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Employment Discrimination
University of Connecticut School of Law
Bauer, Jon




I. Policy Bases for Regulation

A. Introduction

a. It is impossible to understand the regulations without understanding the underlying policy goals

B. Discrimination and the Free Market

a. The real question is why the free market allows discrimination to continue when an employer who chooses to discriminate contracts the pool of available labor making it more expensive. Furthermore non discriminatory employers will be able to choose from a cheaper pool of labor and therefore be more competitive.

b. Some economists have argued that in the long run the market will eliminate discrimination if the government does not intervene.

1. Tastes – Theory advanced by Becker that some employers have a taste for discrimination which they are willing to pay to indulge.

2. Statistical Discrimination – With imperfect information employers rely on group characteristics to predict individual characteristics. This assumes that employers differentiate among groups for “benign” profit maximizing motives.

i. In the end only accurate inferences should remain

ii. The worry with this is that stereotypes can lead to proper inferences based only on historical discrimination

3. Sorting and Search – Richard Epstein combined elements of both taste and statistical models.

i. Epstein argues that discrimination is just firms response to sorting problems

ii. Employees may have a taste for a homogeneous workforce and keeping things in that manner is a way to minimize conflict between employees

iii. “a rational means of avoiding employee conflict”

4. Status Production – In this model members of one group invest in elevating the status of their own group by subordinating other groups.

i. This Model is unique because it focuses on a group rather than an individual discriminator

C. Why Prohibit Discrimination?

a. Opponents of the Civil Rights Act argued that prohibiting discrimination infringes on the freedom to associate. In this view discrimination is not wrongful it is merely people choosing with whom to associate.

b. In 1963 Judge Bork said the only thing uglier than discrimination is trying to legislate it out of existence

II. Historical Origins

A. Origins of Title VII

a. States passed anti discriminatory laws – not very effective mostly northern states

b. Brown v. Board of Education made way for the Civil Rights Act

c. Also other acts of civil resistance: Organized movements, sit ins, Election of 1960 President Kennedy (Huge Black voter turnout)

i. But once Kennedy got into office he backed off of racial legislative initiatives

B. PBS Video “Eyes on the Prize”

a. Birmingham Alabama was notorious for its segregation and racial hatred

b. Activist led desegregated bus rides as protest, there were retaliatory bombimgs

c. Albany Movement – unsuccessful, Kind depressed

d. Birmingham Protests – 21 arrested the first day, demonstrations affect local community and businesses, Federal government thought the protests were ill timed. King was jailed over 1,000 children were jailed on a day of preotest all prompted Kennedy to take a stronger stand on Civil Rights, he pushed for a new Bill.

III. Title VII (Page 437 In Supp)

A. Statutory Scheme: Structure and Substance

1. §701 (a) – “Persons” one or more individuals, governments, governmental agencies, political subdivisions etc.

2. §701 (b) – “Employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

i. But does not include (1) The United States a corporation wholly owned by the government of the United States. (2) An Indian tribe (3) Any private club exempt from taxation under 501(c)

3. §701 (f) – “Employee” means an individual employed by an employer

i. Except that it shall not include any person elected to public office in any State or Political subdivision of any state

4. §703 (a) – Employer Practices

i. (1) It shall be an unlawful employment practice for an employer 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,

ii. (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.

5. §704(a) Other Unlawful Employment Practices

i. It is unlawful for an ER to discriminate against any of his EE’s or applicants

B. Intent to discriminate – In Teamsters v. U.S the court laid out a definition of disparate treatment discrimination as distinguished from disparate impact

a. Elements of an individual disparate treatment case

(1) The employer intended to discriminate

(2) The employer took an action that had an adverse affect on the individual’s employment

(3) The employer’s action was linked to its intent to discriminate

c. Minor v. Centacor – medical sales rep forced to take on more work with new supervisor which amounted to 25% more work

i. Even if there is adverse employment action that is not sufficient to show discrimination violating a statute. Must show discriminatory animus that led to the adverse employment action. Lack of intent, couldn’t show it was because of sex.

d. Enownbitang v. Seagate – Applicant with lower GPA than threshold

i. The burden of proof for proving an employer’s rebut of PFC is pretextual falls on the plaintiff

ii. Could still do work without a computer didn’t amount to adverse action

IV Remedies

A. §706(g)(1) – if the court finds that the respondent has intentionally engaged in unlawful employment practice in the complaint the court may enjoin respondent from that practice and order such affirmative action as which may include reinstatement or hiring of employees with or without back pay or o

then must shift to the employer to articulate some legitmate, non-discriminatory reason for employee’s rejection”

iii. “Respondent must be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext” – in this case such evidence would include that white employees who were involved in the stall in were also rehired

iv. Plaintiff has ultimate burden of persuasion after the PFC ER has burden of production

e. Patterson v. McLean Credit Union – petitioner sued her ER for discrimination for failure to promote her, lower court instructed she failed to show she was better qualified than the white woman selected in her place

i. Plaintiff must only prove a PFC, once done there is a presumption of discrimination. Employer can rebut this presumption but the EE still has the ability to proffer any type of evidence that those reasons were not the true reasons not just that the ER was more qualified.

ii. Past incidents of racial harassment or use of racial slurs could suffice.

f. Ash v. Tyson Foods, Inc. – to use qualifications as a pretext argument the qualifications must be “clearly superior”

i. qualifications must be “clearly superior” if qualifications are used as a pretext

g. McDonald v. Santa Fe Transportation – Two employees were jointly and severally charged with stealing cans of antifreeze, the African American EE was retained, the other white EE was dismissed.

i. The court rejects the argument that this is similar to McDonnell because it involves disciplinary action because here one employee was retained

ii. Also Title 7 does apply to white people after consulting legislative intent

h. Reeves v. Sanderson Plumbing Products Inc. – 57 year old worker was accused of incorrectly recording attendance information he was dismissed and alleged this was pretextual.

i. When a P alleges disparate treatment “Liability depends on whether the protected trait actually motivated the employers decision – in this case the EE’s age must have played a role in the ER’s decision making process and had a determinative influence on the outcome.

ii.The ultimate burden of persuading the trier or fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff

iii. Rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. Aka just because the employers given reason isn’t true does not mean its discriminatory.