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

Employment Discrimination              Prof. Courtney Joslin          Fall 2012
1)      The Policy Bases for Antidiscrimination Law
a)    Types of Employment Claims
i)         Title VII (1964)- 15+ employees, labor unions, employment agencies
(1)     Exemptions: Indian tribes, membership orgs, foreign companies
ii)       S1981- Public and private employers **in the making of Ks only**
(1)     Only race is covered
iii)      ADEA (1967)20+ employees, no religious exemptions
iv)      ADA (1993)- 15+ employees
b)    Types of discrimination claims
i)         Disparate treatment: intentionally treating individuals differently based on a prohibited characteristic
(1)     Individual disparate treatment
(2)     Systemic disparate treatment
ii)       Disparate impact: facially neutral policy that unjustifiably and disproportionately negatively affects a protected group
(1)     1981 does not allow disparate impact
(2)     ADEA has a very watered down test making it hard to stick
(3)     The ADA is also hard because of how it’s is framed
c)     Types of Evidence
i)         Direct evidence- statements of admission (no inference necessary)
ii)       Circumstantial- Inference is required (ie statistical evidence)
d)    Federal Statutes
i)         Title VII of the Civil Rights Act of 1964 (Title VII);
(1)     Race, sex, origin,
(2)     § 2000e(b)  “The term ‘employer’ means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person …” (CA law only requires 5)
(3)     § 701(f) “The term ‘employee’ means an individual employed by an employer …”
(4)     § 703(a)(1) “It shall be an unlawful employment practice for an employer —
(a)     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 …”
(i)       must state a claim that is cognizable (an adverse employment action)
(ii)     Painting the guys offices blue and the women's offices pink – not cognizable
(iii)    In Hishon the passing over for partnership was cognizable
(iv)    In the Minor case, P given more work for the same amount of money, this was a material change and cognizable under the ADEA as an adverse employment action, but she could not prove it was because of her age
(v)      Some issues are in a grey area like lateral transfers, negative evaluations, investigations of the person, or failing to provide a computer
(vi)    Always ask what is the harm and is it bad enough to have a claim, then you need to prove the disparate treatment or impact
(5)     § 704(a) Retaliation
(a)     “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice, made an unlawful employment practice by this title or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.”
(6)     § 703(e) Bona Fide Occupational Qualifications
(a)     “Notwithstanding any other provision of this title… it shall not be an unlawful employment practice for an employer to hire and employ employees… on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
(b)     The ADEA has a similar provision regarding age discrimination. § 623(f)(1)
ii)       Civil Rights Act of 1991
(1)     § 703(m), § 2000e-2(m):
(a)     “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
(2)     § 706(g), § 2000e-5(g)
(a)     (2)(B) On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court–
         (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m); and
         (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
iii)      § 1981 of the Civil Rights Reconstruction Acts (§ 1981);
(1)      “(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts … as is enjoyed by white citizens …”
(2)     “(b) For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
(3)     Initially thought § 1981 only prohibited racial discrimination in government contracts.
(a)     But in Johnson v. Railway Express Agency (1975), the Supreme Court held that § 1981 also prohibits race discrimination in the making of private contracts.
(b)     This holding was reaffirmed by Congress:
(i)       “(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”
(4)     § 1981 vs. Title VII
(a)     No employer size requirement; Not limited to an employment relationship; No administrative exhaustion requirement; No damages cap; Statute of limitations may be longer; But more limited in its scope – covering only race (and maybe alienage) discrimination.
iv)      The Age Discrimination in Employment Act of 1967 (ADEA);
(1)     Only if over 40
(2)     Requires 20 or more employees
(3)     § 623(a)(1)  “It shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
v)       The Rehabilitation Act of 1973 (Rehab Act), the Americans with Disabilities Act of 1990 (ADA), and the ADA Amendments Act of 2008;
(1)     ADEA Requires 15 or more employees
vi)      The Family Medical Leave Act of 1993.
e)    Other sources of protection
i)         State nondiscrimination statutes; Contract and tort law; State and federal constitutions.
2)      Individual Disparate Treatment Discrimination
a)    Intent to discriminate and terms, conditions, or privileges of employment
i)         Slack v. Havens 1975
(1)     Black women in the factory forced to clean while white co-worker is excused. Defendant argued job classification distinction but defeated on the merits. Defendant also argued no causation, but accompanying statements re: “colored” people by supervisor as agent and excusing the white women are offers of evidence in the plaintiff's favor.
(2)     Take Away/Holding: Animus is not required as long as there is direct evidence of stereotypical differentiation based on protected characteristics; harm is produced even if the stereotype is positive (psychological harm)
ii)       Hazen Paper Co. v. Biggins 1993
(1)     Older male worker is discharged after 9 years of employment in advance of his pension vesting. He claims ADEA and ERISA violations based on his age. At the time, undecided if disparate impact was a viable theory under ADEA; was there disparate treatment based on the individual's age?
(2)     Take Away/Holding: (1)Plaintiff must prove that the age itself was the impermissible criteria on which the action was taken; the correlation with vesting was not enough to establish motive; need to show stereotypes about older workers or disparate impact (2) Since, the ADEA has been declared to include the right to plead disparate impact discrimination (3) Just because this was an ERISA violation doesn't make it an ADEA violation
(3)     **Even if stereotypes are based on statistical evidence, they are an impermissible basis for decisions.
iii)      Hishon v. King & Spalding 1984
(1)     P was passed over for partner at her law firm because she is a woman. Is consideration for promotion for partner a term or contract that is covered? The court says it doesn't matter if this is a matter of contractual right; Since becoming a partner was part and parcel of an associate's status as an employee, it must be available without regard to Title VII protected categories.
(2)     However, Once an associate is elevated to partner, they no longer have employee/employer relations with the other partners
(3)     Her claim is cognizable as an employee, not as a partner under title VII
iv)      Minor v. Centocor, INC.
(1)     Older female employee had to work longer hours for the same pay as her previous shorter hour schedule
(2)      this was a material change that would be cognizable as an adverse employment action, but she could not show that it was because of her being old
(3)     She could not prove that other employees got different treatment
b)    Plaintiff’s prima facie case: Part I
i)         McDonnell Douglas Corp. v. Green 1973
(1)     Facts – A black worker is laid off and staged a protest, arrested and later reapplied to work there, denied and he filed two claims for why he was denied, one for a retaliation under 704(a) and one for § 703(a)(1) relating to racially discrimination
(a)     Holding – (1) Respondent should be allowed to pursue his claim under  §703(a)(1);       (2) Shows how to pursue a claim where there is not the smoking gun as in Sack
(2)     Step 1: Claimant must prove prima facie case: Title VII requires the complainant to carry the initial burden under the statute of establishing a prima facie case of racial discrimination by showing:
(i)       P belongs to a racial minority;
(ii)     P applied and was qualified for a job for which the employer was seeking applicants;
(iii)    Despite P’s qualifications, P was rejected; and
(iv)    After P’s rejection, the position remained open and the employer continued to seek applicants from persons of P’s qualifications.”
1.        Some courts will also require that someone outside the protected class was hired or not fired, but this is not true since someone of darker skin may be fired and the lighter skin black person is retained
(3)     Step 2: Defendant must introduce admissible evidence of a legitimate, nondiscriminatory reason (LNDR) for failure to hire.
(a)     This is a burden of production only, there is not a preponderance of the evidence to weigh this, it is just an admission of an affidavit
(b)     While the Plaintiff always carries the burden to convince the jury, the only burden the employer carries is the production of some evidence, the judge cannot throw this out unless it is illegitimate, meaning it does not admit to the bases of the claim, so I did not hire him because he was black does not work, but I did not hire him because he was born in February is OK
(c)      This limits the case to just the areas where the plaintiff needs to argue
(4)     Step 3: Claimant must demonstrate that the proffered LNDR is a pretext.
(a)     A deliberate falsehood is pretext, an honest mistake is not
(b)     Proving the defendant lied when it asserted its LNDR for the employment action
(c)      But the reason must be a discriminatory reason
(i)       By a preponderance of the evidence standard
(d)     It is not enough to just show that the reason given was not the real reason, they must also show that the real reason was a discriminatory one
(i)       This seems to go against the notion that if there are no other reasons offered by the defendant, it should be like he offers none at all and therefore summary judgment for the plaintiff, but the Sup Ct holds otherwise
(ii)     It is a permissible inference that if the reason offered is not the true reason, that the real reason was a discriminatory one, but it is not a requirement, hence no summary judgment
(iii)    A problem is that the jury must find what the real reason was and yet sometimes there are mixed reasons.  One maybe discriminatory and one is not, so which gets the nod for being the real reason?

    Examples: When might the court find for defendants on summary judgment with a proven PFC and with evidence of pretext? What sort of affirmative evidence is persuasive? (Statistical evidence, same group discrimination, same actor defense) The court can review all evidence in the record, not just the rebuttal evidence, but also evidence presented in the PFC, and all inferences must be resolved in favor of the plaintiff.
(a)     The plaintiff's age must have actually played a role in the employer's decision-making process and had a determinative influence on the outcome – Hazen Paper
e)    Linking discriminatory intent to the employer’s treatment of the plaintiff
i)         Price Waterhouse v Hopkins  (1989)
(1)     Note that the opinion in this case was a plurality and is decided by the two concurring opinions on the most narrow grounds. Ann Hopkins, plaintiff, the only woman under consideration for partnership. Her application is put on hold and she is told her chances will improve if she conforms to more feminine gender stereotypes. Direct sex-based comments.
(2)     Holding #1: Discrimination on the basis of sex stereotyping is a form of sex discrimination under Title VII (this is somewhat more expansive than previous narrow interpretations that sex discrimination is only ok when the decision is “because she is a woman”-this discrimination seeks conformity with gender stereotypes, not a prohibition on women's employment).
(3)     Holding #2: In a mixed motive case (where there are both legitimate and unlawful motives); a plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision (according to O'Connor's concurrence)
(a)     “direct evidence” according to O'Connor does not include: stray remarks in the workplace; statements made by nondecisionmakers; statements made by decisionmakers but not related to the decisional process itself; or expert testimony.
(b)     Brennan’s plurality has a lower burden=a motivating factor.
(c)      O'Connor and Brennan agree on the second part of the analysis that the defendant then has the burden of persuasion (as an affirmative defense) of showing by a preponderance of the evidence that they would have made the same decision absent the illegitimate consideration. According to the court, if the defense carries this burden there is no liability.
ii)       Amendments to the Civil Rights Act: If a defendant is successful in carrying its burden of showing a motivating factor (as suggested by the plurality) on affirmative defense; the defendant may be liable, but damages may be limited. The court can still issue a limited injunctive relief and attorney’s fees and cost
(1)     Whereas in a single motive claim, the jury has to decide if it was one or the other as to the reason for the action (the P's version vs D's version)
(2)     This amendment did not add explicit mixed motive provisions to:  The retaliation provisions of Title VII; The ADEA; The ADA; or Section 1981.
iii)      Unresolved Issues following Price Waterhouse :
(1)     Is O'Connor's rule that applies mixed motive rules only to direct evidence applicable as a holding of the court?
(2)     Should O'Connor's limitation be applied to interpretations of the Civil Rights Act of 1991?
(3)     Does O'Connors direct evidence limitation limit mixed motive instruction?
(4)     many circuits have continued to adopt her limited ruling even after 1991 Act
iv)      Question presented in Gross:  “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” Petition for Certiorari.
(a)     Mixed motive frame work and what “because of” means –
(b)     The court said mixed motive claims are not available under the identical language in the ADEA as in Title VII
(c)      “We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but for’ cause of the challenged adverse employment action.”
(d)     There are 3 ways courts can decide mixed motive claims
(i)       The new Title VII, Pricewater house, or Gross
(e)     The effect is we still don’t know if bringing a case under the ADEA, the retaliatory provisions of Title VII or the ADA, Whether or not mixed motive claims are allowed
(2)     Pre-1991 CRA Allocation of Frameworks
(a)     Direct Evidence -> use Price Waterhouse
(b)     No Direct Evidence -> use McDonnell Douglas
(3)     Pre-Desert Palace Allocation of Frameworks for cases Brought under 1991 CRA
(a)     Direct Evidence -> use Price Waterhouse
(b)     No Direct Evidence -> use McDonnell Douglas
v)        Sprint v Mendelsohn
(1)     Admissibility of “me too” evidence
(a)     HOLDING: “such evidence is neither per se admissible nor per se inadmissible
(b)     Using evidence that others in the plaintiffs class were treated in a similar way, if it is another supervisor, courts are reluctant to use it