Select Page

Employment Discrimination
University of North Carolina School of Law
Hirsch, Jeffrey M.



Employment Discrimination – Cases and Materials – Estreicher & Harper – 3rd Ed.


a. Equal Employment Opportunity Commission (EEOC)

i. 5 Presidential appointees govern the agency and sign off on the rules

ii. Does formal rulemaking (usually with ADA and Title VII) and gets a high level of judicial deference in these areas. It also does litigation and enforcement.

iii. Also has a claim processing role. Complainants must go through the EEOC first before filing a lawsuit in court.

1. EEOC tends to take big cases that stand to have a lot of impact.

iv. Hybrid Enforcement – Either EEOC can pursue a claim (on behalf of the U.S. govt.) or a private party can bring the suit. This is beneficial because it won’t cost the plaintiff any money if the EEOC brings the case.

b. Statute of Limitations for Filing a Claim

i. 2 types of states with respect to filing Title VII claims

1. Work-share States (including NC) – the plaintiff may file with the state or EEOC within 180 days.

2. Deferral States – Must file with the state first

a. The State has exclusive jurisdiction for a maximum of 60 days.

b. But you must still file with the EEOC

i. You have 300 days (or 30 days after the state finished, whichever comes first)

c. Rule of thumb to avoid SOL problems:

i. File w/ state w/in 240 days.

ii. That way, they are sure to be done w/ their sole jurisdiction in time for you to file w/ EEOC before their 300 day SOL.


a. Single Motive (McDonnell Douglas Test)

i. Plaintiff/Employee Makes Prima Facie Case

1. creates a presumption of discrimination; P has the burden of persuasion (preponderance of evidence)

2. Requirements:

a. P must be the member of a protected class (race, color, national origin, sex, religion)

b. P must be qualified for the job applied for + applied

c. P must be rejected (or be victim of some adverse employment action that has economic effect)

d. Employer selected someone else for the position or it remained open

ii. Defendant/Employer gives a Legitimate, Non-Discriminatory Reason (LNR)

1. D has the burden of production – must attest that they did adverse employment reason for a valid reason.

iii. Plaintiff/Employer shows that D’s proffered reason is a Pretext for discrimination

1. P has the burden of persuasion

a. Can either show enough evidence that discrimination was reason for AEA; OR

b. Can attack the veracity of the employer’s LNR and show it’s a pretext for discrimination

2. WAYS to attack D/Employer’s LNR:

a. Bring in stats (of who gets fired, hired, etc.)

b. Point to employer’s policies and practices

c. Culture or past practices

d. Inconsistent Treatment (e.g., white employees who perform poorly aren’t fired)

e. Comments made (can help show discriminatory intent)

f. Timing of adverse employment (very important for retaliation cases)

iv. After-acquired Evidence

1. Evidence of wrongdoing by the employee/plaintiff is inadmissible to prove the employer is liable b/c such evidence had no bearing on the employer’s decision to take the adverse employment action. Such evidence is only admissible to limit the employee/plaintiff’s remedies (McKennon case)

a. The employer must still prove that such wrongdoing would be grounds for the adverse employment action. The employee will not be eligible for reinstatement and can only get backpay from the day of the adverse employment action to the day the company discovered the wrongdoing.

b. Mixed-Motives

i. Discriminatory reason (for AEA) + at least one LNR

ii. History:

1. 1991 Civil Rights Act § 703(m) – discrimination needs to be a motivating factor for AEA.

2. Desert Palace v. Costa – You can prove mixed-motives claims with circumstantial evidence (not just direct evidence).

iii. How to analyze

1. Did the employee show discrimination was a motivating factor?

a. Burden is higher than trivial, but lower than but-for

b. May use circumstantial evidence

2. Would the employer have taken the same action absent the discriminatory motive? (Employer can improve their case if they can show they took the same action with other employees facing similar issues)

a. YES à This is a partial affirmative defense for the employer and the employee is only entitled to certain remedies (injunctive relief, attorney’s fees, litigation costs)

b. NO à employee can collect full damages


a. Unlike individual DT claims where one individual faces discrimination, these cases are brought where discrimination “permeates the workplace.”

b. Not isolated (1 or 2 bad incidents are not enough) and not insignificant (a bunch of small things are not enough, either)

c. Can show with statistics + D.T. evidence, but it needs to be enough to convince a fact-finder that discrimination permeates the company.

d. How to analyze:

i. P’s prima facie case (stats + individual D.T. evidence showing a pattern or practice)

ii. Employer rebuts P’s evidence (attacks the stats) and provides a LNR

iii. P rebuts Employer’s evidence.

e. Statistical Significance

i. Employee wants to show that statistics showing discrimination are “statistically significant.” This means that assuming there is no discrimination, what is the possibility that the numbers would come out this way?

1. If 5% of minorities are in the relevant labor market, we’d expect the percentage of minorities in working in the company to be around 5%.

ii. Statistical significance = 2 or more standard deviations

1. P-value (this tells the percent chance we’d get 0.4% of minorities at random). The lower the p-value, the more statistically significant (<0.05 or less).


a. Intended to address facially-neutral policies that disproportionately exclude members of a protected class.

b. How to Analyze:

i. Employee makes a prima facie case of D.I. with statistics + other evidence

1. States: Use the 4/5 Rule

a. If th

Relevant Labor Market; Stats alone can make the prima facie case;

Not as wary of applicant pool

Same as Wards Cove

Same as Wards Cove


Must identify specific facially-neutral employment practice that caused the disparate impact. Ps must show precisely how much each employment practice contributed to D.I.

Follow Wards Cove if you have the data. But if you can’t tease out the effect of each employment practice, you can lump them together.

Follow Wards Cove.

Business justification

Burden of Persuasion (but we make employee jump through some hoops before this)

Business necessity MUST be necessary

Burden of Production (lower burden) b/c this is how disparate treatment claims and tort claims work.

Doesn’t have to be necessary, just legitimate business goal.

Burden of Persuasion!

Needs to be business necessity AND job related

Just needs to be a legitimate business goal (return to Wards Cove)

Less Discriminatory Alternative practice

Employee’s burden of persuasion. It must effectively serve business purpose

Employee’s burden of persuasion

Must be EQUALLY as effective at achieving Er’s business purpose

(Burden of Persuasion)

Must effectively serve the employer’s business purpose (does not need to be equally as effective)

Must be equally as effective (return to Wards Cove)

g. Ricci v. DeStefano (2009)

i. Rule: Before an employer engages in intentional discrimination for the purposes of avoiding an unintentional disparate impact, it must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to engage in race-conscious AA hiring.

1. If the facially-neutral practice results in enough of a statistically-significant disparity to make out a prima facie disparate impact claim (under the 4/5 rule), that is NOT a strong basis in evidence!

ii. Court also suggests that less-discriminatory alternative must be equally as effective as the challenged practice AND that the business justification need only serve a legitimate business purpose (rather than a business NECESSITY).