EMPLOYMENT DISCRIMINATION
HERIOT
SPRING 2013
Individual Claims of Discrimination
A. INTRODUCTORY INFORMATION
— Employment Law, Generally
o At-will employment: designed to prevent litigation over employment contracts. Unless the parties otherwise agree, an employer and terminate an employee for a good reason, a bad reason, or no reason.
§ Courts recognize the limitation of their role in employment disputes because the employment relationship is complex.
§ Suits over employment tend to be retrospective breaches.
§ Self balancing: employers don’t want to lose the value of their employees à prevents abuse.
o College Professors & Tenure:
§ No school wants a professor that will walk away in the middle of the first class.
§ Encourages professors to be bold and write things that people might not want to hear without being fired.
— Random Notes
o Post WWII, northern states adopted employment acts to prevent discrimination; the south didn’t.
o Title VII governs wholly private behavior and creates a weird incentive structure.
§ Ex. Airlines have to take everyone that can pay, but they don’t have to like all their customers. But they have an incentive to because the customers are paying.
o Employers that didn’t hire minorities ended up getting screwed because they hired under-qualified white people, and all the qualified minorities went to the successful firms.
B. THE MCDONNELL-DOUGLAS FRAMEWORK
— McDonnell Douglas v. Green
Facts: African-American man was terminated from his job. Later, he engaged in some civil rights activities that involved blocking a driveway to his work. Brought a claim through the EEOC, EEOC said that the fact that employee was not re-hired was retaliation.
Issue: Did π make a prima facie case of discrimination?
Holding: Yes.
Rule: The π must establish a prima facie case of discrimination by showing:
1. That he belongs to a protected class
2. That he applied and was qualified for a job for which the employer was seeking applicants.
3. That—despite his qualifications—he was rejected, and
4. That after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.
-Burden then shifts to the employer to articulate—not prove—a legitimate reason for rejection.
-Then the employee must rebut that reason.
Reasoning: Respondents previous work performance was satisfactory. The employer said the reason for the rejection was that π engaged in unlawful activity, which is a good reason to reject someone for a job. On remand, relevant evidence includes (1) evidence that white employees involved in the civil rights acts were rehired; (2) petitioners’ treatment of respondent during prior term of employment; (3) employer’s reaction to civil rights activities; (4) general policy with respect to minority employment (5) statistics maybe.
Note: This is a burden of production issue, not a burden of proof issue.
— Legitimate Reasons or Good Reasons?
o Who prevails when the employer fires the employee for a legal reason, but when they go to trial they give a different reason? Does the employee prevail because the employer didn’t tell the real reason? Or does the employer prevail if the jury figures out the real reason, and knows the reason isn’t illegal.
o Dangers of throwing in a ton of reasons for firing an employee:
§ The trier of fact may think you are throwing the kitchen sink in because you’re hiding something.
§ Employers have a desire to go forward with a single reason. à if you held the employers to the single reason, they would then throw in the kitchen sink.
— How do you know it’s discrimination?
o Heriot thinks all discrimination is inherently intentional. à Ask the question “would the employee have been treated differently if his or her race, religion, color, sex, national origin, etc. were different?”
o What about discrimination based on race that isn’t really based on race? I.e., what about if an employer knows a certain type of person will be a good employee? Or what if the employer just hangs out with Hungarians? à Predictability. The referring employee wants the new employee to do well—quality.
— Prohibited and Not Prohibited by Title VII
o Title VII doesn’t control employee conduct, only employers [and supervisors in some instances].
— Furnco Construction Corp. v. Waters
Facts: Furnco hires a superintendent and then charges the superintendent with finding a competent workforce. The superintendent mostly hired people he knew. Then a racial minority said that there was discrimination. Court of appeals said that Furnco should structure employment practices to review the highest number of minority applications.
Issue: The scope of the prima facie case and the nature of evidence necessary to rebut it; whether the Court of Appeals went too far in substituting its own judgment as the proper hiring practices in
ble to the argument that none of the ∆’s arguments are convincing.
— Hiring and Firing
o A lot more of the cases involve firings because at the hiring stage, people might not know they are being discriminated against. Plus, people are more angry when they get hired vs. not fired. (Before, it was a lot more about hiring).
— Reeves v. Sanderson Plumbing Products, Inc.
Issue: Whether a ∆ is entitled to judgment as a matter of law when the plaintiff’s case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the ∆’s legitimate, nondiscriminatory action.
Holding: The ultimate question is whether the employer intentionally discriminated, and proof that “the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason is correct.” In other words, it is not enough to disbelieve the employer, you have to believe the π.
Rule: Whether judgment as a matter of law is appropriate depends on a number of factors:
1. Strength of π’s prima facie case;
2. Probative value od the proof that employer’s explanation is false
3. Any other evidence that supports employer’s case and can be properly considered on a motion of judgment as a matter of law.
Note: The trier of fact can still decide in favor of π, just no judgment as a matter of law. (Unless the record conclusively showed there was another legitimate, nondiscriminatory reason for termination).
C. MIXED-MOTIVES CASES
— 1991 Amendments to Title VII
o Made it easier for title VII plaintiffs, allowed for mixed-motives cases (courts had already allowed this).
o If a ∆ can show they would’ve made the same decision even in the absence of discrimination, π cannot get compensatory damages but can still get declaratory judgment and an injunction, and now can get attorneys fees! à led to way more litigation because attorneys were willing to take the cases where it might be mixed motives.
