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

Employment Discrimination
Michael DiChiara
Spring 2014

1) Employer or independent contractor?
2) Is the employer covered by statute and are there 15 (or 20) employees?
3) SOL/Administrative Remedies/Right to Sue Letter
4) List Charges/Prima Facie Case (distinction between burdens of proof & persuation
5) Defenses
6) Damages

The Civil Rights Act of 1964 Title VII (EEOC)
Prohibits discrimination against: race, religion, gender, color, national origin
General equitable remedies (injunction & back pay) are available for all Title VII violations.

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

1. In states where there’s an administrative agency, you have 300 days to file your charge.
2. In states without an agency, you have 180 days to file with the EEOC.
3. In states with an administrative agency & the EEOC, it’s called a dual agent state and you have an option to file with either.
4. In order to go into federal court, you must have a right to sue letter. The SOL for the right to sue letter is 90 days.
5. The SOL triggers from the date of the last discriminatory act.

FEDERAL EXPRESS V. HOLOWECKI (2008)— A filing would be considered a charge if it could be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

DURON V. ALBERTSON’S (2009)—If the right to sue letter is not received in a timely manner and the employer lacks evidence of receipt, the employee's affidavit could suffice to overcome the mailbox rule, which presumed that a letter was received shortly after the date on which it was mailed.

NATIONAL RAILROAD V. MORGAN (2002)—Employee could recover on hostile work environment theory for acts occurring more than 300 days before charge was filed with EEOC, as long as acts were part of the same hostile work environment and at least one occurred within the 300-day period.

Hostile work environment is a series of discriminatory acts; discrimination is a specific act of discrimination and starts a new SOL.

WEBB V. CITY OF PHILADELPHIA (2009)—There is no religious discrimination if accommodation causes an undue burden.


Employer: Must have at least 15 employees (anytime in the past 12 months)

Employees versus Independent Contractors
1. Employer’s control and direction (Control Test: often used by the courts)
2. Skills required and if skills are obtained in the work place
3. Responsibility of cost of equipment
4. Method and form of payment (Economic Reality Test: benefits & taxes, IRS uses this test)
5. Length of job commitment and expectation

Partners are not employees
1. Answer only to other partners; 2. Degree of exposure to liability; 3. Investments made in company
4. Voting rights; 5. Sharing of liability

Parent v. Subsidiary
1. Most Federal circuits use the NLRB test: Interrelated operations, common management, centralized control of labor relations (heavy emphasis on hiring, firing, supervision of employees), common ownership

EEOC v. RINELLA & RINALLA (1975)—The court found that the attorneys were employees because the defendant controlled hiring, firing and compensation & health benefits.

TYLER V. VICKERY (1975)—GA Bar is not an employer, so the employment claim does not qualify.

Note: Title VII precludes the use of testing procedures which disproportionately exclude protect minorities, regardless of intent or motivation, unless they are demonstrably a “reasonable measure of job performance. Statistical evidence of disparate racial impact alone can establish a prima facie case of racial discrimination, shifting to the defendant the burden of demonstrating that invidious discrimination was not among the reasons for his action.


14 PENN PLAZA V. PYETT (2009)—Statutory claims can be waived in the employment agreement. As long as there’s a clear agreement that you have to arbitrate your statutory claims, it is valid.


Disparate treatment—there’s intentional discrimination and you have to establish it.

Disparate impact—there’s a policy neutral on its face, but has a disparate impact on a protected class.

Burden-shifting Analysis for Discrimination Cases:

A. In a Title VII case, a plaintiff may establish a prima facie case of intentional discrimination by showing:
1) that he belongs to a protected class (race/national origin/gender/religion/color);
2) that he applied and was qualified for a job/promotion for which the employer was seeking applicants;
3) that, despite his qualifications, he suffered adverse employment action because of being member of a protected class; and
4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications (and/or a white person was hired).

B. If a prima facie case is established, the burden then shifts to the defendant (the burden of production); the employer must give a legitimate nondiscriminatory reason for the termination. This is just about producing a reason, not persuading.

C. The burden will shift back to the plaintiff to show that the reason the defendant gave was simply a pretext and not the real reason, and that the real reason was discrimination. Prove that the defendant is lying. Pretext requires more than simply discrediting the defendant’s offered reason. It also involves proof that the defendant’s motivating reason was discriminatory.

Pre-text Evidence Often Used:
(a) Anecdotal Comments;
(b) Remarks made by authorized agents (employer will argue that the remarks are so far removed from the decision-making process that they are irrelevant.)
(c) Past treatment of person
(d) Comparativ

will be asked to determine if the challenged action was taken because of a
prohibited reason

2. If evidence supports that discrimination is one of two or more reasons, the jury receives
mixed-motive instructions:
a. Good for Defendant: Damages limited – NO PUNITIVE DAMAGES
i. Employer escapes damages if it would have taken the same action.
ii. Note: Employer liable for attorney fees, declaratory relief and order prohibiting future
b. Bad for Defendant: Telling jury about evidence of discrimination can be damaging

3. Burden of persuasion shifts to the defendant. (He would have taken AEA regardless of the
discriminatory reason).

Mixed-motive v. Pretext: Which theory is better
1. Mixed Motive Better: If plaintiff must concede non-discriminatory factor
a. Plaintiff will more likely try to argue mixed-motive
2. Single Motive Better: If a plaintiff could make a strong showing of pretext
3. Pretext: If the legitimate non-discriminatory reason seems too strained, strange
a. Pretext is more defendant friendly
b. Burden of persuasion on plaintiff, s/he must show that employer’s reasoning is pretext and not a
legal justifiable reason for adverse

DESERT PALACE V. COSTA (2003)—You can use circumstantial evidence with mixed-motive instructions. The employee did not need to present direct evidence of discrimination in order to obtain a mixed-motive instruction, she only needed to present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, gender or national origin was a motivating factor for any employment practice. You may have direct and circumstantial evidence to prove mixed-motive.

Burden of Persuasion for Employer: They must show that they would have taken the same action regardless of the discriminatory motive.

If the employer is able to prove that they would have taken the same action anyway, this does not rid them of damages, it just limits it. The plaintiff receives declaratory relief and attorneys’ fees, but no monetary award. The judge can issue an order prohibiting the employer for committing further discrimination.

Circuit Courts Split on Mixed Motive:
5th and 9th Circuits follow Desert Palace; 5th Circuit Louisiana/Texas very conservative
9th Circuit California/Hawaii/Alaska very liberal; 4th, 7th and 8th Circuits do not follow Desert Palace