Professor Harvey – Employment Discrimination – Fall 2012
1. International Human Rights Obligations Relating to Employment Discrimination:
a. United Nations Charter:
i. Ratified treaty as of 1945 by the senate
ii. Binding on all member nations of the UN
iii. Article 55: promotion of full employment and observance of all fundamental rights without discrimination
iv. Article 56: individual members of UN have obligation to take joint and separate action to achieve the purposes set forth in 55
v. What human rights must US promote pursuant to Art. 56?
1. Rights in the UN Universal Declaration of Human Right
2. Members of the UN have no obligation to ratify the obligations in the Universal Declaration; but are obligated to promote the ideologies within it
b. Universal Declaration: (aka Bill of Rights for UN Charter)
i. Addressed to all people of all nations; not only governmental organizations
ii. Member nations of UN have duty to not only observe obligation of promoting human rights recognized in the Declaration but also to promote this recognition and observance through EVERY organ of society
iii. 2 separate conventions of Civil/Political and Economic/Social rights:
1. International Covenant of Civil and Political Rights:
a. Ratified by US in 1992; so now have direct treaty obligation to uphold it
b. Ratifying nations must guarantee the rights contained immediately
2. International Covenant on Economic and Social rights
a. NOT ratified by the US, so no treaty obligation- just obligated to work towards achieving the rights over time only take steps to the maximum of your resources
c. International Convention of Elimination on all forms of Racial Discrimination:
i. US ratified the treaty in 1992; must be enforced by US
ii. Has same effect of constitution- preemptive affect over state laws
iii. Most recent pronouncement of the state of the US’s take on discrimination
1. Art 1, P4: defines racial discrimination
2. Art4, P4: affirmative action is not discrimination
3. Art2, P2: state parties SHALL when circumstances warrant mandate affirmative action
d. Treaty which is adopted BUT not ratified: there is no obligation within the country domestically; no rights created for an individual within the country
i. If treaty is self-executing then the treaty creates obligations on its own within the country
ii. If treaty is non-self-executing then the country is bound internationally but no domestic right is created without ratification
2. Employment Discrimination Law Prior to 1964:
a. No statutory provisions or constitutional protections against racial discrimination
b. Steele v Louiville & Nashville Rail Road Co. (1944) pg 12
i. Court held that a union which discriminated against blacks are in violation of the Constitution via the NLRA
c. Race and Social Welfare Policies of Civil Rights Organizations:
i. During WWII there was a labor shortage and there was an effort to involve black workers in the defense industry
ii. Executive Order 8802 was issued by Roosevelt 2 days before a March on Washington was scheduled
1. Order said there should be no discrimination in employment of workers in defense industry, and established the FECP ( Fair Employment Practice Committee)
2. Executive order was pretty ineffective b/c not enforced and no power was granted to FECP to enforce it
a. Roosevelt didn’t go after enforcement so as to not offend the Southern Democrats who were his voting base
iii. NCNW (National Council of Negro Women) was founded in 1935
1. fought for black women to gain access to jobs
3. US Civil Rights Movement and Civil Rights Act of 1964:
a. FEPC (fair employment practices commission)- first time the federal government adopted an act prohibiting discrimination on the basis of race
i. Handicapped by lack of funding and lack of enforcement power and lack of will to – enforce – ended after the war despite efforts to keep it
ii. EEOC was modeled upon the FEPC
b. Full Employment Bill
i. New Dealers tried to enact full employment legislation- wanted gov. to guarantee jobs for all members of labor force who were willing and able
ii. Civil rights supported this legislation b/c saw it as essential b/c with the end of the war they expected an end to full employment which would lessen access to any jobs at all, let alone higher paying jobs for blacks
iii. The bill was changed and watered down to take out the language and mechanism that civil rights advocates wanted
iv. Not enacted
v. What was instead enacted was the Employment Act of 1946 which required the US to try and achieve ‘maximum’ employment
1. Didn’t commit federal gov. to take action to ensure full employment as the original bill proposed
c. Civil Rights’ Social Welfare
i. NAACP felt goals of Civil Rights movement could only be achieved if anti-discrimination legislation would be combined with social welfare legislation
ii. Statutes for social welfare excluded agricultural and domestic workers (had no anti-discrimination clauses)- this was b/c southern democrats wanted to keep their black laborers excluded from the coverage
iii. Split in 50’s of liberals who felt anti-discrimination goal should be included in social welfare initiative v. those who felt it would kill the social welfare initiative totally (since conservative republicans may then hold back votes)
d. March on Washington (1963)
i. Meant originally to promote full employment
ii. Randolph, civil rights leader, said that was too narrow and included in the march’s objective promotion of civil rights enforcement
1. March was for “employment and freedom”
iii. Resulted in Civil Rights Act of 1964, BUT no full-employment legislation was enacted
iv. Example of the failure to combine social welfare and civil rights objectives
e. Civil Rights Act of 1964
i. Was in effect the reestablishment of the FEPC
ii. Was the response to the March on Washington – (but there was no response to the demand of full employment)
Coverage of Title VII Of the Civil Rights Act of 1964:
4. Covered Entities of Title VII:
a. ERs
i. Broadly construed ; exception for ER with fewer than 15 EEs
1. Excludes about 85% of ERs
2. Excludes about 15% of EEs
ii. Activities as an ER must have an effect on commerce; defined broadly
b. Employment agencies
i. Court takes a restrictive position and interprets an employment agency narrowly
c. Labor organizations
i. Kind of discrimination prohibited may be diff, b/c may not discriminate in employment function, but instead on the basis of its membership
ii. Defined broadly, but with a size limitation of at least 15 members
iii. Can sometimes reach a local by virtue of the international, see Greenfield
d. EE:
i. Must be on payroll for at least 20 weeks
1. No matter if part or full time
ii. Supreme Court test to establish who qualifies as an EE- focus on the control of a master/servant relationship
iii. Factors to asses objectively:
1. Can organization hire, fire, or set rules of the individual
2. To what extent the organization supervises the individual
3. Whether individual reports to someone higher in the organization
4. The extent to which the individual can influence the organization
5. Whether a written document expressing the intention of the parties treats the individual as an EE
6. Whether individual shares in profits and losses
e. Does Not Cover Independent Contractors
i. If only have independent contractors working for you rather than EEs then ER isn’t covered by Title 7
f. Goal of Act:
i. Prohibits ERs, unions, and employment agencies from discriminating with respect to a broadly defined class of employment related decisions on the basis of five specifically enumerated classifications – race, color, religion, national origin and sex
ii. Must prove they were qualified for the job
iii. Must show there was an adverse action against them (discharged, failure to promote, etc)
iv. Person hired/promoted is not in plaintiff’s protected class
d. When Title VII was enacted, there was no overt definition given to “discrimination” and so courts were left to interpret the meaning
i. The Civil Rights Act of 1991 forced the court to modify some decisions regarding the meaning of unlawful discrimination
e. When there is no direct evidence of discrimination, only circumstantial:
i. McDonnell Douglas prima face case of discrimination:
1. When plaintiff can only offer circumstantial evidence of D’s motivation
2. Used when direct evidence is not available (direct evidence presents a per se case of prima face discrimination w/out having to resort to McDOnnell)
ii. Burdine burden of establishing a prima face case: (circumstantial evidence)
1. Not onerous, nor is ER’s burden
2. If D rebuts P’s prima face case, P can still win by showing D’s states reasons for P’s rejection are pretextual
a. Pretextual: a false explanation put forward to cover up an unlawful discrimination
b. EE’s can show pretext by proof of similarly situated EEs being treated more favorably
f. McDonnel/Burdine formula doesn’t apply to every situation where a decision was allegedly discriminatorily motivated (applies only to cases which rely on circumstantial evidence)
i. If EE has direct evidence of discrimination then no need for it, goes straight to ER for a response/defense
g. CASE- St. Mary’s Honor Center v Hicks (S.C. 1993) pg 74:
i. Even after plaintiff has disproved the defendant’s supposed legit reasons, then the trier of fact can still roam the record to decide for themselves
1. Modified McDonnel and Burdine
h. Mixed Motive Cases
i. CASE- Price Waterhouse v Hopkins (1989- S.Ct.)
1. Rule: In a mixed motive case, if ER credibly testifies the action would have taken place for the legit reason alone, then this is ample proof and no objective evidence is required
2. this case is old law since §107 of Civil Rights Act of 1991
ii. RULE: If fact-finder determines ER would have made same decision absent discriminatory motivation, then no liability under Title VII
1. In mixed motive case if there’s a preponderance of the evidence the plaintiff has to show by direct evidence that the ER did take impermissible factor into consideration (that it was a substantial factor)- then burden shifts- then judge must decide whether by a preponderance of the evidence that ER would have done same thing anyway
i. §107 of the 1991 Act: unlawful employment practice is established when 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
b. Civil Rights Act of 1991:
i. The Act expanded the scope of Title VII liability but restricted the kind of relief available in mixed-motive cases
ii. Relief available in mixed motive cases:
1. Declaratory, injunctive relief & attorney fees – NO damages or issuance of admission, reinstatement, hiring, promotion, payment
iii. In Summary: don’t need direct evidence and plaintiff need only show impermissible motive is a factor – then burden shifts to defendant – and the remedy is limited when the ER is liable
