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Employment Discrimination
University of Toledo School of Law
Blum, Stephanie

Blum, Employment Discrimination, Fall 2012


At-Will Employment

i. Absent a contract, or some other rule or statute, an employee can be terminated at any time, without notice, for any reason., or no reason. (applies to most states)

ii. An employer may hire an employee for any reason or not hire any employee for no reason.

iii. Employer may change the location, time, or circumstances of the employment

iv. Exceptions to at-will employment

1. Express contracts, including collective bargaining agreements.

2. Certain provisions in employee handbooks, or other express or implied agreements made by the employer.

Howard v. Wolff Broadcasting

i. P fired from Wolff broadcasting solely because she was a female.

ii. At-will employment, Court held it was legal.

iii. There were too few EEs for Title VII to apply (need 15)

Coverages of Statutes

Protected Classes, Proper Defendants, and Protected Individuals

i. Federal statutes that are exceptions to at-will employment

1. Title VII

a. Prevents discrim based on gender, race, religion, or national origin

2. Age Discriminations (ADEA)

a. Applies to 40+

3. Americans w/disabilities Act (ADA)

a. Req. reasonable accommodations for disabled EEs


a. Req’s 50 or more EEs 12 wks. Unpaid leave to qualified EEs w’in a 12 month period for certain events (illness and birth of a child)

5. 42 USC sec. 1981

a. allows for cause of action based on 13th amend

b. prohibits race discrim

c. no min # of EEs

d. Doesn’t prohibit application of neutral criteria that results in discrimination

ii. McDonald v. Santa Fe Trail Transportation Co.

1. Issue: whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed.

2. Statutes Used: Claim under Title VII. §1981, which provides that “all persons…shall have the same right…to make and enforce contracts…as is enjoyed by white citizens”

3. Supreme court reversed and found for McDonald. They noted that if the situation were reversed, and McDonald were black, then he would have a strong case. Court found that §1981 explicitly applies to “all persons” and that should include whites.

iii. Saint Francis College v. Al-Kazraji

1. Filed late so only had §1981

2. Court kicked out b/c do not see Arab as a race and §1981 only covers race not national origin

iv. Espinoza v. Farah Manufacturing Co.

1. Title VII does not apply to citizenship since it is different from national origin

v. City of Los Angeles Water & Power v. Manhart

1. Co. wanted women to pay more than men for pension and healthcare since women statistically live longer than men

2. Quote: “Even a true generalization of a class is insufficient reason for disqualifying an individual to whom the generalization does not apply”

vi. Hazen Paper Co. v. Biggins

1. Fired an EE after 9yrs when pension vests after 10yrs they were 65yrs old

2. The ADEA does not cover pension which is different from age

vii. Hishon v. King & Spalding

1. Female denied partnership and there were only male partners

2. Lower Ct: said partner is a partial owner and not an EE therefore title VII does not apply

3. SCOTUS: said P was an EE at the time of the action therefore it does apply

viii. Title VII contains a national security exception

1. This exception permits an employer to refuse to hire or continue to employ an individual if the person does not meet a requirement imposed by a statute or an executive order in the interest of national security.

2. The national security exception most commonly arises in situations where an individual does not qualify for a required security clearance.

ix. Why bother to sue under Section 1981?

1. No administrative process

2. No damages cap

3. Longer statute of limitations

4. Does not apply only to employment relationship

5. Individual liability

6. BUT—only applies to race (broadly defined), no disparate impact.

Individual Disparate Treatment

Disparate Treatment: intentional discrimination based on protected category

Disparate Impact: Facially neutral policy has adverse affect on protected group with no substantial business justification.

i. Intent not needed

ii. Does not apply to section 1981 claims.

Formal Equality: Similarly situated people should be treated equally without regard to protected trait

Substantive Equality: Focus is on equality of results, which may take into account traits, because of underlying social structures

Type of Claims under Title VII

i. Individual Disparate Treatment

ii. Pattern or Practice of Disparate Treatment

iii. Disparate Impact

iv. Harassment

v. Failure to Accommodate (minor obligation for religion)

vi. Retaliation

Three Types of Claims for Individual Disparate Treatment

i. Single-motive case

ii. Mixed or dual motive case

iii. Reverse discrimination

Two Different Types of Evidence

i. Direct Evidence

1. EE establishes by direct evidence that ER took action “because of” protected trait

a. ie direct statements that have no other meaning (racial epithet)

2. Then, ER is liable UNLESS

a. Defense or affirmative defense

b. Statute does not apply (e.g., Numerosity)

ii. Circumstantial Evidence

1. Need inferences to make the connection

a. ie offhanded racial/discriminatory comments

The McDonnell Douglas Framework (when there is only circumstantial evidence)

i. McDonnell Douglas Corp. v. Green

1. Eighth Circuit made broad-based argument that any subjective decision-making is prima facie discriminatory and it is employer’s burden to establish that it did not discriminate. SCOTUS rejects this process.

2. Step One: Prima Facie Case (TEST FOR SINGLE MOTIVE)

i. Plaintiff is member of protected class

ii. Plaintiff applied for and was qualified for a job for which the employer was seeking applicants;

iii. Despite his qualifications, plaintiff was rejected;

iv. After his rejection, the position remained open, and the employer continued to seek applicants.

3. P must merely submit evidence showing that P met the minimum, objective qualifications for the position

a. Prima facie case not supposed to be onerous – many times employers concede prima facie case for purposes of summary judgment.

4. Step Two: The burden shifts to the employer to articulate some legitimate, nondiscriminatory reason (LNR) for the employment decision. ER can provide objective or subjective reasons. (it is a burden of production not persuasion)

5. Step Three: Should the defendant carry its burden, the plaintiff must then present evidence that the legitimate reasons offered by the defendant were not the true reason, but were a pretext for discrimination.

a. It is important to remember that at all times the burden remains with the plaintiff to prove that the defendant intentionally discriminated against the plaintiff.

6. How to show pretext?

a. Show that reason is a lie, through documents or testimony

b. Show that reason is not followed consistently

c. Show that similarly situated employees treated differently

d. Suspicious timing

e. Ambiguous statements

f. Show that decisionmaker thought you were the best qualified candidate

g. Statistical evidence.

7. Burden of Production: Establishes which party has the burden of producing evidence to the court

8. Burden of Persuasion: Establishes which party has the burden of convincing the court or the jury the truth of a certain proposition.

ii. Reeves v. Sanderson Plumbing

1. ADEA case and SCOTUS used McDonnell-Douglas but did not decide it was appropriate test

2. Does P have to show that D is lying or that discrimination was real reason for discrimination?

3. It is not enough to disbelieve the ER but must believe the EE

4. It is permissible for the trier of fact to infer discrimination b/c or lying

iii. “Similarly Situated”

1. Many

i. These cases are usually brought by the gov’t or class action since so expensive

1. Need lots of statistics

2. In some districts can’t bring by self (in those districts can still use info for individual disparate treatment)

ii. Teamsters v. U.S.

1. Union and Co. discriminated against Spanish and black last names

2. They were in the lower paying positions

3. Theory of case? Gross disparities between # of minorities in hiring population and actual numbers hired

4. P has to prove beyond a preponderance of the evidence(PoE) that companies hiring practices are discriminatory, and that racial discrimination was the company’s standard operating procedure, regular rather than unusual practice.

a. Can show through statistics

b. Individual testimony that have been discriminated against

5. Steps to prove case:

i. Court determines whether discrimination is normal procedure or policy at company

ii. ER has an opportunity to establish that P’s proof is either inaccurate or insignificant (rebut presumption)

6. Arguments ER can make during a case

a. Can attack the statistics

b. Can argue pre-act discrimination does not matter

c. Too small a sample size

d. General pool does not reflect qualified applicants

7. Labor pool

a. In general it is probative to look at the general population for stats

b. But look at labor pool composition

8. Remedies

a. Prospective relief (injunctive relief) is always appropriate

b. Individual relief (backpay/promotion): burden shifts to ER to show why shouldn’t get relief

i. Usually ERs settle b/c becomes too hard to figure

c. Even if someone did not apply they may be entitled to remedy if can show they did not bother to apply for job b/c discrim

9. Seniority System

a. In this case the seniority system was not discriminatory

i. Title VII does not negate the effects of bona fide seniority system

10. Statistics

a. Are statistics going to be irrefutable?

i. “Statistics come in an infinite variety and, like any other kind of evidence, they may be rebutted”

ii. “Usefulness depends on all of the surrounding facts and circumstances facts”

iii. Hazelwood School District v. United States

1. Gov’t sued school for hiring too few minorities

2. Hiring practices were highly subjective

3. ER argues about what stats to use for employment pool since one school in the state strives to have 50% AA population therefore throws of the numbers

4. P’s evidence of discrim

a. History of discriminatory practices

b. Statistics

c. Subjective hiring practices

d. Specific incidents of teachers not bing hired (55 teachers)

5. District court used number of black students in schools which was the wrong number. It compared student to teacher rations and found no pattern or practice.

6. The Eighth Circuit used the wrong labor market, and Hazelwood should be allowed to rebut with Post Act hiring statistics.

7. What was the issue with the comparison between the teachers in St. Louis City and County with Hazelwood?

a. City aggressively sought black teachers

b. In County, only 5.7% of teacher black

8. Do we compare racial composition of Hazelwood teachers to racial compositions of teachers in the St. Louis County, St. Louis City, or entire St. Louis area?