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Employment Discrimination
University of California, Hastings School of Law
Dubal, Veena B.

Employment Discrimination – Spring 2016 – Veena Dubal – Zimmer 8th Edition
1.   Overview of anti-disc. laws and theories of equality.
A.      Federal Statutes Designed to Limit Workplace Disc.
                     i.            Title VII OF THE CIVIL RIGHTS act of 1964. (All races, including white)
                   ii.            Family and Medical Leave Act
                 iii.            Age Discrimination in Employment act of 1967: Doesn’t protect everyone, only meant to protect older workers from discrimination. (Different from title 7)
                 iv.            Americans with Disabilities Act 1990.
                   v.            CIVIL WAR RECONSTRUCTION STATUTE = 42 U.S.C. §1981: Equal protection under the law for all citizens. (All races, including white).
B.      Statutory interpretation: Understand how laws are interpreted and by whom.
                     i.            Relevant sources of Statutory Interpretation
                   ii.            How legislative, judicial, and administrative interpretations of federal employment discrimination law work together.
C.       First Day Readings
                     i.            Krieger: Content of our categories.
1.       Case of Salvadorian man who was treated differently than those of a different race. The employer stated he harbored no ill will and insisted that he was not racist, however the π was sure that his actions were motivated by race.
a.       Disperate Treatement analysis is based on the assumption that people are motivated because of the race of another. She questioned if discrimination manifests itself as intent or motive, or more just about assumptions we all have about certain types of people. Unconscious Bias.
                                     i.        She suggests that a large number of biased employment decisions result not from discriminatory motivation, as current legal models presume, but from a variety of unintentional categorization-related judgment errors characterizing normal human cognitive functioning. Because of the lack of fit between the present disparate treatment model and the phenomenon it purports to represent, courts and litigants are presented with a confusing array of increasingly ill-defined and questionably premised analytical paradigms. Worse, as currently constructed, it may be exacerbating intergroup tensions and inflating both social and financial adjudication costs.
                   ii.            Sturm: Second Generation Employment Disc:
1.       First generation employement Disc = hiring practices. Exclusion, segregation of job opportunities and open stereotyping. Dominant majority vs. women and people of color. It was deliberate and open.
a.       First generation discrimination has easy solutions. You set up rules and back pay to avoid further disc and apologize for already occurred disc. BUT DID NOT SOLVE INTRA-ORGANIZATIONAL DISC.
2.       Second Gen = Subtle, interactive, and structural bias. Exclusion of non dominant groups, horizontal harassment. Unprofessional vs. Discriminatory and it depends on the context.
a.       Unequal outcomes from unequal treatements, and is often solved through regulations and HR depts.
b.       Rules can’t cover all types so it’s hard for 2nd generation disc to be solved because internal regulation is often not enough. Also, business have an incentive not to collect info because it could be damning to them in a court case.
                                     i.        Courts use context based problem solving. For example sexual harassment has employers strictly liable. Subjective employment practices weigh necessities of action against harm. There is a focus on the decision making process.
D.      Individual Agencies: and Why the EEOC still Matters
                     i.            Administrative Procedures act governs agencies and identifies the procedural laws they must follow.
1.       Independent Agencies: Bi partisan, less under direct control of the president. EEOC, FEC, SEC.
2.       Executive Agencies: Under direct control of the president and executive branch. DOJ.
                   ii.            EEOC: Equal Employment Opportunity Commison: Independent Agency with 5 Members and a General Council.
1.       ADMINISTRATIVE EXHAUSTION CONCEPT: Must go through all EEOC avenues before you bring suit (and then they bring it for you often).
2.       Enforce title 7 and Civil rights acts. They are they master of the case, not just an employee advocate. Created by TITLE 7 at the same time. Goal is to eliminate unlawful employment discrimination.
a.       Focus on Disperate Treatement and disperate impact cases (Facially neutral policies/practices)
3.       Equal Employment Opportunity act 1972 – Gave them the right to sue. (Before they could only do investigations and hand off to the attorney General).
a.       More and more cases in the 80’s and 90’s.
4.       1995: National enforcement plan: 1) Preventing through education 2) Voluntary resolution of disputes, 3) strong and fair enforcement.
E.      INTERSECTIONALITY: If you have 2 things that make you a minority (like a 1) woman, 2) of color). then you have less than ½ the chance to have a successful claim.
                     i.            Ex) A black woman sues you, but you can say oh no we hire black people (black men) and we hire women (white women), so while you don’t discriminate against black men or white women, you do discriminate against black women.
Individual DISPARATE treatment
1.   disparate treatment theory. Current standard = Reeves.
A.      INDIVIDUAL DISPARATE TREATMENT: Exceptions to At-will employment (can be fired @ any time for any reason).
                     i.            Elements to prove: BURDEN OF PROOF IS ALWAYS ON PLAINTIFF.
1.       Intent to discriminate
2.       Adverse employment action
3.       Causation (Element 2 happened because of element 1).
                   ii.            Prima Facie Case:
1.       A) Π is in a protected class, B) π is qualified for job, C) π suffered an adverse employment action, D) Circumstances raise inference that it was due to discriminatory intent.
                 iii.            ∆’s Rebuttal: Must bring a legitimate, Non-discriminatory reason for adverse employment action. They have the burden of production of evidence to show this legitimate reason for adverse action.
                 iv.            Π Must show Pretext: ∆’s reason given is not true reason for action taken, AND discrimination is the real reason for ∆’s action.  (PRE REEVE’S STANDARD)
1.       Ex – Prior poor treatment of π because of protected status (mcdonnell Douglass), bad statistical evidence regarding representation of women and/or minorities at place of business, failure to follow normal procedures in filing a position, irrational behavior v. Business judgment, shifting reasons for rejecting the plaintiff/employers dishonestly. (reeve’s) Tray remarks or evidence from the prima facie case relevant to pretext.)
B.      FROM STATUTE: Under Title VII of the Civil Rights Act, 42 U.S.C.A. §2000e-2(a),
1.       “It shall be an unlawful employment practice for an employer– (1) to fail or 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.”
a.       §704(a): Prohibits retaliation against employees who oppose discrimination.
b.       703(m): Unlawful if protected class was Motivating factor even though other factors also motivated the practice.
c.       706(g)(2)(b): A court may limit relief where a “respondent demonstrates that they would have taken the same action in the absence of the impermissible motivating factor.”

7 Binds them to consider her for partner regardless of sex.
b.       LONG STORY SHORT: Anything that is a term benefit or privilege of employment can be basis of adverse employment action.
                 iii.            Minor v. Centocor: 2006: Rule: an increase in workload can be a material difference in the terms and conditions of employment and therefore may constitute an adverse employment action.
1.       π = Woman who was a sale representative. Her new supervisor required her to work 70-90 hours a week (previously had been 55) for the same salary (25% reduction in Per hour pay). She became depressed and had physical illness after doing that for 2 months and had to stop working. HOWEVER, she failed to show that it was only women or older workers who were required to do so, so it was not discriminatory.
a.       EX) Refuse to hire, no promotions, less pay for equal work, more harsh working conditions. Dignitary harm, hateful speech.
2.   Burden Shifting Framework (when no direct evidence) USE REEVES
                     i.            MCDonnell Douglas Corp. V. Green 1973: Rule: if a prima facie case of racial discrimination is rebutted by the defendant, the complainant must then show that the reason given for the rejection was pretext for discrimination.
1.       Π Green was a black man employed by ∆ for 8 years. He was laid off because of a reduction of the workforce occurred. He protested claimed racial discrimination by blocking the roads to the plant in protest. These protests were illegal, and he was arrested and fined for them. ∆ then began to look to rehire people for the same position π had been fired from, π applied but was rejected because of his participation in the protests. Court said he must have opportunity to show pretext.
                   ii.            Burden Shifting framework
1.       ORIGINAL BURDEN the π must show a prima Facie Case was met.
a.        Π is a member of protected class, qualified for the job, despite qualifications he was rejected, and afterwards they continued to look for applications.
                                     i.        Once this is met, it creates a legally mandated presumption in favor of π.
2.       THEN BURDEN SHIFTS TO ∆; must give legitimate non-discriminatory reason for not hiring him
a.       ∆ must provide evidence, not just an argument.
b.       Burden of production, not proof,
c.       Must be reasonably specific: Cannot just say “He wasn’t the best man for the job”
d.       Irrational or Silly reasons, If supported by evidence can be enough.
                                     i.        “I didn’t like the shirts he wore everyday” could be reason.
3.       THEN BURDEN SHIFTS BACK TO ∏ to show the reason is merely a pretext, and that the real reason was discriminatory.
                                     i.        WAYS TO SHOW PRETEXT: prior treatment of employee, employers general policy and practice towards racial minorities, employers reaction to legitimate civil rights activities.
                                    ii.        IF YOU CAN SHOW EMPLOYERS REASON WAS WRONG FOLLOW STEPS BELOW.