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Employment Discrimination
University of Mississippi School of Law
Berry, William W.

Employment Discrimination
Professor Berry
Fall 2010
        I.            INTRODUCTION
a.       Historical Perspective
                                                               i.      Timeline – Events Leading Up to passage of Civil Rights Act of 1964:
1.       1954: Brown v. Board
2.       Oct 1, 1962: James Meredith enters Ole Miss Law
3.       April 16, 1963: MLK writes Letter from Birmingham Jail
4.       June 11, 1963: JFK gives civil rights speech
a.       “The heart of the Q is whether all Americans are to be afforded equal rights and equal opportunities…”
5.       June 12, 1963: Medgar Evers is murdered
6.       August 28, 1963: MLK “I have a dream speech”
7.       November 1963: JFK assassinated.
8.       July 2, 1964: LBJ signs the Civil Rights Act into law
b.       Theories of Equality
                                                               i.      What is discrimination? (not defined by fed. Law)
1.       Title VII § 703: Employer Practices
a.       It shall be unlawful employment practice for an employer to…
                                                             ii.      Class Definitions
1.       Historical Perspective: Colorblindness
a.       “Unfair treatment based on an inherent quality.” – Wrigley definition
2.       Economic Perspective: Equality as Merit
a.       “Evaluating individuals based on stereotypes or preconceptions instead of their merit.” – Rice definition
3.       Remedial Perspective: Equality of Opportunity
a.       “Denying equality of opportunity.” – McSwain definition
                                                           iii.      What does it mean to treat with equality?
1.       Berry’s definitions of “equal”:
a.       Based on choosing NOT to consider certain categories such as race/gender etc., i.e., “neutral/blind” as to these issues.
b.       Based on choosing to consider certain categories of “merit” … fair bc treated equally as to the same proper criteria.
c.       By taking into consideration other circumstances, such that everyone has an equal opportunity.
                                                           iv.      Competing Theories of Equality – Bases for Showing Discrimination
1.       Historical Perspective: Colorblindness.
a.       Past discrim has been addressed by Title VII, etc.
                                                                                                                                       i.      Race/color/sex/natl. origin = irrelevant; use of such categories prohibited.
b.       A “negative” conception of equality – protects equality by prohibiting discriminatory conduct.
2.       Economic Perspective: Equality as Merit
a.       Equality based on merit – ‘careers open to talent.’
                                                                                                                                       i.      Assures ‘right to compete’ for all; but doesn’t guarantee results/opportunity to gain a talent.
b.       “Positive” conception of equality – what employer can consider.
c.       Basis for “management discretion” as a defense to claim of employment discrimination.
3.       Remedial Perspective: Equality of Opportunity
a.       Looks backward THEN forward to consider continuing effects of past discrimination.
                                                                                                                                       i.      Determines whether these effects persist despite the abolition of past discriminatory practices.
                                                                                                                                     ii.      Asks whether present practices, even if not repeating the past, continue to perpetuate their unjust effects.
4.       Notes on these Theories
a.       None of these is freestanding/independent of the others.
b.       Difference in emphasis; not fundamental principle…employment discrim law encompasses all 3 of of these theories.
                                                             v.      Two General Theories of Discrimination:
1.       Disparate Treatment
a.       Individual OR class claims where D intentionally discriminated against P(s).
b.       All about showing intent – if you can’t prove intent, have no claim for disparate treatment.
2.       Disparate Impact
a.       Class claims only; where D adopted a facially neutral policy that has a discriminatory impact.
a.       Statutory Definitions of Discrimination
                                                               i.      Slack v. Havens (TWEN)
1.       FACTS:
a.       4 black women forced to do major heavy cleaning in factory that wasn’t in their job description; white woman working with them was excused; boss said “colored folks clean better; should stay in their place; do the work or else.”
a.       “Ds cannot be allowed to divorce boss’s conduct from that of the company…there was a definite causal relationship btw Pohasky’s apparently discriminatory conduct and the firings.”
b.       “Had Pohasky not discriminated against the Ps by demanding they perform work he wouldn’t require of a white female employee, they would not have been faced with the unRS choice of having to choose btw obeying his discriminatory work order and the loss of their employment.”
3.       HELD:
a.       BLR: Discriminatory words and actions are proof of discriminatory intent and direct evidence can be used to show an intent to discriminate under Title VII. (Slack).
                                                             ii.      Standard to Prove Discrimination
1.       Whether employer was treating the Ps differently than others because of their race.
                                                           iii.      “Causation” Problems
1.       If you only have circumstantial evidence (rather than direct), how can you get past summary judgment?
a.       Will this circumstantial evidence be enough to show that P wasn’t hired/promoted/etc. due to his race/gender/etc?
2.       What if there was a second (possibly valid) reason for the adverse employment decision?
                                                           iv.      “Causation” Solutions
1.       When you can’t show ‘because of’ race/gender/etc through direct evidence (the problem of only circumstantial evidence…): Use the McDonnell Douglas framework.
2.       When you can’t show ‘because of’ race/gender/etc. by single motive (the problem of a mixed motive/motivating factor); Use Price Waterhouse framework.
b.       The McDonnell Douglas Framework
                                                               i.      Note on Burdens
1.       Burden of Proof
a.       Burden of production – what P must show to survive motion for SJ or DV.
b.       P must provide enough evidence to show that a RS jury could infer that he established a cause of action.
2.       Burden of Persuasion
a.       What P must show to prevail at trial (whether its with jury or just a judge.)
b.       P must provide enough evidence to prove case by a preponderance of the evidence.
                                                             ii.      McDonnell Douglas Corp. v. Green (1973) p. 51
1.       FACTS:
a.       “The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities…”
b.       Requirements to Establish Prima Facie Case:
                                                                                                                                       i.      What P must show to get his claim past SJ and get to a jury:
1.       P belongs to racial minority/protected class;
2.       P applied and was qualified for a job for which the employer was seeking applicants;
3.       That despite his qualifications, P was rejected; and
4.       That after his rejection, the position remained open and the employer continued to seek applicants from persons of P’s qualifications.

                                i.      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
                                                                                                                                     ii.      (2) 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, bc of such individual’s race, color, religion, sex, or national origin.”
                                                         vii.      With Regard to Pretext
1.       What must a P show to carry burden of production and avoid being dismissed during summary judgment?
a.       Is it enough to show that D is lying? Or must you create an inference of discrimination?
b.       To answer…the following cases.
                                                       viii.      Texas Dept. of Comm. Affairs v. Burdine
1.       FACTS:
a.       P claimed her termination of employment was predicated on gender discrimination in violation of Title VII.
a.       Dist. Ct – Ds proffered reason rebutted Ps p/f case.
b.       CTA – Ds proffered reason wasn’t enough; D must also show that D kept better/more qualified employees.
c.       SCOTUS:
                                                                                                                                       i.      Says CTA misconstrued the burden the McDonnell Douglas test places on D and instead required the D here to do much more—prove court that it had convincing, objective reasons for preferring the chosen applicant above P.
                                                                                                                                     ii.      Essentially saying that:
1.       D only has burden of production to articulate a legit, nondiscriminatory reason for its adverse employment decision.
2.       Ds burden of production does NOT include any other reqt, including a justification that their choice was more qualified than P, etc.
3.       D NEVER has burden of persuasion to the ct.
3.       HELD: ???
4.       But the SCOTUS language still creates ambiguity—
a.       “P retains burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true one for the employment decision. This burden now merges with the ultimate burden of persuading the court that she’s been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discrim reason more likely motivated the employer, or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
b.       So Ps burden of production (show pretext) “merges” with burden of persuasion.
                                                           ix.      St. Mary’s Honor Center v. Hicks (US 1993) p. 72