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Employment Discrimination
University of Pennsylvania School of Law
Tani, Karen M.

The overall framework
Disparate Treatment: “the employer simply treats some people less favorably than others because of their race, religion, or national origin. Proof of discriminatory motive is critical . . . .” (Teamsters)
Individual Disparate Treatment
Smoking Gun Cases
o    “Smoking gun”: the reason for employment decision is discriminatory
§ Slack v. Havens
Definition of employer – supervisor whose decision is supported by upper management.
Contrast w/ Biggins
There has to be a causal link b/w intent and adverse action.
Nothing less than causation will do.
Pretext Cases
o    the real (but hidden) reason for employment decision is discriminatory
§ McDonnell Douglas Corp v. Green
Step 1: Establish a prima facie case (burden on P to prove)
Member of a protected class
P applied / was qualified for available position (applies in promotion situations as well)
Despite qualifications, P rejected/
After rejection, position open to others
Step 2: Burden shifts to D to articulate legitimate non-discriminatory reason
Burden of production, not burden of persuasion
Must be met with admissible evidence
Reason must be clear and reasonably specific
Step 3: P has opportunity to establish that discrimination was real reason for D’s decision (pretext). Burden is on P.
Persuade court that a discriminatory reason more likely motivated employer than a non-discriminatory reason
Burden of persuasion?
P does not have to directly rebut D’s LNR
Use statistics, comparator groups, past history
Rejects Pretext-plus
Can use circumstantial evidence
Mixed Motive Cases (these can also be systemic disparate treatment cases)
o    Occurs when an employer’s decision to terminate is motivated by both legitimate and illegitimate reasons.
o    O’Connor binding decision:
§ In order to shift the burden, P must (a) use direct evidence to (b) show that discrimination was a “substantial factor,” i.e., a but-for cause (Price Waterhouse)
o    How CRA 1991 altered Price Waterhouse structure of proof:
§ P must only show that discrimination was “a motivating factor” rather than “a substantial factor”
o    Once P has met this initial burden, liability is established
§ Burden then shifts to D to prove it would have made the same decision
o    If D meets this burden, then P’s remedies are limited
o    Framework after CRA 1991
§ Step 1: P presents sufficient direct or circumstantial evidence for a reasonable jury to conclude, by a preponderance of the evidence, that discrimination was a motivating factor in the adverse decision. D’s liability is established
§ Step 2: D has the burden of persuasion to show that it would have taken the same action in the absence of the discriminatory motive (this is a limited affirmative defense)
§ Step 3: If D fails to meet burden of proof, full relief is available. If D meets its burden of proof, relief is affected. (Title VII: No backpay, reinstatement, or damages; but still gets declaratory and limited injunctive relief and attorneys fees and costs)
o    Bona fide Occupational Qualification (BFOQ) Defense
§ Framework (from Western Airlines v. Criswell)
o    1. Essence of the business: the job qualification which the employer evokes to justify discrimination must be “reasonably necessary to the normal operation of the defendant’s business,” AND
o    2. Proxy: The employer must prove that it is compelled to rely upon (sex, age, etc.) as a proxy for the job qualification b/c either:
o    a. there is reasonable cause to believe that all or substantially all in the class are unable to perform the job safely and effectively OR
o    b. it is impossible or highly impractical to determine ability to do the job on an individual basis
§ Can you apply BFOQ to individual mixed motive disparate treatment cases?
Systemic Disparate Treatment
o    Formal policy of discrimination
§ Women as jail guard case was accepted as formal policy of discrimination (Dohart v. Alderson)
§ Johnson Controls
§ Manhart
o    Different contributions to pension plan
o    Pattern or Practice of discrimination
§ Model for analyzing Pattern or Practice cases:
o    Step 1: PF case – Gov’t must prove discrimination was “standard operating procedure.” This creates, in effect, a rebuttable presumption of discrimination.
o    Can use the statistic evidence of Hazelwood and Teamsters
o    Intent may be inferred from effect
o    Can use the anecdotal evidence of Teamsters
o    Step 2: Rebuttal – Employer must then rebut the inference. If it can’t liability attaches. Use the defenses.
o    Step 3: Relief – Entitlement to injunctive relief, as well as rebuttable presumption of individual relief for members of the affected class.
o    Defenses to systemic disparate treatment
§ Challenge factual basis of P’s Case
o    Deny existence of a formal policy
o    Present evidence that refutes P’s statistical or circumstantial evidence
§ Challenge inference of discriminatory intent produced by P’s evidence
o    Personal Administrator v. Feeny (veterans case)
o    A law can have an intentional discriminatory effect w/o an illegal discriminatory purpose (“in spite of” v. “at least partially of”)
o    Viking restaurant that discriminates for whites
§ Valid affirmative action plan
§ Lack of in

gnized 703(h) exceptions
§ Step 2: Burden (of persuasion) shifts to D to show that the challenged practice is related to job performance and consistent with business necessity
§ Step 3: Burden shifts to P to show that there is an alternative practice that would meet the business objectives without adverse impacts
o    Defenses in Disparate Impact Cases
§ Attack the P’s PF case
o    No specific practice
o    Practice didn’t cause the disparity
o    Not enough impact
o    Group not protected by statute
o    Harm is not cognizable
§ Prove that the practice is job-related for the position in question and consistent with business necessity
o    Same as “business necessity” and “job-related” terms as used in Griggs before Wards Cove
o    P’s surrebuttal: Employer has viable alternative, but did not use it
§ Use one of the three statutory defenses in section 703(h)
o    Bona fide seniority system
Defendant must show policy is traditional part of a seniority system:
Show existence of “system”, not ad hoc use of seniority
Show that system falls within commonly acceptable notions of what constitutes a “seniority system”:
Allots to employees ever improving rights and benefits as relative lengths of employment increase.
Does not include educational prerequisites, aptitude tests, physical tests
Bona fide merit system
Professionally developed tests not used to discriminate
Voluntary Affirmative Action
Affirmative Action Framework
P assert disparate treatment
D would say that it would be based on affirmative action plan
P must come back and prove that AA as implemented by employer is unlawful
Violates Title VII
Violates EPC
o    Ricci Case – Disparate treatment to avoid disparate impact, an employer’s race conscious conduct on the impact, strong basis of evidence that it would be liable under disparate impact theory, these theories can be attention, sometimes one of them has to be give
What a voluntary AA plan could do
Manifest imbalance in traditionally segregated job category
Does not unduly trammel interests of other employees
Temporary in nature