Select Page

Employment Discrimination
Temple University School of Law
Halber, Lori Armstrong

Employment Discrimination
42 USC §2000e et seq. (pp. 1076-97)
Prohibiting certain entities from making certain types of decisions on the basis of certain characteristics
Covered Entities: Employers, Employment Agencies, and Labor Organizations
Employers – § 701(b) – broad language reflects Congress’ desire to maximize the scope of Title VII jurisdiction
Requirements: (1) a person, (2) engaged in an industry affecting interstate commerce, (3) who has at least 15 EEs for 20 weeks during the current or proceeding calendar year
Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin
 Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin.
An employer cannot discriminate against a person because of his interracial association with another, such as by an interracial marriage
In very narrow defined situations an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
To prove the Bona Fide Occupational Qualifications defense, an employer must prove three elements:
 a direct relationship between sex and the ability to perform the duties of the job,
the BFOQ relates to the “essence” or “central mission of the employer's business,” and
there is no less-restrictive or reasonable alternative
The Bona Fide Occupational Qualification exception is an extremely narrow exception to the general prohibition of discrimination based on sex
An employer or customer's preference for an individual of a particular religion is not sufficient to establish a Bona Fide Occupational Qualification
There are partial and whole exceptions to Title VII for four types of employers:
Federal government;
Federally recognized Native American tribes
Religious groups performing work connected to the group's activities, including associated education institutions;
Bona fide nonprofit private membership organizations.
The Equal Employment Opportunity Commission (EEOC) enforce Title VII
The EEOC investigate, mediate, and may file lawsuits on behalf of employees.
Title VII also provides that an individual can bring a private lawsuit.
An individual must file a complaint of discrimination with the EEOC within 180 days of learning of the discrimination or the individual may lose the right to file a lawsuit.
Title VII only applies to employers who employ 15 or more employees for 20 or more weeks in the current or preceding calendar year
Disparate Treatment
Violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII.
 The issue is whether the employer's actions were motivated by discriminatory intent.
Discriminatory intent can either be shown by direct evidence, or through indirect or circumstantial evidence
Teamsters v. United States ER discriminated against minority EEs by placing them in worse positions. When t7 passer ER let EEs switch to the better positions but per the collective bargaining agreement they would lose seniority when they switched.
7.03(h) – seniority system can exist as long as it applies to everyone and not done in a discriminatory factor. Just because the system has a desperate effect is not material as long as it did not have a desperate purpose
McDonnell Douglas. v. Green – Analytical Framework for Discrimination Suits
P bears burden of establishing prima facie case of racial discrimination (BURDEN OF PRODUCTION & PERSUASION )
member of protected class,
that applied for job, and was qualified for job they were seeking applicants for,
1.       If employee is still employed – they are performing at the minimum expectation of the employer
that despite those qualifications, he was rejected,
                                                               i.      If employee is still employed – Suffered an adverse employment action
that, after rejection, position remained open and employer continued to seek applicants from persons of similar qualifications
 Then burden shifts to D (BURDEN OF PRODUCTION)
The defendant (employer) must produce evidence of a legitimate non-discriminatory reason (LNDR) for its actions. If this occurs, then the presumption of discrimination dissipates.
If no such evidence is presented than P is entitled to judgment as mater of law
Then it shifts back to P, (BURDEN OF & PERSUASION )
1.       The plaintiff must then present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant's actions used one of the listed unlawful discriminatory parameters.
St. Mary’s V. Hicks EE claimed they were demoted and fired because they were black
Not enough that jury disbelieves the ER, fact finder must also believe P’s explanation.
ER was not entitled to summary judgment –ruled based on the premise that P must always introduce additional, independent evidence of discrimination if ER has shown a nondiscriminatory reason
Reeves v. Sanderson Plumbing – P was continually harassed by his supervisor b/c of his age
At trial, the jury can find for P if P has disproven the employer’s excuse, even if he hasn’t yet shown that discrimination motivated the employment decision. Although Reeves is about a trial and St. Mary’s is about a directed verdict, St. Mary’s may not be very solid after this.
Fuentes v. Perskie EE brought a national origin employment discrimination action arising out the commission's decision not to hire him for a management position. D Provided 4 reasons why they did not hire P. P did not refute any of the reasons  
In Title VII action, to discredit employer's proffered legitimate nondiscriminatory reasons for adverse employment action, plaintiff must demonstrate such weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in employer's proffered legitimate reasons for its action that reasonable fact finder could rationally find them unworthy of credence, and hence infer that employer did not act for asserted reasons.
What constitutes a term, condition, or privilege of employment?
Covered Employee Decisions – § 703(a)(1) discriminating against individuals with respect to “terms, conditions, or privileges of employment”
“Terms, Conditions, or Privileges of Employment” Defined
Consideration for partnership is a “term, condition, or privilege of employment” covered under Title VII § 703(a)(1)
Hishon v. King Spalding P was an associate in Ds law firm P claimed that when she was hired she was told an associate who received good reviews would be promoted to parter on a fair and equal basis. After being considered and rejected for partnership P brought lawsuit
advanced to partnership may qualify as a term, condition, or privilege of employment for purposes of title VII. A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion. Even if it is not part of a formal EE contract. Partnership consideration must be without regard to sex and Ps complaint is recognizable under title VII and must be heard by court
Procedures and Remedies under Title VII
·         Filing a Charge of Employment Discrimination
o    For employment discrimination claims under Title VII, ADEA, and ADA aggrieved EE must file a Charge of Discrimination with the EEOC or a comparable state agency
§  §706(e)(1) requires that an EEOC charge must be filed either within 180 (in a non-deferral) or 300 (in a deferral state) days after the alleged unlawful employment practice officered
·         Must file charge of discrimination w/I statute of limitations
o    180 days after discriminatory act
§  If no comparable state agency
o    300 days after discriminatory act
§  If have comparable state agency – allows for state involvement first before federal 
o    706(e)(2) – When a seniority system is alleged to have been adopted for an intentionally discriminatory purpose, the unlawful employment practice is deemed to have occurred either when the system was adopted, when an individual becomes subject to it, or when an aggrieved individual is injured by the application of the system.
United Air Lines, Inc. v. Evans Female flight attendant had been compelled to resign pursuant to Ds facially discriminatory policy prohibiting married female flight attendants. When D stopped the policy it denied Ps request for reinstatement but did agree to rehire her as a new employee w/o seniority credit for her prior service. P never timely challenged the no marriage policy. P sued after ER refused to give her seniority credit.
P could not challenge the present day effect of a previously unchallenged (and therefore lawful) no marriage policy. The continuing effects of past discrimination did not continue a separate present violation.
Remedies –
·         Remedies under Title VII
o    Back pay – pay that was missing from time of the offense to the present
o    Injunction – Court can order reinstatement
o    Front Pay – what the P would earn going forward for some reasonable peri

wn, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question (BFOQ – Bona Fide Occupational Qualification)
·         Adverse Impact is defined as a “substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group
Hazelwood School District v. US Title VII action against school district attempting to show pattern of discrimination by showing statistical disparities between D and relevant labor market
Gross statistical disparities between the composition of a work force and that of the general population, may constitute prima facie proof of a pattern of practice of discrimination
Statistics and rule of exclusion (standard deviation analysis) can you be used to determine if observed outcome was the product of chance or discrimination. Four step process
1.       Identifying an expected outcome – determining the % of EEs one would expect in Ds workplace (Must ID geographic area first)
2.       Observing the actual outcome – Important to note when hiring took place… is this result of history or recent hiring
3.       Determining the difference between the expected and actual
4.       Applying a mathematical formula to calculate if it was chance
Three-Part Disparate Impact Claim:
1)       Step #1: To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact.
·         This is generally done through statistical analysis. 
2)       Step #2: If the showing is made, the employer must then demonstrate that “any given requirement has a manifest relationship to the employment in question,” in order to avoid a finding of discrimination, i.e. “business necessity.”
·         Courts have a very divergent view of what a “business necessity” really is.
·         Here, the defendant has a “burden of persuasion” implied to show that the job requirements are job related. 
3)       Step #3: Even in such a case however, the plaintiff may prevail, if he shows that employer used the practice as mere pretext for discrimination.  This can be achieved by showing the employer adopted the mechanism for a discriminatory reason, evidenced by:
·         (1) Demonstrating that the employer adopted a facially neutral mechanism knowing it would have a discriminatory effect, or;
·         (2) The plaintiff can identify a less discriminatory alternative.
o     Note:  Courts disagree on whether or not the plaintiff need be aware of the less discriminatory mechanisms. 
Griggs v. Duke Power P was black and worked at D power plant in the only job category that permitted the hiring of blacks prior to Title VII.  But after passage of Title VII, D instituted standards (Employment Tests) that effectively limited blacks to the same category.
The purpose of title VII was to achieve equality of employment opportunities and remove barriers that have operated to favor and identifiable group of white employees over other employees. Congress required the removal of artificial, arbitrary, and unnecessary employment barriers that operate invidiously to discriminate on the basis of racial or other impermissible classification. The touchstone is business necessity (affirmative defense).  If an employment practice which operates to exclude minorities cannot be shown to be related to job performance, the practice is prohibited.  Nothing in the Act precludes the use of testing or measuring procedures; what Congress has forbidden is giving these devises and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.