Employment Discrimination Outline

Employment Discrimination

Professor Joseph Fishkin

Fall 2014

· Intro to Disparate Treatment

o Title VII of the Civil Rights Act of 1964

§ § 703(a) It shall be an unlawful employment practice for an employer-

· (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

· (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

o Slack v. Havens, 9th Cir. 1975.

§ Four black female employees are asked by supervisor to do heavy cleaning (white coworker gets reassigned right before). They refuse and get fired.

· Their supervisor all but admitted that he was being racist: “We hire them because they’re better at cleaning,” “they’d better stay in their place,” etc.

o This is the rare smoking gun in these cases.

o Note that Title VII doesn’t just prevent denigrating discrimination, it prohibits all discrimination.

· Employer argues that he may have been being racist, but they were fired for insubordination, not because of race.

§ Held: Liability for disparate treatment.

· Actions of supervisor are imputed to the employer under 42 USC 2000e(b).

· There was a causal relationship between discrimination and firing: If they hadn’t been treated in a discriminatory manner, they never would have had to choose between tolerating discrimination and being insubordinate.

o However, if they always fired for insubordination, no matter what the reason, it would seem to weaken the causal relationship.

· The employer itself ultimately ratified the discriminatory conduct.

o The court assumes that the employer knew why this all originally happened… but how should we address it when they don’t?

o Here, the management were in the best position to know, so they should have known.

o Hazen v. Biggens, US 1993

§ Employee hired at 62, fired right before the ten-year mark, when his pension would have bested. Employer first claims that he was fired for doing business with competitors, but hires him as a consultant (with no benefits) anyway.

§ ADEA uses “because of” language. Liability does not arise when employer’s decision was wholly motivated by factors other than age.

· Are age and years of service inexplicably intertwined?

o First Circuit held that they were.

o SCOTUS holds that they are indeed analytically distinct. They could fire a 35 year old hired at age 25 for the same reason.

o Secondary readings: Just how much discrimination is there?

§ The index of dissilmilarity:

· The idea: How many people would have to switch places before we would get a distribution of people/jobs that would appear random?

· On this measure, there’s clearly something going on, but it isn’t so clear what’s causing it.

o Many jobs are highly gender-segregated.

· Progress was fast right after 1964 civil rights act and other various statutes, but it’s really slowed recently.

o Many different possible culprits and motives.

o Maybe differences in choices?

o Maybe increasingly unsympathetic judges remove the teeth from the statute?

· Easier to look at this from the bottom up from the top down.

o Five models of antidiscrimination law:

§ Impartiality

· Employers should treat similarly situated people the same.

· Employers are basically just neutral, as if whatever differences don’t exist.

· Can be broad or impartial

o Impartial: Using neutral rules and treating people who are otherwise similarly situated the same is enough.

o Broad: You have to be impartial in selecting the rules themselves.

§ Perpetuating past discrimination

· Not enough to prevent current discrimination. Must also mitigate the damage of past discrimination. Even if an employer isn’t discriminating, the employer’s actions are freezing in place past discrimination.

§ Diversity:

· Diversity has good effects in and of itself.

· Institutions should be designed to have diversity to reap those benefits.

o Consider carefully what criteria count as “merit.” Sometimes one group will pick definitions of merit that produce more people from their group. Value different characteristics.

§ Disruption

· Employers create differences between groups and anti-discrimination law is there to prevent this.

o Society creates differences by sending people to different jobs/schools/etc.

· Institutions should disrupt the processes that create these group differences.

o People aren’t really that different, but employer sometimes make them this way.

· Instead, we need a critical mass of all different types of people so minority people won’t feel like they’re a spokesman or anything.

§ Anti-bottleneck

· Antidiscrimination law is part of the larger effort to remove bottlenecks that stop people from achieving their goals.

· Employers’ arbitrary requirements, etc. operate as bottlenecks at the systemic level.

· Discrimination is one form of a bottleneck: You have to be white, a man, etc. to get through this bottleneck.

· The goal is to reduce the severity of the severe bottlenecks; you can’t totally eliminate them.

· Intro to disparate impact, affirmative action, and implicit bias

o Griggs v. Duke Power Co., US 1971

§ Duke Power used to have a totally segregated workforce; blacks could work only in the “labor” department and all other areas of the business were white-only.

· After Title VII, they used a new policy: If you want a transfer from labor to another department, you have to have a high school degree and pass two intelligence tests.

§ Held: Using the IQ test/high school diploma as qualification is unlawful under Title VII under disparate impact theory.

· Basically, this flunks business necessity.

· Court notes that under disparate impact theory, you don’t have to prove any malice/intent behind discrimination, but there probably was some in this case.

§ Broad impartiality:

· To the extent disparate impact is really about smoking out bad intentional discrimination, this seems like it’s working; the choice of rule seem sto ahave been done on purpose.

§ Perpetuation of past discrimination:

· Court is more concerned about this than the possibility that intentional discirminatoin could be going on sub rosa.

· Even if employee doesn’t mean to