EMPLOYMENT DISCRIMINATION LAW
Spring 2013
Professor Scherer
1. Title VII – 1964 Civil Rights Act –
· most significant Federal (amended 1991 – Civil Rights Act 1991 – responding to the negative decisions by the Supreme Court – Wards Cove Decision (eliminated Disparate impact theory) )
· covers discrimination about: race, sex, national origin, and religion
· jurisdictional requirement: 15 employees
· filing requirement5: one must file charge with EEOC within 300 days of alleged unlawful employment practice, and if at a later point and time, notice of right to sue, then have 90 days to bring suit in federal court
2. ADEA – Age Discrimination Employment Act 1967
· statue protects persons from age discrimination 40 and above in age
· jurisdictionally – you need an employer with minimum of 20 employees
· EEOC to file charge pursuant to same administrative timing as Title VII – within 300 days of there being an alleged violation
3. ADA – Americans with Disabilities Act 1990
· Amended with ADAAA – Americans with disabilities act amendments act – which corrected very hostile decisions by Supreme Court cutting back on ADA
· Jurisdictional requirement: need 15 employees
· incorporates all administrative and judicial procedures that apply to Title VII
4. 1866 Civil Rights Act 42 USC Sec 1981
· on its face prohibits race discrimination in contracting – and therefore includes employment
· jurisdictional requirement: only need one person to claim violation
· complimentary to bring in with race claim
· Race definition – 1866 definition that discrimination based upon religion; Jews, Spanish, German
· Remedy: 4 year statute of limitations (if more than a year after event occurred, they are no longer timely with EEOC or NYSHR – but they would be timely with 1981)
5. NYSDHR – New York State Division Of Human Rights
a. Need to file within one year of alleged violation
b. Jurisdictional requirement: if employer has 4 employees
6. NYCDHR – New York City Commission Of Human Rights
a. Suing on part of city code that prohibits discrimination
b. One year Statute of Limitations of alleged violation
c. Jurisdictional requirement: if employer has 4 employees
Equitable Estopple could stop the SOL on a case running if the person violated against was not aware of the discrimination
Under the NYDHR and NYCDHR
· Same as Title VII plus one
· Discrimination based upon: race, national origin, sex, religion, sexual orientation and discrimination (bisexual etc)
If federal, state, or civil service employee and is terminated because of sexual orientation – NYDHR and NYCDHR does not provide a cause. Sexual orientation is not connected to cause in terms of connection to cause of being fired
CASES:
INDIVIDUAL DISPARATE TREATMENT
· A form of intentional discrimination
· Unlawful as of 3 years after WWII – after human rights law enacted prohibiting discrimination on sex and religion –
· the grandparent statute
· you had to prove through direct evidence
· can be proved based on statements that would confirm that was done (ex no promotion because you’re a woman, and this is a job for a man)
· unusual for employer that engaged that way – its unusual for people to acknowledge that – so became necessary to bring in circumstantial evidence to permit discrimination
******McDonell Douglas v. Green *****
o Green locked himself in
o Refused to hire him
o They argued because of unlawful conduct
o His argument was because of race
o Court developed a method that there was enough prove of violation to process
o Stage 1
§ That Green was African American (member of racial minority group)
§ He applied for a position
§ that was open for which he was qualified
§ And was rejected for that position
– Stage 2:
o Employer had to articulate a non discriminatory reason for the decision to be made
o Didn’t have to be persuasive evidence – just had to be admissible in court
o That would then rebut the case
o The weak reason would disqualify the weak alleged fact that discrimination took place
o Permits the person filing the charge to find out why they did it
– Stage 3:
o Burden of proof now goes back to moving party to show pretext
o Individual would have reason to prove that the reason given by the employer is sham and not true
Plaintiff has a burden of proof from the beginning to find out and show what happened
St. Mary’s Honor Center v. Hicks
– The information offered by the party to charge the case + a false answer by the employer = sufficient to grant a judgment in favor of the plaintiff
– Pretext plus interpretation by the court
Reeves v. Sanderson Plumbing Products, Inc.
– Knocked out the pretext plus doctrine
MIXED MOTIVE
– Employer terminated or denied or refused to hire somebody, and there is an mixed motive. There is unlawful motive, and there is also a good reason for it
Price Waterhouse v. Hopkins
· Established this type of case – mixed motive analysis
· Hopkins was hard to get along with: hostile, rude, etc
· Much of the denial of her promotion was her behavior and abuse of people
· At the same time, sex discrimination was still a factor
· People were affected by the way she dressed and didn’t behave like a woman should in most of their minds
· Burden of proof will shift to defendant to prove that it would have made the same decision based upon the negative reason standing alone, therefore showing the casual connection
· When employer could meet the burden – then there is no liability
· Congress amended Title VII Sec 403 (m) to amend for mixed motive
o Mixed motive and poor performance is a violation of title VII, however you don’t get back pay or remedy for it – because the legitimate reason would have caused the person not to have kept the job anyway
Cat’s Paw Theory
– Applies where a decision maker (that makes the decision to fire someone0 is motivated by good reasons – but is relying on a subordinate’s opinion that is based on lies. The subordinate is a supervisor of the discriminated employee
– Discrimi
ystemic impact cases only
§ Court adopted EEOC guidelines recommending establishment of disparate impact theory
§ Employer has employment practice that has disparate impact connected to race, sex, national origin, or religion, then the P has established prima facia case of violation of Title VII
§ Defense burden of proof is shifted to employer to establish that the employment practice requirement (height)is justified as to (1) job relatedness and (2) business relatedness
§ They couldn’t figure out the difference so they through them both in
§ Provided a mechanism for dealing with the type of discrimination in term of number of people discriminated against and a way to settle the cases
§ The D would normally say that this is not how I am operating
§ Now, you’re not acknowledging (employer) the discrimination – so that the desire and probability of settling cases were higher now
§ 1971
******Wards Cove v. Antonio (1989)*******
– Cannery jobs in Alaska,
– segregation case
– The important part is – that Sup Court used it as a way to water down disparate impact
– P has an obligation to identify the specific practices that caused the disparate impact
– D burden of defense, once established that a particular practice caused disparate impact, the burden was no longer job relatedness and business necessity, rather the D just had to offer business justification
– Referred to as burden of production rather than burden of proof
– Which Case?
– Wards Cove decision
– Effectively gutted business justification theory
– That decision led to 1991 civil rights act designed specifically to overrule Wards Cove
1991 Civil Rights Act
– Once established that there is disparate impact, a burden of Proof is shifted to D to prove business relationship and job relatedness (proof that Congress didn’t know the difference between them so they through them both in)
– You’ll have disparate impact from cases normally – but the worker won’t know what happened
– It was very hard to figure out what was happening
– Now under Wards Cove and revised act – burden still on P to proof set of practices that caused discrimination – could kill a case
– 1991 provided that if the elements of the employment system having disparate impact are not susceptible of separation of analysis, the P can utilize the entire process in proving disparate impact
– You can take a look at the whole process not just the individual elements
