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

Employment Discrimination
I. Individual Disparate Treatment—Chapter 1
A. The Elements of an Individual Disparate Treatment Case
1. Intent to Discriminate
a) Slack v. Havens: 4 black women asked to do work not in job description and told “colored people clean better.” Excused Caucasian similar employee from cleaning job. Statement was made regarding race of plaintiffs
(1) Motivation: racial determinations in giving assignment
(2) Discriminatory because employer supported discrimination by firing for insubordination
(3) Manager’s motivation was attributed to company
(4) Discrimination made by deliberate act treating employee different because of race, color, religion, sex or national origin
b) Hazen Paper Co. v. Biggins: Biggins claims discrimination and violation of ERISA, Hazen says Biggins doing business with competitors
(1) Jury could conclude acting on basis of pension status and therefore on age
(2) Supreme Court: acting on basis of age is acting on basis of age, not on basis of pension plan
(3) Disparate treatment: action take on basis of protected status of age
(4) Doesn’t matter if discrimination is based on inaccurate/stigmatizing as long as it’s discriminatory, it’s prohibited
2. Terms, Conditions, or Privileges of Employment
a) Hishon v. King & Spalding: plaintiff was told she’d be considered for partner fairly but claims didn’t get it based on sex
(1) Court: even if contract said not entitled to consideration for partnership, while they consider employees for partner it has to be done fairly and equally
(2) If becoming a partner is employee question then Title VII covers it
b) Minor v. Centocor, Inc.: plaintiff sales rep, supervisor changed and asked for more hours, physical and mental problems from work caused plaintiff to quit. Claimed sex discrimination
(1) She hasn’t shown that sex had a role in the adverse employment action
(2) Have to show in same pay didn’t do the same which is essentially pay reduction because do more work for same pay
3. Linking Discriminatory Intent to the Employer’s Treatment of Plaintiff
a) Desert Palace, Inc. v. Costa: sexual discrimination claim. Whether needs to present direct evidence of discrimination in order to get mixed motive
(1) Is employer’s reason the true reason or is it discriminatory reason
(2) Direct evidence is evidence that if believed proves the point
(3) Circumstantial evidence needs inference drawn from it to prove point
(4) Plaintiff would have to show direct evidence before getting mixed motive and change burden of persuasion
(5) Congress: in mixed motive case burden switches to defendant
(a) Once there’s illegitimate reason plaintiff wins
(6) Impermissible factor has to be a substantial factor not just motivating factor
(7) The remedy is determined by defendant’s ability to show denial/same result without sex in determination
(8) Gender stereotyping comments, how does expert know if used for sexual stereotyping
B. Proving Discrimination Element
a) Price Waterhouse v. Hopkins: have both legitimate and illegitimate reasons
(1) Once sex is a substantial role in decision burden of persuasion shifts to defendant to show it would have come to same conclusion without sex issues
(2) Mixed motive issue
(a) Employer doesn’t have to show motive was false that suggests you’d always want mixed motive
(b) Trier of fact could find in your favor even if motive is partly false
(c) Opens up to lesser remedies
(3) Fact finder determines that there is a nondiscriminatory reason as well as an impermissible reason for the adverse employment action
b) Note: On The Intent of Multiple Decision-Makers
(1) Collegial: many people vote on outcome and have their own decisions behind their votes on sex
(a) Sex is motivating factor because it was with the decision
(b) Can show same result same decision defense
(2) Motivating factor: one vote equal to every vote makes discriminatory vote motivating factor
(a) To show it’s a motivating factor it has to be less than showing but-for causation because if show but-for causation defendant cannot have same decision defense
(3) Hierarchal: decision progresses up the ladder of employer
(a) Each person up the line signs off on the termination and each can have different motivations so if signed of at all for wrong reason can be motivating factor
c) McDonnell Douglas Corp. v. Green: discrimination on the basis of race in rehiring process. Employees engaged in illegal activity so they didn’t hire him
(1) Didn’t matter if EEOC didn’t find reasonable cause in order to dismiss or not dismiss a case
(2) Four steps: how to prove individual disparate treatment
(a) Prima facie case: was minority, qualified, not hired, continued to seek similar applicants with same qualifications
(b) Employer obligated to show legitimate non-discriminatory reason
(i) Something not dealing with alleged discrimination; “legitimate” doesn’t have significant meaning only a non-discriminatory reason—any reason
(c) Plaintiff proves employer’s justification is pretextual
(i) Pretext: anything admissible to show cover-up reason
(ii) Evidence such as: general policy of minorities, facts of previous employment, reaction to civil rights
(d) Cover up for discrimination is proven by plaintiff
(i) Might have to show that plaintiff is at least as good as the person chosen
(3) Employer’s burden is simply to articulate non-discriminatory reason, not burden of persuasion
(4) Three prong standard:
(a) Prima facie case for discrimination: inference of discrimination arises because it is presumed that the acts if otherwise unexplained are more likely than not based on the consideration of impermissible factors
(i) Purpose is to eliminate the common non-discriminatory reasons for the challenged employment decision
(b) Employer gives legitimate, non-discriminatory reason: burden of production not persuasion
(i) Legitimate only means that it isn’t violative of Title VII
(c) Petitioner must show employer’s reason was pretextual: may attack the proffered reason directly or indirectly by showing that the defendant’s asserted reason is not a worthy belief
d) Patterson v. McLean Credit Union: racial discrimination, harassment, failing to promote, discharging due to race
(1) Pretextual burden on plaintiff is what the cases turn on because other two are easier to qualify
(a) Petitioner could show pretext by showing she was better qualified than white applicant who was hired
e) Ash v. Tyson Foods, Inc.: Could trier of fact look at facts and decide if petitioner is better qualified
(1) Court held in pretext stage that plaintiff could only show pretext in disparity of qualifications if it “smacks you in the face”
(2) Any relevant admissible evidence is allowed to show pretext
(a) Show more likely than not employer’s stated reason is pretextual
f) McDonald v. Santa Fe Trail Transportation Co.: claiming discrimination whites treated worse than blacks, defendants say Title VII or § 1981 doesn’

(7) Court incorporates part of Title VII amendment but not the whole thing
b) Approaches to Desert Palace
(1) Means McDonnell Douglass and Price Waterhouse no longer are the rule
(2) Desert Palace is limited and didn’t eliminate McDonnell Douglas
(3) Supreme Court over-ruled McDonnell Douglas without citing it in Desert Palace
(4) McDonnell Douglas is the core case with few limiting principles
c) Same actor rule vs. inference: a supervisor isn’t going to hire a person of one protected class and fire or not hire similarly protected person for discrimination
d) Same supervisor: supervisor discriminates against other members on one class
e) Age difference: disparity in age difference matters as opposed to the over 40 protected class
f) Desert Palace: mixed motive analysis of Title VII
(1) Core way to treat disparate treatment—can use Desert Palace to come up with mixed motive although decreases the remedy
II. Systemic Disparate Treatment Discrimination—Chapter 2
A. Introduction
1. Systemic disparate treatment: employer intentionally discriminates against a group as a whole—there is an official policy of discriminatory hiring or there is a pattern and practice that constitutes disparate treatment
a) Looks at fairness to individual not fairness to classes even though determined by actions made to entire classes of people
b) Latter cases (Teamsters & Hazelwood) are a lot of individual disparate impact
c) Los Angeles Department of Water & Power v. Manhart: Challenges a policy which is possibly sex discrimination
(1) Practice as a whole discriminates against a groups
(2) Majority: can’t use sex in pension—treats as a group not individual
(3) Dissent: can’t have life expectancy outside a group so treat as a group
(4) Individuals don’t have life expectancy, have lifetime
(5) EX: discriminate for height and discriminate against women
B. Formal Policies of Discrimination
a) Los Angeles Department of Water & Power v. Manhart: policy discriminated against women because it took gender into consideration when computing pension funds
(1) Court held that sex can’t be used in pension, it treats pension holders as a group as opposed to individuals
(2) Women’s take home pay was less than men because more was taken into pension
b) When there is formal discriminatory policy there is direct evidence
c) Transworld Airlines, Inc. v. Thurston: general rule is that pilots were forced to retire at 60 and engineers weren’t required to retire
(1) If not allowed to be pilot, can bump into engineer which doesn’t have qualifications
(a) If over 60 and pilot, can’t go into engineer position, this is age classification
(2) McDonnell Douglas: gets at employer’s justification
This is not needed because the policy was on its face showing age