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Employment Discrimination
SUNY Buffalo Law School
Avery, Diane

Saint Francis College v. Al-Khazraji
481 U.S. 604 (1987) [p. 43]  
Section 1981 encompasses discrimination even among Caucasians. in 1866, the meaning of race was a notion of your ancestry, including your or your ancestors’ place of origin.
Al-Khazraji, a professor and U.S. citizen born in Iraq, filed suit against his former employer and its tenure committee for denying him tenure on the basis of his Arabian race in violation of 42 U.S.C. Section 1981. The District Court held that while Al-Kharzraji had properly alleged racial discrimination, the record was insufficient to determine whether he had been subjected to prejudice.
Did 42 U.S.C. Section 1981 apply to Arab minorities?
Yes. SCOTUS held that persons of Arabian ancestry were protected from racial discrimination under Section 1981. Writing for a unanimous Court, Justice Byron R. White maintained that section 1981 encompassed discrimination even among Caucasians. Justice White noted that history did not support the claim that Arabs and other present-day “Caucasians” were considered to be a single race for the purposes of section 1981. Justice William J. Brennan, Jr., in a separate concurrence, added that “Pernicious distinctions among individuals based solely on their ancestry are antithetical to the doctrine of equality upon which this nation is founded.”
Ø      The Court observed that in 1866, the meaning of race was a notion of your ancestry, including your or your ancestors’ place of origin.
Instructor (Feb 7): Does race mean the same thing for Title VII as it does for § 1981?
·         In Title VII, they used the word “race”
·         Both § 1981 and T VII clearly cover race
·         Citizenship not covered in T VII, but ICRA does cover alienage
·         Religion and Sex are not covered under § 1981
·         T VII covers race, color, religion, sex & national origin
Who Is An Employee?
Clackamas Gastroenterology v. Wells
538 U.S. 440 (2003) [p. 51]  
Deborah Wells worked for Clackamas Gastroenterology Associates, P.C. from 1986 until 1997. Wells filed suit, alleging that Clackamas Gastroenterology violated the Americans with Disabilities Act of 1990 (ADA) when it terminated her employment. Clackamas moved for SJ, arguing that it was not covered by the Act because it did not have 15 or more employees for the 20 weeks required by the ADA. This argument depended on the four physician-shareholders, who own the professional corporation and constitute its board of directors, not being counted as employees. In granting the motion, the District Court concluded that the physicians were more analogous to partners in a partnership than to shareholders in a corporation and therefore were not employees under the ADA. In reversing, the Court of Appeals found no reasoned to permit the professional corporation to argue it was a partnership so as to avoid employment discrimination liability.
Should four physicians actively engaged in medical practice as shareholders and directors of a professional corporation be counted as employees under the Americans with Disabilities Act of 1990?
In a 7-2 opinion delivered by Justice John Paul Stevens, the Court held that the common-law element of control is the principal guidepost to be followed in deciding whether the four director-shareholder physicians in this case should be counted as employees and listed six factors that are relevant to such a decision. “Because the District Court’s findings appear to weigh in favor of concluding that the four physicians are not clinic employees, but evidence in the record may contradict those findings or support a contrary conclusion.” The Court remanded the case for a determination under the new standard. Justices Ginsburg and Breyer, dissented, arguing that the physician-shareholders function in several respects as common-law employees in their capacity as doctors performing everyday functions.
“We are persuaded by the EEOC’s focus on the common-law touchstone of control. . . . [E]ach of the following six factors is relevant to the inquiry whether a shareholder-director is an employee:
(1)   Whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work
(2)   Whether and, if so, to what extent the organization supervises the individual’s work
(3)   Whether the individual reports to someone higher in the organization
(4)   Whether and, if so, to what extent the individual is able to influence the organization
(5)   Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts
(6)   Whether the individual shares in the profits, losses, and liabilities of the organization.” EEOC Compliance Manual § 605:0009.
Instructor (Feb 7): Were the director/shareholders employees or not? They worked in the practice and took a salary. If you counted them as employees, then Π’s claim was okay; if not, the numerosity threshold wasn’t met.
·         USSC remanded the case, so we still do not know.
Filing an EEOC Charge
Federal Express Corporation v. Holowecki
552 U.S. ___ (2008)
RULE:         An intake questionnaire submitted to the EOC qualifies as the charge of discrimination required by the ADEA, even if the EEOC did not treat the questionnaire as a charge.
Paul Holowecki and other employees of Federal Express sued the corporation for age discrimination under ADEA. A district court judge dismissed the complaint on the ground that none of the Πs had met the time limits and filing requirements of the ADEA, which requires that a Π file a “charge” with the EEOC 60 days before filing suit. Upon receiving the charge of discrimination, the EEOC notifies the employer of the accusation, investigates the matter, and offers to mediate. EEOC has an “Intake Questionnaire” form and a “Charge” form, but the EEOC regulations state only that “A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s).” One of the Πs completed an intake questionnaire, but the EEOC did not take the steps it should have taken after the filing of a charge. Holowecki sued over 60 days later, but the judge ruled that the intake questionnaire did not qualify as a charge for purposes of the AEDA.
The Second Circuit reversed, allowing Holowecki’s suit to go forward. The court ruled that the minimal written information required for a charge was contained in the intake questionnaire. The questionnaire also met the ADEA’s implicit requirement tha

·         Π has to establish elements for prima facie case
·         If Δ is silent after Π meets the PF burden, court will direct judgment for Π (who has established a mandatory, rebuttable presumption)
·         If Δ produces through admissible evidence a LNDR (under burden of production)—it doesn’t have to be a good business reason, only a nondiscriminatory reason, then
·         The presumption is gone and Π then has opportunity to establish pretext
Prima Facie Case
Mcdonnell Douglas Corp. v. Green
411 U.S. 792 (1973) [p. 70]  
PP: Petitioner employer sought review from a judgment of the Eighth Circuit, which reversed the dismissal of respondent former employee’s racial discrimination claim under § 703(a)(1) of Title VII.
OVERVIEW: The employee filed suit against the employer under § 703(a)(1) of Title VII, claiming that the employer refused to rehire him as an aircraft mechanic because of his race and his involvement in the civil rights movement. The Supreme Court affirmed the reversal of the dismissal of the § 703(a)(1) claim because an E.E.O.C. finding of reasonable cause was not a jurisdictional prerequisite to the employee’s federal action for violation of § 703(a)(1). In remanding the matter for trial, the court instructed the lower court on the order and allocation of proof for the employee’s claim. The court found that the employee had presented a prima facie case of racial discrimination under § 703(a)(1) by showing that he was rejected for a job for which the employer knew he was qualified. However, the employer offered a legitimate, nondiscriminatory reason for the employee’s rejection in his participation in unlawful conduct against it. Therefore, the employee was entitled to a fair opportunity at trial to show that the employer used his conduct as a pretext for racial discrimination.
OUTCOME: The Court vacated the judgment reversing the dismissal and remanded the matter for trial with instructions that the employee was entitled to prove that the employer used his unlawful protests against it as a pretext to racial discrimination.
Π’s initial burden is to prove prima facie case; must prove these elements:
1.      Π is racial minority (later became “a member of a protected class”)
2.      Π applied and was qualified for the job (not necessarily the best qualified)
3.      Despite qualifications, Π was rejected
4.      After rejection, the position remained open and employer continued to seek applicants from persons of Π’s qualifications (it doesn’t have to be open long—just that the position exists as a position to be filled for any length of time is adequate)