Employment Discrimination – Professor Perlstadt – Fall 2011
– Introduction & Overview-
Leathem v. Research Foundation of City of New York
· Court held that absent a contract, an employment termination-at-will agreement has been made in which the employer can terminate the employee at any time or the employee can walk out at any time
· * Employment-at-will is the DEFAULT rule
o Except for 3 Exceptions
1) Constitutional (Federal) Proscription (applies only to Public entities)
2) Statutory Proscription
3) Express Limitations in Contract
· Employment that is for an indefinite term is to be presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason
Title VII 42 U.S.C. §2000
· Makes it unlawful for public and private employers, labor organizations, and employment agencies to discriminate against applicants and employees on the basis of their RACE, COLOR, SEX, RELIGION, and NATIONAL ORIGIN
11Th Amendment Defense for Private Claims against State Employers
-11th Amendment bars civil actions for damages brought by private parties under federal laws unless Congress, in enacting the legislation, has both (1) unequivocally expressed its intent to abrogate a state’s 11th Amendment immunity, and (2) acted pursuant to a valid exercise of power granted to Congress by the Consitution.
· Bars ADEA (Kimel v. FL Bd. of Regents)(Congress exceeded its power under §5 of 14th Amendment)
· Bars ADA (Bd. of Trust. Univ. of AL v. Garrett)(Congress exceeded its 14th Am power – no longstanding history of discrimination against disability)
· Bars §1981 Claims (Signletary v. MO) (Congress did not unmistakable express its intent in the legislation to waive state’s 11th Amendment immunity)
· Not a defense against Title VII claims (Fitzpatrick v. Bitzer)
o Doesn’t protect monetary damages
· Doesn’t apply when the Fed Gov’t is a Party
· Doesn’t extend coverage to cities and counties/municipalities
EEOC enforces Title VII and the ADA, and ADEA
Ledbetter v. Goodyear Tire and Rubber Co. (pg 27)
· Ledbetter alleges discrimination on the basis of sex
o Claims that several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay wasn’t increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment.
· Charging period is when the discrete act was made
· Ledbetter tried to say that the sex discrimination act of not giving her an equal raise continued on past the point of the raise when she received each pay check (because she received less money than males at each pay period)
o Court says NO, 180 days (Or 300 in FL) from the time when the discrete act was made, i.e., when the initial raises were given
Contra, Bazemore case says every paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII
· Ledbetter Court distinguished Bazemore by saying that Bazemore was a facially discriminatory based SYSTEM
· Ledbetter Court said it was not a system that Ledbetter was complaining about but rather that she was complaining about a discriminatory act (that took place past the 180 day deadline) that was reducing her amount of later paychecks
Ledbetter Court did not address the Discovery Rule…doesn’t start tolling the 180 days until the Plainitff discovers or should have discovered the discriminatory act
· Equitable Tolling – i.e., plaintiff was in a coma for 180 days
Lilly Ledbetter Fair Act of 2009…amends Title VII so that an unlawful employment practice occurs, with repect to discrimination in compensation in violation of this title:
1) When a discriminatory compensation decision or other practice is adapted
2) When an individual becomes subject to a discriminatory compensation decision or other practice
3) When an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or practice
St. Francis College v. Al-Khazraji
· Issue: Whether the plaintiff, a citizen of the U.S. who was born in Iraq, could bring a race discrimination claim under §1981
· Court broadly defines race as “ancestry or ethnic characteristics”
o “We have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely b/c of their ancestry or ethnic characteristics.”
o Although §1981 is limited to racial classification…the Court looks to ancestry & ethnic characteristics for purposes of §1981
· Title VII is much broader than §1981
o Al-Khazraji could have brought a claim for national origin under Title VII
*Discrimination can be intra-racial…i.e., Black employers can discriminate against black employees
Hypo
· Black Female, White Female, Black Male who are all equally qualified for a job apply. The White Female and the Black Male get the job but the Black Female does not.
o Could say Count I – If I were a male, I’d get the job
o Could say Count II – If I were white, I’d get the job
o Or Should we consider the applicant as a Black Female rather than two separate categories like A Black Person and Female?
Oncale v. Sundowner Offshore Services (pg348)
SCOTUS held that sex discrimination consisting of same-sex harassment is actionable under Title VII
· The “because of” language in Title VII gives rise to similar claims based on race.
· Court notes that there are 3 ways for Discrimination of sex via sexually harassing
1) Motivated by sexual desire (both homosexual and heterosexual)
§ based on the theory that someone of the other sex would not be harassed…thereby discriminating
2) Motivated by general hostility to the presence of women in the workplace
§ Doesn’t matter if it’s a male harasser or a female harasser to either sex.
3) Direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Employer Title VII definition – a ‘person’ engaged in an industry affecting commerce who has 15 or more employees for each working day
· ADA – requires 15 employees at minimum
· ADEA – requires 20 employees at minimum
· §1981 – no minimum requirement of
Employee definition – means an individual employed by an employer
· main factor is CONTROL
Clackamas Gastro v. Wells (pg. 50)
· Issue: Whether 4 physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as ‘employees’ for purposes of a Title VII claim?
o Master-servant relationship provides helpful guidance…but what is helpful is the level of CONTROL the master has over the servant.
· SCOTUS said that CONTROL is the principal guidepost, however, all of the incidents of the relationship should be considered, with no one factor being decisive.
Disparate Treatment v. Disparate Impact
· Disparate Treatment is treating somebody different because of a certain characteristic
o Employer simply treats some people less favorably than others because of their race, color, sex, religion, or national origin.
o Proof of discriminatory motive is critical, although it can be in some situations inferred from the mere fact of differences in treatment
o *Disparate Treatment claim must show that there was a discriminatory motif*
· Disparate Impact is a facially neutral policy that has the impact of harshly effecting a disparate class of people
o *Disparate Impact claim does not need to show discriminatory motif*
-Title VII-
I. Disparate Treatment
· Civil claims that require the plaintiff to show by a preponderance of evidence (more likely than not) that the plaintiff was a victim of discriminatory intent
A) McDonnell-Douglas v. Green (pg 92)
· Green was fired from his employer as a general reduction in the workforce
· He took part in several illegal acts against his former employer
· Former employer shortly thereafter began hiring for the position previously filled by Green
o He reapplied and was denied hiring allegedly because of his illegal acts against the company
· Green claims that the company refused to hire him because of his race and persistent involvement in the civil rights movement, in violation of §703(a)(1) of Title VII
o Circumstantial Evidence:
§ Defendant advertised for the position
§ After applicant was turned down for rehire the company was still looking
§ Green was not hired
§ Green was qualified and applied
§ Green was black
· Complainant in a Title VII trial must carry the initial burden by a preponderance of evidence by establishing a prima facie case of racial discrimination.
Proving a prima-facie case:
1) That the plaintiff belongs to a racial minority/protected class;
2) that he applied and was qualified for a job for which the employer was seeking applicants;
3) that, despite his qualifications, he was rejected/not hired;
4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualification.
o Green’s circumstantial evidence creates a prima facie case
o If plaintiff can prove a PFC, then we presume discrimination
McDonnell-Douglas Framework (Method of Analysis…not procedural)
1) Plaintiff has the burden of proving by the preponderance of evidence a prima facie case of intentional discrimination.
o Arguably, Green has done this with circumstantial evidence
2) If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
o Arguably, McDonnell has done this by saying that Green’s illegal acts were reason enough not to rehire him
3) Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
o Green was not given this
tor Defense – Courts adopting the same-actor defense hold that, where the same supervisor both hired and fired an employee and the period between the hiring and firing is relatively short, the employer is entitled to an inference that the discharge was not motivated by discriminatory animus.
· Can be rebutted…discrimination may not develop until after the employee was hired…perhaps he was the first employee of that class to be hired
· Could have been hired with the idea they would not rise to a certain level in the company and now the person who hired, and subsequently fired her, has to deal with the employee on a daily basis
B) Mixed Motive Cases
· the employer relies upon both a legitimate, nondiscriminatory reason and an unlawful, discriminatory reason at the moment it makes an adverse employment decision
Price Waterhouse v. Hopkins (pg 134)
· Hopkins filed a charge claiming that the firm had discriminated against her on the basis of sex in its decision regarding holding her partnership
· Gender nonconformity = sex
· Partners who weighed in on her partnership decision made sexist comments towards Hopkins
o “Needs to act more feminine”; “She acts too macho”; She was a lady cursing; She needs to go to charm school; Not an appealing lady;
o Universally Disliked; Annoying
· These last two decisions were gender neutral but they were offered by a Expert who said they were made by two people who were not familiar with Hopkins…thus the expert said they are likely attributed to a sexist view
· Price Waterhouse said that there were legitimate reasons not to promote Hopkins…specifically because she had bad interpersonal skills with the staff.
· Plurality Decision:
o Court ruled that once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role.
o Court held that Title VII barred not just discrimination because Hopkins was a woman, but also sex stereotyping – that is, discrimination because she failed to act like a woman
§ Plaintiff must show by a preponderance of evidence that discrimination played a motivating part in the decision
§ Defendant must then show that they would have made the same decision absent the discriminatory reason…must prove this by a preponderance of evidence.
· O’Connor Concurrence:
o Plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision
o Defendant must show that the same decision would have been made absent the illegitimate factor…by a preponderance of evidence.
Current Standard/Framework
· “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.” §703(m)
o This means that any time a plaintiff is able to prove that an impermissible factor “was a motivating factor” she is entitled to a judgment in her favor.
· However, under §706 g(2)(B) – if an employer shows that they would have made the same decision absent the illegitimate discriminatory reason, damages may be restricted…
(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court–
§ (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
§ (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
*Hopkins had direct evidence whereas Green in McDonnel-Douglas did not have direct evidence*…this is why she did not proceed under the McDonnel Douglas Framework.
