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Employment Discrimination
Villanova University School of Law
Juliano, Ann C.

Employment Discrimination
Fall 2004

I. Basis of employment
a. Job security (hiring and firing)
b. Terms and conditions of employment
II. Basic rule: at will employment—can be fired or quit for any reason (except for prohibited reasons
III. Other issues
a. Are you in a union?
b. Are there employment contracts? Employee manuals? Handbooks?
c. Create a legally enforceable duty to have good cause
IV. Title VII: It shall be an unlawful employment practice for an employer to—
i. 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
ii. 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
iii. 15 or more employees
iv. For 20 weeks/year
V. ADEA: age
a. Same language, but “because of such individual’s age”
b. 20 or more workers
c. Only includes individuals over 40 years of age
VI. ADA: Americans with Disabilities Act
VII. § 1981: Race in Contracts
a. Only applies to race discrimination
b. Covers private employment
c. Applies to terms of employment and firing (§§ (b) & (c))
VIII. State civil rights laws: marital status, sexual orientation
IX. Treatment
a. Individual: treated “me” differently
b. Systemic: you won’t hire any members of a class
X. The Meaning of Discriminatory Intent
a. Evidence of discrimination: Two types: Direct and circumstantial
b. Comparative evidence
i. How persuasive is the evidence that the white worker was treated differently?
ii. Employer can rebut comparative evidence
c. Statements by the supervisor: semi-direct evidence
d. Must have intent to discriminate but not discriminatory animus
e. Need an adverse employment action (can be terms/conditions)
f. Other evidence of discrimination
i. Qualifications of replacement
ii. Inacccurate and stigmatizing stereotypes
g. In mixed motive casesà look to see whether motives are so intertwined to be evidence of age discrimination
XI. Circumstantial Evidence of Discriminatory Intent
a. Order of Proof
i. The Plaintiff’s Prima Facie Case (from McDonnell Douglas)
1. Belongs to a member of the protected class
2. Met qualifications/applied (minimum qualifications)
3. Rejected (or other adverse employment action)
4. Position remained open
ii. Defendant’s Rebuttal: Legitimate Non-Discriminatory Reason
iii. Plaintiff—opportunity to show that reason was pretextual
b. Plaintiff has burden of proof, defendant has burden of production
c. PFCà presumption arises that the employer has discriminated
d. McDonnell Douglas: way for plaintiff to establish motive through circumstantial evidence
e. LNDR focuses the inquiry, only burden of production
f. Summary judgment is prevalent in employment discrimination cases (but S.Ct. applies Rule 8 notice pleading standard in employment discrimination cases
g. Protected classes
i. Title VII & § 1981 cover racial minorities and majorities (McDonald v. Santa Fe Trail Transportation Co.)
ii. AEDA: over 40, claiming favoring someone younger
iii. § 1981: race, but race construed broadly
1. S.Ct. Jewish is a race
2. Race = ancestry
3. Race understood as is was in 1866
h. Minimal qualifications
i. Responses to fail to qualify
1. Not a real qualification
2. Qualification itself is discriminatory (disparate impact claim)
ii. Employer decides qualifications (unless qualifications are pretext for discrimination)
iii. Need not apply if the employer has created a pervasive atmosphere of discrimination making it understood that applying would be fruitless
i. Position remained open
i. 4th Cir: must be filled by someone outside the protected class (at least in sex discrimination cases)
ii. Can be within protected class in age discrimination case
iii. Does not matter whether filled with someone in or outside of protected class, just matters if decision was based on illegal factor
i. LNDR can be that other applicant was better qualified
ii. Once defendant articulates an LNDR, presumption is gone
iii. Different from Legitimate business reasons
iv. After-ac

i. Plaintiff must prove his case by a preponderance of the evidence, using direct or circumstantial evidence
ii. No direct evidence required
iii. To obtain mixed-motive instruction, plaintiff need only present sufficient evidence for a reasonable jury to conclude that race, color, religion, sex, or national origin was a motivating factor for any employment practice.
f. Law after Costa—unknown implications
i. 1991 Civil Rights Act applies to all cases—no more McDonnell Douglas
ii. Only mixed motive cases get 703(m) instruction; single motive still get McDonnell Douglas
iii. 703(m) applies to both cases, but McDonnell Douglas burden shifting still applies
1. Plaintiff has burden to show intentional discrimination
2. Really only matters on the last step
3. Which would you choose?
I. Two ways to Prove Systematic Disparate Treatment
a. Formal Policies of Discrimination: discriminate on their face—employer essentially admits to discrimination
i. Two issues:
1. Does the policy actually discriminate?
2. Is there a statutory defense?
ii. Formal policies make PFCs easy to prove: employer’s regular practice discriminated against a protected class because of their membership in that class
iii. Can’t use a cost justification defense (LA Dep’t of Water & Power v. Manhart)
iv. The policy is direct evidence of discrimination
v. If you create a privilege, you can’t allocate it determining by sex (TWA)
vi. Affirmative defenses
1. BFOQ: Bona-Fide Occupational Qualification
a. Statutory defense
b. Reasonably necessary to the normal operation of the particular business
c. Actual job employee was hired for
d. Doesn’t apply to race-based distinctions
2. Seniority plan
a. Any system that includes this policy is not bona fide