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Employment Discrimination
SUNY Buffalo Law School
Avery, Diane

1.       Introduction to Employment Discrimination Law & Title VII
a.       Questions to Ask:
                                       i.            What Statute Might this Claim Fall Under?
                                     ii.            What are the substantive requirements?
                                   iii.            What are the procedural requirements?
b.      Protected Classes Under Title VII
                                       i.            Race
                                     ii.            Color
                                   iii.            Religion
                                    iv.            National Origin
                                      v.            Sex
2.       Introduction to Employment Discrimination on the Basis of Race
a.       Race as a Protected Class Under 42 USC 1981: 
                                       i.            What is Race under a 1981 claim?  “All persons within the jurisdiction of the US shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens…”
                                     ii.            Note: 1981 does not mention the word race, even though we know it is about race. The court has long before determined, that this is talking about race. In particular the blacks can no longer be treated differently by the state. Way before the Al-Khazraji case, the supreme court said that 1981 applies to private and state action. There is also an idea of “color” in the statute that uses the term “white citizens”.
                                   iii.            St. Francis College v. Al-Khazraji
1.       Respondent was born in Iraq, and lives in the US, and is a US citizen (alienage=citizenship status). His claim is that he was discriminated based on his race.
2.       Issue: How can we get the respondent into the protection of 42 USC 1981? Does he fit into the race category? Does this statute(1981) cover Caucasian v. Caucasian discrimination? 
1.       Was the issue racial discrimination? How can it be racial discrimination if the parties are both of the same race? Can you discriminate against someone of your own race?
3.       In the 19th century, Supreme Court 1866, the notion of your ancestry includes your place of origin, but that may or may not be determinative. What if your ancestry doesn’t have a nation? (Ex. Palestinian, Anglo-Saxon, Gypsy)
4.       3 Races? 
1.       Caucasian
2.       Mongolian
3.       Negro
4.       Or is it a vast number of Ancestries or Ethnicities?
b.      Race as a Protected Class Under Title VII
                                       i.            Does race for the purposes of 1981 have the same meaning as in Title VII where the word race actually appears, in addition to the term “color”? Does it include the same broad conception of race?
1.       1981 and Title VII clearly cover race. 1981 clearly covers alienage discrimination. What are the limitations of Title VII and 1981?
1.       Ex. Black African American bringing a claim under a basis of race and color. This is an easy one that clearly falls under both Title VII and 1981.
2.       Ex. An Iraqi Caucasian who was discriminated against by other Caucasians (say that they both have white skin, no sex, no religion, but of Arab ancestry (been in the US a long time). Does he have a cause of action under 1981 or Title VII? Does it make sense to have a different definition for “race” in Title VII from the definition in 1981? 
2.       Title VII basically includes the notion that comes out of Al-Khazraji, so he probably would have been successful under a Title VII claim if he got over the OTHER SUBSTANTIVE AND PROCEDURAL hurdles of who is covered under Title VII.
1.       Who is Title VII supposed to protect? It is an employment statute, while 1981 has way more expansive rights.
3.       Does it matter what your own subjective view is regarding your own race? Can an employer be held liable for guessing wrong? How is your employer going to know what you think subjectively? 
3.       Meeting the Substantive and Procedural Requirements to Bring a Claim
a.       Under what statute or combination of statutes might this claim arise? 
                                        i.            VII, ADA, ADEA, EPA, 1981, 1983, etc.
                                      ii.            What could the claim arise under? One or a combination of statutes? 
                                     iii.            Ex. Race case: Title VII and 1981, because the person can claim that they are in a protected class because they are African American.
b.      What are the Substantive Requirements of the Statute or Statutes?
                                       i.            Is there a requirement for the number of employees?
1.       Title VII: Yes there is a numerosity requirement, but this can be problematic particularly with small entities that might be right near the threshold.
2.       ADEA: Requires 20 or more employees.
3.       EPA: Pretty much covers everybody, covers anyone with one or more employees
4.       1981: Covers anyone with one or more employees
                                     ii.            Is there an age requirement?
1.       ADEA: 40 or over
                                   iii.            Does the claimant have to be an employee?
1.       Are they actually an employee or an independent contractor?
                                    iv.            Is there a requirement for the number of employees?
1.       Title VII: Yes there is a numerosity requirement, but this can be problematic particularly with small entities that might be right near the threshold.
2.       ADEA: Requires 20 or more employees.
3.       EPA: Pretty much covers everybody, covers anyone with one or more employees
4.       1981: Covers anyone with one or more employees
                                      v.            Is there an age requirement?
1.       ADEA: 40 or over
                                    vi.            Does the claimant have to be an employee?
1.       Are they actually an employee or an independent contractor?
c.       What are the procedural Requirements?
                                       i.            Title VII: There is an administrative exhaustion requirement. You have to go to the EEOC or state agency first.
                                     ii.            1981: No requirement for administrative exhaustion.
4.       Bringing a Claim Under Title VII
a.       Title VII Section 703(a): It shall be an UEP for an EMPLOYER
                                       i.            (Disparate Treatment) To fail or refuse to hire or to discharge any individual, or otherwise 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; or
                                     ii.            (Disparate Impact) To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, or national origin
b.      Title VII Substantive Requirements and Definitions
                                       i.            Employee 701(f): An individual employed by an employer… 
1.       The definition of employer does not help is define employee either. The statute tells us who is not included in the definition of employee, but not who actually is an employee
                                     ii.            Employer 701(b): a person engaged in an industry affecting commerce who as 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person…
c.       Title VII Numerosity Requirements
                                        i.            1981 does not have any numeric requirements, but Title VII does… How is this numeric requirement measured? We look at the employer’s payroll, and the current year the charge is brought. 
                                      ii.            With 15 or more employees, in the current year, on the payroll, for 20 or more weeks in either the current or preceding calendar year for 20 weeks, that person is an employer for Title VII purposes.
                                   iii.            Note: Just about everyone is in an industry affecting commerce. 15 individuals look like they may or may not be employees. Do they all count? As the defense lawyer representing the employer, you want to find someone who may not be counted as an employee.   
                                    iv.            Timely 12b-6 Motion for Failure to Meet Numerosity Requirement
1.       The SC has made it clear that the numerosity requirement is not a jurisdictional issue (not a matter of subject matter jurisdiction). Subject matter jurisdiction can be raised at anytime by anyone, and the minute it gets raised, and is determined not to exist, the case is immediately dismissed.
2.       However, the numerosity requirement is not a jurisdictional prerequisite. There are 2 generic ways to get into federal court, one is federal question, and the other is diversity of citizenship (with an amount in controversy). Most discrimination cases don’t meet the amount in controversy, but are federal question cases.
3.       The numerosity requirement is an element that must be proved for the claim

at the Commission requires?
                                                                                           ii.            The statutory regulations give us this information.
                                                                                         iii.            See Holowecki below.
4.       Intent to bring a charge: This is not statutory, this is a judge made charge in addition to the statutory requirements.
                                      ii.            Holowecki v. Federal Express Corp. 440 F3d 558 (2006)
1.       Issue: When does an intake questionnaire satisfy the statutory requirement of being a charge? Based on this questionnaire the EEOC person will prepare a charge and present that to the individual for the person to sign, and it is signed under oath.
2.       Kennedy’s questionnaire satisfies the requirements:
1.       In writing
2.       Described the discriminatory act
3.       Gave addresses, names, dates, i.e. Everything that would have been required for a charge.
4.       In addition to these the questionnaire must manifest the intent to be a charge. This is a judge made requirement in addition to the statutory requirements. This is the only thing at issue here. Just contacting the EEOC isn’t enough. This comes down to form or substance. Does it matter what you call it as long as the substance is there?
3.       In this case the EEOC didn’t investigate or notify the employer. They didn’t do anything.
1.       706(b): The commission SHALL serve notice of the charge. The commission blew it. Should she be held responsible for this? She got a lawyer, so because the EEOC hasn’t done anything they will want to demand a right to sue letter.
4.       Nondeferral Jurisdiction
1.       Eventually she files a formal charge that does not fall within the statute of limitations. In a nondeferral jurisdiction so she had 180 days to file a charge from the unfair employment practice, and if she doesn’t file timely then she cannot bring a suit under that statute.
                                                                                              i.            Her intake questionnaire was filed timely, so if this is a “charge” then the case can go forward.
                                                                                            ii.            Note: ADEA does not require a right to sue letter, but you still need to go to the EEOC
                                                                                           iii.            Note: There are also a lot of people piggybacking on her claim, so if the claim cannot go forward neither can the people piggybacking.
5.       Update: Case decided 2/27/2008
1.       An allegation in the name of the charged party, an allegation will be deemed a charge if, there is an intake questionnaire plus an affidavit showing that the person submitting the questionnaire wants action to be taken.
b.      When has a UEP Occurred? When do you start counting for the purposes of the 180/300 days?
                                       i.            Discreet Act Claim: The statute runs from the day the act actually occurred
1.       Example:
1.       Failure to Promote—->Suspension—->Discharge
2.       Race Case: These are 3 discreet claims, and we have a record with a date certain for each one of these. Say we are in a nondeferral jurisdiction.
                                                                                             i.            Proof of intent for UEP’s 1 and 2, but for UEP 3 the discharge was a part of a mass layoff, so there is no colorable claim that I was discharged because of race, so if I file 180 days from UEP 3 then I lose.
We need to be very careful about looking at each event in a discreet act claim because we can only include acts, which create colorable claims, that fall within the statutory time