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




Race Claims

· Race Discrimination

o Title VII

§ McDonnell Douglas = Single Motive

§ Price Waterhouse as amended by 1991 Civil Rights Act = Mixed Motive

o Section 1981

§ McDonnell Douglas = Single Motive

§ Price Waterhouse = Not sure because of Gross

· Plurality (Complete Affirmative Defense)

· O’Connor (Substantial Factor)

o State Laws

o Local Laws

· Retaliation Claim

o Title VII

§ McDonnell Douglas = Single Motive

§ Price Waterhouse = Not sure because of Gross

· Plurality (Complete Affirmative Defense)

· O’Connor (Substantial Factor)

o Section 1981

§ McDonnell Douglas = Single Motive

§ Price Waterhouse = Not sure because of Gross

· Plurality (Complete Affirmative Defense)

· O’Connor (Substantial Factor)

o State Laws

o Local Laws

Distinction Between McDonnell Douglas (Single Motive) and Mixed Motive

The distinction between “mixed-motive” cases and “pretext” cases is generally determined by whether the plaintiff produces direct rather than circumstantial evidence of discrimination. If the plaintiff produces direct evidence of discrimination, this is sufficient to show that the defendant’s activity was motivated at least in part by racial animus, and therefore a “mixed-motive” instruction is given. If the evidence of discrimination is only circumstantial, then defendant can argue that there was no racial animus at all, and that its employment decision can be explained completely by a non-discriminatory motive; it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext.

Employment Discrimination Laws

Section 1981 (42 U.S.C. § 1981)

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

· Used for racial discrimination (negative: not available for sex discrimination or disparate impact)

· Less onerous filing requirement than Title VII (DO NOT NEED TO FILE WITH EEOC)

· Longer statute of limitations (can keep race claim alive where Title VII has run out)

· Better remedies than Title VII: Unlimited damages as opposed to capped damages in Title VII

· Not expressly limited to discrimination in employment (independent contractors also can bring claim)

· Applies to all contracts (partnership ones, too)

· Practice Point: Always good to bring race claim under both Section 1981 and Title VII

Section 1983 (42 U.S.C. § 1983)

· Allows someone to enforce constitutional rights against state actors (mainly local governments)

· 14th Amendment equal employment opportunity has been infringed

Title VII (of the Civil Rights Act of 1964)

· Prohibits discrimination on the basis of race/color, religion, sex or national origin

· Covers discrimination from employers, unions and employer agencies

· Employer must have 15+ employees

Civil Rights Act of 1991

· Congress reacted to many employment discrimination cases by adding this act

Age Discrimination Employment Act (ADEA)

· Protects people from being discriminated against because of age

· Minimum age of 40 to qualify

· Employees must have 20 or more employees

· Intra-Class Discrimination protected: A 55-year-old can allege an ADEA violation where he was replaced by a 48-year-old

Americans With Disabilities Act (ADA)

· Employer must have 15+ employees

Equal Pay Act

· Litigated very infrequently because limited by the courts very early on, thus hard to bring EPA claims

· Types of claims are usually available under Title VII anyway

State Laws

· States have laws that usually track the federal law

· Sometimes, states will add extra protection that the federal laws do not have

o New York City: Sexual orientation cannot be used in employment (federal law doesn’t protect)

· State Laws could also give you better remedies: unlimited damag

reat individuals differently on racial grounds as impressible regardless of whether the motive is malign, benign or neutral

· Demonstrating discriminatory intent can be difficult, thus proving discrimination becomes a huge sticking point in cases


uSlack v. Havens (9th Circuit, 1975):

Black women forced to clean (job re-assignment) while a white co-workers was not. Supervisor supplemented acts by stating: “Colored folks should stay in their place” and “Colored folks were hired to clean because they clean better.” Black women complained and then were fired.

Court: Yes, discrimination à There was a causal relationship between the statements being made and the firings; clear different treatment of a white employee and black employees.

Direct evidence case because the discriminatory comments directly related to the discriminatory acts

uHazen Paper v. Biggins (SCOTUS, 1993)

Guy fired before pension benefits vested and claims he was discharged as a result of age discrimination.

Court: No discrimination à Pension benefits vested based on years of service, not age, thus the motivating factor was the pension vested (years of service), not the age of the employee. No individual disparate treatment because the factor motivating the decision was not a protected trait, in this case actually motivated by age.

Circumstantial evidence case, must make an inference to find discrimination; using years of service to try and show age discrimination, which the Court did not buy.

uMcDonnell Douglas Corp v. Green (SCOTUS, 1973)

Mechanic is laid off, then protests the lay off by having illegal “stall-ins.” When his job re-opens, he applies and is not hired.

COURT: Comes up with three-part burden-shifting test for claims of individual disparate treatment.