Select Page

Employment Discrimination
SUNY Buffalo Law School
Avery, Michael A.

Spring 2005 – Prof. Avery
*** Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
I.   Laws Prohibiting Discrimination in Employment
Federal Laws
Federal Constitution
–          5th Amendment Due Process Clause: prohibits federal employers from engaging in discrimination in employment
                                                              i.      Supreme Court has construed its Due Process clause as embodying an equal protection component – Bolling v. Sharpe
–          14th Amendment: Due Process and Equal Protection Clauses
                                                              i.      prohibits states and municipalities from discriminating in employment
                                                            ii.      lawful resident aliens are entitled to protection
                                                          iii.      protection extends to age, race, sex and alienage – but the level of protection is not the same for all classes
–          1st Amendment
                                                              i.      protects public employees against religious discrimination by public employers
                                                            ii.      the Free Exercise Clause and Establishment Clause have been relied upon to regulate discrimination because of religion in the workplace
                                                          iii.      free speech provision of the 1st amendment has also been used as a defense to workplace harassment claims
Reconstruction Era Civil Rights Legislation
–          Intended to enforce the rights embodied in the 13th, 14th, and 15th amendments
–          §1981 – all persons within the jurisdictions of the United States shall have the same right to make and enforce laws as is enjoyed by white citizens
–          §1983 – not a source of substantive rights, but provides individuals a cause of action for the deprivation of substantive rights guaranteed by other federal laws or the Constitution
–          Supreme Court revived in 1960s and 1970s
Equal Pay Act of 1963
–          amendment to the Fair Labor Standards Act of 1938
–          prohibits sex based wage discrimination in employment
Title VII of the Civil Rights Action of 1964
–          Prohibits public or private employers, labor organizations, and employment agencies to discriminate against applicants and employees on the basis of race, sex, national origin, religion and color
                                                              i.      1972 amendments: extended coverage to federal, state and local government employees
                                                            ii.      1978 amendments: made discrimination based on pregnancy sex discrimination
                                                          iii.      1991 amendments: provided compensatory and punitive damages as well as jury trials
Title VI of the Civil Rights Act of 1964
–          Prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives federal financial assistance, i.e., grants, loans, contracts, etc.
–          Individuals have a private right of action to seek relief for discrimination under Title VI
Age Discrimination in employment Act of 1967
–          Protects applicants and employees who are 40 or over
Title IX of the Educational Amendments of 1972
–          Prohibits discrimination on the basis of sex in any educational program or activity that receives federal financial assistance
–          Purposes:
                                                              i.      To avoid the use of federal resources to support sex based discriminatory practices
                                                            ii.      To provide individual citizens effective protection against those practices
Vocational Rehabilitation Act of 1973
–          Prohibits employment discrimination in federal employment against persons with disabilities
Immigration Reform and Control Act of 1986
–          Prohibits discrimination in employment on the basis of national origin and citizenship
 Americans with Disabilities Act
–          eliminate discrimination against qualified individuals with disabilities in public accommodations, services provided by state and municipal governments , public and private transportation, and telecommunications
–          prohibits employment discrimination against qualified individuals with disabilities who with or without reasonable accommodation can perform the essential functions of a job
Civil Rights Act of 1991
–          Provide for jury trials in Title VII
–          Also to modify or overturn some Supreme Court decisions previously issued
The Government Employee Rights Act of 1991
–          Protects people previously exempt from Title VII, ADEA and ADA who work in federal government positions
–          i.e., E/EEs of the US Senate, staff of elected officials, etc.
Family and Medical Leave act of 1993
–          Entitled eligible E/EEs to take up to 12 weeks of unpaid leave for medical reasons, for the birth or adoption of a baby, or the care of an ill child spouse or parent
Congressional Accountability Act of 1995
–          Title VII, ADA, ADEA, and Rehabilitation Act are applicable to the legislative branch of the Federal Government
Presidential Executive Orders
Glass Ceiling Act of 1991
–          Commission that discusses how to remove barriers from the advancement of women in the workplace
11th Amendment
– a bar to civil claims for damages against states
– Supreme Court has held that the 11th Amendment bars a citizen from bringing suit against the citizens own state in federal court
– two exceptions
            – a state may waive its immunity and consent to suit in federal court
            – Congress can abrogate a state’s 11th amendment immunity w/o consent as long as
 Congress does so pursuant to its power to enforce, by appropriate legislation, substantive provisions of the 14th amendment
Other Remedies
§         State and Local Laws
o        Often extend broader protection that that found under the federal statutes
o        i.e., marital status, sexual orientation, and physical appearance
§         Labor Relations Laws
o        NLRA & Railway Labor Act
o        Impose upon labor organizations the obligation to represent the interests of all members fairly w/o regard to sex, race, religion or national origin
o        “duty of fair representation”
§         Collective Bargaining Agreements
§         Veterans’ Rights
o        Protects veterans from employment discrimination based on their prior military service
o        Also provided certain job preferences b/c of said service or training
II. Enforcement Schemes
Want the option of going to federal court?
Want to preserve the right of a client to get into federal court?
Must keep in mind Administrative Remedies and other Enforcement Schemes
Title VII
Equal Employment Opportunity Commission
Established to enforce Title VII
Reforms have strengthened its enforcement authority
Can seek judicial enforcement of title VII
Responsible for enforcement of laws designed to prevent employment discrimination
responsible for Title VII, Equal Pay Act, ADEA, and ADA
responsible for enforcement of employment discrimination regulations in the federal sector
EEOC can promulgate procedural regulations to enforce Title VII, ADEA, federal sector employment discrimination claims
Administrative Exhaustion
An individual seeking relief from discrimination under Title VII (or the ADA) may not file a civil suit until administrative remedies before the EEOC have been exhausted
Two requirements in order to bring a civil action:
Timely file a charge with the EEOC
Must be done within “180 days after the alleged unlawful employment practice has occurred” – non-deferral OR
“within three hundred days after the alleged unlawful employment practice has occurred” if the aggrieved party has “initially instituted proceedings with a State or local agency with authority to grant or seek relief” – deferral
must file with the NYSDHR within one year
Timely file a complaint in federal court within 90 days of receipt of a right to sue notice from the EEOC
Once these two requirements have been met, a federal or state court then has jurisdiction to hear the claim
Must ask if in a deferral or non-deferral jurisdiction
Non-deferral – 180 days to file w/EEOC
Deferral – 300 days to file w/EEOC
In reality, must file in 240 days b/c the state is permitted 60 days to try to resolve the claim; if you wait until 300 days, you will actually be untimely
§706 details the requirements of the EEOC charge
in writing under oath or affirmation
National Railroad Passenger Corp. v. Morgan (2002)
Issue: When has an unlawful employment practice occurred so as to trigger the running of an 180-or 300 day requirement?
Plaintiff filed charge against Amtrak with EEOC within 300 days of unlawful employment practices; some UEPs took place before the 300 day time period and the defendant moved for SJ on all claims outside the 300 days; motion was granted by district court, but reversed by the 9th Circuit
The term practice applies to distinct acts or single occurrence, even if they fall within the context of other acts
Rule: the continuing violation theory is inapplicable to discrete acts, but it is applicable to hostile work environment claims (page 177)
Discrete acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges
Each discrete act starts a new clock for filing charges alleging that act
The Meaning of Race and Color
St.FrancisCollege v. Al-Khazraji (1987)
Whether the Plaintiff, a citizen of the U.S. who was born in Iraq, could bring a race discrimination claim under §1981.
Are we limited to only three racial categories?
§1981 forbids all race discrimination in the making of public and private contracts
Defendants argue plaintiff is Caucasian, and the statute does not protect a claim of one Caucasian against another
Court looked to what “race” meant when §1981 was drafted – in the 19th century
Arabs today are considered to be within the Caucasian race, so ∏s claim fails
Who is an Employee?
Title VII says an E/EE is a person employed by an E/R – very unhelpful!
Clackamas Gastroenterology v. Wells (2003)
ADA does not protect unless E/R has 15 or more E/EES
Are physician-shareholders who own the professional corporation and constitute the board of directors are counted as employees for the purpose of Title I of the ADA?
Discusses the relevance o

nal participation in conduct designed to harm E/R
Nothing in Title VII compels an E/R to absolve an E/EE who has engaged in deliberate and unlawful activity
Then, plaintiff must be afforded an opportunity to prove that E/Rs stated reason for the rejection was pretext
i.e. that white E/EEs who participated in the sit in were not discharged but black E/EEs were
Furnco Construction Corp. v. Waters (1978)
– plaintiffs (3 black bricklayers) applied at the gate, however E/R does not hire at the gate
– the McDonnell Douglas burden shifting framework was never intended to be rigid and mechanistic
– a prima facie case under McDonnell Douglas raises inferences of discrimination b/c we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors
– the burden which shifts to the E/R is merely that of proving that he based his employment decision on a legitimate consideration rather than an illegitimate one
– it was improper for the Court of Appeals to conclude that different practices would have allowed the E/R to hire more minorities – THIS IS NOT THE POINT OF MCDD BURDEN SHIFTING ANALYSIS!!!!
not intended to impose on E/R costs he otherwise would not have incurred
as courts are generally less competent than E/Rs to restructure business practices and unless mandated to do so by Congress they should not attempt it
– Ct. of Appeals also erred in holding that statistical evidence of a racially balanced work force was irrelevant in the question of motive
– this is not so b/c the McDD prima facie showing is not equivalent to an ultimate finding by the trier of fact
a racially balanced work force cannot immunize an e/R from liability for specific acts of discrimination
the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, w/o regard to whether members of the applicants race area already proportionately represented in the work force
A McDD prima facie showing is simply proof of actions taken by the E/R from which we infer discriminatory animus b/c experience has proved that in the absence of any other explanation it is more likely that the actions were premised on impermissible considerations
Thus the Court was permitted to consider the racial mix of the work force when trying to ascertain motive
Texas Department of Community Affairs v. Burdine (1981)
– Issue: whether after the plaintiff has proven a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the Court by a preponderance of the evidence that legitimate nondiscriminatory reasons existed for the challenged employment action
– Plaintiff (a female) alleges the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII
– prima facie case serves an important function in the litigation: it eliminates the most common non-discriminatory reasons for the plaintiffs rejection
ü      It in effect creates a presumption that the E/R unlawfully discriminated against the E/EE
ü      THEREFORE, if the trier of fact believes the Plaintiff’s evidence and the E/R is silent in the face of the presumption, the court must enter a judgment for the plaintiff b/c no issue of fact remains in the case
– the burden that shifts to the defendant is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected or someone else was preferred for a LNDR
Ø      The defendant need not persuade the court that it was actually motivated by the proffered reasons!
Ø      Sufficient to raise a genuine issue of fact as to whether it discriminated against the defendant – clearly set forth through the introduction of admissible evidence the reasons for plaintiffs rejection
– the plaintiff retains the burden of persuasion throughout
– the Court of Appeals placed a heavier burden on the defendant than was required – to persuade the court by convincing and objective reasons for preferring the chosen applicant to the plaintiff
– done to protect the plaintiff, but not necessary and the S.Ct. reaffirms the McDD framework
**** Defendant only bears the burden of explaining clearly the non-discriminatory reasons for its actions
– still retains the incentive to persuade the trier of fact the employment decision was lawful