Select Page

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

Chapter I: The Problem of Discrimination in Employment
I.       Introduction
A.    Three simply stated legal and policy questions
1.      What is discrimination?
2.      How is it proven?
3.      If proven, what is the appropriate remedy?
Chapter II: Laws Prohibiting Discrimination in Employment
I.       Introduction
A.    Statutes that protect Individuals from Discrimination
1.      Title VII of the Civil Rights Act of 1964
a.       protects on the basis of race, sex, national origin, color or religion
b.      amended 1991 to include additional damages of pain and suffering and the right to a jury trial
2.      Family Medical Leave Act
3.      Equal Pay Act
4.      Age Discrimination Act of 1967
5.      Title I of the Americans with Disabilities Act (ADEA)
6.      State Law
7.      Constitutional Claims
8.      Equal Protection Clause
B.     EEOC Process:
1.      Discrimination occurs
2.      File a charge with the EEOC or the state equivalent w/in a time period
a.       Time Period
(i)          Deferral State: where a state agency has that will handle the claim, then there is 300 days
(ii)        Non-Deferral State: where you file with the EEOC, then there is 180 days
3.      Ranking system
a.       A: high priority; investigate
b.      B: medium priority
c.       C: low priority
4.      EEOC investigation
a.       has 180 days to investigate; however, the Supreme Court allows more time
b.      the Π may opt out the investigation after 181 days and get a letter with permission to go to trial
c.       Two possible findings (both receive little deference in court)
(i)          No-Cause Finding: right to sue letter issued automatically
(a)    90 days to file a claim after the right to sue letter is issued
(ii)        Reasonable Cause Finding: the EEOC has to do a conciliation
(a)    Conciliation: an attempt to push the parties into encourage their claims
(b)   2005: EEOC successful in conciliating 30% of cases
d.      When the EEOC will sue:
(i)          Egregiousness/systemic discrimination
(ii)        EEOC questions its own enforcement authority
(iii)      cutting edge, un-examined type of charge or charge that is not does not have fully developed guidelines
e.       if conciliation fails (which happens 70% of the time)
(i)          The EEOC has the right of first refusal
(a)    Two choices:
v bring case
v issue a right to sue letter
II.    Survey of Major Federal Laws on Employment Discrimination
A.    Note: The Eleventh Amendment as a Bar to Civil Claims for Damages Against States
1.      States have regularly raised the Eleventh Amendment defense
2.      Congress has unequivocally expressed its intent to abrogate states’ Eleventh Amendment immunity in many federal laws prohibiting discrimination in employment (Title VII, ADEA, ADA, EPA)
III.Enforcement Schemes
A.    Administrative Exhaustion
1.      National Railroad Passenger v. Morgan  (Sup. Ct. 2002) p. 29
a.       Issue: Do discriminatory acts that did not occur in the 300 days prior to when the charge was filled with the EEOC on 1994, be barred from the complaint?
b.      Rule: A discrete retaliatory or discriminatory act “occurred” on the day that it “happened.” Individual discrete acts cannot be joined together and if Π fails to bring the claim on the particular act within the 180/300 days filing deadline, Π’s claim as to that act is time barred.
(i)          Time barred discrete acts may be used only as background, evidence to support a timely, present claim; but can’t not recover upon the act if so used.   
2.      Discrete v. Continuous
a.       Discrete: examples: failure to hire, promote, discipline, termination (same as tangible employment action)
b.      Continuous Violations Exception: continuing string of discrete acts for which a Π CAN RECOVER even though  some of the acts in the “string” were outside of the 300 day period. HARASSMENTis the only clear example of non-discrete exception. 
B.     Judicial Enforcement
1.      Timeliness Requirement
a.       is not jurisdictional (Hill v. John Chezik Imports) p. 40
b.       Subject to JURISDICTIONAL, EQUITABLE REMEDIES: Tolling, waiver, and estoppel.
(a)    In court’s discretion to allow a claim that would be time-barred otherwise, to be brought, because the violation had not been reasonably discoverable (e.g. misconduct to conceal the violation, improper notice, or reasonable reliance on erroneous statements)
v tolling the filing requirement; clock starts when act is discovered or reasonably discoverable. 
IV.Coverage Under Laws Prohibiting Discrimination in Employment
A.    Who is an ‘Employee”?
1.      Application:
a.       Not normally raised as a defense, but useful to determine who is employee because Title VII (T7) applies to EMPLOYERS à know who is who.
b.      #of parties required to bring claim within T7 is subject to waiver
2.      Clackamas Gastroenterology Associates v. Wells (Sup. Ct. 2003) p. 51 (doctors in joint medical practice.)
a.       Issue: whether four physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as “employees”
b.      Holding: Court endorses EEOC’s position that the principal guidepost is the common law element of control.
c.       Common law agency test
(i)          Who issues payment?
(ii)        Who imposes standards of skill or determines the execution of skill?
(iii)      The extent of discretion over work practices /activities of the individual?
(iv)      Who provided the instrumentalities of the performance?
(a)    However, no real credence is given to a title designation because it would be easy to anticipate the type of fraud that may be engaged in manipulating titles.
(b)   No one factor is determinative. Totality of the circumstances.
B.     The Meaning of “Employer”
1.      Statutory Thresholds
a.       Title VII/ADA: 15 employees
b.      ADEA: 20 employees
2.      Walters v. Metropolitan Education Enterprises, Inc.  Sup. Ct. 1997) p. 55 (which method? payroll or compensation?)
a.       Holding: Payroll Method; relies on the “ultimate touchtone” . . . “whether the employer has an employment relationship with the individual on the day in question”
3.      No uniform test to decide whether or not a small employer (less than threshold) and its larger parent company or other affiliates with @ least threshold number constitutes a single employee. p. 56
a.       Integrated Employer Test
b.      “Liability” Test
C.     Individual Liability of Agents of Employers
1.      Courts generally define the term “agency” as a supervisory employee
2.      Statutes silent as to whether or not agent of an employer is liable in his individual capacity for any unlawful discriminatory employment decisions they make.
a.       Meritor Savings Bank held that employers are not strictly liable for hostile environment sexual harassment under T7.
b.      Appellate cou

that evidence of LNR exists.
c.       Elements of PFC (p. 89 note 3a)
(i)          Application: as a general rule, Π’s failure to formally apply for a job is fatal to establishing a PFC for a discriminatory refusal to hire claim.
(a)     Exceptions: no formal application process, employer’s promotional process is “informal and subject” or “vague and “secretive”, Π has made every reasonable attempt to convey interest in the job to employer, or Π is unaware of opportunity:
(b)   Futile Gesture Doctrine: if an employer has a reputation for refusing to employ members of a group protected by T7 then failure to apply may be justified.
(ii)        Qualification: most courts have held that an applicant is qualified for a job when she meets possesses the qualifications established by the employer, usually as contained in a written job description.
(iii)      Must the person hired be outside of Π’s protected class?
(a)    Some courts apply Consolidated Coin: “the fact that one person in the protected class has lost out to another person in protected class is irrelevant so long as he has lost out BECAUSE of his status as a member of a protected class, and evidence that a Π was replaced by someone outside of the protected class is not a proper element of McDonnell Douglas PFC.”
(b)   4th Circ. Generally adheres it is rule that the Π must show that the position at issue was filled by someone that is not of Π’s protected class. 
v Exceptions for 4th Circ.
w ADEA when Π was replaced by younger person in protected class
w Significant passage of time btw adverse employment action and later hiring of protected class member
w Where hiring member of protected class was calculated to disguise previous unlawful DT
d.      See LNR: disciplinary discharge & test for “comparable seriousness” p. 95
e.       Honest belief defense: p. 103
4.      St. Mary’s Honor Center v. Hicks
a.        To prevail,  Π must persuade the employer that the LNR given by the employer was false AND that discrimination was the actual motive for the action. Falsity of the LNR is not alone sufficient to meet Π’s burden of persuasion. (pretext may)
b.      Persuasion Schemes to Get to Jury
(i)          Pretext only: (squarely rejected by Hicks Court): Π convinces factfinder that employer’s LNR not credible, Π wins.
(ii)        Pretext-May: Π may prevail JMOL, when Π makes prima facie case, and the factfinder is persuaded that LNR is untrue
(iii)      Pretext-Plus: jurisdiction requires that Π make prima facie case, plus  LNR proven to be false, plus evidence that the actual motivation was discriminatory animus
5.      Reeves v. Sanderson Plumbing Products, Inc.
a.       In appropriate cases, simply proving that a LNR is false, is sufficient to allow the plaintiff to get to a jury.