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Employment Discrimination
University of Pennsylvania School of Law
Mayeri, Serena

Employment Discrimination Outline

Professor Serena Mayeri

Spring 2011

I. Introduction

A. Frames for Employment Discrimination (philosophies, etc. – ideal types)

Three Anti-Discrimination Models

Alternative “frames” for understanding what discrimination is, why it can be problematic, how to address it, and what is at stake:

– Anti-differentiaion

– Anti-oppression

– Anti-subordination

Anti-Differentiation

– Characteristics

o A.k.a. “formal equality,” “colorblindness”

o Harm inherent in differentiating between individuals based solely on status/group membership/identity

o Focuses on individual, rather than group

o Tends to be forward-looking—past is irrelevant to determining what is fair today

– Strengths of Anti-Differentiation

o Not differentiating between individuals get at their ability to perform a job rather then irrelevant characteristic

o Simple, easy to understand

o Easy to implement—unconcerned with intent

o Individualized assessment; diminishes impact of stereotypes

o Avoids perpetuating racial categories; may cause less resentment or discontent

– Weaknesses of Anti-Differentiation

o Ignores real differences in power and opportunities among groups

o Prohibits policies that compensate for past/systemic societal discrimination—may impede effective

o Doesn’t allow employers to place value on diversity

Anti-Oppression

– Characteristics

o Prohibits oppressive unequal treatment directed against individuals b/c of membership in a minority group (i.e., focuses on intent and motivation)

o Sees harm in degradation or exploitation of minorities for benefit of dominant group

o Outlaws classifications based on race, sex, etc. that are designed to harm a particular group, permits classifications that do not

– Strengths of Anti-Oppression

o Differentiates between classifications and eliminates only those that are harmful; allows useful classifications

– Weaknesses of Anti-Oppression

o Focus on intent doesn’t get at facially neutral practices that have a disparate impact on particular group

o Focus on intent doesn’t necessarily capture unconscious bias (cognitive)

o Focus on intent requires difficult, subjective determinations

o Present intent is focus; past is not necessarily relevant

Anti-Subordination

– Characteristics

o A.k.a. anti-caste

o Tries to prevent or rectify the subordination of one group to another

o Focuses on effects, not just intent

o Emphasis on groups, though also concerned with individuals

o Tends to be backward-looking: past is relevant to what should be done now

– Strengths of Anti-Subordination

o Gets at structural disadvantage; doesn’t require knowledge or intent of employer

o Look backward at causes, past social practices; helps to get at the root of discrimination

o Can get at both conscious and unconscious bias

– Weaknesses of Anti-Subordination

o Focus on group categories may harm individuals who do not wish to be categorized

o Overinclusive — individuals within group may not have experienced subordination attributed to whole group

o By not focusing on intent, doesn’t capture discrimination as a behavior; difficult to prevent/identify the source

o U

– Systemic Disparate Treatment

o Formal Policy

o Pattern or Practice

Disparate Impact: employment decisions that are facially neutral but have a discriminatory effect

(Proof of discriminatory intent NOT required)

II.Disparate Treatment

Types of Disparate Treatment Cases

– Individual (employer was motivated by a protected trait on an ad hoc basis)

o “Smoking gun”: the reason for employment decision is discriminatory

o Pretext cases: the real (but hidden) reason for employment decision is discriminatory

o Mixed-motive cases: multiple reasons, one of which is discriminatory

– Systemic

o Formal, facial policy of discrimination requiring adverse treatment of employees with a protected trait

o Pattern or practice of discrimination

III. Individual Disparate Treatment

A. Elements of an IDT Case

3 basic elements of IDT discrimination:

– employer intended to discriminate (treat employee differently based on prohibited ground)

– employer took adverse employment action

– adverse action was linked to intent to discrimination

Types of Evidence

– Direct evidence of intent:

o usually statements of employer’s agent that amount to admission of state of mind (“smoking gun”)