Employment Discrimination Outline

Employment Discrimination Outline
Professor Steven Willborn
Fall 2014
 
 
Employment Discrimination Gameplan
 
 
Title VII/ADEA – Protects race, color, religion, sex, or national origin
Applies to those with over 15 (Title VII)/20 (ADEA) employees
Requires an ” – One who renders service for another without doing so as part of an independent business (whether the individual business involves “entrepreneurial control”)—look to Restatement factors
Managers/partners/volunteers NOT included
Requires an ” – “A person engaged in an industry affecting commerce that has ____ or more employees for each working day in each of twenty or more calendar weeks.”
Integrated enterprise/single employer doctrine – Sometimes two distinct entities are viewed as being a single employer
Joint employment – An employee of one entity can sometimes hold a different entity liable if both co-determine the terms and conditions of employment
Requires a material of employment
– The term “terms, conditions, and privileges” includes benefits that are not contracted for.
– A benefit provided by an employer that the employer has no duty to provide, but voluntarily chooses to do so, is a privilege for Title VII purposes.  A privilege cannot be doled out in a discriminatory matter. 
§ 1981 – Protects against race discrimination
Applies to ALL employment contracts, regardless of employer size UNLESS government is employer
No cap on damages
Procedural Requirements
Enforcement models:
American model – Employee vindicates their own rights
NLRA model – Employee files a charge with the labor board and board prosecutes
Title VII model – Employee files suit, BUT employer pays attorney fees if employee wins
Title VII and ADA: The ADA incorporates all Title VII procedures
Step #1 – File a charge with the EEOC
Step #2 – Make sure the charge is timely
Clock starts running when P knew/should’ve known of the injury, not when it came to fruition
Many states have deferral requirements
– No state requirement; EEOC requires charge within 180 days of the event(s)
(MORE COMMON) – State requires you to file with the state agency first
Charge must be filed within the SHORTER of 300 days of 30 days of state agency dismissal
P CANNOT file with EEOC until 60 days after filing with the state
HWE/contaminated environment/EPA claims are okay as long as at least one event occurred during SOL period
Step #3 – EEOC serves notice on the employer within TEN days
Step #4 – EEOC investigates the claim
Step #5 – EEOC makes a “reasonable cause” determination
Step # 6 – If conciliation fails, EEOC must send right t o sue letter within 180 days of the charge
Step # 7 – Plaintiff must file suit within NINETY days of receiving right to sue letter
Title VII and ADA:
Step #1 – P must file a timely charge
– within 180 days
– Charge must be filed within the SHORTER of 300 days of 30 days of state agency dismissal
CAN file simultaneously, however!
Step #2 – P must file a timely lawsuit
When can you FIRST file your lawsuit: Anytime after 60 days of filing the charge
When do you HAVE to file your lawsuit: 90 days from the time the EEOC tells you they’re done with their investigation
§ 1981 and § 1983:
Procedural prerequisites: NONE
Statute of Limitations (28 U.S.C. § 1658): 4 years
§ 1983: Given immunities, P must file suit against a government agency/entity, not a “State”
: Rules vary, but agency rulings typically do NOT have preclusive effect, but court decisions DO
Class action: Classes must meet ALL of the FRCP 23(a) requirements, and ONE of the FRCP 23(b) requirements
Rule 23(a) – 4 factors MUST ALL be met: (1) numerosity, (2) commanality of law/fact, (3) typicality, and (4) adequate representation
Rule 23(b) – ONE of the (b) requirements must be met: (1) D acted in way generally applicable to class, (2) common questions predominate suit
Very difficult after Wal-Mart
Individual Disparate Treatment
Individual disparate treatment – Discrimination against an individual based on a protected trait.  Discriminatory effect is NOT required.
:
Race, color, religion, sex, or national origin: See Title VII § 703(a)
Age 40+: See ADEA § 623
Disabled “qualified individuals”: See ADA § 102
McDonnell-Douglas model – A “black and white, either/or” burden shifting model used to show disparate treatment.
Step #1 – Plaintiff must establish a prima facie claim: (1) P member of protected class; (2) P qualified and applied; (3) P rejected; (4) job remained open.
Step #2 – Defendant must “articulate a legitimate nondiscriminatory reason: Does not have to be a “good” reason—almost anything will do
Step #3 – Plaintiff must show the reason proffered is merely pretext and discrimination is the real reason: Look to similarly situated persons, how P was treated, etc. to determine whether discrimination occurred.  Jury must find reason was pretext AND that discrimination was the real cause
Seminal case: McDonnell Douglas v. Green
Mixed motives model – Model used for disparate treatment when multiple reasons for the employment action exist
Race, color, religion, sex, or national origin: See Title VII § 703(m)
Seminal case: Price Waterhouse v. Hopkins
Three approaches:
(1) O’Connor’s Price (controlled prior to 1991 Amendments)—P show protected trait a “substantial factor” w/ direct evidenceàD must show action justified by legitimate factoràNo liability if D is successful
(1) Pre-1991 Title VII, (2) some state decisions
(2) § 703(m)—P must show protected trait a “motivating factor”àD can raise partial affirmative defense (§ 706(g)(2)(B)) to show it would’ve taken action even without considering protected traitàP entitled to partial injunction, declaratory judgment, and attorney fees if D successful
(1) Title VII, (2) FEDERAL age cases (even more liberal by using “free of” language)
(3) Scalia Price dissent—Burden NEVER shifts to employer, so employee must show substantial factor and that the action would’ve have been taken absent considering the trait (NOTE: This is essentially the Gross model)
(1) ADEA, (2) ADA probably, (3) retaliation probably given Nassar
model – Model for disparate treatment where the burden NEVER shifts to the employer—P must prove the protected trait was the “but for” cause of the action
: See ADEA § 623(a)(1)
Use in ADEA, ADA, and retaliation cases
Seminal case: Gross v. FBL Financial services
Odd reasoning in case—supposedly O’Connor rule hard to apply and Congress purposefully chose not to amend ADEA
– Affirmative defense if discrimination is reasonably necessary to the normal operation of the particular business
See below for details
Systemic Disparate Treatment
Systemic disparate treatment – When the employer has a facially (can be inferred) discriminatory pattern/practice that discriminates against a class as a whole and illustrates discriminatory animus (sometimes can be implied)
:
Race, color, religion, sex, or national origin: See Title VII § 703(a)
Age 40+: See ADEA § 523
Individual claims: Once systemic disparate treatment is established, individuals can come forward
:
Step #1 – Identify the actual treatment of the protected class: It is sometimes difficult to define the class and their treatment
Step #2 – Quantify the ideal/expected treatment of the protected class: Decide how market should be defined (applicant pool vs. labor force)
Step #3 – Compare the actual treatment and the ideal/expected treatment: Typically must be within TWO standard deviations (5% chance of Type I error, that is, false finding of discrimination).  Use the Z-Score test below.
: Systemic treatment is based on probability, so there is Type I error (false liable) and Type II error (false innocent)
Statistical analysis: Be sure to compare only TWO factors at a time!
– Used to determine how many standard deviations away the actual treatment is from expected treatment
 
 
O = Actual Treatment
N = Size of the sample
P = Ideal Treatment Expected (percentage/decimal)
Denominator = 1 standard deviation
– Affirmative defense if discrimination is reasonably necessary to the normal operation of the particular business
: Title VII §703(e) (and ADEA twin statute)
: NARROWLY construed
NEVER applies to race/color claims
Proving BFOQ: (1) Discriminatory rule/practice must be reasonably necessary to the job; and EITHER (2a) All/substantially all of the excluded group cannot perform the essence of the job, OR (2b) some members cannot perform the job and it’s impossible to make individual evaluations
(1) Ability to do the job, (2) safety, (3) authenticity, (4) privacy/customer preference, (5) strong social conventions
Seminal case: International Union, UAW v. Johnson Controls, Inc.
Systemic Disparate Impact
Disparate Impact Discrimination – Facially neutral employment practices/policies that disproportionately burden one class due to a protected trait
:
Race, color, religion, sex, or national origin: See Title VII § 703(h)
Age 40+: See ADEA § 4(a)(2)
: 42 USC § 11112(b)(6)
Seminal case: Griggs v. Duke Power (Title VII) & Smith v. City of Jackson (ADEA)
: Note the analysis differs when analyzing defenses.
Step #1 – Identify the neutral employment practice: What is leading to the disproportionate results?
Step #2 – Determine whether a disparate impact exists: Use the 80% rule for EACH trait being analyzed.
80% Rule – A selection rate for any protected class that is less than 80% of the rate for the highest rate group will be regarded as evidence of adverse impact.  Any rate lower than that will NOT be regarded as evidence of adverse impact.
Selection Rate – Divide those who meet the requirement (numerator) by the entire class (denominator)
: (1) Divide the group into two classes.  (2) Determine how many in each group meets the requirement.  (3) Plaintiff selection rate goes on top; favored selection rate goes on bottom.  (4) Divide.
Do NOT use rejection rates—use selection rates
Step #3 – Allow D to raise an affirmative defense (business necessity for Title VII or RFOA for ADEA): Apply accordingly.
Business necessity – Title VII § 703(k): D must show (1) job requires the skill/attribute, AND (2) show the test accurately measures the skill (content-related tests relate to the skill needed; criterion-related tests are merely good indicators)
Easier to show than BFOQ
CANNOT just point to lack of discriminatory effect through AA program to justify bad test (Teal)
– ADEA§ 623(f)(1): D must show reasonable factor other than age for disparate impact.  No obligation for less-restrictive alternative
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