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Employment Discrimination
Rutgers University, Newark School of Law
Hyde, Alan


Early liberal construction of Title VII of the Civil Rights Act of 1964:
1. The Southern Jurisprudence of Title VII: refers to a line of landmark Title VII cases decided by the federal courts in the South. Historically, the Fifth Circuit has been a very important site for the development of anti-discrimination law
2. “The Present Effects of Past Discrimination” theory of discrimination: many of the earliest Title 7 cases were class actions brought against employers & labor organizations, particularly in Southern states, that had long histories of intentionally limiting the employment opportunities of blacks & women because of race & sex.
·        2 pronged test for finding unlawful discrimination: i) were the challenged employment practices that antedated the effective date of Title 7 based on a subjective intent to treat applicants & employees differently because of race or sex; and ii) if so, even though the challenged practice is facially neutral, are there present effects- in the post-Act period- of that history of intentional discrimination, such as a workforce that is stratified on the basis of race & sex?
So, facially neutral employment practices (ie tests or diploma requirements) adopted before Title 7, but which have the effect of locking blacks & women into race- or sex-stratified jobs in the post-Act period, violate Title 7 unless the D proves that the practice is mandated by business necessity.
The Present Effects of Past Discrimination Theory is the doctrinal precursor of the Disparate Impact Theory.

Survey of Major Federal Laws on Employment Discrimination (p 14)
1. The Constitution
·        The Fifth Amendment: The DP Clause prohibits employers from, inter alia, engaging in employment discrimination.
·        The Fourteenth Amendment: prohibits states & municipalities from discriminating in employment. This also applies to lawful resident aliens. The protection against discrimination extends to race, sex, alienage, & age, but the level of protection is not the same for all protected classes.
·        The First Amendment: protects public employees against religious discrimination by their employers (Free Exercise Clause & Establishment Clause). Employers use the free speech provision in the First Amend. as a defense to workplace harassment claims.
·        The Reconstruction Era Civil Rights Legislation: the 2 most important are 42 USC §§ 1981 & 1983. 1981 provides that all people within the US have the same right to make & enforce K’s as is enjoyed by white people. 1983 is not a source of substantive rights, but it provides individuals a cause of action for the deprivation of substantive rights guaranteed under other federal laws of the C.
·        The Equal Pay Act of 1963: prevents sex-based wage discrimination in employment.
·        Title 7 of the Civil Rights Act of 1964: it is unlawful for public or private employers, labor organizations, & employment agencies to discriminate against applicants & employees on the basis of their race, color, sex, religion, & national origin. This is probably the exclusive remedy for people seeking damages for sex-based employment discrimination policies in federally funded programs.
·        Title 6 of the Civil Rights Act of 1964: prohibits discrimination because of race, color, or national origin in any program or activity receiving federal $
·        The Age Discrimination in Employment act of 1964: for ³ 40 years
·        Title 9 of the Educational Amendments of 1972: prohibits discrimination on the basis of sex in any educational program or activity that receives federal $
·        The Vocational Rehabilitation Act of 1973: This was prior to ADA
·        The Immigration Reform & Control Act of 1986: is an overlap between this & Title 7
·        Title 1 of the ADA of 1990:
·        The Civil Rights Act of 1991:
·        The Government Employee Rights Act of 1991:
·        Family & Medical Leave Act of 1993: can take up to 12 weeks of unpaid leave for medical reasons, for the birth or adoption of a child, & for the care of a child, spouse or parent who has a serious health condition
·        The Congressional Accountability Act of 1995: because of this, 11 civil rights & labor laws are applicable to the legislative branch of the f

ted against an individual because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens. Because the record was insufficient to determine whether respondent had been subjected to the sort of prejudice that § 1981 would redress, the case was remanded.
ISSUE: Could the P (a citizen of the US who was born in Iraq), bring a race discrimination claim under §1981?
HOLDING:. Respondent’s claim was not time-barred. When respondent filed suit, it was clearly established in the Third Circuit that a § 1981 plaintiff had six years to bring an action. The Court of Appeals correctly held that its Goodman decision should not be applied retroactively, since Chevron indicated that it is manifestly inequitable to apply statute of limitations decisions retroactively when they overrule clearly established Circuit precedent on which the complaining party was entitled to rely.
2. A person of Arabian ancestry may be protected from racial discrimination under § 1981. The Court of Appeals properly rejected petitioners’ contention that, as a Caucasian, respondent cannot allege the type of discrimination that § 1981 forbids, since that section does not encompass claims of discrimination by one Caucasian against another. That position assumes that all those who might be deemed Caucasians today were thought to be of the same race when § 1981 became law. In fact, 19th-century sources commonly described “race” in terms of particular ethnic groups, including Arabs, and do not support the claim that Arabs and other present-day “Caucasians” were then considered to be a single race. Moreover, § 1981’s legislative history indicates that Congress intended to protect identifiable classes of persons who are subjected