Employment Discrimination Outline
ENFORCEMENT PROCEDURES ..................................................................................................... 3
EEOC: .............................................................................................................................................. 3
Statute of Limitations ....................................................................................................................... 3
DEFINITIONS ..................................................................................................................................... 3
DISPARATE TREATMENT ............................................................................................................... 4
Prima Facie Cases ................................................................................................................................ 4
Racial Discrimination (McDonnell Douglas Corp. v. Green) .......................................................... 4
Promotions: .................................................................................................................................. 5
Demotions: ................................................................................................................................... 5
Wrongful Discharge (non-disciplinary): ...................................................................................... 5
Disciplinary Discharge: ................................................................................................................ 5
Constructive Discharge: ............................................................................................................... 5
NJ Reverse Discrimination Cases: ............................................................................................... 6
Pretext or Single Motive Cases ............................................................................................................ 6
McDonnell Douglas v. Green Analysis ............................................................................................ 6
Hiring Processes ............................................................................................................................... 7
Word-of-Mouth Hiring: ................................................................................................................ 7
Furnco Construction Corp. v. Waters........................................................................................... 7
Proving Intent by Circumstantial or Direct Evidence ...................................................................... 8
Mixed Motive Cases............................................................................................................................. 9
Desert Palace, Inc. v. Costa .......................................................................................................... 9
Same Decision Defense: ................................................................................................................. 10
After-Acquired Evidence Cases ......................................................................................................... 10
Damages: .................................................................................................................................... 10
Pattern-or-Practice Cases ................................................................................................................... 10
Affirmative Action Cases ................................................................................................................... 11
AA Plans: ....................................................................................................................................... 12
Elements of a valid AA plan: ..................................................................................................... 12
Policy Issues: .............................................................................................................................. 12
Wygant ....................................................................................................................................... 12
United Steelworkers of America v. Weber ................................................................................ 13
Statistical Issues: ........................................................................................................................ 13
Procedural Issues: ....................................................................................................................... 14
DISPARATE IMPACT ...................................................................................................................... 15
Prima facie case and burden shifting: ............................................................................................ 16
The Business Necessity Defense ................................................................................................ 17
Application to objective and subjective hiring criteria: ................................................................. 17
Griggs v. Duke Power ................................................................................................................ 17
Raytheon..................................................................................................................................... 17
Watson v. Fort Worth Bank ....................................................................................................... 18
Statistical Evidence ........................................................................................................................ 19
Dothard v. Rawlinson ................................................................................................................. 20
The Bottom-Line Defense .............................................................................................................. 20
GENDER DISCRIMINATION ......................................................................................................... 20
FMLA as Anti-Discrimination Law ............................................................................................... 21
Pregnancy: .................................................................................................................................. 22
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BFOQs ............................................................................................................................................ 22
Int’l Union, UAW v. Johnson Controls.- pregnancy.................................................................. 23
Dress, Grooming and Appearance.................................................................................................. 23
HARASSMENT ................................................................................................................................. 23
Sexual Harassment in NJ: Lehmann v. Toys-R-Us .................................................................... 23
Emp’r liability: ............................................................................................................................... 23
Hostile work environment: ............................................................................................................. 24
Racial Harassment in NJ: Taylor v. Metzger .............................................................................. 25
DISABILITY DISCRIMINATION ................................................................................................... 25
Meaning of Discrimination ............................................................................................................ 26
Meaning of Disability..................................................................................................................... 26
Physical impairment: .................................................................................................................. 27
Substantially limits: .................................................................................................................... 27
Major life activity ....................................................................................................................... 27
Regarded as having disability: ................................................................................................... 27
Qualifications, Direct Threat and Undue Hardship ........................................................................ 27
Reasonable Accommodation .......................................................................................................... 28
RETALIATION ................................................................................................................................. 28
Mixed motive retaliation cases: .................................................................................................. 29
Participation and Opposition Clauses: ........................................................................................... 30
REMEDIES ........................................................................................................................................ 30
Seniority: ........................................................................................................................................ 30
Reinstatement: ................................................................................................................................ 31
Emp’r liability: ............................................................................................................................... 32
Backpay: ......................................................................................................................................... 32
Front pay: ....................................................................................................................................... 32
Compensatory damages: ................................................................................................................ 32
Attorneys’ Fees: ............................................................................................................................. 33
Mixed motive damages: ................................................................................................................. 33
After-Acquired Evidence Case Damages: ...................................................................................... 33
Punitives: ........................................................................................................................................ 34
Liquidated damages: ...................................................................................................................... 34
ADEA: ............................................................................................................................................ 34
FMLA: ............................................................................................................................................ 35
New Jersey: .................................................................................................................................... 35
DEFENSES ........................................................................................................................................ 35
Cost justification defense: .............................................................................................................. 35
Same-Actor Defense: (disparate treatment) ................................................................................... 36
Honest belief doctrine: (disparate treatment) ................................................................................. 36
BFOQ: (facially discriminatory policies) ....................................................................................... 36
Same Decision Defense: (mixed motive cases) ............................................................................. 36
Lack of Interest Defense: (disparate impact cases) ........................................................................ 37
The Business Necessity Defense: (disparate impact) ..................................................................... 37
ADA Defenses: .............................................................................................................................. 37
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“To discriminate is to make a distinction, to make a difference in treatment or favor, and those
distinctions or differences in treatment or favor which are prohibited . . . are those based on any of
five forbidden criteria: race, color, religion, sex, and national origin.” Title VII interpretative memo.
Pg. 197.
ENFORCEMENT PROCEDURES
EEOC:


Enforces Title VII, ADA. ADEA and Equal Pay Act.
Has authority to promulgate procedures to enforce Title VII, ADA and ADEA.

2 req’s to bring Title VII and ADA civil action:
(1) timely file charge with EEOC
 180 after unlawful practice
 300 – if instituted in state agency first
(2) timely file complaint after rec’t of right-to-sue letter (w/in 90 days)
Statute of Limitations

SOL: each discrete unlawful act is a separate violation and needs to fall within the filing period, even
if they are related to timely filed charges. There is no continuing violation doctrine. Nat’l RR v.
Morgan, p. 29.
o Acts outside SOL can be used as background evidence.
o Cont. violation doctrine might still be applicable to pattern-or-practice claims.
o SOL is subject to waiver, estoppel and equitable tolling
 Estoppel: e.g., where emp’r misleads P and prevents timely filing.
 May not apply if P was always rep’d by counsel.

Have to wait 60 days after filing with state agency to file with EEOC, unless state proceedings are
terminated earlier. (In states with agencies, you have to go to state 1st.)

You can ask for a right to sue letter if EEOC doesn’t act w/in 6 mos.

NJ is better because one LAD option is to go right to court (SOL 2 years) – no exhaustion
requirement. You can do an NJDCR filing within 180 days, but it’s not required. They will
make a final decision. If investigator concludes no probable cause, matter is dismissed and you
have to appeal to appellate division. If they find cause, it goes to OAL, which appoints a
Deputy Atty. General to represent you. Can withdraw case from their jurisdiction and take
their investigative file and file in court.

If state court reviews merits of state agency determination, federal court may be prevented from
hearing case – res judicata.
o Avoid having state agency reach final decision, so adversary doesn’t seek review.
DEFINITIONS
Employer:
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

Title VII/ADA: person engaged in industry affecting commerce; 15 or more emp’ees for each
working day in each of 20 weeks per year.
ADEA: need 20 emp’ees.

Includes agents (only liable in representative capacity – no compensatory or punitive damages).
Employee: no independent contractors?
Employment practice:
 Must fall within “compensation, terms, conditions or privileges of emp’t.”
 Things that don’t aren’t unlawful even if discriminatory.
 3d Cir: something that materially affects the terms or conditions of employment.
DISPARATE TREATMENT
Title VII, § 703(a)(1): “It shall be an unlawful emp’t practice for an employer to fail or refuse to hire or to
discharge any individual or to otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of emp’t, b/c of such individual’s race, color, religion, sex or
national origin.”



Intentional discrimination is an issue of fact for the factfinder.
Factfinder’s decision will only be set aside if clearly erroneous.
P may prove claim by direct or circumstantial evidence.

Emp’r may refuse to hire person who engaged in unlawful, disruptive acts against it, so long as this
criterion is applied to members of all races/groups.
(1) P must prove discrim. was a motivating factor.
(2) D has three ways of defending:
 Knocking out one of the Mc-D prima facie prongs.
 Articulating the non-discrim. reason as the sole reason.
 If he loses there, he can invoke same-decision defense.
Systemic Disparate Treatment has to do with mandatory retirement, excluding a class of individuals
from certain jobs. Bona-fide occupational qualifications (BFOQ’s) (mandatory maximum hiring
age, etc. do apply). Affirmative action will also be considered.
Prima Facie Cases
Racial Discrimination (McDonnell Douglas Corp. v. Green)
1. P belongs to racial minority
2. Applied for an was qualified for job for which emp’r was seeking applicants
o Application: Failure to apply might be excused if it would be futile or if applicant could
never have known about opportunity, p. 89. (E.g., employer admits discrimination or no
people from class have ever been hired.)
o Qualifications: usu. satisfied if P possessed qualifications in written job descript.
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
If D claims it hired someone more qualified, P has burden of est. that s/he was better
qualified.
 P can also say D’s claim is unworthy of credence.
 P’s own testimony isn’t enough – usu. need expert.
 Same for testimony of co-workers.
 Disparities in qualifications don’t demonstrate discrim unless they “virtually jump
off the page and slap you in the face.” Dienes v. Texas Dept. of Protective &
Regulatory Svcs., p. 126.
3. Rejected, despite qualifications
4. After rejection, position remained open and emp’r continued to seek applications from person’s of
P’s qualifications.
o Most courts say that it’s irrelevant that P loses out to person in protected class. Consolidated
Coin, p. 92.
 However, the fact that emp’r hired from same class comes in as evidence.
o SO: In reality, it’s too hard to convince a jury that emp’r discriminated in case where another
person of the same protected class was hired.
o Employer could discriminate between types of persons within a protected class. (E.g.,
feminist, militant black, Hassidic Jew, etc.)
Promotions:
P was qualified for promotion, was rejected, and another applicant of equal or lesser qualifications was
promoted.
Demotions:
P was performing at level that met emp’rs legit expectations and emp’r replaced P with someone of
comparable or lesser qualifications.
Wrongful Discharge (non-disciplinary):
P w as doing job well enough to est. s/he was performing adequately and, after discharge, emp’r assigned
someone else to do same work.
 NJ: Ziv – 2005. As for performing up to employer’s legitimate expectations, as long as you show up
for work and do your job, you meet this prong.
Disciplinary Discharge:
P, who has violated legit rule or policy, and emp’r has treated him less favorably than other similarly situated
emp’ees not in the same protected group, who have violated rules.
 No req’t that the emp’ees be similarly situated in all respects, p. 96.
 Similarly situated now means “in all relevant respects.” Emp’r will always argue that employees are
not similarly situated.
Constructive Discharge:
Emp’ee involuntarily resigns to escape intolerable working conditions s/he is subjected to because of race,
sex, national origin or religion.
 Must who P was forced to resign b/c working condition, from standpoint of a reasonable emp’ee, had
become unbearable. Objective standard.
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
Courts are split on whether const. disch. in harassment cases is a tangible emp’t action.
o If it is, emp’r is precluded from asserting an aff. def. to vicarious liability for harassment by
supervisor. See pg. 99.
NJ Reverse Discrimination Cases:

P must show background circumstances to establish that D is the unusual emp’r who discriminates
against the majority.
Pretext or Single Motive Cases
McDonnell Douglas v. Green Analysis
1. P must establish prima facie case (preponderance of evidence)
o Prima facie can raises presumption of discrimination (Burdine)
 Req’s factfinder to temporarily assume discrim
 Presumption imposes on D burden of going forward to rebut
o Creates presumption by eliminating 2 most common legit. reasons for not hiring:
 lack of qualifications
 absence of vacancy
2. Burden of production shift to D to articulate legitimate, nondiscriminatory reason for adv. emp’t
action.
o No need to persuade – D need only produce admissible evidence.
o Encourages employers to lie to destroy prima facie case.
3. Burden shifts back to P to attempt to establish reason was pretext
o Discrim was “more likely than not” the real reason
o Proffered reason is unworthy of credence
o (Tex. Dept. of Community Affairs v. Burdine)
o Ways to show pretext:
 Similarly situated emp’ees in different class are treated more favorably
 Proffered reason has no basis in fact
 Proffered reason did not motive emp’rs decision
 Proffered reason was insufficient to warrant emp’rs conduct
o D can claim honest belief.
 Honest belief doctrine – so long as emp’r honestly believed that reason was
legit., emp’ee can’t show pretext. Focus is on intent of employer. Mistaken
belief is a good defense.
o Open issue:
 Pretext only: est. pretext req’s jury to find discrim.
 Pretext may: jury may find discrim. if P ests. pretext.
 (St. Mary’s Honor Cntr. v. Hicks)
 Hicks clearly rejected pretext only, but court revived it in Reeves and killed the
idea of pretext-plus.
 At close of P’s case, D can challenge prima facie case by making motion for judgment as matter
of law.
o (At close of P’s case, D can seek dismissal if D met its burden through testimony of P’s
witnesses.)
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o
o
Once D presents its evidence, evidentiary sufficiency of prima facie case is no longer at
issue.
If P puts on prima facie case and D puts on no case at all, plaintiff wins if jury believes the
four prongs.
Reeves v. Sanderson Plumbing Products, p136 – O’Connor decision. This brings us to the end of
proving the pretext reasoning. In contrast to Hicks, proper deference was given to the jury. An
ADEA case, this is a bit like Hicks in that the plaintiff made it’s four part prima facie case, the
defendant gives their reason, and then the plaintiff makes his case for challenging the defendant’s
case. The plaintiff was a 57 year old manager fired ostensibly for failing to maintain accurate
attendance records; won below, then the 5th Circuit overturned. SCOTUS reverses 5th Circuit, citing
logic referred to as discrediting the “pretext plus” reasoning of the court below; instead the
discrediting evidence must show that there is evidence discrediting the employer’s reason, but at the
end of the day, this should go to the jury. Once everyone has met their burden, it is up to the jury to
decide. Many courts had read Hicks as meaning the plaintiff must present more that discrediting
evidence, but instead the SCOTUS court says McDonnell-Douglas sets the standard for where the
presumptions drop out; not the standard for where evidence comes in, and that Hicks was being
“over-read). Remember, the fourth prong for the plaintiff is merely to show evidence permitting the
jury to infer that the defendant employer used pretext to cover a discriminating reason for the harm
the plaintiff suffered.
There are two items in Reeves the court demonstrates, p139. The employer attacks the employee in
some manner; the employee then shows that the reason given by the employer is inaccurate.
Another example is the plaintiff can cast doubt that his or her failures caused problems for the
employer, e.g., the failure was someone else’s responsibility, or that the failure itself didn’t truly
cause the harm the employer claims to have suffered.
Hiring Processes
Word-of-Mouth Hiring:






Doesn’t constitute discrim (EEOC v. Consolidated Svcs. Systems), p. 127.
Discrim is not preference.
If method is adopted b/c it’s the most efficient and just happens to produce workforce with
composition that emp’r likes, it’s not discrim.
Knowledge of disparity is not the same as intent.
P can usu. est. that word-of-mouth policy has disparate impact when it results in predominantly
white workforce.
Court recognizes cost-justification defense, infra.
Furnco Construction Corp. v. Waters

Hiring process must be reasonably related to legit. bus. purpose.
o System doesn’t have to consider the greatest number of minority applicants. Courts are less
competent than employers to structure business practices.

Racially balanced workforce can’t immunize the emp’r from liability for individual acts of
discrimination, but emp’r can use the info on the issue of motive.
7
o
Probably means you can’t get SJ on statistical evidence, but info can be used as evidence at
trial to rebut motive.
Proving Intent by Circumstantial or Direct Evidence

P must prove claim by preponderance by direct or circumstantial evidence.
o Evidence that is subject to more than one interpretation or merely suggests discrimination is
not direct evidence.
o SO: shouldn’t this be a jury question?

Who makes the decision whether a comment is direct evidence?
o Judge decides admissibility, but is it direct evidence if admissible?
 Always ask the witness the question about the comment that they heard and argue
state-of-mind hearsay exception for admissibility as direct evidence of
discrimination.

Was the decision-maker bound by the comment, if it wasn’t the decision-maker who made it?
o Stray remarks doctrine: (still exists from Price Waterhouse) – see Justice O’Connor’s
quote, p. 139.
 Stray remarks are probative of harassment, but aren’t direct evidence of
discrimination.
 SO: if your case is based on stray comments, don’t try to bring it as a direct
evidence case.
o Some comments are just personal opinions and not evidence that emp’r acted with
discriminatory intent.
o Stray remarks may constitute circumstantial evidence of discrimination.
 SO: If so, you get it before the jury.
The O’Connor concurrence in Price-Waterhouse is very influential as it represents the “least
onerous” of the decision. There are two things in particular:
1) She says that a motivating factor is insufficient, instead it should be a substantial factor (a
harder test for a plaintiff to meet).
2) She also enters into a sequence of interpretation, outlining that plaintiffs should need direct
evidence to prove that the illegitimate motive exists. A smoking gun, as it were.
On pp333-334 of the supplement, 2000(e)-(5)(G), subsection (b) [706(g)] says, on a claim where a
plaintiff proves a violation of 2000(e)-(2)(M) [703(m)], and a respondent demonstrates that the
respondent would have taken the same action in the absence of the illegitimate factor, the employer
is permitted to prevail by then reducing the award to injunctive relief and attorney’s fees, but no
compensatory (loss of income, emotional distress, et al) or punitive damages can be awarded.

Stereotyping can constitute direct evidence of discrimination.
o Price-Waterhouse: Mostly overruled by 1991 Am. to Title VII.
 Partner suggested that woman should be more feminine if she wanted a promotion.
 An emp’r who acts on the basis of a belief that a woman can’t be aggressive, or that
she shouldn’t be, acts on the basis of gender.
8
o

Remarks based on stereotypes don’t prove discrimination, but can be evidence.
4-part test to decide if remarks or stereotyping by supervisor are direct or circumstantial evidence:
p. 146.
1. related to protected class
2. proximate in time to conduct
3. made by individual with authority over emp’t decision
4. related to emp’t decision
But note: intent of non-decision making emp’ee might be imputed to emp’r if that person had
leverage or exerted influence over the decisionmaker.

You don’t often see policies that are facially discriminatory. See pg. 139, n. 1.
o Malevolence isn’t required to be discriminatory.
o Absence of malevolence doesn’t turn facially discriminatory policy into a neutral policy with
discriminatory effect.
o Only one available defense: BFOQ.
 McDonnell Douglas analysis primarily applies at SJ stage.
o Nothing compels the parties to use McD analysis – P can just put on sufficient direct or
circumstantial evidence of discrim.
 If P doesn’t us Mc-D, emp’r need not proffer legit. reason and can simply req’r to P
case.
o Mc-D analysis doesn’t usually go to jury.
 Exception: where D does not rebut prima facie case, but it’s still in factual dispute.
Mixed Motive Cases
Title VII, § 703(m): “...an unlawful emp’t practice is est. when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any emp’t practice, even though other
factors also motivated the practice.”


Employee must prove that discrimination was a motivating factor.
Employer must prove it would have made same decision regardless of the discriminatory motive.
 Single motive v. mixed motive analysis applies to how D opposes P’s claim.
o Choice of jury instructions depends on whether evidence supports a finding on just 1 or
multiple factors that motivated the decision.
 Open issue: does judge or jury decide if it’s single or mixed?
o Characterization just effects what defenses are available.
Desert Palace, Inc. v. Costa

To obtain mixed-motive instruction, P need only present evidence sufficient for reasonable jury to
conclude (by preponderance) that forbidden factor was a motivating factor in emp’t practice.
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Same Decision Defense:




Emp’r proves absence of “but for” causation.
Emp’r has burden of persuasion in addition to production.
If proven, damages are limited to attorneys’ fees, declaratory relief, and injunctive relief.
Often the non-discrim. reason under Mc-D is the same reason as would be given for samedecision defense.

If you are D’s attny., you want to couch case as a dual motive case, b/c if you win the dual motive
part of the case, you’ve won – there’s limited damages.
If D establishes same-decision defense, the court is limited to injunctive relief, declaratory relief, and
attorneys’ fees.
o NJ doesn’t have the same limitation, so file in NJ if you can.
o But...may want to take a case to fed. ct. b/c there you can still get attny’s fees if you lose a
mixed motive case, using same-decision defense. In state court, you may lose everything
under Mt. Healthy. Problem is the amount of fees you get in fed. ct.
o Bringing emp. case in fed. ct. could be considered malpractice per se. There’s no case in
NJ that says if you prove a mixed motive case you get fees. In NJ, judges charge jury that
if you find mixed motive you find for the D.

After-Acquired Evidence Cases

After-acquired evidence that would justify termination is a defense.
o D must first est. that. it was unaware of the wrongdoing when it made the decision, it was so
severe that it would have fired D on those grounds alone had it known about P’s conduct.
Burden is on D to prove.
o Affirmative defense – must be plead.

Common forms: resume fraud, on-the-job misconduct, theft, anticompetitive conduct, certain offthe-job criminal behavior.

Does not apply to after-acquired evidence of post-termination conduct.
Damages:


Equity’s maxim denying relief to P’s with unclean hands has not been applied where Congress
has authorized broad equitable relief to serve important national policies.
See Remedies, infra.
Pattern-or-Practice Cases
Title VII, § 707(a): When the EEOC has reasonable cause to believe that any person . . . is engaged in a
pattern or practice of resistance to the full enjoyment of any rights secured by this subchapter, and that the
patter-or-practice is of such a nature and is intended to deny the full exercise of rights herein described, the
EEOC may bring a civil action.”

P has two burdens (1) prima facie elements and (2) pattern or practice.
o Private parties can only bring class action and get damages for entire class.
o EEOC or DOJ can bring case anyway.
10

Pattern is something more than isolate, sporadic incidents.
o Must be repeated or routine – a regular policy, or regular, purposeful, less-favorable
treatment.
o Try to est. company-wide policy.
o Claim may fail even though individual instances of discrim are proven.
o May use statistical evidence of grave disparities, plus individual testimony to support it.

If proven, burden shifts to D to show there was no discrim.

Need statistical proof, plus evidence.

Emp’rs are more apt to settle class actions.
o Every member of class gets rebuttable presumption of discrimination and has all remedies
available to him.
o Costly “mini-trials” and availability of jury trials encourage Ds to settle.

If you show pattern, you may also get continuing violations beyond the SOL. Pg. 177.

Courts are split re. whether class action for P-or-P disparate treatment can be brought where Ps seek
compensatory and punitive damages. Pg. 176.
o Additional proceedings are usu. nec’y to determine scope of relief for class members. Minitrials.
Affirmative Action Cases
Title VII, § 703(g)(1): Authorizes courts to fashion relief, including “such affirmative action as may be
appropriate.”
But...
Title VII, § 703(j): Nothing in Title VII, “shall be interpreted to require any emp’r . . . to grant preferential
treatment to any individual or to any group because of the race, color, religion, sex, or national origin of
such individual or group” in order to correct any imbalance between the employer’s workforce and the
relevant labor market.
There are two tests for a plan to sustain, and employers must meet both prongs: (1) The plan needs
to be temporary measure designed to eliminate a manifest protected class standard. (2) The plan
must not unnecessarily trammel the interests of the majority employees.
Ultimately, the plan must be tailored to remedy victims of a proven, specific discrimination.
General discrimination, and a hope for diversity are not compelling enough interests.
In Adarand, it became clear that hope for diversity in race or gender was not a compelling interest
in the workplace, but Gruder showed that it was in the educational arena. Many courts, up and
down the circuits and districts have “rejected the invitation” to accept diversity as a compelling
interest.
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AA Plans:

“[A]ny measure, beyond simple termination of a discriminatory practice, adopted to correct or
compensate for past or present discrimination or to prevent discrimination from recurring in the
future.”

Five types:
o Strict quotas.
 Can’t have a quota, but can have a goal in an AA plan. See pg. 802, O’Connor
quote, and Gratz.
o Preference systems: minorities get some preference over non-minorities.
o Self-examination plans: failure to timely reach expected goals triggers self-study.
o Outreach plans: emp’rs try to reach more minorities and women. (Aka: pool problem – goal
is eliminate good old boy network.)
o Affirmative commitments not to discriminate.
Elements of a valid AA plan:
1. Must be designed to break down old patterns of discrimination.
o Need to assume that AA plans are to redress societal discrimination, b/c that way you need
not show intent.
o See pg. 890, bottom, to 891, top, for def. of societal discrimination.
o Claim of societal discrim. is no good in an individual discrim. case.
o Emp’r can use plan to remedy statistical imbalance – see below.
2. Must not trammel interests of white (or male) emp’ees.
3. Must be temporary and not designed to maintain a balanced workforce based on race or sex.
o No req’t for set end-date, as long as it’s intended to be temporary. Johnson.
Policy Issues:

Pg. 895: strict scrutiny of laws/govt. policy for race, heightened/intermediate for gender, rationale
basis for other classifications.
o SO: why apply strict scrutiny where the law is too benefit minorities?



Pg. 199, Sup. Ct. has rejected societal discrim. as compelling state interest to justify AA.
Diversity of student can be a compelling government interests. Grutter, p. 900.
Long-term goals of eliminating under-representation justify AA plan. Johnson.

See pg. 912: high tightrope for emp’rs – if Title VII is read literally, they face liability for past
discrim. If it is, they face liability to while for preferences adopted to mitigate effects of prior
discrim.
Wygant


There must be evidence of prior discrimination. Societal discrim. is not enough.
Statistical disparity between % of minority teachers to students, is an insufficient govt. interest and
doesn’t pass strict scrutiny. (I.e., diversity of staff is not a compelling govt. interest.)
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
Court expressly rejected the “role model” rationale.
United Steelworkers of America v. Weber



Majority said the spirit of Title VII wasn’t to forbid all decisions made based on race – the intent is
to aid minorities.
Rehnquist’s dissent says the statute is clear that no decisions at all may be made based on race, even
with the intent to help minorities. Case concerns interplay between § 703(j) and § 703(d).
**Important that case includes statistical analysis – important component in AA cases.
Statistical Issues (Dispatate Treatment):
(THIS APPLIES TO ALL DISPARATE TREATMENT CLAIMS) - Be sure that for this you refer to
sections 236 and 231.
Footnote 15, Teamsters v. US, p211: Often cited, this footnote tries to describe disparate treatment
discrimination. “Proof of discriminating motive is critical, although in some cases it can be inferred
by differences in treatment.” What this means is that even if you cannot produce the memo, etc.,
which is the usual indicia of intent, one can point to a statistical impact and still prove the case.



Comparison to est. under-representation can be:
o Between workforce and area labor market or general population.
o If specific training is req’d: between workforce and those in labor market with relevant
qualifications.
 If this comparison isn’t made, the plan just dictates blind hiring quotas. Pg. 919.
Imbalance need not be enough to otherwise prove prima facie case of discrimination.
o As long as there is an imbalance, the emp’r may adopt a plan (even if imbalance isn’t
striking) without having to introduce non-statistical evidence of past discrimination that
would be demanded of prima facie standard. Pg. 917.
Statistical evidence alone is not enough to prove a disparate treatment claim. Pg. 232.
LA Dept. of Water v. Manhart, p200. The employer starts with the premise that women live longer
than men, which is statistically provable on average. As a result, the employer wanted women to
make larger contributions to the pension fund. SCOTUS does accept the premise but says that even
though it may be true, that the policy is discriminatory nonetheless. Even though the premise is true
on average, on a personal level there was no way to say any one woman would live longer than any
one man. The answer is people are entitled to individual justice under Title VII.
TWA v. Thurston, p206. TWA has a policy of demoting captains after age 60, making them become
flight engineers. It also was a policy that if you lost your pilot’s status prior to reaching age 60, you
had the ability to bump an older flight engineer. SCOTUS says that the law does not require TWA
to grant these privileges to anyone, but if TWA is going to grant these positions through policy, age
cannot be a consideration. Note that even though it was not an intentional plan to treat older people
differently, it’s the disparate treament that results from the policy that matters.
In Hazelwood, the comparison becomes critical, as in statistically “what is expected?” Of course,
then the populations/demographics are always challenged and then there are experts, etc. The
13
factors for choosing the compared populations, are there sensible reasons for choosing the said
populations.
How employers can combat pattern and practice allegations:
703(e), p265: “…It shall not be an unlawful employment practice on the basis of religion, sex, or
national origin where such characteristic is a bona fide occupational qualification that is reasonably
necessary for the normal operation of the business.”
Every court stresses that it is to be interpreted very narrowly; but it is clear that Congress envisioned
instances where this could come up. Note that there is no set aside for race or creed (color).
1) Challenging the plaintiffs’ prima facie case – The plaintiff needs to come forth with
numbers to substantiate the argument; employer can challenge the variables and numbers
themselves; cp. Hazelwood in which the question of whether to include the St. Louis school
districts should have been included in the comparison
2) Going after the expert and challenging the expert’s credibility (call it 1[a])
3) Acknowledge the statistics but challenge the argument presented as to whether it
demonstrates a pattern or practice of discrimination. “Even assuming everything, from these
facts there is insufficient evidence of discriminatory intent.” Of course, then there needs to
be a reason given on the part of the employer, and this reason should lead to a nondiscriminatory reason for the statistics shown. This is somewhat analogous to McDonnell
Douglas, and is highlighted in Sears.
4) Do not deny the discrimination at all, but give a justification for the result, such as a bona
fide occupational qualification (BFOQ). I did it, I had to do it, it was a good idea to do it,
and the law permits me to do it.
Procedural Issues:

Ps are usually white males.
Iadimarco v. Runyon – 3d Circuit




To meet prima facie case (in any kind of reverse discrim case?), it’s enough for P to present evidence
sufficient to allow a fact finder to conclude that the emp’r is treating some people less favorably than
others based upon a trait that is protected. Mc-D applies.
SO: this is an ultra-conservative decision that makes it easier for white males to prevail where emp’r
has an AA plan.
NJ still requires the “background circumstances” test.
Usually asserted as a defense by D at second prong of Mc-D.
o Important: it’s not an affirmative defense, so burden of proof doesn’t shift to D.
14
o
o
AA plan is legit., non-discrim. reason.
If D asserts it, P must show plan is invalid or pretextual.
 B/c it’s not an aff. def., emp’r never has to prove plan is valid.

Some courts hold that evidence that emp’r violated its own AA plan may be relevant to question of
discriminatory intent. Pg. 187.
o It’s not enough evidence standing alone – must go through Mc-D analysis. Pg. 925.

Mixed motive cases might “sound the death knell” for AA plans. Pg. 187.
o EEOC has taken the position that § 703(m)(mixed motive analysis) doesn’t later law on
affirmative action.
DISPARATE IMPACT
Title VII, § 703(a)(2): “It shall be an un lawful emp’t practice for an emp’r to limit, segregate, or classify his
emp’ees or applicants for emp’t in any way which would deprive or tend to deprive any individual or emp’t
opportunities or otherwise adversely affect his status as an emp’ee, b/c of such individual’s race, color,
religion, sex or national origin.”
 Note: § 703(a)(2) doesn’t use the word “discriminate” like § 703(a)(1) does.
Title VII, § 703(h): Authorizes the use of “any professionally developed ability test” that is not “designed,
intended or used to discriminate b/c of race, color, religion, sex, or national origin.”
Title VII, § 703(k): “An unlawful emp’t practice based on disparate impact is est’d under this title only if (i)
a complaining party demonstrated that a respondent uses a particular emp’t practice that causes a disparate
impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that
the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described [herein] with respect to an alternative emp’t
practice and the respondent refuses to adopt” it.
Definition: “[E]mployment practices that are facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters v.
U.S.

Significant difference from Mc-D: once P establishes disparate impact, the burden of
persuasion shifts to the employer to show that there’s a relationship between the employment
practice and the job (i.e., a business necessity).
1) Employee must show a practice
2) Employee must show a disparate impact (failed to hire, not promoted, otherwise punished
3) Causation (linking the practice to the result)
Congress has tried to make sure that fairness governs in cases of disparate impact, and that well
intended policies are typically not actionable. Disparate impact is found that an employer has a
policy that adversely impacts one group more than another without a reasonable justification for the
policy’s existence. There is no need to show intent.
15
You cannot have a disparate impact claim under sections 1981 or 1983, as intent is required.
However, moving away from the constitutional elements, under Title VII, the ADA, and the ADEA
you can have cases of disparate impact. There was question as to whether you could have a case
under the ADEA, but the court has ruled that you can. In each of these statutes a plaintiff can
formulate a cause of action without a showing of intent.
Prima facie case and burden shifting:
1. Tests (or procedures) in question select applicants for hire or promotion in a racial pattern
significantly different from that of the pool of applicants. Griggs. The prima facie case is:
o P must identify a specific emp’t practice that is challenged.
o P must show causation, i.e., statistical evidence sufficient to show that the practice has
caused exclusion of members of protected class.
 Disparities must be substantial
 Racial imbalance in one segment of emp’rs workforce doesn’t est. prima
facie case of disparate impact in other positions. Ward’s Cove.
 If % of selected non-white applicants is not significantly less than % of
qualified non-white applicants, the selection process doesn’t operate with a
disparate impact. Ward’s Cove.
 Emp’r may put on countervailing evidence
Another key part of the case on page 325 says, “Good intent, or absence of discriminatory intent,
does not redeem employment procedures or testing mechanisms that operate as a “built-in
headwinds” for minority groups and are unrelated to measuring job capability.”
Furthermore, Congress has placed the burden of proof on employers to show that the practice has a
bona fide business purpose.”
Ward’s Cove (in which the plaintiff seems to have argued a practice of nepotism to delivery of
offending employees to space aliens) was remanded for a better examination of the numbers, but the
Court used language in the dicta of the decision that was quite huge:
1) A plaintiff cannot make out a prima facie case by showing an imbalance, but must also show
the practice used by the employer to prove the discriminatory action.
2) Once the employee shows the practice that resultant in the disparate impact, the burden of
production shifts to the employer. The employer must then identify a business judgment or
business necessity. The overall burden remains with the plaintiff, but note the employer did
not need to prove the practice was really a business necessity (the employee then needs to
disprove the articulation).
3) Note also that there is no requirement for the employer to show that the practice be essential
or indispensable – wha? There seems to be a discomfort on the court with the rather broad
opinion of Griggs that the Court is trying to reel in.
2. If prima facie case is met, burden of proof shifts to D to establish that its tests are “job related.”
(See Business Necessity Defense, infra).
16
o
o
Job related = necessary.
 Lanning (3d Cir.): cutoff score of entry exam must measure minimum qualifications
nec’y for successful performance of job.
 Legislature amended Act to reinstitute Griggs analysis and do away with Wards
Cove.
Emp’r is not required to present formal validation studies. Watson v. Forth Worth Bank &
Trust.
The Business Necessity Defense


Based on § 703(h). Selection device must be job related and necessary.
Used as defense a second stage of case, supra. As noted above, P can point to a better
test or procedure.

Validation:
1. Emp’r must specify the particular trait or characteristic which the selection device is
being used to identify or measure.
2. Emp’r must determine that the trait is an important element of work behavior.
3. Emp’r must demonstrate by professionally acceptable methods that the selection
device is predictive of or significantly correlated to the element of work behavior
identified in #2.
3. P may then show that other tests or selection devices, without a similarly undesirable racial effect,
would also serve the emp’r legitimate interests in efficient and trustworthy workmanship. This ests.
pretext.
o If P shows such pretext, he is entitled to a finding that the emp’r has intentionally
discriminated.
o SO: This is still different from disparate treatment b/c D gets the burden of persuasion (re.
job-relatedness), rather than just of production.
***
Application to objective and subjective hiring criteria:
Griggs v. Duke Power


“Under the Act, practices procedures, or tests neutral on their face, and even neutral in terms of
intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory
employment practices.”
Burden is on D to show that there is a manifest relationship between the requirement at issue and the
employment.
Raytheon

Can’t apply disparate impact analysis in a disparate treatment claim.
17
o
A facially neutral policy is a legit. non-discrim. reason under Mc-D, even when it has a
disparate impact, if P has brought only a disparate treatment claim.
 It’s reversible error if court confuses the two. Pg. 202.
Watson v. Fort Worth Bank


Black female bank emp’ee applied for several promotions, and was always rejected based on
subjective decision of white supervisors.
Court said Griggs disparate impact analysis applies to subjective criteria.
o Pg. 208, subjective hiring:
 emp’r doesn’t advertise widely, and invites select few to apply
 emp’r doesn’t make real analysis of appropriate selection criteria
 emp’r doesn’t have specific criteria, but goes on intuition
 emp’r doesn’t req’r review of decision by candidate or evaluator’s supervisor
 Conversion doctrine: disparate impact theory is suspicious of all measures of merit – D must
justify measures by validation, which is costly.
o One-two punch: charge D with disparate treatment. When he defends on merit measures,
charge him with disparate impact, based on his defenses.
Pre-employment Testing
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), pg 401
PROCEDURAL POSTURE: Petitioners, an employer and a labor union, challenged the judgment
of the United States Court of Appeals for the Fourth Circuit, which reversed a district court holding
that respondents should have been awarded backpay in their class action alleging discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and holding that
petitioner employer's use of pre-employment tests should have been enjoined.
OVERVIEW: Respondents sought to enjoin practices at their workplace violative of Title VII of the
Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and later sought backpay. The district court
found that petitioner's seniority system was discriminatory, but refused to award backpay or enjoin
pre-employment testing. The court of appeals reversed, ruling that backpay should have been
awarded and testing enjoined. On certiorari, the court held that backpay should have been denied
only for reasons that would not frustrate Title VII's purposes of eradicating discrimination and
making victims whole, and that petitioners' lack of bad faith was not sufficient reason for denying
backpay. Legislative intent was to model Title VII on the labor law rule that a finding of
discriminatory discharge presumptively proves that back pay is owed. However, the court remanded
for determination of whether respondents' delay in requesting backpay was prejudicial. The court
also remanded for determination of whether criteria considered in pre-employment tests were
sufficiently related to petitioner's legitimate interest in job-specific ability to justify a testing system
with a racially discriminatory impact.
OUTCOME: The judgment was vacated and remanded. The district court improperly reasoned that
petitioners' lack of bad faith was sufficient reason for denying backpay, but the issue was remanded
for determination of whether respondents' delay in requesting backpay was prejudicial. The court
18
also remanded for determination of whether the pre-employment tests properly justified their
discriminatory impact.
Notes:
* Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., forbids the use of
employment tests that are discriminatory in effect unless the employer meets the burden of showing
that any given requirement has a manifest relationship to the employment in question.
* Nothing in the Civil Rights Act of 1964 precludes the use of testing or measuring procedures;
obviously they are useful. What Congress has forbidden is giving these devices and mechanisms
controlling force unless they are demonstrably a reasonable measure of job performance. What
Congress has commanded is that any tests used must measure the person for the job and not the
person in the abstract.
Statistical Evidence

Gross statistical disparities alone may prove prima facie case of pattern or practice discrimination.
See fn. 20, Teamsters v. U.S. and Hazlewood School District v. U.S.
o Statistics are not irrefutable.
o Absent explanation, we would expect non-discriminatory hiring practices to result in a
workforce fairly representative of the community.
o When statistical evidence is completely uncontroverted, a prima facie can be established.
Contreras v. City of Los Angeles.

SO: Hazlewood proves that how you frame the relevant labor market determines the outcome of the
case.

No one but the EEOC has the resources (i.e., access to statistical data and analysis) to bring patternor-practice case based on statistical evidence.

Comparison may be:
o Between workforce and area labor market or general population.
o
If specific training is req’d: Between workforce and those in labor market with relevant
qualifications.
o
Wards Cove Packing Co. v. Antonio

o
Cannery case. Skilled jobs were held mostly by whites. Non-skilled mostly
minorities. Housing and dining were segregated. Court compared internal numbers:
% of minorities in skilled v. unskilled jobs. Court said comparison should have been
number of at-issue jobs to qualified persons in local labor market.
However, comparison doesn’t have to be against actual qualified applicants where the
situation is such that otherwise qualified applicants would be discouraged from applying
because of self-recognized inability to meet standards being challenged as discriminatory.
Dothard. (Prison height/weight case – ct. allowed comparison btw. workforce and national
labor pool, instead of comparison of workforce to pool of applicants.)
19



On the other hand, Ward’s Cove offers some support for a lack-of-interest defense.
 D blames statistical disparity on lack of interested applicants.
Lack of interest defense is limited to disparate impact claims.
Statistics aren’t probative unless they satisfy the statistical significance rule. Pg. 226.
o Some courts follow 4/5ths or 80% rule (from CFR’s Uniform Guidelines) – if
protected group can’t attain 80% of most successful group’s success rate, it’s
evidence of disparate impact.
Smith v. City of Jackson – supp pg 56. (ADEA)
Resolves a question of whether disparate impact claims could be brought under ADEA – yes!
Dothard v. Rawlinson
P claimed disparate impact of law requiring prison guards to be of a minimum height and weight. Court used
comparison to national workforce, and said that was okay b/c people in the relevant labor market are no
different than the national population.
The Bottom-Line Defense

D tries to argue that, although policy had disparate impact, the bottom line result wasn’t.

CT v. Teal: Bottom line doesn’t preclude emp’ee from est. a prima facie case, nor does it provide
emp’r with a defense.
o A racially balanced bottom line might be used as evidence to rebut a presumption of
intentional discrimination. SO: This confuses disparate treatment with disparate impact.
AGE DISCRIMINATION
42 U.S.C.A. 2000 is employment, 29 USCA covers age.
Where are the demarcations? One year younger? Older? What constitutes an actionable claim?
Congress’ concern was to protect older workers; this is what the ADEA is about.
Section 623, page 190: Similar language as Title VII, but there is a bit of a wrinkle called a “bona
fide occupational qualification (BFOQ)”. In some cases age means something, think about law
enforcement. There are BFOQ defenses for just about anything except race.
627(b) and (c) tell you who can go to court, how to go to court, and what you can do in court.
20
The ADEA leans on the model of the fair labor standards act (not a discrimination statute) for its
language. The FLSA says you can obtain back wages, punitive damages, and liquidated damages,
but not damages for emotional distress. The ADEA follows this.
Title VII provides for trial by jury, the ADEA did not permit this until 1997.
Page 198, section (f) “Waiver”: Older workers benefit protection act. This is the gold standard of
what you want if you’re working for a company and you’re putting together a severance agreement
for a fired employee to sign.
These are the standards for an age discrimination waiver to stand up. Involves three months’
severance pay and must satisfy the sections there. Advising of rights, non-coercion, and so on; this
becomes a binding contract. You might be inviting a suit (read: legal malpractice) if you fire
someone over the age of forty without consideration.
Note that there has to be at least a seven day waiver period for employee.
Section 630 defines an employer as one with 20 or more employees.
Section 631, page 202: 40 years of age is the basement for filing an ADEA claim.
Note: You do get different answers on discrimination claims in different courtrooms.
GENDER DISCRIMINATION
FMLA as Anti-Discrimination Law
FMLA Provisions:


Up to 12 weeks unpaid leave annually for:
o birth of child and attendant childcare
o placement of child by adoption or foster care
o serious health condition of emp’ees spouse, child or parent
o serious health condition that makes the emp’ee unable to perform the functions of the job.
Emp’r may require, or emp’ee may elect, that paid leave be substituted for all or part of FMLA
leave.
o Unpaid leave assumes that women aren’t breadwinners!
o Many emp’rs require emp’ees to use up sick time, vacation time, etc. in lieu of unpaid
FMLA leave first and as part of the 12 weeks.
o If emp’r gives (paid or unpaid) leave but doesn’t tell emp’ee it’s FLMA leave, it can still
qualify as FMLA leave unless emp’ee can show she was harmed by lack of notice. Pg. 353.

Emp’ee must provide 30 days notice if leave is foreseeable.
o Otherwise, such notice as is practicable.
o Emp’ee doesn’t need to mention FMLA in request for leave.

Spouses emp’d by same emp’r get combined total of 12 weeks.
21

If emp’ee doesn’t return to work emp’r can recover health care plan premiums paid during leave.

Emp’ee returning from leave is entitled to reinstatement to former or equivalent position.

Emp’ee is only eligible if s/he worked for emp’r for at least 1 year, and emp’r has at least 50
emp’ees.

Creates private cause of action in federal or state court
o equitable relief
o monetary damages, see Remedies, infra

Applies equally against private and public emp’rs – not barred by 11th Am.. Nevada Dept. of
Human Resources v. Hibbs.
o Important: nearly ½ of all private sector emp’ees are not covered by the FMLA.

FMLA has some shortcomings – doesn’t guarantee any salary, so only well-off people can afford to
avail themselves of it. Also need 50 emp’ees before it applies. Must have worked 1,250 hours in
past 12 months.
o Does the FMLA require preferential treatment of some emp’ees? Clearly prefers those with
health problems or family health problems.
o Will Hibbs make state emp’rs more or less likely to hire and retain women? Less – emp’rs
don’t want to deal with child bearing expenses.

NJ’s act only applies to serious health condition of family members and requires __ hours in last
year. Doesn’t apply to certain salaried emp’ees and can be denied under some circumstances (e.g.,
highest paid emp’ees, harm to emp’r).
Pregnancy:




PDA makes clear that discrimination based on pregnancy is impermissible.
Per the EEOC regs interpreting the ADA, pregnancy is not a disability.
EEOC regs interpreting the FMLA say pregnancy is a serious health condition.
o However, hard to prove pregnancy = incapacity.
o Nothing in FMLA says emp’r has to give leave when emp’ee wants it. Pg. 352.
o (Kind of cuts against the PDA if emp’rs can determine the timing.)
Pregnancy discrim. may only be justified as BFOQ.
BFOQs
Title VII, § 703(e)(1): “...it shall not be an unlawful emp’t practice for an emp’r to hire and employ emp’ees .
. . on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national
origin is a bona fide occupational qualification reasonably necessary to the normal operation of that
particular business or enterprise.”

BFOQ is an emp’rs only defense to a facially discriminatory policy.


CANNOT BE BASED ON RACE OR COLOR.
Customer satisfaction is not a basis for a BFOQ.
o However, there is an “authenticity and genuineness” exception.
22


Sex-based BFOQ will be allowed where primary purpose of business is “vicarious sexual
recreation.”
Extra cost of hiring members of one sex is not an affirmative defense.
See Defenses, infra.
Int’l Union, UAW v. Johnson Controls.- pregnancy





D had policy barring fertile women only from working using lead in battery mfg. plant was genderbased discrimination.
o Absence of malevolence does not convert facially discriminatory policy into a neutral policy.
Pregnancy discrim. may only be justified by BFOQ.
o It must actually interfere with emp’ees ability to perform job safely and efficiently. Must
relate the essence or central mission of the business.
FN4: opens the door to privacy-based BFOQ to justify sex-based discrimination.
If emp’ee is informed of risk to fetus and chooses to stay in job (and emp’r isn’t negligent), the
emp’ee has no tort claim for harm to fetus.
Cost justification defense inapplicable to fetal-protection policy.
Dress, Grooming and Appearance





Courts have consistently rejected challenges to emp’r rules and practices re. workplace attire,
grooming, and personal appearance. Pg. 381.
Carroll v. Talman Fed. Savings & Loan: leading case striking down dress code:
o Men wore suits, women wore uniforms. Court said disparate treatment was demeaning to
women. Customers would tend to think emp’ees in uniforms had lesser professional status.
Dress code may be found discriminatory if it exposes emp’ees to unwelcome sexual advances. Pg.
386.
Hooters: hard to draw the line between cases where sex is emp’rs business and where sex is used to
enhance profitability.
o Where it’s just to enhance profitability, it’s not easy to justify.
Weight: an emp’r can use dual gender-based weight standards that have a proportionally greater
impact on women without being req’d to show that the standards are job related.
HARASSMENT
“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.” Henson v.
Dundee.
Sexual Harassment in NJ: Lehmann v. Toys-R-Us
Emp’r liability:



strict liability for equitable damages and relief in cases of quid pro quo and supervisory harassment
vicariously liable under agency principles for compensatory damages exceeding equitable relief
not liable for punitives unless harassment was authorized, participated in, or ratified by emp’r.
23

See Lehman for more agency theory of punitives.
Quid pro quo: submission to sexual demands as a condition of emp’t.
Hostile work environment:
For a hostile work environment claim to succeed (Title VII), the employer must have at least 15
employees for 20 weeks in the calendar year.
ADEA and ADA require 20 employees over the course of the year.
1981 and 1983 actions (racial discrimination, for example) have no employee limits.
Many states have rules that will create liabilities for employers (who have fewer than 15-20
employees) that have no responsibility under the federal rules. NJ, for example, has no limits set by
number of employees (even one employee is enough).
SCOTUS last year decided Arbaugh, indicated that the employee lower limits are not jurisdictional,
but instead is an affirmative defense the employer must raise or lose.
Generally a hostile work environment is when the terms and conditions of an employee’s
employment has been altered in a way that is not tangible, but essentially changes the character of
the employment in a manner that is harmful to the employee.
Hostile work environment is a judicial creation, developed out of Title VII, the ADA, and the
ADEA.
The work environment only becomes actionable if the reasons behind the decisions made in the
environment are discriminatory within the context of Title VII, the ADA, or the ADEA. That is
race, sex, color, national origin, religion, age, or disability.
In Harris v. Forklift Systems, p507, the SCOTUS affirms the basis of the case, notes that no
economic harm must be suffered, and then goes on to describe what a plaintiff’s case must contain
in order to successfully carry an argument of a hostile work environment.
The court says there needs to be both a subjective and an objective component:
“Conduct that is not severe or pervasive enough to create an objectively hostile work environment –
an environment a reasonable person would find hostile or abusive – then there is no cause of
action.”
There are four prongs a hostile work environment plaintiff must meet to prevail:
1) Plaintiff was subjected to harassment because of membership in a protected group.
2) Harassment was unwelcome. There are some comments that are unwelcome per sé.
24
3) Harassment must be sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive work environment (two inquiries, subjective and
objective – plaintiff was affected by an abusive work environment, and a reasonable
member of the class would ALSO be affected by the abusive work environment)
4) There needs to be a basis for the employer to be held liable for the harassment. This is dealt
with in Burlington v. Ellerth, p516.
Reasonable person of same sex in P’s position would consider conduct sufficiently severe or pervasive to
alter conditions of emp’t and create an intimidating, hostile, or offensive working environment.
 Harassing conduct needn’t be sexual, as long as it’s b/c of P’s sex.
 Four prongs:
1. conduct would not have occurred but for P’s sex
o automatically satisfied where conduct was sexual or sexist
o if not sexual, P must show sex was more likely than not the basis
o male P but show additional circumstances – rare emp’r who discrims agst. the majority
2. conduct was sever OR pervasive enough to make a
o it’s the conduct that must be severe, not its effect
o P need not personally have been the target
3. reasonable woman believe that
o P need not be a reasonable woman – if she’s too strong to be hurt, she can still complain
o Conversely, P can’t be ultra-fragile
4. the conditions of emp’t are altered and the environment is hostile
 No intent requirement.
NJ recognizes third-party sexual harassment. See Erickson v. Marsh & McLennan.
NJ recognizes same-sex harassment. See Flizack v. Good News Home for Women.
Hostile work environment doesn’t have anything to do with hiring/firing/failing to promote, and
Congress has not developed any statutes around this. This is court-generated law. The bottom line is
people have the right to work without having to suffer slights based upon their being a part of a
protected class, and employers have an affirmative responsibility to curb this sort of conduct.
Racial Harassment in NJ: Taylor v. Metzger





Same standard as sexual harassment.
Single remark can rarely form basis – but some racial slurs, particularly by supervisor, may be
enough.
Generally “stray remarks” by non-decision makers aren’t enough. Surrounding circumstances are
important.
Actual working conditions don’t have to change. It’s the conduct, not result, that’s key.
Case also covers IAED. Single racial slur might be enough.
DISABILITY DISCRIMINATION
ADA § 102(a): “No covered entity shall discriminate against a qualified individual with a disability because
of the disability of such individual in regard to job application procedures, the hiring, advancement, or
25
discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.”
ADA § 102(5)(a): The ADA req’s emp’rs to “make reasonable accommodations to the known physical or
mental limitations of a qualified individual” unless doing so “would impose an undue hardship on the
operation of the business of the covered entity.”



Federal government is not covered by ADA.
o Rehabilitation Act of 1973 protects federal emp’ees.
th
11 Amendment bars private ADA actions by non-consenting states.
MUST first exhaust administrative remedies before the EEOC.
o State/local govt. emp’ees can bypass admin req’s by seeking relief under Title II. See pg.
723.
Meaning of Discrimination
ADA § 102(b): Discriminate means, inter alia, “limiting, segregating, or classifying a job applicant or
emp’ee in a way that adversely affects the opportunities or status of such applicant or emp’ee because of the
disability of such applicant or emp’ee.”

Does not apply to current drug users. Raytheon; ADA § 104(a).
o If drug use rises to level of addiction that substantially limits a major life activity, it may
qualify as a disability.
o Raytheon: Neutral company policy adversely impacted drug users. P brought disparate
treatment claim, but court used disparate impact analysis. Error – rev’d.

It’s not necessarily a violation of the ADA to refuse to violate a seniority system as a reasonable
accommodation.
o Usually the seniority system will prevail. U.S. Airways v. Barnett.
o If accommodation conflicts with the seniority system, it’s not “reasonable.”
o P can present evidence of special circumstances that make an exception.
 E.g., emp’r regularly violates rules of system.
 Emp’r retains right to change system unilaterally.
 System contains exceptions.
o Seniority systems bargained for in CBA trump need for reasonable accommodation. Pg.
734.
Meaning of Disability
ADA § 3(2): “The term ‘disability’ means, with respect to an individual – (A) a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; (2) a record of
such an impairment; or (3) being regarded as having such an impairment.”

Three elements of a disability:
1. physical or mental impairment
2. that substantially limits
3. major life activities
26
Physical impairment:
See p. 744 for list.
Substantially limits:
Means unable to perform a major life activity.
 So long as a physical characteristic isn’t a substantially limiting impairment, it doesn’t fall under
ADA and emp’rs can use it as a qualification to screen out candidates.
o E.g., emp’r can have a vision req’t. Sutton.
o Okay even if impairment is limiting, but not substantially so.
 For major life activity of working:
o Substantially limits means P is unable to work in broad class of jobs.
o Factors:
 Geographical area to which P has access.
 Number and type of similar jobs in area from which P is disqualified.
 P must be precluded from more than one type of job, a specialized type of job, or a
particular job of choice.
o EEOC suggests that working is a residual life activity, to be considered as a last resort only
if P is not limited in other areas. Pg. 751.
 For other major life activities, factors to consider are:
o Nature and severity of impairment
o Duration expected.
o Permanent or long-term impact.
o Major means important: central to daily life.
o Medical Dx isn’t enough – P has to show how it affects him/her.
o Ability to perform job isn’t relevant. Pg. 763.
Major life activity
Functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
 Determination is made with regard to corrective measures. Sutton v. United Air Lines.
o If disability is corrected, P does not have a substantial limitation of a major life activity.
o P still has an impairment, but it doesn’t substantially limit him/her.
o Congress didn’t mean to cover 43M people....
o Rule today: if it’s corrected, there’s no major life impairment and, therefore, it’s not a
disability for purposes of the ADA.
Regarded as having disability:

Two ways: (1) emp’r mistakenly believes P has an substantially limiting impairment, or (2) emp’r
mistakenly believes that an actual, non-limiting impairment is substantially limiting. Pg. 749.
Qualifications, Direct Threat and Undue Hardship
ADA § 101(3): Direct threat means “a significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation.”
27


EEOC regs take concept of direct threat one step further and allow emp’r to deny job to disabled
person if job would pose a direct threat to his health. Chevron v. Echazabal.s
Direct threat defense must be based on a reasonable medical judgment, and upon an expressly
individualized assessment of the emp’ees ability to safely perform the job.
ADA § 101(8): A qualified individual means “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position.”


Essential functions = fundamental job duties. Consideration is given to emp’rs judgment as to what
functions are essential.
o See pg. 767. If there are limited emp’ees who can perform function, function is why job
exists, or function is highly specialized and P is hired for his expertise, the function may be
essential per the EEOC regs.
Job-related defense is codified at ADA § 103(a).
o Emp’r can use criteria that screen out disabled persons if job-related and consistent with
business necessity.
Reasonable Accommodation
ADA § 102(b)(5)(a): Discriminate means “not making reasonable accommodations to the known physical
and mental limitations of an otherwise qualified individual with a disability”
ADA § 101(9): Reasonable accommodations include “(A) making existing facilities . . . readily accessible
and usable by individuals with disabilities; and (B) job restructuring . . . reassignment to a vacant position,
acquisition or modification of equipment . . . the provision of qualified readers or interpreters . . . .”



Reasonable does not = effective.
That an accommodation is a preference does not automatically make it unreasonable.
Vacant has no special meaning.
ADA § 101(10): Undue hardship is “action requiring significant difficulty or expense, when considered in
light of . . . (i) the nature and cost . . . (ii) the overall financial resources of the facility . . . (iii) the overall
financial resources of the covered entity . . . and (iv) the type of operations . . . .”



Emp’r must be willing to consider making changes in its ordinary rule, facilities, terms and
conditions, in order to enable a disabled person to work.
o NOT req’d to allow emp’ee to work from home.
o Emp’r doesn’t have to spend even modest $ to bring about an absolute identity of conditions.
o Duty is satisfied when emp’r does what is nec’y to enable emp’ee to work in reasonable
comfort.
o (Vande Zande v. WI Dept. of Admin.)
Reasonable = less than maximum possible.
o At the very least, cost should not be disproportionate to benefit.
o It should also be efficacious.
Even if the requested accommodation is reasonable, D can show that costs are excessive in relation
to (1) benefits, or (2) emp’r financial health.
RETALIATION
28
Title VII, § 704(a): It shall be an unlawful emp’t practice for any emp’r to discriminate against any of his
emp’ees . . . b/c [the emp’ee] has opposed any practice made an unlawful emp’t practice by the subchapter,
or because he had made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”


ADEA and ADA have almost identical provisions.
Equal pay act anti-retaliation provision appears in FLSA.

Often a better claim than the initial discrimination claim.

Applies equally to applicants and former emp’ees.
o Some courts protect third-party reprisals. Pg. 836. 3d Cir. doesn’t.

Mc-D analysis applies (and Burdine, too – D can win by discrediting prima facie case through crossexam of P’s witnesses). See pg. 817.
o Prima facie case:
1. protected opposition or participation
o activity is protected even when based on mistaken belief that Title VII has been
violated
o activity is protected even if defamatory, although emp’r may have defamation
cause of action in state court
 Title VII retaliation claim can be based on defamation filed by D in bad
faith.
o if conduct interferes with job and renders emp’ee ineffective or disruptive, it
may not be protected.
o emp’ee who violate emp’r rules are not protected – doesn’t have to be unlawful
to lose protection
2. subsequent adverse action by emp’r
o See pp. 838-39. Affecting terms, conditions or privileges of emp’t.
3. causal connection
o may be demonstrated by evidence of circumstances that justify inference of
retaliatory motive, such as close temporal proximity
 long time lapse won’t always defeat finding of causation
o emp’rs lack of knowledge of protected conduct is fatal to causation
 SO: shouldn’t this be an affirmative defense?
o causation may be shown through direct evidence of retaliatory animus, or by
showing that other emp’ees engaged in protected activity were also subject to
adverse emp’t actions.
o
Prima facie case establishes rebuttable presumption of retaliatory motive and burden shifts
to D to rebut with legit., non-retaliatory reason.
 If D claims P’s unprotected conduct was cause of adverse action, D has burden to
show it in rebuttal.
o
P has ultimate burden of proving pretext.
Mixed motive retaliation cases:

Mixed-motive damage limitations are inapplicable. Pg. 820.
29
Participation and Opposition Clauses:

Federal courts have granted less protection for opposition than participation.

Participation: applies to filing EEOC charge, participating in investigation, proceeding, or hearing
on their own b/h or b/h of others.
o Does not cover in-house investigations, apart from those related to EEOC charges.

Opposition: protects informal protests, including making complaints to mgt.
o Emp’r has right to loyalty and cooperativeness.
 Court must balance emp’ees right to bring grievances and promote his own welfare
with emp’rs right to run business. Pg. 831.
o So long as emp’ee has reasonable belief that conduct being opposed is discrim under Title
VII, he doesn’t have to show actual violation of Title VII.
Pierce v. Ortho – public policy





Doctor objected to test marketing of a questionable drug.
Can’t be fired in violation of clear mandate of public policy.
Doctor needed to present more than her opinion to win, so she lost. Needed a rule of ethics.
If you plead Pierce as a tort, you can get punitives for intentional misconduct, or misconduct by
upper management.
Pierce claim doesn’t cover “reasonable belief,” so you can’t plead it.
CEPA


Incorporates “reasonable belief” of violation of public policy, which Pierce didn’t address.
o Given that, you may want to assert Pierce claim, too (which also gives you a 2 yr. SOL).
Under CEPA, you can get punitives and attny’s fees.
o Can be plead as a contract claim (providing 6 year SOL), but then you can’t get punitives or
attny’s fees.
REMEDIES
Remedies: for what can one ask? There are many remedies you can ask for that are not available in
other areas of law. The right to jury trials is often granted by statute. Money damages, such as from
the date of hiring through the date of trial, can sometimes be achieved, although the concept of
mitigation does apply. Emotional distress can also be brought forth, and sometimes if the action of
the employer is grossly malicious, punitive damages can be achieved. Even attorney fees can be
obtained.

EEOC can only award compensatory damages.

Taxation of awards: back pay and punitives are taxable. Emotional distress is only excludable if
accompanied by a physical injury.
Seniority:

Court may place P in rightful place in seniority system. Franks v. Bowman Transp.
30



Will not always be awarded.
Burden on D to show Ps were not victims of previous hiring discrim. in class action case in order to
deny seniority.
May be denied if system is from CBA.
Bona Fide Seniority System
Section 703(h) also provides an exception to Title VII for bona fide seniority systems
First Element – the employer to show that the seniority system is part of a collective bargaining
agreement negotiated by union and management.
Second Element – the employer must prove that its challenged policy as a traditional component of
a system of seniority.
In Teamsters the Court focused on four 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); [**118]
3) whether the seniority system had its genesis in racial discrimination; and
4) whether the system was negotiated and has been maintained free from any illegal purpose.
3. Bona Fide Merit and Piecework Systems
Section 703(h) sets forth an exception to disparate impact liability for bona fide merit and
piecework systems
Reinstatement:


NOT mandatory.
o May be denied if innocent emp’ee is in job and shouldn’t be bumped.
 Is there evidence of repeated acts of discrim by emp’r?
 Was P a victim of retaliation?
 Is unique position involved?
 Are there other opportunities for the bumped emp’ee?
o Or in cases of hostility between P and D.
o May also deny reinstatement where it would violate seniority system in CBA.
May need to apply reconstructed history doctrine to find Ps rightful place, particularly in class
actions.
o Teamsters hearings. See pg. 853.
31
o

Court must figure out where P would be, then balance competing interests of innocent
emp’ees in those positions.
P must be presently qualified for the job.
Emp’r liability:

See puntives and hostile work environment cases.
Backpay:











Emp’rs bad faith is not a requirement for back pay award.
Back pay is not available beyond 2 years before filing of charge of discrimination.
Prevailing Ps in state and federal court get back pay.
Calculated from date of occurrence to entry of judgment (or until P finds comparable emp’t, if
sooner). Can also be cut off if P leaves labor market (e.g., retires).
Doubt re. amount resolved in favor of P.
Elements:
o wages
o salary
o bonuses
o commissions
o raises
o fringe benefits – sick pay, vacation, pension, health, stock options
P has duty to mitigate.
o Failure to mitigate is affirmative defense.
o P need only seek substantially equivalent job and use reasonable diligence to try.
Set-offs: moonlighting
Collateral source doctrine: 3d circuit won’t allow D to reduce back pay with collateral source
income.
P can get pre-judgment interest.
Post-judgment interest is mandatory under federal law.
Front pay:






Only where P is not reinstated.
Difference, after discounting to present value, between what P would have earned in future if
reinstated at time of trial and what he will earn in future in next best emp’t.
Trial judge decides if P gets it. Pg. 859.
o Court are divided on whether judge or jury determines amount.
Not a “compensatory” damges.
Not subject to statutory caps.
Doesn’t apply in mixed motive cases.
Compensatory damages:
32



Available under Title VII and ADA, but only in disparate treatment cases not involving mixedmotive.
Future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of
enjoyment of life, etc.
See pg. 865 for what’s not covered.
Attorneys’ Fees:

Awarded to prevailing P, unless circumstances render award unjust.
 P prevails if he succeeds on any significant issue in the litigation. P must obtain a judgment.
 Time spent in admin proceedings is compensable.
 Prevailing D can sometimes get fees in meritless or vexatious cases.
o Meritless means groundless, not that you lost. Vexatious means bad faith. Pg. 880.
o Basically same standard as a Rule 11 sanction.
o NJ CEPA, LAD and EEOC Ps may be liable for fees if court finds his case was brought
in bad faith.

Majority of courts adopt proportionality rule in mixed-motive cases.
o Reasonableness of fee is tied to degree of success. Farrar.
o P should only get nominal fee award.

Make sure the settlement indicates how much of settlement is fees.

NJ is better than federal in terms of awarding fees and enhancements. Federal courts do not give
any enhancements any more.
o Rendine is NJ enhancement case. Also says LAD Ps don’t need expert to prove pain and
suffering.
Mixed motive damages:

If D establishes same-decision defense, the court is limited to injunctive relief, declaratory relief, and
attorneys’ fees.
o NJ doesn’t have the same limitation, so file in NJ if you can.
o May want to take a case to fed. ct. b/c there you can still get attny’s fees if you lose a mixed
motive case, using same-decision defense. In state court, you may lose everything under Mt.
Healthy. Problem is the amount of fees you get in fed. ct.
o May want to take a case to fed. ct. b/c there you can still get attny’s fees if you lose a mixed
motive case. In state court, you may lose everything under Mt. Healthy. Problem is the
amount of fees you get in fed. ct.
o Bringing emp. case in fed. ct. could be considered malpractice per se. There’s no case in
NJ that says if you prove a mixed motive case you get fees. In NJ, judges charge jury that
if you find mixed motive you find for the D.
After-Acquired Evidence Case Damages:

If proven, it precludes front pay and/or reinstatement, but not back pay.
33




Back pay is calculated from date of termination to date of discovery of the evidence.
o Big difference from mixed-motive case, where P gets no backpay.
Pg. 169, fn. 8: in theory you can get compensatory damages for emotional distress and punitives
(not limited by time) even if you can’t get more than limited back pay.
Pg. 169, fn. 11: evidence of post-termination conduct is not after-acquired evidence; therefore, no
limitation on damages and no bar to reinstatement.
P gets all forms of relief if D fails to convince jury.
Punitives:


Requires finding of malice or reckless indifference to federally protected rights.
Under Title VII, there’s a $300k cap on punitives.
o NJ punitives are limited to 350k or 5x compensatory damages, whichever is greater.
o NJ punitives are limited to 350k or 5x compensatory damages, whichever is greater.
 It’s in your interest to say compensatory includes everything but punitives, to get the
number as high as possible and multiply by 5 – punitives are limited.
o Malpractice per se to bring Ps emp’t suit in federal court b/c much easier to get punities in
state court?

Under LAD, there’s no cap.

In NY, federal court is better b/c the anti-discrim law allows no punitives at all.

For Title VII, you’re barred from getting punitives from public entity – see pg. 867.
o In NJ you can probably get punitives against a public emp’r in CEPA cases.

Agency:
o Awarded against master based on agency principals – pg. 869.
o Problem: emp’r is not liable if managerial emp’ee made decisions contrary to emp’rs good
faith efforts to comply with Title VII.
o See Lehman for agency theory of punitives.

Courts are split whether you can get punitives absent a compensatory award.
o Statutory caps apply to the aggregate of both.
o 3d Cir. allows punitives for violation of constitutional right absent aware of compensatory or
monetary damages.
Liquidated damages:



Usually only comes up in FLSA cases.
Not like liquidated damages in K cases – they’re like punitives.
Can’t get liquidated and punitives. E.g., FLSA doubles underpayment of overtime.
ADEA:

reinstatement
34





backpay
injunctive relief
declaratory judgment
attorneys’ fees
liquated damages equal to backpay
FMLA:


equitable relief
money damages – limited to actual monetary losses
o accrual of backpay limited by 2-yr. SOL (3 yrs. for willful violations)
New Jersey:




NJ has a more generous fee statute, including a Lodestar multiplier.
In NJ, you can get 1/3 of back-pay recovery, 1/3 of pain/suffering, and attnys’ fees.
o Attny files aff. of fees, based on acceptable rate in community. Fee enhancement requires
showing that you’ve taken an unusually difficult case that others wouldn’t have taken.
LAD Ps don’t need expert to prove pain and suffering.
Difference btw. fed. and state: damages caps.
o NJ has a punitive damage statute. NJSA 2A:15-5.9. Needs to be affirmatively pled. Can’t
get punitives on K cases.
o In NJ you have to prove actual malice by clear and convincing evidence.
o See Lehman for agency theory of punitives.
o In NJ you can probably get punitives against a public emp’r in CEPA cases. Problem: tort
claims act says you can’t get punitives from a public emp’r.
o NJ punitives are limited to 350k or 5x compensatory damages, whichever is greater. It’s in
your interest to say compensatory includes everything but punitives, to get the number as
high as possible and multiply by 5 – punitives are limited.
o Malpractice per se to bring Ps emp’t suit in federal court b/c much easier to get punities in
state court?
DEFENSES
Cost justification defense:
Page 132 (disparate treatment and impact)





Containment of hiring/advertising costs in word-of-mouth hiring cases.
o Personnel, admin, training, salaries, benefits, avoidance of liability
o Okay for word-of-mouth hiring
Not okay to justify sex discrimination – cost is irrelevant for BFOQ.
Cost-cutting is legit. in disp. treatment case.
In disp. impact, consideration of costs is relevant to evaluate business necessity defense.
ADA recognizes defense.
35
Same-Actor Defense: (disparate treatment)



Majority of courts recognize defense.
Same decision-maker hires and fires P, and period in between is relatively short.
SO: should not be allowed in age cases b/c people age while emp’d
Honest belief doctrine: (disparate treatment)



So long as emp’r honestly believed that reason was legit., emp’ee can’t show pretext.
Focus is on intent of employer.
SO: Mistaken belief is a good defense.
BFOQ: (facially discriminatory policies)

§ 2000(e): you can discrim. based on religion, sex or national original if based on a BFOQ
reasonably necessary for the normal operation of the business.

For the most part, this is the only statutory defense to a facially discriminatory policy.
o Doesn’t justify disparate impact.
o A neutral policy is defended with the business necessity defense.



CANNOT BE BASED ON RACE OR COLOR, per statute.
Customer satisfaction is not a basis for a BFOQ.
Sex-based BFOQ will be allowed where primary purpose of business is “vicarious sexual
recreation.”
BFOQ must relate to emp’ees ability to perform job safely and efficiently. Must relate the essence
or central mission of the business. Int’l Union, UAW v. Johnson Controls.
o Expert testimony nec’y to est. safety-related BFOQ. Pg. 372.


Three-part test for privacy-based BFOQ: (E.g., health care provider.)
1. There is a factual basis for believing that hiring any members of one sex would undermine
the essence of the emp’rs business.
2. The asserted privacy interest is entitled to protection under law.
3. No reasonable alternatives exist to protect the privacy interests other than the gender-based
hiring policy.
o
Health club case: D presented affidavits of customers to back up claimed need for privacy.
SO: In NJ affidavits would constitute inadmissible hearsay. Spragg.
Same Decision Defense: (mixed motive cases)


Emp’r proves absence of “but for” causation.
Emp’r has burden of persuasion in addition to production.

Available in all types of discrim. cases. Emp’ees shouldn’t be able to use protected conduct as an
insurance policy. Mt. Healthy.
36
o

NJ case In re Bridgewater, 95 N.J. 235. Similar to this case.
If D establishes same-decision defense, the court is limited to injunctive relief, declaratory relief, and
attorneys’ fees.
o NJ doesn’t have the same limitation, so file in NJ if you can.
o But...may want to take a case to fed. ct. b/c there you can still get attny’s fees if you lose a
mixed motive case, using same-decision defense. In state court, you may lose everything
under Mt. Healthy. Problem is the amount of fees you get in fed. ct.
o Bringing emp. case in fed. ct. could be considered malpractice per se. There’s no case in
NJ that says if you prove a mixed motive case you get fees. In NJ, judges charge jury that
if you find mixed motive you find for the D.
Lack of Interest Defense: (disparate impact cases)


D blames statistical disparity on lack of interested applicants.
Ward’s Cove provides support.
The Business Necessity Defense: (disparate impact)



Based on § 703(h). Selection device must be job related and necessary.
Used as defense a second stage of case, supra. As noted above, P can point to a better test or
procedure.
Only applies to facially neutral policies.
o Facially discriminatory policies are justified through BFOQs.
ADA Defenses:

Job-related defense is codified at ADA § 103(a).
o Emp’r can use criteria that screen out disabled persons if job-related and consistent with
business necessity.

Direct threat defense must be based on a reasonable medical judgment, and upon an expressly
individualized assessment of the emp’ees ability to safely perform the job.
37