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

Employment Discrimination

Browne – Spring 2017

Individual Disparate Treatment – Chapter 1

Aims of discrimination law – Equality of treatment vs. equality of result (inconsistent)
Disparate Treatment – Individual disparate treatment claims involve individual employees who were subject to disparate treatment in the workplace because of their race, sex, etc. To succeed in a disparate treatment claim, plaintiff must prove that the defendant acted with intent to discriminate or a discriminatory motive.
Statistical Discrimination – Discrimination based on stereotypes (may/may not be correct stereotypes)

The Single Motive Claim – Section 703(a)(1)

“It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise 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.”

Prohibits adverse employment actions that occur “because of” an employee’s protected status.
Three basic requirements:

There must be an adverse employment action such as termination, failure to hire, or other negative changes in the terms and conditions of employment;
The employee must be a member of a protected class; and
The adverse employment action must be because of the employee’s protected status.

Because of = But for the employee’s protected status, he or she would not have been subject to the adverse employment action.

These cases typically involve strong evidence for the P like blatant comments or written statements that directly show the employer’s improper motivation.
Most single-motive claims are analyzed under the McDonnell Douglas analysis.

The McDonnell Douglas Analysis

The McDonnell Douglas burden-shifting framework is used to analyze whether a plaintiff’s disparate treatment discrimination claim should survive a defendant employer’s motion for summary judgment. The MD framework is applied when a plaintiff lacks direct evidence of discrimination.
The framework as applied by courts is:

P must make out a prima facie case by a preponderance of the evidence which demonstrates that:

She is a member of a protected class
She applied and was qualified for an available position
Despite being qualified she was rejected, and
After her rejection, the employer chose someone else or continued to seek applicants from persons having the complainant’s qualifications.

The burden of production then shifts to the D to articulate a legitimate, nondiscriminatory reason for the employment action
The burden then shifts back to the P who must demonstrate that the D’s reason is merely a pretext for behavior actually motivated by discrimination.

The Mixed Motive Claim – Section 703(m)

Employment decisions are usually the result of numerous factors, some of which may be discriminatory and some of which may be legitimate. When one of the employer’s motivations is unlawful under Title VII and another is lawful, a mixed motive case exists.
In the 1991 Civil Rights Act Amendments (CRA of 1991), Congress added Section 703(m) to Title VII, which states: “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, though other factors also motivated the practice.”

The CRA was silent, however, on whether the employee needed direct evidence to establish his or her mixed-motive burden. In Desert Palace, SCOTUS held that a P can use direct or circumstantial evidence to show that discrimination was a motivating factor.
The CRA also added section 706(g)(2)(B), which provided a partial defense to a mixed-motive claim. Under this defense, if the employer demonstrates that it “would have taken the same action in the absence of the impermissible motivating factor,” only limited injunctive relief, attorney’s fees, and litigation costs may be awarded – no damages, reinstatement, etc. are permitted.

Essentially, the employer can still be liable for violating Title VII but the available damages are curtailed.


What Is Discrimination, How Can It Be Proved?

Slack v. Havens – Intentional discrimination

FACTS: 4 black female employees asked by supervisor to do heavy cleaning work which was not in their job description because (as they were told) “colored people clean better.” A black woman from a different department was pulled in to help however a white female co-worker with less seniority in the same department was transferred to another department when the work was to take place. During their meetings with the supervisor, they were told that “colored people should stay in their places.” They refused to do the work and were fired because of their refusal.
RULE: In cases under Title VII, discriminatory intent required by the statute may be inferred from the D’s conduct.

The comments themselves aren’t illegal – have to have some idea that they were being given the job because of race.

McDonnell Douglas is used when there is no smoking gun and hard evidence. This was not the case here because there was direct evidence.

Hazen Paper Co. v. Biggins – Protected trait has to motivate employer’s decision

FACTS: At the age of 62, Biggins was fired from his job at Hazen Paper a few weeks before his pension benefits were due to vest. The company had offered to keep him on as a consultant (which wouldn’t allow benefits to vest but suggested that they were happy with his performance). claims discrimination in violation of ADEA and ERISA, but Hazen claimed that Biggins was fired for doing business with other competitors.
HOLDING: A decision by a company to fire an older employee solely because he has 9+ years of service and therefore is “close to vesting” would not constitute discriminatory treatment on the basis of age. This conduct would be actionable under ERISA but not the ADEA.

The factfinder must find by a preponderance of the evidence that the prohibited consideration was a determinative factor, a but-for cause of the adverse employment action.

RULE: When a plaintiff alleges disparate treatment, liability depends on whether the protected trait actually motivated the employer’s decision. (It has to be the reason, not just correlated).

Jury Trials

Up until the 1991 Civil Rights Act, there was no right to a jury trial for discrimination cases. Congress was concerned that if they left the decision up to a jury, that the jury would not find in favor of race discrimination. They would get around the Seventh Amendment by saying that this was not common law, they were only giving back pay not equitable relief.
Since 1991, now compensatory and punitive damages are available. These are legal remedies so now there is a right to a jury.
In claims of disparate impact (not intentional) there is still no right to a jury.

In 1990, SCOTUS said that state courts (not just federal) have jurisdiction over Title VII.
Pg. 16 Note 4: What if stereotypes are true? The point is not that discrimination is legal if it’s rational: it is almost always illegal, even if the employer is correct in its perceptions (and often it isn’t). Rather, the point is that discrimination is a more plausible explanation when the employer’s self-interest is furthered by it. An employer can’t rely on a generalization – it has to be an individual performance.

McDonnell Douglas Corp. v. Green – The order and allocation of proof; infer the real reason from circumstantial evidence

FACTS: Green, a black man, was employed by McDonnell Douglas (MD) as a mechanic for eight years prior to being laid off during a reduction of the workforce. In protest of this layoff, and what he alleged to be discriminatory hiring practices, Green participated in an illegal demonstration against MD for which he was arrested and fined. A year later, when MD began to solicit applications for Green’s previous position, Green applied but he was rejected because of his demonstrations against the company. Green brought two claims: (1) a retaliation claim that he was not hired because he protested MD’s race-based discrimination and (2) a race claim.
HOLDING: The purpose of Title VII is to eliminate employment procedures that have a discriminatory effect. The Act does not require an employer to rehire an employee who has undertaken illegal activities against the company. However, the employee should be given the opportunity to show that the apparently legitimate reason for rejecting the applicant was merely an excuse for discrimination.
RULE: If a prima facie case of racial discrimination is rebutted by the D, the P must then show that the reason for rejection was a pretext for discrimination.
Three Step Framework

Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the D intentionally discriminated against the P remains at all times with the P.
The framework as applied by courts is:

P must make out a prima facie case by a preponderance of the evidence which demonstrates that:

He is a member of a protected class
He applied and was qualified for an available position
Despite being qualified he was rejected, and
After his rejection, the employer chose someone else or continued to seek applicants from persons having the complainant’s qualifications.

(If P cannot establish a prima facie case, D should make a JMOL motion at the close of P’s case-in-chief)

The burden of production then shifts to the D to articulate a legitimate, nondiscriminatory reason for the employment action

“legitimate, nondiscriminatory reason” simply refers to any admissible non-discriminatory reason. The reason does have to be clear and specific.
D must be able to put the reason into evidence, not enough to merely argue the possibility since the D has the burden of production.

The burden then shifts back to the P who must demonstrate that the D’s reason is merely a pretext for behavior actually motivated by discrimination.

MD Framework applied here:

(1) Green was a minority, qualified, and was not hired. MD continued to seek similar applicants with the same qualifications. BURDEN MET.
(2) MD did not hire because of Green’s participation in the illegal demonstration against the company. BURDEN MET.
(3) Green could not show that MD’s reason was pretext BURDEN NOT MET.

Green could have s

If claim could have been brought under Patterson (refusal to hire, etc.), then use the most applicable limitation period for the state – have to compare by analyzing against state causes of action and then applying that statute of limitations.
If it’s a new cause of action, one that didn’t pre-exist the CRA, this would be governed by the post-1990 rule on SOL. Basically, any cause of action created by statute after this date has a 4yr cause of action. Any §1981 claim or any other statutory cause of action created.
So a racial harassment claim would be governed by the 4yr SOL while a racial failure to hire claim would be governed by the state statute.

What does race mean under §1981?

St. Francis College – “Arab” is not a racial classification. Here, Title VII was not timely so court had to decide if it was race under §1981 and court rejected that argument. But see…
Congregation v. Cobb – court says “Jew” is a race because in the 19th century would be a race. But have to be careful this is not religious discrimination, because that would be different.

Note on preferences for older workers:

General Dynamics v. Cline – employer eliminated health benefits for retired workers but chose to “grandparent” current workers over age 50. Petitioners were workers between 40 and 50 who were not given grandparent status and alleged age discrimination. The Court held that the ADEA was enacted to protect older workers from discrimination favoring the young.

The effect of Cline is to eliminate any ADEA claim when the preferences challenged are for older workers. Even though petitioners were 40+, the preference for the 50+ meant it was not age discrimination.

The Scope of Surrebuttal to Prove Pretext

To be pretextual, the reason must be both inaccurate and conceal a discriminatory motive.
When D has more than one supposed legitimate nondiscriminatory reason, some courts have required the P to put in evidence of the pretextual nature of all the reasons.

Sometimes multiple reasons will conflict, thus providing another basis to infer pretext. Juarez v. AGS Gov’t Solution Group.

Patterson v. McLean Credit Union – adopts McDonnell Douglas for §1981 cases; Evidence against pretext not limited

FACTS: Patterson, a black employee, sued under §1981 claiming she had been denied a promotion in favor of a less-qualified white employee. Jury instructions said that to be successful, P had to prove that she was more qualified for the position than the other white employee.
The Court applied McDonnell-Douglas: Prima facie case met, rebuttal met by McLean (other candidate more qualified), question is what is required for surrebuttal?
HOLDING: Petitioner is not limited to showing she was more qualified in order to prove pretext. She must be allowed to use any means to meet her burden whether that be showing she was more qualified, or some other way of showing purposeful discrimination. The court suggested she could prove discrimination by offering evidence of McLean’s previous bad treatment of her which was based on race.
RULE: An employee is not limited to a specific type of evidence in attempting to prove an employer’s stated nondiscriminatory reason for its conduct is mere pretext.
RULE: McDonnell Douglas framework is applicable to §1981 cases as well as Title VII cases.

Ash v. Tyson Foods – Any relevant, admissible evidence is allowed to show pretext

FACTS: Two black employees sought a promotion within Tyson but they were denied and the promotion was given to two white employees who were less qualified.
PP: Lower court held that pretext can be established through comparing qualifications only when “the disparity in qualifications is so apparent as to virtually jump off the page and slap you in the face.”

Wrong – SCOTUS says that’s not a helpful standard.

HOLDING: While an employee’s superior qualifications don’t always necessarily show pretext, some formulation taking into consideration an employee’s superior qualifications can suffice to show pretext.
RULE: Proof of plaintiff’s superior qualifications, standing alone, may be sufficient evidence of pretext to go to a jury.
Any evidence that is relevant to show pretext and is admissible is OK.