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

Employment Discrimination
Title VII- 703(a)(1)- It shall be unlawful for an employer to take an adverse action (failure or refusal to hire, discharge, or discriminate) against an individual because of that individuals race, color, sex, national origin, or religion because of the protective characteristic. With respect to his compensation, terms, conditions, or privileges of employment.
Will concentrate on the two words of Because Of, usually that is what is in dispute and it usually supplies intent, ex. were you fired because you are a woman?
Have disparate treatment has intent, ex. fired because you are black, and disparate impact when a facially neutral policy, no intent,
2 Ways to show disparate treatment:
Circumstantial Evidence, vast majority of discrim. cases take place under circumstantial evidence
Direct Evidence
Who is an Employee
Determining who is an employee is critical for standing and also for coverage under certain acts
Under T7 and ADA must have 15 employees, under ADEA it is 20 employees, under EPA it turns on the amount of money that the employer engages in(most everybody covered by EPA)
Recent Sup Ct. case holds that numeric requirements for ADA and T7 are not jurisdictional, which means that they are subject to waiver, cannot raise them at anytime during the case, one of the best possible situations in getting a case thrown out
Testers, people who pose as job applicants to determine whether employers engage in discriminatory hiring practices, what if these individuals experience discrimination?
7th circuit held that testers who experience discrimination as job applicants have standing to sue under T7, not under §1981 because the requisite intent to “make or enforce a K” is nonexistent
4th circuit testers do not have standing because they have suffered no cognizable injury as they are not seriously interested in the jobs they applied for; EEOC position is that they are covered
Clackamas v. Wells
·         Employed a bookkeeper for 11years and was fired, she sued under ADA, clinic denied that it was covered under ADA because it did not have 15 employees for 20 weeks
·         Issue is whether the four physican-shareholders who own the professional corp. are counted as employees
·         ADA defines employee as an individual employed by an employer
·         An employer may not evade the strictures of T7 simply by labeling its employees as ‘partners’
·         Most important thing to look at is control and “the extent of control” that one may exercise over the details of the work of the other
o       Some factors of control are can you hire/fire, title not necessary important, assign tasks, supervise their performance, distribution of profits and losses
Court remands this case to trial court and driven by facts
3. Who is an Employer
T7 defines employer as a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
EEOC warns employers that using individuals hired and paid by a staffing firm are not automatically relieved of their obligations under federal laws prohibiting discrimination
4. Individual Liability of Agents of Employers
Courts define agent as a supervisory employee who has the authority to make personnel decisions regarding hiring or firing employees or to otherwise set terms and conditions of employment for applicants and employees
For most part you cannot sue individuals under federal employment statutes, usually using them to get to their employer
Exceptions are assault and battery, intentional infliction of emotional distress, and charges like that
Meaning of an Employment Practice
To be actionable the “practice” must fall within the statutory phrase, “compensation, terms, conditions, or privileges of employment.”
Actions like terminations, failure to promote, denials of transfer, or refusals to hire also fall under this
Courts have decided that you need something more than some slight petty difference, it has to rise above the level
Ultimate Employment Action is the most restrictive standard and use in SC, it holds that only hiring, firing, promoting, and demoting constitute actionable adverse employment actions
2nd and 3rd districts hold that something that is materially adverse to employment
anything that would reasonable dissuade an ordinary working from complaining is how they determine retaliation; Congress does not want to chill employees for bringing discrimination claims
Chapter 3: Disparate Treatment
Two types of theories to proving discrimination: intentional discrimination(have to show you were discriminated because of your protected characteristic)
Can show through direct evidence and circumstantial evidence(the more likely)
o                   Framework for test is: To show a prima facie case for discrimination there is four elements
You are a member of a protected class
That you are qualified for the job, pretty low threshold
There has to be some kind of adverse action
There is similarly situated emp

he is subjected to because of her race, sex, national origin, or religion, very hard to prove
Standard is that P must show that she was forced to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable
Some common LNR- economic reasons, lazy, poor attitude, insubordination, poor performer; difficulty becomes when employer truly believes LNR, even if you are wrong, it should be enough to overcome a discrimination claim
St. Mary’s v. Hicks
Black man hired as correctional officer, promoted to shift commander, then had some internal changes, and wad demoted, punished and then fired
Issue: Whether P has proven that the D intentionally discriminated against him because of race, issue concerned the kind and amount of evidence necessary to allow a factfinder to find in favor of P
Ct. says you have to prove that the reason was false and that discrimination was the real reason
Lower courts have taken conflicting views here:
Pretext-may: if you can show that the reason is false then the jury may decide in favor of the plaintiff, does not require that factfinder to find that the employer’s decision was based on a discriminatory or unlawful motive
Pretext-plus: required evidence sufficient to undermine the credibility of the employer’s justifications and some additional evidence that the employer’s real reason was motivated by discriminatory intent; statute says you can’t take adverse action because of protected characteristic, because of part supports pretext-plus
Reeves v.  Sanderson Plumbing
Sounds like a pretext-plus with appropriate circumstances
Ginsburg’s occurrence basically puts an exclamation point on the decision
As long as you prove a prima facie case it should ultimately go to a jury
Left with a modified pretext-plus
Generally don’t talk about the elements of a prima facie case after pass the summary judgment phase
·                     A classic LNR is that there is someone more qualified, putting the best person in the position that you have available