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Employment Discrimination
Temple University School of Law
Duru, N. Jeremi

Duru, Jeremi
Employment Discrimination, Fall 2012
Check List
             I.      Entity Covered?
          II.      Decision Covered?
       III.      Kind of Claim/Prima Facie Case
       IV.      Covered Classification?
a.       Religion: Duty to accommodate vs. undue burden (>de minimis)
b.      Race/color
c.       National origin/ not citizenship
d.      Sex (Sex-Plus)
                                                              i.      Discrimination
                                                            ii.      Harassment
e.       ADEA ® Age
f.       ADA ® Disability (duty to accommodate: reasonable employer standard)
          V.      Timeliness? Fed/State claims 180 or 240 for state & 300 days®EEOC
       VI.      Other Claims: Retaliation, not enough facts, but could give rise to….
    VII.      Defenses: legit reason, BFOQ, after-acquired evidence ; Business Necessity, RFOA
 VIII.      Rebuttals: Pretext; if not pretext then Mixed-Motive
       IX.      Remedies
Employment Discrimination Law Before the Modern Era: Constitution & Civil War Era Statutes
              I.      Kerr v. Enoch Pratt Free Library (4th Cir. 1945):
a.       Even if institutions are private, where the state funds and has some degree of control (weigh and sift facts), its discriminatory rejection of all Black candidates constitutes state action, invoking the 14th.
b.      Discriminatory decisions are all unlawful under the Civil Rights Act even they are not made with hostility.
                                                              i.      Dangerously hard line to draw.
                                                            ii.      Exceptions: safety (prison), privacy (nursing home hypo) and authenticity (Nigerian garb hypo), BFOQ
c.       Remedies: hard to make victim whole in emp. discrimination cases.
           II.      42 USC
a.       §1981: applies to intentional discrimination
b.      §1983: disparate impact
c.       §1985: conspiracy to interfere with Civil Rights (anti-Klan)   
d.      §1988: reasonable Attorney’s fees; to incentivize representation (remedy might be spec. performance) for Title VI and IX statutes only.
Title VII, Civil Rights Act of 1964: “The Three Blanks”; remedial (liberal) statute
              I.      Reasonable Attorney fees provided at §706(k)
           II.      Covered Entities:
a.       Employers: EEOC v. Rinella (ND Ill. 1975); fired for women’s activism
                                                              i.      § 701: 15+ employees for 20 weeks & “engaged in activity that affects commerce”
1.      interstate commerce
2.      “Employees” =
a.       Control distinguishes independent contractors (factual inquiry);
b.      Majority Rule: payroll method (Walters)
c.       Unpaid volunteers: benefits? Pietras (2d Cir. 1999)
d.      Rush: for standing, must demonstrate (potential) employment relation
                                                            ii.      Under Title VII, Attorneys were employees as opposed to independent contractors regardless of their high level of independence as professionals because the employer exercised sufficient control over their jobs.
1.      Purpose was to accommodate increased business; payroll; and held out by firm as employees.
2.      Remedial statute® construed liberally to effectuate purpose (eliminate discrimination), so professional fields included.
                                                          iii.      Interstate? long-distance calls, shipping supplies is sufficient
b.      Employment Agencies: Greenfield v. Newspaper (ND Ill. 1972)
                                                              i.      §701 Def: regularly undertake procurement of employees with or without compensation.
                                                            ii.      §703(b): agency can’t (fail to) refer employment based on…
                                                          iii.      Under Title VII, a newspaper that regularly publishes employment ads is not an employment agency because nothing in the legislative history proposes a broader definition.
                                                          iv.      The newspaper is not an agent of the discriminating employers even though it furthers the business of procuring employment because the practice does not constitute its business.
1.      Remedial statute argument fails because jurisdiction is somewhat traditional, maybe different result elsewhere.
2.      Alternative claim against employers under §704(b): print or cause to be printed any advertisement relating to discriminatory classification
c.       Labor Organizations: §701(d), (e); national and international orgs.
                                                              i.      Operate a §701(d) labor org + engaged in commerce
1.      (d) labor org=employees participate & purpose is to deal with employers
2.      (e) engaged in commerce if
a.       operates a hiring hall, or
b.      15+ members and either be recognized bargaining rep of employees or affiliated w/one
         III.      Covered Employment Decisions: Hishon; partnership consideration
a.       §703(a)(1): hire/discharge, & discrimination with respect to compensation, “terms, conditions or privileges of employment”
b.      “Terms, conditions and privileges of employment”
                                                              i.      terms & conditions = in the contract
                                                            ii.      privileges = not in contract, but linked to employment
                                                          iii.      threshold for establishing an employment K is low
c.       Not Freedom of Association: Policy Judgment. See Roberts v. Jaycees (must include women).
                                                              i.      intimate human relationships constitutionally protected
                                                            ii.      Does 15 employees accomplish the goal of this distinction?
                                                          iii.      PA state anti-discrimination statute requires employer to only have 4 employees.
        IV.      Covered Bases of Classification & Exemptions: EEOC v. Mississippi College
a.       §703: Race, color, sex, religion, nat. origin
b.      §702(a): exemption for religious corp., assoc., educational institution or society in employing individuals of a particular religion to perform work connected with its activities.
c.       McClure Rule: churches completely exempt from Title VII w/respect to hiring ministers.
d.      EEOC v. Mississippi College: A person can claim discrimination against a racial group of which he is not a member because it violates the individual’s right to have a work environment unaffected by racial discrimination.
                                                              i.      Standing requirement: must establish because Title VII protects individuals not groups.
1.      Injury in fact,
2.      Connection between right-holder’s rights and plaintiff’s incentives (desired work environment), and
3.      Hindrance to right-holder asserting right for himself
                                                            ii.      Exemption for hiring religiously affiliated people to carry on religious work does not preempt investigation into an educational institution’s hiring practices with regard to race, color, sex or national origin.
                                                          iii.      Convincing evidence that a religious institution in fact based its hiring decision on purely religious discrimination, as exempted by §702, preempts an investigation as to whether religion was a pretext for other bases for discrimination.
1.      Exemption does not apply where another protected class is tied with race.
2.      Policy of religious preference for Baptists applied to psychology, not just theology classes because religiosity of institution permeated all aspects of student life.
e.       Class Actions:
                                                              i.      Requirements: FRCP 23
1.      Numerosity: 40+
2.      Commonality: common issues of fact and law
3.      Typicality: class rep is typical of members
4.      Adequacy: responsible, etc.
                                                            ii.      Walmart Case: Walmart won on the commonality issue of FRCP 23 because the claim of sex discrimination alleged that it affected women differently throughout the entire corporation.
Prohibited Classes
              I.      Religion & Duty to Accommodate:
a.       Religious belief must be “sincerely-held”
b.      reasonable accommodations without under hardship(§701(j)) = no “undue burden”
                                                              i.      Cost greater than de minimis may constitute “undue burden”
c.       Hardison (US 1977): Collective bargaining agreement’s seniority system can violate Title VII, but employer had no duty to violate the agreement.
                                                              i.      Alternatives offered by 8th Circuit, USSC says all = undue hardship
1.      Work 4-day week, supervisor or another worker replace him
2.      Fill Saturday shift from other available personnel & pay overtime
3.      Swap for another shift (breach of seniority system in union K).
d.      Tooley (9th Cir. 1981)
                                                              i.      De minimis to allow employees to pay a charity rather than union dues
                                                            ii.      Nyquist Test: Gov (court) requiring accommodation constitutional (establishment of religion)?
1.      Reflect a clearly secular purpose: legislative purpose is to assure freedom from religious discrimination
2.      Have a primary effect that neither inhibits, nor advances religion: economic benefit is incidental/ancillary; inappreciable burden on other steelworkers insufficient
3.      & Avoid excessive government entanglement: minimal amount of supervision and administrative cost to implement a substitute charity accommodation
           II.      National Origin & Citizenship Espinoza (US 1973): employers may discriminate on the basis of citizenship (national origin = ancestry)
a.       EEOC guideline: citizenship might be pretext (opens the door for disparate impact)
b.      Dissent: citizenship is always on the basis of national origin
c.       Policy:
                                                              i.      Hoarding Title VII for Blacks;
                                                            ii.      Should we protect the rights of LPRs or American jobs?
1.      Douglass dissent comments on Marshall’s majority
2.      “Title VII for all, not just Blacks”
         III.      Race & Color:
a.       McDonald (US 1976): Title VII protects whites from race discrimination (stolen anti-freeze: whites fired, blacks not)
b.      Affirmative Action: ok only in special and precise circumstances
                                                              i.      Trying to remedy a conspicuous racial imbalance, and
                                                            ii.      Employer is not unduly trammeling on interests of others
                                                          iii.      Grutter: equal protection relevant in Title VII because of amicus briefs that focused on importance of work force
c.       Proliferation of color suits: usually intra-race claims
d.      If discrimination on the basis of an interracial social relationship, individual said to have been discriminated against on the basis of employee’s own race, even if the employer claims to enforce their policies uniformly against employees of all races.
        IV.      Sex Discrimination
a.       Phillips (US 1971): Hiring policy against women with preschool-aged kids is unlawful even if qualification is facially neutral.
                                                              i.      Reasoning: not what Congress intended, but
                                                            ii.      Legislative history shows otherwise.
                                                          iii.      Sex-Plus claims are pattern & practice of dis

Cir. 1999): if termination based on discriminatory evaluation, date of termination because the tangible effects not felt/apparent until then.
b.       Lilly Ledbetter Act: discriminatory act each time you’re paid
                                                               i.      §706(e)(2): intentionally (not necessarily facially) discriminatory seniority system is adopted, individual becomes subject to it, or when injured by it.
                                                              ii.      § 706(e)(3)(A): discriminatory compensation decision is adopted, individual becomes subject to it, or affected by application, including each time paid.
                                                            iii.      Ledbetter Act overruled:
1.       Evans: mere continuation of harm is not sufficient
2.       Ledbetter: distinguished Bazemore on the ground that the previously discriminatory pay levels in that case were intentionally/facially discriminatory.
c.       Morgan: Continuing Violations Doctrine (almost obsolete because hard to prove)
                                                              i.      If discrete discriminatory incidents, then no acts outside of 300/180-day period
                                                            ii.      If part of a hostile work environment, then acts occurring outside of 300/180-day period are actionable (terms, conditions, privileges=part of work environment)
        IV.      Policy: 180/300 period incentivizes plaintiff to bring a claim right away, rather than reflect on the situation or see how it unravels. Increases litigiousness/ruin relationships.
Title VII, Defining and Proving Discrimination: Intentional Discrimination
              I.      Conceptual Framework: Burdine Burden Shift (to narrow the issue)
a.       Plaintiff must establish Prima Facie Case (preponderance) = rebuttable presumption
                                                              i.      Applied for available position
                                                            ii.      Plaintiff was qualified for it (objective qualifications)
                                                          iii.      Rejected under circumstances which give rise to the inference of unlawful discrimination
1.      Some courts treat this element as summary/redundant, or
2.      6th Circuit: prove replacement by someone outside of class.
                                                          iv.      Plaintiff member of a protected class
1.      Member of historically favored group not entitled to prima facie presumption, unless proof that D is one of those unusual employers that discriminates against the majority, but
2.      3d Circuit only requires sufficient evidence to show that employer treats some less favorably than others based on the protected classes.
b.      Defendant: “Articulate a legitimate, non-discriminatory reason”
a.       Employer can fire for a good, bad or no reason at all, as long as not discriminatory
b.      Other courts do not agree with “no reason”
c.       Plaintiff must prove pretext +(inference of )discrimination (St. Mary’s).
                                                            v.      Primary Method: similarly situated employees who were not in the protected class were treated more favorably
                                                          vi.      Bigoted expressions:
1.      Only sufficient if it directly impacts the decision to discriminate (Tarylor 4th Cir.)
2.      Inference of bias/discrimination
a.       if proximate in time and specific to the individual/group
b.      if decision-maker does not act in the face of bigoted statements
           II.      Plaintiff’s Burden of Proof:
a.       St. Mary’s Honor Center: In an intentional discrimination case, where a fact-finder finds that the employer provided pretextual reasons, the court may use disbelief to infer racial discrimination, but is not compelled to do so.
                                                              i.      Scalia agrees with Burdine dicta: “plaintiff may succeed…by persuading the court that a discriminatory reason…motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
                                                            ii.      But Scalia says that more dicta is incompatible with Dissen’s view.
b.      Foster v. Dalton: Cronyism is a facially neutral “policy” and is therefore a sufficiently legitimate and non-discriminatory reason that could absolve the employer of liability. (fishing buddy case)
                                                               i.      Court did not determine that the discrimination was both cronyism and racial discrimination
1.       even if she was the only non-white & the only one already employed
2.       Lower court could have inferred discrimination, but didn’t, and it cannot be over-turned absent clearly erroneous error.