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

Evolution of Anti-Discrimination Statutes and Sources of Anti-Discrimination Protections:
·         Common Law: No protections; at will employment doctrine governs
·         Federal Statutes: Title VII (1964); Section 1981; ADEA (1967); Rehabilitation Action; ADA (1993);
Equal Pay Act; Family Medical Leave Act
·         State Non-Discrimination Statutes (may provide additional protections by bases or remedies)
·         Tort and Contract Remedies
·         Collective Bargaining Agreements or Employee Handbooks
Policy Considerations: Why protect against discrimination
·         Epstein: Why not?
o   Efficiency (governance & group cohesion); Statistical traits= easy decisions; Market forces will correct wrongfully held trait characteristics assumptions; discrimination is over; voluntary segregation should be permitted
·         Williams: Why?
o   Because discrimination is real; because the bases are often immutable; immoral or unfair bases for decision-making; if mutable we want to protect choices; discrimination is harmful to individuals and society (makes people unable to succeed in other spheres)
What is Discrimination?
What is the line between lawful and unlawful discrimination? 
Some sorts of distinctions are legally protected (for example having qualifications; certain degrees or skills); lawful discrimination must be job-related;
The categories that are protected have the following things in common:
·         Generally there is a historical devaluation of the characteristic (negative stereotypes)
·         Generally Immutable (except religion)
·         Unrelated to job performance
→What about what happens when a racial, sex group that wasn’t discriminated against experience discrimination on the basis of this characteristic? (We do include white people and men; diverse workplaces reduce stereotyping)
What is the goal of employment non-discrimination laws?
·         Remedial Action (to remedy past discrimination)
·         Achieve Neutrality (such that the classifications no longer matter)
When, if ever, should there be exceptions?
·         Religion
·         BFOQ’s
·         Others
Federal Statutory Introduction:
Title VII (1964): Covers employers that have 15 or more employees, also covers labor unions and employment agencies. Important Exemptions: Indian Tribes, Membership Clubs that are exempt under the IRC, Religious Employers, BFOQ’s, foreign companies doing business in the United States (applied to public employers as of 1972).
Section 1981: Covers public and private employers in the making and enforcement of contracts, it only covers race, not other protected categories under other statutes
ADEA (1967): Covers employers with more than 20 employees; does not exempt religious organizations
ADA (1993): Covers state and local governments with 15 or more employees; excludes Indian Tribes, Membership Clubs but not religious employers
Types of Discrimination:
Disparate Treatment: An employer intentionally discriminates on the basis of a protected characteristic and there is causation in fact leading to adverse employment action
·         Individual: Against a single employee
·         Group: A facially discriminatory policy that affects a protected group unjustifiably
Disparate Impact: An employer has a facially neutral policy that unjustifiably disproportionately impacts a protected group. (Does not require a finding of intent)
·         Permitted under Title VII and ADEA; not viable under 1981
Types of Evidence:
·         Direct Evidence: Statements of admission (proves the fact without inference)
·         Circumstantial/Inferential Evidence: (Statistics, etc)
Discriminatory Intent:
Slack v. Havens (1975):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.
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)
Hazen Paper Co. v. Biggins (1993): 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?
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
**Even if stereotypes are based on statistical evidence, they are an impermissible basis for decisions. 
Prima Facie Case of Disparate Treatment: The Shifting Burden Paradigm
→Remember that the shifting burden applies to both the Title VII and 1981 Actions
Cases with Circumstantial Evidence:
McDonnel Douglas Corp v. Green (1973): African American man brings a race discrimination claim (§703) and a retaliation claim (§704) under Title VII. The plaintiff has participated in an unlawful protest against the company; lawful protests are protected under §704. The retaliation claim is ultimately dismissed because §704 doesn’t protect unlawful protests. The framework of the prima facie case for a circumstantial case is set forth in the holding.
                Holding: The procedure for a disparate treatment based on circumstantial evidence:
1)      The plaintiff must show a PFC of discrimination:
a.       Plaintiff must be a member of a protected group
b.      Plaintiff applied for and was qualified for a job for which the employer was seeking applicants
c.       Despite Plaintiff’s qualifications they were rejected
d.      After this rejection the position remained open and the employer continued to seek application from person’s of plaintiff’s qualifications
2)      The PFC suggests a rebuttable presumption of discrimination which the defendant may rebut by articulating a legitimate non-discriminatory reason for the decision
**(Only a burden of production, not a burden of persuasion)**
**(What does legitimate mean? Any reason that does not violate this statute)**
3)      The plaintiff is then allowed to show on rebuttal that the articulated reason is pretextual for discrimination
**The elements can be changed if the case has different circumstances; i.e a wrongful discharge, other material adverse employment actions**
                Specific Holding: This defendants’ stated reason not to hire based on illegal actions is met
                                                 The case is remanded for plaintiff’s rebuttal evidence of pretext
·         Would a wrongfully discharged person have to show that their replacement was of another race? No, b

-now the plaintiff has to prove that this action was motivated by discrimination.
·         Souter (in dissent) says that this makes the burden on the plaintiff’s too high; plaintiff must argue issues not articulated by defendants (responding to all possibilities)
Did this case adopt the permissive pretext only or the pretext plus rule? Unclear, clarified in Reeves
·         Souter (in dissent) says that this makes the burden on the plaintiff’s too high; plaintiff must argue issues not articulated by defendants (responding to all possibilities)
Reeves v. Sanderson Plumbing Products Inc. (2000): A 57 year old man is terminated for alleged shoddy record-keeping; he claims race discrimination under ADEA. The employer rebutted with evidence that the plaintiff proves false (presumed pretext). Jury finds for the plaintiff, reversed by COA, articulating a pretext plus rule (plaintiff needs more than PFC and pretext); must show age is the real reason.
Holding:  Unanimous decision by Justice O’Connor states that PFC and rebuttal (pretext) may (but will not always be enough) to prove discrimination. Plaintiff must not always or never be entitled to judgment as a matter of law in this situation. This is the permissive pretext only rule.
→Some PFC evidence and some proof of pretext might be enough on its own; some needs more
Rule: In most cases where the plaintiff makes out a prima facie case and rebuts LNDRs the plaintiff should get to trial (raise a question for the jury), but there may be certain circumstances where it is appropriate for the court to rule on summary judgment.
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.
Mixed-Motive Cases & Direct Evidence of Disparate Treatment
Price Waterhouse v. Hopkins (1989): 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.
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).
**No double bind required: i.e. does only cover traditionally masculine jobs but all jobs