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Employment Discrimination
Wayne State University Law School
Browne, Kingsley R.

Employment Discrimination
Professor Browne
Fall 2010

ExamTip**He tests on Procedure so make sure to memorize the time frame of filling claims
No ADA, focus on ADEA Disparate impact, and really read the questions carfully!

Disparate Treatment
Slacks v. Havens
State of mind: If Company does not conclude supervisor is firing because of race, so goes ahead and fires them, it does not absolve employer of liability.
If it is unconscious, it could be considered “disparate treatment” because it’s treatment, but may have to prove intent, so it could be difficult.

Hazen Paper Co. v. Biggins
Fired a few weeks before pension vested. ADEA claim.
Rule-the fact that the pension vesting and age correlate does not equate them.
Under the ADEA, a MOTIVATING factor must be age-which is absent here
Even if it is ration to discriminate and exclude older workers because higher insurance costs, this is illegal.
DEFENSE for ADEA claims-BFOD-can use statistics, or show that age linked decline does exist

Hishon v King
Title 7-“terms, conditions, and privilege” of employment-to become partner
As an associate or non-equity partner at a law firm she was an employee.
Terms conditions and privileges are anything employer furnishes on its employees that it is under no obligation to furnish to anyone. These benefits may not be given out in a discriminatory fashion, even if employer is free to not give them out at all.
HERE-term was Partnership Consideration-so can’t discriminate based on sex here.

Minor v. Centocor Inc
703(a) of Title 7 “Adverse Employment Action” must change the “terms and conditions of employment – Examples hiring and firing meaningful changes in compensation, “constructive discharges”
Case-reducing wages or making someone work more hours (because it’s like reducing wage)
Need evidence to draw inference that employer did this only to women-not here

Mixed Motive cases:
1991 Civil Rights Act – Amended Title 7
703(m) of Title 7 Motivating Factor for Employment Practice: Unlawful employment practice is established when P demonstrates (race/sex) was a motivating factor even if other factors also motivated the practice.
706(g)(2)(B)-Affirmative Defense: D should carry the burden of persuasion that it would have reached the same decision even if it had the illicit “motivating factor” not been present, the P’s remedies are restricted (to attorney’s fees and adjunctive relief) even though D is still liable

Desert Palace v Costs
MIXED motive case- Good and bad reasons for employment decision
BEFORE? Plaintiff must have direct evidence-something to establish facts without drawing inferences!
Issue-Does P need “direct evidence” in a mixed motive case to “demonstrate” it was because of sex to get the jury instruction?
HOLDING-the 1991 Civil Rights Act says nothing in the language which would indicate that there must be direct evidence. “Demonstrate”-means to meet the burden of production and persuasion, so any admissible evidence can be used to demonstrate.

Pricewaterhouse v. Hopkins (before 1991 act) OVERRULED by DESERT
Sex-based considerations not allowed
D must prove by clear and convincing evidence

Main point-if proven fired for an permissible and impermissible reason it is still illegal just Defendant don’t have to reinstate you and other remedies are limited.

Gross v. FBL (supplement)- mixed motive instruction for ADEA is never appropriate.
ADEA case-holding no mixed motive cases allowed under ADEA. Age must be “the” motivating factor, so P must prove that age was the determining factor of the negative employment action. 1991 Act did not amend ADEA.

McDonnell Douglas Corp v. Green
Prima Facie Case of Employment Discrimination under Title 7?
A. P’s Burden:
1. He belongs to a racial minority
2. He applied and was qualified for the job
3. That, despite his qualifications, he was rejected
4. That, after rejection, the position remained open and the employer continued to seek applicants with Plaintiff’s qualification
*Implied a non-legitimate reason for not hiring
B. D’s burden to rebut: (If D does not rebut Court must f

the discriminatory preference of any group, or discrimination “because of” anyone’s sex or race.
Just need to show race/sex is the but for cause
Section 1981: applies to “all persons” under 1981 but must be a race.
Race-Arabs, Jews if a stock, bread, or lineage distinction (can’t be just convert)
1991 ACT-4 years statute of limitations

Age Discrimination- preferring someone in their 40’s over someone in their 60’s even if both are of a protected class IS allowed (General Dynamics) because the statute was trying to protect older workers from being treated worse. Therefore, employer can choose to lay off 40 years older and retain 60 year olds and there would not be any claim.

Reeves v. Sanderson Plumbing Products
P-made a prima Facie case. D-Said fired for bad performance. P-showed pretext with evidence.
Correct to submit to the jury? YES
ADEA-Judgment as a matter of law only appropriate for P if race/sex is the reason D was fired. P doesn’t get JML if D gave a false reason for firing—Jury must decide if P was fired for race/sex/age and if they do then no addition evidence is necessary for P, but more evidence would help. **BUT jury could still find pretext did not exist even though D was wrong about firing him.

Gross v. FBL (supplement)- mixed motive instruction for ADEA is never appropriate.
ADEA case-holding no mixed motive cases allowed under ADEA. Age must be “the” motivating factor, so P must prove by the PERPONDERANCE of the EVIDENCE (direct or circumstantial) that age was the determining factor of the negative employment action. 1991 Act did not amend ADEA, and ADEA’s text does not state that age can be a