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

Employment Discrimination
Professor Juliano – Fall 2000

I. Legal Approaches to the Employment Relation………………………………………………………………. 2
A. Subject – discrimination in employment relationship on the basis of statutorily defined
characteristics…………………………………………………………………………………………………………. 2
B. History………………………………………………………………………………………………………………….. 2
C. The Reassessment of Contract Law……………………………………………………………………………. 3
D. The Reassessment of Tort Law………………………………………………………………………………….. 4
II. Individual Disparate Treatment Discrimination……………………………………………………………….. 6
A. Introduction……………………………………………………………………………………………………………. 6
B. Structure of Cases…………………………………………………………………………………………………… 8
C. The Meaning of Discriminatory Intent………………………………………………………………………… 9
D. Circumstantial Evidence of Discriminatory Intent………………………………………………………. 10
E. Direct Evidence of Discriminatory Intent………………………………………………………………….. 15
F. Present of Individual Disparate Treatment Law………………………………………………………….. 16
III. Systematic Disparate Treatment Discrimination………………………………………………………….. 17
A. Introduction………………………………………………………………………………………………………….. 17
B. Formal Policies of Discrimination……………………………………………………………………………. 17
C. Patterns and Practices of Discrimination……………………………………………………………………. 18
D. Defenses to Systemic Disparate Treatment Cases……………………………………………………….. 20
IV. Systematic Disparate Impact Discrimination………………………………………………………………. 26
A. The Concept of Disparate Treatment Impact……………………………………………………………… 26
B. The Structure of Disparate Treatment Impact Law After the 1991 Civil Rights Act………….. 27
C. Section 703(h) Exceptions………………………………………………………………………………………. 32
V. Special Problems in Applying Title VII, Section 1981, and the ADEA……………………………… 34
A. Sex Discrimination………………………………………………………………………………………………… 34
B. Discrimination on Account of Religion…………………………………………………………………….. 43
C. National Origin and Alienage Discrimination…………………………………………………………….. 47
D. Retaliation……………………………………………………………………………………………………………. 49
E. Age Discrimination………………………………………………………………………………………………… 51
VI. Disability Discrimination -………………………………………………………………………………………. 52
A. The Americans with Disabilities Act (ADA) – §102(a):……………………………………………….. 52
B. Analysis Summarized:……………………………………………………………………………………………. 52
C. Individual with a Disability:……………………………………………………………………………………. 53
D. Qualified Person with a Disability……………………………………………………………………………. 54
E. Discrimination: Did the employer discriminate?………………………………………………………… 55

I. Legal Approaches to the Employment Relation
A. Subject – discrimination in employment relationship on the basis of statutorily defined characteristics
B. History
1. Pre-19th Century – employment at will, employees often at mercy of employers
2. 19th Century Changes
a. Employee Safety
1) Workers’ Compensation – administrative system of strict liability on employers whose employees are injured on the job; provides more certain recovery to employee but limits damages
2) Occupational Safety and Health Act (OSHA) – sets safety standards for employers to follow; attempt to prevent, rather than compensate for, workplace injuries
b. Unionization
1) National Labor Relations Act (NLRA) – declares it unfair labor practice for employers to discriminate against workers seeking to unionize and requiring employer to bargain (in good faith) with unions that succeed in organization the employer’s workforce
2) Collective bargaining agreement: agreement between employer and labor union governing wages, hours and terms and conditions of employment including guaranteeing workers these forms of job security
a) Seniority system that must be followed for lay-offs
b) Limitation on firing to “good cause” w/grievance procedure and binding arbitration
c. Direct Control of Wages and Other Compensation
1) Post-Lochner minimum wage and maximum hour requirements
a) Eg. FLSA
b) Concern about artificially reducing demand for labor
2) Employee Retirement Income Security Act (ERISA) – provides incentives and sanctions in attempt to prevent employers from abusing retirement programs
d. Protection for Special Groups of Employees
1) Civil service systems – public employment systems established by statute or ordinance; in theory committed to employment on basis of merit of individual worker
a) Workers initially selected based on performance on examination
b) Once worker successfully completes period of “probationary” employment he becomes a permanent worker who can only be fired for certain reasons
2) Academic tenure – similar system to civil service used in academia and created by contract
a) Generally, tenured professors get procedural rights before can be terminated and can only be terminated for “good cause”
b) For private institutions, details of tenure safeguards depend on language of K.
e. Constitutional Protections
1) For public employees who can show property interest in job beyond own unilateral hopes (statutory right or employment K)
a) Procedural due process – generally gets pre-termination hearing
b) Substantive due process – limits reasons employer can fire employee
2) All employees of governmental bodies have rights under the 1st Amendment
a) To be protected, speech must address a matter of “public concern”
b) Court gives employers deference in their justifications
c) Employer’s reaction need only be reasonable (not necessarily correct) when discharges worker for fear of disruption
f. Social Security and Insurance – workers’ comp., social security benefits, unemployment compensation
g. Common Law Protection – undergoing ongoing radical reassessment
C. The Reassessment of Contract Law
1. Employment at will used to be presumed and only the clearest proof of an employment agreement would refute presumption
2.

ments, pains, penalties, taxes, licenses and exactions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of state law.

3) Title VII – 1964 Civil Rights Act, 15+ employees (caselaw defines employee), race, color, religion, sex or nat’l origin

It shall be 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.

b. Basic argument: I’m the same as everyone else but you treated me differently because I’m a member of a protected class
c. Employee need prove employer intended to discriminate, but not that intent was for a bad reason (could genuinely think 50+ people deserve to be home)

B. Structure of Cases
1. If don’t have direct evidence → McDonnell Douglas analysis
a. Employee’s Prima Facie Case – burden of persuasion on employee to show:
1) I’m in a protected class;
2) I’m qualified for the position;
3) I was subjected to adverse employment action; AND
4) After I was denied the position it was filled in a situation giving rise to an inference of discrimination.
b. Employer’s Response
1) Attack pf case of employee and
2) Rebuttal – burden of production on employer to show it had legitimate non-discriminatory reason for taking adverse employment action
c. If employer succeeds in showing lack of merit in pf case, case dismissed.
d. If employer succeeds in producing legitimate non-discriminatory reason, burden shifts to employee to prove reason is pretext for illegal discrimination
2. If have direct evidence → Price Waterhouse analysis
a. Employee’s Prima Facie Case – burden of persuasion on employee to show:
1) I’m in a protected class;
2) The employer subjected me to adverse employment action (refused to hire, promote);
3) I’m qualified for the position; AND
4) After I was denied the position it was filled in a situation giving rise to an inference that my status in protected class was a motivating factor in the employer’s actions.
b. Employer’s Response
1) Successfully defeat 1st 3 steps of employee’s pf case or
2) Prove by a preponderance of the evidence that it would have made the same decision even if it had not taken the prohibited factor into account