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									                                                                                       Employment Discrimination
                                                                                                 Professor West
                                                                                                        Fall 2000
                                                                              Office 752-2322/ E-mail: mswest@ucdavis.e du



INTRODUCTION

A. “EMPLOYMENT-AT-WILL.”
   1. Since 1880‟s, described the relation between Er and Ee as “employment-at-will.” Er is
      free to discharge an Ee for good cause, bad cause, or no cause at all.
   2. Today, this doctrine continues as the basic default rule regarding employment.
   3. However, there are separate rules under fed. regs. for certain types of jobs such as Nat‟l
      Labor Relations Act and the Railway Labor Act.


B. FEDERAL PROTECTIONS
   1. Since the late 19th century, fed. & state gov‟ts have hedged the employment relationship
      by enacting various statutes.

     2. The Fair Labor Standards Act, for example, was created to pay workers a min. wage &
        prohibited employment of children. The OSHA and similar state legislation require Ers
        to provide safe working conditions.

     3. This course will cover the prohibitions of actions based on human characteristics having,
        at least in the abstract, no relation to job performance.

     4. Bulk of course will cover Title VII of the 1964 Civil Rights Act. But also prohibition b/f
        Title VII against minorities. Most law developed over last 30 yrs.

     5. History of Race - different than other categories. Begins, here, w/ history of slavery.
        a. Whites came to U.S. “as indentured servants (2/3rds).” English & other groups
            bought and sold each other (except Dutch).
        b. First Africans came as indentured servants, but their contracts became life contracts
            and NOT term of years. First arrived in Virginia in 1620. Local laws changed the
            contracts. By 1650, all were slaves.
        c. 3/5 Compromise- Article IV. North wanted 3/5 so that South would not get all seats
            in Congress if all blacks were counted as equals.

           d. TIMELINE:
                                                13 th 14 th 15 th U.S. v. Cruikshank
                                                ‟65 ‟68 ‟70 „73
                 244 years                                   81yrs                         35 yrs   
-----------------------------------------------------------------------------------------------------------
                                                                                                     
1620                        1789              1863             1896                1954      1964               2000
 1 st Africans              U.S. Con.     Emancipation    Plessy v. Fergeson       Brwn v. T itle VII
 in United States                                           [Sep, but =]          Bd. of Ed. 1/1/65 effective




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C. FEDERAL CIVIL RIGHTS LEGISLATION & EXECUTIVE ACTIONS
   1. 1873- Slaughter House Cases. The USSC upheld validity of a LA law which created
      monopoly for a private slaughterhouse. Though not directly involving civil rights
      statutes, nonetheless affected them b/c the Ct. construed the con. basis for much of the
      civil rights leg in the narrowest possible way (construed Priv. & Immun. Cl very narrow).

   2. 1876- U.S. v. Cruikshank. Ct. held that an indictment under a § of post-war statute,
      which charged Ds w/ conspiracy to prevent black citizens from assembling, was defective
      b/c of the failure to allege that right to assemble grew out of black citizens relation to the
      fed. gov‟t. Applied Slaughterhouse & held that right to assemble peacefully wasn‟t an
      attribute of nat‟l citizenship unless the assemblage was for the purpose of petitioning fed.
      gov‟t. More importantly, Ct. announced that the first section of the 14th Amend.
      consisted only of restrictions on the states & did not “add anything to the rights which
      one citizen has under the con. against another.” Thus leg. on the 14th Amend. could not
      reach private action. The result of both these cases (narrow construction of P&I Cl in
      Slaughterhouse & eliminated private action from reach of 14 th in Cruikshank)
      foreshadowed the effective negation of all the Recon. civil rights statutes.

   3. Hodges-Tilden Compromise- turnover of South back to Dems. from Republicans.
      Dems. allowed Hayes to become Prez & Repubs. withdrew from the South. Cruikshank
      opinion was part of the political compromise. USSC was involved w/ this pol. Deal.

   4. 1906- Hodges v. U.S. Ct. held that since the attempt to protect the empl. rights of black
      workers was directed against private action, the 14th Amend. provided no basis for the
      prosecution. 13th Amend. (outlawing slavery) was equally inapplicable b/c interference
      w/ an Ee‟s right to K was not equivalent of forcing into slavery or invol. servitude.

   5. 1941- Executive Order 8802. Pres. Roosevelt signed this order which reaffirmed the
      policy of the U.S. against “discrim. in the employment of workers in defense industries or
      gov‟t b/c of race, creed, color, or nat‟l origin.” Created Committee on Fair Employment
      Practices which could “receive & investigate complaints of discrim.” & “take appropriate
      steps to redress grievances which it finds to be valid.” However, no means to enforce.

   6. 1961- Executive Order 10925. President Kennedy signed this Order which created the
      President‟s Committee on Equal Employment Opportunity, an agency charged w/ the
      responsibility of effectuating equal empl. opportunity in gov‟t empl & private empl. on
      gov‟t contracts. It was authorized to 1) publish names of non-complying contractors &
      unions 2) recommend suits by the DOJ to compel compliance w/ contractual obligations
      not to discrim. 3) recommend criminal action against Ers supplying false compliance
      reports 4) terminate the K of a non-complying Er; and 5) forbid contracting agencies to
      enter into Ks w/ contractors guilty of discrim.

   7. 1964 Civil Right Act – Titles:
      a. Title I-
      b. Title II-
      c. Title III-
      d. Title IV- Entitle to enforce.
      e. Title V- Created U.S. Commission of Civil Rights
      f. Title VI- Prohibited race discrim. for programs that receive fed. money.
      g. Title VII- prohibited discrimination on account of race, color, religion, nat‟l origin in
         private employment (but now also in public empl.). Sex was added in 1967.


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   8. IMPORTANCE OF TITLE VII, FED. CTS. HAVE JDX, & OVERLAPPING
      REMEDIES. Alexander v. Garnder-Denver Co. (1974). .
      a. FACTS: P was fired for producing too many unusable parts. Fired on 9/29/69. Filed
         grievance on 10/1/69. Arbitration on 11/20/69. P brought up 2 issues: 1) punishment
         too harsh & 2) racial discrim., but arbitration did not even both to address racial
         discrim. P filed w/ EEOC on 11/5/69 (held no reasonable cause & gave right-to-sue
         ltr). P filed suit w/in 30 days. District ct. granted SJ for D. 10th affirms.

       b. HELD: Held that P has overlapping remedies and does not waive his individual
          rights. Title VII vest fed. cts. w/ plenary powers to enforce the statutory
          requirements; and it specifies w/ precision the jdx prerequisites that an
          individual must satisfy b/f s/he is entitled to institute a lawsuit. Must:
          1.) File timely charge of empl. discrim w/ the EEOC
          2.) Receive & acted upon the EEOC statutory notice of the right to sue.

           There is no suggestion in the statutory scheme that a prior arbitral decision
           either forecloses an individual‟s right to sue or divests fed. cts. of jdx. Leg.
           enactments in this area have long evinced a general intent to accord parallel or
           overlapping remedies against discrimination. D‟S ELECTION OF
           REMEMEDIES ARGUMENT REJECTED.

       c. RULE: Parallel & overlapping remedies b/c Title VII co-exists w/ other
          statutes.

       d. RULE: Can‟t have prospective waiver or waive individual‟s rights.

   9. 1997 U.S. Population
      a. W = 73%
      b. B = 13%
      c. L = 11%
      d. A = 4%
      e. AI= 1%



D. STATE LAW
   1. Commencing in the 1940‟s, a number of states enacted fair employment practice statutes
      to combat discrimination in employment.

   2. Statutes took on 2 forms:
      a. Those which expressed a public policy against discrim. in employment, but
          contained no remedial provisions; and
      b. Those which defined prohibited employment practices & provided an
          enforcement mechanism.

   3. USSC upheld such state statutes in Railway Mail Assoc. v. Corsi (1945)(upholding NY
      statute).




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TITLE VII of the CIVIL RIGHT ACT of 1964

A. GENERALLY- prohibits employers, union & empl. agencies from discriminating w/
   respect to a broadly defined class of employment-related decisions on the basis of five
   specifically enumerated classifications- race, color, religion, national origin & sex. It also
   created the Equal Employment Opportunity Commission (EEOC), a five member
   presidentially-appointed agency, to administer & interpret its provisions.

    1. Codified in 42 USC §2000E = §701, §2000E-1=§702, §2000E-2=§703…
    2. §§ 703(a)-(c) set forth the substantive limitation placed by VII on Ers, empl.
       agencies, & labor orgs.


B. JURISDICTIONAL PREREQUISITES FOR TITLE VII.

    1. Title VII was designed to supplement, rather than supplant existing laws &
       institutions relating to employment discrimination. Alexander v. Gardner-Denver.


    2. PROCEDURE:
       a. File a timely “charge” w/ EEOC (today w/in 300 days).
       b. Receive & acted upon the EEOC‟s statutory notice of right to sue (EEOC “right-
          to-sue” letter).
       c. Filing- in fed. ct. This is primary way to enforce Title VII
       d. Waivers- Only wavier is if Ee agrees to a vol. settlement, but merely resorting to the
          arbitral forum to enforce K right does not constitute a waiver. Alexander v. Gardner.
       e. Deferral of arbitration- arbitrators cannot enforce fed. law. Can only enforce the
          “law of the shop,” not the law of the land.


    3. EEOC has
       a. Authority to settle disputes.
       b. Authority to investigate
       c. Authority to institute civil actions against Er or unions named in a discrim. charge.
          [But today, do about only 400 a year].
       d. NO authority to adjudicate claims or impose admin. sanctions or direct powers of
          enforcement. Final responsibility for enforcement of Title VII is vested w/ fed. cts.


    4. Employment Law on Overlapping Remedies:
       a. “Employment-At-Will” Doctrine- created in 1880 at end of industrial revolution.
          Not C/L; England used Ks of 1 year. Worker could be fired at any time, but could
          also quit at any time.

        b. “Good Cause” Doctrine- for public Ees, for Ees under a collective bargaining
           agreement, or Ees under written K.

        c. Title VII- says you could still fire for any reason except for discrimination.




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d. Other Statutes:
   1.) 1926- Railroad Labor Act
   2.) 1935- National Labor Relations Act
   3.) 1938- Fair Labor Standards Act
   4.) 1963- Equal Pay Act
   5.) 1964- Title VII
   6.) 1965- Ex. Order 246- prohibits race/sex discrim. in fed. K‟s (OFCCP).
   7.) 1967 Age Discrimination in Employment Act.
   8.) 1970- Occupational Safety & Health Standards Act (OSHA)
   9.) 1972- Title IX- prohibit sex discrimination in education & employment.
   10.) 1990- Americans w/ Disabilities Act (ADA).
   11.) 1993- Family Medical Leave Act (FMLA).

e. All parallel and overlapping remedies.
   1.) File race or sex claim under Title VII.
   2.) File age claim under ADA.
   3.) File state claim- CA Fair Employment & Housing Act (FEHA).
   4.) § 1981- race discrim. in contracts.
   5.) § 1983- enforce Equal Protection Act b/c she works for public Er.
   6.) Admin claims.
   7.) Ex. Order 246.
   8.) Title IX- prohibits sex discrim. in education & employment.
   9.) Any local human relations commission.




                                                                                5
COVERAGE OF TITLE VII
A. COVERED ENTITIES – “EMPLOYERS”
   1. GENERALLY- Title VII prohibits 3 types of employment-related institutions-
      employers, employment agencies, & unions- from discriminating.

   2. “EMPLOYER”- § 701(b).
      a. A “person.”
      b. “Engaged in an industry affecting commerce”; AND
      c. Who has at least 15 employees for 20 weeks during the current or preceding
         calendar year [Significant limitation, but reduced from 25 in 1972 Amendment].
         1.) Requires each working day of the 20 weeks.
         2.) Thus, many small Ers not covered! Congress desired to shield small Ers w/
             limited resources from financial liability.
         3.) But CA FEHA covers Ers w/ 5 or more employees! Bad thing is that it has
             different definition of “employers” for different types of cases (e.g. harassment
             covers Ers w/ 1 or more employees).

       d. EXCEPTIONS (not covered as “Ers”):
          1.) U.S. gov‟t. This is covered under § 717.
          2.) Indian tribes not covered.
          3.) Bona fide private membership clubs not covered. § 702(b)(2).

       e. Elected officials not covered originally (§701(f)), but now they are (GERA §321).

   3. “EMPLOYEE”- § 701(f).
      a. Defined- “An individual employed by an Er.” There must be an empl.
         relationship.
      b. Volunteers- there is no “economic relationship” & thus are not protected.
      c. Applicants for hire are covered!
      d. Independent Contractors Not Protected. Alexander v. Rush North Shore Medical
         Center (1996). “Individuals” v. “Employees” Distinction (Re: §703).
         1.) ISSUE: Are independent contractors protected by VII?? Can a P sue w/o
              showing employment relationship? NO
         2.) RSN: Ind. K‟s are not protected by VII. The crucial question in
              determining relationship is potential Er control over the manner in which
              work is accomplished. A P must prove the existence of employment
              relationship in order to maintain an action against a D. Here, P was ind. Kr.
         3.) Must be statutory employer, but statutory employee is iffy.

   4. TOTALITY OF CIRCUMSTANCES TEST. EEOC v. Rinella&Rinella (ND Ill. „75)
      a. FACTS: P (legal sec.) sued D for sex discrim. D argues that he‟s not Er w/ at least
         15 b/c 8 attorneys are ind. Krs + his divorce law firm was not “an industry affecting
         commerce.”
      b. HELD: Cts. must examine the totality of a firm‟s arrangements to determine
         whether an Er-Ee relationship exist for Title VII purposes. Professionals,
         notwithstanding their lack of direct supervision, are covered by VII. Here, 8
         attorneys were Ees. Looks at payroll, control, & outward appearance
         (balancing test). “Affecting interstate commerce” is construed broadly.




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    c. Partners are not Ees. 1 circuit ct. held that partners, as opposed to associates,
       cannot be regarded as Ees (they are owners). Burke v. Friedman (7th Cir. 1977).
       1.) Yet, minor partners may be Ees. Simpon v. Ernton Young (held that partner may
           be Ee, b/c had no share in profits + no decision making).
       2.) CA FEHA. A partner found 2B Ee b/c insufficient manag‟t duties. Kaiser case.

    d. Payroll Method for det. “20 Weeks in Calendar Year.” USSC adopted the
       “payroll” method for determining whether an Er satisfied the 15 Ee requirement.
       Only need employment relationship i.e. as long as Ee is on payroll (bright line test).
       Walters v. Metropolitan Educational Enterprises (1997).

    e. “Agents” of §701(a) are included as “persons” w/in the class of covered Ers. See
       § 701(b). 9th Circuit held that Ers are liable for acts of individual supervisors who
       committed violation. Miller v. Maxwell’s Internat’l (9th Cir. 1993).
       1.) Traditionally supervisor is Ee- so not liable. You have to sue Er, not supervisor
           (individually).
       2.) But recently, individual supervisors have been held liable for sex harass. in
           public sector. CA Sup. Ct. had held that supervisors can be held liable for
           harassment. ONLY IN CALIFORNIA!!!

    f.   Employee v. Independent Contractors distinction.
         1.) Ee is whoever is on the Er‟s payroll, not who physically working (bright line test)
         2.) Economic Realities Test on issue of control determines, not the label/title.

5. EMPLOYMENT AGENCIES. Greenfield v. Field Enterprises (N.D. Ill. 1972).
   a. FACTS: P sued b/c newspaper (D) listed job listing separately for each sex in ads.
   b. HELD: A newspaper that publishes classified ads is not an employment agency
      as defined by VII. The traditional sense of the term comports; that is an agency
      in the business of finding jobs for its worker clientele & workers for its Er
      clientele. Newspaper does not procure employment & not an empl. agency.
      1.) But P can sue person who put ads in newspaper.
      2.) Ers can get in trouble for ads w/ age qualifications (e.g. recent grad., young , etc.
          can violate Age Act).
      3.) Look out for bona fide occupational qualification (BFOQ‟s) (e.g. must be under
          60 to be an airline pilot).

    c. Illegal Commercial Speech Not Protected. USSC upheld state ct. order forbidding
       newspapers from publishing “help wanted” ads in sex-designated columns except for
       jobs exempt from the provisions of a city anti-discrim. ordinance. Pittsburgh Press
       v. Pittsburgh Comm. on Human Rel. („73). However, Ct. later limited Pittsburgh
       Press by the fact that the restriction applied to otherwise illegal (sex discrim.)
       commercial speech. VA State Pharmacy Bd. v. VA Citizens Consumer Cncl („76).

    d. Placement offices are employment agencies. A law school placement office has
       been held to be an employment agency w/in the meaning of VII. Kaplowitz v. Univ.
       of Chicago (N.D. Ill. 1974). However, not liable for discrim. by outside Ers who use
       their agency. The law school was not required to determine whether the law firms it
       solicited engaged in discrim. or to prohibit them from interviewing its students once
       it had legally referred all prospective Ees, regardless of gender, to the firms.

    e. CA FEHA – has provision for discrimination by licensing boards.


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B. COVERED DECISIONS. Hishon v. King & Spalding (1984). Partnerships covered.

    1. GENERALLY: § 703(a)(1)- covers “compensation, terms, conditions, or privileges of
       employment.”

    2. FACTS: P was hired as associate, but w/ possibility of becoming a partner “on a fair &
       equal basis.” Firm (D) had 50 male partners & 50 associates. District ct. dismissed b/c P
       did not state a claim under VII.

    3. HELD: Once empl. relationship is est., VII attaches & governs aspect of that
       relationship. A benefit that is part & parcel of the empl. relationship may not be
       doled out in a discrim. fashion, even if not part of a formal empl. K. Here, parties
       contracted to have petitioner considered for partnership & that promised clearly was a
       term, condition, or privilege of her employment. Being considered for a partnership is a
       privilege of employment.
       a. Powell‟s concurrence- if partner already, VII does not apply. A claim would have to
           be under partnership law or other remedy.


C. EXEMPTIONS- § 702. EEOC v. Mississippi College (1980).
   1. GENERALLY: § 702(a)- exempts Ers who hire aliens outside any state or to a
      religious corporation, association, educational institution, or society w/ respect to
      work carrying out such groups activities.
      a. Can discriminate aliens outside any state.
      b. Non-profit religious org. as Er.
          1.) Partially exempted from religious discrim., but probably not for profit making
              activity. If on its face, convincing relig. discrim. evidence, EEOC cannot
              investigate further.
          2.) Totally exempted- for core religious activity such as relationship bet. church &
              ministers

    2. FACTS: College (D) did not accept P (a part-time female Ee) for full-time position &
       hired a man who had expertise & was Southern Baptist. EEOC investigated & D refused
       to give EEOC info. b/c it was exempted under § 702 & was religious Er. EEOC said D
       still could not discrim. based on sex (only exempted for religion).

    3. HELD: If religious institution presents convincing evidence that the challenged
       empl. practice resulted from religious discrim., then EEOC is deprived jdx to
       investigate further. Under § 702, rel. education institutions may discrim. on the
       basis of religion when hiring persons to perform work in connection w/ institution.
       a. Religious schools- can be held accountable w/o violating Est. Cl. or Freedom of
           Religion. Not excessive entanglement w/ gov‟t.
       b. Most religious Ers are exempt from religious discrim (partially exempt), but not
           for other types of discrim.
       c. Relationship between church & ministers are TOTALLY exempt!

    4. Religious orgs. non-profit activities. Non-profit activities were held to be exempt under
       §702 (i.e. partial exemption).

    5. Profit Making Activities. The churches could lose partial exemption. But still not clear.



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DEFINING & PROVING DISCRIMINATION:
DISPARATE TREATMENT OF INDIVIDUALS

A. GENERALLY:
   1. “Disparate Treatment” Claims - are those containing allegations of intentional
      discrimination. The most easily recognized form of discrim. occurs when an Er, union or
      empl. agency intentionally treats people differently b/c of their race, color, religion, sex
      or nat‟l origin.

    2. What does “do not discriminate on basis of color, race, …” mean? Congress was not
       clear. Turn to case law.

    3. Jury Trials. In 1991, jury trial was added b/c there was none b/f. Afterwards, there was
       a huge body of law on summary judgment (SJ) b/c of efforts to avoid the jury.
       a. Juries are usu. more liberal. State juries are more liberal than fed. juries.
       b. Judges- esp. fed. judges are more conservative.

    4. Damages. B/f 1991, all relief under VII was equitable relief. NOW, you can get
       damages.

    5. Two major types of cases (huge difference on how to litigate):
       a. Disparate Treatment § 703(a)(1)- must prove intentional discrimination. Most
          common type.
          1.) Individual disparate treatment- you infer intent. Direct evidence case i.e.
              admitted discrim.
          2.) Systematic disparate treatment- you look at large numbers (i.e. Teamsters
              case).
       b. Disparate Impact § 703(a)(2)- facially neutral rule, practice, or policy that has an
          adverse impact on a protected group.

    6. How to make Disparate Treatment Claim. McDonald Douglas v. Green (1973).
       a. Ct. laid out how to make disparate treatment claim.

        b. STEPS:
           1.) Make prima facie case (PFC). (McDonald Douglas):
               a.) Membership in a protected class;
               b.) Qualification for the position;
               c.) Discharge or rejection; AND
               d.) A continuing search for applicants after a P‟s rejection.
               Some circuits have ruled that stats- although not directly probative of any of
               these 4 elements- may be used to help est. PFC.

            2.) Burden shifts to the Er to prove a “legitimate business reason” (In Burdine,
                Er merely produces evidence of legitimate business reason).

            3.) P shows that Er reasons were pretext (burden of persuasion).




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B. INFERRING INTENT & LBR. Texas Dept. of Community Affairs v. Burdine (1981).
   1. FACTS: P applied for a promotion but was denied and later fired. In a re-organization,
      D laid off 3 Ees including P. D kept a man on board that P trained. D said in interest of
      organization and produced evidence of legitimate business reason (LBR). P sued.
   2. HELD: When the P has proved a PFC, the D bears only the burden of explaining
      non-discrim. reasons for its action (burden of prod.). The ult. burden of persuading
      the trier of fact remains w/ the P. If D‟s explanation is legally sufficient to justify
      judgment for the D, the burden then shifts to P to persuade the ct. that the reasons
      offered by D were “pretext.” Here, D only bears burden of explaining clearly, and
      reasonably specifically, its legit. reasons for its decision to term. P & hire someone else.
      a. Thus after Burdine, almost anything is a “LBR.”

    3. ELEMENTS OF DISPARATE TREATMENT

        a. PRIMA FACIE CASE: P puts on PFC (by prepond. of evidence standard).
           1.) P is a member of a protected group/status (race, color, nat‟l origin, religion, sex);
               a.) Reverse discrim.- must show more background/circumstances)
           2.) P applied for a job & was qualified (4 hire/promotion). If discharged, show P
               was meeting Er‟s expectations (did good job);
           3.) Adverse action (e.g. she was fired.). P can sue for promotion w/o vacancy if
               informal process, but must prove there was a job for hire case;
           4.) Someone else was hired/promoted.
               a.) Need comparative evidence. Some pretext evidence to avoid being thrown
                    out on SJ.
               b.) Problems: when occupation is segregated b/c no one to compare.

             If proven, creates “presumption of discrim.” Burden of production on D.

        b. ER‟S REBUTTAL
           1.) Er can rebut the PFC.
           2.) Produces some “legitimate business reason” for adverse action (i.e. basically
               anything will do. They have to present evidence & put somebody on the stand).
               a.) Subjective interviews are OK (see Supp. 13).

             If Presumption of Discrimination is Rebutted, then:

        c. P MUST PROVE PRETEXT - MAINTAINS BURDER OF PERSUASION.
           1.) P must prove pretext: Er‟s reasons are false or not valid.
                a.) Single motive directly- discrim. reason more likely motivated Er.
                       i.   Prejudicial remarks- evidence of bias by decision remark.
                      ii.   When lawyer changes explanation- says one reason & then later
                            changes reasons = good evidence.
                     iii.   Disprove all Er reasons.
                b.) Single motive indirectly- to show Er‟s reason is unworthy of credence
                    (false/unreliable).
                       i.    Comparative evidence of people similarly situated.
                      ii.    Er‟s reasons were too subjective i.e. no “objective” evidence. (can co me up
                             w/ endless list).
                      iii.   Statistics- create picture of workplace- use as background noise-
                             these are crucial.


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               c.) Mixed Motive. Intention is 1 of several motives. Can still prove liability.
                      i.  Directly prove discriminatory reason is more likely the motive.
                     ii.  Prove a motivating factor (1991 amend. §703(m)).
                    iii.  Affirmative defense for Er is in remedy §706(g)(2)(B)- Er is liable if
                          P proves “a motivating factor,” but no damages. Limited relief.

           2.) “PRETEXT PLUS” (Hicks).
               a.) Even if you knock out Er‟s LBR through proving pretext, you still need to
                   prove discrim. intent.


C. Er‟s LEGITIMATE REASON & P‟s PROOF OF PRETEXT.

  1. PRE-TEXT PLUS ELEMENTS:
     a. P proves Er‟s legit. reasons are false or not relied on; AND
     b. P proves illegal motive/intent.

      OR

      MIXED MOTIVE:
      a. P does not disprove all of Er‟s reasons. Some legit ones exist.
      b. P proves illegal discrim. is “a motivating factor.”
          (after 1991- if proven, the Er is liable, but Er has defense in remedy stage).
      Jury may find liability/finding of bias by PFC + No LBR!
      REMEMBER every fact pattern must be analyzed as both pretext & mixed motive!

  2. BURDEN OF PERSUASION IS w/ P. St. Mary‟s Honor Center v. Hicks (1993).
     a. FACTS: P proves PFC. Er said he was fired b/c violation of rules & not burden of
        persuasion. P had to prove pretext & he rebutted all of D‟s LBRs. He presented
        sufficient evidence to rebut, but no proof of racial discrim. District ct. said it would
        have been personally motivated & not racially motivated.
     b. HELD: Although the burden of production is shifted to the Er, the ult. burden
        of persuasion remains w/ Ee. Even if the Er offers false reasons, the Ee is still
        obligated to prove that there was illegal discrim. Here, P proved a PRC, D
        produced evidence of LBRs, and P was obligated to prove racial discrim. intent even
        through D‟s LBRs were false. Remanded.
     c. RULE: Although the burden of prod. is shifted to the Er when an Ee establishes
        a PRC, the ultimate burden of persuasion remains w/ Ee.

  3. Case b/f jury. Reeves v. Sanders Plumbing Products (USSC 2000)
     a. FACTS:
        1.) P made PFC: P is 57 yrs, was qualified, was fired, & 3 people in 30‟s hired.
            a.) Direct evid.- “So old he must have come over on the Mayflower.”
            b.) Comparative evid.- younger workers were treated better.
        2.) Er made no rebuttal of P‟s PFC. Er alleged LBR for termination.
        3.) P stated that Er‟s LBR was false (i.e. time machine malfunctioned & reports were
            done by P‟s supervisor).
     b. HELD: The manner they framed question here is that trier-of-fact is allowed to
        find bias (unlike Hicks). This case went to jury & awarded damages + doubled
        by judge. Rule 50- must make all reasonable inferences in favor of jury finding.
        1.) This case emphasizes how important it is 4 case 2 go 2 jury; very hard to reverse.


                                                                                               11
  4. P proved pretext, but not “pretext plus.” Foster v. Dalton (1995).
     a. FACTS: P is Afro-Am. woman, qualified, did not get promotion, & white friend of
         boss was hired. Boss changed job qualifications so that boss‟ buddy was only one on
         hiring list. Witnesses then said buddy was best qualified.
     b. HELD: An Er may hire any person w/o transgressing VII, so long as the hiring
         decision is not spurred by one of the protected categories. Here, while Ds
         conduct was appalling, P lost job due to cronyism (is neutral), not one account of
         one of the categories. Since P did not show discrim. intent, no violation shown.


D. MIXED MOTIVE CASES. § 703(m)

  1. TWO PHASES.
     a. LIABILITY PHASE
        1.) P does not disprove all of Er‟s reasons. Some legit ones exist.
        2.) P proves illegal discrim. is “a motivating factor.”
            (after 1991- if proven, the Er is liable).
            a.) P only has to prove “a motivating factor” (1991 amend. §703(m)).
            b.) Affirmative defense for Er in remedy §706(g)(2)(B)- liable, but no damages.
            c.) REMEMBER every fact pattern must be analyzed as both pretext & mixed
                 motive!
     b. REMEDY PHASE
        1.) Er- proves (burden of persuasion) affirm. defense would have made same
            decision anyway.
        2.) P gets limited remedy §706(g)(2)(B) or P rebust affirm. defesne


  2. Er‟s Affirmative Defense. Price Waterhouse v. Hopkins (1989).
     a. FACTS: P is woman, qualified, applied for partnership, denied, & man got it. Stats
         (662 partners [655 m, 7 w], 88 applied for partnership [87m, 1w], 47 m got it, 0 w.
         D2 (partner) told P after review that she would be put on hold for 1 yr., but she had to
         dress, talk, & walk more feminine, use make-up, & get hair re-done. D! claims
         mixed motive b/c legit. reasons is lack of personal skills. P proved discrim. was one
         of the motives & trial ct. created an affirm. defense i.e. even if prejudice against P, D
         have made same decision b/c of other reasons.

      b. HELD: Once a P shows gender played a motivating part of empl. decision, the
         Er may avoid liability only by proving by a preponderance of the evidence that
         it would have made the same decision putting discrim. reason aside. [THIS
         DEFENSE WAS LIMITED BY 1991 AMENDMENTS. SEE BELOW]

  3. 1991 AMENDMENT- overruled part of Price Waterhouse. Grants limited relief.
     a. § 703(m)- adopts Brennan‟s Price Waterhouse opinion.
     b. § 706(g)- P only needs to prove “a motivating factor.” If proven, then grants only
        declaratory relief, injunctive relief, & attorney‟s fees and cost. No damages or order
        of reinstatement, hiring, promotion, or payment. P can still rebut affirm defense.
     c. Remedies § 706(g)(2)(B)(i)-(ii). Incorporated “would have made decision anyway.”
        1.) Once P proves “a motivating fact,” P wins, but D can argue about remedies.
        2.) See list of Remedies on p. 1250. Limited remedies, no damages!
     d. C/A can be either or both: pretext or mixed motive.



                                                                                               12
E. FINDINGS OF FACT & APPELLATE REVIEW.
   1. Generally. Rule 52(a) of the FRCP requires district judge, in actions tried w/o a jury, to
      make separate finding of fact & conclusions of law in support of her judgment.

    2. Findings of fact- shall not be set aside unless clearly erroneous. Rule 52(a). Ct. of
       Apps. does not try issues of fact de novo and does not set aside district ct. findings
       merely b/c on the record b/f it, the app. ct. would have reached a different conclusion.

    3. Rule 50- ct. cannot issue judgment of law only if no legally sufficient basis or reasonable
       jury could have found that way.

    4. Intent- not in §703- (but in §706(g)(p. 1249).
       a. Athens case- finding of intent is a finding of fact. Thus app. ct. cannot do review de
           novo. Only review questions of law or mixed law and fact. Jury decides issues of
           fact.

    5. Biggest battles are in SJ phase. Need a lot of evidence at this phase to overcome SJ
       motion. The goal by Ds is to avoid the jury & appellate court rarely overturns jury
       verdicts. Much more deference is given to them.




                                                                                                  13
RETALIATION

A. GENERALLY.
   1. § 704(a)- is VII‟s general proscription against discrim. in employment. Includes:
      a. Opposition Clause- “for membership, b/c he has opposed any practice made an
          unlawful empl. practice by this title.” OR
      b. Participation Clause- “because he has made a charge, testified, assisted, or
          participated in any manner in an investigation, proceeding or hearing under this title.”

    2. Retaliation C/As.
       a. Involves a lot more emotional distress.
       b. Large punitive damages.
       c. Includes D‟s actions against relatives or best friends.

    3. Always include fed. claim w/ state claim. Always join! It is malpractice do not file
       both. Violation of both statutes (both can be filed in fed. or state cts.).


B. ELEMENTS OF RETALIATION C/A:

    1. PRIMA FACIE CASE
       a. State protected expression: opposition or participation.
          1.) Ee has to have reasonable belief Er is violating VII (objective).
          2.) Form of opposition must be reasonable & proper.
       b. Adverse employment action (e.g. discharge or demotion).
       c. Causal link between adverse action & protected expression.
          1.) Er knows.
          2.) Timing.
          3.) Other:

    2. Er REBUTS (burden of production)
       a. D rebuts PFC. Form of opposition was: 1) improper 2) disloyal 3) illegal.
       b. Had legitimate reason for adverse action.

    3. P MUST PROVE PRETEXT
       a. Pre-Text Plus:
          1.) Prove that P applied AND
          2.) Er‟s reasons were P‟s protected expression & Er‟s reason were false.
              a.) Er cannot
                      i.  Fire Ee if Ee‟s expression does not interrupt work & job perform.
                     ii.  Fire Ee for disloyalty alone.
                    iii.  Retaliate against a former Ee.

        b. Mixed Motive (after 1991 Amendments)
           1.) § 703(m)- Does not apply to retaliation! Remedy language of shifted burden to
               Er does not apply to retaliation b/c not mentioned.
           2.) If mixed motive of § 704 – is Price Waterhouse, NOT 1991 Amendments & thus
               no attorney‟s fees.




                                                                                               14
C. Ee‟s reasonable belief is OK. Payne v. McLemore Wholesale & Retail Stores (5 th 1981).
   1. FACTS:
       a. PFC- 1) P engaged in protected expression. Reasonable belief Er is discriminating.
           2) Adverse action- fired. 3) Causal Link- Er knew P opposed his practice & Er‟s
           timing (after P expressed).
       b. Er‟s Rebuttal. D says P not hired b/c P did not re-apply. Er should have added that
           P‟s actions were not protected.
       c. P‟s Pretext- P proved he did apply & Er‟s rsns were false.

   2. HELD: When an Ee reasonably believes that discrim. exists, opposition to that
      discrim. is protected by fed. statute even if the Ee turns out to be mistaken as to
      facts. Here, P rebutted Er‟s rebuttal & proved that Er‟s reasons were false.


D. ADVERSE ACTION v. RETALIATION: Circuits are redefining „retaliation‟ under § 704
   (not § 703).
   1. Bad/false reference to future Er of P (who had filed w/ EEOC).
   2. Bad evaluation after filing w/ EEOC (is not retaliation).
   3. Ostracism (is not retaliation).




                                                                                            15
DISPARATE IMPACT

A. ESTABLISHMENT OF DISPARATE IMPACT THEORY.


  1. ELEMENTS OF DISPARATE IMPACT:

     a. PRIMA FACIE CASE
        1.) Er‟s facially neutral policy or practice (if facially discrim., analysis stops here!);
            OR inseparable combination of policies that are part of facially neutral policy.
        2.) Policy/practice has adverse impact on protected group.
            a.) Get data over period of time (use time that is best).
            b.) Practice could be subjective.
            c.) If success rate of disadvantaged group is lower than 80% of top group then
                adverse impact.

     b. Er BURDEN OF PRODUCTION
        1.) Rebuts PFC (e.g. doesn‟t exist) OR proves impact is not caused by policy; OR
        2.) Affirmative defense- proves policy is job related AND meets LBR (Griggs).
            Thus, Er has burden of persuasion.

         If Er succeeds in showing successful affirm. defense, then 

     c. P MUST PROVE PRETEXT (P‟s one last chance)
        1.) An alternative exists that doesn‟t have disparate impact & is also effective (show
            validity of alternative through use of an expert to avoid SJ); AND
        2.) Er is refusing to adopt it.


  2. How much disparate impact must P show to est. prima facie violation? 4/5 RULE.
     a. 4/5 Rule- success rate is 80% of white or male group. Enough impact for disparate
        impact.

         Example: H.S. Grads rates among whites & blacks.
                   W= 34%
                   B= 12% (80% of 34% =27.2%)

         If Blacks graduated 27.2% or higher, then they are within 4/5 of whites. But b/c they
         are below 27.2%, then can show disparate impact. If under 80% = disp. impact.
         [However, the smaller the sample size, the less reliable it is]

     b. Fed. agencies use 4/5 Rule to decide whether to proceed against a violator & courts
        use it to determine prima facie case.

     c. THIS IS GOOD EXAM QUESTION!




                                                                                                 16
3. The conceptual framework. Griggs v. Duke Power (1971).
   a. FACTS: D had a policy of requiring H.S. ed. for initial assignment to any
      department except labor. When D abandoned policy of restricting blacks to labor
      dept., it made H.S. diploma a prerequisite to transfer from labor to other dept. After
      VII was enacted, D required passage of 2 tests + H.S. ed. Ct. of App.s held: 1) that
      absence discrim. purpose, requirements OK. 2) Rejected P‟s disp. impact claim.

    b. HELD: Facially neutral practices or policies cannot be maintained if they
       operate to freeze the status quo of prior discrim. employment practices. Here,
       whites did far better on D‟s alt. requirements than blacks. This consequence
       appeared directly traceable to race & blacks had long received inferior education in
       seg. schools. VII not only proscribes over discrim., but also practices that are
       fair in form, but discrim. in operation. Test here was not demonstrated to be a
       reasonable measure of job performance. [Here 34 of whites completed H.S., while
       only 12% of black males]


4. NO “Bottom Line” as Defense Rule & Non-intentional Discrim.- the P‟s Case.
   Connecticut v. Teal (1982).
   a. FACTS: P & 3 other black Ees of D failed a written exam & were excluded from
      further consideration for perm. supervisory positions. P filed VII C/A alleging exam
      excluded blacks in disproportionate numbers & not job related. At trial, D claimed
      that it recently instituted affirm. action program, as a result of which its percentage of
      minority supervisors now precluded a finding. District ct. agreed, but Ct. App
      reversed on that D must prove its exam was job related. D appealed.


       Test takers            Passed                  Promoted
         W - 289            204 = 79%           35 = 12% of applicants        = 17% of passers
       Af. Am. - 48          26 = 54%           11 = 23% of applicants        = 40% of passers
                      4/5 Rule = 63% & Af.        “Final bottom line”
                        Am. are under it =           11  48 = .23
                          disp. treatment    Given promotions after lawsuit



    b. ISSUE: Is the fact that the “bottom line” result of a discrim. promotional
       process is an appropriate racial balance a defense to a Title VII action? NO.

    c. HELD: There is no VII exception for Er who compensate for a discrim. pass-
       fail barrier by hiring or promoting a sufficient number of black Ees to reach a
       non-discrim. “bottom line.” VII prohibits practices that would deprive “any ind. of
       empl. opportunities.” The principal focus of the Act is the protection of the
       individual Ee, not the minority group as a whole. In other words, a racially balanced
       work force cannot immunize an Er from liability for specific acts of discrim.
       Consequently, D‟s “bottom line” is no answer to P‟s PFC of empl. discrim.

    d. Held that Griggs allows litigation of any arbitrary barriers that have disp. impact &
       therefore Er has to justify any barrier they create.

    e. An individual & groups can litigate both disp. treatment & impact. However, in disp.
       impact you look at success of jumping over barriers



                                                                                                 17
  5. Questions on Empl. Applications.
     a. On employment application, questions must have valid business reason to the job.
        [Take to NAACP or FEHA regarding legality if questionable.]
     b. Prior experience- can have disparate impact if skill trade was segregated.
     c. Education Requirements- like in Griggs can be suspect, but judges take judicial
        notice of high level jobs.
     d. Physical requirements- size/height can have disp. impact, as in prison guards case.
     e. Can use disp. impact analysis on promotion:

          Stanford Tenure case:        14 W  6 tenured = 43% of females.
                                       18 M  12 tenured = 67% of males

                      4/5 Rule = 80% of M‟s 67% = 54%
                      W‟s 43% is lower than M‟s 54% = disparate impact.

          But the sample may be too small- Need “statistically significant sample” + Need
          expert to determine this. D would argue too small a sample.



B. MODIFICATION & REAFFIRMATION OF “IMPACT” THEORY.
   1991 CIVIL RIGHTS ACT.

  1. NEPOTISM & ANTI-NEPOTISM POLICIES.
     a. Anti-nepotism policies- not allowed to hire relatives. In earlier cases, they had disp.
        impact on women. Cannot have anti-nepotism policies now, except for narrow ones
        such as not having one spouse supervise the other.
     b. Nepotism- hiring of relatives. It was common practice in some professions such as
        firefighters. In L.A., 300 firefighters of 3000 came from 60 families. Shared
        nepotism has disp. impact on race, nat‟l origin, and gender.

  2. Need for Applicant Flow Data. Wards Cove Packing & Co v. Atonio (1989).
     a. FACTS: Involved salmon industry in Alaska. Litigation took over 15 years. Was
        massive test litigation to integrate salmon industry. There were non-cannery jobs &
        cannery jobs (low skill, low pay).

          Non-cannery jobs                      Cannery jobs
          76% men                               15% males
          14% women                 ≠←          27% women
          10% men of color        [No X-over]   46% men of color
           0% women of color                    13% women of color

          P argued disparate treatment & impact. P filed to convince district ct. of intentional
          discrim. Could not prove intent even w/ stats. USSC overturned finding of disparate
          impact, but not disp. treatment.

          Problem was there was disp. impact b/c pools had no relation. People did not jump
          (crossover) from cannery job to non-cannery jobs e.g., whites jumping over to non-
          cannery jobs, but not Filipinos.




                                                                                               18
     b. HELD: Two groups must have relation. People did not apply from cannery to
        the non-cannery positions. Must have applicant flow data (who applied + what
        % of each race/gender got hired – different rates).
        1.) Proper statistical comparison must be between the racial composition of the at-
            issue jobs & the racial composition of the qualified population in the relevant
            labor market. Racial imbalance in one segment of an Er‟s work force does not
            est. a PRC of disp. impact w/ respect to the selection of workers for other
            segments. The cannery work force here was unskilled & did not reflect the
            qualified population in the labor force for non-cannery jobs. Therefore, a
            comparison of cannery & non-cannery jobs is improper evidence of disp. impact.

         2.) P‟s PFC becomes difficult w/o data. Must be precise, have data to show, &
             have movement from one barrier to another.

     c. RULE: In order to make out a PFC of disp. impact, a P must compare the
        racial composition of the qualified population in the relevant labor market to
        the composition of the population holding the jobs in question & demonstrate
        that a specific employment practice has created the disp. impact.


  3. 1991 AMENDMENTS (overruling Wards Cove):
     a. Wards Cove- caused passing of 1991 Act. Wards was viewed as having altered
        Griggs and substantially undermined disparate impact analysis. 1991 Act overrules
        Wards Cove.
     b. Under new law, P must still prove causation between the challenged practice &
        the discrim. impact, but if the components of the Er‟s selection process is not
        capable of separation, a showing that the impact of the total process was
        discriminatory is sufficient to make out a PFC.
     c. It codifies “business necessity” and “job related.”
     d. Bush signed- 2 weeks after Clarence Thomas was confirmed on USSC. A result of…



C. JOB RELATEDNESS & BUSINESS NECESSITY.

  1. Less Discrim. Alternative & Low Standards for Er to Meet (Defenses).
     Fitzpatrick v. City of Atlanta (1993).
     a. FACTS: Until 1982, D (Atlanta Fire Dept.) enforced policy requiring all male fire
         fighters to wear breathing apparatuses. This required shaving beard, but 12 Af. Am.
         males suffered from skin disorder that infected skin if shaven. In 1982, D allowed
         short shadow beards. Ps sued & D claimed rule was business necessity for safety.
         Trial ct. granted SJ to D. Ps appealed.

     b. HELD: Ers may engage in practices that have disp. impact on a protected
        minority if necessary to meeting important business goal & there are no less
        discrim. alternatives. Safety of fire fighters is clearly an important business goal.

     c. NOTE: Problem here was that there was mask that covered entire head (less discrim.
        alt.), but it was introduced on appeal i.e. not part of record & not considered. No jud.
        notice (no experts also like the other side had. Need expert to validate that less.
        discrim alt. is also effective).


                                                                                                19
D. EMPLOYMENT TESTS.
   1. Facts of cases are important to decide what theory applies.

   2. Discrim. empl. tests forbidden unless has manifest relationship to the job.
      Zamlen v. City of Cleveland (1990).
      a. FACTS: P (woman) claimed test (for fire fighter applicants) treated things men were
         better at & not what women were better at (e.g. stamina, endurance, etc.) even though
         they were important to the job.
           Written Test                       Pass Physical Test              Pro moted
           M en   1927  1206 (62.6%)          1, 069 (89% of 1206)      35
           Women 288   122 (42.8%)                 29 (24% of 122)     0
                     Hurdle #1             Hurdle #2                          Top woman was #344
                                                                              Even w/ added pts =no help
           Both test had disparate impact on women. Two hurdles, but here only litigated one!

       b. HELD: Title VII forbids the use of employment test that are discriminatory in
          effect unless the Er meet the burden of showing that any given requirement had
          a manifest relationship to the job. Here, D exam was properly validated according
          to validation studies by EEOC. An exam that does not test for stamina is not fatally
          defective. The exam does parallel actual tasks performed on the job, & D
          demonstrated a direct correlation bet. higher test scores & better job performance.

   3. EMPLOYMENT RELATED TEST. Albemarle Paper Co. v. Moody (1975).
      a. FACTS: Class of black Ees challenged D‟s policy of requiring applicants for
         promotions to pass 2 general ability tests. At trial, D presented testimony of an
         industrial psychologist who had studies the job relatedness of the 2 tests. He found a
         statistically significant correlation bet. individuals rated by their supervisors & their
         scores in some job groupings. On the basis of this study, trial ct. held that D carried
         its burden of proving the tests were job related. App. Ct. reversed & D appealed.
         This case was being litigated while Griggs came down. D had test validation done 1
         month b/f trial (Beta & Wonder Lit Test- general ability test- same as in Griggs).

       b. HELD: Discrim. empl. test are impermissible unless they are predictive of or
          correlated w/ behavior relevant to the job. The EEOC has issued guidelines for
          determining whether empl. tests are job related. Measured against these
          guidelines, D‟s study was materially defective b/c it failed to distinguish or compare
          the studies‟ job groupings. Also, it compared test scores w/ subjective supervisorial
          rankings, using criteria that were extremely vague.
          1.) Furthermore, it focused only on job groups near the top of the job ladder, leaving
              doubt as to whether the test were a good measure of qualifications of new
              workers entering lower-level jobs. Finally, the study dealt only w/ experience
              white workers, in contrast to the applicants themselves, who were young &
              black. Therefore, D has not proved the job relatedness of its testing program.
          2.) USSC held test was “odd patchwork.” Validation study was defective.
              Supervisor rankings were subj., no analysis of job, & only tested groups at top.

       c. NOTES: Some Ers have attempted to preserve otherwise discrim. tests by setting
          lower pass rates or cut off points for minorities. “Norming,” as this practice is called,
          was specifically prohibited by § 106 when Congress passed the Civil Rights Act of
          1991. When a cut off is utilized- that is, passing all who are eligible, regardless of
          actual score- the passing score must be set at a level of normal work expectations.


                                                                                                       20
SYSTEMATIC DISPARATE TREATMENT
A. Generally
    1.   Intentional discrimination against a protected class.
    2.   Second type of disparate treatment.
    3.   Which means you have to prove intent (unlike d isp. impact where we don‟t care about motivation,
         only impact on disadvantaged groups).

B. ELEMENTS
   1. PFC
      a. Individual disparate treatment cases.
      b. Gross statistical disparities to infer intent.
         1.) Qualified labor force v. Er‟s workforce.
         2.) Qualified labor pool are people w/ that skill.
         3.) Can infer intentional discrim. Find standard deviation (SD)!!! If gross
             disparities are 2 or more standard deviations, then you can infer intentional
             discrim. Castaneda v. Partida.
         4.) Look at stats over 5 or 10 yrs. of hires.
         5.) Need to control for skill level & geographical area.
         6.) Other relevant evidence.
         7.) History of racial discrim.
         8.) Standardless hiring process.

    2. Er Rebuttal
       a. Rebuttal by showing statistic are inaccurate or insignificant (e.g. too small a sample)
          Or rebuttal of individual disparate treatment cases as well.
       b. Alternative nondiscriminatory explanation.


C. CALCULATING CHANCE VARIABLE. Hazlewood School District v. U.S (1977).
   1. FACTS: Prior to 1972, HSC did not hire many black teachers. Racial discrim. by public
      Ers was not made illegal under VII until 3/24/72 (yet, still covered by 14th – Eq. Protect.
      Cl.). District ct. rationalized that no need for black teachers b/c no black students.

         a. PFC
            1.) History of racial discrim.
            2.) Gross statistical disparities.
            3.) Subjective decision.
            4.) Ind. disparate treatment cases (crucial element). Here there were 55 Ps/instances.
                Need to have really good disparate treatment cases.
                a.) If gross disparities are 2 or more standard deviations, then you can infer
                    intentional discrim. Castaneda v. Partida.
         b. Er‟s Rebuttal.
            1.) Prove stats are bad. If Er cannot rebut, Er can provide:
            2.) A non-discriminatory reason for gross disparity/reason.

         TO CALCULATE THE CHANCE VARIABLE:
            1.) Comparisons are the options.
                a.) Prove discrim. by looking at all hires – hard to prove.
                b.) Look at hiring in last two periods of recent hires – can prove.



                                                                                                       21
        2.) Example:

                       405 hired       X 15.4% (Af. Am. in pool area) = 62

                              15       -    62        = -47
                      Actually hired       Expected

             _____.47________________                      ______
             405 x 15.4% x 84.6%                       =  52.76    (push  )   = 7.3
              Total      Blacks        Non-Black                                     Size of Chance

            Take size of chance 7.3 and  by 47 = 6.4 Standard Deviation (SD)

            2 SDs = 1 in 20                 (1 in 20 chance that it was not discrimination)
            3 SDs = 1 in 384
            4 SDs = 1 in 15, 786

            a.) Thus, 6.4 SD would be really hard (like 1 in a million). This would meet
                PFC of gross disparities!!! 2 or more standard deviations, then you can infer
                intentional discrim. BUT, Er can rebut w/ legit, non-discrim reason.

            ON REMAND: if ct. uses large pool of 15.4% (Stevens says use this b/c 1/3 of
            teachers were from St. Louis area), P will win or at least survive SJ.

            If ct. uses suburban pool on of 5.7% 

              15 – 23 = 8_________ = _____                    =   4.67
             405 x 5.7% x 94.3%     21.77                         = 8  4.67 = 1.7 SD
                                                                                 No gross statistical disparity
            Applicant Flow Data would not be good to use here b/c at this time, no blacks
            would apply b/c they would not get hired.

             When you do this analysis, use skill level if looking at a skilled job.
             Control for geography form what area do people come to get these jobs.


2. HELD: When gross statistical disparities exist between the composition of a work
   force & that of the general pop., that alone may constitute prima facie proof of a
   pattern or practice of disrim. Here, the proper comparison was between the racial
   composition of D‟s teaching staff & the racial composition of the qualified public school
   teacher population in the relevant labor market.
   a. However, D must be given an opportunity to rebut the P‟s prima facie case &
       show that the discirm. pattern is a product of pre -Civil Right Act hiring rather
       than unlawful post-Act discrim.
   b. The app. ct. should have remanded the case to determine whether D engage in a
       pattern of empl. discrim. after 3/24/1972. Remanded.

3. NOTES: As originally enacted, VII only applied to private Ers. It was extended to state
   & local gov‟t Ers by the Equal Employment Opportunity Act of 1972 (enacted on
   3/24/72).



                                                                                                            22
D. PROVING DISPARITY BETWEEN % OF APPLICANTS & THOSE HIRED.
   EEOC v. Olson‟s Dairy Queen (1993).

    1. FACTS: EEOC (P) claimed that D was discriminating against black applicants for empl.
       b/c of their race. In support of its PFC, P presented testimony of expert who compared
       D‟s hiring history w/ the % of black workers in the Houston area. Expert found that
       blacks comprise 25% of relevant labor market, but only 8% of D‟s employees. Expert
       also compared the % of black applicants to the % of black hired Ees and found that the
       likelihood that D‟s hiring patterns resulted from race-neutral practices was less than one
       chance in 10,000. The district ct. disregarded his f indings & concluded that the P had not
       provided ample evidence to est. a PFC. P appealed.

    2. HELD: The most direct route to proof of racial discrim. in hiring is proof of
       disparity between the % of blacks among those applying for a particular position &
       the percentage of blacks among those hired. When a statistical showing is
       sufficiently strong, the P‟s PFC can be made w/o additional evidence showing that
       the D purposefully treated minorities less favorably. Statistical evidence must,
       however, be finely tuned to compare the Er‟s relevant work force w/ the qualified
       positions in the relevant labor market.
       a. In this case, the expert‟s analysis met this standard. His approach had been
           previously approved by the ct. His second approach, in which he analyzed the actual
           empl. applications, directly contradicted D‟s expert, who merely “opined” that
           applicants for employment were likely to be white teenagers living a short distance
           from the store b/c that‟s who D employed.
       b. P presented substantial evidence to est. a VII violation.

    3. NOTE: In order to test for discrim. hiring, a ct. must evaluate an Er‟s work force in
       terms of the available labor pool, not those actually hired. The fact that one of D‟s stores
       was staffed by predominately white teenagers living c lose to the store does not mean that
       there were not qualified applicants who were not white teenagers living close to the store.

E. MUST PROVE INTENT & THAT UNLAWFUL DISCRIM. WAS REGULAR
   PATTERN OR PRACTICE. Ottaviani v. S.U.N.Y., New Paltz (2 nd Cir. 1990)
   1. FACTS: P & other FT female faculty alleged that bet. 1973 & 1984, D discriminated
      against female members of its faculty on the basis of gender regarding placement in
      initial faculty rank, promotion, & salary. P introduced stats based on multiple regression
      analysis, provided anecdotal evidence, & attempted to introduce evidence of pre-VII
      discrim. Trial judge found the stats of both parties to be inconclusive. Also found
      anecdotes as insufficient to support Ps (class) claim of a pattern or practice of gender
      discrim. Rule in favor of D.

    2. HELD: To support a disp. treatment claim, it must be est. not only that discrim.
       intent was present, but that the discrim. was a regular procedure or policy. To est. a
       PFC of discrim. w/ stats, that evidence must be “statistically significant.” Most
       social scientists accept 2 standard deviations as threshold level of stat‟l significance.
       a. Here, the levels of statistical significance of the studies introduced by P were not
           sufficiently high to support a prima facie claim of salary discrim.
       b. In addition, P main salary study was flawed b/c it failed to include rank variables.
       c. Also, the anecdotal evidence on its face was too limited to prove class-wide discrim.
       d. Thus, P failed to prove by a preponderance of the evidence that there was a pattern or
           practice of discrim.


                                                                                                 23
STATUTORY DEFENSE
BONA FIDE SENIORITY SYSTEMS
A. Generally
   1. § 703(h)- “It shall not be an unlawful empl. practice for an Er to apply different standards
      of compensation, or different terms, conditions, or privileges of empl. pursuant a bona
      fide seniority system,… provided that such differences are not the result of an intention to
      discriminate b/c of race…or national origin..”

    2. For unionized workplaces only! Term of art for collective bargaining system.

    3. ELEMENTS:
       a. Seniority Dates
          1.) Company seniority date when start to work for co. for vacation leave, etc.
          2.) Bargaining unit seniority date when start 2 wrk 4 that group for competitive bid,
              etc.

        b. Bona fide seniority system as absolute defense for Er. § 703(h)
           1.) Seniority system
           2.) Merit system
           3.) Earnings
           4.) Quantity or quality of production.

        c. Bona fide or adopted w/o intent to discrim. by factors.
           1.) Applies equally to all race or ethnic group.
           2.) Rational by industry practice
           3.) Not genesis in racial discrim.
           4.) Maintained free from illegal purpose.


B. Systemic Disparate Treatment “Practice or Pattern” case.. Internat‟l Brotherhood of
   Teamsters v. U.S. (1977).
   1. FACTS: When allotting benefits (like pensions/vacations), D (trucking co.) calculated
       seniority from the time an Ee joined the co., regardless of the Ee‟s job or bargaining unit.
       However, for competitive purposes- that is, determining when an Ee may bid for a job or
       be laid off – bargaining-unit seniority controlled. Bargaining-unit seniority depended on
       the amount of time an Ee had been a line driver for a particular terminal. This seniority
       system locked minority workers into inferior jobs & discouraged their transfer to jobs as
       line drivers. District ct. held that both Ds had violated VII & that minority incumbent
       Ees were entitled to use their company seniority, rather than their bargaining-unit
       seniority- for all purposes.

    2. HELD: An otherwise legitimate seniority system does not become unlawful under
       VII simply b/c it may perpetuate pre -Act discrim. § 703(h) permits an Er to apply
       different terms, conditions, and privileges pursuant a “bona fide” seniority system.
       Thus, it gives some immunity to seniority systems, even though they may perpetuate
       the effects of prior discriminatory job assignments.

        a. Congress intended that VII should not outlaw the use of existing seniority systems or
           destroy vested seniority rights simply b/c an Er engaged in discrim. prior to VII.


                                                                                                 24
       b. The seniority system here is bona fide. To the extent that it locks Ees into none-line
          driver jobs, it does so for all races and ethnic groups.

       c. Ct. here justified seniority system b/c of remedy. At remedy phase, Ps can request
          retroactive seniority date as part of remedy for the past discrimination.

       d. If you were deterred b/c you knew black & Latinos never got hired, then applicant
          date can be waived b/c persons knew it was hopeless.

       e. FACTORS TO DETERMINE IF BONA FIDE.
          1.) In accordance w/ industry practice.
          2.) Consistent w/ illegal purpose.
          3.) Negoitated w/ illegal purpose.
          4.) Genesis in racial discrimination.

       f.   Do you have to prove intent? YES, only disp. treatment, not w/ disp. impact.



C. TIME REQUIREMENT TO BECOME PERMANENT Ee IS SENIORITY SYTEM.
   CA Brewers Assoc. v. Bryant (19).
   1. FACTS: P had to work 45 wks to become permanent Ee. This policy deprived blacks
      from becoming permanent Ees.

   2. HELD: B/c based on time, policy was part of seniority system & shielded by §
      703(h).




                                                                                               25
PROHIBITED CLASSIFICATION:
SPECIAL PROBLEMS

A. PRIORITY OF PROTECTION: [From lowest to Highest]
   1. Religion.
   2. Sex.
   3. Nat‟l origin.
   4. Race.


B. RELIGION & THE DUTY TO ACCOMMODATE.
   1. GENERALLY.
      a. Definition of Religion. § 701(j) same as in any other con case. “Includes all
         aspects of religious observance and practice, as well as belief.
         1.) Belief
             a.) Includes all moral or ethical beliefs.
             b.) EEOC guideline includes moral & ethical belief as long as sincerely held w/
                 strength of religious view. See EEOC Guidelines.
             c.) Atheism does fit.
             d.) Political & social ideologies fall outside e.g., racists & anti-Semitic views of
                 KKK.
         2.) Practice
         3.) Observance

       b. ELEMENTS:
          1.) PFC
              a.) Ee has bona fide “religious” belief (sincerely held);
              b.) Belief creates conflict w/ employment requirement;
              c.) Er knows of conflict; AND
              d.) Conflict result in adverse action.

           2.) Er REBUTTAL
               a.) Can rebut PFC.
               b.) Affirmative defense-
                     i.   Er offered reasonable accommodation, but Ee refused.
                    ii.   Unable to “reasonably accommodate w/o undue hardship. Requiring
                          Er more than de minimis is undue hardship.

           3.) P must show D‟s reasons are PRETEXT if Er rebuts PFC.


   2. Religious Discrimination by Non-religious Ers v. Religious Ers Distinction
      a. Religious Er may discriminate in religious base, but not on race, gender, etc.
      b. Non-religious Er- cannot discrim. on religion even if you have religious beliefs
          different to Er.




                                                                                                26
3. DUTY TO ACCOMMODATE & DE MINIMIS STANDARD.
   Trans World Airlines v. Hardison (1977).
   a. FACTS: P was clerk for TWA (D) in stores dept. & had to work 24/7/365. After P
      joined religion, he informed D he could no longer work on Saturdays. D‟s collective
      bargaining agreement contained seniority provision. D transferred to other building
      and dropped to seniority system there & union not willing to violate seniority system.
      P refused to work on Sats. And was discharged for insubord. Er argues affirm.
      defense. No reasonable accommod. exists that would not created undue hardship.

    b. HELD: Short of undue hardship, an Er must make reasonable accommodations
       to the religious needs of its Ees. On at least 2 occasions, D offered to accommodate
       P‟s religious observance by agreeing to any trade of shifts or change of sections that
       he & the union could work out. None was possible or union unwilling. The duty to
       accommodate does not require D to take steps inconsistent w/ an otherwise valid
       agreement.
       1.) Further, w/o a clear & express indication from Congress, this ct. cannot agree w/
           P & EEOC that an agree-upon seniority system must give way when necessary
           to accommodate religious observances.
       2.) Anything more than de minimis cost is an undue hardship (violate
           agreement to give P Saturdays off).


4. REVIEW:
   a. Er must accommodate as long as de minimis cost to Er.
   b. Reasonable accommodation is not best accommodation or what Ee wants, only if
      what Er offers is reasonable.




                                                                                           27
C. NATIONAL ORIGIN.
  1. Generally:
     a. NEED
        1.) Nat‟l origin.
        2.) Discrimination
     b. Can Discrim. by citizenship unless:
        1.) Pretext
        2.) Intentional discrim.
        3.) Disparate impact on non-citizen.
     c. Foreign Language v. English
        1.) Must be LBR or job related to discriminate for heavy foreign accent.
        2.) No right to culture at the job. Er can require English only if no significant
            impact.

  2. Citizenship not included in Nat‟l Origin. Espinoza v. Farah Manufacturing Co.
     (1973)
     a. FACTS: P, was LPR, applied to work a seamstress for D and was rejected on basis
         of policy only to hire citizens. P sued claiming discrim. on basis of “nat‟l origin.”
         District ct. granted P‟s motion for SJ, holding that a refusal to hire b/c of lack of
         citizenship constituted discrim. on basis of “nat‟l origin.” Ct. Apps. Reversed.

      b. ISSUE: Is discrim. on alienage discrimination based on nat‟l origin? NO

      c. RSN: It is an unlawful empl. practice for an employer to fail or refuse to hire
         any individual b/c of such individual‟s nat‟l origin. However, Congress did not
         intend the term “nat‟l origin” to embrace citizenship requirements.
         1.) The fed. gov‟t has a long-standing practice of requiring fed. Ees to be USCs. But
             it has never been suggested that the citizenship requirement for fed. empl.
             constitutes discrimination b/c of nat‟l origin. It cannot be concluded that
             Congress wanted this to be OK for fed. empl. but not for private.
         2.) P not denied empl., b/c of her nat‟l origin, but b/c she has not yet become citizen.
         3.) Nat‟l origin in VII does not mean “alienage.”
         4.) Stats were not good here. District ct. found that people of Mexican ancestry
             composed up to 96% of Ees and 97% were doing job that P applied for.


  3. Amended EEOC Nat‟l Origin Discrimination Guidelines (Supp., p. 9).
     a. SEE EEOC GUIDELINES. §§ 1606.1 – 1606.8

  4. English Only
     a. Spun Steak (9 th Circuit) - Rule to speak English if bilingual b/c of derogatory
        statements made. P claimed it created environment of inferiority. 9 th held Ee have
        no right to say anything on the job (private sector). Ers can limit speech on the
        job.
        1.) EEOC Guidelines- held that English only rule is presumed to violate VII, but 9th
             Circuit said no presumption & don‟t have to prove LBR.
        2.) English Only OK- 9th Circuit held that Er can allow English only on the job.
             Unless you can show intent and no LBR, then you can bring VII C/A.




                                                                                                 28
    b. CA Supreme Court. Aguilar v. Avis Rent-A-Car.
       1.) FACTS: Avis Ee (supervisor) was making derogatory remarks against Latinos.
           Lower ct. granted injunction that Ee not make any more derogatory remarks.
       2.) HELD: Upheld injunction. Racial harassment is not protected speech.


5. IRCA of 1986.
   a. Covers more
   b. Prohibits discrim. on nat‟l origin.
   c. More specific on citizenship. Cannot discrim. against non-citizens, if they have
      working documents i.e. documented workers.
   d. But can hire citizens over non-citizens.
   e. Also Er sanctions.




                                                                                         29
D. RACE & COLOR
  1. Generally:
     a. Broad construction of race & color.
     b. Any disparate treatment, even if beneficial
     c. Color (see p. 397)- persons of a lighter or darker shade of color can state a claim on
        ground of discrim. b/c of color.
     d. § 703(a)(1)- prohibits discriminatory preference for any group, minority or majority.

  2. VII protects whites & males just as other races & women. McDonald v. Santa Fe
     Trail Transportation (1976).
     a. FACTS: P, white co-worker, and a black co-worker charged w/ misappropriating
         property from D. Two white Ps were dismissed from their jobs, while black Ee was
         retained. Ps sued D and union. District ct. dismissed and Ct. App. affirmed.

      b. HELD: The discharge of an individual b/c of that individual‟s race is
         prohibited. The terms of the Act are not limited to discrimination against
         members of any particular race. This conclusion is in accord w/ un-contradicted
         leg. history to the effect that VII was intended to “cover white men and white women
         and all Americans” and to create an “obligation not to discriminate against whites.”
         Reversed.

  3. Indian Tribes- exempted from VII. Allows private business located on or near Indian
     reservations to give preferential treatment to Indians living on or near reservations.




                                                                                              30
E. SEX
  1. Generally:
     a. 1997 Stats:
        W. men               $1               In 1950 – 39% of women worked
        As. Am. men          $.97             In 1988 – 70% or women worked.
        As. Am. women        $.67             In 1990 – 74% of women worked.
        Af. Am. men          $.65             In 2000 – 81% of women working.
        Latino men           $.65                       [93% of men working]
                                                      ---------------------------------
         W. women            $.67                     Massive amount of women, now
         Af. Am. women       $.58                     in workplace & out of home.
         Latino women        $.48

     b. “Sex” was added to Title VII in 1967. Women have had greatest benefit!

     c. SEX PLUS
        1.) Sex discrim. + is fundamental right or immutable characteristic
        2.) Good grooming rule OK but not if burden higher for one gender.

  2. EEOC SEX DISCRIMINATION GUIDELINES. SEE §§1604.1 – 1604.11

  3. “SEX-PLUS” DISCRIMINATION
     a. Phillips v. Martin Marietta (1975).
        1.) FACTS: D did not have women w/ pre-school children b/c they would miss
            work. They did hire women. D argued it was sex-plus.
        2.) HELD: Sex-plus is discrim. Men were not asked if they had young children.
            This was admitted discrim. & only defense is that gender is a BFOQ.
            a.) Policy cannot be more burdensome on one gender.
            b.) 5th Amend. recognized:
                   i.   Immutable characteristics.
                  ii.   Fundamental Rights (children, marriage).

     b. Immutable Characteristics Protected. Willingham v. Macon Telegraph
        Publishing Co (1975).
        1.) FACTS: P applied for job w/ D & was denied b/c of his long hair (grooming
            code). Only women could have long hair. P claimed grooming code unfairly
            discriminated based on his sex. The district ct. granted SJ to D. Ct. Apps.
            reversed. P relied on “sex-plus.”
        2.) Distinctions in empl. practices between men & women on the basis of
            something other than immutable or protected characteristics do not inhibit
            empl. opportunity. A hiring policy that distinguishes than some other
            ground, such as grooming codes or length of hair, is more closely related to
            the Er‟s choice of how to run his business than to equality of empl. opport.
            a.) A line must be drawn bet. distinctions ground on such fundamental rights as
                the right to have children or to marry & those interfering w/ the manner in
                which an Er runs his business.
            b.) Hair length not immutable & in situation of Er-Ee, enjoys no con. protection.
     c. Formal Equality v. Substantive Equality Distinction
        1.) Formal equality- everything exactly the same.
        2.) Substantive equality- special treatment so in the long run, they will be the same.



                                                                                             31
4. PREGNANCY

  a. Generally
     1.) Constitutional Equal Protection
         a.) No discrimination for Er to discriminate by pregnancy.
         b.) Pregnant v. non-pregnant, which includes women, so no intentional discrim.

      1.) Pregnancy Discrimination Act (PDA): § 701(k)
          a.) Discrimination if fired only for pregnancy, childbirth, or related condition.
          b.) Pregnancy is physical disability, so must treat pregnant women the same as if
              disabled. Rule of thumb for normal child birth is 6 wks. disabled.
          c.) Er‟s voluntary benefits must be given equally.
          d.) “Treated the same” – is formal equality. Only means if Er has insurance,
              must cover pregnancy. Treat pregnancy as any other disability.

      2.) California Statute
          a.) VII does not trump state law if consistent with VII.
          b.) Can treat preg women better than other disabled people in CA (up to 4 mths).
          c.) Er must give reasonable unpaid leave up to 4 months for pregnancy.
          d.) Right to come back at same or similar job.

  b. If Er offers benefits, must be same for pregnant dependents. Newport News
     Shipbuilding & Dry Dock Co. v. EEOC (1983).
     1.) FACTS: Women Ees had full benefits for their husbands, but men Ees only had
         partial benefits for their wives.
     2.) HELD: Er do not have to cover dependents, but if they do they must cover
         pregnant dependents the same.
         a.) It is an unlawful empl. practice for an Er to discriminate against any
              individual w/ respect to his/her compensation, terms, condition or privilege
              of empl. b/c of such individual‟s race, color, religion, sex, or nat‟l origin.
         b.) Health insurance falls under “comp., terms, conditions, or privileges.”
              Discrim. on woman‟s pregnancy is, on its face, discrim. b/c of sex.
         c.) It follows that discrim. against female spouses in provisions of fringe
              benefits is also discrim. against male Ees.

  c. Title VII v. State Law. Rosenfeld v. Southern Pacific Co (1971).
     RE: “Protective” State Labor Legislation & Er‟s Good Faith Reliance.
     1.) FACTS: P, a female Ee of D, applied for an position that involved heavy
         physical effort & would at certain times require the individual to work more than
         10 hrs. /day. D assigned junior male Ee for position & P sued w/ claim of sex
         discrim. D argued that its policy of excluding women from such position was
         based on its good-faith reliance of CA labor laws; which limited wrk. hrs. for
         women & restricted the weight they were permitted to lift. District Ct. held that
         D discriminated, but awarded no damages to P. D appealed.

      2.) HELD: State protective leg. that conflicts w/ fed. law is invalid. State law
          limitation upon female labor run contrary to the general objectives of VII.
          There is not basis in the statute or in the leg. history to assume that Congress was
          willing to permit policy of VII to be thwarted by state leg. to the contrary.
          However, an Er can hardly be faulted for following the explicit provision of
          applicable state law. Affirmed.


                                                                                            32
    3.) RULE: State protective legislation that conflicts w/ the non-discrim. policy
        of fed. law is invalid.


d. States can provide more protection than Title VII. Cal. Fed. v. Guerra (1987).
   1.) HELD: State law guaranteeing women Ees a certain amount of pregnancy
       disability leave not only was not inconsistent w/ Title VII but was in furtherance
       of the federal policy of ensuring equal employment opportunity to women.

    2.) HELD: State laws could provide more extensive protection than VII as long
        as these extra protections did not conflict w/ either the terms or policies of
        fed. law.


e. CA FEHA §12945. Pregnancy, Childbirth, and Related Conditions.
   1.) “Leave” – holding job until ready to come back. Er must hold your job!
   2.) If reorganized while on leave, must give a substantial equal job.
   3.) Applies to those Ers with 5 or more.
   4.) Is consistent w/ Title VII, not trumped.
   5.) VII is not intended to limit harms against women.




                                                                                        33
5. PARENTAL LEAVE STATUTES

  a. Generally
     1.) Gender neutral for child/family care (FMLA & FCMLA)

     2.) FMLA & CA‟s FCMLA
         a.) Covers:
                i.  Ers w/ 50 or more Ees (thus 42% not covered b/c Ers not lg enough).
               ii.  Eligible Ee worked 1250 hrs. within 12 month period. Part-timers
                    not covered.
         b.) Can get 12 weeks of unpaid leave w/in 12 month period for:
                i.  Infant care.
               ii.  Newborn child.
              iii.  Newly adopted.
              iv.   Ill parents or spouse.
               v.   Own serious medical condition, not disability.
                     Er can require doctor‟s certificate.
                     Must be sick for 3 or more days.
                     Er can require a 2nd & 3rd opinion.

         c.) Requires proof of childbirth or adoption.

         d.) If both spouses work for Er, then they share 12 weeks.

         e.) Fed. & state run concurrently, but women can tack both PDA & FMLA.

         f.) State Ees can get 1 year of unpaid leave.


  b. CA Family Care & Medical Leave Act (FCMLA)
     1.) CA FEHA § 12945.2. Family Care Leave.




                                                                                     34
6. STATUTORY AFFIRMATIVE DEFENSE TO INTENTIONAL
   DISRIMINATION:

  a. Bona Fide Occupational Qualification (BFOQ).
     1.) Generally:
         a.) Pursuant §703(e)(1), an Er may discriminate on the basis of “religion, sex, or
             nat‟l origin in those certain instances where religion, sex, or nat‟l origin is a
             bona fide occupational qualification reasonably necessary to the normal
             operation of that particular business or enterprise.”
         b.) It is a narrow defense!

      2.) ELEMENTS:
          a.) Er‟s Affirmative Defense: Reasonably necessary to normal operation of a
              particular business.
          b.) Narrow
          c.) When Er administered- to discrim.
          d.) Available for all classification except race

      3.) Structure
          a.) Job or duty at issue go to essence of business AND
          b.) All or substantially all of excluded members cannot perform job.
          c.) Impossible to do individual testing for age.

      4.) Not Defense Generally
          a.) Customer preference (exception in foreign culture).
          b.) Cost unless cost is so prohibitive that threatens survival of business.
          c.) Gender for guards in male prisons.

      5.) Accepted Defense
          a.) Privacy for nursing home, not for prison.
          b.) Women guards for women prisons.

  b. “Essence of the Business” Test for BFOQ. UAW v. Johnson Controls (1991).
     1.) FACTS: Er had fetal protection policy which excluded women w/ childbearing
         capacity from lead-exposed jobs & so creates a facial classification based on
         gender. D argues its policy is BFOQ.
     2.) ISSUE: Whether an Er, seeking to protect potential fetuses, may discriminate
         against women just b/c of their ability to become pregnant b/c it is BFOQ? NO.

      3.) HELD: Pregnancy Discrim. Act makes clear that discrim. based on women‟s
          pregnancy is, on it face, discrim. b/c of her sex. Under the “essence of the
          business” test, P unconceived fetuses are neither customers nor third parties
          whose safety is essential to the business of battery manufacturing. No one
          can disregard the possibility of injury to future children; the BFOQ,
          however, is not so broad that it transforms this deep social concern into an
          essential aspect of battery-making.
          a.) Sex or pregnancy can be BFOQ if it actually interferes w/ Er‟s ability to perform the
              job.

      4.) “Essence of the business” test- discrim. policy or practice is essential aspect of
          the job.


                                                                                                 35
SEXUAL HARASSMENT
A. GENERALLY
   1. TWO TYPES OF CASES:
      a. Quid Pro Quo Case (easier to get liability)
         1.) Conditions job on grant of sexual favor.
         2.) Harass by:
             a.) Unwelcome sexual advances.
             b.) Submit implicitly/explicitly for condition of employment.

       b. Hostile Environment Theory Case
          1.) Unreasonable interference w/ work performance by hostile work environment.
              a.) Sufficiently severe OR pervasive to be sexual harassment.
              b.) Alters employment. Impact on the job.
          2.) Standard for finding conduct created hostile environment.
              a.) Reasonable person standard (reasonable woman standard used in 9th Cir. In
                  Brady v. Ellison) AND
              b.) P subjectively perceived (totality of circumstances includes frequency of
                  conduct, severity, etc.)
              c.) Intent of harasser is irrelevant.

   2. LIABILITY- EEOC GUIDELINE
      a. If by supervisor, then Er is vicariously liable w/o Er having authorized it or knowing
         about it.
      b. If by co-worker, then Er is liable if Er knows or should have known (unless Er took
         immediate & corrective action).
      c. If by non-Ee or 3 rd party, then Er is liable only when Er knows or should have
         known & fails to take immediate & corrective action.

   3. INDIVIDUAL LIABILITY
      a. Title VII holds entities liable not individuals. So, supervisor shouldn‟t be liable.
      b. CA FEHA
         1.) Er is liable if Er knew or should have known & failed to take immediate &
             corrective action.
         2.) Applies to Ers who hire 1 or more persons (for harassment. As opposed to 5 or
             more for the rest).
         3.) Some CA courts say supervisor can be individually liable (Prof. West fear‟s this).

   4. EEOC Guidelines (1980). § 1604.11 (See Supp.)
      a. § 1604.11(a)- Unwelcome Sexual Conduct (verbal or physical).
                 (a)(1)- Quid pro quo. Submission is condition (easier to get liability)
                (a)(2)- “
                (a)(3)- Hostile environment.
      b. Totality of Circumstances- look at all factors to decide sexual harassment.

   5. First Quid Pro Quo Case (in fed. app. ct.). Barnes case (D.C. Cir. 1977).
      a. FACTS: Supervisor said if P wanted to keep job, she has to sleep w/ his ass.
      b. HELD: Famous footnote- sexual harassment by hetero or homosexual, then
          violation. But if bisexual & harasses both men and women, then no violation. This
          is still good law.



                                                                                              36
     c. If man is sexually harassed by another man, then victim has to prove he was harassed
        b/c he is a man i.e. hard standard.
     d. If all Ees are harassed all the time, may not be VII violation. Maybe something else.

  6. First Hostile Environment Case. Bundy v. Jackson (D.C. Cir. 1981).
     a. FACTS: P received proposition by 2 supervisors & other harassment continuously.
         She complained and director said she “who would not want to rape you” and then
         asked for her to go to his apartment.

  7. Romance in the workplace v. sexual harassment. Over 50% of relationships develop
     in the workplace. Flip side of sexual harassment.


B. DEFINING SEXUAL HARASSMENT

  1. FIRST USSC CASE. Meritor Savings Bank v. Vinson (1986).
     a. FACTS: Supervisor pressured P into date & later into sex. Even raped her on
        several occasions. Grievance procedure required P to complain to supervisor. On
        appeal, it becomes just “hostile environment,” b/c there was no tangible job
        detriment. District ct. allowed evidence of P‟s sexually provocative dress & sexual
        fantasies (goes to “unwelcome” or “welcome).

     b. ISSUE: Whether “hostile environment” is a violation of VII? YES.

     c. HELD: Unwelcome sexual advances, requests for sexual favors, and other
        verbal or physical conduct of a sexual nature constitutes sexual harassment
        when such conduct has the purpose or effect of creating an intimidating, hostile,
        or offensive working environment. EEOC guidelines (based on caselaw) est.
        that a violation of VII may be proved by showing sex discrim. created a hostile
        or abusive working environment.
        1.) Failure of P to invoke grievance procedure does not shield D from liability.
        2.) The fact that P was not “forced” to participate, is no defense.
        3.) However, whether acts were indeed unwelcome present the difficult problems.
            Ct. remands on this question.

  2. Action must be sufficiently pe rvasive as to alter work conditions of working environ.
     Harris v. Forklift Systems (1993). Reasonable person standard.
     a. FACTS: P worked as a manager for D from 1985-87. Throughout her employment,
        the president of D insulted P b/c of her sex & made her the target of unwanted sexual
        innuendos. In 1987, P complained about the president‟s conduct & prez promised to
        stop. Yet, he started again shortly after and P quit. P sued & claimed prez‟s conduct
        created an abusive work environment b/c of her sex. Trial ct. held no abusive
        environ. b/c not so sever to affect P‟s psychological well-being. Ct. Apps. affirmed.

     b. HELD: Sexual harassment is not required to be psychologically injurious in
        order to constitute an abusive work environ. VII is violated when a workplace is
        permeated w/ discrim. intimidation & ridicule that is sufficiently pervasive so as
        to alter the condition of victim‟s working environment. Reasonable person
        standard (O‟Conner uses this standard instead of reasonable women as in Brady v.
        Ellison).



                                                                                              37
            1.) Mere offensive comments are not sufficient to affect the condition of
                employment. Harassing conduct, which both objectively & subjectively is so
                severe & pervasive as to create an abusive environ., is required to implicated VII.
            2.) This level of harassment may be determined by looking at all the circumstances,
                including the frequency of the conduct, its severity, & whether it interferes w/ an
                Ees work performance.
            3.) Psychological injury to the Ee is not required!!!
            4.) The district ct. erred in holding that P working environ. was not abusive b/c she
                did not suffer any psychological injury. Remanded.

        c. Must meet both these standards:
           1.) Objective reasonable person; AND
           2.) Subjective (severe & pervasive). [P was terribly bothered by it. If you don‟t
               show, but P should tell somebody]


C. LIABILITY FOR HARASSMENT. Burlington Industries v. Ellerth (1998).
   1. FACTS: P was subject to many disparaging remarks on gender by superior. There was
      no adverse employment consequences according to district ct. She had eventually quit &
      filed for VII C/A for sexual harassment & constructive discharge. When it gets to USSC,
      cts. assumes no adverse job consequences + constructive discharge C/A dropped (really
      high standard to prove i.e. intolerable that no reasonable person would go back). No quid
      pro quo b/c P was threatened but not carried out.

    2. ISSUE: Whether, under Title VII, an Ee who refuse the unwelcome & threatening
       sexual advances of a supervisor (who creates hostile work environment), yet suffers
       no adverse tangible job consequences, can P recover against the Er w/o showing the
       Er is negligent or otherwise is at fault for the supervisor‟s actions? YES.

    3. HELD: Ct. goes into Restatement of Agency (master-servant doctrine). This brings
       in tort doctrine, moves away from contract doctrine. If supervisor acts (fires,
       demotes, etc), he acts for Er and is basically the Er.
       a. Quid pro quo no longer necessary.
       b. New categories: “tangible job detriment” & “hostile environment.”
       c. “Tangible employment action”- constitutes a significant change in empl. status,
           such as hiring, firing, failing to promote, reassignment w/ significantly different
           responsibilities, or a decision causing a significant change in benefits.


D. STATE LAW – FEHA § 12940(k)
   1. “Employer” = One (1) or more employees (thus applies to all Ers)
   2. Vicarious liability- CA Supreme Ct. held that Er is liable for acts of supervisor (i.e. an
      agent).
   3. Supervisor personal liability- Under Title VII, no liability against supervisor for acts of
      supervisor, but under CA law you can sue personally the supervisor.
      a. Concern (of Professor West) is that in future, no Er liability b/c P can just sue
          supervisor personally. No deep pockets.
      b. Yet you cannot sue personally co-workers under CA law.
   4. Unruh Civil Rights Act (CA law)- provides liability against harassers in business &
      professions.



                                                                                                    38
            TANGIB LE                                               HOSTILE
       JOB DETRIMENT CAS E                                 ENVIRONMENT CAS E
1. PFC                                      1. PFC – harass. by supervisor
   a. Unwelco me sexual conduct.               a. Un welco me sexual conduct by supervr.
   b. Causes- significant change in empl.      b. Severe & persuasive.
             i.e. tangible job detriment       c. Affected her job conditions.
                                                  [more difficult to do her job- Ginsburg]
2. Er Rebuttal                                 d. Object ively hostile & subjectively hostile
                                                   “reasonable person” - “this person thought it was pervasive.”

                                            2. Er‟s Rebuttal
                                               a. Rebuttal (welcomed, didn‟t affect wrk, P said jokes also)
                                               b. Affirm. Defense – Er has burden of persuasion
                                                   - Er exercised reasonable care to prevent & correct. [Every Er
                                                      should have policy + post procedure= exercise of reasonable
                                                       care]
                                                    - P Ee unreasonably failed to take advantage of any preventive
                                                       or corrective opportunities proved by Er or to avoid harm.

                                            1. PFC – harass. by Co-worker
                                               a. Same as a-d above
                                               b. Er knew or should have known (e.g. co-worker had
                                                   made sexual remarks in front of Er)

                                            2. Er Rebuttal
                                               a. Er rebuts PFC
                                               b. Affirm. defense- took immediate & appropriate
                                                  act ion.
                                            1. PFC – harass. by customers or third party.
                                               a. Same as a-d above.
                                               b. Er knew or should have known.


                                            2. Er Rebuttal
                                               a. Er rebuts PFC.
                                               b. Affirm. defense- took immediate & appropriate
                                                  action




                                                                                                               39
SEXUAL ORIENTATION DISCRIMINATION

A. FEDERAL LAW

  1. GENERALLY
     a. No protection for discrimination on basis of sexual orientation. Some recognition for
        same-sex harassment w/ quid pro quo, but split.
     b. Title VII does not recognize sexual orientation discrimination.

  2. Sexual orientation not covered by VII. DeSantis v. Pacific Tel. & Tel. (9 th Cir. 1979)
     a. FACTS: Both male & female homosexuals, including P sued D alleging D had
        dsicrim. b/c of their homosexuality. Ps sought declaratory, injunctive, & monetary
        relief, contending that such discrim violated VII & has disproportionate impact on
        men b/c of greater incidence of homosexuality in the male population than female.
        All C/As were dismissed on Rule 12(b)(6) motion i.e. failure to state a claim.

      b. HELD: Title VII does not include prohibition of discrim. on basis of sexual
         preference. Congress had only the traditional notions of “sex” in mind. Plus,
         Congress has not enacted any bills to include sexual preference.
         Disproportionate impact bootstrap theory does not fly b/c policy applies to both
         men & women. Thus, does not differentiate on sex.


  3. Same-sex Harassment.
     a. Various federal cts have review cases which tried to use Title VII to cover
        harassment b/c of sexual orientation (pp. 86-88) by same sex.

      b. Oncale v. Sundowner Offshore Services (1998)
         1.) FACTS: An offshore drill, supervisor harassed & threatened w/ homosexual
             rape. 6th Circuit just dismissed. Goes to USSC.
         2.) HELD: USSC held if he can show he was harassed b/c of his gender he can
             have a claim.
         3.) HOWEVER, this case was settled. But must be looked in social context.



B. CALIFORNIA LAW

  1. GENERALLY
     a. FEHA- originally FEHA tracks Title VII so no recognition. Did not cover sexual
        orientation.
        1.) HOWEVER, 1 year ago, Davis signed a bill that includes sexual orientation
            under FEHA effective January 1, 2001!

      b. CA Constitution Equal Protection & Privacy Clause.
         1.) Can‟t exclude w/o showing unfit by Equal Protection.
         2.) Privacy Clause covers private & public sector.
             a.) Right to privacy- question of sexual activity = violation of right to privacy.




                                                                                                  40
   c. Labor Code
      1.) Can‟t discriminate b/c private Er can‟t interfere w/ Ee‟s politics (if Ee “comes
          out”). See §§1101, 1102.
      2.) New § 1102.1
          a.) Er is employing 5 or more Ees or any person acting as agency of Er directly
              or indirectly including state Ers.
          b.) Codifies Pac Tel case.


2. Gay Law Students Association v. Pacific Tel. & Tel. (CA Sup. Ct. 1979)
   a. HELD: Equal protection guarantee of the CA Con., a Er may not arbitrarily or
      invidiously discriminate in its employment decisions on ground unrelated to a
      worker‟s qualifications. Precludes automatically excluding all homosexuals
      from consideration for empl. positions.

   b. CA Constitution greater protection (Art. 1, § 7). Here under CA Equal Protection Cl.
      (by private, state gov‟t or regulated industries).

   c. Codified in Labor Code §1102.1.

   d. Case settled for $3 million.

   e. 11 States prohibit discrimination on sexual orientation including CA.




                                                                                         41
PROCEDURAL REQUIREMENTS FOR PRIVATE
SECTOR EMPLOYEES

A. PROCEDURE: § 706(C), (E), & (F). TIME LINE.
  1. FILING CHARGE W/ EEOC WHEN C/A ACCRUES.
     a. Accruing C/A
        1.) Last day of work or actual termination.
        2.) For tort, actual injury or damage.
     b. Deferral state, then 300 days & give state first chance.
     c. Non-deferral state, then 180 days to file.
        (in Miss., AL, TX, Ark., LA, VA).
     d. Must file with agency to sue in fed. ct..
     e. Can amend charge if same course of action relates back to charge, e.g. retaliation.

  2. THEN 60 DAYS OF WAITING PER. W/ STATE AGENCY (DEFERRAL)
     a. Work share agreements, then fed. & state would file w/ each other automatically.
     b. If no work share agreement, then each agency would need to waive waiting period
        requirement.

  3. EEOC S/ CHARGE: 180 DAYS TO DO SOMETHING
     a. If really good case, can get right to sue letter b/f 180 days are up.

  4. RIGHT TO SUE LETTER
     a. EEOC issues after investigating or when P asks.
     b. Then 90 days to file suit in federal ct.

  5. EQUITABLE TOLL
     a. Cts. more lenient to toll filing charge period, than filing suit period.
     b. Ct. will not give vague sympathy to participant‟s litigation.



B. THE “TIMELINESS” REQUIREMENTS
  1. GENERALLY.
     a. FIRST S/L. § 706(e)- within 180 days, unless state statute (of 300 days). Because
        states are deferral state (i.e. have state statutes like FEHA), must file in state first,
        give state 60 days b/f filing w/ fed. EEOC (but now have work share agreements). 6
        states have no state law prohibiting & thus same as VII.

          1.) WORK SHARE AGREEMENTS:
              a.) Minute you go to state agency or EEOC in CA w/in 300 days.
              b.) Sign form.
              c.) Deemed filed in both places (EEOC & DFEH).
              d.) You can show up on day 299 at state agency and is deemed filed timely w/
                  EEOC. 300 days to either state or fed. agency.




                                                                                                42
         b. SECOND S/L. § 706(f)
            1.) When EEOC ends investigation, EEOC shall notify and within 90 days issue a
                right to sue letter (if EEOC does not sue D itself).
            2.) Then from date of receipt of the “right to sue ltr.,” P has 90 days to file in fed. ct.
                a.) By the time you file the charge and get EEOC‟s “right to sue ltr.‟, may
                    normally take 3-4 years.
                b.) In 9th Circuit, it allows you to get “premature right to sue ltr.” Under EEOC
                    regs also.

                   UNDER TITLE VII
      1st S /L § 706(e)
      w/in 180 days               Waiting Period     [This can take yrs]. 2nd S /L § 706(f)
  (but 300 under FEHA)              180 days                ↓               w/in 90 days                        ?
├----------------------------┼----------------┼                       ┼--------------------┼--------------------┤
1) C/A               2) File w/                Can now give         3) Request or            4) File in                   Court
When did                EEOC        ↑ decision or rt. to sue ltr.    Receive „Rt. to sue ltr.‟ ct.
cause accrue                        ↑ (client should see lawyer)
                                    ↑
                                   Some Circuits allow you to request “right to sue ltr”
                                    b/f 180 days (you can do this in 9th Circuit )

         Best thing is to get early “right to sue ltr.” and get attorney to take the case.


    2. FILING W/IN TIME REQUIREMENTS. Allen v. Avon Products (S.D.N.Y. 1988).
       a. RULE: All claims for empl. discrim. must be filed w/in the time requirement
          stipulated by fed. law.
       b. FACTS: Avon (D) fired P on 1/28/72. P filed a charge of sex discrim. /w EEOC on
          8/29/72 (EEOC forwarded to state agency also- “wrk. share” agreement). P filed a
          second charge on 2/14/73. On 6/1/74, EEOC filed C/A against D on gender & racial
          discrim. Litigation was settled on 6/21/77, but unable to enter consent decree
          covering P‟s issues raised. EEOC issued P a right-to-sue ltr on 6/1/81. P filed charge
          on 1/9/81 & later amended twice. D moved for SJ re timeliness & laches doctrine.

          ___________________________________________________________
          │        │       │                       │ │              │
         1/29/72      8/29/72        6/1/74                             6/1/81 9/81                       1987
         C/A         Filed – 8        EEOC                               P          P filed                P attorney‟s
         Accrued    months later.     sued                               receives    w/in 90               appear
                   & w/in 300 days    [settled but                       right 2 sue days.
                                      P did not like]                    ltr            [files pro se]

         c. HELD: All claims for empl. discrim. must be filed w/in the rime requirements
            stipulated by fed. law. An exception to the requirement that empl. discrim.
            claims must be filed w/ the EEOC within 90 days allows local agencies in states
            which have them, known as deferral states, the opportunity to review
            discrimination claims & act on them before the EEOC proceeds.
            1.) Claimants in deferral sates have 240 days w/in which to file w/ the state agency
                in order to preserve fed. jdx.
            2.) Here, P filed her 1st charge w/ the EEOC 215 days after being discharged, and the
                EEOC forwarded this charge to state agency. In addition, P brought suit w/in the
                time allotted after receiving her „right to sue ltr.‟ She was not required to litigate
                prior to the termination of the EEOC‟s investigation & attempts at conciliation.



                                                                                                                              43
            3.) Thus, P‟s delay in filing this action was neither unreasonable nor inexcusable.
                Thus D‟s motion for SJ denied.
            4.) Laches argument rejected. P should be commended for attempting to stay out of
                ct. and allow the admin. agency charged w/ enforcement to attempt to amicably
                settle her suit. ONLY IF DELAY IS UNREASONABLE OR INEXCUSABLE.

3. UNDER FEHA [I‟m not clear on this section]
       File w/in 1 yr.?     1 yr to decide              ?             1 yr. to file
    ________________ _ _ _ _ _ _ _ _ _ _ _ _ _ __________________
    │              │             │            │                 │
   C/A                    File               M ake          Receives                  File in
  accrues                 w/ FEHA            decision       rt-to-sue ltr               ct.



4. FILING RIGHT-TO-SUE LTR DOES NOT “TOLL” 90-DAY STATUTORY
   PERIOD PRIOR TO FILE CHARGE IN FED. CT.
   Baldwin Co. Welcome Center v. Brown (1984).
   a. RULE: The filing of a right-to-sue ltr does not “toll” the ninety-day time period
      for filing charges provided by VII.
   b. FACTS: P filed w/ EEOC against Er alleging discrim. EEOC issued right-to-sue
      (RTS) ltr on 1/30/81, explaining that she must file with fed. ct. w/in 90 day from
      receipt of the RTS ltr. P mailed RTS ltr to ct. and received it on 3/17/81 (had done to
      wrong ct. and took 30 days) & requested council. On 4/15/81, magistrate required P
      fill out motion form & questionnaire for counsel & reminded P again of 90 day
      limitation. P returned motion form on 5/6/81 (96 days after she received RTS ltr).
      Magistrate referred question of whether filing RTS letter constituted commencement
      of an action. District ct. held that it did NOT & held P forfeited her claim. Ct. of
      Apps. reversed, holind g filing of RTS ltr. “tolls” the time period. D appealed.

    c. HELD: The filing of RTS letter does not toll 90 day time period for filing
       charges in fed. ct. A civil action is commenced by filing a complaint w/ the ct.,
       which must contain, inter alia, a short & plain statement of the claim showing
       that the pleader is entitled to relief.
       1.) P was told 3X what she must do to preserve claim & did not do it. One who fails
           to act diligently cannot invoke equitable principles to excuse lack of diligence.

5. APPOINTMENT OF COUNSEL FOR TITLE VII CASES. § 706(f)(1).
   a. “Bradshaw Panels” (e.g. in Eastern District Ct. in Sac). Under VII, no money was
      apportioned for it. However, a bar has created special fund in fed. cts. to pay costs in
      advance for poor/indigent persons.
      1.) If you win, you pay back costs.
      2.) If you win, you get attorney‟s fees.
      3.) Expenditures must be pre-approved.

    b. Procedure.
       1.) File „Bradshaw‟ motion (from Bradshaw v. U.S. Dist. Ct. of S. Cal)(9th Cir. „84)
       2.) Must be poor/indigent.
       3.) Must have made reasonable efforts to get lawyer (pro bono); at least 2.
       4.) P‟s merits & likelihood of success.
       5.) Willing Attorney.



                                                                                                44
C. THE DATE OF DISCRIMINATION:
     When does the period for filing the charge begin to run?
                                 When does the cause of action accrue?


  1. RULE: Time limitation periods commence w/ the date of the alleged unlawful empl.
     practice & notification of that practice to the individual asserting the claim.

  2. ACCRUAL DATE/ COLLATERAL REVIEW DOES NOT TOLL. Delaware State
     College v. Ricks (1980).
     a. FACTS: Professor Ricks (P), a black Liberian, was untenured faculty member at D.
        On 3/13/74, D voted to deny him tenure & he filed grievance. On 6/26/74, D sent P
        letter offering him 1-yer. terminal K. D denied his grievance on 9/12/74. P filed
        complaint w/ EEOC on 4/75, shortly b/f end of terminal K. P received RTS letter, he
        filed charge alleging discrim. b/c of nat‟l origin. D‟s motion to dismiss P claims
        granted b/c did not file w/in 180 days of being offered terminal K. Ct. of Apps.
        reversed, holding that the time limitation began until end of terminal K on 6/30/75.

     b. HELD: Time limitation periods commence w/ the date of the alleged unlawful
        empl. practice & notification of that practice to the individual asserting the
        claim.
        1.) Here, the only alleged discrim. occurred- and the filing limitation periods
            therefore commenced- at the time the tenure decision was made and
            communicated to P in the 6/36/74 letter. That is so even though the eventual loss
            of the teaching position did not occur until later.
        2.) Moreover, the pendency of a grievance, or some other method of collateral
            review of an empl. decision, does not toll the running of the limitation periods
            which normally commence when the Er‟s decision is made. Reversed.

     c. Majority, here, requires P to start suing while still at work. The day he got the letter
        of tenure denial is the date to file (C/A accrues). That was the final decision by D.

     d. Must file w/in 180 days (but under FEHA is 300 days. Filing with state under
        FEHA will be timely for Title VII). Thus, you can file with state for both VII
        and FEHA within 300 days.

     e. CA LAW- Under FEHA, last day of work is when cause accrues. Romano v.
        Rockwell. CA Supreme Ct. rejects Ricks!

     f.   Labor Law- C/A accrues on last day of work. Chardon v. Fernandez (1981).



  3. CONTINUING VIOLATION EXCEPTION (here, Continual Hostile Environment).
     Galloway v. GM Service Parts Operations (7 TH Cir. 1996).
     a. RULE: Ps may not base sexual harassment suits on conduct occurring outside
         the S/L unless it constitutes actionable conduct recognizable only in the light of
         events that occurred later, w/in the statute period.




                                                                                               45
   b. FACTS: P and Bullock, coworkers for D, had a relationship that went sour. Bullock
      began making obscene comments to P in 1987. In late 1991, P filed sexual
      harassment complaint w/ EEOC. Trial ct. held that any alleged actions committed
      prior to 300 days BEFORE p filed complaint would be inadmissible due to the S/L.
      This decision left much of P‟s evidence inadmissible and ct. rule for D.

   c. HELD: Ps may not base sexual harassment suits on conduct occurring outside
      the S/L unless it constitutes actionable conduct recognizable only in the light of
      events that occurred later, w/in the statute period. Sexual harassment serious
      enough to constitute illegal discrim. is often a cumulative process rather than a
      one-time event. Thus, it is difficult to apply the S/L properly when cumulation
      of conduct is involved.
              Therefore, acts of harassment so discrete in time or circumstances that
      they do not reinforce each other cannot reasonable be linked together in a single
      chain. Additionally, where acts of harassment become actionable, a P has no
      excuse for waiting to file a complaint.

       1.) In the present case, the comments of Bullock seem to be the type of conduct that
           would not rise to the level of actionable conduct until they had a cumulative
           effect. Therefore, the trial ct. shouldn‟t have cut off P‟s evid. for S/L reasons.

       2.) However, the trial ct‟s ruling that Bullock‟s verbal conduct was based upon
           personal animosity rather than sex-based discrimination appears to be correct.


4. WHEN DOES CONTINUAL HOSTILE ENVIRONMENT ACCRUE?

   a. When it becomes severe & pervasive to be actionable. Encompass all prior vio‟s
      1.) For sex harassment, can bring suit for entire conduct at the point where a
          reasonable person would know it was sufficiently hostile for C/A to accrue.
      2.) Factors:
          a.) Same type of discrimination.
          b.) Frequency of recurring acts.
          c.) Degree of permanence.

   b. What evidence is allowed:
      1.) If she sues right away, then she can go all the way back to bring all evidence.
      2.) If severe & pervasive for a long period of time & has not sued, then only can
          bring evidence from last 300 days.

5. Hostile environment can last for years. But purpose of W/L is to have C/As filed
   while evidence is still fresh and allow D to respond to them.




                                                                                            46
D. THE EEOC CHARGE & SUBSEQUENT SUIT
  1. Generally.
     a. RULE: A P must first exhaust all EEOC remedies b/f proceeding to fed. dist. ct.

     b. EEOC offices in SF, SD, & LA. EEOC Regional Director (in SF) is Bill Tamayo (a
        King Hall alumnus).

     c. Relations between EEOC & subsequent suit:
        1.) Filing charge w/ EEOC
            a.) Weak w/ no legal effect.
            b.) EEOC can litigate & sue on behalf of Ees.
            c.) Enforcement § 706(b):
                    i.  Notice of charge to Er w/in 10 days after charge is filed.
                   ii.  Investigate & try to conciliate, but not required. If EEOC
                        investigates, P gets free access.
                  iii.  Dismiss & notify if charge is unreasonable.
        2.) Charge filed should support later suit.
            a.) Broad standard in most circuits.
                    i.   Sue for anything reasonably related to/grew out of charge (9th
                        Circuit).
                   ii.  Any possible investigation of charge.
            b.) Narrow standing in 7th Circuit.
                i. Like or related to claims firmly encompassed w/in charge.


  2. Clark v. Kraft Foods (5 th Cir. 1994)
     a. FACTS: In 12/88, P was fired from D b/c she reported incidents of sexual
        harassment & b/c of D‟s disparate treatment of women at work. P filed a complaint
        w/ the EEOC on sexual harassment & only mentioning disparate treatment. P then
        filed a VII complaint w/ the district ct on gender and disparate treatment, but not
        sexual harassment b/c it was time barred. D moved for SJ claiming the disparate
        treatment C/A was not brought before the EEOC and that P must exhaust all EEOC
        remedies b/f going to fed. ct. Ct. granted SJ for D.

     b. HELD: A P must file first exhaust all EEOC remedies b/f proceeding to fed. ct.
        Here, however, P did exhaust all EEOC remedies & therefore properly brought
        her action to the district ct. While the main thrust of her EEOC complaint was
        the sexual harassment issue, enough of her complaint indicated an issue of
        gender-based disparate treatment so as to cause the EEOC to investigate the
        issue. B/C the EEOC investigated both the sexual harassment issue and the disparate
        treatment issue, P had exhausted her EEOC remedies. SJ was improper.

     c. Lawsuit can be based much broader than the charge w/ EEOC. “Anything
        reasonably related to or growing out of the investigation.” (unless in 7 th Circuit.
        Note 3- “if fairly encompassed w/in the charge.”).
        1.) Issue is how P puts enough in initially complaint w/ EEOC so that lawyers can
            draft a complaint later w/ all the C/As in fed. ct.?
        2.) In most circuits, if charges tells story & EEOC can investigate broad patter, then
            can sue for anything under investigation.



                                                                                            47
   d. P can file a second charge. If further retaliation against P, then any subsequent
      charges will relate to the first complaint. If, however, P files only 1 claim when
      there was another, P may be precluded from filing that claim in fed. ct.

3. CONFIDENTIALITY. Under FLSA, P can remain confidential when filing a
   complaint w/ EEOC. Investigate/look at pay stubs for wage/hour violations. Under Title
   VII, no confidentiality!




                                                                                           48
E. RES JUDICATA EFFECTS
  1. GENERALLY. Res judicata & collateral estoppel for state ct. judgments.
     a. Res judicata (claim preclusion) would be given to state agency‟s decision.
     b. If merit hearing, then collateral estoppel (issue preclusion).
     c. Should join all C/A‟s w/ parallel & overlapping remedies if go on any hearing b/c
        could be precluded later.
     d. If were not party b/f, then can re-litigate.

  2. FINAL STATE JUDGEMENT, PRECLUDES TITLE VII CLAIM. Kremer v.
     Chemical Construction Corp. (1982).
     a. FACTS: P files complaint to EEOC & state agency (didn‟t have work share
        agreements w/ each other). P appeals finding of no probable cause of admin.
        decision. Ct. only overturns if arbitrary & capricious. State ct. said no prob. cause.
        P then sues under VII i.e. de novo. Fed. ct. dismissed on res judicata & affirmed.
     b. HELD: State ct. judgment under “full faith & credit” precludes claim under
        Title VII. Here, it was only investigation & no hearing on the merits, but USSC
        said it does not matter.

      c. If you go state agency, don‟t do anything b/c you can preserve your right to sue
         under Title VII. Once there is final state ct. judgment, then it precludes VII
         claim. If no final judgment by state ct., the n you still have VII claim.

      d. All claims under “same transaction or occurrence” must be filed all together
         and not piece mail.


  3. COMPULSORY ARBITRATION OF CIVIL RIGHTS CLAIMS
     a. Compulsory arbitration- sign agreements to arbitrate any claims.
     b. Can you sign away your rights to sue under VII? 9th Circuit said NO! Cannot be
        forced to sign rights away. Duffield v. Robertson Stephens & Co. (9th Cir. 1998)




                                                                                            49
REMEDIES
A. GENERALLY: § 706(g) & 1991(a)
   1. ABUSE OF DISCRETION STANDARD

  2. JUDGE V. JURY.
     a. Right to jury in legal damage cases.
        1.) Decide all fact & damages
        2.) Judge decides backpay.

  3. LEGAL
     a. Damages
        1.) Compensatory.
        2.) Punitive.
        3.) Cap on both for non-race discrimination.
            a.) Race damages can be from § 1981 so cap of $300K, if 500+ Ees.
     b. Only for disparate treatment (§ 1991(a))

  4. EQUITABLE
     a. MONETARY RELIEF:
        1.) Backpay:
            a.) Accrue not more than 2 yrs. prior to filing charge w/ EEOC.
            b.) Must look for work w/ reasonable diligence & subtract amount earned w/
                reasonable diligence interim from backpay.
            c.) Presume Ee entitled to backpay b/c purpose of VII to make people whole.
            d.) Deny only if:
                   i.     Not frustrate central purpose of Title VII AND
                  ii.     Ct articulates reasoning for denying.
            e.) Can calculate by tracking work history of those who were hired instead, but
                all in ct‟s discretion.
            f.) Toll Er‟s liability by offering P exact same job if it‟s:
                   i.     Unconditional offer so P not give up right to sue.
                  ii.     No specific circumstances where P not required to take job.
        2.) Fringe Benefits

     b. INJUNCTIVE RELIEF:
        1.) Cease & desist
        2.) Getting jobs back
            a.) Retroactive seniority
                   i.  Requests
                       - Show qualified then & now.
                       - Hired now.
                  ii.  Deny only if not generally frustrate central purpose of VII.
                 iii.  Date when discrim. & after charge is filed.
            b.) Reinstatement
                   i.  Can instate @ hire level w/o qualifications.
                  ii.  When Vacancy b/c can‟t bump innocent incumbents
                            Innocent if had jobs b/f liability.
                            Non-innocent if after liability & reinstatement order.
                 iii.  Bumping incumbents


                                                                                          50
                         Non-innocent can be bumped.
                         Professional job where limited # of vacancy, but rare.
             iv.   Can‟t reinstate + front pay.
              v.   Ct‟s different treatment of white collar v. blue.
                         Tendency to OK not going back to work for white collar if
                        personal animosity but not for blue collar.
        c.) Preferential hire list & front pay
               i.  If can‟t get reinstated & until actually getting a job.
              ii.  Same sort of calculation for front pay as back pay.
             iii.  P can‟t choose reinstatement v. preferential hire list.
        d.) After acquired evidence: Er affirmative defense for reinstate &
            preferential hire.
               i.  Ee would have been fired b/c Ee‟s wrong so severe.
              ii.  Then only do back pay up to time of wrongdoing.

c. ATTORNEY‟S FEES. §706(k).
   1.) Same as §1983. Ct in its discretion may allow prevailing party other than US.
       reasonable attorney‟s fee as part of cost.
   2.) Requirements:
       a.) Prevail on significant issue of case.
       b.) Determine fee by # of reasonable hours on issues prevailed on
   3.) Prevailing Party
       a.) If P, strong assumption.
       b.) If D, then get it if less than bad faith.
               i.   P‟s suit is unreasonable, frivolous, groundless, vex, …: OR
              ii.   P continued litigation after it was clear it was unreasonable, etc.

d. AFFIRMATIVE ACTION & HIRING PLANS: Executive Order 11246.
   1.) Program or plan considers race, gender, ethnicity, or nat‟l origin in decision.
       a.) Rarely given by courts.
   2.) Executive Order
       a.) People entering into K of $50K + w/ federal government;
       b.) Have 50 or more Ees.
       c.) Must have written affirmative action plan.
       d.) Applies only to employment.
       e.) Analyze work force & have utilization analysis. Compare Ees w/ qualified
           work force.
   3.) Beneficiary of affirmative action
       a.) Current documented underrepresented?
       b.) Qualified for job.
   4.) Requirement for affirmative action as reme dy: § 706(g)
       a.) Find persistent, egregious discrim. O‟Connor wants firm basis.
       b.) Narrowly tailored plan.
              i.   No trammel on whites, men, or non-veterans rights.
             ii.   Attempt to reach or attain goal, no maintain goal. Quota is illegal.
            iii.   Flexible & modified over time.

    5.) Voluntary race conscience affirmative plan. OK for manifest imbalance for
        traditionally segregated jobs b/c VII. Not disallowed.




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B. STEPS TO REMEDIES – BOTH CAN TAKE YEARS.
  1. LIABILITY PHASE-
     a. If race discrim., Title VII must be filed with § 1981 b/c this has unlimited damages
        unlike Title VII remedies. It is malpractice if you don‟t. (ON EXAM)! [Most 1981
        action are on sex discrim.]

  2. REMEDY PHASE- burden of proof shift to D i.e. burden of persuasion (that P is not
     entitled). P are presumed entitled to relief.


C. MONETARY RELIEF
  1. BACK PAY
     a. Generally. §706(g). Equitable relief. (in § 1981 actions, it is legal relief)
        1.) Derives from 1935- National Labor Relations Act (NLRA).
        2.) Includes fringe benefits, pre-judgment interest.
        3.) Includes seize & desist order.
        4.) Reinstatement w/ or w/o back pay OR any other equitable relief deemed
            appropriate.
        5.) Back pay- can go back for a maximum of 2 yrs. b/f filing complaint w/ EEOC.
        6.) Interim earnings shall operate to reduce the back pay.
            a.) P has to mitigate the back pay.
            b.) Must go and find a job- No couch potatoes!
            c.) If couch potato, then will be reduced by what P could have been earning had
                P been working.
        7.) Denial of promotion (is back pay)- entitled to difference of what P would have
            received if given higher position.
        8.) Unemployment or welfare are not deducted from back pay (n. 4, p. 695).


     b. BACKPAY, EVEN IF NOT DELIBERATE OR IN BAD FAITH.
        Albemarle Paper Co. v. Moody (1975).
        1.) FACTS: A class of black Ees (Ps) of D sued b/c of racial discrim. Initially, Ps
            did not seek back pay damages but later added that demand. At trial, ct. found
            that D had strictly segregated the lines of progression in the depart.s, which
            locked Ps into lower paying jobs. Ct. ordered D to change its seniority system.
            However, the ct. refused to award back pay b/c there was no evidence of bad-
            faith non-compliance. Also, D would be prejudiced b/c the demand was added
            late in the litigation.

         2.) HELD: Back pay should be awarded in Title VII actions even if the discrim.
             was neither deliberate nor in bad faith. Under VII, remedies are left to the
             discretion of the judge. However, although there are no mechanical rules,
             the purpose of VII- i.e. to make persons whole for injuries they have
             suffered as a result of empl. discrim.- must be honored.
             a.) Congress provided the whole range of discretionary powers in order to allow
                 for the most complete relief possible. Back pay has an obvious & direct
                 connection w/ this purpose b/c it makes the Ee whole while also providing a
                 disincentive to Ers.



                                                                                              52
       b.) Therefore, back should be awarded as a matter of course and not only when
           the discrim.. is found to be particularly egregious or deliberate. Reversed.

       c.) Denial of back pay- Back pay should be denied only for reason which, if
           applied generally, would not frustrate the central statutory purposes of
           eradicating discrim. throughout the economy & making persons whole for
           injuries suffered through past discrim. If is necessary, therefore, that if a
           district ct. does decline to award back pay, it carefully articulate the reasons.

   3.) EXCEPTION TO PAYING BACKPAY- One situation in which an Er is not
       responsible for back pay is when good-faith compliance w/ the law has created a
       Title VII violation. In Alaniz v. Cal. Processors (9th Cir. 1986), the Er did not
       assign women to certain jobs b/c of state law that prohibited hiring women for
       any position requiring heavy lifting. Therefore, Er was not liable for back pay.


c. Er CAN TOLL LIABILITY. EEOC v. Ford Motor Co (1982).
   1.) FACTS: In 1971, Ps applied for „picker-packer‟ jobs, but all were denied. All in
       positions were men. When women applied, secretary said, “We don‟t hire
       women.” P sued for sex discrim. Two were later offered job for 1 yr. in 1973,
       but w/ no seniority. Ps declined. Trial ct. awarded Ps back pay from 1971-1977
       (reduced by their wages). D appealed & said back pay should have been cut off.

   2.) HELD: Ers may toll the continuing accrual of back pay liability under VII
       by offering the claimant the job previously denied, w/o including retroactive
       seniority. The primary objective of VII is to bring empl. discrim. to an end.
       The rules implemented to achieve this objective encourage Ers to promptly
       make curative job offers, thereby bring about vol. compliance. If an Er
       must offer costly retroactive seniority to a P who has not yet proved discrim.
       in order to toll back pay liability, there is less incentive to hire the claimant.

       a.) Therefore, absent special circumstances, Title VII claimant have an
           obligation to accept an unconditional offer of the job originally sought to
           preserve the right to back pay.
       b.) P‟s back pay is cut off in 1973 when they were offered job by D.
              i.   Here Er offered job w/ no seniority b/c don‟t want those persons who
                   sued nt heir workplace. Let company off the hook w/ the call.
                   Nothing offered was in writing.
             ii.   No retroactive seniority w/ job offer- would have been unacceptable
                   under NLRB cases.
            iii.   Innocent 3rd parties- if P gets retroactive seniority, it will hurt
                   innocent 3rd parties/employees (male workers here).

   3.) RULE: An offer of Er of same or substantially equivalent job tolls back pay
       liability.

   4.) Special circumstances- told if you take job, P may be subject to sexual
       harassment. This may be case of special circumstances (as held in 4th Circuit
       case).




                                                                                          53
       5.) Damages in Mixed Motive Cases (p. 702, n. 1). Even if liable, Er can escape
           some kinds of relief. Er must prove by a preponderance of the evidence that it
           would have taken the same action absent the discrim. motivation b/c P was less
           qualified. No back pay or reinstatement, but attorney‟s fees.

       6.) Pro-rata Share- 20 people denied for 1 position. The 1 position was divided by
           all the Ps.


2. DAMAGES
   a. Generally.
      1.) Compensatory v. Punitive damages . Damages are under 42 USC § 1981A(b)
          (added in 1991).
      2.) Legal relief- so now you have a right to a jury! §1981A(c).
      3.) Compensatory damages: Front pay, emotional pain, suffering, inconvenience,
          mental anguish, loss of enjoyment of life, and other non-pecuniary losses. Does
          NOT include backpay or interest on backpay (can get under equitable relief §
          706(g), not legal section).
      4.) Punitive damages- if P demonstrates that the Er engaged in discrim. w/ malice
          or w/ reckless indifference to the fed. protected right of P. MUST PROVE
          INTENT!
      5.) Caps on Punies only!- top is $300,000 (in addition to compensatory & equitable
          relief). Since 1991, there movement to remove caps. See below.
          a.) 100 or less workers- cap is $50,000
          b.) 101-200 workers- cap is $100,000.
          c.) 200-500 workers- cap is $200,000.
          d.) 500+ workers- cap is $300,000.

   b. PREJUDGEMENT INTEREST FOR BACKPAY GENERALLY.
      Williamson v. Handy Button Machine Co. (7 th Circuit 1987).
      1.) FACTS: P worked for D as an unskilled entry-level worker from 1968-1977.
          During these 9 yrs, she continually replied for higher-level position that she was
          qualified for but whites w/ less seniority always got. In 1975, P was demoted to
          a shitty job during slowdown & never returned to her regular position as she was
          supposed to be under collective-bargaining agreement. This discrim. cause P to
          supper severe depression. While incapacitated, P was fired. P sued under § 1981
          & VII for race discrim. In 1976, jury awarded P $130,000 in punitive damages
          and also damages for emotional pain. P request that the ct. add prejudgment
          interest to the back pay award, but ct. refused. D appealed.

       2.) HELD: Prejudgment interest must be an ordinary part of any award of
           back pay under § 1981. The ct. has no discretion to deny prejudgment
           interest b/c it does not approve of the jury‟s award. Fed. law requires the
           addition of prejudgement interest in order to ensure that awards are fully
           compensatory. Money in the present is not a full substitute for the same
           sum that should have been paid years ago. Therefore, prejudgement
           interest is an ordinary part of back pay awards under § 1981.
           a.) However, where the size of the jury‟s awards appears to have compensated
               the P for the time value of money, prejudgment interest may be denied.
               Also, if is only available for back pay that is reasonably certain.



                                                                                            54
       b.) In this case, the jury awrd of $130K in back & front pay to P did not fully
           compensate her b/c it did not include prejudgment interest. The jury award
           was not too high b/c basic computation of P‟s lost salary from her firing in
           1977 to the trial in 1986, along w/ lost pension rights, support an award of
           $250,000.
       c.) This amount involves some portion of front pay, on which prejudgment
           interest is not required. Prejudgment interest only on back pay!

   3.) Title VII remedies are available only when the party is unable to recover
       under § 1981.


c. AWARDING COMPENSATORY & PUNITIVE DAMAGES.
   Patterson v. PHP Healthcare (5 th Cir. 1996).
   1.) FACTS: Brown (P2), a black male, & Patterson (P1), a white female, both
       worked for PHP (D1) under supervision of Kennedy (D2). P2 was a mental
       health technician & P1 was the head nurse. During their employmt under D2, P1
       witnessed D1 use racial slurs against blacks & developed discrim. policies based
       on race. P1 refused to follow D2‟s instructions not to hire any more blacks &
       was fired. After P1 filed claim w/ the TX Empl. Comm., D2 backdated a
       document claiming that P1 had been reprimanded in the past. P2 also suffered
       under D2. D2 also falsified documents that P2 had been reprimanded frequently.
       P2 resigned & later tried to rescind when told things would improve by a D1 rep.
       D2 fired him anyway. Both P1 & P2 sued both Ds. P2 sued per §1981 and P1
       asserted retaliation per VII. District ct. awarded both lost income, P2 $40K in
       emotional damages, & $150 in punitive. P1 awarded $150K in emotional
       damage & $150 in punitive damages. Ds appealed.

   2.) HELD: In tailored circumstances, punitive damages & emotional distress
       damages are recoverable in VII & 1981 cases. Here, however, the awards of
       emotional damage & punitive damages under §1981 & VII were clearly
       erroneous. In order to receive emotional harm damages under both
       statutes, there must be a sufficient causal connection demonstrated by the
       evidence between some actual harm & the statutory violation.
       a.) More than just the P‟s testimony is needed. Here, Ps did not provide the
           necessary evidence to allow for more than nominal damages.
       b.) As for the punitive damage awards, both VII & 1981 requires willful &
           malicious acts by the D. As for D2 behavior against P2, the evidence is
           sufficient to award punitive damages, but the $150 is excessive. As for D1
           punitive damages that was awarded to P1, the only direct acts of malice were
           committed by D2.
       c.) An Er can only be hit w/ punies on an agency theory if there were active
           malice or a reckless disregard by D1. Here, there‟s no such action by D1.
       d.) Therefore the decision of culpability is affirmed. The emotional distress
           damage is reversed & remanded to reflect nominal damages for P1 & Pw. P2
           punitive award against D2 is vacated and remanded to amount not excessive.
           P2 & P2 punitive awarded against D1 is reversed.

   3.) NOTES: Ps could have called medical experts & family members, but failed to
       do so. Needed more evidence to corroborate in 5th Circuit. Also, D1 did not act
       w/ reckless disregard. Did not have knowledge.


                                                                                          55
      d. PUNITIVE DAMAGES REQUIRE “MALICE W/ RECKLESS DISREGARD”
         +MUST BE MANAGERIAL CAPACITY. Kolstad v. Am. Dental Assoc. (1999).
         1.) FACTS: DC Circuit held that P must show D‟s egregious conduct to get punitive
             damages.
         2.) HELD: “Egregious misconduct” is not the standard. Intention behavior
             violates VII, but punies require more than intent. Must be malice w/ intent.
             Need malice w/ reckless disregard. Person discriminating has to be in
             managerial capacity to subject Er to liability (unless they are making good
             faith efforts to comply w/ Title VII).



D. INJUNCTIVE RELIEF
  1. REINSTATEMENT. Locke v. Kansas City Power & Light Co. (8 th Cir. 1981).
     a. FACTS: P was hired as a temp by D in 1976. While employed, P applied for perm.
        position. D returned the application, indicating that it did not accept application from
        temps until their stint had ended. However, D hired 3 white male temps for the perm.
        positions that P applied for. P sued and D claimed P was not hired b/c of poor work
        performance. The trial ct., however, found that this explanation was not credible &
        ruled for P. The ct. ordered P was entitled to the position sought (that the white Ees
        already had), & would not have to undergo the normal probationary period.

      b. HELD: A ct. may order a promotion when the discrim. victim has
         demonstrated the skills or other qualification required for the higher level job.
         Under VII, a ct. may order a promotion to a higher position than entry level
         under certain circumstances.

          1.) Traditionally, job-skipping has been ordered when discrimination victims have
              been grouped into lower-level jobs & there is no business necessity for a
              prerequisite to higher level job. Thus, cts. have discretion to order promotion
              where there is a specific finding that the discrimination victim has the particular
              skills or qualifications which are necessary to the job & that the promotion would
              ordinarily follow from good performance at the entry-level job originally sough.

          2.) Probationary periods are allowable if they are imposed for valid business
              purposes & are not a pretext for further discrimination.

          3.) On remand, trial ct. should make a specific finding regarding P‟s qualification for
              the job and should require P to serve the probation period while retaining jdx to
              insure the subsequent employment decisions are not tainted by discrim.

      c. NOTE: In some cases where a discrim. victim is denied an entry-level job in a line
         of progression at a company & instead works in another position for higher pay, but
         w/o any chance of promotion, court sometimes require that the person be given the
         entry-level job at the Ee‟s current wage rate until he progresses to the higher rate.
         Grann v. City of Madison (7th Cir. 1984). Another option suggested in Locke, is to
         pay an entry-level Ee the wage rate of the higher job.



                                                                                               56
   d. Limits on Reinstatement. McKennon v. Nashville Banner Pub. Co. (1995).
      1.) FACTS: P had worked for D for 30 yrs. b/f being discharged at the age of 62. P
          claimed that her age was the reason. P sued under ADEA & sought both legal &
          equitable relief, including backpay. In discovery, P admitted that she had copied
          several confidential documents about D‟s financial condition. D claimed that
          removing confidential documents was grounds for dismissal & precluded relief
          under the ADEA. District ct. granted SJ for D. District ct. held the P‟s
          misconduct was grounds for termination. 6th affirmed on the same grounds.

       2.) HELD: After-acquired evidence of wrongdoing that would have resulted in
           discharge does not preclude Ees from relief under the ADEA. The ADEA
           reflects a societal condemnation of invidious bias in empl. decisions. The
           objective of the ADEA & similar statutes is to eliminate discrim. in the
           workplace. Included in that objective are deterrence & compensation for
           injuries.

           a.) The ADEA allows an injured Ee a right of action to obtain the authorized
               relief. When an injured Ee seeks redress, that Ee vindicates both the
               deterrence and compensation objective of the ADEA.

           b.) While the “unclean hands” defense may bar some forms of equitable relief,
               that defense does not bar relief when a private suit serves an important public
               purpose. In this case, the awarding of backpay is the appropriate remedy.
               The calculating of backpay shall commence from the date of wrongful
               termination to the date the new information was discovered.

       3.) NOTE: An Er may not use after-acquired evidence unless it can establish that he
           wrongdoing was of such severity that the Ee in fact would have been terminated
           on those grounds alone. Similarly, in cases of “resume fraud,” the Er probably
           must show that the false information on which the Ee was hired would be ground
           for dismissal in and of itself. In other words, whether an Ee would have been
           hired on the correct qualification rather than on the fraudulent one is irrelevant.
           The inquiry is whether, upon discovery of the resume fraud, the Ee would have
           been terminated b/c of it.


2. RETROACTIVE SENIORITY [we skipped this section].




                                                                                            57
E. ATTORNY‟S FEES
   1. Generally.
      a. Same as 42 USC § 1988. Ct. in its discretion may allow prevailing party other than
         US reasonable attorney‟s fee as part of cost.
      b. Requirements:
         1.) Prevail on significant issue of case.
         2.) Determine fee by # of reasonable hours on issues prevailed on.
      c. Prevailing party:
         1.) P‟s suit is unreasonable, frivolous, groundless, vex; OR
         2.) P continued to litigate after it was clear it was unreasonable, etc.

   2. ATTORNEY‟S FEES ONLY ON PREVAILING ISSUES. Hensley v. Eckerhart
      (1983)
      a. FACTS: P brought class action challenging various conditions at hospital (D). Some
          claims were settled b/f trial, & other Ps continued to litigate. At trial, the Ps obtained
          a portion of the relief that they sought. The trial ct. awarded the P‟s attorney‟s fees
          pursuant § 1988. D appealed, contending that fees should not be awarded for time
          that the attorney‟s spend on claims that were unsuccessful.

       b. HELD: A partially prevailing P is entitled to attorney fees as long as the ct.
          considers the relationship bet. the extent of the success & the amount of the fee
          award. The Civil Right Attorney‟s Fee Awards Act of 1976, § 1988, authorizes
          the award of attorney fees to prevailing parties in civil rights litigation.
          1.) The most useful starting point for determining the attorney fee award is to
              multiply the number of hrs. reasonably expended by a reasonable hourly rate.
          2.) Where the lawsuit involves distinctly different claims, work on unsuccessful
              claims cannot be deemed to have expended in pursuit of the result achieved.
          3.) However, when the claims involve a common core of facts, the ct. should focus
              on the significance of the overall relief obtained in relation to time expended.
              The most critical factor is the degree of success obtained.
          4.) The trial ct. awarded the Ps attorney‟s fees w/o a clear explanation that the
              award reflected the relationship between the extent of success and the amount of
              the fee award. Therefore, the case is remanded for determination based upon the
              standards enunciated in this decision.
       c. CONCURRANCE: The party seeking payment under § 1988 must keep records
          in sufficient detail to enable a neutral judge to make a fair evaluation of the time
          expended and the need of the service.

       d. NOTE: Section 1988 is identical to § 706(k) of VII. There remains some
          disagreement in the lower cts. a to when a party should be considered to have
          “prevailed.” Some cts. require that the party win the central issue of the case.

   3. DEFENDANTS ONLY ENTITLED TO ATTORNEY‟S FEES WHEN C/A IS
      FRIVOLOUS W/O FOUNDATION. Christianburg Garment Co. v. EEOC (1988).
      a. FACTS: Helm filed charge w/ EEOC (P) in „68 against D for race discrim. In 1970,
         EEOC informed P that conciliation efforts had failed & issued him a right-to-sue ltr.
         Helm did not file an individual action. In 1972, an amendment to VII allowed EEOC
         to prosecute charges pending w/ EEOC. EEOC then filed suit against D. Trial ct.
         ruled that Helm‟s charges had not been pending b/f the EEOC at the time of the 1972
         amendment & granted SJ for D. D petitioned for attorney‟s fees pursuant § 705(k).



                                                                                                  58
    Trial ct. denied award b/c EEOC action was not meritless or unreasonable. Ct. of
    Apps. affirmed and D appealed.

b. HELD: Prevailing Ds are entitled to attorney fee award only when the P brings
   a frivolous action w/o foundation. § 706(k) allows ct‟s discretion to award
   attorney fees to the prevailing party.
   1.) A prevailing party is ordinarily awarded these fees in all but special
        circumstances in order to advance the policies underlying VII. Ps are the
        instrument chosen by Congress to vindicate the high priority policy of ending
        empl. discrim. Additionally, awards to prevailing Ps come at the expense of
        violators of fed. law. These equitable considerations are not present of prevailing
        Ds.
   2.) Furthermore, the leg. history of the attorney fee provision indicates that Congress
        sought only to discourage frivolous & unjustified lawsuits in allowing prevailing
        Ds to recover attorney‟s fees. Therefore, prevailing Ds in VII actions may
        recover attorney fees only when the litigation has no legal or factual basis.

c. NOTE: Here, Er seeking a fee award does not have to prove that the P actually acted
   in bad faith in bringing suit. Some courts have ruled that an Ee‟s private action after
   the EEOC has determined there is no probable cause for discrimination is not
   necessarily frivolous. Eichman v. Linden & Sons (7th Cir. 1985).




                                                                                         59
F. AFFIRMATIVE ACTION.
  1. Generally:
     a. Three sources of law- (in empl., it is still on by a thread. But see Hi Wire Voltage).
         1.) U.S. Constitution. 14th Amendment – Equal Protection
         2.) Title VII- if violation, as a remedy to install affirm. action plan.
         3.) Executive Order 11246. (30% of Ees are covered in the U.S. by this)
             a.) Any employer who gets $50K in fed. money & more than 50 Ees.
             b.) Require bi-yearly reports.
             c.) Remedy is fed. funds are withdrawn.

      b. Affirmative Action – History.
         1.) As a remedy in Title VII & Executive Order 11246.
         2.) But later “affirmative action” took on a different meaning. It is any plan or
             policy where you take race or gender into account as a plus factor. It is a
             preference.
         3.) It employment, it arises in to contexts:
             a.) As a remedy.
             b.) As a voluntary plan.
         4.) Bakke (1978). First case on affirmative action.
             a.) J. Powell- applied strict scrutiny (b/c of race classification are suspect class)
                 and need compelling gov‟tl interest. 1st amend. + free speech.
             b.) Diversity as a “robust exchange of ideas (variety of viewpoints).
             c.) Race is a plus factor, but no quotas.
         5.) Proposition 209 – in California (1996).
         6.) San Jose case (Hi Wire Voltage v. City of San Jose, 2000) was pending, but now
             decided. Affirmative action is the issue and CA Supreme Court, just a few days
             ago, held that special outreach plan to minorities businesses for city contracts
             violate Proposition 209. This decision sucks, is badly decided & written!!!

  2. AS A COURT-ORDERED REMEDY. Local 28 Sheetmetal Workers v. EEOC
     (1986).
     a. FACTS: In 1964, NY State Comm. for Human Rights found that Local 28 (D) had
         excluded blacks from membership & from participating in its apprenticeship program
         in violation of NY law. D was ordered to cease & desist it racially discrim. practices.
         In 1971, after D failed to comply w/ state ct. orders, the EEOC (P) sued under VII &
         the Commission intervened. In 1975, district ct. found D violated VII & NY law. Ct.
         ordered D to stop its discrim practices & ordered D to achieve a 29% non-white
         membership by 7/1/81. District ct. after appeal & remand, revised the affirm. action
         program & gave D an extra year to comply. D failed to comply twice in 1982 & ‟83
         & was held in contempt. District ct. imposed a fine to be placed in a special fund for
         recruiting nonwhite members, amended the revised affirm. action plan to have a
         29.23% minority membership by 8/31/87. D appealed the contempt order, the fund,
         and the plan (saying the plan violates §706(g)). Ct. of Apps. affirmed. D appealed.

      b. HELD: As a remedy for past violations of VII, a ct. may order preferential
         relief benefiting individuals who are not the actual victims of discrim. § 706
         permits the ct. to award “appropriate” equitable relief to remedy unlawful
         discrim.




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      1.) The last sentence of § 706 prohibits a ct. from ordering a union to admit an
          individual who has been denied empl. “for any reason other than discrim.” The
          provision does not, however, limit the ct. to ordering relief only for the actual
          victims of past discrim. It applies only to the situation where a P alleges
          discrim., but the union or Er can show that a particular individual was otherwise
          unqualified.
      2.) Furthermore, affirmative race-conscious relief furthers the broad purposes of VII.
          Leg. history shows that Congress did not intend to prohibit cts. from ordering
          affim. Action in appropriate circumstances.
      3.) However, a ct. should exercise its discretion w/ an eye toward Congress‟s
          concern that such measures not be used simply to create a balanced work force.
          In this case, the membership goal & fund order were necessary to measure D‟s
          compliance, rather than as a strict racial quota.

  c. “Sufficiently Narrowly Tailored” Remedial Plan. U.S. v. Paradise (1987).
     1.) FACTS: Trial ct. found that AL Public Safety Dept. (D) had committed an
         egregious violation of 14th Amend. by systematically excluding blacks from
         trooper positions over period of 4 decades. As a result, trial ct. issued order
         requiring D to hire one black trooper for each white trooper hired until blacks
         made up 35% of the force.

      2.) HELD: USSC upheld the one -for-one promotion & hiring policy. It
          withstood strict scrutiny since it was narrowly tailored to serve the
          compelling gov‟tl purpose of remedying the D‟s unconstitutionally
          “pervasive, systematic &obstinate” discriminatory conduct. Looked at five
          factors to decide if the remedy was sufficiently “narrowly tailored.”
          a.) The necessity of such relief;
          b.) The efficacy of alternative remedy;
          c.) The flexibility & durability of the remedy (including the availability of
              waiver provisions);
          d.) The relationship of the numerical goals to the labor market; AND
          e.) The extent of the impact of the relief on the right of 3 rd parties.


3. UNDER VOLUNTARY PLANS:

  a. VOLUNTARY AFFIRM. ACTION PLANS OK TO ELIM. RACIAL
     IMBALANCE IN TRADITIONALLY SEGREGATED JOB CATEGORIES.
     United Steelworkers of America v. Weber (1979). Private Sector.
     1.) FACTS: Ds entered into collective bargaining agreement that contained &
         affirm. action plan designed to eliminate racial imbalances in D2‟s workforce.
         Hiring goals for blacks were set for each D2 plant, and an on-the-job training
         program was established to each both white & black unskilled D2 production
         workers. The plan was to reserve 50% of the openings in the training program
         for black Ees until the percentage of black skilled craftworkers at D2
         approximated the % of blacks in the local labor force. IN 1974, the first year of
         operation, black Ees selected for the training program had less seniority than
         white Ees who were rejected. P, a white rejected Ee, sued on behalf of class
         contending the at the affirm. action program violated VII. District ct. ruled for P.
         2nd Circuit affirmed. D‟s appealed.



                                                                                           61
   2.) HELD: Title VII does not prohibit private Ers from voluntarily enacting
       affirm. action policies to elim. manifest racial imbalances in traditionally
       segregated job categories.
       a.) First of all, since D‟s plan does not involve state action, the Equal Protection
            C. is not implicated.
       b.) VII, however, prohibits private Ers from discriminating in empl. decision
            based on race. Congress‟ primary purpose in enacting VII was to prevent
            discrim against blacks. Congress intended that VII would spur voluntary
            programs to eliminate discrim. against blacks but did not intent to prohibit
            voluntary affirm. action efforts.
       c.) The language of VII also indicates that it does not “require” Ers to give
            preferential treatment based on race. This suggest that Ers are permitted to
            voluntarily undertake affirm. action policies where there is a traditional
            pattern of segregation.
       d.) Temporary measures that simply eliminate a manifest racial imbalance do
            not violate VII. D‟s affirm action policy for its training program was
            designed to operate until the racial imbalance was corrected. Thus, it is a
            temporary measure that doesn‟t unnecessarily infringe on rights of white Ees.
       e.) Therefore, D‟s plan is w/in the discretion allowed under VII permitting Ers to
            use racial classification favoring blacks.


   3.) What you need for an “affirmative action order”:

       a.) Adequate Finding of discrimination:
             i.  Persistent (ct. order language). Fact pattern where there is a
                 history of persistent & egregious discrimination.
            ii.  Manifest imbalance in a traditionally segregated job sector (vol.
                 plan language).

       b.) Remedy must be narrowly tailored.
              i.    Temporary (Weber)
             ii.    Modifiable/ flexible (Weber)
            iii.    Does not trammel on rights of majority (Weber).
                 [NO QUOTAS, BUT GOALS ARE OKAY!]


b. Gender/ Public Sector Case. Johnson v. Transportation Agency (1987).
   1.) FACTS: There were 238 skilled jobs & 0% were women. Gender-based affirm.
       action plan stated that by 1982, 6% of skilled worker should be women. P sued
       & D argued they had affirm. action plan.
   2.) HELD: P was to prove affirm. action plan was a pretext & thus not valid.
       Here, it was held to be valid.




                                                                                        62
THE RECONSTRUCTION CIVIL RIGHTS ACT.
42 USC §§ 1981 & 1983.

A. THE CIVIL RIGHTS ACT OF 1866 – § 1981.
  1. GENERALLY
     a. All persons shall have same right to make and enforce contract. Includes
        making, performing, modifying, & terminating contracts.
     b. Prohibits race discrimination. Race in any identifiable ethnic group/separate
        group/family.
     c. No administrative prerequisites (such as filing w/ EEOC)

     d. ELEMENTS
        1.) APPLIES TO PRIVATE & PUBLIC Ers. § 1981(c). No minimum number of
            Ees required (unlike VII which is 15+ Ees or FEHA which is 5+ Ees).
        2.) ONLY FOR “RACE” OR “RACE-LIKE.”
            a.) Does not cover sex! (Bobo v. ITT, 5th Cir. 1981)
            b.) No difference in discrim. for race or nat‟l origin in § 1981 (n. 2, p. 856).
        3.) MUST PROVE INTENT.

     e. Unlimited damages (unlike caps in Title VII). Except cap for public Ers.
     f. Based on facts. Can be argued either way. No hard fast rules.
     g. Covers only systematic disparate treatment and disparate treatment. Does not
        cover disparate impact!!!
     h. Use state tort S/L (for 1981 & 1983) which is one year.
     i. Retaliation Provision


  2. History
     a. 1968- Originally applied to private parties.
     b. 1975 – Johnson v. RAV Express
     c. “Race” includes white citizen.
     d. 1989- Patterson v. McLean Credit Union. Language in 1981, only applied to forming
         K and not breach of K. This was target of 1991 Amend. (paragraphs (b) & (c)).




                                                                                          63
B. THE CIVIL RIGHTS ACT OF 1871 - § 1983.
    1. GENERALLY
       a. All persons under color of law causes any citizen to be deprived of rights. Requires
          state action (not private).
       b. Cause of action for any discrimination under equal protection. Covers gender
          discrimination.
       c. Jurisdiction to sue in fed. ct. – Jurisdictional only.
       d. Law do not include Title VII.

    2. ELEMENTS
       a. Must have state action.
       b. Covers race & sex.
       c. Must prove intent.
       d. Jurisdictional only.
       e. No administrative prerequisite for 1981 or 1983 (such as filing w/ EEOC).
       f. Use state tort S/L (for 1981 & 1983), which is 1 year.
       g. Unlimited tort damages!



C. PROCEDURE & REMEDIES UNDER §§ 1981, 1983.
   1. File directly with fed. court.
   2. S/L. State residual tort S/L (so 1 yr. in Califas to file in ct.)
   3. Notice of claim when you sue state agencies.



D. REMEDIES
   1. Unlimited Damages.

    2. Punitive Damages
       a. Need more than intentional discrim.
       b. In CA, must prove
          1.) Oppression;
          2.) Fraud;
          3.) Malice; or
          4.) Reckless disregard.

    3. Compensatory damages. Evidence through experts to prove emotional distress.

    4. No double recover. If file Title VII & 1981 or 1983 together, then P can‟t get VII
       damages b/c P gets unlimited 1981 damages.




                                                                                             64
THE EQUAL PAY ACT (EPA) of 1963

A. GENERALLY
   1. Was enacted as part of the Fair Labor Standard Act in 1963. FLSA § 206(d). It
      applies to Ers who are engaged in interstate commerce or in the production of goods for
      commerce. Problem is that you need men & women doing the same thing. If they have
      totally separated job categories, then no C/A.

   2. No administrative prerequisites (no need to go the EEOC), but you can go to EEOC
      if you want to.

   3. ELEMENTS: [Narrower Fact Pattern Than Title VII].
      a. PFC
         1.) Substantially equal jobs. Done by men & women.
             a.) Skill
             b.) Effort
             c.) Responsibility
             d.) Similar working conditions.
             e.) Have at least 1 man doing substantially equal job as women for comparison.
                 Look at actual job, not job titles.
         2.) Unequal Pay.
             a.) Pay related to wages e.g. salary & fringe benefits.
             b.) No intent is required [huge advantage!!!].
             c.) Cts. cannot compare the wage rates of dissimilar jobs.

       b. Er‟s Defenses
          1.) Rebut PFC- e.g. they are paying the same or not substantially equal jobs.
          2.) Affirmative Defenses:
              a.) Bona fide seniority.
              b.) Bona fide merit system.
              c.) Production rate system. OR
              d.) Any other factor other than sex (prior education, experience, etc).

   4. STATUTE OF LIMITATIONS.
      a. Is normally 2 yrs. (for negligent)
      b. If willful, then it is 3 years.

   5. REMEDIES
      a. DOUBLE BACK PAY (LIQUIDATED DAMAGES).
         1.) Wage + amount equal to liquidated damages (double pay).
             a.) Includes fringe benefits (e.g. dry cleaning benefits, hotel rooms, etc. Er must
                 pay difference).
         2.) Statute of limitations controls back pay.
             a.) 2 yrs for ordinary. (2 yrs. back pay + liquidated damages = 4 yrs. pay).
             b.) 3 yrs. for willful. (3 yrs. back pay + liquidated damages = 6 yrs pay).
         3.) Every payday is new violation & an accrual of the C/A.
       b. REASONABLE ATTORNEY‟S FEES & COSTS. Mandatory only 4 prevailing P.

       c. Cannot lower men‟s wages to equalize. Can only increase women‟s.


                                                                                              65
B. THE MEANING OF “EQUAL WORK.” Brennan v. Prince William Hospital (4 th „74).
   1. FACTS: D employed 5-10 orderlies & 30-40 women nurses‟ aides bet. 1969-1974. D
      hired only men as orderlies & only women as nurse‟s aides. The jobs both involved
      similar duties. Hiring criteria for both were identical for experience & ed. D paid
      orderlies more than nurse‟s aides. Secretary of Labor Brennan (P) sued to force D to
      equalize the pay for both jobs. District. ct. dismissed, ruling that P had not est.
      substantially equal work b/c orderlies did extra tasks. P appealed.

   2. HELD: The Equal Pay Act requires that work which involves substantial equality
      of skill, effort, and responsibility be compensated equally. EPA must be applied to
      each factual situation on a case-by-case basis. Extra tasks may not be the basis for a
      difference insubstantial equality if they consume only a minimal amount of time &
      have peripheral importance.

       a. Although D claims that heavy lifting by the orderlies involved additional skill &
          effort, strength is not a fact in hiring practices. Small men may be hired as orderlies,
          & large, strong women were hired as nurse‟s aides. Lifting was required by both
          jobs, &, in a hospital survey of activities, orderlies did so only slightly more often
          than the aides. The orderly position only required a minimal amount of extra skill &
          responsibility.

       b. The basic routine task of the aides & orderlies were equal. The slight variation do
          not affect the substantial equality of the overall skill, effort, & responsibility required.


C. Er DEFENSES- “FACTORS OTHER THAN SEX.” Kouba v. Allstate Ins. (9 th Cir. „82)
   1. FACTS: D had a policy of using an agent‟s prior salary as a factor in computing the
      minimum salary guaranteed to a new sales agent. This practice resulted in female agents
      making less than male agents. Ps argued that the use of prior salary constituted unlawful
      sex discrim. D said prior salary was a “factor other than sex” w/in the exception to the
      EPA (by the Bennett Amendment). District ct. granted SJ for P, concluding that D had
      oto presented evidence to rebut the PFC. D appealed. Unfortunately totaled

   2. HELD: An Er may not use a factor that causes a wage differential between male &
      female Ees absent an acceptable business reason. The EPA does not prohibit the use
      of prior salary to set wages. The Er must, however, use the factor reasonably in
      light of the Er‟s state purpose as well as its other practices. Here, D has asserted
      that it used prior salary as a sales incentive & as a prediction of potential
      performance. On remand, the ct. must evaluate the reasonableness of these business
      reasons in order to determine whether the EPA has been violated. Reversed.

   3. Factors other than sex
      a. Can be prior education, experience, training, etc.
      b. Here, prior salary was not good enough!
      c. Cannot be a woman‟s willingness to accept lower pay.
      d. “Market rate defense” is an open question.

   4. This case settled on remand for $5million (for 3,300 women = each only got $1,515). It
      was a huge class action. Thus it was filed under Title VII & EPA b/c this allows for a
      “true class action.”



                                                                                                   66
D. THE RELATIONSHIP BETWEEN TITLE VII & THE EQUAL PAY ACT.


  1. “COMPARABLE WORTH.”

      a. GENERALLY
         1.) If jobs are not equal, but comparable (good in job rating system), then they
             should get same pay (if you have same points).
         2.) Title VII opens up job opportunities for women, but by late 1970‟s & 80‟s, jobs
             remained sex segregated.
             a.) 1972- women in clerical, sales, service are 64%. ($.59 differential to men).
             b.) 1993- women in clerical, sales, service are 59% ($.74 differential to men).
             c.) Women lawyers wanted to bring back “comparable worth” theory in late
                  1970‟s as a way to pay women more even though they still remained in these
                  professions.
         3.) Leviticus- 50/30 pieces of silver value (West‟s joke about value of women going
             back to biblical days).


      b. STRUCTURE:

          1.) Comparable Worth
              a.) Compare different jobs by looking at job evaluation system & pay equal for
                  equal points.
              b.) Rejected for EPA & Title VII.
              c.) Only successful in
                     i.   Collective bargaining in public sector.
                    ii.   Political success in some states.

          2.) Title VII broader for sex discrimination for pay claim.
              a.) Bennett Amendment only incorporated Er‟s defenses of EPA into Title VII,
                   not all EPA.
              b.) Title VII not need
                      i.    Substantially equal work
                     ii.    Mane to compare with.
              c.) But limited to disparate treatment cases



  2. Co. of Washington v. Gunther (1981).
     a. FACTS: Ps were responsible for guarding the female prisoners & carrying out other
        clerical function in the county jail. D eliminated the female section for the jail &
        discharged the female guards (Ps). Ps sought back pay & other relief under VII. The
        ct, finding that the male guards supervised more than 10 X as many prisoners as the
        Ps & that Ps jobs were not substantially equal to those of the male guards, denied
        their claim for equal pay. Also, the ct. dismissed their allegation that the discrepancy
        in pay was due in part to intentional sex discrim, holding as a matter of law that a
        sex-based wage discrim. claim that does not satisfy the equal work standard of the
        EPA cannot be brought under VII. The Ct. of Apps. reversed & remanded on the
        second issue. USSC granted cert.



                                                                                              67
b. HELD: A claim of discrim. is not barred by § 703(h) of VII by the mere fact
   that a female Ee does not perform work equal to a male Ee. § 703(h), the so-
   called Bennett Amendment, only permits an Er to discriminate on the basis of
   sex if he can prove one of the four affirmative defenses contained in the EPA.
   Only wage differentials attributable to those four defenses (i.e. seniority, merit,
   production, or a “factor other than sex.”) are authorized by the EPA, w/in the
   meaning of the Bennett Amendment.

    1.)    § 703(h) does not, however, incorporate the EPA‟s restriction to cases involving
          equal work, as the D contends. Thus, a claim for sex-based wage discrim. can be
          brought under VII even though no member of the opposite sex holds an equal but
          high-paying job. P has brought such a claim and it is not barred by § 703(h)
          merely b/c she did not perform work equal to that of the male guards.

    2.) USSC said this is not a “comparable worth” case. “Comparable worth” wouls
        ask the court to do subjective evaluation of the job and not of the pay. USSC
        refusal to consider comparable worth show what it thinks of it.

    3.) Can you litigate under VII even though not a classic Equal Pay Act claim? YES.
        Here, for example, women‟s job was worth 95%, but were only paid (70%). This
        is intentional discrimination. Look at the pay, not the job!

c. Can P have pay claim under Title VII beyond Equal Pay Act?
   1.) Wage claim under Title VII- is limited to a showing of intent. Thus to be
       intentional must be disparate treatment, not disparate impact.
   2.) No impact case on wage discrimination.

d. “Comparable Worth” has died a legal death (AFSCME v. State of Washington,
   W.D.Wash., 1983), but West thinks probably still alive. CA have passed statutes that
   incorporate comparable worth.

e. Can put this as a provision in city K or collective bargaining agreements.




                                                                                         68
AGE DISCRIMINATION IN EMPLOYMENT ACT
A. GENERALLY
   1. Is the exclusive fed. statutory remedy for age discrimination in employment. Prohibits
      discrimination on the basis of age only as to person 40years of age or older.
   2. Before ADEA, fed. protection against age discrim. was limited to gov‟t workers (through
      equal protection & due process) & Ee of fed. contractors & subcontractors (under Ex.
      Order 11141).
   3. ADEA, like Title VII, applies to Ers, labor orgs., and empl. agencies.
   4. When Act first passed in 1967, there was mandatory retirement at age 65.
   5. 1978- Changed to 70.
   6. 1986- Amended ADEA to take off the cap. No mandatory retirement (except ssome
      professions e.g. police, airline pilots, etc.)
   7. 1993- no mandatory retirement for professors.
   8. In mid-1980‟s, over 65% of cases were filed by men.

B. SUBSTANTIVE PROVISIONS.

   1. GENERALLY. [Combo of Title VII & FLSA]
      a. COVERAGE
         1.) Er is anybody w/ 20 or more Ees (includes labor orgs & empl. agencies)
         2.) Anybody over 40 w/o cap on age so no mandatory retirement.
         3.) Tracks Title VII.

       b. STRUCTURE
          1.) PFC
              a.) Over 40.
              b.) Qualified.
              c.) Adverse action.
              d.) Younger people weren‟t
                     i.   Not have to be lower than for (e.g. 42 promoted over 60 yr old).
                    ii.   Difference in age helps infer discrim, but no determinative.
                   iii.   Show comparison. Do not need replacement.
          2.) Er‟s Rebuttal
              a.) Rebuttal. Produce evidence of legitimate business reason.
              b.) Section (f).
                     i.   Affirmative Defenses
                           BFOQ
                                  - Easier for Er to prove here than in Title VII.
                                  - Same elements as in VII BFOQ.
                                  - Must have ind. medial evaluation/ actual proof can‟t do
                                      individual medical evaluation.
                                  - Need substantial basis in fact like medical evidence of
                                      prognosis in aging.
                           Bona fide seniority system
                               - Anything w/ mandatory retirement isn‟t bona fide.
                           Bona fide employment benefits plan
                    ii.   Not affirmative defenses.
                           Reasonable factors other than age.
                           Discharge or otherwise disipline individual for good cause.


                                                                                           69
        3.) P must prove pretext
            a.) Single Motive
                    i.   P must prove age is the factor.
                   ii.   P must disprove all other factors.
            b.) Mixed motive
                i. Split on requiring direct evidence (3rd & 2nd Cir.)
            c.) Hard to prove
                    i.   Pension vesting isn‟t pretext.
                   ii.   But 7th Circuit requires to offer job if fired b/c of high cost.
        4.) Trend to reject disparate impact.


2. BFOQ‟s & Double Damages. TWA v. Thurston (1985).
   a. FACTS: D had policy that allowed a 60 yr old pilot or co-pilot to assume the
      position of a flight engineer. Applicants had to submit a “standing bid” for the
      position prior to his 60th birthday. If position not available b/f the pilot‟s birthday, he
      was forced to retire, thus causing some pilots to assume the flight engineer status
      prior to their 60th birthdays just to ensure they would not be retired. Ps were denied
      and were forced to retire. P‟s sued arguing that D‟s policy violated the ADEA. SJ
      was entered for Ds. Ct. of Apps. reversed, finding that D‟s acts were “willful,” thus
      entitling P to double damages. D appealed arguing no violation + not willful.

    b. HELD: A transfer policy that discriminates against protected individuals b/c of
       age is a violation of ADEA. It is not the exclusion of such individuals as pilots,
       where age may be considered a BFPQ, where the problem arises. Rather, it is
       the practice of preventing qualified 60 yr. olds from working as flight engineers
       where age is not a BFOQ. Here, Ps were excluded from the flight engineer job
       by D‟s transfer policy. This is age -based discrim. that cannot be justified.

        1.) Re: DOUBLE DAMAGES?. However, D did not act “willfully” in attempting
            to bring its retirement policy into compliance w/ the ADEA while at the same
            time attempting to comply w/ the terms of the collective-bargaining agreement.
            The D sought legal counsel & consulted w/ the D. It is reasonable to believe that
            the challenged aspect of the new plan was simply overlooked while trying to
            focus on the overall problem. Therefore P is not entitled to double damages.

    c. DEFENSES- ADEA § 4(f)
       1.) BFOQ – Affirmative Defense
       2.) Other Defenses:
           a.) Bona fide seniority system.
               i. If it discriminates on its face, then not bona fide.
           b.) Good cause


3. REDUCTION –IN-FORCE (RIF) CASES:
   a. PFC
      1.) P is over 40.
      2.) Doing a satisfactory job.
      3.) Adverse action- laid off.
      4.) Younger Ees were not laid off.



                                                                                               70
    b. P‟s discrim. claim not barred if replaced by another w/in protected group that is
       younger than P (e.g. 65 year old replaced by 42 yr. old).
       O‟Connor v. Consolidated Coin Caterers Corp. (1996).
       1.) Don‟t need to be compared to someone outside protected group. PFC will
           survive if person being compared to is in protected group.



4. “MIXED MOTIVE” CASES & THE 1991 AMENDMENTS
   a. Do the 1991 Amendments apply to the ADEA?
   b. Two views:
      1.) If they wanted it to apply to ADEA, Congress could have stated so. J. O‟Connor,
          in Price Waterhouse, state that the Ee had to show the Er‟s mixed motives “by
          direct evidence that an illegitimate criterion was a substantial factor in the
          decision.” This “direct evidence” term was criticized for what poof is needed to
          est. a mixed-motive case.
      2.) 2) 2nd Circuit view- This ct. ruled that Price Waterhouse burden shifting
          formulation should be extended to ADEA cases regardless of whether the P est.
          that age was a “motivating factor” through direct or circumstantial evidence.

5. REMEDIES
   a. BACK PAY
      1.) S/L is 2 yrs (negligent).

    b. REINSTATEMENT

    c. LIQUIDATED DAMAGES ONLY FOR WILLFUL VIOLATION- § 7(b).
       1.) Double back pay. Usually always get if P prevails.
       2.) Must be willful violation (TWA case) is “reckless disregard” which is more than
           being aware of ADEA & obeying it.
       3.) S/L is 3 years.

    d. NO COMPENSATORY & PUNITIVE DAMAGES.
       1.) § 7(c) – Civil actions; Jury trial.
       2.) TWA case- give no punitives b/c liquidated damages serves purpose of punitive
           damages.
       3.) Also, no compensatory damages.
       4.) Court only awards:
           a.) Back pay.
           b.) Liquidated damages (double back pay), if “willful.”
           c.) Reinstatement/Promotion.
           d.) Attorney‟s fees are mandatory for prevailing claims (as under FLSA)
       5.) THUS IN CA, SUE UNDER STATE LAW.
           a.) Unlimited punitive damages.
           b.) Can use disparate impact.

    e. ATTORNEY‟S FEES- are mandatory for prevailing claims (as under FLSA).
    f. THUS IN CALIFORNIA, SUE UNDER STATE LAW.
       1.) Unlimited punitive damages.
       2.) Can use disparate impact theory!



                                                                                         71
6. PROCEDURE
   a. FILING
      1.) Must file charge w/ EEOC.
          a.) Non-deferral, w/in 180 days C/A accrues.
          b.) Deferral, w/in 300 days C/A accrues.
      2.) ALSO, file w/ state agency b/f you file lawsuit- § 146.
          a.) Usually when you file w/ EEOC, then they send it to state agency b/c of
              work share agreements. Thus, you file both at the same time.
          b.) But by statute, P has to file w/ both!

   b. Right to sue letter.
      1.) Wait 60 days after filing w/ EEOC & state agency and then P may sue in fed. ct.
          w/o waiting for right-to-sue letter.
      2.) If EEOC issues right-to-sue letter and you have not filed suit, then P has 90 days
          to file suit in fed. ct. from the date the letter is received. P must file suit w/in
          those 90 days! [this option give P more time!]

   c. How the ADEA procedure differs from Title VII procedure. SEE CHART.




                                                                                             72
THE CA FAIR EMPLOYMENT & HOUSING ACT

A. GENERALLY.
   1. Covers housing & employment.
   2. Fair Employment & Housing Commission (FEHC)- has own statute & commission.
   3. Department of Fair Employment & Housing.
      a. DFEH, the regulatory administrative agency, receives complaints.
      b. DFEH prosecutes case before FEH Commission.
      c. But 40,000-50,000 complaints filed & only 13-14 attorneys.
      d. 1/3 funding today than from 1970‟s.
      f. Gov. Davis has not increased.
      g. 1/3 of cases never investigated.
   4. Published FEHC opinions- are in book in library. “Precedential” decisions. Lawyers can
      use these.


B. PROTECTIONS
   1. Protected class
      a. Race
      b. Religion. (also religious accommodation is same as in VII, but harder standard)
      c. Ancestry
      d. Physical & mental disability
      e. Medical condition
      f. Marital status (except narrow anti-nepotism rule e.g. H cannot supervise W).
      g. Sex
      h. Anybody over 40.
      i. NEW amendment include sexual orientation under „harassment‟ section! § 12940(g).
          Codifies the ct‟s decision in Gay Law Student v. Pacific Tel & Tel. (1979). Effective
          1/1/00. See FEHA Chptr 3, § 1.

   2. Defendants
      a. Ee not including working for parents, spouse, church or nonprofit.

       b. Employer. §12926(d)
          1.) Anybody w/ 5 or more Ees generally (but statute has 4 definitions).
              a.) Nonprofit religious association & corps. excluded. §12926(d)(1).
              b.) Labor organization covered.
          2.) Discrim. for mental disability, then must 14 or more Ees. §12926(d)(2).
          3.) Harassment requires one or more Ees. §12940(h)(3)(A).
              a.) Also protects “persons providing services pursuant to a K” (e.g. ind.
                  contractor, temp. Ee, etc.)
          4.) FMLA requires 50 or more Ees.

       c. Medical condition- any diagnosis of cancer & genetic characteristics (no genetic
          tests).

       d. Physical disability = physical handicap & track ADA.
          1.) Any physical disease or condition affecting body system + limit ability to
              participate in major part of life‟s activity.



                                                                                             73
           2.) Any other health impairment requiring specific educational or related services.
           3.) Disease or condition not having present disability effect but may in future.
           4.) Broad for physical handicap so any physical probability that‟s barrier to
               employment.
        e. Employer‟s affirmative defense for inability to reasonably accommodate w/o undue
           hardship.
           1.) Look at overall financial need, cost of accommodation, overall size of business
               w/ respect to Ees, type of operation, & geography.
           2.) Incorporate ADA law if federal interpretation more broadly.
        f. Aiding & abetting- any third party that helps Er discriminate is liable also.
        g. Licensing boards- it shall be unlawful for a licensing bd. to require any exam or est.
           any other qualification for licensing that has an adverse impact on any class…


E. DIFFERENT FROM FEDERAL STATUTES
   1. Under FEHA, Er can reasonably regulate working spouses in same department.
   2. Under FEHA, Er can discriminate by health plans.
   3. Under FEHA, any kind of veteran status protected.


F. FEHA TRACKS FEDERAL IN SOME CASES
   1. Mixed motive cases in disparate treatment. One state ct. of apps. required direct evidence
      b/f proving mixed motive.


G. PROCEDURE [SEE CHART]
   1. Must file w/in 1 year w/ DFEH after C/A accrues. § 12960.

    2. DFEH has 1 yr. to file “accusation” w/ FEHC.
       a. DFEH is required to make prompt investigation, but does not b/c limited resources.
          §12963.
       b. If DFEH determines complaint is valid, it shall immediately try to eliminate the
          unlawful practice by conference, conciliation, & persuasion. §12963.7.
       c. If accepted, the attorneys of DFEH will represent clients.
       d. If this fails, then DFEH files an “accusation” w/ FEHC.
       e. No duplication of efforts under workshare agreement w/ EEOC.
       f. In great cases, Ps are urged to get private lawyer b/c remedies would be much
          greater. Best cases do not stay in admin. process.

    3. After 150 days, must issue right-to-sue ltr. so that P has 1 yr. to file suit in Superior
       or municipal.

    4. If DFEH files “accusation” w/ FEHC, Er can remove to superior or municipal ct. if
       damages sought (Er must do so w/in 30 days after receiving notice of “accusation”).

    5. If stays in FEHC:
       a. Er can seek judicial review in superior ct. w/in 60 days after hearing & FEHC‟s final
            order.

    6. Er DEFENSE
       a. BFOQ


                                                                                                74
H. REMEDIES
     a. Court‟s remedies
        1.) Can award attorney‟s fees.
        2.) Can give unlimited compensatory & punitive damages!!!
            a.) If corporate Er, punitive damages only for actions of managing agents.

       b. FEHC remedies
          1.) Power to fine & award compensatory damages for up to $50K per person per
              offense.
          2.) Ps in great cases are urged to get private lawyer b/c remedies are much greater.
              These cases do not stay in admin. process.
          3.) Can no longer awared $150,000 cap for legal relief b/c it is uncon. FEHC cannot
              award legal relief b/c it should have gone to trial. If P, in FEHC, seeks no
              emotional distress & no admin. fine, then Er cannot remove out of agency.

   2. RETALIATION. Same as Title VII (opposition clause & participation clause).
      a. Can use this statute as public policy for C/A against Er w/ 5 or less. Rojo v. Cleaver.


   3. INTERACTION W/ OTHER STATE LAW
      a. California Constitution
         1.) Equal Protection
         2.) Privacy
         3.) Empl. Discrim.
             a.) Sex
             b.) Race
             c.) Creed
             d.) Nat‟l Origin
             e.) Religion

       b. C/L Wrongful Discharge [not covered in this class]
          1.) Contract damages for:
              a.) Breach of K
              b.) Breach of covenant of good faith & fair dealing.
          2.) Tort damages for:
              a.) Discharge in violation of public policy.
              b.) Public policy is in statue or Constitution.
              c.) Generally bring if P cannot meet Er defense in FEHA, except for age.




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