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Employment Discrimination
University of Pennsylvania School of Law
Mayeri, Serena

Employment Discrimination Mayeri Fall 2016
Three Anti-Discrimination Models
A/k/a “formal equality,” “colorblindness”
Harm inherent in differentiating between individuals based solely on status/group membership/identity
Focuses on individual, rather than group
Tends to be forward-looking—past is irrelevant to determining what is fair today
Pros and Cons
Ease of application
Would achieve many of the positive benefits that other approaches get at; we don’t need to worry about intent
Preventions further institutionalizing/reifying categories by formalizing them (potential to disrupt categories)
Seems fair/meritocratic; gets at individual characteristics
Over-inclusive, may foreclose regulations/laws that are not in fact discriminatory/morally problematic
Assumes an equal playing field, infers that decisions are based on merit
Ignores important history of lack of opportunity
Ignores differential/discriminatory impact
Can obscure discrimination through proxy or pretext (non-facial discrimination)
Prohibits oppressive unequal treatment directed against individuals b/c of membership in a minority group (e. focuses on intent and motivation)
Sees harm in degradation or exploitation of minorities for benefit of dominant group
Outlaws classifications based on race, sex, etc. that are designed to harm a particular group, permits classifications that do not
Pros and Cons
Recognizes that certain groups may be targets of discrimination
Allows employers and society to reap gains from classifications so long as they’re well-intended
Seems fair because it punishes bad faith but not good-faith policies/reflects moral culpability, punishes bad actors
Possible perception that differentiation is seen as oppressing majority group
To the extent that it allows for benign classification, perpetuates system of classification
Difficult of proving intent; could lead back to anti-differentiation
Could fail to reach unintentional but damaging policies, or policies with a discriminatory impact
Focus on groups could be overinclusive or underinclusive of people who suffered oppression
A/k/a anti-caste
Tries to prevent or rectify the subordination of one group to another
Focuses on effects, not just intent
Emphasis on groups, though also concerned with individuals
Tends to be backward-looking—past is relevant to what should be done now
Pros and Cons
Takes into account history of discrimination/subordination
Easier to implement because easier to discern effects than intent
Gets at the impact of policies that may not be reached in an inquiry into intent
Gets at policies that are facially neutral but have disparate effects
Problem of endpoint—when do you consider the problem solved?
Employers may be prohibited from using policies that are useful/efficient because of their impact
Could be morally problematic to find liability in the absence of intent to harm
Emphasis on groups could overshadow impact on individuals that does not rise to level of group-wide impact
Contestation over the cause/roots of the problem may be divisive
Makes changes to existing policies or practices to make it possible for some individuals to perform the essential functions of a job, or gain access to the workplace, when they otherwise would have been unable to do so
Overlap with anti-subordination?
Pros and Cons
More accurately targeting individuals, less likely to be over inclusive
Remedy more individually tailored to the individual’s needs
Gets at the problems that anti-subordination is seeking to rectify
Forces individuals to identify themselves as member of a group; prevents anonymity
Costs of employer of accommodation
Risk of failure, even with accommodation/failure of accommodation itself
Cumbersome to accommodate people on an individual basis; not as quick as making generalized policy
Costs to other employees
Resentment among other employees
Attempts to create a diverse environment for its own sake
Could be focused on group representation or could take into account individual characteristics
Forward-looking, though may look backward to determine the meaning of diversity
Pros and Cons
Breakdown stereotypes by increasing exposure among different groups
Recognizes strengths in all groups; affirms identities of different individuals
Focuses on positive aspects of differences rather than suggesting that particular groups need special treatment
Idea that diversity of backgrounds leads to innovation, new ideas
Lack of consensus about what diversity actually is
Diversity doesn’t mean equality; disparities of power may persist
Representation expectations causing individual discomfort
Could encourage focus on “minor

ase without the statement about coloreds
Hazen Paper Co. v. Biggins (1993)
Biggins fired at 62, weeks before his employer pension benefits plan would have vested
Claims: wrongful termination on basis of age under the ADEA and to prevent his pension from vesting in violation of ERISA
Held: Lawful for an employer to fire an older employee when age is not the motivating factor under ADEA; employers decision may be motivated by some consideration other than age, even if there is some correlation with the employee’s age
Must prove separate and distinct violations under the terms of each antidiscrimination law
ERISA violation does not automatically demonstrate ADEA violation (remanded)
“But for” causation standard
McDonnell Douglas Corp. v. Green (1973)
Establishes proof structure for individual disparate treatment cases
Green laid off in general reduction of petitioner’s work force; does an obnoxious illegal protest before trying to work at the company again
P establishes prima facie case (preponderance of evidence): prohibited factor was “determinative”: “but-for” cause
Member of protected class/prohibited classification
Qualified for available benefit
Material adverse action (denied benefit)
Benefit remained available to others
LNR: Burden shifts to D to articulate a legitimate non-discriminatory reason (burden of production not persuasion-Burdine)
Pretext: P has opportunity to establish that discrimination was real reason for D’s decision (i.e., to establish that LNR=pretext)
Establishment of prima facie case in McDonnell Douglas is an approach eliminating the most common legitimate reasons
Burdine: prima facie case denotes establishment of rebuttable presumption not a description of plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue
Proof of such a case does not necessarily mean that the plaintiff goes to the jury!