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


I. Intro

History of Employment Discrimination

Major Historical Developments in Employment Law in the US

– Civil Rights Act of 1866

o after civil war, Congress enacted this Act

o also 14, 15, 16 amendments

o SC took some of the gusto out of this Act

– Plessy v. Ferguson

o separate but equal

– 1954 Brown v. Board of Educ

o separate is NOT equal in education

o didn’t eliminate discrimination completely

– Civil Rights Act of 1964

o followed the heart of the Civil Rights Mvmnt in US

§ bus boycotts, sit-ins, freedom walk on Washington

**Title VII of the Civil Rights Act of 1964 (where the course picks up)


– race, color, religion, national origin, sex

At-Will Employment:

– an employee can quit or be fired for any reason at any time as long as it is not for an illegal reason

– Protected Classes are those which Congress & the President agreed these are illegal reasons to be fired.

What do we mean by the terms equality & discrimination? What should the law regulate?/When should it step in?

2 Major Themes in Equality

1. Equal treatment (formal equality)

a. “color blindness” & “sex blindness”

b. the protected classification should not have any effect on employment; treat everyone equal

2. Equal Opportunity (substantive equality)

a. recognizes racism exists

b. take race and other factors into account

c. to treat people equally sometimes we have to treat them differently

d. looking critically at the norm, if you use equal treatment you are ignoring the viewpoint from the “norm” is created

What do we as a society want to achieve in the law? and How do we achieve it?

Ricci-these 2 themes are in conflict

Are we “post-racial”?

– If not how do we describe what constitutes discrimination?

o discrete overt animus

§ using the protected class and making a decision based on it

o implicit bias/unconscious bias

§ shift from overt exclusion & animus to decisions people are making that are clouded by the classes subconsciously

§ disparity in pay, promotions

o structural, organizational norms and practices

§ structures and the way the organizations are set up discriminate as long as they stay in place

– How should we address these of relate to these?

How do we regulate discrimination?

Once we decide what to regulate how do legislators, etc put this into action? What role do the various agencies play in enforcing these statutes?

Sources of Law we will cover:

Federal Legislation

Title VII of Civil Rights Act of 1964





Case Law

Executive Orders



State & Local Legislation

(usually adds additional protections/categories)

Federal Legislation

§1981 – contracts and property law based on race discrimination

FMLA- § provision of leave for medical or family reasons

Title VI

Title IX

11th Amendment-limitations on cases against the state for damages based on racial discrimination

II. Overview of Laws

Administrative Exhaustion:

– many that we are not covering do not require admin exhaust.

4 we are covering do require admin exhaustion

– Title VII & ADA require

– ADEA is a little different

– Equal Pay Act does not

o can file a lawsuit w/in 2 years

o usually want to file a Title VII in conjunction, which would fall under the admin exhaustion requirement

Title VII 4 steps:

1. File a charge à 180/300 days (if have a state fair employment practices agency)

a. think of it as 180 days

b. within 10 days the EEOC/agency will send the charge to the employer

c. very important as to what you put in the charge; will be the basis for the claim in court (can’t bring any additional claims under these § if not included in the charge)

d. a lot of the procedure depends on the jurisdiction

e. not every FEP has an auto-exchange w/EEOC

f. no fees involved in filing

2. Conciliate EEOC/FEP(mediation) not always but sometimes & not required by §

a. try to get the parties to resolve the issues themselves

b. put it back on the parties; EEOC not involved

3. Investigation à ~ 6 mos.

a. ER is involved

4. Determination

a. 3 things could happen

i. No cause + issue rt. to sue

1. the EEOC is not going to take it any further, but you can file it in court now b/c you have exhausted the admin procedures

2. YOU CAN APPEAL A NO CAUSE DETERMINATION, but it is not a easy threshold

ii. For Cause

1. EEOC decides there is a basis for the claim

5. (Conciliationà if EEOC finds For Cause); required to offer by §, parties can decline

6. EEOC reviews it; if NO CONCILIATION

a. this is very rare

b. pursue it themselves

i. on half on the EE

ii. EEOC may pursue it themselves in general (remove a systemic discrimination process

c. USUALLY, issue the right to sue letter


– once the EEOC issues a right to sue letter (at whatever time in the process) the investigation is closed

– agencies have too many charges to review them all, sometimes good to request Right to Sue letter right away

7. EE must file claim in court w/in 90 days of receiving the right to sue letter


– complicated for lay people


– but it is a process for lay people b/c you DO NOT NEED a lawyer

– encourages reconciliation outside the legal system

Judicial Deference to the EEOC

– when Congress passed Title VII Congress gave EEOC power

– at first it was not much power

– was given greater power by §

– through Title VII Congress gave EEOC some guidelines

o can issue rules that come up as CFR (code of federal regulations)

o gave them procedural regulations as to how they should review a case

o for other agencies,

– THE EEOC issues procedural regulations for how you should use the §

– b/c the EEOC does not follow the same rule-making procedure courts can pick and choose when to defer to the EEOC

o enforcement guidance & interpretations

o interpretive guidance & interpretations

– even though the judiciary does not have to defer to the EEOC it still has a lot of power

Judicial Enforcement Section p. 38-39

1. § itself sets out when the person can file (w/in 90 days)

– but it is not clear when the 90 days starts

2. Right to Sue letter is not enough when filing the claim

– need to create a formal complaint that conforms to FRCP

3. EEOC can take on a case in its own name

– usually if it is a systemic case

How we define several key terms in Title VII

Ledbetter v. Goodyear Tire & Rubber Co. [π worked for ∆ for 20 years; claimed she did not receive the correct raises b/c of her sex]

Holding: π does not have a claim b/c the discrimination did not occur w/in the 180 required days


– π:

o based on her sex (and not dating her supervisor) she received unfavorable performance reviews

o b/c of these reviews she did not receive the same raises

o Policy Arguments:

§ EE should have more time when


1. Is her claim barred by the § of limitations?

2. When an unlawful employment practice occurred?

Ct Reasoning:

– look at precedent

– look at § itself

o review the intent of the drafters (Congress) of the §

– In response to the policy argument: we apply the § as written and therefore 180 days from act of discrimination


– π does not have a claim b/c the discrimination did not occur w/in the 180 required days

How do we reconcile the policy arguments?

– should the clock start when the EE discovers the discrimination reflected in pay is discovered?

What happened after the decision of the case?

– Congress enacted a bill to cover it


– how do we define race?

– who is included and who is not included?

St. Francis College v. Al-Khazraji-applies to more than just the white race

Arguments: ∆à π does not have a valid claim based on race

– he does not fall under the protected classififcation b/c he is under the Caucasian race; Iraqi descent is not distinct


– look @ historical definition of race over time

o from secondary sources (dictionary & encyclopedias) the definition of race does distinguish these classes

– § interpretation

o look @ legislative history

o figure out form the debates and history of the § if they intended for th concept of race to be broader

o didn’t intend for it to be based on what you look like à it is a broader concept

Should this interpretation apply under Title VII? What is different about this?

– difference § 1981 only 1 classification

– Title VII covers more classes

o BUT it is interpreted broadly as well

Whose perspective should matter when defining race?

– the perception of the person who is discriminated against

– EEOC-being perceived as a particular race and discriminated against b/c of it (even if you don’t identify w/that race)

Names: Leticia v. Jamal; John v. Emily

– can have an effect

– statistically less offers

– this should be protected, context of race based by perception of ER

Difference between color & race under Title VII

– relates to an issue of proof

– and who the discrimnation is being against/

pretty rare today

o “loose lips statement”

– circumstantial: allows the fact finder to make an inference

Single Motive Disparate Treatment

Disparate treatment, single‐motive: Per McDonnell Douglas (1973), Furnco (1978), Burdine (1981), Hicks (1993), and Reeves (2000):

1. Ee PFC: π burden of persuasion by preponderance of the evidence

1. belongs to racial minority à a member of the protected class

2. applied and was qualified à qualified or performing satisfactorily

3. despite qualifications, was rejected à experienced adverse employment action

4. position remained open for à circumstances giving rise to same qualifications an inference of discrimination often through comparator evidence

2. Er LNDR: Δ burden of production

3. Ee pretext: π burden of persuasion by preponderance of the evidence disproving LNDR may be enough for, but does not require, finding of ultimate inference of discrimination

McDonnel Douglas v. Green – est. burdens of proof framework


– π he was not rehired b/c of his involvement in the Civil Rights Mvmnts

– ∆ their decisions not to rehire him was based on his involvement in unlawful activity against them

Holding: π met the requirements for a PFC

3 steps Burden Shifting McDonnell Douglas:

– 1. EE PFC

– 2. ER LNDR

o must articulate a reason that is not insignificant for their action

o not a particular high burden


– 3. EE pretext

o EX of typically compelling evidence -person of different class was treated “better”

Furnco à per Furnco, merely articulate SOME LNDR

What was the companies hiring process?

– the co would hire an overseer and they would choose who would be hired

How did ER justify hiring practice?

– just trying to insure the best workforce possible

– people who are already trained and know what they are doing

– hiring at the gate would not allow them to screen properly

CT Reasoning:

– burden shifting is only meant to rule out unfavorable discrimination; not to remove an uneven distribution of races in the workforce

– rely on common sense

o our own experience that ER are rational actors

Burdine – there are 2 burdens of proof:

– 1. burden of production

– 2. burden of persuasion

o requires higher further proof

o on πàprove more likely than not

3 steps Burden Shifting McDonnell Douglas:

– 1. EE PFC (π burden of persuasion)

– 2. ER LNDR (∆ burden of production) (∆ burden of persuasion/low)

o must articulate a reason that is not insignificant for their action

o not a particular high burden

o PER Furnco, merely articulate SOME LNDR

– 3. EE pretext (π burden of pesuasion

o EX of typically compelling evidence -person of different class was treated “better”

Whats the advantage of setting up this way?

– to clarify the procedure

– narrows the issues

– acknowledgement that Er are unlikely to admit directly evid. &/or leave a paper trail

o way for someone to prove intentional discrimination, even if they don’t have direct evidence

– knocks out the obvious reasons that someone would be discharged, not hired, etc (unqualified, unsatisfactory work)

How the the LNDR stage help the Ee?

– it narrows the focus

– points out the “reason” the Er carried out the employment practice and then π can refute it

– frames the scope of what the Ee has to disprove at the pretext stage

o *sometimes if the Er gives one reason at discharge and another reason @ the LNDR stage could be evidence of discrimination

Doesn’t necessarily happen 1…2…3

– sometimes the Er response and the π cross examination of that response is enough to demonstrate pretext (p. 107 FN10)


I: How high of a burden is the ∆’s LNDR?

– Ct: it’s low, only a burden of production