June 2009
Professor’s Updates
to
CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION
Seventh Edition, 2008
Michael J. Zimmer
Charles A. Sullivan
Rebecca Hanner White
All professors and students using the Casebook are permitted
to download and reproduce these Updates in whole or in part.
Copyright © 2009
Zimmer/Sullivan/White EMPLOYMENT DISCRIMINATION
Updates
June 2009
CHAPTER 1
INDIVIDUAL DISPARATE TREATMENT
B.
THE ELEMENTS OF AN INDIVIDUAL DISPARATE TREATMENT CASE
1. Intent to Discriminate
Page 7, add to end of carryover Note 6, Acting on Stereotypes:
Tying together this scholarship with the holding in Slack, Michael J. Zimmer argues in A Chain of
Inferences Proving Discrimination, 79 COLO. L. REV. 1243, 1279-80 (2008):
[E]vidence of stereotypical thinking supports an ultimate inference of intent to discriminate precisely
because it is an unconscious expression of bias. . . . [Pohasky’s statement] is powerful evidence that
he made his decision as to who would do cleaning based on race. In other words, he may not have
been conscious that his statements reflected bias, but, by being so forthcoming with a statement as to
his actual state of mind that was biased, that statement constituted strong support for a finding of
discriminatory intent.
Page 8, insert at the top of the pagein carryover ¶ in Note 7, The Extent of the Phenomenon
before But see:
See also Gregory Mitchell, Second Thoughts, *** MCGEORGE L. REV. *** (2009),
www.papers.ssrn.com/sol3/papers.cfm?abstract _id=1290243 (“considerable evidence exists that
individuals often naturally engage in self-correction and that situational pressures often encourage
self-correction to overcome biased judgments, decisions, and behavior”); Gregory Mitchell & Philip
E. Tetlock, Facts Do Matter: A Reply to Bagenstos, *** HOFSTRA L. REV. *** (2009),
www.papers.ssrn.com/sol3/papers.cfm?abstract
_id=1324367
(arguing
that
Bagenstos
“misconstrued our scientific arguments and has accepted at face value empirically unsubstantiated
claims about the power of millisecond-reaction-time measures to predict behavior in workplaces”);
Amy L. Wax, The Discriminating Mind: Define It, Prove It, 40 CONN. L. REV. 979, 984–85 (2008)
(while decisions caused by unconscious mental processes are as actionable as those that are the
product of deliberate awareness, it does not follow that discrimination is widespread; even assuming
that tests such as the IAT establish unconsciously biased mental associations, there may not be
unlawful discrimination. “Biased thinking and attitudes, and mental processing of stimuli and
concepts, are not the same as unlawful discrimination.”).
Page 8, add at end of carryover ¶ in carryover Note 7, The Extent of the Phenomonon:
See also David L. Faigman, Nilanjana Dasgupta & Cecilia L. Ridgeway, A Matter of Fit: The Law
of Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1426-27 (2008) (“The
evidence that gender stereotypes often bias assessments of competence and job suitability at an
implicit level does not depend merely on a single measure of implicit bias. Instead, studies using a
variety of measures and techniques have demonstrated the effects of implicit bias on judgments and
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behavior, creating a broad research base that spans several social scientific disciplines including
psychology, sociology, and organizational behavior. As a result, it is a mistake to conflate the
existence of implicit bias with any one measure such as the IAT. By the same token, it is a mistake
to assume that critiques of one particular measure such as the IAT undermine the entire body of
evidence showing the existence of implicit stereotypes and bias and their impact on judgments and
behavior in the workplace.”).
Page 8, add at end of second ¶ of Note 8, Is Unconscious Discrimination an Oxymoron?
David L. Faigman, Nilanjana Dasgupta & Cecilia L. Ridgeway, A Matter of Fit: The Law of
Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1396 (2008) ([A]nyone
who has driven home on "autopilot" intuitively understands that behavior can be ‘intended’
implicitly. . . . “[C]onscious intentionality is not the only way to conceive of motivating factors.
[C]ivil liability is regularly premised on what people should have anticipated before acting but did
not. If people do not have full cognitive access to what motivates their behavior, an employer may
honestly believe that nondiscriminatory reasons led him or her to impose a negative outcome on the
plaintiff, but be wrong about those reasons. An employer could have acted in good faith, yet still
have been motivated by bias or prohibited stereotypes. If implicit biases motivate behavior, the law
might reasonably place a duty on employers to take reasonable measures to ensure against them.
Hence, under an explicit or implicit bias rule, implicit biases are relevant.”).
Page 9, add at end of carryover Note 9, Debiasing:
Other scholars have urged different approaches to dealing with the phenomenon of unconscious
bias. E.g., Franita Tolson, The Boundaries of Litigating Unconscious Discrimination: Firm-Based
Remedies in Response to a Hostile Judiciary, 33 DEL. J. CORP. L. 347 (2008) (exploring (1) firm
responses to potential discrimination litigation in terms of the duty of care owed by high level
management and the board of directors to address both conscious and unconscious discrimination
and (2) firm’s force their business partners to adopt similar initiatives by applying economic
pressure); Jessica Fink, Unintended Consequences: How Antidiscrimination Litigation Increases
Group Bias in Employer-Defendants, 38 N.M.L. REV. 333 (2008) (because lawsuits increase group
bias, changes in how management attorneys approach their representation of employer-defendants,
along with an increased use of alternatives to litigation, are the better approach to reducing
unconscious bias).
2. Terms, Conditions, or Privileges of Employment
Page 14, add in carryover Note 4, But-for Motivation in sixth line from top of page after
…employer wins.
See Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 COLO. L. REV. 1243,
1257 (2008) (“While it is possible that the defendant had only one motivation for its action, it is not
the only possible scenario. Most importantly, a showing of ‘but-for’ linkage can result in liability
Zimmer/Sullivan/White EMPLOYMENT DISCRIMINATION
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without proof that only the employer’s discrimination motivated the employer’s action. In other
words, liability can be made out using the ‘but-for’ test even if some additional reason, such as the
employer’s explanation, played a role it its decision.”).
Page 20, add at end of second bulleted text:
But see Beyer v. County of Nassau, 524 F.3d 160, 164 (2d Cir. 2008) (a reasonable jury could find
that denial of a transfer from a unit that, by objective indications, “had become a disadvantageous
place in which to work” to a unit that, “for an officer pursuing a career in police forensics . . . was
both highly desirable and objectively preferable” was sufficiently adverse to be actionable).
Page 20, add new bullet at end of bulleted list:
● employer left unauthorized absences on plaintiff’s record but assured her that they would
not be used in any disciplinary proceeding. De la Rama v. Ill. Dep't of Human Servs.,
541 F.3d 681 (7th Cir. 2008).
Page 21, after Piercy parenthetical in Note 3, Materiality:
See also Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (denial of merit raise actionable if
discriminatory, even if the denial was later reversed by the employer).
3. Linking Discriminatory Intent to the Employer’s Treatment of Plaintiff
Page 29, add after first ¶ of Note 3, Direct Evidence Not a Perquisite to Motivating Factor
Proof:
See Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 COLO. L. REV. 1243,
1254 (2008)
Page 30, add in Note 5, Back to Costa, in second to last line after “to discharge her”:
See also Decaire v. Mukasey, 530 F.3d 1, 18 (1st Cir. 2008) (“DeCaire is correct that to the extent
the district court’s finding in a mixed motive discrimination case was that there was gender
discrimination, such a finding required it to find liability on the part of the government on any
timely claim; in such a case, it is plaintiff’s remedies, not the employer’s liability, that are limited.”)
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C.
Updates
June 2009
PROVING THE DISCRIMINATION ELEMENT
Page 44, add to end of carryover Note 5, Two Distinct Proof Methods?:
See Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 COLO. L. REV. 1243,
1255–56 (2008) (since all evidence can suffice for both McDonnell Douglas cases and § 703(m)
mixed-motives cases “individual disparate treatment cases can no longer be separated into two
categories based solely on the type of evidence presented. The question remaining is whether there
is some other basis for differentiating individual disparate treatment cases into the previously
recognized categories: one requiring the plaintiff to prove ‘but-for’ linkage, the second requiring the
plaintiff to establish liability by showing that a protected characteristic was ‘a motivating factor’ in
the defendant’s action”).
Page 44, Add after Jackson cite in Note 6, Direct Evidence Is Still Important:
Van Voorhis v. Hillsborough County Bd. of County Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008)
(“Jacobson's alleged statements that he ‘didn't want to hire any old pilots’ and was not going to
interview any of the applicants from the first recruitment period, including Van Voorhis, because he
‘didn't want to hire an old pilot’ are direct evidence of age discrimination. The import of the alleged
statements ‘could be nothing other than to discriminate on the basis of age.’”).
Page 45, add before Fester cite in carryover Note 7, An Evidence Primer:
Pitrolo v. County of Buncombe, 2009 U.S. App. LEXIS 4862, 6-7 (4th Cir. Mar. 11, 2009) (a
statement made by the employer’s director, who was also plaintiff’s supervisor and a member of the
search committee, regarding her application qualified as a non-hearsay a statement offered against
the employer because it was "a statement by the party's agent or servant concerning a matter within
the scope of the agency or employment.");
Page 45, add before but see Barner cite in carryover Note 7, An Evidence Primer:
Simple v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007) (remark by person involved in the
decisionmaking process that a store “was possibly not ready to have a black manager” made
because he would not have been “very happy working there,” was made within the scope of her
employment and therefore admissible; together with another admission to plaintiff by that person
that race played a role in the denial of a promotion, it was direct evidence of discrimination).
Page 45, add after title of Note 8(b), Does the statement show illegitimate considerations?:
Some remarks seem to be pretty obviously pejorative on racial grounds, King v. Hardesty, 517 F.3d
1049, 1059 (8th Cir. 2008) (reversing district court because supervisor’s comment to black teacher
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that teacher in §1981 case—“white people teach black kids . . . better than someone from their own
race”—was “evidence that may be viewed as directly reflecting Hardesty’s alleged discriminatory
attitude”). See also Sanders v. Southwestern Bell Tel., L.P., 544 F.3d 1101 (10th Cir. 2008)
(plaintiff’s testimony that supervisor said she was being discharged because of her age was direct
evidence barring summary judgment for employer since reasonable jury that credited it could
conclude that age caused her discharge).
Page 46, add before But see Putman after extract:
See also Bailey v. USF Holland, Inc., 526 F.3d 880 (6th Cir. 2008) (continued use of the word
“boy” after plaintiffs had objected and after the racial implications had been explained at sensitivity
training sessions was part of a pattern of racial harassment).
Page 47, add at end of Note 9, Expert Testimony on Stereotyping:
See also Susan T. Fiske & Eugene Borgida, Providing Expert Knowledge in an Adversarial
Context: Social Cognitive Science in Employment Discrimination Cases, 4 ANN. REV. L. & SOC.
SCI. *** (2008), papers.ssrn.com/sol3/papers.cfm?abstract_id=1319964. (three established
principles of social cognition are frequently applied in employment discrimination litigation: (1)
dual processes, automatic and controlled, underlie “hidden” bias, exemplified by the IAT; (2)
encoding and attention reveal early bias and may be applied in the courtroom via neuroscience; and
(3) mental construal produces categorical representations which persists despite commonsense
expectations about the impact of individuating information).
Page 49, add before last sentence in first full ¶:
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666 (6th Cir. 2008) (even though senior
managers, not his supervisor, fired plaintiff, their decision was tainted with the discriminatory
animus of the supervisor).
Page 50, add at end of first full ¶:
Clack v. Rock-Tenn Co.,304 Fed. App’x. 399, 405 (6th Cir. 2008). (while upper management knew
of animosity between plaintiff and Murphy and perhaps that Murphy had made racist comments
about plaintiff, that knowledge alone is not sufficient to find that Murphy influenced the ultimate
decision to terminate plaintiff; evidence of an independent investigation upon which the termination
was based “is enough to sterilize the termination from the taint of Murphy’s racial animus”). See
generally Stephen Befort & Alison Olig, Within the Grasp of the Cat’s Paw: Delineating the Scope
of Subordinate Bias Liability Under FederalAntidiscrimination Statutes, 60 S.C. L. Rev. 383, 38687 (2009) (proof that discrimination was a motivating factor in an adverse employment action
should establish liable unless the employer proves either of two affirmative defenses: (1) where the
employer has taken reasonable measures to prevent and correct such bias and the plaintiff
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unreasonably has failed to use the opportunities provided; or (2) where the employer “has dissipated
the taint of subordinate bias by undertaking a fair and independent investigation into the
circumstances underlying the contemplated employment action.”)
Page 56, add in second line from top of carryover Note 3 (a), Not by the Numbers before See
generally:
E.g., Ward v. Int’l Paper Co., 509 F.3d 457, 460 (8th Cir. 2007) (“In cases involving a reduction-inforce (RIF), a plaintiff makes a prima facie case by establishing: (1) he is over 40 years old; (2) he
met the applicable job qualifications; (3) he suffered an adverse employment action; and (4) there is
some additional evidence that age was a factor in the employer’s action.”).
Page 58, add at end of first ¶ in Note 6, The Third Step: Proving Pretext:
Davis-Dietz v. Sears, Roebuck & Co., 284 Fed. App’x. 626 (11th Cir. 2008) (at most plaintiff
established that the policy requiring employees to give notice of arrests did not apply to her, or that
she complied with it by reporting her arrest to herself but she did not show that Sears did not
actually believe its proffered reason or that the real reason she was fired was discriminatory).
Page 61, add at end of Note 10, A Mixed Motive Case?:
Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 COLO. L. REV. 1243, 1257
(2008), argues against characterizing McDonnell Douglas cases as “single motive” cases:
The problem with calling McDonnell Douglas a “single-motive” approach is that demonstrating
“but-for” linkage always involves mixed-motives until the fact finder accepts the employer’s
explanation or finds discrimination. It may continue to involve mixed-motives even if the plaintiff
carries her burden of proving but-for linkage [since a] showing of “but-for” linkage can result in
liability without proof that only the employer’s discrimination motivated the employer’s action. In
other words, liability can be made out using the “but-for” test even if some additional reason, such as
the employer’s explanation, played a role in its decision.
Page 64, add at end of Note 1, Comparators as Proof of Pretext:
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666 (6th Cir. 2008) (discharge for setting
off firecrackers could be found a pretext for discrimination when white workers had engaged in the
same conduct without being fired or even disciplined).
Page 65, add to end of carryover Note 2, Ash as an Equal Treatment Case:
See Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 COLO. L. REV. 1243,
1274 (2008) (“[I]n an important and deep sense, all discrimination cases involve a violation of equal
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treatment. At the broadest, the question is whether the employer treated the plaintiff unfavorably
because of race, creed, sex, religion, national origin, age, disability, or other characteristic protected
against discrimination. Thus, the true issue is whether the employer would have treated the plaintiff
more favorably if she was not within one of those protected classifications. . . . This is so even when
the showing of unequal treatment is not the ultimate question to be determined, but instead is proof
of a fact that supports a chain of inferences leading up to that ultimate question of the
discriminatory intent of the employer.”).
Page 67 add new Note 4(d):
(c) “Unreasonable” Decision vs. Business Judgment. Courts have often recognized that the
more unusual and idiosyncratic a decision is—in terms of the way business is normally
conducted—the more appropriate it is to infer discrimination. This principle is in obvious tension
with what has sometimes be called the “business judgment” rule, which is that courts should not
second-guess business decisions. One illustration of the conflict is White v. Baxter Healthcare
Corp., 533 F.3d 381, 394 (6th Cir. 2008) (2-1), where the majority reaffirmed that “the plaintiff
may also demonstrate pretext by offering evidence which challenges the reasonableness of the
employer’s decision ‘to the extent that such an inquiry sheds light on whether the employer's
proffered reason for the employment action was its actual motivation’” (citation omitted). It went
on:
[O]ur Circuit has never adopted a “business-judgment rule” which requires us to defer to the
employer’s "reasonable business judgment" in Title VII cases. Indeed, in most Title VII cases the
very issue in dispute is whether the employer’s adverse employment decision resulted from an
objectively unreasonable business judgment, i.e., a judgment that was based upon an impermissible
consideration such as the adversely-affected employee's race, gender, religion, or national origin. In
determining whether the plaintiff has produced enough evidence to cast doubt upon the employer's
explanation for its decision, we cannot, as Judge Gilman [in dissent] does, unquestionably accept the
employer's own self-serving claim that the decision resulted from an exercise of “reasonable
business judgment.” Nor can we decide “as a matter of law” that “an employer’s proffered
justification is reasonable.” The question of whether the employer's judgment was reasonable or was
instead motivated by improper considerations is for the jury to consider. . . .
Page 67, add before parenthetical after Crawford cite:
(11th Cir. 2007);
Page 72, add at end of first full ¶:
Fields v. Shelter Mut. Ins. Co., 520 F.3d 859 (8th Cir. 2008) (putative comparators did not suffice:
two were hired directly into a claims supervisor position, unlike the employee who was promoted;
two others had worked for the employer for a longer period than had the plaintiff employee, and one
worked in a different office and reported to a different decision-maker); Gates v. Caterpillar, Inc.,
513 F.3d 680 (7th Cir. 2008) (plaintiff, who was discharged for improper telephone and Internet
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use, was not similarly situated to three male employees who also misused employer's electronic
equipment where they had different supervisor, their conduct was limited to misuse of computers
and did not involve telephone use, and they did not continue to engage in misconduct after being
initially disciplined).
Page 72, add at end of extract:
Jackson v. Fedex Corporate Servs., 518 F.3d 388, 397 (6th Cir. 2008) (“The district court’s narrow
definition of similarly situated effectively removed Jackson from the protective reach of the antidiscrimination laws. [Its] finding that Jackson had no comparables from the six other employees in
the PowerPad project deprived Jackson of any remedy to which he may be entitled under the law.”).
In White v. Baxter Healthcare Corp., 533 F.3d 381, 395 (6th Cir. 2008), the court found a
triable issue of fact. While the employer’s explanation was adequate to carry its burden of
production, it was “self-serving and conclusory,” and had to be viewed in the context of proof that
plaintiff
was
more
qualified
than
his
successful
competitor;
there
was
“sufficient evidence to suggest that Baxter's purported reason for not promoting him -- namely,
Freed's better qualifications for the Regional Manager position -- has no basis in fact, did not
actually motivate Baxter's decision, or is not sufficient to explain its hiring choice.”
Page 72, add at bottom of page before Lidge cite:
Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 ALA.
L. REV. 191 (2009)
Page 74, add at end of page:
Abdullahi v. Prada USA Corp., 520 F.3d 710, 712 (7th Cir. 2008) (favoring the “loose” meaning of
race for §1981 cases for Iranians “especially if they speak English with an Iranian accent,” because,
“though not dark-skinned” they may be “sufficiently different looking and sounding from the
average American of European ancestry to provoke the kind of hostility associated with racism.”).
Page 75, add at end of Note 6, Colorism:
Joni Hersch, Profiling the New Immigrant Worker: The Effects of Skin Color and Height, 26 J.
LABOR ECON. 345 (2008) (immigrants with the lightest skin color earn on average 17 percent higher
wages than comparable immigrants with the darkest skin color, taking into account Hispanic
ethnicity, race, country of birth, education, English language proficiency, family background, and
occupation in the source country); Joni Hersch, Skin Color, Discrimination, and Immigrant Pay, 58
EMORY L. J, 357 (2009) (the penalty to darker skin color is not a spurious consequence of omitted
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variables bias. Instead, discrimination on the basis of skin color is the most likely explanation of the
findings).
Page 76, add at end of carryover Note 8, Relationship-Based Discrimination:
See also Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) (discrimination because a white
man was married to an African-American woman was actionable under Title VII); Ellis v. UPS,
Inc., 523 F.3d 823, 828 (7th Cir. 2008) (recognizing that application of an anti-fraternization policy
more harshly to interracial associations than intraracial ones would be actionable but finding
insufficient proof).
Page 77, add before Mlynczak cite in top line:
Coulton v. Univ. of Pa., 237 Fed. App’x. 741 (3d Cir. 2007) (African-American decisionmakers and
predictions by a manager that a white would have problems working in a department where the
overwhelming majority of his co-workers were African-American did not suffice to prove
discrimination against white plaintiff where he could not show that similarly situated AfricanAmerican employees were treated more favorably);
Page 92, add at end of Note 8(a), Motions to Dismiss:
In Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008), the court applied Twombly to
conclude that plaintiff had sufficiently alleged sex discrimination and that her allegations of
political motivation for the actions taken against her were not sufficient to plead her out of court:
Ms. Tamayo undoubtedly did allege a number of facts in support of her First Amendment claim that
tend to suggest an alternative, non-gender-related motivation for the defendants' actions; however,
this alternative is not mutually exclusive with sex discrimination. . . . Ms. Tamayo does not allege
any facts that establish an “impenetrable defense” to her sex discrimination claim; she merely alleges
facts that ultimately make her success on the merits less likely. Recovery is still plausible under her
complaint.
See generally Joseph Seiner, The Trouble with Twombly: A Proposed Pleading Standard for
Employment
Discrimination
Cases,
***
U.
ILL.
L.
REV,
***
(2009),
papers.ssrn.com/sol3/papers.cfm?abstract_id=1273713 (lower courts dismiss employment cases
after Twombly at an increased rate, but they should be more cautious when using the plausibility
standard to dismiss discrimination claims early in the proceedings).).
Page 92, add at end of Note 8(c), Summary Judgment Motions:
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See also Theodore Eisenberg & Charlotte Lanvers, Summary Judgment Rates Over Time, Across
Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts,
papers.ssrn.com/sol3/papers.cfm?abstract_id=1138373 (civil rights cases had consistently higher
summary judgment rates than other cases, and summary judgment rates were modest in non-civil
rights cases).
D.
IMPLEMENTING DESERT PALACE AND REEVES
Page 101, add in seventh line of Note 1, Desert Palace Applies to ADEA Claims after “different
than Title VII”:
Most other courts have. E.g., Gross v. FBL Fin. Servs., 526 F.3d 356 (8th Cir.), cert granted, 129 S.
Ct. 680 (2008) (direct evidence requirement of Price Waterhouse continues to control ADEA
cases); EEOC v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 164 n.2 (4th Cir. 2004).
Page 105, add at end of carryover Note 3(d), Or Just a Grab-bag?:
See also Ginger v. District of Columbia, 527 F.3d 1340, 1346 (D.C. Cir. 2008) (even though
plaintiffs had “compelling” proof that race played a role in the decision, they “never contended this
was a mixed-motive case, and no reasonable jury could conclude the District's justifications were
pretextual, leaving race as the sole motivation for reorganizing the Unit”); Brady v. Office of the
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (without mentioning Desert Palace, the court
rejected the McDonnell Douglas prima facie case: “Lest there be any lingering uncertainty, we state
the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason for the
decision, the district court need not—and should not—decide whether the plaintiff actually made
out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for
summary judgment or judgment as a matter of law in those circumstances, the district court must
resolve one central question: Has the employee produced sufficient evidence for a reasonable jury
to find that the employer's asserted non-discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the employee on the basis of race, color, religion, sex,
or national origin?”).
Page 106, add at beginning of Note 4, Acadmeic Response to Desert Palace:
Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 U. COL. L. REV. 1243 (2008)
(Direct, direct-lite, or circumstantial evidence (or any combination of the three) can be used to
prove individual disparate treatment discrimination. The variety of methods of proving
discriminatory motivation or intent include straightforward claims of unequal treatment, defendant’s
admissions that it discriminated, actions based on stereotypes, and the McDonnell Douglas
approach whether it is characterized as proof that defendant lied in its assertion of a legitimate,
nondiscriminatory reason for its action, as proof that completely knocks out defendant’s
explanation, or as proof by a process of elimination of the likely nondiscriminatory reasons.);
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Page 106, add a new Note 4.
9.
Intersectionalism. Some cases have explored the phenomenon of “intersectionality,”
when discrimination occurs not because of one protected train (such as race) but rather because of
two (such as race and sex). In Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994),
the court acknowledged that a claim brought by an Asian woman might be based upon multiple
factors: “rather than aiding the decisional process, the attempt to bisect a person’s identity at the
intersection of race and gender will often distort or ignore the particular nature of the plaintiff’s
experiences.” See also Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999) (district court should
consider at trial whether harassment was based on race and religion, because plaintiff was a black
Muslim). See generally Minna J. Kotkin, Diversity and Discrimination: A Look at Complex Bias,
*** WILL. & MARY L. REV. ***(2009), SSRN (“Despite the common sense notion that the more
different a worker is, the most likely she will encounter bias, empirical evidence shows that multiple
claims—which may account for more than 50% of federal court discrimination actions—have even
less chance of success than single claims. [This is in part because] the more complex the claimant's
identity, the wider the evidentiary net must be cast to find relevant comparative, statistical and
anecdotal evidence”); D. Aaron Lacy, The Most Endangered Title VII Plaintiff?: Exponential
Discrimination Against Black Males, 86 NEB. L. REV. 552 (2008); Nicole Buonocore Porter, Sex
Plus Age Discrimination: Protecting Older Women Workers, 81 DENV. U.L. REV. 79 (2003).
Page 107, add after parenthetical after Waldron cite in third ¶:
But see Fitzgerald v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008) (“Under different
circumstances, the remarks attributed to Easley might create an inference of discrimination. In this
instance, however, they are insufficient to overcome the presumption created by the fact Action
hired Fitzgerald at age fifty” when it fired him at 52).
Page 108, add at end of first full paragraph:
See also Natasha T. Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains
Discrimination in the Contemporary Workplace, 40 CONN. L. REV. 1117, 1121 (2008) (“[T]he
same-actor principle constitutes an untenable analytical paradigm that fails to comport with the
realities of the contemporary American workplace, specifically, its complexities in structural,
cultural and managerial terms.”).
Page 108, replace entire Same Supervisor discussion with:
SPRINT/UNITED MANAGEMENT CO. v. MENDELSOHN
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128 S. Ct. 1140 (2008)
JUSTICE THOMAS delivered the opinion of the Court.
In this age discrimination case, the District Court excluded testimony by nonparties alleging
discrimination at the hands of supervisors of the defendant company who played no role in the
adverse employment decision challenged by the plaintiff. The Court of Appeals, having concluded
that the District Court improperly applied a per se rule excluding the evidence, engaged in its own
analysis of the relevant factors under Federal Rules of Evidence 401 and 403, and remanded with
instructions to admit the challenged testimony. We granted certiorari on the question whether the
Federal Rules of Evidence required admission of the testimony. We conclude that such evidence is
neither per se admissible nor per se inadmissible. Because it is not entirely clear whether the
District Court applied a per se rule, we vacate the judgment of the Court of Appeals and remand for
the District Court to conduct the relevant inquiry under the appropriate standard.
I
Respondent Ellen Mendelsohn was employed in the Business Development Strategy Group
of petitioner Sprint/United Management Company (Sprint) from 1989 until 2002, when Sprint
terminated her as a part of an ongoing company-wide reduction in force. . . .
In support of her claim [of age discrimination], Mendelsohn sought to introduce testimony
by five other former Sprint employees who claimed that their supervisors had discriminated against
them because of age. Three of the witnesses alleged that they heard one or more Sprint supervisors
or managers make remarks denigrating older workers. One claimed that Sprint's intern program was
a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor
considered age in making layoff decisions. Another witness was to testify that he had been given an
unwarranted negative evaluation and "banned" from working at Sprint because of his age, and that
he had witnessed another employee being harassed because of her age. The final witness alleged
that Sprint had required him to get permission before hiring anyone over age 40, that after his
termination he had been replaced by a younger employee, and that Sprint had rejected his
subsequent employment applications.
None of the five witnesses worked in the Business Development Strategy Group with
Mendelsohn, nor had any of them worked under the supervisors in her chain of command. . . report
hearing discriminatory remarks by [supervisors in that chain of command].
Sprint moved in limine to exclude the testimony, arguing that it was irrelevant to the central
issue in the case: whether Reddick terminated Mendelsohn because of her age. See Fed. Rules Evid.
401, 402. Sprint claimed that the testimony would be relevant only if it came from employees who
were "similarly situated" to Mendelsohn in that they had the same supervisors. Sprint also argued
that, under Rule 403, the probative value of the evidence would be substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay.
In a minute order, the District Court granted the motion, excluding, in relevant part,
evidence of "discrimination against employees not similarly situated to plaintiff." In clarifying that
Mendelsohn could only "offer evidence of discrimination against Sprint employees who are
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similarly situated to her," the court defined "' [s]imilarly situated employees,' for the purpose of this
ruling, [as] requir[ing] proof that (1) Paul Ruddick [sic] [plaintiff’s direct supervisor] was the
decision-maker in any adverse employment action; and (2) temporal proximity." Beyond that, the
District Court provided no explanation of the basis for its ruling. As the trial proceeded, the judge
orally clarified that the minute order was meant to exclude only testimony "that Sprint treated other
people unfairly on the basis of age," and would not bar testimony going to the "totally different"
question "whether the [reduction in force], which is [Sprint's] stated nondiscriminatory reason, is a
pretext for age discrimination."
The Court of Appeals for the Tenth Circuit treated the minute order as the application of a
per se rule that evidence from employees with other supervisors is irrelevant to proving
discrimination in an ADEA case. Specifically, it concluded that the District Court abused its
discretion by relying on Aramburu v. Boeing Co., 112 F.3d 1398 (CA10 1997). . Aramburu held
that "[s]imilarly situated employees," for the purpose of showing disparate treatment in employee
discipline, "are those who deal with the same supervisor and are subject to the same standards
governing performance evaluation and discipline." The Court of Appeals viewed that case as
inapposite because it addressed discriminatory discipline, not a company-wide policy of
discrimination. The Court of Appeals then determined that the evidence was relevant and not
unduly prejudicial, and reversed and remanded for a new trial. We granted certiorari to determine
whether, in an employment discrimination action, the Federal Rules of Evidence require admission
of testimony by nonparties alleging discrimination at the hands of persons who played no role in the
adverse employment decision challenged by the plaintiff.
II
The parties focus their dispute on whether the Court of Appeals correctly held that the
evidence was relevant and not unduly prejudicial under Rules 401 and 403. We conclude, however,
that the Court of Appeals should not have engaged in that inquiry. Rather, as explained below, we
hold that the Court of Appeals erred in concluding that the District Court applied a per se rule.
Given the circumstances of this case and the unclear basis of the District Court's decision, the Court
of Appeals should have remanded the case to the District Court for clarification.
A
In deference to a district court's familiarity with the details of the case and its greater
experience in evidentiary matters, courts of appeals afford broad discretion to a district court's
evidentiary rulings. This Court has acknowledged:
A district court is accorded a wide discretion in determining the admissibility of evidence under the
Federal Rules. Assessing the probative value of [the proffered evidence], and weighing any factors
counseling against admissibility is a matter first for the district court's sound judgment under Rules
401 and 403 . . . .
United States v. Abel, 469 U.S. 45, 54 (1984). This is particularly true with respect to Rule 403
since it requires an "on-the-spot balancing of probative value and prejudice, potentially to exclude
as unduly prejudicial some evidence that already has been found to be factually relevant." 1 S.
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Childress & M. Davis, Federal Standards of Review § 4.02, p. 4-16 (3d ed. 1999). Under this
deferential standard, courts of appeals uphold Rule 403 rulings unless the district court has abused
its discretion. See Old Chief v. United States, 519 U.S. 172, 183, n.7 (1997).
Here, however, the Court of Appeals did not accord the District Court the deference we have
described as the "hallmark of abuse-of-discretion review." General Elec. Co. v. Joiner, 522 U.S.
136, 143 (1997). Instead, it reasoned that the District Court had "erroneous[ly] conclu[ded] that
Aramburu controlled the fate of the evidence in this case."
To be sure, Sprint in its motion in limine argued, with a citation to Aramburu's categorical
bar, that "[e]mployees may be similarly situated only if they had the same supervisor," and the
District Court's minute order mirrors that blanket language.
But the District Court's discussion of the evidence neither cited Aramburu nor gave any
other indication that its decision relied on that case. . . . Contrary to the Court of Appeals'
conclusion, [this order includes] no analysis suggesting that the District Court applied a per se rule
excluding this type of evidence. . . .
When a district court's language is ambiguous, as it was here, it is improper for the court of
appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing
the district court to clarify its order is generally permissible and would have been the better
approach in this case.
B
In the Court of Appeals' view, the District Court excluded the evidence as per se irrelevant,
and so had no occasion to reach the question whether such evidence, if relevant, should be excluded
under Rule 403. The Court of Appeals, upon concluding that such evidence was not per se
irrelevant, decided that it was relevant in the circumstances of this case and undertook its own
balancing under Rule 403. But questions of relevance and prejudice are for the District Court to
determine in the first instance. Rather than assess the relevance of the evidence itself and conduct its
own balancing of its probative value and potential prejudicial effect, the Court of Appeals should
have allowed the District Court to make these determinations in the first instance, explicitly and on
the record.1 See Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (When a district court "fail[s]
to make a finding because of an erroneous view of the law, the usual rule is that there should be a
remand for further proceedings to permit the trial court to make the missing findings"). With respect
to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in
the better position to assess the admissibility of the evidence in the context of the particular case
before it.
1
The only exception to this rule is when "the record permits only one resolution of the factual
issue." Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982). The evidence here, however, is not of
that dispositive character.
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We note that, had the District Court applied a per se rule excluding the evidence, the Court
of Appeals would have been correct to conclude that it had abused its discretion. Relevance and
prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a
particular case, and thus are generally not amenable to broad per se rules. See Advisory
Committee's Notes on Fed. Rule Evid. 401, 28 U.S.C. App., p. 864 ("Relevancy is not an inherent
characteristic of any item of evidence but exists only as a relation between an item of evidence and
a matter properly provable in the case"). But, as we have discussed, there is no basis in the record
for concluding that the District Court applied a blanket rule.
III
The question whether evidence of discrimination by other supervisors is relevant in an
individual ADEA case is fact based and depends on many factors, including how closely related the
evidence is to the plaintiff's circumstances and theory of the case. Applying Rule 403 to determine
if evidence is prejudicial also requires a fact-intensive, context-specific inquiry. Because Rules 401
and 403 do not make such evidence per se admissible or per se inadmissible, and because the
inquiry required by those Rules is within the province of the District Court in the first instance, we
vacate the judgment of the Court of Appeals and remand the case with instructions to have the
District Court clarify the basis for its evidentiary ruling under the applicable Rules. . . .
NOTES
1.
Procedural Detour. Mendelsohn was a much-awaited opinion since the question of
the limits of what the defense bar derisively calls “me too” evidence had been roiling the circuits.
Indeed, the Tenth Circuit itself apparently required the same supervisor for one kind of case—
disparate discipline, as in Aramburu v. Boeing Co., 112 F.3d 1398(10th Cir. 1997)—and rejected it
in another kind of case—discrimination in a reduction in force like Sprint’s.
The Supreme Court avoided passing on the admissibility in the abstract. In every case, the
determination will be contextual, taking into account the normal requirements of Fed. R. Evid. 401
(relevance) and 403 (undue prejudice). Further, the determination will be made by the trial court
and reviewed only under the highly deferential abuse of discretion standard. As a practical matter,
this means that “me too” evidence will largely disappear from the radar screen, becoming less a
question of “law” than a question of how a particular district court views the evidence. In
Mendelsohn itself on remand, only if the district court were to announce that it had applied a per se
rule would there be any meaningful chance of review; even then it is unlikely that the Tenth Circuit
would find abuse of discretion if the trial court relied heavily on the chance of unfair prejudice.
Early commentary on Mendelsohn can be found by Professors Mitchell Rubenstein, Paul
Secunda, & David Gregory at 102 NW. U. L. REV. COLLOQUY 264, 374, 382, 387 (2008), available
at http://www.law.northwestern.edu/lawreview/colloquy/prior-colloquies.html.
2.
Was the Supreme Court Right? Most evidence mavens seem to view Mendelsohn as
a pretty straightforward application of the rules of evidence and those of allocation of power
between trial and appellate courts.
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3.
Relevance. The foundational principle of evidence law is that evidence must be
relevant to be admissible. That’s Rule 401. From a relevance standpoint, Sprint claimed that any
discrimination by other supervisors was simply irrelevant to the question at issue: did plaintiff’s
supervisor pick her for discharge because of her age? If the intent of a single individual is the
touchstone, isn’t that right? If A and B are each separate decision makers, how could the fact that B
discriminated show that A did? Is that still true even if there is some umbrella policy that allowed
each of them freedom to make decisions? See Mattenson v. Baxter Healthcare Corp., 438 F.3d 763,
770-71 (7th Cir. 2006) (in a division of 7,000 employees with hundreds of executives, the fact that
some may dislike old workers and even fire old workers because of their age is weak evidence that a
particular older employee was fired because of his age; absent proof of a pervasive culture of
prejudice, such evidence may be excluded under Rule 403, although it not reversible error to admit
it).
There are two related responses. The more technical one is that relevance is a pretty low
standard: something is relevant if makes the fact at issue more or less likely to any extent at all. If
it’s possible that a supervisor would feel freer to discriminate if others were so acting, then the
actions of others would be admissible (at least if they happened before the challenged action and the
supervisor knew about them). A more nuanced variation on this theme views the whole focus on
“insular individualism” as inconsistent with how workplaces operate in practice, with any particular
decision being influenced by a web of other decisions and practices, sometimes influencing
individual actors in ways they do not themselves understand. Tristin Green, Insular Individualism:
Employment Discrimination Law After Ledbetter v. Goodyear, 43 HARV. C.R-C.L. L. REV. 353
(2008).
4.
Prejudice. Even relevant evidence may be excluded if it’s unduly prejudicial. That’s
Rule 403: “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Thus, a low level of relevance may not be sufficient to justify admission of evidence if it is likely to
prejudice the jury. Isn’t there a real danger that a jury would punish Sprint for being a “bad
employer” if all this evidence were admitted, even if the decision as to Mendelsohn herself was not
discriminatory?
5.
Disparate Discipline. Recall that the Tenth Circuit had excluded “me too” evidence
in cases of disparate discipline; in order to bring such a case, Aramburu v. Boeing Co. required that
the plaintiff compare her discipline to that meted out by the same supervisor to others for similar
misconduct in order to establish discrimination. Is that wrong after Mendelsohn? Another way to
ask the question is whether the question is one of evidence or more substantive. Much of what we
studied in this chapter is when evidence is sufficient to infer discrimination. That’s surely relevant
to relevance! But maybe cases such as Aramburu are better viewed as saying that particular
evidence, even if admissible, is not sufficient – by itself, at least – to infer discrimination.
6.
Future Cases. While there will not be any per se rule as to “me too” evidence, the
issue will arise in many litigated cases. Make the argument that such evidence should have been
admitted by the district court in Mendelsohn itself. Now make the arguments for Sprint.
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Page 109, add at end of last full ¶:
Ramlet v. E.F. Johnson Co., 507 F.3d 1149 (8th Cir. 2007) (one and five years’ age difference was
insufficient to establish a prima facie case).
Page 110, add in first line before Stella cite:
Vincent v. Brewer Co., 514 F.3d 489, 491 (6th Cir. 2007) (“To establish a prima facie case of
gender discrimination, however, a plaintiff who can prove that she was replaced by a member of the
opposite sex need not show that she possesses qualifications similar to those of her replacement.”);
Page 111, add at end of carryover ¶:
C. Elizabeth Hirsh, Settling for Less? Organizational Determinants of DiscriminationCharge Outcomes, 42 L. & SOC’Y REV. 239 (2008) (reporting a number of findings, including that
complainants alleging race discrimination are less likely to prevail as compared to those alleging
sex discrimination, perhaps because of the prevalence of harassment claims for sex discrimination);
Laura Beth Nielsen et al., Contesting Workplace Discrimination in Court: Characteristics and
Outcomes of Federal Employment Discrimination Litigation 1987-2003,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1293784 (defendants are more likely to win at
trial (58% to 24%) than plaintiffs, and judges are twice as likely to find for defendant as juries;
although the EEOC typically does not make a finding and when it does, is rarely likely to find for
plaintiff, plaintiffs are more likely to both prevail and settle when there is a favorable agency
finding).
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CHAPTER 2
SYSTEMIC DISPARATE TREATMENT DISCRIMINATION
C.
PATTERNS AND PRACTICES OF DISCRIMINATION
Page 121, add before last sentence in carryover Note 4, A BFOQ?:
Even for pilots subject to FAA rules, the age 60 limit was moved to 65 by new legislation. Pub.
L. 110-135 (2007).
Page 121, add at end of Note 5, Does Discrimination Require Animus?:
You might want to reconsider the question of animus in light of Kentucky Retirement
System. v. EEOC, 128 S.Ct. 2361 (2008). Although the case is reproduced in full at p. *** of this
Update, a 5-4 majority of the Court held that a benefit scheme that facially differentiated on the
basis of age was not necessarily impermissible, wholly without reference to any statutory
exception. The dissent leaned heavily on Manhart in viewing the decision as very wrong.
Page 154, add at end of last full ¶
A recent article, D. James Greiner, Causal Inference in Civil Rights Litigation, 122
HARV. L. REV. 534 (2008), argues that multiple regression analysis should be rejected in favor
of a “potential outcomes” approach, which is similar to the but-for standard of causation used in
torts and elsewhere. This approach asks the expert to decide what treatment the employees would
have received if they were of the opposite sex or race and compares that with the treatment they
actually received. It requires the expert to determine what characteristics the employees had that
were relevant to employment before the employer perceived their race or sex or were clearly
independent of manipulation by the employer.
D.
DEFENSES TO DISPARATE TREATMENT CASES
1.
Rebutting the Inference of Discriminatory Intent
Page 167, add at end of first full ¶:
See also Tristin K. Green & Alexandra Kalev, Discrimination-Reducing Measures at the
Relational Level, 59 HASTINGS L.J. 1435, 1435 (2008) (discrimination-reducing measures should
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be broadened to address the relational sources of discrimination—social interactions and
relations at work that operate to reinforce stereotypes and bias).
Page 167, add at end of page:
See also Franita Tolson, The Boundaries of Litigating Unconscious Discrimination: Firm-Based
Remedies in Response to a Hostile Judiciary, 33 DEL. J. CORP. L. 347 (2008) (firms that have
been previously exposed to extensive employment discrimination litigation use their market
power to force their smaller competitors to adopt a new diversity norm, which Delaware law then
memorializes in its case law, thus “transitioning the norm into a rule of law enforceable through
the duty to monitor (a species of the duties of care and loyalty)”).
2.
Bona Fide Occupational Qualifications
Page 183, add before Kim Shayo Buchanan cite in carryover Note 4, BFOQ Based on
Privacy:
But see Henry v. Milwaukee County, 539 F.3d 573, 581 (7th Cir. 2008) (sex-based shift
assignments in juvenile corrections facility violated the statute when the employer could not
establish that it was impossible to “rearrange job responsibilities to eliminate or minimize the
conflict between the inmates' privacy, security and rehabilitation interests and the employees’
rights under Title VII).
3.
Voluntary Affirmative Action
Page 200, add new Note:
6.
Is Avoiding Disparate Impact Permissible? In Ricci v. Destefano, 530 F.3d 87 (2d
Cir. 2008), cert. granted, 172 L. Ed. 2d 768 (2009), the employer administered a civil service
test for promotions in its fire department. The results showed a disparate impact against
minorities, leading the city to invalidate the test and refuse to make any promotions based on it.
White firefighters sued under both Title VII and the Equal Protection Clause claiming that the
decision was racially motivated. The district court, and a badly divided Second Circuit, found
that there was no actionable conduct: the need to avoid practices with a disparate impact justified
the city’s action. The Supreme Court’s grant of certiorari promises an important decision on this
question.
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Page 204, add after Petit citation in second full ¶:
See also Martinez v. City of St. Louis, 539 F.3d 857, 860-861 (8th Cir. 2008) (denying any
monetary relief in a reverse discrimination suit when the actions of the city were taken pursuant
to a constitutionally valid degree).
Page 204, add before Lomack citation in second full ¶:
Rothe Dev. Corp. v. DOD, 545 F.3d 1023, 1040 (Fed. Cir. 2008) (“we will hold in any event that
[six statistical] studies do not provide a substantially probative and broad-based statistical
foundation necessary for the ‘strong basis in evidence’ that must be the predicate for nationwide,
race-conscious action”) ;
Page 204, add at end of second to last full ¶:
See also Angela Onwuachi-Willig, Emily Houh & Mary Campbell, Cracking the Egg: Which
Came First—Stigma or Affirmative Action?, 96 CAL. L. REV. 1299 (2009), (an empirical study
of students at seven state law schools showing “1) minimal, if any, internal stigma felt by
minority law students, regardless of whether their schools practiced race-based affirmative
action; 2) no statistically significant difference in internal stigma between minority students at
affirmative action law school and non-affirmative action law schools; and 3) no significant
impact from external stigma”).
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CHAPTER 3
SYSTEM DISPARATE IMPACT DISCRIMINATION
A.
THE CONCEPT OF DISPARATE IMPACT
Page 228, add at end of first ¶ of Note 1, Rehashing an Old Title VII Debate:
However, there continue to be debates about this under the ADEA even after, as we will see it
became clear that the disparate impact theory applies under that statute. See EEOC v. Allstate
Ins. Co., 528 F.3d 1042 (8th Cir. 2008) (no rehire policy for former agents was more like a
employment practice than like a hiring practice under the provisions of the ADEA paralleling
(a)(1) and (a)(2).
Page 229, add at end of second ¶ of Note 3, What Policy Produced the Impact?:
See Allen v. Highlands Hosp. Corp., 545 F.3d 387, 404 (6th Cir. 2008) (“the plaintiffs have at
best alleged that HHC desired to reduce costs associated with its highly paid workforce,
including those costs associated with employees with greater seniority. But the plaintiffs have
not established that this corporate desire evolved into an identifiable practice that
disproportionately harms workers who are at least 40 years old”)
Page 229, add at end of Note 3, What Policy Produced the Impact?:
See also Jonah B. Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When
Does it Make Sense to Pay Too Little?, *** U. CHI. L. REV. *** (2009),
http://papers.ssrn.com/sol3/paper.cfm?abstract_id=1263931 (employer’s can, either intentionally
or not, use fringe benefit structures that sort employees by race and sex “as long as groups
systematically differ in their preferences for various employment terms and conditions” in ways
that regulators will find hard to prevent”).
Page 230, delete second ¶ of Note 6; renumber Notes 7, 8, 9 as 6, 7, 8;
Page 231, add new principal cases at end of section:
MEACHAM v. KNOLLS ATOMIC POWER LABORATORY
128 S.Ct. 2395 (2008)
JUSTICE SOUTER delivered the opinion of the Court.
A provision of the Age Discrimination in Employment Act of 1967 (ADEA) creates an
exemption for employer actions "otherwise prohibited" by the ADEA but "based on reasonable
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factors other than age" (RFOA). § 623(f)(1). The question is whether an employer facing a
disparate-impact claim and planning to defend on the basis of RFOA must not only produce
evidence raising the defense, but also persuade the factfinder of its merit. We hold that the
employer must do both.
I
The National Government pays private companies to do some of the work maintaining
the Nation's fleet of nuclear-powered warships. One such contractor is respondent KAPL, Inc.
(Knolls), the operator of the Government's Knolls Atomic Power Laboratory, which has a history
dating back to the first nuclear-powered submarines in the 1940s and 1950s. The United States
Navy and the Department of Energy jointly fund Knolls's operations, decide what projects it
should pursue, and set its annual staffing limits. In recent years, Knolls has been charged with
designing prototype naval nuclear reactors and with training Navy personnel to run them.
The demands for naval nuclear reactors changed with the end of the Cold War, and for
fiscal year 1996 Knolls was ordered to reduce its work force. Even after a hundred or so
employees chose to take the company's ensuing buyout offer, Knolls was left with thirty-some
jobs to cut. Petitioners (Meacham, for short) are among those laid off in the resulting
"involuntary reduction in force." In order to select those for layoff, Knolls told its managers to
score their subordinates on three scales, "performance," "flexibility," and "critical skills."2 2 The
scores were summed, along with points for years of service, and the totals determined who
should be let go.
Of the 31 salaried employees laid off, 30 were at least 40 years old.3 Twenty-eight of
them sued, raising both disparate-treatment (discriminatory intent) and disparate-impact
(discriminatory result) claims under the ADEA and state law, alleging that Knolls "designed
and implemented its workforce reduction process to eliminate older employees and that,
regardless of intent, the process had a discriminatory impact on ADEA-protected employees." To
show a disparate impact, the workers relied on a statistical expert's testimony to the effect that
results so skewed according to age could rarely occur by chance;4 and that the scores for
"flexibility" and "criticality," over which managers had the most discretionary judgment, had the
firmest statistical ties to the outcomes.
2
The "performance" score was based on the worker's two most recent appraisals. The "flexibility" instruction read:
"Rate the employee's flexibility within the Laboratory. Can his or her documented skills be used in other
assignments that will add value to current or future Lab work? Is the employee retrainable for other Lab
assignments?" The "critical skills" instruction read: "How critical are the employee's skills to continuing work in the
Lab? Is the individual's skill a key technical resource for the [Naval Reactors] program? Is the skill readily
accessible within the Lab or generally available from the external market?" (emphasis in original).
3
For comparison: after the voluntary buyouts, 1,203 out of 2,063 salaried workers (or 58%) were at least 40 years
old; and of the 245 who were at risk of involuntary layoff, and therefore included in the rankings scheme, 179 (or
73%) were 40 or over.
4
The expert cut the data in different ways, showing the chances to be 1 in 348,000 (based on a population of all
2,063 salaried workers); 1 in 1,260 (based on a population of the 245 workers at risk of layoff); or 1 in 6,639 (when
the analysis was broken down by sections of the company).
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The jury found for Meacham on the disparate-impact claim (but not on the disparatetreatment claim). The Court of Appeals affirmed [in Meacham I], after examining the verdict
through the lens of the so-called "burden shifting" scheme of inference spelled out in Wards Cove
Packing Co. v. Atonio, [but the Supreme Court vacated for reconsideration light of City of
Jackson. On remand in Meacham II, the Second Circuit this time found in favor of Knolls; it
held] its prior ruling "untenable" because it had applied the Wards Cove "business necessity"
standard rather than a "reasonableness" test, contrary to City of Jackson; and on the latter
standard, Meacham, the employee, had not carried the burden of persuasion. In dissent, Judge
Pooler took issue with the majority for confusing business justifications under Wards Cove with
the statutory RFOA exemption, which she read to be an affirmative defense with the burden of
persuasion falling on defendants. 461 F.3d, at 147, 149-152. [The Court again granted certiorari
on this question, although it denied certiorari on the question of whether a “practice of conferring
broad discretionary authority upon individual managers to decide which employees to lay off
during a reduction in force constituted a 'reasonable factor other than age' as a matter of law," and
the Court expressed no views on that question.]
II
A
The ADEA's general prohibitions against age discrimination, 29 U.S.C. §§ 623(a)-(c),
(e), are subject to a separate provision, § 623(f), creating exemptions for employer practices
"otherwise prohibited under subsections (a), (b), (c), or (e)." The RFOA exemption is listed in §
623(f) alongside one for bona fide occupational qualifications (BFOQ): "It shall not be unlawful
for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c), or (e) .
. . where age is a bona fide occupational qualification reasonably necessary to the normal
operation of the particular business, or where the differentiation is based on reasonable factors
other than age . . . ." § 623(f)(1).
Given how the statute reads, with exemptions laid out apart from the prohibitions (and
expressly referring to the prohibited conduct as such), it is no surprise that we have already
spoken of the BFOQ and RFOA provisions as being among the ADEA's "five affirmative
defenses," Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122 (1985). After looking at the
statutory text, most lawyers would accept that characterization as a matter of course, thanks to
the familiar principle that "[w]hen a proviso . . . carves an exception out of the body of a statute
or contract those who set up such exception must prove it." Javierre v. Central Altagracia, 217
U.S. 502, 508, (1910) (opinion for the Court by Holmes, J.). That longstanding convention is part
of the backdrop against which the Congress writes laws, and we respect it unless we have
compelling reasons to think that Congress meant to put the burden of persuasion on the other
side.
We have never been given any reason for a heterodox take on the RFOA clause's nearest
neighbor, and our prior cases recognize that the BFOQ clause establishes an affirmative defense
against claims of disparate treatment. See, e.g., City of Jackson; Western Air Lines, Inc. We have
likewise given the affirmative defense construction to the exemption in the Equal Pay Act of
1963 for pay differentials based on "any other factor other than sex," Corning Glass Works v.
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Brennan, 417 U.S. 188, 196 (1974) (internal quotation marks omitted); and there, we took
account of the particular weight given to the interpretive convention already noted, when
enforcing the Fair Labor Standards Act of 1938 (FLSA). This focus makes the principle of
construction the more instructive in ADEA cases: "[i]n enacting the ADEA, Congress exhibited
both a detailed knowledge of the FLSA provisions and their judicial interpretation and a
willingness to depart from those provisions regarded as undesirable or inappropriate for
incorporation," Lorillard v. Pons, 434 U.S. 575, 581 (1978). And we have remarked and relied
on the "significant indication of Congress' intent in its directive that the ADEA be enforced in
accordance with the 'powers, remedies, and procedures' of the FLSA." Id., As against this
interpretive background, there is no hint in the text that Congress meant § 623(f)(1) to march out
of step with either the general or specifically FLSA default rules placing the burden of proving
an exemption on the party claiming it.
With these principles and prior cases in mind, we find it impossible to look at the text and
structure of the ADEA and imagine that the RFOA clause works differently from the BFOQ
clause next to it. . . .
If there were any doubt, the stress of the idiom "otherwise prohibited," prefacing the
BFOQ and RFOA conditions, would dispel it. [The Court then recounted how, in an earlier
ADEA case involving employee benefit plans, Employees Retirement System of Ohio v. Betts,
492 U.S. 158 (1989), where it had read the provision at issue not to be an affirmative defense
only to have Congress enacting the Older Workers Benefit Protection Act, Pub. L. 101-433, 104
Stat. 978, avowedly to "restore the original congressional intent" that the ADEA's benefits
provision be read as an affirmative defense, § 101.] What is instructive on the question at hand is
that, in clarifying that § 623(f)(2) specifies affirmative defenses, Congress not only set the
burden in so many words but also added the phrase "otherwise prohibited" as a part of the
preface (just as in the text of § 623(f)(1)).11 Congress thus confirmed the natural implication that
we find in the "otherwise prohibited" language in § 623(f)(1): it refers to an excuse or
justification for behavior that, standing alone, violates the statute's prohibition. The amendment
in the aftermath of Betts shows that Congress understands the phrase the same way we naturally
read it, as a clear signal that a defense to what is "otherwise prohibited" is an affirmative defense,
entirely the responsibility of the party raising it.
B
Knolls ventures that, regardless, the RFOA provision should be read as mere elaboration
on an element of liability. Because it bars liability where action is taken for reasons "other than
11
Congress surely could not have meant this phrase to contradict its express allocation of the burden, in the same
amendment. But that would be the upshot of Knolls's suggestion that the only way to read the word "otherwise" as
not redundant in the phrase "otherwise prohibited under subsection (a), (b), (c), or (e)" is to say that the word must
refer only to § 623(f)(1) itself, implying that § 623(f)(1) must be a liability-creating provision for which the burden
falls on the plaintiff. Besides, this argument proves too much, for it implies that even the BFOQ exemption is not an
affirmative defense.
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age," the argument goes, the provision must be directed not at justifying age discrimination by
proof of some extenuating fact but at negating the premise of liability under § 623(a)(2),
"because of age."
The answer to this argument, however, is City of Jackson, where we confirmed that the
prohibition in § 623(a)(2) extends to practices with a disparate impact, inferring this result in part
from the presence of the RFOA provision at issue here. We drew on the recognized distinction
between disparate-treatment and disparate-impact forms of liability, and explained that "the very
definition of disparate impact" was that "an employer who classifies his employees without
respect to age may still be liable under the terms of this paragraph if such classification adversely
affects the employee because of that employee's age." (plurality opinion); id. (SCALIA, J.,
concurring in part and concurring in judgment) (expressing agreement with "all of the Court's
reasoning" in the plurality opinion, but finding it a basis for deference to the EEOC rather than
for independent judicial decision). We emphasized that these were the kinds of employer
activities, "otherwise prohibited" by § 623(a)(2), that were mainly what the statute meant to test
against the RFOA condition: because "[i]n disparate-impact cases . . . the allegedly 'otherwise
prohibited' activity is not based on age," it is "in cases involving disparate-impact claims that the
RFOA provision plays its principal role by precluding liability if the adverse impact was
attributable to a nonage factor that was 'reasonable.'" (plurality opinion).
Thus, in City of Jackson, we made it clear that in the typical disparate-impact case, the
employer's practice is "without respect to age" and its adverse impact (though "because of age")
is "attributable to a non-age factor"; so action based on a "factor other than age" is the very
premise for disparate-impact liability in the first place, not a negation of it or a defense to it. The
RFOA defense in a disparate-impact case, then, is not focused on the asserted fact that a non-age
factor was at work; we assume it was. The focus of the defense is that the factor relied upon was
a "reasonable" one for the employer to be using. Reasonableness is a justification categorically
distinct from the factual condition "because of age" and not necessarily correlated with it in any
particular way: a reasonable factor may lean more heavily on older workers, as against younger
ones, and an unreasonable factor might do just the opposite.13
III
13
The factual causation that § 623(a)(2) describes as practices that "deprive or tend to deprive . . . or otherwise
adversely affect [employees] . . . because of . . . age" is typically shown by looking to data revealing the impact of a
given practice on actual employees. See, e.g., City of Jackson (opinion of the Court); cf. Wards Cove Packing Co. v.
Atonio, (under Title VII, "specific causation" is shown, and a "prima facie case" is "establish[ed]," when plaintiff
identifies a specific employment practice linked to a statistical disparity); Watson v. Fort Worth Bank & Trust
(plurality opinion) (in Title VII cases, "statistical disparities must be sufficiently substantial that they raise . . . an
inference of causation").
This enquiry would be muddled if the value, "reasonableness," were to become a factor artificially boosting
or discounting the factual strength of the causal link, or the extent of the measured impact. It would open the door to
incoherent undershooting, for example, if defendants were heard to say that an impact is "somewhat less correlated
with age, seeing as the factor is a reasonable one"; and it would be overshooting to make them show that the impact
is "not correlated with age, and the factor is reasonable, besides."
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The Court of Appeals majority rejected the affirmative defense reading and arrived at its
position on the burden of proof question by a different route: because it read our decision in City
of Jackson as ruling out the so-called "business necessity" enquiry in ADEA cases, the court
concluded that the RFOA defense "replaces" it and therefore must conform to its burden of
persuasion resting on the complaining party. But the court's premise (that City of Jackson
modified the "business necessity" enquiry) is mistaken; this alone would be reason enough to
reject its approach. And although we are now satisfied that the business necessity test should
have no place in ADEA disparate-impact cases, we agree with the Government that this
conclusion does not stand in the way of our holding that the RFOA exemption is an affirmative
defense. . . .
Although City of Jackson contains the statement that "Wards Cove's pre-1991 interpretation
of Title VII's identical language remains applicable to the ADEA," City of Jackson made only
two specific references to aspects of the Wards Cove interpretation of Title VII that might have
"remain[ed] applicable" in ADEA cases. One was to the existence of disparate-impact liability,
which City of Jackson explained was narrower in ADEA cases than under Title VII. The other
was to a plaintiff-employee's burden of identifying which particular practices allegedly cause an
observed disparate impact, which is the employee's burden under both the ADEA and the pre1991 Title VII. Neither of these references, of course, is at odds with the view of RFOA as an
affirmative defense.
If, indeed, City of Jackson's reference to Wards Cove could be read literally to include
other aspects of the latter case, beyond what mattered in City of Jackson itself, the untoward
consequences of the broader reading would rule it out. One such consequence is embraced by
Meacham, who argues both that the Court of Appeals was wrong to place the burden of
persuasion for the RFOA defense on the employee, and that the court was right in thinking that
City of Jackson adopted the Wards Cove burden of persuasion on what Meacham views as one
element of an ADEA impact claim. For Meacham takes the position that an impact plaintiff like
himself has to negate business necessity in order to show that the employer's actions were
"otherwise prohibited"; only then does the RFOA (with the burden of persuasion on the
employer) have a role to play. To apply both tests, however, would force the parties to develop
(and the court or jury to follow) two overlapping enquiries: first, whether the employment
practice at issue (based on a factor other than age) is supported by a business justification; and
second, whether that factor is a reasonable one. Depending on how the first enquiry proceeds, a
plaintiff might directly contest the force of the employer's rationale, or else try to show that the
employer invoked it as a pretext by pointing (for example) to alternative practices with less of a
disparate impact. See Wards Cove ("first, a consideration of the justifications an employer offers
for his use of these practices; and second, the availability of alternative practices to achieve the
same business ends, with less racial impact"). But even if the plaintiff succeeded at one or the
other, in Meacham's scheme the employer could still avoid liability by proving reasonableness.
Here is what is so strange: as the Government says, "[i]f disparate-impact plaintiffs have
already established that a challenged practice is a pretext for intentional age discrimination, it
makes little sense then to ask whether the discriminatory practice is based on reasonable factors
other than age." (emphasis in original). Conversely, proving the reasonableness defense would
eliminate much of the point a plaintiff would have had for showing alternatives in the first place:
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why make the effort to show alternative practices with a less discriminatory effect (and besides,
how would that prove pretext?), when everyone knows that the choice of a practice relying on a
"reasonable" non-age factor is good enough to avoid liability?14 At the very least, developing the
reasonableness defense would be substantially redundant with the direct contest over the force of
the business justification, especially when both enquiries deal with the same, narrowly specified
practice. It is not very fair to take the remark about Wards Cove in City of Jackson as requiring
such a wasteful and confusing structure of proof.
Nor is there any good way to read the same line from City of Jackson as implying that the
burden of proving any business-related defense falls on the plaintiff; most obviously, this would
entail no longer taking the BFOQ clause to be an affirmative defense, which City of Jackson
confirmed that it is. What is more, City of Jackson could not have had the RFOA clause in mind
as "identical" to anything in Title VII (for which a Wards Cove's reading might be adopted), for
that statute has no like-worded defense. And as Wards Cove did not purport to construe any
statutory defenses under Title VII, only an over-reading of City of Jackson would find lurking in
it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA
(never mind one that Title VII does not have).
IV
As mentioned, where City of Jackson did get help from our prior reading of Title VII was
in relying on Wards Cove to repeat that a plaintiff falls short by merely alleging a disparate
impact, or "point[ing] to a generalized policy that leads to such an impact." City of Jackson. The
plaintiff is obliged to do more: to "isolat[e] and identif[y] the specific employment practices that
are allegedly responsible for any observed statistical disparities." Ibid. (quoting Wards Cove).
The aim of this requirement, as City of Jackson said, is to avoid the "result [of] employers being
potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances.'"
(quoting Wards Cove). And as the outcome in that case shows, the requirement has bite: one
sufficient reason for rejecting the employees' challenge was that they "ha[d] done little more than
point out that the pay plan at issue [was] relatively less generous to older workers than to
younger workers," and "ha[d] not identified any specific test, requirement, or practice within the
pay plan that ha[d] an adverse impact on older workers." City of Jackson.
Identifying a specific practice is not a trivial burden, and it ought to allay some of the
concern raised by Knolls's amici, who fear that recognizing an employer's burden of persuasion
on an RFOA defense to impact claims will encourage strike suits or nudge plaintiffs with
marginal cases into court, in turn inducing employers to alter business practices in order to avoid
being sued. It is also to the point that the only thing at stake in this case is the gap between
production and persuasion; nobody is saying that even the burden of production should be placed
14
See City of Jackson ("While there may have been other reasonable ways for the City to achieve its goals, the one
selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the
employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry
includes no such requirement").
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on the plaintiff. And the more plainly reasonable the employer's "factor other than age" is, the
shorter the step for that employer from producing evidence raising the defense, to persuading the
factfinder that the defense is meritorious. It will be mainly in cases where the reasonableness of
the non-age factor is obscure for some reason, that the employer will have more evidence to
reveal and more convincing to do in going from production to persuasion.
That said, there is no denying that putting employers to the work of persuading
factfinders that their choices are reasonable makes it harder and costlier to defend than if
employers merely bore the burden of production; nor do we doubt that this will sometimes affect
the way employers do business with their employees. But at the end of the day, amici's concerns
have to be directed at Congress, which set the balance where it is, by both creating the RFOA
exemption and writing it in the orthodox format of an affirmative defense. We have to read it the
way Congress wrote it.
[The Court remanded for a determination of whether the outcome would be different
when the burden of proving RFOA was placed on the employer.]
[JUSTICE BREYER took no part in the case, and JUSTICE SCALIA, concurred because of he
deference he thought due to the EEOC’s view that the RFOA provision “is an affirmative
defense on which the employer bears the burden of proof, and that, in ADEA disparate-impact
suits, “that provision replaces the business-necessity test of Wards Cove Packing Co. v. Atonio.”
JUSTICE THOMAS, concurring in part and dissenting in part, reaffirmed his position in City of
Jackson that disparate-impact claims are not cognizable under the ADEA; he further disagreed
with the Court that the RFOA exception “is principally relevant in disparate-impact cases.” He
concurred, however, because “I agree that the RFOA exception is an affirmative defense--when
it arises in disparate-treatment cases.”]
NOTES
1.
Jury trial. You might have noticed that the jury made the determination of
disparate impact in Meacham. That is because the ADEA does not distinguish between judge
and jury trials on the basis of the theory being litigated. In Title VII cases, however, disparate
impact is for the judge to decide. See Note 9, p. 265.
2.
The Significance of the Decision. Meacham resolves two questions: the burden of
proof issue on RFOA and the relationship of RFOA to business necessity. City of Jackson had
left both questions up in the air. Meacham takes a plaintiff-friendly reading of the first question,
but the significance of its answer to the second question is less clear. On principle, the substance
of the rule would seem to be the more important issue: although the placement of burdens of
persuasion can affect the outcome of close cases, the standard actually applied is more important
to all cases. Meacham, like City of Jackson, was greeted by many as a plaintiff-oriented decision.
Are you so sure it is?
3.
Comparing the Standards. Under Wards Cove, assuming plaintiffs proved an
employment practice had a disparity of impact, defendant would have had to put into evidence its
business necessity. At that point, plaintiff would have to bear the burden of persuasion that (1)
the practice didn’t “serve[], in a significant way, the legitimate employment goals of the
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employer” or (2) other practices “without a similarly undesirable” age effect would be “equally
effective” in meeting the employer’s legitimate interests. See. p. 218.
That burden is now out the window: plaintiff need not prove anything beyond the impact.
Rather, the defendant must prove that the practice is a reasonable factor other than age. But what
makes a factor “reasonable”? Is it that it serves the employer’s legitimate goals? In a significant
way? And what about alternative business practices? Is a practice nevertheless “reasonable” if it
serves legitimate goals even though another equally effective alternative would also do so?
The only thing that seems clear after Meacham is that, whatever the problems with the
business necessity defense, the RFOA defense is even vaguer. Of course, if RFOA essentially
recapitulates Wards Cove–style business necessity analysis under another name, the decision will
be plaintiff-friendly because Meacham will have shifted the burden on that issue from plaintiff to
defendant. But if the notion of “reasonableness” is less demanding than showing a business
necessity (which seems likely linguistically), the net result will be fewer successful ADEA
disparate impact cases.
B.
THE STRUCTURE IF DISPARATE IMPACT LAW AFTER THE 1991 CIVIL
RIGHTS ACT
1.
Plaintiff’s Proof of a Prima Facie Case
a.
A particular employment practice
Page 236, in line 3 of Note 5, Volitional Exception, replace SSRN cite for Siegelman article
with:
Contributory Disparate Impacts in Employment Discrimination Law, 49 WM. & MARY L. REV.
515, 568 (2007) (“not all disparities are the same: there are some instances in which plaintiffs
could eliminate or reduce disparities at a reasonable cost to themselves. When this is possible,
the law should encourage them to do so”);
Page 242, add at end of Note 3, Choice of Labor Market as a Particular Employment
Practice:
EEOC v. Allstate Ins. Co., 528 F.3d 1042 (8th Cir. 2008) (no rehire policy of former agents
could be analyzed by looking to the (1) the total number of employees subject to the rehire
policy ages forty and older to the total number of employees under forty who were subject to the
rehire policy; (2) the employees subject to the rehire policy with Allstate 's overall workforce;
and (3) the average age of employees subject to the rehire policy with those not subject to the
policy, i.e., the rest of Allstate 's general workforce).
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Page 244, add at end of Note 6, Incapable of Separation for Analysis:
McClain v. Lufkin Indus., 519 F.3d 264, 279 (5th Cir. 2008) (no error in analyzing several
employment practices as one where the seniority system was subject to considerable managerial
discretion, as was the treatment of absenteeism).
Page 245, add new Note:
8A. Is Disparate Impact Constitutional? In Ricci v. Destefano, 530 F.3d 87 (2d Cir.
2008), cert. granted, 172 L. Ed. 2d 768 (2009), the employer, the City of New Haven,
administered a civil service test for promotions in its fire department. The results showed a
disparate impact against minorities, leading the city to invalidate the test and refuse to make any
promotions based on it. White firefighters sued under both Title VII and the Equal Protection
Clause, claiming that the decision was racially motivated. The district court, and a badly divided
Second Circuit, found that there was no actionable conduct: the need to avoid practices with a
disparate impact justified the city’s action.
The case has enormous potential significance at the Supreme Court. The predicate of
disparate impact liability is, of course, a disparate racial impact; if taking into account a test’s
impact (or potential impact) were to be held impermissible under the Equal Protection Clause,
the disparate impact theory would effectively be abrogated for public employers. Further, the
question would arise whether, even as to private employers, Title VII is constitutional to the
extent it authorizes the disparate impact theory or permits affirmative action plans. See Sullivan,
The World Turned Upside Down, Note 8 supra.
Page 253, add at end of carryover ¶:
See Joseph Gastwirth & Weiwen Miao, Formal Statistical Analysis of the Data in Disparate
Impact Cases Provides Sounder Inferences than the Government’s “Four-Fifths” Rule:
Examining
the
Statistical
Evidence
in
Ricci
v.
DeStephano,
http://papers.ssrn.com/sol3/paper.cfm?abstract_id=1381293 (demonstrating that use of the 4/5ths
rule instead of a test of statistical significance will mean more frequent errors with respect to
whether such tests have a disparate impact; in Ricci itself, “while the Lieutenant exam had a
disparate impact, the differences in the pass rates of the three groups on the Captain exam were
not close to statistical significance. “)
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2.
Defendant’s Options
b.
Business necessity and job relation
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Page 263, add before IBEW cite in Note 4, The Business Necessity Standard and Lanning II:
Shollenbarger v. Planes Moving & Storage, 297 Fed. App’x. 483 (6th Cir. 2008) (while a prima
facie case was established by the employer's decision to confine reduction in force to femaleheavy departments and not male-heavy ones, employer had legitimate business justification for
selecting those departments for RIF, because they dealt directly with customers and were more
affected by declining business while predominantly male departments were staffed largely with
seasonal workers who had already left at end of peak summer season);
Page 266, add a new Note 15:
15. There has recently been renewed debate concerning the application of the disparate
impact theory to state licensing requirements. Direct suits against the licensing agencies because
their practices had a disparate impact on racial grounds have been uniformly unsuccessful. E.g.,
Haddock v. Board of Dental Exam'rs, 777 F.2d 462 (9th Cir.1985); Fields v. Hallsville Indep.
Sch. Dist., 906 F.2d 1017 (5th Cir.1990); George v. New Jersey Bd. of Veterinary Med. Exam’rs,
794F.2d 113 (3d Cir.1986). Until recently, the major exception to this is where the requirements
are imposed by a state agency that the court views as essentially an employer because its rules
apply only to public, as opposed to private, schools. Association of Mexican American Educators
v. California, 231 F.3d 572, 582 (9th Cir. 2000) (en banc) (state agency had an indirect
employment relationship based on "the state's high level of involvement in the operation of local
public schools").
Recently, however, the Second Circuit held that a city board of education would have to
validate a test with a disparate impact even though the test was required by state law for
“permanent” city teachers. Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361 (2d Cir. 2006), cert.
denied, 128 S.Ct. 732 (2008). The argument can be framed as whether Title VII preempts state
law that would require discrimination in employment by the use of practices with a disparate
impact. See 42 U.S.C. § 2000e-7 (“This title does not affect any law of any State or political
subdivision “other than any such law which purports to require or permit the doing of any act
which would be an unlawful employment practice” under Title VII). See the debate between
Professors Masinter and Bagenstos on Workplace Prof Blog, December 5. 2007.
http://lawprofessors.typepad.com/laborprof_blog/2007/12/masinter-on-gul.html
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CHAPTER 4:
THE INTERRELATION OF THE THREE THEORIES
OF DISCRIMINATION
A.
THE INTERRELATIONSHIP OF INDIVIDUAL AND SYSTEMIC DISPARATE
TREATMENT
Page 298, add in Note 3, Why Isn’t Baylie a Systemic Case? before Celestine cite:
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967 (11th Cir. 2008);
Page 298, in Note 3, Why Isn’t Baylie a Systemic Case?, delete citation to Cox.
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CHAPTER 5:
SPECIAL PROBLEMS IN APPLYING TITLE VII, SECTION 1981
AND THE ADEA
A.
COVERAGE OF TITLE VII, SECTION 1981 AND THE ADEA
Page 326, add in Note 7, Integrated Enterprises and Joint Employers after Iverson cite:
Garrett-Woodberry v. Miss. Bd. of Pharm., 200 Fed. App’x. 389 (5th Cir. 2008). (the “single
employer” test should not be applied to a state agency; even were it applied, the Board of
Pharmacy could not be properly aggregated with other Mississippi state agencies when there was
no evidence of centralized control of labor relations and the Board made autonomous decisions
concerning its employees, including hiring, transfers, promotions, discipline, and discharges).
Page 327, add in Note 8, Interns and Volunteers, before York cite:
Fichman v. Media Ctr., 512 F.3d 1157, 1160 (9th Cir. 2008) (members of a board of directors
were not employees; they each have full-time jobs independent of Media Center, and are not
compensated by Media Center. Neither the travel reimbursement nor the food supplied at Board
meetings rises to the level of compensation);
Page 327, add in Note 10, Federal Government before Overton cite:
Walch v. Adjutant General’s Dep’t of Texas, 533 F.3d 289 (5th Cir. 2008) (when military and
civilian duties are entangled, a plaintiff may not raise Title VII claims even as to otherwise
actionable civilian employment); Willis v. Roche, 256 Fed. App’x. 534 (3d Cir. 2007) (same);
Page 328, add at end of Note 11, Extraterritorial Effect:
See generally Kathy Roberts, Correcting Culture: Extraterritoriality and U.S. Employment
Discrimination Law, 24 HOFSTRA LAB. & EMP. L.J. 295 (2007).
Page 328, add in Note 12, Creative Applications before Association cite:
Salamon v. Our Lady of Victory Hosp., 514 F.3d 217 (2d Cir. 2008) (hospital exercised
substantial control not only over the treatment outcomes of a physician with clinical privileges
but also of the details and methods of her work, timing of procedures, and her choices about
which medications to prescribe, to create a fact question as to whether an employee-employer
relationship existed);
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Page 329, add at end of carryover ¶ in Note 13, Exemptions:
Makky v. Chertoff, 541 F.3d 205 (3d Cir. 2008) (a mixed-motive plaintiff fails to establish a
prima facie case if there is unchallenged objective evidence that he did not possess the bare
minimum qualifications for the position he sought to obtain or retain; like a license, a security
clearance is a basic qualification for some jobs).
Page 329, add after However in third line from the bottom:
One circuit has held this language reaches local governments, Federation of African Am.
Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996) (concluding 1991 amendments to
§1981 imply a cause of action against state actors), but most circuit courts have held to the
contrary. McGovern v. City of Phila.,554 F.3d 114 (3rd Cir. 2009).; Bolden v. City of Topeka,
441 F.3d 1129 (10th Cir. 2006); Oden v. Oktibbeha County, 246 F.3d 458 (5th Cir. 2001); Butts
v. County of Volusia, 222 F.3d 891 (11th Cir. 2000); Dennis v. County of Fairfax, 55 F.3d 151
(4th Cir. 1995). These courts rely on Jett v. Dallas Independent Sch. Dist., 491 U.S. 701 (1989),
in which the Supreme Court held a plaintiff must use the remedial provisions of 42 U.S.C. §1983
to enforce §1981. In turn, §1983 does not authorize suit against the states at all, Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 63 (1989), and §1983 suits against local governments are
circumscribed by a web of immunities. Jett predated the Civil Rights Act of 1991 and, therefore,
arguably was legislatively overruled by that statute’s addition of paragraph (c) to §1981.
However, the courts holding against §1981 as an independent source of rights against state and
local government discrimination have found paragraph (c) to be insufficiently clear to overrule
Jett.
C.
SEX DISCRIMINATION
1.
Discrimination “Because of Sex”
Page 336, add at beginning of Note 6, Academic Commentary:
Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment "Because of Sex",
79 U. COLO. L. REV. 1151, 1154–55 (2008) (many group behaviors, such as bullying “occur
with the conscious or unconscious motivation of reinforcing gender norms in the workplace or
punishing those who do not conform to those norms.”);
a.
Discrimination because of sexual orientation
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Page 343, add at end of Note 2, Distinguishing Sexual Orientation from Sex Stereotyping:
See generally L. Camille Hebert, Transforming Transsexual and Transgender Rights, 15 WILL.
& MARY J. OF WOMEN & L. *** (2009) (the term sex should be defined more broadly than courts
have seen fit to do with respect to sexual minorities, to extend protection not only on biological
status but gender-linked traits, including gender identity). See also Zachary A. Kramer,
Heterosexuality and Title VII, 103 NW. U. L. REV. *** (2009) (although the conventional
wisdom is that heterosexual employees do not face discrimination on the basis of their sexual
orientation, society tends not to think of heterosexuals as having a sexual orientation; courts are
therefore unable to see when an employee's sex discrimination claim implicates her
heterosexuality. As a result, heterosexual employees are simply not at risk of losing their sex
discrimination claims because of their sexual orientation).
Page 345, add after citation for extract:
See also Witt v. Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008) (2-1) (in assessing a
challenge to the military’s Don’t Ask, Don’t Tell policy after Lawrence, “when the government
attempts to intrude upon the personal and private lives of homosexuals, in a manner that
implicates the rights identified in Lawrence, the government must advance an important
governmental interest, the intrusion must significantly further that interest, and the intrusion must
be necessary to further that interest. In other words, for the third factor, a less intrusive means
must be unlikely to achieve substantially the government’s interest.”).
b.
“Reverse discrimination” and “personal relationships”
Page 347, add in first full paragraph before Green cite:
Forrest v. Brinker Int’l Payroll Co., LP, 511 F.3d 225, 229 (1st Cir. 2007) (“In cases involving a
prior failed relationship between an accused harasser and alleged victim, reasoning that the
harassment could not have been motivated by the victim’s sex because it was instead motivated
by a romantic relationship gone sour establishes a false dichotomy. Presumably the prior
relationship would never have occurred if the victim were not a member of the sex preferred by
the harasser, and thus the victim’s sex is inextricably linked to the harasser’s decision to
harass.”).
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Discrimination because of pregnancy
Page 361, add at end of carryover Note 3, Proving Discrimination:
While discrimination against pregnancy is generally impermissible, accommodation of
pregnancy, childbirth, or child care is not required. Even if these principles make sense in the
abstract, the real world can generate situations where the dividing line is difficult to discern,
and some commentators have stressed that sex discrimination can often be found. Joan C.
Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who are
Discriminated Against on the Job, 26 HARV. WOMEN'S L.J. 77 (2003); Laura T. Kessler,
Keeping Discrimination Theory Front and Center in the Discourse Over Work and Family
Conflict, 34 PEPP. L. REV. 313 (2007). See also Joanna L. Grossman & Gillian Thomas,
Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based
Model, 19 YALE J. L. & FEMINISM *** (2009) (focusing on “the predicament of women in
physically demanding fields whose work capacity is partially diminished by pregnancy,” the
authors suggest litigation strategies for maximizing their rights, including reframing the
"similarly situated" analysis for disparate treatment challenges to light-duty policies, and
exploring use of the disparate impact theory in the light-duty context.)
The cases are increasingly upholding such claims. E.g., Chadwick v. WellPoint, Inc.,
561 F.3d 38, 46-47 (1st Cir. 2009) (“Given what we know about societal stereotypes regarding
working women with children, we conclude that a jury could reasonably determine that a sexbased stereotype was behind Miller's explanation to Chadwick that, ‘It was nothing you did or
didn't do. It was just that you're going to school, you have the kids and you just have a lot on
your plate right now.’ Particularly telling is Miller's comment that, ‘It was nothing you did or
didn't do.’ After all, the essence of employment discrimination is penalizing a worker not for
something she did but for something she simply is.”); Gerving v. Opbiz, LLC, 2009 U.S. App.
LEXIS 9156 (9th Cir. Apr. 29, 2009) (plaintiff created triable issue of discrimination when she
showed a deterioration of her performance reviews after she became stepmother and her
supervisor her that working moms could not perform as well as men or women without
children, that mothers should stay at home, and that she would have to choose between
motherhood and her job).
Page 361, add at beginning of Note 6, Contraception and Other Health Plan Issues:
The PDA protects against discrimination not only account of pregnancy but also on account of
“childbirth and related medical conditions.” As a result, Title VII bars discrimination based on a
woman having an in vitro procedure, Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008) (“Although
infertility affects both men and women, Hall claims she was terminated for undergoing a medical
procedure—a particular form of surgical impregnation—performed only on women on account
of their childbearing capacity. Because adverse employment actions taken on account of
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childbearing capacity affect only women, Hall has stated a cognizable sex-discrimination
claim”), or an abortion, Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358 (3d Cir. 2008) (Title VII
protects a woman from discrimination because she had had an abortion; temporal proximity
between discharge and plaintiff’s notification that she would have an abortion satisfied prima
facie case of sex discrimination).
Page 369, add at end of breakout Note on the Family and Medical Leave Act:
Title VII, unlike the FMLA, does not require maternity leave; however, the interaction of
the two statutes may prohibit discrimination against such leave under the FMLA. In Orr v. City
of Albuquerque, 531 F.3d 1210, (10th Cir. 2008), the two female plaintiffs were required to use
their sick leave before taking FMLA leave. They claimed that other workers were allowed to use
FMLA leave without exhausting their sick leave, and the court agreed that a showing that “other
employees seeking FMLA leave for purposes unrelated to a pregnancy were routinely allowed to
use vacation or compensatory time” would establish a violation.
2.
Sexual and Other Discriminatory Harassment
Page 375, add before El-Hakeem cite in last ¶:
Tademy v. Union Pac. Corp., 520 F.3d 1149 (10th Cir. 2008) (a life-size noose hung prominently
in an outside area of the workplace when coupled with racist graffiti on plaintiff’s locker and on
restroom walls and racist cartoons posted on company billboards as well as racist reference may
be sufficiently pervasive to violate Title VII).
a.
Severe or pervasive harassment
Page 379, add in first full ¶ of carryover Note 1, How Bad Is Bad Enough?, before McKinnis
cite:
Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008) (even absent touching, sexual advances,
or overtly sexual comments, a manager’s repeatedly staring at his subordinate’s breasts could
constitute actionable harassment);
Page 379, add in second full ¶ of carryover Note 1, How Bad Is Bad Enough?, before
LeGrand cite:
Hensman v. City of Riverview, 2009 U.S. App. LEXIS 4869, 11-13 (6th Cir. 2009) (incidents
were, even collectively, insufficiently severe or pervasive, including plaintiff’s supervisor: 1)
hugging her three times; 2) twice making comments to her about being "voluptuous"; 3) said he
was not listening to her because he was distracted by her beauty; 4) walking too closely behind
her; 5) closing the door when he met with her in his office; 6) telling her she looked cute in her
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pajamas; 7) bringing her flowers and bagels to apologize for disturbing her the previous night; 8)
complimenting her perfume; and 9) grabbing her by the arm when she tried to leave.);
Page 379, add at end of Note 1, How Bad Is Bad Enough before Juliano article:
Ladd v. Grand Trunk Western R.R., 552 F.3d 495, 501 (6th Cir. 2009) (where no actual touching
took place and plaintiff testified to only one specific incident of a sex- or race-based epithet
directed at her, a “total lack of specificity” as to other verbal abuse directed at her justified
summary judgment for the employer despite evidence of other epithets—"lesbian," "dyke," and
"gay"—that were not directed at her).
Page 380, add at end of Note 4, Non-Targeted Harassment:
See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008) (even if not
directed at a female employee, daily fare of a sex-themed radio show could satisfy the “based
on” element in a sexual harassment hostile work environment case when it resulted in continuous
conversation and jokes relating to sexual anatomy, masturbation, and female pornography and
discussed in a manner more degrading to women than men); Patane v. Clark, 508 F.3d 106 (2d
Cir. 2007) (sexual harassment claim stated as to professor’s watching of pornographic video
tapes even though plaintiff, his secretary, did not see them when her complaint alleged she
regularly observed the professor viewing pornographic videos and she had to handle such videos
while opening and delivering his mail; the mere presence of pornography in the workplace can
alter the status of women)..
Further, when harassment is targeted at the plaintiff, harassment of other women may be
relevant to establishing that the conduct was actionable. After recognizing that its precedents
permitted the factfinder to “consider similar acts of harassment of which a plaintiff becomes
aware during the course of his or her employment, even if the harassing acts were directed at
others or occurred outside of the plaintiff's presence,” Hawkins v. Anheuser-Busch, Inc., 517
F.3d 321, 336 (6th Cir. 2008), went on:
The degree to which a past act of harassment is relevant to the determination of whether a
plaintiff's work environment is hostile is a fact-specific inquiry that requires courts to determine
the relevancy of past acts on a case-by-case basis. In general, however, the appropriate weight to
be given a prior act will be directly proportional to the act’s proximity in time to the harassment
at issue in the plaintiff’s case. The further back in time the prior act occurred, in other words, the
weaker the inference that the act bears a relationship to the current working environment. On the
other hand, more weight should be given to acts committed by a serial harrasser if the plaintiff
knows that the same individual committed offending acts in the past. This is because a serial
harrasser left free to harass again leaves the impression that acts of harassment are tolerated at the
workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively
hostile.
Id. at 336-37. See also Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008) (district court erred in
refusing to consider affidavits of plaintiff’s female co-workers regarding harassment merely
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because it was not experienced firsthand by plaintiff; evidence that her coworkers experienced
treatment similar to that claimed by the plaintiff could lend credence to her mistreatment claims,
show the harassment was pervasive, or support a finding that she was treated poorly by
coworkers because of her sex, and not some other reason).
d.
Vicarious liability
Page 393, add at end of last full ¶:
Kerri Lynn Stone, Consenting Adults?: Why Women Who Submit to Supervisory Sexual
Harassment Are Faring Better in Court than Those Who Say No ... and Why They Shouldn’t, 20
YALE J.L. & FEMINISM 25 (2008) (exploring the tension between holding women responsible for
their choice to delay reporting and not holding them responsible for their choice to submit to
sexual advances).
Page 409, add at end of page:
An employer may learn of harassment by means other than the victim’s complaint. It
would seem that this would trigger the duty to promptly correct harassment, but not all courts
agree. See Chaloult v. Interstate Brands Corp., 540 F.3d 64 (1st Cir. 2008) (2-1) (the fact that
many acts of harassment occurred in front of a second supervisor, and the employer’s policy
required all supervisors to report harassment, did not mean the employer had notice of the
conduct as a matter of law since to so hold would discourage employers from adopting such
policies).
Page 410. add before first sentence in carryover Note 5, Prong (1)(b): Reasonable Steps to
Correct Harassment:
Delay in responding to complaints, even if the ultimate response is adequate, can be fatal to the
affirmative defense. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 483 (5th Cir. 2008)
(evidence indicating that the employer had notice of the harassment as much as two or three
months before it commenced its investigation required the denial of summary judgment to an
employer on its affirmative defense).
Page 410. add after Baldwin cite in carryover Note 5, Prong (1)(b): Reasonable Steps to
Correct Harassment:
Thornton v. Fed. Express Corp., 530 F.3d 451, 457 (6th Cir. 2008) (when employer’s
investigation did not corroborate harassment, the employer’s offer to transfer plaintiff to a
different supervisor satisfied its responsibility to take reasonable steps to correct any harassment
that may have occurred). See also Adams v. O'Reilly Auto., Inc., 538 F.3d 926 (8th Cir. 2008)
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(employer’s requirement of a witness to corroborate the harassment did not bar the affirmative
defense).
Page 411, add at the end of carryover Note 6, Requests for Confidentiality:
See also Kerri Lynn Stone, License to Harass: Holding Defendants Accountable for Retaining
Recidivist Harassers, 41 AKRON L. REV. 1059, 1062 (2008) (the affirmative defense should not
be established where the plaintiff has sustained otherwise actionable harm without the
opportunity to report it before it occurred, and where the employer situated a known harasser as
that victim's supervisor).
Page 411, add in Note 7, Prong 2, Did the Employee Act Unreasonably? at end of first
sentence:
Chapman v. Carmike Cinemas, 307 Fed. App’x. 164, 170 (10th Cir. 2009). (because plaintiff
presented evidence that she immediately reported a sexual assault by her supervisor, the
employer failed to establish the second element of the Ellerth/Faragher affirmative defense for
respondeat superior liability).
Page 411, add in Note 7, Prong 2, Did the Employee Act Unreasonably? before Wyatt cite:
See also Monteagudo v. Asociacion de Empleados del Estado Libre Asociado554 F.3d 164 (1st
Cir. 2009). (a jury could find plaintiff’s failure to report harassment reasonable when the harasser
was close friends with the director of human resources to whom she should have reported under
the employer’s policy).
Page 411, add at end of Note 7, Prong 2, Did the Employee Act Unreasonably?:
See generally Margaret E. Johnson, “Avoiding Harm Otherwise”: Reframing Women
Employees’ Responses to the Harms of Sexual Harassment, 80 TEMP. L. REV. 743 (2007)
(explaining the difficulties of proving that the employee reported the harassment in a timely
manner and attempting to resuscitate the “avoid harm otherwise” component of the affirmative
defense).
Suppose the employee does complain to a supervisor. If nothing is done, is her failure to
complain to others also identified by the employer’s policy unreasonable? See Lauderdale v. Tex.
Dep’t of Crim. Justice, 512 F.3d 157 (5th Cir. 2007) (in §1983 suit, a correctional officer’s
failure to make second complaint about sexual harassment by warden after her immediate
supervisor refused to act on her first complaint established that prong of the affirmative defense).
See also Brenneman v. Famous Dave's of Am., Inc., 507 F.3d 1139, 1145–46 (8th Cir. 2007)
(plaintiff failed to take advantage of preventive opportunities by not cooperating with the Human
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Resources person who offered to transfer her to a nearby restaurant while he dealt with her
allegations).
Page 411, add at end of Note 8, Fears of Retaliation:
Nevertheless, other circuits have agreed that generalized fear of retaliation should not suffice to
justify a delay in reporting. Pinkerton v. Colo. Dep’ of Transp., 563 F. 3d 1052 (10th Cir. 2009).
(a generalized fear did not justify a two or three month delay in reporting sexual harassment).
Page 412, add in Note 9, Law Changing Norm? before Hebert cite:
Scott A. Moss & Peter H. Huang, How the New Economics Can Improve Discrimination Law,
and How Economics Can Survive the Demise of the “Rational Actor,”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1368493 (courts should recognize the
reasonableness victims of harassment not complaining due to learned helplessness and because
the endowment effect and loss aversion explain reluctance to upset even a bad status quo);
Page 413, add at end of carryover ¶ in Note 10, Both Prongs of the Affirmative Defense Must
be Satisfied:
See generally Kerri Lynn Stone, License to Harass, 41 AKRON L. REV. 1059 (2008) (examining
whether an employer may avoid liability for a single incident of rape even though it is reported
immediately by the victim)
Page 413, add before Bombaci cite in last full ¶:
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841 (7th Cir. 2008) (racial harassment by coworker not actionable absent proof that the employer was negligent; while co-worker was
plaintiff “‘supervisor’ in colloquial sense,” he did not have authority to hire, fire, promote,
demote, discipline or transfer him);
Page 415, add after Id cite in first line after extract:
See generally Noah Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and
the Disaggregation of Discriminatory Intent
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1338870 (exploring the anomaly that
employers' liability for not protecting employees from harassment by customers or other third
parties does not flow from either disparate treatment or disparate impact theories; instead, these
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cases essentially assert denial of reasonable accommodations, notwithstanding the consensus that
Title VII disallows such claims).
Page 417, add at end of first full ¶:
See also Kimberly D. Phillips, My Body is a Sacred “Garment”: Does the First Amendment
Protect
Clothing
Designers
Who
Work
Naked?"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1350972 (exploring the concurrence in Lyle
v. Warners Brothers Television Productions, which argued that “speech, used to create an
employer's constitutionally protected work product (i.e., books, movies, television programs), is
protected under the First Amendment, and can never create a hostile work environment unless
the speech was directed at the plaintiff.”)
Page 417, add at end of last full ¶:
See Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77
FORDHAM L. REV. 33 (2008) (arguing, inter alia, that Garcetti reduces the First Amendment
questions arising in speech restrictions in public employment). Cf. DeJohn v. Temple Univ., 537
F.3d 301 (3d Cir. 2008) (striking down university’s harassment policy as facially invalid because
it prohibited expression by students without requiring the creation of a hostile environment).
D.
DISCRIMINATION ON ACCOUNT OF RELIGION
Page 418, under D. Discriminaiton on Account of Religion, add before Mandell cite:
Fischer v. Forestwood Co., 525 F.3d 972 (10th Cir. 2008) (secret tape recordings of plaintiff’s
conversation with his father, who refused to rehire him unless he rejoined the Church, were
admissible, direct evidence of discrimination);
Page 423, add in carryover Note 3, “Knowledge Plus” for the Prima Facie Case? before
Campos cite:
Hasan v. Foley & Lardner LLP, 552 F.3d 520 (7th Cir. 2009) (a reasonable jury could find
discrimination based on religion and national origin where a partner, who participated in the
termination decision, made an extreme anti-Muslim comment and other partners made antiMuslim comments simultaneously with the associate’s department beginning to steer work away
from him);
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Page 425, add before Berry cite in Note 7(c):
Grossman v. S. Shore Pub. Sch. Dist., 507 F.3d 1097 (7th Cir. 2007) (failure to renew
contract of Lutheran guidance counselor because she threw out literature on condom use, taught
abstinence, and prayed with students; there was no reason to believe she was discriminated
against because of her Christian beliefs, and Establishment Clause concerns justified limitations
on belief-inspired conduct);
Page 427, add before Morrisette-Brown cite in carryover ¶:
Bush v. Regis Corp., 257 Fed. App’x. 219 (11th Cir. 2007) (employer reasonably accommodated
plaintiff when it scheduled her Sunday work after her services ended and allowed her to swap
shifts to attend religious conventions; while her religion also required “field service,” it did not
require it to be performed on Sundays);
Page 427, add before Baker cite in carryover ¶:
EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) (Congress required only
reasonable accommodation, not total accommodation and thus there was no violation when the
employer had many mechanisms to allow plaintiff to avoid working on his holy days; employer
need not allow him to take unpaid leave because that would burden his co-workers and risk
violating the cba); Sturgill v. UPS, 512 F.3d 1024 (8th Cir. 2008) (although it was harmless error
in the circumstances, the jury should not have been instructed that an accommodation needs to
eliminate conflict between an employee’s religions beliefs and the employer’s work
requirements to be reasonable; “a reasonable jury may find in many circumstances that the
employee must either compromise a religious observance or practice, or accept a less desirable
job or less favorable working conditions.”);
Page 428, add before Aron cite in second line after extract:
Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009) police commissioner’s articulation of
the department's need for the appearance of religious neutrality both dealing with the public and
working together cooperatively sufficed to satisfy the test of more than de minimis cost of an
undue burden for its failure to accommodate plaintiff’s request to wear a headscarf);
Page 433, add before Greenwalt cite in Note 5, Religious Harassment:
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Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 MARQ. L.
REV. 1, 31–32 (2008) (arguing for “a new balancing act, one which encourages employers to
make a strong showing of an actual burden if denying religious accommodation to their
employees,” which would entail, inter alia, adapting workplace harassment law to “define the
point at which one employee’s religious expression begins to infringe upon another’s right to a
nonhostile workplace and distinguishes between harassing conduct by supervisors and
coworkers.”)
Page 433, at end of Note 4, Accommodation or Discrimination?, delete Corrada citation and
add:
See Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315 (3d Cir. 2008) (a plaintiff
could not assert a failure to accommodate claim when she failed to alert her employer that she
could not participate in a “libations ceremony” at a staff banquet for religious reasons, but she
could proceed on her discrimination case claiming she was discharged for her Christian beliefs).
See generally Roberto Corrada, Toward an Integrated Disparate Treatment and Accommodation
Framework for Title VII Religion Cases, *** U.CINC. L. REV. *** (2009),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960171 (“First, the article argues that the
accommodation framework for religion cases, which is fairly generous to employers, should be
available only to employers who are otherwise neutral toward religion in the workplace. Second,
the article argues that the two frameworks for religion should be integrated in order to ensure that
cases containing elements of both disparate treatment and accommodation are not unnecessarily
forced into one framework or another.”).
Page 433, add at end of first sentence in Note 5, Religious Harassment:
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 311 (4th Cir. 2008) (severe or pervasive
harassment of plaintiff, a Muslim, which included “a steady stream of demeaning comments and
degrading actions,” including “religiously-charged epithets” such as “Taliban” and “towel head,”
was actionable religious harassment).
Page 440, add before Francis cite near end of carryover ¶:
Potter v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009) (because the District never
proffered evidence that the breathing equipment the firefighter plaintiffs sought to use to
accommodate their religiously-required beards was unsafe, summary judgment against the
District under RFRA was appropriate; while firefighter safety was a compelling state interest, the
District failed to show why safety would be threatened by using the equipment sought as an
accommodation);
Page 441. Add at end of carryover ¶:
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Gregory Kalscheur, Civil Procedure and the Establishment Clause: Exploring the Ministerial
Exception, Subject Matter Jurisdiction, and the Freedom of the Church, 17 WM. & MARY BILL
OF RIGHTS J. 43, 51 (2008) (“When courts clearly and consistently treat the ministerial exception
as a limitation on their subject matter jurisdiction, they make a powerful statement about the
foundations of limited government—they affirm the penultimacy of the state.”).
Page 441. Add in second full ¶ before “Contra Tomic”:
But see Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) (ministerial exception barred suit by
black Catholic priest when the defendants expressly waived any RFRA defense)
E.
NATIONAL ORIGIN AND ALIENAGE DISCRIMINATION
Page 454, add at end of carryover Note 7, Did Elite Get It Right?:
See also Aramark Facility Servs. v. SEIU, Local 1877, 530 F.3d 817 (9th Cir. 2008) (arbitrator’s
ruling ordering reinstatement of workers who were discharged after being given only three days
to cure the problem after the employer received “no match” letters from the Social Security
Administration was not in violation of public policy: the no match letters were not sufficiently
probative of immigration status to put the employer on constructive notice that they were
undocumented workers).
In Chicanos Por La Causa, Inc. v. Napolitano, 544 F.3d 976 (9th Cir. 2008), the court
upheld an Arizona statute mandating that employers participate in federal verification program
concerning workers' eligibility. That law was not expressly preempted by IRCA because it is a “
“licensing and similar law” excepted from IRCA preemption provision: it penalizes noncomplying businesses through loss of business licenses and does not differ from IRCA as to
employee eligibility standards.
Page 456, add at end of last full ¶:
James Leonard, Title VII and the Protection of Minority Languages in the American Workplace:
The Search for a Justification, 72 MO. L. REV. 745 (2007).
Page 457, add at end of last full ¶:
Cf. D. Wendy Greene, Title VII: What's Hair (and Other Race-Based Characteristics) Got to Do
With It?, 79 U. COLO. L. REV. 1355, 1393 (2008) (courts should expand the definition of “race”
to include historical and contemporary understandings of race, and thereby inclusive of mutable
and “immutable” characteristics, which would require employers “to assert a more substantial
reason for implementing grooming and appearance policies than that they seek to present a
‘conservative’ or ‘business-like image.’”).
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Page 459, add at end of last full ¶:
Craig Robert Senn, Proposing a Uniform Remedial Approach for Undocumented Workers Under
Federal Employment Discrimination Law, 77 FORDHAM L. REV. 101 (2008) (proposing that
undocumented workers are disqualified from certain remedies when they violate provisions
prohibiting fraudulent conduct, but limiting the foreclosed remedies to back pay and front pay).
Jarod S. Gonzalez, Employment Law Remedies for Illegal Immigrants, 40 TEX. TECH L. REV.
987, 999 (2008) (“When these laws fail [to bar employment] and an illegal worker obtains a job,
the labor and employment law standards in this country do not cease to exist. Employers should
pay the same price when they violate the standards, regardless of the aggrieved victim's
immigration status.”)
G.
RETALIATION
Page 461, delete last sentence of second full ¶.
Page 464, add before Mattson cite n fourth line after extract Note 1, Broader Protection
Under the Opposition Clause:
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 722 (6th Cir. 2008) (plaintiff’s conduct in
turning over confidential employment documents to her attorney in response to a discovery
request was not protected when the documents, although acquired legitimately by her, were
intended only to “jog her memory” with regard to incidents of retaliation).
Page 465, add at end of carryover Note 1, Broader Protection Under the Opposition Clause:
See generally Lawrence D. Rosenthal, Reading Too Much into What the Court Doesn't Write:
How Some Federal Courts Have Limited Title VII's Participation Clause's Protections After
Clark County School District v. Breeden, 83 WASH. L. REV. 345 (2008) (courts after Breeden are
not only requiring plaintiff to prove a good-faith, objectively reasonable belief of an unlawful
employment practice in opposition cases but also requiring such proof in participation clause
cases; the appropriate approach is to not inquire into the reasonableness of a patient’s belief
when he has participated in a proceeding to challenge discrimination). See also Lawrence D.
Rosenthal, To Report or Not to Report: The Case for Eliminating the Objectively Reasonable
Requirement for Opposition Activities Under Title VII's Anti-Retaliation Provision, 39 ARIZ. ST.
L.J. 1127 (2007) (an employee's subjective, good-faith belief that she experienced unlawful
discrimination should be sufficient to gain Title VII protection).
Page 465, delete Note 3, Retaliation and the Ellerth Affirmative Defense delete Crawford
cite; replace with:
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In Crawford v. Metropolitan Government of Nashville & Davidson Counties, reproduced at p. 51
of this Update, the Court held that participation in employer internal investigations could be
protected opposition conduct.
Page 466, add before Russell Robinson citation in first full ¶ of carryover Note 4,
Reasonable Good Faith Belief:
See also Butler v. Ala. DOT, 536 F.3d 1209, 1213 (11th Cir. 2008) (“not every uncalled for,
ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred
away from work. It did not happen within the hearing of any supervisors. Butler admits that she
never thought the epithets, deplorable as they are, were aimed at her.”); Barker v. Mo. Dep’t of
Corr., 513 F.3d 831, 835 (8th Cir. 2008) (plaintiff could not have had an objectively reasonable
belief that a single, isolated statement, implying that women are more nurturing and better suited
for work in another unit constituted sexual harassment under Title VII).
Page 466, add at end of carryover Note 1, Broader Protection Under the Opposition Clause:
B. Glenn George, Revenge, 83 TUL. L. REV. 439 (2008) (employees should “not be saddled with
the illusory obligation of understanding a complex body of case law in a complicated field.
Rather, the employer and employee’s protection should be based on the employer’s sexual
harassment policy—the terms of which are within the employer’s control and the employee’s
knowledge.”).
Page 466, add at end of Note 5, Causation:
The fact that an adverse employment action was motivated by retaliatory intent may, however,
be proven in other ways. See Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008) (district court’s
refusal to admit evidence of plaintiff’s involvement in prior successful discrimination suit in
order to establish retaliatory intent was an abuse of discretion that necessitated a new trial).
1.
Protected Conduct
Page 467, add before Pennington cite in carryover Note 6, Retaliation and Mixed Motives
Analysis:
Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144 (8th Cir. 2008);
Page 467, add after Bd. of Governors cite in second full ¶:
But see Richardson v. Comm'n on Human Rights & Opportunities, 532 F.3d 114 (2d Cir. 2008)
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(election-of-remedies provision in a collective bargaining agreement, which provided that
employees alleging discrimination may not arbitrate a dispute as a grievance if she filed a charge
with the state fair employment practices agency, did not violate Title VII when the employee
remained free to file a charge with the EEOC and pursue an action in federal court).
Page 467, add at end of last full ¶:
See also Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008) (attorney discharged by
new mayor because of his representation of the city in EEOC mediation with mayor’s then-client
had a retaliation claim).
Page 472, add in carrover Note 3, “Prima Facie Unprotected” after Scarbrough cite:
See also Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (when plaintiff told her
supervisor to stop harassing her, she engaged in the most “basic form of protected conduct”);
Magyar v. St. Joseph Reg'l Med. Ctr., 544 F3d 766, (7th Cir. 2008) (2-1) (discharge for
complaint that plaintiff’s harassment charge was not being addressed appropriately was
retaliation); cf. Tate v. Exec. Mgmt. Servs., 546 F.3d 528 (7th Cir. 2008) (assuming that a person
who rejects his supervisor’s sexual advances has engaged in a protected activity, plaintiff did not
show that he viewed his supervisor was sexually harassing him). Contra LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007) (holding that a single, express rejection of
sexual advances does not constitute “protected activity” for purposes of a retaliation claim).
Page 472, add at end of Note 4, Or Legitimate Nondiscriminatory Reason?:
See also Vaughn v. Epworth Villa, 537 F.3d 1147 (10th Cir. 2008) (while plaintiff engaged in
“protected activity” when she submitted the unredacted medical records to the EEOC, being
discharged for that conduct was nevertheless permissible when other employees engaging in
similar conduct unrelated to opposing discrimination would also have been discharged).
Page 472, add before Cruz cite in Note 5, Applying the Balancing Test:
Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. 2008) (employee who secretly recorded
meeting with supervisors could be fired for such conduct even if it was undertaken to obtain
proof for her sexual harassment complaint without violating § 704(a));
Page 473, add at end of Note 6, Who is Protected?:
Another issue is whether only the party engaging in the protected conduct is protected, or
whether the statute bars retaliation against relatives and friends. See Thompson v. N. Am.
Stainless, LP, 520 F.3d 644 (6th Cir. 2008) (Title VII protects individuals from retaliation
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because of their relationship with those who engage in protected conduct), vacated and reh’ing
granted, 2008 U.S. App. LEXIS 16075 (6th Cir. July 28, 2008). See generally Alex B. Long, The
Troublemaker's Friend: Retaliation Against Third Parties and the Right of Association in the
Workplace, 59 FLA. L. REV. 931 (2007) (in assessing claims of retaliation by third parties, either
those who assist another who reports discrimination or those who may be punished for their
relationship with the persons who complains, courts should look beyond the goal of maintaining
access to the antidiscrimination laws’ remedial mechanisms to encourage employees from
associating with one another).
Page 473, add new principal case at end of Protected Conduct section:
CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY, TENNESSEE
129 S.Ct. 846 (2009)
JUSTICE SOUTER delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 forbids retaliation by employers against
employees who report workplace race or gender discrimination. The question here is whether
this protection extends to an employee who speaks out about discrimination not on her own
initiative, but in answering questions during an employer's internal investigation. We hold that it
does.
I
In 2002, respondent Metropolitan Government of Nashville and Davidson County,
Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School
District's employee relations director, Gene Hughes. When Veronica Frazier, a Metro human
resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had
witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances
of sexually harassing behavior: once, Hughes had answered her greeting, "'Hey Dr. Hughes,
what's up?,'" by grabbing his crotch and saying "'[Y]ou know what's up'"; he had repeatedly "'put
his crotch up to [her] window'"; and on one occasion he had entered her office and "'grabbed her
head and pulled it to his crotch.'" Two other employees also reported being sexually harassed by
Hughes. Although Metro took no action against Hughes, it did fire Crawford and the two other
accusers soon after finishing the investigation, saying in Crawford's case that it was for
embezzlement. . . .
[Crawford sued, claiming violations of both the opposition and participating clauses].
The District Court granted summary judgment for Metro. It held that Crawford could not satisfy
the opposition clause because she had not "instigated or initiated any complaint," but had
"merely answered questions by investigators in an already-pending internal investigation,
initiated by someone else." It concluded that her claim also failed under the participation clause,
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which Sixth Circuit precedent confined to protecting "'an employee's participation in an
employer's internal investigation . . . where that investigation occurs pursuant to a pending
EEOC charge'" (not the case here). . . .
II
The opposition clause makes it "unlawful . . . for an employer to discriminate against any
. . . employe[e] . . . because he has opposed any practice made . . . unlawful . . . by this
subchapter." § 2000e-3(a). The term "oppose," being left undefined by the statute, carries its
ordinary meaning, Perrin v. United States, 444 U.S. 37, 42 (1979): "to resist or antagonize . . .; to
contend against; to confront; resist; withstand," Webster's New International Dictionary 1710 (2d
ed. 1958). Although these actions entail varying expenditures of energy, "RESIST frequently
implies more active striving than OPPOSE." ibid; see also Random House Dictionary of the
English Language 1359 (2d ed. 1987) (defining "oppose" as "to be hostile or adverse to, as in
opinion").
The statement Crawford says she gave to Frazier is thus covered by the opposition clause,
as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow
employee, an answer she says antagonized her employer to the point of sacking her on a false
pretense. Crawford's description of the louche goings-on would certainly qualify in the minds of
reasonable jurors as "resist[ant]" or "antagoni[stic]" to Hughes's treatment, if for no other reason
than the point argued by the Government and explained by an EEOC guideline: "When an
employee communicates to her employer a belief that the employer has engaged in . . . a form of
employment discrimination, that communication" virtually always "constitutes the employee's
opposition to the activity." 2 EEOC Compliance Manual §§ 8-II-B(1), (2), p. 614:0003 (Mar.
2003)). It is true that one can imagine exceptions, like an employee's description of a supervisor's
racist joke as hilarious, but these will be eccentric cases, and this is not one of them.2
The Sixth Circuit thought answering questions fell short of opposition, taking the view
that the clause "'demands active, consistent "opposing" activities to warrant . . . protection
against retaliation,'" and that an employee must "instigat[e] or initiat[e]" a complaint to be
covered. But though these requirements obviously exemplify opposition as commonly
understood, they are not limits of it.
"Oppose" goes beyond "active, consistent" behavior in ordinary discourse, where we
would naturally use the word to speak of someone who has taken no action at all to advance a
position beyond disclosing it. Countless people were known to "oppose" slavery before
Emancipation, or are said to "oppose" capital punishment today, without writing public letters,
taking to the streets, or resisting the government. And we would call it "opposition" if an
2
Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes's behavior because some
of her defensive responses were "inappropriate," such as telling Hughes to "bite me" and "flip[ping] him a bird."
This argument fails not only because at the summary judgment stage we must "view all facts and draw all
reasonable inferences in [Crawford's] favor" but also because Crawford gave no indication that Hughes's gross
clowning was anything but offensive to her.
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employee took a stand against an employer's discriminatory practices not by "instigating" action,
but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for
discriminatory reasons. There is, then, no reason to doubt that a person can "oppose" by
responding to someone else's question just as surely as by provoking the discussion, and nothing
in the statute requires a freakish rule protecting an employee who reports discrimination on her
own initiative but not one who reports the same discrimination in the same words when her boss
asks a question.
Metro and its amici support the Circuit panel's insistence on "active" and "consistent"
opposition by arguing that the lower the bar for retaliation claims, the less likely it is that
employers will look into what may be happening outside the executive suite. As they see it, if
retaliation is an easy charge when things go bad for an employee who responded to enquiries,
employers will avoid the headache by refusing to raise questions about possible discrimination.
The argument is unconvincing, for we think it underestimates the incentive to enquire
that follows from [the Ellerth and Faragher affirmative defense, which provides “a strong
inducement to ferret out and put a stop to any discriminatory activity in their operations as a way
to break the circuit of imputed liability. The possibility that an employer might someday want to
fire someone who might charge discrimination traceable to an internal investigation does not
strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense.
That aside, we find it hard to see why the Sixth Circuit's rule would not itself largely
undermine the Ellerth-Faragher scheme, along with the statute's "'primary objective'" of
"avoid[ing] harm" to employees. If it were clear law that an employee who reported
discrimination in answering an employer's questions could be penalized with no remedy, prudent
employees would have a good reason to keep quiet about Title VII offenses against themselves
or against others. This is no imaginary horrible given the documented indications that "[f]ear of
retaliation is the leading reason why people stay silent instead of voicing their concerns about
bias and discrimination." Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37,
and n. 58 (compiling studies). The appeals court's rule would thus create a real dilemma for any
knowledgeable employee in a hostile work environment if the boss took steps to assure a defense
under our cases. If the employee reported discrimination in response to the enquiries, the
employer might well be free to penalize her for speaking up. But if she kept quiet about the
discrimination and later filed a Title VII claim, the employer might well escape liability, arguing
that it "exercised reasonable care to prevent and correct [any discrimination] promptly" but "the
plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective
opportunities provided by the employer." Ellerth. Nothing in the statute's text or our precedent
supports this catch-22.3
3
Metro also argues that "[r]equiring the employee to actually initiate a complaint . . . conforms with the employee's
'obligation of reasonable care to avoid harm' articulated in Faragher and Ellerth." Brief for Respondent (quoting
Faragher. But that mitigation requirement only applies to employees who are suffering discrimination and have the
opportunity to fix it by "tak[ing] advantage of any preventive or corrective opportunities provided by the employer,"
ibid.; it is based on the general principle "that a victim has a duty 'to use such means as are reasonable under the
circumstances to avoid or minimize . . . damages,'" id. We have never suggested that employees have a legal
obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory
protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will
often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered
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Because Crawford's conduct is covered by the opposition clause, we do not reach her
argument that the Sixth Circuit misread the participation clause as well. . . .
JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in the judgment.
[Justice Altio concurred that §704 “prohibits retaliation against an employee who testifies in an
internal investigation of alleged sexual harassment,” and agreed] with the “Court's primary
reasoning, which is based on "the point argued by the Government and explained by an EEOC
guideline: 'When an employee communicates to her employer a belief that the employer has
engaged in . . . a form of employment discrimination, that communication' virtually always
'constitutes the employee's opposition to the activity.'" I write separately to emphasize my
understanding that the Court's holding does not and should not extend beyond employees who
testify in internal investigations or engage in analogous purposive conduct. . . .
In order to decide the question that is before us, we have no need to adopt a definition of
the term "oppose" that is broader than the definition that petitioner advances [that "oppose"
means "taking action (including making a statement) to end, prevent, redress, or correct unlawful
discrimination."] But in dicta, the Court notes that the fourth listed definition in the Random
House Dictionary of the English Language goes further, defining "oppose" to mean "'to be
hostile or adverse to, as in opinion.'" (emphasis added). Thus, this definition embraces silent
opposition.
While this is certainly an accepted usage of the term "oppose," the term is not always
used in this sense, and it is questionable whether silent opposition is covered by the opposition
clause of 42 U.S.C. § 2000e-3(a). It is noteworthy that all of the other conduct protected by this
provision--making a charge, testifying, or assisting or participating in an investigation,
proceeding, or hearing--requires active and purposive conduct. "'That several items in a list share
an attribute counsels in favor of interpreting the other items as possessing that attribute as well.'"
An interpretation of the opposition clause that protects conduct that is not active and
purposive would have important practical implications. It would open the door to retaliation
claims by employees who never expressed a word of opposition to their employers. To be sure,
in many cases, such employees would not be able to show that management was aware of their
opposition and thus would not be able to show that their opposition caused the adverse actions at
issue. But in other cases, such employees might well be able to create a genuine factual issue on
the question of causation. Suppose, for example, that an employee alleges that he or she
expressed opposition while informally chatting with a co-worker at the proverbial water cooler
or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an
employee alleges that such a conversation occurred after work at a restaurant or tavern
by others. Thus, they are not "victims" of anything until they are retaliated against, and it would be absurd to require
them to "mitigate" damages they may be unaware they will suffer.
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frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a
supervisor.
Some courts hold that an employee asserting a retaliation claim can prove causation
simply by showing that the adverse employment action occurred within a short time after the
protected conduct. See, e.g., Clark County School Dist. v. Breeden [reproduced at p. 461] (noting
that some cases "accept mere temporal proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case"); see also Gorman-Bakos v. Cornell Cooperative Extension of Schenectady Cty., 252
F.3d 545, 554 (CA2 2001); Conner v. Schnuk Markets, Inc., 121 F.3d 1390, 1395 (CA10 1997);
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (CA7 1994). As a result, an employee
claiming retaliation may be able to establish causation simply by showing that, within some time
period prior to the adverse action, the employer, by some indirect means, became aware of the
views that the employee had expressed. Where the protected conduct consisted of a private
conversation, application of this rule would be especially problematic because of uncertainty
regarding the point in time when the employer became aware of the employee's private
expressions of disapproval.
The number of retaliation claims filed with the EEOC has proliferated in recent years. . .
. . An expansive interpretation of protected opposition conduct would likely cause this trend to
accelerate.
The question whether the opposition clause shields employees who do not communicate
their views to their employers through purposive conduct is not before us in this case; the answer
to that question is far from clear; and I do not understand the Court's holding to reach that issue
here. For present purposes, it is enough to hold that the opposition clause does protect an
employee, like petitioner, who testifies about unlawful conduct in an internal investigation.
NOTES
1.
An Easy Case? The Supreme Court’s decision in Crawford is unanimous. Was
this because the case was a no-brainer for the court? Or does Justice Alito’s concurrence suggest
that the problem was not so much whether some opposition conduct should be protected but
where the line should be drawn? What do you think about his hypotheticals? Should the water
cooler conversation be protected opposition? If the answer is no, is that less because we don’t
want to protect low level opposition than because it would enable ill-founded retaliation suits to
be brought?
It is certainly possible that an employer would retaliate against someone for voicing
opposition even in an informal setting. But it’s pretty unlikely. To allow suits where that is the
only claimed opposition would avoid letting such conduct go unpunished but might force
employers to defend large numbers of suits where adverse employment actions were taken for
wholly nondiscriminatory reasons.
2.
Participation Clause. The Court notes that it need not reach the participation
clause question because the Sixth Circuit erred as to the opposition clause. But recall that
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participation clause protection is generally thought to be greater than opposition clause
protection. Suppose that Ms. Crawford was fired not for wholly extraneous reasons like
embezzlement but because the employer believed that she lied during the investigation. Might
she be protected under the participation clause (because we want to provide something like an
immunity for participation) but not under the opposition clause (because lying is unreasonable
opposition)? See Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as a RightsClaiming System, 86 N.C.L. REV. 859, 931 n. 379 (2008) (arguing that conduct such as Ms.
Crawford’s should be protected under the participation clause).
3.
The Lawyer’s Role in Retaliation Suits. Justice Alito’s opinion seeking to limit the
sweep of opposition is obviously predicated on the notion that employees and their attorneys
may game the system by bringing ill-founded, if not frivolous, suits. At oral argument, the Court
wandered from the facts of the case before it to the question of incentives. There was clearly
some concern about the “hold-up” value of retaliation suits:
CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if
you lose you pay not only your attorneys’ fees but the complainants’. If you win, you have to
incur yours. . . . I'm not saying it shouldn’t be. But in terms of the pressures towards settlement, it
is a very strong incentive.
JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain
costs.
MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee
basis except for hard costs.
JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring
these cases because they’ll be accused of doing all kinds of bad things. They don’t want their
reputations ruined. They have lawyers who take contingent fees because they have to pay for it.
On the other hand, you have problems with your costs and you have problems dismissing people
who should be dismissed. Everybody has problems in this area. That’s why we have law and
lawyers. They try to minimize it. This doesn’t seem fruitful to me.
JUSTICE SCALIA: Isn’t it true that financially it is always cost-free for the plaintiff because she
has an attorney who is taking it on a contingent basis? Now, you could say it’s not cost-free to the
lawyer; but even that’s not always true because if the lawyer has nothing else to do he may as
well be doing this, you know, whatever the odds are.
MR. YOUNG: I agree with that, Your Honor.
Was Justice Scalia being humorous, or does he really believe that plaintiffs’ lawyers in
employment discrimination cases are mostly those who can’t find another client?
2.
Adverse Action
Page 480, add after first sentence in second ¶ in Note 1, Section 703 vs. Section 704:
See Lisa Durham Taylor, Parsing Supreme Court Dicta and the Example of Non-Workplace
Harms, 57 DRAKE L. REV. 75 (2008) (since Burlington Northern’s discussion of non-workplace
harms was dictum, blind adherence by the lower courts is unadvisable).
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Page 480, add at end of Note 4, Employer Liability:
See generally B. Glenn George, Revenge, 83 TUL. L. REV. 439, 493 (2008) (“Categorical labels
should be avoided. Systematic ‘shunning’ or ‘snubbing’ orchestrated by management which
effectively punishes the complaining employee and silences her coworkers should be just as
actionable as a demotion with loss of pay. A supervisor’s unfriendliness to an employee because
of resentment, however, would likely be deemed too slight to punish or discourage.”).
Page 480, add at end of Note 4, Employer Liability:
See generally Sandra Sperino, The “Disappearing” Dilemma: Why Agency Principles should
Now Take Center Stage in Retaliation Cases 57 KANSAS L. REV. 157 (2008) (arguing that, in
order for retaliation law to be consistent with discrimination principles, courts must re-import the
concept of tangible employment action into decisions regarding whether an employer is
vicariously liable for actions committed by supervisors).
Page 480, add in Note 5, What Counts as Materially Adverse before Ridley cite:
Wharton v. Gorman-Rupp Co., 2009 U.S. App. LEXIS 2667, 18-20 (6th Cir. 2009) (a materially
adverse employment action could be found in threatening behavior by a vice-president of human
resources toward a subordinate employee in the company parking lot, where that employee
reasonably felt that violence was a real possibility; such conduct is is likely to dissuade any
reasonable worker from making or supporting a charge of discrimination);
Page 481, add at end of carryover Note 5, What Counts as “Materially Adverse”?
See generally Ernest F. Lidge III, What Types of Employer Actions are Cognizable Under Title
VII?: The Ramifications of Burlington Northern & Santa Fe Railroad Co. v. White, 59 RUTGERS
L. REV. 497, 535 (2007) (“White’s mandate that courts consider the individual plaintiff’s
‘context’ in deciding whether an action is materially adverse will cause problems. Courts will
have to examine the significance of the employee’s vulnerabilities, whether the employee can
mitigate the effects of the employer’s act, the ‘value’ of the employee’s needs or desires, and
whether the employer knew of the employee’s vulnerabilities.”); Lisa Durham Taylor, Adding
Subjective Fuel to the Vague-Standard Fire: A Proposal for Congressional Intervention after
Burlington Northern & Santa Fe Railway Co. v. White, *** U. PENN. J. LAB. & EMPL. L. ***
(2009) (Burlington Northern announces a “vague and subjective standard [that] not only lacks
sufficient support in the statute but also directly contravenes Title VII's policies of workplace
equality, employer forethought, and management prerogative.”).
Some courts seem to believe that the employee’s persistence in opposition conduct is at
least a factor, and perhaps a weighty one, in determining that the claimed action was not likely to
deter a reasonable employee from engaging in protected conduct. Somoza v. Univ. of Denver,
513 F.3d 1206, 1214 (10th Cir. 2008) (“[T]he fact that an employee continues to be undeterred in
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his or her pursuit of a remedy, as here was the case, may shed light as to whether the actions are
sufficiently material and adverse to be actionable.”). Does this impermissibly shift the focus
from the reasonable employee to the actual employee?
Page 481. Add new case at end of section:
CBOCS West, Inc. v. Humphries
128 S.Ct. 387 (2008)
JUSTICE BREYER delivered the opinion of the Court. . . .
The case before us arises out of a claim by respondent, Hedrick G. Humphries, a former
assistant manager of a Cracker Barrel restaurant, that CBOCS West, Inc. (Cracker Barrel's
owner) dismissed him (1) because of racial bias (Humphries is a black man) and (2) because he
had complained to managers that a fellow assistant manager had dismissed another black
employee, Venus Green, for race-based reasons. [The Seventh Circuit upheld a grant of summary
judgment against Humphries with respect to] his direct discrimination claim. But it ruled in
Humphries' favor and remanded for a trial in respect to his § 1981 retaliation claim. . . .
II
The question before us is whether § 1981 encompasses retaliation claims. We conclude
that it does. And because our conclusion rests in significant part upon principles of stare decisis,
we begin by examining the pertinent interpretive history.
A
The Court first considered a comparable question in 1969, in Sullivan v. Little Hunting
Park, Inc., 396 U.S. 229. The case arose under 42 U.S.C. § 1982, a statutory provision that
Congress enacted just after the Civil War, along with § 1981, to protect the rights of black
citizens. The provision was similar to § 1981 except that it focused, not upon rights to make and
to enforce contracts, but rights related to the ownership of property. The statute provides that
"[a]ll citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and
personal property." § 1982.
Paul E. Sullivan, a white man, had rented his house to T. R. Freeman, Jr., a black man.
He had also assigned Freeman a membership share in a corporation, which permitted the owner
to use a private park that the corporation controlled. Because of Freeman's race, the corporation,
Little Hunting Park, Inc., refused to approve the share assignment. And, when Sullivan protested,
the association expelled Sullivan and took away his membership shares.
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Sullivan sued Little Hunting Park, claiming that its actions violated § 1982. The Court
upheld Sullivan's claim. It found that the corporation's refusal "to approve the assignment of the
membership share . . . was clearly an interference with Freeman's [the black lessee's] right to
'lease.'" It added that Sullivan, the white lessor, "has standing to maintain this action," because,
as the Court had previously said, "the white owner is at times 'the only effective adversary' of the
unlawful restrictive covenant." The Court noted that to permit the corporation to punish Sullivan
"for trying to vindicate the rights of minorities protected by § 1982" would give "impetus to the
perpetuation of racial restrictions on property." And this Court has made clear that Sullivan
stands for the proposition that § 1982 encompasses retaliation claims. See Jackson v.
Birmingham Bd. of Ed., 544 U.S. 167 (2005) ("[I]n Sullivan we interpreted a general prohibition
on racial discrimination [in § 1982] to cover retaliation against those who advocate the rights of
groups protected by that prohibition").
While the Sullivan decision interpreted § 1982, our precedents have long construed §§
1981 and 1982 similarly. In Runyon v. McCrary, 427 U.S. 160, 173 (1976), the Court considered
whether § 1981 prohibits private acts of discrimination. Citing Sullivan, along with Jones v.
Alfred H. Mayer Co., 392 U.S. 409 (1968) and Tillman v. Wheaton-Haven Recreation Ass'n, 410
U.S. 431 (1973), the Court reasoned that this case law "necessarily requires the conclusion that §
1981, like § 1982, reaches private conduct."
As indicated in Runyon, the Court has construed §§ 1981 and 1982 alike because it has
recognized the sister statutes' common language, origin, and purposes. Like § 1981, § 1982
traces its origin to § 1 of the Civil Rights Act of 1866, 14 Stat. 27. See General Building
Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 383-384 (1982) (noting shared historical
roots of the two provisions); Tillman (same). Like § 1981, § 1982 represents an immediately
post-Civil War legislative effort to guarantee the then newly freed slaves the same legal rights
that other citizens enjoy. See General Building Contractors Assn. (noting strong purposive
connection between the two provisions). Like § 1981, § 1982 uses broad language that says "[a]ll
citizens of the United States shall have the same right, in every State and Territory, as is enjoyed
by white citizens . . . ." Compare § 1981's language set forth above. See Jones (noting the close
parallel language of the two provisions.
Indeed, § 1982 differs from § 1981 only in that it refers, not to the "right . . . to make and
enforce contracts," 42 U.S.C. § 1981(a), but to the "right . . . to inherit, purchase, lease, sell,
hold, and convey real and personal property," § 1982.
In light of these precedents, it is not surprising that following Sullivan, federal appeals
courts concluded, on the basis of Sullivan or its reasoning, that § 1981 encompassed retaliation
claims.
B
In 1989, 20 years after Sullivan, this Court in Patterson v. McLean Credit Union, 491
U.S. 164 significantly limited the scope of § 1981. The Court focused upon § 1981's words "to
make and enforce contracts" and interpreted the phrase narrowly. It wrote that the statutory
phrase did not apply to "conduct by the employer after the contract relation has been
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established, including breach of the terms of the contract or imposition of discriminatory
working conditions." (emphasis added). The Court added that the word "enforce" does not apply
to post-contract-formation conduct unless the discrimination at issue "infects the legal process in
ways that prevent one from enforcing contract rights." (emphasis added). Thus § 1981 did not
encompass the claim of a black employee who charged that her employer had violated her
employment contract by harassing her and failing to promote her, all because of her race.
Since victims of an employer's retaliation will often have opposed discriminatory conduct
taking place after the formation of the employment contract, Patterson's holding, for a brief time,
seems in practice to have foreclosed retaliation claims. [Almost all circuit court decisions
between 1989 and 1991 rejected retaliation claims.]
In 1991, however, Congress weighed in on the matter. Congress passed the Civil Rights
Act of 1991, § 101, 105 Stat. 1071, with the design to supersede Patterson. Jones v. R. R.
Donnelley & Sons Co., 541 U.S. 369, 383 (2004). Insofar as is relevant here, the new law
changed 42 U.S.C. § 1981 by reenacting the former provision, designating it as § 1981(a), and
adding a new subsection, (b), which, says:
"Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the
making, performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.
An accompanying Senate Report pointed out that the amendment superseded Patterson
by adding a new subsection (b) that would "reaffirm that the right 'to make and enforce contracts'
includes the enjoyment of all benefits, privileges, terms and conditions of the contractual
relationship." S. Rep. No. 101-315, p. 6 (1990). Among other things, it would "ensure that
Americans may not be harassed, fired or otherwise discriminated against in contracts because of
their race." (emphasis added). An accompanying House Report said that in "cutting back the
scope of the rights to 'make' and 'enforce' contracts[,] Patterson . . . has been interpreted to
eliminate retaliation claims that the courts had previously recognized under section 1981." H. R.
Rep. No. 102-40, pt. 1, pp. 92-93, n. 92 (1991). It added that the protections that subsection (b)
provided, in "the context of employment discrimination . . . would include, but not be limited to,
claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring."
(emphasis added). It also said that the new law "would restore rights to sue for such retaliatory
conduct."
After enactment of the new law, the Federal Courts of Appeals again reached a broad
consensus that § 1981, as amended, encompasses retaliation claims.
The upshot is this: (1) in 1969, Sullivan, as interpreted by Jackson, recognized that §
1982 encompasses a retaliation action; (2) this Court has long interpreted §§ 1981 and 1982
alike; (3) in 1989, Patterson, without mention of retaliation, narrowed § 1981 by excluding from
its scope conduct, namely post-contract-formation conduct, where retaliation would most likely
be found; but in 1991, Congress enacted legislation that superseded Patterson and explicitly
defined the scope of § 1981 to include post-contract-formation conduct; and (4) since 1991, the
lower courts have uniformly interpreted § 1981 as encompassing retaliation actions.
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C
Sullivan, as interpreted and relied upon by Jackson, as well as the long line of related
cases where we construe §§ 1981 and 1982 similarly, lead us to conclude that the view that §
1981 encompasses retaliation claims is indeed well embedded in the law. That being so,
considerations of stare decisis strongly support our adherence to that view. And those
considerations impose a considerable burden upon those who would seek a different
interpretation that would necessarily unsettle many Court precedents.
III
In our view, CBOCS' several arguments, taken separately or together, cannot justify a
departure from what we have just described as the well-embedded interpretation of § 1981. First,
CBOCS points to the plain text of § 1981 -- a text that says that "[a]ll persons . . . shall have the
same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. §
1981(a) (emphasis added). CBOCS adds that, insofar as Humphries complains of retaliation, he
is complaining of a retaliatory action that the employer would have taken against him whether he
was black or white, and there is no way to construe this text to cover that kind of deprivation.
Thus the text's language, CBOCS concludes, simply "does not provide for a cause of action
based on retaliation."
We agree with CBOCS that the statute's language does not expressly refer to the claim of
an individual (black or white) who suffers retaliation because he has tried to help a different
individual, suffering direct racial discrimination, secure his § 1981 rights. But that fact alone is
not sufficient to carry the day. After all, this Court has long held that the statutory text of §
1981's sister statute, § 1982, provides protection from retaliation for reasons related to the
enforcement of the express statutory right.
Moreover, the Court has recently read another broadly worded civil rights statute,
namely, Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. §
1681 et seq., as including an antiretaliation remedy. In 2005 in Jackson, the Court considered
whether statutory language prohibiting "discrimination [on the basis of sex] under any education
program or activity receiving Federal financial assistance," § 1681(a), encompassed claims of
retaliation for complaints about sex discrimination. Despite the fact that Title IX does not use the
word "retaliation," the Court held in Jackson that the statute's language encompassed such a
claim, in part because: (1) "Congress enacted Title IX just three years after Sullivan was
decided"; (2) it is "'realistic to presume that Congress was thoroughly familiar'" with Sullivan;
and (3) Congress consequently "'expected its enactment'" of Title IX "'to be interpreted in
conformity with'" Sullivan. Jackson. The Court in Jackson explicitly rejected the arguments the
dissent advances here -- that Sullivan was merely a standing case (opinion of THOMAS, J.).
Regardless, the linguistic argument that CBOCS makes was apparent at the time the
Court decided Sullivan. See (Harlan, J., dissenting) (noting the construction of § 1982 in Jones
was "in no way required by [the statute's] language," -- one of the bases of Justice Harlan's
dissent in Jones -- and further contending that the Court in Sullivan had gone "yet beyond"
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Jones). And we believe it is too late in the day in effect to overturn the holding in that case (nor
does CBOCS ask us to do so) on the basis of a linguistic argument that was apparent, and which
the Court did not embrace at that time.
Second, CBOCS argues that Congress, in 1991 when it reenacted § 1981 with
amendments, intended the reenacted statute not to cover retaliation. CBOCS rests this conclusion
primarily upon the fact that Congress did not include an explicit antiretaliation provision or the
word "retaliation" in the new statutory language -- although Congress has included explicit
antiretaliation language in other civil rights statutes.
We believe, however, that the circumstances to which CBOCS points find a far more
plausible explanation in the fact that, given Sullivan and the new statutory language nullifying
Patterson, there was no need for Congress to include explicit language about retaliation. After
all, the 1991 amendments themselves make clear that Congress intended to supersede the result
in Patterson and embrace pre-Patterson law. And pre-Patterson law included Sullivan. Nothing
in the statute's text or in the surrounding circumstances suggests any congressional effort to
supersede Sullivan or the interpretation that courts have subsequently given that case. To the
contrary, the amendments' history indicates that Congress intended to restore that interpretation.
See, e.g., H. R. Rep. No. 102-40, at 92 (noting that § 1981(b) in the "context of employment
discrimination . . . would include . . . claims of . . . retaliation").
Third, CBOCS points out that § 1981, if applied to employment-related retaliation
actions, would overlap with Title VII. It adds that Title VII requires that those who invoke its
remedial powers satisfy certain procedural and administrative requirements that § 1981 does not
contain. . . . And CBOCS says that permitting a § 1981 retaliation action would allow a
retaliation plaintiff to circumvent Title VII's "specific administrative and procedural
mechanisms," thereby undermining their effectiveness.
This argument, however, proves too much. Precisely the same kind of Title VII/§ 1981
"overlap" and potential circumvention exists in respect to employment-related direct
discrimination. Yet Congress explicitly created the overlap in respect to direct employment
discrimination. Nor is it obvious how we can interpret § 1981 to avoid employment-related
overlap without eviscerating § 1981 in respect to non-employment contracts where no such
overlap exists.
Regardless, we have previously acknowledged a "necessary overlap" between Title VII
and § 1981. . . . In a word, we have previously held that the "overlap" reflects congressional
design. We have no reason to reach a different conclusion in this case.
Fourth, CBOCS says it finds support for its position in two of our recent cases,
Burlington N. & S. F. R. Co. v. White [reproduced at p. 473] and Domino's Pizza, Inc. v.
McDonald, 546 U.S. 470 (2006). In Burlington, a Title VII case, we distinguished between
discrimination that harms individuals because of "who they are, i.e., their status," for example, as
women or as black persons, and discrimination that harms "individuals based on what they do,
i.e., their conduct," for example, whistle-blowing that leads to retaliation. CBOCS says that we
should draw a similar distinction here and conclude that § 1981 only encompasses status-based
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discrimination. In Burlington, however, we used the status/conduct distinction to help explain
why Congress might have wanted its explicit Title VII antiretaliation provision to sweep more
broadly (i.e., to include conduct outside the workplace) than its substantive Title VII (statusbased) antidiscrimination provision. Burlington did not suggest that Congress must separate the
two in all events.
The dissent argues that the distinction made in Burlington is meaningful here because it
purportedly "underscores the fact that status-based discrimination and conduct-based retaliation
are distinct harms that call for tailored legislative treatment." The Court's construction of a
general ban on discrimination such as that contained in § 1981 to cover retaliation claims, the
dissent continues, would somehow render the separate antiretaliation provisions in other statutes
"superfluous." But the Court in Burlington did not find that Title VII's antiretaliation provision
was redundant; it found that the provision had a broader reach than the statute's substantive
provision. And in any case, we have held that "legislative enactments in this area have long
evinced a general intent to accord parallel or overlapping remedies against discrimination. . . .
CBOCS highlights the second case, Domino's Pizza, along with Patterson, and cites Cort
v. Ash, 422 U.S. 66 (1975) and Rodriguez v. United States, 480 U.S. 522 (1987) (per curiam), to
show that this Court now follows an approach to statutory interpretation that emphasizes text.
And that newer approach, CBOCS claims, should lead us to revisit the holding in Sullivan, an
older case, where the Court placed less weight upon the textual language itself. But even were
we to posit for argument's sake that changes in interpretive approach take place from time to
time, we could not agree that the existence of such a change would justify reexamination of wellestablished prior law. Principles of stare decisis, after all, demand respect for precedent whether
judicial methods of interpretation change or stay the same. Were that not so, those principles
would fail to achieve the legal stability that they seek and upon which the rule of law depends.
IV
We conclude that considerations of stare decisis strongly support our adherence to Sullivan
and the long line of related cases where we interpret §§ 1981 and 1982 similarly. CBOCS'
arguments do not convince us to the contrary. We consequently hold that 42 U.S.C. § 1981
encompasses claims of retaliation. . . .
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
I
It is unexceptional in our case law that "'[s]tatutory construction must begin with
the language employed by Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.'" Today, that rule is honored in the
breach: The Court's analysis of the statutory text does not appear until Part III of its
opinion, and then only as a potential reason to depart from the interpretation the Court has
already concluded, on other grounds, must "carry the day." Unlike the Court, I think it
best to begin, as we usually do, with the text of the statute. . . .
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. . . It is difficult to see where one finds a cause of action for retaliation in this language.
On its face, § 1981(a) is a straightforward ban on racial discrimination in the making and
enforcement of contracts. Not surprisingly, that is how the Court has always construed it.
Respondent nonetheless contends that "[t]he terms of section 1981 are significantly
different, and broader, than a simple prohibition against discrimination." It is true that § 1981(a),
which was enacted shortly after the Civil War, does not use the modern statutory formulation
prohibiting "discrimination on the basis of race." But that is the clear import of its terms.
Contrary to respondent's contention, nothing in § 1981 evinces a "concer[n] with protecting
individuals 'based on what they do,'" as opposed to "'prevent[ing] injury to individuals based on
who they are.'" Nor does § 1981 "affirmatively guarante[e]" freestanding "rights to engage in
particular conduct." Rather, § 1981 is an equal-rights provision. See Georgia v. Rachel, 384 U.S.
780, 791 (1966) ("Congress intended to protect a limited category of rights, specifically defined
in terms of racial equality"). The statute assumes that "white citizens" enjoy certain rights and
requires that those rights be extended equally to "[a]ll persons," regardless of their race. That is
to say, it prohibits discrimination based on race. . . .
Retaliation is not discrimination based on race. When an individual is subjected to reprisal
because he has complained about racial discrimination, the injury he suffers is not on account of
his race; rather, it is the result of his conduct. The Court recognized this commonsense
distinction just two years ago in Burlington when it explained that Title VII's antidiscrimination
provision "seeks to prevent injury to individuals based on who they are, i.e., their status,"
whereas its "antiretaliation provision seeks to prevent harm to individuals based on what they do,
i.e., their conduct." This distinction is sound, and it reflects the fact that a claim of retaliation is
both logically and factually distinct from a claim of discrimination -- logically because
retaliation based on conduct and discrimination based on status are mutually exclusive
categories, and factually because a claim of retaliation does not depend on proof that any statusbased discrimination actually occurred. Consider, for example, an employer who fires any
employee who complains of race discrimination, regardless of the employee's race. Such an
employer is undoubtedly guilty of retaliation, but he has not discriminated on the basis of
anyone's race. Because the employer treats all employees -- black and white -- the same, he does
not deny any employee "the same right . . . to make and enforce contracts . . . as is enjoyed by
white citizens."
The Court apparently believes that the status/conduct distinction is not relevant here
because this case, unlike Burlington, does not require us to determine whether § 1981's supposed
prohibition on retaliation "sweep[s] more broadly" than its antidiscrimination prohibition. That is
nonsense. Although, as the Court notes, we used the status/conduct distinction in Burlington to
explain why Title VII's antiretaliation provision must sweep more broadly than its
antidiscrimination provision in order to achieve its purpose, it does not follow that the distinction
between status and conduct is irrelevant here. To the contrary, Burlington underscores the fact
that status-based discrimination and conduct-based retaliation are distinct harms that call for
tailored legislative treatment. That is why Congress, in Title VII and a host of other statutes, has
enacted separate provisions prohibiting discrimination and retaliation. Construing a general ban
on discrimination such as that contained in § 1981 to cover retaliation would render these
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separate antiretaliation provisions superfluous, contrary to the normal rules of statutory
interpretation. . . .
II
Unable to justify its holding as a matter of statutory interpretation, the Court today
retreats behind the figleaf of ersatz stare decisis. The Court's invocation of stare decisis appears
to rest on three considerations: (1) Sullivan's purported recognition of a cause of action for
retaliation under § 1982; (2) Jackson's (re)interpretation of Sullivan; and (3) the Courts of
Appeals' view that § 1981 provides a cause of action for retaliation. None of these
considerations, separately or together, justifies implying a cause of action that Congress did not
include in the statute. And none can conceal the irony in the Court's novel use of stare decisis to
decide a question of first impression.
I turn first to Sullivan, as it bears most of the weight in the Court's analysis. As I
explained in my dissent in Jackson, Sullivan did not "hol[d] that a general prohibition against
discrimination permitted a claim of retaliation," but rather "that a white lessor had standing to
assert the right of a black lessee to be free from racial discrimination." Thus, "[t]o make out his
third-party claim on behalf of the black lessee, the white lessor would necessarily be required to
demonstrate that the defendant had discriminated against the black lessee on the basis of race."
Here, by contrast, respondent "need not show that the [race] discrimination forming the basis of
his complaints actually occurred." Accordingly, as it did in Jackson, the Court "creates an
entirely new cause of action for a secondary rights holder, beyond the claim of the original rights
holder, and well beyond Sullivan." . . .
I thus adhere to my view that Sullivan is best read as a third-party standing case. That is
how the parties argued the case, and that is the most natural reading of the Court's opinion. But
even if Sullivan could fairly be read as having inferred a freestanding cause of action for
retaliation -- which I doubt it can, at least not without superimposing an anachronistic outlook on
a Court that was not as familiar with retaliation claims as we are today -- the Court's oneparagraph discussion of the issue was, at best, both cursory and ambiguous. This is hardly the
stuff of which stare decisis is made.
[E]ven if Sullivan had squarely and unambiguously held that § 1982 provides an implied
cause of action for retaliation, it would have been wrong to do so because § 1982, like § 1981,
prohibits only discrimination based on race, and retaliation is not discrimination based on race.
The question, then, would be whether to extend Sullivan's erroneous interpretation of § 1982 to §
1981. The Court treats this as a foregone conclusion because "our precedents have long
construed §§ 1981 and 1982 similarly." But erroneous precedents need not be extended to their
logical end, even when dealing with related provisions that normally would be interpreted in
lockstep. Otherwise, stare decisis, designed to be a principle of stability and repose, would
become a vehicle of change whereby an error in one area metastasizes into others, thereby
distorting the law. Two wrongs do not make a right, and an aesthetic preference for symmetry
should not prevent us from recognizing the true meaning of an Act of Congress.
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The Court's remaining reasons for invoking stare decisis require little discussion. First,
the Court relies on the fact that Jackson interpreted Sullivan as having recognized a cause of
action for retaliation under § 1982. That is true but irrelevant. It was only through loose language
and creative use of brackets that Jackson was able to assert that Sullivan "upheld Sullivan's cause
of action under 42 U.S.C. § 1982 for '[retaliation] for the advocacy of [the black person's]
cause.'" . . .
Second, the Court appears to give weight to the fact that, since Congress passed the Civil
Rights Act of 1991, § 101, "the lower courts have uniformly interpreted § 1981 as encompassing
retaliation actions." This rationale fares no better than the others. The Court has never suggested
that rejection of a view uniformly held by the courts of appeals violates some principle of stare
decisis. To the contrary, we have not hesitated to take a different view if convinced the lower
courts were wrong. . . . The Court does not explain what makes this particular line of lower court
authority any more sacrosanct than those we have rejected in the past. . . .
NOTES
1.
A Pro-plaintiff Pattern? Plaintiffs have recently done very well before the
Supreme Court in retaliation cases. Obvious examples are Burlington Northern and CBOCS
itself, but the discussion about Jackson indicates yet a third important decision favoring
retaliation claims. Further, Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008), decided the same day
as CBOCS, was also a win for the plaintiff; it held that the section of the ADEA barring
discrimination by federal employers also bars retaliation for opposing age discrimination. Yet
another plaintiff victory in the retaliation context is Crawford v. Metro. Gov't of Nashville &
Davidson County, 129 S.Ct. 846 (2009), reproduced at p. 51 of this Update. See Michael J.
Zimmer, A Pro-Employee Supreme Court? – The Retaliation Decisions, 60 S.C. L. REV. ***
(2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1333778.
2.
A New Approach to Statutory Interpretation? Until recently, the Supreme Court,
influenced largely by Justice Scalia but to a significant extent by Justice Thomas, has been taking
a more textualist approach to statutory interpretation. Not only does legislative history take a
backseat (at best) to statutory language but other tools of statutory interpretation have been
subordinated to the text. But the retaliation cases are a case study in reading statutes to mean
something different than their “plain language” might suggest. Justice Thomas’s dissent in
CBOCS reflects his distaste for such approaches. Another discrimination decision that provoked
stinging dissents from Scalia and Thomas was General Dynamics Land Systems, Inc. v. Cline,
540 U.S. 581 (2004), which held that the ADEA’s bar on discrimination on account of age
reached only discrimination against older workers within the protected group.
CBOCS seems to depart from the text for three reasons. First, stare decisis commands it.
Justice Thomas disagrees—both because Sullivan v. Little Hunting Park, Inc. isn’t properly read
as protecting an individual from retaliation and because, even if it is, stare decisis should not
apply to an ambiguous opinion interpreting a somewhat different statute. This isn’t a very robust
view of stare decisis, is it? Second, the majority believes that whatever text Congress enacts
should be taken to have been passed in view of prior Supreme Court holdings as to what similar
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text means. This makes sense, doesn’t it? After all, the question is not stare decisis per se but
how Congress predicts the Court (on the basis of its prior holdings) will interpret this language.
It’s not so clear what Justice Thomas would say about this, other than that Sullivan, the case
supposedly so holding, did not do so. Third, the majority twice cites the House Report saying
that the 1991 Act would restore a cause of action for retaliation under § 1981. Justice Thomas
ignores such legislative history entirely.
What do you think of CBOCS as a matter of statutory interpretation? What is your
preferred approach to that task? For a discussion of the differing approaches the Justices took to
deciding the recent retaliation decisions, see Michael J. Zimmer, A Pro-Employee Supreme
Court? – The Retaliation Decisions, 60 S.C. L. REV. *** (2009),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1333778.
3. Retaliation and Discrimination. Both the majority and dissent repeatedly refer to the
distinction between retaliation and discrimination claims drawn by Burlington Northern. But the
majority couples its references to the need for protection from retaliation to reach outside the
workplace: “In Burlington, however, we used the status/conduct distinction to help explain why
Congress might have wanted its explicit Title VII antiretaliation provision to sweep more
broadly (i.e., to include conduct outside the workplace) than its substantive Title VII (statusbased) antidiscrimination provision.” Accordingly, neither Burlington Northern nor CBOCS is a
sub silentio endorsement of lower courts’ restrictive approaches to “adverse employment
actions.”
4.
The Scope of §1981 Protection. The CBOCS majority did not explore at any
length the scope of protection under that statute. It seems likely that the lower courts will largely
track Title VII law.
H.
AGE DISCRIMINATION
Page 482, add before section 1, Bona Fide Executive:
KENTUCKY RETIREMENT SYSTEMS v. EEOC
128 S.Ct. 2361 (2008)
JUSTICE BREYER delivered the opinion of the Court. . . .
I
A
Kentucky has put in place a special retirement plan (Plan) for state and county employees
who occupy "[h]azardous position[s]," e.g., active duty law enforcement officers, firefighters,
paramedics, and workers in correctional systems. See Ky. Rev. Stat. Ann. § 61.592(1)(a). The
Plan sets forth two routes through which such an employee can become eligible for what is
called "normal retirement" benefits. The first makes an employee eligible for retirement after 20
years of service. The second makes an employee eligible after only 5 years of service provided
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that the employee has attained the age of 55. See §§ 16.576, 16.577(2), 61.592(4). An employee
eligible under either route will receive a pension calculated in the same way: Kentucky
multiplies years of service times 2.5% times final preretirement pay. See § 16.576(3).
Kentucky's Plan has special provisions for hazardous position workers who become
disabled but are not yet eligible for normal retirement. Where such an employee has worked for
five years or became disabled in the line of duty, the employee can retire at once. See §§
16.576(1), 16.582(2). In calculating that employee's benefits Kentucky will add a certain number
of ("imputed") years to the employee's actual years of service. The number of imputed years
equals the number of years that the disabled employee would have had to continue working in
order to become eligible for normal retirement benefits, i.e., the years necessary to bring the
employee up to 20 years of service or to at least 5 years of service when the employee would
turn 55 (whichever number of years is lower). See § 16.582(5)(a). Thus, if an employee with 17
years of service becomes disabled at age 48, the Plan adds 3 years and calculates the benefits as
if the employee had completed 20 years of service. If an employee with 17 years of service
becomes disabled at age 54, the Plan adds 1 year and calculates the benefits as if the employee
had retired at age 55 with 18 years of service.
The Plan also imposes a ceiling on imputed years equal to the number of years the
employee has previously worked (i.e., an employee who has worked eight years cannot receive
more than eight additional imputed years); it provides for a certain minimum payment; and it
contains various other details, none of which is challenged here.
B
Charles Lickteig, a hazardous position worker in the Jefferson County Sheriff's
Department, became eligible for retirement at age 55, continued to work, became disabled, and
then retired at age 61. The Plan calculated his annual pension on the basis of his actual years of
service (18 years) times 2.5% times his final annual pay. Because Lickteig became disabled after
he had already become eligible for normal retirement benefits, the Plan did not impute any
additional years for purposes of the calculation.
Lickteig complained of age discrimination to the Equal Employment Opportunity
Commission (EEOC); and the EEOC then brought this age discrimination lawsuit against the
Commonwealth of Kentucky, Kentucky's Plan administrator, and other state entities (to whom
we shall refer collectively as "Kentucky"). The EEOC pointed out that, if Lickteig had become
disabled before he reached the age of 55, the Plan, in calculating Lickteig's benefits would have
imputed a number of additional years. And the EEOC argued that the Plan failed to impute years
solely because Lickteig became disabled after he reached age 55.
[The Sixth Circuit sitting en banc, held that Kentucky's Plan violated the ADEA.
Kentucky sought certiorari. Because of “the potentially serious impact of the Circuit's decision
upon pension benefits provided under plans in effect in many States, we granted the writ.”]
II
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The ADEA forbids an employer to "fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age." 29 U.S.C. §
623(a)(1) (emphasis] added). In Hazen Paper Co. v. Biggins [reproduced at p. 9] the Court
explained that where, as here, a plaintiff claims age-related "disparate treatment" (i.e., intentional
discrimination "because of . . . age") the plaintiff must prove that age "actually motivated the
employer's decision." The Court noted that "[t]he employer may have relied upon a formal,
facially discriminatory policy requiring adverse treatment" because of age, or "the employer may
have been motivated by [age] on an ad hoc, informal basis." But "[w]hatever the employer's
decisionmaking process," a plaintiff alleging disparate treatment cannot succeed unless the
employee's age "actually played a role in that process and had a determinative influence on the
outcome." Ibid. (emphasis added).
In Hazen Paper the Court considered a disparate treatment claim that an employer had
unlawfully dismissed a 62-year-old employee with over 9 1/2 years of service in order to avoid
paying pension benefits that would have vested after 10 years. The Court held that, without more
evidence of intent, the ADEA would not forbid dismissal of the claim. A dismissal based on
pension status was not a dismissal "because . . . of age." Of course, pension status depended upon
years of service, and years of service typically go hand in hand with age. But the two concepts
were nonetheless "analytically distinct." An employer could easily "take account of one while
ignoring the other." And the dismissal in question, if based purely upon pension status (related to
years of service), would not embody the evils that led Congress to enact the ADEA in the first
place: The dismissal was not based on a "prohibited stereotype" of older workers, did not
produce any "attendant stigma" to those workers, and was not "the result of an inaccurate and
denigrating generalization about age."
At the same time, Hazen Paper indicated that discrimination on the basis of pension
status could sometimes be unlawful under the ADEA, in particular where pension status served
as a "proxy for age." Suppose, for example, an employer "target[ed] employees with a particular
pension status on the assumption that these employees are likely to be older." In such a case,
Hazen Paper suggested, age, not pension status, would have "actually motivated" the employer's
decisionmaking. Hazen Paper also left open "the special case where an employee is about to vest
in pension benefits as a result of his age, rather than years of service." We here consider a
variation on this "special case" theme.
III
Kentucky's Plan turns normal pension eligibility either upon the employee's having
attained 20 years of service alone or upon the employees having attained 5 years of service and
reached the age of 55. The ADEA permits an employer to condition pension eligibility upon age.
See 29 U.S.C.A. § 623(l)(1)(A)(i). Thus we must decide whether a plan that (1) lawfully makes
age in part a condition of pension eligibility, and (2) treats workers differently in light of their
pension status, (3) automatically discriminates because of age. The Government argues "yes."
But, following Hazen Paper's approach, we come to a different conclusion. In particular, the
following circumstances, taken together, convince us that, in this particular instance, differences
in treatment were not "actually motivated" by age.
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First, as a matter of pure logic, age and pension status remain "analytically distinct"
concepts. Hazen Paper. That is to say, one can easily conceive of decisions that are actually
made "because of" pension status and not age, even where pension status is itself based on age.
Suppose, for example that an employer pays all retired workers a pension, retirement eligibility
turns on age, say 65, and a 70-year-old worker retires. Nothing in language or in logic prevents
one from concluding that the employer has begun to pay the worker a pension, not because the
worker is over 65, but simply because the worker has retired.
Second, several background circumstances eliminate the possibility that pension status,
though analytically distinct from age, nonetheless serves as a "proxy for age" in Kentucky's Plan.
We consider not an individual employment decision, but a set of complex systemwide rules.
These systemic rules involve, not wages, but pensions -- a benefit that the ADEA treats
somewhat more flexibly and leniently in respect to age. See, e.g., 29 U.S.C.A. § 623(l)(1)(A)(i)
(explicitly allowing pension eligibility to turn on age); 29 U.S.C. § 623(l)(2)(A) (allowing
employer to consider (age-related) pension benefits in determining level of severance pay); §
623(l)(3) (allowing employer to consider (age-related) pension benefits in determining level of
long-term disability benefits). And the specific benefit at issue here is offered to all hazardous
position workers on the same nondiscriminatory terms ex ante. That is to say, every such
employee, when hired, is promised disability retirement benefits should he become disabled prior
to the time that he is eligible for normal retirement benefits.
Furthermore, Congress has otherwise approved of programs that calculate permanent
disability benefits using a formula that expressly takes account of age. For example, the Social
Security Administration now uses such a formula in calculating Social Security Disability
Insurance benefits. See, e.g., 42 U.S.C. § 415(b)(2)(B)(iii); 20 CFR § 404.211(e) (2007). And
until (and in some cases after) 1984, federal employees received permanent disability benefits
based on a formula that, in certain circumstances, did not just consider age, but effectively
imputed years of service only to those disabled workers younger than 60. See 5 U.S.C. § 8339(g)
(2006 ed.); see also Office of Personnel Management, Disability Retirement Under the Civil
Service Retirement System, Retirement Facts 4, p. 3 (rev. Nov. 1997), on line at
http://www.opm.gov/forms/pdfimage/RI83-4.pdf (as visited June 16, 2008, and available in
Clerk of Court's case file).
Third, there is a clear non-age-related rationale for the disparity here at issue. The manner
in which Kentucky calculates disability retirement benefits is in every important respect but one
identical to the manner in which Kentucky calculates normal retirement benefits. The one
significant difference consists of the fact that the Plan imputes additional years of service to
disabled individuals. But the Plan imputes only those years needed to bring the disabled worker's
years of service to 20 or to the number of years that the individual would have worked had he
worked to age 55. The disability rules clearly track Kentucky's normal retirement rules.
It is obvious, then, that the whole purpose of the disability rules is, as Kentucky claims, to
treat a disabled worker as though he had become disabled after, rather than before, he had
become eligible for normal retirement benefits. Age factors into the disability calculation only
because the normal retirement rules themselves permissibly include age as a consideration. No
one seeking to help disabled workers in the way that Kentucky's rules seek to help those workers
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would care whether Kentucky's normal system turned eligibility in part upon age or upon other,
different criteria.
That this is so is suggested by the fact that one can readily construct a plan that produces
an identical disparity but is age neutral. Suppose that Kentucky's Plan made eligible for a
pension (a) day-shift workers who have 20 years of service, and (b) night-shift workers who have
15 years of service. Suppose further that the Plan calculates the amount of the pension the same
way in either case, which method of calculation depends solely upon years of service (say,
giving the worker a pension equal to $ 1,000 for each year of service). If the Plan were then to
provide workers who become disabled prior to pension eligibility the same pension the workers
would have received had they worked until they became pension eligible, the plan would create a
disparity between disabled day-shift and night-shift workers: A day-shift worker who becomes
disabled before becoming pension eligible would, in many instances, end up receiving a bigger
pension than a night-shift worker who becomes disabled after becoming pension eligible. For
example, a day-shift worker who becomes disabled prior to becoming pension-eligible would
receive an annual pension of $20,000, while a night-shift worker who becomes disabled after
becoming pension-eligible, say, after 16 years of service, would receive an annual pension of
$16,000.
The disparity in this example is not "actually motivated" by bias against night-shift
workers. Rather, such a disparity, like the disparity in the case before us, is simply an artifact of
Plan rules that treat one set of workers more generously in respect to the timing of their eligibility
for normal retirement benefits but which do not treat them more generously in respect to the
calculation of the amount of their normal retirement benefits. The example helps to show that the
Plan at issue in this case simply seeks to treat disabled employees as if they had worked until the
point at which they would be eligible for a normal pension. The disparity turns upon pension
eligibility and nothing more.
Fourth, although Kentucky's Plan placed an older worker at a disadvantage in this case,
in other cases, it can work to the advantage of older workers. Consider, for example, two
disabled workers, one of whom is aged 45 with 10 years of service, one of whom is aged 40 with
15 years of service. Under Kentucky's scheme, the older worker would actually get a bigger
boost of imputed years than the younger worker (10 years would be imputed to the former, while
only 5 years would be imputed to the latter). And that fact helps to confirm that the underlying
motive is not an effort to discriminate "because of . . . age."
Fifth, Kentucky's system does not rely on any of the sorts of stereotypical assumptions
that the ADEA sought to eradicate. It does not rest on any stereotype about the work capacity of
"older" workers relative to "younger" workers. See, e.g., General Dynamics Land Systems, Inc.
v. Cline, 540 U.S. 581, 590 (2004) (noting that except on one point, all the findings and
statements of objectives in the ADEA are "either cast in terms of the effects of age as
intensifying over time, or are couched in terms that refer to 'older' workers, explicitly or
implicitly relative to 'younger' ones" (emphasis added)). The Plan does assume that all disabled
workers would have worked to the point at which they would have become eligible for a
pension. It also assumes that no disabled worker would have continued working beyond the point
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at which he was both (1) disabled; and (2) pension eligible. But these "assumptions" do not
involve age-related stereotypes, and they apply equally to all workers, regardless of age.
Sixth, the nature of the Plan's eligibility requirements means that, unless Kentucky were
severely to cut the benefits given to disabled workers who are not yet pension eligible (which
Kentucky claims it will do if its present Plan is unlawful), Kentucky would have to increase the
benefits available to disabled, pension-eligible workers, while lacking any clear criteria for
determining how many extra years to impute for those pension-eligible workers who already are
55 or older. The difficulty of finding a remedy that can both correct the disparity and achieve the
Plan's legitimate objective -- providing each disabled worker with a sufficient retirement benefit,
namely, the normal retirement benefit that the worker would receive if he were pension eligible
at the time of disability -- further suggests that this objective and not age "actually motivated" the
Plan.
The above factors all taken together convince us that the Plan does not, on its face, create
treatment differences that are "actually motivated" by age. And, for present purposes, we accept
the District Court's finding that the Government has pointed to no additional evidence that might
permit a factfinder to reach a contrary conclusion.
It bears emphasizing that our opinion in no way unsettles the rule that a statute or policy
that facially discriminates based on age suffices to show disparate treatment under the ADEA.
We are dealing today with the quite special case of differential treatment based on pension
status, where pension status -- with the explicit blessing of the ADEA -- itself turns, in part, on
age. Further, the rule we adopt today for dealing with this sort of case is clear: Where an
employer adopts a pension plan that includes age as a factor, and that employer then treats
employees differently based on pension status, a plaintiff, to state a disparate treatment claim
under the ADEA, must adduce sufficient evidence to show that the differential treatment was
"actually motivated" by age, not pension status. And our discussion of the factors that lead us to
conclude that the Government has failed to make the requisite showing in this case provides an
indication of what a plaintiff might show in other cases to meet his burden of proving that
differential treatment based on pension status is in fact discrimination "because of" age.
[The majority rejected the argument that the statutory amendment allowing age discrimination in
benefits only when age-based disparities are justified by cost savings, 29 U.S.C. §
623(f)(2)(B)(i), required a different result. Because any disparity was “not ‘actually motivated’
by age,” the equal cost provision “is beside the point.” Similarly, the Court refused to defer to
contrary EEOC interpretations in its regulation or compliance manual. The regulation was not
sufficiently specific, and the compliance manual was entitled only to Skidmore v. Swift & Co.,
323 U.S. 134, 140 124 (1944), deference, and under that “lacks the necessary ‘power to
persuade’ us.”
JUSTICE KENNEDY, with whom JUSTICE SCALIA, JUSTICE GINSBURG, and JUSTICE
ALITO join, dissenting.
The Court today ignores established rules for interpreting and enforcing one of the most
important statutes Congress has enacted to protect the Nation's work force from age
discrimination. [The ADEA] prohibits employment actions that "discriminate against any
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individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age." § 623(a)(1). In recent years employers and employees alike
have been advised by this Court, by most Courts of Appeals, and by the agency charged with
enforcing the Act, the Equal Employment Opportunity Commission (EEOC), that the most
straightforward reading of the statute is the correct one: When an employer makes age a factor in
an employee benefit plan in a formal, facial, deliberate, and explicit manner, to the detriment of
older employees, this is a violation of the Act. Disparate treatment on the basis of age is
prohibited unless some exemption or defense provided in the Act applies.
. . . By embracing the approach rejected by the en banc panel and all other Courts of
Appeals that have addressed this issue, this Court creates unevenness in administration,
unpredictability in litigation, and uncertainty as to employee rights once thought well settled.
These consequences, and the Court's errors in interpreting the statute and our cases, require this
respectful dissent.
Even were the Court correct that Kentucky's facially discriminatory disability benefits
plan can be justified by a proper motive, the employer's own submission to us reveals that the
plan's discriminatory classification rests upon a stereotypical assumption that itself violates the
Act and the Court's own analytical framework.
As a threshold matter, all should concede that the paradigm offered to justify the statute is
a powerful one: The young police officer or firefighter with a family is disabled in the heroic
performance of his or her duty. Disability payments are increased to account for unworked years
of service. What the Court overlooks, however, is that a 61-year-old officer or firefighter who is
disabled in the same heroic action receives, in many instances, a lower payment and for one
reason alone: By explicit command of Kentucky's disability plan age is an express disadvantage
in calculating the disability payment.
This is a straightforward act of discrimination on the basis of age. Though the
Commonwealth is entitled by the law, in some instances, to defend an age-based differential as
cost justified, 29 U.S.C. § 623(f)(2)(B)(ii), that has yet to be established here. What an employer
cannot do, and what the Court ought not to do, is to pretend that this explicit discrimination
based on age is somehow consistent with the broad statutory and regulatory prohibition against
disparate treatment based on age.
I
. . .The distinction between normal and disability retirement is not just a difference of
nomenclature. Under the normal retirement system benefits are calculated by multiplying a
percentage of the employee's pay at retirement by years of service. Under the disability system
the years-of-service multiplier includes not only the employee's actual years of service but also
the number of years it would have taken the employee to become eligible for normal retirement
(subject to a cap equal to the number of actual years served). In other words employees in the
normal retirement system are compensated based solely on their actual years of service; but
employees in the disability retirement system get a bonus, which accounts for the number of
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years the employee would have worked had he or she remained healthy until becoming eligible
to receive normal retirement benefits.
Whether intended or not, the result of these divergent benefits formulae is a system that,
in some cases, compensates otherwise similarly situated individuals differently on the basis of
age. Consider two covered workers, one 45 and one 55, both with five years of service with the
Commonwealth and an annual salary of $60,000. If we assume both become disabled in the same
accident, the 45-year-old will be entitled to receive $1,250 in monthly benefits; the 55-year-old
will receive $625, just half as much. The benefit disparity results from the Commonwealth's
decision, under the disability retirement formula, to credit the 45-year-old with 5 years of
unworked service (thereby increasing the appliable years-service-multipler to 10 years), while
the 55-year-old's benefits are based only on actual years of service (5 years). In that instance age
is the only factor that accounts for the disparate treatment.
True, age is not a factor that reduces benefits in every case. If a worker has accumulated
20 years of service with the Commonwealth before he or she becomes disabled, age plays no role
in the benefits calculation. But there is no question that, in many cases, a disabled worker over
the age of 55 who has accumulated fewer than 20 years of service receives a lower monthly
stipend than otherwise similarly situated workers who are under 55. The Court concludes this
result is something other than discrimination on the basis of age only by ignoring the statute and
our past opinions.
II
It is difficult to find a clear rule of law in the list of policy arguments the Court makes to
justify its holding. The difficulty is compounded by the Court's own analysis. The Court
concedes that, in this case, Kentucky's plan "placed an older worker at a disadvantage"; yet it
proceeds to hold that the Commonwealth's disparate treatment of its workers was not "'actually
motivated' by age." The Court's apparent rationale is that, even when it is evident that a benefits
plan discriminates on its face on the basis of age, an ADEA plaintiff still must provide additional
evidence that the employer acted with an "underlying motive" to treat older workers less
favorably than younger workers.
The Court finds no support in the text of the statute. In the wake of Public Employees
Retirement System of Ohio v. Betts, 492 U.S. 158 (1989), where the Court held that bona fide
employee benefit plans were exempt from the coverage of the ADEA, Congress amended the
Act to provide that an employee benefit plan that discriminates on the basis of age is unlawful,
except when the employer establishes entitlement to one of the affirmative defenses Congress
has provided. As a result of the OWBPA, an employer cannot operate an employee benefit plan
in a manner that "discriminate[s] against any individual . . . because of such individual's age," §
623(a), except when the plan is a "voluntary early retirement incentive plan" or when "the actual
amount of payment made or cost incurred on behalf of an older worker is no less than that made
or incurred on behalf of a younger worker," §§ 623(f)(2)(B)(i)-(ii); see generally B. Lindemann
& D. Kadue, Age Discrimination in Employment Law 175 (2003). Under any common
understanding of the statute's terms a disability plan that pays older workers less than younger
workers on the basis of age "discriminate[s] . . . because of . . . age." That is how the agency that
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administers the statute, the EEOC, understands it. See 2 EEOC Compliance Manual § 3, p.
627:0004 (2001) ("[B]enefits will not be equal where a plan reduces or eliminates benefits based
on a criterion that is explicitly defined (in whole or in part) by age"). And the employer here has
not shown that any of the affirmative defenses or exemptions to the Act applies. That should be
the end of the matter; the employer is liable unless it can make such a showing.
The Court's holding stems, it asserts, from a statement in Hazen Paper Co. v. Biggins, that
an employment practice discriminates only if it is "'actually motivated'" by the protected trait.
(quoting Hazen Paper; emphasis deleted). If this phrase had been used without qualification, the
Court's interpretation of it might have been justified. If one reads the relevant passage in full
(with particular emphasis on the second sentence), however, Hazen Paper makes quite clear that
no additional proof of motive is required in an ADEA case once the employment policy at issue
is deemed discriminatory on its face. The Court said this:
In a disparate treatment case, liability depends on whether the protected trait (under the ADEA,
age) actually motivated the employer's decision.. The employer may have relied upon a formal,
facially discriminatory policy requiring adverse treatment of employees with that trait.. Or the
employer may have been motivated by the protected trait on an ad hoc, informal basis. Whatever
the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the
employee's protected trait actually played a role in that process and had a determinative influence
on the outcome.
In context the paragraph identifies a decision made in reliance on a "facially discriminatory
policy requiring adverse treatment of employees with [a protected] trait" as a type of
employment action that is "actually motivated" by that trait. By interpreting Hazen Paper to say
that a formal, facial, explicit, mandated, age-based differential does not suffice to establish a
disparate-treatment violation (subject to statutory defenses and exemptions), it misconstrues the
precedent upon which its entire theory of this case is built. The Court was right in Hazen Paper
and is wrong here.
At a minimum the Court should not cite Hazen Paper to support what it now holds. Its
conclusion that no disparate-treatment violation has been established here conflicts with the
long-standing rule in ADEA cases. The rule -- confirmed by the quoted text in Hazen Paper -- is
that once the plaintiff establishes that a policy discriminates on its face, no additional proof of a
less-than-benign motive for the challenged employment action is required. For if the plan
discriminates on its face, it is obvious that decisions made pursuant to the plan are "actually
motivated" by age. The EEOC (or the employee) must prevail unless the employer can justify its
action under one of the enumerated statutory defenses or exemptions.
Two cases cited in Hazen Paper as examples of "formal, facially discriminatory
polic[ies]," stand for this proposition. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
(1985); Los Angeles Dept. of Water and Power v. Manhart [reproduced at p. 116].
In Thurston, the Court considered whether Trans World Airlines' transfer policy for older
pilots violated the ADEA. The policy allowed pilots to continue working for the airline past the
mandatory retirement age of 60 if they transferred to the position of flight engineer. But the 60year-old pilot had to bid for the position. Under the bid procedures a pilot who became ineligible
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to remain at the controls on account of a disability (or even outright incompetence) had priority
over a pilot forced out due to age. The Court held the burden-shifting framework of McDonnell
Douglas Corp. v. Green, which is used to determine whether there was a discriminatory motive
at play, had no application because the policy was "discriminatory on its face."
Manhart, a Title VII case, involved a municipal employees' retirement plan that forced
female employees to make larger contributions than their male counterparts. The Court noted
that even if there were no evidence that the policy had a discriminatory "effect," "that evidence
does not defeat the claim that the practice, on its face, discriminated against every individual
woman employed by the Department."
Just as the majority misunderstands Hazen Paper's reference to employment practices
that are "actually motivated" by age, so too does it overstate what the Hazen Paper Court meant
when it observed that pension status and age are "analytically distinct." The Court now reads this
language as creating a virtual safe harbor for policies that discriminate on the basis of pension
status, even when pension status is tied directly to age and then linked to another type of benefit
program. The Hazen Paper Court did not allow, or support, this result. In Hazen Paper pension
status and age were "analytically distinct" because the employee's eligibility to receive a pension
formally had nothing to do with age; pension status was tied solely to years of service. The Court
recognized that age and pension status were correlated (because older workers were more likely
to be pension eligible); but the Court found the plan to be facially neutral with regard to age
precisely because age and pension status were not expressly linked under the terms of the plan..
In order to prove disparate-treatment liability the Hazen Paper Court held that the plaintiff
needed to provide additional evidence that his termination in fact was motivated by age.
The saving feature that was controlling in Hazen Paper is absent here. This case is the
opposite of Hazen Paper. Here the age distinction is active and present, not superseded and
absent. Age is a determining factor of pension eligibility for all workers over the age of 55 who
have over 5 (but less than 20) years of service; and pension status, in turn, is used to determine
eligibility for disability benefits. For these employees, pension status and age are not
"analytically distinct" in any meaningful sense; they merge into one category. When it treats
these employees differently on the basis of pension eligibility, Kentucky facially discriminates
on the basis of age. Were this not the case, there would be no facial age discrimination if an
employer divided his employees into two teams based upon age -- putting all workers over the
age of 65 on "Team A" and all other workers on "Team B" -- and then paid Team B members
twice the salary of their Team A counterparts, not on the basis of age (the employer would
declare) but of team designation. Neither Hazen Paper nor the plain text of the ADEA can be
read to permit this result.
The closest the Court comes to reconciling its holding with the actual text of the statute is
its citation to the Act's exemption allowing employers to condition pension eligibility on age. Of
course, the fact that it invokes an exemption is a concession by the Court that the Act otherwise
would condemn the age-based classification Kentucky's disability plan makes. But the
exemption provides no support for the Court's holding in any event. Its coverage is limited to
"employee pension benefit plan[s] [that] provid[e] for the attainment of a minimum age as a
condition of eligibility for normal or early retirement benefits." § 623(l)(1)(A)(i). There is no
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farther reaching exemption for subsequent employment decisions based upon pension eligibility.
And to the extent the Court finds such a loophole to be implicit in the text of the statute, a
disability benefits program of the sort at issue here is not the only type of employment policy
that fits through it. If the ADEA allows an employer to tie disability benefits to an age-based
pension status designation, that same designation can be used to determine wages, hours, heath
care benefits, reimbursements, job assignments, promotions, office space, transportation
vouchers, parking privileges, and any other conceivable benefit or condition of employment.
III
The Court recognizes some of the difficulties with its position and seeks to limit its
holding, yet it does so in ways not permitted by statute or our previous employment
discrimination cases.
The Court notes that age is not the sole determining factor of pension eligibility but is
instead just one factor embedded in a set of "complex system-wide rules." There is no suggestion
in our prior ADEA cases, however, and certainly none in our related Title VII jurisprudence, that
discrimination based on a protected trait is permissible if the protected trait is one among many
variables.
This is quite evident when the protected trait is necessarily a controlling, outcomedeterminative factor in calculating employee benefits. In Manhart, for instance, sex was not the
only factor determining how much an employee was required to contribute to the pension plan
on a monthly basis; the employee's salary, age, and length of service were also variables in the
equation. And even though the employer's decision to require higher contributions from female
employees was based upon an actuarially sound premise -- that women have longer life
expectancies than men -- the Court held that the plan discriminated on its face.
Similarly, we have said that the ADEA's substantive prohibitions, which were "derived in
haec verba from Title VII," Lorillard v. Pons, 434 U.S. 575, 584 (1978), require the employer
"to ignore an employee's age (absent a statutory exemption or defense)," Hazen Paper. This
statement perhaps has been qualified by the Court's subsequent holding in General Dynamics
Land Systems, Inc. v. Cline, that the ADEA does not forbid employers from discriminating in
favor of older workers to the detriment of younger workers. Reasonable minds may have
disagreed about the merits of Cline's holding. See id.,(SCALIA, J., dissenting); see also id.
(THOMAS, J., dissenting). But Cline does not dictate the path the Court chooses here. For it is
one thing to interpret a statute designed to combat age discrimination in a way that benefits older
workers to the detriment of younger workers; it is quite another to do what the Court does in this
case, which is to interpret the ADEA to allow a discriminatory employment practice that
disfavors older workers while favoring younger ones. The Court, moreover, achieved the result
in Cline by reading the word "age" to mean "old age" -- i.e., by reading "discriminat[ion] . . .
because of [an] individual's age," 29 U.S.C. § 623(a), to mean discrimination because of an
individual's advanced age. See Cline. Here the Court seems to adopt a new definition of the term
"discriminate" by holding that there is no discrimination on the basis of a protected trait if the
trait is one among several factors that bear upon how an employee is treated. There is no
principled way to draw this distinction, and the Court does not attempt to do so. Cf. Manhart
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("[T]here is no reason to believe that Congress intended a special definition of discrimination in
the context of employee group insurance coverage").
The Court recites what it sees as "several background circumstances [that] eliminate the
possibility that pension status, though analytically distinct from age, nonetheless serves as a
'proxy for age' in Kentucky's Plan." Among these is a "clear non-age-related rationale,""to treat a
disabled worker as though he had become disabled after, rather than before, he had become
eligible for normal retirement benefits." There is a difference, however, between a laudable
purpose and a rule of law.
An otherwise discriminatory employment action cannot be rendered lawful because the
employer's motives were benign. In Automobile Workers v. Johnson Controls, Inc. [reproduced
at p.173] the employer had a policy barring all female employees, except those who were
infertile, from performing jobs that exposed them to lead. The employer said its policy was
designed not to reinforce negative gender stereotypes but to protect female employees' unborn
children against the risk of birth defects. The argument did not prevail. The plan discriminated
on its face on the basis of sex, and the employer did not establish a bona fide occupational
qualification defense. As a result, the Court held that the restriction violated Title VII. "[T]he
absence of a malevolent motive [did] not convert a facially discriminatory plan into a neutral
policy with a discriminatory effect."
Still, even if our cases allowed the motive qualification the Court puts forth to justify a
facial and operative distinction based upon age, the plan at issue here does not survive the
Court's own test. We need look no further than the Commonwealth's own brief for evidence that
its motives are contrary to the ADEA. In its brief the Commonwealth refers to the 61-year-old
complainant in this case, Charles Lickteig, as follows:
An employee in Mr. Lickteig's position has had an extra 21 years to devote to making money,
providing for himself and his family, saving funds for retirement, and accruing years that will
increase his retirement benefits. Thus, the 40-year-old employee is likely to need more of a boost.
The hypothetical younger worker seems entitled to a boost only if one accepts that the younger
worker had more productive years of work left in him at the time of his injury than Lickteig did.
As an actuarial matter, this assumption may be sound. It is an impermissible basis for differential
treatment under the ADEA, however. As we said in Hazen Paper, the idea that "productivity and
competence decline with old age" is the "very essence of age discrimination." By forbidding age
discrimination against any "individual," 29 U.S.C. § 623(a), the ADEA forbids employers from
using the blunt tool of age to assess an employee's future productivity. Cf. Western Air Lines,
Inc. v. Criswell, 472 U.S. 400, 409 (1985) (noting the Labor Department's findings that "the
process of psychological and physiological degeneration caused by aging varies with each
individual"). Whether this is good public policy in all instances might be debatable. Until
Congress sees fit to change the language of the statute, however, there is no principled basis for
upholding Kentucky's disability benefits formula.
***
As explained in this dissent, Kentucky's disability retirement plan violates the ADEA, an
Act intended to promote the interests of older Americans. Yet it is no small irony that it does so,
at least in part, because the Commonwealth's normal retirement plan treats older workers in a
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particularly generous fashion. Kentucky allows its employees to retire at the age of 55 if they
have accumulated only five years of service. But for this provision, which links age and years of
service in a way that benefits older workers, pension eligibility would be a function solely of
tenure, not age. Accordingly, this case would be more like Hazen Paper, and the EEOC's case
would be much weaker. Similarly, as the Court notes, Kentucky could avoid any problems by not
imputing unworked years of service to any disabled workers, old and young alike. Neither
change to the plan would result in more generous treatment for older workers. The only
difference would be that, under the first example, older workers would lose the option of early
retirement, and, under the second, younger workers would see their benefits cut. These are not
the only possible remedies -- the Commonwealth could impute unworked years of service to all
employees forced into retirement on account of a disability regardless of age.
The Court's desire to avoid construing the ADEA in a way that encourages the
Commonwealth to eliminate its early retirement program or to reduce benefits to the policemen
and firefighters who are covered under the disability plan is understandable. But, under our
precedents, "'[a] benefit that is part and parcel of the employment relationship may not be doled
out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit
at all.'" Thurston quoting Hishon v. King & Spalding, 467 U.S. 69, 75 (1984)). If Kentucky's
facially discriminatory plan is good public policy, the answer is not for this Court to ignore its
precedents and the plain text of the statute.
For these reasons, in my view, the judgment of the Court of Appeals should be affirmed
and the case remanded for a determination whether the State can assert a cost-justification
defense.
NOTES
1.
Why Here? Perhaps your first question about Kentucky Retirement Systems is,
why are we reading it here? After all, it is possible to read the case as undoing quite a lot of
what we’ve learned before: the lesson from cases such as Manhart and Johnson Controls is that
the benignity of the motives for discriminating does not matter; intending to treat individuals
differently on account of a prohibited characteristic makes out a violation (subject only to
defined statutory defenses). Kentucky Retirement Systems can be read as turning this principle on
its head and holding that a “good” motive justifies even facial discrimination. That’s the thrust of
Justice Kennedy’s dissent.
2.
But we don’t think so (although we’ve been wrong before). The opinion frames the issue
narrowly: “The ADEA permits an employer to condition pension eligibility upon age. Thus we
must decide whether a plan that (1) lawfully makes age in part a condition of pension eligibility,
and (2) treats workers differently in light of their pension status, (3) automatically discriminates
because of age.” (citation omitted). We read this to mean that Kentucky Retirement controls only
when an age criterion is legal to begin with. Indeed, the majority makes this clear: “We consider
not an individual employment decision, but a set of complex system-wide rules. These systemic
rules involve, not wages, but pensions—a benefit that the ADEA treats somewhat more flexibly
and leniently in respect to age.” Further, the Court lists six reasons why the retirement plan is not
suspect, and concludes that these “factors, taken together” exonerate the plan. Finally, the Court
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rounds off its opinion by stressing that it is “dealing with the quite special case of differential
treatment based on pension status, where pension status—with the explicit blessing of the
ADEA—itself turns on age.” (italics in original).
2.
The Problem. Students’ eyes tend to glaze over when they encounter cases like
Kentucky Retirement Systems, but it’s really not so complicated. Take Joe, who has worked as a
policeman for 20 years and then retires. He can do this at any age, which means it would not be
surprising to see a 45 year old retired cop sitting next to you as a law student. According to the
Court, Joe gets a monthly benefit of 2.5% of his final salary times his years of service. That
means that if he works the minimum 20 years, he gets half of his final salary. (Police and
firefighters often try to pile up overtime in their last year(s), and now you can see why; there’s
also the possibility of cost of living increases, but we can ignore those complications).
So if Joe earned $60,000 his final year, he has a $30,000 pension. If Joe had worked for
30 years, he’d get 75% of his final salary or $45,000. So there’s an incentive to continue working
after having put in your 20 years. So far so good, and none of this has anything to do with age
per se—it’s all years of service.
But the Kentucky system has an alternative: one can retire after only five years of service
if one is 55. This does have an age factor, but it benefits older workers and, therefore under
Cline, cannot be age discrimination. If Jane starts work as a cop at 50, she can retire at 55. She
gets the same 2.5% of final salary as Joe, but, of course, she receives it only for 5 years of
service. She’s not as well off as Joe, but she’s served 15 years less, and she gets the same per
year benefit as Joe.
Neither of these situations poses any ADEA problem. That arises because of yet another
feature of the Kentucky system: those disabled in the line of duty may take disability retirement,
and they are given imputed years of service in order to calculate their benefits. The number of
years imputed is the number necessary to make them eligible for retirement under one of the
other alternatives. Disability retirement doesn’t take anything away from any workers, and is
available to all, so that’s not a problem.
So what is the problem? Disability retirement years that are imputed are capped: one such
cap is that an individual who has already become eligible for normal retirement does not get any
imputed years.
In any event, an employee who becomes disabled after age 55 (assuming at least 5 years
of service) has no imputed years; an employee who becomes disabled before age 55 (so long as
she has not accumulated more than 20 years of service) gets imputed years. Multiply the number
of imputed years by 2.5% and you get the age discrimination that the EEOC challenged.
3.
The Resolution. For all the majority’s six reasons, its central perception seems to
be that the cap simply ensures that disability benefits track normal retirement benefits:
4.
It is obvious, then, that the whole purpose of the disability rules is, as Kentucky claims, to
treat a disabled worker as though he had become disabled after, rather than before, he had
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become eligible for normal retirement benefits. Age factors into the disability calculation
only because the normal retirement rules themselves permissibly include age as a
consideration.
That may be true. But do you think it’s possible that Kentucky believed that older
workers would tend to be disabled more easily than younger workers? The system might have
been willing to allow employment beyond the minimum service needed for the two “normal”
retirement options but not wanted to provide an additional incentive to do so. Take Lickteig
himself. After age 55, he accumulated 4 more years of service, which meant an additional 10%
of his final salary. If he had accumulated another four imputed years, he would have added
another 10%. Older workers might be valuable, but not that valuable.
4.
Other Barriers to Age Discrimination Suits Against State and Local Governments.
Because it was the EEOC who was the plaintiff in the principal case, the Eleventh Amendment
was no barrier to suit. Had one of the System’s beneficiaries sued, it is likely that the Eleventh
Amendment would have barred the action. See p. 648. As for local governmental agencies, they
have no such immunity, but there are other problems where age discrimination is concerned.
First, age is not a suspect class, so the standard of review is rational basis. Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 83 (2000) (“We have considered claims of unconstitutional age
discrimination under the Equal Protection Clause three times. In all three cases, we held that the
age classifications at issue did not violate the Equal Protection Clause. Age classifications,
unlike governmental conduct based on race or gender, cannot be characterized as ‘so seldom
relevant to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy.’ Older persons, again, unlike those
who suffer discrimination on the basis of race or gender, have not been subjected to a ‘history of
purposeful unequal treatment.’ Old age also does not define a discrete and insular minority
because all persons, if they live out their normal life spans, will experience it. Accordingly, . . .
age is not a suspect classification under the Equal Protection Clause.”) (citations omitted). More
surprisingly, those circuits to have considered the issue have held that the ADEA is the sole
federal remedy for age discrimination, thus barring § 1983 suits even on rational basis grounds.
E.g., Ahlmeyer v. Nev. Sys. of Higher Educ., No. 06-15654, 2009 U.S. App. LEXIS 3024 (9th
Cir. Feb. 18, 2009); Zombro v. Baltimore City Police Dep’t, 868 F.2d 1364 (4th Cir. 1989).This
would seem to mean that those who are exempted from some of the ADEA’s protection,
essentially police and firefighters, see p. 482, have no alternative remedy. Of course, the holding
in Kentucky Retirement System is that the kind of action challenged there is not age
discrimination to begin with.
Page 485, add at end of carryover sentence:
E.g., Adams v. Lucent Techs., Inc., 284 Fed. App'x. 296, 301-302 (6th Cir. 2008) (plaintiffs, who
accepted an early retirement offer in the light of a pending merger, could not show an adverse
employment action though constructive discharge when the employer did not inform them that
the merger talks had collapsed because plaintiff were not certain to lose their jobs in any event).
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CHAPTER 6
DISABILITY DISCRIMINATION
N.B. For an analysis of the new ADA Amendment Act of 2008, and suggestions about how
to it affects current materials, see Memorandum posted on the website under NEW ADA
AMENDMENTS button.
See generally Jeannette Cox, Crossroads and Signposts: The ADA Amendments Act of 2008, ***
IND. L. J. *** (2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1365387 (although the
apparent purpose of the ADAAA is solely to broaden the ADA’s protected class, the
amendments erode the statute's explicit textual support for understanding persons with
disabilities as a politically subordinated minority; the amendments also strengthen the statutory
link between the biological severity of a person's disability and that person's right to sue for
accommodations. This may reinforce some courts’ perception that the ADA differs from
traditional civil rights law); Jeff Jones, Enfeebling the ADA: The ADA Amendments Act of 2008,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=13337781356134 (the ADAAA seeks to
enfeeble the ADA's definition of "disability" so that it rarely prevents reaching the merits of
disability discrimination claims).
A.
INTRODUCTION
Page 487, add citation at end of sentence beginning “The circuits are split….”:
See generally Jamie L. Ireland & Richard Bales, Employment Discrimination under Title II of
the Americans with Disabilities Act, 28 N. ILL. U. L. REV. 183 (2008).
B.
THE MEANING OF DISABILITY
Page 490, add at end of carryover ¶:
But see John J. Donohue, Michael Stein, Sascha Becker, & Christopher L. Griffin, Assessing
Post-ADA Employment: Some Econometric Evidence and Policy Considerations,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1282307 (empirical study showing strong
evidence of wage declines for the disabled beginning in 1986, well before the ADA's passage,
thus casting doubt on the adverse ADA-related impacts found in previous studies).
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Actual Disability
Page 499, add at the end of Note 2(d):
The question of whether a person with a genetic propensity towards a condition is
“impaired” has become less important with the passage of GINA, the Genetic Information
Nondiscrimination Act, Pub. L. No. 110-233, 122 Stat. 881. Title II, the employment provisions
of the new statute, outlaws genetic discrimination by employers and unions by prohibiting
genetically-based adverse employment actions in much the same terms as Title VII as well as
regulating the acquisition and retention of genetic information. The EEOC has issued proposed
regulations for GINA. 74 Fed. Reg. 9056 (Mar. 2, 2009). See generally Jessica L. Roberts
Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63
VANDERBILT L. REV. *** (2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342903;
Harper Jean Tobin The Genetic Information Nondiscrimination Act of 2008: A Case Study of the
Need for Better Congressional Responses to Federalism Jurisprudence, *** J. LEGISLATION. ***
(2009). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375684
Page 499, add in Note 3, Major Life Activities before Littleton cite:
Winsley v. Cook County, 563 F.3d 598 (7th Cir. 2009). (driving is not, in itself, a major life
activity; unlike “functions such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working," which are major life activities under 29
C.F.R. § 1630.2(i), driving is not “so important to everyday life that almost anyone would
consider himself limited in a material way if he could not perform them.”); Adams v. Rice, 531
F.3d 936 (D.C. Cir. 2008) (2-1) (engaging in sexual relations is a major life activity under both
the Rehabilitation Act and the ADA and plaintiff produced sufficient evidence that her cancer
and treatment substantially limited her in that activity both because of her surgery and its
psychological effects); Desmond v. Mukasey, 530 F.3d 944 (D.C. Cir. 2008) (sleeping is a major
life activity under the Rehabilitation Act);
Page 508, add in first line of carryover Note 4, Is Comparative Evidence Needed? after Id.:
Accord Gribben v. UPS, 528 F.3d 1166 (9th Cir. 2008) (no comparator evidence on an “average
person in the general population” required; plaintiff’s testimony of his limitations sufficient for
jury to determine whether he was disabled).
Page 508, add at end of carryover Note 4, Is Comparative Evidence Needed?:
See generally Cheryl L. Anderson: Comparative Evidence or Common Experience: When Does
"Substantial Limitation" Require Substantial Proof under The Americans With Disabilities Act,
57 AM. U.L. REV. 409 (2007)
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Page 508, add before Albert in Note 7, Applying the Substantially Limits Test:
Rohr v. Salt River Project Agric. Improvement & Power Dist., No. 06-16527, 2009 U.S. App.
LEXIS 2856, at *19–20 (9th Cir. Feb. 13, 2009) (plaintiff raised a genuine issue of material fact
as to whether his diabetes substantially limits his life activity of eating given the strict
monitoring of each day’s blood tests, medications, and food intake);
2.
Record of Such an Impairment
Page 524, add after first full ¶:
The “record of” requirement may be more easily established where the employer takes
action based on perceived mental or emotional conditions. In Doe v. Salvation Army, 531 F.3d
355, 357–58 (6th Cir. 2008), the employer terminated a job interview when plaintiff disclosed he
was taking psychotropic medications. The court found that plaintiff had established a fact
question as to whether he was the victim of regarded as discrimination since he “submitted
numerous doctor reports and evaluations to support his claim that he has a record-supported
history of paranoid schizophrenia disorder, which caused substantial limitations to his major life
activities of self-care, thinking, learning, and working.” If the employer relied on that record to
deny Doe a position, and could not establish the direct threat defense, it violated the
Rehabilitation. Act.
3.
Regarded as Having Such an Impairment
Page 532, add at end of carryover Note 7, Applying the “Regarded as” Test:
Justice v. Crown Cork & Seal Co., 527 F.3d 1080 (10th Cir. 2008) (employer apparently
believed plaintiff’s balance and vertigo problems disqualified him from working as electrician;
its offer of only a janitor’s job supported the inference that he was regarded as unable to perform
broad range of jobs); Wilson v. Phoenix Specialty Mfg. Co., 513 F.3d 378, 385 (4th Cir. 2008)
(finding plaintiff regarded as disabled in part because of employer had such a firm perception
that he was disabled as to discount a specialist’s medical opinion that he was capable of returning
to work and in part because of plaintiff’s testimony that senior management treated him “like
[he] was a handicapped person” after his panic attack).
Page 532, add at end of Note 8, “Regarded as” Claims and Stereotyping:
Dale Larson, Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-As Prong of
the Americans With Disabilities Act, 56 UCLA L. REV. 451, 477 (2008) (noting that studies find
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substantial implicit bias against the disabled coupled with a great discrepancy between express
and implicit bias).
C.
THE MEANING OF “QUALIFIED INDIVIDUAL WITH A DISABILITY”
1.
Essential job Functions
Page 537, add at end of Note 2, Burden of Proof:
Cf. Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) (en banc) (“Although the plaintiff bears the
ultimate burden of persuading the fact finder that he can perform the job’s essential functions, we
agree with the Eighth Circuit’s approach that ‘an employer who disputes the plaintiff’s claim that
he can perform the essential functions must put forth evidence establishing those functions.’”)
(quoting a pre-Rehrs case, EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th Cir. 2007)).
Page 537, add before Cf. Turner in Note 3, Defining the Term:
See also Dargis v. Sheahan, 526 F.3d 981 (7th Cir. 2008) (corrections officer was not qualified
because of his inability to rotate through positions requiring inmate contact, despite claim that
some co-workers were assignment to no-contact positions).
Page 537, add in Note 4, Attendance as an Essential Job Function before Malloy cite:
Peyton v. Fred's Stores of Ark., Inc., 561 F.3d 900 (8th Cir. 2009) (a plaintiff who, at the time of
termination, had no idea when, if ever, she would be able to return was not otherwise qualified to
work since a request for an indefinite leave of absence is not a reasonable accommodation);
2,
The Duty of Reasonable Accommodation
Page 548, add a New Note 4 before last ¶ of Note 3, Reasonable Accommodation as Special
Treatment:
4.
Benefits to the Non-disabled? The special treatment critique of the duty of
reasonable accommodation often, as in Barnett, focuses on the costs that accommodation
imposed on other workers. Left out of the equation, however, are the benefits that the ADA
creates for non disabled co-workers. See generally Michelle A. Travis, Lashing Back at the ADA
Backlash: How the Americans With Disabilities Act Benefits Americans Without Disabilities, 76
TENN. L. REV. *** (2009) (exploring the variety of ways in which the ADA aligns the interests
of workers with and without disabilities, rather than pitting them against each other in a zero-sum
game, thereby giving all workers a stake in the ADA's future); Elizabeth F. Emens, Integrating
Accommodation, 156 U. PA. L. REV. 839, 921 (2008) (while courts have recognized that
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accommodations may create third-party costs, they have overlooked the potential for third-party
benefits; recognition of such benefits “can lead to a form of contact between accommodations
and coworkers that improves attitudes toward disability and the ADA.”).
Page 552, add at end of carryover Note 2, Best Qualified:
See also Nicole B. Porter, Reasonable Burdens: Resolving the Conflict between Disabled
Employees and Their Coworkers, 34 FLA. ST. U.L. REV. 313 (2007) (proposing amending the
ADA so that most accommodations would be reasonable even if they affect other employees,
unless the accommodation results in the termination of another employee).
Page 560, add at end of Note 1, Facially Discriminatory?:
Cf. Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435 (8th Cir. 2007) (there was no duty to
accommodate a nurse’s state-imposed work restrictions when those restrictions followed from
drug-related misconduct not from her addiction per se).
Page 561, add a new Note 4:
4.
Failure of Accommodation and Constructive Discharge. We explored constructive
discharge in Chapter 7. A variation on this theme occurs when an employer fails to provide a
required accommodation, resulting in the employee resigning her position. While the denial of
some accommodations may not satisfy the requirements for a constructive discharge, other
denials will leave the employee no reasonable choice. See Talley v. Family Dollar Stores of
Ohio, Inc., No. 07-3971, 2008 U.S. App. LEXIS 19342 (6th Cir. Sept. 11, 2008) (failure to
accommodate plaintiff’s ostheoarthritis by allowing her to sit while working could constitute a
constructive discharge).
Page 565, add in 5th full ¶ before Simpson cite:
Willnerd v. First Nat'l Neb., Inc., 558 F.3d 770, 779 (8th Cir. 2009) (the selection of the plaintiff
for discharge could be viewed as a pretext for disability discrimination when, inter alia, (1) he
was given an unattainable production quota; (2) managers made inconsistent statements
regarding whether they considered other employees for termination; (3) other employees
performed poorly but were not subjected to quotas termination; and (4) a manager admitted to
concerned about how customers perceived plaintiff due to his speech problems);
D.
DISCRIMINATORY QUALIFICATION STANDARDS
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Job Related and Consistent with Business Necessity
Page 580, in Note 3, Job Related to the Position in Question and Consistent with Business
Necessity, delete Morton citation; replace with:
In Bates v. UPS, 511 F.3d 974 (9th Cir. 2007) (en banc), the court rejected its prior adoption of
BFOQ analysis for safety standards under the ADA:
To show ‘job-relatedness,’ an employer must demonstrate that the qualification standard fairly
and accurately measures the individual's actual ability to perform the essential functions of the
job. When every person excluded by the qualification standard is a member of a protected
class—that is, disabled persons—an employer must demonstrate a predictive or significant
correlation between the qualification and performance of the job's essential functions.
To show that the disputed qualification standard is ‘consistent with business necessity,’ the
employer must show that it ‘substantially promote[s]’ the business’s needs. ‘The 'business
necessity' standard is quite high, and is not to be confused with mere expediency.’ For a safetybased qualification standard, ‘[i]n evaluating whether the risks addressed by . . . [the]
qualification standard constitute a business necessity, the court should take into account the
magnitude of possible harm as well as the probability of occurrence.’
Finally, to show that ‘performance cannot be accomplished by reasonable accommodation,’ the
employer must demonstrate either that no reasonable accommodation currently available would
cure the performance deficiency or that such reasonable accommodation poses an ‘undue
hardship’ on the employer.
Id. at 996 (citations and footnotes omitted). The court then turned to the qualification standard
allocation of burdens of proof, which it viewed as parallel to those for the direct threat defense. It
explained:
Because UPS has linked hearing with safe driving, UPS bears the burden to prove that nexus as
part of its defense to use of the hearing qualification standard. The employees, however, bear the
ultimate burden to show that they are qualified to perform the essential function of safely driving
a package car. . . .
By requiring UPS to justify the hearing test under the business necessity defense, but also
requiring plaintiffs to show that they can perform the essential functions of the job, we are not
saying, nor does the ADA require, that employers must hire employees who cannot safely
perform the job, particularly where safety itself is an essential function. Nor are we saying that an
employer can never impose a safety standard that exceeds minimum requirements imposed by
law. However, when an employer asserts a blanket safety-based qualification standard—beyond
the essential job function—that is not mandated by law and that qualification standard screens out
or tends to screen out an individual with a disability, the employer—not the employee—bears the
burden of showing that the higher qualification standard is job-related and consistent with
business necessity, and that performance cannot be achieved through reasonable accommodation.
Id. at 992. But see Allmond v. Akal Sec. Inc., 558 F.3d 1312 (11th Cir. 2009) (hearing-aid ban for
federal marshals was job-related and consistent with business necessity when it was developed
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after a detailed analysis of the security officer position to identify the essential functions of the
job and the medical qualifications necessary to perform it given the tremendous harm that could
result if a security officer could not perform the essential hearing functions of his job at a given
moment).
E.
SPECIAL PROBLEMS OF DISABILITY DISCRIMINATION
2.
Medical Examinations and Inquiries
b.
Medical examinations and inquiries of current employees
Page 584, add before Thomas cite in second line from the bottom of page:
Denman v. Davey Tree Expert Co., 266 F. App’x 377 (6th Cir. 2007) (employer request that
plaintiff submit to an independent medical examination permissible when the employee
requested an accommodation and the employer had a reasonable belief that his performance as
foreman might have been impaired by his medical condition);
Page 585, add before last sentence of carryover ¶:
But see Duncan v. Fleetwood Motor Homes of Ind., 518 F.3d 486 (7th Cir. 2008) (overturning
dismissal of plaintiff’s ADEA claim even though he failed a functional capacity evaluation to
gauge his fitness for duty after a back injury; the evaluation was based on a job description that
did not match the duties of the actual position and entailed far greater heavier lifting than the job
in fact demanded).
5.
Protected Relationships
Page 587, add in second full paragraph after discussion of Ennis:
In contrast, in Dewitt v. Proctor Hosp., 517 F.3d 944 (7th Cir. 2008), a claim of discrimination
on account of the plaintiff’s association with her disabled husband was allowed to proceed where
there was evidence that her discharge was an effort to avoid the high costs of her husband’s
cancer treatment; her supervisor’s comments about “creative” cost-cutting and her suggestion
that less expensive hospice care be considered, coupled with plaintiff’s discharge shortly after
review of medical claims, allowed inference that employer was concerned that husband might
require treatment indefinitely. See also Trujillo v. PacifiCorp, 524 F.3d 1149 (10th Cir. 2008)
(married employees raised factual issue as to whether the alleged reason for their discharges was
a pretext for avoiding the high costs of their son's medical expenses). In Dewitt, Judge Posner
concurred, suggesting, however, that, if the employer would have discriminated against anyone
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who ran up such high medical bills, there would have been no discrimination on the basis of
disability. What do you think of that argument?
6.
Health and Disability Insurance
Page 591, add a new Note 4:
4.
Standing. Beyond the complicated question of whether particular insurance schemes are
discriminatory, there have been legal impediments to challenging particular policies. One
recurrent problem is the standing of former employees to sue. For example, in McKnight v.
GMC, No. 07-1479, 2008 U.S. App. LEXIS 24373 (6th Cir. Dec. 4, 2008), disabled former
employees challenged their prior employer’s offsetting of pension benefits by the amounts they
received for social security disability. The court held that the plaintiffs were not qualified
individuals with a disability under Title I of the ADA and therefore had no standing to sue for
pension benefits, although it also indicated that their challenge would fail on the merits.
McKnight noted a circuit split on the standing issue.
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CHAPTER 7
PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS
B.
THE ADMINISTRATIVE PHASE: CHARGE FILING
Page 597 through carryover ¶ on p. 618 including the principal Ledbetter case; Replace
with the following:
2.
Filing a Timely Charge
Every private Title VII suit and ADEA suit must begin with a charge under oath filed
with the Equal Employment Opportunity Commission. §706(b), 42 U.S.C. §20003-5(b).
a.
What constitutes a charge?
The statutes, however, do not define what constitutes a “charge”; EEOC regulations attempt to
fill that gap, see 29 C.F.R. §1601.12(b) (2008), but in its most detailed encounter with the
question, the Supreme Court declared in Federal Express Corp. v. Holowecki, that those
regulations “fall short of a comprehensive definition.” 128 S.Ct. 1147, 1154 (2008). According
to the Court, the regulations define a charge as “a statement filed with the Commission” alleging
discrimination; the pertinent regulation “identifies five pieces of information a "charge should
contain," id. at 1154, but the Court further noted that the regulations seem to make these
elements only hortatory since a charge is “sufficient” if it is "in writing and . . . name[s] the
prospective respondent and . . . generally allege[s] the discriminatory act(s). Id.
Since the regulations apparently allow a charge to be very informal, issues often arise as
to whether a particular document is a charge. In fact, the Holowecki Court reported that the
EEOC receives some 175,000 “inquiries” each year, but only 76,000 of these are docketed as
charges. Id. at 1156. It is the docketing by the agency that triggers the EEOC’s notification to the
employer and its subsequent investigation. If, however, some of the other 100,000 inquiries are,
in the eyes of the law, “charges,” then the employee had done whatever he or she is required to
do as a condition of suit, even though no agency action follows. This was the problem the Court
confronted in Holowecki where the plaintiff had filled out an EEOC Intake Questionnaire and
submitted an affidavit to the Commission but the EEOC never docketed the charge and so never
notified the defendant or began processing the dispute.
Although much of Holowecki is an exercise in administrative law, the resulting rule is
clear: the charge must have the minimal information required by the regulations, “an allegation
and the name of the charged party,” and “it must be reasonably construed as a request for the
agency to take remedial action to protect the employee's rights or otherwise settle a dispute
between the employer and the employee.” Id. at 1158. It is not enough for the employee to
subjectively intend to activate the agency’s charge-processing machinery; rather, the question is
whether it objectively appears that such an intent exists. Id. In the case before it, the Court found
that an Intake Questionnaire insufficient by itself, but that the plaintiff’s affidavit expressed a
request that the agency take action to protect her rights. The fact that the defendant was not
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notified, and that the statutory scheme of EEOC investigation was frustrated by the
Commission’s failure to proceed, was irrelevant to the plaintiff’s rights, although the Court
called on the EEOC to reconsider its procedures to avoid this problem. Id. at 1160-61. See also
Holender v. Mut. Indus. N., Inc., 527 F.3d 352 (3d Cir. 2008) (refusing to apply a stricter
standard to charges filed by individuals represented by counsel, the court found an EEOC Form
5, entitled Charge Of Discrimination, to be a charge even though the box for filing with the
EEOC and a state agency wasn’t checked and the form was not notarized).
Since a charge can be relatively minimal, another EEOC regulation comes into play
allowing amendment of the first filing and providing that such amendments, including
verification of the charge and “amendment alleging additional acts which constitute unlawful
employment practices related to or growing out of the subject matter of the original charge will
relate back to the date the charge was first received.” § 1601.12(b). Edelman v. Lynchburg
College, 535 U.S. 106, 114 (2002), upheld this regulation. See also McWilliams v. Latah
Sanitation, Inc., 149 F. App'x 588, 590 (9th Cir. 2005) (charge may be verified after the time for
filing had expired; since the original charge put the employer on notice of the claims and allowed
the agency to investigate the charges, the initial failure to verify did not prejudice the employer).
b.
When does the violation “occur’?
The first step in applying any period of limitation is to determine when the statute begins
to run. Since Title VII requires filing a charge within 180/300 days “after the alleged unlawful
employment practice occurred,” 42 U.S.C. §2000e-5(e), §706(e), the question has been framed in
terms of when an act of discrimination “occurred.” In some cases, such as when a worker is
discharged effective immediately, the “occurrence” is easily identified: the act and its
consequences occur simultaneously. In the employment context, however, decisions by the
employer may not be transparent to an employee; for example, she may know that she received a
3% raise but not know that her male coworkers received a 5% increase. Further, decisions often
have downstream consequences that may not emerge for a long time.
Notice of Adverse Action Rule.
In a number of cases, culminating with Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007), the Supreme Court applied a one-size-fits-all rule to most “occurred” questions,
holding that discrimination occurs for purposes of the filing requirement when the employee is
notified of an adverse employment decision. Thus, Ms. Ledbetter, who had won a jury verdict
finding that Goodyear had discriminated against her in a series of compensation decision, lost
her judgment because the decisions she challenged were too far in the past: she “should have
filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was
made and communicated to her.” Id. at 2169. The main judicial exception to this “notice of
decision” rule is for contaminated work environment harassment, which may be charged to the
EEOC within 180/300 days of any act constituting the same course of harassment. Amtrak v.
Morgan, 536 U.S. 101 (2002).*
*
A second judicial exception applied to facially discriminatory seniority systems (and presumably, other facially
discriminatory policies). Lorance v. AT&T Technologies, 490 U.S. 900 (1989). The Ledbetter opinion viewed
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The Ledbetter opinion itself was not a significant departure from most of the earlier
precedents although it flew in the face of the language of Bazemore v. Friday, 478 U.S. 385
(1986), which had stated that “Each week’s paycheck that delivered less to a black than to a
similarly situated white is a wrong actionable under Title VII, regardless of the fact that this
pattern was begun prior to the effective date of Title VII.” Whether it was this reinterpretation of
Bazemore or some deeper outrage with the grudging approach of the Court to antidiscrimination
time limits, Ledbetter struck a nerve both on the Court and in Congress.** Justice Ginsberg read
a strong dissent from the bench in which she called on Congress to override the majority. She
argued that it was unrealistic to expect employees to challenge each pay decision, in part because
they would often have no reason to even know that they were receiving less than fellow workers
and in part because individual decisions might be too insignificant to challenge until they
accumulated and were magnified by percentage raises into large discrepancies.
The Lilly Ledbetter Fair Pay Act of 2009
The Ginsberg dissent triggered the congressional response she had called for, culminating
in President Obama signing the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123
Stat. 5, 5–6 (2009) (to be codified at 42 U.S.C. § 2000e-5(e)(3)(A)), as one of the first acts of his
presidency. That statute amends Title VII to provide:
an unlawful employment practice occurs, with respect to discrimination in compensation in
violation of this title, when a discriminatory compensation decision or other practice is adopted,
when an individual becomes subject to a discriminatory compensation decision or other practice,
or when an individual is affected by application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or other compensation is paid, resulting in
whole or in part from such a decision or other practice.
The FPA similarly amended the other antidiscrimination laws, including the ADEA and ADA.
For all these statutes, it thus codified a “paycheck” rule—a plaintiff who suffered discrimination
in compensation can file a timely charge, inter alia, within 180/300 days of receiving a paycheck
that is lower than it would have been but for the discrimination.
Bazemore v. Friday, 478 U.S. 385 (1986), as an example of a facially discriminatory system, 550 U.S. at 634
(“[W]hen an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale
because of race, the employer engages in intentional discrimination whenever it issues a check to one of these
disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded
as intending to discriminate on the basis of race as long as the structure is used.”). But this seems remarkable.
Although the compensation structure in Bazemore had its origins in de jure segregation, the main issue in the case
was whether multiple regression could be used to determine whether any discrimination persisted after the two
branches of the employer were integrated. Surely, there would be no necessity to use statistical analysis to ascertain
facial discrimination.
**
The only other decision triggering a legislative override was Lorance v. AT&T Technologies, 490 U.S. 900
(1989), where the Court held that the adoption of a seniority system was the relevant occurrence for limitations
purposes, even if the harm resulting from application of the system occurred years later and might not have occurred
at all. Congress overturned Lorance’s specific holding regarding seniority systems in the Civil Rights Act of 1991.
Ledbetter, 550 U.S. at 627 n. 2.
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What’s more, the Fair Pay Act is explicitly retroactive since it “take[s] effect as if enacted
on May 28, 2007,” which is the day before the Supreme Court handed down Ledbetter. There
seems little doubt that Congress has the constitutional power to, in effect, revive claims that
would have been barred by the Ledbetter decision. Posting of Charles A. Sullivan to
WORKPLACE
PROF
BLOG,
Sullivan
on
Ledbetter
Act
Retroactivity,
http://lawprofessors.typepad.com/laborprof_blog/2009/02/sullivan-on-t-1.html (Feb. 9, 2009).
The result is that plaintiffs and potential plaintiffs can file timely charges as to any
discriminatory decision which effects their compensation, even decisions made years or decades
earlier. It is true that the FPA limits backpay recovery to no more than two years prior to the
filing of a charge, § 3 (to be codified at 42 U.S.C. § 2000e-5(e)(3)(B)), but the conduct itself is
actionable.
An Overview of the Fair Pay Act’s Reach.
At first glance, the Lilly Ledbetter Fair Pay Act seems to consign to the scrap heap the
Supreme Court’s prior timeliness jurisprudence. Clearly, compensation decisions with present
consequences on pay are actionable. Some have suggested that the amendment reaches beyond
compensation decisions because of the references to “other practices.” However, a careful
reading of the language suggests a more limited view: the actionable discrimination must be
“with respect to discrimination in compensation in violation of this title,” although such
discrimination may be “a discriminatory compensation decision or other practice.” In short, any
policy that effects compensation is within the expanded FPA notion of “occurrence,” but any
policy that does not is not. A policy to paint offices of male employees blue and those of female
employees pink thus presumably falls outside of the FPA, which means we must look to the
Court’s other precedents to see when it can be challenged.
This is a meaningful limitation, but not as significant as it may first appear for three
reasons. First, many acts that are not framed in terms of compensation will have continuing
effects on compensation. For example, the denial of a promotion or seniority credit is likely to
have continuing compensation consequences, and other actions may also have such effects. In
Jackson v. City of Chicago, 552 F.3d 619 (7th Cir. 2009), for example, promotions were denied
because the plaintiff lacked skills due to the discriminatory denial of training opportunities.
Applying pre-FPA law, the Seventh Circuit held that plaintiff had no cause of action; the
promotion denials were nondiscriminatory and the denial of training was time-barred. In the
wake of the Fair Pay Act the ultimate compensation consequences would seem to require the
claim to be revived.
Second, some of the practices that do not affect compensation will not be actionable at all
under current doctrine, thus reducing the extent to which procedural limitations (as opposed to
substantive rule) pose a problem. For example, you might recall from Chapter 1 that it is not
clear that the blue and pink offices constitute an adverse employment practice to begin with.
Third, perhaps the Supreme Court’s jurisprudence ought to be reconsidered in light of the FPA,
even where the amendment does not textually require a change. The argument is, essentially, that
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statutory overrides at least sometimes imply that the courts’ entire approach to the whole
question is mistaken. See generally Deborah A. Widiss, Shadow Precedents and the Separation
of Powers: Statutory Interpretation of Congressional Overrides, 64 NOTRE DAME L. REV. 511
(2009).
On the other hand, history suggests that earlier precedents will not go quietly into the
good night, and the courts are likely to read the amendment as limited to what it said, without
regard to broader congressional disapproval. Widiss, Shadow Precedents at ***. Further, some
conduct that is indisputably an adverse employment action—such as a discharge or failure to
hire—and have continuing effects on compensation (or the lack thereof) is not likely to be found
to fall within the FPA’s expansion of Title VII time limits. Although the language of the
amendment could be read to allow these individuals to sue (plaintiffs’ failure as nonemployees to
get a check is the result of a prior discriminatory practice), this interpretation will almost
certainly be rejected. From a textual perspective, the language “each time wages, benefits, or
other compensation is paid” (although only an illustration) suggests that continued employment
is the sine qua non of a later charge. From a more purposive perspective, one of the rationales
underlying the FPA is that employees should not be prejudiced by decisions of which they were
not aware (say, that they were paid less than a male for similar work) or for which they had no
reason to suspect discrimination. In contrast, when a plaintiff is fired, she might well be required
to explore all of her potential claims on pain of forfeiting them.
Reconsidering the Vitality of Pre-FPA Precedents
In any event, to understand the law in the wake of the Fair Pay Act, it is useful to analyze
some of the prior precedents to see what, if any vitality they retain. Some of the Court’s prior
holdings seem to be undercut but not overridden. For example, in two early cases, Electrical
Workers (IUE), Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976), and Delaware State
College v. Ricks, 449 U.S. 250 (1980), the Court held both that the filing period ran from the
point where the employee was notified of the adverse action and that the filing period would not
be tolled by pursuit of internal remedies or grievance procedures. In the wake of the Fair Pay
Act, Ricks and Robbins & Myers would seem to continue to be good law on their facts, although
their significance is sharply reduced. Since both cases involved terminations, the time for filing
would still run from the notice of the decision to terminate, and there is nothing about the Fair
Pay Act that would affect the “no tolling” rule. On the other hand, the cases are affected by the
FPA: if the challenged decisions had been denials of raises (rather than terminations), plaintiffs
may well have forfeited their right to challenge the decision when it was “adopted” but could
timely challenge it measured from any paycheck that was lower than it would have been but for
the discriminatory denial of a raise. The failure to make an earlier challenge might reduce the
plaintiff’s backpay recovery but would not deprive them of a right of action.
Something similar can be said of United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), in
which the Supreme Court held that, when an employment action is taken, the fact that its adverse
effects are not immediately apparent is irrelevant: the violation occurs when the decision is
made. In Evans, the plaintiff had been fired as a flight attendant in 1968 because of United’s “no
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marriage” policy for stewardesses. That policy was later held discriminatory, and in 1972 Evans
was rehired by United. Upon her rehire, however, she was treated as a new employee in
accordance with the controlling collective bargaining agreement and thus received no seniority
credit for earlier service. The Supreme Court held that her charge was not timely. Despite its
adverse impact, United’s seniority system was not itself illegal for reasons we have explored in
Chapter 2. And, while the system had the effect of perpetuating the consequences of the
discriminatory discharge in 1968, the charge was too late as to both the original 1968 dismissal
and the initial failure to credit the pre-1972 seniority on rehiring. “Respondent emphasizes the
fact that she has alleged a continuing violation. United’s seniority system does indeed have a
continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere
continuity; the critical question is whether any present violation exists.” Id. at 558 (emphasis in
original). Evans had no valid cause of action: with respect to the defendant’s prohibited acts, she
had not filed a timely charge; and with regard to acts for which her charge was timely, there was
no violation.
The notion that the act of discrimination, not merely its consequences, must be timely
charged has been critical to a subsequent decisions, including Ledbetter itself, but has clearly
been overridden by the Fair Pay Act, at least to the extent that the challenged practice is within
that statute. But if the courts do not view the Act as an invitation to reconsider ab initio the
overridden precedent, it seems likely that the FPA will be held to only partially overturn Evans
on its facts. Like Robbins & Myers and Ricks, the plaintiff in Evans was originally discharged,
which, as we have seen, would probably cut off her right to sue when that conduct was not
timely charged. But United’s decision to rehire her without crediting her prior service would be
treated differently. Assuming compensation consequences from that decision, a challenge within
180/300 days of any paycheck reflecting those consequences would certainly be within the
language of the FPA.
There remains, however, the question of whether the decision is discriminatory: if the
question arose today, United would undoubtedly contend that it treated all rehires the same,
which means no disparate treatment discrimination. In other words, United might now admit the
timeliness of a charge as to the failure to credit prior seniority but deny that that failure violated
the statute. This is essentially the approach the Court took in We may not have long to wait for
an answer on this front. Prior to the enactment of the Fair Pay Act, the Supreme Court heard
argument in AT&T Corp. v. Hulteen, *** S.Ct. *** (2009), where it found that the employer’s
calculation of service time for retirement purposes was not discriminatory when it did not credit
pregnancy leave but did credit other disability leave. The leave had been taken prior to the
passage of the Pregnancy Discrimination Act, see Chapter 5, at a time in which disfavoring
pregnancy was not sex discrimination. But the Court found that the PDA was not intended to be
retroactive, and this meant that the seniority system’s carrying forward the lost credit into postPDA seniority calculations did not continue a prior act of discrimination. The action was
therefore within Title VII’s seniority exception. As for the Fair Pay Act, it would have made
actionable any past discriminatory practice that had an effect on compensation, but the pre-PDA
denial of credit was not discriminatory within the meaning of Title VII.
Contaminated Environment Harassment
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Yet another Supreme Court decision, Amtrak v. Morgan, 536 U.S. 101 (2002), deserves
some attention. While reaffirming the general notice of decision doctrine, Morgan carved out an
important exception. Thus, consistent with Robbins & Meyers, Ricks and Evans, the court held
that “‘[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire
are easy to identify” and each constitutes a “separate actionable ‘unlawful employment practice’”
which must be timely charged. Id. at 114. However, the Court recognized that hostile
environment sexual harassment claims “are different in kind from discrete acts. Their very nature
involves repeated conduct.” 536 U.S. at 103. The Court elaborated: “The ‘unlawful employment
practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days
or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be
actionable on its own. Such claims are based on the cumulative effect of individual acts.” 536
U.S. at 115 (citations omitted). For that reason,
a hostile environment claim is comprised of a series of separate acts that collectively
constitute one ‘unlawful employment practice.’ The timely filing provision only requires
that a Title VII plaintiff file a charge within a certain number of days after the unlawful
practice happened. It does not matter, for purposes of the statute, that some of the
component acts of the hostile work environment fall outside the statutory time period.
Provided that an act contributing to the claim occurs within the filing period, the entire
time period of the hostile environment may be considered by a court for the purposes of
determining liability.
536 U.S. at 117. The only limitation on this principle is that, for there to be “one” employment
practice, must be a sufficient relationship between the various acts that comprise the putative
violation. Compare Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 2004) (the same
harasser, committing the same harassing acts, and the absence of any intervening action meant as
a matter of law that the acts “must be considered to be part and parcel of the hostile work
environment that constituted the unlawful employment practice that gave rise to this action.”),
with Holmes v State of Utah, 2007, 483 F.3d 1057 (10th Cir. 2007) (acts within charge-filing
period were insufficient alone to support a hostile environment claim, nor could they be linked to
prior acts outside the filing limitation). Summary of the Current Law
To summarize: a hostile environment can be timely charged within 180/300 days of any
act that contributes to the same contaminated environment. The same may be true of any action
taken pursuant to a facially discriminatory policy, compensation, seniority, or otherwise.
However, all other discrete acts must be charged within 180/300 days of the time they occur,
unless they fall within the FPA. Acts that fall within the Fair Pay Act are limited to those
affecting the compensation of continuing employees (or, at least, those with a continuing
connection to the employer such as the retirees in Hulteen). These acts may be challenged from
as late as 180/300 days from the last time “wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision.”
Even the complicated scheme we have sketched here may not resolve all questions. Take
the requirement of an adverse employment action. In Chapter 1 we learned that some conduct,
even if discriminatory, may not be actionable because it does not count as an “adverse
employment action.” In such cases, no violation has yet “occurred” and any charge would be, at
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best, premature. While the FPA reaches illegal conduct “when a discriminatory compensation
decision or other practice is adopted, when an individual becomes subject to a discriminatory
compensation decision or other practice, or when an individual is affected by application of a
discriminatory compensation decision or other practice,” the statute will presumably not make
actionable conduct that is too insignificant to fall within the protections of Title VII or other
antidiscrimination laws.
But what about the situation when an employer’s discriminatory decision that is itself not
sufficiently adverse has later consequences that would themselves be actionable? Consider, for
example, the “lateral transfer” we met in Chapter 1. Most circuits would find such a transfer, by
definition involving no significant change in pay or status, not to be actionable in the first
place—even if motivated by discrimination. But assume that the transfer results a year later in
the employee’s discharge for nondiscriminatory reasons (perhaps because the new office is
closed). From a substantive perspective, is there any actionable discrimination at all: the transfer
wasn’t actionable and the discharge wasn’t discriminatory? If so, from a procedural perspective,
is a charge timely as measured from the point when the employee actually loses his job? Some
cases predating the Fair Pay Act would find a charge timely in such circumstances, e.g., Thomas
v. Eastman Kodak, 183 F.3d 38 (1st Cir. 1999) (a discriminatory evaluation more than 300 days
in the past could be challenged when it was the basis for a later layoff that was itself
nondiscriminatory), but others might well say no, finding the only discriminatory conduct to not
have been timely charged. See Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600 (7th Cir.
1992) (denial of training opportunity was discriminatory action that should have triggered
charge; later layoff was simply a consequence of such lack of training). The Ledbetter Act
might resolve this problem. By hypothesis, the discriminatory act had no effect on compensation
until much later, but it is a practice that then had the proscribed effect, which would make it
actionable.
A second question not answered by the pre-FPA cases that might be resolved by the new
amendment (at least for situations within its scope) is the proper time limit for systemic cases.
The Morgan Court explicitly avoided addressing the appropriate approach for “pattern or
practice” claims, 536 U.S. 101 (2002), and other precedents were not definitive. The most in
point was Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989), which held that the female
plaintiffs were time barred when they failed to challenge a change in the seniority system
governing them within the filing period as measured from the point when they were notified the
system had been altered. Filing a charge within the requisite time when the plaintiffs realized the
change would adversely affect them was not good enough. While acknowledging that “a facially
discriminatory seniority system (one that treats similarly situated employees differently) can be
challenged at any time,” 490 U.S. at 911-12, the Court held that a charge challenging a facially
neutral system is timely only if filed within 180/300 days of the time plaintiffs had notice of the

The Ledbetter majority addressed this question in rejecting the plaintiff’s attempt to “circumvent the need to prove
discriminatory intent during the charging period by relying on ‘the intent associated with other decisions made by
other persons at other times.’” This was unavailing because “it would shift intent from one act (the act that
consummates the discriminatory employment practice) to a later act that was not performed with bias or
discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent.”
550 U.S. at 629.
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decision. The Civil Rights Act of 1991 overruled Lorance but in language that focused only on
seniority systems.
Putting the Lorance amendment together with the FPA, it seems clear that a challenge to
a pattern or practice of discrimination can be mounted any time a current employee is affected by
a discriminatory decision so long as the impact is either on “seniority” or “compensation.” Such
a systemic practice will always be actionable until 180/300 days after it has stopped and its
effects are purged from any workplace. Further, presumably, any systemic treatment violation
that is discriminatory on its face (e.g., a mandatory retirement age or a gender requirement for a
position) could also be challenged at any time it affects the employee under Lorance itself, which
Ledbetter confirmed. 550 U.S. at 637 (“a new Title VII violation does not occur and a new
charging period is not triggered when an employer issues paychecks pursuant to a system that is
‘facially nondiscriminatory and neutrally applied.’”) (quoting Lorance).
To test your understanding of all this, suppose an employer adopts a facially neutral
policy for discriminatory reasons, for example, a residency requirement. Suppose the plaintiff
asserts that the policy constitutes systemic disparate treatment. From that perspective, the
question is when the violation occurs, that is, whether a charge is timely when filed within
180/300 days of the time the policy prevents someone from being hired. It’s not a seniority
system, so it does not fall within the amendment overriding Lorance. As for the Fair Pay Act, we
have seen that the new statute may not protect those who are denied employment and therefore
do not have a continuing connection with the workplace, although perhaps a would be worker
could reapply and file a charge running that is timely as measured from the second denial.
Outside the hostile work environment area, repeated acts of discrimination do not constitute one
violation.
Now consider the residency requirement from a disparate impact perspective. A passage
from Lorance suggests that perhaps policies with such an impact can be challenged at any time
they affect individuals. In addressing the plaintiffs’ claim, the Court wrote:
[An alternative theory] would view §703(h) as merely providing an affirmative defense to
a cause of action brought under §703(a)(2), rather than as making intentional
discrimination an element of any Title VII action challenging a seniority system. The
availability of this affirmative defense would not alter the fact that the claim asserted is
one of discriminatory impact under §703(a)(2), causing the statute of limitations to run
from the time that impact is felt. As an original matter this is a plausible, and perhaps
even the most natural, reading of §703 (h).… But such an interpretation of §703 (h) is
foreclosed by our cases, which treat the proof of discriminatory intent as a necessary
element of Title VII actions challenging seniority systems.…

§706(e)(2), 42 U.S.C. §2000e-5(e)(2) (“an unlawful employment practice occurs, with respect to a seniority
system that has been adopted for an intentionally discriminatory purpose in violation of this title (whether or not that
discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted,
when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application
of the seniority system or provision of the system”). This language obviously influenced the Fair Pay Act.
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490 U.S. at 908-09 (emphasis added). While the holding in Lorance was constrained by the
special status of seniority systems under Title VII, perhaps in other kinds of impact cases “the
statute of limitations [should begin] to run from the time that impact is felt.” 490 U.S. at 908.
Some pre-FPA circuit court cases take this approach, see Phillips v. Cohen, 3 F. App'x 212 (6th
Cir. 2001); Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999). The Fair Pay Act itself
would seem to mandate this, at least as long as the requirement in question affected
compensation. But, again, there may be a limitation on current employees or a requirement that a
denied applicant re-apply.
“Old” Evidence
Although the filing limitations will bar a cause of action based on incidents prior to the
filing period, this does not mean that such incidents never occurred. Rather, to the extent that
they are relevant to showing intent to discriminate, the Supreme Court indicated in Evans that
such events can be “relevant background evidence in a proceeding in which the status of a
current practice is at issue.” 431 U.S. 558. It repeated the same point in Morgan. 536 U.S. at 113
(“Nor does the statute bar an employee from using the prior acts as background evidence in
support of a timely claim.”). For example, in Wedow v. City of Kansas, 442 F.3d 661, 671 (8th
Cir. 2006), the court wrote: “The district court correctly permitted acts occurring outside the 300day window to be admitted as relevant to discriminatory intent and correctly limited recovery to
acts occurring within the limitations period.” See also Bright v. Hill's Pet Nutrition, Inc., 510
F.3d 766 (7th Cir. 2007) (error for trial court to instruct jury not to consider evidence of
harassment that occurred more than 300 days before the charge filing whether or not employer
had disciplined the harassers); West v. Ortho-McNeil Pharm. Corp., 405 F.3d 578, 581 (7th Cir.
2005) (district court’s exclusion of evidence on timeliness grounds an abuse of discretion since a
timely claim may be supported by proof of acts outside of the statutory time frame); Randolph v.
Ohio Dep't of Youth Servs., 453 F.3d 724 (6th Cir. 2006) (excluding evidence of events prior to
May 1 was incorrect both because those actions are not beyond the scope of the EEOC
complaint, and the ongoing nature of hostile-work-environment sexual harassment claims is
critical to the totality of the circumstances review of such claims).
Note on State Deferral Requirements
We’ve repeatedly referred to the filing period as 180/300 days, which may be confusing.
In states without a state (or local) fair employment practices agency (like Alabama where
Ledbetter arose), the filing period is 180 days. But states that have their own fair employment
practices agencies, the filing period is extended to “ensure[] that employees are neither time
barred from later filing their charges with the EEOC nor dissuaded from first filing with a state
agency.” Morgan 536 U.S. at 120. In these “deferral states” (so called because the EEOC must
defer to the state agency), a plaintiff has 300 days to file with the EEOC, although there is also a
requirement of filing with the relevant state agency.
In brief, Title VII and the ADA (which incorporates Title VII procedures by reference)
require a filing with the state agency prior to filing with the EEOC, 42 U.S.C. §2000e-5(c),
§706(c). Further, the state agency must be accorded 60 days to act before the EEOC can
commence its processes. This scheme creates complications. While a charge lodged with the
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EEOC may be held by it in “suspended animation” during the required period of state deferral,
Love v. Pullman, 404 U.S. 522 (1972), the EEOC filing becomes effective only when the
required period for state deferral has expired. Mohasco Corp. v. Silver, 447 U.S. 807 (1980).
This means that charges must normally be filed with both the EEOC and the state agency, within
240 days of the violation (in order to ensure compliance with the 60-day period for state deferral
and the 300-day period for EEOC filing). A possible escape hatch from this requirement exists if
the agency completes its processes (or can be induced to terminate its proceedings) in fewer than
60 days. The ADEA is more relaxed than Title VII since a charge of age discrimination may be
filed simultaneously with the state and the federal agencies. See Oscar Mayer & Co. v. Evans,
441 U.S. 750, 765 (1979).
The difficulties these rules have generated are often ameliorated by “worksharing”
agreements between the EEOC and state agencies which typically divide charge-processing
responsibility between the federal and state agencies, as by providing that the agency with which
the charge was first filed will process it. The agreements often speak in terms of each agency
“waiving” its right to process a charge, or authorize each agency to process a charge on behalf of
the other. See EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988) (state waiver of its
exclusive period of charge processing in worksharing agreement terminated the deferral period,
thereby allowing the EEOC to begin its processes immediately). See also Schuler v.
Pricewaterhousecoopers, LLP, 514 F.3d 1365 (D.C. Cir. 2008) (charge filed with the EEOC
satisfied state deferral requirement both by virtue of the worksharing agreement with the D.C.
fair employment practices agency and by the EEOC’s cross-filing with the NY agency). A filing
need not be timely under state law to satisfy the federal statute. Commercial Office Products;
Oscar Mayer.
Page 618, add before first ¶ of Note on Waiver, Tolling & Estoppel:
One of the most remarkable aspects of the whole Ledbetter saga is the failure of the Court
in that case or in prior decisions to address a doctrine with the potential to ameliorate at least the
more severe aspects of the notice of decision rule. Although as we will see, the Court recognizes
that the strict time limits can be influenced by waiver, tolling, and estoppel, the Court never
recognized a “discovery” rule, which would have tolled the charge-filing period until the
employee knew (or reasonable should have known) that an adverse action was discriminatory. In
a footnote, the Ledbetter majority noted that “We have previously declined to address whether
Title VII suits are amenable to a discovery rule [citing Morgan]. Because Ledbetter does not
argue that such a rule would change the outcome in her case, we have no occasion to address this
issue.” While Justices O’Connor, Rehnquist, and Breyer stated in a separate opinion in Morgan
that “some version of the discovery rule applies to discrete-act claims,” two of those justices are
no longer on the Court.
The enactment of the Lilly Ledbetter Fair Pay Act obviously largely moots the question
of a discovery rule, although the complications of the limitations scheme we have explored
might suggest that a limited role could remain for such an exception. Two issues would have to
be addressed in developing “some version” of such a rule. First, does the plaintiff know (or
should she have known) that she has been treated differently than other employees? Second,
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even if the plaintiff knows about a disparity, does she know have reason to know any difference
is the result of discrimination? See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854 (7th
Cir. 2005) (no equitable tolling for black employee since a reasonable person would have been
aware that discrimination could be one possible basis for the employer's actions when he was
replaced by a white with no explanation); Wastak v. Lehigh Valley Health Network, 342 F.3d 281
(3d Cir. 2003) (age discrimination claim accrued on date employee was fired although he had
little reason to believe he had been the victim of age discrimination until he learned that he had
been replaced by a younger employee nine months later).
A discovery rule aside,
Page 619, add after Yang cite in carryover ¶:
Taylor v. UPS, 554 F.3d 510 (5th Cir. 2008) (a certified class action tolled the relevant statutes
of limitations for § 1981 claims that arose from 1993 until 2004, when the class claims were
finally dismissed).
D.
RELATIONSHIP OF THE EEOC CHARGE TO PRIVATE SUIT
Page 625, add at end of carryover ¶:
Cf. Allen v. Highlands Hosp. Corp., 545 F.3d 387, *** (6th Cir. 2008) (holding that the ADEA’s
administrative-exhaustion requirement EEOC in 29 U.S.C. § 626(d) for presenting issues to the
“is not jurisdictional in nature, but is instead best understood as a prudential prerequisite to filing
a claim in federal court”).
Page 625, add at end of last full ¶:
While the statute of limitations may be longer for a filing under § 1981 than for Title VII,
the courts have tried to conform the accrual of the cause of action to Title VII principles.
Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008) (a claim under
§ 1981 accrued upon plaintiff’s “awareness of the actual injury, i.e., the adverse
employment action, and not when the plaintiff suspects a legal wrong.”). Accord Amini v.
Oberlin College, 259 F.3d 493 (6th Cir. 2001); Thelen v. Marc's Big Boy Corp., 64 F.3d 264,
267 (7th Cir. 1995). Lukovsky concluded that, even though state limitations law is borrowed (at
least for claims that would have been viable under §1981 as originally enacted), federal law
determines when an action accrues. Despite this, however, it would seem a state law question as
to whether the borrowed statute would be tolled by a discovery rule or whether defendant’s
misconduct would estop it from pleading the statute.
E.
THE INTERRELATIONSHIP OF VARIOUS RIGHTS AND REMEDIES
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Page 627, add at end of second full ¶:
See generally Lisa Durham Taylor, Untangling the Web Spun by Title VII's Referral & Deferral
Scheme, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1243694.
Page 627, add in second full after Solimino cite:
But see Tice v. Bristol-Myers Squibb Co., 2009 U.S. App. LEXIS 7546 (3d Cir. Apr. 8, 2009)
(despite the general presumption of de novo review of agency proceedings in Title VII and
ADEA cases, an administrative ruling under the Sarbanes-Oxley Act may have preclusive effect
on subsequent suits under those statutes in federal court) (2-1).
F.
CLASS ACTIONS
Page 632, add at end of citation of principal case:
reh’g granted en banc, 556 F.3d 919 (9th Cir. 2009).
2.
Requirements of Rule 23(a)
Page 641, add at end of first ¶ in Note 3, Source and Reach of At-Issue Policies:
See also Parra v. Bashas’, Inc., 536 F.3d 975, 979 (9th Cir. 2008) (“pay scales were common for
all Bashas', Inc. employees and provided for different pay for similar jobs based only on the store
where the employee worked. The proposed class here shares the alleged discriminatory pay
scales of Bashas', Inc. The class definition seeks to reach those Hispanic employees who suffered
past discrimination under these pay scales.”).
Page 642, add at end of carryover Note 3, Source and Reach of At-Issue Policies:
In contrast John Monahan, Laurens Walker & Gregory Mitchell, Contextual Evidence of Gender
Discrimination: The Ascendance of "Social Frameworks," 2008, 94 VA. L. REV. 1715, 1748-49
(2008), argue that:
[W]e believe it essential that courts limit expert testimony to a description of the findings
of relevant and reliable research and of the methodologies that produced those findings,
and preclude the witness from speculatively linking the general research findings to
alleged policies and practices of a specific firm. If testimony about a specific case is to be
offered by an expert, that testimony should be based on valid "social fact" research that
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involves the parties before the court, rather than on subjective, unscientific extrapolation
from general research conducted outside the case.
See also David L. Faigman, Nilanjana Dasgupta, & Cecilia L. Ridgeway, A Matter of Fit: The
Law of Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1431 (2008)
((“Although expert testimony can assist the trier of fact to make this determination [whether a
particular employment decision was motivated by unlawful bias], the research literature on
implicit motivations does not give experts the diagnostic tools to say whether a particular
employment decision was a product of implicit (or explicit) bias. A clear-eyed view of the
science, therefore, well supports the admission of expert testimony to educate triers of fact
regarding how implicit motivation might affect behavior. However, the ultimate question
whether such bias was a motivating factor in the particular case should not be the subject of
expert opinion.”). ) But see Melissa Hart & Paul M. Secunda, A Matter of Context: Social
Framework
Evidence
in
Employment
Discrimination
Class
Actions,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337741 (contrary to Faigman, a blanket
exclusion of social framework expert testimony related to conduct of the defendant is
inconsistent with the Federal Rules of Evidence and Supreme Court precedent on the district
courts' responsibility for assessing the admissibility of expert testimony more generally).
4.
Settling Class Actions
Page 646, add at end of carryover ¶:
See also Nantiya Ruan, Bringing Sense to Incentives: An Examination of Incentive Payments to
Named Plaintiffs in Employment Discrimination Class Actions, 10 EMPL. RTS. & EMPLOY. POL'Y
J. 395, 426 (2006) (examining when settlements involving incentive payments to class
representatives should be permissible and arguing that, because of the risks and costs to such
persons, precedents limiting such awards in the securities and consumer contexts should not
control).
Page 646, add after Selmi cite in second full ¶ of G. Federal Government Enforcement:
Marcia L. McCormick, The Truth is Out There: Revamping Federal Antidiscrimination
Enforcement for the Twenty-First Century, 30 BERKLEY J. EMPL. & LAB. L. ***, *** (2008),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142979 (proposing taking private sector
employment discrimination disputes away from the EEOC and creating a new agency that would
be “something of a hybrid between a truth commission, legislative hearing, and adjudicative
agency.”).
Page 647, add after Shell Oil cite in first full ¶:
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EEOC v. Fed. Express Corp., 543 F.3d 531 (9th Cir. 2008) (EEOC may issue administrative
subpoena against employer even after charging party has been issued right-to-sue letter and files
suit);
Page 647, add at end of second full ¶:
EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009) (once a valid charge is filed,
the EEOC may determine how to investigate regardless of the attempted withdrawal of the
charge by the filing party).
Page 648, add at end of last full ¶:
Burrus v. State Lottery Comm'n of Ind., 546 F.3d 417 (7th Cir. 2008) (Indiana state lottery was
not arm of the state because it raised its own revenue and judgments against it would not be paid
out of state coffers, even though such judgments might reduce the proceeds the Lottery paid to
the state).
Page 648, add after “Lapides” cite in last ¶:
But see Lombardo v. Commonwealth, 540 F.3d 190 (3d Cir. 2008) (even though the state waived
its Eleventh Amendment immunity to suit by removal to federal court, it did not waive its
immunity from liability)
Page 648, add before State Police in second full ¶:
EEOC v. Bd. of Supervisors for Univ. of La. Sys., 539 F.3d 270 (5th Cir. 2009) (EEOC could sue
a state to enforce the ADEA, without regard to Eleventh Amendment immunity, and could seek
make-whole relief in that suit on behalf of individuals who would be barred by the Eleventh
Amendment from suing the state themselves)
Page 649, add in second full ¶ before Kovacevich cite:
Alaska v. EEOC, 2009 U.S. App. LEXIS 9613 (9th Cir. May 1, 2009) (since plaintiff’s Title VII
claims alleged actual violations of the Fourteenth Amendment in terms of sex discrimination (as
opposed to conduct that could be proscribed only prophylactically under §5), the Government
Employee Rights Act validly abrogated Alaska's Eleventh Amendment immunity were that
otherwise to apply in EEOC administrative proceedings );
Page 650, add new material at end of carryover section:
While §1981(c) explicitly authorizes private suits against state and local governments
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(“The rights protected by this section are protected against . . . impairment under color of State
law"), the Supreme Court in Jett v. Dallas Independent School District, 491 U.S. 701 (1989),
held a plaintiff must use the remedial provisions of 42 U.S.C. §1983 to enforce §1981. In turn,
§1983 does not authorize suit against the states at all, Will v. Michigan Dep't of State Police, 491
U.S. 58, 63 (1989), and §1983 suits against local governments are circumscribed by a web of
immunities. Both Jett and Will were decided before the 1991 Amendments added the language
relating to “impairment under color of State law”, and one circuit has read that amendment to
alter the Jett approach. Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204
(9th Cir. 1996) (concluding 1991 amendments to §1981 imply a cause of action against state
actors). Most circuit courts, however, have held to the contrary as to local governments. E.g.,
Arendale v. City of Memphis, 519 F.3d 587, 596 (6th Cir. 2008); Bolden v. City of Topeka, 441
F.3d 1129 (10th Cir. 2006).
Page 651, add in fifth line after “to the ADEA”:
Although these provisions do not speak expressly of retaliation, there is no doubt that they bar
both discrimination on the prohibited grounds and retaliation against federal employees. GomezPerez v. Potter, 128 S.Ct. 1931 (2008).
Page 651, Delete sentence beginning with “While the substantive coverage,” including
citation.
Page 669, add at end of citation of Dukes:
reh’g granted en banc, 556 F.3d 919 (9th Cir. 2009 )
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CHAPTER 8
JUDICIAL RELIEF
B.
EQUITABLE RELIEF TO THE VICTIMS OF DISCRIMINATION
3.
Limits on Backpay
a.
The backpay period
Page 679, Note 4 replace Melissa Hart cite with:
Melissa Hart, Retaliatory Litigation Tactics: The Chilling Effects of "After-Acquired
Evidence," 40 ARIZ. ST. L.J. 401, 451-52 (2008) (urging the abandonment of the after-acquired
evidence because it risks “filtering out serious instances of discrimination because it puts the
plaintiff on trial or, as importantly, because it raises that risk in the mind of the potential plaintiff
and her lawyer,” but urging at least recognition that raising that defense be considered retaliatory
when doing so is designed to discourage discrimination claims).
b.
The duty to mitigate damages
Page 680, add at end of carryover ¶:
See also Stremple v. Nicholson, 289 Fed. App’x. 571 (3d Cir. 2008) (plaintiff made reasonable
attempts to mitigate in light of (a) the highly specialized nature of his former position, (b) his
unsuccessful applications for chief of surgery in the few suitable hospitals in the area, and (c) the
prohibitive costs of malpractice insurance given his financial position; plaintiff’s ceasing to
maintain his license was a financial necessity, and not a disqualifying factor with respect to the
award).
4.
Front pay
Page 680, add at end of third sentence of Front Pay section:
Lulaj v. Wackenhut Corp., 512 F.3d 760, 767 (6th Cir. 2008) (“the period of liability will end if
plaintiff voluntarily quits his employment with the defendant absent a constructive discharge.
Furthermore, front pay is analogous to back pay in that it imagines the situation that gives rise to
back pay continuing to some future date. Thus it is equivalent to suing for back pay at that future
date. ‘[I]n order for an employee to recover back pay for lost wages beyond the date of his
retirement or resignation, the evidence must establish that the employer constructively
discharged the employee.’).” (citations and internal quotations omitted).
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Page 683, add at end of first ¶ of Note 5, Experts:
See Donlin v. Philips Lighting N. Am. Corp., 2009 U.S. App. LEXIS 8408, 17-18 (3d Cir. Apr.
23, 2009) (while plaintiff could testify as to facts within her personal knowledge (such as her
current and past earnings), she was not permitted to testify as to portions of the damage
requiring technical or specialized knowledge, such as the probability of annual pay raises; and
present-value
discounting).
C.
LEGAL REMEDIES TO VICTIMS OF DISCRIMINATION
1.
Compensatory Damages
Page 685, add at end of carryover paragraph after “for age discrimination”:
Collazo v. Nicholson, 535 F.3d 41 (1st Cir. 2008)
Page 684, add after extract in ¶ 4:
See generally Scott A. Moss & Peter H. Huang, How the New Economics Can Improve
Discrimination Law, and How Economics Can Survive the Demise of the “Rational Actor,”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1368493 (while the limitations on recovery
for emotional distress and punitive damages mean that the basic Title VII damages are lost
income, the endowment effect and happiness research indicate that discharged long-term
employees typically suffer great psychic loss);
2.
Punitive Damages
Page 695, add at end of first sentence of Note 5(b), Employer’s Good Faith Compliance:
Sturgill v. UPS, 512 F.3d 1024, 1035 (8th Cir. 2008) (no punitive damages in failure to
accommodate religion case where UPS followed a nationwide, multi-step protocol for
considering employee requests for religious accommodations and no agent acted with malice or
reckless indifference to the accommodation request: “The jury reasonably found that the lack of
communication between the local managers and the Title VII decision-makers resulted in a
failure to reasonably accommodate Sturgill's religion on December 17, but this is nothing more
than violation of a Title VII negligence standard.”).
Page 695, add at end of first ¶ of Note 5(b), Employer’s Good Faith Compliance:
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Heaton v. Weitz Co., 534 F.3d 882 (8th Cir. 2008) (punitive damages award appropriate when a
reasonable jury could find that, despite initially handling a complaint appropriately, the employer
placed a "biased or perceived partial person" in charge of investigations that were cursory and
indifferent); EEOC v. Fed. Express Corp., 513 F.3d 360, 373-374 (4th Cir. 2008) (despite
appropriate employer policy, a jury could award punitive damages when a manager perceived the
risk of an ADA violation but nevertheless failed to respond to a deaf employee’s request for
complete notes of daily meetings or ASL/close-captioning assistance).
Page 696, add new Note 7A:
7A . The Prevalence of Punitive Damages. The effect of these rules on the ground is
discussed in Joseph Seiner, The Failure of Punitive Damages in Employment Discrimination
Cases: A Call for Change, 50 WILL. & MARY L. REV. *** (2008) (an analysis of all federal
district court decisions during 2004 and 2005 revealed that of more than six hundred relevant
opinions, only twenty-four either awarded punitive damages under Title VII or upheld a jury's
award of such relief; slightly over 17% of those Title VII cases that went to a jury resulted in a
punitive damage award by the jury, with 29% of the juries that found in favor of the plaintiff also
awarding punitive damages).
Page 696, add in Note 10, Are Compensatory and Punitive Damages Linked? before Tisdale
cite:
Abner v. Kan. City S. R.R. Co., 513 F.3d 154, 160 (5th Cir. 2008) (“a punitive damages award
under Title VII and § 1981 need not be accompanied by compensatory damages. We base our
holding on the language of the statute, its provision of a cap, and the purpose of punitive
damages under Title VII.”).
Page 697, add before Lust cite in last ¶ of Note 11, Substantive Due Process Limits on
Punitive Damages:
EEOC v. Fed. Express Corp., 513 F.3d 360, 378 (4th Cir. 2008) (“the fact that the punitive
damages award, when aggregated with the compensatory damages award, was substantially
below the $300,000 statutory cap on such damages, as provided for by 42 U.S.C. § 1981a,
provides additional support for the reasonableness and constitutionality of the punitive damages
award. The statutory cap of $300,000 provided FedEx with fair notice of the range of available
civil penalties for acts of discrimination that contravened the ADA.”).
Page 699, add in last full ¶ before Dearth cite:
Fantini v. Salem State College, 557 F.3d 22 (1st Cir. 2009) (no individual employee liability
under Title VII)
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July 2009
ATTORNEYS’ FEES
Page 707, add in carryover Note 2, When is A Prevailing Defendant Entitled to Attorneys’
Fees? after “See also”:
Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985 (5th Cir. 2008) (no fees award to prevailing
defendant despite unanimous verdict for defendant when the trial court had denied employer’s
motions for summary judgment and judgment as matter of law);
Page 707, add in Note 4, Rule 68 after See generally:
Harold S. Lewis & Thomas A. Eaton, The Contours of a New FRCP, Rule 68.1: A Proposed
Two-Way
Offer
of
Settlement
Provision
for
Federal
Fee-Shifting
Cases,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1318251 (Rule 68 should be amended in
several ways to make it a more effective tool for stimulating the prompt and fair resolution of
civil rights and employment discrimination actions; the amendments should include allowing
plaintiffs, not just defendants, to initiate offers; devising incentives and sanctions calculated to
promote the resolution of disputes without unduly threatening either party; and incorporating
time frames for making and responding to offers).
Page 716, add at end of carryover Note 1, The Reasonable Client Standard:
See generally Seth Hanft, Comment, Questioning the "Presumptively Reasonable Fee" as a
Substitute for the Lodestar Method, 76 U. CIN. L. REV. 1371 (2008).
Page 718, add in second full ¶ after Comm’r v. Banks cite:
See also Green v. Comm'r, 2009 U.S. App. LEXIS 3790 (9th Cir. Feb 24, 2009) (successful
discrimination plaintiff must pay federal income tax on statutory attorneys' fees awarded to her
under state law even though that law treats fees as belonging to attorney who earned them since
the employer's payment of fees to her attorney reduced her own payment obligation and was thus
constructively received by her).
Page 718, add at end of Taxation section:
Even after the new statute, the award of a lump sum in backpay will result in greater tax
liability than the plaintiff would have incurred had the compensation been paid
nondiscriminatorily, for example, when the award pushes the employee into a higher tax bracket.
It may be 554 F.3d 426 (3d Cir. 2009) (not an abuse of discretion for the district court to “gross
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up” a backpay award to compensate plaintiff for the negative tax consequences of receiving lump
sum backpay).
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CHAPTER 9
MANAGING RISKS IN EMPLOYMENT DISCRIMINATION DISPUTES
A.
SETTLEMENTS AND RELEASES
Page 723, add after Dillards cite in carryover ¶:
But see Magallanes v. Ill. Bell Tel. Co., 535 F.3d 582 (7th Cir. 2008) (error to enforce settlement
agreement when the employer failed to prove that plaintiff’s attorney had authority to settle the
case).
Page 728, add in Note 2, Releases under Other Discrimination Statutes before Melanson:
Hampton v. Ford Motor Co., 561 F.3d 709 (7th Cir. 2009) (plaintiff was barred from suit by
knowingly and voluntarily signing a waiver when: she had a pending charge of discrimination;
she had the capacity to understand the language, which was clear and unambiguous; Ford
provided her six weeks to agree, and a month to rescind; she was represented by an attorney,
although she did not consult him regarding the waiver; and she received consideration in the
amount of $100,000. The only factor cutting against enforceability was the form nature of the
document, but the terms were not unreasonable or unfair);
Page 730, add in Note 7, Prospective Waivers before Adams:
Hamilton v. GE, 556 F.3d 428, 433-34 (6th Cir. 2009) (plaintiff’s execution of a “last chance
agreement” as a result of past misconduct did not constitute a valid waiver of his right to sue for
future violations);
Page 730, add in Note 9, Enforcing Settlements after Kokkonen parenthetical:
Cf. Palmer v. Salazar, 2009 U.S. App. LEXIS 9165 (10th Cir. Apr. 29, 2009) (district court had
jurisdiction to determine the validity of a waiver of ADEA rights under the Older Workers
Benefit Protection Act but no jurisdiction with regard to the validity of the waiver for Title VII
or ADA rights).
B.
ARBITRATING DISCRIMINATION CLAIMS
Page 740, delete current Note 1, replace with the following:
1.
Gilmer Trumps Gardner-Denver. Because Gardner-Denver had arisen in the context of a
collective bargaining agreement, almost all the circuits held that it remained the governing law in
that context. Under this view, Gilmer would govern all arbitration except that which occurred
under the aegis of a cba. The rationale was in part the recognition that the union controls the
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individual employee’s claim when arbitration is conducted under a collective bargaining
agreement, and Gardner-Denver was obviously unwilling to trust individual Title VII or ADEA
rights to a union. Further, Gilmer arose under the Federal Arbitration Act, not the National Labor
Relations Act, which could justify a difference in approach in the two contexts.
This distinction was extinguished by 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1461
(2009), which held that “a collective-bargaining agreement that clearly and unmistakably
requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.”
Pyett found the arbitration clause well within the authority granted to labor unions by the NLRA
to contract concerning the rights of their members. While unions could not waive their member’s
right to be free of discrimination, “[t]he right to a judicial forum is not the nonwaivable
"substantive" right protected by the ADEA. Thus, although Title VII and ADEA rights may well
stand on ‘different ground’ than statutory rights that protect "majoritarian processes," GardnerDenver, the voluntary decision to collectively bargain for arbitration does not deny those
statutory antidiscrimination rights the full protection they are due.” 129 S. Ct. at 1464 n.5.
In fact, the majority read arbitration as enforceable under Gardner-Denver itself since it
limited that case to its precise holding – that arbitration of a cba-based discrimination claim did
not bar later suit on a statute-based discrimination claim. While the Pyett majority did recognize
the Gardner-Denver’s “broad dicta that was highly critical of the use of arbitration for the
vindication of statutory rights,” id. at 1469, this skepticism had been abandoned by the Court in a
number of cases, including Gilmer. As for the possibility that the union would not vigorously
pursue its members rights, which in fact happened in the case before it, Pyett noted that a
members could sue the union for breach of its duty of fair representation should it not prosecute
a grievance to arbitration. Id. at 1473.
Page 743, at end of Note 8, Antiretaliation:
However, discharge for failure to sign a compulsory arbitration agreement that would cover a
pending charge has been held retaliatory. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th
Cir. 2008).
Page 753, add at end of carryover ¶:
Martin H. Malin, Due Process in Employment Arbitration: The State of the Law and the Need for
Self-Regulation, 11 EMPL. RTS. & EMPLOY. POL'Y J. 363, 403 (2007) (“Although not a substitute
for strict judicial policing, vigorous self-regulation by the neutral community can go a long way
to ensuring that employment arbitration functions as a fair, even-handed forum whose efficiency
and cost advantages over litigation can work to the advantage of employees as well as
employers. A commendable regime of self-regulation has evolved, but it must go further to
police against agreements shortening limitations periods and prohibiting class claims or joinder
of claims of more than one individual.”).
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Page 757, add at end of carryover sentence:
But see Hall St. Assocs. v. Mattel, Inc., 128 S. Ct. 1396, 1404 (2008) (“Maybe the term ‘manifest
disregard’ was meant to name a new ground for review, but maybe it merely referred to the § 10
grounds collectively, rather than adding to them. Or, as some courts have thought, ‘manifest
disregard’ may have been shorthand for § 10(a)(3) or § 10(a)(4), the subsections authorizing
vacatur when the arbitrators were ‘guilty of misconduct’ or ‘exceeded their powers.’”); Grain v.
Trinity Health, 551 F.3d 374 (6th Cir. 2008) (court could not modify arbitration award to
increase amount awarded when there was not an evident miscalculation; “manifest disregard” of
law, even if still valid after Hall Street, had been previously invoked only vacate arbitration
awards, not to modify them).
Page 757, delete Hall St. cite and the remainder of the paragraph; replace with:
Although some arbitration agreements have attempted to expand the FAA’s narrow scope of
review, the Supreme Court firmly rejected such efforts in Hall St. Assocs. v. Mattel, Inc., 128 S.
Ct. 1396, 1406 (2008) (FAA “§§ 10 and 11 provide exclusive regimes for the review provided by
the statute” although review outside the FAA may be possible).