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Employment Discrimination
University of South Carolina School of Law
Seiner, Joseph A.

Seiner, Employment Discrimination, Spring 2012

Employment Discrimination

– Employment at Will- you can leave your employment at any time for any reason, you can be terminated by any time for any reason (sort of)

o The reasons for which you can be terminated are limited- cannot by fired for a discriminatory reason

– Sources of Employment Protection

o Title VII of the CRA- ‘64

§ Race, sex, religion, national origin, color


§ Separate statute which covers disability


§ Age discrimination employment act


§703(a)(1)- it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.

– If you have been discriminated against first you go to the EEOC within 300 (or 180 if the state has no separate enforcement mechanism) days of the offense

– The EEOC will investigate and issue a letter indicating whether or not they belief a suit is warranted or not, once this letter is issued you have 90 days to go to court

o Under some circumstances the EEOC will litigate on your behalf and hand over the proceeds of the suit

– Difference between individual and discrete acts

– Even if the discriminatory act is not timely they can be admitted as evidence of timely discrimination

– The majority of discrimination issues are governed by § 703(a)(1) of Title VII, this deals with intentional discrimination

– There are statutory employment level limitations

o Title VII and ADA- 15 or more employees

o Equal Pay Act reaches nearly everyone

– The numerical requirements are not jurisdictional- they are subject to waiver if the defense is not raised at the appropriate time

– Clackamas Gastroenterology Associates v. Wells

o Counting of employees under the ADA

o ADA requires 15 or more employees in order for the suit to be brought

o Court must decide whether partners are counted as employees or employers

o The factors the court looks to come from common law

§ We consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party

§ Basically the realities of the employment and the control exercised by the employer is more important than the title that has been given to the employee

– Individual Liability

o In most circumstances under federal employment statutes you cannot sue an individual employee, only the company as an entity

o However, there are other ways of reaching individual liability- common or state law torts (assault, IIED, defamation, ect.)

§ These cases are harder to win and fairly rare, when the plaintiff does succeed it occurs when the employer itself cannot be sued

– In order to be discrimination the conduct relate to the compensation, terms, conditions, or privilege of employment and must be of the degree necessary to upset the reasonable employee

o Materially adverse, not de minimis

o SCOTUS has never addressed what level of discrimination is necessary to be considered actionable discrimination

– Disparate Treatment v. Disparate Impact

o Treatment is intentional discrimination- it is facially discriminatory

o Impact is when a facially neutral employment policy has a discriminatory effect when applied

o They are not mutually exclusive and both claims can be brought at the same time

o Two types of intentional discrimination

§ Circumstantial-

§ Direct- by sworn affidavit, no room for inference or presumption in the case, discrimination as a matter of law, requires a smoking gun,


– Two most important cases for exam

o McDonnell Douglas Corp. v. Green- circumstantial evidence of discrimination

o Gregg- direct evidence of discrimination

– McDonnell Douglass v. Green

o Test for prima facie discrimination case:

§ That he belongs to a racial minority

§ That he applied and was qualified for a job for which the employer was seeking applicants

§ That, despite his qualifications, he was rejected

§ And that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications

o PFC Test

§ PC

§ Qualified

§ AA

§ Similarly situated

– Furnco Construction Corp. v. Waters

o The court will not sit as a super personnel department, as long as a fairly reasonable non-discriminatory hiring

ieved suffices to prove the fact of discriminatory animus, without inference, presumption, or resort to other evidence

o Basically, no room for doubt

Mixed Motivation Evidence Standards

– Mixed motive when both legitimate and illegitimate motivations are cited as the reason for the adverse employment action

– Triggers motivating standards test

o Test isn’t always used because it results in reduced damages

o Must show that the employer would have taken the same action even without the illegitimate motivation

o Relief is limited to: declaratory relief, certain types of injunctive relief, and attorney’s fees and costs

§ Compensatory and injunctive damages are off the table

After Acquired Evidence

– When the defendant learns after the adverse action has been taken that there was a legitimate reason for the action

– McKennan- plaintiff files age discrimination suit, during a depo she admits that she had copied a number of confidential documents and showed them to her husband

o Upon learning of this the employer refires the employee

o In this type of case all damages are available but cut off on the date that the employer learned of the improper activity

– Although the limitation on damages encourages the defendant to fully inspect the employees life looking for a reason that would have triggered a termination it can lead to claims of retaliation

o Look at potential lying on a resume


– Special § of Title VII that allows the EEOC to bring pattern or practice claims

o To bring a pattern or practice claim you must show that there is regular, purposeful, less favorable treatment of members of a protected practice

o This is important because the government is exempt from FRCP 23 class action requirements

o After the practice has been established individual cases are tried to determine if they fall under the liability decided on during the first phase of the trial

o Normally under FRCP 23 plaintiffs (private plaintiffs in ED) must demonstrate sufficient

§ Numerosity

§ Commonality

§ Typicality