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

·         Primary Choice is between equality of treatment vs equality of outcome
a.       Disparate Treatment- Are individuals being treated the same?
                                                              i.      Focus on individuals (affirmative action would fail under this)
                                                            ii.      Intentional discrimination, focus on employer’s decision
b.      Disparate Impact- Result, focus on fairness to groups
                                                              i.      If employer can show a good enough reason, he can justify
                                                            ii.      General practice, impact on group
·         These two forms are in tension
c.       To guarantee to be race/sex blind and to guarantee to be conscious of race/sex
·         Same treatment to everyone doesn’t work: Education, wealth have impact; physical differences between men and women
·         What if the practice is not for discriminatory reasons? (ex: height and weight requirements)
o        Under Title VII, if a P shows a neutral policy has a statistically disproportionate effect, employer must show a good reason
·         Short statute of limitations under Title VII, no jury, applies to employers of 15 or more employee
·         ADEA- Protection against age discrimination for age 40 and over
Slack v Havens
§         Disparity in treatment-Was the reason legitimate?
§         Supervisor comments that implied the reason was bc of race
§         D argues that he didn’t know, he was just told they refused the job assignment
§         Supervisor was an agent
§         Were similarly situated persons treated better? If so, this shows discrimination
o        The lawyer would look to see if the white lady had disability
§         Guy fired a few weeks before his pension
§         File under Age Discrim, ERISA
§         Have to show that the discrimination was based on age – if there is a correlation between pension and age
§         Disparate Treatment Case
§         Discharge on pension distinct from age, likely to be peope who are younger, whose pensions have vested
§         Congress wanted to prevent age discrimination because of stereotypes, the pension thing doesn’t depend on a stereotype
§         Test is: Was the action based on age or something else?
o        If the only apparent reason was pension, that is not good enough
o        He was offered a job as a consultant after he was fired, which suggests it was not about age
o        Probably not age or working with competitors, probably pension – the timing and stated reason (working with competition) don’t make sense
§         To show it was age discrimination, have to show it was actually age and not something correlated
§         Employers have economic incentive to fire older employees bc they get paid more, productivity gets to be less, which gives incentive to hire younger employees
§         ADEA- employer cant base it on age when over 40
o        Relying on compensation level is not relying on age
§         Disparate Impact
o        Standard: was it based on a reasonable factor other than age?
o        Compensation/productivity reasons seem to be ok
§         If stats show 65+ poor productivity, age discrimination is a strong self interest for employer, but if the statistics are true, then employer who doesn’t rely on age is going to have the same number laid off regardless of whether or not they rely on age or performance
Hishon v King & Spalding
Minor v Centocor
§         Employee had to work more hours, this is a Sex and Age claim
§         She has to show she was treated adversely because of sex and age, could show that by using :
o        Comparisons to show employer always makes women work longer and not men and younger employees
§         Summary Judgment is appropriate
o        There was adverse actionà working longer for less pay, but she didn’t show that it was just against her because of sex and age
Desert Palace v Costa
§         This is a mixed motive case, partly illegal motive, partly legal
§         What kind of evidence to show to get a mixed motive jury instruction
o        Requirement of direct evidence (Comes from Price Waterhouse in O’Connor’s concurrence she says you have to have direct evidence, Different from Brennan’s plurality because Brennan said that if the Plaintiff shows that sex was a motivating factor, the burden shifts to the Defendant to show that the same decision would’ve been made anyways)
§         1991 Amendment- Change what would have been the “substantial factor” to “motivating factor”
o        “Direct Evidence” is NOT mentioned
o        Case doesn’t end when the employer would’ve done something anyway
o        Plaintiff gets attorney fees
o        Lower courts were divided on direct evidence being required or not
o        In this case, the Supreme Court says the 9th Circuit got it right, NO direct evidence is required
·         Rationale: the act uses the term “demonstrate”; unless there is a limitation set forth, use the Fed Rules of Evidence; Direct evidence lends itself to conclusion without inference
Price Waterhouse
§         Sex discrimination claim
§         Defendants says it was because she did not work well with coworkers
§         District Court said that her sex was a real reason, the legitimate reason was her interpersonal skills (mix of legit and illegit reasons)
o        District Court says that the mix means there is violation of statute but employer could avoid equitable relief by proving it would’ve done the same thing anyways
§         The 1991 Amendment came, “motivating factor” , it says that if the employer proves it would’ve done same thing anyways, it doesn’t mean they win
§         Desert Palace says direct evidence is not required under the 1991 Amendment
§         Sex Stereotyping:
o        Quality of evidence (raised by the dissent)- critical of expert witness who testified that statements about Plaitniff were reflecting sex-stereotypes because the psych never met person who made statements
o        The “Charm School” comment by employer- does not necessarily reflect animus, not always used against women
§         This case shifts the burden from Plaintiff to Defendant 
§         Price unlawfully discriminated against Hopkins on the basis of sex by consciously giving credence and effect to partners comments that resulted from sex stereotyping
§         Conflict of Interest- whether the plaintiff atty should ask for mixed motive jury instruction:
o        Might increase likelihood that jury will find for your client
o        Lawyer will prob get atty fees, p wil not get any; if no mixed motive, harder to win, but P would get more money
McDonnell Douglas v Green
§         Race Discrimination Case
§         4 Factors for a prima facie case (excluded are the lack of available jobs, lack of adequate qualifications)
o        That he belongs to a racial minority
o        That he applied and was qualified for a job for which the employer was seeking applicants
o        Despite his qualifications he was rejected
o        That after his rejection the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualifications
§         For Prima Facie Case, some courts say that plaintiff has to sh

Is employer entitled to judgment as a matter of law when Plaintiff has prima facie case, proof that stated reason is false, but without any other evidence?
o        Don’t necessarily need extra evidence but just proof of falsity is not necessarily as a matter of law sufficient to carry plaintiff’s burden
§         Even though they thought given reason was false, they still found for the employer, 8th Circuit said they should’ve found for plaintiff
§         Supreme Court says that plaintiff isn’t entitled to JML, trier of face has to conclude the cover up is in fact discrimination
§         Reeves says it doesn’t require evidence above the prima facie case
§         Decision in Reeves mandated by St. Mary’s v Hicks
§         Trier of fact cant just say “I don’t believe employer,” has to say that it was because of discrimination
§         Trial wouldn’t look like McDonnell Douglas, would look like other trial, P puts on evidence first, jury not given McDonnell Douglas instructions
§         If P doesn’t establish prima facie case, D is entitled to JML
§         But if D doesn’t move for SJ, then D has to put his evidence in
§         Supreme Court says no JML once proof is all in, just decide if there is sufficient evidence for the jury to decide
Gross v FBL
§         Age discrimination claim
§         At trial he got $46,945 in lost compensation
§         Supreme Court grants cert to see if the direct evidence instruction is correct and also addressed if the burden shifts to defendants in ADEA cases
§         Court says ADEA language requires but-for  causation
o        In Price, some language in Title VII held not to be but-for
o        The ADEA wasn’t amended like Title VII
§         The rationale for saying Price is not controlling is that the ADEA is this case, Price was Title VII, burden shift isn’t applied to ADEA- Price has been superseded by statute, Desert Palace doesn’t apply
§         Court doesn’t really show why, if Price was correct in “because of” why is it right that “but for” is for age
§         Court seemed to think Price was wrongly decided, seems to clearly reject Price majority and accepts Kennedy dissent
Same Actor Doctrine: Court tend to discount discrimination claim if same person that hired did the firing
Same Supervisor: If Plaintiff shoes other evidence of discrimination by a different supervisor on others that may be weak
§         Sprint v Mendelson- Evidence isn’t per se admissible or per se inadmissible
§         Facially discriminatory policy- question is it permissible?
§         Pattern of Pracctice- no formal policy, but systematic discrimination (general operating procedure)
LA Dept of Water and Power v Manhart
§         Women charged more for pension contributions because the pension for them is more expensive
§         It is true that women live longer
§         This is not a question about employer using money as a pretext