who are engaged in commercial activity and who employ 15 or more employees for 20 consecutive weeks in a
year are covered by the Act. The Act also sets out the two main ways in which discrimination can be proven:
disparate treatment and disparate impact.
Disparate treatment means that the employee believes that he or she has been discriminated against on the
basis of one of the protected classes set out in the CRA. Proving that the employer engaged in disparate
treatment is a three-step process:
1.
The employee (plaintiff) is required to demonstrate a prima facie (accepted as correct unless proven
otherwise) case of discrimination.
2.
The employer (defendant) must show legitimate, non-discriminatory business reasons for undertaking
the action.
3.
The employee must demonstrate that the reason given by the employer is a mere pretext.
A trier of fact, usually a jury, will use the evidence presented to determine whether discrimination did in fact
occur. If the jury finds for the employee-plaintiff, damages can be awarded, such as what occurred in the
landmark Ann Hopkins case, described in the opening box. If the jury finds for the employer-defendant, no
damages are assessed.
Damages Permissible Under Title VII of the CRA
Up to two years of back pay
Compensatory damages
Punitive damages
Remedial seniority
Costs (e.g., attorney fees and court costs)
Court orders (e.g., reinstatement)
Table 9.4
Disparate impact cases are cases of unintentional discrimination. This type of case occurs when the employer
engages in a practice that has a disproportionately injurious impact on a protected class. Disparate impact
cases are difficult to prove. The burden of responsibility is on the employee-plaintiff to statistically establish
that the action impacts the protected class. The defendant can avoid liability by demonstrating that the
practice is a business responsibility. The burden of proof then shifts to the employee to prove that the alleged
business necessity is a mere pretext. These steps were established in Griggs v. Duke Power Co. Duke Power
required all job applicants to have a high school diploma and to reach a certain minimum score on a
professional intelligence test. Willie Griggs, the plaintiff, established that the rule was racially discriminatory
because only 12 percent of black men in the state had high school diplomas (compared to 34 percent of white
men), and only 6 percent of blacks had passed similar intelligence tests, compared to 58 percent of whites.
Duke Power tried to argue that the provisions were necessary to upgrade the quality of the workforce, but the
court did not agree that this defense was an adequate business-related justification, and the plaintiff was
successful.
106
Chapter 9 Employment and Labor Law
This OpenStax book is available for free at http://cnx.org/content/col30149/1.5