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Employment Discrimination
University of Connecticut School of Law
Siegelman, Peter

A. Background
      1. Post Civil Rights Era (after CRA 1964)
·         Before CRA 1964, discrimination was virtually legal – act was a huge deal. In what we study, you can see the dead hand of the past. 
o   (ex1) remedies for ED are fairly modest as a result of political compromise.
o   (ex2) lack of jury trials (until the 1991 Act). Since all-white southern juries would always return a verdict against Ps, remedies were only equitable. 
o   (ex3) Cases like Teamsters are transitional cases. Discriminatory practice began when it was legal to discriminate, so how do we undo it, and what concerns do we have for workers who benefited from the old system?
2. Civil Rights Model: Identify problems and label them the fault of discrimination, but the issue is that discrimination is not the whole answer, it is only one framework for viewing bad outcomes. The extent to which discrimination is the answer is up for grabs. 
·         What should we do about discrimination? Pass a law so that discrimination is not legal. Create negative incentives, who policies these incentives? Ps who have rights against employers for bad behavior.
·         This model was applied to race, sex, and then to age and disability. This is the structure of the ED regime. Moral persuasion in the form of law, and enforcement through private action. 
o   Is this the right strategy? Do we want to apply this in other areas, such as age and disability?
o   We have all this law, what is it actually doing? Is it giving the right message to employers, are we providing reasons for employers to behave correctly and are we compensating the right people the right amount? The pro-P position doesn’t always correspond with what we see in the case law, for example, the EEOC gets in the way a lot, disqualifying worthy Ps. Keep open to the idea that you can be pro-P and not buy all aspects of the Civil Rights Model; look for unintended consequences. 
§ (ex) CR law is very harsh on written tests. Es who want to give tests, have to jump through hoops if the tests have a disparate impact. What is the employer going to do when it has to give up the test? An E who is forbidden from using a test is going to use something else, such as an interview, which is more subjective and subject to bias than the test. Thus, CRL does not advance the interests of Ps that much, only the Ps who did not do well on that test. It’s much harder to prove disparities in subjective contexts. If you think about what is good for the Ps as a whole, what the civil rights model throw up is not necessarily good. It’s not clear that the methods used to pursue the goal of equality are the right methods. 
§ (ex2) Think of the backpay remedy proscribed by statute…is it more economical for the employer to discriminate?
3. Statutes: Discrimination in race, gender, sexual orientation, etc.
·         Title VII: Federal prohibition against employment discrimination. Statue creates a special set of procedures and remedies, creates the EEOC, and sets up dispute resolution mechanisms within the EEOC. All Ps must exhaust their administrative remedies first. 
o   Strictly limited remedies.
o   Disparate treatment, disparate impact.
·         ADEA: Basically the same procedural requirements as Title VII (McDonnell Douglas).
o   Disparate treatment, and limited disparate impact.
·         § 1881: No discrimination in the making and enforcement of Ks (only covers racial discrimination, and arguably ethnic discrimination).
o   Only disparate treatment, not disparate impact.
o   Unlimited remedies, more flexible procedure.
·         Americans with Disabilities Act:
o   Ps have the ability to ask for accommodations in addition to damages. A disability P can ask for reasonable accommodations from his employer, which is not a remedy that is available to Ps under any of the other statutes. 
B. Theories of Discrimination
1. Int’l Brotherhood of Teamsters v. U.S., US Supreme Court (1977) (seniority/segregation and pattern or practice)
·         Facts: Company (D) followed discriminatory hiring, assignment, and promotion policies against minorities. The minorities that had been hired were given lower paying, less desirable jobs and were discriminated against with respect to promotions and transfers. Additionally, the collective bargaining agreement between D and the Union (D2) established a seniority system that disadvantaged local drivers (predominately minorities) who were promoted to line drivers by erasing accumulated seniority upon promotion.
·         Procedure:
o   US brought action against D and Union, alleging a pattern or practice of employment discrimination against minorities.
o   DC and CA held that employer had violated Title VII by engaging in a pattern and practice of racial and ethnic employment discrimination and that the union had violated the Act by agreeing with the employer to create and maintain a seniority system that perpetuated the effects of past racial and ethic discrimination.
·         Issues:
o   (a) DT by Company: (1) Whether there was a pattern or practice of disparate treatment and, if so, (2) whether the differences were racially premised?
o   (b) DT by Seniority System?
·         Holding:
o   (a) P carried its burden of proof by using (1) statistical evidence comparing the racial composition of D’s workforce to the composition of the population in the community from which employees were hired; and (2) the testimony of individuals who recounted over 40 specific instances of discrimination.
o   (b) The SS does not violate Title VII because it applies equally to all races and ethnic groups. The placing of line drivers in a separate bargaining unit is rational and in accord with industry practice. The SS was freely negotiated and did not have its genesis in racial discrimination. Under these circumstances, the fact that the SS extends no retroactive seniority to pre-Act discriminatees does not make it unlawful.
·         Reasoning:
o   RULE: Disparate Treatment: Employer treats some people less favorably than others because of their race, color, religion, sex or national origin. Ultimate factual issues are simply whether there was a pattern or practice of disparate treatment and, if so, whether the differences were “racially premised.”
§ P bears the initial burden of proof of making out a prima facie case of discrimination. Where, as here, P alleges a systematic pattern or practice, P must prove more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. P must establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure – the regular rather than the usual practice.
§ Statistical Evidence: Statistics showing racial or ethnic imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the population in the community from which workers are hired.
·         Note, statistical evidence may not be offered to support the erroneous theory that Title VII requires a work force that mirrors the general population. Also, statistics are not irrefutable and may be rebutted.
o   RULE: Disparate Impact: Employment practices which are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required.
o   RULE: § 703(h) exempts bona fide seniority systems (set up with a legitimate purpose).
·         Statistics: Today, Ps would have to do much more work to establish a POP case. P compares the proportion of AA line-drivers to the representation in the community.
o   The percentage of total people in the town where the terminals were located is the wrong number because it does not represent the total # of qualified people who could apply. Ps are helped by the fact that this is an early, unsophisticated case with such shocking numbers (0 – when you have no numerator, who cares what the denominator is?). Now, you have to make out a much more finely grained comparison of who is even qualified for the job.

al, but discriminates against nonexemplary minorities.
§ OR…Psychological motivation: After P has screwed up, P tries to think of all the reasons why the screw up is not bad. P tells himself, everyone was taking towels.
o   There are all kinds of reasons why we see these cases brought by compromised Ps, but it’s difficult to decide between the various explanations. The law cannot send a clean signal to employers because it can not sort out these competing, plausible stories about how we ended up in this fact pattern in the first place. The bottom line is that it is much harder to distinguish guilty behavior from innocent behavior.
o   Discrimination is a lot harder to find in the Title VII world:
§ Pre-Title VII, Es could use illegal criteria in evaluating Ps.
§ We know have a more difficulty evidentiary problem in figuring out who should win.
·         Differences in Hiring v. Firing Liability and Resulting Incentives for Employers: Compare this case to the Teamsters case. Teamsters is about hiring and promotion. Smith is about an employee who has already been hired, so it is harder to see discrimination. P says, OK, you were willing to hire me if I was perfect, but you have different standards for what is perfect between whites/blacks. We now have employers who won’t retain any minorities which are not perfect. This is different, more subtle behavior which inherently involves a compromised P, which matters in appeal to a jury and what we think P should get. 
o   Incentives: Title VII is crafted implicitly in the following way: Here is prohibited conduct that we put a penalty on in order to give employers an incentive not to act a certain way. 
§ Think about this from the point of view of a calculating and racist employer. What are the odds of being sued if you fail to hire? Low. Why should it be true that hiring suits are low in number? The basic rules for proving hiring v. firing discrimination are close to identical. The real issue is that the kind of evidence available to hiring Ps is much weaker. One key element of the hiring Ps claim from a logical matter is that P was treated worse, but usually P does not know who was hired. The point is that fired Ps have access to much more potentially relevant information about the reasons for their firing than not-hired Ps have about the information relevant to their not hiring. What about the firing question? If E hires the minority, what about the possibility that E might want to fire P later. There is high probability of litigation. If the racist employer knows he can reject P without fear of penalties, that gives E incentive not to hire the P.
The basic point is that fear of future firing liability is a disincentive for employers to hire minorities, whether for racist reasons or simply for fear of future liability. The civil rights model says that discrimination is the problem and more lawsuits are the answer, but this shows you that is not right. If penalties goes up, and most suits are firing suits, that will move Es in the opposite direction from the one in which you want to move them – how do we get at the hiring discrimination problem? It’s not so clear that the answer is more litigation and higher penalties, from the P’s position. Firing liability is in some sense counter productive. Why don’t we just