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Employment Discrimination
University of California, Hastings School of Law
Grodin, Joseph Raymond


I. Title VII of Civil Rights Act of 1964, as amended by Civil Rights Act of 1991

A. Coverage and Procedure

Entities Subject to Title VII: Not an Employer:
• Employers and their Agents, §701(b): • Federal Govt. or govt. corps.
– Person (§701(a): almost any entity, incl. state/local govt.) (same prohibitions, different
– Industry affecting commerce (e.g., buying supplies enforcement mechanisms §717)
from out-of-state companies, traveling for business) • Indian Tribes
– ≥15 employees (on the payroll for ea. day in ≥20 • Bona Fide Membership Clubs
calendar wks. in the current or preceding calendar yr.)
• Employment Agencies (procuring employees for an employer)
– Not newspaper that lists advertisements
• Labor Unions

Persons Protected: Not Protected:
• Employees • Independent K’er (look at right to control, benefits)
(“any individual”) – NDIll: Lawyers are employees because of firm’s right to control, firm affected commerce by (EEOC v. Rinella & Rinella)
– Temp. employee counts toward 15 if on payroll at beg. of month
• Partners / Shareholders
– SDOhio: Employee if partner in name only w/o powers of a partner (Simpson v. Ernst & Young)
– SCt: Advancement to partner may be term, condition, or privilege of employment (Price Waterhouse v. Hopkins)
• Aliens employed outside of U.S.
• Employees in foreign countries where prohibited by local law
• Elected officials, their personal staff, and policy advisors

EEOC / Procedure for Obtaining Remedies:
– Independent agency (not part of any department)
– Five members (only three can be from each party) appointed by President / confirmed by Senate
– Staggered five-year terms of office (one member’s term expires each year)
– President can only replace a member when his term expires except for cause
• EEOC Powers:
– Investigates claims made by anyone:
– May decide claim lacks merit or that there is reasonable cause that a violation occurred
– If reasonable cause for claim, EEOC attempts conciliation
– If conciliation fails, EEOC may file suit itself or on behalf of the employee or issue a “right-to-sue” letter (which is also given if EEOC finds no cause for the claim)
– EEOC has no authority to hold hearings (except for federal employees) or issue orders
– EEOC has no authority to issue binding regulations under Title VII, only Interpretive Guidelines (does have authority to issue regulations to carry out ADA and ADEA)
• State Deferral Agencies and Suits by Individuals:
– P must first file with state or local employment discrim. agency (if there is one); it has exclusive jurisdiction for 60 days – then P can file EEOC claim (EEOC will refer complaints to the state agency)
– Can sue under both federal and state law in either federal or state court
• Class Actions: Govt. may file for pattern or practice discrim. §707

A. Coverage and Procedure (cont.)

Statute of Limitations:
• If no state deferral agency:
– EEOC claim must be filed within 180 days of discriminatory occurrence
• If state deferral agency:
– (must allow state agency its 60 days of exclusive jurisdiction)

hout undue hardship)
• National Origin
• Sex §701(k) (amend by PDA to include pregnancy, childbirth, and related medical conditions)

Unlawful Employment Practices §703(a):
• Failure or refusal to hire
• Discharge
• Discrimination with respect to compensation, terms, conditions, or privileges of employment
• Limiting, segregating, or classifying employees so as to deprive them of employment opportunities

Defenses Available to Claims of Unlawful Employment Practices under §703:
• BFOQ for sex, religion, or national origin §703(e)(1)
• Religious discrim by religious institutions §703(e)(2)
• National security (maybe unconstitutional) §703(g)
• Bona Fide Seniority or Merit System §703(h)
• Pref. to Native Amer. by business on or near Indian reservation §703(i)
• No mandate for affirmative action (not a ban, but not a requirement) §703(j)

Employment Practices Prohibited by §704:
• Retaliation (for opposing any unlawful employment practice, making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing)
• Publishing / printing an advertisement related to employment based on race, color, religion, sex, or national origin (except when religion, sex, or national origin are a BFOQ)