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Employment Discrimination
University of Baltimore School of Law
Modesitt, Nancy M.

Employment Discrimination

Spring 2015 – Professor Modesitt

Title VII of the Civil Rights Act of 1964 §703(a)

It shall be unlawful employment practice for an employer –

(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin.

Title VII of the Civil Rights Act of 1964 §703(h) – Seniority Systems

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin…

Two Theories of Employment Discrimination Liability

(1) Disparate Treatment

· “Employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.”

· Requires proving there was discriminatory motive/intent/purpose

(2) Disparate Impact

· Liability is premised on a “facially neutral” employment policy or practice that “falls more harshly on one group than another and cannot be justified by business necessity”

Two Types of Claims Brought Under Title VII

(1) Individual Claim

(2) Pattern or Practice Claim

· “Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States…”

Intentional Discrimination

International Brotherhood of Teamsters v. United States

· System was openly discriminatory before passage of Title VII (which was legal at that time)

· Plaintiffs claimed the discrimination was system-wide, therefore this was a pattern or practice claim

· Government used statistics to prove the pattern – looked at make-up of population near terminals and then compared it to the people that were hired into the positions

· Pattern was also proved/substantiated by testimonials of individuals who were subject to discrimination

· Defense argued that government cannot rely on statistics alone and that they were employing less people and had less turn over – not true

· SCOTUS says that sometimes statistical evidence can be enough to prove discrimination

· SCOTUS says although seniority system is perpetuating old discrimination, because it applies equally to both whites and minorities, it is a bona fide system and valid

Price Waterhouse v. Hopkins

· Various reasons were given by defense for not promoting Hopkins – interpersonal skills, “macho,” overcompensated for being a woman, used profanity, overly aggressive (abrasive)

· Case only gets to SCOTUS because interpersonal skills are not sex-based, but the rest of the reasons are based on sex – mixed motive

· Language of Title VII says that it’s not enough just to have discrimination – have to show that the discrimination actually caused something

· Issue before the court is whether because defendant relied on something that wasn’t sex-based, they could get off the hook for all the sex-based discrimination

· Plurality says – “We conclude, instead, that Congress meant to obligate [the plaintiff] to prove that the employer relied upon sex-based considerations in coming to its decision.”

o Plaintiff must prove that sex played “a motivating part” in an employment decision

o If plaintiff does so, burden shifts to employer to prove that it would have made the same decision even if it had not allowed sex to play such a role (prove by preponderance of the evidence)

· Concurrence

o White – “as Justice O’Connor states, [the plaintiff’s] burden was to show that the unlawful motive was a substantial factor in the adverse employment decision.”

§ Once that occurs, burden then shifts to employer to prove it would have made the same decision in the absence of the unlawful motive

o O’Connor – substantial factor test, and then burden shifts as articulated by plurality

· Dissent – burden should be solely on the plaintiff – “but for”

McDonnell Douglas Corp. v. Green

· Plaintiff worked for employer originally for 8 years, then laid off

· Participated in civil rights movement, specifically a “stall-in” to block workers from getting to employer during shift change

· Employer started hiring again, plaintiff applied, and was denied work because of his participation in the demonstration

· SCOTUS establishes “burden-shifting framework”

o Plaintiff bears the burden of establishing a prima facie case of discrimination

o Once established, the “burden shifts to the employer to articulate some legitimate nondiscriminatory reason” for the employment decision

o Once employer articulates the LNR, the employee “must…be afforded a fair opportunity to show the [employer’s] stated reason…was in fact pretext.”

McDonnell Douglas Framework

· Elements of prima face case

(1) Does the plaintiff belong to a protected class?

(2) Did the plaintiff apply and was qualified for a job for which the employer was seeking applicants?

· When evaluating whether someone is “qualified,” there is question as to whether the person is evaluated individually or compared to who was actually hired

· Courts tend to use a hybrid approach

(3) Was the plaintiff rejected despite his qualifications?

(4) Did the position remain open and was it filled by someone who is not a member of a protected class?

· Framework created:

o To benefit plaintiffs

o Because there is often a lack of direct evidence of discrimination – intended to ease the plaintiff’s burden

· Look to Furnco case to get a better sense of what the defendant must provide in response to a prima facie case (LNR)

· Once LNR is given, burden then shifts back to the plaintiff to show that the LNR is just pretext for discrimination (St. Mary’s)

Furnco Construction Corp. v. Waters

· Bricklayers who sought employment and claimed they were discriminated against because of their race


mployer actions that are “materially adverse to a reasonable employee”

· Female claimed she was discriminated against because she previously filed a claim of sex discrimination

· SCOTUS says in retaliation cases that the “employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination”

· Anti-retaliation provision “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace”

· In 2013, SCOTUS held in Univ. of Texas Southwestern Med. Ctr. v. Nassar that retaliation claims CANNOT use mixed-motive approach

· Retaliation must be shown to be the “but-for” cause of the discrimination

Class Claims of Disparate Treatment

· Sometimes referred to as a pattern or practice claim

· Statistical evidence is often key

· Statistics are not usually as strong as they were in Teamsters, which had the “inexorable zero”

· These claims often use a combination of statistics and anecdotal evidence that bring the “cold numbers to life”

Hazelwood School District v. United States

· Issue was lack of hiring of black teachers in the Hazelwood district

· Different from Teamsters because black teachers had actually been hired in Hazelwood – no inexorable zero

· Anecdotal evidence was not compelling in this case

· Starting point is to determine what is actually discriminatory

· Hazelwood hiring system was done at the school level, with no real supervision at district level

· No real recruiting efforts undertaken by school system because abundance of applicants

· Principals were charged with hiring the “most competent” applicants, considering “personality, disposition, appearance, poise, voice, articulation, and ability to deal with people”

· District court analyzed the data by comparing the percentage of black teachers to percentage of black students – faulty because there is no correlation between the two

· SCOTUS says “the proper comparison was between the racial composition of Hazelwood’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market”

· How to identify the relevant labor market?

o Consider geography – where people who work there live, where people who apply there live

o Consider qualifications for position

· School district wants applicant-flow data used – actual percentage of white and black applicants for teaching positions at Hazelwood

o Would not be as accurate because some potential applicants would not have even applied if they knew Hazelwood reputation for not hiring blacks

· Statistics are heavily relied upon and show that the likelihood of the disparity is statistically significant