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Employment Discrimination
University of Kansas School of Law
Schroeder, Elinor P.

I.             INTRODUCTION
                A.            REACH OF TITLE VII
1.             Threshold question in all Title VII cases: whether we have a statutory employer and employee relationship ( 701 b- definition , 701f for employee)
2.             Hishon v King & Spalding (p. 1 supplement)- partnerships may qualify as terms, conditions, or privileges of employment under Title VII § 703(a)(1)
a.             Facts: King & Spalding, old-line Atlanta law firm, hired Hishon as an associate.  She went to Harvard law school. During the OCI, partners are selling her on the merits of the firm. She was told in 5 or 6 years as a matter of course, associates who have received satisfactory reviews are promoted to partner on a ‘fair and equal’ basis. She says she relied on those representations. She works until 1978 (for six years), she’s passed over not once, but twice – told to find another job. She’s terminated. 
b.             PH: District Court: dismissed based on 12(b)(1)
i.              Footnote 2- dismissed based on a lack of SMJ over the claim
ii.             federal question case- Title VII
iii.            Real motion that should have been brought was a 12(b)(6)- failure to state a claim- didn’t state a claim for relief
iv.            Standard for a 12(b)(6)- take all the facts she has alleged and assume they are all true and could be proven, and based on that and any other facts, would the law under which she is suing give her relief? Here, Title VII- would it give her relief
c.             claim:  § 703(a)(1): It shall be unlawful practice for employer to discriminate … with regards to terms, conditions, or privileges of employment (p. 40 statute)
i.              In the statute as it was enacted, the Definitions section was 701
ii.             Unlawful to discriminate based on “terms, conditions, or privileges of employment” because of sex
iii.            wasn’t made partner because of sex; relied on promise
d.             DC- says it doesn’t apply to partnerships- it’s like a marriage- doesn’t apply to coerce a mismatched marriage (Senator Cotton)
e.             11th Circuit affirmed on different grounds; now go to SCOTUS, which reverses
f.             Holding page 5 Footnote 10: That in appropriate circumstances partnership consideration may qualify as a term, condition, or privilege of a person’s employment with an employer large enough to be covered by Title VII.
g.             In the very beginning of the case, talked about how they had more than 50 partners, employed more than 50 associates- showing us they qualified under Title VII
h.             §701(b) p. 37: Employer: person engaged in an industry affecting commerce who has fifteen or more employees
i.              Appropriate circumstances: 1) Statements made at interview; 2) Were using that to induce people to accept offers; 3) therefore, said that was part of the contract of my employment- therefore it is a term or condition of my employment
j.              Reason she sued under Title VII rather than in contract- nothing express and written; was oral- was in 1972 as well. What law would have applied? Massachusetts where it was formed? Georgia where it was breached?
i.              Under state common law, she would have had to actually prove that they said “on a fair and equal basis”
ii.             Title VII as federal law- they don’t have to have said “fair and equal” as to the categories protected by Title VII
3.             Categories: Race, Sex, National Origin, or Religion under Title VII
a.             Hishon Hypo 1: If it had been a buyer’s market and they didn’t have to promise fair and equal basis, Title VII would still apply
b.             Assume she was hired with no representations. Still would apply- she could show that only male associates were hired on as partner. If it turns out that they are making their partners from the ranks of the Senior Associates, then they have to do that in a nondiscriminatory manner as well
i.              Would be a noncontractual benefit of employment (p. 4 2nd paragraph)
ii.             informal mentoring- argument that informal networking occurs and that is how you build your career (i.e. softball)
c.             Hypo 2: Say one of the senior partners was still around. He’s old and doesn’t think women should ever make partner. The woman interviews at Harvard. During the interview they tell her that the senior partner has always said he wouldn’t allow women partners. Can’t make you partner while he is still around.
i.              Nothing is ever said to change the status of Mr Spaulding over the next 7 years, and she still doesn’t make partner. Now she sues
ii.             §703(a)(2)- Unlawful for an employer to limit employees or applicants in any way
iii.            Firm- she waived, and she was a smart lawyer. Can she waive this right? Can she make an anticipatory waiver? Can she waive her rights? Generally not.
iv.            Subsidiary and related question- when did her claim arise? When they told her we will never make you a partner? Or when it actually occurred?
v.             Statute of limitations issue- when did it occur? When she was hired under those terms, or when she didn’t make partner?
4.             Title VII does not cover contract relationships with an independent contractor.
B.    Two prereqs under Title VII:
1.                   Filing a timely charge with the equal Employment Opportunity Commission
2.                   Have to file a timely suit after receiving the right to sue letter from EEOC
a.             Technically not SOL, but like them
b.             For Hishon, it was 180 days in order to file the charge with EEOC. Then 90 days from receipt of right to sue letter to file in federal court.
c.             In most states, time period is 300 days from the event, not 180 days. Has to do with whether the state has its own anti-discrimination law and own agency empowered to investigate violations of that statute. 
d.             Only two states that don’t: AL & MS: only have 180 days
C.    EEOC:
1.             Any time EEOC settles, they also have power to sue.
2.             They will want training, oversight, revamp of policies
3.             Can look up laws, guidance sheets, initiatives
4.             Relatively weak agency as far as agencies go
a.             Originally was going to have the authority to hold administrative hearings. That was stripped from the statute as part of the many compromises in order to pass the bill.
b.             EEOC can’t issue substantive rules- it can issue procedural rules and guidance, but they have as much authority with the courts as the courts are willing to give them
c.             Don’t have substantive rule-making authority. Originally when the act was passed, didn’t have the power to sue. An amendment gave it the power to sue. 
5.             every person has to file with EEOC before they can sue
6.             EEOC Process:
a.             aggrieved individuals are entitled to let EEOC investigate their case. 
b.             Charge gets filed with EEOC. 
c.             EEOC talks to witnesses, etc. 
d.             comes to some type of determination but will not be adversarial. 
e.             Issues a reasonable cause or no reasonable cause finding, or no jurisdiction, etc. f.            Any time along the way, the charging party can ask for a right to sue letter and
then they file suit within the 90 days. 
g.                    If EEOC finds reasonable cause, it can sue on behalf of the charging party
D.      Other Statutes:
1.             Congress ordered a study on age discrimination following Title VII. Led to the passage in 1967 of the Age Discrimination in Employment Act (ADEA)
a.             ADEA- has been amended a lot over the years, and has gotten closer and closer to Title VII in enforcement. EEOC also administers that one as well.
b.             Oddly, applies to employers of more than 20 employees. So it would be possible for an employer covered by Title VII but not ADEA
c.             Protects anyone who is 40 or over. 
d.             KS: made it 18 and over. 
e.             KS law is applied to employers with 4 or more employees. 
2.             ADA (Americans with Disabilities Act)- passed in 1990; has same coverage as title VII- 15 or more employees; is another omnibus act; enforced by EEOC
3.             1191- Civil Rights Act (CRA) of 1991- did a lot of amendments to Title VII
4.             42 USC § 1981 (p. 548 supplement)- was the CRA of 1866 Race Discrimination Statute – after Civil War, freed the slaves.
a.       §1981(a) Race discrimination
b.       Anyone can be a D – i.e., no size limitation. So one person could be a D. 
c.        Employment is a K.

ate’s other argument was that we only direct the money – the ct said that the definition of an employer in 701 b includes “any agent” and the insurance company is the State’s agent.
ii.                    So long as there are sex based distinctions the plan is unlawful.
e.             Phillips v. Martin Marietta Corps p. 92 (1971) : §703(a)- persons of like qualifications be given equal employment opportunities irrespective of sex
i.                     FACTS: Not hiring women with pre-school children. There was no
discrimination for women in general. 75% of the applicants were female. Had two separate rules – one for women and one for men. They did not have this rule for men with children.
ii.             CA: Note 1: construed Title VII to prohibit discrimination only if the
distinction was SOLELY on the basis of race, sex, or ethnicity – and this was rejected by Phillips.
iii.                  USSC: “ The above is a matter of evidence tending to show that the condition in question is “ a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise”
a)       Thus it wanted further investigation – Summary judgt by the Appeals ct was in error.
iv.      Rule: Possible to discriminate for a subset of some group. Can’t have difference in rules for women v. men.
f.             Phillips and Mary Tyler Moore Video:
i.              When Lou asks her what religion are you, she balked. Technically, it is not against the law. It’s really stupid unless the employer has a defense for using religion to decide whether or not to hire you. What’s the assumption?
a)            You would ask if you wanted to use it for your hiring decision. BFOQ
ii.             If you ask those questions and you don’t hire that person, you have a problem. Technically, though, you can look at the statute- it is not unlawful to ask; it’s just unlawful to use it. 
iii.            One exception: if the question relates to a disability
iv.            ADA Sect. 102(d)(1)- The prohibition against discrimination as referred to in subsection (a) shall include medical examination and inquiries. Can’t do medical examines and can’t make inquiries.
a)            102(2)(A)Pre-employment- a covered entity shall not conduct a medical examination or make inquiries of a job applicant or employees as to whether such applicant or employee is an individual with a disability or as to the nature or severity of such disability
b)            (d)(3)- can require a physical examination after the offer has been made and prior to the commencement of the employment duties. Can condition an offer of employment on the results of such examination, if—
A)            all entering employees are subjected to such an examination 
                                                                                B)            keep it confidential
                                                                                C)            use it only in accordance with this title
v.                   Physician can ask any question or do any test; say you find this person has cancer, is a diabetic, has a seizure disorder, has Hepatitis C- the person who has just received the offer then asks was it something from the physical?
a)            The employer can’t say no, because it is post-offer. Employer will then have to prove the results of the exam threatened the health and safety of others or will render the person unable to perform the duties of the job with accommodations