a. Pre-1965 solutions: §1981, Equal Protection Clause for government employers
b. Not a lot of solutions for people fired based on race
c. Passage of Title VII of Civil Rights Act of 1964 – effective in 1965
i. Title VII of the 1964 Civil Rights Act (amended 1991; PDA)
ii. Age Discrimination in Employment Act (ADEA)
iii. 42 USC §1981 (Reconstruction Act)
iv. Americans with Disabilities Act (ADA)
v. Equal Pay Act
II. Individual Disparate Treatment
a. Intro to Disparate Treatment
i. D.T. requires discriminatory intent or motivation.
ii. Direct Evidence: Slack v. Havens. This case had unequal treatment – shown through
circumstantial evidence (sending a black employee to clean) and direct evidence (supervisor‘s
comment that ―colored people clean better‖).
iii. Trait must play a role. Hazen Paper Co. v. Biggins. ADEA claim – fired as pension was about
to vest. SC: The employee‘s protected trait must have played a role in the process and had a
determinative influence on the outcome.
iv. Stereotyping: Supreme Court has held this to be a form of intentional discrimination (Biggins –
there were negative statements about elderly people – not stereotyping).
v. Circumstantial, or Indirect Evidence – McDonnell Douglas v. Green. Π laid off, then employer
refused to rehire b/c of illegal activities related to the Civil Rights movement. SC held that π
must be given an opportunity to prove that race was reason for not hiring.
b. CIRCUMSTANTIAL/INDIRECT EVIDENCE OF DISCRIMINATORY INTENT
THREE-STEP MCDONNELL-DOUGLAS TEST
1. π must make out prima facie case
- Must be a protected class
- Must apply for a job & be qualified
- Must be rejected from job
- The position must remain open
2. Δ must articulate a non-discriminatory reason
3. π must rebut that reason as mere pretext
ii. P‘s Prima Facie Case:
a. Pretty much any reason that is not (1) absolute lack of qualifications or (2) the
absence of a job vacancy could possibly show a prima facie case. (Teamsters v.
b. Establishes a presumption of discriminatory motivation.
i. Presumption is bubble-bursting, i.e. prima facie case is canceled by the
showing if legit. and non-discriminatory reason
2. (1) Member of a Protected Class
a. White individuals count – court held that counted under Title VII b/c it was
based on race even though π didn‘t belong to a minority (McDonald v. Sante Fe
b. Intersectionality: SC hasn‘t spoken to ―hybrid discrimination.‖ There may be
situations where blacks as a whole and whites as a whole are treated the same,
and men and women as a whole, but where black females are disparately treated.
i. Shanor thinks that it would be both race and sex discrimination to target
such a subgroup.
3. (2) Apply and Be Qualified – R: All π had to prove was that she met minimal
i. A: Showing that you held another similar job almost always enough.
b. This step also includes firing and not being promoted – almost 50% of cases are
c. Futile Gesture Doctrine- If applying would be a futile gesture, such as when
application process is itself racist or applicants are treated differently from the
start (―jews need not apply‖), some Jx don‘t make you go thru the motions.
d. Promotion Cases- ―Actually Applied‖ mitigated by lack of public notice.
4. (3) Rejected / Fired
a. P may also assert ―constructive discharge‖ via:
i. discriminatory harassment, or
ii. conduct that would put a reasonable employee on notice they were fired.
5. (4) Job Remains Open – not always necessary. Employer may decide to fill gaps within
a. Same Group Defense- Jx split on whether a hiring of another member of same
group is proof destroys prima facie case. MAJORITY: If decision was made
because of membership, hiring of another person of same class not enough.
iii. Δ‘s Rebuttal
1. R: D must allege a “legitimate, non-discriminatory reason” for the employment
a. Mere burden of production on the part of the D (Burdine)
b. Facts must be “clear and specific”, and consistent with later explanations
i. Is ―legitimate‖ the same as ―nondiscriminatory‖?
ii. Hazen: Even an illegal reason can be ―legitimate‖
c. Must be by admissible evidence
d. Must point out how P‘s termination/nonhiring was within the specific reason
provided (―… and P didn‘t pass the test so we didn‘t hire her‖)
2. Employer need not assert the ―best‖ or ―fairest‖ hiring practice under Title VII, and can
introduce statistics of a racially balanced workforce. (Furnco)
3. Employer may use statistics of a balanced workforce to rebut.
a. Applies to a pattern-or-practice case.
i. Intersectional Claims (Some Jx‘s) won‘t be able to use claim that you
hire one sub-identity to defeat intersectional claim. Some Jx‘s you might.
1. This is where most of these cases are litigated.
2. Evidence of pretext
a. Comparator Evidence – Allowed by SCOTUS caselaw
b. Prior Treatment
c. General Policy w/ minorities
3. R: A π‟s showing of pretext is insufficient to win a summary judgment motion,
because the π must also show pretext for discrimination based on protected status.
i. Counter-Example: When there is a legit. testing system and P fails it.
Could not fall under Hicks and Reeves.
b. PF case: was fired when management change. Was racial minority. Employer
rebuttal: discipline problems. Rebuttal: The boss set me up – other employees
with discipline problems not fired. This is factual and goes before the jury. (St.
Mary‘s v. Hicks)
i. So when legit. reason is pierced, P cannot sustain a summary judgment
on that basis alone, P still has to persuade the trier of fact that D is lying
c. Hicks resulted in some confusion. Two views:
i. Winning View: Up to π to show pretext of racial discrim
1. Jury can still find discriminatory intent based on the showing that
D‘s proffered excuse is pretextual. (Reeves v. Sandford Plumbing)
a. Allows a finding of intentional discrimination where the
D‘s reason is merely ―unworthy of credence.‖
ii. Losing View: Up to π to show ―suspicion of mendacity‖ – or, ―pretext
d. If the P makes a pretext argument, jury is allowed to hear other indirect evidence
of discrimination (Biggens – Jury could hear evidence that P had add‘l barriers to
employment that non-protected e‘ee‘s did not have)
e. Same Actor Theory – D can assert that s/he could not be discriminating, since the
person who made the hiring decision is the same person who made the firing
f. D (parent company) always liable for actual employment decisions of it‘s
managers. (see Lam)
c. MIXED MOTIVE THEORY
i. Price Waterhouse: Plurality of the Supreme Court. direct evidence case. Stereotyping of partner
candidate b/c she is a woman. Partner suggested she should go to charm school and wear makeup
1. Two issues: (1) Whether being a woman was a substantial factor, (2) Relation of those
comments to the way people act toward others.
ii. Direct Evidence – Evidence which, if believed, leads to an inference of discrimination without
1. ―Smoking Gun‖ Evidence (very rare) – (ex) a memo detailing discriminatory reason.
2. Discriminatory Statements – ―If I hired this woman, then every woman would be running
to the washroom.‖
a. Evaluate gap between the statements and the act.
3. Stereotyping (i.e. evaluating a certain group on a basis other than their work ability)
a. Strongest evidence of unconscious attitudes.
4. ―Stray Remarks‖, as per P-WH, are not enough. Must be shown to be specific, related to
P, have intent, etc.
5. Use of a Comparator – Only direct evidence if the comparator is ―virtually identical
except for race‖
6. Affirmative Action Plans
iii. Price-Waterhouse Test (also applies to ADEA)
1. Prima Facie test under Price Waterhouse – ―mixed
motive‖ case – Court disagreed as to whether protected
status had to be ―motivating‖ factor or ―substantial‖
***§703(m) codified ―motivating factor‖
2. Employer rebuttal: Prove by the preponderance of
the evidence that would have made same decision
even if protected group status had not been considered.
iv. New §703(m) / Costa Developments
(1) π show direct evidence of discrimination – that
protected group was MOTIVATING FACTOR
(π has established violation and gets injunctive relief and
(2) Δ can rebut that would have made the same decision
anyway (Burden of Persuasion)
(if Δ fails to do so, then π gets damages)
a. REJECTS ―substantial factor‖ – new rule for mixed motive
2. P need not show direct evidence of discriminatory motivation, if they present “clear
and convincing evidence that race, creed, etc. was a motivating factor.” (Costa)
a. Where there is direct evidence/motivating factor evidence, π can establish
violation and get injunctive relief and attorney‘s fees. (Part I of PWH)
i. Types of Evidence Used
1. Discriminatory Statements
a. Look for relation in time to discriminatory act
2. Stereotyping Evidence
a. Includes not evaluating in terms of work ability
b. Evdences unconscious attitudes
3. Discriminatory Policy
a. Must be derogatory and specific
5. Background Evidence Admissible
b. Then if employer fails to rebut in Part II, then π can get compensatory and
i. If employer does rebut, then P cannot receive backpay.
3. §703(m) only applies in Title VII – the other statutes were not amended to clarify this part
4. After-Acquired Evidence Cases (McKennon)
a. Not treated like mixed-motive where evidence that would have led to firing is
acquired after the initial firing for discriminatory reasons.
i. Policy: Legislature has chosen to punish the employer for the harms they
b. D must still show that proffered reason was a valid + legit one.
i. Includes even minor reasons, like lying about immigration status or
resume fraud. No problem tho vaguely pretextual, unless employer knew
of the violation already.
c. Remedies: Employer cannot obtain front-pay or reinstatement, but can get
backpay up to the date of discovery of grounds for termination.
v. P-WH Policy: Employer should be punished for their discriminatory acts, regardless of legitimacy
vi. When Will the Parties Want to Enter Mixed-Motive Land?
1. If P is reasonably sure D‘s reason is pretextual, D may still argue that though some
circumstantial evidence exists, they would have taken the same employment action.
a. D will have BOP of proving they would have done it anyways.
2. If D has a strong, legit reason, P can try to show w/o illegal reason that s/he would not
have been fired (but for) by presenting direct/circumstantial evidence toward the
―substantial factor‖ std.
a. D can admit liability and plead the mixed motive case, limiting the remedy but
making their BOP difficult.
b. D can claim no liability, but risk the whole extent of the motive, and give the P a
III. Systemic Disparate Treatment
a. Two ways to show systemic disparate treatment
i. Formal Policies – analogous to PWH/direct evidence
1. Most employers are now careful not to have such policies
2. All π has to show is that the formal policy discriminates on its face to make a prima facie
ii. Pattern or Practice – analogous to McD/Doug/Burdine circumstantial evidence
b. P‟s Goal: To show regular, purposeful, less-favorable treatment of a related group
c. Formal/Facial Policies of Discrimination- Examples
i. LA Dept of Water v. Manhart. Higher pension payouts for women than men (women live longer).
Court: even if women in the aggregate live longer, an individual woman could die before a man.
Court focused on language of the statute – here, an individual woman is treated differently than
an individual man.
1. Cannot discriminate based of class characteristic, even if it is true.
2. Title VII protects individuals, not groups
ii. TWA v. Thurston. Pilots who were bumped down to flight engineer before their 60th birthday
could continue to fly, but those who were bumped down due to age could not. Court: this is
discriminatory on its face.
iii. Normal defense to facially discriminatory policies = a BFOQ.
d. Pattern or Practice
i. No written proof available, but proven through statistics and anecdotal evidence (individual
ii. These cases correspond to McD/Doug, but are must tougher to make out prima facie case
1. R: π must show by a preponderance of the evidence that discrimination is standard
operating procedure – the regular, rather than the unusual, practice (Teamsters).
a. ―Repeated, routine and generalized discrimination.‖
i. Showing isolated or spurious discrimination is insufficient (King)
b. Typicality Requirement: Lead P in a pattern-or-practice case has to show that his
treatment is typical of other Ps and motivated by same factors.
c. P must also show that the practice is reflected in all aspects of employers hiring
2. D must defend on the basis of statistics, but also on a case-by-case basis.
iii. Statistical Evidence: Workforce need not mirror the general population under Title VII, but must
not fall too far from it either. (Teamsters v. US).
1. Unskilled Workers / Most Favorable to P (Teamsters): Showing that the practice meets a
level of ―gross and long-lasting disparity is a telltale sign of purposeful discrimination.‖
The core is comparing workforce to available labor pool.
i. Inexhorable Zero: No crunching of the statistics could excuse the sheet
fact that there were virtually no minority over-the-road truck drivers.
ii. OR - so much testimonial that court does need statistics of an ―inexorable
iii. For unskilled, consider the mass of people able to do the job, measured
on a geographic basis.
1. Unskilled workers = narrower area
2. Skilled Workers / Most Favorable to D (Hazelwood): Court refined use of statistical
evidence. Here, no inexorable zero. There were some minority teachers.
a. School argument: they were not bound to statistics pre-Title VII.
b. R: Statistics – compare:
i. Qualified population TO THE
ii. Relevant labor market
c. Two ways to look at statistical evidence of Relevant Labor Market:
i. Demographic Statistics (favors P) – Comparison between the work force
and its composition, and that of the surrounding area
1. Qualifications – Consider those with teaching certificates
2. Geography – Must figure out the appropriate geographic area from
which to commute/draw.
a. Less skilled position = narrower geographic area.
ii. Qualified Applicant Pool (favors D)
1. Applicant pool may be skewed – they may not be a perfect
example – b/c it does not reflect the people who might have
applied for jobs but for reasonable belief that they would be
2. Proof of the applicant pool may not be available
3. Statistical Evidence Concerns a DISPARITY BETWEEN PASSAGE RATES
(Labor Market Get Through Hiring Process).
a. EEOC‟s rule: 4/5 (80%) – the selection rate for disfavored group must be no
less than 80% of the favored group.
b. Compare to DI: In DI, the stats look for the change in the disqualification rate.
e. DEFENSES TO DISPARATE TREATMENT CASES
i. Job-Relatedness: SCOTUS specifically outlaws any rationale other than any ―justification
offered by an employer other than that related to the ability of persons to efficiently perform the
particular job in question.‖
1. See D.I. Job-Relatedness, below in outline.
2. Best case = like Lanning, show that there was a minimum qualification (physical fitness,
etc.) involved, just the boss wasn‘t up front about it.
ii. No Duty to Hire Diversely: Though you have knowledge of a disparity; such knowledge is not
proof that you caused or maintained it (Consolidated Services Systems- Korean janitors hired at
a. H: Method of recruiting (here, ―Word of mouth‖) acceptable as long as:
i. It‟s passive and cost-effective.
1. Can market forces explain the disparity?
2. Is ‗efficieny‘ true? Is it not more efficient in the long-term to seek
applicants over larger area?
ii. Minority group involved (may show method is more appropriate to
1. Compare applicant pool and labor pool (CSS compared applicant
pool to hiring, did not force applicant pool to be improved per
a. Ex- limited language skills, limited mobility, etc. cause
pool not to be opened up.
b. Hirings may never occur because spots never open up.
i. Did employer take some affirmative action to ensure no spots?
f. VOLUNTARY AFFIRMATIVE ACTION AS A DEFENSE TO DISPARATE TREATMENT
i. Facial Affirmative Action Plans (Johnson Test)
1. π – prima facie case, includes that race was taken into account.
2. Δ – articulate a reason (here, affirmative action plan counts)
3. π – Burden of Proof to show invalidity of the Plan Illegitimate purpose or effect.
a. In Johnson, Court upheld use of race and gender by an employer under Title VII
where the employer was acting pursuant to a voluntary affirmative action plan
that meets certain standards. Employer had a long-range plan to bring percentage
of skilled craft workers who are women to the percentage of women in the area
labor market. Supreme
4. Standards under Johnson
a. The purpose must be to break patterns of discrimination
i. Weber – the purpose of the plan mirror those of the statute – to break
down old patterns of racial segregation and hierarchy.
ii. Johnson – validity of an affirmative action plan does not turn on the
employer pointing to ―its own prior discriminatory practices, nor even to
evidence of an ―arguable violation‖ on its part. Rather, it need point only
to a conspicuous imbalance in traditionally segregated job categories.‖
b. The plan must not unnecessarily trammel the rights of majority workers.
i. For example, Weber, no requirement of discharge of white workers or
absolute bar of advancement of white employees.
c. The plan must be temporary.
i. Weber – requirement that the plan be a temporary measure; it is not to be
intended to maintain racial balance, but simply to eliminate a manifest
ii. Johnson – the plan was ok here b/c it was intended to attain a balanced
work force, not to maintain one. No requirement for a specific end date,
since such a plan is often a long, slow process.
d. Ways for π to meet step 3
i. Show that there is no plan. There is language in Weber and Johnson
suggesting that the plan must be written.
1. Note, a small employer with no written, but a strictly structured
and followed plan would probably pass muster.
2. Also cannot have structured discrimination – for example, every
third slot is for minorities. This presents an impenetrable opening
for all non-minorities going for that third spot.
ii. Show no prior discrimination – no predicate
1. Employers do not have to come out and acknowledge prior
discrimination – this opens them up to too much liability.
a. Admit prior discrimination (not preferred). Example:
Weber (prior discrim was obvious)
b. Admit a prima facie case, based on statistics
c. Manifest imbalance – very broad. Example: Johnson.
iii. Trammeling of rights
1. You can give preference to minority groups but you can‘t
absolutely bar majority groups.
2. No set-asides You can‘t create spots for minorities and women by
firing white men.
iv. Show plan is not temporary
1. Remember, employer just has to stop when they meet target – no
specific date required; may attain, but not maintain, job-diversity.
2. Goals are ok, but quotas are not.
5. Native Americans are allowed a preference in hiring members of own tribe
a. Does this make sense as an affirmative action program under Johnson?
b. Recognition of historical agreements, treatment, and sovereignty
ii. Diversity Memo Cases (Iadimarco)
1. The burden of persuasion is on the π. Π must prove that the “reverse”
discrimination violates Title VII.
a. Johnson v. Transportation Agency of Santa Clara County. Supreme Court held
that π bears the burden of establishing the invalidity of the employer‘s
affirmative action plan.
2. P need not show any special “background evidence” of reverse-discriminatory
a. NOTE: unlike in individual disparate treatment cases (McDonnell Douglas and
Burdine), the showing of a non-discriminatory reason does NOT shift burden to
employer – burden of proving invalidity remains on π in affirmative-action
g. BFOQ AS A DEFENSE TO DISPARATE TREATMENT
i. Affirmative defense – Burden of persuasion is on employer.
ii. §703(e) – Bona Fide Occupational Qualification
1. (1) employer may employ based on religion, sex, or national origin in those certain
instances where religion, sex or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or
2. (2) Religion Exception: educational institution may employ based on religion where that
particular religion substantially owns, supports, controls, or manages the institution, or if
the school curriculum is directed toward the propagation of a particular religion.
iii. Race or Color is NOT included. Cannot have a BFOQ of race.
1. Arguable: barber shops, casting for performing arts.
iv. R: Must be essential to job performance. Examples:
1. Woman prison guard – her ―very womanhood‖ endangers her
2. Authenticity in national origin cases (Japanes businessmen)
3. Note some BFOQ examples p 640 – (ex – NBA = essentially male)
v. The question is not whether there are collateral effects, but whether the person can perform
the job. (Johnson Controls – under Pregnancy Discrimination Act, employer cannot bar women
from working because of risk of work defects).
1. Court: no BFOQ here. Concern over the safety of the fetuses cannot be considered part of
the ―essence‖ of Johnson Control‘s business.
2. Safety of others when such safety always at risk is OK defense, but safety of the
individual must be 100% in jeopardy, otherwise paternalistic and usually based on
3. Similarly, customer preference can never be a BFOQ.
vi. Subject to lesser scrutiny in Nat‟l Origin cases (leg. hist. refers to Italian ―pizza pie‖ makers!)
IV. Disparate Impact Discrimination
i. First established in Griggs v. Duke Power & then codified in Civil Rights Act of 1991.
ii. These are practices that are facially neutral in treatment of different groups, but fall more harshly
on one group than another and cannot be justified.
iii. Note – does not give as much in damages as Disparate Treatment.
b. R: Analysitical Framework (Griggs)
i. P identifies a Neutral Employment Practice that has a Disparate Impact on a protected group.
1. Statistical Disparity
a. R: More than a 20% variance from the expected value.
i. Less likely to work when sample size is small (policy- easy to
administer for EEOC).
ii. Thus, evaluate whether low # scenarios are marked by a
―substantial impact‖ Other stat. methods?
b. Two Ways to Look at Stats:
i. OLD LAW: % Disqualified by the Specific Employment
Practice; no “bottom-line” defense (unlike Sys. D.T. claim) -
Where qualifications are important, multiple regression analysis is
used to try and control within a specific population for
ii. SCOTUS NOW: Composition of the jobs @ issue w/ relevant
labor market (Wards Cove)
1. If job requires no special expertise, then relavant labor
market = percentage in the general population. (Teamsters)
2. If job requires some expertise, then relevant labor market is
all those who possess such skillz (thus, % of them who are
black, female, etc., whatever the claimed protected class is).
c. Small # of employees effected will not allow for DI analysis.
2. Specific Employment Practice
a. Required by Title VII, P must identify one
b. Word of mouth or other ―loose‖ or ―trend-like‖ activities not specific
c. BOP on the P to show that the practice caused the discrimination
d. Hiring practices might be either SUBJECTIVE or OBJECTIVE
i. Causation? (Watson- black teller case)- Where practice is
subjective, add‘l burden on P to show that the subjective practice
caused the discrimination
1. Policy- Otherwise, almost impossible to defend a subjective
ii. Burden of Persuasion Shifts to the D (CRA 1991)– Must choose subj. or obj.:
1. Objective Criteria – R: Must show that the requirement is:
a. (1) Job-related for the position in question, and
b. (2) “Consistent with business necessity”
i. A: At the very least, show a rational or reasoned discrimination
ii. Test should be representative, need not test all skills needed
c. Usually shown to be job-related by a validation study
i. ―Content‖ qualifications (test, etc. necessary for success).
ii. ―Criterion‖ qualifications (correlational to success).
1. Employer must be careful with an off-the-shelf validation
study analyze how setting same or different
2. Would a content test make more sense/is one possible?
2. Subjective Process- R: Must prove a “manifest relationship” to the position in
a. Court has almost never overturned a case where there is a subjective
iii. P can rebut by showing an ―equally effective but no more costly‖ practice
1. If D refuses, then, only conclusion would be Intentional Discrimination.
2. Look to see if content is better than criterion, or vice versa
i. Griggs v. Duke Power. Pre-Civil Rights act, employer explicitly excluded blacks. On date of
effectiveness, Duke Power just instituted new requirements that there be a test and high school
education requirements for all but lowest level of employees.
1. H: Title VII intended to achieve equality of opportunity as well as proscribe intentional
discrimination. If the practice cannot be shown to be related to job performance, it is
ii. Wards Cove v. Antonio
1. F: Prima facie case shown below: cannery (unskilled) jobs primarily filled by non-white
workers, non-cannery (skilled) jobs primarily filled by white workers.
2. H: π didn‘t make out prima facie case b/c didn‘t have an appropriate statistical
3. R: Court must compare % minorities in the position with the % of that minority
population in the “relevant labor market.”
a. Griggs, however, focused on the % of applicants disqualified by the employment
practice, not the effect on the population.
b. Racial imbalance in one segment of a workforce does not establish DI in
another if there are no barriers to application. Thus, an imbalance in one part
of the workforce is not proof of an imbalance in another (1).
i. Can deterrence be inferred?
c. Economic Justifications
4. Court eventually rejected ―bottom-line defense‖ using labor market stats.
iii. Watson v. Fort Worth Bank & Trust (1988). Subjective criteria can be attacked using disparate
impact theory. If the supervisor regularly promotes whites over blacks using subjective criteria,
viewing the statistics of those she promotes vs. those she does not promote, then π can use DI
1. Argument against allowing attacks on subjective criteria under DI – it may lead to
employers using quotas.
a. Wards Cove handled this by watering down DI generally so it‘s not as hard on
2. Quota Policy
a. Possibly discriminatory
b. Constantly shifting in terms of labor market can only effect hiring, not hired
c. Should rather worry about specific employment practice.
iv. Lanning v. SEPTA (3rd Cit. 1999). Physical fitness test was a minimum requirement for SEPTA
officers. There is some relationship between the aerobic test and requirements of job.
1. Where public safety is considered, job relatedness does not have to be as tightly related to
the requirements, and corresponding minimum requirements will get more deference.
2. Court found that employer failed to carry its burden. Possible options for employer in
Lanning, according to the 3rd Cir court
a. Abandon the test as a hiring requirement but maintain an incentive program to
encourage an increase in aerobic activities
b. Validate a cutoff score for aerobic capacity that measures the minimum capacity
necessary to successfully perform the job and maintain incentive programs to
achieve higher goals
c. Institute a non-discriminatory test for excessive levels of aerobic capacity with
separate cut-off scores for men and women.
i. This option is explicitly impermissible under §703(l), which prohibits
d. Section 703(h) Exceptions
i. Professionally Developed Tests
1. 703(h) provides that it shall not be unlawful employment practice for an employer to give
and to act upon the results of any professionally developed ability test provided that such
test, its administration or action upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or national origin.
a. This is an affirmative defense, with employer carrying the burden of persuasion.
i. Causation. Did the workers do well b/c of their experience on the job
ii. No focus on the applicant group – focused instead on people who
already have the jobs.
ii. Bona Fide Seniority Systems
1. No disparate impact theory for seniority systems – MUST show intentional
2. These get much more deference than tests – they are treated as a true exception
a. Even if a seniority system effectively perpetuates prior discrimination, this does
not make the system unlawful as long as it is neutral on its face (applies to
everyone) and there was NO INTENT to discriminate.
i. Problem: Newer hires have a higher percentage of minorities, and are
more likely to get cut than more senior people.
3. Present effects of Past Discrimination
a. Four factors to evaluate if seniority system is bona fide (James v. Stockham)
i. Does it discourage all employees equally from transferring between
ii. Are seniority units in same or separate bargaining systems?
iii. Was the seniority system born out of discrimination?
iv. Was the system negotiated, and has it been maintained free from illegal
4. There is no conclusive authority as to whether the system has to be collectively bargained
– some cases are not – and the statute doesn‘t say anything about it.
5. Seniority system must be one that measures benefits based on amount of time worked.
iii. Merit Systems
1. Can terminate regarding merit only to matters that are necessary for business – MUST be
tied to job performance
2. These have been essentially read out of the system. If you have a merit system, and it has
a disparate impact, Δ must show business necessity. If they can‘t do that, then it‘s not
V. The Interrelation of the Theories of Discrimination
a. Individual Disparate Impact
i. Prima facie case
1. E.g. she was in the running, was a minority, was not promoted.
ii. Legitimate non-discriminatory reason – discovery is the only way to get this info
1. Recommendation of supervisor, evaluation that she was not ready to be promoted
2. That π meets the minimum requirements, but that they have enough people with those
prereqs, and they have more qualifications than she does.
iii. Pretext – you need to engage in discovery for this too
iv. McDonnell Douglas.
1. Is this an employer who has engaged in stereotyping?
a. 703(m) – show that race was a motivating factor
b. Systemic Disparate Treatment
i. Intentional Discrimination
ii. Use statistics to prove claim
1. Pool vs. Selection
iii. Also use anecdotal evidence
iv. Δ can refute by showing that those hired were actually better qualified
1. IF Δ succeeds at this, then π may be able to show disparate impact on minorities
c. Disparate Impact
i. By showing how they make their decisions, employer opens themselves up to a disparate impact
case. In return, employer will try to show business necessity.
ii. Sometimes an employer‘s defense can essentially shift the litigation from disparate treatment to
disparate impact mode – by saying that blacks/whites are actually not the same, and something
else causes it.
1. This is not the best defense, but it will lower the Δ‘s damages.
d. Relation between disparate impact and disparate treatment where there is a statistical showing of effects
i. Where π‘s prima facie case is based on statistical evidence, should try both DI and DT theories to
maximize chances of success.
ii. Advantage to P of Systematic DT claim:
1. Δ articulates the employment practice and must also defend it. In DI, π must articulate the
iii. Advantage to D of any DT claim:
1. For Δs, showing a legitimate non-discriminatory reason is easier than showing business
iv. Fischer v. Transco
1. Employer has a ―measured work day program,‖ where employees had to meet daily
leveled work requirements. Age discrimination
2. π will have to argue disparate treatment because disparate impact may not be available
under the ADEA, depending on the circuit.
3. You can still use statistics on a systemic disparate treatment case – here, it is syst disp
treatment against older employees.
a. The systemic disparate treatment is found in the statistics plus the anecdotal
evidence (of employer firing older workers and giving younger workers 2nd and
3rd chances to make their requirements).
b. Note that there are no compensatory or punitive damages in age cases.
v. Resolving the tension between disparate treatment and disparate impact
1. Individual cases are easier to prove for πs where a systemic theory is proven
2. However, failing to prove a systemic disparate treatment claim does not mean that πs
making up the class do not have individual claims
a. For example, in Fischer – possible each individual older employer has a PF case
for Individual disparate treatment.
VI. CA Employment Discrimination
i. Proof of Intentional Discrimination
1. Totality of the circumstances test: Must be a causal connection between the P‟s
race/sex/origin and the discrimination.
a. Rejects burden-shifting McD-D framework.
b. Preponderance of the Evidence Std.
c. PROTECTED-CLASS-MEMBERSHIP need only be ONE factor – may be other
reasons but if D cannot prove others would not have led to firing, no adequate
2. BOP Shift: Once a discriminatory motive is shown, the D bears the burden of persuasion
to show that a non-discriminatory would have led the P to be fired anyways.
ii. Remedies for Intentional Discrimination
1. If P can show the causal connection, remedies include back pay, lost wages, and
a. Reinstatement usually goes to different store.
2. Limited remedy if D can show/prove mixed motive (would have acted anyways).
b. Common-Law Remedies for Discrimination
i. K/Wrongful Discharge
1. P must prove an agreement above and beyond the normal at-will employment K
2. A discriminatory reason will often be good cause
3. Remedies similar to Title VII
ii. Tort/Wrongful Discharge in Violation of Public Policy
1. Comes about when employer asks D to violate the law (to discriminate)
2. ―D must have a duty that inures to the benefit of the public, not the individual‖
iii. *An employee may always file common-law claims against employer. Not pre-empted by FEHA,
nor need you use FEHA first. (Rojo v. Kliger)
c. CA Sexual Orientation Discrimination Law
i. Because being gay or lesbian is defined as a “political activity”, may not discriminate in
employment against LGBT folks (Gay Law Student Assn.)
1. Covered only ―out‖ gays, not being gay defining identity as ―speech‖ deeply
ii. 2004 CA Law - prohibits discrimination based on “sex”, “gender identity”, and race, color,
ancestry, physical/mental status as well.
d. Dress and Grooming Codes: Employer can mandate dress and grooming code.
i. High threshold for finding such codes discriminatory.
ii. Trans? Forces employee to choose a consistent gender identity.
VII. Critical Theories of Discrimination
a. Unconscious Discrimination
i. Look @ ―cultural symbols‖ to see whether tropes are being used which hide unconscious bias
1. ex) ―Happy Family‖, ―seasonal workers‖, ―for her own good‖, etc.
2. Practical application: The employment of such symbols would create a rebuttable
presumption of discriminatory motivation.
3. Problems: Difficult to apply, might be local in character.
a. May be used to bolster other models lead to heightened scrutiny?
ii. Critical grounding: Intent is self-affirming, slippery, only identifiable when it surfaces, and may
never do so outside the context of the decision.
b. Privilege Analysis
i. R: A system of privilege seeks to reproduce itself (normative system).
1. ―Merit‖ often seen in terms of white/male privilege.
2. Look for categorizations that mask privilege (stereotypes = classic example).
ii. A better system is critical of the values inherent in making decisions.
1. Ex) Manual labor seen as ―easier‖ because it involves less decision-making.
2. Ex) Caregiver work seen as ―easier‖ since it‘s passive.
iii. Emphasis on intent misses the mark of privilege.
1. Ex) PWH
c. Critical Approaches to Sex Discrimination
i. ―Equality/Sameness‖ Theory
1. Everyone deserves equal treatment/equal pay, since sexes equal in all important respects.
2. Different standards by which we treat men and women
3. Courts have predominantly followed this approach.
ii. ―Difference‖ Theory
1. Women have differing needs/expectations in certain areas.
a. Ex) Sanitary bathrooms, pregnancy accommodations.
2. Accommodation of differences necessary to achieving equality.
iii. ―Devaluative Sexualization‖ Theory
1. Spillover from hostility/aggression towards women
2. Women being held merely as sex-objects
iv. ―Sex-Plus/Complex Female Subject‖ Theory – Covers two broad categories
1. Sex-Plus / ―Intersectional‖ Discrimination – When a prohibited category of
discrimination is joined by an immutable neutral factor X, which is used as a pretext to
a. Ex) Black women treated differently from either of their sub-identities
b. Mutable criteria, like hairstyle, not sufficient.
2. Juxtaposition of Traditionally Opposite Identities
a. Ex) Strong Woman, Light-Skinned Black
VIII. Sex Discrimination
a. PREGNANCY DISCRIMINATION
i. Pre-Pregnancy Act: Gilbert.
1. GE v. Gilbert: Court decided that pregnancy discrimination was NOT sex discrimination.
a. F: E‘er covers everything except pregnancy in plan. Led to passage of the PDA.
ii. 1978: §701(k) added to the CRA
1. The terms ―because of sex‖ includes ―because of or on the basis of pregnancy, childbirth,
or related medical conditions‖ and
2. Women affected by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes, including the receipt of benefits under
fringe benefit programs.
3. Overturns Gilbert, but with some qualifiers:
a. E‘er need not cover pregnancy at all.
b. Benefits options (a pregnancy-covering plan and one that isn‘t) by e‘er allowed.
4. Standard Pregnancy Analysis
a. Prima facie case
i. Should this include ―actual knowledge‖ or ―reasonable knowledge‖ of
b. Legitimate non-discriminatory reason
i. Alternative rationales OK, like cost (Posner).
c. Pretext – this probably requires some kind of comparator UNLESS you apply the
ADA, which will knock out the legit non-discriminatory reason.
i. Proxies for pregnancy?
ii. Based on prejudice? Some evidence?
5. Employment Actions that count as possible Pregnancy Discrimination
i. Woman actually tried to use benefits.
ii. Pregnancy-related illness.
iii. Refusal to assign to better duty. (must use comparators)
iv. Removing seniority from a woman during pregnancy.
1. But not a need for disability pay.
iii. R: Formal pregnancy policies are systemic disparate treatment.
1. Ex) Morning sickness (no proxies for pregnancy allowed)
2. Benefits Cannot Be Discriminatory (Newport News v. EEOC). E‘er had a cap on
pregnancy-related medical benefits for spouses of married male workers.
a. Any policy discriminatory insofar as it affords less protection to one sex than
to another. Since policy disadvantaged men, violated Title VII.
i. Spouses receive less benefit BECAUSE they are men.
ii. Only works because partners covered under the PDA. (??)
iii. General policy under the PDA of treating pregnancy w/ more deference.
iv. Benefits Equality: Cannot be Based on Statistical Assessments
1. Disadvantages each woman in turn to discriminate on statistical
2. Each woman has no choice over the substance of each plan.
3. Men do other things to make themselves live shorter lives.
3. ―Cafeteria‖ plans still acceptable.
a. Result same as under Title VII for race (ex – Black man fired for having White
b. Crux of the decision is hetero-normative: if we counter it‘s reasoning w/ example
of lesbian couple, e‘er might be required to pay more benefit.
c. Open question as to how to treat the female children of workers.
i. If wife has protection, so should daughters.
4. Morality-Based Policies (i.e., unwed pregnant women) are only ok if the employer would
also fire a male employee for having pre-marital sex.
a. H: Discriminatory refusal to use contraceptives – no way to balance use by
men and women.
b. R: If E‘er has a plan, has an obligation to meet women‘s needs, this includes risk
iv. Formal policies treating pregnancy more favorably
1. California Fed v. Guerra (1987). Court held that second clause of §703(k) does not forbid
employers from giving special preference for pregnancy benefits. The Court said that
―Congress intended the PDA to be a floor beneath which pregnancy disability benefits
may not drop – not a ceiling above which they may not rise.‖ Thus, Title VII did not
preempt a state law that required employers to provide an unpaid leave of absence to
a. Employer can comply with both this law and Title VII b/c they could provide
reinstatement to all employees after extensive sick leave.
v. Disparate Impact
1. EEOC v. Warshawsky (N.D. Ill. 1991). Employer fired all employees who took any
extended sick leave w/ in one year. Of those discharged, a substantial number of those
were pregnant, female employees.
a. EEOC approach: compare pregnant first year employees who are fired to
pregnant first year employees who are not fired.
b. Employer‘s response: compare pregnant people to other people who have taken
extensive sick leave
c. District Court‘s view: Compare first year females fired to first year males fired.
This results in female first year employees being 11 times more likely to be fired
in their first year.
d. This case demonstrates the difficultly of applying disparate impact analysis.
vi. No BFOQ for Pregnancy (Johnson Controls. Employer policy that woman who are or could
become pregnant cannot work where there is lead exposure violates Title VII.)
1. Unless third-party safety is @ play. Essentially, the woman assumes the risk if she
chooses to remain in a personally dangerous situation.
b. SEX AND OTHER DISCRIMINATORY HARASSMENT
i. Two types
1. Quid pro quo – ―sex or your job‖(note: this has no ―severe or pervasive‖ requirement)
2. Hostile Work Environment
a. PF Case:
ii. Manager (authority figure) made offer/threat
iii. For sexually perverse/explicit performance
iv. With no legitimate explanation
ii. Quid Pro Quo Harassment: Conditioning employment upon brining sex into the workplace.
1. Assumed to be both severe and pervasive.
2. Must be Unwelcome
a. Welcome when she wants to sleep her way to the top!
3. Classically recognized, more easily cognizeable.
iii. Hostile Work Environment:
1. PF Case:
a. Member of a protected class
b. Harassment is based on sex
i. Can be male as well (Oncale)
c. Term or condition of employment effected by the harassment
i. Must be severe and pervasive
1. RPP std.? ―Reasonable woman‖? (see below)
d. Unwelcome advance
1. Creating an intimidating/hostile
2. Behavior is based on sex
3. Severe and pervasive (not
required for quid pro quo harassment)
4. Advances unwelcome
- This is different from involuntary.
An act can be voluntary and still
i. Note – these elements are a jury decision. While some of these cases
have the judges deciding ―severe and pervasive,‖ this is clearly the role
of the jury.
2. Hostile Work Environment = Totality of the Circumstances Std. in deciding whether a
situation like Meritor is actionable under Title VII
a. Inverse Relationship between Severe and Pervasive: A single incident can
make a workplace sufficiently severe and pervasive – especially if it is a really
bad act. OR a number of smaller incidents over long period.
b. However, every ―pass‖ is not a violation of Title VII. All acts depend on time,
context, and the relationship btwn parties.
c. Discrimination directed or targeted at the D considered.
i. D may still have a claim if discrimination is collateral, look @ for more
severity and a tangible ―spillover‖
d. Physical touching helps motion survive summary judgment.
e. Look for de minimus sexual conduct (which is not a request, and is not verbal or
3. Perspectives on RPP standard
a. Reasonable Person: not clear whether this is the reasonable female/male person,
or just person.
i. Ex) woman might feel being ―asked out‖ multiple time is harassment =
ii. Are men assumed to be held to a higher std.?
b. Reasonable Woman: the right way is to look at things from the view of a female
who is being harassed. It seems like Harris Forklift Court goes out of its way not
to adopt Ellison.
i. Does this embrace female stereotypes?
ii. Court more likely to hear a claim if they view the woman as their wife,
daughter, etc., will hold woman to higher std.
4. Plaintiff‘s participation in any off-color jokes, comments, etc. can be used against π.
Counsel‘s advice should be that next time she should resist and say no, even if she wants
to get along in the workplace. Note – similarity of the π‘s conduct is important here.
iv. Racial Harassment
1. Can never be ―welcome‖
2. More likely seen as pervasive
3. Banter around race vs. racial comments = thin line, depends who‘s doing it, whose
perspective it‘s from, etc.
4. P might be able to show a ―reasonable black person std.‖, as was the case in Harris
v. Paramour Prosecution
1. VERY hard to prove harassment when you admit consensual involvement with your
alleged harasser. Seen as retaliation from failed relationship – plays into stereotype of a
2. Promotion Problems
a. Can third-party sue when D promotes someone they‘re in a relationship with?
b. Can men sue when women promoted categorically?
3. Serial Harasser – If behavior invades workspace, do employees have a CoA? Is it still
―because of‖ sex?
vi. Equal Opporunity Harasser
1. View 1: Not based on ―sex‖ since does this to everyone
2. View 2: Since Oncale, can say men discriminated against, AND women discriminated
vii. SAME SEX HARASSMENT: Oncale v. Sundowner (1998). Π (man) worked on an oil rig, and
his male co-workers threatened him, picked on him, threatened rape. The sexual comments were
used to harass him.
1. Same-sex harassment is still harassment – it was ―because of‖ sex.
a. Retaliation from a failed relationship does not constitute sexual harassment under
Title VII – it is not ―because of‖ her sex, only personal animosity.
2. Three Types of ―Because Of‖ Sex Harassment
a. Gay supervisor
b. ―Unwelcome and Offensive‖ male behavior
i. Usually involves touching, unwanted physical contact
c. Anti-Effeminate Behavior
i. Harder to prove, must show severe and pervasive
3. Gay Plaintiff Defense: Not seen as sex harassment, but sexual orientation discrimination
for which there is NO protection for sexual orientation. However, π could make a
―because of sex‖ argument anyway.
viii. Employer Liability
1. Employer is responsible under respondeat superior in ―quid pro quo‖ cases for manager
behavior, and for supervisor behavior when it results in a tangible employment action.
2. Employer liability in a hostile work environment
a. HWE Supervisor: Liable IF agency principles fulfilled
i. Employer Facilitates the Conduct: Supervisor acting w/in scope of
employment, during business, etc.
ii. Two bases for employer liability for harassment in the workplace:
1. Broad vicarious liability: an employer is subject to vicarious
liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate or
successively higher authority over the employee. Look @
proximity and regular contact.
a. Subject to the affirmative defense if the employer did
not take action against the employee.
2. The supervisor takes a tangible employment action against the
employee: hiring, firing, failing to promote, reassignment,
significant change in benefits – employer cannot use the Ellereth
a. No unitary test on what constitutes tangible employment
b. Mere threats insufficient to make out a QPQ case
iii. Affirmative (Ellereth) defense: That the employer had a reasonable
anti-harassment policy with a complaint procedure, AND/OR π was
unreasonable in failing to use it. The π employee must have taken
advantage of any corrective opportunities
1. This means that if the employer is actively enforcing its policies,
then it is not liable.
a. Anti-harassment policy – employers have a strong
incentive to adopt a sexual harassment policy. Not an
absolute requirement in these cases, but it will be
b. Employee failure to mitigate – 2 kinds:
c. (1) Did π use the complaint procedure?
i. The complaint procedure will be analyzed when
determining whether the π was unreasonable in
not using it. Must be clear policy, spelled out,
must include what occurred
ii. E‘er took prompt action when D used complaint
d. (2) Did π work to mitigate the harm?
2. Not available where tangible employment action resulted.
3. Where E‘er Expressly Condones the Harassment, No Affirmative
Defense Available (Farragher)
iv. Remedies: Normal remedies will be back-pay, reinstatement.
Punitive/Compensatory Damages also available.
1. Punitive damages are probably unavailable where the employer
2. Juries can still award compensatory damages for loss of comfort,
self-esteem under Ellereth.
v. CA Law – YES, employer liable for supervisors and ―lead‖ employee.
Independent liability in Tort for e‘ee.
b. HWE Co-Employees: Employer is measured by a negligence standard: knew
or should have known, and took reasonable action calculated to end the
i. These are treated as hostile work environment environment cases, even
where demands for sexual favors are made, b/c the co-employee
generally lacks the power to threaten the job or status of the victim.
ii. ―Knew or should have known‖ based on prevalence and whether a
complaint has been filed. So say E‘er gets a complaint:
1. E‘er must remedy the situation proportionally to the severity of the
2. E‘er cannot promise confidentiality, since obliged to investigate
c. Sexual harassment by non-employees
i. Temps and Independent contractors: Employers have brought the
contractors into the environment – they are in the workplace.
ii. Sometimes the temp agencies themselves are liable. Look @ gency
d. Off-site behavior
i. Recent Circuit court case – employer (Delta) responsible for behavior of
male flight attendants where female FA was required to be in location
with him due to nature of job.
e. Constructive discharge: harassing someone so much that they eventually quit
1. Unlike other discriminatory behavior, it often may be undistinguishable from ―normal‖
social relations between men and women.
2. Sexual harassment and other discriminatory harassment can violate Title VII even if the
victim suffers no adverse employment decision or economic impact as a result.
3. Sexual and other discriminatory harassment frequently is practiced in violation of, rather
than in compliance with, company policy
4. Harassers often are satisfying their own personal interests, rather than seeking to further
their employer‘s interests
5. Because controlling discriminatory harassment in the workplace by disciplining harassing
employees may relieve an employer of liability, discriminatory harassment raises
questions about the rights of employees who perpetrate this form of discrimination.
c. GROOMING AND DRESS CODES
i. Title VII excepts this from the usual meaning of ―sex‖.
ii. Two Theories Under Dress and Grooming
1. Equal Burden (Jesperson v. Harrah’s) – So long as the burdens are equal to men and
women, E‘er can require grooming policies that are reasonable and conform to
a. If the requirement inhibited a woman‟s ability to do her job, might be a
form of harassment.
i. De minimus intrusion.
ii. Courts promote this kind of sex-stereotyping.
c. Cannot require women to wear uniforms and men not.
i. Craft v. Metromedia (8th Cir. 1985). Anchorwoman sues where she was
forced by employer to go to style consultants, dress sessions. Court
found that employer enforced different appearance standards equally –
both men and women where scrutinized in terms of fashion and
2. ―Attractiveness‖ – Immutable characteristics (height/weight, etc.) may never be the basis
for such a policy if sex-related – you can change you grooming and dress code, so it is
not sex discrimination.
3. Sex Stereotyping – PWH says stereotyping is not OK when such stereotypes are a factor
a. Look for ―lesser‖ and ―greater‖ stereotyping (lesser seems ok per Jesperson)
b. Look for the purpose to make women sex objects = stereotypical, but to make
ee‘e‘s ―clean-cut and presentable‖ not.
c. Look for charged standards. ―Beauty‖ may mask notions of racial or sexual
iii. Larger Legal Point – Not all requirements based on sex are ―sex discrimination,‖ some are
innocent and clearly requiring de minimus intrusions does no harm.
1. Policy Counter – Gender is irrelevant in employment decisions, and Act intended to have
causation be the std.
d. Federal Sexual Orientation Discrimination
i. It would make it unlawful to discrimination on the basis of sexual orientation, preference,
1. It would only establish a disparate treatment, not a disparate impact theory. B/c you‘d
have a tough time with data. Is sexual orientation more prevalent in women than men?
ii. Title VII provides no protection for sexual orientation. Courts have said Congress meant sex =
gender, not sexual orientation. DeSantis v. Pacific Telephone (9th Cir. 1979). No protection of
homosexuality under Title VII.
1. Analytically sound – Posner argues ―sex‖ has a plain-meaning.
2. Policy Problems
a. Akin to discriminating on the basis of one‘s partner, which is illegal in the
sexuation and race contexts.
b. Price Waterhouse prohibits sex stereotypes from coming in, and heterosexuality
certainly is that.
c. ―Sex‖ should be read broadly, and courts have no reason to interpret it as
heterosexistly as they have, per the leg. hist.
iii. Combating sexual orientation discrimination will involve a new statute.
IX. National Origin and Alienage
a. Multiple Meanings of National Origin
i. Traditional = Geography + ancestry
ii. EEOC definition = expansive, merely being associated with a foreign country/group is enough.
1. Group associations
3. Whom you‘re married to
4. Identficattion w/ foreign educational institutions
iii. Ethnicity = traits or traces that make a social group distinctive (Latino = one example)
iv. Simply race?
1. Tend to do better than NO complaints.
2. If of severely mixed heritage, can NO claim work? Did employer know?
3. Cuban-born Chinese – Which one? From china important?
b. Meaning of NO discrimination w/ American-Born
i. A claim arises when discriminatory practices are based on where one‟s ancestors or family
lived, even though you‟re w/in the territorial US.
1. Nations no longer in existence count as ―origins‖.
c. Citizenship as National Origin
i. Can hire based on citizenship; a true preference for US citizens is acceptable. (Espinoza v.
Farah Mfg (1973)).
1. In Espinoza, the Court addressed claim as disparate impact – but because over 95% of
employees were of Mexican heritage, the policy of not hiring citizens of Mexico did not
disparately impact those of Mexican national origin.
2. Bring as a DI claim? Espinoza says not DT
ii. Citizenship requirements that have the purpose or effect of NO or racial discrimination are
unlawful. (Anderson v. Zubieta).
iii. Citizenship must be current, not past, citizenship.
iv. Policy for Allowing Employer to Hire Only Citizens:
1. Pro: Best = Stability. Non-citizens more likely to move/change, face immigration
consequences from crime, etc. Perhaps afraid of violating immigration laws? But fear is
pretextual, have to do I9‘s anyhow. Customer preference may be important, may have
geographic/historical knowledge, etc.
2. Con: Prejudicial assumptions play a major role (biases and stereotypes). Employer may
think citizens on the whole more ―assimilated.‖
v. If illegal immigrant, should discrimination cover you?
1. Pro: By not covering, you increase chances of discrimination against illegals, and give
incentive to hire more.
2. Con: No standing to give relief, don‘t want to encourage illegals coming to use
protection. (Odd argument, because the protection doesn‘t ADD anything, it‘s connected
to the fact of having come here.)
d. Speech and Language Requirements as NO Discrimination
i. English Proficiency as a Job Requirement = Generally OK as long as material for job
1. Proficiency might serve as a BFOQ?
2. IF requirement applied to a non-English speaking as opposed to a bilingual employee, DI
may be the appropriate claim (burden on D).
3. DT? = Facially neutral
ii. English-Only Requirements for Bilingual Employees
1. Forcing bilingual employees to converse in English effects the privileges, but not the
terms and conditions, of employment. (Spun Steak)
a. ―Loss of Cultural Heritage‖ not w/in meaning of discrimination.
b. ―Conversing in a comfortable language‖ = fun, something you do on break
c. Might be a claim for intimidating environment, but this is not an issue for SJ.
i. Better for a harassment claim?
2. Dissenting Policy:
a. Monolingual requirements almost NEVER benevolent in motivation.
b. Impact on cultural heritage.
c. DI Claim entirely possible = should bring it.
iii. Accent Discrimination
1. Maj = May not use accent as a legit. reason or job-related.
2. Min = Accent discrimination preserves an employer‟s right to choose who best suits
3. DT Claim: Accent may be pretextual (3).
a. Possible Rule: Employers may base their decision on an accent only where it
interferes materially with job performance.
b. Would be a BFOQ Anyways: Nothing improper about an employer making such
an honest assessment of a candidate for a job when oral communication skills
pertain to a BFOQ.
e. Second issue: requirements to speak English on the job
i. Employers have generally withstood attack on this ground. It is reasonably necessary to require
employees to speak English.
1. However, πs have won where speaking English did not seem relevant to the job. For
example, a job sorting clothes at the Salvation Army.
X. Age discrimination
a. Coverage: Only people 40 years of age and over.
b. Policy Purpose: To stop discrimination in the workplace (same as Title VII).
c. There are a number of cases under this theory b/c πs are more senior, are more likely to be able to pay an
d. ADEA provides that it is not unlawful...to discharge or otherwise discipline an individual for:
i. Good cause
ii. *Reasonable factors other than age*
iii. Bona Fide Executive Exception
iv. Exception for Police and Firefighters
v. Bona Fide Benefit, Retirement Plans, and application of the Older Workers Benefit Protection
vi. Reduction in force programs
1. Employer must provide a plan showing all employees and ages who are being offered the
program. If everyone who‘s been given this program is 59 or over, for example, then you
may have a claim.
2. Three ways to downsize
b. Most unions probably require that downsizing start with most junior employees
c. Incentives (reduction in force programs)
e. Extra Prima Facie Burden? (Apart from McD-D framework)
i. Still applies when another 40+ employee hired in one‟s stead.(Consolidated Coin)
1. R: Ct. should consider gross age disparity, not protected status, when making out a PF
ii. Min Jx: Include ―circumstances giving rise to an inference of discrimination‖ in PF case (seems
to include position held open and substantially younger).
iii. No ―reverse discrimination‖ w/ age
1. Purpose of the Act: to help you as you get older. So only the older employee can sue.
f. Two Primary Defenses to ADEA
i. RFOA: Reasonable Factor Other than Age
1. DT - Pension vesting in Hazen could probably have been an RFOA (Hazen)
a. Analytically distinct criteria are good for (2), even thought correlated with
age. Must be purely „because of‟ age based on assumptions or prejudices
i. OK – High salary, ample retirement benefits, age-related disabilities,
proximity to early retirement, over-qualified (sketchy, probably a
stereotype; seems correlated with something that‘s correlated with age,
but the direct relationship is not always there)
ii. Not OK – Perceived as less creative/productive, cannot acquire new
skills, don‘t fit in
b. Could still argue mixed-motive.
c. MAY BE ILLEGAL, but still an RFOA (ERISA disallows such firing)
2. DI – Can defeat a DI claim (Smith v. City of Jackson – granting a larger raise for lower-
echelon employees responds to goal of retaining officers)
a. Replaces job-related/consistent.
b. Probably a higher std. than legit. reason.
c. P must still ID a specific employment practice
d. 3rd step (alternative) not available when D has made a valid RFOA defense.
ii. BFOQ—usually public-safety related. Mandatory retirement allowed.
g. P‟s may not bring private CoA against the States under the ADEA.
i. Harassment still possible.
XI. Disability Discrimination
1. Is the person an individual with a disability?
- impairment that substantially limits a major life activity
- Record of impairment
- Being regarded as having such an impairment
2. Is the IWD qualified?
- can they perform the essential functions
-- with or without reasonable accommodations?
3. Can the Δ show an undue hardship?
a. Statute: ADA
b. Who is Protected?: Proving membership in the protected class
i. PF CASE: P must:
1. Have a Disability: But what is a disability?
a. a physical or mental impairment that substantially limits one or more of the
major life activities of such impairment
i. Type: Must be severe enough that P cannot inhabit a broad class of jobs.
1. Alternately, look at the wide swath of basic daily life duties the P
2. However, pointing out isolated jobs or activities will not work.
ii. Duration: An impairment‘s impact must be permenant or long-term
iii. Corrected State: A physical impairment must limit an activity in a
b. a record of such an impairment, or
c. being regarded as having such an impairment
i. D must view the person as ―severly regarded in his life activities‖ in
order to be properly disabled under this theory (Sutton – P was only
barred from pursuing a single activity, flying)
2. Be able to perform the essential aspects of the job with or without “reasonable
a. Two Views of ―Reasonable‖
i. Restrictive: Reasonableness include cost, and benefit to e‘er (de
minimus). (Posner) Veeeery restrictive, since it kills the PF case. Scalia
also says that all it requires is suspension of E‘er rules the D can‘t
observe (no discriminatory terms?) (but never needs to make
ii. Liberal: Reasonableness in terms of other employees being able to
accommodate, modified work schedules, facilities changed. Vacant
position always reasonable
1. Not reasonable to give someone a position when a bona fide
seniority system or other contractual guarantee present, even
tho they have hurt themselves. (US Airways v. Barnett) Not a
2. Abstract or Particular Reasonableness: Can be reasonable ―in the
run of cases‖ or here in particular.
b. Accommodation: Must actually accommodate the person. This is not
―reasonableness‖ per se.
c. What is Essential?
i. E‘er‘s judgment plays a role
ii. Written job description
iii. Amount of time spent performing such
iv. Time and attendance are always ―essential‖
v. Consequences of not requiring to perform duty
3. If satisfied (defenses not withstanding), D has a duty to make the “reasonable
accommodations”, or be in violation of ADA.
a. Nor may you deny employment opportunities to someone based on need to make
ii. D‘s proffer of a ―Neutral Hiring Practice‖ (2): Sufficient to assert a non-rehiring policy of those
who were terminated, even when it applies more readily to people w/ disabilities fired for
discriminatory reasons. Would not be succeptible to (3). (here, disability = drug addiciton
1. May bring a DI claim. Might impact those folks more.
i. The Undue Hardship Defense
1. Undue hardship is not just cost. It is the difficulty, not just to expense that is relevant.
Factors listed in the statute
a. nature and cost of accommodation
b. type of operation
c. overall financial resources
2. Dexler v. Tisch (D.Conn. 1987)
a. π has dwarfism and seeks a job at the post office. Requests accommodation of
stool or help with reaching high slots. Court: this is not reasonable
i. safety – the presence of the stool
ii. efficiency – assigning another employee to assist (essentially, paying two
people to do one job)
b. Note – isn‘t this just reasonableness? It doesn‘t really reach the effect on others
or the business, b/c it is not reasonable to start with. The fact that this court
smooshes them together this problematic, given the fact that they are treated very
separately in the statute.
ii. Direct Threat
1. §103(b): a significant risk to the health or safety of others that cannot be eliminated by
2. School Bd. of Nassau County v. Arline (1987). Court remanded the issue as to whether
Arline (teacher w/ TB) was nevertheless qualified, or whether she was not qualified b/c
she was a direct threat to the health or safety of others.
a. Trial court should ―conduct an individualized inquiry and make appropriate
findings of fact.‖
b. Basic factors (of the AMA – Court approved)
i. Nature of the risk
ii. Duration of the risk
iii. Severity of the risk
iv. Probabilities the disease will be transmitted and will cause varying
degrees of harm
3. Chevron v. Echezabal (2002) π is denied employment b/c working at a refinery is bad for
her liver, damaged due to Hep C.
a. Here, Court defers to EEOC regulation, saying that an employer can refuse to
hire based on the employee‘s direct threat to themselves.
iii. Federal Regulations and Facially Discriminatory Qualification Standards
1. Albertson v. Kirkingburg (1999). Monocular truck driver case.
a. Issue of employer adhering to DOT standards where they conflict with ADA
b. Court: employer can‘t just adopt DOT standards, because the ADA will trump a
regulation. By ―qualifications,‖ Congress meant to include those outlined in
c. Note: as a practitioner, be aware that federal statutes always trump regulations.
However, the key in this case is that the Court didn‘t seem to think that the DOT
standards were entirely inconsistent with the ADA.
XII. Intersectionality Law
a. Split of Jx: Some will consider an intersectionality claim, some won‘t
i. Discrim. cannot really be broken down into distinct components.
ii. Relying on separate CoAs for each sub-identity is a double-edged sword: each one can be
pierced, and strongest case is with the intersection.
b. Evidence of good treatment of one sub-identity will not defeat SJ, but evidence of bad treatment of
member of a sub-identity is enough to survive it.
c. Different from Sex-Plus, insofar as sex-plus relies on a neutral criterion and intersection is ―true‖
intersection of protected classes.
XIII. Judicial Relief
a. Relief for Individual Discrimination. Title VII entitles employees to full relief, to make the victim whole
a. This includes all compensation – lost wages, raises, overtime, bonuses, vacation pay,
contributions to a retirement plan.
b. Albermarle v. Moody (1975). Backpay is presumptively awarded
i. Policy reasons:
1. Making plaintiffs whole
2. Not awarding back pay encourages discrimination
ii. Note: the allowance of jury trials ensures that a jury provides the equitable
relief of back pay.
iii. The presumption was overcome in Manhart, where back pay was not
awarded b/c of the complexity of administering the programs and the
possible harm to innocent third parties.
c. Prejudgment Interest
i. The 11th Amendment does not bar such an award where the state is the
defendant, because Title VII was enacted pursuant to Congress‘ 14th
Amendment powers. Fitzpatrick v. Bitzer (1976). This does NOT apply to
ii. Instatement, Reinstatement, Retroactive Seniority, and Prohibitory Injunction
1. Franks v. Bowman (1976). Remedies may be denied only where it would not ―frustrate the
central statutory purposes of eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination.
a. Awarding retroactive seniority is consistent with the statute‘s purpose of making
b. Even though this will have some impact on innocent incumbent employees, ―sharing
the burden of the past discrimination is presumptively necessary.‖
2. Bumping. The Court here allows some displacement of incumbents, but not the flat-out loss
of their seniority.
a. Note that NAACP has opposed bumping b/c of their fear of what it might do to
harmony in the workplace – it would cause backlash from current employees.
iii. The Calculation of Back Pay
1. Little guidance available from the statute. Normally the back pay starts from the first day of
lost wages due to discrimination.
2. §706(l): Back pay can go back up to 2 years.
3. Ford Motor Company v. EEOC (1982). Employees were fired and got jobs at another
company. Can only get back pay from time that old company sent letter offering them their
old jobs back.
a. Policy: this encourages settlement and for employers to stop discriminating.
b. Court understood why πs wouldn‘t want to return to the old company. Noted that
they could have also sued for seniority and other things they lost when they were
4. Duty to Mitigate
a. Backpay must be reduced by the amounts that were earned and could have been
earned with reasonable diligence.
b. The π who quits the job b/c of discrimination has an additional hurdle to prove that
they were constructively discharged if they want to get back pay.
i. Jurgens v. EEOC (5th Cir) (majority rule): where an employer
discriminatorily denies a promotion to an employee, that employee‘s duty to
mitigate damages encompasses remaining on the job.
c. The test for whether someone has been constructively discharged varies
i. 4th Cir (minority rule): the employer has to have made the conditions
intolerable with the intent of wanting them to quit
ii. 5th Cir (majority rule): No intent required, but requires that employer did
whatever it was to cause employee to leave
iii. Standard for these tests: the reasonable person
d. Application of the Jurgens rule:
i. Courts generally sympathetic with πs who are harassed
ii. Many cases tend to be where the employer has added insult to injury
iii. Sometimes they are cases of demotion
e. Duty to mitigate is a question of fact.
b. Compensatory and Punitive Damages
i. Allowable damages depends on the statute
ii. Title VII: total cap on damages depends on the size of the employer
1. $50,000 for employer with 100 employees and fewer
2. $300,000 for employer with 500 + employees.
iii. Compensatory Damages
1. Pain and suffering, medical costs, etc.
2. Note that client‘s person medical history is completely open to the defendant if you seek
compensatory damages (not so in other kinds of damages) – this could be very embarrassing.
3. Turic (6th Cir 1996) – mental and emotional distress must be proved by competent evidence.
iv. Punitive damages
1. Focuses on employer‘s conduct.
2. Can only be collected where employer acted with malice or reckless indifference; cannot be
collected from the government.
3. Kolstad v. American Dental (1999).
a. Employer must show malice or indifference – no need for special showing of
b. Employer liability. An employer is not vicariously liable for actions of managerial
agents where the employer made a good faith effort to comply with Title VII.
v. Personal liability of employees
1. Employees do not have personal liability under Title VII, ADA or ADEA. They do have
personal liability under §1981 (however, public officials may escape it under the public-
official immunity doctrine)
2. Note that there might be personal liability under state law
c. Attorney‘s Fees
1. The prevailing party gets attorney‘s fees, unless the party is the government.
2. Christianburg Garment v. EEOC (1978). Outlines Title VII fee structure; applies to §1981
and ADA actions (ADEA has its own provision).
a. Δ will only get attorney‘s fees where π had a truly frivolous claim.
3. Prevailed = show that you had ―actual relief on the merits of claim, materially altering the
legal relationship between parties by modifying the Δ‘s behavior in a way that directly
benefits π.‖ Farrar v. Hobby (1992).
4. Attorneys should split out their billing by issues, so they can show the components where
attorney‘s fees are reasonable.
1. Normal measurement = Lodestar (Time x Hourly Rate)
a. If working on a contingency basis, hourly rate determined by signed affidavits by
colleagues as to what is appropriate rate.
b. Supreme Court does not allow for adjustments where there was more time outlay b/c
the case was one of first impression.
2. Where Δ is entitled to atty‘s fees, this is secondary litigation.
iii. Ethics issue: some say attorneys should not litigate as to atty‘s fees b/c it puts them adverse to client
d. Relief for Systemic Discrimination
i. Retroactive Seniority and Back Pay
1. This is stage 2 of litigation, after litigation on the merits
2. There is a presumption that the discriminate will get an available position. Teamsters v.
US (1977). Creates fight amongst class members
3. This can cause problems b/c not everyone is necessarily entitled to the same relief. Courts
often award in a way that avoids having to determine the precise injuries of each class
a. One option is to take an average – then everyone amongst the class gets a small
b. Sometimes courts will provide formula relief (Hameed v. Iron Workers (8th Cir
1980) (court provided the difference between the average of the class‘s actual
earnings, and the average of what they would have earned absent discrimination).
e. Affirmative Action Relief
i. Affirmative Action Relief can serve the purposes of
1. preventing future discrimination by the employer
2. dissipating the continuing effects of the employer‘s discrimination
3. expanding future employment opportunities for the discriminates
4. providing an incentive for the employer to develop nondiscriminatory employment
5. compensating the discriminates for the employer‘s discrimination
ii. Sheetmetal Workers v. EEOC (1986). Here, the employer persistent in discriminating. The Court
said that an injunction just would not be sufficient to get employer to behave. Reasons why the
affirmative action system is ok here:
1. History of pervasive discrimination
2. History of non-whites being discouraged from applying
3. District court (who wrote the plan) approached the goal as a benchmark, not to achieve
4. Plan is temporary
5. Remedy did not trammel interests of innocent third parties
iii. US v. Paradise (1987). Persistent racial discrimination in the Alabama Dept of Public Safety.
Here, ―one-for-one‖ promotions plan is ok b/c
1. employer has had every opportunity to stop discriminating, and has not
2. they will keep using this plan until they can get their act together.
3. It does not require the incumbents be displaced
4. The % goal represents not the total goal to be met, but the rate at which it will take to
meet that goal.
XIV. Exam Stuff
Ex) Policy question:
1) Be able to suggest changes in the law
2) State what the law is