Employment Discrimination
Bickel
Fall 2011
1. What class of discrimination is alleged?
o “because of…”
· Sex, religion, national origin
§ Title VII
· Race/Color
§ Title VII
§ 1981
· Age
§ ADEA
o “on the basis of disability” (2008 Amendment)
· ADA
2. What is the employment status of the victim?
o EE or independent contractor?
· Only 1981 can apply to independent contractors (through the contract)
3. What is the business?
o Private or Public ER?
· Private – Title VII, ADA, ADEA, 1981 (if there is an employment contract)
· Public
§ Federal – Title VII, 1981, ADEA, Rehab Act
§ State – Title VII, Federal enforcement of ADA, ADEA
§ Local – All
o How many employees?
· Title VII and ADA require 15 minimum employees
§ Some states extend it to ERs with less EEs
· ADEA is limited to 20 employees for private ERs
· 1981 is not limited to a certain amount of EEs
4. Does the EEOC need to become involved?
o Title VII, ADEA, ADA
· If the claim is 1981, Equal Pay Act, FMLA
§ NO
· YES
§ File a charge of discrimination with EEOC first
· Not just an intake questionnaire, but sometimes those suffice
· FedEx v. Holowecki
· State agencies with overlapping ambit is dual filed automatically
§ Investigation
§ Determination
· Reasonable cause?
· No
· P can file in court
· Yes
· Conciliation
· Mediation
· EEOC Files suit
· EE can withdraw from the EEOC process anytime after 180 days after charge is filed
5. What is the SOL?
o Based on law:
· Title VII, ADA
§ 180 days from violation
§ If there is a state or local agency that overlaps, then 300 days
· Or 30 days from the notice of cessation of state/local charge, whichever is earlier
· ADEA
§ 180 days from violation
§ If state law prohibits age discrimination and there is a state agency that enforces it – 300 days
· Or 30 days from the notice of cessation of state/local charge, whichever is earlier
· Section 1981
§ Actions arising from CRA 1991 – 4 years
· Such as a retaliation claim
§ Actions arising from pre-1991 law – state law (usually based on personal injury law)
6. Types of Discriminatory Conduct
1) Individual Disparate Treatment
2) Systemic Disparate Treatment
3) Disparate Impact
4) Retaliation
7. Once establishing the plaintiffs protected class and type of discrimination suffered, we must look to both those things to determine if the P has a case
TYPES OF DISCRIMINATION
I. Individual Disparate Treatment Template
1. Discriminatory state of mind.
o Proof of subjective, biased motivation is required (intent)
o The most easily understood type of discrimination. The employer treats some people les favorably than others because of their race, color, sex, religious, or national origin
o Usually, only the intent of the ultimate decisionmaker is relevant to the enquiry. In some cases the bias of someone without the power or authority to make the ultimate decision who was nevertheless involved in the adverse employment decision will be attributed to the who did made this decision, even if this person was unaware of the contributing persons taint (he he he).
1) Rubber Stamp- when the ultimate decision maker simply accepts the bottom-line recommendation of a subordinate wthiout further examinaition of the merits of the termination
2) Cat’s Paw- when the biased subordinate has influenced the decision through recommendations/suggestions, false information, or unfair evalutions
2. Causation
A. There must be a connection between the subjective bias and the claimed consequence. The ER discriminatory conduct caused the EE to suffer adverse effects
1) Single motive
§ Uses the either/or proposition
§ The employee’s treatment of one individual in a manner different from the treatment of another individual was either motivated by the adversely treated employee’s membership in a protected class or it was motivated by something else. The proof of one constitutes disproof of the other
§ “But for” causation
2) Mixed Motive
Define: “a mixed motive case is one in which the employer relies upon both a legitimate, nondiscriminatory reason and an unlawful, discriminatory reason at the moment it makes an adverse employment decision, and both the legitimate and illegitimate reasons are motivating factors in the adverse employment decision
§ Uses the “because of” standard not the “but for” as in single motive
Ø Price Waterhouse
Sex stereotyping is acting on the basis of gender.
o Congress adopted part Justice Brennan’s opinion in regards to mixed motive causation in Price Waterhouse. The plaintiff must merely demonstrate that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
o Brennan then allowed for an affirmative defense if the ER can show that it would have made the same decision absent the discriminatory conduct.
§ 1991 Act changed this from a complete defense to a limited remedy allowing only injunctive relief, attorney’s fees, and cost’s but no damages
· The courts were still split on whether “motivating factor” required a showing of direct evidence from P. Desert Palace clarified this
Ø Desert Palace
o Held direct evidence is not required in a mixed motive case
o No were in the 1991 act is there a requirement the P make a heightened showing of direct evidence.
of these qualification and performance, P was terminated
(iv) The position remained open to similarly qualified applicants after termination
c. Discharge because of pregnancy
(i) P was pregnant and employer knew she was pregnant
(ii) She was performing her duties satisfactorily
(iii) She was terminated
(iv) Similarly situated employees not in the protected class were treated more favorably (many courts do not require)
2) Defendant articulates a “legitimate nondiscriminatory reason”
o Once the P proves the elements of the prima facie case, the burden then shifts to the employer to articulate some non-discriminatory reason for the adverse employment action. This burden is just in regards to producing admissible evidence. The main burden
Ø Hazen Paper
A reason that is illegal under another federal statute, in this case ERISA still meets this burden. Implasuaible, silly, and fantastic may also satisfy the Courts articulation requirement
Ø Raytheon v Hernandez
Held that the application of a facially netural policy would be considered a “legitimate, nondiscriminatory reason” even if it had a disparate impact.
Ø Burdine
Held the D explanation must be “clear and reasonably specific”
3) Plaintiff must prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrim
o P now bears the ultimate burden that D’s reason is not the real reason and the P is a victim of intentional discrimination
o How to show Proof
– Use of comparators
– Prior treatment of P
– ER general policy and practice towards members of a protected class
– ER reasons for the conduct were constantly changing
– ER failure to follow normal policies
– ER being unaware of the alleged misconduct when the firing took place
o Pretext or Pretext plus?
§ Some courts held that convincing the finder of fact that the articulated reason did not actually motivate the employer was enough. Pretext.
§ Other courts held in addition to the evidence adduced in the prima facie case, the P must show additional evidence of the discriminaition itself. Pretext plus 1
