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Employment Discrimination
University of Missouri School of Law
Oliveri, Rigel C.

EMPLOYMENT DISCRIMINATION OUTLINE
Spring 2010- Professor Oliveri
 
àSignificance of Employment Discrimination
            2002-21,000 EM Discrim cases filed in fed ct
                        8% of all fed civil filings
                        At appellate level, 17% of cases are em discrim
                        84,442 reasonable cause charges issued by EEOC
                                    Race-35%        disability- 20%
                                    Gender-30%    national origin- 11%
                                    Age-22%         religion-3%
àThemes
            Who has a duty not to discriminate and to whom do they owe this duty?
            What types of actions constitute discrimination?
            How do you prove unlawful discrimination?
            How is the right to non-discrimination in em enforced?
            What remedies are appropriate?
 
Kerr v. Enoch Pratt Free Library of Baltimore
            1945-discrimination was legal
            Training program, which had to be completed to get a job at the library, had a policy of not admitting blacks. Resolution of the Bd.: “unnecessary and unpractical to admit colored persons to training class.” There were 200 black applicants and all were rejected admission. D argued that white ppl were better served by white librarians and that it was better for the needs of the patrons
            What can CT do?
                        Structural reform- stop doing this and fairly consider all applicants
                        Order her to be put in program- still needs training
                        Back pay- should have been working the last 3 years
                        Front pay- not able to put in position for various reasons-pd for next 2 yrs
 
àPre-Title VII Legal Framework
            C/L- no good b/c employment relationships were employment at will
            14th Amend Equal Protection Clause
                        No private right of action to enforce these rights- need to be given ability to sue
under Const by Congress
                        Applies to state action
            Reconstruction era statutes (Civil Rights Act of 1866)
42 USC §1983- provides a remedy for the deprivation of con rights by ppl acting
under color of state law
                        42 USC §1981- all ppl shall have the same rights to K as those enjoyed by white
Citizens
            Only applies to gov’t actors- b/t ppl and the state
Now-race discrim- applies to private actors under 1981
                        1941- Executive Order 8802
                        1961-Executive Order 10925
                                    Limited-applied to fed gov’t
                                    Had no enforcement authority
            Labor Laws
                        1930s-NLRA and RLA empower unions to collectively bargain for all EEs
                        1944- Steele v. Louisville and Nashville RR establishes duty of fair representation
                                    b/f 1944- unions were segregated, blacks had rights bargained away
            State Laws- 22 states
                        Some said discrimination was wrong but provided no enforcement mechanism
                        Some did provide for enforcement
                        Dealt only w/ race
 
àTitle VII Timeline
            June 1963- JFK sends civil rights bill to Congress that would prohibit discrim in em
            Aug 1963- MLK leads March for Jobs and Freedom on DC where he delivers Dream
Speech
            Nov 1963- Bill reported to House Rules Committee and is blocked
            Feb 1964- Bill passes the House and goes to Senate where it’s filibustered
            June 1964- Senate votes cloture on the bill
            July 1964- LBJ signs bill into law
           
            Title VII based under commerce clause authority-very broad
            Preliminary questions:
                        Who is the proper D?
                        What types of employment related actions are covered?
                        What are the prohibited bases for discrimination?
 
àTITLE VII
§703 Unlawful EM Practices
 
(a) Employer practices
 
It shall be an unlawful employment practice for an employer–
 
(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
 
(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, because of such individual’s race, color, religion, sex, or national origin.
 
(b) Employment agency practices
 
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
 
(c) Labor organization practices
 
It shall be an unlawful employment practice for a labor organization–
 
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
 
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or
 
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
 
            Core categories- race, color, religion, sex, national origin
                        No protection in fed law for sexual orientation
                        Disability and age covered in separate statutes
                        Discrimination based on other characteristics not in §703 is fair game
            Who is proper D?
                        §703 refers to an ER, an EM agency, and a labor organization
Must sue ER, not co-worker or supervisor, b/c part of statute is to protect individuals
 
àER is defined in §701 (b):
            (b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
 
            Protects small ERs- not have $, intimate work environment
                        15 EEs b/c the lawyers were independent contractors
            CT finds that they do affect interstate commerce- construe statute broadly
            CT looks to agency principles- ER has ability to direct and control lawyer’s work
Can’t say a professional isn’t an EE b/c Title VII meant to apply to all jobs, not just blue collar jobs
            Broader test: totality of the circumstances
                        Hire and fire ppl
                        $ went to law firm and lawyers paid salary out of that
                        Names on letterhead, doors, directory
            Control:
1)      Whether the organization can hire or fire or set the rules of work of the individual
2)      The extent, if any, to which the organization supervises the individual’s work
3)      Whether the individual reports to someone higher in the organization
4)      The extent, if any, to which the individual can influence the organization
5)      Whether a written document expressing the parties intention to treat the individual as an EE
6)      Whether the individual shares in the profits, losses and liabilities of the organization
 
Voluntee

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
 
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
 
(b) Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception
 
It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor-management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
 
 
            Retaliation for opposing discriminatory practices, filing charges, or participating in an
investigation under Title VII
            Causing to be published any advertisement for EM that indicates a discriminatory
preference or limitation
 
§703- Not an unlawful practice
                        e) to discriminate based on a bona fide occupational qualification
                        f) to discriminate against Communists
                        g) to discriminate based on a person’s failure to hold or qualify for a security
clearance
                        h) to institute a bona fide security or merit system
 
§701- Definitional Exemptions
            b) corporations wholly owned by the US gov’t, Indian tribes, and bona fide private
membership clubs are not ERs
            f) Federal elected officials, their staff, and political (non-civil service) appointees are not
EEs
           
§702 Exemptions
           
(a) Inapplicability of subchapter to certain aliens and employees of religious entities
 
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.