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Employment Discrimination
University of California, Davis School of Law
Joslin, Courtney G.

Employment Discrimination
Prof. Courtney Joslin
Fall 2011
Types of Employment Claims
·         Title VII (1964)- 15+ employees, labor unions, employment agencies
o   Exemptions: Indian tribes, membership orgs, foreign companies
·         S1981- Public and private employers **in the making of Ks only**
o   Only race is covered
·         ADEA (1967)20+ employees, no religious exemptions
·         ADA (1993)- 15+ employees
Types of Discrimination
·         Disparate treatment- intentional discrimination on the basis of protected characteristic and there is causation leading to adverse employment action
o   Individual
o   Systemic- facially discriminatory policy that impacts protected groups
·         Disparate impact- facially neutral policy that disproportionately impacts one protected class
o   TVII and ADEA only; not available s1981
Types of Evidence
·         Direct evidence- statements of admission (no inference necessary)
·         Circumstantial- Inference is required (ie statistical evidence)
Individual Disparate Treatment
·         Animus is not required as long as there is direct evidence of differentiation/discrimination based on protected class Slack v. Havens
·         The protected characteristic must be the reason for the firing. Even other characteristics closely correlations are not sufficient (ie no ADEA claim if fired bc of pension vesting) Hazen Paper v. Biggins)
·         Adverse work action includes firing, failure to hire, failure to promote, material change in terms and conditions of employment
o   Working longer hours or getting paid less for same work can be material change
o   Some courts say must be economic, others say it doesn’t (fact sensitive determination)
·         McDonnel Douglas
o   Plaintiff shows prima facie case
§  P is member of protected class
§  P applied and was qualified for a job for which employer was seeking apps
§  Despite his qualifications he was rejected
§  Position remained open and employer continued to solicit apps
o   Defendant may rebut presumption with a Legitimate Nondiscriminatory Reason (LNDR)
§  Burden of production onlyàvery low standard
o   The plaintiff can show that the LNDR is pretextual
·         Notes on McDonnel Douglas Framework
o   Establishing prima facie case for refusal to hire eliminate the two most plausible reasons (lack of qualification, vacancy in job) (Teamsters)
o   Evidence of discriminatory intent is not required to make out prima facie caseà burden remains with P throughout.
o   Prima Facie case creates a presumption of intent absent a LNDR. Once a LNDR is asserted, the case proceeds to third stage, where no presumption exists and Plaintiff retains burden.
o   McDonnell Douglas framework can be applied to S1981 cases also (Patterson)
§  Only for race; only for contractual situations
o   Reverse Discrimination on race or gender under TVII or S1981 (even though it is contrary to original intent) is ok (McDonald v. Santa Fe)
§  Congress intended to protect from disc identifiable classes of person who are subjected to intentional disc solely bc of their ancestry or ethnic characteristics.
o   Reverse Disc on age is NOT ok
§  Must be over 40 and must be relatively older than other (Cline)
·         Defendant’s Rebuttal and Plaintiff’s proof of pretext
o   LNDR can be virtually anything: illegal, implausible, silly fantasticà must be able to be put into evidence and must carry burden of production only
o   In the initial stage, the “qualified” std is pretty low, but if you attempt to disprove pretext with comparative evidence, there must be “clear” evidence you are more qualified (Ash v. Tyson Foods)
o   No specific prescribed way of proving pretextà don’t even really need to prove it is false, just that it is not the real reason.
·         Plaintiff’s ultimate burden of persuasion (Reeves v. Sanderson Plumbling)
o   Mandatory Pretext only-If the plaintiff demonstrates that the defendants LNDR is pretextual, then the judgment must be for P
o   Permissive Pretext only- if plaintiff demonstrates that the D’s LNDR are pretextual then it goes to jury and they can but don’t have to rule for P
§  if the veracity of the LNDR is in question (ie there is a genuine issue of material fact), the jury can rely on the prima facie case + disbelief of the D’s explanation as the basis for inferring the work action was product of intentional disc. (reeves)
§  NO JML à must go to jury when reason to disbelieve LNDR
o   Pretext Plus- A plaintiff can only prevail by showing the LNDR is pretexual AND with some evidence  beyond the prima facie (must prove discriminatory purpose)
o   “Me-too” or “me-not-too” evidence is not per se allowed or disallowed- it is really a matter to be determined by federal rules of evidence.
·         Mixed Motive (motivating factor analysis) Price waterhouse v. Hopkins
o   If there are mixed motives:
§  O’connor says must show illegitimate reason was a substantial factor with direct evidence
§  1991 amendment changes this std to motivating factor
§  Preponderance of the evidence by either direct or circumstantial evidence (desert palace)
o   If it does shift defendant has an affirmative defense (preponderance of the evidence) of showing same decision defense
§  Same decision defense still makes d liable but only for declaratory/attorney’s feesà NO DAMAGES (ie the affirmative defense only goes to limit the plaintiff’s recovery)
o   Mixed motive instruction should only be given when the D has offered some evidence that D would have reached same decision apart from disc, but must be contemporaneous. After the fact discovery of other reason to fire someone does not make it a mixed motive case
o   The 1991 amendment didn’t apply to ADEA nor did PWC so ADEA has higher standard of showing that the improper consideration was a “but for” cause- that is it was the determinative factor (no mixed motive allowed) Gross
o   Open question if mixed motive is allowed and if direct evidence is required for S1981/ADA
§  Gross (no mixed motive allowed) determinative factor std
§  PWC- substantial factor  + direct evidence
§  1991 civil rts amendà motivating factor
§  Also open question whether direct evidence is required
Systemic Disparate Treatment
·         Plaintiff can show (1)the employer has an announced, formal policy of disc or (2) show that employer’s pattern of employment decisions reveals a practice of disp

lly barred but must meet three prongs (Weber) title VII-(1) purpose of plan is to break down patterns of racial segregation (2) plan does not trammel the interest of majority group or bar their advancement (3) the plan is temporary
§  (1)Plaintiff must present prima facie + evidence of something “fishy”
§  (2)D presents LNDR (affirmative action plan) AA is not affirmative defense, rather it is a LNDR (ie no burden of persuasion only production- burden on P to prove it is invalid)
§  (3)P must show plan is invalid
§  If constitutional challenge then it must have been the govt actor that disc in the past, but if private actor it didn’t necessarily have to be them specifically
Disparate Impact- disparate impact claims are facially neutral practice or policy that disproportionately impacts a protected class (available for VII, ADA(statutorily), ADEA(smith v.jackson) but not s1981) griggs v dukes)
·         Intent of the employer is irrelevant
·         griggs (blacks couldn’t pass test), Douthard (women didn’t meet height/weight requirements) say that P shows practice or policy w/ disc impactà D has burden of persuasion to show biz necessityà P can rebut if there is alternate
o   OLD LAW: Wards Cove: (1) plaintiff shows some practice or policy that leads to imbalance (2) defendant has burden of production that there is some justification (3)P can show less discriminatory alternative only if it is equally effective
·         1991 civil rights raffirms impact disc is available and clarifies the defenses
o   Defendant has burden of persuasion to show challenged practice is job-related and consistent with business necessity
o   Plaintiff can show less disc alternate if can show the alternate existed and the employer refused to employee it
·         The plaintiff must point to some specific policy or practice that is causing the impact (can’t just look to the bottom line)àUNLESS the selection criteria is no capable of separation
o   But bottom line doesn’t insulate you from practice or policy that might weed out minorities
§  Connecticut v. tealà only 68% passage rate of black compared to white, but then took other steps to ensure a balanced bottom line was not enough to preclude those that failed the test from establishing a prima facie case
o   The policy/practice at question could simply be the subjective nature of hiring decisions (Watson)
·         Plaintiff starts by showing a practice or policy that has disproportionate impact on a class
o   There is no clear rule on “quantum of impact” but the 80% rule used in EEOC guidance is a good measure