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					EMPLOYMENT DISCRIMINATION: Joslin (2008)

Introduction:

Evolution of Anti-Discrimination Statutes and Sources of Anti-Discrimination Protections:
     Common Law: No protections; at will employment doctrine governs
     Federal Statutes: Title VII (1964); Section 1981; ADEA (1967); Rehabilitation Action; ADA (1993);
        Equal Pay Act; Family Medical Leave Act
     State Non-Discrimination Statutes (may provide additional protections by bases or remedies)
     Tort and Contract Remedies
     Collective Bargaining Agreements or Employee Handbooks

Policy Considerations: Why protect against discrimination
     Epstein: Why not?
            o Efficiency (governance & group cohesion); Statistical traits= easy decisions; Market
                forces will correct wrongfully held trait characteristics assumptions; discrimination is
                over; voluntary segregation should be permitted
     Williams: Why?
            o Because discrimination is real; because the bases are often immutable; immoral or
                unfair bases for decision-making; if mutable we want to protect choices; discrimination
                is harmful to individuals and society (makes people unable to succeed in other spheres)

What is Discrimination?
What is the line between lawful and unlawful discrimination?
Some sorts of distinctions are legally protected (for example having qualifications; certain degrees or
skills); lawful discrimination must be job-related;
The categories that are protected have the following things in common:
      Generally there is a historical devaluation of the characteristic (negative stereotypes)
      Generally Immutable (except religion)
      Unrelated to job performance

→What about what happens when a racial, sex group that wasn’t discriminated against experience
discrimination on the basis of this characteristic? (We do include white people and men; diverse
workplaces reduce stereotyping)

What is the goal of employment non-discrimination laws?
             Remedial Action (to remedy past discrimination)
             Achieve Neutrality (such that the classifications no longer matter)

When, if ever, should there be exceptions?
   Religion
   BFOQ’s
   Others
Federal Statutory Introduction:

Title VII (1964): Covers employers that have 15 or more employees, also covers labor unions and
employment agencies. Important Exemptions: Indian Tribes, Membership Clubs that are exempt under
the IRC, Religious Employers, BFOQ’s, foreign companies doing business in the United States (applied to
public employers as of 1972).

Section 1981: Covers public and private employers in the making and enforcement of contracts, it only
covers race, not other protected categories under other statutes

ADEA (1967): Covers employers with more than 20 employees; does not exempt religious organizations

ADA (1993): Covers state and local governments with 15 or more employees; excludes Indian Tribes,
Membership Clubs but not religious employers

Types of Discrimination:
Disparate Treatment: An employer intentionally discriminates on the basis of a protected characteristic
and there is causation in fact leading to adverse employment action
     Individual: Against a single employee
     Group: A facially discriminatory policy that affects a protected group unjustifiably

Disparate Impact: An employer has a facially neutral policy that unjustifiably disproportionately impacts
a protected group. (Does not require a finding of intent)
     Permitted under Title VII and ADEA; not viable under 1981

Types of Evidence:
    Direct Evidence: Statements of admission (proves the fact without inference)
    Circumstantial/Inferential Evidence: (Statistics, etc)

Discriminatory Intent:
Slack v. Havens (1975): Black women in the factory forced to clean while white co-worker is excused.
Defendant argued job classification distinction but defeated on the merits. Defendant also argued no
causation, but accompanying statements re: “colored” people by supervisor as agent and excusing the
white women are offers of evidence in the plaintiff’s favor.
         Take Away/Holding: Animus is not required as long as there is direct evidence of stereotypical
         differentiation based on protected characteristics; harm is produced even if the stereotype is
         positive (psychological harm)

Hazen Paper Co. v. Biggins (1993): Older male worker is discharged after 9 years of employment in
advance of his pension vesting. He claims ADEA and ERISA violations based on his age. At the time,
undecided if disparate impact was a viable theory under ADEA; was there disparate treatment based on
the individual’s age?
        Take Away/Holding: (1)Plaintiff must prove that the age itself was the impermissible criteria on
        which the action was taken; the correlation with vesting was not enough to establish motive;
        need to show stereotypes about older workers or disparate impact (2) Since, the ADEA has been
        declared to include the right to plead disparate impact discrimination (3) Just because this was
        an ERISA violation doesn’t make it an ADEA violation
**Even if stereotypes are based on statistical evidence, they are an impermissible basis for decisions.
Prima Facie Case of Disparate Treatment: The Shifting Burden Paradigm
→Remember that the shifting burden applies to both the Title VII and 1981 Actions

Cases with Circumstantial Evidence:
McDonnel Douglas Corp v. Green (1973): African American man brings a race discrimination claim
(§703) and a retaliation claim (§704) under Title VII. The plaintiff has participated in an unlawful protest
against the company; lawful protests are protected under §704. The retaliation claim is ultimately
dismissed because §704 doesn’t protect unlawful protests. The framework of the prima facie case for a
circumstantial case is set forth in the holding.
        Holding: The procedure for a disparate treatment based on circumstantial evidence:
                1) The plaintiff must show a PFC of discrimination:
                         a. Plaintiff must be a member of a protected group
                         b. Plaintiff applied for and was qualified for a job for which the employer was
                              seeking applicants
                         c. Despite Plaintiff’s qualifications they were rejected
                         d. After this rejection the position remained open and the employer continued
                              to seek application from person’s of plaintiff’s qualifications
                2) The PFC suggests a rebuttable presumption of discrimination which the defendant
                     may rebut by articulating a legitimate non-discriminatory reason for the decision
                     **(Only a burden of production, not a burden of persuasion)**
                     **(What does legitimate mean? Any reason that does not violate this statute)**
                3) The plaintiff is then allowed to show on rebuttal that the articulated reason is
                     pretextual for discrimination
**The elements can be changed if the case has different circumstances; i.e a wrongful discharge, other
material adverse employment actions**

        Specific Holding: This defendants’ stated reason not to hire based on illegal actions is met
                          The case is remanded for plaintiff’s rebuttal evidence of pretext

               Would a wrongfully discharged person have to show that their replacement was of
                another race? No, because there are factors within each case that suggest
                discrimination (i.e. level of femininity, acculturation, etc.) and replacement decisions
                may be made by another person (but this is still circumstances that can be argued)

What are specific materially adverse employment actions?
            To fail or refuse to hire
            Discharge
            Difference in terms and conditions of employment (materiality requirement)
                   o Materiality: Substantial terms and conditions
                              Lateral transfers (w/o change in pay) is not material
                              Denial of reimburse of travel expenses is not material
                              Loss of a telephone in a cubicle is not material
                              Negative evaluations not alone material w/o follow up action
Reverse Race Discrimination

McDonald v. Santa Fe: § 1981 does not have an exhaustion requirement, no damage caps, applies to
public and private employers, may be longer statute of limitations, only prohibits race discrimination
        Holding: court rules all races are covered under Title VII based on these sources: legislative
        history, EEOC interpretation, Prior case law, Statute says “any” race; no additional burden but
        must establish that there was something “fishy” going on (i.e. stat comparison, minority Er)

Reverse Age Discrimination
Cline v. General Dynamics (2002): Workers between 40-49 not receiving same health benefits as those
over 50. These plaintiffs are covered under the statute (because the protected class is those age 40
years and over).
         Holding: The ADEA prevents discrimination against younger workers, provided that those
         workers are within the protected class set forth in the statute (which is all above 40)

Defendants Rebuttal and Plaintiff’s Proof of Pretext:

Patterson v. McClean (1989): Patterson, a black woman files a §1981 claim that she was passed over for
a promotion. The issue on rebuttal and proof of pretext does the Plaintiff have to show that they were
as qualified or better qualified than the person chosen.
         Holding: At the prima facie stage the burden for proving qualification is low, but when the
         employer asserts that the chosen applicant was chosen on the basis of better qualifications, a
         plaintiff bears the burden of persuasion regarding pretext. Proof of pretext is not only available
         through evidence of direct qualification differences but through other circumstantial evidence
         (i.e. past treatment, failure to train the plaintiff, statistical evidence, unimposed qualifications)

**Another tactic is to show direct proof of pretext, or the plaintiff must show very disparate
qualifications that are so dramatic they jump of the page (very difficult to meet this burden)

**What happens when the employer asserts multiple legitimate reasons for action?
    The courts are split as to whether the plaintiff must rebut every single reason
    Courts also may give weight to the “same actor” defense (i.e. the person who hired the plaintiff
      also fired the plaintiff)-courts are also split on this point

Plaintiff’s Ultimate Burden of Persuasion:

Mandatory Pretext Only: If the plaintiff demonstrates that defendant’s LNDR’s are pretextual, then
judgment must be issued for P.

Permissive pretext only: If plaintiff demonstrates that defendant’s LNDR’s are pretextual, then the trier
of fact can but does not have to issue a judgment in favor of P

Pretext-plus: A plaintiff cannot prevail unless she demonstrates that the defendant’s LNDR’s are
pretextual and with some evidence beyond the plaintiff’s PFC, demonstrates that the real reason was a
discriminatory one.
St. Mary’s Honor Center v. Hicks (1993): Black male terminated; he makes out a good PFC; employer
articulates LNDR’s; plaintiff presents some evidence that this is pretextual. Does the plaintiff need to
prove something beyond a PFC in its ultimate burden of persuasion?
         Holding: The trial court imposes a pretext plus rule; the court of appeal imposes a mandatory
         pretext only rule. The rationale here is that the defendant’s could lie, be rebutted, and then the
         plaintiff must find additional evidence to carry their burden of persuasion (there is no
         presumption that the lying proves the PFC). The court rejects the mandatory pretext only rule
         saying that the plaintiff is not entitled to judgment as a matter of law-once the employer has put
         forth the LNDR, the presumption drops out (even if they are lying)-now the plaintiff has to prove
         that this action was motivated by discrimination.

       Souter (in dissent) says that this makes the burden on the plaintiff’s too high; plaintiff must
        argue issues not articulated by defendants (responding to all possibilities)

Did this case adopt the permissive pretext only or the pretext plus rule? Unclear, clarified in Reeves
     Souter (in dissent) says that this makes the burden on the plaintiff’s too high; plaintiff must
         argue issues not articulated by defendants (responding to all possibilities)

Reeves v. Sanderson Plumbing Products Inc. (2000): A 57 year old man is terminated for alleged shoddy
record-keeping; he claims race discrimination under ADEA. The employer rebutted with evidence that
the plaintiff proves false (presumed pretext). Jury finds for the plaintiff, reversed by COA, articulating a
pretext plus rule (plaintiff needs more than PFC and pretext); must show age is the real reason.
        Holding: Unanimous decision by Justice O’Connor states that PFC and rebuttal (pretext) may
        (but will not always be enough) to prove discrimination. Plaintiff must not always or never be
        entitled to judgment as a matter of law in this situation. This is the permissive pretext only rule.
        →Some PFC evidence and some proof of pretext might be enough on its own; some needs more
        Rule: In most cases where the plaintiff makes out a prima facie case and rebuts LNDRs the
        plaintiff should get to trial (raise a question for the jury), but there may be certain circumstances
        where it is appropriate for the court to rule on summary judgment.

Examples: When might the court find for defendants on summary judgment with a proven PFC and with
evidence of pretext? What sort of affirmative evidence is persuasive? (Statistical evidence, same group
discrimination, same actor defense) The court can review all evidence in the record, not just the rebuttal
evidence, but also evidence presented in the PFC, and all inferences must be resolved in favor of the
plaintiff.

Mixed-Motive Cases & Direct Evidence of Disparate Treatment

Price Waterhouse v. Hopkins (1989): Note that the opinion in this case was a plurality and is decided by
the two concurring opinions on the most narrow grounds. Ann Hopkins, plaintiff, the only woman under
consideration for partnership. Her application is put on hold and she is told her chances will improve if
she conforms to more feminine gender stereotypes. Direct sex-based comments.
        Holding #1: Discrimination on the basis of sex stereotyping is a form of sex discrimination under
        Title VII (this is somewhat more expansive than previous narrow interpretations that sex
        discrimination is only ok when the decision is “because she is a woman”-this discrimination
        seeks conformity with gender stereotypes, not a prohibition on women’s employment).
        **No double bind required: i.e. does only cover traditionally masculine jobs but all jobs
        Holding #2: In a mixed motive case (where there are both legitimate and unlawful motives); a
        plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in
        the decision (according to O’Connor’s concurrence)-the plurality has a lower burden=a
        motivating factor. The defendant then has the burden of persuasion (as an affirmative defense)
        of showing by a preponderance of the evidence that they would have made the same decision
        absent the illegitimate consideration. According to the court, if the defense carries this burden
        there is no liability.

Amendments to the Civil Rights Act: If a defendant is successful in carrying its burden of showing a
motivating factor (as suggested by the plurality) on affirmative defense; the defendant may be liable,
but damages may be limited.

Unresolved Issues following Price Waterhouse :
    Is O’Connor’s rule that applies mixed motive rules only to direct evidence applicable as a holding
       of the court?
    Should O’Connor’s limitation be applied to interpretations of the Civil Rights Act of 1991?
    What is direct evidence? (It is not: stray remarks, statements made by nondecisionmakers,
       statements made by decision makers but not related to the decisional process itself, experts)

Does O’Connors direct evidence limitation limit mixed motive instruction?
Many circuits have continued to adopt her limited ruling even after 1991 Act

Desert Palace v. Costa : In order to get mixed motive instruction P is not required to show direct
evidence; Definition of ‘demonstrate’ does not require direct evidence. Congress could have said direct
evidence if they so chose; w/o clear limitation, Ps can meet their burden with either circumstantial or
direct evidence.
        What does the 1991 Act mean for other statutes? Like ADEA and 1981? Remains unresolved

Discrimination Claims Procedure:
        1) Plaintiff files sketch complaint
        2) Defendant files a motion to dismiss
        3) In most cases a plaintiff gets leave to amend; unless they cannot make out a claim as a
            matter of law
        4) Discovery
        5) Motion for Summary Judgment (based on discovery evidence)
        6) There is now a right to a jury trial (post 1991)
        7) No right to McDonnell Douglas jury instructions: ultimate question is whether the
            determining or motivating factor for the defendants decisions were impermissible
            criteria/on for its decision; subsequent questions regarding affirmative defense
Systemic Disparate Treatment Claims: These claims are based on intentional policies or practices of
                                     discrimination against a class of plaintiffs

LA Department of Water v. Manhart (1978): Employer policy requires higher contributions to
retirement system for women than men, based on women’s longer life span. The result was lower take
home pay for women.
       Holding: Individual women are protected in the statute, and an individual woman may not
       benefit from the long term considerations in the policy. Although the stereotype may be true,
       this does not permit the employer to act based on this group stereotype. Absence of animus is
       not a problem if the policy is facially discriminatory.

TransWorld Air v. Thurston (1985): When pilots are disqualified from flying for any reason other than
age, they can bump other employees to take positions as flight engineers. However, those disqualified
by age do not receive this benefit of employment. Is this actionable under the ADEA?
        Holding: McDonnell Douglass framework does not apply in cases involving direct evidence. And,
        this policy is not justifiable as a BFOQ (the BFOQ applies to the pilot not the engineer position).
        TransWorld should probably let people over 60 into the queue to avoid liability for intentional
        discrimination (i.e. changing the policy to prevent letting 60 year olds in).

Statistical Evidence in Systemic Disparate Treatment Claims:

Teamsters v. United States (1977): Here, the government presents evidence from statistical analysis and
individual complaints of discrimination.
        Holding: A plaintiff must show in a “pattern and practice” case that discrimination is standard
        operating procedure (not just isolated or sporadic incidents). Statistical evidence is valuable,
        and may be enough for the fact finder to infer a pattern and practice, especially if supported by
        surrounding facts and circumstances.

Pattern and Practice Litigation Procedure:
     Statistics alone may be enough to make out a PFC
     If it is only general population statistics and there are special qualifications there may be a
        requirement to show that there is a congruency in the qualified applicant pool
     Defendants will have the opportunity to rebut the evidence with their own statistics
     If the defendants are liable an injunction is mandatory
     At the remedies stage, there is a rebuttable presumption that class members will recover
        damages
Hazelwood School District v. United States (1977): Title VII was not applied to state and local
governments until 1972; here, the school district was formed under segregation (but no black kids lived
there); no blacks employed until 1969. EEOC files suit against the district, citing history of
discrimination, inadequate recruitment, lack of objectivity in hiring process, no affirmative response to
history of the discrimination in their district. Government presents statistics and individual anecdotes.
The District Court ruled for the district, saying that the population of students was = to number of
teachers.
         Holding: The appropriate statistical evidence here is the number of qualified teachers compared
         to the number of teachers of color hired. Criteria for this is determining the “relevant labor
         pool”: considering those with qualifications, the geographic area for pool, and the temporal
         proximity to pre/post Title VII practices. The trier of fact should determine these relevant
         factors before trial (on remand here). The court specifically endorses comparison with standard
         deviation statistics (particularly the threshold of 2+ standard deviations). The court leaves open
         the question as to whether they should consider the specific applicant pool.

Bazemore v. Friday (1986): Plaintiffs use multiple regression analysis including factors such as race,
education, tenure, job titile. Court of Appeal suggests that this evidence is invalid because it didn’t
include all measurable factors.
        Holding: Court finds that failure to include all variables affects the probativeness and not the
        admissibility of regression analysis evidence. It is possible that some analyses will be
        inadmissible for extreme deficiency, but most will simply be vulnerable to attack on probative
        value by the defense.

Defenses in a systemic disparate treatment case:
    Challenge the factual basis of the numbers
    Not respond to the statistics by show no discriminatory intent
    Admit the discriminatory action but present an affirmative defense (discussed later)

Feeney: Policy of preferring veterans results in fewer women being hired. Is this intentional
discrimination?
        Holding: The court holds that although the consequences are not unforeseeable and are in fact
        inevitable; it is not impermissible because the plaintiff is claiming disparate treatment not
        disparate impact claim and youmust show that the policy was enacted because of its effect on
        women not in spite of the resulting discrimination.**This is a constitutional case (not Title VII
        because of exception for veterans preference)

EEOC v. Sears (1988): Allegations that Sears engaged in discrimination in hiring and promotion of
women. The EEOC relies heavily on statistical regression analysis and the issue on appeal is whether the
defendant must use their own statistical evidence to rebut statistical evidence in the prima facie case.
        Holding: The Court holds that a defendant is not required to rebut with their own statistical
        evidence in the face of the use of statistics in the plaintiff’s case. There are other ways to
        defend and prevail (for example: testimony by supervisors, national surveys regarding job
        satisfication, labor reports)

        Lesser Interest Defense: Courts are becoming more willing to accept this defense (particularly in
        sex discrimination cases)
Bona Fide Occupational Qualifications
Section 703(e) of Title VII (CS pg. 323)
ADEA has a similar provision in section 623(f)(1) (CS pg. 191)
Permissible to take into account sex, religion or age in certain circumstances, but never appropriate for
employer to take into account race or color

BFOQ is a defense only in a disparate treatment case, but not in a disparate impact case
Business necessity is a defense in a disparate impact case but not in a disparate treatment case
                        generally more lenient and easier to fulfill than bfoq
                        clarified in Johnson Controls and Congress codified - that business necessity
                  defense is not available in cases alleging discriminatory intent

Initially some employers tried to get broad application
      Southern Bell in 1960s should be permitted to exclude women from all strenuous positions - 5th
          Cir. said no, employer had to prove that all or substantially all of the women would be unable to
          perform the job in question, rather than trying to prove this, D just tried to get court to assume
          based on stereotypes no woman could perform the job in question.
               Holding : Viable BFOQ defense requires D to prove that all or substantially all of excluded
               class must be unable to perform the task
      Customer preferences
         Diaz v. Pan American Airlines - sought to defend practice of only hiring women as flight
         attendants, put on testimony of expert psychiatrist that both men and women prefer female
         flight attendants
                   Holding: Customer preference while potentially true, does not constitute a BFOQ. This
                   is exactly the type of thinking Title VII was trying to get rid of

Requirements for a BFOQ Defense:
Defendant must show that:
          1) All or substantially all persons of the excluded group cannot perform the job functions
               at issue or that the ability to perform the job functions cannot be ascertained by means
               other than consideration of the prohibited characteristics;
          2) job functions at issue are reasonably necessary; and
          3) the job functions go to the essence of the business operations

Dothard: State defended policy of not permitting women to work as prison guards
       Holding: Normally, safety of employee themselves is not sufficient for a BFOQ, employee should
       be able to make that decision for themselves. This case was different than prison guards
       because the essence of the prison guard job is to protect other people (other guards, staff,
       prisoners), need to look at essence of job function itself, if essence is to provide safety for other
       parties, if allowing protected class to hold that job would hinder safety, bfoq may be permissible
Johnson Controls: Policy barring women who are pregnant or capable of bearing children are prohibited
from job; presumption is all women unless there is medical documentation(does not apply to men)
Lower courts had held not facially discriminatory and only had effect of negatively impacting women
(i.e. disparate impact) thus D could take advantage of business necessity defense and that standard was
fulfilled
          Holding: Supreme Court says the policy does facially discriminate on the basis of sex. Policy only
          precluded fertile women, not fertile men; lack of malice does not indicate lack of liability; D
          would have to fulfill BFOQ because business necessity not established.

Safety concerns may be a basis for a BFOQ:
     Safety concerns are only applicable to third persons and hypothetical fetuses are not within the
        class of 3rd parties to be concerned about - not related to the occupation
     where safety concerns are alleged, only safety concerns that can be taken into account were
        people who were intended to be protected by the job in question
                            flight attendant - essence of job to safely escort passengers
                            prison guard - essence of job is to provide security/safety to others
                            here essence of job is not to protect fetuses, but to make batteries

Cost defense: Motivation for safety policies are often concerns about potential tort liability
        Johnson Controls court says employer would not necessarily be immunized from liability, would
        need to look at particular facts but there are ways to minimize that risk; extra cost does not
        provide an affirmative defense for a refusal to hire women; doesn't rule out the possibility that
        maybe costs will be so great that it could be a factor, but in most cases no

Note case: Southwest Airlines developed an ad campaign surrounding sex appeal ad promised in-flight
love; required hiring of only women for flight attendants and ticket agents
  Holding: Court said too bad if you will go out of business, it is not enough

Privacy concerns:
               FN 4, pg. 273 - majority acknowledges the court has not decided whether privacy
                  concerns can make out a bfoq and nothing in opinion suggests it cannot be
               FN 8, White dissent - says under majority rule privacy would not be enough for bfoq
                  because it would never relate to employee's physical ability to perform a job

Supreme Court has not decided privacy bfoq; Lower courts - where position involves unavoidable nudity
it is permissible to use privacy as bfoq; people who were victims of sexual assault - people of same sex
better able to care for them - then it was permissible

D has to show a factual belief that members of other sex would directly undermine the essence of the
job in question; it cannot selectively assign job responsibilities to minimize the conflict
Voluntary Affirmative Action
Any measure beyond simple termination of a discriminatory practice, adopted to correct or compensate
for past or present discrimination or to prevent discrimination from recurring in the future

Relationship between reverse discrimination and affirmative action:
  Courts have generally required person to show something more than typical prima facie case where
member is member of majority generally required to show something fishy was going on. The rare
employer who discriminates against the majority - then McDonnell Douglas framework is followed, one
LNDR can be valid affirmative action plan

Validity of affirmative action plans under equal protection, constitutional challenges

Equal Protection
Race - strict scrutiny; govt. must show narrowly tailored to show compelling state interest
    Court asked if that standard is still applied where race is being applied for remedial purpose
         Bakke (1978) - white person denied admission to medical school, claimed race discrimination
                  Powell - anytime race taken into account it should be subjected to strict scrutiny

        Wygant (1989) - no majority opinion (see O'Connor's opinion in today's case)-all race
        classifications regardless of purpose must be subjected to strict scrutiny; goal of remedying
        general societal discrimination is not a sufficient interest, must be some more specific identified
        discrimination, must have a strong basis to conclude that remedial action was necessary before
        it embarks on an affirmative action plan

Title VII and Affirmative Action Plans
Weber: Aluminum company had negotiated an affirmative action plan with union and adopted it
because there was absence of blacks in skilled positions, hired people into unskilled positions and
created a training program with 50% of slots for black people and program would be continued until
number of blacks represented that amount in the labor force
                     Holding: Title VII does not absolutely ban any considerations of race or sex and in
                    some circumstances plans will be permissible. 3 prong test: purpose of plan must be
                    to break down old patterns of racial segregation or remedy traditional patterns of
                    discrimination, the plan must not unduly trammel the interests of nonminority
                    applicants and employees, plan must be temporary; only so long as necessary to
                    eradicate the traditional patterns of discrimination

Johnson v. Santa Clara County: Title VII was meant to break down traditional barriers; would be ironic if
law that triggered by concern for discrimination precluded private/public employers from taking actions
to try to abolish those barriers (Weber); is affirmative action forbidden under Title VII?
         Holding: court concludes Title VII does not preclude all affirmative action plan; split decisions on
         the whether to use “manifest imbalance” test; PFC test, or Standard Deviation test
Three possibilities to make out a valid affirmative action plan:
                       if D can show they discriminated in the past
                       if D can show statistics sufficient to satisfy prima facie case
                       if D can show manifest imbalance

Equal Protection vs. Title VII Challenges
should the test be the same under both analyses?
    under equal protection depends on what classification we are talking about? race - strict
        scrutiny, gender - intermediate scrutiny so it itself is not consistent

DISPARATE IMPACT
Disparate Impact claims challenge employment practices that are facially neutral but adversely impact a
protected group, no intent is required
        (Available under Title VII, ADA, ADEA but not under Section 1981)

Griggs v. Duke Power Co. (1971): Testing policy keeps African American applicants from receiving
certain positions and for being promoted. No discriminatory intent alleged. The impact is at issue.
        Holding: No intent is required because spirit and intent of Title VII intended to stop actions that
        are discriminatory whether there were elicit motives or not, because section 703(a)(2) states
        that aim is to prevent actions that “deprive or tend to deprive and individual of employment
        opportunities.” The focus is on outcomes. Any testing requirement must have a “demonstrable
        relationship to successful performance of the jobs for which it was used” Although Title VII
        permits testing requirements, they must be job related.

Statistical Evidence: Gateways (What percentage of the protect group passes through the gate? What
percentage of other applicants make it through?)

CLAIM Structure:
   1) Plaintiff’s PFC requires proof of a statistically significant disparity
   2) Proof by the defendant that the challenged practice or policy could be justified by a “business
       necessity,” and
   3) Rebuttal proof by the plaintiff that the interest asserted by the defendant could be served by
       other practices or policies that did not have a disparate impact.

**OLD LAW AS TO TITLE VII, BUT NOT THE ADA**
Wards Cove Packing Co. v. Atonio (1989): Plaintiff’s assert that hiring practices and promotion
considerations deprive Native Alaskans and Filipinos from being promoted within the company. To show
PFC; employees show the disparate employment statistics for cannery and non-cannery positions.
       Holding: Plaintiffs have shown the statistical disparity, in addition a plaintiff has to tell the court
       what policy or practice is causing the statistical disparity. Defendant’s rebuttal only has a
       burden of production (this is not an affirmative defense, no persuasion). The plaintiff on the
       rebuttal can show that some other device would serve the same interests as effectively with a
       less discriminatory impact (**higher cost=not as effective)
       Ex’s of standards that create disparate impacts: arrest records; height and weight requirements
Civil Rights Act of 1991: Changes following Ward’s Cove, Modern Disparate Impact
Enumerated requirements for making out a disparate impact claim

       Statute does not specify the type of the statistics needed for a disparate impact claim
       Also does not rule on which measure of statistical evidence is significant (i.e. SD of 2-3 or 80%)

Section 703(k)(1)(A)(i)-Requires a particular employment practice, and the burden on plaintiff is both
the burden of production and persuasion (this is a codification of Ward’s Cove)

Specific Practice:

Watson v. Fort Worth Bank and Trust (1988): Employer has no objective criteria for determining who
will receive promotions. Black women repeatedly passed over; she brings a disparate impact claim
challenging the subjective hiring criteria on the basis that it prevented her from getting a promotion.
         Holding: Disparate Impact actions lie where there is subjective or objective criteria that show a
         disparate impact on a protected group. No language in the 1991 Civil Rights Act that appears to
         limit the analysis to purely objective criteria. **On remand, the trial court must consider if this
         is impacting a group or just one**

Exceptions:
     7th Circuit: Passivity Exception (i.e. word of mouth hiring, not an policy of the employer)
     Facially discriminatory hiring criteria must be pursued in disparate treatment not impact
     Some courts require impact on a large number or percentage of people
     Policies related to benefits sometimes not considered a practice
     Requirements to speak English on the job are privileges not conditions (cannot use)
     Access to bathrooms does qualify as a condition/practice on behalf of the employer

Connecticut v. Teal (1982): Employer has a policy which tests applicants and from those who pass
appoints on subjective criterion. Although there is a disparate impact from the test, the bottom line
hiring numbers are not disparate. Can a plaintiff challenge the policy despite the bottom line?
        Holding: The court holds that bottom line statistics are not an affirmative defense to a disparate
        impact claim. A plaintiffs or defendants use of bottom line statistics is probative but not
        dispositive.

Causation:

Dothard v. Rawlinson (1977): Height and weight requirements for prison guards exclude women.
Unlike the BFOQ for the same sex contact requirement in this case that we covered earlier, the plaintiff
says that these are not a BFOQ they should use strength tests. The statistics used are national statistics;
is this sufficient?
          Holding: The court is skeptical of using applicant pool statistics in all cases because the pool may
          be distorted (i.e. by discouraged applicants who don’t apply based on the requirement); in
          circumstances where there is a distorted pool the plaintiff may use national/regional statistics (it
          is unclear if the plaintiff must make a persuasive showing of distorted pool)
          Note Case: (Beezer v. Transportation, Methadone Case-required a pool specific sample)
Amount of Impact: 80% Rule, 2-3 Standard Deviations Rule (Think about sample size and Pass v. Fail)
What is the difference between systemic disparate treatment and disparate impact?
The systemic disparate treatment case must use statistics from the impact on the employers own work
force, and there is a settled statistical requirement of a 2-3 standard deviations; and you must show
intent to discriminate, not just a policy in spite of disparate impact

Defendants Burden to Show Business Necessity:

Lanning v. Transit Authority: Aerobic capacity requirements for safety officers must run for 1.5 miles in
12 minutes. The practice has a disparate impact on women employees. The test is actually much harder
than necessary to achieve this purpose (according to testimony). How do they justify this as the
business necessity?
       Holding: Test must have a manifest relationship of aerobic activity to the critical and important
       duties of a transit police officer. The defendant bears the burden of production and persuasion
       to show that the test measures the minimum qualifications necessary for the successful
       performance of the job in question. This test is harder than the ruling in Wards Cove.

Civil Rights Act of 1991: First time Congress spoke directly on disparate impact and business necessity
         703(k)(1)(A)(i)
                         respondent fails to demonstrate that the challenged practice is job related for
                    the position in question and consistent with business necessity
                     -what this tells us for sure is that D bears both burdens on business necessity defense
                    (because of definition of demonstrate)

3rd Circuit test: Practice must be shown to measure the minimum qualifications necessary for the
successful performance of the job in question. Why minimum?: if use more is better standard then D
could use standards so high as to exclude virtually all of the protected class

BFOQ Defense v. Business Necessity

Bfoq - a defense only in disparate treatment
         o      policy: women cannot work in the male prison
                        facially discriminatory policy - disparate treatment claim
                        available defense bfoq

Business necessity is a defense only in disparate impact
       o       1991 Civil Rights act explicitly says this
                        policy: to work in prison you must be 5'2"
                                 facially neutral policy that has a disparate impact on women - disparate
                         impact
                                 available defense - business necessity
                        also cost is not an appropriate consideration with bfoq but is possibly a
                  consideration in business necessity defense
Alternative Business Practices Phase
**is this a pretext phase? The plaintiff doesn’t have to show a cover, just a refusal to use the alternative
practice (1991 Civil Rights Act)

Fitzpatrick v. City of Atlanta (1993): African American men suffering from a facial condition cannot
shave; fire department requires them to be clean shaven. City defends the policy saying that this is a
business necessity.
         Holding: Plaintiff bears the burden of showing the existence of an alternative business practice;
         the alternative must have less discriminatory impact (not no discrimination); the alternative
         practice must be comparably effective or comparably safe, no discussion of cost (**as in Wards
         Cove)

Disparate Impact Claims under the ADEA:
PFC: P must demonstrate that a specific practice creates a disparate impact
Defendant: Produce evidence that the action was based on a reasonable factor other than age
                  (production not persuasion here)
Plaintiff: Can dispute that the decision was based on RFOA, but bears the burden of disproving defense
**No opportunity to prove an alternative employment practice

Defenses to Disparate Impact Claims

Business Necessity (see above)

Professional Developed Ability Tests:
The EEOC has established guidelines through which defendants can have their tests validated for validly
measuring a candidates performance on the job:
             Content Validation (selection procedure is representative of important aspects of job)
             Criterion Validation (selection procedure is predictive of work behavior)
             Construct Validation (selection procedure measures characteristics important to
                successful performance on the job)

Albermarle v. Moody (1975): Employer has a test to advance into higher ranking positions. Those
occupying the higher ranked position at imposition of the testing requirement were able to keep
positions even if they didn’t pass the test. Did the employer have this test validated before instituting?
        Holding: There was no pre-litigation validation; validation performed 4 months before trial, the
        validation study is concurrent. Court invalidates this test because the test did not compare
        potential employees that are similarly situated to applicants and then follow up on their ability
        to perform. Also, there was a weak correlation here, and the correlation was based on loose
        standards for performance on the job.

Washington v. Davis (1976): Washington DC police department requires a written test to qualify for the
police training program. The test was developed by the civil service.
         Holding: The validation study confirmed a correlation between the test and performance in the
         academy, but not between passing and the performance on the job. In order to be validated,
         the test must show a correlation to actual job performance.
**Although the court does not explicitly say so, the requirements may be more lenient for employers
that are involved in public safety issues**

Bona Fide Seniority & Merit Systems
Section 703(h): it is not unlawful employment practice for an employer to apply different terms,
conditions, or privileges of employment, pursuant to a bona fide seniority or merit system or a system
which measures earning by quantity or quality of production provided that such differences are not the
result of an intention to discriminate against a protected group
     Bona Fide seniority systems are those that do not have a genesis in discrimination
     This is an affirmative defense, so the employer bears the burden of production and persuasion
     All plans are covered, not just collective bargaining agreements
     Merit systems refer to merit in areas related to the necessities of the business (not the abstract)

The Relation of Disparate Treatment and Disparate Impact Theories:

In disparate treatment case does D win if they can show no disparate impact against group?
        o        NO - See Manhart

If you do succeed in showing disparate impact do you win disparate treatment?
        o       NO - because you don't have to prove intent it may not be enough to carry burden

Bottom line statistics
     disparate impact - can't use them unless P can demonstrate decisionmaking process is not
       capable of separation
     disparate treatment - P can use them in a systemic disparate treatment case (see Teamsters)

Purpose of statistics
    disparate treatment - there to help create inference of intentional discrimination
    disparate impact - if sufficient, prove the violation unless D can carry its burden to show practice
       is job related and consistent with business necessity

Burdens
    P must prove intent so burden of persuasion remains with them in disparate treatment cases
    disparate impact - P's burden is fulfilled once they show sufficient disparate impact and burden
       of persuasion then shifts to D to show business necessity

D’s Attempt to Defend Itself From Disparate Treatment Claim= Problems in Disparate Impact Claims:
       P suing DEA for intentionally paying blacks less than whites
        o       D asserts LNDR of paying people more if they have certain experience
        o       as long as it applies equally it is an LNDR
       P then decides to challenge LNDR under disparate impact theory
        o       facially neutral policy with a disparate impact
        o       D's LNDR can help P identify employment practice causing disparate impact
                        P would have to show that this particular policy caused the disparate impact
Remedies:
        o       disparate treatment - among other remedies, P may be entitled to compensatory and
            punitive damages
        o   disparate impact - P not entitled to compensatory and punitive damages

Joe's Stone Crab: 1986-1990 - 108 male servers, 0 women; 1991-1995 (post-EEOC charge) - 88 servers,
19 (21.7%) were women. Hiring practices: roll call with four subjective considerations, prior to 1991 -
one person reviews applicants, no oversight by management, post-1991 - three people reviewed
applicants and tray test (objective test) District Court held no intentional discrimination
        Holding: Court of Appeal suggests there may be enough to make out disparate treatment claim,
        not a disparate impact claim (no specific policy at issue here). Court of Appeals said no
        employment practice identified (Ps identified word of mouth recruiting) Court of Appeals said it
        is attributable to reputation not to the particular employment practice

Enforcement Problems:

Who is an employer/employee for the purpose of these statutes?
   Size Requirements: **Special timing/aggregation and combination of people and companies
           o Title VII: 15 or more employees
           o ADA: 15 or more employees
           o ADEA: 20 or more employees
           o Rehab Act: Federal government and contractors with the federal government
           o Section 1981: No employer size requirements (only race, color and ethnicity)

       Volunteers: any renumeration and/or benefits qualifies someone as an employee
       Foreign companies: Courts split, until Civil Rights Act of 1991
            o Citizens working abroad are covered unless compliance with Title VII violates the law of
                the country where the company is based
       Statutory Exemptions:
            o Bono fide private membership clubs (under Title VII only, not Section 1981)
            o Indian Tribes (under Title VII and ADEA)
            o Military: Servicemembers cannot sue, there may be situations where civilians Ee’s can
       State Elected and Appointed Officials: Not employees under Title VII

Hishon v. King & Spaulding (1984): Is consideration for promotion for partner a term or contract that is
covered? The court says it doesn’t matter if this is a matter of contractual right; if this is a benefit of
employment it must be available without regard to Title VII protected categories. Is she protected once
she becomes a partner?
       Holding: Once an associate is elevated to partner, they no longer have employee/employer
       relations with the other partners. Is there dependence on the other persons decision making?
Clackamas: Consider common law agency principles from master/servant relationship 1) can the org
hire or fire 2) is the person supervised 3) does the person report to a higher authority 4) does the person
influence the organization 5) did the org intend the person to be an employee 6) does the individual
share in the profits and losses of the org

Independent Contractor v. Employees
     Hiring parties right to control the manner of the work
     The skills required (do you come with them or do you get training)
     The location of the work
     The source of the instrumentalities and tools
     The duration of the relationship between the parties
     The method of payment
     Tax treatment
**Remember, the independent contractor is only covered only Section 1981, not under Title VII or ADEA

Sex Discrimination Issues

Pregnancy
Geduldig: Discrimination on the basis of pregnancy is not discrimination on the basis of sex
1978 Pregnancy Discrimination Act: Sex discrimination includes discrimination on the basis of pregnancy,
                                childbirth and related medical conditions; failure to provide equal
                                coverage in fringe benefits is also sex discrimination

Prima Facie Case of Pregnancy Discrimination:
     You must show you are pregnant
     Employer knew you were pregnant
     You were satisfactorily performing
     There was an adverse action
     Similarly situated non-pregnant employees did not suffer the adverse action

ADA:
Pregnancy without complication is not a disability entitled to protection under the ADA
**The PDA requires that accommodation given to disabled employees be extended to pregnant women

FMLA:
12 Weeks of unpaid leave during any 12 month period
(Some limitations: Employer needs 50 employees; must have worked there 1 year, have 1250 hours)
→This applies to men (not DP’s) and women who are having children through non-biological means
Sexual Harassment:

Meritor Savings Bank v. Vinson (1986): Sexual advances by supervisor, woman complies because she is
afraid of losing her job or being retaliated against. He touches her inappropriately at work and rapes
her. Defendant argues that there is no tangible economic consequence and the engagement was
voluntary, therefore, no sexual harassment.
        Holding: Title VII does not require tangible economic harm; the EEOC Guidelines also don’t
        require this harm, neither have race cases.

Elements of a Sexual Harassment Claim:
     Plaintiff must prove that the harassment was unwelcome
     And it was sufficiently sever or pervasice to alter the conditions of the victim’s employment and
       create an abusive working environment (based on a reasonable person standard)
     Plaintiff must no show that they have experienced a tangible economic loss

        **Voluntariness does not render advances welcome
        **Evidence of victims dress, and sexual predisposition is admissible in civil cases in some
        circumstances (see FRE 412: only if the probative value substantially outweighs danger of harm)

Oncale v. Sundowner Offshore Services Inc (1998): May a plaintiff raise a claim of same-sex sexual
harassment? Can men make out claims of sexual harassment?
       Holding: Title VII covers same-sex sexual harassment and the harassment of men
               (However, sexualized comments alone are insufficient unless directed at someone; even
               if they are severe and pervasive)
               But men must show that a) co workers are gay or have a desire for them b) or a plaintiff
               must show that there is a general hostility to the presence of women or men in the
               workplace in general **Does this make equal opportunity discrimination legal?

Unwelcome Conduct:
Burns v. McGregor Electronic Industries (1993): Woman is asked to watch porn with supervisor and to
succumb to sexual demands. Evidence to be presented as to her prior nude posing; tattoos and body
piercings.
        Holding: The conduct must be unwelcome in the sense that the employee regarded the conduct
        as undesirable or offensive; we also need to inquire whether this was reasonable; this evidence
        may be relevant as to the welcomeness but FRE 412 applies

Severe and Pervasive:
If the conduct is less “serious” then there should probably be repetition (i.e. frequency and impact)
If the conduct is more “serious” (i.e. violent rape) then one incident is probably enough

Vicarious Liability:
Burlington Industries Inc. v. Ellerth (1998): When are employers liable for supervisor harassment?
        Holding: Where there is a tangible employment action there is strict liability (i.e. hiring firing,
        failing to promote, reassignment with significantly different responsibilities or a decision
        substantially effecting benefits. Where there is no tangible employment action, there is strict
        liability but the employer has an affirmative defense that they 1) exercised reasonable care to
        prevent and correct promptly any sexually harassing behavior and 2)the plaintiff employee
        unreasonably failed to use the mechanism available
What is a tangible employment action? Not a change in schedule, denial of conference funding
(Should show impact on pay or status, not other peripheral things)
**Remember that strict liability only applies if the perpetrator is a direct supervisor to the plaintiff**
**If perpetrator is so high up in the food chain that they are an alter-ego, then direct liability applies**

Constructive Discharge Cases: Are these tangible employment actions?

Suders: When plaintiff’s quit because environment becomes intolerable, is this a “constructive
discharge” and does strict liability flow from the tangible employment action?
        Holding: If there is an official act which results in the constructive discharge, then strict liability
        applies (as though this was a tangible employment action)-so what we really need is a tangible
        employment action (other than termination) that causes the plaintiff to quit. If a plaintiff quits
        without this tangible employment action she must show 1) a viable harassment claim 2) and
        that the resignation was a reasonable response.

Prevention Policies and Plaintiff’s Exercise of Reporting:

Matvia v. BHIM (2001): Matvia argues that there is a tangible work action in that she got positive
benefits for submitting to sexual advances. The court doesn’t rule this out but says there isn’t sufficient
evidence. Therefore, she has shown severe a pervasive harassment and the employer is arguing the
affirmative defense that they had appropriate prevention policies and that she has unreasonably failed
to comply with reporting procedures. As to the prevention and correction policy and procedure…
        Holding: Existence of an anti-harassment policy is per se enough to show reasonable care (the
        policy should include a clear explanation of prohibited conduct; protection from retaliation;
        description of complaint process; accessible filing avenues; confidentiality protections; promises
        of a prompt, thorough and impartial investigation; assurance of immediate corrective action).
        Here, the court says that the company policy is enough and the corrective steps (the
        supervisor’s termination) was sufficient.

The second prong is that the plaintiff has to have unreasonably failed to take advantage of the
prevention policies, here she says that she was afraid of retaliation and didn’t report until kissed. Also
said that during initial harassment she couldn’t decide if this was harassment that’s why she didn’t
immediately report.
        Holding: A “nebulous” fear of retaliation is not an excuse to remain silent because we have to
        encourage women to comply with the reporting policy.

Co-worker Harassment:
Liability for Employer based on negligent standard: if the employer knew or should have known
     Is telling your supervisor enough to impute knowledge? (Does the person told have authority
          over the harasser or the harassee? Does the person have an official or de facto duty to report to
          the appropriate authority, or are they the established authority?)
Dress and Grooming Codes

Willingham v. Macon (1965): dress and grooming codes don’t draw distinctions based on immutable
characteristics, dress and grooming don’t implicate fundamental rights, especially true when there are
codes imposed on both sexes.

But what about Price Waterhouse?: The court held that discrimination based on stereotypes (and not
only on immutable characteristics) is sex discrimination (this implicates the first prong of Willingham).

Unequal Burdens: Later courts have stated that when there is an undue burden on members of one sex,
particularly suggesting unequal ability to chose proper clothing; or when the distinctions are unduly
burdensome (i.e. unequal weight requirements) these policies will be impermissible.

Craft v. Metromedia (1985): Co-anchor scrutinized for her appearance and is assisted with clothing and
make-up specialists. She argues 1) that the standards in appearance are applied more rigidly to women
than to men 2) that the standards are based on sex stereotyping.
         Holding: ( 1) The court holds that the evidence suggests that men were also subject to these
         requirements (i.e. requests to lose weight, wear contacts) (2) Because appearance of employees
         bears on the public image of the company, reasonable dress and grooming codes based on
         community norms is a proper management prerogative.
         What about arguing this as a BFOQ? Should this be a BFOQ because this is a visual medium?

Jespersen v. Harrahs (2006): Bartender subjected to grooming standards that require her to wear make-
up. She argues that 1) there are unequal burdens between the sexes and that 2) the requirements are
based on sex stereotypes.
        Holding: The court holds that 1) there is no unequal burden here (based on a lack of evidence
        regarding cost and time), although they suggest it is theoretically possible to do so 2) the court
        argues that Price Waterhouse doesn’t apply (as to stereotypes) because Price Waterhouse
        implicates qualities that are necessary to do the job (i.e. requires a double bind). The majority
        seems to suggest that the only stereotypes that would be prohibited are those that are
        sexualized or inhibit your ability to be competitive in your job.

Sexual Orientation and Gender Identity:
There is no federal legislation that protects against employment discrimination on these bases.
Some state level success in this regard (20 states have SO protection; 12 on the basis of GI)

Early Cases:

DeSantis v. Pacific: Consolidated cases of LGB plaintiffs arguing that Title VII’s prohibition on sex
discrimination should be construed to protect sexual orientation. Also raised an argument of disparate
impact discrimination against men (because gay men are more likely to be fired or discriminated against
than lesbians because they are more numerous and more likely targeted). Also sex discrimination based
on association with someone of a given sex (which is traditionally protected in race cases). Also sex
stereotyping (based on effeminate behavior).
        Holding: 1) Congress didn’t intend to protect sexual orientation in Title VII’s protection for sex;
        2) Disparate Impact not available because sexual orientation is not protected under Title VII;
        3) Associational arguments fail because they just don’t buy it (weak!!) 4) Sex-stereotyping can’t
        bootstrap on sex discrimination because Title VII did not mean to protect orientation
Following Price Waterhouse, the court reconsidered the issue of sex-stereotyping as a vehicle to bring
claims based sexual orientation harassment (this represents an expansion of the term “sex”); Oncale is
also on point here because it suggests that the meaning of Title VII isn’t limited to the initial Congress’s
intent of the “original evil” but should be extended to similar and also extends to same-sex harassment
        **Nichols v. Azteca (9th Circuit 1979): Price Waterhouse extends to male server who was
        harassed for effeminate behaviors. This case overrules Nichols.

Rene v. MGM Grand (2002): Butler in an all-male work environment is harassed verbally and physically;
he believed he was targeted because he was gay. All parties agree that he is subject to severe and
pervasive unwelcome conduct, the dispute is whether this is “because of sex.”
        Holding: The plurality opinion suggests that this harassment is “because of sex” because of the
        physical conduct of a sexual nature. (Is this inconsistent with Oncale? Doesn’t he have to show
        that there is not only sexual content, but sexual desire? This leaves open the question of how to
        read Oncale, no cert granted on this issue). Pregerson’s concurring opinion suggests that this
        claim would more effectively be ruled on as a sex-stereotyping claim. Here, Pregerson suggests
        that here, the plaintiff is harassed because he fails to conform to mail stereotypes.

        **Two district courts have held that harassment on the basis of sexual orientation based only on
        the identity and not on gendered behavior is also protected as sex discrimination, but no
        appeals have ever upheld this argument**

Transgendered Protections:

Smith v. City of Salem: MTF planning for transition tells the employer about the transition and the
employer devises a plan to help get the employee to quit. He sues alleging sex-stereotyping.
        Holding: The plaintiff here states a viable claim on the basis of sex stereotyping.

Schroer v. Billington (DDC 2006): When a trans person is intending to transition to another gender this
is different in degree between sex-stereotyping into punishing this person for a “disorder” (attempts to
protect as a different category)

RELIGIOUS DISCRIMINATION:
As originally enacted, 703(a) protected religion, but there was no affirmative obligation to provide
accommodations; however, EEOC guidelines extended reasonable accommodations as obliged
(Debate on this issue worried about violating the Establishment Clause)

Codified in 1972: 701(j): Religion includes all aspects of religious observance and practice, and the
employer must provide reasonable accommodations to protect employee observance or practice
(unless the practice imposes an undue hardship)

Disparate Treatment Prima Facie Elements:
                  1) The employee has a bona fide religious belief
                  2) The employer knew of this religious belief (most courts)
                  3) The employee was performing satisfactorily
                  4) Despite this performance, some adverse employment action was taken against
                       the employee
                  5) Others not in the protected group were not subject to adverse employment
                       actions
Van Kotten v. Family Health Management (1998): Case addresses the prima facie elements and also
what constitutes a religion for the purposes of Title VII.
       Holding: Wicca is a religion for the purposes of Title VII

How do we know what is a religion?
US v. Seeger (1965): A sincere and meaningful belief which occupies in the life of its possessor a place
parallel to that filled by God of those admittedly qualifying for the exemption

EEOC Guidelines: Moral or ethical beliefs at to what is right or wrong which are sincerely held with the
strength of traditional religious views

Edwards v. School Board (1981): A religious belief excludes mere personal preference grounded upon a
non theological basis such as personal choice deduced from economic or social ideology

Reasonable Accommodations Cases: PFC Elements
           1) Employee has a bona fide religious belief that conflicts with an employment
              requirement (some debate if this has to be a requirement or a preference)
           2) The employee informed the employer of this belief (some debate as to whether there
              must be a direct request, or if the employer knows about the religious needs)and;
           3) The employee was disciplined for failing to comply with the conflicting employment
              requirement

            Reasonable Accommodation: Obligation of Employer is to provide one reasonable
            accommodation (there is no requirement to provide the accommodation that is specifically
            requested by the plaintiff)

            Undue Burden Analysis: Only relevant if the employer offers no reasonable accommodation;
            this is a very low burden (anything more than a di minimus impact is an undue burden)
            (i.e. change way they do business, hire additional worker, the violation of another law or
            regulation, where there is a collective bargaining agreement, must not disrupt other
            employees, forcing the use of some vacation days is reasonable)

Wilson v. US West Communications (1995): Anti-choice employee seeks to wear a button bearing the
photo of an aborted fetus. She is asked to cover it or leave it in her cubicle because of significant
workplace disruptions. She claims that this is not a reasonable accommodation. Defendants argue that
she must prove that wearing the pin is required by her religious faith.
       Holding: This was a reasonable accommodation; furthermore, however, it is not required that
       the employee show that wearing the button is a requirement of her faith

Exceptions to Title VII allowing for some religious discrimination

702(a): Exception for qualified religious entities
703(e): Educational Institutions owned or related by religious groups
703(e): BFOQ Defense (Sometimes used when not qualified under 702(a) or 703(e))
        **Remember this must go to the essence of the business
Ministerial Exemption: Encompasses all employees of a religious institution, whether organized or not,
                         whose primary functions serve its spiritual and pastoral mission
National Origin Discrimination
National origin means the country from which you or your forbearers come (Discrimination Prohibited)
Alienage means a lack of U.S. Citizenship (Discrimination Not Prohibited)

**Protected under Title VII and Section 1981 (race=ancestry, ethnicity)

Accent Discrimination:
Courts must look carefully at whether the accent is proxy for national origin discrimination
Defense: If communication ability is an important part of job

Retaliation

Title VII Section 704(a): It shall be an unlawful employment practice for an employer to discriminate b/c:
                     1) He has opposed any practice, made an unlawful practice by this title or
                     2) Because he has made a charge, testified, assisted, or participated in any manner
                          in an investigation, proceeding or hearing under this title
**Similar protection in the ADA, ADEA and implied in Section 1981

**Retaliation claims brought to increase jury sympathy; also to establish malice for punitive damages

Structure of a retaliation claim:
    1) Plaintiff must produce evidence that:
            a. He engaged in protected opposition or participation activity
            b. He suffered an adverse action from the employer and (use Burlington)
            c. There was a causal connection between this protected activity and the decision
                 (temporal, usually)
            d. Some courts require proof of “employer knowledge”
    2) Once Plaintiff establishes a causal connection between the adverse decision and the activity, the
        Defendant has the burden of producing evidence to support a legitimate non-discriminatory
        reason for its decision
    3) Plaintiff then must demonstrate that the proffered LNDR is a pretext for retaliatory motive

Breeden: Plaintiff has opposed an offensive comment, she notified the supervisor and then was
disciplined. Internal complaint constitutes an opposition clause complaint; the EEOC report constitutes
a participation clause complaint
         Holding: On first claim, the opposition clause (prong 1), she must show that she reasonably
         believed that the opposed conduct violated Title VII, here the court says that she wouldn’t meet
         this with a single comment. However, she could proceed on participation because it doesn’t
         have this requirement.

Jennings: What types of opposition activities are protected? Supreme Court in McDonnell Douglas said
illegal activity was not protection. What if what you are doing is not unlawful?
Secretaries believed they were being discriminated against in pay; intentionally delayed giving
supervisor salary schedule, gave it to the board, supervisor got it too late to effectively respond to the
board
         Holding: court found P's behavior not to be protected, not protected opposition if you are
         hampering a superior's ability to do their job. Illegal protest will take you outside protection;
         legal protest courts will look at the reasonableness standard
Burlington: What an adverse action means in retaliation claims; discussed with regard to substantive
discrimination claim, for that purpose the standard is pretty high for demonstrating an adverse
employment action. Negative evaluation usually does not constitute adverse action; courts normally
require direct impact on salary or benefits or some real impact on the ability to advance. But what about
in a retaliation claim, what is the standard? P after filing a claim was transferred to another position
with the same pay but more physically demanding job; also suspended without pay for 37 days but
ultimately received back pay
        Holding: Some circuits had required that the adverse action had to be a material change in the
       terms and conditions of employment - same as substantive claims. Two circuits had required the
       action to be an ultimate employment decision (ex. hiring, granting leave, termination, demotion,
       etc.) Some circuits had said P must show the action would have been material to a reasonable
       employee - enough to dissuade reasonable person from filing complaint. 9th circuit said adverse if
       P would have been reasonably deterred by employer's action. Court says that P must show that
       the action employer took was sufficient to dissuade a reasonable employee from making or
       supporting a charge of discrimination, action does not even need to be related to the workplace

**Standard is not the same as applies with substantive discrimination claim; broader
              1. language of substantive provision specifically talks about employment terms and
                   employment opportunities whereas retaliation provision does not have any similar
                   language
              2. purposes of provisions are different
                      substantive provision is to protect individuals from employment related
                        discrimination whereas purpose of retaliation provision is to make people feel
                        safe to make those claims, participate in those procedures, meant to be broader
                        to ensure adequate enforcement

Mixed motive claims
Price Waterhouse established a standard and Congress reacted in 1991 Civil Rights Act explicitly
addressing mixed motive
                     Which standard applies for mixed motive retaliation cases? - open question
                              Congress only amended substantive provisions in 1991, did not amend
                      retaliation provision
                       Circuits are split
                          Majority have held mixed motive instruction is governed by Price
                             Waterhouse in retaliation claims
                                substantial factor (O'Connor holding)
                                if P establishes impermissible consideration was motivating or
                                   substantial burden shifts to D to prove it would have made the
                                   same decision anyway and if D makes that showing - no liability
                                   (under Civil Rights Act would mean reduced remedy)
                              Minority of courts have held it is governed by 1991 Civil Rights Act



AGE DISCRIMINATION
ADEA: Prohibits adverse employment actions and hostile environment against workers over 40 based on
age; also prohibits retaliation as well (**does not prohibit reverse discrimination against younger
workers; ok to prefer older workers)

Exceptions:

Section 4(f)(1) says it shall not be unlawful for an employer to take actions based on reasonable factors
other than age (RFOA); this is not a traditional affirmative defense requires a burden of production not
of persuasion (unavailable if there is a facially discriminatory policy)-age can plan no part

Section 4(f)(3) says that it is not unlawful to discipline a person for good cause

BFOQ: Defendant must show that all or substantially all persons in the excluded group cannot perform
the job functions at issue; the job functions are reasonably necessary and the job functions go to the
essence of the business

Bona Fide Executive Exception: Some people can be involuntarily retired at 65 years or older if they are
bona fide executives or policy makers for 2 years and their benefits will be at least $44,000

Benefits: Protected under the OWBPA
Benefits must be afforded equally to all workers.
Question #1: Does benefits package vary based on age?
If yes, Question #2: Can this be justified on the basis of cost?

Section 4(f)(2)(B)(i): Employers can make age based decisions regarding bona fide employee benefits
plans if the actual amount of payment made or cost incurred on behalf of an older worker is no less than
that made or incurred on behalf of the younger worker; age brackets of up to 5 years allowed
     This is an affirmative defense, the employer has the burden of proof about what they paid
     Only applies to benefits that become more expensive with age, life and health insurance
         (Other benefits like parking, vacation, medical leave, etc are not eligible)

Severance offset: When an employee is offered a severance package under a reduction in work force
(lay off or closure); the severance payment can be reduced by the value of health insurance benefits or
any pension amounts to which they are immediately entitled to

Medicare offset: Retiree health insurance benefits can be offset by availability of other sources of health
insurance (such as Medicare)

Early Retirement Incentive Plans: ERI plans are consistent with the act as long as they are not
inconsistent with the statute, has two primary requirements 1) the plan must be voluntary 2) consistent
with the purposes of the ADEA

Waivers of ADEA claims:
Must be in an understandable writing; make specific reference to the waived ADEA claims, consideration
for the value of the waiver; advise that the employee see an attorney, must provide at least 21 days,
must provide a 7 day revocation period

DISABILITY:

Rehabilitation Act: Prohibits discrimination against the disabled by private contractors, recipients of
federal funding

ADA: Has 5 Titles;
    Title I: Covers Private Employment
    Title II: Public Employment
    Title III: Public Accommodation and transportation
    Title VI: Covers Telecommunications
    Title V: Miscellaneous Provisions
**An employer under the ADA is someone who employs over 15 or more employees for 20 weeks

Qualified individual with a disability: means an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment position

Disability: Includes a physical or mental impairment that substantially limits one or more of the major
life activities of such individual; a record of such impairment, or is regarded as having such an
impairment

**Some things fall outside the statute such as normal physical characteristics and environmental
disadvantages (such as socio-economic status and prison record)

Meaning of Disability:
Bragden (1998): Dental patient goes into the dentist, reports that she has HIV, he refuses to do the
cavity drilling, but he requires her to do the procedure in the hospital. She sues under public
accommodation law, but the definition of disability is the question here.
        Holding: Court does a two part analysis; First, HIV is a physical impairment (first clause) and that
        reproduction is a major life activity that is substantially limited (second clause). Major life
        activities don’t have to be public, economic or daily dimensions of life, you just have to show
        that it is central to the life process itself.

Meaning of Major Life Activities:
Toyota: Woman with carpel tunnel wants to be transferred to a job with different duties. Her
symptoms come and go and are not constant. The question of physical impairment is not disputed.
However, the issue before the court is whether there is a substantially limited major life activity.
       Holding: A major life activity requires central importance to a daily aspect of a person’s life. She
       says performing manual functions is her major life activity (which counts); but is this
       substantially limited? The daily life aspect doesn’t have to be at work, it can be anywhere. Here
       though the court says you must prevented from or severely limited in your ability to engage in
       an activity for it to qualify. EEOC says nature and severity; duration, and whether it is permanent
       or long term.

**Driving is usually not a major life activity
**Sleeping usually is a major life activity



Mediating or Ameliorative Measures:

Bratton v. United Airlines: Two sisters with myopia can’t get jobs at United Airlines because their vision
is not good enough. The question is whether they are disabled under the meaning of the statute
because with contacts they are able to see at normal levels.
         Holding: We must take ameliorative measures in deciding whether someone is substantially
         limited by a disability. If your condition can be mediated then you are not “substantially”
         limited. This is not a per se rule this is a case by case analysis.

“Regarded as” Claims:

Method 1:
    Employer mistakenly believes you to have an impairment you don’t have
    Employer mistakenly believes that this impairment substantially limits a major life activity
          o You have to show inability to perform in a whole class to claim working as activity
          o (Sutton: this means that employers can avoid liability if they can show that other
            employers in their field and geographic area aren’t as discriminatory!!)

Method 2:
    You actually have an impairment
    Employer mistakenly believes that this impairment substantially limits a major life activity

**If you can show that you are “regarded as” disabled, are you entitled to accommodations? You aren’t
really disabled, so does this make sense? Most courts say you don’t get a reasonable accommodation,
no real rule has been established (not much considered)

“Qualified Individuals”:

Dean: Nurse working for hospital hurts her risk; she says she still wants to be a nurse but that she can’t
do heavy lifting or typing. Employer refuses to accommodate her or move her to another unit.
       Holding: To be a “qualified” individual you have to show ability to do the essential functions of
       the job and not the marginal tasks

**You have to be able to do the essential functions to be “qualified” with or without accommodation

Reasonable Accomodations:
**Required unless the employer can show an undue hardship
(Can consider cost to the employer in proportion to the benefits and productivity)

US Airways, Inc. v. Barnett (2002): Employee with a disability wants to transfer to the mailroom, but will
violate the seniority policy for these positions. Does the accommodation demand trump the seniority
system?
         Holding: Plaintiff bears the burden to show that an accommodation is reasonable (this is a facial
         analysis); Defendant bears the burden to show an undue hardship (which is a case by case
        analysis). Generally speaking, controverting a seniority system is per se unreasonable.
        However, if plaintiffs can show that there is no reliance on the system of seniority (special
        circumstances that result in these placements for other reasons)

Discriminatory Qualifications/ADA
See statutory language on qualification standards

Rule: Essentially ADA says if you have a test that has effect of screening out those with disability it is
unlawful unless it is job-related and consistent with business necessity

Business Necessity Defense: Show it was job-related and consistent with business necessity
                              although must take into account any reasonable accommodation that
                              would allow individual to perform the function of the job
"Job-related"
        o 9th circuit said employer must demonstrate that the qualification standard fairly and
            accurately measures the individual's actual ability to perform the essential functions of the
            job

"consistent with business necessity"
        o must show that it substantially promotes the business's needs (9th Cir.)


Direct Threat Defense:
Standard that screens out people that pose a direct threat to safety of others permitted

EEOC has provided regulations on direct threat
              must be individualized assessment
              must be based on reasonable medical judgment…
              factors to be consideration of risk

        o   EEOC as also said direct threat is to "the health or safety of the individual or others in the
            workplace"
               broader than statutory language

Chevron v. Echazabal (2002): P with Hepatitis C, fails medical exam b/c liver damage, not hired by
Chevron and gets fired from employer; Chevron relies on EEOC regulation b/c exposure to toxins is
direct threat to his own safety. P argues this regulation is impermissible
         Holding: Court said P was wrong, court defers to EEOC regulations giving them Chevron
         deference, permissible to refuse to hire b/c fearful of potential harm to himself
         o       talked about it in Dothard - court said potential of harm to female guard herself was not
             enough to establish BFOQ
         o       talked about it in Johnson Controls - court said concern for women's fertility was not
             enough to establish BFOQ

Distinction between assessing general qualification standards and direct threat
         o      if general - then D can justify its use by showing job-related and consistent with business
             necessity
        o   EEOC regs - if direct threat issue - then D is required to make a much more individualized
            showing

Kirkenburg: P truck driver, fired despite waiver program and not rehired once he gets waiver. Does the
defendant have a burden to show job relatedness and necessity if they use a federal standard?
       Holding: court said D did not have to justify the standard, where employer is using binding
       federal standard no burden to justify the standard

Drug and Alcohol Abuse:
Current users of illegal drugs are not covered as disabled under the ADA
Former users of drugs who have been rehabilitated successfully are not necessarily excluded
Employers may prohibit use of illegal drugs, or inhibition in the workplace, discipline is OK
Drug testing for illegal drug use is not prohibited (nor encouraged) under the statute

Medical Examinations and Inquiries:

Preemployment Examinations
     Employer cannot conduct a medical examination or ask questions that are form the purpose of
       figuring out whether someone has a disability or the extent of that disability
     Employer may make pre-employment inquires as to the employees’ ability to perform the job
       related functions

Post offer, Pre-employment Examinations
     May be required as long as it applies to all employees
     Information must be confidential
     Does not need to be related to job functions

**Testing for illegal drugs is not a “medical examination” under the ADA (therefore is permissible)

FMLA and the ADA
Threshold requirements: 12 months, 1250 hours, worksite with 50 employees within 75 miles
(ADA and Title VII only require 15 employees and no time requirements)

FMLA:
If eligible, entitled to 12 weeks of unpaid leave, reinstatement to same or equivalent position,
insurance on leave

If you have a serious health condition (in-patient treatment, continuing treatment, maternity/paternity
leave, care for qualifying spouse, parent or children)

ADA:
If a reasonable accommodation requires leave, employer must have non-discrimination in policy (for
example, if they provide insurance on other leaves they have to give it to you)
Does not require serious health condition; some serious conditions (i.e. broken legs) aren’t disabilities
Procedural Requirements

Administrative Exhaustion: (for ADA, ADEA and Title VII claims)
    File a sufficient charge (usually completed by form; can dispute if they send a letter, or an intake
       questionnaire)
            o SCOTUS ruled as to ADEA and says that a writing describing the defendant, describing
                conduct, asking for remedial action is enough)
    File in a timely fashion with the EEOC
            o 180 or 300 days to file with EEOC (depending on state law); must file within 90 days

       EEOC may file a suit directly; issue a right to sue letter; can file without but hard (evidence)
       ADEA only requires filing, you don’t have to wait for a letter, file after 60 days
       Parties affected by the same charge that someone else has already filed are piggybacking if they
        don’t file (the Circuits are divided on what to do here)

Ledbetter v. Goodyear (2007): Ledbetter files a claim of discrimination that her pay was lower based on
past sex discrimination. When she becomes aware of the difference in pay, she files. Is each paycheck a
“discrete act” of discrimination? When does the clock for timely filing begin to accrue?
        Holding: Ledbetter may not challenge adverse actions that occurred before the 180 filing
        period. Therefore, she cannot recover for the 19+ years of pay that is lower, despite not
        knowing.

Equitable Tolling: REMEMBER TO ARGUE THIS WHEN THESE REQUIREMENTS AREN’T MET!!!

Section 1981:
     No administrative exhaustion requirement

       There is no statute of limitations included in Section 1981

       What statute of limitations applies?

            o   In most cases, this will be 2 years

            o   If no relevant state law it is 4 years

                **So there may be situations where someone can’t pursue a Title VII claim but can sue
                under Section 1981 (race discrimination cases)**

DAMAGES
   Prior to 1991 compensatory and punitive damages were not permitted under Title VII (only
     equitable remedies were available including back pay and front pay)
   In 1991 the CRA added compensatory and punitive damages in intentional discrimination cases
     (disparate treatment and pattern or practice; but not disparate impact cases)
         o Applies to Title VII and the ADA, but not the ADEA
       The statute also institutes caps on compensatory and punitive damages
        (varies on the size of employer and applies to Title VII and ADA)
       Section 1981 falls entirely outside of this scheme
        (you can get all kinds of relief under 1981 without caps)
       You cannot receive double relief under Section 1981 and Title VII claims
        (but, award will be pursuant to Section 1981)



Punitive Damages
“A complaining party may recover punitive damages under this section against a respondent…if the
complaining party demonstrates that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to the federally protected rights of an
aggrieved individual”

Kolstad (1999): Extremely egregious and outrageous conduct is not required to show malice or reckless
indifference under the statute; what is the required showing? How do you impute liability based on
agency principles?
         Holding: Must at least discriminate in the face of a perceived risk that its actions will violate
         federal law to be liable in punitive damages; to impute to the employer you must show that the
         employer directed, ratified or was a manager acting within the scope of their authority
         **How do you show they perceived the risk? (show evidence they consulted with counsel)
         **Evidence they didn’t perceived the risk (Belief they are acting with BFOQ or unresolved areas)


        Defense: Where a supervisor is acting under the scope of their authority but the employer can
        show they were acting in good faith to comply with Title VII
           o A policy alone is insufficient, you must show evidence of a policy, notice to supervisors
               and training for compliance

EXAM
FINAL - 3hr, open book
        o       traditional issue-spotter exam
        o       problems in class will be similar to what is seen on exam
                        although there will be more issues in a single problem
                        make arguments on both sides - or writing bench memo to identify issues on
                   both sides and present conclusion on what you think outcome is likely to be
                                MAKE sure to make arguments on both sides, make clear you
                         understand them and which are stronger
                                use facts that are given
        o       likely 2-3 essay questions or 2 long and 2-3 shorter questions

Grading Factors:
    Accurately state the law
    Describe arguments on both sides (even if one side is much stronger)
    Use the facts in your answer
    You should demonstrate that you can apply the rules; distinguish cases
           o Actually cite the statute or the case by name in articulating the rule
   Asses the strengths of arguments
   DO write a conclusion
   What additional information do you need to know…and why?
   Will grade on structure and organization so take time outlining
   Read questions and directions CAREFULLY

				
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