intra-race or appearance (“shade of skin”) discrimination is distinct from, but just as illegal as, racial discrimination; whites can be guilty of color discrimination (favoring light-skinned over dark-skinned Black applicants) without it being racial discrimination.

Retaliation and Employment Advertising

Section 704(a) prohibits retaliating against an employee or applicant for opposing an unlawful practice or participating in a Title VII investigation, proceeding, or hearing — this is “protected activity.” Retaliation claims now account for more than two of every five EEOC charges, surpassing race discrimination as the most common claim type; most involve discharge or suspension. Section 704(b) prohibits employment ads that indicate a preference or limitation on a prohibited factor, unless tied to a bona fide occupational qualification (BFOQ).

The 1972 Equal Employment Opportunity Act expanded Title VII to cover public and private employers (including state/local governments and educational institutions) with 15 or more employees, labor organizations with 15+ members, and both public and private employment agencies — with exceptions for private clubs, workplaces on an Indian reservation, and religious organizations (which may discriminate on the basis of religion). Federal government EEO and affirmative action compliance is monitored by the U.S. Office of Personnel Management and the Merit Systems Protection Board, not the EEOC.

Two further 1973 provisions matter: denial, termination, or suspension of government contracts is barred (absent a special hearing) if the contractor has an accepted affirmative action plan for the same facility within the prior 12 months; and back-pay awards in Title VII cases are limited to two years before the charge was filed — so a charge filed in 2014 that resolves in the employee's favor in 2018 could yield up to six years of back pay (2012–2018).

The Six Exemptions to Title VII Coverage

Figure 2.4 in the chapter lists six specific exemptions. Initially expected to blunt the law's impact significantly, the EEOC and courts have instead interpreted them narrowly.

Age Discrimination in Employment Act of 1967 (as Amended in 1986)

The ADEA proscribes age discrimination against employees 40 and over unless the employer can show age is a BFOQ for the job. If an employer claims layoffs rested on nonage factors like performance or needed skills, the Supreme Court has ruled the employer bears the burden of proving the policy was in fact based on those nonage factors (Winerip, 2013). The EEOC administers the ADEA and won $88.2 million for aggrieved individuals in 2016 alone.

A key ADEA objective is preventing financially troubled companies from targeting older employees during cutbacks. However, the EEOC allows older employees to waive their right to sue (e.g., in exchange for sweetened early-retirement benefits). Under the Older Workers Benefit Protection Act, an employee without a pending claim has 21 days to consider such a waiver (45 days for a group reduction in force or voluntary group incentive program), plus seven days after signing to revoke it. Courts uphold severance agreements that follow the rules and are written clearly enough for employees to understand what they're agreeing to (Parsons v. Pioneer Hi-Bred Int'l Inc., 2006).

Immigration Reform and Control Act of 1986

This Act applies to every U.S. employer regardless of size and every employee regardless of employment status. It makes enforcing national immigration policy every employer's job: employers must not hire or continue employing anyone not legally authorized to work in the U.S., and within three days of hire must verify identity and work authorization and sign (under penalty of perjury) Form I-9. Experts advise firms to copy accepted documentation and self-audit all I-9 forms (not just those of one ethnic group) to demonstrate good faith.

Employers may not discriminate on national origin, but when two applicants are equally qualified, an employer may choose a U.S. citizen over a non-citizen. Penalties are severe: fines of $100–$1,000 per unverified employee, plus criminal sanctions for a pattern of violations. In fiscal year 2016, U.S. Immigration and Customs Enforcement made 239 criminal arrests tied to 1,279 I-9 inspections, mostly of owners and managers who knowingly employed illegal workers. E-Verify — an Internet-based system cross-checking I-9 data against DHS, SSA, and State Department records — is widely recommended as the single best compliance tool.

Americans with Disabilities Act of 1990 (as Amended in 2008)

Almost one in five people in the U.S. has at least one disability (CDC, via Calfas, 2015), and the employment rate for working-age people with disabilities is less than half that of people without disabilities (19.1% vs. 68.5%; Schuman, 2017). The ADA applies to all employers with 15 or more employees and prohibits discriminating against a “qualified individual with a disability” — someone who can perform the “essential” functions of a job with or without accommodation. A written job description is key evidence of what counts as essential. The 2008 ADA Amendments Act bars considering mitigating measures (except ordinary eyeglasses/contacts) when determining disability status. A disability is a physical or mental impairment substantially limiting a major life activity (walking, talking, seeing, hearing, learning); protection covers people who currently have an impairment, have a record of one, or are regarded by the employer as having one.

Rehabilitated drug and alcohol abusers are protected; current drug abusers may be fired. Alcoholics are covered and must be given a firm choice to rehabilitate or face career-threatening consequences. People who test positive for HIV are protected. Employers need not lower work standards, tolerate misconduct, or create make-work jobs.

Five Major Implications of the ADA

1. Public-facing buildings must be made accessible (ramps, elevators, amplified telephones) unless doing so causes “undue hardship” — expense alone is no excuse.
2. Employers must make “reasonable accommodations” for qualified applicants/employees (restructured jobs and training, modified schedules, user-friendly equipment); practices that help include top-management commitment, partnering with disability agencies, centralizing hiring oversight, redesigning jobs with technology (e.g., Walgreens replacing keyboards with icon-based touch screens), structured orientation, publicizing successes, and in-service training on distinguishing “essential” from “marginal” job functions.
3. Preemployment physicals are permitted only if required of all employees and only after a conditional offer of employment; pre-offer inquiries about workers' comp history or illegal drug use history are barred, though an employer may describe essential functions and ask if the applicant can perform them (compare the ADA-violating “Do you have back problems?” to the permissible “This job requires lifting 50 pounds hourly — can you do that?”).
4. Medical information must be kept separate from other personnel records.
5. Drug-testing rules remain intact: employers may still prohibit and test for alcohol and illegal drug use at work; even where medical marijuana is legal under state law (23 states, at the time of writing), employers can still fire someone testing positive because federal law provides no exception for medicinal marijuana.

The EEOC enforces the ADA. In cases of intentional discrimination, individuals may be awarded compensatory and punitive damages up to $300,000 if the employer acted “with malice or reckless indifference” (Kolstad v. American Dental Association, 1999).

The Civil Rights Act of 1991 overturned six 1989 Supreme Court decisions and expanded remedies across the board. Its key provisions are worth learning as a set, since discussion prompts often ask about “the 1991 Act's impact” generally.

Monetary Damages and Jury Trials

Victims of intentional discrimination based on race, gender (including sexual harassment), religion, or disability can seek compensatory damages for pain and suffering plus punitive damages, and may demand a jury trial — previously only age-discrimination plaintiffs could demand a jury. Compensatory and punitive damages are available only from nonpublic employers (public employers cap at $300,000) and are not available for adverse impact (unintentional) cases. They may not be awarded in an ADA case where the employer made a good-faith accommodation effort. The combined damages cap scales with employer size.

Victims of intentional race or national-origin discrimination may instead sue under the Civil Rights Act of 1866, which has no cap on compensatory or punitive damages. Because intentional disability discrimination is also a basis for compensatory/punitive damages (absent a good-faith accommodation effort), the 1991 Act effectively supplies the sanctions for ADA violations.

Other Key Provisions

• Adverse impact cases: the plaintiff must identify a specific employment practice causing the disparity; if successful, the burden shifts to the employer to prove the practice is “job related for the position in question and consistent with business necessity.”
• Protection in foreign countries: Title VII and ADA protections extend to U.S. citizens employed at a foreign facility owned or controlled by a U.S. company — unless compliance would violate the foreign country's own law.
• Racial harassment: the 1991 Act amended the 1866 Act so workers are protected from intentional discrimination across all aspects of employment, not just hiring and promotion.
• Challenges to consent decrees: once a court order or consent decree resolves a lawsuit, nonparties to the original suit cannot challenge it.
• Mixed-motive cases: an employer is guilty of discrimination if a prohibited factor was shown to be a motivating factor, even alongside lawful factors — but in Gross v. FBL Financial Services Inc. (2009) the Supreme Court held that in an age case, the plaintiff must prove that but for age, the adverse action would not have occurred.
• Seniority systems: a seniority system that intentionally discriminates against a protected group can be challenged within 180 days of (1) the system's adoption, (2) an individual becoming subject to it, or (3) a person being injured by it.
• Race norming: the 1991 Act made it unlawful to adjust test scores, use different cutoff scores, or otherwise alter employment-test results based on race, color, religion, sex, or national origin — outlawing the prior practice of within-group percentile scoring.
• Extension of coverage: protection now reaches employees of the U.S. Senate, presidential political appointees, and state-level staff of elected officials (U.S. House employees are separately covered by a 1988 House resolution).

Family and Medical Leave Act of 1993 (FMLA)

The FMLA covers private-sector employers with 50 or more employees, including part-timers who work 1,250 hours over 12 months (about 25 hours/week average). It grants up to 12 weeks of unpaid leave per year for birth, adoption, or foster placement of a child within a year of arrival; to care for a spouse, parent, or child with a serious health condition; or for the employee's own serious health condition preventing work. The employer decides whether an absence qualifies as FMLA leave based on employee-provided information.

Employers can require medical certification and a second opinion, and can exempt key salaried employees among their highest-paid 10 percent. Employers must maintain health insurance during leave and restore the employee's previous (or comparable) job afterward. The U.S. Department of Labor administers enforcement. The law's overall bite was softened considerably by exempting companies with fewer than 50 employees — 95 percent of all businesses.

A 2008 amendment extended FMLA to military families: up to 26 weeks of unpaid leave to care for wounded U.S. military personnel, and 12 weeks of leave to immediate family of soldiers, reservists, and National Guard members facing a “qualifying exigency” (the term is undefined but examples include overseas assignment, recall to active duty, and troop mobilization). Many employers voluntarily exceed the law — in one survey, 44% offered job-protected leave beyond what FMLA requires.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Regardless of employer size, USERRA bars denying initial employment, reemployment, promotion, or benefits based on membership or potential membership in the uniformed services. Both public and private employers must promptly reemploy returning service members (e.g., from National Guard or activated reserve duty) in the position — and with the seniority — they would have had if they had never left, and must maintain health benefits during their absence (though not make up the pay gap between military and civilian salary).

To be protected, the employee must give advance notice. Employers need not always rehire (e.g., dishonorable discharge, or changed circumstances like bankruptcy or layoffs making reemployment unreasonable), but the burden of proof almost always falls on the employer. The Veterans' Employment and Training Service of the U.S. Department of Labor administers USERRA.

State Fair Employment Practices Agencies (FEPAs)

Most states have nondiscrimination laws specifying public policy, coverage, and enforcement powers, often vested in a state fair employment practices agency (FEPA).

The Equal Employment Opportunity Commission (EEOC)

The EEOC is an independent regulatory agency with five commissioners (one serving as chair), appointed by the president and confirmed by the Senate for five-year terms, with no more than three from the same political party. Like the OFCCP, the EEOC sets policy and determines, case by case, whether “reasonable cause” exists to believe unlawful discrimination occurred — though courts give no legal standing to that determination; each Title VII case is a new proceeding.

The EEOC is a busy agency: in 2016 it received 91,503 complaints and resolved 97,443 (including carryover from prior years), securing more than $482 million for victims. Retaliation is the largest complaint category (45.9%), followed by race (35.3%), disability (30.7%), sex (29.4%), and age (22.8%) — percentages exceed 100% because some charges allege multiple bases.

The Complaint Process

Complaints filed with the EEOC are first deferred to a state or local FEPA with statutory enforcement power, if one exists. After 60 days the EEOC may begin its own investigation regardless of state action (and the state/local agency may immediately re-defer to the EEOC). The EEOC follows a three-step process — investigation, conciliation, litigation — encouraging settlement and mediation throughout; in 2016 it conducted 15,800 successful mediations securing over $20.3 million. If conciliation fails, cases against private employers go to federal district court, while cases against public employers are referred to the Department of Justice.

Beyond processing complaints, the EEOC issues written regulations and guidelines — on pregnancy, age, sex, religion, national origin, pay, retaliation, employee selection procedures (jointly with three other federal agencies), affirmative action programs, and preemployment inquiries. These guidelines are not laws, but the Supreme Court in Albemarle Paper Co. v. Moody (1975) held they are entitled to “great deference.” The EEOC also performs information gathering: any organization with 100+ employees must file an annual EEO-1 form detailing counts of women and four minority groups across nine job categories, which the EEOC analyzes to uncover discrimination patterns and pursue class-action suits.

Office of Federal Contract Compliance Programs (OFCCP)

Part of the U.S. Department of Labor, the OFCCP ensures that roughly 200,000 federal contractor employers comply with nondiscrimination laws and regulations, on the principle that federally funded employment opportunities should be available to all Americans equitably. “Contract compliance” means contractors must satisfy EEO and affirmative action requirements across recruitment, hiring, training, pay, seniority, promotion, and benefits — in addition to meeting contract quality/timeliness terms. Contractors with more than $50,000 in government business and 50+ employees must prepare and implement written affirmative action plans.

Where job categories include fewer women or minorities “than would reasonably be expected by their availability,” contractors must set goals and timetables (subject to OFCCP review). Goals differ from quotas: quotas are inflexible, goals are flexible objectives achievable in a realistic timeframe. OFCCP suggests eight criteria for determining expected representation, including local labor-area population and availability of qualified women/minorities and the contractor's realistic training capacity. In 2016 the OFCCP conducted 1,391 compliance reviews and recovered roughly $6 million in back pay and other costs; the number of debarred companies varies yearly from none to about eight.

The judicial branch interprets and enforces laws that, by necessity, are written in general rather than specific terms and cannot cover every contingency. Legal interpretations create case law — precedent that guides but doesn't fully determine future decisions.

Griggs v. Duke Power Company (1971)

This landmark case barred Duke Power from requiring a high school diploma or a passing intelligence-test score as a condition of employment or transfer, because neither standard was shown to be significantly related to job performance. The Court's own words: “What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance… What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.” The ruling established four general principles that recur throughout the rest of the chapter:

1. Title VII prohibits not just open, deliberate discrimination but also practices fair in form yet discriminatory in operation — i.e., adverse impact is officially established as a category of illegal discrimination, unless the practice is job related. (Example: using prior arrests to screen candidates is “neutral” on its face, but if arrests aren't job related and disproportionately affect one race, using them is discriminatory in operation.)
2. The employer bears the burden of proving any employment requirement is related to job performance. Per the Civil Rights Act of 1991, the plaintiff must first identify the specific practice causing the disparity; if successful, the burden then shifts to the employer.
3. Intent is irrelevant — the plaintiff need not prove discrimination was intentional. If a standard produces discriminatory results, it is unlawful regardless of motive.
4. Job-related tests and other employment selection procedures remain legal and useful.

Watson v. Fort Worth Bank & Trust (1988)

This case extended Griggs's logic to subjective assessment procedures like interviews: if they produce adverse impact against a protected group, they must satisfy the same job-relatedness standard as objective procedures such as written tests. As in Griggs, intent need not be proven — adverse impact from interview ratings is presumed unlawful unless the employer can show some relationship between the ratings' content and the job's requirements. A formal validation study isn't strictly required, though the Court agreed unanimously that one is possible even for subjective devices. The chapter's practical lesson: have a legitimate, job-related reason for every interview question, limit questions to “need to know” rather than “nice to know,” monitor for adverse impact, and validate the method before it's challenged.

Albemarle Paper Co. v. Moody (1975) and Washington v. Davis (1976)

These two rulings spelled out in detail what “job relevance” requires: adequate job analysis; relevant, reliable, unbiased job-performance measures; and evidence that the test forecasts job performance equally well for minorities and nonminorities.

Connecticut v. Teal (1982)

This case addressed the “bottom line” defense: suppose a non-job-related test produces adverse impact at an early hiring stage, but among those who pass it, proportionately more members of the affected group end up hired, so the overall (“bottom line”) hiring numbers show no adverse impact. The Court ruled Title VII grants rights to individuals, not groups — it is no defense to discriminate against certain individuals at an intermediate step and then “make up” for it by favorable treatment of other group members later. If any intermediate step produces adverse impact and isn't job related, the bottom-line result doesn't cure it.

Personal History Requirements

Qualification requirements based on personal background — minimum education or experience, wage garnishments, arrest or conviction records — may violate Title VII if they deny or restrict equal employment opportunity. That said, education requirements are typically upheld in court when the job is highly technical, involves public-safety risk, or requires advanced knowledge; when adverse impact can't be established; and when criterion-related validity or an effective affirmative action program is offered as a defense (Meritt-Haston & Wexley, 1983, reviewing 83 cases). Similarly, experience requirements (per a 45-case review by Arvey & McGowen, 1982) are upheld for jobs with high economic/human risk of failure (e.g., airline pilots) or greater complexity, but not upheld when they perpetuate a racial imbalance, past discrimination, or are applied inconsistently across groups.

Arrest records are not valid screening bases, since an arrested person is presumed innocent until proven guilty. Conviction records may be used only if the conviction directly relates to the job (e.g., embezzlement conviction and a bank teller position; cf. Hyland v. Fukuda, 1978), and employers should weigh the offense's nature and gravity, time elapsed since conviction/sentence completion, and whether the candidate is a repeat offender. As of 2017, 24 states and 150+ cities/counties had passed “ban the box” laws removing the conviction-history checkbox from applications, requiring employers to interview for qualification first and investigate conviction relevance afterward.

Both sexes must be given equal opportunity to compete for jobs unless sex is a genuine BFOQ (actor, actress). Sex-discrimination cases have been argued under both theories: disparate treatment (sexual harassment) and adverse impact (physical ability tests). Gender stereotyping — often an unwitting managerial preference — remains a live source of litigation.

Sexual Orientation

No federal law in the private sector specifically bars sexual-orientation discrimination, though federal government workers are protected. The EEOC has taken the position that sexual-orientation discrimination is necessarily sex discrimination, since it relies on gender-based stereotypes about how men and women should behave and whom they should date; the Justice Department has argued the opposite; federal appeals courts have issued contradictory rulings. Many state, county, and local laws already prohibit discrimination based on sexual orientation, gender identity, and gender expression. The chapter frames this as an open question the Supreme Court may ultimately have to resolve.

Pregnancy Discrimination

Pregnancy discrimination means treating an applicant or employee unfavorably because of pregnancy, childbirth, or a related medical condition. An employer is never required to give pregnant employees special treatment — if it provides no disability benefits or sick leave to other employees, it need not provide them to pregnant employees either. The amended Guidelines on Discrimination Because of Sex state that the BFOQ exception for sex “should be interpreted narrowly”: assumptions about women's turnover rates, sex-role stereotypes, and employer/client/customer preferences do not justify it, and courts have disallowed unvalidated physical requirements (minimum height/weight, lifting strength, maximum hours).

Defining Sexual Harassment

Per the EEOC's Guidelines on Discrimination Because of Sex, sexual harassment covers unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct when submission is explicitly or implicitly a term or condition of employment, when submission is used as the basis for an employment decision, or when the conduct creates an intimidating, hostile, or offensive working environment. The chapter compresses this to one word: unwelcome. For a grievance, the complainant should be able to show either that they told the harasser to stop or that the conduct was so offensive the harasser should have known it was unwelcome.

There are two main types: quid pro quo harassment (harassment made a condition of employment) and hostile-environment harassment (an intimidating, hostile, or offensive atmosphere).

Four Landmark Harassment Cases

The Civil Rights Act of 1991 lets sexual-harassment victims — previously limited to recovering missed wages — collect a range of punitive damages from employers who mishandle a complaint.

Eight Preventive Actions Employers Should Take

1. A firm statement from the CEO that sexual harassment will not be tolerated.
2. A workable, publicized definition of sexual harassment (staff meetings, bulletin boards, handbooks, orientation) with concrete examples of inappropriate behavior.
3. An effective complaint procedure with multiple reporting channels (supervisor, senior manager, HR, hotline), with every employee signing written acknowledgment of the policy.
4. A clear statement of sanctions for violators and protections for complainants.
5. Prompt, confidential investigation of every claim, however trivial it seems.
6. Preservation of all investigative records in a central location.
7. Regular training for all managers and supervisors, including top management, on modeling appropriate behavior and responding to complaints.
8. Follow-up to confirm the harassment has actually stopped.

Age Discrimination in Practice

To lawfully discriminate against employees over 40, an employer must show a “business necessity” — that age is a factor directly related to safe and efficient operation. When the ADEA was enacted in 1967, 45% of job announcements included a maximum-age listing (e.g., “over 35 need not apply”); today age discrimination is subtler but persists, often surfacing after age 50. The chapter's example of a modern “code word”: job ads listing “digital native” as a requirement, which plays into stereotypes that older “digital immigrants” will be slow to adapt, reluctant to learn, and costly to train.

The Prima Facie Case for Age Discrimination

To establish a prima facie case (facts presumed true until proven otherwise), an aggrieved individual must show, per Schwager v. Sun Oil Co. of Pa. (1979):

1. They are within the protected age group (over 40).
2. They were doing satisfactory work.
3. They were discharged despite satisfactory performance.
4. A younger person filled the position.

Aggrieved employees who reach a jury succeed 78% of the time in state and local trials. Nearly 21,000 age-discrimination charges were filed with the EEOC in 2016, recovering $88.2 million.

Age-discrimination complaints most often follow terminations, but also arise from reductions in force and decisions on discipline, selection, or promotion, and can be brought under either disparate treatment or adverse impact theory. Employers may still fire unproductive workers — the key is basing the decision on ability, not age.

“English-Only” Rules

Employees who speak another language argue that English-only rules are unrelated to job ability and fall harshly on them because of national origin. The EEOC's Enforcement Guidance on National Origin Discrimination (2016d) states that blanket English-only rules lacking business justification amount to unlawful national-origin discrimination, and many courts agree.

It is not automatically illegal to require English fluency or discipline a rule violation, but the employer must show a legitimate business need — for example, safety, where medical workers or firefighters must understand and be understood. Whether a restrictive language policy (applied only in some times/areas of the workplace) is legal depends on whether it's job related and consistent with business necessity; “business convenience” alone is not enough justification. Employers should tell employees in advance when English-only applies and what violating it means.

Seniority Systems

Seniority denotes length of employment. A seniority system allots employees ever-improving rights and benefits as their length of pertinent employment increases, alone or combined with non-seniority criteria (California Brewers Association v. Bryant, 1982). One recurring conflict: if layoffs happen, recently hired members of protected groups (hired through diversity efforts) may lose their jobs first due to low seniority, undoing workforce-diversity progress.

In two landmark rulings — Firefighters Local Union No. 1784 v. Stotts (1984, decided under Title VII) and Wygant v. Jackson Board of Education (1986, decided under the Fourteenth Amendment's equal protection clause) — the Supreme Court held an employer may not protect recently hired Black employees' jobs at the expense of more-senior white employees. Voluntary seniority-policy modifications for affirmative action remain proper, but where a collective-bargaining agreement exists, the union's consent is required, and courts require the union be a party to any decree modifying a bona fide seniority system.

On seniority versus disability accommodation: in US Airways v. Barnett (2002), the Supreme Court ruled an employer is not required to give a disabled employee a job ahead of a more-senior employee when seniority is a fundamental factor in such decisions — but seniority does not automatically trump the ADA; the question is resolved case by case.

Preferential Selection and “Reverse Discrimination”

Programs helping minorities and women can place qualified white males at a competitive disadvantage. Title VII treats “reverse discrimination” (against whites, favoring protected-group members) as just as unacceptable as discrimination against protected groups (McDonald v. Santa Fe Transportation Co., 1976). The chapter frames the underlying tension as a riddle: how to make things fair for historically disadvantaged groups while still treating people as equal individuals.

Court cases and the Civil Rights Act of 1991 clarify several rules: courts may order (and employers may voluntarily adopt) affirmative action plans with goals and timetables to address underutilization; individuals not party to the original suit can't reopen court-approved settlements; plans need not target only identified victims and may provide general class-wide relief; and while courts almost never approve a plan resulting in white employees losing jobs through layoffs, they may sanction plans imposing limited burdens on whites in hiring and promotion (e.g., postponement).

The University of Michigan Cases

The Court's rationale was not compensating for past discrimination but obtaining the educational benefits of a diverse student body; under Grutter's approach, a nonminority applicant with a distinctive contribution could sometimes be preferred over a minority applicant with better grades and test scores. A 2016 ruling involving the University of Texas reaffirmed that race may be used as a “plus factor” if each applicant is evaluated individually. The chapter's bottom line for corporate hiring policy mirrors the Court's own double message: diversity efforts are acceptable, but quotas are not.

Cascio and Aguinis close every chapter with an “Evidence-Based Implications for Practice” list. For Chapter 2, it functions as a compressed legal checklist — read this section again immediately before any quiz or discussion post covering the chapter.

• The intent of civil rights laws is to “level the playing field” by providing equal opportunities in all aspects of employment regardless of race, sex, age, national origin, or disability status.
• Employers must know and understand the regulations and guidance from the EEOC and the OFCCP.
• For tests and interviews, employers should have a legitimate, job-related reason for every question asked — limit questions to “need to know,” not “nice to know,” information, monitor outcomes for adverse impact, and develop validity evidence for all selection methods.
• Employers should be able to demonstrate the job relevance of any personal-history information used (e.g., conviction records).
• Sexual harassment (quid pro quo or hostile environment) is illegal sex discrimination under Title VII; employers should proactively train employees and supervisors to recognize it and know complaint procedures and sanctions.
• For age discrimination, employers can still fire unproductive workers — the key is basing decisions on ability, not age.
• To avoid national-origin discrimination claims, employers should not require English at all times and in all workplace areas; employees should be told in advance when the rule applies and what violating it means.
• Legitimate seniority systems generally take precedence over affirmative action considerations and disability accommodation, but that could change given particular circumstances.
• Diversity efforts are acceptable, but quotas are not.

Chapter 2 ends with ten discussion questions. Each is paired below with a concise model answer grounded directly in the chapter's content.

1. What advice would you offer to an employer that is considering an “English-only” rule in the workplace?

Advise caution: a blanket English-only rule with no business justification is presumptively unlawful national-origin discrimination under EEOC guidance, and courts largely agree. The employer should limit the rule to specific times and areas where there is a genuine business necessity — such as safety-critical roles where mutual understanding is essential — rather than justifying it merely as a convenience. Employees should be told in advance exactly when the rule applies and what the consequences of violating it are.

2. Prepare a brief outline for the senior management of your company that illustrates the requirements and expected impact of the Family and Medical Leave Act.

The FMLA applies to private employers with 50+ employees and covers workers who have logged 1,250 hours over the prior 12 months. It provides up to 12 weeks of unpaid, job-protected leave for a new child, to care for a seriously ill spouse, parent, or child, or for the employee's own serious health condition, with health benefits maintained throughout and reinstatement to the same or a comparable job. Management should expect to designate leave status based on employee-supplied medical information, may require certification or a second opinion, and can exempt the top 10% of salaried earners — but should note that nearly all small businesses (under 50 employees) are exempt entirely.

3. What specific steps would you recommend to a firm in order to ensure fair treatment of persons with disabilities?

Secure top-management commitment to accommodation, partner with disability agencies, and centralize hiring oversight to ensure consistency. Redesign jobs and use accessible technology where feasible, provide structured orientation for employees with disabilities and their coworkers/supervisors, and train all managers on distinguishing “essential” from “marginal” job functions. Keep medical information separate from personnel files, and delay any physical exam until after a conditional job offer, applying it to all employees equally.

4. Prepare a brief outline of an organizational policy on sexual harassment. Be sure to include grievance, counseling, and enforcement procedures.

An effective policy starts with a clear statement from the CEO that harassment will not be tolerated, paired with a concrete, publicized definition (with examples) distributed via handbooks and orientation, requiring signed employee acknowledgment. It needs multiple reporting channels (direct supervisor, senior manager, HR, or hotline) so employees always have a comfortable path to complain, plus a defined sanctions structure and protection against retaliation for complainants. Every complaint, however minor it appears, should get a prompt, confidential investigation with centrally preserved records, and the organization should provide regular manager training and follow up after each case to confirm the behavior actually stopped.

5. What guidance would you give to an employer who asks about rights and responsibilities in administering a testing program?

Title VII permits professionally developed ability tests as long as they aren't used to discriminate, but since Griggs v. Duke Power (1971), any test producing adverse impact must be demonstrably job related — supported by adequate job analysis and validity evidence that it forecasts performance equally well across groups. The employer bears the burden of proving job-relatedness once the plaintiff identifies the adverse-impact practice, and this obligation extends to subjective methods like interviews (Watson v. Fort Worth Bank & Trust, 1988), so employers should validate every selection method before it's ever challenged in court.

6. Your company provides services to the federal government. What information will the company need to provide to the OFCCP to ensure contract compliance?

As a federal contractor with more than $50,000 in government business and 50+ employees, the company must prepare and maintain a written affirmative action plan covering recruitment, hiring, training, pay, seniority, promotion, and benefits. Where job categories show fewer women or minorities than their availability would predict, the company must establish specific goals and timetables (not rigid quotas) subject to OFCCP review, using criteria such as the relevant labor-area population and the pool of qualified women and minorities reasonably available for recruitment or training.

7. You are a U.S. citizen who works for a Swiss-owned multinational firm. You have been offered a three-year expatriate assignment in Cairo, Egypt. Will U.S. civil rights laws apply?

Yes, in general: Title VII and ADA protections extend to U.S. citizens employed overseas at a facility owned or controlled by a U.S. employer. The key complication here is that the firm is Swiss-owned rather than U.S.-owned or U.S.-controlled, which could place the assignment outside that protection depending on the exact control relationship; and even where protection would otherwise apply, the employer does not have to comply with U.S. discrimination law if doing so would violate the law of the host country (Egypt, in this case).

8. As an employer, what obligations do you have to employees who are returning from active military service?

Under USERRA, the employer must promptly reemploy a returning service member in the position — and with the seniority — they would have held had they never left, regardless of the employer's size, and must maintain health benefits during their absence (though not make up any pay difference between military and civilian salary). The employer isn't required to rehire in narrow circumstances such as a dishonorable discharge or if changed conditions like bankruptcy or layoffs make reemployment genuinely unreasonable, but the burden of proving that falls on the employer, and the employee must have given advance notice of their service to be protected.

9. Many jobs require various levels of experience in order to apply for them. How might you justify such requirements as job related and consistent with business necessity?

Courts are more likely to uphold experience requirements for jobs carrying significant economic or human risk if performance fails (e.g., airline pilots) or for higher-complexity roles, provided the requirement doesn't produce adverse impact that can't be defended, doesn't perpetuate a racial imbalance or past discrimination, and is applied consistently to every candidate regardless of group membership. The strongest justification pairs a documented job analysis showing why the experience level matters for safe or effective performance with evidence — ideally a validity study — tying that experience to actual job outcomes.

10. Your boss asks what adverse impact is in the context of hiring. How would you respond?

Adverse impact is unintentional discrimination: applying the same standard or procedure to every applicant, yet ending up with a substantially different, unfavorable rate of selection for a particular race, sex, or ethnic group, where the standard isn't actually related to job success. The chapter's example is a minimum height requirement of 5'8" for police cadets — neutral on its face, but disadvantaging Asians, Hispanics, and women unless the employer can show the requirement is necessary to perform the job. Unlike disparate treatment, adverse impact never requires proving intent to discriminate — only a demonstrable statistical disparity from a facially neutral practice.

Every bolded or explicitly defined term in Chapter 2, in one line each, in the order the chapter introduces them.

A single table capturing the chapter's ten statutes, its two discrimination theories, and its most-cited cases — everything you need to answer a cold-call question about Chapter 2 without re-reading it.