Employment and Labor Law 8th Edition Cihon Solutions Manual 1

Cihon/Castagnera, Employment & Labor Law, 7e Ch 7 Instructor’s Manual 1
Solution Manual for Employment and Labor Law 8th Edition

by Cihon Castagnera ISBN 1133586600 9781133586609
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Chapter 7: GENDER AND FAMILY ISSUES: TITLE VII AND OTHER LEGISLATION
INTRODUCTION
This chapter focuses on discrimination based on gender, family-related issues, and the relevant provisions
of Title VII and other legislation. Title VII protects all individuals from employment discrimination based
on sex or gender, meaning that both men and women are protected from sex discrimination in employment.
Students may find it difficult to differentiate between “sex” and “gender”, but generally speaking, courts
have treated the terms as interchangeable. Employers are allowed to take criteria other than race or color
into account if these criteria are bona fide occupational qualifications (BFOQs). At the end of Chapter
seven, students should have an understanding of Title VII as it relates to gender discrimination, the Family
Medical Leave Act, and sexual harassment.
OUTLINE
I. Gender Discrimination
A. Basic Scope of Statute
1. Title VII prohibits any discrimination in terms or conditions of employment because of an

employee’s sex; it also prohibits limiting, segregating, or classifying employees or applicants
in any way that would deprive individuals of employment opportunities or otherwise adversely
affect their status as employees because of their sex.
2. Both men and women are protected from sex discrimination in employment.
3. Employers who refuse to hire an individual for a particular job because of that individual’s
gender violate Title VII, unless the employer can demonstrate that being of a particular gender
is a bona fide occupational qualification (BFOQ) for that job.
*Bona Fide Occupational Qualification (BFOQ): an exception to the civil rights law that allows an
employer to hire employees of a specific gender, religion, or national origin when business necessity
requires it.
4. The act also prohibits advertising for male or female employees in help-wanted notices (unless
it is a BFOQ) or maintaining separate seniority lists for male and female employees.
B. Dress Codes and Grooming Requirements
1. The act prohibits imposing different working conditions or requirements on similarly

situated male and female employees because of the employee’s gender; some cases have
involved employer dress codes and grooming standards.
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publicly accessible website, in whole or in part.
2. Dress code or grooming requirements need not be identical – the key is that the standards are
related to commonly accepted social norms and are reasonably related to legitimate business
needs.
C. Gender as a BFOQ
1. Title VII does allow employers to hire only employees of one sex, or of a particular religion or
national origin, if that trait is a BFOQ.
2. Section 703(e)(1), which defines the BFOQ exemption, states that:

…it shall not be an unlawful employment practice for an employer to hire and employ
employees, for an employment agency to classify, or refer for employment any individual, for
a labor organization to classify its membership or to classify or refer for employment any
individual … on the basis of his religion, sex, or national origin in those certain instances where
religion, sex, or national origin is a bona fide occupational qualification reasonably necessary
to the normal operation of that particular business or enterprise.…
3. In other words, the safe and efficient performance of the job in question requires that the
employee be of a particular gender, religion, or national origin.
4. Employer convenience, customer preference, or co-worker preference is not sufficient.
CASE 7.1 DIAZ V. PAN AMERICAN WORLD AIRWAYS

442 F.2d 385 (U.S. Court of Appeals for the Fifth Circuit, 1971)
SUMMARY:
Background: Diaz, a male applied for a flight attendant job with Pan Am but was rejected because Pan Am
had a policy of hiring only females for that position. Diaz filed an unsuccessful claim with the EEOC,
alleging that Pan Am had unlawfully discriminated against him based on sex. Diaz then filed a class action
suit alleging that Pan Am had violated Section 703 of Title VII. The Trial Court found that Pan Am’s
passengers overwhelmingly preferred to be served by female flight attendants and that given the unique
environment of an aircraft cabin, female flight attendants were better able to attend to the psychological
needs of passengers. The trial court found that the hiring process used would make it difficult to find males
with the necessary qualities to perform the job. The court also held that hiring females only was the best
method for screening out applicants likely to be unsatisfactory, and to require Pan Am to hire male flight
attendants would likely reduce average flight attendance performance. The trial court held that hiring only
female flight attendants was a BFOQ reasonably necessary to the normal operations of Pan Am’s business.
Diaz appealed to the U.S. Court of Appeals for the Fifth Circuit.
Issue: Did Pan Am demonstrate that being female is a bona fide occupational qualification for the job of
flight cabin attendant?
Decision: No. The BFOQ provisions should be read narrowly – the test is business necessity, not business
convenience. Discrimination based on sex under a BFOQ is valid only when the essence of the business
operation would be undermined by not hiring members of one sex only. The purpose of an airline is
transportation. While a pleasant environment – in theory enhanced by female flight attendants’ cosmetics
and ability to perform the non-mechanical functions of the job – may be important, it is tangential to the
essence of the business. Pan Am did not show that having male flight attendants so seriously affected the
operation of the airline as to jeopardize or even minimize its ability to provide safe transportation.
When hiring, Pan Am could consider the ability of individuals to perform the non-mechanical functions of
the job. However, because the non-mechanical aspects were not reasonably necessary to the normal
operation of Pan Am’s business, Pan Am could not exclude all males simply because most males may not
have performed as adequately as most females. Pan Am did not show that all or substantially all men were
unable to perform the requirements of the job properly.
The court of appeals reversed the trial court’s judgment and held that Pan Am had not established that hiring
only females as flight attendants was a BFOQ.
5. Dothard v. Rawlinson held that the dangers presented by conditions in Alabama maximum
security prisons would reduce the ability of female guards to maintain order and would pose
dangers to the female guards and other prisoners. The Court therefore upheld an Alabama state
regulation restricting guard positions in these prisons to persons of the same gender as the
prisoners.
6. The courts will also allow claims of a BFOQ based on gender when community standards of
morality or propriety require that employees be of a particular gender.
D. Gender Stereotyping
CASE 7.2 PRICE WATERHOUSE V. ANN B. HOPKINS

490 U.S. 228 (1989)
SUMMARY:
Background: Ann Hopkins was a senior manager at Price Waterhouse who submitted her name for
partner. The partners chose not to recommend her for partner and she sued under Title VII, alleging
discrimination based on sex. The trial court ruled in her favor and the U.S. Court of Appeals for
the D.C. Circuit affirmed.
When deciding whether to recommend a manager for partner, other partners are invited to make
comments on the issue, then a board decides whether to make the recommendation. This decision
is not based on a formulaic determination. Of the 32 partners who made comments, 13 supported
Hopkins, 3 wanted to place her candidacy on hold, 8 stated they did not have an informed opinion,
and 8 recommended she be denied partnership. Those that supported her pointed to her role in
securing a $25 million contract and praised her integrity, work ethic, and customer relations skills.
Both those that supported her candidacy and those who did not, however, noted that she had an
abrasive and aggressive style that led to poor relations with office staff.
However, there were clear signs that some of the partners reacted negatively to Hopkins’s
personality because she was a woman. One partner described her as macho, another stated she
compensated too much for being a woman, and another stated that she should take a course in
charm school. Some explained of her use of profanity, but another partner opined that it was
because it was a lady using foul language. Another supporter explained that Hopkins had matured
from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but
much more appealing lady partner candidate. The partner who was charged with informing
Hopkins that she was not being recommended stated that she should walk more femininely, talk
more femininely, wear make-up, have her hair styled, and wear jewelry.
A social psychologist and professor at Carnegie-Mellon opined that the selection process at Price
Waterhouse was likely influenced by sex stereotyping.
In previous years, one partner stated that he could not think of a woman as a legitimate candidate
for a partnership position and the firm took no action against this and included his comments.
Issue: May employment decisions based on sex stereotypes constitute sex discrimination in
violation of Title VII?
Decision: Yes. Price Waterhouse unlawfully discriminated against Hopkins on the basis of sex by
consciously giving credence and effect to partners’ comments that resulted from sex stereotyping.
The critical inquiry is whether gender was a factor in the employment decision at the moment it
was made. When an employer considers both gender and legitimate factors, that decision was
“because of” sex within the meaning of Section 703(a)(1) even if it can later be said that the decision
would have been the same absent gender consideration.
Here, Hopkins proved that Price Waterhouse invited partners to submit comments; that some of the
comments stemmed from sex stereotyping; that an important part of the Policy Board’s decision
on Hopkins was an assessment of the submitted documents; and that Price Waterhouse in no way
disclaimed reliance on the sex-linked evaluations. This was enough to find that sexual
discrimination had taken place.
ANSWERS TO CASE QUESTIONS
PRICE WATERHOUSE V. ANN B. HOPKINS

490 U.S. 228 (1989)
1. Hopkins had a better performance record than any other candidates for partnership, and had landed
a $25 million contract for the firm. She was not made partner, according to Price Waterhouse, because
of her personality and interpersonal skills'she was perceived as overly aggressive and unduly harsh,
and was difficult to work with and overly hard of the staff.
2. The partners' comments reflected a stereotypical view of how women should actHopkins was
criticized for being harsh and aggressive and not being more feminine, while males with the same
personality traits were admitted to partnership. Price Waterhouse could legitimately consider
interpersonal skills in deciding to promote a candidate to partner, but it had to do so on a gender-neutral
basis; it could not hold Hopkins to stereotypical requirements that were not imposed on male
candidates.
3. An employer that acts based upon mixed motives is in violation of Title VII if some of those motives
reflect illegal discriminationbased on race, color, sex, religion or national origin; the employer can
limit liability by showing that it would have made the same decision regarding the employee even
without the illegal discrimination. It should be noted that the Supreme Court in this case held that an
employer who makes the required "same decision" showing would not violate Title VII. However,
the 1991 amendments to Title VII overruled that aspect of the Hopkins decision. Under §703(m) of
Title VII, an employer is in violation of the act if illegal discrimination was a motivating factor, even
if other, legitimate factors were also present; however, the employer's liability for such violation will
be limited to legal fees and an injunction (and not back pay or reinstatement) if the employer meets the
"same decision" test, §706(g)(2)(B).
1. Following Hopkins, federal courts of appeals have held that discrimination against a male
employee with gender identity disorder because he did not conform to the employer’s expectations
of how a male should act and behave was discrimination based on stereotypical gender norms and
violated Title VII.
2. In Nichols v. Azteca Restaurant Enterprises, Inc., the court held that abuse and ridicule by
coworkers and managers directed at a male employee because he appeared effeminate and did
not conform to a male stereotype was discrimination “because of sex” for the purposes of
establishing a claim under Title VII.
E. Gender-Plus Discrimination
1. An employer who places additional requirements on employees of a certain gender but not on
employees of the opposite gender violates Title VII.
II. Gender Discrimination in Pay
A. The Equal Pay Act
1. The Equal Pay Act of 1963 requires that men and women performing substantially equal work
be paid equally.
2. Coverage
a) The act applies to all employers “engaged in commerce (interstate commerce),” and it
applies to all employees of an “enterprise engaged in commerce.”
b) The act also covers state and local government employees.
c) Federal employees covered include: House of Representatives, Senate, Capitol Guide

Service, Capitol Police, Congressional Budget Office, Office of the Architect of the Capitol,
Office of the Attending Physician, and the Office of the Technology Assessment.
d) There is no minimum number of employees required for the Act’s coverage, but there are a
few exceptions to the Act’s coverage based on businesses exempt from the reach of the Fair
Labor Standards Act.
3. Provisions
a) The Equal Pay Act prohibits discrimination by an employer: 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…for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.
b) Note that the act does not require paying equal wages for work of equal value, known as
comparable worth.
c) Equal Work – courts evaluate each job on a case-by-case basis, making a detailed inquiry
into the substantial duties and facts of each position.
d) Equal Effort – involves substantially equivalent physical or mental exertion needed for
performance of the job.
(i) Occasional or infrequent assignments of extra duties do not warrant additional pay for
periods when no extra duties are performed.
(ii) Employer must also show that the extra duties are commensurate with the extra pay.
(iii) Unless there is a BFOQ, the extra duties must be available to both males and females.
e) Equal Skill – includes substantially equivalent experience, training, education, and ability.
The skill, however, must relate to the performance of actual job duties.
f) Equal Responsibility – includes a substantially equivalent degree of accountability required

in the performance of a job, with emphasis on the importance of the job’s obligations.
(i) Courts focus on the economic or social consequences of the employee’s actions or
decisions.
g) Equal Working Conditions – The act requires that the substantially equivalent work be
performed under similar working conditions.
B. Defenses Under the Equal Pay Act
1. When the pay differentials between male and female employees are due to a seniority system,
a merit pay system, a productivity-based pay system, or “a factor other than sex,” the pay
differentials do not violate the act.
2. Employers justifying pay differentials on seniority systems, merit pay systems, or production-
based pay systems must demonstrate that the system is bona fide and applies equally to all
employees.
CASE 7.3 LAFFEY V. NORTHWEST AIRLINES

567 F.2D 429 (U.S. Court of Appeals, District of Columbia Circuit 1976)
SUMMARY:
Background: NWA employed only women as stewardesses. NWA subsequently created the
position of “purser,” which was held solely by men with the exception of Laffey. Laffey was paid
less than other pursers with comparable experience. Stewardesses received lower pay and lower
benefits than pursers.
Issue: Are the jobs of purser and stewardess equivalent in terms of the skills, effort, responsibilities,
and working conditions for the purposes of the Equal Pay Act?
Decision: Yes. The duties performed do not differ significantly in nature between pursers and
stewardesses. Both the trial court and the court of appeals both held that NWA had failed to show
that the differences in pay and benefit allowances were justified under any of the four exceptions
in the Equal Pay Act.
C. Procedures Under the Equal Pay Act
1. The Equal Pay Act is administered by the Equal Employment Opportunity Commission
(EEOC). The act provides for enforcement actions by individual employees (Section 16), or
by the U.S. Secretary of Labor (Section 17), who has transferred that power to the EEOC.
2. There is no requirement that an individual must file first with the EEOC, but if the EEOC has
filed suit, it precludes individual suits on the same complaint.
3. Suit must be filed within 2 years of the alleged violation.
4. In a case decided under Title VII, Ledbetter v. Goodyear Tire & Rubber Co., a divided Supreme
Court held that the receipt of individual paychecks reflecting a discriminatory performance
evaluation system did not constitute a separate violation of Title VII, but rather simply reflected
the effects of the discriminatory evaluation system.
a) The Ledbetter decision meant that an employee alleging sex discrimination in pay would
have to file suit within 180 days (or, in some cases, 300 days) from the employer’s adoption
of the discriminatory pay policies.
b) However, Ledbetter was overruled by legislation signed into law by President Obama in
early 2009. The Lilly Ledbetter Fair Pay Act amended Title VII to provide that the time
limit for filing suit alleging discrimination in pay begins either:
(i) when the discriminatory pay practice or policy is adopted,
(ii) when the employee becomes subject to the discriminatory pay policy or practice, or
(iii) when the employee is affected by the application of the discriminatory pay practice or
policy.
c) The act makes it clear that each payment of wages, benefits, or other compensation is paid
under the discriminatory pay practice or policy is a separate violation.
D. Remedies
1. An individual plaintiff’s suit under the Equal Pay Act may recover the unpaid back wages due
and may also receive an amount equal to the back wages as liquidated damages under the act.
a) Back pay can be recovered for the period from two years prior to the suit (three if the
violation is willful).
2. Remedies under a government suit include injunctions and back pay with interest, but no
liquidated damages.
E. Title VII and the Equal Pay Act
1. Title VII’s coverage extends beyond that of the Equal Pay Act.
2. The Equal Pay Act applies only when male and female employees are performing substantially
equivalent work. Can Title VII be used to challenge pay differentials between men and women
when they are not performing equal work?
3. Section 703(h) of Title VII allows pay differential between employees of different sexes when
the differential is due to seniority, merit, or productivity-based pay systems, or a factor other
than sex – this is known as the Bennett Amendment.
4. In County of Washington v. Gunther, the Supreme Court held that the Bennett Amendment
incorporates the defenses of the Equal Pay Act into Title VII.
a) Also held that Title VII prohibits intentional gender discrimination in pay even when the
male and female employees are not performing equivalent work.
5. Comparable Worth
a) The idea of comparable worth – that employees should receive equal pay for jobs of equal
value – is different from the equal-pay-for-equal-work requirements of the Equal Pay Act.
b) The Supreme Court in Gunther emphasized it was not endorsing comparable worth; it held
simply that Title VII prohibited intentional discrimination on the basis of gender for setting
pay scales.
c) In Lemons v. Denver, the U.S. Court of Appeals for the Tenth Circuit held that Title VII
did not prohibit a public employer from paying public health nurses salaries based on the
private sector wage rates for nurses, even though the public health nurses were paid less
than the predominantly male jobs of garbage collector or tree trimmer. The employer was
not guilty of gender discrimination simply by following the “market,” even if the “market”
wages for nurses reflected the effects of historical discrimination against women.
F. Gender-Based Pension Benefits
1. Gender-based actuarial tables used to determine premiums and benefits for pensions would
require that women pay higher premiums to receive the same levels of benefits as men of the
same age.
CASE 7.4 CITY OF LOS ANGELES V. MANHART

435 U.S. 702 (1978)
SUMMARY:
Background: The Department of Power and Water required female employees to make larger
contributions to its pension fund than men based on mortality tables. A group of female employees
filed suit against the Department, alleging that the practice of making female employees pay higher
contributions to receive equal benefits upon retirement violated Title VII.
Issue: Does the practice of requiring female employees to pay more into the pension system in
order to receive the same benefits upon retirement violate Title VII’s prohibition on sex
discrimination in pay?
Decision: Yes. Employment decisions cannot be predicated on mere “stereotyped” impressions

about the characteristics of males or females.… This case does not, however, involve a fictional
difference between men and women. It involves a generalization that the parties accept as
unquestionably true: women, as a class, do live longer than men. However, Title VII looks at
whether discrimination has occurred on an individual basis, not on a class basis, and here there is
no way to tell whether an individual woman will indeed live longer than an individual man.
Therefore, the difference in payment requirements was based solely on sex and is in violation of
Title VII.

CITY OF LOS ANGELES V. MANHART
490 U.S. 228 (1989)
1. A person's longevity is determined, among other things, by their lifestyle and diet, by their health,
their heredity and their environment, and by their gender. The Los Angeles pension plan only
considered gender in determining the premiums to be paid the employees.
2. Title VII does not include a "reasonable cost differential" defense to a sex discrimination charge; it
prohibits discrimination on the basis of sex in all terms and conditions of employment, but does allow
gender to be used as a BFOQ.
3. The court suggested that the employer award the same monthly benefits, based on the same
premiums, for similarly situated men and women. If a female employee would live longer that a male
employee, she would ultimately collect more pension benefitsbut the difference would be due to
actual longevity, which is a factor other than sex, a defense recognized under both Title VII and the
Equal Pay Act.
III. Pregnancy Discrimination
A. In General Electric v. Gilbert the Supreme Court held that General Electric’s refusal to cover
pregnancy or related conditions under its sick-pay plan, even though male-specific disabilities such
as vasectomies were covered, did not violate Title VII.
B. In response to the General Electric v. Gilbert decision, Congress passed the Pregnancy
Discrimination Act of 1978, which added 701(k) to Title VII, providing: The terms “because of
sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related purposes, including receipt
of benefits under fringe benefit programs, as other persons not so affected but similar to their ability
or inability to work.
C. If the employer’s sick-leave pay benefits cover temporary disabilities, it must also provide coverage
for pregnancy-related leaves.
D. Employers who fire pregnant employees are clearly in violation of Title VII, as are employers who
fire pregnant employees because of the assumption that the employees will likely be absent from
work for lengthy periods.
E. Pregnancy and Hazardous Working Conditions
1. An employer wishing to avoid potential health problems for female employees and their
offspring may prohibit women of childbearing age from working in jobs that involve exposure
to hazardous substances.
2. The U.S. Supreme Court in U.A.W. v. Johnson Controls, Inc. held that the employer’s
restrictions were gender discrimination in violation of Title VII where the company would not
allow women to be hired for certain jobs based on the company’s professed fear for the safety
of the women’s offspring.
IV. Legal Protection for Nursing Mothers

A. The Patient Protection and Affordable Care Act1 [known as Obamacare] also amended the Fair
Labor Standards Act [FLSA] to require employers to provide nursing mothers with a secure place
to express breast milk.
V. The Family and Medical Leave Act
A. Allows eligible employees to take up to 12 weeks unpaid leave in any 12 months due to birth,
adoption, or foster care of a child; the need to care for a child, spouse, or parent with a serious
health condition; or the employee’s own serious health condition that makes the employee unable
to perform the functions of his or her job.
B. FMLA Coverage
1. Applies to private sector employees with 50 or more employees; applies to public sector
employees regardless of the number of employees.
2. Private employers may still be covered if they employ over 50 employees within a 75 mile
radius.
3. Employees of covered employers are eligible for leave under the act if they have been employed
by the employer for at least twelve months and have worked at least 1,250 hours of the twelve-
month period immediately preceding commencement of the leave.
4. The employer may designate “key employees” who may be denied leave under the act; key
employees are those whom it would be necessary for the employer to replace in order to prevent
substantial and grievous economic injury to the operation of business.
C. Entitlement to Medical Leave
1. Serious health condition – an illness, injury, or condition that requires inpatient hospital care,
or lasts more than 3 days and requires continuing treatment by a health-care provider, or
involves pregnancy, or a long-term or permanently disabling health condition, or absences for
1 P.L. 111-148 (March 23, 2010). Formatted: Font: Times New Roman
receiving multiple treatments for restorative surgery, or for a condition that would likely result
in a period of incapacity of more than 3 days if it were not treated.
2. Leave Provisions
a) The leave may be taken all at once, or in certain cases, intermittently, or the employee may
work at a part-time schedule.
b) An employee or the employer may choose to substitute paid leave such as vacation or sick
leave for part or all of the FMLA leave if the employee is entitled to such paid leave.
c) The employee’s health benefits must be maintained during leave if the health coverage
was provided to the employee before the leave; if the employee fails to return to work after
the leave, the employer may recover the premiums it paid to maintain the employee’s health
benefits.
d) The employee has the right to return to the same or equivalent position, and the leave
cannot result in the loss of any benefit by the employee.
D. Military Leave Provisions
1. The 2008 National Defense Authorization Act amended the FMLA to allow employees to take
up to twelve weeks of unpaid leave during a twelve-month period for “qualifying exigencies”
arising out of an employee’s spouse, child, or parent being on active duty service or called to
active duty service as a member of the National Guard or Reserves.
2. The amended FMLA also allows employees to take “military caregiver leave” of up to 26
weeks of unpaid leave to care a child, spouse, parent, or next of kin who is a current member
of the armed forces (including the National Guard or Reserves) and who suffers a serious illness
or injury.
3. Qualified Exigencies: The regulations under the amended FMLA define qualifying exigencies
as including:
a) issues arising from a family member’s short notice deployment—deployment on notice of

seven days or less;
b) military events and related activities such as official ceremonies, programs, or events
sponsored by military or family support or assistance programs sponsored or promoted by
the military, military service organizations, or the American Red Cross that are related to
the active duty or call to active duty status of a family member;
c) certain child care and related activities, such as providing for, or arranging for alternative
childcare, or enrolling or transferring a child to a new school or day-care facility, when
such activities arise from the call to active duty of a family member;
d) making or updating financial or legal arrangements to address a family member’s absence

due to the call to active duty; attending counseling (provided by someone other than a
health-care provider) for the employee, the family member called to active duty, or a child
of the person called to active duty, when the need for counseling arises from the call to
active duty or the active duty status of the family member;
e) taking up to five days of leave to spend time with a family member who is on short-term,
temporary rest and recuperation leave during deployment;
f) attending certain post-deployment activities such as arrival ceremonies, reintegration

briefings and events, or other official ceremonies or programs sponsored by the military
for a period of ninety days following the termination of the family member’s active duty
status, or addressing issues arising from the death of a family member in the military;
g) any other event that the employer and employee agree is a qualifying exigency.
4. Military Caregiver Leave
a) Under this provision of the FMLA, an employee may take up to twenty-six weeks of unpaid
leave to care for a family member who is a member of the armed forces and who is
undergoing medical treatment, recuperation, therapy, or who is otherwise in outpatient
status or is on the temporary disability retired list because of a serious illness or injury.
E. Notice Requirements for FMLA Leave
1. Must give 30 days’ advance notice if the need is foreseeable, or as soon as practicable if it
becomes foreseeable less than 30 days in advance.
2. Must provide enough information to employer to see if the FMLA applies.
3. Employer must provide notification of eligibility within 5 days of the request and give a reason
if not eligible.
a) Non-eligibility reasons include:
(i) Not covered by FMLA
(ii) Key employee
(iii) Has not worked for employer for 12 months or 1,250 hours in preceding 12 months
(iv) Employee has used up his leave entitlement
4. Certification Requirements – Employers may require that employees requesting leave due to a
serious health condition affecting the employee or a covered family member be supported by a
certification from a health care provider.
F. Job Restoration Requirements
1. The employer may requires that an employee on leave seeking to return to work provide
medical certification that the employee is capable of returning to work.
2. When the employee returns from FMLA leave, the employer must restore the employee to her
or his original job or to an equivalent job with equivalent pay, benefits, and other terms and
conditions of employment.
CASE 7.5 NOVAK V. METROHEALTH MEDICAL CENTER

503 F.3d 572 (6th Circuit 2007)
SUMMARY: Background: Novak missed enough work that she was eventually terminated from
her position. Novak had submitted requests for FMLA leave which would have covered the leave,
however the employer refused to qualify the leave as FMLA protected. Novak claimed she was
entitled to FMLA protection for two reasons. The first reason was due to her continuing back pain.
However, the employer questioned the validity of her certification of a serious health condition.
After learning the physician completed it based on second hand knowledge, not her own medical
observations, the company declared it invalid. The second reason was that Novak took time off to
care for her 18 year-old daughter who was in need of assistance due to post-partum depressions.
The employer claimed FMLA did not cover this type of circumstance.
Issue: Was Novak entitled to FMLA leave because of her back pain and/or her caring for her
daughter and her grandson?
Decision: No. The sixth circuit ruled the company was justified in rendering the medical certificate
invalid because it was not properly completed by a treating physician. Also, the court ruled that
care for a an 18 year old child is only covered under FMLA if the child is disabled. Novak provided
no evidence of disability. Also, the FMLA did not cover care of a grandchild.
G. Effect of Other Laws on the FMLA
1. The FMLA does not preempt or supersede any state or local law that provides for greater family
or medical leave rights than those granted under the FMLA.
2. In addition, employers are required to comply with any collective bargaining agreement or
employee benefit program that provides for greater rights than those given under the FMLA.
H. State Legislation
1. The California Fair Employment and Housing Act Law required employers to provide pregnant
employees up to 4 months of unpaid pregnancy leave and to reinstate female employees upon
their return, but employers are not required to provide the same benefits for other temporary
disability leaves.
2. In California Federal Savings and Loan v. Guerra, the Supreme Court upheld the law, relying
on two reasons: first, the Pregnancy Discrimination Act only establishes a minimum floor of
protection for pregnant employees; and second, the California law did not prevent employers
from extending the right of reinstatement to employees on other temporary disability leave and
therefore did not require that pregnant employees be treated more generously than non-
pregnant employees on temporary disability leave.
VI. Sexual Harassment
A. Introduction
1. Courts are now clear that sexual harassment is gender discrimination prohibited by Title VII.
2. The EEOC has issued guidelines defining sexual harassment and declaring that sexual
harassment constitutes gender discrimination in violation of Title VII.
*Sexual Harassment: unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature, where the employee is required to accept such conduct as a condition of
employment, the employee’s response to such conduct is used as a basis for employment decisions such as
promotion, bonuses, or retention, or such conduct unreasonably interferes with the employee’s work
performance or creates a hostile working environment.
3. The EEOC Guidelines and courts recognize two categories of sexual harassment: quid pro quo
harassment and hostile work environment harassment.
*Quid Pro Quo Harassment: Harassment where the employee’s response to the harassment is considered
in granting employment benefits.
*Hostile Work Environment Harassment: Harassment which may not result in economic detriment to
the victim, but which subjects the victim to unwelcome conduct or comments and may interfere with the
employee’s work performance.
EEOC GUIDELINES ON SEXUAL HARASSMENT

Section 1604.11 Sexual Harassment
- Harassment on the basis of sex is a violation of § 703 of Title VII.
- An employer is responsible for its acts and those of its agents and supervisory employees with respect to
sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden
by the employer and regardless of whether the employer knew or should have known of the behavior.
- Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual
nature constitute sexual harassment when (1) submission is made explicitly or implicitly a condition of
employment, (2) submission or rejection affects employment decisions about the individual, or (3) such
conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working environment.
- An employer is responsible for acts of sexual harassment in the workplace where the employer knows or
should have known of the conduct, unless it can show that it took immediate and appropriate action.
- An employer can also be responsible for the acts of nonemployees with respect to harassment of
employees in the workplace.
- Preventative actions must be taken by employers.
- Where employment opportunities are granted because of an individual’s submission to the employer’s
sexual advances, the employer may be held liable for sex discrimination against other persons who were
qualified for but denied that employment opportunity.
B. Quid Pro Quo Harassment
1. To establish a case of quid pro quo harassment, a plaintiff must show five things:
a) She or he belongs to a protected group
b) She or he was subject to unwelcome sexual harassment
c) The harassment was based on sex
d) Job benefits were conditioned on the acceptance of the harassment, and if appropriate
e) There is some basis to hold the employer liable.
2. The essence of quid pro quo harassment is that the employee’s submission to such conduct is
made either explicitly or implicitly a term or condition of an individual’s employment or that
submission to or rejection of such conduct by the employee is used as the basis for employment
decisions affecting the employee.
C. Hostile Work Environment Harassment
1. Here, the unwelcome harassment has the effect of interfering with the employee’s work
performance or creating a hostile work environment for the employee.
CASE 7.6 HARRIS V. FORKLIFT SYSTEMS, INC.

510 U.S. 17 (1993)
SUMMARY:
Background: Harris worked at Forklift Systems. The President of Forklift, Hardy, often insulted
Harris because of her gender and made her the target of unwanted sexual innuendos. He made
comments such as “You’re a woman, what do you know,” and “We need a man as the rental
manager.” He also called her a dumbass woman. In front of others, Hardy suggested Harris and
he go to the Holiday Inn to negotiate her salary. Hardy also asked female employees to get coins
out of his front pocket and would throw objects on the floor and tell female employees to pick them
up. He made sexual innuendos about female employees’ clothing. Harris confronted him and he
promised to stop in exchange for her staying on. She did, but then a month later Hardy, in response
to a deal Harris had arranged with a customer, stated “What did you do, promise the guy some sex
Saturday night?” She then quit and sued under Title VII accusing Hardy of creating an abusive
work environment for her because of her gender. The trial court ruled against Harris and the
appellate court confirmed.
Issue: Must conduct, to be actionable as “abusive work environment” harassment, “seriously affect
an employee’s psychological well-being” or lead the plaintiff to “suffer injury”?
Decision: No. The phrase ‘terms, conditions, or privileges of employment’ in Title VII, evinces a
congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in
employment,” which includes requiring people to work in a discriminatorily hostile or abusive
environment. When the workplace is permeated with “discriminatory intimidations, ridicule, and
insult,” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment,” Title VII is violated. So long as the environment
would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also
to be psychologically injurious. Factors to be considered include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
Remanded.
HARRIS V. FORKLIFT SYSTEMS, INC.

510 U.S. 17 (1993)
1. Harris was not directly affected economically by the harassment to which she was subjected. She was
offended and humiliated by it, and was subjected to ridicule, which undermined her efforts and responsibilities
on the job, and affected her job performance.
2. The Supreme Court held that the harassment must be such that it would reasonably be perceived, and is
perceived, as hostile or abusive, in order to violate Title VII. While conduct that seriously affects a person's
psychological wellbeing would violate Title VII, the legislation does not require evidence of concrete
psychological harm.
3. The standard under Title VII for when harassment becomes severe enough to create a hostile environment
is objectivewould a reasonable person find the conduct offensive, abusive or creating a hostile work
environment, and did the plaintiff find it so?
2. Reasonable Person or Reasonable Victim?
a) Most courts have used a “reasonable person” standard to determine whether the challenged
conduct is sufficiently severe and hostile.
b) The EEOC issued a policy statement declaring that courts should also consider the
perspective of the victim to avoid perpetuating stereotypical notions of what behavior was
acceptable to persons of a specific gender.
c) Some courts have adopted the “reasonable victim” or reasonable woman” standard, but
even then courts have emphasized that the standard is not totally subjective, but was to be
based on whether an objective reasonable woman would find the conduct offensive or
would have been detrimentally affected. The Supreme Court used the reasonable person
standard in Harris, but it did not specifically address the issue.
D. Employer Liability for Sexual Harassment
1. Introduction
a) The EEOC Guidelines state that employers are liable for sexual harassment by supervisory
or managerial employees and may also be liable for harassment by co-workers or even
nonemployees under certain circumstances.
b) The Supreme Court in Meritor rejected the EEOC Guidelines’ position on employer
liability for supervisors or managerial employees and instead held that employer liability
should be determined according to traditional common law agency principles; that is, was
the harasser acting as an agent of the employer?
2. Agency Relationships
a) Supervisors or managerial employees, acting in the course of their employment, are

generally held to be agents of the employer.
b) An agency relationship can also be created by an employer’s acceptance of, tolerance of,
acquiescence to, or after-the-fact ratification of an employee’s conduct, such as when the
employer becomes aware of harassment and fails to take action to stop it.
3. Employer Liability for Supervisors
a) The courts have consistently held an employer liable for quid pro quo sexual harassment
by a manager or supervisor because such conduct is related to the supervisor’s or manager’s
job status.
b) Prior to the following case, courts differed over holding an employer liable for hostile
environment harassment by a supervisor or manager.
CASE 7.7 FARAGHER V. CITY OF BOCA RATON

524 U.S. 775 (1998)
SUMMARY:
Background: Faragher worked for the Marine Safety Section of the Parks and Recreation
Department of the City of Boca Raton, FL. Her immediate supervisors were Terry, Silverman, and
Gordon. Terry repeatedly touched the bodies of female employees, made contact with another
female lifeguard in a motion of sexual simulation, and made crudely demeaning remarks about
women. During an interview he relayed to the female applicant that female lifeguards had sex with
their male counterparts and asked if she would do the same. Silverman behaved in similar ways.
Faragher and other female lifeguards did not complain to higher management, but did have informal
talks with Gordon. Gordon did not feel it was his place to report these complaints to anyone.
Eventually a former lifeguard complained to the City, the City investigated, and it suspended Terry
and Silverman. Faragher later resigned and two years later filed a suit against Terry, Silverman,
and the City, alleging violations of Title VII by creating a sexually hostile atmosphere. Because
Terry and Silverman were agents of the City, and their conduct amounted to discrimination in the
terms, conditions, and privileges of her employment, Faragher sought to hold the City liable for
damages. The trial court held the City liable, and the appellate court reversed holding that
Silverman and Terry were not acting within the scope of their employment when they engaged in
the harassment, that they were not aided in their actions by the agency relationship, and that the
City had no constructive knowledge of the harassment by virtue of its pervasiveness or Gordon’s
actual knowledge.
Issue: When is an employer liable for hostile environment harassment by a supervisor or manager?
Decision: An employer is subject to vicarious liability to a victimized employee for an actionable

hostile environment created by a supervisor with immediate (or successively higher) authority over
the employee. When no tangible employment action is taken, a defending employer may raise an
affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.
The defense comprises two necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. No affirmative defense is available, however, when the
supervisor’s harassment
culminates in a tangible employment action, such as discharge, demotion, or undesirable
reassignment. Remanded.
FARAGHER V. CITY OF BOCA RATON

524 S. 775 (1998)
1. An employer should be liable for the actions of a supervisor because the employer gives the
supervisor the power and authority to act on the employer's behalf. The sexual harassment by a
supervisor is generally aided or facilitated by the supervisor's authority over the employee.
2. An employer must first of all make it clear to all employees that sexual harassment will not be
tolerated; such a clear expression of the prohibition of such conduct can work to dispel any claim
that the harassing supervisor was acting as an agent of the employer. Adopting a clear policy
against sexual harassment also prevents any claim that the employer tolerated such behavior. The
employer must act promptly and effectively to investigate and remedy any claims of sexual
harassment.
3. The defense set out in Faragher only applies when the alleged hostile environment harassment
does not result in tangible employment action against the employee. In that case, if the employer
can show that it exercised reasonable care to prevent and correct any sexually harassing behavior,
and that the employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer, or to avoid harm otherwise.
4. Employer Liability for Co-Workers and Nonemployees
a) For both quid pro quo harassment and hostile environment harassment by non-supervisory
or non-managerial employees, an employer will be liable if it knew of, or should have
known of, the harassing conduct and failed to take reasonable steps to stop it.
b) An employer may even be liable for harassment by nonemployees if the employer had
some control over the harasser and failed to take reasonable steps to stop it once the
employer became aware of, or should have been aware of, the harassment.
5. Individual Liability
a) Individual employees are not liable for damages under Title VII; this means that the
employee doing the harassing will not be held personally liable for damages under Title
VII. They are subject to court injunctions to cease and desist from such conduct.
b) But harassers or potential harassers should be aware that they may be held personally liable
under the various state EEO laws or under common-law tort claims. The damages under
state EEO laws and tort claims may include compensatory and punitive damages in
addition to employment-related damages and legal fees.
c) Public employees who engage in sexual harassment may, in addition to the foregoing
remedies, be subject to suits damages and criminal prosecutions.
E. Employer Responses to Sexual Harassment Claims
1. Prevention
a) The sexual harassment policy should define sexual harassment and give practical, concrete
examples of such conduct. The policy must also make it very clear that such conduct by
anyone in the organization will not be tolerated, and it should specify the penalties, up to
and including termination, for violations of the policy. The policy should spell out the
procedures for filing complaints of sexual harassment, designate specific (preferably
managerial) employees who are responsible for receiving and investigating complaints,
and should include reassurances that employees who file complaints will be protected from
retaliation or reprisals.
b) The policy must be communicated to all employees, who should be educated about the
policy through training and workshops.
c) All employees must understand the policy and be aware of the employer’s commitment to
the policy.
d) Above all, the employer must take steps to enforce the policy immediately upon receipt of
a complaint of sexual harassment because the policy is effective only if it is followed. If
the employer acts promptly to enforce the policy whenever a complaint of sexual
harassment is received, it will generally avoid liability for such conduct according to
Faragher.
2. Defenses
a) Conduct must be unwelcome and sexual in nature and must be either quid pro quo or
serious enough to create a hostile working environment.
b) Isolated incidents or trivial comments generally don’t constitute sexual harassment.
c) The fact that the harassed employee failed to file a complaint through the employer’s sexual
harassment complaint procedure does not automatically protect the employer from
liability. The employer may still be held liable if it knew of, or had reason to know of, the
harassment.
3. Unwelcome
a) In Meritor, the Supreme Court held that as long as the victim indicates that the conduct is
unwelcome, it is still sexual harassment, even if the victim voluntarily complies with the
harassment.
b) Provocation – Goes to whether the conduct was unwelcome.
F. Conduct of a Sexual Nature
1. In order to be sexual harassment, the conduct complained of must be based on the employee’s
sex.
2. Same-Sex Harassment
a) The Supreme Court in Oncale v. Sundowner Offshore Services, Inc. held that Title VII
prohibits discrimination because of sex in terms or conditions of employment, including
sexual harassment by employees of the same sex as the victim of the harassment.
b) According to Hamner v. St. Vincent Hospital and Health Care Center, Inc., Title VII’s
prohibition on sexual harassment does not include harassment based on sexual orientation
or sexual preference.
G. Remedies for Sexual Harassment
1. Remedies include injunctions, lost wages and benefits, compensatory and punitive damages for
intentional conduct, and legal fees and reinstatement.
2. Employment-related damages, such as back pay, benefits, seniority, and so on, are recoverable
in their entirety.
3. Compensatory damages and punitive damages are available in cases of intentional violations.
a) Sexual harassment is generally considered to be intentional conduct, so such damages are

generally available subject to statutory limits based on the size of the employer.
4. In addition to Title VII, sexual harassment may also be challenged under state EEO laws and
common-law torts such as intentional infliction of emotional distress, invasion of privacy,
battery, and assault.
5. Federal and state constitutional provisions may also apply to public sector employers guilty of
sexual harassment.
6. Public employees who engage in sexual harassment may be subject to suits for damages under
42 U.S.C. §1983, which allows civil suits for damages against persons who act, under the color
of law, to deprive others of legally protected rights.
ETHICAL DILEMMA
SUMMARY:
Your office cubicle is next to that of Mona Leslie, a newly hired female employee in your department.
Her male supervisor seems to be devoting a lot of attention to her, and drops by her cubicle many times
a day. You can hear the supervisor’s conversations—and they include some off-color jokes and
comments. You have also heard, on several occasions, the supervisor ask Mona to go to lunch with him,
or to go out for a drink after work. Mona always politely declines his invitations, but at times she appears
to be distressed and agitated after the supervisor’s visits. In a conversation with Mona, you inform her
that you believe that the supervisor’s conduct is in violation of the company’s sexual harassment policy.
She responds that she is a new employee and doesn’t want to “make waves” because she really needs
her job.
QUESTION
Although the employee has no legal obligation to report the conduct, it is in the best interests of the
parties involved that the employee reports the supervisor’s conduct.
VII. Sexual Orientation, Sexual Preference, and Sexual Identity Discrimination
A. Title VII and Other EEO Legislation
1. Prior to Hopkins, federal courts consistently held Title VII’s prohibition of discrimination
based on gender does not extend to discrimination against homosexuals or lesbians.
2. In April, 2012, the E.E.O.C. ruled that that intentional discrimination against a transgender
employee was discrimination based on sex, and was prohibited by Title VII.
The Working Law

EEOC Holds Title VII Protects Transgendered Persons
A transgender person who has experienced discrimination based on his or her gender identity may
establish a prima facie case of sex discrimination through any number of different formulations.
These different formulations are not, however, different claims of discrimination that can be
separated out and investigated within different systems. Rather, they are simply different ways of
describing sex discrimination.
CASE 7.8 SMITH V. CITY OF SALEM, OHIO

378 F.3d 566 (6th Circuit, 2004)
SUMMARY:
Background: Smith worked for the Salem Fire Department.
Issue: Has Smith established a claim of sex discrimination because of sex stereotyping, under the
Supreme Court decision in Price Waterhouse?
Decision: The Supreme Court decision in Price Waterhouse held that Title VII protected a woman
who failed to conform to social expectations concerning how a woman should look and behave and
established that Title VII’s reference to “sex” encompasses both the biological differences between
men and women, and gender discrimination based on a failure to conform to stereotypical gender
norms. It follows that employers who discriminate against men because they do wear dresses and
makeup, or otherwise act femininely, are also engaging in sex discrimination, because the
discrimination would not occur except for the victim’s sex. Sex stereotyping based on a person’s
gender nonconforming behavior is discrimination in violation of Title VII. Remanded.
B. State EEO Legislation
1. A number of state EEO laws prohibit discrimination based on sexual preference or sexual
orientation.
2. Some large cities have human rights ordinances that prohibit discrimination based on sexual
preference or sexual orientation.
3. Some state EEO laws also prohibit employment discrimination based on gender identity or
gender expression, which means that transsexuals and persons who have undergone sex change
operations are protected from discrimination.
C. Constitutional Protection
1. Public employers who discriminate on the basis of homosexuality are subject to the equal
protection provisions of the U.S. Constitution, which prohibit arbitrary or “invidious”
discrimination.
2. However, the courts have generally allowed public employers to refuse to hire homosexuals
when the employer can show that the ban on homosexuals has some legitimate relationship to
valid employment-related concerns.
3. A number of cases dealing with discrimination against homosexuals have involved the armed
services’ refusal to admit homosexuals. In several decisions, the courts have upheld this general
policy, but have required the military to demonstrate that an individual has engaged in
homosexual conduct in order to bar that person from military service.61 Under President
Clinton, the military adopted a “don’t ask, don’t tell” policy, under which persons will be barred
from service if they engage in homosexual conduct or demonstrate a propensity to engage in
such conduct.
4. The “don’t ask, don’t tell” policy remained in effect until September 20, 2011; the policy was
repealed pursuant to the Don’t Ask Don’t Tell Repeal Act of 2010.
5. In Lawrence v. Texas, the Court declared unconstitutional state laws making it a crime for
adults of the same sex to engage in consensual sexual activity in the privacy of their home. The
majority held that such laws infringed upon the constitutionally protected liberty interests of
homosexuals. Some commentators argue that the Lawrence case may signal the end of
government discrimination against homosexuals.
VIII. Other Gender-Discrimination Issues
A. Section 712 of Title VII states that: “[nothing] contained in this title shall be construed to repeal or
modify any Federal, State, territorial, or local law creating special rights or preference for veterans.”
B. Because most veterans are male, any preference in employment according to veteran status will
have a disparate impact on women. The effect of Section 712 is to allow such preference regardless
of its disparate impact.
PROBLEMS
QUESTIONS
1. A BFOQ can not be supported by customer preference, so that a restaurant hiring only male waiters on the
basis of customer preference would be in violation of Title VII. The standard required to support a BFOQ
is business necessitythe safe and efficient performance of the relevant job must require that only
employees of a particular religion, gender, or national origin perform that job.
2. Title VII does not require that an employee be given paid pregnancy leave; it requires only that the pregnant
employee be treated the same as other employees on temporary leave. The Pregnancy Discrimination Act
amendments to Title VII simply require that the employer does not discriminate against pregnant
employeesthe employer must treat the pregnant employee the same as any other employee on short-term
disability. If the employer doesn't offer paid leave for any other short-term disability, it needn't offer paid
leave for pregnancy; however, if employees may take paid leave for other short-term disabilities, the
employer must also provide paid leave for pregnancy as well.
3. An employer is liable for sexual harassment by a supervisor when the supervisor has acted with actual or
apparent authorizationhas the employer acquiesced, accepted, ratified, condoned, or authorized the
supervisor's behavior? If the employer knew or should have known about the harassment, and failed to
take corrective action, it will be held to have ratified or accepted such behavior and will be held liable. An
employer will be liable for a co-worker's harassment if the employer knew or should have known about it
and failed to take prompt corrective action. For harassment by a non-employee, the employer will be liable
if the employer knew or should have known of the harassment and failed to take corrective action, and if
the employer had some degree of control or influence over the non-employee.
4. According to the Gunther case, Title VII can be used to attack sex-based pay differentials for jobs that are
not equivalent if the plaintiffs can show that the pay differentials are due to intentional sex discrimination.
The Equal Pay Act applies only to complaints of pay differentials where the jobs involved are equivalent
in terms of skills, effort, and responsibilities; Title VII covers all sex discrimination in terms or conditions
of employment based on sexincluding discrimination in pay.
5. Not all employees are entitled to leave under the Family and Medical Leave Act. Employees are
entitled to leave under the FMLA if they meet the following requirements: their employer has 50 or
more employees or they work for a public sector employer, they have worked for the employer for at
least 12 months and worked at least 1,250 hours during the past 12 months, and they have not been
designated as a "key employee" by their employer.
CASE PROBLEMS
6. The Supreme Court held that even if the invitation to become a partner is not an employment decision, the
consideration or eligibility for partnership is a condition of employment, or a benefit of employment. As
such, the condition or benefit of employment must be available on a non-discriminatory basisthe firm
can't discriminate on the basis of race, color, sex, religion, or national origin when considering employees
for partnership. The Court also held that the plaintiff had established a claim of discrimination under Title
VII, and the case was remanded for trial. The trial court had dismissed the complaint on the theory that
Title VII didn't apply to partnership decisions, and the Court of Appeals had affirmed.
7. Plebani was held to have been the victim of sex discrimination in violation of Title VII and the NY State
Human Rights Act; he was dismissed because of his gender. The employer attempted to argue that being
female was a BFOQ, but the court held that the employer had not made a showing that being female was
a matter of business necessity. The employer simply indicated that it thought that hiring only females
would improve business, but that did not amount to a showing of business necessity; as well, customer
preference does not justify a BFOQ.
8. The Court of Appeals held that the Nurses' complaint could state a claim if they could show that the refusal
to implement the recommendations of the pay study was due to intentional sex discrimination, as in the
Gunther case. The Court of Appeals reversed the District Court's dismissal of the complaint and remanded
the case for trial on the issue of whether the refusal was due to sex discrimination.
9. The court held that the high school was not guilty of sex discrimination. The poor evaluation was a
legitimate reason for Baker's dismissal, and the fact that she was replaced by a male who could also coach
the basketball team was not, in itself, proof of sex discrimination.
10. The Court of Appeals, Easterbrook, Circuit Judge, held that employer did not violate the FMLA by
discharging employee with spotty attendance record after she called in sick for two days, even assuming
that employee suffered from clinical depression and absence was related to that condition, where
employee stated as reason for absence that she was “sick,” without other notice until she filed suit that
her medical condition might be serious or that the FMLA otherwise might be applicable.
11. The plaintiff did not have a claim under Title VII, which does not recognize sexual preference or
orientation as a protected category. But, because the employer was a public entity, i.e., a state actor,
the plaintiff was able to assert a cause of action under the 14th Amendment of the U.S. Constitution,
via the conduit of 42 U.S.C. sec. 1983. In some states, such a plaintiff might also have a cause of
action under that jurisdiction’s anti-discrimination statute, many of which now extend protectio to
employees on the basis of sexual preference, gender orientation and the like.
12. Yes. The court held that the college had discriminated against Thompkins because of her sex. The college
could not evade the effects of treating male faculty differently by labeling them as part-timers; the court
found that there was no clear distinction between full-time and part-time teaching positions. The college
also refused to allow Thompkins to teach part-time. In addition, there was evidence of sex discrimination
in statements by college officials about "a woman doesn't need two jobs."
13. No. The court held that Title VII did not apply to this caseTitle VII does not protect against
discrimination on the basis of sexual preference. The court also held that her constitutional rights had not
been violated by the disenrollment.
14. No. The court held that, at best, Southwest's evidence demonstrated that its customers preferred female
attendants and clerks, and customer preference was not sufficient to support a business necessity claim of
a BFOQ. The court held that the nature of Southwest's business was transportation, and Southwest had not
shown that the safe and efficient transportation of passengers required that the attendants and clerks must
be female.
15. Vorman could argue that NASA, by refusing to hire him based on its perception of his sexual preference,
violated his right to equal protection under the Fifth Amendment of the U.S. Constitution. As several
courts have noted with challenges to the military's ban on gays, the government must demonstrate that the
individual has engaged in homosexual conduct as the basis for rejection; suspicion or perception that the
individual is gay is not a sufficient justification for the government agency's treatment of the individual. In
the Macy case, the court rejected NASA's discharge of a budget analyst suspected of being homosexual
because he "possessed personality traits rendering him unsuitable for further government service."
However, if the position Vorman sought required security clearance for national security information, the
refusal to grant such a clearance because of the individual's sexual preference would likely be upheld by
the court. In High Tech Gays v. Defense Industry Security Clearance Office, the Court of Appeals rejected
an equal protection challenge to Defense Department regulations denying security clearance to gays; the
government argued that gays would be susceptible to blackmail or other possible actions that could threaten
security because of their sexual orientation or sexual preference.
HYPOTHETICAL SCENARIOS
16. Yes. Lee’s employer discriminated against Lee because she has small children. This is frequently called
“sex plus” discrimination. The employer has not demonstrated that being a male with no children is a
necessity to the normal business operation as it relates to this position. Lee’s employer cannot exclude
Lee from being given proper consideration for this position because they had not shown that she would
be unable to perform the requirements of the job properly.
17. Title VII prohibition on sexual harassment does not include harassment based on sexual orientation or
sexual preference according to Hammer. However, there are several other remedies that Berks can turn
to, for example, his state’s EEO laws prohibiting discrimination based on sexual orientation. He can
also see if there are any human rights ordinances that protect against discrimination stemming from
sexual preference in his city. The Equal Protection Clause of the Constitution protects against
discrimination on the basis of homosexuality.
18. Carter is entitled to such leave. This is because the amended FMLA allows employees to take “military
caregiver leave” to care for a child or family member who is a current member of the armed forces and
suffers a serious illness or injury. Carter must provide the employer with enough documentation and
information to show the FMLA applies, for example, a certification from a health care provider.
19. Student’s answers may vary on this question. Based upon the facts given, it seems that Morris’
comments are a mere offensive utterance, which Title VII does not protect against. When the workplace
is permeated with “discriminatory intimidations, ridicule, and insult,” that is “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment,” then is Title VII is violated. Employers are liable for sexual harassment by managerial
employees and may also be liable for harassment by co-workers under certain circumstances. In this
scenario, the employer was aware of the harassment but failed to take action to stop it. If Bloom were
Morris’s graduate student, the answer would all depend upon the university’s policies against sexual
harassment as it relates to students.
20. Student’s answers may vary on this question. The Equal Pay Act of 1963 requires that men and women
performing substantially equal work be paid equally. In this case, the employer can argue that the pay
difference is due to a factor other than sex, for example, the fact that Williams graduated from an Ivy
League school probably gave him more negotiating leverage. They could argue that this had nothing to
do with sex or gender.

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Cihon/Castagnera, Employment & Labor Law, 7e Ch 7 Instructor’s Manual 1

Solution Manual for Employment and Labor Law 8th Edition

A. Basic Scope of Statute

1. Title VII prohibits any discrimination in terms or conditions of employment because of an

B. Dress Codes and Grooming Requirements

1. The act prohibits imposing different working conditions or requirements on similarly

2. Section 703(e)(1), which defines the BFOQ exemption, states that:

4. Employer convenience, customer preference, or co-worker preference is not sufficient.

CASE 7.1 DIAZ V. PAN AMERICAN WORLD AIRWAYS

CASE 7.2 PRICE WATERHOUSE V. ANN B. HOPKINS

Waterhouse was likely influenced by sex stereotyping.

ANSWERS TO CASE QUESTIONS

PRICE WATERHOUSE V. ANN B. HOPKINS

II. Gender Discrimination in Pay

A. The Equal Pay Act

b) The act also covers state and local government employees.

c) Federal employees covered include: House of Representatives, Senate, Capitol Guide

f) Equal Responsibility – includes a substantially equivalent degree of accountability required

B. Defenses Under the Equal Pay Act

CASE 7.3 LAFFEY V. NORTHWEST AIRLINES

in the Equal Pay Act.

C. Procedures Under the Equal Pay Act

3. Suit must be filed within 2 years of the alleged violation.

(i) when the discriminatory pay practice or policy is adopted,

E. Title VII and the Equal Pay Act

F. Gender-Based Pension Benefits

CASE 7.4 CITY OF LOS ANGELES V. MANHART

Decision: Yes. Employment decisions cannot be predicated on mere “stereotyped” impressions

ANSWERS TO CASE QUESTIONS

III. Pregnancy Discrimination

E. Pregnancy and Hazardous Working Conditions

IV. Legal Protection for Nursing Mothers

V. The Family and Medical Leave Act

C. Entitlement to Medical Leave

D. Military Leave Provisions

a) issues arising from a family member’s short notice deployment—deployment on notice of

d) making or updating financial or legal arrangements to address a family member’s absence

f) attending certain post-deployment activities such as arrival ceremonies, reintegration

4. Military Caregiver Leave

E. Notice Requirements for FMLA Leave

2. Must provide enough information to employer to see if the FMLA applies.

a) Non-eligibility reasons include:

(i) Not covered by FMLA

(ii) Key employee

(iv) Employee has used up his leave entitlement

F. Job Restoration Requirements

CASE 7.5 NOVAK V. METROHEALTH MEDICAL CENTER

G. Effect of Other Laws on the FMLA

VI. Sexual Harassment

EEOC GUIDELINES ON SEXUAL HARASSMENT

B. Quid Pro Quo Harassment

a) She or he belongs to a protected group

b) She or he was subject to unwelcome sexual harassment

c) The harassment was based on sex

e) There is some basis to hold the employer liable.

C. Hostile Work Environment Harassment

CASE 7.6 HARRIS V. FORKLIFT SYSTEMS, INC.

ANSWERS TO CASE QUESTIONS

HARRIS V. FORKLIFT SYSTEMS, INC.

2. Reasonable Person or Reasonable Victim?

D. Employer Liability for Sexual Harassment

a) Supervisors or managerial employees, acting in the course of their employment, are

3. Employer Liability for Supervisors

CASE 7.7 FARAGHER V. CITY OF BOCA RATON