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Employment Discrimination
University of Toledo School of Law
Porter, Nicole Buonocore

Employment Discrimination Outline – Fall 2014 – Porter
I.                    Intro/Coverage
a.        At-Will Employment – Can terminate or be terminated at any time, with or without justification
                                                               i.      Most common default rule in all states except Montana
                                                              ii.      Public policy concerns
b.       NLRA (National Labor Relations Act) – Private sector labor protections
c.        FLSA (Fair Labor Standards Act) – Federal public sector labor protections
                                                               i.      EPA (Equal Pay Act) – Amended FLSA; prohibits certain pay discrimination based on sex
d.       FMLA (Family and Medical Leave Act) – Provides unpaid leave for certain workers
                                                               i.      12 weeks for pregnancy (men or women)
e.        Title VII – Prohibits discrimination on basis of “individual’s race, color, religion, sex, or national origin.” (Entities w/ 15 or more EEs)
                                                               i.      Race or Color – Covers all races whether majority or minority (McDonald v Santa Fe)
                                                              ii.      National Origin – Refers to country where a person was born, or the country from which ancestors are from (Espinoza v. Farah Manufacturing Co)
1.        Does not apply to citizenship requirements (Espinoza)
2.        National Origin Group (Ethnic Group) – Share common language, culture, ancestry, and/or similar social characteristics
a.        Title VII protects groups
                                                            iii.      Religion – Includes all aspects of religious observance and practice, as well as belief, unless an ER demonstrates that he is unable to reasonably accommodate an EE’s or prospective EE’s religious observance or practice w/o undue hardship on the conduct of the ER’s business
1.        SCOTUS – A sincere belief that occupies in the life of the believer a place parallel to that of God in traditional religions
2.        EEOC Definition – Moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views
3.        Not legally important whether person actually holds religious belief (e.g. fired b/c perceived to be Jewish, but not)
4.        Can be protected even if religion does not strongly espouse belief
a.        Just needs to be sincerely held belief
5.        Difference between political beliefs and religious beliefs
6.        Exemptions
a.        Religious corporation, association, educational institution, or society may discriminate w/ respect to the employment of individuals of a particular religion
                                                                                                                                       i.      Separate exemption for education institutions
b.       Ministerial exemption: Goes beyond discriminating based on religion. Clergy members and other similar EEs cannot bring any kind of ED claims against their ER b/c such claims would violate the Free Exercise Clause of the Constitution.
                                                            iv.      Sex – Wide variety from harassment or pregnancy or pay
1.        Focus on fairness to individuals rather than fairness to classes (City of LA, Dept of Water & Power v Manhart)
a.        Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply
f.         ADA – Prohibits disability discrimination
                                                               i.      Rehabilitation Act of 1973 – Precursor
                                                              ii.      ERs with at least 15 EEs
g.        IRCA (Immigration Reform and Control Act) – Prohibits hire of undocumented workers and national origin discrimination
h.       ADEA – Prohibits age discrimination
                                                               i.      ER with at least 20 EEs
                                                              ii.      At least 40 years old
                                                            iii.      Permits compulsory retirements for bona-fide execs & high-level policymakers at 65
                                                            iv.      Permits age hiring and retirement policies for firefighters and law enforcement
                                                              v.      Decision based on years of service is not necessarily age based ((Hazen Paper v Biggins)
i.         Section 1981 – Prohibits race discrimination in formation and performance of Ks
                                                               i.      Ancestry or ethnic characteristics (St. Francis College v Al-Khazraji)
                                                              ii.      Distinctive physiognomy not essential to qualify (St. Francis)
j.         **ENDA (Employment Non-Discrimination Act** – Protections for sexual orientation or sexual identity
                                                               i.      **Not passed yet**
k.        Marital Status/Parental Status = No protection!!
l.         Proper Defendants
                                                               i.      ER liable
                                                              ii.      Majority rule – Supervisors & co-workers not individually liable; some states allow
m.      Exceptions
                                                               i.      Indian Tribes
                                                              ii.      Certain tax-exempt bona fide private membership
                                                            iii.      Foreign ER inside US = Same is domestic
                                                            iv.      US in foreign territory = Can’t discriminate against US citizens
n.       Protected Individuals
                                                               i.      Employee?
1.        Org can hire or fire individual or set rules & regs of work
2.        Whether, and to what extent, org can supervise ind
3.        Ind reports to someone higher in org
4.        Whether, and to what extent, ind can influence org
5.        Org intended ind to be EE (written agreement or K)
6.        Whether ind shares in profits, losses, and liabilities
                                                              ii.      Cases where ind no longer an EE but still discrimination (pension)
II.                  Disparate Treatment
a.        Prima Facie Case (PFC)
                                                               i.      Factors
1.        Belongs to a protected class
2.        Plaintiff was qualified for job
3.        Suffered an adverse employment action
4.        Similarly situated person in different protected class treated more favorably
                                                              ii.      Burden (Additional Evidence)
1.        Even if trier of fact does not believe ∆’s reason for the employment action, it is not compelled to enter judgment for the π. π still retains the ultimate burden of persuasion of proving that the action was discriminatory. (St. Mary’s Honor Center v Hicks)
                                                            iii.      Rebuttal
1.        Proving that the ∆’s reason was false may be enough. The trier of fact MAY (but doesn’t have to) infer that π’s proof that ∆’s reasons were false means that discrimination is the real reason. (Reeves v Sanderson Plumbing Products Inc)
                                                            iv.      Evidence
1.        Comments that did not qualify as “direct” evidence are nevertheless circumstantial evidence that could support drawing the inference of discrimination. (Reeves)
                                                              v.      “Given that π established a prima facie case of discrimination, introduced enough evidence for the jury to reject ER’s explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that ER had intentionally discriminated.”
b.       Comparators
                                                               i.      In many cases, the issue is whether someone similarly situated but outside of π’s protected class was treated better.
                                                              ii.      Must determine who are the proper comparators and prove that they similar enough.
                                                            iii.      Courts vary but one popular view: “comparable in all material respects, such as dealing with the same supervisor, engaging in similar conduct, and subject to same standards.”
c.        “Outside the protected class”
                                                               i.      The age gap (“substantially younger”) is far more of an inference of age discrimination than being replaced by someone outside the class
1.        10 is enough
2.        5 is not
d.       Other Issues/Concepts
                                                               i.      Altering PFC for reverse discrimination
1.        Need additional Evidence
                                                              ii.      Altering PFC for RIFs
1.        Need additional Evidence
                                                            iii.      Stray Remarks
1.        Individuals not part of decision-making process
2.        Removed in time from the decision
3.        Not about the type of discrimination alleged
4.        Other reasons
                                                            iv.      Business Judgments
1.        Anti-discrimination statutes don’t take away an ER’s ability to make decision, even bad decisions, as long as those decisions do not otherwise violate the statutes
                                                              v.      Same decision-maker inference
1.        Courts infer the same person who hired, did not fire for discrimination
                                                            vi.      Same class inference
1.        Courts infer person in same class would not discriminate
                                                           vii.      Direct vs Circumstantial
1.        Direct – So strong, there’s no need for an inference
2.        Circumstantial –
e.        Mixed Motive (Case with Two Stories) (Price Waterhouse v Hopkins)
                                                               i.      Burden of proof in mixed motive cases-largely overruled by CRA 1991.
                                                              ii.      The use of stereotyping evidence: long-standing legacy.
                                                            iii.      Brennan – When π proves that gender played a motivating part in employment decision, ∆ may avoid liability only by proving by a preponderance of the evidence
                                                            iv.      O”Connor – Requires “substantial factor” rather than motivating factor and requires the substantial factor to be proven by “direct evidence.” Then the burden shifts to the ∆ to prove it would have made the same decision even w/o considering sex.
                                                              v.      Stereotyping Issue: “We are beyond the day when an ER could evaluate EEs by assuming or insisting that they matched the stereotype associated w/ their group. ER
f.         703(m): an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
g.        706(g)(2)(B): On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that he respondent would have taken the same action in the absence of the impermissible motivating factor, the court-
                                                               i.      may grant declaratory relief, injunctive relief, and attorney’s fees and costs; and
                                                              ii.      shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
h.       Desert Palace v Costa
                                                               i.      HOLDING: No direct evidence required for mixed motive instruction under 703(m).
                                                              ii.      Conclusion: In order to obtain an instruction under 703(m), plaintiff need only present sufficient evidence for a reasonable jury to conclude that sex . . . was a motivating factor for any employment practice.
i.         Gross v FBL Financial Services

ly impractical to deal with the older EEs on an individualized basis
3.        SCOTUS Rule for BFOQ cases under ADEA:
a.        ER has burden of showing that:
                                                                                                                                       i.      The age limit is reasonably necessary to the essence of the business, AND EITHER
                                                                                                                                      ii.      That all or substantially all individuals excluded from the job involved are in fact disqualified, OR
                                                                                                                                    iii.      That some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.
                                                            iii.      Dothard v Rawlinson
1.        Is ER’s policy of hiring only male prison guards for its male prisoners…
2.        Rule: BFOQ is a very narrow defense that allows intentional discrimination if sex or national origin is a bona fide occupational qualification for the job in question.
3.        What can it not be based on?
a.        Threat to woman herself
b.       Stereotypical assumptions
4.        Women should be able to make decisions for themselves, but when their presence threatens the safety and order of the prison at large, then the BFOQ defense is satisfied
5.        Threat was not only to the women but also the basic control of the penitentiary and protection of its inmates and other security personnel
                                                            iv.      UAW v Johnson Controls
1.        Policy of excluding all women pregnant who are capable of bearing children will not be placed in jobs involving lead exposure
a.        “Capable of bearing children” defined as all women unless their inability to bear children is medically documented
2.        Is policy facially neutral?
a.        Not neutral; accordingly, business necessity is not the appropriate defense/test. ER must prove the BFOQ defense.
3.        ER has burden to prove:
a.        Classification lawful “in those certain instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
4.        Safety to 3rd Parties: If safety to 3rd parties is at issue, 3rd parties must be indispensible to the business like the prisoners or the passengers flying
5.        Holding: No BFOQ defense in this case b/c pregnancy does not affect the women’s ability to perform the job, and safety concerns for 3rd parties are only relevant if the 3rd party is indispensible to the business
                                                              v.      Scope of defense
1.        Customer preference: very rarely a defense
2.        Privacy: can be a defense in certain cases (but not in prison cases)
3.        Sexualized jobs: strippers, exotic dancers, etc.
a.        What about Hooters?
4.        EEOC has recognized BFOZ defense in 3 instances
a.        Safety of 3rd parties
b.       Privacy
c.        Some cases of authenticity
l.         After-Acquired Evidence
                                                               i.      McKennon v Nashville Banner Publishing
1.        Terminated twice
a.        Once for economic reasons and she was chosen based on age
b.       Later, for finding out infractions during discovery
2.        Does After-Acquired Evidence erase prior discrimination?
a.        No, but can limit remedy
b.       Remedy determined from time of discrimination until discovery of infractions
3.        Holding:
a.        AAE does not absolve defendant of liability. Employer has still violated the act even if it discovers after-acquired evidence that would have caused the termination.
b.       Back pay will usually be limited to the time when evidence was acquired.
m.      Intent and Cat’s Paw
                                                               i.      One person is being used as the tool of another
                                                              ii.      Issue is whether ER is liable when the final decision maker does not have a discriminatory motive but has been influenced by someone else who does have a discriminatory motive
                                                            iii.      Staub v. Proctor Hosp.
1.        Issue: may an employer be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.
2.        Is the adverse employment action the intended consequence of the supervisor’s discriminatory conduct?
a.        In other words, proximate cause?
3.        Why not immunize ER if final decision maker exercised independent judgment or even conducted an independent investigation?
4.        Holding: If supervisor performs and act motivated by animus that is intended to cause the adverse action, and if that act is a proximate cause of the adverse action, then the ER is liable
a.        Same for other Acts, not just USERRA