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How impartial are your employment policies? Most, if not all, employers know that employment discrimination is illegal. However, the multiplicity of federal and State laws regulating the employment relationship can present traps for the unwary. By Janet E. Goldberg and Janet Hedrick Editor's Note: This is the first of a three-part series discussing the practical and legal considerations of hiring and firing for park district employers. The series will continue in the July/August and September/October issues of IPR. It is imperative that employers, particularly those in the public sector, become familiar not only with the existence of various federal and State laws which proscribe employment discrimination, but also with the scope of this coverage. Federal statutes The central statute in the federal framework of equal employment opportunity laws is Title VII of the Civil Rights Act of 1964. Title VII applies to public employers, such as park districts, if they employ 15 or more employees. It prohibits employers from making any employment decision solely on the basis of the race, skin color, religion, sex, national origin or pregnancy of the employee. These categories are referred to as "protected classes." When an employer hires, fires, promotes, disciplines or takes any other action affecting the conditions of employment of any individual, he must have some reason for that action other than the individual's membership in a protected class. Use of the term "protected class" does not mean, however, that only minorities and women, the traditional targets of discrimination, enjoy the protection of Title VII. Courts have also held that Title VII protects non-minorities and men from discrimination. These so-called "reverse discrimination" cases are increasingly popular and have received widespread attention in recent years. Disparate treatment There are two basic types of discrimination that can result in employer liability under Title VII. The first and most common, called "disparate treatment," arises when an individual is intentionally discriminated against on grounds that are impermissible under the Act. In order to prove a claim based on disparate treatment in the context of hiring and firing, an employee must prove he is a member of a protected class, was qualified for the position, was fired or that his application for employment was rejected, and that the position either remained open or was filled by someone with similar qualifications. Once these elements have been established, it is presumed that the reason for the adverse decision was discriminatory. It is then the employer's responsibility to present a legitimate, nondiscriminatory reason for his action. For example, this could be a history of poor performance evaluations or excessive absenteeism. Even if the employer can establish a legitimate reason, the employee can still prevail if he shows that other employees or applicants with similar histories and qualifications have been .treated less harshly for similar misconduct or shortcomings. This process points up the importance of maintaining records of all actions taken regarding all employees and applicants. Employers should make a written record of every termination and rejected application, including the reason for the action and the surrounding circumstances. Illinois Parks and Recreation 19 May/June 1985 The document can be used as ready evidence in any future discrimination suit to rebut an inference of improper motivation. Records should also be kept of the reasons for every new hire and promotion. This will facilitate a showing that such decisions are made on the basis of merit. Disparate impact The second and perhaps less familiar form of discrimination is known as "disparate impact." It arises when an employment policy which is neutral on its face has an unfair effect, or "adverse impact," on a protected class of employees, regardless of whether the effect is intentional. Disparate impact discrimination occurs most frequently in connection with hiring. An employer may have a selection procedure or criterion which is applied evenly to all applicants, but the practical effect of which is to exclude members of a protected class at a significantly higher rate than it excludes non-protected individuals. If the disparity in selections rates is great enough, the selection procedure or criterion will be considered to be discriminatory unless the employer can prove its validity by demonstrating that it is reasonably related to job performance or a business necessity. A clear example of a selection criterion that may have an adverse impact is a strength requirement, such as requiring that all applicants be able to lift 100 pounds. The same degree of strength is required of all applicants. The requirement is neutral on its face, but it may exclude many more women than men. If the difference in the selection rate is significant, the employer must stand ready to demonstrate that the required degree of strength is actually necessary to perform the job. If he is hiring loading dock workers who must lift 100-pound boxes Illinois Parks and Recreation 20 May/June 1985 fairly frequently, the requirement is reasonably related to job performance and, thus, probably acceptable. If the heaviest box to cross the dock in that last six months weighed only 50 pounds, however, or if the workers use machinery to do all the loading, this requirement is not reasonably related to job performance. Its disparate impact on women may expose the employer to liability for sex discrimination. Retaliation protection Title VII also prohibits "retaliation" against employees for the exercise of rights protected by the Act. Employees are thus entitled to make charges, testify, assist and participate in any manner in an investigation, proceeding or hearing under Title VII. One final prohibited practice under Title VII is discriminatory advertising. Help-wanted ads cannot be classified according to any protected characteristics. If a newspaper has separate columns for "male" and "female" ads, employers should ensure that their ad runs in both columns. They should also state that the job is open to both sexes. Employer defenses Employers are not liable under Title VII, even if their employment decisions have a disparate impact on a protected class, if those actions were taken pursuant to a seniority or merit system. Furthermore, employers may act on the basis of religion, sex or national origin when one of those characteristics is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of the enterprise. The BFOQ exception is very limited, however, and difficult to prove. Congress indicated that the exception could be used in cases where a certain characteristic was necessary for authenticity, such as a French or Italian chef preferred for work in a French or Italian restaurant. The preferences of customers or coworkers generally are not an acceptable basis for a BFOQ. For example, an airline may not reject a man because customers expect flight attendants to be female. A manufacturer may not reject a Black salesman because most of his customers are White. A police department or a park district may not reject a woman for fear that she will not be accepted by other employees. ADEA The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against persons between the ages of 40 and 70. The Act applies to park districts and other employers if they employ 20 or more employees for 20 or more weeks per year. The substantive provisions of the ADEA are closely patterned after
Title VII, and include nearly identical prohibitions against retaliation and discriminatory advertising. They also provide an exemption for bonafide seniority programs and BFOQs. The similarities in language and policy between the two statutes have led most federal courts to apply the Title VII disparate treatment and disparate impact principles to ADEA cases. One major difference between the two statutes, however, is that the ADEA provides for a jury trial. There is some evidence that jury trials result more often in verdicts for the plaintiff. Thus, ADEA plaintiffs are more likely to receive a favorable decision than Title VII plaintiffs. This is because a judge, familiar with legal standards, will demand only that the employer's actions be legal and nondiscriminatory. A jury is more likely to demand that the employer's actions be fair as well as non-descriminatory. Age discrimination is an increasingly active area of litigation, and awards against errant employers can be quite substantial. Traditionally, employees who prove they have been discriminatorily treated are entitled to be put in the position they would have occupied absent the discrimination. This is known as "make whole" remedy. Where an employee claims he or she was discharged as a result of discrimination, the traditional remedy is reinstatement with backpay.
In ADEA cases, an employee who proves discrimination is also entitled to what are known as "liquidated" damages if he proves the discrimination was "willfull." Liquidated damages are essentially double the employer's regular damages. Finally, some courts have ruled that damages for "front pay" can be awarded instead of reinstatement in ADEA cases. These damages represent the amount of money the employee would earn if he or she worked until normal retirement age. With all these potential sources of damage awards, it is easy to see why ADEA suits have become increasingly popular. It is also easy to see that they are potentially quite costly. Therefore, park districts should be aware of the areas where age discrimination can present problems and conscious of the effects certain policies may have on older workers. Age discrimination problem areas Whenever an employer is forced to lay off workers there may be a disparate impact on people over 40. An employer should look carefully at the employees being laid off to determine whether older employees are more severely affected than others. If so, he should either balance the disparity with some younger workers or be ready to justify the action as a "business necessity." He must also show that it was necessary to terminate specific employees to increase efficiency or cut losses.
If only one employee is terminated, the employer may be exposing himself to a disparate treatment suit. While the ADEA does not require an employer to accord preferential treatment to members of the protected age group, it mandates that employment decisions be made without regard to age. Another problem area is early retirement, especially when it is offered as an alternative to discharge. In such a situation the key questions are whether the person voluntarily chose retirement and whether age was the motivation for the employer's action. A jury will often answer these questions by determining whether the employee has been treated fairly. If the employer offers extra incentives to take an early retirement — increased benefits, a nice bonus, and job-hunting expenses — the decision to accept such a package is much more likely to be viewed as a voluntary choice. Therefore, the employee does not feel so abused that he is motivated to file suit. He may be willing to sign a release of all potential claims arising from his employment, and should be requested to do so. On the other hand, if an employer wants to offer early retirement without enhanced benefits to a person who has already been selected for termination, he must be ready to prove that he is justified in firing that person. One other area to watch for age discrimination is advertising. A help-wanted ad for a "young, aggressive salesperson" or a "recent graduate" has been held to be discriminatory. A request for applicants with only a minimum of experience may also be discriminatory because older workers generally have more experience than their younger colleagues. Saving money in salaries generally is not considered a "business necessity" adequate to justify the disparate impact in such a case. The Rehabilitation Act The Rehabilitation Act of 1973 prohibits discrimination, solely on the basis of handicap, against any handicapped individual under any program or activity receiving federal finance assistance. It also imposes upon parties to federal contracts an obligation to take affirmative action to employ, and to advance in employment, qualified handicapped individuals. If the park district receives federal finance assistance or has government contracts, those in charge of hiring should acquaint themselves with federal handicap discrimination requirements. In general, these requirements are similar to those discussed under the Illinois Human Rights Act. Furthermore, other federal funding laws may individually require nondiscrimination and affirmative action as a condition to the receipt of specific federal funds. The park district official who negotiates a contract with the federal government, or who arranges for receipt of federal funds, should be sure to alert those in charge of hiring to any provisions requiring affirmative action. Next: Illinois Statutes. ABOUT THE AUTHORS: Janet E. Goldberg is a partner with the law firm of Friedman and Koven in Chicago. Her practice is limited exclusively to representing private and public employers in labor relations and equal opportunity matters. She is also a published authoress and an active member of the Labor Relations Committee of the State Chamber of Commerce. She graduated from the University of Illinois College of Law in May, 1975. Janet Hedrick is a third year law student at the University of Chicago Law School.
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