January 2000, Vol. 123, No. 1
The law at work
Title VII decisions
Health care "employees"
Firing the Coach
Charles J. Muhl
Office of Publications and Special Studies, Bureau of Labor Statistics
Title VII decisions
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire, refuse to hire, or discharge any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. A number of lawsuits brought by employees under Title VII were recently ruled on by different U.S. circuit courts of appeals and district courts.
In Schurr v. Resorts International Hotel, Inc., 1 the U.S. Court of Appeals for the Third Circuit ruled that a hotel-casino in Atlantic City engaged in a discriminatory hiring practice when it hired an equally qualified black man over a white applicant because the hotel had not yet attained its goal for minority employment. The court found that the affirmative action plan relied upon for the hiring decision was not created to rectify past or present discrimination by the hotel, as required under current Supreme Court doctrine.
The plaintiff, Karl Schurr, applied for a job as a light and sound technician at Resorts in July 1994. The director of show operations at the hotel narrowed the field of candidates down to Schurr, who is white, and Ronald Boykin, who is black. The director found the two applicants to be equally qualified and hired Boykin because the hotel had not yet reached 25-percent minority employment in all technical jobs, as is encouraged by the New Jersey Casino Control Act. When Boykin was hired, minority technical employees constituted 22.25 percent of Resorts’ technical workers.
The circuit court found that Resorts refused to hire Schurr on the basis of his race and that the decision violated Title VII because the affirmative action plan was not created as a result of any manifest imbalance or in response to a finding that any relevant job category was ever, or had been, affected by segregation.
In Olsen v. Marriott International, Inc., 2 the U.S. District Court for the District of Arizona held Marriot liable for sex discrimination in violation of Title VII after the company’s Camelback Inn Spa in Scottsdale refused to hire a massage therapist because he was male.
The court ruled that Marriott did not prove that being female was a bona fide occupational qualification for a certain percentage of massage therapist jobs, finding instead that the nonhiring of male massage therapists was based on customer preference. Such a qualification is permissible in situations where a customer’s or client’s bodily privacy interests might otherwise be compromised. The analysis in privacy-based cases has to do with whether the performance of tasks central to the employer’s mission intrudes upon the privacy rights of third parties, such as patients or clients, of the opposite sex. However, a bona fide occupational classification is not permissible on the basis of customer preferences alone. The court also stated that Marriott failed to show that there are no reasonable alternatives to a sex-based hiring practice. The court noted that, because clients are permitted to choose the sex of the massage therapist who works with them, privacy concerns are not present.
In Bollard v. California Province of the Society of Jesus, 3 the U.S. Court of Appeals for the Ninth Circuit ruled that a religious order can be sued under Title VII by a former seminarian who claimed that he was sexually harassed by his supervisors for years. Although, under Title VII, churches are immune from having to justify employment decisions regarding ministerial employees, they cannot assert this immunity in the context of a sexual harassment suit, because such alleged behavior is unrelated to the method of choosing their clergy, the court noted.
John Bollard was a novice at St. Ignatius College Preparatory School in San Francisco and the Jesuit School of Theology in Berkeley from 1990 to 1996. He claimed that his superiors gave him pornographic material, subjected him to sexual advances, and engaged him in sexual discussions. Although he complained about the conduct, he received no response and alleged that the harassment was so severe that he was forced to leave the order in December 1996 before taking his vows.
The ministerial exception under Title VII was included in the Act in order to permit churches to choose their religious representatives free of government intrusion. The court indicated that the exception is limited to that which is necessary to comply with the first amendment’s free-exercise-of-speech clause. In weighing the government’s interest in protecting employees against sexual harassment against the danger that permitting sexual harassment claims to go forward might interfere with the exercise of religious beliefs, the court found that the government interest was superior. Because the church expressly disapproves of sexual harassment, its position does not conflict with permitting ministers to be liable for sexual harassment.
In Simpson v. Borg-Warner Automotive, Inc., 4 the U.S. Court of Appeals for the Seventh Circuit held that a company committed no violation of Title VII in the case of a supervisor who had asked to return to a production-line position to escape allegedly hostile working conditions. The court found that the plaintiff failed to meet the burden of showing an intolerable work environment based on the alleged hostile working conditions. Thus, the plaintiff did not establish that she was discriminated against because of her sex.
Working as a production facilitator, Virginia Simpson supervised the afternoon shift at Borg-Warner Automotive Transmission System Corporation’s plant in Bellwood, Illinois. In 1995, she requested and was eventually granted a return to a production-line position. She alleged that her request constituted a constructive demotion, because it was made in response to several hostile working conditions, including the company’s delay in discharging an employee who had threatened Simpson, the company’s mandate that Simpson retake a basic skills test, and other problems.
The court found that Simpson failed to show that she suffered adverse employment action sufficient to sustain a Title VII claim. Analyzing the constructive-demotion concept in the same fashion as a constructive discharge, the court noted that a plaintiff must show that his or her working conditions were so intolerable that a reasonable person would have been compelled to resign and that discrimination was the motive behind the intolerable environment. The court found that Simpson’s complaints were comparatively minor, or simply unpleasant and embarrassing employer actions. Such conduct is not sufficient to establish intolerable working conditions, according to the court.
The Occupational Safety and Health Administration (OSHA), an Agency under the U.S. Department of Labor, was created by Congress in 1970 to address concerns over workplace safety and health. 5 The mission of the Agency is to "save lives, prevent injuries, and protect the health of America’s workers." 6 OSHA has approximately 2,100 inspectors, plus complaint discrimination investigators, engineers, physicians, educators, standards writers, and other technical and support personnel, spread over more than 200 offices throughout the country. 7 This staff establishes protective standards, enforces those standards, and maintains contact with employers and employees through technical assistance and consultation programs. 8
In recent months, OSHA addressed two "hot-button" topics that have arisen as a result of changes in the modern workplace and its environment. OSHA proposed a new ergonomics standard in November 1999 and subsequently issued an advisory regarding coverage of tele-commuters under the safety and health protections of the Act.
The proposed ergonomics standard is designed to address concerns about an increase in repetitive stress injuries, such as carpal tunnel syndrome, suffered by employees. The standard would require employers in manual handling and manufacturing operations to implement ergonomics programs at their places of business. As long as one musculoskeletal disorder was reported by an employee at a workplace, the standard would be triggered. Employers in agriculture, construction, and maritime operations are excluded under the proposed standard. OSHA argues that employer compliance with the standard will prevent approximately 300,000 injuries per year. The cost of compliance to employers will be about $4.2 billion annually, but employers will save an estimated $9.1 billion annually by eliminating absences, treatment, and other costs associated with repetitive stress injuries.
Under the proposed rule, OSHA would require employers to establish an ergonomics program with the following features: job hazard analysis and control; training of employees, supervisors, and staff on jobs with covered musculoskeletal disorder hazards; musculoskeletal disorder management for workers in covered jobs; program evaluations; and recordkeeping.
The standard includes a "quick-fix" program that would allow employers to avoid the full implementation of an ergonomics program if they care for an injured employee promptly, work with employees to eliminate musculoskeletal disorder hazards within 90 days, verify that the procedures used to correct the hazards worked within another 30 days, and keep a record of the hazard controls.
The proposed rule also includes a grandfather clause that permits companies with existing ergonomics programs to keep those programs, as long as (1) the employers meet the basic obligations and recordkeeping requirements of the proposed standard, (2) the programs were implemented and evaluated prior to the time the standard becomes effective, and (3) the grandfathered programs are in fact eliminating or materially reducing musculoskeletal disorder hazards.
In addition to the "quick-fix" program and grandfather clause, limited record-keeping and extended compliance dates are designed to provide employers with flexibility to meet the standard. OSHA stated that the rule is the most flexible standard it has ever proposed.
Health care "employees"
The National Labor Relations Board (NLRB) recently held that "house staff" in private hospitals—interns, residents, and fellows—are employees entitled to protection under the National Labor Relations Act (NLRA), overturning a precedent that stood for more than 20 years. In Boston Medical Center Corp. and House Offi-cers’ Association/Committee Of Interns and Residents, 9 the Board ordered an election among all physicians, including interns, residents, and fellows, at Boston Medical Center to determine whether the employees will be represented by the House Officers Association.
The decision that interns and residents meet the NLRA statutory definition of employee means that more than 90,000 persons in such positions nationwide now will be protected by the Act. The NLRB ruled that the interns and residents work for an employer within the meaning of the term under the NLRA, and they are compensated for their services. They receive fringe benefits, paid vacations and sick leave, and health, dental, and life insurance. They also are eligible for workers’ compensation if injured on the job and are provided with malpractice insurance. Thus, the essential elements of the relationship between the hospital and its interns indicate that the relationship is that of employer and employee. The NLRB analogized the interns and residents of those hospitals to apprentices in other industries who have traditionally been treated as employees under the NLRA.
The Board’s decision overturned two holdings from the 1970s: in Cedars Sinai Medical Center 10 and St. Clare’s Hospital, 11 the NLRB had ruled that "house staff" of hospitals were primarily students and were not covered as employees under the NLRA.
Firing the coach
A former assistant football coach at the University of Southwestern Louisiana who was fired because his son chose to play football at a rival Louisiana school recently had his lawsuit against the university for wrongful termination thrown out of court. In Kipps v. Caillier, 12 the U.S. Court of Appeals for the Fifth Circuit ruled that the university had an objectively reasonable justification for firing the coach, thus immunizing the school from civil liability. In his suit, Rexford Kipps had claimed that his constitutional right to "familial association" had been violated.
Kipps worked for 11 years at the University of Southwestern Louisiana (subsequently renamed the University of Louisiana at Lafayette). His son Kyle was an outstanding football player in high school during 1996–97 and was actively recruited by many schools in the State. Nelson Stokley, the head football coach at Louisiana-Lafayette, told Kipps that his son should attend the university, but Kyle instead gave an oral commitment to attend Louisiana State University in February 1997 on a football scholarship. When Stokley told Kipps to prevent his son from entering a written agreement to attend Louisiana State, he refused and was subsequently fired. The termination was approved by Louisiana-Lafayette’s athletic director and university president, as well as by the president of the Board of Trustees for Louisiana State Colleges and Universities. All of these parties and the head coach were named as defendants in the lawsuit.
In holding for the defendants, the circuit court indicated that public officials cannot be held liable in civil court for acting within their official capacities, unless the conduct clearly violates an established statutory or constitutional right. And even then, if the conduct by the public official is unconstitutional, it still does not create liability if it is "objectively reasonable." Not only did the court not hold that a clearly established constitutional right to familial association existed in this case, but it found that, even assuming that such a right was established, the defendants’ firing of Kipps was objectively reasonable. The defendants argued, and the court agreed, that Kipps was fired in order to mitigate the damage on alumni relations and recruiting efforts inflicted by his son’s attendance at a rival Louisiana state school.
1 U.S. Court of Appeals, Third Circuit, Case No. 98–5356.
2 U.S. District Court for the District of Arizona, Case No. civ 97–1506-phx-ros.
3 U.S. Court of Appeals, Ninth Circuit, Case No. 98–16194.
4 U.S. Court of Appeals, Seventh Circuit, Case No. 99–1048.
5 The agency was established under the Occupational Safety and Health Act of 1970. (Ed. note: The Bureau of Labor Statistics, which publishes the Monthly Labor Review, also is an agency under the U.S. Department of Labor.)
6 From OSHA Internet site at http://www.OSHA.gov/oshinfo/mission.html, visited Jan. 7, 2000.
9 330 NLRB No. 30.
10 223 NLRB 251 (1976).
11 229 NLRB 1000 (1977).
12 U.S. Court of Appeals, Fifth Circuit, Case No. 98–30978.
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