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Employment Discrimination
University of California, Hastings School of Law
Reis, David J.

 
EMPLOYMENT DISCRIMINATION – SPRING 2010 – REIS

1.    individual claims of intentional discrimination
General Concepts

§ Historically, employment viewed as contractual and employer had freedom to choose
§ Examples of Statutes
§ OSHA
§ Minimum wage laws
§ Overtime regulations
§ Title VII is important because a lot of it has been incorporated into state laws
§ Burden of persuasion is always on the plaintiff (except in affirmative defenses)
§ Only the burden of production can be shifted
§ Individual disparate treatment requires intent. Can be proven through direct or circumstantial evidence – both are equally persuasive.
§ Plaintiff must exhaust administrative remedies prior to suing under Title VII
§ After-Acquired Evidence
§ Evidence that becomes available to the employer only have its adverse decision to P
§ Limited to the remedy state, where it potentially limits compensatory relief to P
§ Employer presumably motivated entirely by discrimination, but discovered legitimate reason after termination
§ Mixed Motive Cases
§ Employer motivated by both discrimination and legitimate reasons
§ Defense only available at remedy stage of case
§ Burden of production/persuasion shifts to the employer at the remedy stage
§ Mixed motive defense is distinguishable from pretext
§ Pretext: whether a legitimate reason operated instead of a prohibited one
§ Mixed Motive: whether a legitimate reason operated in addition to a prohibited one
§ Retaliation protects
§ Opposition to unlawful employment practices
§ Typically interpreted narrowly
§ Only construed broadly when dealing with the permissible aims of protest
·         In order to gain protection, the person engaged in opposition need only have a reasonable belief that the practice is prohibited by Title VII
§ Participation in enforcement proceedings
§ Construed to protect virtually all means of participation in enforcement proceedings
§ Any adverse action taken by an employer after an employee has commenced enforcement proceedings, or participated in them in any way, can support a clam of retaliation

Cases

PRIMA FACIE CASES

§ McDONNELL DOUGLAS CORP v. GREEN
§ (1) Complainant has initial burden of establishing a prima facie case by showing
§ He belongs to a racial minority
§ He applied and was qualified for a job for which employer was seeking applicants,
§ Despite his qualifications, he was rejected,
§ After his rejection, the position remained open and the employer continued to seek applicants from people of complainant’s qualifications
§ (2) Then burden is shifted to employer to give some legitimate, nondiscriminatory reason
§ (3) The employee must show that the employer’s reason was a pretext
§ Relevant evidence*
§ Employer’s treatment of employee during prior employment
§ Employer’s general policy and practice with respect to minority employees
§ Employer’s reaction to employee’s legitimate civil rights activities
§ Without a prima facie case, there is no cause of action

§ FURNCO CONSTRUCTION CORP v. WATERS
§ A prima facie case raises an inference of discrimination but does not equate to finding of fact.
§ F: Superintendent didn’t go through a formal hiring process, but hired through referrals/at the gate. Respondents claimed they weren’t hired because they were black.
§ A: No duty for a hiring procedure that maximizes hiring of minority employees. It is enough that the employer chose to hire in a way that enables him to achieve his own business goal.
§ ST. MARY’S HONOR CENTER v. HICKS
§ Proof of pretext require more than simply discrediting the defendant’s offered reason. It also involves proof that the defendant’s motivating reason was discriminatory.
§ It is not enough to disbelieve the employer. The fact finder must believe P’s explanation.
§ However, it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.
§ Dissent: this undermines the McDonnell framework because it forces the plaintiffs to disprove all nondiscriminatory reasons with the disadvantage of not having direct eividence.
§ Reeves v. Sanderson: Though establishing a prima facie case and showing the employer’s reason is false may be enough to permit the finder of fact to find discrimination, it does not require judgment for P.
AFTER-ACQUIRED EVIDENCE AND MIXED-MOTIVES CASES

§ McKENNON v. NASHVILLE BANNER PUBLISHING CO
§ In a mixed motives case, if the lawful reason alone would have sufficed to justify the firing, the employee can not prevail against the employer
§ In this case, the wrongdoing was not discovered until after she was fired, so the employer is still in violation of Title VII, but can use the acquisition of evidence to limit damages
§ Statute: §706(g)(2): enforcement provision allowing back pay
§ MT. HEALTHY CITY BOARD OF EDUCATION v. DOYLE
§ In a mixed motive case, the plaintiff must show that he discriminatory reason was a “substantial factor” or a “motivating factor” in the decision not to hire him.
§ PRICE WATERHOUSE v. HOPKINS
§ Though discrimination may have been a motivating factor, the defendant can make a showing it would have made the same decision in the absence of discrimination
§ Plaintiff must submit direct evidence that the decision maker placed substantial negative reliance on prohibitive criteria to shift the burden to the employer
§ Statutes:
§ §703(m): allows findings for the plaintiff in mixed motive cases
§ §706(g)(2): allows for declaratory or injunction relief, but not damages or reinstatement if employer proves they would have made the same decision anyway
§ DESERT PALACE
§ Turns over the “direct evidence” criteria in PWC and replaces it with “sufficient evidence.”
§ Case law was not a persuasive as statute because the issue was based on a statute
RETALIATION

§ BURLINGTON NORTHERN & SANTA FE RY CO v. WHITE
§ The anti-retaliation provision extends to any types of measures to discourage actions that would bring about discrimination claims
§ Prima Facie Case:
§ Plaintiff engaged in a protected activity.
§ Plaintiff suffered an adverse decision from the employer.
§ There was a causal connection.
§ Statutes: 704(a): anti-retaliation provision

Statutes

Title VII § 703(a): Employer practices
(a)   It shall be an unlawful employment practice for an employer
(1)   To fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2)   To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII § 703(m): An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or

ubsequent silence on the issue may indicate approval






§ ALBEMARLE PAPER CO v. MOODY
§ Test for Disparate Impact:
§ Plaintiff has burden of showing that the tests in question selects applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants
§ Burden shifts to employer to prove that its tests are job related
§ Burden shifts to plaintiff to show that the tests are merely pretext for discrimination
§ Statutes:
§ 703(k): disparate impact statute
§ 713(b): gives a safe harbor for employers for good faith
§ WASHINGTON v. DAVIS
§ A test that is neutral on its face, but has a disparate impact does not violate Equal Protection if it is relevant to job performance.
§ DOTHARD v. RAWLINSON (woman prison guard)
§ If the job-related quality that the employers identify is bona fide, its purpose could be achieved by adopting and validating a test that measures it directly.
§ A national average may be appropriate for comparison if an applicant pool may be inadequate by deterring people to apply to begin with
§ CONNECTICUT v. TEAL
§ An employer cannot use unrelated criteria to “tip the scales” after a valid test because it denies the opportunity to compete equally. A “bottom line” rule is an invalid defense.
§ Statutes:
§ 703(a)(2): prohibits practices that would deprive or tend to deprive any individual of employment opportunities
§ WARDS COVE PACKING CO v. ATONIO
§ Evidence of racial imbalance in the workforce composition is insufficient to prove disparate impact without comparison to the relevant job market and identification of particular employment practices.
§ Statute:
§ 703(k)(1)(A)(i): employer has final say because even if plaintiff can show alternative, nondiscriminatory methods, the plaintiff must show that the employer refused to adopt it
§ Civil Rights Act 1991

Statutes

Title VII § 703(a): Employer practices
(a)   It shall be an unlawful employment practice for an employer
(1)   To fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2)   To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII § 703(h): Seniority Systems; Ability Tests
It shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system, provided that any disparity is not the result of intentional discrimination.