Short answer question responses and analysis

¶ … individual with a communicable disease that is a disability is other wise qualified for the job?

Individuals with disease can be judged for qualifications in the same way as any other individual applying for a job. Communicable or infectious diseases are considered to constitute a disability when the disease is impairing to such a degree that it "limits one or more major life activities" (Human Resources UNC). In these cases, individuals with communicable disease should be treated like any other disability. When judging whether a disabled individual is qualified for a job, it must be determined if they can perform the specific job with reasonable accomodations. If a communicable disease does not result in disability, then the individual should be judged as a nondisabled person. Additionally, law generally "permits an employer to fail to hire, transfer, promote, or to discharge a disabled person if the person has a communicable disease which would disqualify a nondisabled person from similar employment." (Human Resources UNC)

So the question becomes, what makes a communicable disease disqualifying? It would first be disqualifying if it prevented the individual from fulfilling the requirements of the job despite accomodations. Secondly, it would be disqualifying if the disease posed a documented danger to other employees or customers. Such a danger could exist if the disease were airborne, or if the employee works in a situation which could infect others such as being in food services. If there is no danger to other persons from the disease, it is not considered disqualifying.

2. Carter was hired as a disc jockey, by Warren, when he was aged 54. Two years later, during economic hard times, Carter is laid off by Warren. Carter brings a claim of age discrimination against Warren. On the basis of these facts alone what is Warren's best defense to Carter's claim? Explain?

The simplest defense would be that Warren was having financial difficulties and that this was the only reason for Carter's claim -- after all, if Warren were prejudiced against older people, he would not have hired a 54-year-old individual, as there is not a significant difference in age between a 54 and 56-year-old disc jockey. If there were other factors involved, such as Warren simultaneously hiring a younger jockey, or preferring a young jockey, then there might be a case for Carter. However, the short span of time between when Carter was hired and when he was fired, and the economic difficulties involved, tend to point to motivation other than age.

3. The Christina Bookstore of Port Alice seeks a cashier. Mansour, a Muslim. Applies for the job. He is not hired because he is not a member of a Christina religion. When sued for religious discrimination, by Mansour, the Bookstore asserts membership in a Christian religion as a BFOQ. Under what conditions will this defense be successful?

Religion as a Bona Fide Occupational Qualification (BFOQ) is particularly difficult and sensitive to determine. Religion is accepted as a BFOQ in cases of religious organizations/churches and "any church, school, college, university, or other educational institution ... If the institution is operated, owned, supported, and controlled by a religious corporation, or if the curriculum is intended to disperse the ideas of a particular religion." (Choose Charity) However, it is generally understood that this exception does not apply to for-profit businesses which are merely owned or aimed at people of particular faiths, unless the job specifically calls for a certain faith. For example, it might be acceptable to require a specific faith if the job involved counseling about the faith, or making faith-based decisions. Thus, if the bookstore in question were hiring someone to make decisions regarding what books were stocked, then that person might theoretically need theological knowledge about the way the content lined up with the faith. "This exemption does not apply...t o for-profit corporations whose business pertains to religious functions or activities or whose management happens to be Christian and operates the business according to religious guidelines or goals such as Bible bookstores or Christian daycare centers." (Choose charity)

The bookstore will only succeed in its claim if it can somehow show that cashiers need to be able to recommend books and be familiar with the faith, and that Mansour was unable to fulfill that function because as a Muslim he was unfamiliar with the religion. It is actually more likely that the store would succeed in its claim because of its size. Most Christian bookstores are small and have a small staff. "Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." Alternately, with a sympathetic judge, "an employer who has an essentially religious mission for his commercial enterprise, in which some may qualify for the "bona fide occupational qualification" status for religious requirements." (Rochelle)

4. What protections, if any, does Title VII afford gay and lesbian individuals?

Title VII does not provide any protection to gay and lesbian individuals on the basis of their sexual orientation, and on the contrary gay and lesbian individuals have historically had less protection from sex-based discrimination than do heterosexuals. For example, it is illegal to discriminate against a woman for being feminine (as in a construction job), but it has often been held permissible to discriminate against a man for being feminine and failing to adhere to sexual stereotypes. This tendency has been challenged in the very recent past, with courts beginning to "understand that even though Title VII does not include sexual orientation or gender identity as protected classes...and recognizing the viability of gender stereotyping claims under a sex discrimination or sex harassment theory." (Cohen) The only form of protection which a gay or lesbian might have under Title VII, then, would be to claim that the discrimination was based on their failure to live up to sexual stereotypes other than mate choice. However, this does not protect "straight-acting" individuals who are discriminated against for purely sexual reasons.

One significant change recently has been that transgendered or transsexual individuals have been receiving protection under the gender/sex clause. For example, the 6th Circuit ruled: "an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination. ... It follows that employers who discriminate against men because they do wear dresses and makeup ... are also engaging in sex discrimination."