Employment Discrimination
Green
Spring 2009
Employment Discrimination: Outline
Statutes
1. Title VII of the Civil Rights Amendments of 1964 (Title VII) – 1964
2. Age Discrimination in Employment Act (ADEA) -3. Americans with Disabilities Act (ADA) – 1990
Purpose of Employment Discrimination Laws
In a situation of general at-will e’ment, these statutes protect EEs from ER’s irrationality and/or prejudice.
Why Ban Employment Discrimination?
Morally wrong and unfair to discriminate.
To overcome the history of discrimination in the U.S.
Discrimination creates structural economic disadvantage for certain groups which prevents
them from advancing.
Discrimination hurts the economy as a whole by not promoting on the merits.
Cynical view – it’s just enough justice to create the appearance of neutrality and meritocracy
while actually keeping the masses in their place and sustaining capitalism.
What are the Costs of Employment Discrimination Laws?
Impinges on “free market.”
Potential costs of litigation or of avoiding litigation.
Could lead to defensive hiring posture – harder for everyone to get hired.
More subtle forms of discrimination.
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Principle Theories of Employment Discrimination
Individual Disparate Treatment
ADEA
Gross v. FBL (at SC now)
Hazen Paper v. Biggins
(1993)
Minor v. Centocor (7C,
2006)
Reeves v. Sanderson (2000)
Rachid v. Jack in the Box
(5C, 2004)
Title VII
Desert Palace (2003)
Slack v. Havens (9C, 1975)
Hishon v. King & Spalding
(1984)
Minor v. Centocor (7C, 2006)
Price Waterhouse (1989)
McDonnell Douglas (1973)
McDonald v. Santa Fe
(1976)
§ 1981
Patterson v. McLean (1989)
McDonald v. Santa Fe
(1976)
Basic Requirements of an Individual Disparate Treatment Claim
(1) Intent: Intentional discrimination is required (due to “bc of” language in § 703(a)).
a. Proof of discriminatory intent can be inferred from differences in treatment. Teamsters
v. U.S. (1977, p. 2).
b. How to prove intent to discriminate?
i. “Pohasky” comments that express animus or stereotypes. 1. Slack v. Havens (9C 1975, p. 2) – supervisor (Pohasky) told black EEs
that “colored ppl should stay in their places” and “colored folks are hired to clean bc they clean better.”
2. Cts generally reluctant to see age bias in comments re: retirement.
ii. Different treatment of EEs depending on race, sex, etc.
1. Slack v. Havens – supervisor had black EEs do heavy cleaning work but
let white EE do only light work.
c. How to disprove intent to discriminate?
i. Show that EEs were treated differently for reason other than protected
characteristic.
1. Ex: EEs had different abilities – white EE wasn’t asked to do heavy cleaning work bc she had a bad back, not bc she was white.
2. Hazen Paper v. Biggins (1993, p. 9) – EE was fired right before pension
was going to vest, but that is not violation of ADEA bc pensions vested
in Hazen Paper Co. after a certain # of years, not at certain age of EEs.
d. Unconscious bias does not count – policy Q re: should it count? Outlawing e’ment decisions based on unconscious bias could help ppl realize the extent of their own
biases, could force ERs to take action to eliminate unconscious bias. On other hand,
should ER be responsible for its EEs’ unconscious biases.
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(2) Adverse Employment Action: This isn’t in Title VII but in the case law.
a. Applies to “terms, conditions or privileges of employment.”
b. Must be employment relationship – doesn’t apply to partnerships, etc. Hishon v. King &
Spalding (1984, p. 16).
i. Can’t just call all EEs “partners” to get around the language of the statute.
ii. See “Coverage” for definition of EE v. independent K’or.
c. What is “adverse”? RULE = Change in employment must be “material.”
i. Minor v. Centocor (7C 2006, p. 18) – articulation of “materiality” requirement.
ii. Examples: “ultimate employment actions” (hiring, firing); failure to consider for promotion – Hishon v. King & Spalding (1984, p. 16); increase in hours (bc it’s an effective decrease in pay) – Minor.
iii. This means that ER can treat EEs differently in small ways (bc it doesn’t rise to level of “material.”) On the other hand, if it’s not material, then nothing has transpired yet – maybe s/he’ll get that promotion down the line.
(3) Nexus (adverse e’ment action due to intent to discriminate): There must be a link btw ER’s discriminatory intent and the adverse employment action.
a. § 703(a): unlawful e’ment practice to fail/refuse to hire/etc. “bc of” race, color, religion,
sex or nat’l origin.
b. § 703(m): unlawful e’ment practice when complaining party demonstrates that race, color, religion, sex or nat’l origin was a “motivating factor” even though other factors
also motivated the practice.
i. § 706(g)(2)(B): ER’s defense to a claim under 703(m). ER carries burden of persuasion if it demonstrates that it would have reached the same
decision/taken the same action in the absence of the impermissible factor ct
then can’t give damages or award other remedies to EE beyond declaratory
relief and atty’s fees.
**NB: Civil Rights Act of 1991, which added § 703(m) and § 706(g)(2)(B) to Title VII, did not amend the
ADEA!
**NB: Whites and males can sue for race/gender discrimination under Title VII and Sect. 1981.
For anti-white discrimination case, see McDonald v. Santa Fe Trail Transportation Co. (1976, p.
65).
This is very much an anti-discrimination, colorblindness rationale, not an anti-subordination
rationale.
Can be harder to prove bc most ppl don’t easily read anti-white or anti-male discrimination into
various social interactions.
o No presumption of discrimination – so it’s outside the McDonnell Douglas framework.
o “Background circumstances” test: many circuits require white/male P to show more
than minority or woman P would have to prove, require that white/male P present
evidence of background circumstances that establish that D is unusual ER who
discriminates against the majority (i.e., minority-owned business).
3C rejected background circumstances test in Idimarco v. Runyon (1999, p. 77),
but it’s unclear what they’re applying.
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Younger ppl (< 40 yrs) cannot bring claims of age discrimination under ADEA.
Methods of Proving an Individual Disparate Treatment Claim
Established Tests for Title VII, ADEA, and § 1981
Desert Palace (2003, p. 24): § 703(m) + § 706(g)(2)(B), “motivating factor” test. RULE (703(m)) = P
must only present sufficient evidence for a reasonable jury to conclude, by preponderance of the
evidence, that race, color, etc. was a motivating factor for any e’ment practice. ER’s DEFENSE (706(g)(2)(B)) = ER carries burden of persuasion if it demonstrates that it would have reached the same
decision/taken the same action in the absence of the impermissible factor ct then can’t give damages
or award other remedies to EE beyond declaratory relief and atty’s fees, but ER still liable.
P does not have to present “direct evidence” to obtain a motivating factor instruction. o “Direct evidence”: Evidence that leads to a conclusion w/o having to infer anything.
Most cts limited it to statements from ER that proved the issue (like from Pohasky in
Slack v. Havens).
o Before DP, direct evidence was usually outcome determinative for P/EE. Where direct
evidence existed, burden essentially shifted and P/EE did not have prove but-for
causation. D/EE could avoid most damage liability by proving that the protected
characteristic was not the but-for cause of adverse e’ment action.
“Motivating factor”: sth less than but-for causation.
o Discrimination must play a role, be a factor or a contributing factor, but it need not
cause the decision to occur.
NB: What isn’t a “motivating factor” case? P/EE will argue that protected characteristic was reason for D/ER’s action; D/ER will argue that there was a legitimate reason for its action.
McDonnell Douglas (1973, p. 50): Pretext method. It’s a tripartite framework:
1. P has burden of making prima facie case (PFC) [this is relatively easy to do]:
a. Member of protected grp;
b. Qualified for open position or doing satisfactory work in current position;
i. If it’s a discharge case, some cts require P to show that s/he was doing “satisfactory work” before being fired. Webb v. Communs LLC (10C 2006, p. 55)
c. Adverse e’ment decision (not hired, not promoted, fired, etc.);
d. “Sth fishy” – position was filled by s.o. of different grp, wasn’t filled at all, etc.1
2. D has burden of production to show a legitimate, non-discriminatory reason (LNDR) for the
adverse e’ment action [also easy to do, bc it’s just production not persuasion]:
a. Burdine (1981, p. 57): it’s only burden of production, not persuasion
a. Legitimate = non-discriminatory. It can be any other sort of crazy reason.
b. If ER can’t produce anything, then ct will find for EE.
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SC noted in fn 13 that these specific elements could not fit every fact situation. See p. 55. These elements are
often cited as the elements of the PFC but there is an argmt that they’re not applicable at all times and in practice cts do not apply them exactly every time.
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c. D’s evidence must raise GIMF re: whether it discriminated against P. D must provide
sufficiently specific reason for its decision.
3. P can show that D’s LNDR is just pretext [this is where it gets harder…]
a. Examples of how to show pretext:
i. Other EEs who engaged in same behavior as P did not suffer same adverse
employment action.
1. If ppl from different grps who engaged in same behavior are treated
differently, then obviously the behavior is not the real reason for the
e’ment action – grp membership is.
ii. ER’s treatment of EE during period of e’ment.
1. ER’s treatment of EE in past shows ER’s mindset/mentality.
iii. ER’s reaction, if any, to EE’s legitimate activities.
1. If ER had positive reaction to EE’s legitimate behavior in the past, then why the change here? Perhaps bc of discriminatory reason.
iv. ER’s general policy/practice re: minority e’ment.
1. Statistical evidence would show that ER has general policy not to
promote minorities, etc. – and that means that LNDR is probably pretext
bc they’re discriminating against all minority grps. We see this again in systemic disparate treatment cases. Could also use anecdotal evidence
here.
v. ER not following established hiring/firing/promotion procedure. Carter v. Three
Springs (11C 1998, p. 66).
b. P must show this in order to get to a jury – otherwise, ct will award SJ/JMOL to ER.
c. Evidence re: pretext – what’s necessary?
i. P can show pretext via indirect evidence. Patterson v. McLean (1989, p. 62).
1. P often unlikely to succeed on indirect evidence alone.
2. Reaffirmed by Reeves – indirect evidence is circumstantial evidence that
can support drawing an inference of discrimination.
ii. Qualifications evidence suffices, in some instances, to prove pretext. Ash v.
Tyson Foods (2006, p. 63).
1. P can claim discrimination in promotion even if person promoted was
more qualified than P. Dominguez-Curry v. Nevada Transportation
Dept. (9C 2005, p. 65) – but in this case there were ER admissions of
discrimination.
iii. No “pretext plus” rule: P’s prima facie case + sufficient evidence to find that LNDR was pretext will permit trier of fact to conclude that ER unlawfully
discriminated. No across-the-board rule requiring additional evidence from P.
Reeves v. Sanderson (2000, p. 78).
1. SJ/JMOL is to be determined on a case-by-case basis on the strength of
evidence offered by each side.
2. SJ/JMOL is still appropriate for D when P has made a PFC and proved
pretext in some cases – so Hicks still has force.
3. Reeves does say that in most cases, PFC + proving pretext false should
be enough.
4. Some resistance to this holding. 7C adopted a “pretext = lie” rule, requiring that ER’s LNDR be untrue to find “pretext.” See p. 89.
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a. Cts have distinguished on the facts of Reeves to require more
than pretext.
b. Cts have also relied on “this is not to say” language to require more than proving pretext.
iv. Cts are to look at all evidence that indicates discrimination as relevant, to do a
“holistic” review, and to draw all inferences in favor of party opposing SJ (usually P). Reeves.
d. “Honest belief” rule: proof that D’s LNDR is not true is not necessarily enough. Q is not whether asserted reason is true but whether D believed it to be true when it took
challenged action. Applies in a number of circuits.
e. If several LNDR:
i. Some cts require P to show that all are pretextual.
ii. Some cts allow proof that any LNDR is pretextual to permit jury to infer that
pretext conceals a discriminatory reason.
iii. If the various LNDR conflict, that provides a basis to infer pretext.
Price Waterhouse (1989, p. 32): Rejected by CRA of 1991 – still applies where 1991 CRA doesn’t (ADEA, etc.). EE must produce direct evidence sufficient to show that illegitimate criterion was
substantial factor in e’ment decision such that reasonable factfinder could draw inference that decision was made “bc of” EE’s protected status. “Because of” does mean “but-for” causation. At that point, burden of proof would shift to ER to prove that decision would have been justified
by other legitimate considerations.
Stray remarks, statements by nondecisionmakers, or by decisionmakers unrelated to decisional
process do not suffice to shift burden of proof.
Expert testimony on its own is not enough.
**NB: Price Waterhouse’s Catch-22 discrimination – job requires aggressiveness, but ER judges female
EEs more harshly than a man for being aggressive and doesn’t promote them. Female EEs thus have to
be aggressive (to be promoted) and can’t be aggressive (bc it’s not “feminine”) at the same time.
**NB: Civil Procedure
SJ: See FRCP 56. Motion after pleadings and usually after discovery. D gets SJ if there is no
GIMF. Main Q: is there enough evidence that jury could reasonably find for P? Cts award SJ to
ERs quite often in these cases.
JMOL: See FRCP 50. Motion to grant judgment as matter of law bc “there is no legally sufficient evidentiary basis for a reasonable jury to find for” the other party.
o Case in Chief: D/ER moves for JMOL after P/EE presents his/her case.
o Close of Evidence: D/ER moves for JMOL after all evidence is presented. At this stage,
issue of P’s proof of PFC can no longer be raised.
**NB: Discrimination in Society, Race, and the Issue of “Similarly Situated”
For cts to find discrimination as the root cause of disparate treatment, they must believe that
there is a lot of discrimination in society.
What is race? See discussion beginning p. 74.
o Sect. 1981: ppl who are discriminated against bc of ancestry or ethnic characteristics.
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o Q – should protected characteristics be defined by perceptions of person or by society?
Some cts require comparative EEs to be “nearly identical” to P to be considered “similarly situated.”
How does Obama affect this? Will people think that racism is over now?
**NB: Multiple-Decision-Maker Issue
If there is a chain of causation including discrimination, even if ultimate decision-maker did not
discriminate, then that’s sufficient to go forward w/ case. See BCI Coca Cola Bottling Co. (10C
2006, p. 49). Most cts adopt this causation model.
Some cts hold that only the final decision-maker’s mind-set is important, even if discrimination
shows up somewhere along the line of causation. See Hill v. Lockheed Martin (4C 2004, p. 49).
**NB: Employer Admissions
What did ER actually say?
o RULE: Any out-of-court statement by party to case may be used against it.
o P’s testimony of ER’s out-of-court admission alone may create jury issue of mixedmotives.
Does statement show illegitimate considerations?
o Statements may be ambiguous re: discrimination.
o Ash v. Tyson: use of “boy” by white ER to refer to black EEs is not evidence of discrimination. (!!!)
o What about terms that are “code” for race? Calling black person a “drug dealer”?
Is statement connected closely enough w/ at-issue decision?
o Ash v. Tyson: even discriminatory remarks might be “stray remarks” uttered out of context of the decision at issue.
o Isn’t this at odds w/ Desert Palace and mixed-motives instructions?
Did ER mean what s/he said?
o This doesn’t affect admissibility, but could allow fact-finder to conclude that statement
was a joke or wasn’t meant literally.
**NB: Same Actor Rule – p. 107
Some cts had the presumption that if the same person who hired X then fired X, there is no
discrimination. Many cts are now abandoning this rule.
Why is this wrong? Supervisor could have hired someone for a low-ranking position and that
person later rises through the ranks, or could have hired someone expecting them to act in
stereotyped way.
**NB: Same Supervisor Rule – “me too” evidence – p. 108
Mendelsohn v. Sprint (2007) – supp.: P wanted to enter evidence from 5 other workers who
also claimed to have been laid off bc of age discrimination. The other 5 didn’t have same 7
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supervisor as P. District Ct didn’t allow the evidence bc the other witnesses weren’t “similarly situated.” SC held that it’s error for cts to apply per se rule on such evidence; it’s all up to discretion of trial ct.
Cts are worried that w/o evidence of systemic disparate treatment, it’s unfair (prejudicial under F.R.Ev. 403) to present evidence of discrimination by some other supervisor.
Why would this evidence be relevant?
o Maybe various supervisors are colluding in intent to discriminate.
o Maybe ER tolerates a certain level of derogatory comments towards protected class that
could influence a certain supervisor’s decisions.
How do the Tests Fit Together Now?
Desert Palace + McDonnell Douglas
OPTION 1: RACHID V. JACK IN THE BOX (5C 2004, p. 95) – a modified McDonnell Douglas framework
How does it play out?
o (1) P presents McDonnell Douglas PFC
o (2) D presents LNDR (burden of production shifts)
o (3) P presents sufficient evidence to create GIMF either
(a) that D’s LNDR is pretext – leaving D w/o a rebuttal argmt [classic McDonnell
Douglas – better for cases w/o a lot of direct evidence but proof that LNDR is
false], or
(b) that D’s LNDR, while true, is only one of the real reasons for its conduct, and another “motivating factor” is P’s protected characteristic [703(m) standard –
better for cases w/ strong statements of bias].
D can then prove that the same adverse e’ment decision would have been made even in absence of discriminatory animus [706(g)(2)(B)
standard].
Advantages of this approach: More options for P. This allows P to take advantage of either
703(a) or 703(m), the latter being easier for Ps to prove, w/o having to decide beforehand.
o Ds tend to prefer McDonnell Douglas bc it requires P to prove but-for causation.
o Ps might prefer McDonnell Douglas if they have strong evidence that the LNDR is false
but they don’t have a lot of direct evidence. Moreover, it can be easier to prove pretext than to prove discrimination directly (if P can show that she didn’t make mistakes on her
timesheet even though D says that why it fired her, then there’s a supposition of discrimination).
Disadvantages of this approach: Requires all Ps to make McD D PFC. Even though it’s a low standard to meet, not all Ps will be able to do it – especially Ps who are suing on a mixedmotives claim. See p. 102.
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