Employment Discrimination – Morris – Fall 2013
Exam Outline
1) Overview Title VII
a) Title VII – Prohibits employers, unions, and employment agencies from
discriminating with respect to a broadly defined class of employment related
decisions on the basis of:
i) Race
ii) Color
iii) Religion
iv) National Origin
v) Sex
2) Religion and the Duty to Reasonably Accommodate
a) 701(j) – Religion includes all aspects of religious observance and practice, as well
as belief.
i) Unless an employer can show that he is unable to reasonably accommodate
to an employee’s or prospective employees observance or practice without
undue hardship on the conduct of the employers business.
(1) Notes: With the other five it is simply do not discriminate, but with
religion there is an affirmative obligation to reasonably accommodate.
(a) ADA also requires reasonable accommodation
(i) Exemptions: §702
1. Title does not apply to aliens, religious corporations,
associations, and educational institutions.
ii) Welsh v. United States – Religion includes moral and ethical beliefs which
occupy the role of religion in an individuals life.
(1) Political and Social Beliefs are not included. (e.g. KKK)
b) Prima Facie Religious Discrimination Burden of Proof (§ 703(a) and 701(j):
i) Plaintiff must show: (Brown v. General Motors Corp)
(1) Bonafide belief that compliance with employment requirement is contrary
to his religious faith
(2) He has informed his employer of the conflict
(3) He was discharged because of his refusal to comply with requirement.
(a) Defendant then must show they made good faith efforts to
accommodate and if these efforts were unsuccessful, demonstrate that
they was no reasonable means to accommodate without undue
hardship.
(i) Relevant Cases:
1. See Tepper v. Popper (6 Cir.) – termination of no-Saturday
work accommodation not enough to satisfy third prong.
2. Frazee v. Illinois (pg. 374) – Belief need not be a clear
commandment of the religion as long as P has sincere belief
that religion requires such action or inaction.
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3. Tiano v. Dillards dept stores – Catholic didn’t establish prima
facie where failed to prove bona fide religious belief to male
pilgrimage at that particular time.
4. Anconia Borad of education v. Philbrook – 701(j) only requires
employer to make a reasonable accommodation, not the most
reasonable.
5. U.S. v. Board of Ed for Philly – Forcing school district to
sacrifice compelling date interest codified in the state statute
would clearly constitute an undue hardship. (Made teacher go
home, cant teach with head scarf)
6. Eversley v. MBank Dallas - Forcing other employees, over
their expressed refusal, to permanently switch from the day
shift to the night shift would be unreasonable and an undue
hardship.
7. Endres v. Indiana – Cops can’t claim religious issues, expected
to enforce all laws without regard to their own beliefs.
c) Transworld Airlines v. Hardison (pg. 363)
i) Facts – Hardison follows a religion called Worldwide Church of God. One of
the tenets is that one must observe the Sabbath from sunset Friday to sunset
Saturday.
ii) Held –
(1) Seniority system itself (in CBA) represented a significant accommodation
to the religious needs of all employees.
(2) airline could not be faulted for having failed itself to work out a shift or
job swap for stores clerk whose religious beliefs prohibited him from
working on Saturdays
(3) airline was not required to permit stores clerk to work a four-day week if
necessary in order to avoid working on his Sabbath or to replace employee
on his Saturday shift with other available employees through payment of
premium wages.
(a) Requiring employer to bear more than a de minimus cost is an
undue hardship.
d) Tooley v. Martin-Marietta Corp. (pg. 378)
i) Seventh-day evangelists requested to donate requested amount to charity
rather than to union in order to avoid conflict with religious beliefs.
ii) Held – This was not an unreasonable accommodation. There is no cost placed
on the union, the employer, or the employees.
3) Entities Covered by the Civil Rights Act of 1964
a) Employers
i) 701(b) – Employers defined:
(1) Person
(2) Engaged in Interstate Commerce
(3) At least 15 employees
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ii) EEOC v. Rinella & Rinella (pg. 18)
(1) Plaintiff was employed as a legal secretary and she publically allged that
R&R discriminated on the basis of sex.
(2) Defendant challenges 15 employee finding
(3) Challenge Interstate commerce
(4) The Court must examine the totality of the firm’s arrangements to
determine whether an employee-employer relationship exists.
(a) 15 employees –
(i) Rinella had final say with respect to sums involved n salary
(ii) To all outward appearances, the attorneys are employed by firm.
They are on letterhead and doors.
(b) Interstate –
(i) Attorneys travel out of state
(ii) Long distance phone bill
(5) They are employees!
iii) Clackamas Gastroenterology Associates v. Wells (pg. 22)
(1) Economic Realities Test –
(a) Whether organization can hire, fire or set rules of work
(b) The extent to which the organization supervises the persons work
(c) Whether the individual reports to someone higher in the organization
(d) The extent to which the individual can influence the organization
(e) The existence of a written document expressing the parties intention to
treat the individual as an employee
(f) Whether the individual shares in the profits, losses, and liabilities of
the organization
iv) Walters v. Metro (pg. 24)
(1) Payroll method used to determine whether an employer satisfied the
fifteen-employee requirement.
(2) The existence of the employer-employee relationship is most readily
demonstrated by the individuals appearance on the employer’s payroll
v) Evans v. McDonalds Corps - Can’t bring claim against McDonald’s as they
don’t have substantial control over plaintiff.
vi) Miller v. Maxwell’s International - Claims are not to be brought against
individual employees or agents.
b) Employment Agencies
i) Greenfield v. Field Enterprises Inc. (pg. 25)
(1) Women posting ads in the classifieds allege discrimination in the form of
separate sections for women and men in the newspapers. The complaint
alleged that no BFOQ was listed and thus violates T7.
(a) This deprives the women of equal access to employment where sex is
not a bona fide occupational qualification – seeking injunction from
listing jobs under male and female.
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(2) Held –
(a) While the publishing of classifieds may further the business of
employment agencies, it does not constitute the business of
employment agencies.
(b) “regularly undertaking requirement” here does not describe activities
of a employment agency – here just a newspaper
ii) Shrock v. Altru Nurses – if an agency is a “statutory” employment agency, but
the employer has less than 15 employees, they are not an “employer”
c) Labor Organizations
i) Local No 293 v. Local No. 293-A (pg. 28)
(1) Two Locals, one white and one black were in dispute. Local A did not
have 15 members and this was not statutorily included.
d) Individuals v. Employees
i) Alexander v. Rush north Shore Medical Center (pg. 31)
(1) Whether a self-employed physician with staff privileges at a hospital may
bring a Title VII action alleging that the hospital’s revocation of his
privileges constituted unlawful discrimination
(2) Court looked at 5 factors:
(a) extent of employer's control and supervision over worker, including
directions on scheduling and performance of work;
(b) kind of occupation and nature of skill required, including whether
skills are obtained in workplace;
(c) responsibility for costs of operation, such as equipment, supplies, fees,
licenses, workplace, and maintenance of operations;
(d) method and form of payment and benefits; and
(e) length of job commitment and/or expectations.
(3) Here, he was not an employee
(a) Listed his own company as employer
(b) Had substantial control over work details even though “on call”
(c) Was also not an employee of his patients (like a cab driver)
e) Covered Employment Decisions - 703(a)-(c)
i) Hishon v. King and Spalding (pg. 37)
(1) Whether court properly dismissed T7 complaint that a law partnership
discriminated against the plaintiff.
(2) The benefit a plaintiff is denied need not be employment to fall within title
vii protections, it need only be a term, condition, or privilege of
employment.
f) Exemptions
i) Spencer v. World Vision – the courts rejected P’s claim that the §702
exception was limited to churches or other houses of worship. The court ruled
that the exemption applies if the entity is:
(1) Is organized for a religious purpose
(2) Carries out that purpose
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(3) Holds itself out to the public as an entity dedicated to carrying out that
religious purpose
(4) Does not engage primarily or substantially in commercial transactions
beyond the nominal amounts.
4) Theories of discrimination
a) Intentional discrimination against the Individual
i) McDonnell Douglas Corp. v. Green - Allocation of burdens *not a pleading
requirement!
(1) P must prove by preponderance of evidence a prima facie case of
discrimination.
(a) That he belongs to a protected class (RCSNOR)
(b) That he applied and was qualified for a job for which the employer
was seeking applicants
(c) That, despite his qualifications, he was rejected; and
(d) That, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant's
qualifications.
(2) Burden shifts to the Defendant to “articulate some legitimate
nondiscriminatory reason for the employee’s rejection.”
(3) P must prove by preponderance of evidence that the reasons offered by D
were not true reasons, but were pretext for discrimination.
(a) Pretext – a false explanation put forward to cover up unlawful
discrimination. (pg. 74)
ii) Disparate Treatment
(1) Texas Department of Community Affairs v. Burdine
(a) Facts
(i) P was employed as an accounting clerk
(ii) To retain funding, employer fired P and two others, retaining one
male employee.
(iii)Employer said this was based on nondiscriminatory evaluations of
relative qualifications
(b) The burden shifts to the defendant to rebut the presumption of
discrimination by producing evidence showing that P was rejected for
a legitimate nondiscriminatory reason.
(i) Defendant NEED NOT persuade the court that it was actually
motivated by the proffered reasons.
(c) D must clearly set forth, through introduction of admissible evidence,
the reasons for rejection.
(i) Cannot be done through answer to complaint or argument of
counsel – must be admitted!
(d) P then maintained burden to persuade that the proffered reasons were
not the true reasons, but were pretext.
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(e) Court of appeals erred in requiring D to prove by a
preponderance of the evidence the reasons for terminating P.
(i) D only bears burden of explaining clearly the nondiscriminatory
reasons for its actions.
(2) Relevant Info:
(a) Satisfactory or basic requirements? Circuits are split on question of
whether discharged P has to show she was performing satisfactorily or
just show met basic eligibility requirements for the job to meet
qualifications hurdle.
(i) Coco v. Elmwood Café – P must meet D’s legit job expectations to
meet qualifications
(ii) Arnold v. Nursing – Served as nurse for year, not need to show
satisfactory performance.
(b) Objective requirements to all - P who doesn’t meet qualification may
be able to make out prima facie case if can those that employer did not
apply the qualifications to everyone
(i) Johnson v. Lousiana – allowing employer to point to objective
requirements even where not applied to all other employees would
subvert intent of title vii
(c) Direct evidence - Some Courts have limited direct evidence to
statements of bias by decision makers that explicitly refer to the
allegedly discriminatory decision.
(i) Taylor v. Virginia Union University – Court affirmed summary
judgment for D even though Police chief was overhead saying
“I’m never going to send a female to the police academy.”
According the Court, the statement did not bear directly on the
decision not to send this plaintiff to the academy.
(ii) Gorance v. Eagle Food – Bigotry is not actionable unless it results
in injury to P.
(d) Bias - Some courts have been willing to infer bias from a
decisionmaker’s inaction in the face of a biased statement by a nondecisionmaker.
(i) McDevitt v. Bill Good Builders - Head nod by president when
secretary said P was fired because he was “too old” may qualify as
direct evidence of unlawful motivation. Can show proffered
reason is pretext during last stage! Can be Stray remarks
(e) Subjective criteria can be accepted as legitimate nondiscriminatory
reason if the decisionmaker sets out a factual basis for the subjective
opinion.
(i) Chapman v. AI Transport (pg. 74) - It might not be sufficient for a
defendant employer to say did not like his appearance, must say
facts e.g. he had uncombed hair and dandruff all over his
shoulders.
(f) Honest Belief rule – P cannot establish pretext if D honestly believed
in the proffered reason even if it is known to be mistaken, foolish,
trivial, or baseless. (Kariotis v. Navistar) or modified honest belief
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rule (Clay v. United Parcel Service) Must provided evidence of
specific casts in its possession at the time the decision was made that
would justify its belief.
(g) Demonstrating Pretext – Common method is to show proof that
“similarly situated” employees, to whom the reasoning should have
been applied, were in fact treated more favorably than the P.
(i) Perez c. Texas - nearly identical
(ii) Ezell v. Potter – engage in similar conduct.
(h) Evidence of P being better qualified – Most circuits hold that P
cannot show pretext by showing that P was relatively better qualified.
P must show they were substantially better qualified “so apparent as to
virtually jump off the page and slap you in the face.”
(i) Ash v. Tyson Foods – That standard is unhelpful, must better is
that disparity “must be of such weight and significance that no
reasonable person, in the exercise of impartial judgment, would
have chose the candidate selected over the P for the job in
question”
iii) Proof of Causation
(1) Price Waterhouse v. Hopkins (pg. 110)
(a) Abrasive female employee who didn’t make partner. Clearly D
considered gender but said also that she was abrasive. SC accepts this
and no liability. Congress doesn’t like this and Overturns when it
amends CRA in 1991
(b) An employer who objects to aggressiveness in women but whose
positions require this trait places women in an intolerable and
impermissible catch 22: out of a job if they behave aggressively and
out of a job if they do not. Title VII lifts women out of this bind.66
(2) Mixed Motive Cases (§706(g)(2)(b)) 1991 CRA amendments
(a) Statutory Language
(i) If individual proves a violation and a respondent demonstrates that
it would have taken the same action in the absence of the
impermissible motivating factor, the court –
1. May grant declaratory relief, [negative] injunctive relief, and
attorney’s fees
2. Shall not award damages (no back pay) or issue an order
requiring any admission, reinstatement, hiring, promotion or
payment [no affirmative injunction]. Because she wouldn’t
have gotten the job anyway. Also no compensatory or punitive
damages
a. So mixed motive is no longer a defense to liability it is only
a defense to remedy
(b) General Interpretation
(i) If prove race was a motivating factor, even if mixed motive (would
have fired anyway) there is still a violation
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(ii) P must still show impermissible factor was part of decision, but
now does not have to show only reason
(iii)Employee will not get back pay, compensatory, or punitive
damages
(iv) Can get injunction but don’t get job back etc.
(3) Desert Palace Inc v. Costa - The Civil Rights Act of 1991 codified a
mixed-motive framework, but it was silent on what type of evidence was
required to proceed within this framework. The Supreme Court held that
direct evidence was not required to obtain a mixed-motive instruction
under section 703(m).20 It held further that any references Justice
O'Connor made to direct evidence were abrogated by the 1991 Act.
(a) PA Police v. Suders – proof of constructive discharge not enough to
determine whether harassment was tangible employment practice
b) After Acquired Evidence (pg. 146-155)
i) McKennon v. Nashville Banner Publishing Co.
(1) Issue:
(a) Whether employee discharged in violation is barred from relief when
employer discovers wrongdoing later and would’ve fired her anyway.
(2) Holding:
(a) Deterrence is an object of the statute
(b) Reinstatement, not front pay are the appropriate remedy
(would’ve fired her anyway)
(c) Backpay from the date of discharge to the date employer discovers
fireable offense.
(i) Must show that the behavior was so severe they actually would’ve
fired her.
ii) How can employer show it was a fireable offense if there is no comparable
past incidents?
(1) Was it criminal in nature?
(2) Did it compromise the integrity of the employers business?
(a) Divulge trade secrets, security, or confidential information.
(3) Was the nature of the conduct such that the adverse action appears
reasonable and justified?
iii) Pre-hiring?
(1) Shattuck - The pertinent question is whether the employee would have
been fired upon discovery of the wrongdoing, not whether he or she would
have been hired in the first place.
iv) Post-discharge?
(1) Sellers v. Mineta – Plaintiff’s post-termination conduct is relevant in
determining whether front pay is available, and if so, in determining the
extent of the award.
v) Retaliation – EEOC guidelines state that an employer who chooses to wage a
retaliatory investigation must lose the advantage of equities that would, absent
the retaliation, favor that employer, especially since retaliation is an
independent violation of federal employment discrimination laws.
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c) Bona Fide Occupational Qualification (BFOQ) (pg. 170-183)
i) In order to qualify as a BFOQ, a discriminatory job criterion must
(1) Affect an employee’s ability to do the job
(2) Relate to the “essence” or to the ‘central mission of the employer’s
business”
ii) Wilson v. Southwest Airlines
(1) Facts
(a) Southwest contends that the BFOQ exception to Title VII’s ban on sex
discrimination justifies its hiring only female flight attendants and
ticket agents.
(2) 5th circuit offers two part test
(a) does the particular job require the worker be of one sex only
(b) is that requirement reasonable necessary to the essence of the
employers business
(3) Holding:
(a) SW primary focus is transport.
(b) Company’s ‘before-hand’ belief that financial loss will take place does
not establish BFOQ
d) Sexual and Other Harassment (pg. 183 – 196; pg. 200-217; pg. 443-447)
i) Meritor Savings Bank v. Vinson
(1) Facts
(a) P claimed she was constantly subjected to sexual harassment by her
supervisor
(2) Held:
(a) Correct inquiry is not whether her participation was voluntary, but
whether the advances were welcome.
(b) District court erroneous held that sexual harassment claim will not lie
absent economic effect on employee
(c) Evidence of employee's sexually provocative speech and dress was not
per se inadmissible
(d) Employers are not per se liable for harassment by supervisors, also
absence of notice does not insulate employers.
(e) Mere existence of grievance procedure and policy coupled with her
failure to invoke is does not insulate petitioner from liability.
ii) To show sex-based harassment must prove the challenge conduct was:
(1) Severe and pervasive;
(2) Created a hostile or abusive working environment
(3) Was unwelcome
(4) Was based on the plaintiff’s sex
iii) Harassment elements broken down:
(1) Severe and pervasive:
(a) Four factors:
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(i) Level of offensiveness of the unwelcome acts or words
(ii) Frequency or pervasiveness of the offensive encounters
(iii)The total length of time over which the encounters occurred
(iv) The context in which the harassing conduct occurred
1. Vance v. Southern Bell – noose hung over P’s desk was severe
and pervasive racial harassment
(2) Hostile/Abusive work environment
(a) Harris v. Forklift – female manager of an equipment rental company
alleged that the company president frequently insulted her, unwanted
sexual innuendoes, and make lewd references to her attire.
(i) Test may include:
1. Frequency of the discriminatory conduct
2. Its severity
3. Whether it is physically threatening or humiliating or a mere
offensive utterance
4. Whether it reasonably interferes with an employees work
performance. (made the job more difficult [Ginsberg
concurrence]
(3) Unwelcomed
(a) Swentek v. USAIR – The question is not whether person has or had
welcomed such conduct, but if the P has welcomed the particular
conduct in question from the alleged harasser.
(4) Because of Sex
iv) Burlington Affirmative Defense* only supervisors
(1) Burlington Industries v. Ellerth (pg. 200)
(2) Facts
(a) She was a salesperson who was subjected to constant sexual
harassment by supervisor
(3) Held:
(a) Employer is vicariously liable to a victimized employee for hostile
environment created by supervisor
(b) If no tangible employment action is taken, employer can raise
affirmative defense to liability or damages, subject to proof my
preponderance of evidence.
(i) Two necessary element for affirmative defense:
1. The employer exercised reasonable care to prevent and correct
promptly any harassing behavior and
2. That the P employee unreasonably failed to take advantage of
any corrective opportunities provided by the employer or failed
to avoid harm otherwise. (Must be reasonably calculated to end
the harassment)
a. Can’t wait fix or six months to file grievance (Mockler)
b. Supervisor only if they can make significant change in
employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
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responsibilities, or a decision causing a significant change
in benefits. (Vance)
(4) Cases:
(a) Faragher – employer didn’t disseminate the policy among members
of supervisor team. Not reasonable care. No Affirmative defense.
(b) What is “tangible employment action’
(i) Firing of P’s secretary, loss of private office, removal of files
(because all were negotiated)
(ii) Submission to demands is a tangible employment action. (Jin v.
metro life insurance)
(iii)Constructive discharge not independently determinative of tangible
employment practice.
(c) Failure to use complaint procedure
(i) Leopold – affirmative defense does not survive where the P can
prove that she had a credible dear that he complaint would not be
taken seriously, or that she would suffer some adverse employment
action as a result of filing. – Requires objective evidence that
employer ignored or resisted similar complaints
e) Retaliation
i) § 704(a) –
(1) It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicant for employment,
because he has opposed any unlawful employment practice, or because he
has made a charge, testified, assisted, or participated in an investigation.
ii) Prima Facie Retaliation Case:
(1) P must establish:
(a) Statutory protected expression
(b) An adverse employment action
(c) Casual link between the protected expression and the adverse action
iii) Payne v. McLemore’s Wholesale
(1) Facts
(a) D failed to rehire P because of his participation in a boycott and
picketing in opposition to unlawful employment practice.
(2) Held:
(a) P can establish a prima facie case of retaliation by showing he had a
reasonable belief that the employer was engaged in unlawful
employment practice
iv) Cases:
(1) Flowers – individual alleging retaliation is protected by participation
clause even when her participating is filing a charge against entity who
isn’t employer.
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(2) Fox v. Eagle – Court ruled because P made only a general reference to
being discriminated against (offered no evidence that his complaints
contained any specific reference to discrimination based on protected class
(3) Niswander v. Cincinatti - P filed retaliation claim after providing
irrelevant confidential documents to attorneys handling a case. Court ruled
that the dissemination of relevant documents would have been protected
by 704(a) but not irrelevant.
v) Burlington Northern & Santa Fe Railway Co. v. White
(1) Facts
(a) Supervisors at Burlington said women should not be working in
maintenance dept, and make inappropriate remarks ito her in front of
her male colleagues.
(b) White was then taken off the forklift and reassigned. – retaliation
(c) 37 day suspension without pay – retaliation
(d) She filed a EEOC claim for gender discrimination and retaliation.
(2) Issues:
(a) Whether anti-retaliation provision applies to employer actions and
resulting harms that occur outside the workplace?
(b) How harmful an act of retaliation must be to fall within the provision’s
scope.
(3) Held:
(a) The anti-retaliation provision protects an individual from
retaliation that produces and injury or harm
(b) P must show that a reasonable employee would have found the
challenged action materially adverse, meaning it might have dissuaded
a reasonable worker from making or supporting a charge of
discrimination.
(i) Reasonable employee = objective standard
(ii) Materially adverse – depends on the circumstances of the
particular case, and should be judged from the perspective of a
reasonable person in the plaintiff’s position.
vi) University of Texas Southwest Medical Center v. Nassar
(1) Physician, who was of Middle Eastern descent, brought Title VII action
against state university, alleging that he was constructively discharged
from university faculty position because of racially and religiously
motivated harassment by a superior, and that university retaliated against
him for complaining of alleged harassment.
(2) Held:
(a) Retaliation claims must be proved according to but-for causation. 
motivating factor is only for discrimination cases
(b) P must show that D’s desire to retaliate was the but-for cuase of the
challenge action.
f) Disparate Impact – Does not apply to ADEA cases
i) Griggs v. Duke Power Co. (pg. 265)
(1) Facts:
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(a) Duke Power Company trying to keep black employees in Labor
division by administering IQ tests and High School diploma
requirement.
(b) Do facially neutral practices that disproportionate affect member of
protected class violate title 7?
(2) When trying to prove a disparate impact case the elements to be shown
are:
(a) Employee shows Facially neutral policy
(b) Employee shows Disparate/disproportionate impact (80% of
highest passing group)
(i) Based on proper comparison and analysis
(ii) Statistically significant impact
(c) Burden of persuasion switches to defendant
(i) To show legitimate business reason for the criteria.
(ii) May say attack the statistics.
(d) P Can then show employer was using the practice as a mere
pretext for discrimination
(e) Employee can then still show an equally effective method that has
a less discriminatory impact.
ii) Connecticut v. Teal
(1) Issue:
(a) Whether ‘bottom line’ theory of defense insulates employer from
liability?
(i) No, the ‘bottom line’ defense does not preclude P from
establishing a prima facie case, nor does it provide a defense
(2) Sayings:
(a) “Title vii prohibits procedures or testing mechanisms that operate as
built in headwinds for minority groups.”
(b) Every Individual employee is protected against both discriminatory
treatment against “practice that are fair in form but discriminatory in
operation.”
iii) Cases:
(1) Malave v. Potter - P said postal service discriminated against Hispanics
regarding promotions.
(a) District ct improperly dismissed just because P didn’t have numbers on
how many Hispanics applied. The labor pool can be identified in other
ways.
(2) Livingston v. Roadway – white male rejected because of 6’4 height
maximum.
(a) Held: where a member of a favored group alleges impact
discrimination, the P must show background circumstances supporting
the inference that a facially neutral policy with a disparate impact is in
fact a vehicle for unlawful discrimination.
(i) Height not protected by title vii
iv) Defenses
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(1) Job relatedness and business necessity (pg. 304)
(a) Fitzpatrick v. City of Atlanta
(i) Facts
1. Firemen allege the no-beard rule has a discriminatory impact
on the black firemen.
2. City offered an affirmative “business necessity” defense,
asserting that the ban on shadow beards is necessary to meeting
the fireman goals.
3. Also argued that firefighters failed to show statistically
sufficient data.
4. Masks need clean shave face to seal – firemen offered no
alternative
(ii) Prima facie case:
1. P must demonstrate that:
a. The challenge practice has a disproportionate adverse
impact on a category of persons protected by statute
b. Employer than must show business necessity or job
relatedness
i. This is only a burden of production – the need to
persuade is on the P at all times.
c. P must show the availability of a less discriminatory
alternative practice
(b) Notes:
(i) Bradley v. Pizzaco
1. “The better our people look the better our sales will be” was
not a good enough business necessity for shaving beards
(ii) Courts have varying views of what business necessity means.
1. Must be economic or human risks associated?
(iii) Zamlen –
1. Because the exam did parallel the actual tasks which
firefighters perform on the hob, the city did demonstrate
correlation between higher test scores and better job
performance.
(c) Methods of Test Validation:
1. Criterion Validation: Administer test
a. Requires correlation between success on the test and
success in the job.
2. Content Validation
a. For a test to have content validity it must measure with
proper relevant emphasis all or most of the essential areas
of knowledge and the traits needed for proper job
performance
3. Construct validation
a. EEOC says:
i. Job analysis which identifies work behaviors required
for successful job performance.
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ii. An identification of the constructs believed to underlie
successes in the critical job behaviors
iii. Selection procedure which measures the important
constructs.
g) Pattern and Practice Claims
i) P must show my preponderance of evidence that a patter of intentional
discrimination existed
(1) By show that racially discriminatory hiring was D’s regular rather than
unusual practice if P meets prima facie case, D must establish a legit,
nondiscriminatory reason for its hiring patterns (Olsons)
(a) This may be don’t by statistical evidence, evidence of D’s treatment of
employees individually, or both.
ii) Hazelwood School District v. United States
(1) Facts:
(a) 707 claim against the school district and officials alleging they were
engaged in a patter or practice of employment discrimination.
(2) Teamsters – absent explanation, it is ordinarily to be expected that
nondiscriminatory hiring practices will in time result in a workforce more
or less representative of the racial and ethnic composition of the
population in the community.
(a) Where gross disparity is shown, they may alone constitute prima
facie proof of pattern of practice discrimination
(3) Percentage of black teachers at hazelwood was far below that of others in
area.
(4) Held:
(a) For the purpose of the prima facie case, the percentage of black
teachers in the district should be compared to the percentage of black
teachers in the the labor market
iii) Notes:
(1) Gross labor market stats:
(a) Requisite skill
(i) Using percentage of minorities in work force is only ok for entry
level positions. When a job requires special training, must compare
with those in labor force who possess the training (Johnson v.
Transp. Agency)
(ii) Geographic area
iv) EEOC v. Olson’s Dairy Queens (pg. 343)
(1) Facts
(a) EEOC says Olsen’s committed unlawful employment discrimination
(b) External availability analysis compared Olson’s hiring history with the
percentage of black food preparation and service workers in the
relevant labor force.
h) Remedies
i) Back Pay – make whole!
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(1) “Given a finding of unlawful discrimination, backpay should only be
denied for reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination throughout the
economy and making persons whole for injuries suffered through past
discrimination” (Moody)
(2) Ablemarle Paper Co. v. Moody (pg. 605)
(a) Issue
(i) When employees or applicants for employment have lost
opportunity for wages because of unlawful discrimination, what
standards should court apply in deciding whether to award or deny
back pay?
(b) The only special circumstance when employers may be relieved from
back pay is when they have violated title vii in good faith compliance
with a state law. (Le Beau - state law denying overtime to women)
(3) Notes
(a) May not award back pay if goes against overriding national policy
(i) Lied to bankruptcy court
(b) Cannot accrue under 706(g) more than 2 yrs prior to EEOC charge
(4) Ford Motor Co v. EEOC
(a) Facts
(i) Women were not hired by ford because they were women
(ii) Ford later offered jobs unconditionally but without seniority.
(iii)When they later lost case, EEOC said women should get backpay
and seniority.
(b) Reasoning:
(i) Although the unemployed need not accept a demoted or
demeaning position, he forfeits backpay if he refuses an equivalent
job.
(ii) An employer charged with unlawful employment practices can toll
the accrual of backpay by offering job unconditionally, providing
opportunity to toll damages.
(c) Held:
(i) When a claimant rejects the job offer originally sought his choice
signals a belief that his injury was ended by availability of better
jobs elsewhere.
(ii) Accrual of backpay is tolled when claimant rejects the job he
originally sought.
(5) Notes:
(a) Substantially equivalent employment –
(i) Job with essentially same promotional opportunities,
compensation, job responsibilities, working conditions, and status.
(ii) Decision to attend school after looking for full-time work is not
failure to mitigate.
(b) Collateral Source Rule:
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(i) Defendant Generally may not mitigate damages by workman’s
comp, or even contribution benefit fund
(6) Front pay
(a) Usually only viable where because of no fault of P, reinstatement is
not an option.
i) Prohibited classifications: Special Problems
i) National Origin
(1) Espinoza v. Farah Manufacturing Co.
(a) Facts
(i) Espinoza was a legally admitted alien who wasn’t hired because of
company policy.
(ii) Held: Aliens are protected from illegal discrimination based on
race, color, sex, national origin, and religion, but nothing in the act
makes it illegal to discriminate based on citizenship or alienage.
(2) Fragante v. City and Council of Honolulu
(a) P was denied a position that required him to provide information to the
public over the telephone. Two interviewers said that his ‘heavy
Philipino accent’ would interfere with the performance of his job.
(i) Held: P was not denied employment because of national origin or
because afraid customers wouldn’t like foreign accents, D had a
nondiscriminatory, non-prextual explanation for its conduct.
(3) Place of origin is sufficient for national origin claim. E.g. Serbia didn’t
exist, could you claim national origin discrimination? Yes. You don’t lose
a national origin claim does not vanish because your country did.
(4) Salas v. Wisconsin Department of Corrections
(a) Hispanics qualify as a national origin group
(5) P does not have to be of the national origin people discriminate against
him for.
(6) EEOC guidelines state that because linguistic characteristics are a
component of national origin, employment decisions based on these
factors are permissible only when they materially interfere with an
individual’s ability to perform his or her specific job duties safely or
efficiently such as when an employer seeks to communicate with
customers, co-workers, customers, or supervisors who only speak English.
Must be all languages, or else discrimination
ii) Race and Color
(1) McDonald v. Sante Fe Trail Transportation Co.
(a) White employees charged with theft fired. Black employee not fired.
17
(i) Held:Title VII prohibits racial discrimination against the white
petitioners as they were treated differently than the black
employee.
(2) Walker – Light skinned employee gets job over black employee
(a) Held: Black employee may bring claim based on color.
iii) “Sex-Plus” Discrimination and Pregnancy
(1) Phillips v. Martin Marietta Corp.
(a) Question:
(i) Whether an employment policy that does not discriminate against
women, but on the basis of sex-plus some other - facially neutral
qualification – violates Title vii.
(2) Allen – Males lost job because of closing plant because of female
employees – they can bring claim.
(3) Willingham v. Macon Telegraph Publishing Co. - Immutability
(a) Facts
(i) P applied for employment with D but they didn’t hire because of
the length of his hair.
(ii) Long hair was against the grooming code.
(b) Held:
(i) Grooming code does not discriminate on the basis of sex.
(ii) Sex discrimination analysis:
1. Has there been some form of discrimination i.e. different
treatment of similarly situated individuals
2. Was the discrimination based on sex
3. If there has been discrimination, was it based on BFOQ and
thus lawful.
(iii)Hair length is not immutable, and in the situation of employer
employee relationship enjoys no constitutional protection.
1. He can look for another job, or cut his hair.
(iv) Private employers are prohibited from using different hiring
policies for men and women only when the distinctions are
based on immutable characteristics.
(4) Notes:
(a) Clouter v. Costco – eyebrow piercing part of religion. Court said letter
her be exempt would be an undue burden upon employer. The
company had a legitimate interest in presenting a workforce to its
customers that was reasonably professional in appearance, particularly
with interaction with customers.
(b) Jesperson v. Harrahs – Undue Burden test – P must show that the
application of the standard imposes an undue burden on members of
one sex.
(c) Pregnancy – All pregnancy-based distinctions constitute
discrimination on the basis of sex. (2) pregnancy must be treated like
other temporary disabilities.
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iv) Sex-linked Factors
(1) City of LA v. Manhart
(a) Facts
(i) Want women to pay more into pension plan.
(b) Held:
(i) Court strikes down higher contribution rate for women employees.
(ii) In Gilbert, the court held that the exclusion of pregnancy from
employer’s disability benefit plan did not constitute sex
discrimination within the meaning of title vii.
1. Only females v. females and males.
(iii)Here, exclusively women.
(iv) An employment practice that requires people to pay more into a
fund than other employees simply because they are women is in
direct conflict with both the language and the policy of the Act.
(2) Arizona Governing Committee v. Norris
(a) Required employers to calculate benefits without regard to sex
derived from contributions collected after the effective date of the trial
court’s judgment. Benefits derived from contributions made prior to
that date could be calculated as provided buy the existing terms of the
Arizona plan. Monthly benefits were based on sex and women would
have to pay more to get the same benefit was men. (sex was only
factor used to determine longevity)
v) Private Sector Procedures pg 462
(1) Procedural issues –
(a) The statute sets up two charge filing periods.
(i) 180 days – if no state or local agency with same jurisdiction of
claims
(ii) 300 days – deferral jurisdictions
(iii)No need to get there in timely fashion. If it exists you can get the
benefit of the 300 day period.
(2) Mohasco Corp. v. Silver –
 Before a charge could be filed with EEOC, the state or local agency
had to be given 60 days of exclusive jurisdiction to process the case.
 The theory being that state level processing would be more
prompt and play into the desire in statute to resolve cases
through conference conciliation and persuasion.
 If you didn’t file by 240 days, 60 days might take you over
300 days and you wouldn’t timely file.
 EEOC is in work sharing agreements with all deferral
agencies that they will dismiss any charge where necessary to
preserve timeliness.
o The state agency will dismiss on day 299 if necessary
to ensure the charge isn’t untimely.
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(a) EEOC v. Commercial Office - Complainant who files discrimination
charge that is untimely under state law is nonetheless entitled to
extended 300–day federal filing period of Title VII. Civil Rights Act
of 1964, § 706(d), as amended, 42 U.S.C.A. § 2000e–5(e).
(b) Beckel – failure to file with eeoc not tolled because of employer
supervisor threats to employee received.
(c) International Union – No tolling of filing period through use of
grievance procedure in CBA.
(d) Cleveland newspaper v. Plain dealer publishing –D got summary
judgment where union did not sufficiently explain its 10 year delay in
filing suit.
(i) Witnesses unavailable, people forget things.
(3) Baldwin County Welcome Center v. Brown
(a) Facts
(i) P filed a complaint with EEOC alleging discrimination by D
(ii) EEOC issues right to sue letter stating suit must be filed in district
ct within 90 days.
(iii)D ct held that filing the right to sue letter to court did not qualify as
complaint because no factual basis.
(b) Held:
(i) No inadequate notice or misconduct. Filing does not Toll.
(ii) Shows: importance of claimant to obtain legal assistance
(iii)“Procedural requirements should not be disregarded by courts out
of vague sympathy for particular litigants”
(4) Notes:
(a) Reasons for equitable tolling:
(i) Filing with wrong state or federal agency (Husch)
(ii) Mistaken information from agency (Schlueter) (intake as charge)
(iii)Defendant misconduct
1. Concealment, intimidation, misrepresentation. (Beckel above)
(b) Mailbox rule: Proof that a letter was mailed creates presumption it was
received.
j) Procedural Requirements continued
i) The Date of Discrimination: When does period for filing charge begin?
(1) Delaware State College v. Ricks
(a) Facts:
(i) Did P timely complain of discrimination?
(ii) P wants continuing violation because he was denied tenure and
then terminated at end of on year contract
(b) Held:
(i) Doesn’t make sense - Firing was inevitable after denial of tenure
(ii) Called a one year “terminal contract” His dismissal was no
different than anyone else.
(iii)Limitations period began when tenure decision was announced.
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(iv) “Mere continuity of employment without more is insufficient to
prolong the life of a cause of action for employment
discrimination”
(2) Notes:
(a) Chardon – unlawful employment practice occurs when the decision to
terminate is communicated to the employee, not the date when the
actual termination occurs.
(b) Thomas – Limitations period begins when the implications of poor
reviews crystallized into tangible effects.
(i) Or when employee learns of discriminatory acts.
(3) United Airlines v. Evans - § 703(h)
(a) Facts
(i) Evans brought her claim when she is hired back and was not given
her seniority. No retroactive seniority for her even though she was
clearly discriminated against (fired for being married)
(ii) If she had filed a charge when she was terminated, she would have
prevailed.
(iii) Continuing effects of past discrimination do not constitution
current violations.
(4) Bazemore – Each weeks paycheck in the discriminatory pay scheme is
actionable
(5) Ledbetter –discriminatory pay decisions occurred outside the EEOC filing
period.
(a) Subsequent paychecks carry forward?
(i) No, a new violation does not occur and new charging period
commence, upon the occurrence of effects of past discrimination
(b) Ledbetter act – Congress rejected interpretation – UEP occurs with
respect to compensation when decision was made, and each time
wages benefits or compensation has been paid.
(i) Limits backpay to two years prior to date filed. (page 490)
(6) National Railroad Passenger Corp. v. Morgan
(a) Facts
(i) P filed suit alleging racially hostile work environment
(ii) Some events fell outside of the statutory time period.
(b) Held: Statute precludes recovery for discrete acts of discrimination or
retaliation that occur outside the statutory time period.
(c) Discrete acts such as termination, failure to promote, denial or transfer,
or refusal to hire are easy to identify. P can only file a charge to cover
discrete acts that occurred within the time period. (can be used as
background)
(d) In the context of hostile environment claims, the continuing violation
doctrine enables the plaintiff to establish liability and obtain relief for
discriminatory acts that occurred outside of EEOC period.
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(e) Charge is timely so long as one incident of harassment occurred
within the filing period. (consequence of succession of acts)
k) Americans with Disabilities Act (pg. 916-925)
i) Employer with 15 or more employees
ii) ADA prohibits covered entities from – (discrimination first, eligibility second)
(1) Discriminating against
(a) Reasonable accommodations
(b) That don’t impose undue hardship on employer.
(2) Disabled individual
(a) Has had, has, or is regarded as having (records)
(b) A physical or mental impairment
(c) That substantially limits (construed broadly) (as compared to most
people) (not including mitigating measures like medication,
prosthetics, therapy, accommodations.
(d) A major life activity.
(3) Otherwise qualified (Pre-dispute job descriptions)
(a) Can perform the essential job functions.
(b) With or without the assistance of reasonable accommodation
(c) And does not pose a direct threat to the heath and safety of other in the
workplace.
(4) Because of the disability.
iii) Major life Activity:
(1) functions such as caring for one’s self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working, Thinking,
communicating, interacting with others, reaching
ADAAA – heightened regarded as
Passed in 2008 in response to several Supreme Court decisions that limited ADA
coverage by narrowly interpreting “substantially limits” & “major life activities”
Resulted in excluding many individuals from ADA coverage Congress: Enacted ADAAA
to overturn Court’s decisions and require ADA to be broadly construed in favor of
coverage
2011: EEOC issues final regulations implementing ADAAA effective May 24, 2011
•
New category of MLAs: “Major bodily functions”
- Includes:
- Immune system
- Skin, musculoskeletal
- Normal cell growth
- Digestive
- Respiratory
- Circulatory
- Genitourinary
- Bladder
- Bowel
- Neurological
- Brain
- Cardiovascular
- Endocrine
- Hemic
- Lymphatic
- Reproductive
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- The operation of an individual organ within a body system (e.g., the operation
of a kidney, liver, or pancreas)
4. Disability determination requires “individualized assessment,” though
certain impairments “in virtually all cases” will be covered disabilities and,
thus, as EEOC states, are really “predictable assessments”
EEOC’s list of impairments that are, in effect,
“per se” disabilities: 29 C.F.R. § 1630.2 (j)(3)(iii)
- Deafness
- Blindness
- Intellectual disability
- Missing limbs
- Mobility impairments
- Autism
requiring
use of wheelchair
- Cancer
- Cerebral palsy
- Diabetes
- Multiple sclerosis
- HIV infection
- Muscular dystrophy
- Epilepsy
- Major depressive disorder
- Bipolar disorder
- Post-traumatic stress disorder
- Schizophrenia
- Obsessive-compulsive disorder
Episodic impairments meet the definition if it would substantially limit a MLA when
arrive.
Possible Reasonable Accommodations:
– Readily accessible facilities
– Job restructuring
– Altering when or how an
essential function is performed
– Modifying examinations, training material or policies
– Modifying work schedules
– Reassignment to vacant position
– Providing or modifying equipment or devices
– Providing readers or ASL interpreters
– Providing paid or unpaid leave for treatment
– Reserving closest parking for mobility impaired
– The term “substantially limits” should be “construed broadly in favor of
expansive coverage to the maximum extent permitted by ADA”
– The primary focus is on whether discrimination occurred
– The determination of disability:
– Should not require extensive analysis
– Should generally be easily resolved to find coverage
iv) The Meaning of Disability
(1) Bragdon v. Abbot
(a) Facts
(i) Applying ADA HIV positive individuals
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(ii) Whether HIV is a disability
(iii)Statute defines disability as a physical or mental impairment that
substantially limits a major life activity.
(b) Held:
(i) HIV is a Major life activity
1. Functions such as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working, Thinking, communicating, interacting with
others, reaching
a. Nothing says must be public, economic, or daily
(ii) Substantially limited – health risk of becoming infected
(2) Notes:
(a) Elements:
(i) Physical or Mental Impairment Covers
1. Any physiological disorder, or condition cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems:
a. Neurological, musculoskeletal, special sense organs,
respiratory (including speech), cardiovascular,
reproductive, digestive etc… 29 CFR 1630
b. Circulatory and immune added by adaaa eeoc regs
c. Homosexuality and the like excluded.
2. Successfully completed or is presently in a supervised drug
rehab program. (And not currently using, or erroneously
thought to be)
(b) Qualified Individual
(i) Castellano v. City of New York - retired person gets injured and no
longer able to perform essential functions. They still get benefits
because they're based on work served not current ability.
(ii) Direct threat - It’s an affirmative defense. P need not show in
prima facie case.
(iii)Chevron – Supreme Court held that EEOC regulation was
reasonable interpretation of the statute and thus the ‘direct threat’
defense encompasses a direct threat to the health or safety of the
individual or others in the workplace.
1. Extending the defense to harm to self would constitute the type
of paternalistic attitude towards disabled individuals that the
statute was designed to preclude.
(iv) Doe v. University of Maryland
1. Since the HIV resident surgeon could possibly transmit HIV in
all exposure-prone procedures, the risk or transmission during
performance was enough such that the hospital’s decision to
terminate him did not violate title vii.
(v) Sista v. CDC – P threatened co-workers and was fired. He was
deemed a threat and if not even a nondiscriminatory explanation
for the decision.
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(3) The Antidiscrimination Mandate
(a) Section 104(b) prohibits discrimination against any individual because
of that person’s relationship to or associate with someone with a
known disability.
(i) Expense claims – employer alleged to discriminate based on
association with a disabled person imposing significant costs
(health or disability plan)
(ii) Distraction claims – employer discriminated b/c employee would
be distracted from work
(iii)Disability by association – employer discriminated because of
concern employee would get disability (e.g. hiv)
(iv) Dewitt – p alleged she was fired because wanted to relieve itself of
her health insurance plan.
1. Family members disability do not entitle employee to
accommodation. (Erdman – no accommodation to deal with
relatives disability.)
l) Class Actions
i) Introduction
(1) Perquisites to Class Action – adequacy, commonality, typicality, ad
adequacy of representation – limit class to those fair encompassed by P’s
claims.
(a) One member may represent the class if: (RULE 23 FRCP)
(i) The class is so numerous that joinder of all parties is impracticable
1. Probably around 30
2. Adequacy of Counsel – someone knowledgeable enough and
experienced enough that they are in a position to represent hose
named and unnamed
(ii) There are questions of law or fact common to the class
(iii)The claims of defenses of the representative parties are typical of
the claims or defenses of the class
(iv) The representative parties will fairly and adequately protect the
interests of the class.
(b) Class actions maintainable if:
(i) There is a risk of inconsistent judgments creating incompatible
standards for D
(ii) Adjudications with respect to one would be dispositive of others
(iii)D has refused to act on grounds applicable to the class, making
final relief appropriate
(iv) Or: questions of law or fact predominate over question affecting
individual members.
1. (A) the class members’ interests in individually controlling the
prosecution or defense of separate actions; (B) the extent and
nature of any litigation concerning the controversy already
begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in
25
the particular forum; and (D) the likely difficulties in managing
a class action.
(2) The Scope of the Class and the Proper Class Representative
(a) General Telephone Co. of Southwest v. Falcon
(i) Question presented:
1. Whether Falcon was properly permitted to maintain a class
action on behalf of Mexican-American applicants not hired
(ii) Held:
1. Must be a nexus between P and class hoping to represent
2. He was hired. They were not.
3. Commonality in the adverse action - is there really a common
question that can have a common answer to establish that the
class device really is an appropriate method for litigating the
case.
(iii)Notes:
1. Most of these cases – if they proceed – will need to show:
a. Identifiable practice
b. Causes discriminatory result
c. Most likely will have to be shown through stat evidence
(can be anecdotal but driving force is stat evidence that will
be presented in support of the particular claim)
2. Footnote 15 used to certify or uphold certification:
a. Caridid – P alleged that company gave supervisors
substantial discretionary decisions on discipline and
promotion used to racially discriminate.
i. Where the decision-making process is difficult to
review because of the role of subjective assessment,
significant statistical disparities are relevant to whether
the challenged practice has a class wide impact.
ii. P’s stats may be weak, but that ‘statistical dueling’ and
weighing of the evidence is inappropriate at the class
certification stage.
b. Decertify because of adequacy of counsel – the d ct should
decertify is the attorney proves unable to properly protect
class (ineffective discovery of counsel in conducting
discovery and responding to motion for summary judgment
warrants class decertification (Colby v. jc penny) Can be
done even after trial on merits in order to preserve class
preclusive effects
3. Walmart v. Dukes
a. 1.5 million female walmart employees allege
discrimination in pay and promotion decisions seeking
backpay, punitive damages, and injunctive/declaratory
relief.
b. Court stated that commonality is more than a pleading
requirement, trial court must determine whether P’s had
26
proves that all members involved a common contention that
would resolve an issue to validity of all claims.
c. The decentralized decision-making proved there was no
commonality. No common method either.
4. EEOC – Class actions – General Telephone – EEOC may seek
class wide relief without complying with 23 a and b.
m) 42 U.S.C. § 1981
i) 1981 prohibits discriminatory employment practice in recruitment, hiring,
compensation, assignment, promotion, layoff, and discharge of employees.
(1) If blow title 7 timeliness, can still have 1981 claim.
ii) Broader than title vii - Extends protections to millions of small business
workers that title vii does not
iii) Patterson – Court said that 1981 only applies to right to MAKE or enforce a
contract.
(1) P alleged she was a victim of racial harassment involved post formation.
(a) Court said not cognizable under 1981
(b) Promotional claim was ok though, because it would constitute denial
of right to make a contract as a new partnership.
(c) Harassment and discharge do not invoke right to make contract,
iv) Civil Rights Act 1991 – changed to making, performance, modification, and
termination of contract.
v) CBOCS WEST v, HUMPHRIES –
(1) Found that the 1991 Act was intended to extend the application of 1981 to
retaliation claims notwithstanding the absence of any express reference to
retaliation in the amended version.
(2) Declared that 1981 covered the claim of the instant plaintiff, who alleged
that he has been retaliated against for opposing racial discrimination of
others.
vi) At will contracts agreement is a contract under governing state law.
vii) Washington v. Davis –
(1) S. Ct. held P’s alleging violations of 14th amendment must prove
discriminatory intent as part of prima facie case.
(2) The language of 1981 tracked the language of the act of 1870, thus it
should be contrasted consistently with the provisions of the 14th
amendment.
(3) 1981 P must show discriminatory intent to establish prima facie case,
proof of disproportionate impact would not suffice.
(a) This reduced 1981’s attractiveness to P’s.
n) Equal Pay Act pg. 816
i) Passed in 1963 as an amendment to the FLSA. Subject to four exceptions,
employers are prohibited from paying an employee of one sex less than an
employee of another sex for equal work on jobs the performance of which
requires:
(1) Equal skill
(2) Effort
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(3) Responsibility
(4) Under similar working conditions.
(a) Cannot be complied with through reduction of higher paid employee
salary.
ii) Employee test to fall within FLSA jurisdiction:
(1) Is she engaged in commerce? Or engaged in the production of goods for
commerce?
(a) If so, covered by FLSA.
(i) Under this, some employees of a certain employee would be
covered and some wouldn’t.
iii) Enterprise test:
(1) All employees are covered regardless of individual responsibilities if the
enterprise is:
(a) Engaged in interstate commerce or in the production of goods for
interstate commerce
(b) Has 2 or more employees so engaged
(c) (except for a few industries) makes at least $325,000 annual gross
income.
iv) Affirmative defenses:
(1) Legit business need
(2) Seniority system
(3) Merit system
(a) Someone who makes 20 widgets v. 15 widgets – more for 20duh.
o) Employer’s responsibility to establish (bear the burden of proving) that it is
pursuant to a bonafide employment system.
i) EEOC – no need to invoke proceedings, can file private action. EEOC can sue
on behalf but EPA doesn’t allow interventions. EEOC can seek injunctive
relief and backpay
ii) Most frequently litigated cases bought under the EPA
(1) The meaning of statutory equal work standard
(2) The scope of he statutory exceptions
(3) The relationship between EPA and Title vii
iii) Brennan v. Prince William Hospital Corp.
(1) Facts
(a) D ct found that while aides and orderlies do the same job, the
proportions of routine care tasks are not the same: aids do work which
orderlies are neither required not permitted to do, and mainly, orderlies
do work aides aren’t required or permitted to do. Therefore, not
substantially equal work.
(2) Held: D ct misapplied the concept of skill, effort, and responsibility.
(a) Higher pay is not related to ‘extra duties’ if:
(i) Some male employees receive higher pay without extra work
(ii) Female employees also perform extra duties of equal skill, effort,
and responsibility.
28
(b)
(c)
(d)
(e)
(iii)Qualified female employees are not given opportunity to do extra
work.
(iv) The supposed extra duties do not in fact exist
(v) The extra task consumes minimal amount of time and is of
peripheral importance.
(vi) Third persons who do the extra task as their primary job are paid
less than the male employees in question.
Are hiring criteria for two positions equal? Yes
Are principal duties the same? Yes
Just because there may be disproportionate frequency in performance
of routine tasks does not make the jobs unequal – no difference in
skill, responsibility or effort.
Like any other duty [catheterization] must be evaluated as part of the
entire job. Infrequent performance of duties like catheterization,
without other extra skills and responsibilities not shared by females,
has never been held to support a pay differential between [aides] and
[orderlies].
iv) Notes:
(1) Monthly uniform cleaning allowance – Supplement to male salary.
(Laffey) – Lodging - those benefits were provided primarily for benefit of
employees and, thus, did constitute part of their “wages” for purposes of
the Act and, therefore, level provided to male pursers could not be
downgraded to equalize treatment of male pursers and female cabin
attendants.
(2) Pay requirements do not cut at the heart of the church’s beliefs.
(shenendoah Baptist)
v) Kouba v. Allstate Insurance Co.
(1) Facts
(a) What is scope of “factor other than sex”
(2) Words:
(a) The Equal Pay Act prohibits differential payments between male and
female employees doing equal work except where they are made
pursuant to three specific compensation systems of “any factor other
than sex” – affirmative defenses must be plead and proved.
(b) Employer must show that it was based on a factor other than sex
(i) A acceptable business reason!
(c) Held:
(i) EPA doesn’t impose a strict prohibition against the use of prior
salary
1. Relevant considerations:
a. Whether the employer also uses other available predictors
of the new employees performance
b. Whether the employer attributes less significance to prior
salary once the employee has proven himself or herself on
the job.
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vi) Notes:
(1) Separate departments for men and women where men make more
(Hodgson v. Robert Hall Clothes) Here there was a specific finding by the
district court, unchallenged by the Secretary, that the women could not
perform the work done by the men.
(2) Employer may not avail itself of the affirmative defense under §
206(d)(1)(iv) (merit, seniority, system of compensation) where it
compensates male and female employees solely for selling the exact same
product, only female employees can be compensated at a lower
commission rate, and the differential is not justified by any difference in
economic benefit to the employer. Under the facts of this case, this result
is necessary to effectuate the broad remedial purpose of the Equal Pay
Act. (Bence)
(3) Marketplace can be taken into hiring consideration - employer could
consider marketplace value of skills of employees in determining salary
(Horner)
(4) Corning Class Works - Time of day not enough for different working
conditions defense.
(5) State hours laws not enough - Legal restrictions under state law limiting
the number of hours women can work are not sufficient to render
otherwise equal work unequal within meaning of equal pay for equal work
provision of Fair Labor Standards Act and are not a justification for an
otherwise prohibited differential in wage rates. (wirtz v. rainbow)
p) Age Discrimination – NO BUSINESS NECESSITY RFOA REPLACES
i) Employers, labor organizations, and employment agencies
ii) 40 Years or Older.
iii) To establish a prima facie case, an employee must show that:
(1) he was within the protected class (forty or over);
(2) he was performing his job to the employer's legitimate expectations;
(3) he was discharged (or some other action that rises to the level of an
adverse employment action); and
(4) the employer replaced him with someone substantially younger; or treated
someone more favorably who is substantially younger;
iv) Substantive Provisions
(1) General Dynamics Land Systems v. Cline (The meaning of age)
(a) Facts
(i) Taking away obligation to pay health benefits violated ADEA
because it discriminated against them with respect to terms,
conditions, or privileges of employment because of age.
(ii) Does ADEA protect younger employer against the older?
1. “if congress had been worried about protecting younger against
older would’ve ignored under 40.” The enemy of 40 is 30, not
50.
(iii)EEOC later revised to let ADA permit employers to favor older
over younger even if within statutorily protected class.
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v) Notes:
(1) Kentucky Retirement v. EEOC – Retirement funds are given to disabled
workers based on number of years would’ve had to have to retire.
(a) P worked after 55 and became disabled and retired. He only got years
served, not that plus what ever would take to reach retirement – 20 yrs.
(i) Court rejected 5-4 – P had to offer evidence proving that his age
“actually motivated” the employers decision.
(ii) The retirement plan isn’t age based P must offer evidence that they
wants to discriminate against older workers in favor of younger
workers.
(iii)Here, the retirement scheme was based on disability. Age was a
factor but passed on pension status.
(2) What if employers use of physical endurance entrance exam excluded
most candidates over the age of fifty
(a) Hazen Paper v. Biggins
(i) Serious questions as to disparate impact theory in ADEA cases.
(3) Reasonable Factor other than age Disparate Impact claim? – ADEA D’s
defending disparate impact claims can avoid liability pursuant to the
‘reasonable factor other than age” clause (4f1) – affirmative defense to
impact claim. – Seems D only need bring forward a non-age factor.
(i) Meacham v. Knolls Atomic Power Lab -Reasonable Factor other
than Age (RFOA) is an affirmative defense to impact claims under
which D bears the burden of persuasion.
1. Reasoning:
a. Text and placement next to BFOQ in ADEA underscored
understanding that it was to be construed as an affirmative
defense as to which the proponent bore the burden of
persuasion – replaces business necessity.
vi) Mixed Motive
(1) Gross v. FBL Financial Services
(a) Issue:
(i) Whether P must present direct evidence of age discrimination in
order to obtain a mixed motives jury instruction under ADEA
claim.
(b) Facts:
(i) Many of his job responsibilities given to Lisa, who he supervised
(early 40s). Same compensation the same, but responsibilities lost.
(ii) Company said it was because reassignment was part of a corporate
restructuring and the new position was better suited to his skills.
(iii)Told jury that if it was a motivating factor must find for P, but if
by preponderance, he would’ve been fired regardless, for D.
1. COA reversed saysing that burden shifts only upon
presentation of direct evidence to convince trier of fact that it is
more likely than not that the decision would have been same
absent age.
(c) Held:
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(i) The burden never shifts to D
(ii) ADEA not governed by Price and Desert Palace (congress didn’t
amend ADEA when it amended title vii)
(iii)P must prove by preponderance of the evidence that age was
the But-for cause of the challenged employment action.
vii) Same actor principle –
(i) P hired when 53, then terminated at 56. IF same individuals were
responsible for decision to hire, and then similarly responsible for
termination decision, the courts usually state that it didn’t make a
difference when hired (age, race etc)
1. Why would it become a factor now?
i. Many courts draw inference that if same actor is
responsible for positive and negative, not a factor.
q) Attorneys Fees
(1) The Prevailing Party
(a) Hensley v. Eckerhart
(i) Facts
1. Title 42 u.s.c. 1988 provides that in federal civil rights actions,
the court may allow the prevailing party attorneys fees as part
of costs.
2. Filed request for attorney’s fees – attorneys claimed 2,985 hr
worked $40-65 per hour. $150,000
3. Petitioners opposed based on inter alia, hours spent on
unsuccessful claims.
(ii) Issue: May a partially prevailing plaintiff recover attorneys fee or
legal services on unsuccessful claim?
(iii)Held:
1. Given staturory allowance, P should normally recover
attorneys fees, but must be determined on the facts of each
case.
2. P must be prevailing party to recover attorney’s fees
a. P May be considered prevailing parties for attorneys fees if
they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bring
suit.
b. Must provide objective basis to estimate value of services,
if hours documentation is inadequate, court may reduce.
3. Questions:
a. Did P fail to prevail on claims that were unrelated to the
claims on which he succeeded?
b.
Did P achieve a level of success that makes hours
expended a satisfactory basis for making fee ward?
4. If P only prevails partially or limited success, he product of
hours may be excessive. Degree of success is very important
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5. Where the P has failed to prevail on a claim that is distinct in
all respects from in all respects from his successful claims, the
hours spent on the unsuccessful claim should be excluded in
considering the amount of reasonable fee.
6. Limited success attorney fee must be reasonable in relation to
results obtained. (701(K)
(b) Notes:
(i) Nothing but moral satisfaction not really prevailing
(ii) Watson v. City – Not always needed to be on the merits.
Preliminary injunction was not dissolved for lack of entitlement.
(iii)Nominal Wins: Farrar v. Hobby – Justice O’connor’s
concurrence stated that when P’s success is technical or de
minimus no fee can be awarded.
1. But not all nomimal awards are de minumus.
2. To determine whether nominal damage should be awarded
attorneys fees, must look at:
a. The significance of the legal issue on which the P claims to
have prevailed
b. The accomplishment of some public goal other than
occupying the time and energy of counsel, court and client.
(iv) Catalyst for change
1. Buckhannon Board and Care Home - Prevailing party only
means a party who changed legal relationship through judicial
order. – on merits or consent decree.
2. 2nd circuit – where district court retains jurisdiction of a case to
enforce private settlement, the requirements of Buckhannon are
satisfied and P is entitled to recover fees.
(v) Can still recover under state statute – catalyst
(vi) Mixed motive recovery – Split
1. 10th cir said even though no fees for plaintiff, attorneys fees
revered cut by 50% because recovery of damages is not a
proper factor upon which to assess the propriety of granting fee
award. P who prevails under 701(m) should get attorneys fees
in all but special circumstances.
2. Reasonable hours:
a. May be reduced because the case was straight forward
(Philpp) or because lack trial direction (Copeland) d ct has
considerable discretion
b. P can recover administrative proceedings fees if prereq to
federal action
c. Ordinarily, reasonable hours encompasses all the time spent
on a case including needed for retrial
3. Reasonable hourly rates: must establish prevailing rate for
attorneys in district where trial took place.
(2) Costs of litigation other than Attorney’s Fees
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(a) 706(k) provides for the ward of reasonable attorneys fees as part of the
costs of litigation
(i) Fees for Witnesses - $40 a day
(ii) Expert witnesses
(iii)Congress in ’91 allowed for expert fees to be shifted to losing party
as well.
(iv) Conflicts of interest in Settlement of Attorney’s fees claims.
1. Courts state that attorneys fees and merits should not be
negotiated at the same time
2. A silent agreement does not constitute waiver.
(3) Injunctive relief
(a) Section 1983 provides that a person who, acting under state law,
violates the constitutional or federal rights of others shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
(i) Actions of state official not imputed by 11th amendment.
(4) Attorneys fees and costs
(a) Section 1988 provides that in any action or proceeding to enforce a
provision of sections 81,2,3,5, the court may allow the prevailing party
attorneys fees. (Identical to 701(k))
(b) City of Riverside v. Rivera
(i) 245K in attorney’s fees – 33K in compensatory and punitive
damages.
1. Rule of proportionality would make it difficult if not
impossible for individuals with meritorious civil rights claims
but relatively small potential damages to obtain redress from
the courts. This is inconsistent with congress’ purpose in
enacting 1988.
2. Congress recognized that private-sector see arrangements were
inadequate to ensure sufficiently vigorous enforcement of civil
rights.
3. In order to ensure that lawyers would be willing to represent
persons with legit civil rights grievances, Congress determined
it would be necessary to compensate lawyers for all time
reasonably expended on a case.
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