Employment Discrimination Outline - Radford

Employment Discrimination – Outline
Spring 2004 - Radford

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I. History and Overview
A. Employment at Will
1. Termination for good reason, bad reason, or no reason at all.
2. Common-law theory
B. Restrictions on Employment at Will
1. Whistleblower – cannot fire in retaliation for reporting bad acts. Based on
public policy that employees should be able to report employer’s
wrongdoing.
2. Constitutional Protections for public employers
i. State actors are governed by the Constitution.
3. Contractual Provisions - Explicit or implicit modifications of the
employment at will doctrine.
i. Contract basis
ii. Can include employee handbooks, statements, etc.
iii. Promissory estoppel theory
iv. Covenant of good faith – employer has to live up to the spirit of
the bargain
4. Georgia is much more employer-oriented than most other states.
C. Important Employment Laws
1. Title VII – One of the first federal laws placing restrictions on an
employer’s ability to make employment decisions.
i. Grounded in Commerce clause of the Constitution.
ii. Passed in 1964 as part of the Civil Rights Act
iii. Originally, required of employers who had 25 employees or
more. Later amended to 15.
iv. Amended in 1991 and among other things, allowed jury trials for
disparate treatment claims.
a. Originally, did not allow jury trials because would have
been all white in 1964.
2. Equal Pay Act of 1963
i. Has been folded into Title VII.
3. Age Discrimination in Employment Act (ADEA) of 1967
i. First passed, could not discriminate against persons 40-65.
ii. Amended to take it up to 70.
iii. Finally, took off the age cap so that anyone over 40 years old.
iv. Thus, cannot force someone to retire at certain age.
4. 42 U.S.C. 1981 and 1983
5. Americans with Disabilities Act of 1990
i. Expanded the Rehabilitation Act of 1973.
6. Discrimination under Federally Assisted Programs
7. State Fair Employment Laws
i. Mini Title VII laws.
D. See History of Civil Rights Act of 1964 Handout
II. Individual Disparate Treatment Discrimination
A. § 703 makes it an unlawful employment practice to discriminate on the basis of
race, color, religion, national origin, or sex.
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1. Requires that “because of” protected trait, there was discrimination.
B. Slack v. Havens, 522 F.2d 1091 (1975)
1. Four black women pulled out of their job to do heavy cleaning.
2. White woman not made to do the cleaning.
3. Plaintiff must prove act and intent.
4. Proof of Discriminatory Intent
i. Comments made by supervisor who is agent of employer.
ii. Treatment of white employee was also evidence of
discriminatory intent.
5. This case came before amendment to Civil Rights Act that allowed jury
trials for disparate treatment.
C. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)
1. ERISA – Employee Retirement Income Security Act
i. Passed to protect employee’s pensions.
ii. Vesting is the process by which you become more and more
entitled to their pension.
2. Biggins claims discrimination based on his age.
3. He argues that age and vesting are the same.
i. In order to vest, you have to get older.
ii. He argues this is direct evidence.
4. Court indicates that vesting is not a proxy for age and Biggins was fired
for vesting and firing for vesting does not violate ADEA.
5. Biggins is protected under the ERISA statute.
D. Who is an Employer and Who is an Employee
1. Hishon v. King & Spalding, 467 U.S. 69 (1984)
i. Term employer under Title VII is defined as a person engaged in
an industry affecting commerce who has 15 or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceeding calendar year and any agent of such
person.
ii. Hishon claimed she was not promoted because of her sex.
iii. Partnership as between partners is not an employment
relationship.
iv. Court separated “getting to the partnership” from “partnership”.
v. Hishon argued that a condition of her employment was the
promise made by the firm to be considered for partnership fairly.
E. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
1. Green was a black mechanic who was laid off from McDonnell Douglas in
1964 and was denied a return to work in 1965.
2. Cannot go to court until EEOC remedies have been exhausted.
3. McDonnell Douglas claimed that Green had been involved in conduct
during his layoff that was detrimental – stall in, lock in, etc.
4. EEOC is appointed by Executive branch.
5. Relatively short time (120 days from injury) to file complaint with EEOC.
6. Could not get a jury trial until 1991 Amendment.
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7. District Court found for McDonnell Douglas because court believed the
defendant’s reason.
8. District Court would use witness testimony and would be weighing the
credibility of witnesses.
9. Court of Appeals affirmed that unlawful protests were not protected
activities under §704(a), but reversed the dismissal of respondent’s §
703(a)(1) claim relating to racially discriminatory hiring practices.
10. The holding of the Supreme Court is the only precedent.
11. The Court indicates that plaintiff should have had the opportunity to go
forward with evidence because he did make the prima facie case.
12. Prima Facie Case
i. Plaintiff is in a protected class
a. Race
b. Gender
c. Religion
d. National Origin
e. Color
ii. Plaintiff applied and was “qualified”
a. Trying to eliminate frivolous lawsuits
b. The purpose of this is to eliminate two most common
reasons: didn’t apply and not qualified
c. Just has to show that plaintiff met base qualifications
d. Would have to bring evidence such as job descriptions and
postings, as well as qualifying information.
e. Bottom line, this is pretty easy prong to meet.
iii. Plaintiff was rejected
iv. Position is still there – either remaining open or someone else
filled the position
a. Doesn’t matter if filled with someone of the same protected
classification.
b. Might help to prove defendant’s case by showing a lack of
discriminatory intent.
13. Prima facie case can be attacked by the defendant.
14. After prima facie case is made, a presumption of discrimination arises.
i. Employer is presumed to have discriminated in making the
decision.
ii. Saying nothing at this point results in a default judgment for
plaintiff.
15. Burden of proof is on the plaintiff during prima facie case.
16. Burden then shifts to employer to articulate some legitimate,
nondiscriminatory reason for the employer’s rejection.
i. Articulate
a. Defendant must present evidence as to what the legitimate,
non-discriminatory reason for the challenged
ii. Legitimate
iii. Non-discriminatory reason
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17. Employer must rebut the plaintiff’s assertions by presenting evidence of a
legitimate, non-discriminatory reason for the action.
i. Legitimate means non-discriminatory.
ii. Even non-discriminatory reasons but which are arbitrary
sounding could be harmful because of their effects on the jury.
iii. Must only provide evidence that raises a genuine issue of fact.
The explanation must be legally sufficient to justify a judgment
for the defendant. Legally sufficient is anything other than the
protected classes.
iv. The factual inquiry then proceeds to a new level of specificity.
18. Plaintiff then must prove that defendant’s articulated legitimate, non-
discriminatory reason is merely pretext for a discriminatory reason.
i. This is not enough to win the case.
ii. Must show evidence of discrimination to win, according to Hicks
case.
a. Evidence can be shown by
1). Direct evidence of racial animus
2). Pattern of employer discriminating against
protected classes
3). Statistical evidence as to
b. The plaintiff cannot win just by showing a lying employer
(pretext).
F. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976)
1. Two white males were fired while black was retained after stealing
antifreeze.
2. Argument for the defendant was that the Civil Rights Act was designed to
help blacks, not whites.
3. Statute itself prohibited discriminatory preference for any racial group.
4. Also looked at EEOC decisions and case law.
i. One important thing EEOC does is write opinions as to the
meaning of the statute.
5. Finally, looked at legislative history of the Civil Rights Act.
G. Patterson v. McLean Credit Union, 491 U.S. 164 (1989)
1. Patterson, a black woman who was employed as a teller and was laid off.
2. Patterson argued that she was discharged due to her race.
3. “Articulate” could mean
i. “Say” – easy to show
ii. “Present evidence” – in between
a. Supreme Court indicates that when it is the Defendant’s
turn, they must come up with admissible evidence as to
their legitimate, non-discriminatory reason for the
challenged employment decision.
iii. “Prove” – difficult to show
4. Plaintiff is trying to say that they are better qualified than the person who
got the job. However, this is not required of the Plaintiff under Title VII.
H. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)
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1. Black correctional officer or guard at a halfway house was fired and he
claimed it was because of race.
2. New management came in and instituted a campaign or crusade against
officer.
3. District Court found that it was done in bad faith but did not carry his
burden of persuasion as to discrimination.
4. Plaintiff maintains the ultimate burden of persuasion that they were
discriminated against.
5. District Court had found that the employer’s reason was pretextual but that
plaintiff did not carry burden of persuasion.
6. Court of Appeals reversed, indicating that once plaintiff had proved
pretext, judgment as a matter of law should have been granted to plaintiff.
7. Court of Appeals basically said that an employer with a pretextual reason,
they are in no better shape than if they did not say anything.
8. Scalia, Rehnquist, Thomas, Kennedy, O’Connor on majority
9. Souter, White, Blackmun, Stevens on dissent
10. Dissent argues that employee must only prove that there is pretext.
i. Rationale behind the dissent is that employee will face a hugely
difficult task because the employer will continue to come up with
reason after reason that the employee must shoot down.
11. Majority says that plaintiff still has burden of persuasion and must
ultimately show discrimination. Must prove that pretext was covering
discrimination.
I. Courts of Appeals went two different ways after Hicks
1. Pretext only – Souter’s version – must only prove that reason was pretext
2. Pretext plus – Scalia’s version – must prove that reasons were pretext and
that there was discrimination behind this.
J. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)
1. Age discrimination suit
2. District court in jury trial returned verdict for plaintiff
3. Court of Appeals reversed jury verdict.
4. Supreme Court reversed Court of Appeals
5. ER claimed that fired supervisors were not performing up to par.
6. Prima facie case
i. Over age 40
ii. Was qualified
iii. Fired
iv. Position was open
7. Burden then shifts to employer to articulate a legitimate, non-
discriminatory reason for decision.
8. Company indicates that the reason was for falsification of reports, etc.
9. Plaintiff then shows evidence that indicated that this was not true and also
that there were discriminatory reasons for the decision.
10. This does not end the inquiry – Plaintiff must still show age
discrimination.
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11. Through the comments made such as the Mayflower comment.
Circumstantial evidence of discriminatory intent.
12. The court indicated that ALL relevant evidence, including the prima facie
case evidence must be considered to determine if discrimination has
occurred.
13. Supreme Court indicates that it is possible for plaintiff to prove
discrimination by just having prima facie case and shooting down pretexts
– it may not be sufficient in some cases.
14. Fact that plaintiff does not have evidence additional to prima facie case is
NOT fatal to the plaintiff’s case because ALL evidence can be used to
determine discrimination.
15. Discrimination can be by circumstantial evidence – it can be done just
with prima facie case and by shooting down the pretext arguments of the
employer.
K. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
1. Mixed motives case
2. Worked for PW for 5 years with success
3. Partners recommended her for partnership
4. Some comments from staff indicated that she had some problems working
with staff.
5. Her nomination was held for reconsideration.
6. 88 people proposed for partnership, Hopkins was only woman
7. Evidence of gender discrimination
i. Partner’s Comments
a. Too “macho”
b. Partner would never vote for woman
c. Too much foul language for a woman
d. Should go to charm school
e. Overcompensating for being a woman
f. Should act more feminine
8. PW claimed that Hopkins lacked interpersonal skills
i. This is a legitimate, non-discriminatory reason
9. Some evidence indicated that Hopkins DID have interpersonal skills.
10. Brennan indicated that there is a Catch-22
i. If not aggressive enough, she won’t make partner
ii. If too aggressive, she won’t make partner
11. Other evidence was statistics as well as psychologist testimony as to sex
stereotyping.
12. Under McDonnell Douglas approach, would have had to decide whether
gender was the reason or whether lack of interpersonal skills was the true
reason for the employment decision.
13. Court believes this case to be a mixed motives case.
14. O’Connor wanted to make sure that the comments were not just “in the
air”
i. In other words, that the comments were directed at person and at
the employment decision.
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15. O’Connor concurrence is really where further controversy comes from.
i. O’Connor indicates that discrimination must have been a
substantial motivating factor in the employment decision.
16. Kennedy dissent argues that plaintiffs should have to prove that “but for”
discriminatory motive, the employment decision would not have occurred.
17. Brennan indicates that defendant should have the burden to prove that
their legitimate, non-discriminatory reason was correct.
18. Under Price Waterhouse, the minute you have done something to show
discrimination, the burden of proof has shifted to the defendant to prove
that their stated, legitimate, non-discriminatory reason was the real reason.
i. Essentially, this is proving that they would have made the same
decision regardless.
ii. Essentially, defendant must prove this as an affirmative defense.
19. Brennan’s opinion wants objective evidence, whereas White’s
concurrence only requires the subjective evidence presented by the
defendant as to what their reason is.
20. O’Connor’s concurrence wants substantial factor, not just a factor.
L. Civil Rights Act of 1991 Codified Portions of Price Waterhouse Decision
1. § 703(m)
i. Unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment
practice, even though other factors also motivated the practice.
2. § 703(m) indicates that if plaintiff shows that sex was a motivating factor,
defendant is liable – this is the liability phase
3. § 706(g) then kicks in – this is the remedy phase
i. If defendant is able to prove that they would have made the same
decision absent the protected factor, the remedy is limited to
attorney’s fees, declaratory judgment/injunctive relief, and costs.
ii. If defendant is unable to prove that they would have made the
same decision absent the protected factor, the remedy is back
pay, reinstatement, compensatory damages, etc.
M. O’Connor’s Concurrence Spawned Three Lines
1. Classic
i. Requires direct evidence only in order to obtain mixed-motives
instruction and if not, it is a McDonnell Douglas-type case.
ii. Strict interpretation
2. Animus
i. Requires hostility or negative feeling toward person because they
are in protected class.
3. Animus plus
i. Can be a combination of direct and circumstantial evidence in
order to obtain the mixed-motives instruction.
ii. Was used by most of the courts during this time.
N. Costa v. Desert Palace, Inc., 299 F.3d 838 (2002)
1. Female worked in warehouse
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2. Mostly male
3. Circumstantial evidence indicated that males were treated better than
Costa.
4. Trial court found for Costa and awarded her damages
5. Trial court decided sex was a motivating factor and gave mixed motives
factor
i. Defendant argued that mixed motives required direct evidence
6. Jury was also told that if defendant could not prove that they would have
made same decision, plaintiff could get damages.
7. Defendant also argued that the evidence was insufficient
8. Take Aways from this case
i. Do not have to have only direct evidence of discrimination
ii. Plaintiff does not have to start with McDonnell Douglas
framework
O. Usually, plaintiffs bring both single motive and mixed motive causes of action.
III. Systemic Disparate Treatment
A. Systemically, class of persons is treated differently
B. Kinds of Systemic Disparate Treatment
1. Formal policy
2. Pattern or practice
C. Formal Policies of Discrimination
1. LA Department of Water & Power v. Manhart, 435 U.S. 702 (1978)
i. Female employees live longer than male employees
ii. Employer requires females to pay more per month to compensate
for their increased longevity.
iii. Court held that this results in discrimination to “individuals” and
Title VII prevents discrimination against individuals with regard
to protected traits
iv. Department argued that if it was not done like this, men would be
discriminated against.
v. Department also argued that discrimination is rebutted by a
demonstration that there is a like difference in the cost of
providing benefits for the respective classes.
vi. Dissent argues that this is an economic decision, not a decision
based on discriminatory reasons.
a. Stevens would say that there is not a “cost defense” to Title
VII.
vii. Ways pension plan could be redone
a. Subcontract out discrimination to insurance companies
1). Did not work because they were agents of the
company.
viii. Essentially, Supreme Court said that gender cannot be used as a
predictor of age anymore for pension plans.
ix. What this case tells us is that if there is a formal policy that
results in systemic disparate treatment, it is not allowed.
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x. At the time this case was decided, Supreme Court had held that
discrimination on basis of pregnancy was OK and was not
discrimination on the basis of gender.
D. Patterns and Practices of Discrimination
1. No formal discriminatory policies
2. Teamsters v. United States, 431 U.S. 324 (1977)
i. Government brought this case. Today, it would be brought by
EEOC.
ii. This is an action brought on behalf of a class – technically, it is
not a class action.
iii. Teamsters are a labor union.
a. Unions are covered by Title VII.
b. At time of Title VII, unions were mostly white men.
iv. Justice Stewart wrote opinion
v. Allegation is that employer and union had discriminatory
practices with regard to hiring, promotions, etc.
vi. Majority of evidence is statistical
a. Statistics show that there were virtually no AA or Latino
line drivers.
b. General evidence indicated wage discrepancy on racial
lines.
vii. Defendant’s response is that they were hiring the most qualified
and that they stopped doing this when Title VII was enacted.
viii. Defendants also claimed that § 703(j) did not require employer’s
statistics to match that of applicant pool.
a. Statute indicated nothing required preferential treatment.
ix. Court responds that statistics can be used to prove prima facie
case.
x. At trial, Defendants were found liable for systemic disparate
treatment in liability phase.
xi. However, Defendants in remedy phase had to prove the decision
would have been the same.
3. Hazlewood School District v. United States, 433 U.S. 299 (1977)
i. Another Stewart decision.
ii. Court says that student population versus teacher population is
irrelevant.
iii. School district did not have a system for selecting teachers.
iv. What is missing in this case is intent to discriminate.
v. The pattern of discrimination is there in terms of statistics.
vi. In this case, there is no evidence of specific statements indicating
discrimination.
vii. Court indicates that if discrimination stops, the workforce will
reflect the qualified persons in the community for the position.
E. Statistical Evaluation
1. Courts might be interested in multiple regression analysis or standard
deviation analysis.
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2. Supreme Court said in Teamsters case that absent explanation, it is
ordinarily to be expected that non-discriminatory hiring practices will in
time result in a work force more or less representative of the racial and
ethnic composition of the population in the community from which
employees are hired.
3. § 703(j)
i. Nothing contained in Title VII requires the employer to
affirmatively give preferential treatment in order to meet the
percentages of the community.
4. In Teamsters, the Court indicated that there was a gross disparity and that
this is enough to prove the prima facie case.
5. Statistics are used in
i. Systemic disparate treatment of group – pattern or practice
ii. Individual cases
iii. Disparate impact cases
a. MUST have statistics to have claim.
6. Statistics can be used to point out potential problems
7. In the above problem, there are three reasons for the 5 persons not to be
hired
i. Chance
a. Standard deviation analysis will show the likelihood that
chance was involved.
ii. Discrimination
iii. Legitimate reasons
8. Standard Deviation Analysis
i. Z = (O – NP) / Square Root of NP(1-NP)
a. Where Z = number of standard deviations
b. O = observed outcome
c. N = size of sample
d. P = probability of outcome
9. Statisticians say a Z value of 1.96 is appropriate for discrimination
analysis.
i. Outside of 1.96 standard deviations is indicative that it is
something other than by chance, i.e. discrimination.
10. The real problem is identifying the relevant numbers for the analysis.
11. Multiple Regression Analysis
i. This analysis takes many factors into account.
ii. Essentially, it is the impact of independent variables on
dependent variables.
iii. Analysis shows what impact each variable has.
F. Bona Fide Occupational Qualification Defense
1. Bona fide occupational qualification (religion, sex, or national origin – not
race) that is reasonably necessary to the normal operation of that particular
business or enterprise.
2. Dothard v. Rowlinson, 433 U.S. 321 (1977)
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i. Supreme Court held that Alabama’s prohibition of denying
females the ability to hold a job as a prison guard in a contact
position.
ii. Court focused on “safety”
a. Of other guards
b. Of other inmates
iii. Dissent argued that it was the State of Alabama’s job to make the
prison more safe.
a. This would cost more money.
3. Western Air Lines v. Criswell, 472 U.S. 400 (1985)
i. ADEA case.
ii. BFOQ defense is written into statute.
iii. Airline want to put policy into place that prevents persons over
the age of 60 from holding position as flight engineer.
iv. Safety again is the issue here.
v. Court indicates that BFOQ must be for the “essence of the
business”.
4. International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)
i. Concurrence Scalia
ii. Majority Blackmun and the rest O’Connor/Marshall/Thomas/
iii. Concurrence White/Rehnquist/Kennedy
iv. Blackmun starts out with framing the essence of the business as
manufacturing batteries.
v. Policy of Johnson Controls was to not allow women to work with
lead.
vi. District Court and Court of Appeals used business necessity
defense.
a. However, this business necessity defense only applies to
disparate impact cases.
vii. Court holds that this is sex-based discrimination because it is
only required of women, not men.
viii. Also, the Pregnancy Discrimination Act indicated that for Title
VII purposes, discrimination based on pregnancy is
discrimination based on sex.
ix. None of these cases are malevolent – all employers are trying to
be helpful.
x. Court indicates that BFOQ should be construed narrowly.
xi. Blackmun indicates that “occupational” means the objective,
verifiable requirements of the position. Concurrence would
indicate it is anything related to the job.
xii. Court indicates that unborn fetuses were not essential to the
business – thus they are not the essence of the employers
business.
xiii. Safety exception as applied to pregnancy had only been used
when there was an impact on third parties by the pregnancy.
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xiv. Court concludes that employer cannot establish BFOQ defense in
this case.
xv. Concurrence is concerned with the tort liability of the employer
for birth defects caused by exposure to lead.
a. White basically indicates that in some instances fear of tort
liability may be a BFOQ.
xvi. Blackmun’s opinion is dismissive of the tort liability.
xvii. The Court does NOT indicate that cost is NEVER a defense.
a. There appears, even in Blackmun’s opinion, some room for
cost as a defense.
xviii.Scalia’s concurrence indicates that cost can support a BFOQ
defense.
5. Court has held that privacy needs can result in a BFOQ defense against
sex discrimination.
6. Authenticity has also been held to result in a BFOQ defense when there is
a need for a specific race, national origin, etc.
7. Customer Preference
i. Handout
a. Airline would argue that the essence of their business is to
transport businessmen happily.
b. Men would argue that the essence of the airline’s business
is the safe transport of passengers.
ii. Courts have been divided on this subject.
8. BFOQ is only a defense for DISPARATE TREATMENT
IV. Systemic Disparate Impact
A. Introduction
1. Employment policies, regardless of intent, adversely affect one group
more than another and cannot be adequately justified.
2. Applies Under
i. Title VII
ii. ADA
3. May Apply Under
i. ADEA – Congress and Supreme Court have not addressed
4. Does Not Apply
i. 42 USC § 1981
ii. 42 USC § 1983
B. Griggs v. Duke Power Co., 401 U.S. 424 (1971)
1. US Supreme Court - 1971
2. Opinions
i. Majority – Burger
ii. No other opinions.
iii. Brennan did not participate.
3. Decision
i. 8-0
4. Facts
i. Plaintiffs were AA employees of Duke Power in North Carolina.
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ii. Of 95 employees, 14 were AA
iii. Plant is divided into five operating departments
a. Labor
1). AAs were only employed in this department.
2). Highest wages lower than lowest wages in other
departments.
b. Coal Handling
c. Operations
d. Maintenance
e. Laboratory and Test
iv. Prior to Title VII, company instituted a policy of requiring a high
school diploma for initial assignment to any department except
labor and for transfer from coal handling to other departments.
v. When Title VII was enacted, the company stopped its overt
restriction of AAs to the labor department; however, the high
school completion requirement was made a prerequisite for
transfer from labor to any other department.
vi. Also, the same day as Title VII was enacted, the company
required new employees to get satisfactory scores on two aptitude
tests for placement in any department except labor.
vii. Later that same year, the company began allowing employees in
labor department, although not possessing a high school diploma,
to transfer to other departments as long as they passed the tests at
a high school level.
viii. The tests were not intended to measure the ability of an employee
to perform a particular job.
5. Procedural
i. District Court found for the company, indicating that
discriminatory conduct had ceased and that Title VII was
prospective and not intended to address prior inequities.
ii. Court of Appeals affirmed, holding that in the absence of a
discriminatory purpose, the use of requirements such as tests and
high school graduation were permitted by Title VII.
6. Issues
i. Whether an employer is prohibited by Title VII from requiring a
high school diploma or passing intelligence tests as a condition of
initial employment or transfer to jobs when
a. Neither standard is shown to be significantly related to
successful job performance?
b. Both requirements operate to disqualify AAs at a
substantially higher rate than white applicants?
c. The jobs in question formerly had been filled only by white
employees as part of a longstanding practice of giving
preference to whites?
7. Holding and Rules
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i. Under Title VII, Congress requires the removal of artificial,
arbitrary, and unnecessary barriers to employment when the
barriers operate invidiously to discriminate on the basis of a
racial or other impermissible classification.
ii. If an employment practice which operates to exclude AAs cannot
be shown to be related to job performance, the practice is
prohibited.
iii. Good intent or absence of discriminatory intent does not redeem
employment procedures or testing mechanisms that operate as
built in headwinds for minority groups and are unrelated to
measuring job capability.
8. Other
i. Title VII does not require hiring simply because a person is a
minority or because he was formerly subject to discrimination.
ii. The Court indicated that although the company had indicated the
requirements were used to upgrade the quality of the workforce
and that there was evidence of a lack of discriminatory intent, the
prerequisites served to disqualify AAs and resulted in
discrimination.
iii. The Court looked at EEOC guidelines and gave them great
deference. The guidelines stated that only job-related tests are
allowed.
iv. The Court also looked at legislative history and concluded that
this guideline was consistent with Congressional intent.
v. Burger indicated that “touchstone” is business necessity – others
are artificial, arbitrary, and unnecessary.
vi. In unpublished portion of opinion, Burger indicates that employer
has burden of persuasion.
vii. First step is to determine impact, then whether the requirements
are artificial, arbitrary, and unnecessary.
C. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)
1. US Supreme Court - 1989
2. Opinions
i. Majority – White, Rehnquist, O’Connor, Scalia, Kennedy
ii. Dissent – Stevens, Brennan, Marshall, Blackmun
3. Decision – 5-4
4. Facts
i. Wards Cove operated a salmon canning operation in Alaska
during salmon runs in the summer months.
ii. There are two main categories of jobs at the canneries – unskilled
cannery jobs on the canning line and skilled non-cannery jobs
like accountant, manager, ship’s captain, etc.
iii. Cannery jobs are filled predominantly by non-whites; non-
cannery jobs are filled by white workers.
iv. Additionally, the cannery and non-cannery employees live in
separate dormitories and dine in separate mess halls.
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v. Non-white cannery workers brought class-action suit under Title
VII alleging that Wards Cove’s employment practices (nepotism,
rehire preference, lack of objective hiring criteria, separate hiring
channels, and a practice of not promoting from within) led to
racial stratification of the work force and denied employment to
non-whites on the basis of race.
5. Procedural
i. Court of Appeals held that disparate impact analysis applied and
that the workers had established a prima facie case of disparate
impact.
ii. The Court of Appeals remanded the case to the District Court,
instructing that it was the employer’s burden to prove that the
practices were a business necessity.
iii. Wards Cove appealed and the Supreme Court granted cert.
6. Issues/Holding/Rules/Rationale
i. Whether a comparison of the percentage of non-whites in
cannery jobs with the percentage of non-whites in non-cannery
jobs is the proper comparison to establish a prima facie showing
of disparate impact?
a. No. The proper comparison is between the racial
composition of the at-issue jobs and the racial composition
of the qualified population in the relevant labor market.
1). Court of Appeals acceptance of comparison
between non-white composition of canner and non-
cannery jobs was flawed.
2). As long as there are no barriers or practices
deterring qualified nonwhites from applying for
non-cannery positions, if the percentage of selected
applicants who are nonwhite is not significantly less
than the percentage of qualified applicants who are
nonwhite, there is probably not disparate impact.
ii. Whether, in addition to showing that there is a racial imbalance,
the plaintiff in a disparate impact case must demonstrate that the
disparity that they complain of is the result of one or more of the
employment practices they are attacking?
a. Yes. Plaintiffs will have to demonstrate that the disparity
they complain of is the result of one or more of the
employment practices that they are attacking, specifically
showing that each challenged practice has a significantly
disparate impact on employment opportunity.
1). Must show that each challenged practice has caused
the disparate impact.
2). Liberal discovery and statutory requirements of
recordkeeping will facilitate this showing.
Page 16 of 55
iii. Whether, if plaintiff proves a prima facie case of disparate
impact, the burden then shifts to the employer to demonstrate a
business justification for the practice?
a. Yes. After proving a prima facie case of disparate impact,
the employer then can present evidence of business
justification. This has two components
1). Justifications an employer presents for use of the
practices.
i). Burden of production only shifts.
ii). Burden of persuasion always remains with
plaintiff.
iii).Justification relates to legitimate business
goals.
iv). No requirement that it be essential or
indispensable.
2). The availability of alternative practices to achieve
the same business ends with less racial impact.
7. The Court also pointed out that the judiciary should proceed with care
prior to mandating that an employer adopt the employee’s alternative
practice.
i. Factors such as cost or other burdens on the employer are
relevant.
8. Dissent
i. Majority opinion reworks Griggs.
ii. Courts have repeatedly recognized that in a disparate impact case,
business necessity is an affirmative defense.
iii. The requirement that plaintiffs isolate and identify the
employment practices that result in disparate impact is too high.
iv. The majority opinion departs from traditional disparate impact
theory, reformulating the order of proof and the weight of the
parties’ burdens.
v. Stevens slaps the majority in the face by indicating that this is a
sojourn into judicial activism.
D. Amendments to Title VII in 1991 Civil Rights Act
1. § 703(k) and (m)
i. P. 341
ii. Plaintiff must demonstrate (carries the burden of production
AND persuasion) that the employer uses a particular employment
practice that caused disparate impact on the basis of race, color,
religion, sex, or national origin and the respondent fails to
demonstrate (carries the burden of production AND persuasion)
that the challenged practice is job related for the position in
question and consistent with business necessity; or the
complaining party makes the demonstration described in
subparagraph (C) with respect to an alternative employment
Page 17 of 55
practice and the respondent refuses to adopt such alternative
employment practice.
a. Exception in § 703(k)(1)(B)(i)
1). If plaintiff demonstrates that the particular
employment practices cannot be separated for
analysis, the decision-making process can be
analyzed as one employment practice.
iii. Defendant must demonstrate (carries the burden of production
AND persuasion) that particular employment practice did not
produce the impact. If they do this, they do not have to
demonstrate (carries the burden of production AND persuasion)
that the practice is required by business necessity.
E. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)
1. US Supreme Court – 1988
2. Opinions
i. Majority – O’Connor, Rehnquist, Scalia, White
ii. Concurring in Part and Concurring in Judgment – Blackmun,
Brennan, Marshall
iii. Concurring in Judgment – Stevens
iv. Not Participating - Kenndey
3. Decision – 8-0
4. Facts
i. Clara Watson, an AA employee of Fort Worth Bank & Trust, was
not promoted on several occasions.
a. Supervisor of tellers in main lobby.
1). White male given job.
b. Supervisor of Drive-In Bank
1). White female given job.
c. Supervisor of tellers in main lobby.
1). White female given job.
d. Supervisor of tellers at Drive-In
1). White male given job.
ii. White supervisors made the decision.
iii. Watson brought suit under both disparate treatment and disparate
impact.
iv. District Court found for employer.
v. Court of Appeals affirmed the finding of no proof of disparate
treatment.
vi. Court of Appeals also held that the case of an allegedly
subjective or discretionary promotion system was properly
analyzed under disparate treatment theory and NOT disparate
impact.
vii. There is nothing in facts that indicate that there was a
discriminatory intent – disparate treatment.
5. Issue/Holding/Rule/Rationale
Page 18 of 55
i. Whether disparate impact analysis is available to plaintiffs trying
to prove that subjective or discretionary employment practices
resulted in discrimination?
a. Yes. Subjective or discretionary employment practices
may be analyzed under the disparate impact approach in
appropriate cases.
1). Previous cases under disparate impact involved
standardized tests or criteria.
2). Previous cases had used disparate treatment to
review hiring and promotion decisions that were
based on the exercise of personal judgment or
subjective criteria.
3). Court indicates that if disparate impact was only
applied to standardized selection practices, the
decisions of Griggs and other cases would be
nullified.
4). While disparate treatment requires intent to
discriminate, under disparate impact, intent is
irrelevant.
5). By only allowing review of subjective or
discretionary practices under disparate treatment
analysis, plaintiff would have to prove intent.
However, if allowed to proceed under disparate
impact, would not have to prove intent of employer
to discriminate.
6). This is more in line with aims and objectives of
Title VII.
7). O’Connor is more concerned with saying that only
objective tests are available because this will lead to
employers starting to utilize subjective
requirements.
8). Subjective versus objective is not black and white –
it is a spectrum.
6. Plaintiff’s Prima Facie Case
i. Disparate Impact
ii. Causation between particular practice and disparate impact.
7. What if race AND gender came into play?
i. Courts of Appeals indicate that exponential increase in
discrimination is not taken into account.
F. Connecticut v. Teal, 457 U.S. 440 (1982)
1. US Supreme Court – 1982
2. Opinions
i. Majority – Brennan, Marshall, Stevens, Blackmun, White
ii. Dissent – Powell, Burger, Rehnquist, O’Connor
3. Decision – 5-4
4. Facts
Page 19 of 55
i. Teal and three other AAs were employees of Connecticut’s
Department of Income Maintenance who were provisionally
promoted to Welfare Eligibility Supervisors.
ii. Prior to this promotion becoming permanent, all provisional
supervisors were required to pass a written examination.
iii. Of 329 provisional supervisors taking examinations, 48 were AA
and 259 were white.
iv. With a passing score of 65, 54.17% of AAs passed. This was
only 68% of the passing rate for whites. (Whites must have had
an 80% passing rate).
a. 80% Rule
1). Selection rates for minorities that are less than 80%
of the rate of the highest group rate will generally
be regarded as evidence of adverse impact.
v. Teal and the other three AAs did not pass and were excluded
from further consideration as supervisors.
vi. Only those that passed test were eligible for consideration as a
supervisor and the Department considered past work
performance, supervisor recommendations, and seniority to
award supervisory positions.
vii. The “bottom line” of the selection process was that of the original
48 AA supervisor candidates, 11 were selected as supervisors –
22.9%. Of 259 white candidates, 35 were selected of supervisors
– 13.5%.
viii. The Department claimed that this bottom line result was more
favorable to AAs and should serve as a complete defense to the
complaint that the process results in disparate impact.
5. Issue/Holding/Rule/Rationale
i. Whether an employer sued for violating Title VII may assert a
“bottom line” defense that prevents plaintiffs from establishing a
prima facie case or that establishes a conclusive defense to
disparate impact?
a. No. The “bottom line” of statistics showing racial balance
does not preclude employees from establishing a prima
facie case and it does not serve as a defense to such a case.
1). The Court indicates that the thrust of Title VII is
that individuals have the opportunity to compete
equally with white workers on the basis of job-
related criteria.
2). Employee’s rights are violated unless the employer
can demonstrate that the examination was not an
artificial, arbitrary, or unnecessary barrier that
measures skills related to effective performance of
the job.
3). The Court says that Congress never intended to give
an employer license to discriminate against
Page 20 of 55
individual employees just because other members of
the employee’s group are favorably treated.
4). Brennan is worried what the effects of the decision
would be if “bottom line” was allowed – essentially,
that it would foster quotas.
6. Dissent
i. Disparate impact cases evaluate the employer’s total selection
process and its effects on a protected group.
ii. To say that hiring 22.9% of black supervisory applicants as
opposed to 13.5% of white applicants results in disparate impact
is to distort reality.
iii. The dissent argues that the majority allows a plaintiff to benefit
from a combination of discriminatory treatment and disparate
impact theories.
iv. The dissent argues that the majority is confusing the
individualistic AIM of Title VII with the METHODS OF PROOF
developed by case law by which an employee’s rights may be
vindicated.
v. Having undertaken to prove a violation of Title VII under
disparate impact by reference to group figures, the employee
cannot deny the employer the ability to refute the evidence by
indicating that there is no disparate impact.
G. The New “Bottom Line” Exception of the 1991 Civil Rights Act
1. § 703(k)(1)(A)(i) requires plaintiff to identify particular employment
practices that cause disparate impact.
2. § 703(k)(1)(B) is an exception that allows the entire decision-making
process to be treated as one employment practice if the components are
unable to be separated. Bottom-line statistics are allowed to show impact.
3. Burden of persuasion then shifts to employer to prove either
i. That the specific practices that make up the decision-making
process do not cause the impact, or
ii. That the remaining practices are justified as job related and
consistent with business necessity, or
iii. That those practices fall within the § 703(h) defenses
a. If employer demonstrates that a specific employment
practice does not cause the disparate impact, the employer
will not be required to demonstrate that such practice is
required by business necessity.
H. Problem P. 358
1. I think the employee would be able to indicate that the subjective selection
process, including the components relied upon for the decision, qualifies
as a particular employment practice. Thus, it would be appropriate to use
bottom-line statistics to prove the disparate impact.
I. The Employer Uses the Practice
1. § 703(k)(1)(A)(i) requires that plaintiff prove that the employer uses a
particular employment practice that causes a disparate impact.
Page 21 of 55
2. This requires a causal link between the practice used by the employer and
the resulting impact.
3. Dothard v. Rawlinson, 433 U.S. 321 (1977)
i. US Supreme Court – 1977
ii. Opinions – For this part of the case ONLY (Parts I and II)
a. Majority – Stewart, Stevens, Powell
b. Concurrence – Rehnquist, Burger, Blackmun
c. Concurrence – Marshall, Brennan
d. Dissent - White
iii. Decision as to this part 8-1.
iv. Overall decision 8-1 or 6-3 if Marshall/Brennan dissented in
judgment (couldn’t tell)
v. Facts
a. Rawlinson was denied employment as a correctional
counselor (guard) in Alabama’s prison system.
b. She failed to meet the 120 pound weight requirement
required by statute.
c. There was also a minimum height requirement of 5’2”.
d. Alabama prisons are segregated on basis of sex with inmate
living quarters consisting of large dormitories and
communal showers and toilets.
e. Because some of the prisons have large agricultural
operations, extensive strip searches are required.
f. The primary duties of the correctional counselor are to
maintain security and control of inmates.
g. Requirements
1). Valid Alabama driver’s license.
2). 20.5 – 45 years old
3). Between 5’2” and 6’10”
4). Between 120 pounds and 300 pounds
h. Rawlinson’s claim is NOT one of purposeful
discrimination or disparate treatment.
i. Rawlinson’s claim is for disparate impact.
j. Specifically, that the height and weight requirements
disproportionately exclude women.
k. Disparate Impact
1). Prima Facie Case
i). Facially neutral standards result in a
significantly discriminatory pattern.
2). Employer then must show that the requirements
have a relationship to the employment in question.
3). If employer proves that the requirements are job
related, the plaintiff can then show that other
selection devices without discriminatory effect can
be used to serve the employer’s interest.
l. Statistics in this Case
Page 22 of 55
1). Women in Alabama
i). 57.2% of population
ii). 36.9% of labor force
iii).12.9% of correctional counselor positions
2). Height Requirements of 5’2” – 6’10” Would
Exclude
i). 33.3% of women in US
ii). 1.3% of men in US
3). Weight Requirements of 120-300 Pounds Would
Exclude
ii). 2.35% of men in US
4). Combined Height and Weight Requirements Would
Exclude
ii). <1% of men in US
m. District Court concluded that this made out prima facie
case.
vi. Employer’s Arguments
a. Statistical comparison is flawed because it is based on
national statistics and not the statistics of the applicant pool
itself.
b. Prima facie case has been rebutted by the fact that height
and weight are job related because they have a relationship
to strength.
vii. Issue/Holding/Rule/Rationale
a. Whether there is a requirement that a statistical showing of
disproportionate impact must always be based on analysis
of the characteristics of actual applicants?
1). No. There is no requirement that a statistical
showing of disproportionate impact must always be
based on analysis of the characteristics of actual
applicants.
i). Rationale is that the application process
itself might not accurately reflect the
potential applicant pool because the
requirements themselves might serve to
limit applications.
ii). Plaintiffs are not required to exhaust every
source of evidence if the actual evidence
conspicuously demonstrates a grossly
discriminatory impact.
iii).Employer is free to present evidence as to
the deficiencies of plaintiff’s evidence.
viii. Issue/Holding/Rule/Rationale
Page 23 of 55
a. Whether employers who use height and weight simply as
proxies for strength can rebut the prima facie case without
evidence of a correlation between height/weight and
strength?
1). No. An employer must produce evidence that
indicates the correlation between height/weight and
strength and the corresponding ability to perform
the job in order to rebut the prima facie case.
2). Height/Weight requirements would only qualify as
a proxy if it is
i). Impossible or impracticable to test for
strength or
ii). All or substantially all people in height and
weight range do not have sufficient strength.
3). Additionally, an employer could use a test that
measured strength directly and use that measure to
select applicants if the job required strength.
4). In this way, the test would be measuring the person
for the job and not the person in the abstract.
ix. Dissent
a. White’s dissent argues that it is not clear that the
percentage of women applying for or interested in the job
of prison guard is the same as the state or national
population.
J. The Amount of Impact
1. EEOC’s 80% Rule
i. Selection rate of minority group that is less than 80% of the
majority group is regarded by Federal enforcement agencies as
evidence of adverse impact.
ii. Hypo
a. Test where 100 men and 100 women take test
b. 50% of women pass
c. 70% of men pass
1). In this case, women’s pass rate is less than 80% of
men’s pass rate.
2). Would be regarded as evidence of adverse impact.
iii. Test gives 20% room that essentially is “chance”.
iv. Title VII does not require quotas and the test serves as a general.
2. Focus on fail rates can mean very little.
i. For instance, if women’s fail rate was 1% and men’s was 0.5%
3. Should also look at applicant pools.
4. Essentially, statistics are used to make out a prima facie case.
K. Defendant’s Rebuttal
1. Employer’s Use Does Not Cause the Impact
2. Business Necessity and Job-Relatedness
Page 24 of 55
i. Lanning v. Southeastern Pennsylvania Transportation Authority,
181 F.3d 478 (1999)
a. Physiologist was hired to determine physical fitness
attributes of a transit authority police force.
b. Purpose was to have a police force that could respond
quickly – basically, a safety consideration.
c. Incumbent officers had difficulty passing these
requirements – even one who had failed test was a highly
commended officer.
d. Came up with 1.5 mile run in 12 minutes in full gear
1). Data indicated
i). 12% of women passed
ii). 60% of men passed
iii).Fails 80% Rule
e. The running test causes the disparate impact – Step Three.
f. Burden shifts to employer to demonstrate (burden of
production and persuasion) test is job-related and is
business necessity.
1). This is a very strict test under the 1991 Civil Rights
Act
g. Rule – In order to show the business necessity of a
discriminatory cutoff score an employer must demonstrate
that its cutoff measures the minimum qualifications
necessary for successful performance of the job in question.
h. Key is how issue is framed
1). For instance, if it had been framed as the reason for
the requirement was to increase public safety, it
might have been more successful.
i. Dissent
1). Attacks plaintiffs by indicating that they didn’t try.
2). Indicates that business necessity only should mean
justification and safety considerations provide the
justification for the requirement.
3). Basically, dissent argues that essence of business is
public safety and the last thing we should do is to
go to lowest common denominator when safety of
public is at stake.
3. Alternative Employment Practices
i. § 703(k)(1)(A)(ii)
a. If plaintiff shows that there is an alternative employment
practice that does not result in disparate impact and
employer refuses to implement.
ii. Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (1993)
a. Regulation by City that required firefighters to be clean
shaven for safety in using breathing apparatus.
b. Focus of City was on both firefighters and public safety.
Page 25 of 55
c. District Court granted summary judgment for City.
d. Plaintiffs claimed that they could still meet requirements
and not necessarily have to be clean shaven.
1). Shadow beards
2). Partial shaving areas where masks are required
e. Court indicates neither is acceptable in this case.
L. Interrelation of the Disparate Treatment and Disparate Impact Theories of
Discrimination
1. Where There is a Statistical Showing of Effects
i. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (2000)
a. Restaurant had exclusively hired male wait staff.
b. Hiring process was very informal.
1). Roll call on one day in October.
2). Went through interviews.
3). Subjective criteria.
c. EEOC filed complaint on behalf of female applicants,
alleging discrimination on the basis of gender.
d. After EEOC filing, Joe’s started hiring females at a rate of
21.7% out of an applicant pool comprised of 22% females.
e. Also started putting a less subjective hiring process
1). Tray test
2). More people doing interviewing
f. 44.1% of Miami Beach food servers were females and this
is what keyed EEOC into the problem.
g. 31.9% is what District Court came up with when only
comparable restaurants were included.
1). This would narrow things down to those applicants
with relevant experience.
h. EEOC paints picture of Joe’s as a discriminator.
i. EEOC brought case as both a disparate treatment and
disparate impact theories.
1). DC rejected disparate treatment theory and found
disparate impact theory.
j. DC found that Joe’s policies and practices were facially
neutral.
k. DC also found that Old World practice was to have only
men in tuxedos and that Joe’s was trying to emulate this.
l. Court of Appeals finds that there is no evidence of
disparate impact because there is no facially neutral policy
or practice that results in the discrimination.
m. Court of Appeals rejects DC finding that reputation was the
cause of the disparate impact.
n. Court of Appeals indicates that the case is more likely
disparate treatment.
o. There is some evidence of comments, practices, etc. that
discrimination was intentional.
Page 26 of 55
1). This is required under disparate treatment –
statistical evidence is NOT enough in disparate
treatment cases.
p. Court of Appeals seems to indicate that reputation is the
reason that women do not apply and gets close to requiring
Joe’s to change the view of the community.
M. Steps in Disparate Impact Claim
1. Step One – Determining and Showing Disparate Impact
i. EEOC’s 80% Rule
2. Step Two – Employer Rebuttal
i. Employer’s ability to rebut the prima facie case
3. Step Three – Show Causal Connection
i. Test or practice must cause the disparate impact.
4. Step Four – Burden Shifts to Employer and They Must Show
i. Job-Related AND
ii. Consistent with Business Necessity
V. Special Problems in Applying Title VII, Section 1981, and the ADEA
A. Sex Discrimination
1. Not a lot of legislative history indicating exactly what is meant by sex
discrimination.
2. Added to Title VII at last minute trying to keep bill from passing.
3. Pregnancy
i. Prior to Pregnancy Discrimination Act (PDA), under the Gilbert
case discrimination on the basis of pregnancy was NOT
discrimination on the basis of sex within the meaning of Title
VII.
ii. Gilbert case was about disability insurance plan that excluded
pregnancy from coverage.
a. Basic rationale was that pregnancy was voluntary.
iii. PDA
a. Congress overruled Gilbert.
b. Clause One
1). The terms because of sex or on the basis of sex
include, but are not limited to, because of or on the
basis of pregnancy, childbirth, or related medical
conditions
c. Clause Two
1). Women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes…
d. Clause Three
1). This subsection shall not require a …
iv. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S.
669 (1983)
a. Argument was that the PDA only applied to women.
Page 27 of 55
b. Medical plan was set up to provide limited pregnancy-
related benefits for employees’ wives, and affords more
extensive coverage for employees’ spouses for all other
medical conditions requiring hospitalization.
c. The PDA makes clear that it is discriminatory to treat
pregnancy-related conditions less favorably than other
medical conditions. Petitioner’s plan unlawfully gives
married male employees a benefit package for their
dependents that is less inclusive than the dependency
coverage provided to married female employees.
v. Troupe v. May Department Stores Co., 20 F.3d 734 (1994)
a. A saleswoman was terminated because of her excessive
tardiness related to morning sickness and that she would
not come back from leave.
b. Court indicates that unless she can show that males are
treated differently in similar situations.
c. Employers can treat pregnant women as badly as they treat
similarly affected but non-pregnant employees.
d. Troupe court, like most courts, interprets the PDA to
prohibit only conduct that treats pregnant women
differently than similarly situated non-pregnant people.
vi. California Federal Savings & Loan Association v. Guerra, 479
U.S. 272 (1987)
a. Issue is whether California statute preempts federal law
under Title VII.
b. Receptionist took a pregnancy disability leave and when
she was to return to work, bank told her that she no longer
had a job.
c. California law allowed up to four months unpaid leave with
reinstatement if job or equivalent position is still available.
Also, could stay on employer’s insurance plan.
d. Statute only protects women.
e. Bank argues that statute is preempted by federal law.
f. Bank argues that statute, on its face, discriminates on the
basis of sex.
g. Circumstances Under Which Federal Law Preempts State
Law
1). When acting within Constitutional limits, Congress
is empowered to preempt state law by so stating in
express terms.
2). Congressional intent to preempt state law in a
particular area may be inferred where the scheme of
federal regulation is sufficiently comprehensive to
make reasonable the inference that Congress left no
room for supplementary state regulation.
Page 28 of 55
3). In those areas where Congress has not completely
displaced state regulation, federal law may
nonetheless preempt state law to the extent it
actually conflicts with federal law.
h. The Court indicates that the PDA was to be “a floor
beneath which pregnancy disability benefits may not drop –
not a ceiling above which they may not rise.”
i. Court indicates that States can protect women more – PDA
is only a minimum.
j. Interestingly, paternity leave was being offered to men for
the birth and adoption of a child.
vii. Family Medical Leave Act
a. Employers who are covered must offer unpaid medical
leave with basic guarantee of reinstatement.
b. Ensures up to 12 weeks of unpaid leave, including birth or
adoption of a child.
c. Applies to both men and women.
d. Have to have at least 50 or more employers.
1). This excepted 80% of employers.
e. EE must have worked at least 12 months and have worked
1,250 hours during the year preceding the start of the leave.
f. This act was vetoed twice and was finally signed by
Clinton in 1993.
B. Timeline
1. 1964 – Civil Rights Act/Title VII
i. Race was the major issue.
ii. Opposed by Southern Democrats
2. 1972 – Civil Rights Act/Title VII Amendments
i. Extends to public employers.
3. 1978 – PDA
i. No discrimination on basis of pregnancy.
4. 1986 – Cal Fed decision indicates that PDA covers only women and that
States can provide higher benefits than PDA mandates.
5. 1991 – Civil Rights Act Amendments
i. Disparate Impact
6. 1993 – FMLA
7. New Court
i. ADEA/ADA/FMLA does not apply to public employers.
C. Dress Codes and Grooming
1. Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (1975)
i. Fifth Circuit denied a man’s challenge to an employer’s rule
prohibiting male, but not female, employees from having hair
longer than shoulder length.
ii. Mutable/Immutable characteristics
a. Immutable are things that cannot be controlled
b. Race, Sex, National Origin
Page 29 of 55
2. Carroll v. Talman Federal Savings & Loan Assn., 604 F.2d 1028 (1979)
i. Dress code allowed men to wear customary business apparel but
requiring women to wear uniforms.
3. Craft v. Metromedia, 766 F.2d 1205 (1985)
i. Craft was hired as a news co-anchor to “soften” the image of a
“cold” male co-anchor.
ii. Focus groups had given negative feedback as to Craft.
iii. Management took an active role in managing her appearance.
iv. Sued and filed lawsuits in both State and Federal courts.
v. District Court found for Craft
4. Customer Preference
i. Is this a reason to allow an employer to discriminate?
ii. Suppose you are a bank and really want to get Latino business
and want to hire only Latino managers for bank.
D. Sexual Orientation Discrimination
1. DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (1979)
i. Strailey alleges he was fired because he wore an earring.
ii. DeSantis, Boyle, and Simrad – Not hired, fired, or harassed
because of their perceived sexual orientation.
iii. Lundin and Buckley – Fired because of their known lesbian
relationship.
iv. Plaintiffs were pushing to have sexual orientation discrimination
fit into Title VII.
v. Strailey’s Case Today
a. Might not work under grooming/dress cases.
b. Could try to bring under sex stereotyping like Hopkins v.
Price Waterhouse case.
vi. DeSantis, Boyle, and Simrad Cases Today
a. Might be able to win on sexual harassment theory.
b. Title VII does not protect on basis of sexual orientation.
c. Might be able to bring disparate impact cases because there
could be a disproportionate impact on men.
vii. Interference with Association
2. Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
i. Dale had been a very successful scout.
ii. When he went to Rutgers, he acknowledged his homosexuality.
iii. Scouts through him out.
iv. Dale sued under New Jersey public accommodation law.
v. Supreme Court indicates first that this is not a place.
vi. Supreme Court indicates that this is expressive association and
that they are there for the transfer of values and should not be
forced to allow people in.
vii. Court constantly refers back to Hurley case – the St. Patrick’s
Day parade by GLIB.
Page 30 of 55
viii. Rotary and Jaycees cases said that you cannot discriminate
against women and court had to work very hard to distinguish
this.
VI. Sexual Harassment
A. At outset is an assumption that sexual harassment was encompassed under Title
VII.
B. Sexual harassment brings in societal norms to a much greater extent than other
classifications.
C. What happens in a sexual harassment case is often subject to two different
interpretations, whereas in other classifications there is often only one
interpretation.
D. If we are too strict, it makes it extremely difficult to have any kind of employment
relationships.
E. If we are too lenient, it makes the workplace environment too harsh for
employees.
F. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
1. Vinson was employed at Meritor Savings Bank and worked for Taylor.
2. After discharge, she claimed sexual harassment.
3. Quid pro quo – give this in order to get that.
4. She claims hostile environment type of sexual harassment.
5. Claim is that the harassment affected terms, conditions, or privileges of
employment.
6. Vinson freely admitted the sexual contact.
7. Taylor claimed that there was no sexual contact.
8. District Court indicated that since contact was voluntary, relief was
denied.
9. Court of Appeals reversed, holding that unwelcome sexual advances that
create an offensive or hostile working environment violate Title VII.
10. EEOC Guidelines had previously described sexual harassment as
unwelcome sexual advances.
11. Right off the bat, the Court indicates that without question, when a
supervisor sexually harasses a subordinate because of sex, that supervisor
discriminates on basis of sex.
12. Bank argues that quid pro quo is only type of sexual harassment.
13. Supreme Court indicated that language of Title VII is not limited to
economic or tangible discrimination.
14. Hostile Environment Includes
i. Intimidating,
ii. Hostile, or
iii. Offensive
a. This one is problematic because it is so broad.
15. Rules
i. A plaintiff may establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or abusive work
environment.
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ii. For sexual harassment to be actionable, it must be sufficiently
severe OR pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.
iii. The correct inquiry is whether victim by her conduct indicated
that the alleged sexual advances were unwelcome, not whether
her actual participation in sexual intercourse was voluntary.
16. The gravamen of any sexual harassment claim is that the alleged sexual
advances were unwelcome.
G. Harassment “Because of” Sex
1. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
i. Male employee on oil platform was allegedly harassed by other
male members of the crew.
ii. Issue is whether it is sexual harassment if the harasser and
harassed employee are of the same sex.
iii. District Court said flat out that Title VII did not apply.
iv. Court of Appeals affirmed.
v. Supreme Court found that Title VII did apply.
vi. It is pretty clear that the workplace environment was hostile.
vii. Rule
a. Nothing in Title VII necessarily bars a claim of
discrimination because of sex merely because the plaintiff
and the defendant (or the person charged with acting on
behalf of the defendant) are of the same sex.
b. Objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff’s
position, considering all circumstances.
viii. There is another requirement that prevents Title VII from
expanding into a general civility code – the statute does not reach
genuine but innocuous differences in the ways men and women
routinely interact with members of the same sex and opposite
sex.
ix. Court also indicates that if the harassers also harassed women, it
would undermine the contention that the harassment was based
on sex.
H. Unwelcome Conduct
1. Burns v. McGregor Electronic Industries, 989 F.2d 959 (1993)
i. Court of Appeals indicates that to find behavior unwelcome but
not offensive was internally inconsistent as a matter of law.
ii. Rule
a. Conduct un-welcomed by the plaintiff and was of such
character that a hypothetical reasonable woman would
consider the conduct sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
work environment.
2. 11th Circuit
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i. Subjective standard, stating that the conduct must be unwelcome
in the sense that the employee regarded the conduct as
undesirable or offensive.
3. In determining whether a victim’s behavior precludes recovery because
she welcomed sexually charged comments or behavior, courts seem to
weigh the victim’s conduct against that of the alleged perpetrators.
4. Ellison v. Brady, 924 F.2d 872 (1991)
i. Ninth Circuit adopted a standard evaluating the severity and
pervasiveness of sexual harassment from the perspective of the
victim.
ii. After Harris decision, Ninth Circuit modified its standard to
indicate that objective hostility is determined from the
perspective of a reasonable person with the same fundamental
characteristics.
5. Harris case indicated that hostility is determined from perspective that a
reasonable person
I. Severe or Pervasive Harassment
1. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)
i. Issue is whether conduct, to be actionable as hostile work
environment harassment must seriously affect an employee’s
psychological well-being or lead the plaintiff to suffer injury.
ii. Rules
a. Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment – an
environment that a reasonable person would find hostile or
abusive – is beyond Title VII’s purview. Likewise, if the
victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions
of the victim’s employment, and there is no Title VII
violation.
b. So long as the environment would reasonably perceived,
and is perceived, as hostile or abusive, there is no need for
it also to be psychologically injurious.
c. Factors to Look At to Determine if an Environment is
Hostile or Abusive – Not Exclusive – Totality of
Circumstances
1). Frequency of conduct
2). Severity of conduct
3). Physically threatening or humiliating or merely an
offensive utterance
4). Unreasonably interferes with an employee’s work
performance
iii. Concurrence
a. Scalia basically indicates that this is not concrete enough
and is even less clear.
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b. Scalia would use test that conduct unreasonably interferes
with an employee’s work performance.
1). However, he indicates that there is no basis for this
in statute.
J. Vicarious Liability
1. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
i. Issue
a. Whether, under Title VII, an employee who refuses the
unwelcome and threatening sexual advances of a
supervisor, yet suffers no adverse, tangible job
consequences, can recover against the employer without
showing the employer is negligent or otherwise at fault for
the supervisor’s actions?
ii. Facts
a. Female was harassed by a supervisor a couple of levels up.
b. Comments, no physical contact.
iii. Rule
a. 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. When no tangible
employment action is taken, a defending employer may
raise an affirmative defense to liability or damages, subject
to proof by a preponderance of the evidence. The defense
comprises two necessary elements:
1). That the employer exercised reasonable care to
prevent and correct promptly any sexually harassing
behavior and
2). That the plaintiff employee unreasonably failed to
take advantage of any preventative or corrective
opportunities provided by the employer or to avoid
harm otherwise.
iv. Prior to this case, it was unknown whether plaintiff had a duty to
report the sexual harassing conduct.
a. After this case, it is clear that plaintiff must report the
conduct.
v. Basic agency law is that employer is responsible for acts
performed by employee within scope of employment.
vi. Supreme Court indicates that sexual harassment is not within the
scope of employment.
vii. Court uses Restatement of Torts
a. § 219(2)(b) and (d)
b. (b)
1). Apparent authority
c. (c)
1). Aided in the agency relation standard
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2). Whenever there is a tangible employment action,
there is liability.
3). Similar to quid pro quo – seems to be saying the
same thing with tangible employment action.
viii. If there is a tangible employment action, employer is vicariously
liable.
ix. If there is not a tangible employment action, employer can still be
held vicariously liable but employer can assert an affirmative
defense.
a. Two Parts
1). Exercise of reasonable care to prevent and correct
promptly sexual harassment behaviors.
i). To be a good example of a policy, the policy
should have a range of options as to how to
report.
2). That the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective
opportunities provided by the employer or to avoid
harm otherwise.
2. Matvia v. Bald Head Island Management, Inc., 259 F.3d 261 (2001)
i. Plaintiff wants to get into the tangible employment action side so
that employer will be vicariously liable.
ii. Plaintiff alleges that tangible employment action was that she
was ostracized.
iii. Rules
a. Dissemination of an effective anti-harassment policy
provides compelling proof that an employer has exercised
reasonable care to prevent and correct sexual harassment.
b. Evidence that the plaintiff failed to utilize the company’s
complaint procedure will normally suffice to satisfy the
company’s burden under the second element of the defense.
VII. Interrelationship of Various Rights and Remedies
A. Settling Discrimination Claims
1. Alternative Dispute Resolution (ADR) Methods
i. Negotiation
a. Involves parties and parties’ attorneys.
b. Contract law would apply to any agreements made between
parties.
c. Any outcome is possible.
ii. Mediation
a. Involves third-party mediators.
b. Mediator facilitates the discussions betweens the parties.
c. Brainstorming and other devices are used to develop
settlement.
d. No opinion is issued by mediator.
e. Settlement agreement is a binding contract between parties.
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f. Any outcome is possible.
iii. Arbitration
a. Third-party arbitrators are used to make the decision.
b. Parties present their case and arbitrator makes decision.
c. Can possibly appeal, but only manifest disregard for law
will be overturned.
d. Arbitrator does not have to write opinion.
e. Can contract for different options.
f. Binding arbitration means that parties are bound by the
decision.
g. Non-binding means what it says.
h. Outcome might be more limited.
i. AAA is a non-profit arbitration group that sets out model
rules for arbitration, ensures neutral arbitrators, etc.
j. There are many other groups that offer arbitration services.
k. “Repeat Players” problem can arise when employers use
services of a particular arbitrator over and over – the fear is
that the arbitrator would tend to stay on side of company
paying the bills.
2. Trial
i. Judge and/or Jury involved.
ii. Appeal is possible.
iii. Only legal outcomes are possible.
3. EEOC is directed to try alternative dispute resolution means prior to suit.
B. Arbitration
1. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)
i. Gilmer had to register with NYSE for his job.
ii. The registration required Gilmer to agree to arbitration.
iii. Gilmer was later terminated and brought suit under ADEA.
iv. Interstate then moved to compel arbitration.
v. Federal Arbitration Act
vi. Dissent
a. Argues that FAA should not apply to employment context
when interstate or foreign commerce is involved.
1). Later case law indicated that only transportation
workers are involved.
vii. Gilmer argues that compulsory arbitration is inconsistent with the
statutory framework and purposes of the ADEA.
viii. Gilmer argues that discrimination claims are social policy issues
that should not be in arbitration and that there are problems with
arbitration.
ix. Problems with Arbitration
a. Possible bias
b. Limited discovery
c. Lack of written opinions
d. No broad equitable relief and class actions
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x. Court indicates that they have allowed other substantial statutory
provisions to be allowed to be arbitrated.
xi. Court indicates that, in this case, the NYSE arbitration provisions
provided for written opinions, equitable relief, and collective
action.
xii. Gilmer argued that arbitration would undermine the EEOC.
a. The Court indicated that the EEOC could still bring suit.
b. Additionally, the ADEA does not say anything about
arbitration.
xiii. Finally, Gilmer argues that there is unequal bargaining power
between employers and employees.
2. Rosenberg v. Merrill Lynch, 170 F.3d 1 (1999)
i. Rosenberg alleged gender and age discrimination claims.
ii. She had signed agreements to arbitrate that were very similar in
nature to those in Gilmer.
iii. She was fired and brought suit.
iv. Merrill Lynch moved to compel arbitration.
v. District Court did not compel arbitration.
vi. Court of Appeals affirmed the denial of compelling arbitration
but on different grounds than that of the trial court.
vii. One of things that had happened was that Title VII had been
amended by 1991 Civil Rights Act.
a. Where appropriate and to the extent authorized by law, the
use of arbitration is encouraged to resolve disputes arising
under the Acts amended.
b. Essentially, this was a change that indicated that arbitration
was encouraged.
viii. Rosenberg argues that MANDATORY arbitration is not
appropriate – legislative history of the 1991 CRA indicates this.
ix. Court indicates that statute is clear – there is no need to go to
legislative history.
x. Rosenberg’s additional argument is that OWBPA which amends
the ADEA and requires knowing and voluntary waiver of her
rights.
xi. The court indicates that “rights” refer to substantive rights, not to
procedural rights such as mandatory arbitration.
xii. Knowing and voluntary becomes very important in the facts of
this case because the facts indicate that her waiver was not
knowing and voluntary.
xiii. Essentially, the court indicates that arbitration could not be
compelled solely because the facts of the case did not indicate
knowing or voluntary waiver of rights.
3. Collective Bargaining and Arbitration
i. It is not clear that arbitration agreements are enforceable when
they are negotiated as part of collective bargaining agreement.
VIII. Religious Discrimination
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A. Title VII definitions include religion
1. Religion includes all aspects of religious observance and practice, as well
as belief, unless an employer demonstrates that he is unable to reasonably
accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the
employer’s business.
B. The difference with religious discrimination is that Title VII puts a duty on
employers to make reasonable accommodations of employee’s religion.
C. Undue hardship is often translated into dollars.
D. Typical religious accommodation claims involve days off.
E. Also, religious clothing and accessories are becoming more prevalent in terms of
claims.
F. Religious organizations have an exception under Title VII.
G. One of the major problems with religion is that it cannot be readily ascertained.
H. Van Koten v. Family Health Management, 1998 U.S. App. LEXIS 1837 (1998)
1. VK worked as a chiropractor.
2. He was a Wiccan.
3. Only worked a very short time.
4. Used profanity and disregarded procedures.
IX. Americans with Disabilities Act – ADA
A. Prohibits employment discrimination against persons with diabilities.
B. Some will argue that ADA is the most expensive discrimination legislation passed
by Congress.
C. What is different about disability discrimination?
1. Here you have to reasonably accommodate.
2. Not just an employment discrimination act.
i. Employers
ii. Professional offices
a. Lawyers
b. Dentist offices
3. Disabilities DO affect the ability of a person to perform the job.
D. ADA was a much broader Act than the Rehabilitation Act
1. Only federal contractors were covered under Rehabilitation Act
2. States would fall under because of their acceptance of federal funds.
E. The Meaning of Disability
1. ADA Definition of Disability – Can satisfy by meeting one of three
i. A physical or mental impairment that substantially limits one or
more of the major life activities of an individual;
ii. A record of such an impairment; or
iii. Being regarded as having such an impairment.
2. The threshold question is whether someone has a disability – if they do
not, nothing else matters for disability discrimination.
3. ADA specifically excludes disability on some grounds
i. Sex-related
a. Homosexuality
b. Bisexuality
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c. Transvestism
d. Pedophilia
e. Transexualism
f. Exhibitionism
ii. Others
a. Compulsive gambling
b. Kleptomania
c. Pyromania
d. Disorders resulting from the current illegal use of
psychoactive drugs.
4. School Board of Nassau County v. Arline, 480 U.S. 273 (1987)
i. Teacher with TB.
ii. School board fired for being contagious.
iii. Supreme Court held that a contagious disease can be a disability.
5. Actual Disability
i. Bragdon v. Abbott, 524 U.S. 624 (1998)
a. Public accommodation case.
b. Rule – HIV infection is a physical impairment which
substantially limits a major life activity as the ADA defines
it.
c. Abbott was HIV-positive and dentist refused to treat her.
d. Abbott sued under ADA.
e. Court ruled that HIV infection is a disability.
f. Court indicates that moment of infection is when the
disability begins.
g. Plaintiff has the responsibility to show substantial
limitation on major life activity.
h. Major life activities
1). Caring for oneself
2). Performing manual tasks
3). Walking
4). Seeing
5). Hearing
6). Speaking
7). Breathing
8). Learning
9). Working
i. In this case, Plaintiff argues that list is non-exhaustive and
that reproduction is also a major life responsibility.
j. Dentist argues that HIV is not a substantial limitation on
the major life activity of reproduction.
k. Substantial does not mean impossible.
l. Determining whether a disability exists requires
examination of three separate elements:
1). Physical or mental impairment;
2). Substantially limits;
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3). One or more major life activities.
ii. EEOC has stated that physical or mental impairment does not
include physical characteristics such as weight, height, and eye
color that are in the normal range and are not the result of
physiological disorder.
iii. Also, Guidelines exclude common personality traits, illiteracy,
economic disadvantages, temporary physical conditions, and
advanced age.
iv. EEOC ADA Guidelines also suggest that pregnancy is not a
disability covered by the statute because pregnancy is not an
impairment.
v. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002)
a. O’Connor opinion.
b. Unanimous
c. Plaintiff had carpal tunnel syndrome.
d. She worked in automobile manufacturing plant.
e. Employer gave plaintiff another job in a quality control
area.
f. District Court granted summary judgment for employer,
indicating that plaintiff was not disabled under ADA
because she was not limited in a major life activity.
g. Court of Appeals reversed, finding that she had a
substantial limitation on a class of manual activities
affecting the ability to perform tasks at work.
h. Rule – To be substantially limited in performing manual
tasks, an individual must have an impairment that prevents
or severely restricts the individual from doing activities that
are of central importance to most people’s daily lives. The
impairment’s impact must also be permanent or long-term.
i. Court indicates that there must be a strict construction of
disability.
j. Court also indicates that the impairment’s impact must be
permanent or long-term.
k. Activities that are of central importance to most people’s
daily lives.
l. Court says that the manual tasks that plaintiff complains of
not being able to do are not of central importance to most
people’s daily lives.
m. Court says that you cannot look at the diagnosis – you must
look at how it impacts the individual on a case by case
basis.
n. In terms of whether work is a major life activity, Court
indicates that there is no need to decide this difficult
question because it is not before the court.
vi. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
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a. Sutton twins are two twin sisters with myopia.
b. Their vision is corrected with glasses or contacts.
c. United Air Lines had a restriction on global airline pilots as
to vision.
d. It has not been litigated as to whether there is disparate
impact case under ADA.
e. This would be a disparate impact.
f. Threshold question is whether they are disabled under
ADA.
g. Issue is whether corrective measures/mitigating measures is
taken into account in determining if someone is disabled.
h. Prior to this, 8 of 9 Courts of Appeals had found that
corrective measures are NOT taken into account.
i. Court indicates that “substantially limits” is in present tense
and thus, it must take into account presently taken
corrective measures.
j. Rule – If a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of
those measures – both positive and negative – must be
taken into account when judging whether that person is
substantially limited in a major life activity and thus
disabled under the ADA.
k. Court indicates that Congress only intended the 43 million
people and if you included people with vision problems,
this number would be MUCH higher.
l. Dissent indicates that EEOC could restrict lawsuits by more
closely defining.
1). O’Connor counters that it is disputable if EEOC has
the ability to make these kinds of determinations.
6. Record of Such an Impairment
i. Essentially, must prove that person had a physical or mental
impairment that substantially limits one or more major life
activities AND that there is a record of such impairment.
ii. Can’t ask whether you have a disability or whether you once had
a disability
iii. Can go middle ground – after job offer, then employer can ask
questions and ask the candidate to pass tests.
7. Regarded as Having Such an Impairment
i. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
a. Two ways to fall under “regarded as” definition
1). A covered entity mistakenly believes that a person
has a physical impairment that substantially limits
one or more major life activities.
2). A covered entity mistakenly believes that an actual,
non-limiting impairment substantially limits one or
more major life activities.
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b. Rule – To be substantially limited in the major life activity
of working, then, one must be precluded from more than
one type of job, a specialized job, or a particular job of
choice.
c. When the major life activity under consideration is that of
working, the statutory phrase “substantially limits”
requires, at a minimum, that plaintiffs allege they are
unable to work in a broad class of jobs.
d. EEOC uses a specialized definition of the term
“substantially limits” when referring to the major life
activity of working:
1). Significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in
various classes as compared to the average person
having comparable training, skills, and abilities.
The inability to perform a single, particular job does
not constitute a substantial limitation in the major
life activity of working.
F. The Meaning of “Qualified Individual With a Disability”
1. A person with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment
position.
2. Deane v. Pocono Medical Center, 142 F.3d 138 (1998)
i. Plaintiff was a nurse for Pocono Medical Center who injured her
wrist and went out.
ii. She sought to return to work and asked for reasonable
accommodation to be placed in position that did not require her
to lift heavy objects.
iii. Two Prong Test for Qualified Individual
a. Whether the individual satisfies the requisite skill,
experience, education, and other job-related requirements
of the employment position that such individual holds or
desires.
b. Whether the individual, with or without reasonable
accommodation, can perform the essential function of the
position held or sought.
1). Two Prongs Under this Prong
i). Whether the individual can perform the
essential functions of the job without
accommodation.
ii). Whether the individual can perform the
essential functions of the job with
accommodation.
iv. Rule – If an individual can perform the essential functions of the
job without accommodation as to those functions, regardless of
whether the individual can perform the other functions of the job
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(with or without accommodation), that individual is qualified
under the ADA.
v. Job description written by employer is NOT entitled to complete
deference – they are only evidence of what job requires and are
not dispositive.
vi. Some other evidence of job requirements
a. Other employees testimony of what is required.
b. Expert findings and opinions.
vii. Employer who later adds requirements to job descriptions will be
suspicious to the jury.
3. The Duty of Reasonable Accommodation
i. Definition of Reasonable Accommodation
a. Making existing facilities used by employees readily
accessible to and usable by individuals with disabilities,
and
b. Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for
individuals with disabilities.
ii. Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999)
a. Cleveland suffered a stroke and began receiving Social
Security Disability Benefits.
b. On the application, she indicated that she was totally
disabled.
c. She also filed a lawsuit under the ADA that implies that she
is disabled but able to work with an accommodation.
d. Company argues that she should be estopped from
continuing lawsuit.
e. Court indicates that applying for SSDI benefits does not
preclude one from bringing suit under the ADA.
f. Rule – While an ADA plaintiff is not precluded from suit
by prior total disability claims under SSDI, she cannot
ignore the apparent contradiction that arises out of the
earlier SSDI total disability claim – she must proffer a
sufficient explanation.
iii. Vande Zande v. State of Wisconsin Department of
Administration, 44 F.3d 538 (1995)
a. Employee had pressure ulcers and had to miss work upon
occasion.
1). Although pressure ulcers were intermittent, they fall
under the definition of disability.
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b. Employer did many of the accommodations that the
employee requested.
c. Employee claims that employer did not make
accommodation on two items.
1). Work at home without using sick leave when
pressure ulcers flare up.
i). Rule – An employer is not required to
accommodate a disability by allowing the
disabled worker to work by himself, without
supervision, at home.
2). Lowering countertops in kitchen area.
i). Rule – The duty of reasonable care is
satisfied when the employer does what is
necessary to enable the disabled worker to
work in reasonable comfort, not absolute
identity in working conditions.
d. Judge Posner indicates that accommodation means only
making changes – the issue is really what is meant by
reasonable.
e. According to Posner, reasonableness must be looked at as a
comparison between cost of the accommodation and
benefit to the disabled person.
f. According to Posner, undue hardship is viewed by looking
at the employer individually and comparing cost to
benefits.
iv. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)
a. US Airways had a seniority system.
b. He was injured and moved into a mailroom position as a
reasonable accommodation.
c. US Airways policy was to open the job up to bidding under
seniority system.
d. Conflict is between disabled employee and other
employees who wanted the job.
e. District Court granted summary judgment to the employer
indicating that alteration of the longstanding seniority
policy would result in undue hardship.
f. En banc panel reversed, arguing that the presence of a
seniority system is merely a factor in the undue hardship
analysis.
g. Rule – The simple fact that an accommodation would
provide a preference – in the sense that it would permit the
worker with a disability to violate a rule that others must
obey – cannot, in and of itself, automatically show that the
accommodation is not reasonable.
h. According to Court, to defeat a defendant/employer’s
motion for summary judgment
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1). Plaintiff/employee need only show that an
accommodation seems reasonable on its face,
ordinarily or in the run of cases.
2). Once the plaintiff has made this showing, the
defendant/employer then must show special
(typically case-specific) circumstances that
demonstrate undue hardship in the particular
circumstances.
i. The Court indicates that, in the case of the seniority system,
the ADA does not ordinarily require violation of the rules
of the seniority system, unless there is more.
1). The plaintiff must present more – namely, special
circumstances surrounding the particular case that
demonstrate the assignment is nonetheless
reasonable.
j. O’Connor’s Concurrence
k. Scalia/Thomas Dissent
1). The heart of the dissent is that employee was not
being discriminated against because of his disability
but because of his seniority and that discrimination
because of seniority is OK.
l. What we take away is that District Courts should not be
granting summary judgment as often.
4. Undue Hardship
i. ADA Definition
a. Undue hardship is an accommodation requiring significant
difficulty or expense, which must be determined by
considering all relevant factors, including the size and
financial resources of the covered entity.
G. Discriminatory Qualification Standards
1. Three Defenses
i. Job-Related and Consistent with Business Necessity
ii. Permitted or Required by Another Federal Statute or Regulation
iii. Necessary to Prevent a Direct Threat to Health and Safety
2. Direct Threat Defense
i. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002)
a. Employee had Hepatitis C and, according to Chevron,
exposure to Chevron’s toxic chemicals would endanger his
health.
b. He was fired and sued Chevron under ADA.
c. Chevron defended by indicating that it was a direct threat to
employee.
d. ADA only says that direct threat is to others.
e. EEOC goes farther and says that employer can screen out
potential employees by for risks they pose to others, as well
as to themselves.
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f. Plaintiff argues that EEOC has gone too far and only ADA
language should control.
g. Court says that Congress knew that EEOC was using the
definition above and therefore, it was incorporated.
h. Plaintiff also argues that there is statutory construction
argument – that Congress expressed one item and excluded
those that were unmentioned.
i. Case is remanded for reconsideration.
j. The holding of the case is that the EEOC can promulgate
rule that indicates that direct threat defense is available
when only threat is to the employee.
3. Job-Related and Consistent with Business Necessity
i. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999)
a. Employee truck driver had vision problems.
b. Was fired but he applied for a waiver under DOT rules.
c. He was eventually given the waiver.
d. District Court granted summary judgment because he was
not a qualified individual because he could not perform the
essential functions of the job with or without reasonable
accommodation.
e. Question is whether, under ADA, an employer who
requires as a job qualification that an employee meet an
otherwise applicable federal safety regulation must justify
enforcing the regulation solely because its standard may be
waived in an individual case.
f. Albertsons argues that it is required under law to not have
drivers unless they meet certain requirements.
g. Court says the waiver program was a government
experiment and that the employer should not be required to
“reinvent the government’s own wheel.”
X. Bona Fide Seniority Systems
A. Seniority systems are systems that companies use in transfer, promotion, salary,
benefits, pensions, etc. that are based on the length of the employee’s
employment.
B. Types of Seniority Systems
1. Benefit-Type
i. Covers
a. Pay
b. Vacation
c. Pension
2. Competitive-Type
i. Covers
a. Promotions
b. Transfers
c. Job Bidding
d. Assignments
Page 46 of 55
C. Title VII has an exception to liability for seniority systems
1. § 703(h)
i. It shall not be an unlawful employment practice for an employer
to apply different standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a bona fide
seniority or merit system…provided that such differences are not
the result of an intention to discriminate because of race, color,
religion, sex, or national origin.
D. Quarles v. Philip Morris, 279 F.Supp. 505 (1968)
1. Lower Courts had declared that, despite seniority system exception, that
Congress did not intend to freeze discriminatory provisions.
E. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)
1. Supreme Court repudiated Quarles.
2. The Supreme Court held that the mere perpetuation of earlier
discrimination does not make a seniority provision in a collective
bargaining agreement illegal. An otherwise neutral, legitimate seniority
system does not become unlawful under Title VII simply because it may
perpetuate pre-Act discrimination.
F. United Airlines, Inc. v. Evans, 431 U.S. 553 (1977)
1. Upheld the decision reached in Teamsters.
G. Seniority Systems are an affirmative defense.
1. Defendant must show two things
i. Bona fide
a. Means “good faith”
b. Factors
1). Whether the seniority system operates to discourage
all employees equally from transferring between
seniority units;
2). Whether the seniority units are in the same or
separate bargaining units (if the latter, whether that
structure is rational and in conformance with
industry practice);
3). Whether the seniority system has its genesis in
racial discrimination; and
4). Whether the system was negotiated and has been
maintained free from any illegal purpose.
ii. Seniority system
a. Supreme Court in California Brewers Assn. v. Bryant, 444
U.S. 598 (1980), held that a seniority system is a scheme
that allots to employees ever improving employment rights
and benefits as their relative length of pertinent
employment increase.
b. Does not necessarily mean that a collective bargaining
agreement automatically has a seniority system.
c. However, it seems a stretch to say that unilateral seniority
system could be a bona fide seniority system.
Page 47 of 55
2. Plaintiff then has a chance to offer proof that the operation of the seniority
system is the product of intentional disparate treatment discrimination.
XI. Equitable Judicial Relief
A. Reinstatement, Retroactive Seniority, and Injunctive Relief
1. § 706(g)
i. Prohibitory and Compensatory Equitable Relief
a. Prohibitory relief is commonly an injunction against the
discriminatory practice.
b. Equitable relief is based in fairness and is usually not
damages.
2. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)
i. Black applicants had sought over the road positions because they
were the better jobs in the company and had been denied prior to
Title VII.
ii. Rule – Federal courts are empowered to fashion such relief as the
particular circumstances of a case may require to effect
restitution, making whole insofar as possible the victims of racial
discrimination in hiring. Adequate relief may well be denied in
the absence of a seniority remedy slotting the victim in that
position in the seniority system that would have been his had he
been hired at the time of his application.
iii. Brennan cites that one of the purpose of Title VII is to make
whole those person who have been discriminated against.
iv. Brennan also indicates that an additional purpose is the
eradication of discrimination from society.
v. In this case, in order to make the victims of the discrimination
whole, the Court indicates that it is proper to grant retroactive
seniority up to the date of Title VII implementation.
vi. Essentially, this impacts the innocent employee.
vii. Brennan indicates that the innocent employee will not lose their
seniority and that, but for the discriminatory practices, they might
not have had the position because under the practice they did not
have to compete with minorities.
viii. Burger’s Concurrence
a. Burger indicates that more “equitable” would be a
monetary award to the person suffering the discrimination.
ix. Powell/Rehnquist Concurrence
a. A grant of competitive-type seniority usually does not
directly affect the employer at all and thus, Title VII’s
primary objective of eradicating discrimination is not
served at all.
B. Retroactive Seniority and Backpay
1. Teamsters v. United States, 431 U.S. 324 (1977)
i. Stewart opinion (Swing vote, great compromiser)
ii. Pattern or practice case.
Page 48 of 55
iii. Teamsters and company (T.I.M.E.-D.C., Inc.) were found liable
in the liability phase of trial.
iv. Rule – An incumbent employee’s failure to apply for a job is not
an inexorable bar to an award of retroactive seniority.
Individuals non-applicants must be given an opportunity to
undertake their difficult task of proving that they should be
treated as applicants and therefore are presumptively entitled to
relief accordingly.
v. Court says that you can only go back the effective date of Title
VII.
vi. Once pattern is proven, the employer then must prove that they
would have made the same decision.
vii. However, in this case, government must prove who should be in
the class.
viii. Holding - Non-Applicants must show that he was a potential
victim of unlawful discrimination.
a. Must prove that he would have applied for the job had it
not been for those practices.
ix. Court says that employer might have had a reputation that
deterred applicants and that non-applicants must prove that they
would have applied.
C. Affirmative Action Relief
1. See Handout on history of affirmative action for additional
information.
2. What comes to mind when talking about affirmative action?
i. Quota
ii. Goals
iii. Racial balance
iv. Steps imposed
v. Compensation/Even playing field
vi. Arbitrary system / not merit-based
vii. Special preferences
viii. Anything that is done affirmatively that is focused on something
other than what we traditionally think are the reasons people get
jobs.
3. Who engages in affirmative action?
i. Government
a. Local
b. State
c. Federal
d. Some contractors are required to use affirmative action in
order to obtain government contracts.
ii. Employers - Involuntary
iii. Courts
4. § 706(g)(1) indicates that a court may provide such affirmative action as
necessary in the granting of relief.
Page 49 of 55
5. History
i. 1970-1972
a. Nixon was a big proponent of encouraging government
contractors to use affirmative action.
ii. The only things in 1991 Title VII amendments regarding
affirmative action indicated nothing.
iii. Congress has not passed legislation outlawing affirmative action.
6. Local 28, Sheet Metal Workers’ International Association v. EEOC, 478
U.S. 421 (1986)
i. Brennan wrote majority opinion.
ii. 9 years after Teamsters case.
iii. Petitioners were found guilty of engaging in a pattern and
practice of discrimination against non-whites in violation of Title
VII.
iv. District Court ordered a minority membership goal and the
establishment of a fund for the purpose of increasing non-white
union membership.
v. Issue is whether membership goal and fund violate provisions of
Title VII.
vi. Employer says that § 706(g)(2) does not allow the court to
require the admission or reinstatement of someone who was not a
victim of discrimination.
vii. Rules
a. § 706(g) does not prohibit a court from ordering, in
appropriate circumstances, affirmative race-conscious relief
as a remedy for past discrimination.
viii. Brennan indicates that § 706(g) only has to do with employer’s
burden to show that they would have made the decision anyway.
ix. Brennan argues that affirmative action is race-conscious relief to
fashion the most complete relief possible and is embodied in the
purposes of Title VII.
x. Brennan says that the discrimination in this case was long-
standing and egregious – the employer has not remedied the
situation, even though ordered by the courts.
xi. Dicta in Stotts case indicated that only actual victims were
eligible for relief.
xii. Brennan distinguishes Stotts by indicating that the purpose of
affirmative action is not to make identified victims whole, but
rather to dismantle prior patterns of employment discrimination
and to prevent discrimination in the future.
xiii. Court gives factors to determine when race-conscious affirmative
action is allowed
a. Egregious foot-dragging
b. Necessary to combat lingering effects of past
discrimination
c. Benchmark – measure efforts
Page 50 of 55
d. Temporary
e. “Unnecessarily trammel the interests of the white
employees” – impact on innocent employees.
1). Can be tested by the fact that it is not an “absolute
bar” to membership.
xiv. Summary
a. Six members of the Court agree that a district court may, in
appropriate circumstances, order preferential relief
benefiting individuals who are not the actual victims of
discrimination as a remedy for violations of Title VII.
b. Five members of the Court agree that in this case…the
membership goal and the Fund order are not violative of
either Title VII or the Constitution.
xv. O’Connor’s Dissent
a. Basically, she indicates that this is a quota because it
mirrors percentage of minorities in labor pool.
xvi. Rehnquist/Burger Dissent
a. Limited to actual victims of the particular employer’s racial
discrimination.
xvii. White Dissent
a. Basically takes a middle line.
7. United States v. Paradise, 480 U.S. 149 (1987)
i. Brennan announced the JUDGMENT of the Court.
ii. Brennan wrote opinion and Marshall, Blackmun, and Powell
joined.
iii. Equal Protection Clause case because governmental entity is
involved.
iv. Could also have been brought under Title VII because it had been
extended to governmental employers.
v. State of Alabama was ordered by District Court to increase
minorities in higher ranks of State Patrol.
vi. State was ordered to give one job to minority for every job given
to majority.
vii. Under affirmative action, do not have to hire unqualified
individual.
viii. Whether the relief ordered by the court violate the 14th
Amendment.
ix. Scrutiny
a. Government Action
1). Different treatment of individuals
b. To decide, must weigh
1). Governmental Interest in passing the law.
2). Means for accomplishing the governmental interest.
x. Rational Relationship
Page 51 of 55
a. There must be a rational relationship between the
governmental interest and the means to achieve that
interest.
b. Involves legitimate governmental interest.
xi. (Heightened) Intermediate Scrutiny
a. Invoked for cases involving gender and religion.
b. Important governmental interest.
xii. Strict Scrutiny
a. Invoked for cases involving race or national origin.
b. Government action survives strict scrutiny when it passes a
two-part test
1). Is narrowly tailored and
2). Serves a compelling governmental purpose
xiii. Factors for determining whether race-conscious affirmative
remedies are appropriate
a. Necessity for the relief
b. Efficacy of alternative remedies
c. Flexibility and duration of the relief
d. Relationship of the numerical goals to the relevant labor
market
e. Impact of the relief of the rights of third parties.
xiv. O’Connor’s Dissent argues that the means of achieving the
compelling governmental purpose is not narrowly tailored.
xv. Stevens concurs because of the egregious nature of the
government’s actions and their inaction in implementing.
8. Types of Affirmative Action
i. Court Ordered
ii. Government Ordered
iii. Voluntary
9. Affirmative Action and the Constitution
i. Brennan’s Rules for Appropriate Affirmative Action Plan
a. To correct a manifest imbalance
b. Not an absolute bar for majority
1). Does not unnecessarily trammel the rights of the
majority.
c. Temporary
10. Government Ordered Affirmative Action Plans
i. Adarand Constructors v. Pena, 515 U.S. 200 (1995)
a. O’Connor opinion
b. 5-4 decision
c. O’Connor, Scalia, Rehnquist, Kennedy, Thomas
d. Stevens, Ginsburg,
e. Federal government ordered affirmative action.
f. Brought under 5th Amendment
g. Not under 14th because it is federal action, not state action
Page 52 of 55
h. Affirmative action plan that gives financial incentives for
contractors to hire subcontractors controlled by “socially
and economically disadvantaged individuals”.
i. Subcontractors alleged that this policy discriminates solely
because of my race – while they were the majority, they
were excluded because of race.
j. O’Connor indicates that there should not be a difference
between 5th and 14th Amendments in terms of protection.
k. O’Connor Traces History
1). Regents of University of California v. Bakke, 438
U.S. 265 (1978)
i). Bakke was a white guy who was not
considered because of his race for slots
allotted to minorities in a California medical
school.
ii). His point was that state was treating some
individuals differently on the basis of race.
iii).Basically, the only thing that the Court
agreed was that the plan was
unconstitutional and struck it down.
iv). Bakke Court said that it was OK to take race
into account – this is not the opinion of the
Court but is quoted as a holding of the case.
v). School argues that strict scrutiny should not
be applied because it is a beneficial plan that
does not disadvantage “discrete and insular
minorities”.
a). This is a good argument because the
14th Amendment was passed in the
wake of the Civil War and seemingly
was designed to uplift minorities.
vi). The Court indicated that racial and ethnic
distinctions of any sort call for strict
scrutiny.
2). Fullilove v. Klutznick, 448 U.S. 448 (1980)
i). Court upheld Congress’ inclusion of a 10%
set-aside for minority-owned businesses in
the Public Works Employment Act of 1977.
ii). Two-Part Test
a). Whether the objectives of the
legislation are within the power of
Congress
b). Whether the limited use of racial and
ethnic criteria, in the context
presented, is a constitutionally
Page 53 of 55
permissible means for achieving the
Congressional objectives.
3). Wygant v. Jackson Board of Education, 476 U.S.
262 (1986)
i). Court struck down race-based classification.
ii). Strict scrutiny was used.
4). Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
i). Court strikes down using strict scrutiny
regarding a race-based classification.
5). Metro Broadcasting v. FCC, 497 U.S. 547 (1990)
i). Plan designed to bring in minority
broadcasters.
ii). Brennan opinion
iii).Upheld under INTERMEDIATE scrutiny
because it is a benign racial classification.
iv). Basically, this indicates that on 5th
Amendment (federal) analysis will use
benign racial classifications as to the
minority and will be evaluated under
intermediate scrutiny.
l. Metro Broadcasting case gets overruled.
m. Holding/Rule of Adarand
1). All racial classifications, imposed by whatever
federal, state, or local government actor, must be
analyzed by a reviewing court under strict scrutiny.
i). In other words, such classifications are
constitutional only if they are narrowly
tailored measures that further compelling
governmental interests.
n. O’Connor takes pains to indicate that strict scrutiny will not
ALWAYS result in the striking down of race-based
preferences.
o. Scalia’s Concurrence
1). In his view, government can never have a
compelling in discriminating on the basis of race in
order to make up for past racial discrimination in
the opposite direction.
p. Thomas’ Concurrence
1). Indicates dislike for race-based preferences because
it is paternalistic and results in stigmatizing
minorities as inferior and needing help in achieving.
q. Stevens’ Dissent
1). Stevens argues that there is a difference between
invidious and benign discrimination.
2). No Trespassing sign and Welcome Mat analogy.
r. Ginsberg Dissent
Page 54 of 55
1). Reminds that there is common ground in that a
well-designed affirmative action plan will survive
strict scrutiny.
11. Voluntary Affirmative Action
i. Many reasons why an employer might want to undertake
voluntary affirmative action plans.
ii. United Steelworkers of America v. Weber, 443 U.S. 193 (1979)
a. Court upheld the employer’s adoption and use of a
voluntary affirmative action plan negotiated with the union
representing its workers to create a training program for
incumbent unskilled workers to fill skilled job categories.
b. Court upheld because it was designed:
1). To rectify a manifest imbalance;
2). Is not an absolute bar to the advancement of
employees who do not qualify for affirmative
action; and
i). Does not unnecessarily trammel the interests
of the other employees.
3). Is temporary in nature.
iii. Johnson v. Transportation Agency of Santa Clara County, 480
U.S. 616 (1987)
a. Analyzed under Title VII.
b. In concurrence, O’Connor seems to indicate that strict
scrutiny analysis should be used for everything.
c. The plan used by the Transportation Agency was to
increase the percentage of women in the labor force where
there had been historic under-representation.
d. The plan allowed for gender to be considered as part of
decision-making process for employment decisions.
e. Female and male applicants were essentially the same.
f. Female was chosen and male sued, arguing that he was
passed over solely because of his gender.
g. The District Court found that male applicant was more
qualified and was discriminated against solely because of
his race.
h. Male employee made prima facie case for discrimination.
i. Employer came back and indicated that they had a
legitimate non-discriminatory reason – the affirmative
action plan.
j. Court indicates that employee has the burden of showing
that the reason was merely a pre-text.
k. Brennan indicates it is not pre-text if it meets his test
1). To rectify a manifest imbalance;
2). Is not an absolute bar to the advancement of
employees who do not qualify for affirmative
action; and
Page 55 of 55
i). Does not unnecessarily trammel the interests
of the other employees.
3). Is temporary in nature.
l. Scalia’s Dissent
1). Scalia would argue that the only employers that
should be allowed to have an affirmative action plan
would be those that had been actual discriminators.
2). Scalia argues that this decision twists Title VII
around to allow discrimination based on protected
classes – which is not what the statute calls for.
3). Scalia’s Conclusion
i). “It is unlikely that today's result will be
displeasing to politically elected officials, to
whom it provides the means of quickly
accommodating the demands of organized
groups to achieve concrete, numerical
improvement in the economic status of
particular constituencies. Nor will it
displease the world of corporate and
governmental employers (many of whom
have filed briefs as amici in the present case,
all on the side of Santa Clara) for whom the
cost of hiring less qualified workers is often
substantially less--and infinitely more
predictable--than the cost of litigating Title
VII cases and of seeking to convince federal
agencies by nonnumerical means that no
discrimination exists. In fact, the only losers
in the process are the Johnsons of the
country, for whom Title VII has been not
merely repealed but actually inverted. The
irony is that these individuals--
predominantly unknown, unaffluent,
unorganized--suffer this injustice at the
hands of a Court fond of thinking itself the
champion of the politically impotent.”
m. O’Connor’s Concurrence
1). O’Connor seems to think that sex was not the
determining factor, it was a “plus” factor.

Employment Discrimination Outline - Radford

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Spring 2004 - Radford

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