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

Employment Discrimination
Prof. Browne
Winter 2007
Individual Disparate Treatment Discrimination
I.                    Slack v. Havens (p. 77)
a.      Issue: Under Title VII, may the discriminatory intent required by the statute be inferred from the Δ’s conduct?
b.      Yes.
                                                               i.      In cases under Title VII, the discriminatory intent required by the statute may be inferred by the Δ’s conduct.
                                                             ii.      There is clearly different treatment between blacks and whites, and there is evidence of racial animus through the supervisor’s (an agent of the company) statements
                                                            iii.      This is not a disparate impact case, so it must be shown that the discrimination must be intentional
1.      To show a disparate impact there has to be more than 4 instances of discrimination, but a pattern of systematic exclusion of the group
2.      This was disparate treatment
                                                           iv.      Murphy (the white woman) was excused from this work, but the black women were not
                                                             v.      This changed the common law rule and now at-will employment contracts allow employees to be fired for anything but race
II.                 Hazen Paper Co. v. Biggins (p. 87)
a.      Issue: In an ADEA case based on disparate treatment, does liability depend on whether age actually motivated the employer’s decision?
b.      Yes
                                                               i.      The employee was fired before his pension benefits vested.
1.      This is an ERISA claim.
                                                             ii.      Congress enacted the ADEA to address the problem of inaccurate and stigmatizing stereotypes applied to older workers.
1.      The ADEA is not implicated if Δ was motivated by independent factors, even if the factor, like pension status is correlated with age.
                                                            iii.      Under the disparate treatment standard the Π must prove an intent to discriminate
III.               Mandatory Retirement
a.      Mandatory retirement is illegal under the ADEA
b.      So they have to use a proxy for age
                                                               i.      IE: being paid more than what you’re worth
                                                             ii.      This results in a disparate number of younger workers

  A claim for disparate treatment must (3 prong standard):
1.      Prove 4 elements of the first stage of McDonald-Douglas Standard (prima facie case)
a.       They were qualified for the job
b.      They belong to a racial minority
c.       They were rejected despite being qualified for a job
d.      The employer was seeking other employees after the rejection of the employee (job remained open)
·        This prima facie case proves that the employee was not hired despite being qualified for the job.
2.      The employer must then provide a legitimate non-discriminatory reason for not hiring the employee
a.       In this case they said the illegal activity towards the employer
b.      Legitimate requires that not only is it non-discriminatory, but not illegal
3.      If there is a legitimate reason, the Π has the opportunity to prove that this is a pretext for discrimination
a.       They have to show that the reason is false and a pretext for race
Generally the 1st and 2nd prongs are easy to prove, the 3rd prong is what most cases involve