University of Dayton School of Law
Professor Richard Perna
I. INTENTIONAL DISPARATE TREATMENT Discrimination
a. What is Intentional Disparate Treatment?
i. Malice or with mal-intent
ii. Individual cases, i.e. against 1 person
b. Discrimination applies to:
ii. Hiring, AND
iii. Terms & Conditions
c. Important Discrimination Documents
i. Title VII of Civil Rights Act of 1964 (and 1991 Amendments)
1. Pg. 5 à §703(a)
a. “(1) 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
(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.
b. Covers just about everything in workplace
c. Prohibits discrimination —“BECAUSE OF”—-
1. Including whites.
iv. SEX, or
v. National Origin
d. Need a “CAUSAL CONNECTION” between discrimination and negative employment decision/action.
2. Three bases of Discrimination
a. (1) Unequal Treatment
i. Ex: Boss treats blacks differently than whites.
ii. MUST have a “control,” i.e. how does ER treat whites if you’re saying ER is treating blacks “unequally.” Unequal to WHAT?!
iii. I.e. a “comparator case” à comparative EE must be “similarly situated,” or if not, “similar enough.”
b. (2) Prejudice/Bias
i. The motivation behind the discrimination.
ii. Ex: “I hate blacks, so blah bleh”
iii. Prejudice/bias MUST be acted upon. Bigotry alone is not the basis for a Title VII action.
c. (3) Stereotyping
i. Ex: ER: “Women clean better than men, so women will do the cleaning.”
ii. NOT based on the actual skills of the EE, but rather of the EE’s protected trait.
ii. 42 USC § 1981
1. Protects against government and private actions & reverse discrimination (very much like Title VII)
iii. ADEA à (Age Discrimination in Employment Act)
1. Makes AGE the protected trait.
2. Protects people 40+.
3. Reverse Discrimination not a violation of ADEA (hired 65 over 30/40)
a. It’s okay for ER to prefer older EEs.
b. Even if younger EE is over 40, still not a violation of ADEA.
iv. ADA à (Americans with Disabilities Act)
1. Makes disability the protected trait.
d. Everyone is Protected Under Title VII
i. Blacks, Whites, Jews, Men, Women, etc.
e. Proving Discrimination: The McDonnell Douglas Test
i. PRONG #1 à EE’s Prima Facie Case (PFC). ∏ has burden:
1. ∏ belongs to protected class
2. ∏ applied & was qualified
3. ∏ was rejected
4. Position remained open & ER kept looking (or non-minority was hired)
a. PRESUMPTION OF DISCRIMINATION
b. SPRINGS INTO EXISTANCE!
ii. PRONG #2 à D/ER now has burden to produce specific evidence of a non-discriminatory reason for ∏’s non-hire or termination.
a. Presumption of discrimination is gone.
iii. PRONG #3 à ∏ now has burden of persuasion that:
1. D’s #2 was merely a “PRETEXT” or a lie for what really was a discriminatory reason.
a. ∏ shows that D’s “#2 is not worthy of credence.”
b. If ∏ in #3 disproves D’s non-discriminatory reasons in #2 by showing pretext, the presumption doesn’t again spring up, but it allows the fact-finder to draw the conclusion of discrimination more easily, because…what ELSE is left?
c. Discrimination was a:
i. Motivating Factor à “membership in protected class was actually considered in the employment decision.”
ii. Determinative Factor à the “but for” cause.
iv. ∏/EE has ULTIMATE BURDEN of proving not only pretext in ER’s #2 but also of actual discrimination.
1. Proving Pretext ≠ Proving Discrimination
a. But it helps, because it makes ER look bad
f. The Scope of EE/∏ Surrebuttal Proving “Pretext” à McD #3
1. ∏’s #3 is not simply limited to the scope of the narrow reason offered by D in #2.
a. Ex: ER says in #2 “B was more qualified than EE.” Therefore, in #3, EE would not be limited to qualification evidence to prove discrimination and to prove pretext.
i. Wouldn’t have to show EE is “more qualified”
ii. Maybe just “as qualified.”
iii. Showing ER’s past discrimination may be allowable evidence
iv. General Evidence of how ER treats minorities is probative for proving discrimination
v. Also, jury could simply not believe ER’s #2 even if EE’s #3 is weak.
ii. Methods of Proving Pretext
1. Prior Treatment to ∏/EE
2. D’s statistics
3. ER’s Failure to follow procedure
against an entire class of people based on their “protected class.”
1. EX: ER hates women and discriminates against all women. If ER only discriminated against 1 woman because she’s a woman, that would be Individual…but all women gives rise to Systemic Treatment.
b. Two Types: Formal Policy and “Pattern & Practice” Discrimination
1. Based primarily on stats. We have ER employing 100 people. Those 100 people should statistically reflect the protected classes in appropriate percentages. If there’s a statistical variation, then therein lies the basis for a lawsuit. The issue is…where to draw stats from and can the stats be justified.
ii. Formal Policy
a. When an ER has a written policy (i.e. handbook) that facially discriminates against a “protected class” of people.
i. Ex: ER divided EEs into men and women, and has a Formal Policy of making the women contribute more to insurance
ii. Ex: ER has policy that “all women must act like women”
iii. An ER cannot ASSUME & ACT on or impugn class characteristics onto individuals
iv. “Can’t treat a person differently on basis of sex, even if the assumption is true.”
2. Formal Policy is Direct Evidence “on its face” of discrimination.
iii. Pattern & Practice
a. Instead of an actual policy (i.e. “women pay more $$”), an inference of discrimination is drawn from ER’s pattern and practice.
i. Ex: No black people working at ER. Interesting. No policy saying “don’t hire blacks,” so we must use inference to draw discrimination from ER’s pattern or practice.
ii. Ex: Teamsters and Hazelwood cases.
2. Drawing an Inference of Discrimination à BOTH!!!!
a. An inference can be drawn based on:
1. Very, very crucial
1. I.e. antidotal evidence. Cannot win without this.
3. Proof Schemes
a. You want to be statistically close to the Input to NOT be liable
The Further ER gets away from the Input, the less likely the % disparity is a result of chance