Employment Discrimination Outline

Employment Discrimination, Fall 2011

Professor Joseph Fishkin

Introduction

Introduction to Disparate Treatment

8/29/11

Course covers:

· Title VII

· Age Discrimination in Employment Act (ADEA)

· Texas Labor Code, Chapter 21

Why Title VII? States largely follow the Title VII provisions.

Types harassment

· Individual Disparate Treatment —Discriminatory policy which is motivated by the prohibited class.

· Systematic Disparate Treatment —

· Disparate Impact — Facially neutral policy which disproportionately impacts some prohibit class. Example: all pilots must be 5 feet, 8 inches or taller.

· Harassment —

· Retaliation —

“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with regard to the compensation, terms, conditions, or privileges of employment because of an individual’s race, color, religion, sex, or national origin.” — 42 U.S.C. 2000e-2(a)(1) [Title VII]

Slack v. Haven

S.D. Cal. 1973, aff’d as modified 9th Cir. 1975.

· Employer requests four black employees to do heavy, dangerous work outside their job description, but excuses the similarly-situated white employee from the same demand. Another black woman was transferred in as a replacement. (Circumstantial evidence of discriminatory intent.)

· Supervisor says, “Colored folks were hired to clean because they clean better” and “colored folks should stay in their place” or something to that effect. (Direct evidence of discriminatory intent.)

· Employees refused to do the work and they were fired.

Prof: If direct evidence wasn’t there, how would you argue this as defense? Look for a non-discriminatory reason why the white employee was transferred in. In class discussion people keep saying “legitimate” reason. Is legitimacy or reasonableness of the employer’s request relevant outside of a protected class? No. At-will employment. Must be a protected class. Employers can have non-legitimate reasons, so long as those reasons aren’t related to a protected class.

What if “clean better” was intended to be complimentary? Maybe they hire a bunch of Asian people for a math-related job because Asians are “good at math.” Would that make a difference? No. Doesn’t matter as long as you’re stereotyping a group of people and then using that as a criterion. Title VII doesn’t prohibit denigrating discrimination, but all discrimination. Negative animus is not required.

Employer says: “Don’t hold us liable!”

· Agents of the employer fall under employer, under 42 USC 2000e(b).

· Causal relationship between apparently discriminatory conduct and the firings. Had there not been discrimination, the employee wouldn’t have had to choose between being fired and doing the discriminatory work.

· Finally, the employer backed up the discriminatory conduct. (Ratification.)

Causation argument:

· What if defendant can show, “We always fire people who are insubordinate, regardless of their category. That’s our neutral policy.” Isn’t the insubordination the but-for cause?

· Chain of causation. Discrimination -> insubordination -> firing.

· What if the plaintiffs obey the order but after the end of the shift, they beat him up. Now they’re fired for beating him up. And they are fired. Are they still in the chain of causation?

· What if they are fired for refusing to do the discriminatory act and then they can’t get a new job because the new employer won’t hire anyone who was fired? Should the new employer be liable for discrimination?

Ratification argument:

· In this case, the employer had full knowledge that their agent was discriminating. What if they didn’t know.

· What standard should be used?

o Known standard?

o Known or should have known?

o Employer is always liable?

o Employer is never liable?

In many cases, there won’t be a racist smoking gun. What do you do when the evidence is disputed? How do you allocate the burdens of proof?

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Hazen Paper Co. v. Biggins

U.S. Supreme Court, 1993

Plaintiff was fired when he was 62 years old, just weeks before his pension was to vest. He filed a lawsuit in federal court. The case was tried to a jury, who rendered a verdict for the Plaintiff. The jury specifically found that Hazen Paper willfully violated the ADEA. The district court, however, granted Hazen’s motion for judgment notwithstanding the verdict in regards to the finding of willfulness. The First Circuit affirmed the ADEA judgment for the Plaintiff and reversed the district court’s judgment on willfulness.

Liability depends on whether the protected trait actually motivated the employer’s decision.

ADEA uses “because of” language. Employer’s decision was wholly motivated by factors other than age. Unlike Slack v. Haven, there is correlation but no causation.

Supreme Court draws a distinction between pension vesting and age. Pension vesting determined by years with company, not age. Not a proxy.

Class Hypo: What if pensions vested at an age? Everyone is fired at age 61 because pensions vest at 62. Definitely discriminating based on a but-for cause theory of causation. However, it is also economically rational. Discrimination does not need to be economically irrational.

Two different ways to read Hazen Paper:

· The reason for the discrimination matters.

o Must be some form of animus. “Bad” motivations.

· The reason for the discrimination does not matter.

o If the prohibited category plays any role in the causal chain, then discrimination has occurred.

In both Slack and Hazen Paper, the outcome would be the same under either theory. However, under some cases, the two different readings impact the outcome.

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How much discrimination is out there?

Pervasive wage gaps.

Wage gap decreased a lot in 60s-70s for black-white divide. Then it stagnated.

Wage gap decreased a lot in 80s for men-women. Then it stagnated.

Index of dissimilarity: Measures how many people would have to switch jobs to achieve an even distribution between all jobs. Quick answer: a lot. Some professions (e.g. plumbers) 98% male. Dental hygienists are over 90% female although dentists are 70% male.

Within a profession there is evidence of pay dissimilarity between the genders, races.

Labor economists: when you control for other variables, such as education, the gap shrinks but does not disappear.

How big a role does discrimination play?

Racial audits. People interview for jobs. Do people of certain races get less interest?

Resume studies. Choose racially-connoted names but identical resumes.

Pretty significant gap in call-backs. 1/10 call-backs for white names. 1/15 call-backs for black names.

For the administrative jobs, male names don’t get any responses.

When orchestras put in screens to prevent the judges from seeing their auditioners. A lot more women got hired after the screen got put up.

Not an experiment, just a policy that orchestras adopted.

Qualitativ