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


I. Two theories of equality that have emerged since Brown and CRA of 1964
A. Equal treatment
1. “colorblind” or “sex-blind” decision-making
2. Focus on fairness to the individual instead of fairness to the protected group of which he/she is a member
3. Supreme Court found support for equal treatment concept in language of §703(a)(1) of Title VII
a. Unlawful employment practice for an employer to discriminate against “any individual because of such individual’s race.”
B. Equal opportunity or equal achievement
1. It is sometimes appropriate (maybe even necessary) for employers to consider the race or sex of employees in order to remedy the past and continuing effects of race and sex discrimination and to assure that the harmful effects of historical discrimination are not perpetuated in the workplace
2. Supreme Court found support to equal opportunity concept in the language of §703 (a)(2) of Title VII
a. Unlawful employment practice to “limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunity or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
II. Employment-at-will: employer and employee have the right to terminate employment at any time for any reason
A. Exceptions: employment discrimination laws
B. Overview of Laws Prohibiting Employment Discrimination
1. US Constitution
a. 5th amendment
i. DPC prohibits federal employers from engaging in discrimination in employment
ii. Does not have a specific clause on equal protection but SCOTUS has construed its DPC as embodying an EP component
b. 14th amendment
i. DPC and EPC prohibit states and municipalities from discriminating in employment
ii. Lawful resident aliens are entitled to protection under EPC clauses
iii. Protection against discrimination extends to race, sex, alienage, and age
(1) Level of protection varies across groups
c. 1st amendment
i. Protects public employees against religious discrimination by their governmental employers
2. Reconstruction Era Civil Rights Legislation
a. 42 U.S.C. §1981 makes it unlawful for covered entities to discriminate against individuals because of race
i. (a) “all persons within the jurisdiction of the United States shall have the same right…to make and enforce contracts…as is enjoyed by white citizens”
3. The Equal Pay Act of 1963 proscribes sex-based wage discrimination in employment
4. Title VII of the CRA of 1964 makes it unlawful for public and private employers, labor organizations, and employment agencies to discriminate against applicants and employees on the basis of their:
i. Race
ii. Color
iii. Sex
iv. Religion
v. National origin
b. 1972 amendments extended coverage to federal, state, and local government employers
c. 1978 amendment provided that discrimination because of pregnancy is sex discrimination
d. 1991 amendments provided for compensatory and punitive damages, ad jury trials in Title VII cases
5. Title VI of CRA of 1964 prohibits discrimination because of race, color, or national origin in any program or activity receiving federal financial assistance (e.g. grants, loans, or contracts)
6. The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age, against applicants and employees who are 40 years and older
7. Title IX of the Educational Amendments of 1972 prohibits discrimination on the basis of sex in any educational program or activity that receives federal financial assistance
a. Not yet determined whether individuals have a private right of action for such discrimination, and, if so, whether proof of intentional discrimination is the only theory for relief
8. Title I of the Americans with Disabilities Act (ADA)prohibits discrimination in employment against qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the job
9. CRA of 1991 amended 5 federal statutes:
i. Title VII
ii. ADEA
iii. ADA
iv. §1981
v. CR Attorney’s Fees Awards Act
b. Provides for jury trials in Title VII cases
c. Provides for compensatory and punitive damages, with statutory caps, under Title VII, the ADA, and the Rehabilitation Act
III.Enforcement Schemes
1. EEOC enforces all employment discrimination laws against private entities
2. DOJ enforces employment discrimination laws against public entities
A. For Title VII and ADA claims, P must comply with administrative requirements or else the claim is lost, regardless of how egregious the discrimination may have been
1. File a charge of discrimination with agency
a. Deferral jurisdiction: If a state has a state agency that accepts charges (e.g. SC Dept. of Human Affairs), P must file a charge with the state agency or EEOC within 300 days after the alleged unlawful employment practice has occurred
i. But, the charge may not be filed with the EEOC before the expiration of 60 days after proceedings have been commenced under state or local law
ii. If filed with the EEOC, the EEOC may refer the charge to the local state agency
(1) So, as a general rule, when a claim arises in a deferral jurisdiction, a complainant who initially files with the EEOC must do so within 240 days o the unlawful employment practice, allowing the EEOC to defer the charge to the state agency for 60 days, and the complainant to satisfy the 300 day limit for filing with the EEOC
b. Non-deferral jurisdiction: if a state does not have a state agency that accepts charges, P must file a charge with the EEOC within 180 days after the unlawful employment practice
B. EEOC treats claims as A, B, or C type claims
1. A à great evidence, handled right away
2. B à not great evidence, investigation is needed and will get done sooner or later
3. C à no basis for federal claim
C. EEOC has 180 days to complete investigation with exclusive jurisdiction
1. If they have not finished after 180 days, you can ask to pull yourself out of EEOC and go to court
D. 2 possible results of EEOC analysis
1. No cause found
a. EEOC will issue a right-to-sue letter
i. After receipt of letter, you have 90 days to file a lawsuit
2. Cause found
a. EEOC will try to conciliate (mandated) – form of alternative dispute resolution, trying to get employer to settle
i. Works about 30% of the time
ii. All money goes to P; no attorney fees
b. If conciliation fails:
i. EEOC may file a right-to-sue letter, and P will have 90 days to file a lawsuit –OR-
ii. EEOC files a lawsuit
(1) EEOC v. D, not P v. D
(a) Individual can intervene to protect their interests
iii. Factors considered by EEOC in determining whether to file a lawsuit
(1) Egregiousness
(2) Novel area of law (e.g. new statute passed)
(3) Systemic cases of widespread discrimination
(4) Challenge to EEOC authority or guidance
E. Amtrak v. Morgan
1. Morgan filed charge on 2/27/95
2. Some discrimination took place before the filing period, some occurred within the filing period
a. Continuing violation or discrete acts?
i. Discrete:
(a) Termination
(b) Denial of promotion
(c) Denial of transfer request
(d) Refusal to hire
(2) Cannot get damages for these if they fall outside of the filing period, but they can be introduced as background evidence
ii. Continuing
(1) Harassment is the only recognized form of continuing violation
(a) Can look at harassment that occurs outside of filing period as long as one act occurred within the filing period
3. Holding: Morgan can only file a charge to cover discrete acts that occurr

a particular job, and the superintendent did not accept applications at the jobsite but hired only bricklayers whom he knew were experienced and competent or who had been recommended as similarly skilled. The bricklayers, after two were never offered employment and the third was hired only long after he had initially applied, brought suit in the United States District Court for the Northern District of Illinois against the corporation, claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964
c. Holding: SCOTUS says courts are not in the business of being superpersonnel
i. All the employer needs to do is have a legitimate, nondiscriminatory reason; it does not have to have a practice that is optimal
ii. Employer only has the burden of production, not of persuasion
iii. Statistics can be used to show or dispute discrimination
5. Burdine
a. Facts: The employer hired the employee for the position of accounting clerk. The employee alleged that the employer’s failure to promote and subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII.
b. Holding: SCOTUS held that the appellate court erred by requiring the employer to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating the employee and that the person retained instead had superior objective qualifications for the position. The employer bore only the burden of explaining clearly the nondiscriminatory reasons for its actions when the employee proved a prima facie case of discrimination.
i. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff
6. St. Mary’s Honor Center v. Hicks
a. Facts: A black employee of a halfway house operated by the Missouri department of corrections and human resources brought, in the United States District Court for the Eastern District of Missouri, an action under 703(a)(1) of Title VII alleging that the halfway house had violated 703(a)(1) by demoting and then discharging the employee because of his race.
i. The District Court found that
(1) the employee had established a prima facie case of racial discrimination, and
(2) the reasons that the employer gave for the demotion and discharge were not the real reasons for the demotion and discharge, i.e. pretext
ii. But District Court ruled for the employer on the basis that the employee had failed to carry his ultimate burden of proving that his race was the determining factor in the employer’s allegedly discriminatory actions.
iii. The United States Court of Appeals reversed and remanded, expressing the view that, once the employee had proved all of the employer’s proffered reasons for the adverse employment actions to be pretextual, the employee was entitled to judgment as a matter of law
b. Holding: SCOTUS reversed, saying that the District Court’s rejection of the employer’s asserted reasons for its actions did not mandate a finding for the employee, because