Employment Discrimination
Katz
Fall 2013
Statutory background
● 42 USC § 1981 (1866) – racial discrim in making & enforcing contracts
● 42 USC § 1983 – vehicle for most con-al claims against state actors. Limitations rule: default tort statute.
● T7 of CRA of 1964 – race, color, religion, sex, nat’l origin (RCRSN). Originally no damages or right to jury trial. Prevailing Πs get attys fees. Prevailing Δs may get attys fees. Rat: we are a nation of ees more so than 100 years ago.
§ 701
(j) – def of religion = all aspects of rel observance & practice, unless er unable to RA w/out UH (USSC says undue = > de minimis)
(k) – “because of sex” or “on the basis of sex” include pregnancy, childbirth
§ 703
(a)(1) intent implied from “because of,” but causation can include but-for and proximate causation.
(a)(2) DI. Π must show each challenged emt practice has DI, but if can’t easily separate, Π can challenge process altogether. Δ carries burden of persuasion as to defenses = job-related and a business necessity. CRA of 1991. Π must then show an alternate emt practice. Goes beyond Congress’s 14A powers (Feeney). 80% rule: if rate at which one group passes a test = <80% rate at which another group passes, it’s a PF DI case. Ers cannot add points to minority ees’ scores = in-group norming (CRA ’91). Ers may use test as only one factor, or lower the std to increase the pass rate. Also a way to force accommodation. Use when can’t prove intent. All things equal, Π should bring DI claim b/c (1) easier to prove and (2) doesn’t sour the relationship.
(e)(1) not unlawful if “on the basis of religion, sex, nat’l origin…if BFOQ reasonably necessary to the normal operation of that particular business.”
(h) bona fide seniority or merit system OK if no intent to discrim.
(k)(1)
A. Π must show:
a. Job related or business necessity; or
b. Alternative emt practice & Δ refuses to adopt it.
B. Π must demonstrate that each emt practice cause a DI, but if not capable of separation, may be analyzed as one emt practice
(l) unlawful to adjust scores emt related tests (“in-group norming”)
(m) if RCRSN “was a motivating factor…even though other factors also motivated the practice,” violation of T7. So if 30% factor, Δ is liable.
§ 704: forbids retaliation
§ 706: EEOC has implementation responsibility for T7. Cases are initiated by filing a charge w/ EEOC (or, if state agency, go there first, then wait 60 days). EEOC investigates the charge and tries to mediate the case. A negative EEOC determination does not preclude a lawsuit (but may affect court’s jdt). When finished, issues a right-to-sue letter. EEOC also has authority to sue ers, which precludes ee from suing er.
● ADEA of 1967, S 89 – over age 40. 90% of ADEA cases are termination. 7th Cir: no reverse discrim under ADEA.
● CRA of 1991 – T7 and § 1981 cases. Added damages for intentional discrim, right to jury trial. In DI cases, Δ carries burden of persuasion as to LBJ.
● ADA of 1992, S 121 – TI = Emt; T3 = public accommodations. Covers DT, DI, reasonable accommodations (a form of discrim under ADA).
§ 2(a)(7) disabled are a discrete & insular minority – false! Disabled got statute passed & no history of Con-al protection. If can’t do job w/ RA, not covered.
§ 3(2) Def of Disability
§ 101 T1 Definitions
(8) Qualified Individual with a Disability – w/ or w/out RA, can perform essential functions of job that he holds or desires. Performing w/ or w/out RA is like a BFOQ.
(9)(B) Reasonable Accommodation – taken from T7 § 701(j). May include duty to reassign to a vacant position.
(10) Undue Hardship – factors include nature and cost of accommodation and er’s overall financial resources
§ 102(b)(5)(A) discrimination includes not making RAs to known limitations (excludes “regarded as”) unless UH. If er makes a RA w/in bounds of good faith, no damages even if insufficient. Encourages er to use cheapest accommodation possible bounds of good faith. Measure cost of accom against benefit. Also, must actually help ee.
Under Chevron, unless language of statute is clear, if Congress has delegated power to interpret statute to EEOC, and EEOC’s interpretation (rules) is reasonable, ct will give deference. Less than Chevron deference for Guidelines.
Types of causes of action:
Intent No Intent
1. Individual DT Disparate Impact
a. Mixed Motive
b. Reverse Discrim
2. Patterns of discrim/class-based/systemic
a. Facially Discriminatory
b. Pattern & Practice
Assimilation = conversion, passing, or covering. N 64
I. CL Background: Emt at Will (?) = can hire, fire, promote for any reason, or no reason at all. Exception = Mont. – have to have a reason for discharge. Rat: property theory; ees can always walk away b/c of 13A, so ers can too. Emt ks have to be explicit. Modern trend = erosion (statutes and courts).
Foley v. Interactive Data Corp. (Cal. 1988), EH 769, N 5, 9 – Foley had to sign 1 year non-compete & invention disclosure agreements, but didn’t mention termination. Δ made oral assurances of job security & had termination guidelines. Told former boss that current boss being investigated by FBI for embezzlement. Fired. Jury found breach of k implied-in-fact based on oral assurances, long-term relat., emt manual (1-yr loyalty prov).
Bankey v. Storer Broadcasting Co. (Mich. 1989), C 2 – Er may unilaterally change written discharge-for-cause policy to employment-at-will policy, even though right to make such change was not expressly reserved from onset, but, to be effective, reasonable notice of change must be uniformally given to affected employees. Just-cause provision in ee manual is enforceable b/c of expectations. But since SBC revoked it, they win.
II. Disparate Treatment – Infer intent from statistical results (Std Devs) and witnesses telling stories of discrim (b/c ers don’t write down discrim policies) for PFC. Then er can rebut.
a. Individual DT. § 703(a) (S 12).
i. The Basic Framework
McDonnell Douglas Corp. v. Green (US 1973), EH 56, N 12 – Powell: T7 did not restrict a complainant’s right to sue to those charges as to which EEOC has made findings of reasonable
now is to get to jury.
Swierkiewicz – Former employee brought suit against employer, asserting claims of racial discrimination in violation of Title VII, and under ADEA. Thomas (unanimous): a complaint in an employment discrimination lawsuit need not contain specific facts establishing a prima facie case of discrimination under McDonnell Douglas, but must contain only a short and plain statement of the claim showing that the pleader is entitled to relief. Req’s of McDonnell Douglas PFC are not pleading req’s, so don’t have to say all the elements in your complaint. The PF structure happens in the proof state.
ii. Pretexts and Mixed Motives
Fisher v. Vasser College (2d Cir. 1997) (en banc), C 13, N 29 – College professor sued college, alleging that college’s failure to grant her tenure for missing work violated T7, ADEA, and the Equal Pay Act. District court’s finding of liability under Title VII was subject to review for clear error. Missing work = strong er reason for terminating.
Krieger, “The Content of Our Categories,” D 134, N 30 – Pre-1970s, social scientists thought intergroup prejudice stemmed from motivational processes. Now, think cognitive structures and processes involved in categorization and information processing can in and of themselves result in stereotyping and other biased intergroup jdt.
Price Waterhouse v. Hopkins (US 1989), EH 77, N 30 – Female partnership candidate who was refused admission as partner in accounting firm brought sex discrimination action against firm. Brennan plurality: (1) when plaintiff in Title VII case proves that her gender played part in employment decision, defendant may avoid finding of liability by proving by preponderance of the evidence that it would have made same decision even if it had not taken plaintiff’s gender into account, and (2) evidence was sufficient to establish that sexual stereotyping played a part in evaluating plaintiff’s candidacy. “Because of” sex means it is one factor = not but-for causation. Even if only 30% of the motivation, it violates § 703(a)(1). Good accountant, but too aggressive = sex stereotyping (substantive) + mixed motives (procedural).
§ 703(m) – if RCRSN “was a motivating factor…even though other factors also motivated the practice,” violation of T7. So if 30% factor, Δ is liable.
b. Systematic Disparate Treatment: Pattern & Practice = systematic evid of discrim against >1 person. Only the EEOC can bring suit under § 707(a) (S 25). EEOC has to show discrim was the rule, not the exception.
