Employment Discrimination Outline

 
Employment Discrimination Outline
Fall 2014 – Levit
 
1.      Policy Basis for Antidiscrimination
a.       Four theories of discrimination
                          i.      Tastes
                        ii.      Statistical Discrimination – Proxy
1.      Employers make inferences about individual-level worker characteristics based on an employee’s membership in a group
2.      A rational employer will discriminate even if no relevant actor has any discriminatory animus, if the employer concludes that race is a useful proxy for job qualifications
3.      Some proxy’s are rational
a.       Males are better for certain jobs over females when strength is involved
                      iii.      Sorting & Search – Voluntary Sorting
1.      Discrimination is a rational response by employers to the discriminatory preferences of their employees
2.      Does not require animus or dislike
3.      People work better with others within their own race, etc.
                      iv.      Status Production
1.      Members in one group invest in elevating the status of their own group by subordinating other groups
2.      Emphasizes the importance of groups and social norms in producing and maintaining discriminatory practices
2.      Employment at Will
a.       Employer can fire for any reason or no reason so long as its not for an unconstitutional reason
b.      If firing is not discriminatory, it is likely going to be permissible under employment at will law
c.       Exceptions
                          i.      Unionized employees may have certain protections
1.      Require employers to have certain procedures
2.      Discipline or removal must be supported by just cause
                        ii.      Tenured employee – public sector
1.      Only terminated with due process
                      iii.      Employment contract
1.      May require just cause for termination
2.      Remedy for any claim through arbitration may be in contract
                      iv.      Covenant of good will (recognized by MO)
1.      Employer has to act in good faith of treatment of employees
                        v.      Wrongful discharge – most states
1.      MO – more of a narrow set of laws
2.      Protects at will employees who are whistleblowers, excerpt legal rights, etc.
                      vi.      Most states – allow suits against employers
3.      Title VII
a.       President Johnson lobbied for passing of Kennedy’s rights movements
                          i.      Civil Rights Act of 1964
1.      Title VII – banned discrimination from employment because of race, religion, color, sex, national origin and retaliation
b.      Requires that the employer has 15 or more employee’s
c.       ADEA – age discrimination
                          i.      Applies to public or private employers with 20 or more employee’s
                        ii.      Only protects workers who are 40 and above
1.      Some statutes from certain states are different
a.       KS and NJ protect younger employee’s
                      iii.      Exception to coverage for police, firefighters, etc.
                      iv.      1986 Amendment – no upper age limit anymore
d.      Core prohibitions are found in §703(a)
4.      Civil Rights Act of 1991
a.       Imposed cap on compensatory and punitive damages
                          i.      Depends on size of employer
                        ii.      Over 15-100 employee’s – 100k
                      iii.      Over 100 employee’s – Max of 300k
b.      Affects what cases plaintiff’s and lawyers are willing to take
5.      At Will Rule
a.       The burden is on the worker to prove that they were the victim of employment discrimination or some other illegal reason as the public policy tort
b.      Employers are generally allowed to fire
6.      General
a.       Unequal treatment, in and of itself, is not a statutory violation
                          i.      Unequal treatment must be because of the person’s race, sex, etc.
b.      Company is liable for the actions of an employee, even if it is only the employee who is doing the discrimination
c.       Multiple studies show that race is a key factor in hiring and decision making
                          i.      Studies on cognitive bias are not in agreement on how pervasive it is
d.      When a decision is “wholly motivated” (sole cause) by pension discrimination, age discrimination cannot be a determinative factor, or even a motivating factor
e.       Lower courts have generally required more than a mere showing that the employer discriminated in order for its conduct to be actionable
                          i.      Required an adverse employment action – usually need some material effect on the terms and conditions of employment
7.      Review
a.       How country bars discrimination
                          i.      At-discrimination is based on fairness and giving people an economical equal shot
                        ii.      Immutable differences and a history of discrimination or political powerlessness
                      iii.      Irrelevance of identity characteristics to the requirements of the job
                      iv.      Moral arguments against anti-discrimination
1.      Freedom of contract
2.      Associational rights argument
b.      Epstein – discrimination is rational and has different various basis (4 basis)
                          i.      Employers may have tastes for discrimination
                        ii.      Market forces will cure discrimination
                      iii.      Critiques
1.      Market has not worked well
2.      Harms of discrimination do not enter the economic calculation
a.       Psychological harm
3.      Transaction costs for searching for new jobs
 
Chapter 1 – Individual Disparate Treatment Dis