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



Congressional delegation of rule making

Title VII: 42 U.S.C. § 200e-12(a) [§713(a)] à basically procedural rule making

“the commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this title…Regulations issued under this section shall be in conformity w/ the standards and limitations of the Administrative Procedural Act

ADEA: 29 U.S.C. §628

“…The EEOC…may issue such rules and regulations as it may consider necessary or appropriate for carrying out this Act”

ADA: 42 U.S.C. §12116

“not later than 1 year after the date of enactment of this Act…, the Commission shall issue regulations in an accessible format to carry out this title…”

– APA was created to put a check on administrative agency and create some sort of uniformity

What kind of deference should a court give to the agency when interpreting a federal statute?

– agency is working w/ the statute constantly so they should be given deference in deciding how the statute should work

– there is a role for these agencies to play a role with their expertise

– APA informal rule making

1) notice to the public of the proposed rule and public

2) comment period – where the public opinion is allowed to weigh in for an “adequate time”

3) incorporate & publish final rule 30 days before enacted

Determining the Level of Deference to Agency

*Court will first of all, look to the text of the statute and evaluate if Congressional intent was clear on the issue. If yes, apply the statute and the inquiry is over.

BUT if it’s ambiguous, ask these following questions:

(1) did congress delegate the agency the power to interpret the statute in question/rulemaking authority?

(2)What type of action is it? Did the agency follow the APA in making their interpretation/does the action have the force of law (i.e. adjudication//rulemaking)? (basically an analysis of whether the agency action is consistent with congress statute)

à note that the sort interpretation the court does on their own interpreting here

*if answer to both of these questions are yes, then the court should APPLY THEN CHEVRON DEFERENCE

* if answer is no to either or, then court should APPLY THE SKIDMORE DEFERENCE

Skidmore deference (EEOC)

– agency interpretation is not binding BUT body of informed judgment & experience

– weight of deference is based on

1. throughroness of consideration

2. validity of reasoning

3. consistency over time

4. persuasiveness

Chevron deference (ADA, ADEA)

– Where agency is acting w/ the force of law, this deference will apply

1) if congress has directly spoken to the question at issue, the Court should defer to a reasonable agency interpretation

Does it match up with congress’s intent? Is the interpretation reasonable?

à note that this is a greater level of deference from Skidmore

– “the question for the court is whether the agency’s answer is based on a permissible construction of the statute”(if statute is silent or ambiguous w/ respect to the issue)

Title VII: race, color, sex, national origin, or religion

ADA: disabilities

ADEA: age


Title VII – to achieve equality of employment opportunities & remove barriers that have operated in the past to favor an identifiable group of white employers over other employees

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

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

– race, color, religion, sex, national origin, age, or disability should not be a factor in an employment decision

– Treat everyone equally →No affirmative action programs!

(b) Equal opportunity (substantive equality): 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”

– 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

– Overt and discrete animus àtaking into account race, sex, etc. when employing/firing

– Implicit or unconscious bias à decisions people are making that are contaminated by bias

– Structural approachà structures reinforce elements of discrimination

In every employment discrimination case, there are two but separate issues:

1. Substantive liability: whether a ∆ has discriminated against an individual or class of individuals in violation of applicable law

2. Appropriate forms of relief: whether the victim is entitled to reinstatement, promotion, back pay, front pay, preliminary injunctions or attorney’s fees.

Enforcement, Coverage & Remedies

Administrative Exhaustion:

1. Title VII, ADA, ADEA à requires administrative exhaustion before the EEOC

2. EPA à does not require administrative exhaustion and you can file w/I 2 yrs (SOL)

Administrative procedure under Title VII and ADA (i.e. administrative exhaustion): EEOC enforces the ADEA; follow the same administrative exhaustion procedures as Title VII and ADA, with one very small difference: If a plaintiff wants to skip the EEOC investigation and request a right to sue letter to go to court sooner, an ADEA plaintiff can request a right to sue letter 60 days after filing a charge with the EEOC, whereas a Title VII or ADA plaintiff must wait 180 days to request a right to sue letter.

*Note: the ADEA applies to Ers of 20 or more Ees, while Title VII and the ADA apply to Ers of 15 or more Ees, and the remedies available for ADEA claims are different from those available for Title VII and ADA claims. (equitable and liquidity remedies)

**Title VII and ADA Employee can request right to sue letter any time after 180 days from the day charge is filed; ADEA can request in 60 days after filed**

Administrative Procedures:

1. File a “charge” within 180 days if filed w/ EEOC, and 300 days if filed w/ state agency authorized to grant or seek relief from employment discrimination from the date the discriminatory act occurred. (NOTE: In cases of hostile work environment, P can file their complaint within 180 or 300 days of any act that is part of the hostile work environment // Morgan)

a. Within 10 days, the EEOC will send notice and copy of the charge to employer

b. IMPORTANT → Basis for the complaint; if you don’t put it in charge, you are barred from bringing a claim.

c. If later something else happens, you have to file a new complaint (Ex: retaliation → charging date starts at first discrimination)

2. Mediation (conciliation) (voluntary system): Before EEOC looks at it, it will try to get the party to resolve issue

3. Investigation: If mediation fails, agency conducts investigation. Average time is 6 months. (the employer is involved in this phase)

4. Determination: agency will determine whether discrimination occurred

a. For cause determination: agency finds that discrimination was underlying cause of challenged action.

i. Agency Invites employer to settlement talks (conciliation)

ii. If conciliation doesn’t work, then EEOC can pursue case itself (but very rare) takes in small about of cases a year

1. Usually issue a right to sue letter.

2. Pursue themselves

b. No cause determination: agency determines that discrimination was NOT involved

i. Agency will issue a “notice of right to sue.” BUT not conciliation and EEOC won’t pursue (Key difference between cause and no cause)

ii. No cause (not going to take it any further) + issue right to sue letter–> have 90 days to file

5. Employee has 90 days to file a complaint in federal court after receipt of the right to sue notice from EEOC (706f1)

a. You need a right to sue notice (party’s ticket) to file a complaint.

6. EEOC will either take the case or close & issue the right to sue letter

Judicial enforcement (three important points)

1. Title VII sets out when party has to be notified and they give 90 days

i. If you help client (if an attorney is designated as agent), 90 days start when you, attorney, get right to sue letter

2. Right to sue letter is not a valid complaint (insufficient). Still have to file a legal complaint within 90 days (rule 8)

3. The EEOC can bring actions in its own name. EEOC can take on a charge itself (systemic cases/class wide cases).

i. When it chooses which cases to bring, they try and choose class wide cases

EEOC’s Authority (From Congress through Title VII)

1. Courts don’t have to defer to the EEOC, but EEOC has a lot of power in the administrative decisions/process

2. Two methods

a. EEOC procedural regulations to enforce Title VII, ADA, etc.

i. Supreme Ct. has given some deference to EEOC’s interpretations;

or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year (Title VII and ADA).

1. Employees are usually who is on the payroll

2. Not an issue about jurisdiction, but issue about whether one can file complaint

i. So even if one has fewer than 15 employee, court can’t say that they don’t have jurisdiction

(20 or more for the ADEA)

3. Integrated Employment Test: if employer has fewer than 15 employees, but is legitimately integrated with another employer who meet requirement under section 701, they are covered by title 7.

4. Know that if you are dealing with employer who has 7 or fewer than 15 EEs, know that they can be covered by Title VII under state laws; (like CA) applies to smaller employers. Otherwise, you’re screwed.

– Includes any agent or manager acting within scope of employment.

1. When supervisor makes decision for employer, employer is responsible

i. Can agents be held individually responsible? No. Supervisor making discriminatory decision → employer subject to liability, not the individual

Unlawful employment practice section 703 (a) 1

Meaning of Employment Practice: compensation, terms, conditions, or privileges of employment.

– If you make a discriminatory action in one of these areas, it can constitute discrimination

i. Hiring, firing, promotion, denial of transfer, discrepancies in the amount of work that is assigned (opportunities)


There are three broad categories of relief under Title VII (equitable relief, compensatory, punitive)

1. Equitable Relief (“make whole relief”) à (available for DT and DI)

– under the principle that a Title VII violation is designed to serve as a deterrence and compensation

– the presumptive entitlement rule allows victims of unlawful employment discrimination to be awarded w/e remedies are necessary to achieve rightful place and make-whole relief

i. Reinstatement: hire the fired employee in the job that she had or would have had but for the discriminatory conduct (unless it conflicts with the rules of seniority provision)

a) this will not happen if someone else already occupies the position (no bumping rule) OR if the relationship is too hostile OR if ER finds that after discharge, fired employee engaged in conduct which would justify dismissal

ii. Back-pay: to compensate victims of unlawful employment practices for the economic losses they have suffered from the date of the occurrence of the discriminatory act to the date of the actual entry of judgment on the liability or until the date the π finds comparable employment.

a) From the moment of judgment back from the date of discrimination but NO longer than 2 years prior to date EEOC complaint (if continuing violation or “affected by” pay claim

b) Not just wages. Includes all compensation that relates to back pay. Pensions, health benefits, bonuses, sick pay, etc.

c) Back pay can be offset by employment and whether π with rsbl diligence tried to find a job of the substantial equivalent.

d) Damages can be cut off if you get a job a month later that is better than your old job e) Back pay will not be offset by collateral sources (unemployment compensation/welfare)

iii. Front-pay: monetary amount to compensate for lost future wages (from moment of judgment to finding a new job)

a) Used as an alternative to reinstatement when it and compensates for “bumping”

b) Can be awarded under Title VII, ADEA, ADA, §1981 and Rehabilitation Act (not EPA)

c) Calculation of front pay: you have to provide proof of how long it will take you to get the position that you will be at