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

Employment Discrimination Outline
Professor Berry – Fall 2009
Sources of Employment Discrimination Law:
·         The US Constitution
o   The Equal Protection Clause, 14th Amendment: “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws”
o   Levels of Scrutiny:
§ Race: Strict Scrutiny
§ Gender: Mid-level Scrutiny
§ Disability: Rational Basis
·         The Civil Rights Act (1866) 42 U.S.C.§1981 (amended 1991)
o   All persons within the jurisdiction of the US 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 law 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.
o   This only addresses the issue of race and was not enforced until 1975.
·         The Civil Rights Act (1871) §1983
o   Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the US or any person within the jurisdiction thereof to the deprivation to any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit at equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
o   This provides a statutory basis for bringing constitutional claims.
·         The Equal Pay Act (1963)
·         The Civil Rights Act (1964) (amended 1991)
o   Applies to public and private employers
o   Encompasses every aspect of the employment relationship
o   Prohibits discrimination on the basis of: race, color, religion, sex, and national origin
·         Executive Order 11246 (1965)
o   Governs equal opportunity for employment with the federal government.
o   Goes significantly beyond Title VII; relies heavily upon population statistics.
·         Age Discrimination in Employment Act (1965)
o   Prohibits discrimination based on age and encompasses every type of employment decision.
o   Applies to people who are 40 years old and older.
·         Americans with Disabilities Act (1990)
o   Comprehensive (all employers)-prohibits discrimination based on ability.
o   Complicated statutory scheme; requires employers to make “reasonable accommodation” for employees with disabilities.
·         Administrative Regulations (EEOC)
·         State and Local Anti-Discrimination Laws
o   Some states have extended protection to sexual orientation, apparel, grooming, physical appearance, tobacco use, and domestic arrangement discrimination.
·         Contract and Tort Theories
o   Contract: Out of employment relationship; out of union contract
o   Tort: Wrongful termination
Competing Theories of Equality
·         The Historical Perspective: Colorblindness
o   Past discrimination has been addressed by Title VII; race, color, religion, sex, and national origin are irrelevant.
o   Use of such categories is prohibited – protects equality by prohibiting discriminatory conduct.
·         The Economic Perspective: Equality as Merit
o   Careers are open to talent; assures right to compete to all
o   Does not guarantee results or opportunity to gain talents
o   Basis for “management discretion” as a defense to employment discrimination
·         The Remedial Perspective: Remedial Equality
o   Looks backward then forward to consider the continuing effects of past discrimination
o   Identifies all of the effects of past discrimination (backward) then determines whether these effects persist despite the abolition of past discrimination practices (forward)
o   Asks whether present practices, even if not repeating the past, continue to perpetuate their unjust effects.
o   Basis for affirmative action and disparate impact; goes beyond equal competition and has been extended to situations where no past discrimination has occurred (disability)
Title VII, §703 (42 U.S.C. §2000e-2)
·         Employer Practices:
o   It shall be an unlawful employment practice for any employer:
(a)   To fail or to refuse to hire or discharge any individual, or otherwise to DISCRIMINATE AGAINST ANY INDIVIDUAL with respect to his compensation, terms, conditions, or privileges of employment, BECAUSE

ollows that it cannot take the greater step in discarding the tests altogether to achieve a more desirable racial distribution of promotion-eligible candidates-absent a strong basis in evidence that the test was deficient and discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional exams.”
o   However…there was no adverse employment action, the tests were thrown out NOT to discriminate against whites, but because they were unfair. Thus the action was not “because of race.” Remedying Title VII disparate impact claims cannot count as disparate treatment, otherwise disparate impact would have no meaning.
o   The City’s Defense: Does the city have a legitimate business reason for throwing out the tests? P says no because potential of a disparate impact lawsuit is not a legitimate justification.
·         The new standard says that a potential disparate impact claim is only legitimate when there is, “a strong basis in evidence of disparate impact liability.”
o   Was there a “strong basis in evidence?” – Was there disparate impact? – Was the test job related for the position in question and consistent with business necessity? – Is there another alternative that can achieve the business purpose without a disparate impact?
·         Court’s holding: Where an employer discards test results based on racial disparity, such action is disparate treatment under Title VII, unless the employer can demonstrate a strong basis in evidence that the test created a disparate impact. (Ricci)
2 Forms of Disparate Treatment Discrimination (Hazen Paper Co. v. Biggins)
·         Individual Disparate Treatment: