Employment Discrimination
Spring 2007
Prof. Maltz
Title VII:
It shall be unlawful …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.
FIs aimed at employers, therefore it expressly includes “any agent” of employer, to make employer liable. Slack v. Havens.
o Hostile environment = Comments can become so pervasive that a hostile work environment is created; and a hostile environment is grounds for a Title VII violation.
FLegislative intent to prevent animus & stereotyping. (not true with ADEA)
FPolicy: Congress intended Title VII to remove artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. 110.
FCan be used by Caucasian people too. McDonald v. Santa Fe Trail.
FIf race was a causing factor in whole or in part, it violates Title VII &/or §1981
FA partner in a law firm will get protection even though not an employee, but an associate is
o But a permanent associate would not get protection because of the employment K.
ADEA:
It shall be unlawful …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 age.
FProtects those at least 40.
o But does not protect those that are 40 who don’t get hired over a 65 year old because ADEA was designed to protect older individuals.
FThere is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age. Hazen Paper Co. v. Biggins.
o “Age discrimination can only succeed ‘if [age] actually played a role in that process & had a determinative influence on that outcome’” 97.
FERISA = unlawful to fire an employee because their pension is vesting. BUT, just because there may be an ERISA violation, doesn’t necessarily mean there is an ADEA violation. J. O’Connor Hazen Paper Co.
FA disparate impact analysis may not be permissible under the ADEA; but probably argue it just in case- and just express the doubt among the courts.
§ 1981:
(a) All persons within … the U.S. shall have the same right in every state and territory to make and enforce contracts …
FWhy choose §1981: Has fewer procedural hoops than Title VII; and VII has damage limitations that §1981 doesn’t. (note: it can be pled with Title VII)
FCan be used by Caucasian people too, but more difficult then Title VII. McDonald v. Santa Fe Trail.
F“Race” is interpreted broadly, therefore Arabic can = race.
FIf race was a causing factor in whole or in part, it violates Title VII and/or §1981
o But, Affirmative Action might bring you outside of §1981
FThis ONLY protects RACE discrimination.
FYou can’t use disparate impact analysis under §1981
Types of discrimination protected:
1. Facial (easy cases that discriminate on their face)
2. In
y to show that Petitioner’s (Def.’s) stated reason for [Plaintiff’s rejection] was in fact a pretext.”
a) Pure pretext or
1) Plaintiff’s ultimate burden would probably be to prove “but for” causation.)
b) Direct evidence.
1) Plaintiff only has to establish that [discriminatory conduct] was a “motivating factor.”
B. Plaintiff’s Burden
i. The majority of the circuits do not require the second person (the one hired) to be outside of the protected class. (some jdxs. required the 2d person to be outside of the protected class).
a) I.E. if an African-American is passed-over by another Afr.-Amer., that doesn’t preclude #1 from claiming race discrimination.
b) But, that fact can be probative. O’Connor v. Consolidated Coin.
c) Note: ADEA is different then race discrimination.
ii. Plaintiff’s proof: Burden of production of evidence that it is more likely than not without other evidence that the defendant acted discriminatorily (by a preponderance of the evidence).
a) Where the plaintiff is white, some circuits require a higher burden:
1) Must show special circumstances showing bad motive, clear racial animus or disparate impact, or ill-defined affirmative action quota.
2) Other’s say it should be the same for all plaintiffs (Maltz’s view).
