Employment Discrimination Law OUTLINE

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Employment Discrimination Law Arthur Leonard Fall 2010 Part I. Introduction  Overview of Federal Statutory Framework o Federal Employment Discrimination Statutes  1866 – Reconstruction Civil Rights Act, Section 1981 (race, color, ethnicity)  1963 – Equal Pay Act – EPA (sex – compensation)  1964 – Civil Rights Act of 1964, Title VII (race, color, religion, national origin, sex)  1967 – Age Discrimination in Employment Act – ADEA (age – 40 or over)  1986 – Immigration Reform and Control Act – IRCA (citizenship, national origin)  1990 – Americans with Disabilities Act – ADA (qualified person with a disability)  1993 – Family & Medical Leave Act – FMLA (persons who seek or take FMLA leave)  2008 – Genetic Information Nondiscrimination Act (genetic traits)  Pending:  Employment Non-Discrimination Act – ENDA (sexual orientation, gender identity)  Note: 11th Amendment Immunity  Constitutional Claims for Public Employees  1st, 5th, and 14th Amendments o Equal Employment Opportunity Commission – handles employment discrimination claims. Makes findings to bring to court or issues a right to sue letter. Plaintiff has 180 day statute of limitations to bring claim to EEOC or 300 day statute of limitations if jurisdiction has another agency to complain to (deferral jurisdictions).  Court action must be initiated no later than 90 days from receipt of EEOC right to sue letter – but time may be equitably tolled.  Ledbetter v. Goodyear Case (U.S. 2007) – the statute of limitations begins to run when an individual becomes subject to the practice, when the practice is adopted, or when the individual is affect.  Coverage Issues – o Title VII, §701(f) –  The term ―employee‖ means an individual employed by an employer, except that the term ―employee‖ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer‘s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or


legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.  (b) The term ―employer‖ means 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. o Employee – an individual employed by an employer; subject to policies; paid for time; under control of employer. o Employer – employs 15 or more employees; people who make policies; includes any agent of the employer. An agent is defined as a supervisory employee who has the authority to make personnel decisions regarding hiring or firing employees or to otherwise set the terms and conditions of employment for applicants and employees. o Employment Practice – anything connected with ―compensation, terms, conditions or privileges or employment.‖ Remedies – Title VII §706 o Back pay o Front pay (hiring cases) o Compensatory & Punitive damages (malice) – capped  Employers with more than 14 but fewer than 101 employees: $50,000  More than 100 but fewer than 201: $100,000  More than 200 but fewer than 501: $200,000  More than 500: $300,000 o Liquidated damages (willful violations) – double unpaid wages o Taxation of damages awards o Attorney‘s fees – prevailing party o Instatement & reinstatement o Promotions

Part II. Theories of Discrimination and Analytical Paradigms  Title 703(a) - It shall be an unlawful employment practice for an employer – o (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or o (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.  Two principal theories of discrimination – o Disparate Treatment is when an employer intentionally treats some people less favorably than others because of their race, color, sex, religion or national origin.


It is the most easily understood type of discrimination because it is on its face discriminatory. Proof of discriminatory motive is critical, although in some situations it can be inferred from the mere fact of differences in treatment. o Disparate Impact is when an employer uses employment practices that are facially neutral in their treatment of different groups but in fact have a discriminatory affect and fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required. A. Disparate Treatment Theory  The Basic Theory – o Title 703(a) - It shall be an unlawful employment practice for an employer –  (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. o Burden of Proof – Plaintiff bears ultimate burden of proving intentional discrimination in a disparate treatment case  Direct evidence – If Plaintiff alleges direct evidence of intentional discrimination, Defendant can only win by either proving Plaintiff‘s allegations are untrue or (in all but race/color cases) proving a BFOQ affirmative defense  Circumstantial (indirect) evidence –  1. If Plaintiff alleges facts sufficient to raise an inference of discriminatory intent, that creates a presumption of unlawful conduct.  2. Burden of production shifts to employer to articulate a nondiscriminatory reason for its actions.  3. If employer articulates a non-discriminatory reason, presumption is rebutted and Plaintiff can only prevail by showing that employer’s explanation is pretextual and that there is no legitimate, non-discriminatory reason for the employer‘s challenged policy or action o Prima Facie Elements in a circumstantial evidence case - McDonnell Douglas v. Green (1973) - refusal to hire based on race. Plaintiff must allege:  Member of a racial minority,  applied and was qualified for an open position,  was denied the job,  position remained open and employer continued to accept applications from persons of complainant‘s qualifications o Furnco Construction v. Waters (1978) - employer may use statistics to rebut inference that it adopted hiring method for purpose of discriminating.  Employer would not take walk-in applications and hired people recommended by contractor so would not take employment applications directly from black applicants. (Note: 13.3% of hours worked on the job were by black workers.)


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Plaintiffs alleged prima facie case - They were qualified black applicants for available jobs whose applications were rejected – raises an inference of discriminatory intent – presumption of intentional discrimination Defendant - Hiring people known to the superintendent as competent and experienced meant that we were able to put together a workforce equipped to perform the tasks up to standard; ―Hours worked‖ breakdown showed that this method did not exclude people of color.

o Texas Dept of Community Affairs v. Burdine (1981) – Once employer has articulated a non-discriminatory reason for its actions, prima facie case is rebutted; burden of proof is on the plaintiff to show pretext. Employer bears no obligation to show that other employees it promoted or hired were better qualified than plaintiff. Title VII does not require employer to hire most qualified person for a position.  Plaintiff alleged elements of prima facie case of sex discrimination – presumption of discriminatory intent created  Defendant articulated a non-discriminatory reason for its actions – failure of several women in workforce to function as an effective group. o St. Mary’s Honor Center v. Hicks (1993) – Articulating non-discriminatory reason rebuts the presumption. Presumption does not spring to life again just because plaintiff discredits employer‘s articulated reason. Plaintiff still has ultimate burden of showing employer‘s action was based on race. Plaintiff may be able to do this using the prima facie case evidence and cross-examination of defendant‘s witnesses.  Plaintiff alleged prima facie case – raising presumption of intentional race discrimination.  Defendant cited plaintiff‘s disciplinary record, which led first to demotion and then discharge after an ―exchange of heated words‖ with supervisor – this would be a legitimate non-discriminatory reason for discharge  Plaintiff showed that other employees were not discharged with similar disciplinary records, and that management had a ―crusade‖ to discharge him. o Same Actor Defense – When persons of same group that hired and fired plaintiff, there is a presumption the action was not based on discrimination. Mixed Motive Cases & Civil Rights Act of 1991 o A mixed motive case is where an employer‘s decision was based on multiple factors, at least one unlawful. o Price Waterhouse v. Hopkins – The words of §703 (―because of an employee‘s sex etc.‖) suggest Title VII prohibits decisions if discrimination on a forbidden ground is a motivating factor.  A female senior manager claiming gender discrimination was denied partnership at her office due to ―interpersonal skills‖ problems. Plaintiff must show that the employer actually relied on her gender in making its decision.  If plaintiff shows that employer relied on forbidden ground, the court should find that the employer violated the statute unless the employer


can show by preponderance of the evidence that it would have made the same decision based solely on a permissible ground. (I.e., must show that the legitimate reason would have sufficed to justify the employer‘s action)  An employer may not prevail in mixed motive cases by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.  O’Connor Concurrence - If plaintiff shows by direct evidence that a forbidden ground was a substantial factor, the court should find that the employer violated the statute unless the employer can show that sufficient business reasons would have induced it to take the same employment action ―with the illegitimate factor removed from the calculus.‖ (i.e., rightful place – employer must put the employee in position she would have been in the absence of discriminatory motive) o Desert Palace, Inc. v. Costa – holds direct evidence is not required in order to obtain a mixed motive instruction. (rejects Justice O‘Connor‘s position that a mixed motive evidentiary framework requires direct evidence) o Congressional response: Civil Rights Act of 1991, §703(m) – ―Except as otherwise provided in this title, 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.‖ o Mixed Motive v. Single Motive Cases  Mc Donnell-Douglas/Burdine – plaintiff raises a presumption, shifting burden of production to employer to articulate legitimate nondiscriminatory reason, thus eliminating the presumption and putting in play two potential motivations: plaintiff‘s contention that decision was based on forbidden ground vs. defendant‘s contention that decision was based on legitimate ground. Ultimate burden is on plaintiff to prove by preponderance of evidence that forbidden ground was the reason.  Mixed Motive – plaintiff proves by preponderance of evidence that employer acted based on a forbidden ground, shifting burden of proof to employer to ―demonstrate‖ that it acted based on a legitimate ground. There are no presumptions here. If employer succeeds in proof, plaintiff still wins a judgment but relief is limited to declaratory and injunctive relief, no reinstatement or monetary award. o Cat’s Paw Theory – When an unbiased decision maker is duped into making a discriminatory decision by a prejudiced subordinate, the actual decision maker is still liable for the discrimination (i.e., HR does the firing but takes recommendations from a biased supervisor). Retaliation Cases – o ADA Prohibition against retaliation and coercion. § 503 [§ 12203]. (a) No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. (b) It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or





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enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. (c) The remedies and procedures available under sections 107, 203, and 308 of this Act shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to title I, title II and title III, respectively. Title VII § 704 [§ 2000e-3]. (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Prima Facie Case for Retaliation - The plaintiff must prove that –  She was engaged in statutorily protected activity;  She suffered a materially adverse action at the hands of the employer; and  A causal link exists between the protected activity and the adverse action. The burden then shifts to the employer to rebut the presumption of unlawful retaliation by articulating a legitimate, nondiscriminatory reason for the adverse action it took against the plaintiff. The plaintiff then has the ultimate burden of proving pretext, i.e., that the adverse action was motivated by retaliatory animus. Prima facie framework does not apply when there is direct evidence. Retaliation clause applies to applicants, employees, and past employees. If a mixed motive case, retaliation may not be a motivation unless employer can show it still would have done the same thing absent discriminatory action. (Price Waterhouse) The participation clause prohibits retaliation because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce laws prohibiting discrimination in employment.  Covers filing of a charge with the EEOC or state agency.  Protects employees and applicants from retaliation regardless of the underlying merits of the claim.  No comment policies – when a referring employer refuses to disclose to prospective employers any information other than the employee‘s dates of employment and the positions he held. The opposition clause prohibits retaliation because an employee or applicant has opposed any practice made an unlawful employment practice.  Federal courts have generally granted less protection for opposition than participation.  Crawford v. Metropolitan Govt. – The opposition clause applies to situations where the employee takes a stand, not just by instigating action. (silent discrimination)


Crawford claims she was fired in retaliation for her answering questions regarding a sexual harassment claim to the EEOC.  Crawford‘s statement is covered by the opposition clause because when an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee‘s opposition to the activity. o ―Discrimination‖ means Adverse Action –  Burlington Northern v. White – holds the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. The provision covers those employer actions that would have been materially adverse to a reasonable employee or job applicant. The employer‘s actions must be harmful or injurious to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.  Opposed to 703(a), 704(a)‘s anti-retaliation provision does not limit discrimination to ―compensation, terms, conditions, or privileges of employment‖ but rather prohibits ‗an employer to discriminate against‘ an employee. Congress intended the anti-retaliation provision to prevent an employer from interfering with an employee‘s efforts to secure enforcement of the Act‘s basic guarantees. And since an employer may take action that causes harm outside of the workplace, the anti-retaliation clause is not limited to actions in the workplace. o Clark County School District v. Breeden – If the conduct plaintiff that protests is not prohibited conduct under Title VII, plaintiff is not covered under the retaliation statute. Statistical Evidence & Pattern or Practice Cases –
o § 707(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

o Pattern or practice cases address systemic problems. They may spring from the investigation of an individual charge filed with the EEOC, or may be initiated by the EEOC itself as a result of an accumulation of charges or even news reports about a particular company or a study conducted by EEOC of practices in a particular industry where EEOC suspects there may be discriminatory practices. o 707(a) provides specific authorization for the EEOC to undertake pattern or practice cases. As originally enacted, PP cases were the domain of the Justice






Department and were initiated by the Attorney General. Now authority to initiate and carry out cases is transferred directly to the EEOC. Involve the allegation that a large employer is systematically discriminating in hiring or pay against minorities or women. The claim is made not on the basis of overtly discriminatory qualifications – for example, that the employer has an express rule against hiring women for particular jobs – but rather on the basis of statistical analysis of the employer‘s workforce, leading to an inference that discrimination is going on because few minorities or women are hired or promoted, even though there is substantial interest in the jobs, or because of blatant disparities in compensation as between minorities or women and nonminority or male employees. Teamsters v. U.S. (1977)- Statistics are used to establish a prima facie case – a rebuttable inference of discrimination. Anecdotal evidence helps bolster the statistical evidence.  Statistical evidence showed less than 1% of more prestigious job positions were given to African Americans and Latinos.  Long-lasting and gross disparity between composition of a workforce and that of the general population may be significant Hazelwood School District v. U.S. (1977) – Gross statistical disparities between employer‘s workforce and available labor pool may constitute prima facie proof of a pattern or practice of discrimination.  Informal hiring process for teachers yielded a small percentage of black teachers but plaintiffs do not give percentage of blacks in community that are eligible to teach. Defenses to Pattern or Practice Discrimination  BFOQ (in sex cases)  Lack of interest defense – a group is significantly underrepresented because members are not interested in the work involved so applications commensurate with their presence in the relevant population group.

B. Disparate Impact Theory
 §703(a)(2) It shall be an unlawful employment practice for an employer— to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

§703(a)(2) disparate impact theory applies to discrimination that may be unintentional but has an effect of discrimination.  Disparate impact theory not adopted until 1971 in Griggs.  Generally – Employers cannot adopt practices that have a significant disparate impact on groups unless practice is job related and of business necessity. After plaintiff establishes prima facie case, the burden shifts to the employer to show business necessity. If shown, plaintiff may still prevail if he shows other practices, without a similar undesirable racial effect, would also serve the employer‘s legitimate interests, i.e., pretext exists.  Griggs v. Duke Power Co. (1971) - held employers cannot require a high school education or passing of a standardized general intelligence test as a condition of


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employment when neither standard is shown to relate to successful job performance; requirements operate to disqualify blacks at a higher rate than whites; and the jobs in question have been filled only by white employees. o The objective of Congress in enacting Title VII was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group. o Under the Act, practices neutral on their face or even neutral in terms of intent, cannot be maintained if they operate to freeze the status quo of prior discriminatory practices. o Even if the employer did not intend to discriminate, the disparity of education between whites and blacks would cause blacks to be less likely to have a high school education. o §703(h) of the Act permits tests to be used only if they are job-related. o Nothing permits the use of testing but the Act has forbidden these tests if they are not a reasonable measure of job performance. o Employers must show that the test is justified as a business necessity and is related to the job. §703(h) - nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. Burden of proof under Griggs o Plaintiff – must show discriminatory impact of facially neutral policy in order to plead a prima facie case. o Defendant can defend by 1) challenging the plaintiff‘s statistical evidence as not showing a significant disparate impact; or 2) proving that the policy is necessary for the success of the business. Kinds of Test validation o content validation – tests that measure the actual skills or knowledge needed to perform the job o criterion validation – tests that have been shown to correlate scores with success on the job o construct validation – a blend of content and criterion validation The 80% (or 4/5) Rule - Show that employees in protected class are hired (or pass a test or meet some other qualification) at less than 80% of the rate of the most successful group. If employer gives a test on which 75% of white employees and 25% of black employees are successful, the test is potentially unlawful because the resulting fraction is 1/3, and you need at least 4/5 to avoid raising an inference of disparate impact. The Bottom Line Defense – Just because the bottom line result achieved is racial balance does not protect an employer from liability if he nonetheless used a discriminatory process. (Connecticut v. Teal) §703(j) - Nothing contained in this subchapter shall be interpreted to require any employer…to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons


of any race, color, religion, sex, or national origin employed by any employer…in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. o Employers are not required to achieve a ―balanced‖ workforce by giving ―preferences‖ to individuals because of their race, color, religion, sex, or national original, which means failure to have a balanced workforce is not by itself a violation of the statute Subjective Employment Criteria – o Watson v. Fortworth Bank & Trust Co. (1988) - holds the Griggs disparate impact analysis of disparate impact applies under Title VII to subjective criteria in determining whether an employer‘s practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination.  While both objective and subjective criteria for promotions may seem facially neutral yet have a discriminatory impact, unlike objective criteria, it is difficult to quantify subjective criteria (loyalty, common sense etc). However, quota systems and preferential treatments are not the way to mediate a disparate impact problem.  The plaintiff‘s burden in establishing a prima facie case must go beyond statistical disparities and instead must identify the specific employment practice that is challenged.  Once the practice has been identified, causation must be proved, i.e., the plaintiff must show statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants because of their membership in a protected group. Statistical disparities must be sufficiently substantial that they raise an inference of causation.  When a plaintiff has made a prima facie case of disparate impact, and when the defendant has meet its burden of producing evidence that its practices are based on legitimate business reasons, the plaintiff must show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship. Wards Cove Packing Co. v. Atonio (1988) – adopts a more rigorous application of the Griggs standard in disparate impact theory cases. o In determining whether there was racially discriminatory employment practices present in an Alaskan cannery, the Court held statistics may be used but the comparison must be between the racial composition of the persons holding the at-issue jobs and the racial composition of the qualified. o Racial imbalance does not, without more, establish a prima facie case of disparate impact as long as there are no barriers or practices deterring qualified nonwhites from applying from non cannery positions. o (Causation issue) Just as an employer cannot escape liability under Title VII by demonstrating that at the bottom line his work force is racially balanced, a Title VII plaintiff does not make out a case of disparate impact simply by showing that at the bottom line, there is a racial imbalance.

o Respondents must show the disparity is the result of one of more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment for whites and nonwhites. o Once a prima facie case is established, the case shifts to 1) justifiable and legitimate business reasons for the practice and 2) availability of alternative practices to achieve the same business ends with less racial impact.  At the justification stage, must show a substantial justification based on evidence.  If there is evidence of business reasons, the employee may still prevail by showing other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer‘s legitimate hiring interests; demonstrating that the employer was using their test as a pretext for discrimination. Factors such as cost or other burdens are relevant. o Wards Cove made a disparate impact claim difficult by Exacting statistical standard for the prima facie case  Requirement to show how each challenged practice causes disparate impact – not enough to show disparity  Defendant not required to prove that a practice that has a disparate impact is ―necessary,‖ merely to provide evidence that it significantly serves a legitimate business goal  Burden of proof on Defendant to show that the practice does not significantly serve a legitimate business goal  Alternatively – burden on plaintiff to show that a less discriminatory practice could achieve the same goal just as effectively without more expense Civil Rights Act of 1991 –
o §703 (k)(1)(A) An unlawful employment practice based on disparate impact is established under this title only if—  (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or  (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice. §703(k)(1)(B)  (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision-making process are not capable of separation for analysis, the decision-making process may be analyzed as one employment practice.



(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

o Civil Rights Act of ‘91 codified disparate impact theory. o Kept the Wards Cove requirement of identifying each practice that is causing a disparate impact, unless plaintiff can persuade court of the need to view an overall policy cumulatively because elements are not capable of separation. o Changed burden on employer from Wards Cove – now employer must prove business necessity evidence. Business Necessity – o Lanning v. Southeastern Pennsylvania Transit Authority (I) - Business necessity, as described in Griggs and developed in subsequent cases before Ward’s Cove, means employer must show that its practice is ―necessary‖ – which means that the test cut-off is set to measure minimum qualifications necessary for successful performance of the job.  SEPTA recommended adoption of a 1.5 mile run within 12 minutes as a screening test for applicants to the training program. Women were disproportionately disqualified under this test compared to men. o Ricci v. DeStefano – Employer may not voluntarily reject the results of a professionally developed test used in a promotion procedure unless it has a strong basis in evidence for believing that use of test results would violate Title VII.  Promotional testing for firemen yielded the highest results for whites. The City tried to throw out the results in order to avoid a disparate impact claim. White firemen brought suit.  Setting aside the test result because of the statistical disparity based on race is race-based decision making – it is an adverse employment action against white applicants for promotion on account of their race – thus issue is whether the purpose to avoid disparate-impact liability is a valid defense.  Public employers only allowed to undertake affirmative action involving racial preferences if there is a ―strong basis in evidence‖ that such actions are necessary to avoid liability under the Equal Protection Clause. In order to set aside results of the test, New Haven must show that it had a ―strong basis in evidence‖ for believing that using the test would violate Title VII.  City fails test because ―here is no genuine dispute that the examinations were job-related and consistent with business necessity. Test was devised by professional consultant after ―painstaking analysis‖ of the positions, in which minorities were ―overrepresented‖ – One witness before CSB testified that questions were relevant. City made no request for IOS technical report on validity, but questions were drawn from department policies and training manuals, etc., and all related to knowledge necessary for officers.

C. Constitutional Prohibition on Discrimination in the Public Sector


13th Amendment (adopted 1865) – adopts ban on involuntary servitude o §1 – ―Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.‖ o §2 – ―Congress shall have power to enforce this article by appropriate legislation.‖ Civil Rights Act of 1866 (derived from 13th Amendment authority) o § 1 - That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. 14th Amendment (adopted 1868) o § 1 – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Section 5 provides that Congress ―shall have power to enforce, by appropriate legislation, the provisions of this article.‖] o The 5th Amendment requires the federal government to observe the requirements of Due Process of Law in dealing with individuals, but does not expressly mention Equal Protection of the Law. Enforcement Act of 1870 (basis for 42 USC Section 1981) o § 16. . . That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. . . .  In the 1960s, the Court used this provision to ban employment discrimination of private as well as state actors. 42 USC § 1981. (As it appears today, as amended by Civil Rights Act of 1991): o (a) Statement of equal rights - All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal


benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. o (b) ―Make and enforce contracts‖ defined - For purposes of this section, the term ―make and enforce contracts‖ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. o (c) Protection against impairment – the rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. Part III. Specific Categories of Discrimination A. Sex Discrimination
§ 703 [§ 2000e-2]. (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. ________________________________________________________________________________

(m) Except as otherwise provided in this title, 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.  Theories of Sex Discrimination o The ―equality‖or ―sameness‖ theory – describes women as substantially similar to men in most respects germane to employment. Discrimination is the erroneous failure to recognize this similarity, resulting in treatment of women as inferior, unable, or otherwise different from the paradigmatic male denizens of the workplace. o The ―difference‖ theory says discrimination results from the failure to recognize these differences, to anticipate the devaluative light in which employers might view them, or to accommodate them in structuring the demands of workplaces. o The ―sex role spillover‖ theory characterizes discrimination as the devaluative sexualization or derogation of women in the workplace. Harassment characterizes women primarily as sexual objects, or as objects of sex-based derision, rather than as competent workers. o City of Los Angeles Dept. of Water & Power v. Manhart –the existence or nonexistence of discrimination is not to be determined by comparison of class characteristics but rather individual characteristics.


the dept. required women employees to make larger contributions to its pension fund than its male employees because women live longer.  Statistical evidence shows the Dept‘s 2000 female employees will on average live a few years longer than its 10,000 male employees.  §703(a)(1) - ―to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.‖  703 precludes treatment of individuals as simple components of a class. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.  Therefore, despite the generalization, many of those individuals will not live as long as the average man yet will receive smaller compensation.  The Dept. claims that fairness to its class of male employees justifies the extra assessment against all of its female employees because they cannot know which individuals will predecease the average woman so unless women as a class are assessed, they will be subsidized to some extent, by the class of male employees.  The Court held fairness is a policy matter but cannot be used to discriminate based on protected classifications. Regardless, the basic policy of 703 focuses on fairness to individuals rather than classes. o Price Waterhouse v. Hopkins – Once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role.  Candidate for partnership in accounting firm recommended by partners in her office based on stellar performance at winning new business and getting job done. Board evaluating candidates voted to put her on ―hold‖ after reviewing comments submitted by partners, some of which reflected settled views on how women were supposed to present themselves in a workplace. Concerns expressed about her ―people‖ skills in relating to subordinates. Expert testimony found some of the comments submitted to reflect ―sexual stereotypes‖.  Court said that employer may not place female employee in a Catch-22 where a job is seen as requiring ―masculine‖ traits and a woman who is successful at the job is penalized for not being adequately ―feminine‖  [Note that statute was amended after this case to provide that employer would not win completely by showing a non-discriminatory motive as well as a discriminatory motive played a role in a decision – rather, in such cases, remedy is limited.]  Plaintiff does not have to prove that personnel decision was made ―solely‖ due to sex; as long as sex played a role, statute was violated unless sex is a BFOQ. o Oncale v. Sundowner Offshore Services, Inc. – workplace harassment can violate Title VII‘s prohibition against discrimination because of sex when the harasser and the harassed employee are of the same sex.


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A male employee was physically assaulted in a sexual manner and threatened with rape by respondents. The Court rejects any conclusive presumption that an employer will not discriminate against members of his own classification. With ―hostile environment‖ claims, there is no justification under Title VII to exclude same-sex harassment claims. Title VII should extend to sexual harassment of any kind.

BFOQ Defense/Appearance Requirements – o Section 703 (e) Notwithstanding any other provision of this subchapter, (1) 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, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, 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. o BFOQs are a defense to disparate treatment claims only! o BFOQS do not apply to race/color classifications. o Dothard v. Rawlinson (1977) – safety justification for excluding women from correctional officer assignments to all-male prison.  Essence of the job test – If a woman would be able to perform the essence of the job, BFOQ would not apply.  Court says a woman could not perform the job because women in an allmale max security prison would attract sexual attacks that could disturb order in the prison, resulting to injuries to inmates and co-workers. o UAW v. Johnson Controls - Battery manufacturer limits women with capacity to have children due to lead exposure that could possibly hurt fetus (fetus protection policy). Female employees must demonstrate they cannot have children in order to work.  JC felt societal obligations to future generations and wanted to avoid liability.  This is a disparate treatment case (only applies to women) so may use BFOQ as a defense.  Can be concerned about third parties but BFOQ is not justified.  BFOQ does not apply because –  Pregnancy or fertility does not affect women‘s ability to perform job.  In regard to tort liability, if JC complies with toxic regulations and warns employees, it will not be found negligent.


Ability to become pregnant had no effect on their ability to perform the job. o Jespersen v. Harrah’s – specific styling regulations for employees upheld. The requirement that women must wear makeup is not discriminatory because the policies are not unduly burdensome on females than males.  The Equal Burden test - Burden on plaintiff to show that the grooming rule viewed as a whole places a much greater burden on women than men.

Pregnancy & Family Responsibility – o Section 701 (k) 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 in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. o The Pregnancy Discrimination Act – Title VII amendment - ―Because of or on the basis of pregnancy, childbirth or related medical conditions, and women affected by pregnancy, children or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.‖ o It is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions. Therefore, male employees are entitled to dependency coverage for their pregnant wives. o Troupe v. May Department Stores Co. (7th Cir) - If an employee cannot work because of illness (whether pregnancy related or not) nothing in Title VII requires the employer to keep the employee. The employee would have to shown she was treated less favorably than non-pregnant employees who took days off for health related issues. o The Family and Medical Leave Act –  Guarantees employees at least 12 weeks of leave for childbirth or adoption and related childcare and to attend to serious personal or family health problems.  Provides employees with leave because of –  The birth of an employee‘s child and attendant child care  The placement of a child with the employee for adoption or foster care  A serious health condition of the employee‘s spouse, son, daughter or parent requiring the employee‘s care; or  A serious health condition that makes the employee unable to perform the functions of the job.  Provides special leave of 26 weeks for family members of individuals injured on active duty in the armed forces.


Provides for unpaid leave. An employee taking FMLA leave must provide the employer with 30 days notice if leave is foreseeable, otherwise such notice as practicable.  FMLA covers employees who have worked for at least one year for an employer who employs at least 50 workers. o Religious entity exemptions - The issue of unwed pregnancy in the context of religious or moral disapproval may be tested by examining how the employer treats men who get unmarried women pregnant. There is a possibility in such cases that the discrimination is based on sex, as such, because the employer poses different rules for men and women. Absent evidence of that, a religious employer may require an employee to comply with tenets of the faith in order to maintain employment o Non-religious employers imposing role model requirements – Chambers v. Omaha Girls Club (8th Cir.) rejected a Title VII claim from an unmarried receptionist who became pregnant, where a main organizational goal of the employer was to discourage unwed pregnancy among its teen participants. B. Sexual Orientation & Gender Identity Discrimination  Sex v. Gender – Title VII covers sex discrimination (biological differences) but also protects gender stereotyping (gender presentation; Price)  Sexual Orientation – a person‘s attraction to another person o In the Employment Non-Discrimination Act, sexual orientation is homosexual, heterosexual, or bisexual (bill is still pending in Congress)  Gender Identity – one‘s gender-related identity, appearance etc. without regard to designated sex at birth.  Sexual orientation claims are presently litigated under constitutional claims and executive orders.  Title VII does not ban discrimination based on sexual orientation.  Proposal for Federal Legislation – Employment Non-Discrimination Act - Forbids discrimination on the basis of sexual orientation or gender identity o (a) EMPLOYER PRACTICES.—It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual‘s actual or perceived sexual orientation or gender identity; or (2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual‘s actual or perceived sexual orientation or gender identity.  Alternate Sources of Protection Against Discrimination o Constitutional claims under the 5th and 14th amendment for public employees Most recently, this has proved potentially effective in countering the military ban on openly gay service in Log Cabin Republican and Witt cases. - A public employer who discriminates based on sexual orientation must show a rational

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basis for its policy, at the very least. In some cases, courts have ruled against public employers on sexual orientation discrimination claims. State Constitutions – sometimes reach farther than federal constitution in providing equality protection. California did so prior to the enactment of its statute banning sexual orientation discrimination. Corporate Policies – Many large corporations have voluntarily adopted policies against sexual orientation (and in some cases gender identity) discrimination. Do such policies support a cause of action for a legal claim of discrimination? (Note, depending upon how the policy is presented and packaged, it might be treated as contractually binding and enforceable in damages in a civil state court action. – this is not true in all states) Collective Bargaining Agreements – when a non-discrimination ban is included in a CBA, it would be enforceable either directly in court or, more likely, through labor arbitration under the CBA. Nondiscrimination policies of professional and academic associations - Most professional associations now include sexual orientation in their nondiscrimination policies, and may have some limited contractual disciplinary authority to enforce within the profession. For example, ABA Model Rules include a ban on sexual orientation discrimination, that is part of the lawyer disciplinary code in many jurisdictions.

C. Harassment as Discrimination  EEOC Guidelines - 29 CFR § 1604.11 Sexual harassment o (a) Harassment on the basis of sex is a violation of section 703 of title VII.1 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such 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. o (b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.  Rogers v. EEOC (5th Circuit 1971) – First appellate recognition that ―a working environment heavily charged with discrimination may constitute an unlawful practice.‖ If an employer adopts a discriminatory practical attitude it has a negative impact. Title VII goes beyond tangible advancements.  Quid Pro Quo Theory – a supervisor implicitly or explicitly conditions favorable treatment on surrender to sexual invitations  Hostile Environment Theory – sexual harassment as a hostile, persistent condition of the work atmosphere to the employee because of her or his sex.


Quo Pro Quo– o Prima Facie Elements –  Sex demanded in exchange for something  Made under circumstances where employee believed conduct was necessary in order to avoid negative consequence or be conferred a benefit.  Sexual desire need not be a motive of the conduct.  Victim has to be selected because of sex to fit under Title VII. o Nichols v. Frank – sexual harassment that is not explicit can be a quid pro quo when exchange of sexual acts is reasonably connected to work-related advantages.  Deaf-mute female employee working on the night shift in a mail sorting operation for the post office. Her supervisor demanded oral sex. He was the only supervisor who could use sign language to communicate with her. Requests for sex always came up in the context of work-related issues. Plaintiff gave in repeatedly out of fear of losing her job or suffering adverse consequences. Job benefits seemed to flow from giving in. This continued for 6 months. When she requested personal leave, supervisor asked for sex again, and afterwards granted leave. 9th Circuit found that this could be a quid pro quo case under Title VII. Hostile Environment – o Prima Facie Elements –  Plaintiff was subjected to unwelcome sexual harassment, i.e., unwelcome conduct of a sexual nature;  Harassment was ―because of‖ the sex of the plaintiff  Harassment was sufficiently severe or pervasive to affect a term, condition, or privilege of employment, when viewed from the perspective of a reasonable person in the position of the plaintiff,  The conduct was experienced as abusive or hostile by the plaintiff,  Doctrine of respondeat superior applies to make employer liable. o Meritor Savings Bank v. Vinson – found respondent was victim of sexual harassment in a psychological (opposed to economic) nature, despite ―voluntary‖ sexual intercourse since it was nonetheless unwelcome.  Sexual misconduct in the work place covers all acts even if not directly linked to an economic quid pro quo where 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 under Title VII.  Title VII affords employees to work in an environment free from discriminatory intimidation, ridicule or insult.  Title VII extends to the emotional and psychological effects of a hostile work environment.  The correct inquiry is whether the sexual advances were unwelcome, not whether participation was voluntary.


o Harris v. Forklift Systems, Inc. (1993) - A hostile environment exists if the environment may reasonably be believed and is actually believed to be hostile and abusive towards women.  Charles Hardy, president of company. Teresa Harris, rental manager. Hardy made sexually-related insulting comments about Harris, insinuated in front of others that they might have a sexual relationship, threw objects in front of Harris and other women and demanded that they pick them up, demanded that Harris and other women retrieve items from his front pants pocket, made sexual innuendos about their clothing. After Harris complained about his conduct, he reformed briefly but soon relapsed to similar conduct. Finally Harris could take it no more, quit, and sued under Title VII.  Factors to examine - frequency of discriminatory conduct; severity; whether it is physically threatening or humiliating or a mere offensive utterance; does it unreasonably interfere with employee‘s work performance. Effect on employee‘s psychological well-being is relevant on question whether employee found the environment abusive. o Alternative Theories  1. Intentional Torts – some states may find this preempted by state civil rights law, but it may remain a viable theory where not preempted.  2. Breach of implied covenant of good faith and fair dealing?  3. Negligence claims usually barred by Workers Compensation Laws, except perhaps for gross negligence  4. For public employees, equal protection claims  Employer Liability – o Burington Industries v. Ellerth – an employee who refuses the unwelcoming and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer but the employer has the opportunity to assert and prove the affirmative defense of liability.  Cases based on threats which are carried out are referred to often as quid pro quo cases, distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.  If an employer demands sexual favors from an employee in return for a job benefit (quid pro quo cases), discrimination with respect to terms or conditions of employment is explicit.  In regards to sexually demeaning behavior not in connection with a benefit, the harassment must be severe and pervasive to fit under hostile environment claims.  An employer is vicariously liable if  When a discriminatory act results in a tangible employment action; a significant change in employment status or benefits. (hiring, firing, denial of a raise etc). This action could not have been inflicted absent the agency relation. Only a supervisor or other person acting with authority may inflict such an injury. The

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act becomes the act of the employer. No affirmative defenses available.  When the act does not result in a tangible employment action, a defending employer may raise an affirmative defense to liability or damages by preponderance of the evidence. The defense comprises two elements – o 1) that the employer exercised reasonable care to prevent and correctly prompt any sexually harassing behavior, and o 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Vicarious liability for workplace sexual harassment can be established only where the harasser was a ―supervisor with immediate (or successively higher) authority over the employee.‖ Harassment by a supervisor who does not meet this definition will generally be treated as co-worker harassment, and the plaintiff will have to demonstrate that the employer was negligent in permitting the harassment to continue after actual or constructive notice of the conduct. ―Paramour preference‖ claims based on one employee‘s allegations that a supervisor has given preferential treatment to another employee with whom he has a sexual relationship are outside Title VII. Faragher v. City of Boca Raton – Some tortious conduct of a supervisor made possible by abuse of his supervisory authority may hold an employer vicariously liable. Employers have greater opportunities to screen and train supervisors than common workers. Adopts same standard as Burlington.  Employer is subject to vicarious liability to victimized employee for actionable hostile environment created by supervisor with immediate or successively higher authority over the employee. Strict liability if there is a tangible employment action involved. If not, employer may defend by showing it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that plaintiff unreasonably failed to invoke whatever process the employer provided. Individual liability of harassers is not under Title VII – general view of federal courts is that Title VII only authorizes remedies against the employer, not individual supervisors. State and local laws – some provide authority to impose liability on individual harassers, depending on the nature of the case. Public Employees – Section 1983 can bring the equal protection clause into play. Particularly egregious sexual harassment by a public employer may be found to violate the equal protection rights of public employees, but the cases are rare Pennsylvania State Police v. Suders –  To establish a constructive discharge, the plaintiff must make a showing that the abusive working environment became so intolerable that her resignation qualified as a fitting response.  An employer may defend against a claim by showing both that it had installed a readily accessible and effective policy for reporting and


resolving complaints of sexual harassment and that the plaintiff unreasonably failed to avail herself of that preventive or remedial apparatus. This affirmative defense is not available if the employee quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation. Since precipitating act may not be ―an official act of the company,‖ it is appropriate to allow Ellerth/Faragher defense in constructive discharge cases unless employee shows that her resignation was triggered by an ―official act of the company.‖

Harassment by Co-Workers and Nonemployees - Proof of employer negligence will continue to be required in order to establish employer liability in Title VII cases dealing with harassment by nonsupervisory employees. An employer is negligent if he knew or should have known about the conduct and failed to stop it. o If the employer acts promptly upon notice of a problem and takes effective steps to deal with it, the employer escapes liability under Title VII. (i.e., although the employee experienced harassment until the employer acted to end it, the employer bears no liability for any harassment that occurred before it learned or should have learned of it and had a reasonable opportunity to investigate and take action) Harassment Because of Race - same standard as in sexual harassment. Must be unwelcoming and pervasive objectively and subjectively. (Harris v. International Paper Co.) o (1) unwelcome comments, jokes, acts and other verbal or physical conduct of a racial nature in the workplace; and o (2) the existence of any of the three following circumstances:  (i) submission to such conduct is implicitly or explicitly made a term or condition of an individual's employment; or,  (ii) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual ("quid pro quo" harassment); or,  (iii) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment ("hostile environment" harassment); and o (3) the employer, or its agents or supervisory employees, knows or should have known of the conduct.

D. Sex-Based Wage Discrimination  Title VII (1964) – Bennett Amendment §703(h): It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29.  Fair Labor Standards Act – Equal Pay Act (1963) – requires equal pay for equal work, regardless of sex.


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o 206 (d) (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, 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 in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. EPA Structure – Congress embedded EPA in the Fair Labor Standards Act and treated money owed as unpaid wages, putting enforcement authority into the wage and hour division of the Labor Department. This predated Title VII, of course. Well after Title VII was passed and the EEOC was established under Title VII as its principal enforcement mechanism, a legislative branch reorganization act shifted EPA enforcement to the EEOC, but the structure of remedies remains the same – It is a compensatory statute, with a provision for willful violations that doubles damages. No intent needed – strict liability statute o Title VII Bennett Amendment covers intentional wage discrimination. Prima Facie Case – o Plaintiff is within the same establishment (or company policies that extend to other offices); o Employer is paying different wages to employees of the opposite sex; o Who perform equal work (or substantially similar) on jobs under similar working conditions; and o The jobs are performed under similar working conditions. Under the EPA, there is a four part test to determine whether two jobs are ―equal‖ for purposes of compensation analysis, as set out in the first paragraph of the statute: o equal skill o equal effort o equal responsibility; and o Similar working conditions of comparator (needs comparator). EPA‘s four affirmative defenses to wage gaps o Seniority system; o merit system; o piece-rate (quality/quanity) system; o any factor other than sex (wild card defense). Corning Glass Works v. Brennan – o Laws prohibited women working night shifts so CG had to increase pay rate to get men to work on night shift. So women worked only day shifts at a much lower rate even when the women protection laws were repealed. Anyone doing a night shift would get paid more because of sacrifice but the pay differential was not


proportionate. It is assumed a night shift differential will be applied across the board. o Here, Corning could not show that all of the difference between night and day prior to the ultimate equalization of pay for the inspector positions was due solely to the shift differential; it was clear that part of the difference derived historically from the decision to pay men more to persuade them to work in jobs that he previously been seen as women‘s work, and to pay enough to attract male applicants to the positions. County of Washington v. Gunther – female guards in county jail had less responsibility and used different skills so not an EPA violation.

E. Discrimination Because of Religious Practice or Belief  1st Amendment provides – ―Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.‖  Title VII §701(j) – The term ―religion‖ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee‘s or prospective employee‘s religious observance or practice without undue hardship on the conduct of the employer‘s business.‖  EEOC Guidelines – Employers have an obligation to accommodate religious practices of employees except if it poses an inconvenience.  The Supreme Court has stated that ―although a determination of what is a religious belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.‖ A religious belief, unlike a matter of personal preference, is characterize by a deep religious conviction, shared by an organized group, and intimately related to daily living.  The EEOC defines religious practices to include moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.  The Religious Entity Exemptions – o Title VII provides two broad exemptions for religious employers - §702(a) and §703(e)(2). o §702(a) – Title VII does not apply to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. o §703(e)(2) – it shall not be unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of particular religion if such institution is, in whole or


substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such institution is directed toward the propagation of a particular religion. o The two provisions overlap so religious schools typically invoke both provisions. o The Ministerial Exception (5th Cir) – when sex and race discrimination claims are brought against religious employers, the Free Exercise Clause would preclude judicial review of decisions by religious entities concerning the terms and conditions of employment of their ministers because the relationship between an organized church and its ministers is its ―lifeblood.‖  The imposition of secular standards on a church‘s employment of its ministers will burden the free exercise of religion;  The state‘s interest in eliminating employment discrimination is outweighed by the church‘s constitutional right of autonomy in its own domain.  Not limited to members of clergy; applied to lay employees of religious institutions whose jobs are important to the spiritual and pastoral mission of the church. Establishing a Prima Facie Case – o In order to establish a prima facie case of religious discrimination under Title VII, plaintiff must show  the employee had a bona fide religious belief that conflicted with an employment requirement;  that employee informed employer of this belief;  and that employee was disciplined for failing to comply with the conflicting requirement of employment. o If plaintiff establishes a prima facie case, employer must provide a reasonable accommodation to an employee‘s religion, unless the employer demonstrates that he is unable to reasonably accommodate to an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. o EEOC v. Abercrombie & Fitch Stores, Inc. – Employee was required to wear short skirts and revealing clothing though it was against her religion. Employer reasonably accommodated employee by allowing different type of dress but eventually had to discharge her for noncompliance. o Frazee v. Illinois Dept of Employment Security (1989) – An individual was denied unemployment benefits because he turned down a job that would violate his personal religious beliefs by requiring him to work on Sundays. He was a Christian but not a member of any church. Court found First Amendment protection for his sincere religious belief, so he could not be denied unemployment benefits for refusing to take a job whose performance would contravene his sincerely held religious beliefs. Accommodation Without Undue Hardship o Two-step analysis:  1. Has the employer attempted to make a reasonable accommodation?  2. If yes, can the accommodation be made without undue hardship?

o §703 (h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . , provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . o Trans World Airlines v. Hardison – Accommodation cannot cost more than a de minimus cost to employer.  Collective bargaining agreement uses seniority system for shift preferences so plaintiff couldn‘t get off for his religious holidays. His proposal for a 4-day work week was denied because it would cost the employer money in overtime.  Religious beliefs and practices of employees do not take priority over interests of other employees – Title VII can‘t be construed to require employer to offer an accommodation that would prefer the rights of the religious employee over the rights of other employees.  A collectively bargained seniority system has a special status under Title VII, and observing its terms takes priority unless this is done with the intention to discriminate.  Requiring an employer to incur more than a de minimis expense to accommodate religious practices would be an undue hardship on the employer and is not required by the statute. (Uncertain how much of an expense is more than ―de minimis‖). o Ansonia Board of Ed. v. Philbrook – As long as employer offers a reasonable accommodation, it has satisfied its statutory duty. The undue hardship issue comes in as an element of the employer‘s proof that it is unable to provide an accommodation to the employee. The choice of accommodation is for the employer to make, not the employee.  plaintiff only received a set number of paid religious days. He wanted to use his sick days for religious observance but was not allowed to. A teacher, he offered to get the cost of a substitute.  Employer turned down alternatives and instead offered the unpaid leave.  Court held employer‘s offer of unpaid leave was a reasonable accommodation. o What is de minimis?  cost of hiring additional worker to cover for employee is not de minimis  costs also include non-monetary costs in terms of burdens on a business  only real hardships, not speculative ones, get factored into the analysis  hypothetical costs in a factual vacuum won‘t do  cannot be proved by assumptions based on hypotheticals  Unhappiness of co-workers is not enough – must show actual imposition on co-workers.  Denying shift preferences of co-workers is an undue hardship under Hardison.  Facially-neutral safety requirement can be enforced.


F. National Origin Discrimination  Title VII – unlawful to discriminate . . . because of ―national origin‖ unless it is for a bona fide occupational qualification.  The Immigration Reform and Control Act (IRCA) of 1986 – unlawful to discriminate against persons lawfully present and entitled to work in the U.S. because of ―national origin‖ or ―citizenship.‖ Addition of ban on discrimination on ―citizenship‖ was partly in response to Supreme Court‘s prior ruling under Title VII that discrimination based on citizenship was not the same as national origin discrimination. o 1 – protects citizens o 2 - protects non-citizens who are legally present, but only if certain requirements are met. They must be legally admitted for permanent residence or have been formally allowed to reside here by grant of asylum or refugee status and have applied for naturalization within six months of date of becoming eligible to apply. Thus, it does not protect all lawfully present non-citizens against discrimination – just those who may become eligible to apply for citizenship and among those who have become eligible to apply, have filed the application reasonably promptly to set that process in motion. o IRCA does not apply to national origin cases that are covered by Title VII – so no duplicative coverage here.  EEOC national origin definition – ―including but not limited to, the denial of equal employment opportunity because of an individual‘s, or his or her ancestor‘s, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group…a) marriage to or association with persons of a national origin group; b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; c) attendance or participation in schools, churches, temples, or mosques, generally used by persons of a national origin group; and d) because an individual‘s name or spouse‘s name is associated with a national origin group.‖ A national origin group or ethnic group is a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics. Ethnicity -Employment discrimination against members of an ethnic group, for example, discrimination against someone because he is Arab. National origin discrimination also includes discrimination against anyone who does not belong to a particular ethnic group, for example, less favorable treatment of anyone who is not Hispanic. Physical, linguistic, or cultural traits - Employment discrimination against an individual because she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group, for example, discrimination against someone based on her traditional African style of dress. Perception - Employment discrimination against an individual based on the employer's belief that he is a member of a particular national origin group, for example, discrimination against someone perceived as being Arab based on his speech, mannerisms, and appearance, regardless of how he identifies himself or whether he is, in fact, of Arab ethnicity.

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703(i) Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. Dawavendewa v. Salt River Project – discrimination of specific Native American tribes by other Native Americans is prohibited. Harassment - early recognition that the concept of discriminatory harassment applies to national origin claims. The first important harassment case under Title VII involved a claim of hostile environment because of the way the employer segregated its Hispanic customers from other customers, and how this made its Hispanic employees feel due to the attitude it projected for the employer. Court accepted the contention that this might create an actionable hostile environment because it would make Hispanic employees feel that they were being considered inferior due to their national origin. Espinoza v. Farah Manufacturing – discrimination against employment of aliens is allowable and does not need to be justified as long as it is not based on national origin so no purpose or effect of discrimination.

G. Age Discrimination  The Age Discrimination in Employment Act of 1967 (ADEA) protects workers who are at least 40 years old against discrimination because of their age.  ADEA is patterned after Title VII  §621(a) ―It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s age.‖  § 631(a) The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.  Disparate Treatment – o *Note: Supreme Court has yet to rule definitively on the method of pleading a prima facie – Most lower courts have adapted the McDonnell-Douglas methodology for cases where the plaintiff lacks ―smoking gun‖ direct evidence of age discrimination.* o ADEA § 623 (a) It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; o To establish a prima facie case the plaintiff must show that  He was within the age group protected under the ADEA  He suffered an adverse employment action or disposition  He was qualified for the position either lost or not gained and  A person younger than the plaintiff (substantially younger but need not be under 40) was selected for the position over the plaintiff.


o If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to present evidence of a legitimate, nondiscriminatory reason for the adverse action taken. o If the employer satisfies his burden, the burdens of production and persuasion return to the plaintiff to produce sufficient evidence from which a jury could find that an employer had intentionally discriminated against the plaintiff in violation of the ADEA. o O’Connor v. Consolidated Coin Caterers Corp – The court may draw the inference that the plaintiff suffered age discrimination even if plaintiff’s replacement was over 40 (i.e., within ADEA‘s protected class). As long as somebody ―substantially younger‖ was hired or retained while plaintiff was not hired or was let go, the inference can be drawn.  Example – If a 60 year old applies for a job and is turned down and the employer hires a 45 year old for that job, both being equally qualified, it is fair to draw an inference that the employer decided against the 60 year old due to her age. o Green v. Safeway – Even though P himself was replaced with someone older, that replacement was only staying for a few years and in general older employees were being replaced by those substantially younger so P had established a prima facie case despite fourth prong of prima facie case. o Hazen Paper Co. v. Biggins – may use an employee‘s seniority and proximity to retirement and vesting pension benefits as a factor because these are analytically distinct from age.  P was discharged right before his retirement benefits vested. His pension was based on years of service and thus related to age. Firing an employee in order to avoid pension benefits is still unlawful but not under ADEA.  The essence of ADEA is when the employer is motivated by believing an employee cannot perform his job at a certain age. Age may not be relied upon as a proxy for an employee‘s other characteristics, but when a decision is based entirely on a factor other than age, ADEA is not implicated, even if that factor may correlate with age. o Sperling v. Hoffman-LaRoche – reasons for layoff that are based on stereotypes about older workers may provide a basis for ADEA liability. Reasons involving economic burdens associated with job seniority will not provide a basis for ADEA liability.  Employer discharged employees pursuant to a reduction in force (RIF). Plaintiffs allege they were fired for factors such as relatively high salaries, replaced by younger persons, ample retirement benefits, age related disabilities, proximity to retirement, perception of being less productive, having limited skills, over-experienced.  All these factors except perceptions of being less productive and replaced by younger workers are analytically distinct from age discrimination and have a correlation to business reasons. o Mixed Motive Cases – cannot bring mixed motive cases under ADEA because age needs to be a determinative (not merely motivating) factor.


Where evidence shows that the discharge was motivated by more than one reason (one being age, the other being a factor other than age), there is no burden on the employer to show that it would have taken the action based solely on the other factor. Burden is on plaintiff to show that age was the ―but for‖ cause of the action. (Gross v. FBL Financial Services) o Bona Fide Occupational Qualification - (f) It shall not be unlawful for an employer, employment agency, or labor organization— (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age…  Two-pronged test:  Age-related job qualification is reasonably necessary to the essence of the employer‘s business and  Employer is compelled to rely on age as a proxy for safetyrelated qualifications because of the difficulty of deciding risk factors on an individual basis. Employer must show a factual basis for believing that all or substantially all persons older than the age limit would be unable to perform the job safely and efficiently. Disparate Impact o Disparate impact claims can be asserted under ADEA o Plaintiff has burden to identify the particular practice or policy causing the disparate impact. o If Plaintiff meets its proof obligations under Ward’s Cove to establish a prima facie case of disparate impact, the burden shifts to Defendant to justify its policy under the RFOA defense, as to which Defendant has burden of proof. o Smith v. City of Jackson – recognizes disparate impact theory under ADEA.  The City of Jackson, seeking to enhance recruitment for its police and public safety positions, adopted salary increases that raised the pay of lower-ranked officers, since they were most concerned with attracting entry level employees with competitive wages. The policy had the effect of giving bigger percentage increases to younger employees than older employees, as most of the higher-ranked officers were over 40.  Since Congress used the same language in the principal operative provisions of Title VII and ADEA, ADEA should receive the same interpretation as the language of Title VII, which has been construed in (2) of the relevant provision to give a disparate impact cause of action. o The ―reasonable factor other than age‖ provision tends to confirm this reading, since it modifies ―factor‖ with ―reasonable.‖ Thus a factor ―other than age‖ that causes a disparate impact would be unlawful unless it is ―reasonable.‖ o This means that the burden of proof on the employer in an ADEA disparate impact case is not to prove that the challenged policy is consistent with business necessity but rather that it is reasonable. o Wards Cove still applies in that the particular practice must be isolated to show disparate impact. (even though Title VII ‘91 Amendment overrules Wards Cove)


o Meacham v. Knolls Atom Power Lab – RFOA is an affirmative defense. When prima facie case is established, the burden goes to employer to use reasonable factors other than age to justify.  30 out of 31 employees laid off in the RIF were in the ADEA protected class, and 28 of them brought suit on both disparate treatment and disparate impact theories.  Disparate impact theory subjected the result to statistical analysis, asserting that result skewed by age could not occur by chance and subjective factors used by managers to rate employees for purpose of layoff selection correlated most highly with the age of those selected for layoff.  When employers have to lay off for economic reasons, age cannot be a factor but may use seniority because those are the employees that cost more. Factors looked at are performance, flexibility and skills. o Waivers - If an employer is sued and wishes to defend based on a waiver executed by the employee, the burden is on the employer to prove that every element of the OWBPA (Sec. 626) was complied with – the waiver is seen as an affirmative defense. Oubre v. Entergy Operations (1998)  Reductions in Force – o When an employer decides for economic reasons that it needs to reduce its workforce substantially, that usually means that positions are being eliminated, which raises issues about how older workers who are let go in a RIF situation might be able to contest their selection under ADEA. o Because older workers tend to be more highly paid, it is not surprising that in RIF situations the number of those laid off may be disproportionately older. Since it is highly unlikely that the employer will announce that it is systematically letting older workers go, proving age discrimination may be difficult, even those older workers are disproportionately among those who are laid off. o For a disparate treatment case lacking direct evidence of discriminatory intent, the ADEA plaintiff has to establish some version of the Mcdonnell-Douglas paradigm, the biggest problem being the 4th prong. o If this is the prima facie case, the employee‘s only hope of getting to discovery and shifting a burden of production to the employer would be to show that as part of the RIF jobs have been reorganized and there are actually younger workers who were retained and are performing a substantially amount of the plaintiff‘s former job duties. o If employer shows this is a genuine RIF – i.e., real reduction in force as opposed to just the elimination of some unwanted employees – the burden falls on plaintiff to show pretext – It might show that employer‘s RIF criteria for selection layoff was not followed, that flaws in the employee evaluation process caused the plaintiff to be selected for layoff, or to show the RIF was pretextual for a purpose to rid the company of older workers.

H. Disability Discrimination


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Americans with Disabilities Act – o §501 – Federal government agencies to take affirmative steps to employ persons with disabilities o §503 – Private companies and state and local entities with federal government contracts worth at least $100,000 to take affirmative steps to employ persons with disabilities o §504 – Any entity receiving federal financial assistance and any program or activity conducted by a federal agency may not discriminate against qualified persons with disabilities. The Rehabilitation Act contained the original formulation of the three-part definition of a person with a handicap or disability that was ultimately adopted in the ADA: (1) an actual physical or mental impairment that substantially limits a major life activity; (2) have a record of such an impairment; (3) being regarded as having such an impairment. ADA covers the same employers who are covered by Title VII. The federal government as an employer is exempted from ADA, because it is already covered under the Rehabilitation Act. ADA and Rehabilitation Act have overlapping jurisdiction over state and local government employers, since many state government operations receive federal financial assistance and are thus covered under Section 504. The Supreme Court has found an 11th Amendment bar to state and local employees suing their employers in federal court for damages for disability discrimination, carving a substantial exception into the law. ADA is enforced by the EEOC, and the same administrative filing requirements are imposed before a lawsuit can be filed. ―Disability‖ – o a physical or mental impairment that substantially limits one or more of the major life activities of such individuals; o a record of such impairment; or o being regarded as having such an impairment. Substantially limited means to a large degree or considerable. o without regard to the ameliorative effects of mitigating measures except for ordinary eyeglasses and contact lenses. Major life activities means important – of central importance to daily life. o an impairment need only substantially limit one major life activity for the individual to be considered to have a disability. Impairments that are episodic or in remission count if they would substantially limit a major life activity when active. Raytheon v. Hernandez – Disparate impact theory applies in lieu of ―because of disability‖ language. o Plaintiff was denied employment for failing drug test. o ADA has specific exception to those currently using drugs. o Employer claims its policy is neutral and legitimate (McDonnell-Douglas) U.S. Airways v. Barnett – A reasonable accommodation is one that does not cause an undue hardship. Unlike Title VII, ADA requires employer to spend money to accommodate, including reassignment to vacant position.


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o Plaintiff suffered back injury while working so bid on less physically demanding job. Job was not available to him because of seniority system. o It is reasonably to use neutral seniority system. o If seniority system is run in a way that gives exceptions, it would be reasonable to accommodate. o Should not sacrifice other employees for reasonable accommodations. Mandating employers to make exceptions to seniority rules for ADA accommodations would undermine employees‘ expectations, and could prejudice rights of non-disabled employees. Huber v. Wal-Mart (8th Cir.)– A company cannot be required to give preference to a disabled person less qualified. o Huber worked as a grocery order filler at $13, until an injury to her arm disabled her from performing that job. She sought reassignment to a router position that she was capable of performing. Wal-Mart said she would have to apply for that position, under a process where the position goes to the best qualified applicant. Wal-Mart filled the position with another applicant who, it is stipulated, was better qualified than Huber. Sutton v. United Airlines – A disability only exists where an impairment substantially limits actually – not could or would. o twin airline pilots with vision problems were not considered disabled therefore not protected under the ADA. o Must look at plaintiffs in their corrective state to see if they are disabled. o If impairment can be corrected, not disabled under ADA. o If disqualified for a particular job, you are not substantially limited in major life activity of working in other jobs. o Looks to protect only those significantly impaired. Toyota Motor v. Williams – developed carpel tunnel on the job – claimed she was disabled because she was substantially limited in major life activities. Court ruled against her by giving major life activities a strict interpretation. ADA Amendments of 2008o Defines major life activities o Disability includes being regarded as such whether or not the impairment is perceived to limit a major life activity. o Overrules Sutton – the determination of a disability is judged without regard to ameliorative effects (does not include eyeglasses or lenses) Reasonable Accommodations – o After proving disability, must show one is qualified – an individual who, with our without reasonable accommodation, can perform the essential function of the employment position. o Circuits differ on how to analyze these issues, and the Supreme Court has yet to take a major ADA ―reasonable accommodation‖ case to rationalize the doctrine and provide a unified approach. o 2nd Circuit – Plaintiff must prove that an effective accommodation exists, the costs of which facially do not clearly exceed the benefits; if plaintiff succeeds in its proof, defendants have to prove undue hardship to escape liability.


o DC Circuit- Burden of production and proof is entirely on plaintiff to show she can perform the job with an accommodation that is reasonable. o 5th and 9th Circuits place the burden of production and proof on the issue of lack of reasonable accommodation on the employer – i.e., it is enough for plaintiff to allege that they can do the job with reasonable accommodation; burden on employer to show that any proposed accommodation would impose an undue hardship. o EEOC regulations emphasize the desirability of an interactive practice. Rather than have employee propose an accommodation and then have an employer respond with a yes or no, EEOC suggests a mutual problem-solving approach and negotiation of an accommodation. o Direct Threat defense – Qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of others in the workplace. o Vande Zande v. Wisconsin Department of Administration (7th Cir. 1995)  Employee had a clerical/Secretarial/administrative job in the Housing Department and was a paraplegic.  Physical workplace accommodations were granted by employer. She wanted sinks in kitchenette facilities in new office building to be low enough to be accessible to her. Employer refused, pointing out she could use sinks in bathrooms, which were designed to be accessible. She argued this would stigmatize her for having to use different sink from other employees. Her condition required her to be at home for an 8-week period. She asked for the employer to provide her with a home desk-top computer that would make it possible for her to do her work from home. Employer rejected this – she already had a laptop at home and employer did not have enough work for her to do at home to occupy her full-time for 8 weeks. Employer said she should use paid sick leave or vacation time to cover the home time when she had no paid work to do.  Cost is relevant; the issue in evaluating whether an accommodation is reasonable includes both whether it is efficacious (i.e., would make it possible for the employee to perform the essential functions of the job) and also whether it is cost-justified. Cost should not be disproportionate to the benefit. Undue hardship is also focused on cost issues, but the issue there is whether an accommodation that may be reasonable viewed in the abstract is unreasonable because of its impact on the employer. Under the undue hardship analysis, the question of cost/benefit is relevant, but also the question of economic impact on the employer apart from this. Part IV. Affirmative Action  On its face, the Constitutional Equal Protection requirement says that all persons lawfully present in the United States are entitled to equal protection of the laws. In the context of government employment, that means, at least, that all similarly situated people should receive equal treatment without arbitrary discrimination, and that any unequal treatment as between similarly-situated individuals must be supported by some legitimate governmental interest.


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In terms of the statutory employment discrimination law, which applies both to government and to private sector employment, a central goal is to require employers subject to the law to evaluate each job applicant and treat each employee as an individual, not as a member of a group that shares a trait defined by one of the forbidden grounds for discrimination under the law. That is, the underlying philosophy is that individuals are to be treated on their individual merits, based on their individual qualifications, and evaluated based on their own performance. 14th Amendment - No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The 5th Amendment Due Process Clause has been interpreted to include an equal protection component binding on the federal government that is co-extensive with the express equal protection requirement binding on the states under the 14th Amendment. Title VII §703(j) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. Title VII §703(l) It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. [From CRA of 1991] Title VII §703(m) Except as otherwise provided in this title, 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. [From CRA of 1991] §13. Lawful court-ordered remedies, affirmative action and conciliation agreements not affected. Nothing in the amendments made by this Act shall be construed to require or encourage an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law. [CRA of 1991] 703(j) says statute shall not be interpreted to require employers to grant preferential treatment based on race, color, religion, sex, or national origin in order to correct ―imbalances‖ in their workforce as compared to the relevant labor market. But 706(g)(1)


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authorizes courts in devising remedies for Title VII violations to ―order such affirmative action as may be appropriate‖ to remedy the violation. Constitutional equality claims (14th and 5th Amendment) – apply to public workplaces and places a limit on what statutes could require. Thus, a statute requiring an employer to discriminate based on race would be considered unconstitutional today. Title VII (and Section 1981) equality claims – apply to both public and private workplaces. Possible Meanings of Affirmative Action o Quotas to achieve equal results in the sense of producing a workplace composition that reflects the relevant labor pool in terms of demographics. o Aspirational goals to achieve equal results of a workplace composition that reflects the relevant labor pool in terms of demographics. o Eliminating practices and procedures that have the effect of disproportionately excluding applicants or employees from workplace opportunities on the basis of characteristics specified in discrimination law. o Making special efforts to recruit a diverse applicant pool by publicizing openings in ways calculated to bring them to the attention of racial minorities and/or women. o Adopting more flexible evaluation standards for applicants and employees that take into account a wider range of performance measures likely to capture qualities that evade measurement using traditional qualification standards. o Using preferences based on specified characteristics – either as tie-breakers as between equally qualified candidates, or as a basis for movement towards achieving goals. Ways Affirmative Action is Enforced – o Affirmative action as a court-ordered remedy for adjudicated discrimination – generally considered constitutional and/or authorized by statute when used in a remedial context for adjudicated discrimination by the defendant employer. o Affirmative action as a result of the negotiated settlement of a lawsuit where the court has determined that the employer is guilty of unlawful discrimination. Such an affirmative action agreement will usually be incorporated into a court order disposing of the case – should that insulate it from constitutional or statutory challenge? o Affirmative action as a result of the negotiated settlement of a lawsuit where the court has not yet ruled on the merits whether the employer is guilty of unlawful discrimination, but the case has survived a motion for dismissal for failure to state a claim or has been readied for trial (with or without court rejection of motions for summary judgment). o Affirmative action as a result of a negotiated settlement of a lawsuit where there has not been any motion practice or judicial determination of any legal issues, but where the employer‘s workforce lacks significant representation of minorities or women. o Affirmative action as a result of negotiation between a labor organization and an employer, in a situation where the employer‘s workforce reflects traditional patterns of discrimination based on race or sex.


o Affirmative action policies adopted by employers pursuant to federal or state executive orders establishing conditions for eligibility for public contracts, which normally require employers to take affirmative action to ensure employment of racial minorities or persons with disabilities. o Affirmative action policies voluntarily adopted by employers who believe that they are vulnerable to civil rights lawsuits due to the lack of diversity in their workforce or to past discriminatory practices that have not been the subject of litigation. o Affirmative action policies voluntarily adopted by employers who affirmatively seek to employ a diverse workforce due to sensitivity to the desires of potential customers. (e.g., these days, some law firms are routinely asked by corporate clients to assign a diverse team of lawyers to work on their legal matters; a law firm might decide to undertake an affirmative action policy for recruiting new associates in order to be able to staff cases in response to such requests….) o Affirmative action policies adopted by public or private employers in response to economic or political pressures brought by organized interest groups seeking to increase employment opportunities for minorities or women or who demand that tax dollars not be spent to fund racially or sexually segregated workforces. o Adopting policies to assure as far as possible that all personnel decisions are made on an individual basis without regard to membership in groups defined by the characteristics identified in discrimination law. Types of Classifications – o Suspect classifications – Strict Scrutiny (race, color) o Quasi-Suspect classifications - Heightened scrutiny (sex) o Ordinary distinctions - Rationality Review Race & Constitutional Classifications - The Court has held that race is a suspect classification, meaning that when the government takes race into account, its policy is subject to strict scrutiny, requiring a compelling governmental interest to justify it. But the context in which these prior decisions about race were made was a context in which the government was taking race into account in a way that discriminated against racial minorities. o Bakke (1978) – Affirmative action plan by state medical school that reserved a certain number of places in each class for minority applicants – held unlawful because it established a quota based on race. The public medical school argued that it had a responsibility to produce minority doctors. The Court upheld the use of race-conscious admissions but not quotas – OK for race to be one among many factors considered in an admissions decision if it is not a determinative factor. Decisions based on race by state government actors in the context of affirmative action admissions are subject to strict scrutiny under the 14th Amendment o Adarand (1995) – Federal government program incentivizing federal contractors to use minority-owned businesses as subcontractors – found to violate 5th Amendment equal protection requirements. o Grutter v. Bollinger (2003) – The case that challenged the affirmative action admissions program at U. Mich Law School. The Court held that the school‘s desire for a diverse student body to make its educational program better at

preparing students to function as lawyers in a diverse society counted as a compelling interest, where the program included race as a factor in evaluating applicants but did not create a quota system by reserving a set number of positions in the class for minorities or by making race the determinative factor in admissions decisions. The ―holistic‖ view approach – where the decision-maker on admissions considered race together with many other factors. o Gratz v. Bellinger - the Court rejected the University of Mich. Undergraduate affirmative action admissions program, because it added points to the test scores of minority students creating an across-the-board advantage in competition based on race, without regard to other factors. Because the Supreme Court has considered sex to be only a quasi-suspect classification, on the ground that sex is sometimes relevant to a person‘s qualifications and thus we are not automatically suspicious that a sexual classification is necessarily discriminatory, that means that sex-based affirmative action would not be subject to strict scrutiny, assuming the court uses a consistent standard from other cases involving sex discrimination under the 14th amendment. Thus, a public employer using an affirmative action program to increase job opportunities for women in previously male-dominated jobs is more likely to survive judicial review than one using a race-based program. Title VII & Affirmative Action – o §706(g)(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.  Affirmative Action is allowed to remedy past discrimination. o United Steelworkers v. Weber (1979) – Literal construction of 703(a) and (d) would defeat spirit of the statute; must be read against background of history of race discrimination – if statute is construed to outlaw all race-conscious efforts to overcome legacy of discrimination, it would defeat the equal opportunity purpose of the statute. Congressional intent – purpose of Title VII was to address the plight of the Negro in our economy. Efforts to improve the lot of racial minorities were not what Congress intended to outlaw. o Facts - Kaiser‘s 15 plants had a notable lack of black employees in skilled craft positions. African-Americans had traditionally lacked access to apprenticeship and training programs administered by the skilled trades unions, so there was not a significant pool of potential black applicants for such positions. Kaiser and Steelworkers negotiated the establishment of an in-plant training program, and agreed that half the positions in the program would be reserved for minority applicants until the percentage of minority craft workers equaled the minority percentage in the relevant labor recruitment pool for these plants. Kaiser stopped hiring skilled workers from the outside and instead agreed to confine its hiring to graduates of the in-house training program. Before plan was negotiated, fewer

than 2% of craft employees at Gramercy plant were black, although the black population in that geographical area approached 40%. During first year of the program, there were 13 openings, for which 7 black and 6 white applicants were chosen. Brian Weber, a white man who had applied for the program, was turned down. He was more senior than several black applicants who were admitted to the program. o 703(j) says statute does not REQUIRE employers to use racial preferences to cure racial imbalance in their workforce. This does not mean Title VII does not PERMIT such preferences as part of a goal-oriented program to achieve equal opportunity. Brennan argues that purpose of 703(j) was to shield employers from obtrusive attempts by government to dictate their personnel policies – therefore, 703(j) can‘t be used to argue against allowing employers to undertake voluntary or negotiated efforts to improve workplace diversity. o Factors to consider in evaluation plan:  Designed to break down old patterns of racial segregation and hierarchy – i.e., in response to racial imbalance in job categories  Does not unnecessarily trammel the interests of white employees – does not require discharge of white workers or create absolute bar to their advancement  plan is temporary, to expire when goal is reached Johnson v. Transportation Agency of Santa Clara County (1987) – allows sex to be considered in making employment decisions under Title VII. o Santa Clara County adopted an affirmative action plan in 1978, which authorizes consideration of ―sex‖ as a positive criterion for applications for promotion in traditionally sex-segregated employment categories.Women made up 36.4% of area labor market and relevant job categories, but only 22.4% of Agency employees, mainly concentrated in clerical jobs. Plan intended to achieve statistically measurable yearly progress, with long-term goal to attain a workforce that reflected the proportion of minorities and women in local labor force. o Agency posted a notice for promotional position of road dispatcher. No woman had ever been employed in this position. Diane Joyce and Paul Johnson were among the applicants. Johnson was more senior and more experienced, but Joyce had served in the position as a substitute and scored almost as highly as Johnson on the screening interview that was given to applicants who were found qualified (8 men and 1 woman). Panel of three Agency interviewers recommended Johnson for position, but the coordinator for the Affirmative Action Plan recommended that Joyce be selected. Director of the Agency, selected Joyce. Johnson sued, claiming sex discrimination. In testimony, Graebner admitted that affirmative action concerns weighed in the decision. o Court applies Weber test  Manifest imbalance exists when no women have ever served in the identified position – decision made pursuant to a plan to take sex into account to remedy underrepresentation  Does not deprive any man of a job. Johnson is still employed in his existing job. No man was laid off or displaced in order to apply the policy. Johnson can apply for future promotion


Plan has a goal, and once the goal is reached the plan ceases

Part V. Alternative Dispute Resolution  Federal Arbitration Act - authorizes federal courts to enforce arbitration agreements except in the transportation industry. o At the same time, Congress was concerned with one of the most heavily unionized sectors of the economy at that time, the railroads and shipping industries, which were at the heart of American commercial prosperity in the developing national economy. o An important purpose of the Act was to try to avoid disruptions of transportation service by making agreements between the railroad and maritime unions and employers enforceable. o The FAA was intended to create a presumption of enforceability for fair arbitration agreements between unions and companies.  Federal Arbitration Act § 10. Same; vacation; grounds; rehearing o (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—  (1) where the award was procured by corruption, fraud, or undue means;  (2) where there was evident partiality or corruption in the arbitrators, or either of them;  (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or  (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. o (b) If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. o (c) The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.  § 11. Same; modification or correction; grounds; order. In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration— o (a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.


o (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted. o (c) Where the award is imperfect in matter of form not affecting the merits of the controversy. o The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties. Arbitration of Discrimination Claims in Non-Union Workplaces – o Circuit City Stores v. Adams – upheld arbitration agreements to handle employment discrimination claims as long as they expressly apply to statutory claims.  Mr. Adams signed an employment application that included an arbitration agreement when he applied for a job at Circuit City. Two years later, he filed a discrimination claim in state court, alleging sexual orientation discrimination. Circuit City filed suit in US District Court, seeking to have the state action enjoined and the matter sent to arbitration. o EEOC v. Waffle House case (2002) - the existence of a company arbitration policy did not oust the EEOC from jurisdiction to sue an employer based on an employee‘s discrimination claim. While an employee can waive his right to sue, evidently such a private waiver is held not to be binding on the EEOC itself, and does not preclude the EEOC from proceeding, even to seek individual relief on the behalf of employees. When the EEOC sues, it is pursuing the public interest in enforcement of Title VII. o Procedural Requirements (Cole v. Burns Intl, DC Circuit) –  a neutral arbitrator  more than minimal discovery  a written award  same array of remedies available as in a court proceeding  employee must not be required to pay unreasonable costs or any of the arbitrator‘s fees or expenses o Rent-A-Center v. Jackson (2010) – whether an arbitration agreement is unconscionable and thus unenforceable is decided by the arbitrator.  Jackson filed a discrimination claim against his employer in federal district court under Title VII. Rent-A-Center moved under FAA to dismiss or stay proceedings and order arbitration. The arbitration agreement Jackson had signed upon hiring required that all past, present or future disputes arising out of employment, including claims for discrimination and for violation of federal law, be resolved through arbitration. It also provided that the arbitrator is not any court or agency and shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.  Scalia finds that by its terms, the delegation agreement provides that an arbitrator will rule whether the arbitration agreement is enforceable. Under FAA, the agreement to let an arbitrator decide whether the


arbitration provision is enforceable is itself enforceable, so the decision on unconscionability is, in the first instance, for the arbitrator. This provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. Court distinguishes between the grievance arbitration provision itself and the rest of the contract, from which it is severable.

Arbitration in Workplaces with Collective Bargaining Agreements o Cole v. Burns Int’l Security (DC Circ 1997) – adopts the manifest disregard for the law standard when courts are allowed to review arbitration agreements in collection bargaining agreements.  In collective bargaining context, review is supposed to be limited to whether the arbitrator abused his/her role by failing to base the ruling on the CBA or other designated source of law. Court suggests that outside of collective bargaining context, it may be appropriate for court to take a more active role.  Since most discrimination cases turn on factual determinations rather than complex legal questions, this would not be unduly intrusive, as the court is not going to substitute its judgment on the facts.  Court review should focus on whether the arbitrator‘s resolution of public law issues is correct.  The circuit courts are divided on how active a role to take, some adhering to the more limited rule that is customary in reviewing arbitration decisions in other fields, including collective bargaining.  Supreme Court has suggested that the role of the courts is circumscribed by Sec. 10 of the FAA, which does not provide for substantive review. o Alexander v. Gardner-Denver – An early case (1974) where an employee‘s discrimination grievance was presented to an arbitrator, who upheld the discharge on contract ground without reference to the Title VII claim. Question was whether the employee could then proceed in court on a Title VII claim. Supreme Court said yes, finding that union could not waive employee‘s statutory rights to have his discrimination claim determined under the statute.  In the course of the opinion, the Court cast considerable doubt on whether an arbitral forum controlled by the union and the company was a suitable venue for individual employee discrimination claims – noted lack of competence of arbitrators to decide statutory questions, potential conflict of interest for union, whose duty is to represent the interest of the bargaining unit, which might diverge from the individual employee‘s o Gilmer (1991) - was seen as undermining Alexander v. Gardner-Denver, by suggesting that arbitral forum was not necessarily an unsuitable venue for discrimination claims. Reflected a trend in the Supreme Court toward promotion of alternative dispute resolution as a means of relieving federal district courts of the flood of employment discrimination litigation, and a conservative, promanagement trend on the court as a result of Reagan-Bush appointments during the 1980s and early 1990s.


o 14 Penn Plaza LLC v. Pyett (2009) – The Court now recognizes the competence of the arbitral forum to decide substantive issues of discrimination law –see Gilmer.  CBA between Local 32BJ (representing NYC building workers) and 14 Penn Plaza require that all discrimination claims be submitted to binding arbitration under the master CBA for contractors and building owners and the union. The provision expressly referenced applicable federal, state and local discrimination statutes, and provided: ―Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.‖  Reinterprets Alexander v. Gardner Denver – In that case, the reversal was because ―the collective bargaining agreement did not cover the statutory claims.‖ i.e., the problem in Alexander was that the contract did not authorize the arbitrator to enforce statutory law, and the arbitrator‘s decision was based solely on the CBA. Under the circumstances, the arbitral forum was not really made available for deciding statutory discrimination claims.  There is no waiver of substantive statutory rights, when the arbitrator is authorized to decide the discrimination claim in accord with the statute. Waiver of substantive statutory rights would be prohibited.




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