1. Intro & Context
a. Survey of Racial Attitudes, US Army (1942) W
b. Implicit Attitude Test
c. Employer Response to Racial Names W
d. Amy L. Wax, The Discriminating Mind: Define It, Prove It W
e. Crawford v. Indiana Harbor Belt Rrd Co. (“compromised worker”/comparison evidence) W
i. Facts: Eight reprimands in the first year of work that led to her being fired. She claimed that she was wrongfully terminated on the basis of her race and sex. Firing discrimination (like hiring) is also hard to prove, yet the P would have some “inside” knowledge as to the inner-workings of the company and the treatment of similarly situated parties. Here it is “white guys did the same stuff as I did, were retained here I was fired.”ß this is certainly a valid cause of action under a disparate treatment theory. However, In this case there were 10 comparable workers that were fired and only two that were not. Note also that in the compromised P situation, the P is often someone who deserved what they got, making them much less sympathetic.
ii. Comparability Test: Posner (7th Cir) says in material respects (other Cir. go to “virtually identical” although 8th Cir. requires less comparability). These standards are very strict (i.e. can’t have more than six months seniority, must have done the same thing as the P did)
iii. We should find exactly what the comparable infractions/characteristics/actions are. Find where the threshold is. Yet finding comparable employees can be extremely difficult.
iv. Note that hiring and firing liability are “at war” with each other. People in the protected class less desirable to hire (because they are more difficult to fire). Does this really help break down the barriers that Title VII seeks to remedy? The easier you make it to prove discrimination at the firing stage, the worse the effect is going to be at the hiring stage.
f. Mark Walski, Trial Practice Attorneys Should Get Objective View Of Clients’ Testimony, Judge Advises, 28 BNA EMPLOYMENT DISCRIMINATION REPORT, June 13, 2007 at 772
g. Boyd v. State Farm Insurance Co. (“direct” evidence: stray remarks”) W
i. Facts: supervisor called him “Buckwheat” and “porch monkey”, P complained, he was given a low performance eval., he was not promoted and P complained to the EEOC. P argues that he was not promoted (retaliation) and wrongfully terminated because of his leave of absence. Ct. assumes P established a prima facie case.
ii. Stray Remarks- dist. ct. saw the remarks as isolated incidents. “Title VII is not a civility code” is often said in these cases. Courts tend to not buy the argument that a stray remark is a brief insight into who the actor really is.
iii. “Same Actor Inference”- where it is the same person that hired you that made the discriminatory comment, there is a presumption (unless there is evidence to the contrary) that the firing was not racially/sexually motivated. Proud v. Stone- 4th Cir. picked up on Siegleman’s comment in a paper and most circuits have followed suit. However, this statement has been made somewhat off-hand and it really doesn’t reflect how things may work in the real world.
iv. LNDR: AWOL for ten days.
v. Pretext: 1. Initially his status was on medical leave, but it was changed to AWOL; 2. White workers were AWOL without getting fired. However, D produced unrefuted evidence that white employees were terminated because of AWOL status
vi. Court grants summary judgment because: 1. the evidence taken as a whole does not create an issue of fact as to whether the employer’s racial animus was what actually motivated the employer; and 2. created a reasonable inference that race was a determinative factor in the actions of which P complains. The problem is that the evidence is often in the head of the employer (kind of accentuates the idea of P’s uphill battle).
vii. EVIDENT JUDICIAL BARRIERS: (1) Comparison Evidence (similarity); (2) Direct Evidence; (3) Same Actor Inference
h. Laura Beth Nielsen, et al, Contesting Workplace Discrimination in Court W
i. (this represents the most-recent and best systematic overview of the data on employment discrimination litigation in federal courts: A of the findings are in the form of charts, so the length is deceptive, and you can just skim for the main findings/ideas).
2. Individual Claims of Intentional Discrimination-1: Intent/Adverse Action
a. Who is covered by Title VII: 15 or more employees; P probably has to be an employee rather than a partner.
b. Slack v. Havens (intent to discriminate), 1-9
i. Facts: Four black women brought action alleging that they were discriminatorily discharged due to their race. The plaintiffs worked in the factory’s bonding and coating dept., although one was on loan to another dept. Polasky told them that regular operations would be suspended and they would engage in an intensive general cleanup. The three protested, yet upon arriving to work with a white co-worker the next day, they were told they had to do it. The white co-worker was excused to another dept. and the fourth black plaintiff was called in from another dept. All four protested and Polasky said that the would do the work “or else.” Furthermore, it was uncontradicted that he said something to the effect that, “Colored people should stay in their place.” They were all fired, but at a meeting the following day they were offered reinstatement if they would do the cleanup work. The white co-worker was never asked to participate in the cleaning.
ii. At will employment- employer’s can fire you for something that you refused to do, even though it wasn’t in your job description, so long as its not because of race, religion, sex, etc. They also cannot give job assignments based on these characteristics (terms, conditions or privileges/adverse effect).
iii. What if Polasky, once they protested, caved in and said they don’t have to clean? Probably wouldn’t be a viable action as there was no material adverse action.
iv. The Court finds disparate treatment. D attempts to disown the supervisor’s state of mind and arguably discriminatory conduct as immaterial and not causative of P’s discharge. However, 42 USC 2000 expressly includes “any agent of the employer within the definition of employer.” Also, there was a definite causal relation between the supervisor’s apparently discriminatory conduct and the firings. Furthermore, by backing up the supervisor’s ultimatum, top management ratified his discriminatory conduct.
c. The “Core” of Title VII: 703(a): it is “unlawful employment practice” to:
i. fail or refuse to hire or to discharge or otherwise discriminate against any individual… because of… race, color, religion, sex or national origin; or
ii. to limit, segregate, or classify 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.
d. Minor v. Centocor (Adverse Action Element)(18-21)
i. Facts: Minor was a sales rep. for Centocor. When Siciliano became her supervisor he required that she increase visits to accounts, resulting in a 70-90 hour work-week. After two months she developed atrial fibrillation and depression. She later stopped working. She attributes her medical problems to the supervisor’s demands and contends that these demands reflected sex and age discrimination.
ii. Dist. Ct. holds that she did not establish a prima facie case because there was not “adverse action” taken by the employer- she was not fired or demoted.
iii. App. Ct. holds that although t
i. Black mail guard at prison halfway house got into fights with his supervisor. He was ultimately discharged for threatening his boss although there were a number of other demerits that he had accumulated.
ii. He argues that he was fired because of his race. Employer give LNDR that he was not fired because of his race, but because he attacked his boss. At the pretext stage he disproved the LNDR. Scalia wrote that this is not sufficient, even though he disproved the LNDR, he must still prove that there was a discriminatory reason. (Was Scalia asking for the impossible? Pretext-plus?).
b. Reeves v. Sanderson (order of proof) 78 (Overturns the pretext-plus of St. Mary’s)
i. Facts: Plaintiff worked as a manager and oversaw the time that employees were working. An accounting indicated that there was some loss to the company resulting from mismanagement. The company investigated and found that the plaintiff as well as a co-worker and their supervisor were responsible and fired the plaintiff and supervisor. The plaintiff sued alleging age discrimination.
ii. LNDR- He made numerous job errors and misrepresentations. However, P rebutted these reasons and the jury inferred the LNDR was pretext.
iii. Pretext Rule- A jury may infer that an LNDR is pretext by the falsity of the LNDR.
iv. After all, part of what we want to do with the LNDR is to smoke out what the plaintiff has to disprove. Hicks seemed to defeat the purpose behind the McDonnell burden shifting scheme.
v. Where we now stand is that if you can refute the LNDR, you stand a good chance of winning.
vi. LNDR- what rule does the “legitimate” play in this phrase? Your legitimate reason can be illegal (see e.g., Biggins infra, reason was a violation of ERISA, but not barred by the statute under which the plaintiff is suing)
c. Price Waterhouse v. Hopkins (rejected partner, mixed motives), 32-47
i. Facts: Woman is up for a partnership at the accounting firm. The firm gathers information concerning how other partners feel about it. She was the only woman up for partnership. She was put on hold. Some of the partners made pretty sexist comments- saying, “she is aggressive, harsh to staff, not feminine enough (opinion), she should go to charm school (opinion), she should where more make up (opinion).” She alleged sex discrimination.
ii. Prima Facie Case? Obviously
iii. LNDR: P’s behavior towards staff and co-workers
iv. Pretext: Pretext- P has to show that the LNDR is a pretext. There are all sorts of statements concerning how the partners felt about promoting a woman. Because there are mixed motives to deny her promotion, she has to show that the real reason is the sexist comments, and she can’t prove it. Pretext means “was the reason one or another?” here it is “both”. Thus, McDonnell framework cannot control.