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

Employment Discrimination Law Seiner Fall 2015
1)      General Information
·         The EEOC is a federal agency charged by Congress with enforcing many of the antidiscrimination statutes.
·         Title VII (703(a)(1)) says that it shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
·         In order to be covered by the statute: Title VII and ADA: 15 employees. The ADEA: 20 employees. EPA: virtually all employers.
·         The principle guidepost for determining who is an employee is “control” Gastro v. Wells
·         The two general theories of discrimination are: disparate treatment discrimination (intentional) and disparate impact discrimination (unintentional).
2)      Steps to take if you are discriminated against
·         First, file a charge of discrimination with the EEOC
–          If a state agency is involved, you have 300 days to file the charge from when the discrimination occurred.
–          If a non-state agency is involved, then you have 180 days to file.
–          In SC, you have 300 days to file with EEOC or state equivalent.
·         Then, there are two possible outcomes from the EEOC:
–          Cause to believe or No cause to believe
·         If a no cause to believe finding is made:
–          Then, the EEOC will issue a right to sue letter.
–          A right to sue letter gives you the right to go to court and file your federal cause of action for discrimination.
–          Once you get your right to sue letter, you have 90 days to file with the court.
·         If cause is found: (Only 5% of the time)
–          The EEOC will issue a determination.
–          Then, the EEOC will try to settle. Congress gives the EEOC the first attempt to settle through conciliation.
–          If conciliation fails, the EEOC will have to decide whether to sue or not.
–          If the commission decides not to sue, they will issue a right to sue letter.
·         Rule: Each discrete act of discrimination starts a new clock for filing the charge of discrimination with the EEOC. The clock starts at the last discriminatory act. You can also look outside the time period if one act took place during the time period.
3)      Disparate Treatment – Intentional Discrimination Cases
·         The McDonnell Douglas test is the prima facie case for intentional discrimination: (Used when there is circumstantial evidence)
–          1. The plaintiff belongs to a protected class
–          2. The plaintiff was qualified for the job.
–          3. The plaintiff suffered an adverse employment action.
–          4. Other evidence (continued to seek/similarly situated)
·         Once these four elements are established, then there is an inference of discrimination.
·         The employer then has the burden of producing a Legitimate Non-Discriminatory reason for its actions.
·         After the employer satisfies the burden of production, the plaintiff must show that the reason is pretext.
·         Pretext basically means that it is more probable than not that the employer was motivated by a discriminatory reason. Pretext-may is what most courts use today. It is the prima facie case combined with sufficient evide

factors also motivated the practice.
·         In mixed motive cases, there is an affirmative defense for the employer:
–          Employer could show that it would have taken the same action in the absence of the impermissible motivating factor. It is the employer’s burden.
·         After-Acquired evidence can be used by the employer to aid in its defense; however, the employee can still prevail. After-acquired evidence can only be used to limit the damages from then on. The remedy would back pay from the unlawful discharge to the discovery of new evidence.
7)      Systematic Discrimination
·         Look for pattern or practice: you must be able to show that there is a regular, purposeful, less favorable treatment of a protected group. You have to be able to show by a preponderance of the evidence that the discrimination was the company’s standard operating procedure, the usual rather than the unusual practice.
·         Teamster case said statistical evidence and testimony supporting the evidence is what you need.
·         Once the pattern is established, the burden shifts to the employer to show no discrimination.
·         When there is a private plaintiff bringing a systematic discrimination claim, they must satisfy Rule 23:
–          Numerosity
–          Commonality
–          Typicality
Adequacy of Representation