Religion & Antidiscrimination Law
WEEK III: CAUSES OF ACTION UNDER ANTIDISCRIMINATION
STATUTES
(A) Disparate Treatment Claims
A disparate treatment case involves a claim that the decision-maker intentionally treated
the plaintiff differently because of a protected characteristic. Plaintiffs have two ways to
bring these cases: (1) Direct Proof; and (2) The McDonnell Douglas Burden Shift.
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(1) Direct Proof
Overview: In a direct proof case, the plaintiff simply introduces evidence tending to
show discriminatory intent and the case proceeds like any other civil suit. Normally
plaintiffs will use direct proof where they are able to discover persuasive evidence like
discriminatory statements made by the decision-maker or direct evidence that the plaintiff
was treated differently than similarly situated people who did not share the protected
characteristic. Some courts interpreting Title VII seem to require that the plaintiff
produce “direct evidence” of discrimination (as opposed to circumstantial evidence) if
they want to skip the McDonnell Douglas burden shift. I think this seems unnecessary if
the circumstantial evidence is strong, but it may be a requirement in some circuits.
The Sorenson case below is an example of a direct proof case. As you’ll see, the
question of discriminatory intent went to the jury without any reference to a burden shift.
You might ask yourself whether you think the jury reached the right decision given the
full set of evidence described in the case.
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SORENSON v. RAYMOND
532 F.2d 496 (5th Cir. 1976)
GEE, Circuit Judge: The major question in this case is whether an out-of-court
admission that conduct was motivated by racial prejudice may be explained away in court
like other such liability-creating declarations or whether it is final and fatal. We hold that
it may be explained.
Appellants are a white couple who seek compensatory and punitive damages
under 42 U.S.C. §1982,2 plus attorneys’ fees and costs. The defendant is their former
landlord, who allegedly evicted them because they entertained two black guests. They
appeal a judgment entered on special jury verdicts finding that race was not a significant
factor in their landlord’s decision to evict them and that they suffered no damages from
the eviction.
They do not appeal the lower court’s dismissal, based on the statute of limitations, of their
companion claim under 42 U.S.C. §3604.
2
III1
In detail, appellants complain that the trial court should have ... (2) granted them
a directed verdict on the liability issue ... ; (3) granted them a new trial because the
verdict is contrary to the greater weight of the evidence; (4) granted them a new trial
because of prejudicial comments by appellee’s counsel about possible drug use by
appellants; and (5) prohibited appellee from using his peremptory challenges to exclude
blacks from the jury. Finding no error in the jury verdict or the court’s rulings, we
affirm.
One day during the tenth month of appellants Brad and Gail Sorenson’s year
lease, landlord Raymond, after appellants had said they would not be home,3 entered their
apartment to find appellants and four other persons, including two black girls4 and a prior
tenant whom Raymond disliked. Inviting Brad Sorenson downstairs, Raymond
announced that appellants must vacate their apartment, responding “Yes,” when Sorenson
inquired whether the presence of two black girls had caused Raymond’s decision.
Raymond later testified that his true motive was fury at discovering the presence of an
objectionable former tenant and a large number of people preparing for a party.
Additionally, he chronicled the frequent complaints by other tenants about loud music,
late parties, strewn trash, and other irritating practices by appellants, and he related his
concern for the physical condition of his apartment. He insisted that he had responded
affirmatively to Sorenson’s inquiry about the two black girls in an impassioned effort to
anger Sorenson, having no later opportunity to give his real reasons for the eviction.5
II. Directed Verdict And New Trial. To find a violation of section 1982’s prohibition
of racial discrimination in the sale or rental of property, this court in United States v.
Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973), cert. denied, 416 U.S. 936 (1974),
declared that the finder of fact must rule that race is at least “one significant factor” in the
apartment rental decision. Appellants claim that they deserved a directed verdict on the
ground that the use of discriminatory language coupled with the loss of rights makes
motive or intent irrelevant, and for support they rely primarily on language in Pelzer that
it is not necessary to show that (defendant) intended to deprive (the victims) of rights
granted by the (Fair Housing) Act. A violation occurred because his words had that
effect.
Id. at 443. But the Pelzer court, faced with an alleged violation of [§3604(b), which]
prohibits discrimination in the terms of sale or rental of a dwelling, found that a verbal
3
Raymond had called to ask about a briefcase he had forgotten earlier, which the Sorensons left
at a neighbor’s apartment because of their intention to leave for the evening.
Whom he had seen earlier. In response to an anxious neighboring tenant’s inquiry, he had
stated that he did not intend to rent an apartment to the two girls, although he insists he meant
only that they had never inquired about renting.
4
5
Although Raymond admitted to federal investigators several days after the incident that he
would prefer not to rent to blacks for fear that having black tenants would lower the value of his
property, no black had ever applied, and he did not complain about fearing the effect of black
visitors on his investment. Raymond countered any suggestion of actual racial animus by
pointing to his participation in several civic projects designed to improve race relations.
III2
demand made of these blacks that would not have been made of whites11 was
discriminatory treatment, regardless of motivation, because the unretracted words
themselves imposed on blacks a condition which was not imposed on similarly-situated
whites.
In support of its ruling, the Pelzer court cited U.S. v. Mintzes, 304 F.Supp. 1305
(D.Md. 1969), which found illegal attempts by whites to induce homeowners to sell their
dwellings by representations regarding the prospective entry of blacks into the
neighborhood. The representations were themselves actions which violated the “antiblockbusting” statute, 42 U.S.C. §3604(e), which prohibits attempted inducements to sell
using such racially oriented representations, regardless of racial motivation. As to them,
there was no question of motive, for they were actionable regardless of the intent with
which they were uttered and were specifically made so by statute. Here, however, the
questioned conduct challenged as violative of §1982’s prohibition of discrimination in
the sale or rental of property, is only evidence of the violation a racially-discriminatory
motive, not the violation itself. It may be that there are circumstances where the evidence
of racial motivation can be so conclusively inferred from a defendant’s words that a court
might direct a verdict based on words alone. But where, as here, the only objectionable
word uttered was an inculpatory “Yes,” it would be unjust to deny a defendant the
opportunity to explain in his defense that he did not intend to speak the words or that his
words, provoked by a leading question, were intended only to enrage, not to convey
truthful information.
Appellants argue in the alternative that the evidence so strongly supports a finding
that race was a dominant factor in the eviction decision that they were entitled to either a
directed verdict or a new trial. But after examining the record, we cannot say that the
evidence, considered in the light most favorable to appellee, so strongly supports
appellants that they deserved a directed verdict. Nor can we say that the verdict was so
contrary to the greater weight of the evidence that we should find that the trial judge
abused his discretion in refusing to grant a new trial. ...
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(2) The McDonnell Douglas Burden Shift
THE STRUCTURE OF THE BURDEN SHIFT
In McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Dept. Of
Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court elaborated the
burdens of production and proof in a lawsuit by a private individual claiming that an
employer had violated Title VII, the federal statute prohibiting discrimination in
employment. Federal courts interpreting the federal Fair Housing Act have adopted the
structure of the McDonnell Douglas burden shift.
11
A real estate agent, concerned about having difficulty selling the remaining vacant lots in a
subdivision if he sold two to blacks, offered to waive closing costs, a discount given all white
purchasers, only if the black found buyers for the other lots.
III3
The Plaintiff’s Prima Facie Case: In a case in which the plaintiff claims s/he was not
hired because of race discrimination, under McDonnell Douglas, the plaintiff bears the
initial burden of demonstrating a version of the following prima facie case:
(1) that s/he belongs to a racial minority;
(2) that s/he applied and was qualified for a job for which the employer was
seeking applicants;
(3) that s/he was rejected
(4) that after the rejection, the position remained open and the employer
continued to seek applicants from persons with similar qualifications.
See McDonnell Douglas, 411 U.S. at 802. The prima facie case creates a rebuttable
presumption that discrimination has occurred. Burdine, 450 U.S. at 254.
The Supreme Court has made clear that the precise nature of the prima facie case
would vary with the particular claim being made. See McDonnell Douglas, 411 U.S.
n.13. For example, in Burdine, the Court held that the plaintiff met the first and fourth
prongs of the prima facie case by showing that she was a woman who applied for a job
that was eventually given to a man. See 450 U.S. at 253 n.6.
Lower court cases interpreting Title VII have varied the prima facie case for cases
challenging other claims such as termination of or failure to promote the plaintiff. Lower
court cases have also adopted variations on the burden shift for cases arising under the
Fair Housing Act. One example, Asbury v. Brougham, is included in the materials below.
The Defendant’s Burden of Production: Once the plaintiff has provided evidence
sufficient to state the prima facie case, the burden shifts “to the employer to articulate
some legitimate, non-discriminatory reason for the employee’s rejection.” McDonnell
Douglas, 411 U.S. at 802. The defendant’s explanation “must be clear and reasonably
specific.” Burdine, 450 U.S. at 258. However, Burdine makes clear that this is merely a
burden to produce some evidence, not a burden of proof:
The defendant need not persuade the court that it was actually motivated by the proffered
reasons. … It is sufficient if the defendant’s evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff. To accomplish this, the defendant must
clearly set forth, through the introduction of admissible evidence, the reasons for the
plaintiff’s rejection.
Id. at 254-55.
Although this burden is quite easy to meet, “the defendant nevertheless retains an
incentive to try to persuade the trier of fact that the … decision was lawful [so it]
normally will try to prove the factual basis for its explanation.” Id. at 258.
The Plaintiff’s Ultimate Burden: After the defendant meets its burden by articulating a
legitimate reason for its actions, the plaintiff has an opportunity to prove by a
preponderance of the evidence that the articulated reason was merely a pretext for
forbidden discrimination. McDonnell Douglas, 411 U.S. at 804; Burdine, 450 U.S. at
215. The burden to show pretext
III4
merges with the ultimate burden of persuading the court that she has been the victim of
intentional discrimination. She may succeed in this either directly by persuading a court
that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256.
While the trier of fact considers plaintiff’s evidence of pretext, it may continue to
consider the evidence that made up the prima facie case. The defendant’s articulation of
a legitimate reason eliminates the presumption in favor of a finding of discrimination, but
does not undercut the probative value of the evidence that constituted the plaintiff’s
initial showing. See id. at 255 n.10.
If the trier of fact finds that the defendant’s articulated reason is false, does the
plaintiff automatically win? The Supreme Court said “no” in St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993). The Court held that because the plaintiff retains the ultimate
burden of proving that the defendant engaged in forbidden discrimination, simply
disproving the asserted rationale does not provide a victory as a matter of law. The factfinder still must be convinced that discrimination was the true reason for the defendant’s
actions. “It is not enough … to disbelieve the employer; the factfinder must believe the
plaintiff’s explanation of intentional discrimination. Id. at 519.
However, in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000), the
Court clarified that simply presenting the prima facie case plus evidence rebutting the
defendant’s articulated reason can be sufficient to satisfy the plaintiff’s ultimate burden.
No additional submission of evidence is necessary. Id. at 148. The Court noted,
however, that such a showing would not always be sufficient. For example, judgment as
a matter of law for the defendant would be appropriate
if the record conclusively revealed some other, nondiscriminatory reason for the
employer’s decision or if the plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and uncontroverted evidence that
no discrimination had occurred.
Id. at 148-49. Together, Hicks and Reeves suggest that, when a plaintiff’s only evidence
beside the prima facie case goes to showing the falsity of the defendant’s proffered
reason, the finder of fact will usually be allowed to decide whether there is liability.
JUSTIFICATIONS FOR THE BURDEN SHIFT
The prima facie case serves to “eliminate[ ] the most common non-discriminatory
reasons for the plaintiff’s rejection. “ Burdine, 450 U.S. at 254. For example, if the
plaintiff cannot provide evidence that s/he was qualified for the job in question, s/he
cannot proceed. Similarly, if the employer decided it no longer wanted to hire anyone for
the job, the plaintiff should be unable to provide evidence to meet the fourth prong. Once
the prima facie case has eliminated these reasons, the employer’s acts, “if otherwise
unexplained, are more likely than not based on the consideration of impermissible
factors.” Id. (quoting Furnco Construction Corp., 438 US 567, 577 (1978)). Thus, the
creation of a rebuttable presumption of discrimination is appropriate. Id.
III5
The defendant’s burden of production serves to narrow the focus of the case “so
that the plaintiff will have a full and fair opportunity to demonstrate pretext.” Id. at 25556. It prevents the plaintiff from having to anticipate and disprove every possible
legitimate reason for the defendant’s acts. It also takes into account that the defendant
will usually have much better access to information about the challenged decision. Once
the plaintiff knows the defendant’s claimed reason, it can use the discovery process to
explore relevant evidence that is in the defendant’s possession. See id. at 258.
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ASBURY v. BROUGHAM
866 F.2d 1276 (10th Cir. 1989)
PARKER, District Judge: Plaintiff Rosalyn Asbury brought suit under 42 U.S.C.
§1982 and the Fair Housing Act, claiming that the defendants refused to rent or to allow
her to inspect or negotiate for the rental of an apartment or townhouse at Brougham
Estates in Kansas City. Defendants Leo Brougham, individually and doing business as
Brougham Estates and Brougham Management Company, and Wanda Chauvin, his
employee, appeal a jury verdict awarding Asbury compensatory damages of $7,500
against them... . Leo Brougham appeals from the jury verdict awarding punitive damages
in the amount of $50,000 solely against him. Defendants contend that the jury verdict
awarding compensatory damages is unsupported by the evidence because it failed to
establish an intent to discriminate. Defendant Leo Brougham appeals the award of
punitive damages on the additional ground that any discriminatory motivation that the
jury may have found on the part of Wanda Chauvin could not be attributed to Brougham,
on whose behalf she managed leasing of apartments and townhouses at Brougham
Estates. The defendants argue, therefore, that the district court erred by denying their
motion for a new trial.
I. Sufficiency of Evidence Supporting a Finding of Racial Discrimination in
Violation of §1982 and FHA. 42 U.S.C. §1982 and the FHA both prohibit
discrimination on the basis of race. In order to prevail on a claim made under these
statutes, plaintiff must prove a discriminatory intent. A violation occurs when race is a
factor in a decision to deny a minority applicant the opportunity to rent or negotiate for a
rental, but race need not be the only factor in the decision. In addition, §3604(d) of the
FHA specifically prohibits dissemination of false information about the availability of
housing because of a person’s race. Accordingly, failure to provide a minority applicant
with the same information about availability of a rental unit or the terms and conditions
for rental as is provided to white “testers,” results in false information being provided and
is cognizable as an injury under the FHA.
A. Asbury’s Prima Facie Case under §1982 and FHA. The three-part burden
of proof analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), a Title VII employment discrimination case, has been widely applied to FHA and
§1982 claims. E.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979);
Phiffer v. Proud Parrot Motor Hotel, 648 F.2d 548, 551 (9th Cir.1980); see also Denny v.
Hutchinson Sales Corp., 649 F.2d 816, 822-23 (10th Cir.1981) (§1982). Under the
McDonnell Douglas analysis, plaintiff first must come forward with proof of a prima
facie case of discrimination. Second, if plaintiff proves a prima facie case, the burden
III6
shifts to defendants to produce evidence that the refusal to rent or negotiate for a rental
was motivated by legitimate, non-racial considerations. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Third, once defendants by evidence
articulate non-discriminatory reasons, the burden shifts back to plaintiff to show that the
proffered reasons were pretextual. Id. at 256.
The proof necessary to establish a prima facie case under the FHA also
establishes a prima facie case of racial discrimination under §1982. Selden Apartments v.
U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 159 (6th Cir.1986);
Robinson. In order to establish her prima facie case, plaintiff had to prove that:
(1) she is a member of a racial minority;
(2) she applied for and was qualified to rent an apartment or townhouse in Brougham
Estates;
(3) she was denied the opportunity to rent or to inspect or negotiate for the rental of a
townhouse or apartment; and
(4) the housing opportunity remained available.
Selden Apartments; Robinson.
A review of the evidence in this case shows that plaintiff established her prima
facie case. Defendants stipulated that Asbury is black. Plaintiff testified that on February
23, 1984, she went to Brougham Estates with her daughter to obtain rental housing. At
the rental office at Brougham Estates, Asbury encountered Wanda Chauvin, the
manager,4 and explained to Chauvin that she was being transferred to Kansas City and
needed to rent housing. Asbury told Chauvin that she needed to secure housing by the
middle of March or the beginning of April. In response, Chauvin said there were no
vacancies, but told Asbury she could call back at a later time to check on availability.
Chauvin provided no information concerning availability of rental units that would assist
Asbury in her efforts to rent an apartment or townhouse at Brougham Estates. Asbury
asked for the opportunity to fill out an application, but Chauvin did not give her an
application, again stating that there were no vacancies and that she kept no waiting list.
Asbury also requested floor plans or the opportunity to view a model unit, and Chauvin
refused. Instead, Chauvin suggested Asbury inquire at the Westminister Apartments, an
apartment complex housing mostly black families. Although Chauvin did not ask Asbury
about her qualifications, plaintiff was employed with the Federal Aviation Authority at a
salary of $37,599. Based on her salary, defendants concede that Asbury would likely be
qualified to rent an apartment or townhouse at Brougham Estates.
4
Although there is some dispute in the record concerning the precise relationship between
Chauvin and Brougham, Chauvin worked for Brougham on a commission basis, and he
specifically referred to her as his employee and rental agent. As discussed elsewhere in the
opinion, Brougham’s liability arises directly from establishing discriminatory policies and
procedures. In addition, discriminatory conduct on the part of Chauvin in her capacity as
Brougham’s rental agent or employee is attributable to Brougham as owner and managing partner
of Brougham Estates. Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 552 (9th
Cir.1980) (“The duty of the owner ... to obey the laws relating to racial discrimination is
non-delegable.”)
III7
Defendants argue that Asbury was not rejected because Chauvin courteously
invited her to call back. However, there is ample evidence in the record to support the
jury’s finding that defendants’ failure or refusal to provide Asbury the opportunity to rent
or inspect or negotiate for the rental of a townhouse or apartment constituted a rejection
because of her race cognizable under §1982 and the FHA.
Although there was a conflict in the evidence as to the availability of housing at
the time Asbury attempted to inspect and negotiate for rental, there was abundant
evidence from which the jury could find that housing was available. Defendants testified
that families with a child are housed exclusively in the townhouses at Brougham Estates,
and that there were no townhouses available on the date Asbury inquired. Asbury
introduced evidence suggesting that both apartments and townhouses were available and,
in addition, that exceptions previously had been created to allow children to reside in the
apartments.
On February 24, 1984, the day after Asbury inquired about renting, Asbury’s
sister-in-law, Linda Robinson, who is white, called to inquire about the availability of
two-bedroom apartments. The woman who answered the telephone identified herself as
“Wanda” and invited Robinson to come to Brougham Estates to view the apartments.
The following day, February 25, 1984, Robinson went to the rental office at Brougham
Estates and met with Wanda Chauvin. Chauvin provided Robinson with floor plans of
available one- and two-bedroom apartments at Brougham Estates. Robinson specifically
asked Chauvin about rental to families with children, and Chauvin did not tell Robinson
that children were restricted to the townhouse units. Robinson accompanied Chauvin to
inspect a model unit and several available two-bedroom apartments. Upon inquiry by
Robinson, Chauvin indicated that the apartments were available immediately and offered
to hold an apartment for her until the next week.
Asbury also provided evidence indicating that townhouses were available for rent.
On February 1, 1984, Daniel McMenay, a white male, notified Brougham Estates that he
intended to vacate his townhouse. On April 4, 1984, Brougham Estates rented the
townhouse vacated by McMenay to John Shuminski, a white male. On March 10, 1984,
Randall Hockett, a white male, also rented a townhouse at Brougham Estates. In
addition, Asbury provided computer data sheets generated by Brougham Estates which
indicated that a third townhouse was unoccupied at the time of her inquiry on February
23, 1984 and remained vacant as of April 10, 1984. There was also evidence that a
building which included townhouse units had been closed for the winter but would be
available for rent beginning in the spring. On February 22, 1984, one day prior to
Asbury’s inquiry into vacancies, James Vance, a white male, paid a deposit for a
townhouse which he occupied when the building opened on April 10, 1984. Since
Asbury testified that she told Chauvin she did not need to occupy a rental unit until the
beginning of April, the jury could have concluded that at least one of the townhouses
which was subsequently rented to the white males was available at the time Asbury
inquired. Although defendants took the position at trial that the townhouses were closed
or out of order for repair and therefore not available to rent, the jury was free to accept
the evidence of availability presented by the plaintiff.
Since Asbury met her burden of proving a prima facie case of racial
discrimination, the burden shifted to defendants to prove a legitimate, nondiscriminatory reason for denial of housing. McDonnell Douglas Corp.; Burdine.
III8
B. Failure of Proof of Legitimate, Non-discriminatory Reason for Rejection.
Defendants claimed their legitimate, nondiscriminatory reasons for rejecting Asbury
arose out of the policies at Brougham Estates that families with one child could rent
townhouses but not apartments, and that families with more than one child were not
permitted to move into Brougham Estates. Defendants further argued that they made no
exceptions to these rules. Defendants contended that in accordance with these rental
policies, no appropriate housing was available for Asbury when she inquired. However,
plaintiff introduced evidence indicating that exceptions to these rules had been made on
several occasions; families with children had rented apartments, and families with more
than one child had been permitted to move into Brougham Estates. Asbury was not
provided information about the terms and conditions that gave rise to an exception to the
policy concerning children being restricted to the townhouses. The jury could therefore
find that defendants’ reasons for denying Asbury the opportunity to negotiate for rental
were not legitimate and nondiscriminatory.
Defendants also argue that evidence of a high percentage of minority occupancy
in Brougham Estates conclusively rebuts the claim of intentional racial discrimination.5
Although such statistical data is relevant to rebutting a claim of discrimination, statistical
data is not dispositive of a claim of intentional discrimination. Furnco Construction Co.
v. Waters, 438 U.S. 567, 580 (1977). Moreover, there was other evidence from which the
jury could have determined that race was a motivating factor in defendants’ decision to
refuse to negotiate with Asbury for a rental unit.
    
(3) The Problem of Mixed Motives
The articulations of the burden shift in McDonnell Douglas and Burdine do not
address the problem of mixed motives. That is, is an employer guilty of discrimination if
it takes action against an employee partly because of some forbidden reason like race or
sex and partly for legitimate reasons such as mediocre job performance or
insubordination? Early cases applying the Fair Housing Act stated that a defendant
violated the Act if prohibited discrimination was a “significant factor” in the challenged
decision. See Sorenson.
The Supreme Court addressed this issue in the context of Title VII in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Justices wrote four opinions in that
case, none of which commanded a majority. However, the opinions between them did
establish a relatively clear procedure for addressing mixed motives cases. Under Price
Waterhouse, if the plaintiff’s evidence demonstrates that forbidden discrimination was a
substantial reason for the challenged decision, but was not the only reason, an additional
step is added to the McDonnell Douglas scheme. At that point, the burden shifts to the
defendant to demonstrate by a preponderance of the evidence that it would have made the
same decision even if discrimination had played no part in the decision at all. If the
defendant meets this burden, there is no violation of Title VII.
5
Defendants introduced evidence indicating that in 1983 total black occupancy was 20% and in
1984 total black occupancy was 25%.
III9
Congress responded to Price Waterhouse by amending Title VII as part of the
Civil Rights Act of 1991. One section added by the Act, 42 U.S.C. §2000e-2 (m),
provides that Title VII is violated in any case in which the complaining party establishes
that forbidden discrimination was “a motivating factor” in the challenged decision. A
second added provision, §2000e-5(g)(2)(B), governs the remedies available in mixed
motive cases. Where the plaintiff has shown that discrimination was “a motivating
factor” in the decision, but the defendant “demonstrates that [it] would have taken the
same action in the absence of the impermissible motivating factor,” the court can award
the plaintiff with declaratory relief, some injunctive relief, costs and attorney’s fees, but
cannot award damages or order hiring or reinstatement.
The significance of these changes is that, under the Price Waterhouse analysis,
even if discrimination was a motivating factor, if the fact-finder decides the employer
would have reached the same decision anyway, Title VII is not violated and the plaintiff
cannot get attorney’s fees. Under the new statutory provisions, so long as the plaintiff
proves that discrimination was a motivating factor in the employment decision, Title VII
is violated and the plaintiff is entitled to attorney’s fees even if the employer would have
made the same decision anyway. This means that, in practice, attorneys are much more
likely to accept mixed motive cases.
Lower federal courts have applied the Price Waterhouse analysis in FHA cases.
Because when Congress overruled Price Waterhouse it amended Title VII but not the
FHA, it is not clear whether the old or new analysis applies in FHA mixed motive cases.
(B) Disparate Impact Claims
Overview: A disparate impact claim is a challenge to a facially neutral policy, rule or
practice. The basis of the claim is not that the neutral policy is a pretext for unlawful
discriminatory animus, but that the policy disproportionately burdens a group of people
defined by one of the protected characteristics. The requested remedy usually is
elimination or modification of the challenged policy. Generally, the defendant in a
disparate impact claim is allowed to defend by showing that the challenged policy is
sufficiently important to be used despite the disproportionate burden.
The leading case under Title VII is Griggs v. Duke Power Co., included in the
materials below. Subsequent to Griggs, the Supreme Court decided several controversial
cases addressing the details of the disparate impact cause of action. These were
subsequently overturned by the Civil Rights Act of 1991. See 42 U.S.C. 2000e-(2)(k).
We will examine these details only if they prove to be important in disparate impact cases
on the basis of religion that we find.
The Supreme Court held in Washington v. Davis, 426 U.S. 229 (1976), that no
disparate impact cause of action is available in cases brought under the Equal Protection
Clause. The courts have also held that disparate impact claims are not available under the
Civil Rights Act of 1866.
Although the Supreme Court has never ruled on the availability of disparate
impact claims under the Fair Housing Act, every lower court to rule on the issue since
1988 has allowed plaintiffs to raise disparate impact claims under §3604. The various
federal circuits have evolved several different sets of legal tests some applicable to
government defendants, some to private defendants and some to both. The Mountain
III10
Side case included below shows you an example of the kind of fact pattern in which FHA
disparate impact claims arise, although I don’t think its analysis is very good.
Note that plaintiffs can challenge a particular unfavorable decision by an
employer, a municipality or a housing provider by characterizing the reason for the
decision as a neutral policy. For example, if a landlord turns down a prospective tenant
because she has no college degree, she could try to show that the policy of rejecting
people with no college degree has a disproportionate effect on, e.g., women or particular
racial or ethnic minorities. Similarly, if a municipality rejects a proposal for a particular
apartment complex relying on specific zoning provisions, it’s decision can be challenged
on the grounds that the zoning provisions have the effect of reinforcing existing
segregation.
    
GRIGGS v. DUKE POWER CO.
401 U.S. 424 (1971)
CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ
in this case to resolve the question whether an employer is prohibited by the Civil Rights
Act of 1964, Title VII, from requiring a high school education or passing of a
standardized general intelligence test as a condition of employment in or transfer to jobs
when (a) neither standard is shown to be significantly related to successful job
performance, (b) both requirements operate to disqualify Negroes at a substantially
higher rate than white applicants, and (c) the jobs in question formerly had been filled
only by white employees as part of a longstanding practice of giving preference to
whites.
Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions
for enforcement of provisions of the Act and this proceeding was brought by a group of
incumbent Negro employees against Duke Power Company. All the petitioners are
employed at the Company’s Dan River Steam Station, a power generating facility located
at Draper, North Carolina. At the time this action was instituted, the Company had 95
employees at the Dan River Station, 14 of whom were Negroes; 13 of these are
petitioners here.
The District Court found that prior to July 2, 1965, the effective date of the Civil
Rights Act of 1964, the Company openly discriminated on the basis of race in the hiring
and assigning of employees at its Dan River plant. The plant was organized into five
operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance,
and (5) Laboratory and Test. Negroes were employed only in the Labor Department
where the highest paying jobs paid less than the lowest paying jobs in the other four
“operating” departments in which only whites were employed. Promotions were normally
made within each department on the basis of job seniority. Transferees into a department
usually began in the lowest position.
In 1955 the Company instituted a policy of requiring a high school education for
initial assignment to any department except Labor, and for transfer from the Coal
Handling to any “inside” department (Operations, Maintenance, or Laboratory). When
the Company abandoned its policy of restricting Negroes to the Labor Department in
III11
1965, completion of high school also was made a prerequisite to transfer from Labor to
any other department. From the time the high school requirement was instituted to the
time of trial, however, white employees hired before the time of the high school
education requirement continued to perform satisfactorily and achieve promotions in the
“operating” departments. Findings on this score are not challenged.
The Company added a further requirement for new employees on July 2, 1965,
the date on which Title VII became effective. To qualify for placement in any but the
Labor Department it became necessary to register satisfactory scores on two
professionally prepared aptitude tests, as well as to have a high school education.
Completion of high school alone continued to render employees eligible for transfer to
the four desirable departments from which Negroes had been excluded if the incumbent
had been employed prior to the time of the new requirement. In September 1965 the
Company began to permit incumbent employees who lacked a high school education to
qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests the Wonderlic Personnel Test, which purports to measure general intelligence, and the
Bennett Mechanical Comprehension Test. Neither was directed or intended to measure
the ability to learn to perform a particular job or category of jobs. The requisite scores
used for both initial hiring and transfer approximated the national median for high school
graduates. 3
The District Court had found that while the Company previously followed a
policy of overt racial discrimination in a period prior to the Act, such conduct had ceased.
The District Court also concluded that Title VII was intended to be prospective only and,
consequently, the impact of prior inequities was beyond the reach of corrective action
authorized by the Act.
The Court of Appeals was confronted with a question of first impression, as are
we, concerning the meaning of Title VII. After careful analysis a majority of that court
concluded that a subjective test of the employer’s intent should govern, particularly in a
close case, and that in this case there was no showing of a discriminatory purpose in the
adoption of the diploma and test requirements. On this basis, the Court of Appeals
concluded there was no violation of the Act.
The Court of Appeals reversed the District Court in part, rejecting the holding that
residual discrimination arising from prior employment practices was insulated from
remedial action.4 The Court of Appeals noted, however, that the District Court was
correct in its conclusion that there was no showing of a racial purpose or invidious intent
3
The test standards are thus more stringent than the high school requirement, since they would
screen out approximately half of all high school graduates.
4
The Court of Appeals ruled that Negroes employed in the Labor Department at a time when
there was no high school or test requirement for entrance into the higher paying departments
could not now be made subject to those requirements, since whites hired contemporaneously into
those departments were never subject to them. The Court of Appeals also required that the
seniority rights of those Negroes be measured on a plant-wide, rather than a departmental, basis.
However, the Court of Appeals denied relief to the Negro employees without a high school
education or its equivalent who were hired into the Labor Department after institution of the
educational requirement.
III12
in the adoption of the high school diploma requirement or general intelligence test and
that these standards had been applied fairly to whites and Negroes alike. It held that, in
the absence of a discriminatory purpose, use of such requirements was permitted by the
Act. In so doing, the Court of Appeals rejected the claim that because these two
requirements operated to render ineligible a markedly disproportionate number of
Negroes, they were unlawful under Title VII unless shown to be job related.5 We granted
the writ on these claims.
The objective of Congress in the enactment of Title VII is plain from the language
of the statute. It was to achieve equality of employment opportunities and remove
barriers that have operated in the past to favor an identifiable group of white employees
over other employees. 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.
The Court of Appeals’ opinion, and the partial dissent, agreed that, on the record
in the present case, “whites register far better on the Company’s alternative
requirements” than Negroes.6 This consequence would appear to be directly traceable to
race. Basic intelligence must have the means of articulation to manifest itself fairly in a
testing process. Because they are Negroes, petitioners have long received inferior
education in segregated schools and this Court expressly recognized these differences in
Gaston County v. United States, 395 U.S. 285 (1969). There, because of the inferior
education received by Negroes in North Carolina, this Court barred the institution of a
literacy test for voter registration on the ground that the test would abridge the right to
vote indirectly on account of race. Congress did not intend by Title VII, however, to
guarantee a job to every person regardless of qualifications. In short, the Act does not
command that any person be hired simply because he was formerly the subject of
discrimination, or because he is a member of a minority group. Discriminatory preference
for any group, minority or majority, is precisely and only what Congress has proscribed.
What is required by Congress is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate invidiously to discriminate on the basis
of racial or other impermissible classification.
Congress has now provided that tests or criteria for employment or promotion
may not provide equality of opportunity merely in the sense of the fabled offer of milk to
the stork and the fox. On the contrary, Congress has now required that the posture and
condition of the job-seeker be taken into account. It has - to resort again to the fable provided that the vessel in which the milk is proffered be one all seekers can use. The Act
5
One member of that court disagreed with this aspect of the decision, maintaining, as do the
petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a
racially exclusionary fashion and do not measure skills or abilities necessary to performance of
the jobs for which those criteria are used.
6
In North Carolina, 1960 census statistics show that, while 34% of white males had completed
high school, only 12% of Negro males had done so. … Similarly, with respect to standardized
tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and
Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests,
as compared with only 6% of the blacks.
III13
proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business necessity. If an employment
practice which operates to exclude Negroes cannot be shown to be related to job
performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the
general intelligence test is shown to bear a demonstrable relationship to successful
performance of the jobs for which it was used. Both were adopted, as the Court of
Appeals noted, without meaningful study of their relationship to job-performance ability.
Rather, a vice president of the Company testified, the requirements were instituted on the
Company’s judgment that they generally would improve the overall quality of the work
force.
The evidence, however, shows that employees who have not completed high
school or taken the tests have continued to perform satisfactorily and make progress in
departments for which the high school and test criteria are now used.7 The promotion
record of present employees who would not be able to meet the new criteria thus suggests
the possibility that the requirements may not be needed even for the limited purpose of
preserving the avowed policy of advancement within the Company. In the context of this
case, it is unnecessary to reach the question whether testing requirements that take into
account capability for the next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill a genuine business
need. In the present case the Company has made no such showing.
The Court of Appeals held that the Company had adopted the diploma and test
requirements without any “intention to discriminate against Negro employees.” We do
not suggest that either the District Court or the Court of Appeals erred in examining the
employer’s intent; but good intent or absence of discriminatory intent does not redeem
employment procedures or testing mechanisms that operate as “built-in headwinds” for
minority groups and are unrelated to measuring job capability.
The Company’s lack of discriminatory intent is suggested by special efforts to
help the undereducated employees through Company financing of two-thirds the cost of
tuition for high school training. But Congress directed the thrust of the Act to the
consequences of employment practices, not simply the motivation. More than that,
Congress has placed on the employer the burden of showing that any given requirement
must have a manifest relationship to the employment in question.
The facts of this case demonstrate the inadequacy of broad and general testing
devices as well as the infirmity of using diplomas or degrees as fixed measures of
capability. History is filled with examples of men and women who rendered highly
effective performance without the conventional badges of accomplishment in terms of
certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress
has mandated the commonsense proposition that they are not to become masters of
reality.
7
For example, between July 2, 1965, and November 14, 1966, the percentage of white employees
who were promoted but who were not high school graduates was nearly identical to the
percentage of non-graduates in the entire white work force.
III14
The Company contends that its general intelligence tests are specifically permitted
by 703 (h) of the Act. That section authorizes the use of “any professionally developed
ability test” that is not “designed, intended or used to discriminate because of race....”
(Emphasis added.)
The Equal Employment Opportunity Commission, having enforcement
responsibility, has issued guidelines interpreting 703 (h) to permit only the use of jobrelated tests.9 The administrative interpretation of the Act by the enforcing agency is
entitled to great deference. Since the Act and its legislative history support the
Commission’s construction, this affords good reason to treat the guidelines as expressing
the will of Congress.
Section 703 (h) was not contained in the House version of the Civil Rights Act
but was added in the Senate during extended debate. For a period, debate revolved around
claims that the bill as proposed would prohibit all testing and force employers to hire
unqualified persons simply because they were part of a group formerly subject to job
discrimination.10 Proponents of Title VII sought throughout the debate to assure the
critics that the Act would have no effect on job-related tests. Senators Case of New Jersey
and Clark of Pennsylvania, co-managers of the bill on the Senate floor, issued a
memorandum explaining that the proposed Title VII “expressly protects the employer’s
right to insist that any prospective applicant, Negro or white, must meet the applicable
job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis
of job qualifications, rather than on the basis of race or color.” (Emphasis added.) Despite
these assurances, Senator Tower of Texas introduced an amendment authorizing
“professionally developed ability tests.” Proponents of Title VII opposed the amendment
because, as written, it would permit an employer to give any test, “whether it was a good
test or not, so long as it was professionally designed. Discrimination could actually exist
under the guise of compliance with the statute.”
EEOC Guidelines on Employment Testing Procedures… provide: “The Commission
accordingly interprets `professionally developed ability test’ to mean a test which fairly measures
the knowledge or skills required by the particular job or class of jobs which the applicant seeks,
or which fairly affords the employer a chance to measure the applicant’s ability to perform a
particular job or class of jobs. The fact that a test was prepared by an individual or organization
claiming expertise in test preparation does not, without more, justify its use within the meaning of
Title VII.” The EEOC position has been elaborated in the new Guidelines on Employee Selection
Procedures, 29 CFR 1607.4(c) (1970). These guidelines demand that employers using tests have
available “data demonstrating that the test is predictive of or significantly correlated with
important elements of work behavior which comprise or are relevant to the job or jobs for which
candidates are being evaluated.”
9
10
The congressional discussion was prompted by the decision of a hearing examiner for the
Illinois Fair Employment Commission in Myart v. Motorola Co. That case suggested that
standardized tests on which whites performed better than Negroes could never be used. The
decision was taken to mean that such tests could never be justified even if the needs of the
business required them. A number of Senators feared that Title VII might produce a similar
result.
III15
The amendment was defeated and two days later Senator Tower offered a
substitute amendment which was adopted verbatim and is now the testing provision of
703 (h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously
opposed the first amendment, endorsed the substitute amendment, stating: “Senators on
both sides of the aisle who were deeply interested in title VII have examined the text of
this amendment and have found it to be in accord with the intent and purpose of that
title.” The amendment was then adopted. From the sum of the legislative history relevant
in this case, the conclusion is inescapable that the EEOC’s construction of 703 (h) to
require that employment tests be job related comports with congressional intent.
Nothing in the Act 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. Congress has not commanded that the less qualified be preferred over the
better qualified simply because of minority origins. Far from disparaging job
qualifications as such, Congress has made such qualifications the controlling factor, so
that race, religion, nationality, and sex become irrelevant. What Congress has
commanded is that any tests used must measure the person for the job and not the person
in the abstract. …
    
MOUNTAIN SIDE MOBILE ESTATES PARTNERSHIP v.
SECRETARY OF HOUSING AND URBAN DEVELOPMENT
56 F.3d 1243 (10th Cir. 1995)
BARRETT, Senior Circuit Judge. … Mountain Side owns a mobile home park in
Jefferson County, Colorado, which was built in the 1960’s. Robert and Marilyn Dalke
have been the park’s resident managers since December, 1989. The park consists of 229
mobile home lots each of which is available to be leased as real property for placement of
one mobile home. The park provides utilities, including water, power, telephone, and
sewer hookups, to each lot. The park was built to accommodate “older” single-wide
mobile homes of 8 to 10 feet wide and 30 to 55 feet long. The park cannot accommodate
the modern single-wide or double-wide mobile homes, which are much wider and longer.
The density in the park is almost 10 mobile homes per acre, whereas modern parks
average 5 to 6 mobile homes per acre.
Prior to March, 1989, the park was an adults-only park; Mountain Side prohibited
any person under 21 ... from living in the park. After the 1988 amendments to the FHA,
effective March 12, 1989, Mountain Side instituted a new occupancy policy of no more
than three persons per mobile home. The FHA amendments prohibit discrimination on
the basis of familial status unless a housing provider can meet a narrow exemption for
“housing for older persons.” Mountain Side determined that it could not meet the
exception. Since March, 1989, it has accepted all residents, including families with
minor children, subject to its occupancy policy.
In September, 1991, Jacqueline VanLoozenoord (VanLoozenoord), her three
minor children, and her “roommate and companion,” Michael Brace (Brace), moved into
a mobile home in the park. Neither VanLoozenoord nor Brace contacted the park
III16
management or submitted an application for tenancy prior to their occupancy. They
purchased the mobile home in place. The sellers did not advise them that the park had a
three person occupancy limit.
Shortly after they moved in, Robert Dalke inquired of Brace as to the number of
residents in the mobile home. When Brace informed him that five people were living
there, Dalke informed him of the park’s three person per lot occupancy limit and told him
they would have to move. Subsequently, Mountain Side served VanLoozenoord and
Brace with a notice ... demanding that they vacate the park ...
[The couple filed complaints with HUD and the case was tried before an
administrative law judge on a disparate impact theory. The ALJ ruled that the
occupancy limit had an unlawful disparate impact on preople with children.] …
The three factors we will consider in determining whether a plaintiff’s prima facie
case of disparate impact makes out a violation of Title VIII are: (1) the strength of the
plaintiff’s showing of discriminatory effect; (2) the defendant’s interest in taking the
action complained of; and (3) whether the plaintiff seeks to compel the defendant
affirmatively to provide housing … or merely to restrain the defendant from interfering
with individual property owners who wish to provide such housing. …
Strength of Plaintiff’s Showing of Discriminatory Effect. The Secretary relied on
national statistics that “at least 71.2% of all U.S. households with four or more persons
contain one or more children under the age of 18 years; that at least 50.5% of U.S.
families with minor children have four or more individuals; and that at most 11.7% of
households without minor children have four or more persons” to determine that the
plaintiffs had proven discriminatory effect. Although discriminatory effect is generally
shown by statistical evidence, any statistical analysis must involve the appropriate
comparables. … In some cases national statistics may be the appropriate comparable
population. See Dothard (district court did not err in using national height and weight
statistics to find discriminatory effect on women “where there is no reason to suppose
that physical height and weight characteristics of Alabama men and women differ
markedly from those of the national population”). However, those cases are the rare
exception and this case is not such an exception.
In this case, the appropriate comparables must focus on the local housing market
and local family statistics. The farther removed from local statistics the plaintiffs
venture, the weaker their evidence becomes. There is no dispute about the veracity of the
Secretary’s findings of discriminatory effect on the national level. However, this national
level discriminatory effect, although substantially supported by the record, is so far
removed from the local arena that it is of little weight in our analysis.
Interest of Defendant in Taking the Action Complained Of. The second factor which
we consider is the interest of the defendant in taking the action which produces the
discriminatory effect. The Arlington Heights II court recognized that “[i]f the defendant
is a private individual or a group of private individuals seeking to protect private rights,
the courts cannot be overly solicitous when the effect is to perpetuate segregated
housing.” On the other hand, when a defendant can present valid non-pretextual reasons
for the challenged practices, the courts should not be overzealous to find discrimination.
III17
Mountain Side presented two legitimate, non-pretextual reasons for its occupancy
limit: (1) sewer systems limitations, and (2) concern over the quality of park life. These
overcame plaintiffs’ prima facie case, as more fully hereafter discussed.
Nature of Relief Sought. … In Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 269
n.20, (1st Cir.1993) the court, in an elderly and handicapped Title VIII discrimination
action, concluded that “Where plaintiff seeks a judgment which would require defendant
to take affirmative action to correct a Title VIII violation, plaintiff must make a greater
showing of discriminatory effect. On the other hand, if plaintiff seeks a judgment merely
enjoining defendant from further interference with the exercise of plaintiff’s Title VIII
rights, a lesser showing of discriminatory effect would suffice.”
Business Necessity. … [W]e hold that for the purposes of Title VIII FHA housing
discrimination cases, the defendant must demonstrate that the discriminatory practice has
a manifest relationship to the housing in question. A mere insubstantial justification in
this regard will not suffice, because such a low standard would permit discrimination to
be practiced through the use of spurious, seemingly neutral practices. At the same time,
there is no requirement that the defendant establish a “compelling need or necessity” for
the challenged practice to pass muster since this degree of scrutiny would be almost
impossible to satisfy.
Mountain Side presented two reasons for the three person per lot occupancy limit:
(1) sewer capacity limitations, and (2) concern over quality of park life. In support of the
occupancy limit, Mountain Side presented extensive evidence before the ALJ. In his
Findings of Fact, the Secretary found: …
11. By March of 1989, [Mountain Side] became aware of the addition of families with
children to the classes protected by the [FHA], and that it must decide whether the Park
should remain an adult park or whether residency should be thrown open to families
with children. At the time, there were many Park vacancies because of the limited
market for an adult mobile home community. Accordingly, [Mountain Side] decided
that the option of becoming a family park was a more “viable opportunity.” However,
the elimination of the adult restriction meant that there would be an increase in Park
population. Therefore, [Mountain Side] … examined instituting occupancy limits.
12. An October 15, 1988, survey of the Park population was used to establish the new
policy. According to the study, 318 people resided on 213 lots. Each occupied unit had
one or two residents. [Park managers] opined that the condition and age of the utilities,
the density of homes, and the overall size of the Park would not support more than a
three-person per lot limit without negatively affecting the quality of life at the Park.
Accordingly, [Mountain Side] determined that a limit of three residents per unit,
resulting in a total of 687 residents, was the maximum number that the Park could
reasonably accommodate.
19. After the imposition of the occupancy limit, [Mountain Side’s] counsel advised [the
managers] that their own opinion alone might not be sufficient to support the threeperson limit and that an independent expert would be able to assist in evaluating the
legitimacy of the policy. In early 1991, [Mountain Side] retained QCI Development
Services Group, Inc. (“QCI”) and its president and principal engineer, Roger Walker, to
perform a study to assist [Mountain Side] in evaluating the three-person occupancy
limit. Mr. Walker was not provided with any target population limit or instructions
concerning methodology. Neither was he requested to provide alternatives or
III18
suggestions for improvements or repairs to increase any recommended population limit.
...
21. In March 1991, QCI completed its study entitled “Community Guidelines Report,
Mountainside Mobile Home Park” (“QCI Study”). It evaluates two sets of concerns
which affect Park residents: 1) their health and safety based on an objective evaluation
of the infrastructure of the Park (i.e., the adequacy of the Park’s water and sewerage
pipes), and 2) their comfort based on the size of homes and lots, recreational facilities,
and the adequacy of parking.
22. Mr. Walker estimated the adequacy of the Park’s sewer system based on repair
records and interviews with David Ramstetter, who performed maintenance for the
Park. Based on these sources, the Study concluded that sewer pipes were adequate to
support a maximum of 916 persons. … Because the 916 population limit is a
recommended maximum, Mr. Walker opined that if an additional 30 guests are at the
Park at peak time, “some portion of the [sewer] system will be overloaded.”
23. Mr. Walker described his figure of 916 as a “brick wall,” or an absolute maximum.
If the Park had 916 residents, he asserted that the sewer system would not be able to
accommodate additional visitors. The Park is located in a resort area near the Rocky
Mountains. Accordingly, Park residents have numerous seasonal visitors that increase
the population during the summer and holiday seasons. …
26. The QCI Study also made recommendations based on its evaluation of the Park in
terms of human comfort. Mr. Walker opined that the Park has “very small lots ... [and
is] crowded.” Based on the assumption that most of the homes currently in the Park
have two bedrooms, the Study recommends a populations limit of two people per
bedroom in addition to the previously discussed absolute maximum population of 916.
The QCI Study also recommended a limit of two vehicles per trailer for traffic flow and
pedestrian safety.
27. Notwithstanding Mr. Walker’s recommendation of a maximum of 916 residents, or
four residents per home, [Mountain Side] has continued to maintain the limit of three,
rather than four, residents per unit. Because of the parking problems, density of the
homes, and overall size of the Park, [Mountain Side] decided that the quality of life at
the Park would be severely diminished if the Park had a maximum of 916 residents.
Furthermore, if the Park reached maximum capacity, it could not accommodate guests,
including visiting children.
Based on the foregoing findings, Mountain Side demonstrated that the three person
occupancy limit has a manifest relationship to housing in the Park [and] overcame
Complainants’ prima facie case ….
    
(C) Harassment
Overview: Actionable harassment claims come in two forms, (i) “quid pro quo”
harassment; and (ii) “hostile environment” harassment. Most quid pro quo harassment
cases involve sexual harassment claims. They involve allegations that an employer or
supervisor made a job, a raise or a promotion conditional on the employee providing
sexual favors. Courts have concluded that conditioning terms of employment on sexual
activity generally constitutes discrimination on the basis of sex. Courts have also found
quid pro quo sex discrimination actionable under the FHA where, e.g., a landlord offers
III19
to reduce the rent due if a tenant provides sexual favors. Unsurprisingly no quid pro quo
causes of action have been recognized for race, color, national origin or disability.
However, as we’ll see, some lower courts have found quid pro quo religious
discrimination where terms of employment are conditioned on an unwilling employee
participating in religious activities.
Hostile environment harassment involves significant ill treatment of the plaintiff
by supervisors, landlords, co-workers or neighbors based on one of the plaintiff’s
protected characteristics. Courts have found causes of action based on any of the
characteristics listed in Title VII and the FHA including religion. The relevant standards
are based on the language of the two Supreme Court cases laid out below.
Subsequent Supreme Court cases have established standards for when an
employer (and presumably a building owner) can be liable for harassment by a
supervisor. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). The Supreme Court also has held that in
sufficiently severe cases, employees can quit in response to harassment and claim that
they were “constructively discharged.” See Pennsylvania State Police v. Suders, 542
U.S. 129 (2004). In this course, we will explore the standards created by these cases only
if they prove to be important in religious harassment cases we find.
    
MERITOR SAVINGS BANK v. VINSON
477 U.S. 57 (1986)
JUSTICE REHNQUIST delivered the opinion of the Court. This case presents
important questions concerning claims of workplace “sexual harassment” brought under
Title VII of the Civil Rights Act of 1964….
I. In 1974, respondent Mechelle Vinson met Sidney Taylor, a vice president of what is
now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices.
When respondent asked whether she might obtain employment at the bank, Taylor gave
her an application, which she completed and returned the next day; later that same day
Taylor called her to say that she had been hired. With Taylor as her supervisor,
respondent started as a teller-trainee, and thereafter was promoted to teller, head teller,
and assistant branch manager. She worked at the same branch for four years, and it is
undisputed that her advancement there was based on merit alone. In September 1978,
respondent notified Taylor that she was taking sick leave for an indefinite period. On
November 1, 1978, the bank discharged her for excessive use of that leave.
Respondent brought this action against Taylor and the bank, claiming that during
her four years at the bank she had “constantly been subjected to sexual harassment” by
Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive
damages against Taylor and the bank, and attorney’s fees.
At the 11-day bench trial, the parties presented conflicting testimony about
Taylor’s behavior during respondent’s employment. Respondent testified that during her
probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no
sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the
course of the meal, suggested that they go to a motel to have sexual relations. At first she
III20
refused, but out of what she described as fear of losing her job she eventually agreed.
According to respondent, Taylor thereafter made repeated demands upon her for sexual
favors, usually at the branch, both during and after business hours; she estimated that
over the next several years she had intercourse with him some 40 or 50 times. In addition,
respondent testified that Taylor fondled her in front of other employees, followed her into
the women’s restroom when she went there alone, exposed himself to her, and even
forcibly raped her on several occasions. These activities ceased after 1977, respondent
stated, when she started going with a steady boyfriend.
Respondent also testified that Taylor touched and fondled other women
employees of the bank, and she attempted to call witnesses to support this charge. But
while some supporting testimony apparently was admitted without objection, the District
Court did not allow her “to present wholesale evidence of a pattern and practice relating
to sexual advances to other female employees in her case in chief, but advised her that
she might well be able to present such evidence in rebuttal to the defendants’ cases.”
Respondent did not offer such evidence in rebuttal. Finally, respondent testified that
because she was afraid of Taylor she never reported his harassment to any of his
supervisors and never attempted to use the bank’s complaint procedure.
Taylor denied respondent’s allegations of sexual activity, testifying that he never
fondled her, never made suggestive remarks to her, never engaged in sexual intercourse
with her, and never asked her to do so. He contended instead that respondent made her
accusations in response to a business-related dispute. The bank also denied respondent’s
allegations and asserted that any sexual harassment by Taylor was unknown to the bank
and engaged in without its consent or approval.
The District Court denied relief, but did not resolve the conflicting testimony
about the existence of a sexual relationship between respondent and Taylor. It found
instead that
“[i]f [respondent] and Taylor did engage in an intimate or sexual relationship during the
time of [respondent’s] employment with [the bank], that relationship was a voluntary one
having nothing to do with her continued employment at [the bank] or her advancement or
promotions at that institution.”
The court ultimately found that respondent “was not the victim of sexual
harassment and was not the victim of sexual discrimination” while employed at the bank.
…
The Court of Appeals for the District of Columbia Circuit reversed. Relying on its
earlier holding in Bundy v. Jackson, 641 F.2d 934 (1981), decided after the trial in this
case, the court stated that a violation of Title VII may be predicated on either of two types
of sexual harassment: harassment that involves the conditioning of concrete employment
benefits on sexual favors, and harassment that, while not affecting economic benefits,
creates a hostile or offensive working environment. The court drew additional support for
this position from the Equal Employment Opportunity Commission’s Guidelines on
Discrimination Because of Sex, which set out these two types of sexual harassment
claims. Believing that “Vinson’s grievance was clearly of the [hostile environment]
type,” and that the District Court had not considered whether a violation of this type had
occurred, the court concluded that a remand was necessary.
III21
The court further concluded that the District Court’s finding that any sexual
relationship between respondent and Taylor “was a voluntary one” did not obviate the
need for a remand. “[U]ncertain as to precisely what the [district] court meant” by this
finding, the Court of Appeals held that if the evidence otherwise showed that “Taylor
made Vinson’s toleration of sexual harassment a condition of her employment,” her
voluntariness “had no materiality whatsoever.” The court then surmised that the District
Court’s finding of voluntariness might have been based on “the voluminous testimony
regarding respondent’s dress and personal fantasies,” testimony that the Court of Appeals
believed “had no place in this litigation.” …
In accordance with the foregoing, the Court of Appeals reversed the judgment of
the District Court and remanded the case for further proceedings. … We granted
certiorari … and now affirm but for different reasons.
II. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice
for an employer ... to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” The prohibition against
discrimination based on sex was added to Title VII at the last minute on the floor of the
House of Representatives. The principal argument in opposition to the amendment was
that “sex discrimination” was sufficiently different from other types of discrimination
that it ought to receive separate legislative treatment. This argument was defeated, the bill
quickly passed as amended, and we are left with little legislative history to guide us in
interpreting the Act’s prohibition against discrimination based on “sex.”
Respondent argues, and the Court of Appeals held, that unwelcome sexual
advances that create an offensive or hostile working environment violate Title VII.
Without question, when a supervisor sexually harasses a subordinate because of the
subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex. Petitioner
apparently does not challenge this proposition. It contends instead that in prohibiting
discrimination with respect to “compensation, terms, conditions, or privileges” of
employment, Congress was concerned with what petitioner describes as “tangible loss” of
“an economic character,” not “purely psychological aspects of the workplace
environment.” In support of this claim petitioner observes that in both the legislative
history of Title VII and this Court’s Title VII decisions, the focus has been on tangible,
economic barriers erected by discrimination.
We reject petitioner’s view. First, the language of Title VII is not limited to
“economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of
employment” evinces a congressional intent “`to strike at the entire spectrum of disparate
treatment of men and women’” in employment. Los Angeles Dept. of Water and Power v.
Manhart, 435 U.S. 702, 707 , n.13 (1978), quoting Sprogis v. United Air Lines, Inc., 444
F.2d 1194, 1198 (CA7 1971). Petitioner has pointed to nothing in the Act to suggest that
Congress contemplated the limitation urged here.
Second, in 1980 the EEOC issued Guidelines specifying that “sexual harassment,”
as there defined, is a form of sex discrimination prohibited by Title VII. As an
“administrative interpretation of the Act by the enforcing agency,” Griggs v. Duke Power
Co., 401 U.S. 424, 433-434 (1971), these Guidelines, “‘while not controlling upon the
III22
courts by reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance,’” General
Electric Co. v. Gilbert, 429 U.S. 125, 141-142 (1976), quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). The EEOC Guidelines fully support the view that harassment
leading to noneconomic injury can violate Title VII.
In defining “sexual harassment,” the Guidelines first describe the kinds of
workplace conduct that may be actionable under Title VII. These include “[u]nwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature.” Relevant to the charges at issue in this case, the Guidelines provide that
such sexual misconduct constitutes prohibited “sexual harassment,” whether or not it is
directly linked to the grant or denial of an economic quid pro quo, where “such conduct
has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive working environment.”.
In concluding that so-called “hostile environment” (i.e., non quid pro quo)
harassment violates Title VII, the EEOC drew upon a substantial body of judicial
decisions and EEOC precedent holding that Title VII affords employees the right to work
in an environment free from discriminatory intimidation, ridicule, and insult. Rogers v.
EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the
first case to recognize a cause of action based upon a discriminatory work environment.
In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant
could establish a Title VII violation by demonstrating that her employer created an
offensive work environment for employees by giving discriminatory service to its
Hispanic clientele. The court explained that an employee’s protections under Title VII
extend beyond the economic aspects of employment:
[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an
expansive concept which sweeps within its protective ambit the practice of creating a
working environment heavily charged with ethnic or racial discrimination. . . . One can
readily envision working environments so heavily polluted with discrimination as to
destroy completely the emotional and psychological stability of minority group
workers.... 454 F.2d, at 238.
Courts applied this principle to harassment based on race, e.g., Firefighters
Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub
nom. Banta v. United States, 434 U.S. 819 (1977); Gray v. Greyhound Lines, East, 545
F.2d 169, 176 (D.C. Cir. 1976), religion, e.g., Compston v. Borden, Inc., 424 F. Supp.
157 (SD Ohio 1976), and national origin, e.g., Cariddi v. Kansas City Chiefs Football
Club, 568 F.2d 87, 88 (CA8 1977). Nothing in Title VII suggests that a hostile
environment based on discriminatory sexual harassment should not be likewise
prohibited. The Guidelines thus appropriately drew from, and were fully consistent with,
the existing case law.
Since the Guidelines were issued, courts have uniformly held, and we agree, that a
plaintiff may establish a violation of Title VII by proving that discrimination based on
sex has created a hostile or abusive work environment. As the Court of Appeals for the
Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982):
Sexual harassment which creates a hostile or offensive environment for members of one
sex is every bit the arbitrary barrier to sexual equality at the workplace that racial
III23
harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet
of sexual abuse in return for the privilege of being allowed to work and make a living can
be as demeaning and disconcerting as the harshest of racial epithets.
Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. Jackson, 641 F.2d at
934-944; Zabkowicz v. West Bend Co., 589 F. Supp. 780 (ED Wis. 1984).
Of course, as the courts in both Rogers and Henson recognized, not all workplace
conduct that may be described as “harassment” affects a “term, condition, or privilege” of
employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 (“mere
utterance of an ethnic or racial epithet which engenders offensive feelings in an
employee” would not affect the conditions of employment to sufficiently significant
degree to violate Title VII); Henson, 682 F.2d, at 904 (quoting same). 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.”
Ibid. Respondent’s allegations in this case - which include not only pervasive harassment
but also criminal conduct of the most serious nature - are plainly sufficient to state a
claim for “hostile environment” sexual harassment.
The question remains, however, whether the District Court’s ultimate finding that
respondent “was not the victim of sexual harassment,” effectively disposed of
respondent’s claim. The Court of Appeals recognized, we think correctly, that this
ultimate finding was likely based on one or both of two erroneous views of the law. First,
the District Court apparently believed that a claim for sexual harassment will not lie
absent an economic effect on the complainant’s employment. See ibid. (“It is without
question that sexual harassment of female employees in which they are asked or required
to submit to sexual demands as a condition to obtain employment or to maintain
employment or to obtain promotions falls within protection of Title VII”) (emphasis
added). Since it appears that the District Court made its findings without ever considering
the “hostile environment” theory of sexual harassment, the Court of Appeals’ decision to
remand was correct.
Second, the District Court’s conclusion that no actionable harassment occurred
might have rested on its earlier “finding” that “[i]f [respondent] and Taylor did engage in
an intimate or sexual relationship . . ., that relationship was a voluntary one.” But the fact
that sex-related conduct was “voluntary,” in the sense that the complainant was not
forced to participate against her will, is not a defense to a sexual harassment suit brought
under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual
advances were “unwelcome.” [EEOC Guidelines]. While the question whether particular
conduct was indeed unwelcome presents difficult problems of proof and turns largely on
credibility determinations committed to the trier of fact, the District Court in this case
erroneously focused on the “voluntariness” of respondent’s participation in the claimed
sexual episodes. The correct inquiry is whether respondent by her conduct indicated that
the alleged sexual advances were unwelcome, not whether her actual participation in
sexual intercourse was voluntary.
Petitioner contends that even if this case must be remanded to the District Court,
the Court of Appeals erred in one of the terms of its remand. Specifically, the Court of
Appeals stated that testimony about respondent’s “dress and personal fantasies,” which
the District Court apparently admitted into evidence, “had no place in this litigation.” The
III24
apparent ground for this conclusion was that respondent’s voluntariness vel non in
submitting to Taylor’s advances was immaterial to her sexual harassment claim. While
“voluntariness” in the sense of consent is not a defense to such a claim, it does not follow
that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law
in determining whether he or she found particular sexual advances unwelcome. To the
contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the
trier of fact must determine the existence of sexual harassment in light of “the record as a
whole” and “the totality of circumstances, such as the nature of the sexual advances and
the context in which the alleged incidents occurred.” Respondent’s claim that any
marginal relevance of the evidence in question was outweighed by the potential for unfair
prejudice is the sort of argument properly addressed to the District Court. In this case the
District Court concluded that the evidence should be admitted, and the Court of Appeals’
contrary conclusion was based upon the erroneous, categorical view that testimony about
provocative dress and publicly expressed sexual fantasies “had no place in this
litigation.” While the District Court must carefully weigh the applicable considerations in
deciding whether to admit evidence of this kind, there is no per se rule against its
admissibility. …
    
HARRIS v. FORKLIFT SYSTEMS
510 U.S. 17 (1993)
JUSTICE O’CONNOR delivered the opinion of the Court. In this case, we consider
the definition of a discriminatorily “abusive work environment” (also known as a “hostile
work environment”) under Title VII of the Civil Rights Act of 1964….
I. Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental
company, from April, 1985, until October, 1987. Charles Hardy was Forklift’s president.
The Magistrate found that, throughout Harris’ time at Forklift, Hardy often
insulted her because of her gender and often made her the target of unwanted sexual
innuendos. Hardy told Harris on several occasions, in the presence of other employees,
“You’re a woman, what do you know” and “We need a man as the rental manager”; at
least once, he told her she was “a dumb ass woman.” Again in front of others, he
suggested that the two of them “go to the Holiday Inn to negotiate [Harris’] raise.” Hardy
occasionally asked Harris and other female employees to get coins from his front pants
pocket. He threw objects on the ground in front of Harris and other women, and asked
them to pick the objects up. He made sexual innuendos about Harris’ and other women’s
clothing.
In mid-August, 1987, Harris complained to Hardy about his conduct. Hardy said
he was surprised that Harris was offended, claimed he was only joking, and apologized.
He also promised he would stop, and, based on this assurance Harris stayed on the job.
Ibid. But in early September, Hardy began anew: While Harris was arranging a deal with
one of Forklift’s customers, he asked her, again in front of other employees, “What did
you do, promise the guy . . . some [sex] Saturday night?” On October 1, Harris collected
her paycheck and quit.
III25
Harris then sued Forklift, claiming that Hardy’s conduct had created an abusive
work environment for her because of her gender. The United States District Court for the
Middle District of Tennessee, adopting the report and recommendation of the Magistrate,
found this to be “a close case,” but held that Hardy’s conduct did not create an abusive
environment. The court found that some of Hardy’s comments “offended [Harris], and
would offend the reasonable woman,” but that they were not
“so severe as to be expected to seriously affect [Harris’] psychological wellbeing. A
reasonable woman manager under like circumstances would have been offended by
Hardy, but his conduct would not have risen to the level of interfering with that person’s
work performance.
“Neither do I believe that [Harris] was subjectively so offended that she suffered injury . .
. . Although Hardy may at times have genuinely offended [Harris], I do not believe that
he created a working environment so poisoned as to be intimidating or abusive to
[Harris].”
In focusing on the employee’s psychological wellbeing, the District Court was
following Circuit precedent. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620
(CA6 1986), cert. denied, 481 U.S. 1041 (1987). The United States Court of Appeals for
the Sixth Circuit affirmed in a brief unpublished decision.
We granted certiorari to resolve a conflict among the Circuits on whether
conduct, to be actionable as “abusive work environment” harassment (no quid pro quo
harassment issue is present here), must “seriously affect [an employee’s] psychological
wellbeing” or lead the plaintiff to “suffe[r] injury.”
II. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice
for an employer ... to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” As we made clear in Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986), this language “is not limited to “economic”
or “tangible” discrimination. The phrase “terms, conditions, or privileges of
employment” evinces a congressional intent “to strike at the entire spectrum of disparate
treatment of men and women” in employment,” which includes requiring people to work
in a discriminatorily hostile or abusive environment. Id., at 64, quoting Los Angeles Dept.
of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978). When the workplace is
permeated with “discriminatory intimidation, ridicule, and insult,” 477 U.S., at 65 , that is
“sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment,” id., at 67, Title VII is violated.
This standard, which we reaffirm today, takes a middle path between making
actionable any conduct that is merely offensive and requiring the conduct to cause a
tangible psychological injury. As we pointed out in Meritor, “mere utterance of an . . .
epithet which engenders offensive feelings in a employee,” does not sufficiently affect
the conditions of employment to implicate Title VII. Conduct that is not severe or
pervasive enough to create an objectively hostile or abusive work environment - an
environment that a reasonable person would find hostile or abusive - is beyond Title
VII’s purview. Likewise, if the victim does not subjectively perceive the environment to
be abusive, the conduct has not actually altered the conditions of the victim’s
employment, and there is no Title VII violation.
III26
But Title VII comes into play before the harassing conduct leads to a nervous
breakdown. A discriminatorily abusive work environment, even one that does not
seriously affect employees’ psychological wellbeing, can and often will detract from
employees’ job performance, discourage employees from remaining on the job, or keep
them from advancing in their careers. Moreover, even without regard to these tangible
effects, the very fact that the discriminatory conduct was so severe or pervasive that it
created a work environment abusive to employees because of their race, gender, religion,
or national origin offends Title VII’s broad rule of workplace equality. The appalling
conduct alleged in Meritor, and the reference in that case to environments “`so heavily
polluted with discrimination as to destroy completely the emotional and psychological
stability of minority group workers,’” supra, at 66, quoting Rogers v. EEOC, 454 F.2d
234, 238 (CA5 1971), cert. denied, 406 U.S. 957 (1972), merely present some especially
egregious examples of harassment. They do not mark the boundary of what is actionable.
We therefore believe the District Court erred in relying on whether the conduct
“seriously affect[ed] plaintiff’s psychological wellbeing” or led her to “suffe[r] injury.”
Such an inquiry may needlessly focus the factfinder’s attention on concrete psychological
harm, an element Title VII does not require. Certainly Title VII bars conduct that would
seriously affect a reasonable person’s psychological wellbeing, but the statute is not
limited to such conduct. So long as the environment would reasonably be perceived, and
is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be
psychologically injurious.
This is not, and by its nature cannot be, a mathematically precise test. We need
not answer today all the potential questions it raises…. But we can say that whether an
environment is “hostile” or “abusive” can be determined only by looking at all the
circumstances. These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.
The effect on the employee’s psychological wellbeing is, of course, relevant to
determining whether the plaintiff actually found the environment abusive. But, while
psychological harm, like any other relevant factor, may be taken into account, no single
factor is required.
III. Forklift, while conceding that a requirement that the conduct seriously affect
psychological wellbeing is unfounded, argues that the District Court nonetheless
correctly applied the Meritor standard. We disagree. Though the District Court did
conclude that the work environment was not “intimidating or abusive to [Harris],” it did
so only after finding that the conduct was not “so severe as to be expected to seriously
affect plaintiff’s psychological well-beingand that Harris was not “subjectively so
offended that she suffered injury.” The District Court’s application of these incorrect
standards may well have influenced its ultimate conclusion, especially given that the
court found this to be a “close case.”
We therefore reverse the judgment of the Court of Appeals, and remand the case
for further proceedings consistent with this opinion. So ordered.
III27
JUSTICE SCALIA, concurring. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986),
held that Title VII prohibits sexual harassment that takes the form of a hostile work
environment. The Court stated that sexual harassment is actionable if it is “sufficiently
severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an
abusive work environment.’” Id., at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904
(CA11 1982)). Today’s opinion elaborates that the challenged conduct must be severe or
pervasive enough “to create an objectively hostile or abusive work environment - an
environment that a reasonable person would find hostile or abusive.”
“Abusive” (or “hostile,” which in this context I take to mean the same thing) does
not seem to me a very clear standard - and I do not think clarity is at all increased by
adding the adverb “objectively” or by appealing to a “reasonable person’s” notion of
what the vague word means. Today’s opinion does list a number of factors that contribute
to abusiveness, , but since it neither says how much of each is necessary (an impossible
task) nor identifies any single factor as determinative, it thereby adds little certitude. As a
practical matter, today’s holding lets virtually unguided juries decide whether sex-related
conduct engaged in (or permitted by) an employer is egregious enough to warrant an
award of damages. One might say that what constitutes “negligence” (a traditional jury
question) is not much more clear and certain than what constitutes “abusiveness.”
Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those
who have suffered harm, whereas, under this statute “abusiveness” is to be the test of
whether legal harm has been suffered, opening more expansive vistas of litigation.
Be that as it may, I know of no alternative to the course the Court today has taken.
One of the factors mentioned in the Court’s nonexhaustive list - whether the conduct
unreasonably interferes with an employee’s work performance - would, if it were made
an absolute test, provide greater guidance to juries and employers. But I see no basis for
such a limitation in the language of the statute. Accepting Meritor’s interpretation of the
term “conditions of employment” as the law, the test is not whether work has been
impaired, but whether working conditions have been discriminatorily altered. I know of
no test more faithful to the inherently vague statutory language than the one the Court
today adopts. For these reasons, I join the opinion of the Court.
    
(D) Retaliation
Overview: The retaliation cause of action arises when a plaintiff is punished for making
or participating in an anti-discrimination claim against an employer or housing provider
or for opposing discriminatory behavior. The cause of action is necessary to ensure that
people can feel safe asserting their rights under antidiscrimination statutes.
Under Title VII, the retaliation cause of action arises under 42 U.S.C. §2000e-3(a):
(a) Discrimination for making charges, testifying, assisting, or participating in
enforcement proceedings. It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or applicants for employment …
because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.
III28
Similar state statutes include Alaska Stat. §18.80.220 and Fla. Stat. §760.10.
Under the FHA, retaliation claims arise under 42 U.S.C. §3617, which prohibits
interference with fair housing rights. See also Cal. Govt. Code §12955 (expressly
prohibiting retaliation in the housing context).
    
(E) Key Issue #2: Belief/Conduct Issues
The exercise of many religions involves conduct as well as belief. When does
penalizing conduct strongly associated with a particular religion constitute
discrimination because of religion?
When, if ever, should any of the following be permitted, assuming anti-discrimination
laws generally apply, but reasonable accommodations are not required:
(a) A homeowners’ association forbids residents from putting displays or decorations
on the exterior of their units and allows no exceptions for religious holiday
displays or other religious symbols.
(b) A homeowners’ association or landlord forbids residents from proselytizing,
handing out religious literature, or engaging in religious rituals in the common
areas.
(c) A landlord or hotel operator places limitations on use of the premises based on
religious beliefs (e.g., no pork/shellfish; no meat; no alcohol; no graven
images/religious idols).
(d) The operators of a restaurant or movie theater in a neighborhood experiencing
gang violence institute a dress code that excludes most types of hats and jewelry
and allow no exceptions for head coverings or jewelry related to religious
observance.
III29