EMPLOYMENT DISCRIMNATION – 2019 –
HAYDEN
Outline
I.
BACKGROUND
A.
TITLE VII – CIVIL RIGHTS ACT OF 1964
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B.
THE AGE DISCTIMINATION AND EMPLOYMENT ACT (ADEA)
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C.
Prohibits discrimination on the basis of race.
Does employment discrimination exist?
What type of discrimination exist?
DOES DISCRIMINATION EXIST?
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E.
Prohibits discrimination on the basis of age; only applies to those 40 or over.
SECTION 1981 – OF THE CIVIL RIGHTS ACT OF 1866
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D.
This is the grandfather of all discrimination acts. The language you see in title VII will show up
verbatim in other statutes that are modeled on this, federal and state. Also, courts will look at title VII
cases.
It prohibits discrimination in employment on the basis of race, color, sex, national origin, religion.
Outlaws 3 kinds of discrimination:
o Disparate treatment – employers treat individual or groups of employees differently, in a way
that involves intentional discrimination.
o Disparate impact – employers has a neutral practice that ends up having disproportionate
impact on members of a protected class.
o Harassment
Established the EEOC.
Caps on damages under title VII are pretty low.
Easier to get punitive damages under state law v. Title VII
There’s evidence that people are committed to anti-discrimination in principle, but surveys show
otherwise.
They show discriminatory attitudes persist, unconscious or not.
There is also antidotal evidence.
DOES EMPLOYMENT DISCRIMINATION EXIST?
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The wage gap suggests it does.
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F.
WHAT IS THE NATURE OF THE DISCRIMINATION?
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II.
o Women get 79 cents on the dollar.
o Black men get 73 cents on the dollar.
o White men are the highest paid and have access to the highest paying jobs.
What percentage of these discriminations can be fixed by laws?
Alternate explanations?
o Education
o Wealth
o Men are concentrated in higher paying positions
After eliminating alternate variables there is still a wage gap.
So, the answer is yes, employment discrimination exists.
Attitudes?
o Outright claim of racial or gender superiority
 ‘Men or whites are better than blacks or women’
o Individual or group animus
 ‘You just don’t like a certain group of people’
o Inaccurate negative generalizations about groups of people
 ‘I like women, but they’re unstable’
o Accurate generalizations about groups of people, true on a group level but not individuals
 Need someone tall for the job, call back the men for the job.
o Being more comfortable with people who are like them
o Benign stereotypes about people
 I wouldn’t want to hire a woman for this job, it’s a very dirty job, etc.
o Disparate impact territory
 Neutral rule that discriminates on the basis of race or sex
o Affirmative action territory
 Discriminating to promote a group harmed in the past
Two goals of employment discrimination laws
o Formal equality (equal treatment)
 Ignore race and sex when hiring
o Substantive equality (equal outcome)
 Pay attention to race and sex to equalize outcomes
INDIVIDUAL DISPARATE TREATMENT
A.
TITLE VII AND THE ADEA
1.
PRETEXT CASES – DESIGNED TO COVER CASES WHERE THERE IS NO SMOKING GUN
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Slack v. Havens (1975)
o 3 black woman and one white woman all have the same job. One day the employer
has a very hard clean up job, he sends the white woman to another area and brings
in a black woman from another are do the hard clean up. They refuse since it is not in
their job duties and are eventually fired. They sue because of discrimination.
o Direct Evidence: There was a discriminatory comment made by the decision maker
about the employment decision (firing them).
o
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Comparable employee: one employee whose only difference is their race and they
are the only one treated differently.
McDonald Douglas (1973)
o Mr. Green (black man) works for Douglas as lab technician for years. He is laid off.
Green and others feel that the decision is race motivated.
o He participates in a protest, stall in.
o A year later there is an opening at the company, so he applies and is turned down
because of his participation in the protest earlier. He then sues.
o He alleges the refusal to rehire is based on race and sues under the anti-retaliation
provision.
o District court agrees with McDonald, protest was illegal activity, and you can refuse
to hire for illegal activity.
o Court of appeals set it up for the supreme court by saying the district court did get it
right in terms of the refuse to rehire on illegal activity prong but survives summary
judgment on the prong that race was a factor in refusal to rehire.
 Gives us three-step template to prove these cases (page 16)
o Plaintiff goes first and must to establish this prima facie case:
o Member of protected class
o Applied for position and was qualified
o Rejected
o Position remained open
• Variation on Type:
o Here is a variation for a firing case, step 1 is the same, steps
two, three and four; they were performing satisfactory work;
they were fired, the position remained open or the employee
was replaced by a similarly qualified person who was not a
member of their protected class.
• Variations on Step 4:
o The fourth step is a little problematic. The courts start to back
off, and not interpret it so strictly because in an age case, and
80-year-old replaced by 41-year-old would not be able to prove
the case, but a 41-year-old replaced by a 39 year old would.
o In cases where defendants try to beat step four by doing a
temporary hire of older person, or black person etc. The court
will let go of fourth step requirement all together.
o Someone who discriminated on a sub class, aka hires a
protected class but one who doesn’t present certain
characteristics. Hires a feminine woman but not a less feminine
woman. Hires a Hispanic who doesn’t speak Spanish, no Spanish
culture etc. Light skin v dark skin etc.
o Defendant must then articulate a legitimate nondiscriminatory reason
for rejection.
o This is only a burden of production, not persuasion.
o Must raise this with admissible evidence.
1. Can just be certified testimony
o Reasonably clear and specific reason.
1. Can’t be “I didn’t like him...” Why didn’t you?
NOTE: May think well, just lie and say they were always late, but
lying about the reason won’t get you far, evidence may
disprove your false reason then you lose for sure.
o
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Plaintiff must then show that the offered reason was pretext. (aka it is
more likely that the real reason was discriminatory.
o There are two ways to prove pretext
1. It is more likely that the real reason is discriminatory
2. Show the offered reason is unworthy of credence
o Bring up statistical evidence
o Bring up racially charged statements by employer
o Bring up major racist evidence
Hicks, 1993 - p. 22- note 9 / page 32 note 5
o Black man working as a supervisor, there is a change in management and his bosses
begin reprimanding him for the employees under him
o He is eventually demoted and gets in a heated argument with his boss, threatens
him, and is then fired.
 In trial court he goes through the steps
 He spends most of his time showing that the offered reasons were pretext
and made up. And the heated argument was a set up, they bated him into
snapping and he did.
 Trial court said sorry you still lose, appeals says no you must find for plaintiff
here, so it goes to supreme court with the question of “does a plaintiff
automatically win if they show the LND reason was pretext/made up?”
 RULE: Supreme Court held that the plaintiff doesn’t automatically win as a
matter of law if they show the reason was pretext, but they MAY.
o This is crucial in jury instruction, it leaves them with some discretion.
o Their reason is they want the finder of fact to have some discretion
and if they say must they think plaintiffs will be able to win mainly on a
prima facie case.
 Souter Dissents – he says if all we are left with is a prima facie case, (which
means this standing on its own is enough) aka if they defendant doesn’t give
a legit reason or they lie about the reason, the plaintiff has enough, and they
should win.
Reeves v. Sanderson Plumbing Products, Inc., 2000
o Reeves proves his prima facie case
o Sanderson gives the reason they fired him for failing to maintain accurate attendance
records
 Discovery showed that this was false
o Defendant moves for judgment as a matter of law, its denied, goes to jury they find
for plaintiff, Defendant then again moved for judgment as a matter of law, denied,
then goes to 5th circuit, they reverse and find for defendant as a matter of law.
 They say at the pre-text stage the plaintiff must offer up some additional
evidence that there was discrimination in addition to discrediting the
‘legitimate’ reason.
o Should defendant be entitled to an automatic win? (even though in the same case
the plaintiff is not entitle to one.)
o Goes to supreme court; Rule: neither the plaintiff or the defendant automatically win
in a case where P makes prima facie case, and defendants non legit reason is
discredited but P gives no affirmative evidence of discrimination.
Final – Pretext Proof Structure (all or nothing, win or lose)
o Plaintiff goes first and must to establish this prima facie case:
 Member of protected class
 Applied for position and was qualified
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2.
 Rejected
 Position remained open
Defendant must then articulate a legitimate nondiscriminatory reason for rejection.
Plaintiff must then show that the offered reason was pretext.
MIXED MOTIVE CASES
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Price Waterhouse v. Hopkins 1989
o Ann Hopkins was working for this big accounting firm and she comes up for
partnership, they basically tell her she is too masculine and put her partnership on
hold.
o There are two main reasons for denying her partnership, legit and illegit:
 She failed to live up to their sex stereotype. (illegit)
 She lacked interpersonal skills, she was mean to staff (legit)
o Initial Mixed Motive Proof Structure:
 Plaintiff needs to prove that the discriminatory motive was a motivating
factor in the decision. (§703m)
 Burden Shift – Defendant can escape liability by showing it would’ve made
the same decision anyway.
o Concurrence: (for majority you need these two votes too)
 White – liked the structure but defendant needs to prove discriminatory
motivating was a substantial motivating factor
 O’Connor agrees with White.
 She also is the only one who speaks about how you know if you are
in a pretext or mixed motived case, and she says if you have direct
evidence then you are in a mixed motive situation.
 As a result of this there were very few mixed motive cases because
direct evidence is hard to get and if you do have it they usually settle.
o Mixed Motive Proof Structure from Statute
 §703 (m) - Plaintiff needs to prove that the discriminatory motive was a
motivating factor in the decision.
 Once they approve above, they win and get attorney fees, but:
 §706 (G) (2) (b) - Defendant can escape damages by showing it would’ve made
the same decision anyway.
Desert Palace Inc. v Costa
o Costa is working at Caesars Palace, she had a number of disciplinary measures taken
against her and after getting into an elevator fight with another employee she was
fired
o In court it turns out S]she was given less favorable tasks, was never given overtime
and others were, and the other employee involved in the elevator fight was not fired.
o Seems that Caesars Palace stacked her disciplinary file, she was a target.
o She asks for mixed motive but doesn’t get it
o Goes to the supreme court, and they say the statute does not require direct
evidence, congress has stepped in and they haven’t required it, so no direct evidence
is needed, if they prove that race/sex was a motivating factor they’ve done it
Majority Rule: In order to get a mixed motive instruction, the plaintiff needs to show evidence
that directly ties to a discriminatory motive.
o It’s not direct evidence, but it’s something.
o Direct evidence is a statement by a decision maker when they were making the
decision
o
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B.
But directly ties can be a statement that was made at some point doesn’t have to be
at that exact time by the ultimate decision maker
 If they cannot get this mixed motive then they used pretext proof structure.
NOTE: In cases where you don’t have a smoking gun you may think you want to be in a
pretext situation, not a hard burden etc. But it’s all or nothing. So, if you have a weak case
you may want to be in the mixed motive situation because it’s not all or nothing, you can at
least get attorney fees, split the win. If you have a strong case, you may think since you have
such a strong case you should be in the mixed motive that’s designed for cases that can prove
more. But with a strong case you may want to be in a pretext situation, because you’ll likely
get everything.
Gross v. FBL Financial Services
o Gross was...
o Trial court instructs the jury that they must find for gross if they find that age was a
motivating factor then you must find for Gross... they gave him a mixed motive
instruction.
o Court of appeals says you shouldn’t have been in mixed motive because you need
direct evidence...
 Presents question, does desert palace apply to ADEA claims?
 When it gets to the supreme court they say you don’t need direct evidence
because it does not exist.
 Point out Title VII and the ADEA are different statutes
o Even though they were drafted around the same time and
they use the same language
 They look to the dictionary to find out what “because of” means
o Find that it means “it is the but for cause”, “THE reason.”
o Rule: There is no mixed motive for ADEA cases.
SECTION 1981
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McDonald v. Santa Fe Transportation Co.
o Facts: Two white employees, one black employee etc...
o Supreme court needs to answer two questions,
 Does Title VII protect whites? (Yes)
 Yes, because congress said so (statute)
 Yes, because EEOC said so
 Yes, because supreme court said so (us)
 Does section 1981 protect whites? (hard to find evidence of yes)
 Legislative history – there is some evidence of an appeal to “color blindness”
 Statute – it starts with “all persons”
o How do you prove reverse discrimination case? (discrimination b/c you’re white)
 Need to prove there are surrounding circumstances; they don’t demand proof
structure
o Does that mean these statutes prohibit all reverse discrimination cases?
 According to title VII no, broadly accommodating of all reverse discrimination cases
 Section 1981 – no race neutral
 ADEA yes, there is no reverse discrimination, can’t bring claim for being too young
o For purposes of Section 1981, and Title VII, what counts as race?
 Page 40-41, Note 5, What is race?
 Saint Francis College v. Al–Khazraji
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o
III.
Arab man discriminated against, but the district court said this isn’t
race discrimination, its national origin or something else, because
he’s Caucasian–it goes to Supreme Court.
 They say now race is a social construct, but they look to dictionary from 1866
and find then race was very broad, “descendants of a common
stalk(kin/ancestors)” so yes Arab counts as race for purposes of section 1981.
 So, race is defined as ancestry and ancestry is defined as the country you’re
from or where your ancestors are from.
o Can being from Texas count?
 According to broad definition of §1981, yes
 According to Title VII, unsure
 Mid 1960’s definition of race: biology–3 races–
White/Black/Asian
 §1981 –prohibits race discrimination and ancestry discrimination and alienage,
(based on citizenship).
 But it has been interpreted as not including rational origin, per say.
Why do we have both section 1981 and Title VII? How are they similar, different?
 They are two provisions and independent causes of action
o You can bring one or the other or both in same lawsuit
o In the begging §1981 was not thought to apply to private contracts,
only public, like governments, but later it came to be interpreted as
applying to private employment contracts too.
 Title VII has a statutory limitation, less than a year
o § 1981 – four-year SOL
 Title VII caps on damages
o § 1981 No caps on damages
 § 1981 is broader than Title VII
o It is not limited to employment discrimination
o It applies to employers of all sizes, Title VII needs 15 employees
 § 1981 is narrower in some areas
o Doesn’t pick up sex or religion cases
o Doesn’t pick up disparate impact cases (only disparate impact,
intentional)
SYSTEMIC DISPARATE TREATMENT
A.
BACKGROUND AND FORMAL POLICIES
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Formal Policy: When an employer has a policy that facially discriminates on one of the protected
characteristics.
o “I only hire people who are at least six feet tall” – NOT a formal policy.
 Formal policy would be “I only hire men.”
Does not need to be formal in the sense that its written down etc., if they boss just says it, that’s still a
formal policy.
Los Angeles Department of Water and Power v. Manhart
o Employer made woman pay more into the pension plan than men on the theory that they live
longer and thus the employer will be paying out more money to them over time.
o Now the court needs to decide if this is problematic
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o
o
o
B.
Equal treatment route would be that Title VII doesn’t allow any kind of unequal
treatment in the workplace.
 Equal outcome approach (substantive equality approach) that would be saying we are
trying to equal outcomes over the long run.
The court Goes with the equal treatment approach under Title VII... Why?
 They make the argument that the statute (703) talks about individuals, and if you take a
woman who happens to die young, (a woman who doesn’t conform to the classification)
she is taking a huge financial hit by having to pay in more her whole life and having a
smaller paycheck.
 So essentially, they are worried about the woman who dies young.
Employer makes the argument that if everyone has to pay in equally men as a class would be
taking the hit, and on average more men will be hurt by this than woman.
Court is taking a hardline stance, saying all sex-based classifications are illegal regardless of the
outcome.
 Even a facially discriminatory policy that doesn’t have a discriminatory effect is illegal.
 Good for us, don’t have to wonder or question
 Hard to believe the court believes this position – example of man who wants to
use woman’s restroom because its closer, people complain, he gets fired, sues
for discrimination on the basis of sex.
o This is a losing case because it’s not an economic policy and that’s what
the court seems to really care about. Cost based sex classifications. P 97.
 Allowing a cost-based classification opens a lot of bad treatment.
 Woman cost me more so won’t hire them etc.
DEFENSES TO FORMAL POLICIES
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BFOQ defense (bona fide occupational qualifications) is a statutory defense (see p.141) and they
really only apply in hiring and firing situations.
o There is no BFOQ for race or color, no situations in which that’s okay.
 You might think what about a situation that calls for a certain race, role playing, need
to look like person.
 The reason is that race drove Tile VII and the color blindness norm, congress did not
want to provide any exceptions or defenses, because then people would exploit it.
o Dothard v. Rawlinson (p141)
 The state of Alabama required their prison guards who were in contact positions to
be the same sex as the prisoners they were guarding. (Formal policy)
 The employer made the defense that our prisoners aren’t segregated by offenses,
sex offenders are integrated in there and a female guard would invite attack.
 The employer then tries to use the BFOQ defense. Saying being a man is a bona fie
occupational qualification, since the essence of the prison is to maintain order and a
female very womanhood would invite attack, hindering the mission of order.
 The Majority of the Supreme court accepts the BFOQ.
 Marshall Dissent – this excludes woman from paying jobs solely b/c their sex
may provoke assault, and the Alabama prison system was in bad shape,
overcrowded and dangerous, so the employer shouldn’t be able to defend
this policy by using their especially dangerous prison.
o have to have normal operations to use BFOQ and marshal says the
prison can’t claim this because of the overcrowding etc.
 The supreme court says their argument is valid, and the argument is that a
woman’s very presence is likely to incite an attack that would injure other
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o
people in the process, other guard will get hurt other prisoners will join in
and get injured as well.
o NOTE: courts don’t comment on how to better run business, could
be that the violence could be mitigated with different practices, but
it’s not the courts place to suggest that.
o NOTE: In cases where your first instinct is to discriminate on the
basis of sex, like in this case, that may be the place where you don’t
want to allow it. These men are violent sex offenders who have been
beating up on woman and dominating them, may be good for them
to see a woman in authority who they cannot abuse.
BFOQ was driven by the potential reaction of prisoners and other guards,
(third party reaction) is the court going too broad, should you be able to rely
on third party reactions to qualify a BFOQ?
o Probably not, should best buy be able to deny woman on sales
position b/c customers don’t think woman know a lot about
electronics? No.
Criswald (p142)
 Western airlines have a mandatory retirement age of 60 for pilots, co-pilots and flight
engineers.
 These men sue on the basis of age discrimination.
 Western airlines is arguing that age is a bona fide occupational requirement,
worried about pilots having a heart attack or similar, etc.
 Makes it all the way to the supreme court, they set out a two-part test to
analyze BFOQs.
 PART 1: Defendants must show qualifications for which discrimination is
justified are reasonably necessary to essence of the business. (aka what is it
you really want employer) AND
 PART2: Defendants must show employer is compelled to rely on
sex/age/classification as a proxy for that qualification. Show this by either:
o Showing all members of a particular age/sex/ group unable to perform
job.
o Showing impossible or impracticable to individually test the workers
(to see if they can do the job).
 Easy to test if women can lift 80lb bag
 Hard to test if/when pilot will have stroke
 Pan America (p. 149)
 They only wanted female flight attendants
 They said woman flight attendants weren’t a part of the essence of the
business, but they were just trying to make a friendlier and more
comfortable atmosphere.
o The court says no, can’t do this.
 Hooters (p. 149)
 They only hire young females as waitstaff. They have to show that the
essence of their business is in the sex appeal of women. It doesn’t get to trial,
they settle for a few million dollars
 Johnson Controls (p.145)
 Adopts a policy that excludes woman who are fertile from jobs that expose
them to lead, (basically excludes all woman unless they showed they were
infertile.)
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C.
First ask what kind of case is this? It’s a formal policy of sex discrimination.
Discrimination of a sub class (only fertile woman as opposed to all women) is
still sex discrimination. Kind of looked like the employer was looking out for
the woman, but the employer’s motives don’t matter, still a FP of sex
Discrim.
 Employer claimed this is a safety case and in the past courts always side with
employer on safety case.
 But the court does not buy it because the safety part was related to doing
the job, here fertile and pregnant woman can make batteries as well as men.
o Johnson argues they will get overwhelmed with liability from birth
defects etc.
 Court says make them sign a waiver.
 Johnson says the child can sue when they get older,
they did not sign the waiver.
o Court implies if you’re forced to pay those
costs maybe you will make a safer work
environment.
 What if they said they are worried about the safety of the fetus, not the
employee, not the employees ability to do the job, but a third party,
o Court basically says employee’s has to make that decision.
o Mapping out the types of BFOQ cases
 Safety Cases –
 Privacy Cases – come up in context of prisons (female prison doesn’t want male to
watch woman in restroom etc.) (some courts say need enough woman
 Assisted living cases – a facility, mainly woman, they want only female staff, ok?
Probably not, especially not if its framed as a customer preference because customer
preference can never form the basis of a BFOQ.
Affirmative action defenses – (missed this class)
o
PATTERN AND PRACTICE
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Plaintiff goes first, need to prove: standard operating procedure, using stats and antidoes
Then burden shifts to defendant
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Teamsters v. United States
o Employer and union in trucking business, there are line driver positions, (long haul) which are
desirable; There are local city drivers (smaller trucks) less desirable.
o EEOC brings suit claiming that the employer and union are discriminating against black and
Hispanic drivers who want to be a line driver.
o 1800 total line driver positions, before lawsuit, no black ones; after the start they hired 8
o What’s the burden of EEOC according to the court?
 They need to prove it was the companies standard operating procedure
 This is different from individual discrimination where it is sporadic disc.
 How do they prove the burden?
 Statistics and antidotes
o Stats: The numbers
 They had 65000 total drivers, 5% are black 4% are Hispanic
 Out of line drivers .4% black .3% Hispanic (8 black, 5 Hisp.)
o Antidotes: individual instances of suspected discrimination
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When they would ask about job openings they were lied to
or misled about the details or something more blatant
 What do the defendant’s try to argue in this case?
 D’s say that statistics alone are not enough to prove the state of mind
o The court rejects it without saying stats alone can form P&P case
 D’s argue that the stats don’t show we discriminated because the numbers
show pre-act discrimination, and we are doing better now, but there is a
seniority system and people stay in a the jobs a long time.
o Aka the numbers are showing old discrimination locked in by a
seniority system.
 But this is false, they are still discriminating.
 Footnote 20 ‘absent explanation it is expected that nondiscrimination practices will
over time result in a work force that’s representative of the community at large’
 A skew in the numbers could come from previous discrimination or lack of
applicants, but that’s not the case here.
Hazelwood School District v. United States
o School district is predominately white and growing fast
o They are getting a lot of applications now and the hiring practice is unstructured
o They hire their first black teacher in 1969
o We start looking at 1972 because title 7 didn’t apply to governmental orgs until then
o The district court looks at the statistics and antidotes and dismisses it
 They say yeah, the stats are low but there aren’t that many black students (?)
 They screwed this up. The proper comparison in a race case is to compare
racial composition of the teaching staff to the composition of the qualified
population in the relevant labor market.
 Justice white mentions we should not have ignored the applicant data, because it
accounts for preferences, maybe they aren’t getting black applicants
 Downside to this is that if an employer is discriminating or has been, that
may be known, and potential black applicants are deterred from applying.
2 Standard deviation Test – will not need to calculate this on the exam but will need to state the
expected and actual numbers and know that if they are more than 2 SD apart there is a statistical
case discrimination.
o Example 1: Firm with 400 employees, labor market is 20% Hispanic – so we expect to have
20% Hispanic employees aka 80.
o So what number is too low 70? 60? Etc.
o Court says 2 SD is the max it can range. (SD is eight here, so 64 would be 2 SD out)
Calculating relevant job market, need to be looking at
o Time – post act numbers only
o Space – geographic scope, commuting difference, recruiting areas, only ppl who will come
o Skill – may have overqualified people in the market and would never take the job
How does a defendant win?
o Challenge statistics
o Challenge inference to discrimination
 “Absent explanation we are inferring there is discrimination”
 So you need another reason for the labor force not matching the market
EEOC v. Sears
o Sears is huge at this point, starts to seem like they may be discriminating on the basis of sex.
o They have commission sales jobs and non-commission. The commission sales salary usually
ends up being double that of a non-commission position.
o

D.
Women make up 61% of sales applicants, but only make up 20% of newly hired commission
sales positions.
o EEOC claimed hiring process was very discretionary and they pushed women toward noncommission positions.
o What does sears say?
 Sears does not challenge the statistics
 They say the men who apply for non-commission are more experienced and there is
not equal interest in these jobs.
o 7th circuit finds District court made 3 findings that are not clearly erroneous:
 (1) Commission and non-commission sales are not the same, commission required:
 After hour selling/house visits
 More risk, variable salary
 Big ticket items
 More expertise
 (2) Women are not as interested in commission jobs as men are
 More interested in the product lines like clothing, cosmetics, jewelry
 Less interested in night calls or home visits
 Women liked the less risky and cutthroat positions
 (3) Women weren’t as qualified for the commission positions
 Tended to be younger and less experienced
 (this point fades away)
o But even with the first two the court finds Sears wins
 Dissent
 He disagrees with every aspect of the majority opinion
o He only agrees with 1st finding, yes the jobs are different, but he
finds they are different because they are better and that’s really the
main difference.
 He disagrees with the second finding that women aren’t as interested
o Says this is just a stereotype that’s not necessarily true
 i.e. Risk averse? – But look at real estate, risky
o Says Majority is mistaken when accepting the job categories as given
o Says majority gave sears a pass when it comes to who created the
preferences
 Basically, he says the stereotypes aren’t true, but even if you concede them,
Sears should be on the hook for the way they categorized the jobs and the
preferences they molded–Sears should be on the hook for their role.
 So, who is right?
 Assuming the preferences, where do these come from?
 Advertising, daily observations, school, home, church
 They gave sexist quiz to help people determine which position suits them
EEOC v. Walmart
o Talking about class actions
o There was no explanation for why Walmart was promoting more men than women
o Dies on civil procedure grounds before they can get to it, rule 23, class certification
DEFENSES TO PATTERN AND PRACTICE
IV.
DISPARATE IMPACT
A.
BACKGROUND

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Cases where an employer has a neutral policy (neutral on face and in its intent) that nonetheless has
a significant adverse impact on a protected group.
Available under title VII and ADEA,
o but not available under section 1981 which only allows intentional discrimination (not avaible
under EP either, not enough under constitution
Griggs v. Duke Power Company
o Duke power Co had 5 job classifications
o Best to worst:
 Lab/testing
 Maintenance
 Operations
 Coal handling
 Labor
o July 2, 1965 they stopped their open discrimination practice and implemented these new
requirements:
 Required any new employee for any department (except labor) to have a high school
diploma and pass two aptitude tests
 In order to transfer out of labor division you needed high school diploma
o Lower court said there is no discriminatory purpose, not a disparate treatment issue at this
time (though today there clearly would be)
o Supreme court said there is a disparate impact issue; they’re trying to decide if there is a
violation of title VII,
 Key is that you don’t have to have intent to have discrimination under the act
o Stages of lawsuit
 Plaintiffs go first and they need to show the employer has some sort of neutral
practice that has significant adverse impact.
 Defense must then show the practice is a business necessity, and related to job
performance.
 (duke could not show this because they have been not using it in the past
and most of their current employees don’t meet the requirements
Wards Cove packing v. Atonio
o Sold salmon, had two types of jobs, cannery-jobs and non-cannery jobs.
o The non-cannery jobs were skilled jobs, cannery jobs were unskilled.
o The non-cannery jobs are mainly made up of mostly white people while the cannery jobs
o Court Finds:
 First, lower court was not looking at it properly, cannot look at the racial composition
of the two groups and say there is discrimination– need to be looking at qualified
population and relevant labor market
 Second, among the burdens that the plaintiff has is to show there is a practice that is
causing the discrimination
 Here they cannot do that
 Third, (they wrongly state their precedent) justification previously said necessary for
business operation they changed it to furthers legitimate employment goal.
 Congress fixes this by putting it back in the statute at 703 K
What are the justifications for having disparate impact?
o
o
o
o
B.
To remedy past discrimination
We are really looking for intentional discrimination that can’t otherwise catch
We need disparate impact law to catch all the subconscious bias
Employer’s are potentially being negligent in their hiring practices and they are harming
people in their practice and this needs to have a remedy.
PLAINTIFF’S CASES


(1) Plaintiff has to identify a particular employment practice
o Watson v. Fort Worth Bank & Trust
 Claire Watson, black woman who works as a teller, white man gets the job every
time.
 The banks discretion is highly discretionary
 She sues alleging disparate treatment and impact
 Lower court says there is no intentional discrimination, so no disparate
treatment
 Also, court says disparate impact hasnt applied to subjective stuff yet, only
objective (a test, height requirement, etc.) so they need to figure that out;
can we use disparate impact on subjective hiring practices?
o Court says yes subjective test are okay for disparate impact
 ON EXAM: keep your eyes out for employment cases that
don’t look like typical disparate impact case, they might have
a subjective test “employer looking for aggressiveness”
o Connecticut v. Teal
 Employer has a 2-step employment process, (1) must pass test and multi-factor
evaluation.
 The test has disparate impact on the basis of race 54% pass rate for black and 79%
for white.
 After multi factor evaluation, 22% blacks are promoted, and 13% white.
 Four black employees sue, but defense says more blacks were promoted.
 Court says we are looking at the numbers from the test and there is no
bottom-line defense that can come from the bottom line promotion
numbers.
o There is no bottom-line defense once plaintiff identifies an
employment practice with disparate impact.
 But there is a bottom-line exception from the statute itself
for plaintiff’s; it says if the plaintiff can’t separate employer’s
practices (an opaque multi-factor test) they can use the
bottom-line numbers.
 Majority thinks disparate impact is separate from intentional discrimination,
but Powell disagrees.
(2) Identify the relative comparison group
o Dothard v. Rawlinson
o Employment practice, have to be 5ft 2 in and weigh 120 lbs.
o She now needs to ID relative comparison group.
 She says test excludes 41% of women but only 1% of men. (change the statistics to
pass rates, 59% women pass 99% men pass)
 She
 The plaintiff uses nationwide statistics, meets her burden, now Alabama must justify
height and weight requirement, they say they needs strong prison guards, and court

C.
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
has issue with that, saying there is no data showing its useful for prison guard and
they could have tested for strength more accurately.
(3) Proving the Quantum of Impact (how much impact do you need?)
o There are two tests:
 1. The EEOC 4/5th rule or 80% rule – if members of the protected groups are selected
at rates less than 4/5th of the rate of their counter parts then you’ve shown DI.
 EX: 70% of men pass test and 80% of women pass, men don’t have COA (7/8
is higher than 4/5)
 2. The Test of significant statistics – 2 SD away
 Take the passing rate in the non-protected group – if 10 men pass we expect
10 women to pass.
o Good for big numbers and extremes
DEFENDANT’S CASE
After plaintiff’s case the burden shifts; defendant must show:
D must show test is job related consistent with business necessity
o Prove whatever cut off score they’re trying to make meet the minimum conditions necessary
Lanning case
Statutory supplement Title VII
o 703K –
 P can still win if they can show there is an alternative employment practice and defendant
refuses to enact it
Boston PD administered hair test case
o 99 % of white officers passed drug test
o 98 % of black officers test
 Step 1 – P ID employment practice (drug test)
 Step 2 – P ID comparison group (white officers that passed)
 Step 3 – P prove impact, showed statistical impact (there actually was)
 (D argues 4/5 rule – fraction 98/99 a lot higher than 4/5)
 Step 4 – D showed it is job related and consistent with necessity
 Step 5 – P argues alternative employment practice, follow up with urine test because there
are false positives with hair test.
 P has to show this works at least as well as employer current practice
 Alternative test has less disproportionate impact
 D has to refuse to adopt the alternative practice
o Try to find in the record that the D was aware and never adopted it
DISPARATE TREATMENT PATTERN AND PRACTICE V. DISPARATE IMACT


DT P&P
o Plaintiff’s Case
 Title 7 / ADEA / §1981
 Trying to prove intentional discrimination
 Statistics and antidotes
 Applicant flow numbers or population
o needs to be stat. sig.
o Defendants case
 Alternative explanation (lack of inference)
DI
o

V.
Plaintiff’s Case
 Title VII / ADEA
 Negligence
 ID a specific neutral employment practice that has a disparate impact
 Applicant flow and population
 Prove quantum of impact, ¾ or Stat sig
o Defendants case
 Show its job related and consistent with business necessity
Note you can bring both of these theories in a real case
SPECIAL ISSUES IN DISCRIMINATION
A.
SEX
1.
BACKGROUND

2.
What does it mean to discriminate on the basis of sex?
o Oncow (page 275)
o Joseph O goes to work on this oil platform and he’s subject to male harassment by
male coworkers including threats of rape and actual rape.
o He needs to show this harassment was because of his sex
 5th circuit said there is no basis of same-sex sexual harassment in Title VII
 Other circuits said you can only bring it if harasser is gay
 Harassment must be sexual in nature to get same-sex sexual harassment
 Supreme court says these are all wrong – they quote the statute,
they say P has to prove the harassment is because of their sex, aka if
he were a woman, wouldn’t be receiving the harassment. Examples:
1. Motivated by dislike for members of one sex
2. Motivated by sexual desire
3. Sexual in nature
4. Sex stereotyping – failure to conform to gender
SEXUAL ORIENTATION

Hively v. Ivy Tech community college of Indiana
o Kimberly Ivy sues because she thinks college discriminated against her for being a
lesbian.
o 7th circuit says discrimination on the basis of sexual orientations is a type of sex
discrimination.
 Core argument is that if you swap her out (a woman attracted to women)
with a man who is attracted to woman, there is no issue.
 Dissent says no you have to switch out the gender, must compare
her to a gay man because that’s the real equivalent.
o You can’t control for sexual orientation when that the factor
you are trying to assess.
o The caselaw:
 One justice says if you are taking account of someone’s sexual orientation
you are looking at two things, the sex and the sex of the person they’re
attracted to. The statute says if sex is a motivating factor then you have sex
discrimination. The end.
3.
GROOMING AND DRESS CODE

4.
Missed this class
PREGNANCY
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Woman had less continuous employment which would affect the wage gap and acquiring
less tenure. Because of this, employers would steer young woman away from positions
that required significant investment.
Three approaches :
o
o Equal outcomes approach – acknowledging there is no equivalency to pregnancy,
so require employers to provide equal opportunity in the workplace by
accommodating woman so they are no worse off than if they had not become
pregnant.
o Equal treatment approach – treat a woman’s experience with pregnancy the
same way you’d treat anything else in the workplace. Ex. (problem, there is no
male equivalent)
1974 Gedlig (EP)
1976 Gilbert (Title VII)
1978 PDA
Guerra 1987
o Employers have to give woman unpaid leave when they become pregnant, get
reinstated after
The pregnancy discrimination act is a floor not a ceiling, tells you what you must do but
allows employers to go beyond
o The law requires an employer to give at least equal treatment (treat them the
same as someone with a similar disability) and permits but does not require
equal outcomes.
o TEST:
 Do they give at least the same treatment for equivalent disabilities?
 If yes, they pass, if no, they fail
 Do they give more/extra? More is okay.
 Is the extra tied to pregnancy, child birth and related medical condition?
 If yes, they pass, if no they fail
o HYPOS:
 Policy: 1 year maternity leave, no paternity leave, no disability leave
 Does this require at least as much as other workers with
disability? Yes, it meets the floor.
 Employers are permitted to give more. Here they do.
 Illegal - Issue? Here this starts to look like childcare leave and
you have to give that equally, 8 weeks usually the amount you
get for pregnancy.
 Policy: 8 weeks pregnancy – no paternity or disability
 Does this require at least as much as other workers with
disability? Yes, it meets the floor.




5.
Employers are permitted to give more. Here they do. AND it is
tied to child birth and recovery.
 Legal.
 Policy: I year free counseling for PPD, no coverage for other psych issues.
 Do they give at least the same treatment? YES.
 Do they give more/extra? YES.
 Is the extra tied to pregnancy, child birth and related medical
condition? Yes, legal.
 Policy: 6 weeks adoptive maternity leave, no paternity leave.
 Illegal. This is childcare leave, have to hand it out equal
 Policy: No leave for anyone.
 Legal
Young v UPS (2015)
o Restricted lifting pregnancy, she’s a UPS driver, UPS requires ability to lift 70 lbs.
o UPS has a light duty policy, granting light duty leaves for people injured on the
job, needed to be accommodated under the ADA or people who lost CDL.
o She requests Light duty leave but is denied b/c she is not in one of the above.
 Supreme court says – this is not a formal policy case and they are going
to use the McDonald Douglass proof structure but modified.
Defendant needs to give a legitimate non-discriminatory reason for why they don’t treat
pregnancy the same as other medical conditions
o Pg 313 That reason cannot consist of a claim that it more expensive or less
convenient to cover pregnant women
If the D shows above it goes back to P and they can show ___ or the defendant can’t
justify the burden they’ve given
o Proof Structure
 Plaintiff must be ADA employees....?
 Defendant needs to give a legitimate non-discriminatory reason for why
they don’t treat pregnancy the same as other medical conditions.
 That reason cannot consist of a claim that it more expensive or
less convenient to cover pregnant women
 Shifts back to P and they can show ___ or the defendant can’t justify the
burden they’ve given
HARRASSMENT

Background: Kinds of harassment
o Quid pro quo
o Hostile work environment
 Boxes a Plaintiff needs to check to bring a successful HWE claim:
 Because of sex/race/religion
 Unwelcome
o Unwelcome v involuntary – voluntary is not necessary
welcome, the workplace blurs these lines.
 Severe OR pervasive – such that it alters the conditions of
employment
o Both objectively and subjectively severe and pervasive
 No egg shell plaintiff and no particularly insensitive
o OR- there can be one very severe act or small consistent acts
 Employer liability

Employer liability
o Different because it is usually against company policy or the employer has no idea its
going on. Early courts did not want to hold the employer responsible for that reason.
o There is no cause of action for coworkers or supervisors, only employer.
 Title VII does define employer to include any “agent” of the employer.
o Ellerth (1992)
 Slowick is a supervisor but not the plaintiff’s supervisor, and he starts
harassing her with a pattern of quid pro quo. He then says sleep with me or
you’re fired, she refused, but then he did nothing, he did not fire her.
 So this case ends up being a hostile work environment case because
there was no tangible employment action.
 Elements of hostile work
o b/c of sex or other characteristic
o behavior is unwelcome (not same as involuntary)
o must be severe or pervasive
o Employer liability
 Elements of Quid Pro Quo Harassment
o Because of sex (proposed exchange or sexual consideration)
o Tangible employment action
o Employer liability
 If a high-ranking employee does the harassment,
they are basically the employer.
 Action must be within scope of employment
 Employer intended it (never happens)
 Employer was negligent or reckless – knew
or should have know about conduct and
failed to correct it.
 Agent was aided in accomplishing the tort
by the existence of the agency
o Employers need to make it easy to
complain.
o Have bypass procedure if supervisor
is harasser
QPQ
HWE
High Ranking Officer
Automatic liability
Automatic liability
Automatic Liability unless employer completes a 2-part defense:
-employer took reasonable care to prevent to correct harassment
Supervisor
Automatic liability
AND
-Plaintiff unreasonably failed to complain or otherwise avoid
harm
Liable if they knew or should have known.
Co-worker (3rd party)
NONE
(They are aided by agency b/c they are put in close proximity, but
that’s not enough.)
HYPO: Employer with good policy, training, and enforcement culture. Someone
complains about supervisor harasser, they fire the harasser. Are they liable? Yes.
Supervisor created HWE, they can’t make out second part of 2-part defense.

What counts as a tangible employment action?
o

B.
Constructive discharge can be, but only if supervisor took some official
act (i.e. a transfer plus official act)
o In submission cases there is a tangible employment action even where
there was no change in employment (not fired transferred etc.) the
argument is now that you have to sleep with your boss to keep your job,
there is an additional condition to your employment contract and that’s
a tangible employment action.
IHOP Case
o They had procedure for reporting sexual harassment and training.
o Junior manager who is a decade older starts to continuously harasses the
younger employees.
 Two workers complain to two different supervisors, and
no action is taken or investigated
 Defense was that they should have complained to
“Smith” court rejects this saying they immediately
reported to two supervisors as your policy states
RELIGION




First make sure its not a religious institution b/c they are allowed to discriminate on basis of religion - not
allowed to discriminate on any other basis, cannot violate any laws in the process
Second decide if it is religious belief or religious practice case.
Religious belief case – here we apply the proof structures we already know – disparate treatment,
disparate impact, etc. but courts usually add to disparate treatment structure, they say the employer has
to have knowledge of the employee’s religion.
Religious practice case –
o Christine Wilson– wears anti-abortion button to work w/ picture of fetus, she’s catholic and made
a religious vow to wear button until abortion is illegal.
o Options she has from employer:
 Wear button only in cubical
 Cover your button
 Wear a different button without photo
 Eventually fired for missing too many days of work
o Prima Facie Case (3 part)
 Employee has a bonafide religious belief that conflicts with a requirement of employment
 Means it is sincerely held belief, they show some evidence of it
 Or moral or ethical belief sincerely held that occupies the same strength as
traditional religious beliefs (doesn’t have to be mainstream religious belief)
 Employee informed employer of belief
 Employee is disciplined for failure to comply with that requirement
o Burden shifts to defendant
 Did defendant reasonably accommodate the practice?
 If yes, we are done.
 If no, would the requested accommodation cause an undue hardship?
 If yes, defendant employer wins
 Anything more than deminimus cost to employer is undue hardship, so very low
standard.
o Ministerial exception- Religious institutions can always discriminate on basis of religion but also
on other basis when it comes to their ministers... overruled by (case on page 383)

C.
NATIONAL ORIGIN


D.
Case – She was teaching as a lay teacher then began teaching religious courses for better
contract. Turns out she has narcolepsy which eventually leads to her termination.
 School defends by using ministerial exception.
 Supreme court confirmed this is a valid exception but did not apply here, they
say the exception is needed to protect first amendment.
o Who is a minister?
 Anyone the church wants? -problematic
 Anyone in top position? Problematic
 So they take a middle ground approach
o Does the persons title distinguish them?
o Did the person have to have religious training
o Role in church’s mission
 Once they are in this exception they can discriminate or
harass on any basis, no cause of action.
Definition: The country from which you or your ancestors were born in.
Questions to answer, what happens if you discriminate on the basis of:
o Citizenship? (alienage) –
 Not the same as discrimination on the basis of national origin, aliens are protected
under title VII, but citizen ship status itself is not covered. But cannot discriminate on
basis of citizenship under §1981
o Language – Example, must speak English to get this job, national origin discrimination? No.
Some US citizens don’t speak English some non-citizens do speak English.
 – English only in workplace, EEOC says discrimination but many courts will pass if
they give some reason or won’t even ask.
o Accents – not per say discrimination, same as language, they will cut employers slack
AGE

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
Background – it is strange because eventually the discriminators will be old as well.
ADEA only prohibits discrimination for age 40 or over
o Doesn’t work for younger workers, no reverse discrimination
o Police can have mandatory retirement age.
No mixed motive proof structure
Age needs to be THE motivating factor
Employers cannot have any type of mandatory retirement ages
Older worker benefits protection act ________ - Makes it hard to waive ADEA claims, have to say
explicitly they are waiving ADEA claim and have to give them 7 days to change their mind.
Exam, three questions, 1 page fact patter, 3 hours, 1 question will be a policy question, 2 will be like example he gave.