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Employment Discrimination
University of California, Hastings School of Law
Ochs-Tillotson, Danielle


Professor Ochs-Tillotson, Fall 2011


I. Title VII:

A. Rule Statement: Title VII makes it unlawful, “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s [race, color, sex, religion or national origin]

II. Enforcement Schemes :


1. Generally:

a. The exhaustion of administrative remedies is a prerequisite to a lawsuit brought under Title VII, the ADEA and the ADA.

b. No cease and desist power/police powers to stop someone from discrimination. Thus, in order for it to pursue lawsuits, it must litigate those lawsuits in federal courts.

c. Has authority to issue regulations and interpretive guidelines. Found in 29 C.F.R.

d. Guidelines/interpretations are afforded great deference by the courts, but not binding.

2. Process to Assert a Claim:

a. First go to EEOC and fill out a questionnaire. Must be filed within either 180 days after the alleged wrongful act or 300 days. Difference depends on whether that state has its own administrative agency. 300 days for states that has an administrative agency, 180 days for states that don’t. (MC)

b. EEOC will begin an investigation process.

i. EEOC will ask employer for a position statement. Employer must respond within a period of time.

ii. EEOC may also request to interview individuals in the workplace. Can subpoena if request is declined.

iii. If after 180 days, the EEOC has not done anything with your claim, they will issue a right to sue or you can request one. They might also issue a “no cause” letter, although this is not determinative and an employee can still sue.

a. Right to Sue Letter is essentially just permission to sue. Individuals need to allege as an element of the claim that they have completed the exhaustion process and that they have a right to sue. Must be alleged or dismissed.

iv. In states that have its own agency, there is often dual filing. This is the case in CA. DFEH will also file a case with the EEOC and vice versa.

v. Individuals have 90 days to file a lawsuit/claim after receipt of a right to sue letter.

vi. Under CA law, you have one year (365 days) to file a lawsuit after you receive a letter from the DFEH.

c. Administrative exhaustion process is not jurisdictional. Exhaustion does not bar your ability to bring your case in federal court.

B. DFEH (California)

1. Has no power to pursue lawsuits under state court except for various limited circumstances.

2. Individual must exhaust administrative process before filing a suit in state court.

C. Ledbetter v. Goodyear (Alito, US, 2007) p. 27

1. Facts: P sued Goodyear for gender discrimination in violation of Title VII, alleging that the company had given her a low salary because of her gender. Goodyear appealed, citing a Title VII provision that requires discrimination complaints to made within 180 days of the employer’s discriminatory conduct. The jury had examined Ledbetter’s entire career for evidence of discrimination, but Goodyear argued that the jury should only have considered the one annual salary review that had occurred within the 180-day limitations period before Ledbetter’s complaint.

2. Issue: Can a P bring a salary discrimination suit under Title VII when the disparate pay is not received during the 180-day statutory limitations period, but is the result of discriminatory pay decisions that occurred outside the limitations period?

3. Holding: For a timely claim, P would have needed to file within 180 days of a discriminatory salary decision; the Court did not consider it significant that paychecks she received during the 180 days prior to her claim were affected by the past discrimination. Discriminatory intent is a crucial element of a Title VII disparate-treatment claim, but each instance of Goodyear’s discriminatory intent fell outside the limitations period.

III. Coverage Under Laws Prohibiting Discrimination in Employment:

A. The Meaning of “Race” and “Color”

1. St. Francis College v. Al-Khazraji (White, US, 1987) p. 42

a. Facts: P is a US citizen born in Iraq, suing under §1981. D says that P is Caucasian, and therefore § 1981 should not apply. P says that he should not be deemed “Caucasian” because he is not the same ethnic group. P states that a variety of ethnic groups are now all considered to be within the Caucasian race.

b. Rule: Congress intended to protect certain classes of people from discrimination because of their ancestry or ethnic characteristics. Discrimination is forbidden even if they would be classified differently in modern scientific theory. Persons of Arab ancestry were protected from racial discrimination under § 1981. § 1981 encompassed discrimination even among Caucasians.

B. Who is an “Employee”?

1. Clackamas Gastroenterology Associates v. Wells (Stevens, US, 2003) p. 50

a. Facts: ADA only applies to companies of 15+ employees. Clackamas employed Wells for 10 years; after her termination she brought suit alleging discrimination under the ADA. Clackamas claims it isn’t covered by the ADA since 4 of the physician/shareholders are board of directors (not employees).

b. Rule: The mere fact that a person has a particular title should not be used to determine whether he/she is an employee or a proprietor.

i. Whether you have 15 is a factual issue, not a jurisdictional question (fact-finder can determine whether there are 15 employees or not)

ii. Apply traditional right to control test as in other employment contexts.

c. Analysis: Whether a shareholder/director is an employee depends on multiple factors of the relationship, with no one factor being decisive.

d. MC: At what point does a court look at whether you’re an employer subject to Title VII? At the time when the firing or action occurs.

C. The Meaning of “Employer”

1. General Rule: “A person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Title VII § 701(b)

a. Title VII – 15 employees

b. ADEA – 20 employees

c. ADA – 20 employees

d. FEHA – 5 employees

D. The Meaning of an “Employment Practice”

1. Generally: To be actionable the employment “practice” must fall within the statutory phrase, “compensation, terms, conditions, or privileges of employment.” If the practice of an employer does not fall within this meaning, then arguably that practice is not unlawful even if the employer was motivated by discriminatory intent in taking the action.


I. Definition: When an employer treats some people less favorably than others because of their race, color, sex, religion or national origin –Teamsters v. United States (US Supreme Court 1977)

1. Discriminatory intent is the key to disparate treatment claim.

2. Can be proven by direct OR circumstantial evidence.

3. The critical issue the fact-finder must decide is whether the plaintiff has proven that an adverse employment practice is based upon unlawful discriminatory motivation.

4. Proving intentional discrimination can be difficult in disparate treatment cases, particularly in those cases in which a plaintiff must rely solely upon circumstantial evidence.

5. However, the law is well-settled, that, as in any civil case, a plaintiff may prove a claim of unlawful employment discrimination, including the ultimate fact of intentional discrimination, by direct or circumstantial evidence.

II. Analytical Framework: 3-Stage Analysis

A. RULE: McDonnell Douglas Burden Shifting

1. P must first establish a PRIMA FACIE CASE by proving by a preponderance of the evidence:

a. (1) that he belongs to a protected class,

b. (2) that he applied and was qualified for a job for which the employer was seeking applicants;

c. (3) that, despite his qualifications, he was rejected; and

d. (4) that, after the rejection, his position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

i. [The establishment of the P’s PF case generates a rebuttable presumption that the reason for the P’s rejection was unlawful discrimination]

2. After PF case is established, the burden then shifts to D to show a LEGITIMATE, NONDISCRIMINATORY REASON for the employee’s rejection.

i. [D carries the burden of producing evidence (but not the burden of persuasion)]

3. Then P has the opportunity to show that the stated reason for rejection is PRETEXT.

i. [At this state, P carries the burden of persuasion]

B. McDonnell Douglas Corp. v. Green (Powell, US, 1973) p. 92

1. Facts: P

ment Act (ADEA) of 1967. P introduces evidence that he had accurately recorded the attendance and hours of the employees under his supervision.

2. Issue: Is a P’s prima facie case of age discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, adequate to sustain a finding of liability for intentional discrimination under the ADEA?

3. Holding: Yes

4. Reasoning: Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.

5. RULE: The standard for judgment as a matter of law mirrors the summary judgment rule. The difference between this case and Hicks is in regard to pretext. For Hicks, it was the burden of proof after all the evidence had been submitted. In this case, it was how much evidence is required to satisfy a Rule 50 motion or the SJ rule (rule 56).

a. The ruling means that an employer is liable to a former employee under the ADEA if a reasonable jury can find that the employer’s explanation for the employee’s dismissal was pretext for discrimination.

III. Mixed Motive Cases

A. Generally: Where a plaintiff proves that an impermissible factor played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken into account the impermissible factor. Plaintiff does not have to show that the impermissible factor was the sole or motivating factor, only that it was a factor considered.

B. Price Waterhouse v. Hopkins (Brennan, US, 1989) p. 134

1. Facts: Woman wanted to become partner. Partners had made remarks that she should be a little more feminine, and was too abrasive. Partners told her that she might be able to make partner if she wore jewelry, makeup, walked more feminine, etc. Hopkins made out a prima facie case on a disparate treatment theory.

2. Rule: Employer’s reliance on stereotyping can constitute direct evidence of discriminatory intent. In other words, taking an adverse action because of the P’s failure to conform to a sex stereotype is a form of sex-based conduct.

C. 1991 Amendments to Civil Rights Act

1. In between Price Waterhouse and Desert Palace, Congress passed 1991 Amendments to Civil Rights Act. In effect, Congress altered the Price Waterhouse mixed-motive proof structure.

a. § 107(m) provides that “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.

b. What this means is that anytime a P is able to prove that an impermissible factor “was a motivating factor” she is entitled to a judgment in her favor.

c. Remedial Section: If an employee succeeds in proving discrimination was a motivating factor for an employment practice, and the employer demonstrates that it would have made the same decision without the impermissible factor, the court is not permitted to award damages or order certain forms of injunctive relief such as reinstatement, hiring, promotion, or backpay, BUT may order declaratory and injunctive relief, attorney’s fees, and costs.