Select Page

Employment Discrimination
University of Illinois School of Law
Thomas, Suja A.

Employment Discrimination Final Outline
I. Policy Bases for Antidiscrimination Law

Discrimination and the Free Market (pg. 762)
· Economists view (market forces argument): Discrimination will be corrected by the market w/o need for legal intervention
· Market forces argument: antidiscrimination laws are unnecessary and unsuccessful at providing economic benefits. Suggests that discrimination does not exist; poor economic status is a result of personal choices or lack of qualifications necessary to compete.

Four main dominant schools of thought (pg. 764)
· Taste model – this economic approach says discrimination is just another taste or preference of employers, employees or customers that they are willing to pay to indulge. Essentially employers will trade lower profits to discriminate in their hiring practices. Focus is on individual discriminator, but could also include tastes of other employees or customers.
· Statistical discrimination – assumes employers differentiate among individuals from different groups for “benign” profit-maximizing motives. Employers make inferences about individual level worker characteristics based on an employee’s membership in a group.
· Sorting and search – incorporates aspects of both taste and statistical model. Sorting or occupational segregation by demographic characteristics. Attempts to minimize chance of conflict among employees of the company. Thus discrimination is a rational response by employers to the discriminatory preferences of their employees.
· Status-production theory – (aka cartel theory of discrimination) groups of workers discriminate against others to elevate their own status. Discrimination allows members of one group to raise their self-esteem by lowering the status of the group against whom they discriminate. Focus is on groups and social norms.

Employment Discrimination Laws:
Section 1981 Civil Rights Act of 1991 Equal Pay Act
Section 1983 Age Discrimination in Employment Act Stay Laws
Title VII Americans with Disabilities Act Local Laws

· Section 1981 – prohibits

Revision in 1981 entitled parties to a jury trial
No limit to employees as in prior where employer meant 15+ employees

· Section 1983 – usually used to sue local employers, ie Champaign, city of Chicago maybe alleging 14th amendment violation. Pg. 85
· Title VII – enacted in 1964
1. Defined: Forbids employment discrimination against any individual based on that individual’s race, color, religion, sex, or national origin. These are protected classes. Title VII also makes it unlawful to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment on the prohibited grounds or 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.
2. Statute is applicable only to those defined as being covered; e.g., employers, employment agencies, and labor organizations.
3. Discrimination must occur in employment relationship; ie. Independent contractors are not employees and cannot bring an action under Act.
4. 1991 CRA: may now recover compensatory and punitive damages (previously only equitable damages were available)
5. Title VII makes it an unlawful employment practice to discriminate against any individual with respect to this compensation….. because of such individual’s …. Sex.
· Civil Rights Act of 1991 – Pg. 40
· Age Discrimination in Employment Act (ADEA) – pg. 3 covers employees age 40 and older. The ADEA forbids an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to this compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
· Americans with Disabilities Act (ADA) – pg 20. Will not be covered in a lot of detail. Highly litigated and is a course within itself.
· Equal Pay Act – pg. 59 enacted in 1960s
· State/Local laws – important to know that you have them in addition to federal laws, ie Illinois has its own discrimination laws, Chicago has its own discrimination laws and can result in state and federal claims.

II. Procedures for Enforcing Antidiscrimination Laws

· Equal Employment Opportunity Commission and/or State Agency – EEOC created by civil rights act of 1964, consists of 5 members, presidentially appointed, EEOC can decide to litigate cases, but doesn’t litigate a lot of them. Most common is Title VII suit.
· Various EEOC suits: Title VII, ADEA, APA, ADA
· EEOC Procedure:
o Charge filed with EEOC w/in 180/300 days after alleged unlawful practice
o Charge (notice) sent w/in 10 days to employer
o EEOC investigates – reasonable cause
o May receive right to sue letter 180 days after charge filed or earlier if resolved by EEOC
o Must file lawsuit w/in 90 days of receipt of right to sue letter
· In addition to filing with EEOC, a charge must also be filed with any existing state antidiscrimination agency
· If EEOC commences suit, the employee loses the right to bring suit, but has a statutory right to intervene to protect his or her interests against governmental delay or inadequate representation.
· Defects in EEOC proceedings do not prejudice the employee (ex. failing to notify the defendant of a filed charge).
· Under both Title VII and the ADA, an employee must cooperate with the EEOC in order to exhaust his or her administrative remedies under the ADEA.
· Regulations allow charges to be very informal, but at a minimum a charge must include 1) an allegation and 2) the name of the party to be charged and Holowecki Rule 3) to be a charge “it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.”
· Every private Title VII suit, the ADA, and ADEA suit must begin with a charge under oath filed with the Equal Employment Opportunity Commission.

Note if EEOC finds reasonable cause or no reasonable cause, you can still move forward and sue. Then why allow? Because 1) an attempt to keep things out of court, also 2) way to keep track of claims, 3) plus if no finding could be useful in court to employer, also 4) free to file with EEOC so if they decide to litigate then will be cheaper for someone who might not be able to sue on their own, but 5) mainly because gives notice to employers so they won’t be caught off guard with a suit.

When the charge must be filed:

Amtrak v. Morgan Rule
· If discrete act

· Available under Title VII, limited under ADEA
· Not available under §1981
· ADA bars practices with a disparate impact and also prohibits individual and systemic discrimination
· Ex. age discrimination class action, company was reducing work force, excluded employees hired more than 2 yrs, also extra credit for having received a college degree within last five years. Result is greater impact on older employees.
· Ex. Individual Disparate Treatment in Terms, Conditions or Privileges of Employment – Hishon v. King & Spalding
· Facts: Female associate hired at firm and told associates generally make partner in 5 or 6 yrs. After she was rejected for partnership she sued based on sex discrimination. Said her acceptance employment was induced by possibility of partnership.
· Holding: Court says this type of benefit/privilege of employment and potential to be partner is covered under Title VII and plaintiff is allowed to sue and say she is discriminated against in not being given partnership. Consideration for partner is privilege of employment so it must be applied nondiscriminatorily. Failure to promote is actionable under Title VII.
· Linking discriminatory intent to employer

Desert Place v. Costa – Costa, a female employee, is fired by her employer, Desert Palace. She files a suit claiming sex/gender discrimination.
Rule: Direct evidence is not required to prove discrimination in mixed-motive cases under 703(m) of Title VII.
701(m) of Title VII – The term “demonstrates” means meets the burden of production and persuasion. Direct evidence alone is not required. Could be direct or circumstantial evidence.
Mixed-motive = case where both legitimate and illegitimate reasons motivated the decision.
Ques. Is what standard do we apply now?
McDonnell Douglas Test (single motive)
703(m) standard that says direct evidence is not required.
This one is probably more favorable to the client because employer could offer evidence that firing you was based on something else, but you can also offer evidence that that is true but also discrimination was a motivating factor as well.

IV. Systemic Disparate Treatment Discrimination

Defined: a formal, facially discriminatory policy requiring adverse treatment of employees with a protected trait.
Leading case: Teamsters v. United States (1977)

V. Retaliation

VI. Systemic Disparate Impact Discrimination

VII. The Interrelation of the Three Theories of Discrimination

VIII. Special Problems in Applying Title VII, Section 1981 and the ADEA