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Employment Discrimination
West Virginia University School of Law
Bastress, Robert M.



*Employer treats some people less favorably than others because of [some protected characteristic] *Proof of discriminatory motive is critical (in some situations it can be inferred from the mere fact of differences in treatment)


Slack v. Havens (9th Cir. 1975): Black employees told they must do janitorial assignment in their dept while a white woman was excused. Immediate supervisor explains “Colored people should stay in their places, they are hired to clean because they clean better” – black employees refuse assignment, were fired and sued.
– Trier of fact makes determination based upon reasonable inferences drawn from totality of the facts, conglomerate of activities and entire web of circumstances presented by the evidence on the record as a whole.
– Griggs v. Duke Power: mandates that court look beyond appellants’ alleged lack of intent to discriminate and consider the consequences of the employment practices in question.
– This case = reasonable determination by court that found discrimination in terms and conditions of employment applied to appellees.
– ALSO: this case offers test for SUCCESSOR CORPORATION LIABILITY. (p. 4, case printout)

Hazen Paper v. Biggins (US 1993): Employee discharged (allegedly for doing business with competitors) weeks before pension was to vest. Brings suit under ADEA and ERISA.
– HELD: Decision based on years of service is not necessarily age based – age and years of service are analytically distinct. Firing employee in order to prevent pension benefits from vesting does not, without more, violate ADEA (though does violate ERISA!)
– Employer cannot rely on age as proxy for employee’s remaining characteristics, i.e. productivity, competency, etc.
– For disparate treatment, liability depends upon whether the protected trait actually motivated employer’s decision and had determinative influence on outcome.
– ALSO: liquidated damages for ADEA violation depends on whether the violation was willful. See Thurston – standard is “if employer knew or showed reckless disregard for the matter or whether its conduct was prohibited by the ADEA.” Congress aimed to create a “two-tiered” liability scheme under which some, but not all, violations would give rise to liquidated damages. So NOT standard of “whether employer knew that ADEA was in the picture” which would virtually obliterate any distinction between willful and nonwillful violations. If employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed.

INDIRECT PROOF MODEL – Order and Allocation of Proof in Circumstantial Evidence Cases

A. Plaintiff’s Prima Facie Case – Burdine (1981, p.58), McDonnell Douglas

1. Elements of PF case:

a. P is a member of a protected group
b. P applied for and was qualified for position

i. P must show that P at least met objective criteria for position (employer may then articulate the subjective factors in explanation for its action)
ii. P bears burden of showing comparitive qualifications of P.

c. P was not chosen
d. Position remained open after P rejected and employer continued to seek applicants

2. P has burden of proving PF case by the preponderance of the evidence.
3. P carries BURDEN OF PERSUASION AT ALL TIMES that D intentionally discriminated against P. The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.

4. Purpose of PF case
a. Eliminates most common nondiscriminatory reasons for P’s rejection.
b. Creates rebuttable presumption that employer discriminated against employee. If D silent after PF case, ct enters judgment for P.
c. Determines whether or not P will be allowed to have case decided on the merits by trier of fact.

5. Plaintiff DOES NOT have to offer direct evidence of discriminatory intent. Aikens (1983, p.70)

6. Pl who is not member of protected class – i.e. white male – not entitled to McDonnell Douglas presumption unless they demonstrate the existence of “background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority” – approach followed by most courts when dealing with suits brought by members of historically favored group. (Note 1, p. 63)

7. Pl does not need to prove she was replaced or passed over in favor of someone from outside her class in order to establish PFC (according to most courts).

8. “Direct Evidence” as a Substitute for the PFC: Cordova v. State Farm (9th Cir. 1997), Pl can also establish a PFC of disparate treatment without satisfying the McDonnell Douglas test, if she provides evidence suggesting that the “employment decision was based on a discriminatory criterion illegal under the Civil Rights Act.”
§ In Cordova, the evidence offered was a statement by the supervisor responsible for hiring who referred to another employee as a “dumb Mexican” who was hired only b/c he was a minority.
§ Some courts have limited directed evidence to statements of bias by decision makers that explicitly refer to the decision alleged to be discriminatory.

B. Defendant’s Burden after PF case

1. Burden of PRODUCTION shifts to D. D must only ARTICULATE legitimate, nondiscriminatory reasons for employee’s rejection. D must clearly set forth specific reasons through admissible evidence. (An answer to a complaint will not be enough). D must raise a genuine issue of material fact.
2. D need not persuade the ct that it was actually motivated by these reasons.
3. If D meets this burden, PF case and presumption of discrimination is rebutted.

4. Purpose of D’s burden

a. Meets P’s PF case by presenting legitimate reason for action
b. Frames factual issues with sufficient clarity so that P has full and fair opportunity to prove pretext.

5. D does not have to prove that person hired was more qualified than P. Burdine.

6. D can fire employee for “good reason, bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason” Nix v. WLCY Radio (11th Cir. 1984) Burdine requirement that the reason be ‘clear and reasonably specific’ affords the Pl some protection against reasons so

that D was motivated by discriminatory intent. Not enough just to prove pretext. (See Hicks dissent)

2. If P proves pretext, judge has discretion whether or not to find that D intentionally discriminated against P. Judge can either:

a. Find that D intentionally discriminated based only the proof of pretext, or
b. Find that although D’s reasons were pretextual, D motivated by other legitimate, unarticulated reasons such that there was no intentional discrimination. In this case, P prevails only if can prove that D was motivated by discriminatory intent or reason not articulated by D.

Criticism of Hicks case

a. P will be required to refute all nondiscriminatory reasons for not being hired, not just reasons articulated by employer. Hicks dissent, (p. 84).
b. Almost requires direct evidence of intentional discrimination. Pretext plus.

Foster v. Dalton (1st Cir. 1995, p. 90)
– African American woman sues Secretary of Navy alleging denial of job b/c of race.
– District Ct: D successfully rebutted PFC by proffering nondiscriminatory reason: preselection of a friend of the appointing officer
– Title VII doesn’t outlaw ‘cronyism’ and use of old boy network in hiring does not constitute per se racial discrimination (Yet how likely is a black female ever going to be part of an “old boy network”?!)

Reeves v. Sanderson Plumbing (US 2000, p. 96)
– Q: Is D entitled to judgment as matter of law when Pl’s case consists exclusively of PFC and sufficient evidence for trier of fact to disbelieve D’s legit nondiscriminatory explanation?
– I: The kind and amount of evidence necessary to sustain jury’s verdict that employer unlawfully discriminated based on age.
– D contended that pl failed to maintain accurate attendance records; Pl attempted to demonstrate that answer was pretext for age discrimination.
– Ct of Appeals: Pl had not introduced sufficient evidence to sustain jury finding of discrim; may have introduced enough to show pretext but this was not dispositive of the ultimate issue: whether age motivated the employment decision.
– SC – petitioner made substantial showing that respondent’s explanation was false; ct of appeals erred in proceeding from premise that pl must always introduce additional independent evidence of discrimination (beyond PFC and falsity of D’s explanation); it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation (it is just not compelled – see Hicks).
– Whether judgment as matter of law is appropriate depends on:
– Strength of Pl’s PFC