EMPLOYMENT DISCRIMINATION LAW
Spring 2011
Melinda Grier
Office: 313 Knight Law School
Campus Phone: 346-3069
E-mail: grierm@uoregon.edu
Description
This course considers the practical and theoretical aspects of laws designed to protect
employees from prohibited discrimination. While the course will focus on the practical aspects
of employment discrimination law from both an employee and employer perspective, we will
also discuss the underlying policies that have led to these laws and whether the laws actually
implement the policies as they were intended. We will discuss topics from the readings as well
as related topics chosen and developed by class members. We will often consider topics
through the use of discussion problems or topics raised in the mass media.
Objectives
Students will:
 learn the jurisprudence and case law of the various laws that govern employment
discrimination law;
 learn how to apply the jurisprudence to factual situations;
 learn the impacts of employment discrimination and employment discrimination
claims on employees and employers;
 learn how to advise employers to prevent and respond to discrimination claims
and how to advise employees who believe they are the victims of employment
discrimination; and
 learn other practical skills related to employment discrimination law.
Assessment and Grading
1. Class participation – Everyone is expected to participate actively in class and to have
completed the readings for each class prior to class. The class readings for the term are
posted on TWEN in the Syllabus but could change slightly during the term. Each
student is expected to lead one discussion or, with a classmate, participate in a mock
appellate argument of one of the cases involving employment discrimination law before
the U.S. Supreme Court this term. There will be a sign-up sheet for these activities.
Discussion and class participation are collaborative, not competitive, activities. When I
evaluate your class participation, I will consider whether your contributions furthered the
group discussion and your ability to engage in creative problem-solving as well as your
ability to demonstrate you have read and understand the materials.
2. Writing Assignments – There will be three writing assignments during the term. They will
NOT be detailed legal briefs or research papers. They require you to prepare
documents like those lawyers prepare if they are practicing in this area of the law. Each
assignment requires an understanding of the legal issues, relevant statutes and previous
decisions that would affect a decision with the facts provided. However, the information
required for each assignment is in the “file” provided with the writing assignment, in class
reading or identified in the instructions. Papers will be graded on clarity of writing and
logic, brevity and a demonstrated understanding of the legal, policy or practical issues
the problem raises. Writing assignments are individual activities. You are not permitted
to seek the assistance of others in the preparation of your assignment. You may discuss
the project generally with other students.
3. Final Examination – As long as the class stays small, there will be no final exam. In a
small class, I will be able to assess students’ understanding of the course material from
discussion activities without an exam.
4. Grading System – Assuming no final exam grades will be determined as follows:
a. Class participation – 40%
b. Writing Assignment 1 – 10%
c. Writing Assignment 2 – 20%
d. Writing Assignment 3 – 30%
Miscellaneous
Office Hours: I don’t hold formal office hours but am generally in my office, Room 313. Feel
free to drop by, schedule a time specifically or send me an e-mail to find out if I’m in and
available.
Academic Misconduct: All Law School and UO policies apply. In addition, an instance of
academic misconduct is not something you want to talk to the Bar about when you apply for
membership. Your reputation and your future are more important than the grade in any one
class. Professional ethics are as important now as they will be in your practice.
Viewpoint tolerance: Some topics we discuss can evoke strong emotions. Lawyers must be
able to disagree respectfully with others on topics that are personally very important to them.
Suggestions: I value your suggestions about ways you see to improve the class. Please feel
free to talk with me directly or send me e-mail ideas with suggestions for ways this class can be
more effective.
EMPLOYMENT DISCRIMINATION LAW
Spring 2011
Professor Melinda Grier
Campus Phone: 346-3069
E-mail: grierm@uoregon.edu
Page numbers refer to the text for the course: Employment Discrimination: Cases and
Materials (7th Ed.). “N” refers to notes following the cases. "S" refers to pages in 2009
Case Supplement with Selected Statutes.
Class
& Date
Jan. 24
Wk 1
Assignment
Topic
761 – 762, 770 – 774, 779 - 787
1 – 31
Underlying Policy Basis
Introduction to Individual Disparate
Treatment
https://implicit.harvard.edu/implicit/demo/sele
ctatest.jsp
Dyer, “The Matter of Whiteness”, Chapter 1 in
White Privilege: essential readings on the
other side of racism,
http://books.google.com/books?id=hSwJ
KwwjVl0C&printsec=frontcover&dq=Whi
te+Privilege&source=bl&ots=Z74QJm9C6
f&sig=KqFjIWPZXI8DgC6K27qb1Fo7BY&hl=en&ei=btVJTJyFOoGWsgOVq
uRI&sa=X&oi=book_result&ct=result&re
snum=3&ved=0CCcQ6AEwAg#v=onepag
e&q&f=false
Jan. 31
Wk 2
Feb. 7
Wk 3
Feb. 14
Wk 4
Feb. 21
Wk 5
32 - 41
42+ N 2 – 5, 7 – 9
47 Multiple Decisionmakers - 59
S 3 for N 7, S 7
62 - 64, 64+ N 1, 3, 4, 5, 6
68 - 78
78 – 94
S 12 – 26 N8
101+ N 2 & 3
S 26 N105,
107 – 111, S 27 N 108
*Writing Assignment #1 Distributed
115 - 140
141 - 154 (skim)
155 - 165
169 - 204
Individual Disparate Treatment 2
Individual Disparate Treatment 3
Systemic Disparate Treatment
Systemic Disparate Treatment –
Defenses
Feb. 28
Wk 6
Mar. 7
Wk 7
Mar. 14
Wk 8
Mar. 28
Wk 9
Apr. 4
Wk 10
Apr. 11
Wk 11
288
**Writing Assignment #1 Due
207 – 219
220 + N 1, 2, 5, 6
223 – 228 + N 1 - 4
S 34 – 39 + N 1 – 3, S 232
237 (“Teal”) – 251
255 (“El”) – 262 + N 1 - 4, 8 -13
267 – 273
279+ N 1, 3, 4
281 (“Bryant”) – 287
294 (“A”), 297+ N 1 – 3
299 – 302
Writing Assignment #2 Distributed
S 44 (“Ricci”) - 83
317 - 329
331 – 336
346 - 350 (“Jesperson”)
337 - 345
Tanner v. OHSU
157 Or App 502 (1998)
Li v. State,
338 Or. 376, 110 P.3d 91 (2005) (skim)
Perry v. Schwarzenneger,
591 F.3d 1147 (2010) or
https://ecf.cand.uscourts.gov/cand/09cv
2292/files/09cv2292-ORDER.pdf (skim,
focusing on Conclusions of Law p. 109
et seq.)
Gill v. Office of Personnel Mgmt, 699
F.Supp.2d 374, (focus on Section III.D.
to end)
354 – 358+ N1, 4, 6
S 87 p.355
362 (“Guerra”) – 369 (Note on FMLA)
** Writing Assignment #2 Due
370 – 391+ N 3, 4
394 – 401 (“Suders”)
403 – 407+ N 2, 3, 5 – 8
413 - 417
418 - 442
442 - 459
http://www.azleg.gov/legtext/49leg/2r/bill
s/sb1070s.pdf , Sections 5 - 8.
461 -473, S 103 -107+ N4 (“Crawford”)
473 – 479+ N 5
* Writing Assignment #3 Distributed
The Zero Sum Society
Disparate Imp. I
Disparate Imp. 2
The Relationship Between the
Theories
The Relationship (cont’d)
Coverage
Defining Sex Discrimination
Relationships & Dress Codes
Sexual Orientation
Pregnancy
Harassment
Investigating Complaints
Religious Discrimination
National Origin & Alienage
Discrimination
Retaliation
Apr. 18
Wk 12
Apr. 25
Wk 13
May 2
Wk 14
481 - 484
723 -727+ N 3, 7 - 10
732 – 757
595-596, S 157-167 N for p. 618
618 - 621
S 112 – 134, 136 – 140 (Mitigating
Measures), 143 (“Sutton”) - 150
533 – 538,
539 – 551, 552-554, 556 – 574
576 -579, S 153, 581 - 587
** Writing Assignment #3 Due
Age Discrimination
Arbitrating and Settling Claims
Filing a Charge
Disability I
Disability 2
Employment Discrimination Law
Spring 2011
Discussion Topics
In addition to lecture/discussion and problems based on the week’s assigned reading, we will spend
approximately an hour each week in student-led discussion focusing on a variety of topics related to
employment discrimination law.
Students may lead a discussion on a topic or, with another student, present arguments in one of three
cases employment discrimination cases that the U.S. Supreme Court is hearing this term. Everyone
must assume responsibility for leading at least one discussion or participating in one moot court during
the semester.
I have prepared topics and provided optional resources for those topics, but you may do your own
research on those topics instead of, or to supplement, what I have done or you may propose a different
topic. There is also material on most of the topics in the textbook that you are free to use. You are not
expected to do extensive research and may limit yourself to the resources I have provided. You may
incorporate ideas from your own experience and knowledge and express your own beliefs. I encourage
you to present a variety of opinions on the topic where that is important to understand a controversy.
Most important is that you have thought through the topic and are prepared to help the class think
through the difficult issues and various viewpoints on the topic.
You are not required to make a formal presentation, but generally the discussion will work better if you
introduce the topic. Some students have led a structured conversation, some have posed questions and
others have prepared topics in ways that engaged the class in developing answers. You should choose
the method that works best for you and for your topic. If you have supplemental material you wish your
colleagues to read, be sure to allow enough time prior to class for that to occur.
For those students who choose the Supreme Court arguments, the rest of the class will serve as a moot
court and ask you questions. The parties’ and amicus briefs are available now.
I will send the sign-up sheet around during our first class. Please indicate what week you will lead the
discussion. If you prefer a different topic, indicate the topic as well as the week you wish to present it.
If you do not wish to sign up this week, you can send me an e-mail during the week or sign-up next
week.
You will not receive a letter grade for this assignment, but it will be one component I will assess as part
of your overall participation. In the past, some students have been very creative in their presentations.
If you need extra time or any AV equipment, let me know. I also encourage you to participate when
other students are leading the discussion.
EMPLOYMENT DISCRIMINATION LAW
Spring 2011
Professor Melinda Grier
Campus Phone: 346-3069 E-mail: grierm@uoregon.edu
Date
Topic and Resources
From the 2010 Supreme Court Docket –
Staub v. Proctor Hospitals – When is an employer liable for
discrimination if the employee who discriminates is not
responsible for the adverse employment action?
http://www.abanet.org/publiced/preview/briefs/home.htm
l
The Impacts of Stereotyping and Discrimination
http://researchnews.osu.edu/archive/racster.htm
http://www.apa.org/monitor/jan05/visual.aspx
http://www.mediaawareness.ca/english/issues/stereotyping/index.cfm
http://www.hanksville.org/sand/stereotypes/pewe.html
http://media.www.spectatornews.com/media/storage/pap
er218/news/2010/03/04/Editorialopinion/Native.American
.Mascots.Can.Be.Ok-3884350.shtml
http://law.marquette.edu/facultyblog/2010/03/22/thenative-american-mascot-issue-will-just-not-go-away/
Speech and Discrimination – What protection should
speech have in the context of discrimination
http://www.yale.edu/lawweb/jbalkin/articles/frsphoen1.pd
f
http://www.firstamendmentcenter.org/speech/pubcollege
/topic.aspx?topic=sexual_harassment
http://www.stanford.edu/dept/news/pr/95/950308Arc533
7.html
http://www.ca9.uscourts.gov/datastore/opinions/2010/05
/20/08-16073.pdf
Discussion Leaders
From the 2010 Supreme Court Docket –
Thompson v. North American Stainless
Does Title VII’s prohibition of retaliation protect family
members, fiancés or others closely associated with the
employee who participated in the protected activity?
http://www.abanet.org/publiced/preview/briefs/home.htm
l
White Privilege – Should the law recognize it?
Rothenburg, “Introduction,” in White Privilege: essential
readings on the other side of racism,
http://books.google.com/books?id=hSwJKwwjVl0C&printse
c=frontcover&dq=White+Privilege&source=bl&ots=Z74QJm
9C6f&sig=KqFjIWPZXI8DgC6K27qb1Fo7BY&hl=en&ei=btVJTJyFOoGWsgOVquRI&sa=X&oi=boo
k_result&ct=result&resnum=3&ved=0CCcQ6AEwAg#v=one
page&q&f=false
http://uts.cc.utexas.edu/~rjensen/freelance/whitefolo.htm
http://online.wsj.com/article/SB100014240527487037241
04575379630952309408.html
Immigration Law – Policy and Law
Chamber of Commerce v. Candelaria,
http://www.abanet.org/publiced/preview/briefs/home.htm
l
http://www.whitehouse.gov/issues/immigration
http://cbo.gov/ftpdocs/116xx/doc11691/07-23Immigrants_in_Labor_Force.pdf
Religious Beliefs in the Workplace – The Balance
between an employee’s right to exercise religious
beliefs and the effect on other employees
http://www.firstamendmentcenter.org/rel_liberty/fre
e_exercise/topic.aspx?topic=workplace_religious_liber
ty
http://clinton2.nara.gov/WH/New/html/199708193275.html
http://lawprofessors.typepad.com/laborprof_blog/20
10/06/the-increase-of-the-workplace-chaplain-oranother-reason-for-federal-anticaptive-audiencelaws.html
http://www.leg.state.or.us/09reg/measpdf/sb0500.di
r/sb0519.en.pdf or Chapter 658 Oregon Laws 2009 @
http://www.leg.state.or.us/bills_laws/home.htm
The Changing Face of Employment Law
http://stats.bls.gov/opub/mlr/2001/11/art2full.pdf
“The Development of Employment Rights and
Responsibilities from 1985 to 2010,” ABA Journal of
Labor & Employment Law, Volume 25, Number 3,
Spring 2010, p. 449. (I can provide.)
Arbitration Clauses – Are mandatory arbitration
clauses a good way to deal with employment
discrimination claims
http://www.ilr.cornell.edu/alliance/resources/Guide/g
uide_employment_arbs.html
http://www.eeoc.gov/policy/docs/mandarb.html
http://www.eeoc.gov/eeoc/foia/letters/2008/ada_ma
ndatory_arbitration.html
http://www.eeoc.gov/eeoc/meetings/archive/12-203/reesman.html
Use of Employee and Applicant Information
http://www.eeoc.gov/eeoc/foia/letters/2010/adaconfident-medicalinfo.html
http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii_
conviction_and_safe.html
http://www.eeoc.gov/laws/types/genetic.cfm
http://www.eeoc.gov/laws/regulations/gina_qanda_s
mallbus.cfm
http://www.eeoc.gov/eeoc/foia/letters/2009/ada_dis
ability_medexam_healthrisk.html
http://www.eeoc.gov/eeoc/foia/letters/2008/titlevii_
question_gender_race.html
http://www.eeoc.gov/eeoc/foia/letters/2008/ada_me
dical_exams_sep10_2008.html
http://www.eeoc.gov/eeoc/foia/letters/2008/titlevii_
use_conviction_hiring.html
http://www.eeoc.gov/eeoc/foia/letters/2007/ada_fml
a.html#N2
http://www.ftc.gov/bcp/edu/pubs/consumer/credit/c
re36.shtm
Gender Differences – Should they be a consideration in
employment discrimination law?
http://www.psychologytoday.com/articles/index.php?
term=pto-2832.html&fromMod=popular
http://www.stanford.edu/~niederle/Gender.pdf
http://www.nsf.gov/statistics/nsf03322/pdf/front.pdf
http://www.annelitwin.com/publications/genderatwo
rk.html
http://www.bizjournals.com/baltimore/stories/2006/
11/13/smallb5.html
Is a Colorblind Constitution the Right Approach?
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=1230&context=faculty_scholarship
http://law.wustl.edu/journal/54/Sealing_.pdf
http://www.wcl.american.edu/journal/lawrev/45/nat
apoff.cfm
http://teachingamericanhistory.org/library/index.asp
?document=1144
Customer Harassment and Preferences—How should
employers respond?
Chaney v. Plainfield Healthcare Center, 612 F.3d 908, C.A. 7
(Ind.) 2010
E.E.O.C. v. Love's Travel Stops & Country Stores, Inc.
677 F.Supp.2d 1176, D.Ariz.,2009
Galdamez v. Potter, 415 F.3d 1015, C.A.9 (Or.)
Hem v. Dept. of Ag., EEOC DOC 0720060012, 2008 WL
2610462 (E.E.O.C.)
http://www.ctemploymentlawblog.com/2007/12/articles/h
r-issues/sexual-harassment-of-santa-claus-whats-anemployer-to-do
http://www.sciencedirect.com/science?_ob=ArticleURL&_u
di=B6W5H-4J6X3R81&_user=2148430&_rdoc=1&_fmt=&_orig=search&_sort=d
&view=c&_acct=C000056308&_version=1&_urlVersion=0&
_userid=2148430&md5=fb9f3ca81c0f7c40e5e36f92db7ead
2a
http://www.hooters.com/about.aspx
http://www.thesmokinggun.com/file/so-you-wanna-behooters-girl?page=7
Your Choice - Identify a topic related to Employment
Discrimination Law or Policy that interests you and
that you would like to explore with the class