HRM textbook

36 PART 1 INTRODUCTION
BURDEN OF PROOF First, CRA 1991 addressed the issue of burden of proof.
Burden of proof what the plaintiff must show to establish possible illegal
discrimination, and what the employer must show to defend its actions plays a
central role in equal employment cases. 18 Today, in brief, once an aggrieved applicant
or employee demonstrates that an employment practice (such as must lift
100 pounds ) has an adverse impact on a particular group, then the burden of proof
shifts to the employer, who must show that the challenged practice is job related. 19
For example, the employer has to show that lifting 100 pounds is actually required for
performing the job in question, and that the business could not run efficiently
without the requirement that it is a business necessity. 20
MONEY DAMAGES Before CRA 1991, victims of intentional discrimination
(which lawyers call disparate treatment) who had not suffered financial loss and who
sued under Title VII could not then sue for compensatory or punitive damages. All
they could expect was to have their jobs reinstated (or to get a particular job). They
were also eligible for back pay, attorneys fees, and court costs.
CRA 1991 makes it easier to sue for money damages in such cases. It provides that
an employee who is claiming intentional discrimination can ask for (1) compensatory
damages and (2) punitive damages, if he or she can show the employer engaged in
discrimination with malice or reckless indifference to the federally protected rights
of an aggrieved individual. 21
MIXED MOTIVES
Finally, CRA 1991 states:
An unlawful employment practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice. 22
The last phrase is pivotal. Some employers in so-called mixed motive cases had
taken the position that even though their actions were discriminatory, other factors
like the employee s dubious behavior made the job action acceptable. Under CRA
1991, an employer cannot avoid liability by proving it would have taken the same
action such as terminating someone even without the discriminatory motive. 23 If
there is any such motive, the practice may be unlawful. 24
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) of 1990 prohibits employment discrimination
against qualified disabled individuals. 25 It prohibits employers with 15 or
more workers from discriminating against qualified individuals with disabilities, with
regard to applications, hiring, discharge, compensation, advancement, training, or
other terms, conditions, or privileges of employment. 26 It also says employers must
make reasonable accommodations for physical or mental limitations unless doing
so imposes an undue hardship on the business.
The ADA does not list specific disabilities. Instead, EEOC guidelines say
someone is disabled when he or she has a physical or mental impairment that
substantially limits one or more major life activity. Impairments include any
physiological disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of several body systems, or any mental or psychological
disorder. 27 The act specifies conditions that it does not regard as disabilities,
including homosexuality, bisexuality, voyeurism, compulsive gambling, pyromania,
and certain disorders resulting from the current illegal use of drugs. 28 The
EEOC s position is that the ADA prohibits discriminating against people with
HIV/AIDS (and numerous state laws also shield such people).
MENTAL IMPAIRMENTS AND THE ADA Mental disabilities account for
the greatest number of ADA claims. 29 Under EEOC ADA guidelines, mental
impairment includes any mental or psychological disorder, such as . . . emotional or
mental illness. Examples include major depression, anxiety disorders, and
personality disorders. The ADA also protects employees with intellectual disabilities,