Morgan Stephens
EMPLOYMENT DISCRIMINATION OUTLINE
FALL 2010
BERRY
§ 1 - Overview
§ 2 - Individual Disparate Treatment
§ 3 - Systemic Disparate Treatment
§ 4 - Disparate Impact
§ 5 - Ricci v. DeStefano
§ 6 - Sex Discrimination
§ 7 - Other Grounds for Discrimination
§ 8 - Affirmative Action
§ 9 - Statute of Limitations
§ 10 - Remedies
§ 11 - 42 U.S.C. §§ 1981 & 1983
§ 12 - Age Discrimination in Employment Act
§ 13 - Americans With Disabilities Act
§ 1 - Overview
1. Perspectives of Equality
a. Historical Perspective (Colorblindness)
i. Decision not to consider certain categories such as race, gender, national
origin – i.e., neutral or “blind” as to these issues
ii. Past discrimination has been addressed by Title VII, etc.
iii. Race, color, religion, sex, or national origin are irrelevant
iv. Use of such categories is prohibited
v. Negative conception of equality by prohibiting discriminatory conduct
b. Economic Perspective (Equality as Merit)
i. Based on choosing to consider certain categories of “merit” . . . fair because
treated equal as to same proper criteria
ii. Careers open to the best talent – right to compete
iii. Positive conception of equality – what the employer can consider
iv. Basis for “management discrimination” as a defense to employment
discrimination
c. Remedial Perspective (Equality of Opportunity)
i. Consideration other circumstances, such that everyone has an equal
opportunity
1. Circumstances can include past discrimination, prior denial of
opportunity, etc.
ii. Looks backward to identify all of the effects of past discrimination then
looks forward to determine whether these effects persist despite the abolition
of past discrimination practices
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iii. Asks whether present practices, even if not repeating the past, continue to
perpetuate their unjust effects
iv. Basis for affirmative action and disparate impact; goes beyond equal
competition and has been extended to situations where no past discrimination
has occurred
2. Title VII
a. Initial Requirements
i. Plaintiff must timely file a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC)
ii. After the EEOC ceases its investigation or it releases a right-to-sue letter, a
court suit must be timely filed
1. Non-deferral states = 180 days from unlawful employment practice
2. Deferral states
b. Employer Practices – § 703(a)(1)
i. It shall be an unlawful employment practice for any employer:
1. To fail or to refuse to hire or discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin; or
2. To limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.
c. § 703(m) - Impermissible consideration of race, color, religion, sex, or national
origin in employment practices
i. Except as otherwise provided in this subchapter, an unlawful employment
practice is established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the
practice.
3. Individual Disparate Treatment
a. Single Motive - § 703(a) - “because of”
i. Direct Evidence/Smoking gun (Slack)
1. Plaintiff may offer direct evidence, such as that the defendant
admitted that it was motivated by discriminatory intent or that it acted
pursuant to a policy that is discriminatory on its face
2. In most cases, direct evidence of discrimination is not available, given
that most employers do not openly admit that they discriminate
ii. Circumstantial Evidence/No Smoking Gun (McDonnell Douglas)
1. Prima Facie Case
a. Must make a showing of intentional discrimination because of
race, gender, national origin, etc. (creates an inference of
discrimination)
i. Belongs to racial minority
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ii. Applied and was qualified for a job for which the
employer was seeking applicants
iii. Despite his qualifications, he was rejected
iv. After his rejection, the position remained open and the
employer continued to seek applicants from persons of
complainant’s qualifications
b. Flexible rule and largely presumed
c. Raises an inference of discrimination
2. Defense
a. Must articulate some legitimate, non-discriminatory reason for
plaintiff’s rejection
b. Shifts Burden of Production to employer to present evidence
from which a reasonable inference can be drawn that the
plaintiff was rejected for a legitimate, nondiscriminatory
reason
c. Once employer’s burden of production is met, the entire
burden of proof shifts back to the plaintiff
3. Rebuttal (Pretext)
a. Plaintiff must produce evidence from which a reasonable
inference can be drawn that the defendant’s offered reason
was not the real reason for his rejection, but that
discrimination was
b. Plaintiff must then also persuade the fact finder to draw that
inference by a preponderance of the evidence
c. Proof that defendant is lying does not entitle plaintiff to
summary judgment (St. Mary’s)
d. If lying is only proof, defendant not entitled to summary
judgment (Reeves)
b. Mixed Motive - § 703(m)
i. What happens?
1. If the fact finder believes the employer’s articulated
nondiscriminatory reason for its action, yet also believes that the
plaintiff has shown that an impermissible factor motivated the
employer’s decision then a mixed motive case exists and § 703
applies
ii. Direct or Circumstantial Evidence
1. Intentional discrimination against member of a protected group
2. Was a motivating factor in
3. An adverse employment
iii. If a prohibited factor was one of the factors consider then…
1. An unlawful employment practice has been established and employer
is liable
2. Defendant can limit plaintiff’s remedy to declaratory/injunctive relief
(& attorney’s fees) by showing that the action would have been taken
in the absence of the impermissible motivating factor
c. After Acquired Evidence
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i. Where after acquired evidence provides the employer a legitimate reason for
adverse action against the employee, the employee can still recover back pay,
but may not be reinstated or receive front pay (McKennon)
4. Systemic Disparate Treatment
a. Plaintiff must show EITHER:
i. Formal, announced policy of discrimination
1. Is there a formal policy of discrimination like in Manhart where
women paid more in pension because they lived longer? OR
ii. Pattern of employment decisions reveals a practice of disparate treatment
1. Prima facie case which leads to an inference of discrimination
a. Must prove that discrimination was the employer’s standard
operating procedure--the regular rather than the usual practice
(Teamsters)
b. Often, statistics are used to establish the inference that illegal
motivation has caused a pattern or practice of employment
discrimination (Teamsters)
c. The proper statistical comparison for showing a discrepancy
between hiring or workforce composition is to compare the
composition of the job at issue with the composition of the
qualified relevant labor market (Hazelwood)
i. Depends on facts, but consider proper geographic area,
time period, and job-related qualifications
b. Defenses
i. Rebutting the inference of discriminatory intent by presenting evidence to
counter plaintiff’s evidence (Feeney)
1. ONLY available in cases where pattern or practice of discrimination
is alleged
ii. Bona Fide Occupational Qualification - § 703(e)
1. It shall not be an unlawful employment practice for an employer to
base its hiring and employment decisions on religion, sex, or
national origin, in circumstances where those “qualifications are
reasonably necessary to the normal operation of that particular
business or enterprise.” NOT FOR RACE OR COLOR
2. Very narrow defense
a. Must relate to the essence or central mission of the employer’s
business (Johnson Controls)
3. Employer must prove that the excluded class cannot safely or
effectively carry out essential tasks (Johnson Controls)
4. Employer must also establish a basis for believing that all or nearly
all members of a class lack the requisite qualification for the position
5. Employer’s motivation behind the policy does not matter
5. Disparate Impact
a. Prima Facie Case
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i. Plaintiff has the burden of proof to show disparate impact on the basis of
race, color, religion, sex or national origin and the specific (neutral) employer
policy that caused them
1. Establishes prima facie case by using statistics
a. Must use relevant geographic and labor markets (Ward’s
Cove)
ii. Typically challenged facially neutral employment practices include
height/weight requirements, tests, and educational requirements
b. Defense
i. Defendant then has the burden of proof to show that the policy is “job related
for position in question and consistent with business necessity” OR that it
fits within the statutory exceptions: bona fide seniority or bona fide merit
systems
1. I.e. a manifest relationship
c. Rebuttal
i. Plaintiff then has burden to show that the defendant’s justification is
pretextual, because there are other ways to achieve the business purpose
without the discriminatory outcome
6. How Theories Relate
a. Individual and Systemic Disparate Treatment
i. Statistical evidence of systemic disparate treatment typically is not enough
(alone) to establish individual disparate treatment (Baylie v. FRB)
b. Systemic Disparate Treatment and Disparate Impact
i. Keep analysis separate, but systemic behavior can give rise to both type of
claims in a given case (EEOC v. Dial)
c. Individual Disparate Treatment and Disparate Impact
i. Ricci v. DeStefano
§ 2 - Individual Disparate Treatment
1. Proving Intentional Discrimination
a. Direct Evidence
i. Smoking Gun (Slack)
ii. Motivating factor (Price Waterhouse)
b. Circumstantial Evidence
i. McDonnell Douglas framework
ii. Motivating factor (Price Waterhouse)
2. Smoking Gun/Direct Evidence
a. Slack v. Havens (1975)
i. Facts
1. White employee made several discriminatory comments about blacks;
clearly prohibited discrimination case
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2. Four black women claimed that they were illegally discharged
because they refused to perform cleaning duties that were not within
their job description
a. “Colored people should stay in their places”
b. “Colored folks are hired to clear because they clean better”
3. Without the discriminatory statements it would be hard to prove that
he actually discriminated against the employees
ii. Standard applied:
1. Whether the employer was treating the plaintiffs differently because
of their race
iii. Take Away
1. Discriminatory words and actions are proof of discriminatory intent
and direct evidence can be used to show an intent to discriminate
under Title VII (Slack)
3. What if there is no “smoking gun” as in Slack?
a. Circumstantial evidence (McDonnell Douglas)
i. Infer from…
1. Unequal treatment
2. Defendant lying about reason (pretext)
ii. When you can’t show “because of” discrimination by direct evidence
b. Mixed motive problem (Price Waterhouse)
i. When you can’t show “because of” discrimination by single motive
4. Burden of Proof
a. Burden of Production
i. What plaintiff must show to survive motion for summary judgment or motion
for directed verdict
ii. Plaintiff must provide enough evidence to show that a reasonable jury could
infer that he/she established the cause of action
b. Burden of Persuasion
i. What a plaintiff must show to prevail at trial (jury or judge)
ii. Plaintiff must provide enough evidence to prove case by a preponderance of
the evidence
5. McDonnell Douglas Corp. v. Green (1973)
a. Facts
i. Cecil Green was laid off because a general reduction at McDonnell Douglas
ii. Green organized a stall-in and then wished to be re-hired by the company,
but McDonnell Douglas refused to do so
iii. Green sued for discrimination because he believed that they didn’t hire him
because of his participation in a civil rights protest
b. Take Away
i. In order to demonstrate individual discrimination under Title VII, plaintiff
must prove a prima facie case of discrimination; defendant can then rebut by
offering a legitimate justification for its actions; plaintiff can then still prevail
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by demonstrating that the proffered justification is pretextual (McDonnell
Douglas)
c. Broken Down
i. Prima Facie Case
1. Protected class under Title VII
2. Qualified for the job (very low standard)
3. Suffered some adverse employment action
4. After the rejection, the position remained open and the employer
continued to seek applicants from persons with similar qualifications
(irrelevant if the employee is discharged)
ii. Defense
1. Articular some legitimate, non-discriminatory reason for plaintiff’s
rejection
a. Shifts Burden of Production to employer to present evidence
from which a reasonable inference can be drawn that the
plaintiff was rejected for a legitimate, nondiscriminatory
reason
2. Doesn’t have to be true, just need to say something that on its face
sounds true – must be able to back up and defend though
iii. Rebuttal (Pretext)
1. Plaintiff must produce evidence from which a reasonable inference
can be drawn that the defendant’s offered reason was not the real
reason for his rejection, but that discrimination was
2. Plaintiff must then also persuade the fact finder to draw that inference
by a preponderance of the evidence
3. Once employer’s burden of production is met, the entire burden of
proof shifts back to the plaintiff
6. Furnco Construction Corp. v. Waters (1978)
a. Facts
i. None of the bricklayers were hired based on application, but the contractor
hired his employees through word of mouth or previous work together
b. Take Away
i. In order to justify an allegedly discriminatory employment practice, an
employer does not have to show that the employment practice in question
would allow it to hire the most number of a protected class (Furnco)
7. Texas Dept. of Comm. Affairs v. Burdine
a. All you have to do to satisfy the burden of production is to offer a legitimate, nondiscriminatory reason
b. Ultimate burden of persuasion remained with the plaintiff throughout the trial
c. Defendant's burden was merely an intermediate evidentiary burden requiring the
defendant to sustain only the burden of production, never the burden of persuasion
d. The defendant’s burden of production does not include any other requirement,
including a justification that defendant’s choice was more qualified
e. Confusing Language
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i. Burden of showing pretext “merges” with burden of persuasion
ii. May succeed either . . .
1. Directly (by showing that discriminatory reason motivated employer)
OR
2. Indirectly (by showing that employer’s proffered justification is not
worthy of credence – a lie)
iii. Seems to mean that all you have to show that their reason was a lie – and now
the plaintiff is entitled to summary judgment (Not in Scalia’s opinion in
Hicks)
8. St. Mary’s Honor Center v. Hicks (1993)
a. Facts
i. Melvin Hicks, a black man, was hired as a correctional officer at St. Mary's in
August 1978 and was promoted to shift commander, one of six supervisory
positions, in February 1980
ii. Eventually demoted and later fired - brought this suit
iii. Met the McDonnell Douglas formula and it creates a presumption that the
employer unlawfully discriminated against the employee but a case is never
settled this way
b. Take Away
i. Proof that defendant’s legitimate non-discriminatory justification for its
adverse employment action is false does not entitle plaintiff to directed
verdict / summary judgment (Hicks)
9. Reeves v. Sanderson Plumbing Products, Inc. (2000)
a. The absence of proof other than plaintiff’s prima facie case that defendant’s
proffered . . .
b. Whether a defendant is entitled to judgment as a matter of law when the plaintiff’s
case consists exclusively of a prima facie case of discrimination and sufficient
evidence for the trier of fact to disbelieve the defendant’s legitimate,
nondiscriminatory explanation for its action (Reeves)
10. Price Waterhouse v. Hopkins (1989) - MIXED MOTIVE
a. Facts
i. Hopkins was a senior manager in an office of Price Waterhouse accounting
and she was proposed for partnership
ii. Her partnership was held over for the next year because some mixed reviews
of her performance that basically boiled down to two things
1. Her interactions with her subordinates
2. Her being a woman (sex stereotypes)
iii. The next year, she was denied partnership
iv. Price Waterhouse didn’t do anything to the people who made the
discriminatory comments
b. Notes
i. She can show that gender was A factor in the decision to deny her partnership,
but she can’t show that it was THE decision
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ii. Court says that “but-for” causation is a hypothetical construct (made up)
1. The Courts wants us to ask – if absent the discrimination would
Hopkins have been denied partnership anyway?
2. Was gender a factor in the employment decision at the moment it was
made? – Because of doesn’t mean solely because of
iii. When an employer considers gender and legitimate factors at the same time,
then that decision was “because of” sex
iv. However, the employer may still be able to prove by a preponderance of the
evidence that it would have come to the same decision regarding a particular
person even if they considered race, gender, etc.
c. Take Away
i. Where gender (or some other prohibited category) plays a role in an adverse
work decision, defendant can prevail only by showing by a preponderance of
the evidence that, even without such improper consideration, the same
decision would have been made (Price Waterhouse)
d. Codified Price Waterhouse in Civil Rights Act of 1991
i. Plaintiff can establish an unlawful employment practice by showing that a
prohibited reason was a motivating factor for employment action
ii. Defendant can limit plaintiff’s remedy to declaratory/injunctive relief (&
attorney’s fees) by showing that the action would have been taken in the
absence of the impermissible motivating factor
1. Congress didn’t want you to use religion, gender, or race at all so they
include attorney’s fees
e. What does plaintiff have to show to shift the burden?
i. Plurality (Brennan + 3): unlawful motive = a “motivating part” of decision
ii. White: unlawful motive = a “substantial factor” in adverse employment
decision
iii. O’Connor: “substantial factor” shown by direct evidence
1. Lower courts use this because the standard is much higher – get rid of
cases by requiring direct evidence
11. Desert Palace v. Costa
i.
Issue
i.
Whether a plaintiff must present direct evidence of discrimination in order to
obtain a mixed motive instruction under Title VII
ii. Notes
i.
Comes down to jury instructions
ii. Plaintiff wants motivating factor instruction not “but-for”
iii. Take Away
i. Direct evidence is not required in a “mixed-motive” case; any evidence that
race/gender/etc. was a “motivating factor” for the employer’s decision meets
the plaintiff’s burden as to causation. Defendant can, of course, limit
plaintiff’s remedy to injunctive relief and attorney’s fees if it can show that
because of some other legitimate reason the outcome would probably be the
same (Desert Palace)
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12. McKennon v. Nashville Banner Publishing Co. (1995)
a. Facts
i.
McKennon was discharged from her job as part of a workforce reduction
necessitated by cost
ii. She thought it was because of her age
iii. Before she was fired, she made copies of some important documents but the
employer did not learn about it until after it fired her
iv.
Banner sent McKennon a second letter informing her of her discharge for
the second time after learning of these unwarranted copies
b. Notes
i.
Plaintiff can still win the case, but the remedy is now limited
2. No reinstatement and no front pay (time from when you’re fired and
when you get another job)
3. It would be inequitable if that happened
4. Back pay is determined from the time of being fired to the date the
new evidence was uncovered
c. Take Away
i.
Where after acquired evidence provides the employer a legitimate reason for
adverse action against the employee, the employee can still recover back
pay, but may not be reinstated or receive front pay (McKennon)
13. Rachid v. Jack in the Box (2004) - 9/8/10
a. Facts
i. Timecard case – fired because of age
ii. ADEA uses the same language as § 703(m)
b. Notes
i. Merged McDonnell Douglas and Price Waterhouse
ii. Richid approach – to get passed summary judgment
1. Prima facie case
2. Defendant
a. Legitimate justification
3. Plaintiff
a. Pretext (lying) OR
b. Mixed Motive (Defendant’s reason only one of the reasons)
th
iii. Only the 5 Circuit uses this approach
c. Take Away
i. In the 5th Circuit, the court applies a modified McDonnell Douglas approach
in which the question of burden of production can be met by plaintiff showing
pretext or motivating factor (Rachid)
14. Retaliation
a. § 704(a) and all of the other statutes
b. 2 Types of Claims
i.
Opposed employment practice
ii. Participated in an investigation
c. Elements
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i.
ii.
iii.
Plaintiff engaged in protected activity
Adverse employment action
Causal link
15. Burlington Northern v. White (2006)
a. Facts
i.
The only woman working in this place operating a forklift
ii. She received comments about her being a woman and was then replaced as a
forklift operator for a “more senior man.”
iii. Burlington did not question that the motivation for the acts was retaliatory,
but it questioned the statutory significance of the harm these acts caused
b. Take Away
i.
Retaliation claims are not limited to adverse employment actions, but must
be actions harmful such that they could dissuade reasonable worker from
making or supporting a charge of discrimination (White)
16. CBOCS v. Humphries (2008)
a. Facts
b. Notes
c. Take Away
i.
Retaliation claims are available under § 1981 (CBOCS)
17. Crawford v. Nashville (2009)
a. Facts
i. Vicky Crawford worked Metropolitan Government of Nashville and
Davidson County. In 2002, the department of human resources began an
investigation into Dr. Gene Hughes, the newly hired employee relations
director for the Metro School District. Several female employees had
expressed concern about being sexually harassed by Hughes
b. Notes
i.
Opposed any practice that § 703 makes unlawful
ii. Just because the employee hasn’t filed a complaint doesn’t mean that the
employee doesn’t oppose the proscribed behavior
c. Take Away
i.
Employee response to internal investigations can serve as a the basis for
anti-retaliation claims based on opposition or participation (Crawford)
§ 3 - Systemic Disparate Treatment (9/13/10)
1. Dept. of Water & Power v. Manhart (1978)
a. Facts
i. Women, as a class, paid more in pension than did the male employees and the
company reasoned that women live longer
ii. Therefore, the women took home 14.84% less pay
b. Notes
i. Not fair to the individual says the Court
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ii. You have to think of people as individuals even in a class based claim
c. Take Away
i. Systemic disparate treatment discrimination is measured in terms of its effect
on individuals, not on a class (Manhart)
2.
Teamsters v. United States (1977)
a. Facts
i. United States brought action against a company for discriminating against
Spanish-surnamed persons and African Americans
b. Notes
i. Disparate impact does not require that you show an intent to discriminate
ii. Evidence
1. Statistical Evidence
a. Numbers that show discrimination
2. Anecdotal Evidence
a. 40 specific instances of discrimination
iii. Statistics play an important role when discrimination is disputed, but statistics
may be rebutted
1. Their usefulness depends upon the surrounding facts
c. Take Away
i. Statistical evidence can be used to prove discriminatory intent (Teamsters)
3. Hazelwood Sch. Dist. v. United States (1977)
a. Facts
i. Teacher discrimination
b. Notes
c. Take Away
i. In order to demonstrate prima facie case of pattern and practice
discrimination, statistics must consider proper comparable hiring market
(Hazelwood)
4. Models of Statistical Proof
a. Simple Model (Teamsters)
i. Extreme disparities
ii. Inexorable zero
b. Complex Model (Hazelwood)
i. Presence / treatment of minority in relevant labor market
ii. How the same group treated by defendant employer
iii. A comparison between the (1) and (2) to determine whether discrimination
can be inferred
§ 4 - Disparate Impact (9/15/10)
1. Why do we have disparate impact?
a. Theory 1 - only to prevent hidden discrimination - allows liability where proof of
intent is too difficult to show [historical - colorblindness]
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i. Economic / Merit - objective criteria
b. Theory 2 - to discourage employment practices that disproportionately exclude
women and minorities [Remedial - equal opportunity]
i. Economic / Merit - subjective autonomy of employer
2. Griggs v. Duke Power Co. (1971)
a. Facts
i. Facially neutral standards
1. HS education
2. General intelligence test
ii. Impact
1. Racial disparity in performance
2. Serves to exclude African-Americans; including whites
iii. Past history
1. Jobs filled almost exclusively by white
2. Preferences given to whites in the past
b. Notes
i. How do we know if the test is okay? Disparate effects can be justified where
the test is related to . . .
1. Business necessity
2. Reasonable measure of job performance
ii. § 703(h) - tests are okay as long as its effect is not discriminatory
iii. Basic Proof Structure
1. Plaintiff has burden of proof to show disparate effects of neutral
employer policy
2. Defendant has the burden to respond with job related for the position
in question and consistent with business necessity
3. Plaintiff then has the burden to show that the defendant’s justification
is pretextual, because other alternatives exist
iv. Ambiguities in Griggs
1. Clearly establishes that we have disparate impact
2. But is it narrow or broad?
c. Take Away
i. Standardized testing requirement and high school graduation requirement
violated Title VII because it prevented a disproportionate number of AfricanAmerican employees from being hired by, and advancing to higher-paying
departments within, the company AND was NOT directed or intended to
measure an employee’s ability to learn or perform a particular job or category
of jobs within the company (Griggs)
3. Albemarle Paper Co. v. Moody (1975)
a. Facts
i. Company required all applicants for skilled line positions at the company to:
1. Possess a high school diploma
2. Pass Wonderlic and Beta tests
b. Notes
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i. Job relatedness must be viewed in the context of the plant’s operation and the
history of the testing program
c. Take Away
i. Title VII prohibits the use of employment tests unless they have a manifest
relationship to the employment in question (Albemarle Paper)
§ 5 - Ricci v. DeStefano (9/27/10 & 9/29/10)
1. Ricci v. DeStefano (2009)
a. Facts
i. A bunch of different versions depending on which justice was giving the facts
ii. Basically, white firefighters sued the city after the city threw out the test it felt
was unfair towards minorities
b. Analysis
i. Prima Facie case
1. Was this really because of race?
a. Kennedy - yes
i. The city thought that too many whites and not enough
minorities would be promoted if the test were kept
b. Ginsburg - no
ii. Huge departure, because
1. There was no adverse employment action
2. The tests were thrown out not to discriminate against whites, but
because they were unfair
3. Remedying Title VII disparate impact problems cannot count as
disparate treatment, otherwise disparate impact would have no
meaning
iii. City’s Defense
1. Does the city have a legitimate business justification for throwing out
the tests?
a. Plaintiff’s claim - no because potential of disparate impact
lawsuit is not a legitimate justification
b. Defendant’s (Hypothetical minority P’s)
i. City’s test, while neutral, had a disparate impact
ii. Test was not job related for the position in question and
consistent with business necessity
iii. There were other ways to test without the test
2. Rock and A Hard Place
a. Disparate Impact Claims
b. City Policy
c. Disparate Treatment Claims
iv. NEW STANDARD
1. Potential disparate impact is a legitimate business justification only
where “there is a strong basis in evidence of disparate impact
liability”
2. Comes from Equal Protection jurisprudence
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v. Here, the Majority says there is no support for the conclusion that respondents
had an objective, strong basis in evidence to find the tests inadequate, with
some consequent disparate impact liability in violation of Title VII
c. Notes
i. A far departure from the SC’s jurisprudence
ii. There was no adverse employment action
d. Take Away
i. Where an employer discard test results based on racial disparity, such action is
disparate treatment under Title VII, unless the employer can demonstrate a
strong basis in evidence that the test created a disparate impact (Ricci)
§ 6 - Sex Discrimination (10/4/10)
1. Equal Pay Act (1963)
a. Prohibits only discrimination on the basis of sex and only discrimination in pay
i. Does not extend to all the terms and conditions of employment, only pay
b. An employer can comply with the Equal Pay Act, but not Title VII simply by refusing
to employ women in any job in which they would perform equal work with men
c. Elements 29 U.S.C. § 206(d)(1)
i. Plaintiff has the burden of proof:
1. No discrimination in wages by sex where:
a. Equal work on
b. Jobs that require equal skill, effort, and responsibility
c. Performed under similar working conditions
ii. Defendant has burden of proof:
1. Except where such payment is made pursuant to:
a. Seniority system
b. Merit system
c. A system which measures earnings by quantity or quality of
production
d. A differential based on any other factor other than sex
2. Corning Glass Works v. Brennan (1974)
a. Facts
i. Corning paid a higher base wage to male night shift inspectors than it did to
female inspectors performing the same tasks on the day shift
ii. The male night employees’ higher wage was paid in addition to a separate
night shift differential paid to all employees for night work
iii. Everyone hired after 1969 got paid the same, but the red circle rate was given
to employees who worked before
b. Analysis
i. Corning didn’t carry its burden of proving that the higher rate paid for
inspection work was in fact intended to serve for night work, rather than
added payment based on sex
ii. The different rates arose simply because men would not work at the lower
rates paid to women inspectors
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iii. Corning tried to say that it was “working conditions” (part 3 of EPA) that was
the difference for the pay based on the time of day
1. However the court found that “working conditions” encompassed
“surroundings” and “hazards” not the time of day
c. Take Away
i. Defendant has the burden of proof to establish exceptions under the EPA, time
of shirt does not alone create different working conditions (Corning Glass)
3. Shultz v. Wheaton Glass Co. (1970)
a. Facts
i. Female selector-packers were paid 10% less than the male selector-packers
and snap up boys were paid 2 cents more than the female selector-packers
ii. Male selector packers help the snap up boys with their work (women weren’t
allowed to do the work of the snap of boys)
b. Analysis
i. While all male selector-packers receive the higher rate of pay, there is no
finding that all of them are available or actually perform snap up boys’ work
ii. The work does not have to be exactly equal, only substantially equal work
iii. Cannot create separate job classifications for work unless the jobs are
genuinely different
c. Take Away
i. The Equal Pay Act concept of “equal work” should be flexibly construed to
prevent disparities in pay by gender resulting from specious job classifications
(Shultz)
4. County of Washington v. Gunther (1981) - 10/6/10
a. Facts
i. Group of four female county prison guards sued the County of Washington for
unequal wages, alleging that their pay was less than that of male guards for no
reason other than sexual discrimination
b. Analysis
i. The Bennett Amendment allows employers to “differentiate upon the basis of
sex” in paying their employees “if such differentiation is authorized” by the
Equal Pay Act
1. It’s okay to discriminate based on sex as long as it’s okay under the
Equal Pay Act
ii. Bennett Amendment is interpreted as incorporating (i) to (iv) defenses of the
Equal Pay Act into Title VII
1. Defense (iv) - the catch all provision - is the only defense that doesn’t
already appear in Title VII
iii. Majority Opinion
1. Only defenses (i) to (iv) authorize an employer to allow difference in
pay
2. Exceptions for unequal work would allow explicit sex discrimination
in pay - clearly against the policy of Title VII
3. Legislative history indicates Bennett Amendment was technical only
16
4. RIGHT ON POLICY
iv. Dissent
1. Defenses (i) to (iv) are redundant with other provisions of Title VII
2. RIGHT ON THE NARROW TEXT
c. Take Away
i. Claims of sex-based wage discrimination under Title VII need not satisfy the
Equal Pay Act’s “equal work” requirement (Gunther)
5. AFSCME v. State of Washington (1985)
a. Facts
b. Analysis
c. Take Away
i. Evidence that an employer based its compensation scheme on the competitive
market is not sufficient to establish liability under disparate treatment or
disparate impact theories of Title VII (AFSCME)
6. Geduldig v. Aiello (1974) - 10/11/10
a. Facts
i. California had a disability insurance plan that did not cover pregnancy.
b. Analysis
c. Take Away
i. State disability insurance programs are social welfare legislation subject only
to constitutional review for a rational basis in serving a legitimate state
interest. Such programs that exclude pregnancy related disability does not
constitute invidious sex discrimination in violation of the Equal Protection
Clause (Geduldig)
d. Notes
i. Congress amends Title VII with Pregnancy Discrimination Act of 1976
1. Prohibits sex discrimination on the basis of pregnancy
2. § 701(k)
7. Newport News Shipbuilding & Dry Dock v. EEOC (1983)
a. Facts
i. Spouses didn’t get the same benefits
ii. Doesn’t comply with the statute
b. Analysis
i. Court looks at the purpose of the statute
c. Take Away
i. Failure to provide pregnancy benefits for spouse of employee violates that
employee’s Title VII rights (Newport News)
ii. “Because of” sex includes pregnant women
8. Dothard v. Rawlinson (1977)
a. Facts
i.
Alabama prison guard case
b. Analysis
17
i. Bona fide occupational qualification
1. Does not apply to race
2. Applies to age, sex
3. Test
a. Is qualification reasonably necessary to the normal operation of
the business
4. Examples
a. Prison guards
b. Therapeutic care
c. Physical privacy
c. Take Away
i. Being a male is an acceptable bona fide occupational requirement for contact
positions in all male maximum-security prison based on extreme level of
violence and potential for sexual assault (Dothard)
9. United Automobile Workers v. Johnson Controls (1991)
a. Facts
i. Any women who is able to get pregnant, then you’re excluded from working
with batteries containing lead
ii. The company requires some form of medical documentation
b. Analysis
c. Take Away
i. Bona fide occupational qualifications can be a defense to disparate treatment,
but must relate directly to the essence of the business that employer engages in
(Johnson Controls)
10. Meritor Savings Bank v. Vinson (1986) - 10/13/10
a. Notes
i. “Respondent argues that unwelcome sexual advances that create an offensive or
hostile working environment violate Title VII. Without question, when a
supervisor sexually harasses a subordinate because of the subordinate’s sex, that
supervisor ‘discriminates’ on the basis of sex. Petitioner apparently does not
challenge this proposition. It contends instead that in prohibiting discrimination
with respect to ‘compensation, terms, condition, or privileges’ of employment,
Congress was concerned with what petitioner describes as ‘tangible loss’ of ‘an
economic character,’ not ‘purely psychological aspects of the workplace
environment.’”
ii. “A plaintiff may establish a violation of Title VII by proving that discrimination
based on sex has created a hostile or abusive work environment.” In other
words, an economic quid pro quo, while actionable, is not required under Title
VII.
iii. “For sexual harassment to be actionable, it must be sufficiently severe or
pervasive ‘to alter the conditions of (the victim’s) employment and create an
abusive working environment.’”
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b. Take Away
i. Creation of a hostile or abusive work environment, even though there is no
adverse ‘economic’ action, is enough to establish a Title VII sex
discrimination claim. (Meritor)
11. Oncale v. Sundowner Offshore Services, Inc. (1998)
a. Notes
i. This case presents the question whether workplace harassment can violate Title
VII’s prohibition against ‘discrimination because of sex’ when the harasser and
the harassed employee are of the same sex.
ii. Look at the Funnel of Abstraction when applying the statute…how was it meant
to be interpreted?
iii. “Title VII’s prohibition of discrimination ‘because of sex’ protects men as well
as women. We see no justification in the statutory language or our precedents
for a categorical rule excluding same-sex harassment claims from the coverage
of Title VII. As some courts have observed, male-on-male sexual harassment in
the workplace was assuredly not the principle evil Congress was concerned with
when it enacted Title VII. But statutory prohibitions often go beyond the
principle evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principle concerns of our legislators by
which we are governed.”
b. Take Away
i. Title VII’s prohibition against gender discrimination applies to men and women
(Oncale)
12. Burlington Industries, Inc. v. Ellerth (1998)
a. Facts
b. Analysis
c. Take Away
i. Employers are vicariously liable for the actions of their supervisors in creating a
hostile work environment; where no tangible employment action takes place,
the employer may raise a defense of reasonable care or failure to report (Ellerth)
13. Jespersen v. Harrah’s Operating Company
a. Facts
b. Analysis
c. Take Away
i. Title VII does not prohibit “separate but equal” treatment of men and women’s
grooming and dress requirements, so long as one gender is not unduly burdened
(Jespersen)
§ 7 - Other Grounds for Discrimination (10/18/10)
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1. Espinoza v. Farah Manufacturing Co. (1973) – National Origin
a. Facts
b. Issue
i. Whether a company can deny employment to an alien and whether this
violates Title VII’s proscription against discriminating based on national
origin
c. Analysis
d. Take Away
i. Employer policy of hiring only citizens does not violate Title VII’s
prohibition against discrimination based on “national origin” (Espinoza)
2. Garcia v. Spun Steak Co. (1993) – English Only
a. Facts
i. Not allowed to speak Spanish at the work place
b. Issue
i. Whether an employer violates Title VII in requiring its bilingual workers to
speak only English while working on the job
c. Analysis
i. Need to show that the policy causes some adverse effects
d. Take Away
i. “English only” language rules do not per se case disparate effects in the
workplace (Spun Steak)
3. Trans World Airlines v. Hardison (1977) – Religion
a. Facts
i. Worldwide Church of God follower changes position within TWA and is now
forced to work on Saturday
ii. Brought suit under Title VII
b. Issue
c. Analysis
d. Take Away
i. While Title VII requires an employer to offer reasonable accommodation
based on religion an employer is not required to elevate such accommodation
above seniority or merit systems even though such a system may have
discriminatory consequences (Hardison)
4. United States v. Board of Education (1990)
a. Facts
i. Muslim teachers wanted to wear her religious garb to school
b. Take Away
i. Prohibition against religious dress in classroom doesn’t violate Title VII
because it cannot be accommodated without undue hardship (Board of
Education)
§ 8 - Affirmative Action (10/20/10)
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1. Affirmative Action
a. Constitutional standard
i. Public employers
ii. Public coercion of private employers (state action)
b. Statutory standard
i. Public and private employers
ii. Judicial enforcement
iii. Explicit statutory approval of affirmative action for Native Americans
2. Affirmative Action Standards
a. Constitutional Standards
i. Prohibited
1. Strict scrutiny (Adarand)
2. Intermediate Level – Morton v. Mancari (Important purpose)
3. Rational Basis
ii. Permitted
b. Statutory Standards
i. Prohibited
1. Egregious Discrimination – (Sheet Metal Workers)
2. BFOQ (not race)
3. Manifest Imbalance (Weber)
4. Legitimate non-discriminatory reason
ii. Permitted
3. Adarand Construction v. Pena
a. All racial classifications by government will be subject to strict scrutiny under the
Constitution and will thus survive only if they are narrowly tailored to serve a
compelling governmental interest
b. Mancari is the exception to this . . . Nation Americans have a more lenient standard
4. Morton v. Mancari (1974)
a. Facts
i. Indians have preference for employment/promotion with the Bureau of Indian
Affairs and non-Indian employees challenge this preference under Equal
Employment Opportunity Act of 1972 and Due Process Clause
ii. Indian Reorganization Act of 1934 provides preference to Indians
b. Statutory Question
i. Whether Indian preference under the IRA, sub silentio, was repealed by Title
VII and EEOA
ii. A – Court found that Congress did not intend to repeal the Indian preference
c. Constitutional Question
i. Whether the Due Process Clause of the 5th Amendment protects the nonIndians
ii. A – Indians are a quasi-sovereign tribal group and non-Indians in the Bureau
of Indian Affairs interferes with their ability to govern themselves
iii. Court applies a lower standard than strict scrutiny, Indians got more deference
21
d. Take Away
i. The Indian Reorganization Act of 1934, which gives special preference to
Indians for jobs in the Bureau of Indian Affairs, was not overturned by the
EEOA and is not unconstitutional (Morton)
5. Sheet Metal Workers’ Int’l Union v. EEOC (1986)
a. Facts
i. Union was found guilty of discriminating against blacks and Hispanics in
violation of Title VII. They refused to comply and the district court found
them guilty of contempt
b. Take Away
i. Judicially imposed race-conscious affirmative action, as a remedy for
persistent or egregious discrimination, or where necessary to dissipate the
lingering effects of pervasive discrimination, is not unconstitutional (Sheet
Metal Workers)
6. United Steelworkers v. Weber (1986)
a. Facts
i. CBA establishes preference for black workers in ‘craft’ positions. They
allocated 50% of positions to blacks, and there were almost zero black ‘craft’
employees
ii. Choice of preference = wholly voluntary and private effort to eliminate racial
imbalance
b. Notes
i. Wholly voluntary preferences do not violate 703(a)/(d): discrimination
“because of’ race or 703(j): employer cannot be required to implement
preferences”
ii. Because the racial classification was ‘designed to break down old patterns of
racial segregation and hierarchy’ AND it did not necessarily trammel the
interests of white employees
c. Take Away
i. Title VII does not forbid all private, voluntary, race-conscious affirmative
action plans (Weber)
7. Johnson v. Transportation Agency (1987)
a. Facts
i. TA uses gender as a factor in hiring in order to remedy their history of past
discrimination. They want to level the playing field
b. Issue
i. Is this discrimination to men because preference is given to women even
though they scored the same on the employment test and almost equal in all
other areas
c. Notes
22
i. The company’s decision to hire the woman pursuant to an affirmative action
plan that represents a moderate, flexible, case-by-case approach to get a fair
representation of minorities
ii. To see whether an affirmative action plan is okay…
1. Is there an manifest imbalance?
2. Is this a traditionally segregated job?
d. Take Away
i. Affirmative action plans generally do not violate Title VII particularly where
they serve to remedy past discrimination where there is a manifest imbalance
of gender or race in a traditionally segregated job (Johnson)
ii. THESE OUTCOMES ARE HEAVILY FACT DEPENDENT ON THE
CASES WE’RE TALKING ABOUT
§ 9 - Statute of Limitations (10/27/10)
1. United Air Lines, Inc. v. Evans (1977)
a. Facts
i. You can be a stewardess for United as long as you weren’t married; plaintiff
was fired when she got married; United changed the rule and Evans got her
job back several years later; the problem was she didn’t get seniority back
which entitled her to better benefits
b. Issue
i. Where the statute of limitations was triggered? United argued that it was in
1968 when they fired her for being married; Evans argued that she was
discriminated against in 1972 when she was denied benefits
c. Notes
i. The Court found that Delta did not have to give her back her seniority because
there was no violation of Title VII
ii. You must first exhaust the state process, then you go to the EEOC - they’ll
give you a right to sue letter if they choose not to represent you
d. Take Away
i. If a worker who is forced to resign because a discriminatory policy does not
file a charge within the statutorily specified time period, any claim for
discrimination is lost, even if it has a continuing effect by lessening the
current seniority of the worker when later rehired (Evans)
2. Ledbetter v. Goodyear Tire & Rubber Co. (2007)
a. Facts
i. Worked at Goodyear and when she was about to retire, she noticed that the
men were making more than her; she won at trial, but on appeal the Goodyear
lawyers raised the question of statute of limitations
b. Issue
i. What activity qualifies as an unlawful employment practice in cases of
discrimination with respect to compensation.
c. Take Away
23
i. Plaintiff cannot recover for pay discrimination that is the result of
intentionally discriminatory pay decisions that were made outside the statute
of limitations period (Ledbetter – Overruled)
3. Lilly Ledbetter Fair Pay Act of 2009
a. Plaintiff can recover for pay discrimination that is the result of intentionally
discriminatory pay decisions that were made outside the statute of limitations period
(Fair Pay Act overrules Ledbetter).
b. Each paycheck where an employee is paid less, a new claim for discrimination arises
- so the statute of limitation starts over
4. Lewis v. City of Chicago (2010)
a. Facts
i. Another firefighter test; plaintiffs fall into the “qualified” test results; two
groups were picked and only well-qualified people were selected; brought a
disparate impact claim; city argued that
b. Issue
i. Can a disparate impact claim accrue at all? Yes
c. Notes
i. Where the discriminatory act by the employer is intentional (disparate
treatment), the statute of limitations runs from the date that the alleged
discriminatory act occurred; later effects of that decision do not restart the
clock. [Except when relating to employee pay]
ii. Where the discriminatory act is not intentional (adoption of a neutral test with
a disparate impact), the statute of limitations runs from the date of the effect
of the adoption of the policy, not the date that the policy was adopted.
d. Take Away
i. The EEOC statute of limitations in Title VII disparate impact cases runs from
the date in which the discriminatory test is applied, not when it is adopted
(Lewis v. City of Chicago)
ii. Anytime the city uses the test to hire a firefighter, a new claim arises
5. AT&T Corp. v. Hulteen (2009)
a. Facts
i. Pregnancy discrimination by AT&T occurred before the Pregnancy
Discrimination Act that we saw in Gilbert was passed
b. Notes
i. Because the discrimination occurred before the statute was adopted and did
not apply retroactively, then there was no discrimination because it was legal
c. Take Away
i. An employer does not violate the PDA when it pays pension benefits
calculated in part under an accrual rule, applied only pre-PDA, that gave less
retirement credit for pregnancy than for medical leave generally where such
pension payments accord with a bona fide seniority system’s terms (Hulteen)
§ 10 - Remedies (11/1/10)
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1. Albemarle Paper v. Moody (CB 602-11) - Equitable Remedies
a. Facts
i. Disparate impact case does not require intentional discrimination
ii. Trial court refuses to authorize back pay because there was no evidence of bad
faith on behalf of the employer
b. Court’s Opinion
i. Purpose of Title VI was to make persons whole for injuries suffered on
account of unlawful employment discrimination (to remedy present and past
effects)
ii. Back pay was an obvious connection to this purpose
c. Take Away
i. Mere absence of bad faith on employer’s part does not preclude back pay as a
remedy for the plaintiff (Albemarle Paper)
ii. Just need to show that employer violated the statute by creating a disparate
impact
2. Franks v. Bowman Transportation Co. (CB 616-23) - Seniority Relief
a. Facts
i. Plaintiffs want the seniority that they otherwise would have had if they had
been hired absent the discrimination
b. Notes
i. Class-based seniority relief for identifiable victims of illegal hiring
discrimination is a form of relief generally appropriate under § 706
c. Take Away
i. Identifiable applicants who were denied employment after effective date and
in violation of Title VII may be awarded seniority status retroactive to the
dates of their employment applications (Franks)
3. Kolstad v. American Dental Association (1999) - Punitive Damages
a. Facts
b. Notes
i. Individual
1. Discriminate in the face of a perceived risk of liability from the
subjective perspective of the employer
2. The employers must know what they’re doing is wrong
ii. Company
1. In the context of punitive damages, company cannot be vicariously
liable for its agents where these decisions are contrary to the
employer’s “good faith efforts to comply with Title VII.”
c. Take Away
i. To be liable for punitive damages in Title VII cases, the discriminator must
know or perceive risk that its actions will violate federal law - there is no
requirement of egregious misconduct, but employer not liable for punitive
damages if acting with “good faith efforts to comply with Title VII.”
(Kolstad)
25
4. Christiansburg Garment Co. v. EEOC (1978) - Attorney’s Fees
a. Facts
i. Defendants what attorney’s fees paid for
b. Notes
i. Prevailing defendants almost never get attorney’s fees, but prevailing
attorney’s using get them
ii. Meritless means that the claims must have no foundation in law
iii. Defendants can only recover attorney’s fees where the action brought is found
to be unreasonable, frivolous, or without foundation
c. Take Away
i. A district court may in its discretion award attorney’s fees to a prevailing
defendant in a Title VII case upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation (Christiansburg Garment)
§ 11 - 42 U.S.C. §§ 1981 & 1983 (11/3/10)
1. 42 U.S.C. § 1981
a. All persons within the jurisdiction of the United States shall have the same right in
Both Title VII and 42 U.S.C. §1981 afford protection from racial discrimination in
private employment to all races (McDonald).
b. every State and Territory to make and enforce contracts . . . as is enjoyed by white
citizens
i. Without question, § 1981 applies to African Americans
ii. An individual who establishes a cause of action under § 1981 is entitled to
both equitable and legal relief including compensatory and sometimes
punitive damages - back pay is not restricted to the two years specified for
back pay under Title VII
c. No need to comply with Title VII administrative rules (not prerequisites to § 1981)
d. ONLY APPLIES to disparate treatment
e. Broader than Title VII in one area - it covers employers with less than 15 employees
2. McDonald v. Santa Fe Transportation Co. (1976)
a. Issue
i. Does § 1981 prohibit racial discrimination in private employment against
whites as well as nonwhites? Yes
b. Notes
i. Court looks at the language and history of § 1981 to determine that it applies
to both whites and nonwhites
ii. It says “All persons” & was introduced as such
iii. When it passed the senate it was not limited to nonwhites, but the House
added the “as enjoyed by white citizens” language
1. The amendment was not viewed as limiting the bill’s scope
c. Take Away
i. Pretext analysis also applies to reverse discrimination claims under Title VII
and §1981 (McDonald)
26
3. Johnson v. Railway Express Agency, Inc. (1975)
a. Facts
i. Black guy who worked for railroad timely filed an EEOC charge that blacks
were being discriminated against with respect to seniority rules and jobs
assignments
b. Notes
i. The limitation period for claims under § 1981 is determined and applied
independently of claims under Title VII
ii. For § 1981, the appropriate limitation is determined by state law
c. Take Away
i. Since § 1981 provides an independent remedy for employment discrimination
with its own distinctive procedures and remedies, the limitations period is
determined and applied independently of claims under Title VII (Johnson)
4. 42 U.S.C. § 1983
a. Generally
i. Most general of the federal civil rights statutes
ii. Creates a claim for the deprivation of any federal rights “under color of any
statute, ordinance, regulation, custom, or usage of any state”
b. Notes
i. This is a jurisdictional statute just to get into federal court
c. Limitations
i. Like § 1981, claims under § 1983 do not require exhaustion of administrative
remedies
ii. Plaintiff can proceed to court, but must do so under the state law for tort
claims for personal injury
5. Jett v. Dallas Independent School District (1989)
a. Facts
i. White football coach brought a claim for discrimination against a school’s
black principal and the school board
b. Issue
i. Whether the school board is going to be liable for the actions of the principal
and what is the appropriate standard?
c. Notes
i. § 1981 vs. § 1983
ii. Congress did not intend municipalities to be subject to vicarious liability for
the federal constitutional or statutory violations of their employees
iii. Thus, to prevail on his claim for damages against the school district, petitioner
must show that the violation of his "right to make contracts" protected by §
1981 was caused by a custom or policy within the meaning of Monell and
subsequent cases.”
iv. If the city or state doesn’t have a custom or policy that the employee is
following, then you can’t get to the city or state
v. Court wants to limit liability for city and states
27
d. Take Away
i. Claims alleging violations of § 1981 by state and local officials must be
brought under § 1983. As a result, plaintiff must demonstrate action taken by
authorized official pursuant to policy or custom (Jett)
§ 12 - Age Discrimination in Employment Act
1. Age and Theory of Equality
a. Historical equality (characteristic-blind): Employer cannot consider age in
employment decisions but are we as troubled if it is not “the” factor?
b. Economic equality (merit-based): Employer considers age only as it relates to merits
of job
i. Age can be an asset or a detriment
c. Remedial equality (opportunity): Employer considers age only to remedy disparity in
opportunity
i. Do we have a long history of discriminating against old people?
1. NO - so it’s a little different than the remedial considerations that are
present in the other discrimination contexts
ii. There is not a long history of denial of equal opportunity based on age
(compared to race/gender)
2. How is the ADEA discrimination different?
a. Only protects individuals over the age of 40
b. Basically copies the language of Title VII so you’d think the application would be
exactly the same
3. ADEA claims
a. Disparate Treatment (Individual/Systemic) - discriminated because of age
i. Direct Evidence
1. Intentional discrimination
2. Cause (but-for)
3. Adverse employment decision
ii. Circumstantial Evidence
1. Shifting burden of proof
b. Disparate Impact - neutral test has discriminatory impact on age
4. O’Connor v. Consolidated Coin Caterers Corp. (1996) - Disparate Treatment (Single)
a. Facts
i. 56 year old was fired and replaced a 40 year old. Plaintiff brings claim of
disparate treatment under Title VII
b. Issue
i. If the company replaces someone who’s protected with someone who is also
protected, does it violate the ADEA?
c. Notes
28
i. The fact that one person in a protected class lost out to someone who is also in
a protected class is irrelevant - so long as the plaintiff lost out because of his
age
ii. The age of the person who replaced you is not relevant to plaintiff’s prima
facie case
d. Take Away
i. An employee can make out a prima facie case of age discrimination if
replaced by a “substantially younger” worker, even if the replacement is over
40 (O’Connor)
5. Anderson v. Baxter Healthcare Corp. (1994) - Disparate Treatment (Single)
a. Facts
i. Plaintiff was fired because the company believed that he failed to maintain the
fire equipment
b. Notes
i. Mere submission from coworkers or supervisor indicating that an employee’s
performance was satisfactorily is not good enough for a jury to infer that the
employee was discriminated based upon his age
ii. Even though Title VII and ADEA use the same language, the court will often
require MORE evidence
c. Take Away
i. Like under Title VII, an ADEA plaintiff bears burden to produce evidence
from which a trier of fact can infer that the proffered reason for discharge is
false; generalized conclusory evidence will not suffice (Anderson)
6. Hazen Paper Co. v. Biggins (1993) - Disparate Treatment (Single)
a. Facts
i. Fired two weeks before his 10 year pension vests
b. Issue
i. Was the employee fired because of age or was it about something else? And if
was about something else, was it really about age?
c. Notes
i. Court concluded that he was not fired because of his age, but rather it was
because the employer did not want to give him his pension benefits
ii. This is true even though there is a correlation between age and pension
iii. Disparate treatment case, liability depends on whether the protect trait (age)
actually motivated the employer’s decision
d. Take Away
i. Where an adverse action is not “because of” a protected trait, even if
correlated to that trait, plaintiff cannot establish disparate treatment (Hazen
Paper)
7. Gross v. FBL Services - Mixed Motive DOES NOT APPLY TO ADEA
a. Issue
29
i. The question presented by the petitioner in this case is whether a plaintiff
must present direct evidence of age discrimination in order to obtain a mixedmotives jury instruction in a suit brought under the ADEA?
b. Notes
i. Unlike Title VII, the ADEA’s text does not provide that a plaintiff may
establish discrimination by showing that age was simply a motivating factor.
ii. To establish a disparate treatment claim under the plain language of the
ADEA, therefore, a plaintiff must prove that age was the ‘but for’ cause of the
employer’s adverse decision.
1. But For = ‘Necessary Reason’ (without age, you wouldn’t have got
fired)
a. In the ADEA statute, because of means but for
b. But in Title VII, it doesn’t mean “but for” causation at all, it
only means a reason
2. Motivating Factor = ‘Sufficient Reason’ (i.e. Price Waterhouse)
iii. Congress did not amend ADEA in 1991 to add motivating factor section, but
the Court ignored that Price Waterhouse was the controlling precedent
c. Take Away
i. The “motivating factor” test DOES NOT APPLY to age discrimination
(ADEA) claims; and there is no burden of persuasion shifting as to causation
in such cases (Gross)
ii. ADEA plaintiff must show “but-for” causation through direct evidence or the
McDonnell Douglas burden shifting analysis
8. Smith v. City of Jackson (2005) - Disparate Impact
a. Facts
i. Younger police officers are given higher bump in pay and the older officers
say they’ve been discriminated against based on the their age
b. Issue
i. Whether claims based on the theory of disparate impact could be asserted
under the ADEA.
c. Notes
i. Yes, but it is a weaker, more narrower version
ii. Difference between statutes
1. ADEA was amended with Title VII in ADEA
2. Reasonable factor other than age defense
iii. There’s not been a history of discrimination in age and it makes sense that the
disparate impact claim is narrower
d. Take Away
i. Claims based on disparate impact can be asserted under the ADEA although
the standard of justification requires only reasonableness (Smith)
9. Meacham v. Knolls Atomic Power Laboratory (CB 740-45)
a. Facts
b. Issue
30
i. Whether an employer facing a disparate impact claim and planning to defend
on the basis of RFOA must not only produce evidence raising the defense, but
also persuade the fact finder of its merit
c. Notes
d. Take Away
i. When an employer raises a defense of “reasonable factor other than age”
while defending a claim of disparate impact, the employer bears the burden of
proving that claim (Meacham)
10. Western Air Lines v. Criswell (CB 746-56) - Bona Fide Occupational Qualifications
a. Facts
b. Issue
i. Whether the jury was properly instructed on the elements of a bona fide
occupational qualification
c. Notes
d. Take Away
i. For mandatory requirement to be justified under the extremely narrow BFOQ
defense, age qualifications must be “reasonably necessary to the particular
business” and it must be “impossible or highly impractical” to evaluate older
employees on an individualized basis (Criswell)
§ 13 - Americans With Disabilities Act
1. Introduction
a. Similar to Rehabilitation Act of 1973
i. Applies to the federal government and federally funded programs, and federal
contractors
b. Americans with Disabilities Act (ADA): Applies to all employers with at least 15
workers
i. The ADA of 1990 generally prohibits private employers, state and local
governments, employment agencies, and labor unions from discriminating
against qualified individuals with disabilities
ii. It also applies to employment agencies and to labor organizations
iii. This statute has a byzantine series of provisions and regulations that uses
words defined elsewhere in the statute
1. Check to see if it’s defined in the statute
2. ADA Elements
a. An employer is required to make a reasonable accommodation to the known disability
of a qualified applicant or employee if it would not impose an ‘undue hardship’ on
the operation of the employer’s business
i. Undue hardship is defined as an action requiring significant difficulty or
expense when considered in light of factors such as an employer’s size,
financial resources, and the nature and structure or its operation
b. An individual with a disability is a person who:
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i. Has a physical or mental impairment that substantially limits one or more
major life activities;
ii. Has a record of such an impairment; OR
iii. Is regarded as having such an impairment (even if you don’t)
c. A qualified employee or applicant with a disability is an individual who, WITH OR
WITHOUT REASONABLE ACCOMMODATION, can perform the essential
functions of the job in question
i. Reasonable accommodation may include, but is not limited to:
1. Making existing facilities used by employees readily accessible to and
usable by persons with disabilities
2. Job restructuring, modifying work schedules, reassignment to a vacant
position
3. Acquiring or modifying equipment or devices, adjusting or modifying
examinations, training materials, or policies, and providing qualified
readers or interpreters
3. ADA Analysis
a. Plaintiff must show:
i. He/she has a disability (physical impairment, in a major life activity, and is
substantially limiting) and
ii. Defendant discriminated against him/her based on that disability (failed to
provide a reasonable accommodation)
b. Defense
i. Did plaintiff pose a direct threat to the health and safety of others?
4. Bragdon v. Abbot (1998)
a. Facts
i. Lady who had HIV went to the dentist who determined that she need a cavity
filled. The dentist refused to fill the cavity at his office. He said it could be
performed at a hospital but the patient would need to pay for her hospital stay
b. Issue
i. Is plaintiff’s HIV a physical impairment? Yes - from the moment of infection
c. Notes
i. Does HIV substantially impair a ‘major life activity?’
1. Yes - Major life activities include ‘functions such as caring for one’s
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.’
2. Here, she can’t have children due to the risk of infection
ii. So, plaintiff must show:
1. He has a disability: physical impairment (Yes), in a major life activity
(Yes), and is substantially limiting (Yes)
2. And the defendant discriminated against him based on that disability
(failed to provide a reasonable accommodation)
3. And the plaintiff did not pose a direct threat to the health and safety of
others
d. Take Away
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i. To establish an ADA claim based on the existence of a physical disability, the
plaintiff must demonstrate that he/she has a physical impairment that
substantially limits one or more major life activities (Bragdon)
5. School Board of Nassau v. Arline
a. Facts
i. School teacher was fired after suffered a third relapse of tuberculosis within
two years, a disease that’s contagious in certain circumstances. She sued
under § 504 of the Rehabilitation Act (predecessor to ADA with same
language)
b. Notes
i. Court said that it was impossible to separate plaintiff’s contagiousness from
her physical impairment
c. Take Away
i. A person suffering from the contagious disease of tuberculosis can be a
handicapped person within the meaning of § 504 of the Rehabilitation Act of
1973 (Nassau)
6. Sutton v. United Air Lines (CB 785-99)
a. Facts
i. Twin sisters have severe myopia, but with corrective lenses each has 20/20
vision. The sisters applied for jobs as commercial airline pilots, but United
informed them that they didn’t meet the minimum vision requirement and
terminated their interview
ii. An individual with a disability is a person who:
1. Has a physical or mental impairment that substantially limits one or
more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.
b. Issue
i. Can the effects of plaintiff’s corrective measures (glasses) be taken into
account?
c. Notes
i. Under plaintiffs’ first claim that United discriminated against plaintiffs
because of their disability - § 3(1)(A)
1. Court found that because once the plaintiffs wore their glasses their
disability was corrected
ii. A “disability” exists only where an impairment “substantially limits” a major
life activity, not where it “might,” “could,” or “would” be substantially
limiting if mitigating measures were not taken
iii. Under plaintiffs’ third claim that they were regarded as having an impairment
- § 3(1)(C):
1. A covered entity mistakenly believes that an actual, non-limiting
impairment substantially limits one or more major life activities. In
both cases, it is necessary that a covered entity entertain
misperceptions about the individual- it must believe either that one has
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a substantially limiting impairment that one does not have or that one
has a substantially limiting impairment when, in fact, the impairment
is not so limiting
iv. Under substantially limited…
1. There must be several jobs that you can’t do
2. Major life activities must be a class of activities
d. Take Away
i. Mitigation measures count towards consideration of whether one has a
disability, and major life activities must be a class of activities (Sutton)
ii. Sutton requires physical and mental conditions to be evaluated in their
corrected state in order to determine whether they substantially limit a major
life activity
e. ADA AMENDMENTS (2008)
i. Impairments are now to be evaluated “without regard for to the ameliorative
effects of mitigating measures"
ii. The definition of “disability” and “substantially limits” shall be interpreted in
“favor of broad coverage”
iii. Exceptions
1. Impaired vision that could be corrected by ordinary eyeglasses or
contact lenses
2. So the Amendments basically affirm the holding of Sutton
7. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (CB 818-22)
a. Facts
i. Plaintiff based her claim that she was “disabled” under the ADA on the
ground that her physical impairments (carpal tunnel syndrome) substantially
limited her in (1) manual tasks; (2) housework; (3) gardening; (4) playing with
her children; (5) lifting; and (6) working, all of which, she argued, constituted
major life activities under the Act
b. Notes
i. To be substantially limited in performing manual tasks, an individual must
have an impairment that prevents or severely restricts the individual from
doing activities that are of central importance to most people’s daily lives
ii. The impairment’s impact must also be permanent or long-term
c. Take Away
i. When assessing ‘disability,’ one must look to tasks in one’s ordinary daily
life, NOT employment related activities (Toyota)
8. ADA Amendments (2008)
a. Main purposes
i. Reject Sutton’s requirement that whether an impairment substantially limits a
major life activity is to be determined with reference to the ameliorative
effects of mitigating measures
ii. Reject Sutton’s view of third prong (regarded as)
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iii. Reject Toyota’s view that the terms ‘‘substantially’’ and ‘‘major’’ in the
definition of disability under the ADA ‘‘need to be interpreted strictly to
create a demanding standard for qualifying as disabled’’
b. New Definitions
i. Major Life Activity:
1. Includes, but is not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working
2. Also includes the operation of a major bodily function, including but
not limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions
ii. Disability:
1. Disability in this Act shall be construed in favor of broad coverage of
individuals under this Act
iii. Substantially Limits
1. Does not allow consideration of mitigating effects … except
eyeglasses and contact lenses (if you can correct your vision, then
you’re not disabled)
c. Summary
i. Nassau is embraced.
ii. Sutton is abandoned
iii. Toyota is abandoned
iv. The definition of disability is broadened
v. “Substantially limits” does not allow consideration of mitigating effects …
except eyeglasses and contact lenses
9. Southeastern Community College v. Davis (CB 826-32)
a. Facts
i. Davis wants to be a nurse but she can’t hear so she brings a suit under the
Rehabilitation Act
ii. She can only read lips and cannot make out different sounds unless spoken
directly at
b. Notes
i. Court finds that she’s not otherwise qualified because you have to show some
level of qualification
ii. Could they accommodate her though? No, the burden is too high
iii. Can’t change the entire nursing program to accommodate her
iv. School’s unwillingness to make adjustments was not discrimination
c. Take Away
i. Section 504 does not require an educational institution to “lower or to effect
substantial modifications of standards to accommodate a handicapped person”
(Davis)
10. U.S. Airways v. Barnett
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a. Facts
i. Baggage handler wants to switch jobs as a reasonable accommodation but to
transfer his seniority would conflict with other people’s seniority
b. Notes
i. Court found that the seniority system prevailed because changing its seniority
would be an undue hardship on the operation of its business
ii. You can’t demand that you should get a job over someone with more seniority
c. Take Away
i. Employers do not have to make an ADA accommodation for disabled persons
when such accommodations conflict with seniority rules, unless plaintiff can
show special circumstances that would make such an accommodation
“reasonable” (Barnett)
11. Chevron U.S.A. Inc. v. Echazabal
a. Facts
i. Worker has Hepatitis C and the company told him that he couldn’t work
because it would make his condition worse
ii. Plaintiff sues Chevron under the ADA
b. Notes
i. The ADA conflicts with the Regulation as the correct qualification standard
ii. Does the ADA preclude the regulation?
c. Take Away
i. ADA does not preclude EEOC regulation from defining harm affirmative
defense to include harm to self (Exhazabal)
12. Albertson’s v. Kirkingburg
a. Facts
i. Truck driver has myopia and the company says that it doesn’t want him to
drive because he doesn’t meet the DOT’s driving requirements
ii. But there’s a waiver in the DOT’s requirements that says after 3 years without
an accident, the requirements are waived
iii. However, the company’s policy does not allow for a waiver
b. Notes
i. Court said this is a job related business necessity and the company should not
have to adopt the federal standard
ii. The company’s standard is higher than the federal standard
1. Just because the federal rule allows one thing, doesn’t mean the
company has to as well
c. Take Away
i. Employers can use federal law as a basis for establishing a ‘job necessity’
requirement under the ADA, even if the federal law can be waived in certain
circumstances (Kirkingburg)
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