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Employment Discrimination
St. Louis University School of Law
McCormick, Marcia L.

Employment Discrimination, McCormick, Spring 2013
       I.            Theories of Discrimination
a.       Ricci v. DeStefano
                                                              i.      City used test for promotion of firefighters, disproportionately favored whites so the city threw the test out, white firefighters want it back in; majority holds for P’s
b.      Disparate treatment
                                                              i.      Obvious to outside observer, admission by actor
                                                            ii.      Facially discriminatory treatment that is intentional
c.       Disparate Impact
                                                              i.      Neutral practice with a disproportionate effect on protected group
    II.            Policy Bases for Antidiscrimination Law
a.       Economic Theories of Why Discrimination Still Exists:
                                                              i.      Tastes: some satisfaction from making employment decisions based on particular group preferences
                                                            ii.      Statistical Discrimination: limited information about individuals and base decisions on group membership characteristics
                                                          iii.      Sorting and search: essentially same as statistical; discrimination is a rational means of avoiding employee conflict
                                                          iv.      Status-production: members invest in elevating the status of own group by subordinating other groups
b.      Why Prohibit Discrimination?
                                                              i.      Violent things happen hen there is a permanent underclass (like riots or revolution)
                                                            ii.      Market failure: market needs intervention bc it hasn’t weeded it out like theories above suggest it would
                                                          iii.      Discrimination excludes entire groups from participation in economy w/o any assessment of individual abilities because of stereotypes
c.       The Costs and Benefits of Prohibiting Discrimination
                                                              i.      Costs: money to monitor, investigate, and prosecute; ERs must invest more in HR programs or more closely monitor laws and practices; interferes w/ who ERs think is best person for job
                                                            ii.      Benefits: cause of action
 III.            Disparate Treatment
a.       Default rules about employment relationship
                                                              i.      Employment relationship is considered a K, but it doesn’t have ro be written down
                                                            ii.      K is at-will; either party can cancel for any reason NOT prohibited by statute
                                                          iii.      Bargained modifications (unions, individual K’s, handbooks); common law modifications (state = private sector, federal = public sector); statutory modifications (federal & state)
b.      The Elements of an Individual Disparate Treatment Case
                                                              i.      1. Intent to discrimination (made a distinction based on protected class)
                                                            ii.      2. Effect on terms, conditions or privileges of employment (Adverse action)
                                                          iii.      3. Link between intent and effect (causation rules)
1.      Mixed motive (motivating factoràproximate cause)
a.       You fired me because… response: yeah, BUT… there’s this other reason too
b.      Disparate treatment (comparator or stats), direct evidence, McDonnell Douglas test (+motivating factor)
2.      But-for the protected status, the ER wouldn’t have acted that way
a.       McDonnell Douglas test (+pretext), disparate treatment (comparator or stats), direct evidence
                                                          iv.      1) Intent to Discriminate
1.      Slack v. Havens: black women fired because she refused to clean things that weren’t in the terms and conditions of employment, white woman excused to do another task; black women chosen because they were black (racially offensive comments made by supervisor)
a.       ER ratified discriminatory comments by firing the women bc the supervisor was an agent of the ER; this was an “otherwise discriminate against” kind of case before the firing
2.      Hazen Paper Co v. Biggins: old guy fired 2 weeks before his pension vested
a.       If the pension had said: it vests at age X, then it would’ve been discriminatory against age, but here it vests after years of service so it had nothing to do with age
b.      Age has to be the motivating factor (“but for causation”) but it wasn’t, the pension vesting was the factor
                                                            v.      2) Terms, Conditions, or Privileges of Employment [Adverse employment action] 1.      Hishon v. King & Spalding: What employer actions count as discrimination: firing, hiring, terms and conditions (promotions, demotions, cuts in pay, benefits, discipline, change in hours or work orders, transfer, hostile/abusive work environment)
                                                          vi.      Linking Discriminatory Intent to the Employer’s Treatment of Plaintiff [special issues in causation] 1.      To prove the link:
a.       P says the ER’s reason for adverse action isn't true (Hazen)
                                                                                                                                      i.      P has to prove “but for”
b.      P says the ER had a bad reason too (in addition to whatever reason the ER says the P was fired for); laundry list of completely separate reasons

xt; don’t look at each thing by itself and ask if it standing alone shows discriminatory conduct, there is a cumulative effect (if you represent ERs, take each piece of evidence and isolate it)
                                                            v.      McDonald v. Santa Fe Trail Transportation Co.: white EEs were fired after antifreeze went missing but black worker wasn’t; Title VII protects white people too; test used here was strict comparison: 2 people similarly situated, one suffers AEA and the only difference is protected class
                                                          vi.      Reeves v. Sanderson Plumbing Products, Inc.: old guy fired, said he wasn’t performing adequately; Pretext plus: 1) ER reason isn't true, didn’t motivate, isn't separate form protected class, 2) motivation WAS protected class; SCOTUS holds no extra evidence required; asserts holistic test: “could a reasonable jury believe this?” after appeals court threw out jury verdict for P when his evidence was convincing
                                                        vii.      Gross v. FBL Financial Services: Does a P need to present direct evidence of discrimination in order to get a mixed-motive jury instruction? Unlike Title VII, ADEAs text didn’t change to allow showing age was simply motivating factor, it has to be “because of” age
d.      Defenses (1. Rebut inference of discrim intent or 2. Present evidence of BFOQ)
                                                              i.      Rebutting the Inference of Discriminatory Intent
1.      Personnel Administrator v. Feeney: Mass. law gave preference to vets; 98% are men, women couldn’t compete for jobs
a.       Intent requires purpose or motivate and in this case there is no mental state for discrimination here, the mental state was to benefit veterans; knowledge most vets are men isn't enough, have to be that legislature picked vets BECAUSE no women would get hired
2.      EEOC v. Sears, Roebuck & Co.: EEOC says Sears discriminatory in commission/non-commission sales positions; ER rebutted P’s evidence by saying women didn’t have interest in the commission jobs and they were also not qualified for them; presented evidence of affirmative action, they knew disparities were happening and were trying to help women get into positions anyway; for D
                                                            ii.      Bona Fide Occupational Qualifications (RACE IS NEVER BFOQ)