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Employment Discrimination
Temple University School of Law
Halber, Lori Armstrong

I.       DAMAGES
 
-Damages are available for emotional distress. Don’t need limits just say that they are available. 
 
-Prevailing party under any of these statutes can have their fees paid. Mostly D pays for P but sometimes P has to pay for D if it is in bad faith or ridiculous. 
 
 
 
II.    TITLE VII – OVERVIEW OF SUBSTANTIVE PROVISIONS
 
Covered Entities
 
Employees
Employee is defined simply as an individual employed by an employer. Professionals, notwithstanding their lack of direct supervision, are covered under Title VII. Look to outward appearances when counting employees. Lawyers, even partners, in a firm count as employees. EEOC v. Rinella
 
“Individuals” v. “Employees”
Independent contractors are not protected by Title VII. The crucial question in determining an employment relationship is potential employer control over the manner in which the work is accomplished. Alexander v. Rush North Shore Medical Center
 
Covered Employment Decisions
A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if that benefit is not part of a formal employment contract. For example, the opportunity to become a partner is part and parcel of an associate status at a law firm. Partnership consideration was a term, condition, or privilege of an associates’ employment. Accordingly, partnership consideration must be without regard to sex. 
 
Covered Bases of Classification and Exemptions
Coverage of Title VII is subject to a few statutory exemptions. Indian tribes [701(b)(1)] and bona fide private membership clubs [701(b)(2)] are immune from Title VII liability. Business on or near reservations are allowed to give preferential treatment to Indians. Discrimination also permitted against Communist party or Communist-front organizations [703(f)] and against alien employees of American businesses located abroad. There are also preferences for veterans which are ok under Title VII. 
 
If a religious institution presents convincing evidence that the challenged employment practice resulted from discrimination on the basis of religion, Section 702 deprives the EEOC of jurisdiction to instigate. EEOC v. Mississippi College         
 
III.TITLE VII – PROCEDURAL REQUIREMENTS
 
Title 7 and ADA have one scheme (180/300). 
 
Where state agency charged with investigating such complaints, claims must be filed in 180 days. 706(e)(1).
 
If complainant files charge with state agency, state agency has 60 days to investigate complaint. Charge can then be file with EEOC only 60 days thereafter. Section 706(c) (Can’t file with EEOC until after 60 days of filing with state agency if you file with state agency). 
 
If filed with state agency, then the complainant has 300 days after incident to file with EEOC.
 
Have to file with someone somewhere within 180 days. 
 
Don’t have to file with state agency if you don’t want to. If you cite section where all this is you get extra points. 
 
No one can go to court without a right to sue notice. Note that it is NOT binding on the court. If EEOC issues notice, it will say that you must proceed under federal statutes. You need the notice before you sue even if it says you don’t have a cause of action.
 
If work sharing agreements than agency that receives complaint with a box checked to bring it to both agencies will be he one who does that and it get rids of the number of days analysis, except the original 180 days.  
 
Once you have notice you need to file within 90 days, almost no exceptions unless you didn’t get notice. Very rare, cite the once case. Baldwin v. Brown
 
Section 7 of ADEA: once charge is filed within 180/300 days with EEOC the charging party can file without a right to sue after sixty days. However, if a right to sue is filed then the party has 90 days to file. Subsection e.
 
Date of Discrimination
Continuing violation cases: are they all related or are they separate issues? It can make a difference and should be talked about. Under continuing violation cases, the incidents are all part of a hostile workplace environment and court can look at all of them. Look to 706(e)(2).       
 
Delaware St. College v. Ricks    
-Time limitation periods commence with the date of the alleged unlawful employment practice and notification of that practice to the individual asserting the claim. 
-Here, notice of denial of tenure is when clock starts ticking instead of when teaching contract runs out. 
United Airlines v. Evans
-A P may not sue on disc. and retaliation claims that would ordinarily be time-barred by Title VII if, under a continuing violations theory, they either are sufficiently related to incidents that fall within the statutory period or are part of a systematic policy or practice of discrimination that took place, at least in part, within the period. 
-Time limits on hostile work environment claims may be waived to allow for continuing violations and repeated conduct. 
 
 
IV.DEFINING AND PROVING DISCRIMINATION
A.    Intentional Discrimination
1.      Conceptual Framework
a)      McDonnell Douglas v. Green
(1)   P may establish a pfc of disc. By showing 4 elements: 1) membership in a protected class; 2) qualification for the position; 3) discharge or rejection; and 4) a continuing search for applicants after a P’s rejection.
(2)   Court stated that P carries initial burden to establish pfc of discrimination
(a)    Belongs to racial minority
(b)   Applied for and was qualified for job
(c)    De

crusade to terminate him (yes to pretext but no to ultimate burden of proof), App. Ct. said once showed pretext, P entitled to j as matter of law – S. Ct. says this ignores fact that at all time P retains burden of proof
(6)   if at close of D’s case 1) any rational person would find existence of facts = pfc or 2) D failed to meet burden of production à P gets j as matter of law
(7)   P loses unless fact finder believes discriminatory intent (does not just win on disproving lndr) NEED DISC INTENT!!!!
(8)   opposite of Patterson which say that P does not necessarily have to show lndr untrue
(9)   Hicks says that pretext alone not enough to give judgment to P, even if reason asserted by ER is false, doesn’t mean real reason is discrimination (could be something else – embarrassing), must find real reason is discrimination!! Need disc. intent!
(10)           D. Ct. (and then S. Ct.) relied on evidence that threatened supervisor, no racial statements there, nothing about prior discrimination, blacks on supervisory committee, lots of blacks employed – holding out possibility that they just didn’t like him
(11)           After this case, most circuits have pretext-only rule
(12)           Some pretext-plus – P has to introduce additional evidence of discrimination even if established pfc and lndr untrue.
(13)           Reeves unanimously rejects pretext-plus
c)      Reeves v. Sanderson Plumbing
(1)   A pf age discrimination case, combined with sufficient evidence to find that an employers asserted justification is false, may permit the trier of fact to conclude that an employer unlawfully discriminated.
d)     Rules
(1)   P always had burden of proving discrimination (Hicks)
(a)    if P shows pfc and mrb and D does nothing à J a Mol for P
(b)   P shows pfc and D disputes aspect of pfc à Jury ? if make pfc
(c)    here P shows pfc à mrpà lndr (now mrp drops out – Hicks) – presumption dropped out and if case even à J for D
(2)   ToF may consider PFC evid. after er makes LNDR showing
(3)   LNDR showing means P must still prove something, causes PFC to drop out – at least show pretextual
(4)   ToF can infer ultimate fact of discrimination from lack of credibility of er’s LNDR