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Employment Discrimination
Rutgers University, Newark School of Law
DiChiara, Michael R.

Rutgers University-Newark
Professor Michael Dichiara
Spring 2010



The Brown v. Board of Educ. decision laid the foundation for modern civil rights law, including emp. discrimination.

Title 7 of the Civil Rights Act prohibits discrimination on the basis of race, national origin, religion and sex.
Nat’l origin is treated the same as race in Con. Decisions under the 5th and 14th Amend.
Religion is protected by the religious clauses of the 1st Amend.
The EEOC is the administrative agency charged w/ enforcing Title 7.

Americans with Disability Act of 1990
Age and Discrimination in Employment Act 1967
§Updated in 2009 with tougher standards   
§ Rehabilitation Act (applies only to government agencies and contract recipients)

Unlike Con. Decisions, judicial decisions interpreting the laws against emp. discrimination can be overridden by Congress.


A. The Historical Perspective: Equality as Colorblindness

B. The Economic Perspective: Equality as Merit

C. The Remedial Perspective & Remedial Equality
Federal Judges are more likely to grant summary judgment for defendants, this is less likely to happen in State court
State courts are more likely to send employment discriminations to a jury and are therefore more plaintiff friendly
D. General Theories of Equality


Indiv. cases of emp disc. are cases where an individual plaintiff claims that an adverse personal decision was based on a prohibited characteristic, of which race is the paradigm.

Title 7 doesn’t define intentional discrimination.
General equitable remedies, such as injunction & back pay are available for all Title 7 violations.
Title 7 encompasses virtually all employment practices including any form of discrimination or segregation affecting an individual’s employment “because of an individual’s race, color, religion, sex, or national origin. The language because of is key.
Disparate treatment involves consideration of race or some other prohibited qualification- “unlawful intentional discrimination.”
“Unconscious discrimination” which arises from stereotypes & other patterned behaviors are never a complete defense, but may be a partial defense to recovery of liquidated or punitive damages.
In order to establish violation, the law only requires that prohibited factor has entered into the employer’s decision-making process.


To Whom Does Title IV Apply

1.      Must have 15 employee

2.      No individual liability under Title IV à liability attaches to employer

3.      Employees verse Independent Contractors
a.      Employer’s control and direction
b.      Skills required and if skills are obtained in the work place
c.       Responsibility of cost of equipment
d.      Method and form of payment
e.       Length of job commitment and expectation

4.      Parent v. Subsidiary

1.   Most Federal circuits use the NRLB test
a. Interrelated operations
b. Common management
c. Centralized control of labor relations
d. Common ownership

2. Heavy emphasis on third factor
a. Hiring, firing, supervision of employees

5.      Partners are not employees
a.      Answer only to other partners
b.      Degree of exposure to liability
c.       Investments made in company
d.      Voting rights
e.       Sharing of liability

Application of control test to determine whether employee or independent contractor:

§ EEOC v. RINELLA & RINELLA (N.D. Ill. 1975):
FACTS: Arlene Nagy was employed as a secretary by Rinella & Rinella, a one man law firm. She was eventually fired July 10, 1974 for being a member of Women Employed, an Ill. Not for profit corp. whose purpose was to oppose discrim. based on sex & otherwise work to improve the employment status & working conditions of women. Nagy publicly alleged that the firm discriminated against women in its health insurance benefits. Rinella threatened to fire the remaining women if they joined this group.
Procedural History: Nagy filed emp. discrim. suit alleging the firm violated § 704(a) of Title 7, 42 USCS § 2000e-3(a). The firm filed several motions to dismiss and the court dismissed them all.
HELD:Defendant’s motions denied.
(1) Rinella alleged he wasn’t an employer as defined by Title 7 b/c the attorneys were independent contractors and not employees; to be an employer w/ Title 7 liabilities you need a min. of 15 employees and the court said that they were employees b/c Rinella controlled the:
hiring, firing, compensation, the secretaries and clerks pay, and their health benefits.
(2) Rinella alleged he wasn’t engaged in an industry affecting interstate commerce, BUT the court said a general law practice does and pointed to several factors: long distance calls, travel expenses of associates, out-of-state books and intercommunication equipment.
(3) Rinella contended that charges weren’t filed w/in 180 day period after the alleged unlawful practice occurred, BUT court said the “existence of a continuing violation tolls the statute of limitations,” and since the allocation of ins

anesthesiologist, had staff privileges at Rush North Shore & was req. to spend a specified amount of time per week “on call” to the hospitals emergency room. His privileges were revoked for violation of the “on call” policy after he refused to come in for an emergency situation. He then filed a charge w/ the Ill. Dept. of Human Rights & the EEOC & then in court alleging Title 7 violation b/c of religion and nat’l origin.
Rush North moved for SJ on 2 grounds: (1) Dr. A wasn’t an employee; he was an independent/contractor & therefore not protected by Title 7; (2) Dr. A couldn’t show evidence that the proffered reason was a pretext for discrimination.
In D.C. Dr. A failed to prove connection between revocation of privileges and religion/nat’l origin. He failed to prove that other non-Muslims received lesser punishments for similar acts. 
Procedural History: D.C. entered final judgment for hospital.
ISSUE: Whether a self-employed physician w/ staff privileges at a hospital may bring a Title 7 claim, as Doe suggest
HELD: Affirmed in favor of Rush and petition for rehearing denied.
REASONING: After weighing several factors, the most important being “Right to Control,” the court decided to overrule Doe and said that an employee could not simply be an independent contractor to bring a Title 7 claim. Dr. A was skilled; listed his own corp. as his employer on his taxes; billed & collected from patients directly; got no benefits from Rush North; & was free to associate w/ other hospitals.

The courts used a 5 Factor test to determine whether an employee is an independent contractor:
(1) the extent of employers control of work, including scheduling & performance
(2) the kind of occupation, the nature of skill, including whether skill was obtained in workplace 
(3) responsibility for cost of operation; equip., supplies, fees, licenses, workplace, maintenance
(4) method and form of payment & benefits
(5) length of job commitment and/or expectations.

RULE: A plaintiff must prove the existence of an employment relationship in order to maintain a Title 7 action against a defendant and; Independent contractors are not protected by Title 7 (overruling Doe).
RULE: An employers “Right to Control” is the most important when determining whether an indiv. is an employee or an independent contractor.