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Employment Discrimination
University of California, Hastings School of Law
Bornstein, Stephanie


Basic tenant of employment law in the U.S. is the freedom of contract:

· An employee may be employed or fired at any time for any reason unless it is an illegal reason

· The President and Congress thus had to formulate what the illegal reasons were

What do we mean by the terms “equality” and “discrimination” and what makes us want to interfere/want the law to regulate it?

1. Equality

· Equal treatment: formal equality, idea of “sex or color blindness,” so such should not factor in any way in employment law

· Equal opportunity: take race and other factors into account, formal equality is meaningless because racism still exists and we cannot ignore it, “to treat people equally, we have to treat them differently”

o To be critical of the norm

· Both types of equality perspectives are addressed in U.S. statutes and case law

· Sometimes these two perspectives are in conflict

2. Discrimination

· One type of approach: taking race, sex, etc. at all when employing/firing

· Another approach: implicit or unconscious bias  decisions people are making that are contaminated by bias

· Structural approach: there is a norm to how things are done, and such structure is reinforcing the way people move through organizations (allows discrimination)

Sources of employment discrimination protection and remedies:

1. Federal legislation –Title VII, ADA (American Disability Act), ADEA (Age Discrimination in Employment Act), EPA (Equal Pay Act), § 1981: provides additional protection based on race, FMLA (Family on Medical Leave Act)

2. State/local legislation – for example, although sexual orientation is not protected by federal law, it is protected by many state laws (CA)

3. Judicial – case law

4. Constitution – 5th and 14th Amendments, Due Process and Equal Protection, § 1983: a tool to give a cause of action to a state employee for constitutional violations

5. Executive Orders – 11478 (federal employees), 11246 (federal contractors)

Administrative procedures:

1. File a charge with the EEOC w/in 180 or 300 days (usually 300 days unless there is no state Fair Employment Practice agency)

· If you don’t first bring the charge, then you are barred from bringing the claim in court

· Can amend for technical defects and omissions, but this is limited

· Jx can allow you to cross-file – DFEH and EEOC (work sharing)

2. EEOC first conciliates/mediates (completely voluntary). If this doesn’t happen, then…

3. EEOC may or may not investigate

· Takes an average of six months or more. The employer is involved in this phase.

4. EEOC issues a determination, which will either be for-cause or no-cause, and a “right to sue” letter.

· “Right to sue” letter: allows you to file a lawsuit in court, but must be done w/in 90 days. Even if it’s “no-cause,” then you are still entitled to a “right to sue” letter

· Even if it’s “no-cause,” then you are still entitled to a “right to sue” letter

· “For cause” means there is enough evidence already present in this case to further pursue it

o “For cause” doesn’t mean that the EEOC is going to take on your case

5. If “for cause,” then conciliation takes place (required)

· If you’re a plaintiff-side lawyer and you worry about getting a no-cause determination, then you want to get your “right to sue” letter ASAP

6. EEOC reviews: either decides to pursue cause themselves on behalf of EE or on their own for a class suit; OR issues a right to sue letter

· EE can request a right to sue letter anytime after 180 days from charge filing

Overview of Laws: Enforcement, Coverage, Key Terms, Remedies

Administrative exhaustion

· Many statutes do not require administrative exhaustion

· Four big statutes: Title VII and ADA does require administrative exhaustion, but Equal Pay Act does not

o You can file an EPA directly in the court, but EPA claims are usually filed w/ a Title VII claim for sex discrimination

· The ADEA sort of requires administrative exhaustion: you have to file a charge, but you can file a claim in court even before you receive any “right to sue” letter


1. Laypeople may not know the appropriate procedures and organizations

2. Laypeople may also may not recognize discrimination right away

3. Spoliation of evidence


1. Funnels both parties through a system which would help them avoid the exorbitant costs of protracted litigation

2. Many employers may not even know that such discrimination occurred, and they may even take the nec. steps to correct the situation w/out having to litigate

3. Process designed to help laypeople

Judicial deference to EEOC:

· When Congress passed Title VII, it created EEOC to administer related claims

o Congress gave EEOC rule-making authority and procedural regulation authority

· EEOC does not follow a formal rule-making process

· Administrative Procedures Act: Congress must give public response period for procedures

• Question of how much weight the EEOC’s own opinion should get: EEOC’s procedural regulations and issue two kinds of things that courts do not nec. defer to, but still look to

o EEOC also has enforcement guidance: understanding of the law in a particular area

§ Will have hearings, experts

o EEOC gives interpretative guidance (informal)

· Although courts don’t nec. defer to them, the EEOC still has a lot of power administratively

Judicial enforcement, p. 38-39

· Statute sets out when a party has to be notified, but there are various ways to calculate when the 90-day limitation starts

· When an attorney has been designated as an agent, the 90 days starts when attorney gets right to sue letter

· Right-to-sue letter is NOT a valid complaint: must meet Rule 8 requirements

· EEOC can bring actions in its own name: can take on a case based on a charge, such as systemic cases (class cases) or any class that would have any big impact/public policy

Ledbetter v. Goodyear Tire & Rubber Co., p. 27

Facts: P was EE of D and had worked there for 20 years. Alleged she wouldn’t date her supervisor so she received poor evaluations. These evaluations eventually culminated in sex discrimination found in her paychecks (which was less than her male counterparts) and her inability to receive a raise. She filed a formal charge w/ EEOC, took early retirement, and then commenced the action for Title VII pay discrimination and claim under EPA.

Issue: Whether an “unlawful employment practice” occurred (statutory interpretation)

Analysis: SCOTUS looked to the intent of Congress when passing the statute.

· Court is looking at discrimination as the most discrete act (intentional animus now, not unconscious or structural discrimination)

o You cannot fault an employer now for a discrete animus act that occurred years ago

Holding: Actual discrimination did not occur between the 180/300-day charge period, just b/c paychecks are lower as a result does not make it actionable today (went beyond SOL)

Result: Lilly Ledbetter Pay Act – every time someone is experiencing discrimination today based on past discrimination practices, then each paycheck will result in actionable discrimination.


1. Race

St. Francis College v. Al-Khazraji, p. 42

How do we define race? Is race the same as color, or is it distinct?

Facts: P, a person of Iraqi descent yet also a citizen of the U.S., filed a claim of racial discrimination under § 1981.

Issue: Does a person of Iraqi descent fall under the protection of the term “race” found under § 1981?

Analysis: Court look at historical definition of race over time. “Race” also changes over time, not static. Court also looks at legislative history and forum debates, and records what Congress

meant when they created § 1981.

Holding: P does have a claim under § 1981. Court found that race should be based on broader category than just on what you look like. Different from Title VII: Title VII includes other protected classes that could potentially be relevant, whereas § 1981 only protects one class.

What should the law regulate given varying perspectives and whose perspectives should govern?

· Malone brothers case: twin “white” brothers who later re-took a civil service competitive exam identifying themselves as “black.”

o Raises the question of whether an employer can challenge a P’s characterization of his own racial identity

o Should identity be defined as how one perceives himself or how other people perceive him?

o EEOC: how you’re perceived and if you’re discriminated based on that perception, then that qualifies as actionable discrimination

· Names survey: “white” v. “black” names can lead to discrimination in job applications. Still a question of perception.

Difference between “color” and “race” under Title VII

· People that may be considered in the same “race” may vary in “color”

· For instance, lighter skin is better in some minority groups rather than darker skin or vise-versa. Question of who you are comparing people with – discrimination can still occur between people within the same racial class


· Case of discrimination against the “black woman”: must take this identity as a whole, for what it is, rather than breaking it up into “black” and then “woman”

· Pro-intersectionality: Jefferies v. Harris County Community Action Association – even though it’s not in Title VIII, it would be inconsistent w/ Title VII not to recognize it

· Against intersectionality: Degraffenreid v. General Motors – recognizing black women as a protected subclass would create a “super-remedy,” which was not envisioned by the drafters of Title VII

· Must take your “experience” as a whole into account – what was the intent involved in making the employment discrimination decisions

2. Employee

A person employed by an employer. If the person is called an “independent contractor” or a “partner,” there are additional issues to address to find whether they are protected under the statute. Usually incl. who is on the payroll.

3. Employer

Has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

· Did not seem to require very small employers to comply w/ this b/c it’s very expensive and time-consuming.

o However, many state employment practice laws cover very small employers (ex.: in CA, it covers employers w/ 5 or more employees)

· Cannot knock out case based on jx issues, only on the substance of the claim

· Joint Employer Doctrine – if you are dealing w/ an employer has fewer than 15 employees, they may still be covered under Title VII

· Any agent or manager acting w/in the scope of employment – when a supervisor makes a discrimination decision, then it is the employer that will be subject to liability

4. Employer practices

It is unlawful employment practice to fail or refuse to hire or discharge any individual or otherwise to discrimination against any individual w/ respect to his compensation, terms, conditions, or privileges of employment, b/c of his/her race, color, religion, sex, or nat’l origin.

· Cannot limit an individual of opportunities or adversely affect his status as an employee b/c of the af

basis of sex discrimination. ER said EE did not work well w/ others and they wanted to improve company’s efficiency. Court of Appeals ruled that D must also prove by objective evidence that those hired or promoted were better qualified than P.

Issue: Was Court of Appeals correct in its analysis of Title VII?

Holding: No. To satisfy burden of production, D only needs to produce evidence which would allow the fact-finder to rationally conclude that the employment decision was not motivated by discriminatory animus. P has burden of persuasion and has it the whole way; D has burden of production, but is at a lower threshold. Moreover, an ER is not required to prove that the person hired/promoted was more qualified than P. The ER has discretion to choose among equally qualified candidates as long as the decision is not based on discriminatory criteria.

Disparate Treatment Claims: Single-Motive

Burdine notes 2, 3, 5: why the court adopted burden-shifting

· ER’s are unlikely to leave a paper trial or direct evidence of discriminatory animus, so it’s a way to allow P to prove it even w/out direct evidence

· Benefits P – permits evidence of structural discrimination or implicit discrimination

· This is based on assumption that ERs are rational economic actors

· It narrows the whole issue down to what the EE wants to focus on (discrimination) – frames the scope of what EE has to prove at pretext stage

· Although it’s 3-step analysis, it does not nec. go in that order (depends on the court)

· Potential problem: D could make up false reason if it was not required to persuade and just produce

· Is the burden-shifting fair?

o One argument: not fair b/c it does not require much from ER; fairly low threshold

o Another argument: Since PRC creates a presumption of discrimination, then it makes sense that there should be a low threshold for ER b/c it is already difficult to overcome the presumption

Critical race theory (groundbreaking in early 1980s)

· Criticized color-blindness: race must be addressed b/c racism still exists; ignoring it through “equal treatment” will not make it go away

· Criticized intent b/c racism is sometimes unconscious: should not just focus on discrete blatant acts

· Introduced concept of intersectionality and subordination of certain races or other factors (gender, nat’l origin, etc.)

· Racial hierarchy is the ingrained norm, not learned (which is what color blindness is)

· Burdine notes: when P does not actually apply for the job or promotion, is it still possible to bring a discrimination complaint?

o Futile gesture doctrine: may excuse P’s failure to apply

o Example: if an ER has a reputation for refusing to employ members of a protected group, the failure to apply may be excused

o It doesn’t make sense to make EE apply to these ERs just in order to file a claim for discrimination – the point is to reach ERs who would try to avoid liability who try to keep their discriminatory hiring methods a secret

What do you have to prove for qualifications?

· For EE’s PRC, just have to meet minimum standards for the position

· Purpose: to keep the PRC standard fairly easy to meet

· For EE’s pretext, however, relative qualifications become more relevant

o Age discrimination case: for comparator evidence, what if EE was in a protected class and was discriminated against b/c of his age, but someone in the same protected group was hired?

§ It’s important to view the diff. in age range. If P was 60 and new EE was 40 was hired, then P still has claim for discrimination. However, if P was 43 and new EE was 40, the claim is weaker

Comparator evidence:

· McDonnell said that this is the most compelling evidence, but is not required.

· Means that a similarly situated person outside the protected class was treated better.

· Many circuits courts use this as a critical fourth element of PRC – if you don’t have it, could ruin PFC. But it depends on what circuit you’re in (DC circuit has rejected it in PRC)

· Problem: what does “similarly situated” really mean?

· Problem: no similarly situated individual can be identified

o For example: it may be difficult in sex discrimination cases b/c gender stereotyping still exists (ex.: nurses and secretaries are traditionally filled by women, but there’s still a lot of gender segregation)

· Some courts require it in precedent, but not in statute

· Comparative evidence example: sometimes a women will be her own comparator when she becomes pregnant (diff. treatment before and after pregnancy)