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Employment Discrimination
University of Dayton School of Law
Cox, Jeannette

Employment Discrimination Outline

Spring 2012 – Prof. Cox

I. Overview of Employment Discrimination & Relevant Statutes

A) Sources of Employment Discrimination Law

1) Title 7 of the Civil Rights Act (“Title 7”)

(a) Title 7 protects employee from discrimination on the basis of race, color, religion, sex, or national origin.

2) Age Discrimination in Employment Act (“ADEA”)

(a) Protects employee from discrimination on the basis of age.

3) Civil War Reconstruction Statutes

(a) 42 U.S.C. §1981 (“§1981”)

i Prohibits race discrimination in contracting.

4) Americans with Disabilities Act (“ADA”)

5) State statutes

(a) Some states have statutes that prohibit discrimination based on sexual orientation.

B) What is an Employer? Who is an Employee?

1) What is an Employer?

(a) A person engaged in an entity affecting commerce with:

i 15 or more employees under Title 7 and ADA [20 employees under ADEA] ; AND

ii Who work at least 20 or more calendar weeks in the current or preceding year;

iii Agents of Employers are considered Employers.

2) Who is an Employee?

(a) Common law, not statutes, is used to determine who is an employee.

(b) Factors to consider who is an Employee – Factors revolve around control of hiring party over worker:

i The hiring party’s right to control the manner and means by which the product is accomplished;

ii The level of skill required;

iii The source of the worker’s instrumentalities or tools;

iv The location of the work;

v The duration of the working relationship between the parties;

vi Whether the hiring party has the right to assign additional assignments to the worker;

vii The extent of the hired party’s discretion over when and how long to work;

viii The method of payment;

ix The worker’s role in hiring and paying assistants;

x Whether the work is part of the regular business of the hiring party;

xi Whether the hiring party is in the business;

xii The provision of employee benefits;

xiii The tax treatment of the worker

(c) Freedom of Choice Principle

· When a worker has the freedom to choose whether or not to engage in work with a hiring party, they will likely be considered an independent contractor instead of an employee.

1. Freedom to decline work tends to indicate that the worker is an independent contractor. [Use case illustration here].

ii A key distinction between an employee and independent contractor is whether the worker retains the discretion to decline work.

iii Failing to provide benefits or withhold taxes weighs heavily in favor of independent contractor.

iv A hiring party that converts a worker from employee status to independent contractor, for the purpose of saving taxes or money on benefits, could result in a disparate treatment claim by the worker.

(d) Owners/Partners as Employees

i Is a partner/owner truly an owner or merely a glorified employee?

· To determine person’s status, the control the worker has over the business must be analyzed.

· Does the so-called owner operate independently and manage the business or is he subject to the firm’s control?

· Job titles are not outcome determinative.

· Whether an employment agreement is in place or not holds little weight.

· Employee status is appropriate where the worker wields insufficient power within the organization – economic, social, and/or political – to avoid discrimination and is sufficiently connected to the organization to suffer the economic and dignity harms resulting from such discrimination.

· Owner or Glorified Employee? Six Factors:

1. Whether the organization can hire or fire the worker or set the rules and regulations of the individual’s work;

2. Whether and, if so, to what extent the organization supervises the individual’s work;

3. Whether the individual reports to someone higher in the organization;

4. Whether and, if so, to what extent the individual is able to influence the organization;

5. Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts;

6. Whether the individual shares in the profits, losses, and liabilities of the organization.

II. Individual Disparate Treatment Claim

A) Disparate Treatment vs. Disparate Impact

1) Disparate Treatment

(a) Employer directly treats an employee (or group of employees) less favorably than other employees because of race, sex, religion, or national origin.

i Employee must show that employer intended to discriminate.

ii Differences in treatment must be material.

2) Disparate impact

(a) Facially neutral employment policies that impacts one group more harshly than others without a justifying business reason.

i No proof of discriminatory intent is required.

B) Terms, Conditions, or Privileges of Employment

1) Title 7 serves to protect the terms, conditions, or privileges resulting from the contractual employment relationship.

(a) Adverse employment decisions, motivated by discriminatory intent, are prohibited from impacting a term, condition, or privilege of employment.

2) Title 7 protection kicks in once a contractual relationship is created.

(a) Contract may be written, oral, formal, or informal.

3) Privileges may be conferred on employee via express or implied contract and include:

(a) Benefits that are part and parcel of the employment relationship.

(b) Benefits that are incidents of employment.

(c) Other aspects of the employer/employee relationship.

C) Elements of a Title 7 Claim – §703(a)

1) Title 7 of the Civil Rights Act §703: “It shall be an unlawful employment practice for an employer:

(a) 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

(b) 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.

D) Element #1 – Intent to Discriminate

1) Evidentiary Issues

(a) Employee must “demonstrate” that the protected trait motivated the employer’s decision.

i Evidence must meet the burdens of production and persuasion.

ii Direct evidence is not required; circumstantial evidence is sufficient.

(b) The employer’s promotion or expectation of stereotypes based on the protected trait can serve as evidence of discrimination.

i Ex. Price Waterhouse – Employers made discriminatory gender stereotyping comments about a female employee who was denied a promotion by saying she “should act less macho” “should go to charm school” “should dress/act/walk more femininely”. These comments can be viewed as discriminatory because they promote gender stereotypes.

2) Multiple Decision makers

(a) Discriminatory intent may be imputed to a group of decision makers when:

i A minority of decision makers hold discriminatory views, AND

ii Such a minority serve as the opinion leaders of the group.

iii The group is split between those with discriminatory intent and those without, but the members with the deciding votes are motivated by discriminatory intent.

iv Acquiescence to discriminatory views held by some members of the group.

3) Mixed Motive cases

(a) Involves cases where the employer has legitimate, non-discriminatory reasons for the adverse employment action.

(b) The legit reasons are accompanied by one or more discriminatory motivations.

E) Element #2 – Adverse Employment Action

1) An adverse employment action is a decision made by the employer and/or action taken against the employee which is a tangible manifestation of the employer’s discriminatory intent.

(a) Discharge is not required.

(b) Keep in mind: An employer may take more than one employment action against an employee; Focus primarily on the central adverse employment action and use the ancillary actions as icing on the cake.

2) Forms of Adverse Employment Action:

(a) Failure to hire or promote

(b) Deprive employee of opportunities

(c) Material increase in work duties without increased compensation.

(d) Meaningful reduction in compensation.

3) An adverse employment action must be more oppressive than minor inconveniences or unpleasant qualities of work life and have a material effect on the employment relationship.

(a) Examples of what is not considered to be an adverse employment action (even if motivated by discriminatory intent):

i Failure to provide plaintiff with a computer

ii Family oriented questions asked to a female applicant and not male applicants

iii Investigation of an employee.

4) Examples:

(a) Assigning extra work to an employee has been held to be an adverse employment action where the additional work is so substantial as to effectively serve as a reduction in the employee’s compensation.

i “Minor” case. Employee’s work duties required 50-75% more time. No increase in pay for extra work. Court held that extra work to this degree was sufficient to support a material difference in the terms and conditions of employment and thus considered the extra work to be an adverse employment decision.

F) Element #3 – Causation – The link between Intent and the Action against the employee

1) Title 7 §703(m)

(a) “An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

2) Motivating Factor Test – Supp. Pg. 444

(a) The protected trait must be a motivating factor in the adverse employment decision.

i The protected trait must be a consideration in the employment decision at the time it is made.

· Evidence may be presented showing that “stray comments” have been made in a discriminatory manner. These comments have some weight but are not dispositive.

· There must be a reasonably close link between discriminatory comments and the adverse employment decision.

ii If the employer is asked, at the time of the employment decision, what its motivations are, and in its truthful response, one of the reasons would be the employee’s protected trait, then the protected trait was a motivating factor in the decision, even though it was only one of a number of reasons.

G) Proving Discrimination – Modified McDonnell Douglas Framework

1) Step #1: ∏’s Prima Facie Case

(a) #1 – Employee is part of a protected class

(b) #2 – Employee applied for, and was qualified for, the job

(c) #3 – Despite qualification, employee was rejected

(d) #4 – After rejection, the position remained open and the employer continued to look for applicants with employee’s qualifications.

(e) Proving the prima facie case raises the inference that discrimination occurred.

i Creates a rebuttable presumption and shifts the burden to the Employer.

2) Step #2: Employer’s Legitimate Non-discriminatory Reason for Decision

(a) Employer must articulate a legitimate, non-discriminatory reason for the adverse employment action.

i Evidence must be admissible.

ii Burden of production only.

(b) The reason must be the true reason for the employment action.

i Honest Belief Rule (used by some courts):

· If the ∆ truly believed the non-discriminatory reason for the employment decision to be true at the time the decision was made, the ∆’s burden is met.

(c) This is a very light standard to meet.

i It doesn’t matter if the reason is absurd or outlandish, as long as it’s the true reason for the employer’s action.

(d) Potential outcomes:

i Employer offers no legitimate reason for decision à Employee wins as a matter of lawà ALL damages

ii Employer offers true reason & no discrimination à Employer wins à NO remedies

iii Employer offers a reason à Employee proves reas

on claim may stand when the employer adversely affects an employee within the protected class and hired another employee within the protected class.

I) §1981 Cases

1) Deals exclusively with racial discrimination.

(a) Discrimination against any race.

2) Intent

(a) Some courts require racial animus – purposeful discrimination – while others require only racial motivation.

3) Disparate Treatment

(a) Employee must prove he was treated differently than a similarly situated employee.

i The difference in treatment supports the inference that the reason is discriminatory.

ii Similarly situated = “Nearly Identical”

· Comparable in material respects

J) Reverse Race Discrimination

1) Recognized by Title 7 and §1981

2) McDonnell Douglas framework is applicable.

3) Standard is higher than for true minority claims.

(a) Employee must present evidence of background circumstances that show the employer discriminates against white employees.

4) 3rd Circuit prima facie case of reverse race discrimination

(a) ∏ must present sufficient evidence that allows a fact finder to conclude that the employer is treating some people differently than others because of race.

III. Systemic Disparate Treatment

A) Systemic Disparate Treatment Claims, Generally

1) A ∏ is challenging an employer’s policies or patterns of practice on the basis of broad discrimination, affecting a group of employees.

(a) Generally, disparate treatment cases should be used to challenge a policy or practice that is discriminatory on its face.

i i.e. Employer policy states that “Women (and not men) are required to complete a lifting test to be considered for employment”.

2) Two approaches to a systemic disparate treatment cases:

(a) ∏ challenges an employer’s formal policy as discriminatory; OR

(b) ∏ challenges an employer’s pattern of hiring practices as discriminatory.

B) Approach #1 – Employer’s Formal Policy is Challenged as Discriminatory

1) Proof Framework

2) Discriminatory purpose may be inferred from the fact that the employer’s policy has a more burdensome effect on one group than another.

(a) Disparate impact may be used as evidence of disparate treatment.

3) Policies that take generalizations/stereotypes about a protected class, creating classifications between classes of individuals, will be found to be discriminatory.

(a) The truth of a stereotype does not protect the employer from liability.

i Ex. An employer charges women more than men to enroll in its benefit packages. Women generally live longer than men which results in more expensive healthcare costs and benefit packages to employers. While this is true for most, it is not true for all and at least one woman will not live longer than men nor incur higher medical costs than men. She will be burdened unnecessarily and thus has a claim of systemic disparate treatment against the employer (Manhart, pg. 116).

(b) Title 7 prohibits an employer from treating an individual in a particular way by virtue of the individual’s membership in a particular class of persons.

i Fairness to the individual trumps fairness to a class.

4) An employer’s policy that is claimed to be merely reflective of a true generalization about a particular group will be found to be discriminatory as to the individual(s) to whom the generalization does not apply.

5) Policies which create classifications based on a protected trait will be found to violate Title 7.

C) Approach #2 – Employer’s Discriminatory Hiring Patterns & Practices

1) Proof Framework

2) Generally includes an employer’s conduct that regularly and purposefully treats a particular class of employees less favorably than another because of a protected trait.

(a) Refusal to recruit, hire, promote, or transfer a particular class of persons, based on a protected trait.

(b) No facially discriminatory policy is required for liability to be established.

(c) See Teamsters (pg. 123) and Hazelwood (pg. 129).

3) McDonnell/Douglas framework is applicable.

(a) ∏ has burden to prove prima facie case

i ∏ must show, by a preponderance of the evidence, that any discrimination is not accidental or an isolated incident, rather discrimination is standard operating procedure for the employer.

ii Statistical evidence plays an important role where discrimination is disputed.

· Bad stats, demonstrating the inexorable zero representation of a protected class can be used to support the inference of intentional discrimination when anecdotal evidence is not available.

[EAN1]I’m under the impression that this burden is one of persuasion, not production. Need to verify.

[EAN2]Is it sufficient that, in an age claim, the ∏ show that his age “motivated” the employer’s decision (i.e. Age was one of a number of influencing factors) or that the ∏’s age was the reason for the employer’s action?