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Employment Discrimination
University of Baltimore School of Law
Van Deusen, Darrell

I.                    Section 1981
–          §1981 provides a cause of action only for RACIAL discrimination and primarily when such discrimination occurs in making and/or enforcing contract
–          Purposeful (intentional) discrimination must be shown. A disparate impact is not sufficient although it may be used as evidence
–          Discrimination must have occurred in an activity enumerated by the statute:
a)       to make or enforce contracts
b)       to sue, be parties and give evidence
c)       to the full and equal benefit of all laws and proceedings for the security of persons and property
d)       to like punishment, pains, penalties, taxes, licenses and exactions of every kind
–          four year statute of limitations
–          jury trial is available for legal relief, but not where only equitable relief is sought
–          Remedies: a prevailing plaintiff is entitled to compensatory, and sometimes punitive damages, as well as back pay and injunctive relief – including hiring promotion, reinstatement and retroactive seniority
II.                  Sections 1983 and 1985 (3)
A.      Section 1983 – section 1983 establishes a cause of action for deprivations only under color of state law
Plaintiff must:
1.       have been deprived of a federal right
2.       by a person acting under color of state law
While a showing of disparate impact may be sufficient to prove discrimination under Title VII, more or less may be required for a similar showing under §1983, depending upon the right that has allegedly been deprived
Exhaustions – although a plaintiff may be consigned to state judicial remedies, no exhaustion of administrative remedies is required in a 1983 case – a 1983 claim may be broader than an administrative charge under Title VII
Statute of Limitations – Relevant state stutes of limitations control §1983 actions rather than the strict timetables imposed by Title VII
Statute of Limitations – governed by the state statute of limitations relating to personal injury action
Remedies – Section 1983 back pay awards are not restricted by the statutory limitations imposed by Title VII. Moreover, punitive damages and damages for mental anguish and the like may be available under 1983
B.      Section 1985(e) – If two or more persons in any State or Territory conspire for the purpose of depriving either directly or indirectly any person or class of person of the equal protections of the laws . . .
Elements: Complainant must allege
1.       Conspiracy
2.       For the purpose of depriving any person or class of persons of equal protections of the laws, or of equal privileges and immunities under the laws
3.       That the conspirators committed some act in furtherance of the conspiracy
4.       That the plaintiff was either injured in his person or property or was deprived of having and exercising any right or privilege of a citizen of the United States
Conspiracy = at least two individuals or entities must have conspired (issue of whether a single corporation falls within 1985
Class based animus includes:
–          political groups
–          religious groups
–          women
Statute of limitations – same as 1983 – state statute of limitations
Remedies – actual, compensatory and punitive damages as well as injunctive relief
III.               Title VII
Title VII was designed to protect individuals and to eliminate stereotypes – designed to eliminate the notion that a group of people all act the same way
Protects categories of persons
Title VII is really designed to let businesses do business – let them do what they want as long as it doesn’t involve illegal discrimination
Sexual orientation generally not covered
Title VII claims are enforced by the EEOC: Initially supposed to be an educational agency, but by the mid-1970’s the EEOC took a more aggressive stance
Under Title VII, the discrimination is A Motivating Factor
                EEOC has four Roles
1.       Investigation
2.       Conciliation – must engage in conciliation for 30 days and must engage in conciliation for 30 days
3.       Enforcement
4.       Interpretation
                Categories –
1.       Race – Caucasian, Asian, African-America, Hispanic
2.       Color – light skinned, dark skinned
3.       National Origin – does not necessarily mean the nation of your orign, ifyou have indicia of an origin, it could possibly be a national origin claim
4.       Religion – not necessarily organized religion, but if the individual holds their beliefs to the level of an organized religion, you might be protected
The hir

ablish a prima facie case (NOTE – If you don’t establish a prima facie case, you’re screwed
i.                     that the individual is a member of a protected class
ii.                    that he applied and was qualified for job which the employer was seeking applicants
iii.                  that despite his qualifications, he was rejected
iv.                  that after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualification and a member outside of the protected class is hired
2.       Employer’s Rebuttal – the burden the must shift to the employer to articulate some legitimate, non discriminatory reason for the employee’s rejection (burden of production is on the defendant)
3.       Demonstration of Pretext – Plaintiff must show that employer’s legitimate reason is a pretext
Can show:
1.       direct evidence
2.       statistical evidence (but this is never enough alone to establish intentional discrimination)
3.       comparative evidence
Under Reeves v. Sanderson Plumbing – a plaintiff need not have direct evidence of discriminatory intent to prove pretext – just need substantial additional evidence
The plaintiff bears the burden if proof.
What level of evidence is necessary for the jury to determine that there really is discrimination?   – where there’s a prima facie case combined with sufficient evidence that the employer’s asserted justification is false a jury may conclude that the employer unlawfully discriminated
Plaintiff must show that the reason given was false and the discrimination was the real reason
Title VII is not a perjury statute – the employer can lie as long as he’s not trying to hide discrimination. If the real reason was not discrimination, the plaintiff should not win a Title VII action just because the employer lied