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

Employment Discrimination Outline

Dubal – Spring 2017


Introduction to Agencies:

At the federal level there are two types of agencies:

Independent agencies: headed by multimember groups from both political parties that serve specific terms

Are not terminated or fired, can only be removed for some cause

Executive agencies: headed by individuals that the president appoints and serves at the discretion of the president

EEOC (Equal Employment Opportunity Commission):

An independent agency started in 1965 to prevent the politicization of how civil rights are enforced

Has the authority investigate and file lawsuits in the interest of the public
If the employer that is being sued has more than 15 employees, must get permission from EEOC before filing case in federal court
Administrative exhaustion: principle that says that π must first file claim w/ EEOC and exhaust all administrative options before going to an attorney

The Default Rule of Employment: At Will Employment

Any employment contract that is not for a definite time period is terminable at the will of the employee or employer (for no/good/bad reason)
An employee can be dismissed by an employer for any reason (w/o having to establish “just cause” for termination) and w/o warning
2 Exceptions:

1) Are statutorily created (like disparate treatment) OR
2) Government and union employees can only be fired with cause


Title VII of the 1965 Civil Rights Act:

Makes it unlawful for employer to refuse to hire, fire or discriminate any individual w respect to compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex or national origin

42 USC § 1981

Same as Title VII for out purposes
No size minimum, and independent contractors can bring suit

Age Discrimination in Employment Act (ADEA)

Theories of Employment Discrimination Litigation: Types of Claims

Individual Disparate Treatment

Requires intent!
Single Motive + Circumstantial Evidence
Mixed Motive

Systemic Disparate Treatment

Requires intent!

Disparate Impact

Intent is not required!
Some of the most controversial employment discrimination cases, but also some of the most effective
Damages are limited… but this is all about changing practice

Not about getting money from the business but changing it

Examples: Employment test given that unintentionally has a disparate impact on a protected category of people

Often firefighter or police officer cases

Police exam that is facially neutral but the ones that pass the exam are disproportionally white


For an Individual Disparate Treatment case, π must prove:

That there was intent to discriminate by the employer;
An adverse employment action; and
Causation (discriminatory intent was the cause of the adverse employment action)

1. Intent:

Employer may not discriminate because of a protected status under Title VII
Must prove employer is discriminating because of the P’s protected status
Direct evidence: if believed, proved the question w/o drawing any inference
Slack v. Havens (1975)

Facts: Black women employees were asked to do the cleaning (it wasn’t part of their job)- but not the white woman. Supervisor made derogatory comments about “colored people”- showing his state of mind.
Holding: πs needed to show that ∆ made black women do work because they were black, and they did.

2. Adverse Employment Action

Employment is key: π must be an employee of ∆
Adverse action must arise to the level of “material difference”

“Material” = denial of promotion, firing, refusal to hire
Courts often look at economic impact to judge material difference

Constructive Discharge:

If employer’s conduct was so severe as to lead a reasonable employee to quit (using objective standard)

Hishon v. King & Spalding (1984)

Facts: π was hired as associate at ∆’s law firm
Rule: Employer can violate Title VII by discriminating w/ regard to explicit or implicit contractual provision.

Even if it wasn’t written, it was an understood idea as a term of her employment

Holding: being considered for a partnership was “material” as it was contractual provision she was entitled to

Minor v. Centocor, Inc (2006)

Facts: New supervisor increased π’s workload without pay, π sued under Title VII for both age and sex discrimination.
Reasoning: Although it was a material adverse employment action, this did not show discrimination bc π was not required to work longer hours for the same pay than younger or male employees.
Holding: “Material difference” has to have an economic impact

3. Causation

Employees protected trait must actually play a role in the adverse employment action and have a determinative influence on the outcome.
Hazen Paper Co v. Biggins (1993)

Facts: π employee fired at age 62, weeks before his employee pension benefits plan would have vested. π said that ∆ violated ADEA
Different than Slack v. Havens: In Slack, ∆ made comments about colored people being good at cleaning. Here, these comments are not directly tied to the work…


McDonnel Douglas Corp v. Green (1973)

Facts: π was a black mechanic working for ∆ when he was laid off. π claimed he was laid off bc the company’s hiring and firing practices were racially motivated. π protested by illegally parking cars to block the roads to the plant w other protestors. ∆ advertised for qualified mechanics and π reapplied but was not hired due to “his involvement w/ protests.”
Holding: Court held ∆ was not required to rehire π after his deliberately unlawful activities. π on remand must show that ∆’s reasons regarding the unlawful activity were merely a pretext.
This is a very important case for developing a prima facie case and burden shifting!

The Order and Allocation of Proof:

π’s Prima Facie Case
∆’s Rebuttal
Evidence of Pretext

1. π’s Prima Facie Case

Prima Facie, as defined by law dictionary:

A case sufficient on its face, being supported by at least the requisite minimum of evidence, & being free from palpable defects. State of facts that entitles a party to have

get away with it by blaming it on another agent (a “blind HR person)


Mixed Motive Disparate Treatment:

When one motive of the employer is lawful and one is unlawful, π can still show discrimination as motivating factor in adverse employment action.

P would bring Mixed Motive case if there isn’t a lot of evidence of pretext… Don’t have to show evidence of pretext.

Civil Rights Act 1991: Added 703(m) & 706(g)(2)(b) to Title VII

Amendment to the 1964 Civil Rights Act
Price Waterhouse made it easier for plaintiff to win(?)
This further liberalized what Price Waterhouse set up

On Exam:

If deciding whether to litigate under IDT of MM case…. Go through facts and analysis of both!

Would turn on if there is a lot of evidence of pretext. If empR clearly had strong intent to discriminate, or shifting stories about why they fired empE, then IDT case is better…. If more bias and no good pretext, then do MM!

P can use either direct or circumstantial evidence (Desert Palace)

Exception: direct needed for MM ADEA Cases (Gross- P fired bc of age)

Causation only needs to be a substantial motivating factor

PwC v. Hopkins- principal case. not promoted bc “interpersonal skills” shows mixed motives… see below

P shows PFC, D liable unless D can show “same decision defense”

Same Decision Defense: (Title VI, Sec 706(g)(2)(b))

Leads to limited remedy for the P, no damages, no injunctive relief
But empty can be reinstated

Price Waterhouse v. Hopkins (1989)

Facts: Female employee claimed she was postponed promotion to partnership at the firm for two years in a row based on sex stereotyping against her gender nonconformity. Co-workers described her as aggressive, demanding, impatient and needed a course in “charm school.” Her supervisor told her that to qualify for a promotion she had to be more feminine.
Mixed motive and stereotyping case, which requires ∆ to show they would have made same decision outside of the protected trait and (in this case) that they would have made the same decision if she were a man.

Court shifts burden of proof to ∆ to show it would have made the same decision anyway; inferred from the case: the need for direct evidence (if believed, direct evidence will establish discriminatory intent without a need to infer)

Price Waterhouse is no longer the standard after Civil Rights Act of 1991-

What remains important about PW is that you can use stereotype theory as direct evidence!