~ Basics of Disparate Treatment ~
[Likely the most apparent form of discrimination outlawed by Title
VII; to NOT use protected group status in making personnel decisions]
The role of intent: "Disparate treatment ... is the most easily
understood type of discrimination. The employer simply treats some
people less favorably than others because of their race, color, religion,
sex, or national origin. Proof of discriminatory motive is critical,
although it can in some situations be inferred from the mere fact of
differences in treatment.” Teamsters v. United States 431 U.S. 324, 33536 (1977)
>>> Direct and indirect (circumstantial) evidence is allowable
From Sweeney v. Keene St. College (1978): The Supreme Court has never said
that an individual plaintiff seeking to establish a claim of disparate treatment in
violation of Title VII must present direct evidence of discriminatory intent.
Even in Washington v. Davis, which held that discriminatory intent is an
essential element of a claim based upon the equal protection clause of the
Fourteenth Amendment, the Supreme Court recognized that circumstantial
evidence was one means of proving purposeful discrimination.
Direct Versus Indirect Evidence
[Direct and indirect evidence does not involve the quality of the
evidence, but how it issued]
*Direct: that which shows, without inference, the existence of the fact in
question [Decision-maker statement: “I fired him because he was Black”]
Supervisor remark soon before he denied a female a promotion she said she
had been promised: “f --- ing women, I hate f --- ing women in the office”
[Heim v. Utah, 1993]. Not considered as direct evidence
Circumstantial:
• Organization’s forte is in its management who are “mostly young, well educated. ...”
• The company was “young, mean, and lean”
• The challenger ought to retire
• The challenger should have foreseen his firing when a younger person was hired
>>> Comments made by the organization’s president (who was involved in the decision
to fire the challenger. Circumstantial evidence that is directly tied to an adverse
decision [Radabaugh v. Zipp Feed Mills, 1993 --- evidence of unlawful intent)
*Relatively uncommon (UAW v. Johnson Controls).
~ Disparate Treatment Process ~
Step 1: Challenger must establish a prima facie case
Step 2: The company must articulate that a legitimate,
nondiscriminatory reason exists for the rejection of the
challenger
Step 3: The challenger must prove that the organization's
reason for their rejection is a pretext for discrimination
McDonnell Douglas Corp. v. Green (1973)
Challenger Burden (Step 1): To establish a prima facie case of racial
discrimination, a complainant must:
1) Belong to a racial minority
>>> Green was Black
2) Apply and be qualified for the job in which the employer
was seeking applications
>>> Green applied for a mechanic position and his past work for
the company was “satisfactory”
3) Be rejected for the job in question despite being qualified
>>> Green was not hired
4) After being rejected, the position must remain open and
the company has to continue to seek applicants from
person’s of the complainant’s qualifications
>>> Company continued hiring applicants
~ Application Requirement ~
Futile Act Doctrine: If a company has a longstanding practice
of not hiring minorities
From Teamsters: If an employer should announce his policy of
discrimination by a sign reading "Whites Only" on the hiring-office door,
his victims would not be limited to the few who ignored the sign and
subjected themselves to personal rebuffs. The same message can be
communicated to potential applicants more subtly but just as clearly
by an employer's actual practices - by his consistent discriminatory
treatment of actual applicants, by the manner in which he publicizes
vacancies, his recruitment techniques, his responses to casual or tentative
inquiries, and even by the racial or ethnic composition of that part of his
work force from which he has discriminatorily excluded members of
minority groups
~ Qualification Issue ~
Absolute: The plaintiff possesses minimum qualifications
for the job (e.g., based on a job description)
Relative: The plaintiff’s qualifications compare favorably
to others considered for the position (e.g., plaintiff must
prove that he/she was most qualified for the job)
From Teamsters v. U.S. (footnote 44): The plaintiff must prove that her
rejection for a given job was not the result of “an absolute or relative lack of
qualifications.”
Disparate Treatment
Company Defense (Step 2)
• The employer needs to only “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection”
>>> Company stated that Green was rejected because of his
participation in an illegal “stall-in and “lock-in” against the
organization
Challenger Can Demonstrate Pretext (Step 3)
“ ... the plaintiff must then have an opportunity to prove
by a preponderance of the evidence that the legitimate
reason offered by the defendant were not its true reasons
but were a pretext for discrimination.”
How might this be done (with what information)?
Company’s treatment of challenger during his prior employment
(e.g., to his legal civil rights conduct)
Organization’s policies/practices regarding minority employment
(e.g., prior evidence of a pattern of discrimination – statistics)
Evidence that Whites involved in the illegal activities were hired
Furnco Construction v. Waters (1978)
Brief Facts:
• No permanent workforce at company; staffing done per job. In this case, hiring done
based on those individuals known to be qualified and by recommendations. No
applications were accepted at company site.
• Race discrimination suit filed when black applicants were not hired
• District Court. --- No evidence for discrimination under Green
• Ct. Appeals --- Prima facie case made; Co. was guilty of discrimination allegations
• History of racial discrimination; rejected as legitimate the need for supervisor to
select those whose ability was known to him
Supreme Court Decision in Furnco
Critical comment: “The burden which shifts to the employer is merely that of
proving that he based his employment decision on a legitimate consideration,
and not an illegitimate one such as race”
Texas Department of Community Affairs v.
Burdine (1981)
Brief Facts:
District Ct. --- No gender bias in promotion decision; Evidence based on
testimony from supervisor that:
• Not as qualified as person promoted
• Did not work well with some others
Court of Appeals: --1) Company needs to prove the use of a non-discriminatory reason with a
preponderance of evidence
2) Objective evidence must be presented that the person hired/promoted
possessed the highest qualifications
“ ... to satisfy this burden, the defendant “must prove that those he
hired ... were somehow better qualified than was plaintiff, in other
words, comparative evidence is needed.”
Supreme Court Decision in Burdine
1) Defendant burden is one of production/articulation (not
persuasion)
We have stated consistently that the employee’s prima facie
case ... will be rebutted if the employer articulates lawful
reasons for the action, ... the employer need only produce
admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision had
not been motivated by discriminatory animus
... the defendant’s explanation of its legitimate reasons
must be clear and reasonably specific
Supreme Court Decision in Burdine (cont.)
2) Defendant does not have to prove that the plaintiff ’s
qualifications are less the the person
The views of the Court of Appeals can be read ... as
requiring the employer to hire the minority or female
applicant whenever that person’s objective qualifications
were equal to those of a white male applicant. But Title
VII does not obligate an employer to accord this
preference
3) Plaintiff must show direct or indirect evidence that the
defendant’s reason(s) were a pretext for discrimination
St. Mary’s Honor Center v. Hicks (1993)
Brief Facts: After reorganization, Hicks received several
disciplinary actions from his new supervisor (before his
performance was satisfactory). He was suspended (and later
fired) for rules violations by his subordinates, failing to
inadequately investigate a brawl between inmates, not ensuring
his subordinates entered vehicle use in log book, arguing and
threating his supervisor
Hicks filed a race discrimination suit alleging disparate treatment
District Ct. decided in favor of St. Marys
Court of Appeals reversed this decision
Court of Appeals Decision in Hicks
>>> Reasons given by the organization were NOT the true factors in the
termination decision.
(e.g., Hicks was the only supervisor disciplined for acts of his subordinates,
similar/more serious violations by co-workers was ignored or treated lightly,
and Hick’s supervisor began the verbal argument to provoke Hicks)
Consequently, they decided that since the company was unsuccessful
defending its use of legitimate factors, the company was guilty of race
discrimination
“Because the defendants’ proffered reasons were discredited, defendants were in
a position of having offered no legitimate reason for their actions. ... offering
no rebuttal to an established inference that they had unlawfully discriminated
against plaintiff on the basis of his race.”
~ Supreme Court Decision in Hicks ~
>>> Company did offer (produce) non-discriminatory evidence for
its decision. It meet it burden under the Burdine framework.
>>> Challenger must not only show pretext, but that the reasons
were a pretext for discrimination
“ ... should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons but were a pretext for
discrimination.”
[From Burdine]
Reeves v. Sanderson Plumbing (2000)
Reeves (age 57) fired for alleged poor work performance
District Court ruled in favor of Reeves
Court of Appeals reversed
>>> Pretext may exist regarding the reasons offered by the
organization; but not sufficient evidence of age discrimination
Alleged problems with Reeves performance:
1) Poor recordkeeping (cost company $$$)
Reeves showed evidence that records were properly maintained; time
clock malfunctioned and he wrote the actual arrival time on time
cards; company never calculated the dollar loss allegedly caused by
Reeves
2) Misrepresentations of records
No evidence of falsifying records introduced
3) Failure to record absences and hours worked by subordinates
(especially important given presence of union and costs for
grievances/arbitration)
There had never been a union grievance or complaint about
recordkeeping
4) Failure to discipline subordinates
Disciplinary decisions were the responsibility another supervisor
Additional Evidence by Reeves
>>> Age-related remarks made by the person who was the
decision-making regarding his firing (e.g., “was so old that he
must have come over on the Mayflower,” “was too damn old to
do his job.”
>>> Another supervisor (age 33) with the same production
efficiency levels as Reeves, was not fired
Company Defense
 Age-based remarks not made in the context of the decision to
fire Reeves
 No evidence that others who recommended Reeves be fired
were motivated by age
 Two other decision-makers involved in Reeves’ firing were over
age 50
 All three Hinge Room supervisors were accused of poor
recordkeeping
 Several supervisory positions were filled by those over 50 years
old
Supreme Court Decision in Reeves
Court of Appeals erred in limiting evidence after Step 2 to the agerelated remarks, and not considering the facts of the case as a whole.
“... the court must review the record taken as a whole.”
“ ... the court should review all of the evidence in the record
Challenge’s burden is to demonstrate:
• “that the stated reasons were not the real reasons for [petitioner’s]
discharge;
• “that age discrimination was the real reason for [petitioner’s]
discharge.”
Given that petitioner established a prima facie case of discrimination,
introduced enough evidence for the jury to reject respondent’s
explanation, and produced additional evidence of age-based animus,
there was sufficient evidence for the jury to find that respondent had
intentionally discriminated.
Disparate Treatment Case Summary
McDonnell-Douglas v. Green:
>>> Developed 3-step process for disparate treatment claims
Furnco v. Waters:
>>> Establishing a pioma facie case does NOT equal a finding of
discrimination
>>> No requirement to use a process that attracts the most minority
members
>>> Use of statistics (representation) may be used to show motive
Disparate Treatment Case Summary (cont.)
Texas v. Burdine:
>>> Company required to produce evidence of legitimate reasons (not
prove them)
>>> Objective evidence is not required to document that most qualified
person was hired/promoted
St, Mary’s v. Hicks:
>>> Demonstration of pretext by challenger is NOT enough; evidence that
the offered reasons were a pretext for discrimination is required
Reeves v. Sanderson Plumbing:
>>> Evidence in addition to that offered in establishing a prima face case
should be considered (the record as a whole)
~ Mixed-Motive Scenarios ~
What is the basic description of a
mixed-motive scenario?
Essentially it occurs when illegal and legitimate factors
are used in making an employment decision.
Mixed-Motive Scenario (cont.)
Key Issues?
1) What standard must the defense meet to establish that it used a legal factor?
• Preponderance of evidence vs. clear and convincing evidence
__________________________________________________________________
Preponderance
Clear and convincing
Beyond a reasonable doubt
2) Does the illegal reason have to be a motivating factor or a substantial factor?
3) What evidence must be presented by the plaintiff, direct, indirect or either?
Price Waterhouse v. Hopkins
• Ann Hopkins, a senior manager, was passed over for promotion to
partner in two successive years
– She proved that several partners (decision makers) made
stereotypical sex-based derogatory remarks (e.g., her poor
interpersonal skills could be “corrected by a soft-hued suit or
new shade of lipstick,” she was “macho,” and she had been
“overcompensated for being a woman”)
• Defence countered with proof that Hopkins was brash and
abrasive and her contrary behaviour was the reason why she was not
promoted (legal reasons)
Price Waterhouse v. Hopkins (cont.)
• Lower courts ruled for Hopkins
Agreement:
• “Clear and convincing” evidence was the proper defence
standard
• An illegal motive (e.g., sex) must be a motivating factor in
the decision
- Disagreement on employer liability:
- District court: Liability exists regardless if use of a legal
motive is proven
Price Waterhouse v. Hopkins (cont.)
Supreme Court decision:
• Proper defense standard for proving a legal motive is a “preponderance of
evidence” (not “clear and convincing evidence” used by lower courts)
• Disagreement on whether an illegal motive (e.g., sex) must be a motivating
factor or a substantial factor
• O’Conner stated that proof of an illegal must be in the form of direct evidence
(used by subsequent lower courts even though she was alone on the Court in this
belief)
“… What is required is what Ann Hopkins showed here: direct evidence that decision
makers placed substantial negative reliance on an illegitimate criterion in reaching their
decision.”
Note: Even though O’Conner was alone in requiring direct evidence, the majority
of lower courts used this standard in mixed-motive cases
~ Civil Rights Act of 1991 ~
(m) Impermissible consideration of race, color, religion, sex, or
national origin in employment practices.
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.
Desert Palace Inc., v Costa
Costa was fired after getting into a fight with a male coworker
 Costa provided indirect evidence that she was treated more
harshly than her male coworker that she fought with, as well as
other coworkers
 The company said that she was terminated for being a repeat
offender (and that the male she fought with was not)
 Costa provided evidence of other men were treated less severely
for offenses (e.g., being late, cursing) and had witnesses testify that
she was targeted for intense stalking
Desert Palace Inc., v Costa (cont.)
 The District Court gave the jury the following mixed-motive instruction to
the jury:
“ You have heard evidence that the defendant’s treatment of the plaintiff was
motivated by the plaintiff ’s sex and also by other lawful reasons. If you find that
the plaintiff ’s sex was a motivating factor in the defendant’s treatment of the
plaintiff, the plaintiff is entitled to your verdict, even if you find that the
defendant’s conduct was also motivated by a lawful reason…. However, if
you find that the defendant’s treatment of the plaintiff was motivated by both
gender and lawful reasons, you must decide whether the plaintiff is entitled to
damages. The plaintiff is entitled to damages unless the defendant proves by a
preponderance of evidence that the defendant would have treated plaintiff
similarly even if the plaintiff ’s gender had played no role in the employment
decision.
 The company contended that the Costa failed to provide
“direct evidence” that sex was a motivating factor in her
dismissal
Desert Palace Inc., v Costa (cont.)
Supreme Court ruled in Costa that direct evidence is not
required for mixed-motive cases
“In order to obtain a [mixed-motive] instruction … a
plaintiff need only present sufficient evidence for a reasonable
jury to conclude, by a preponderance of the evidence, that
“race, color, religion, sex, or national origin was a motivating
factor for any employment practice.”
Note: Role of derogatory remarks: Most damaging if made by a
decision-maker and in close temporal proximity to a negative
employment decision
Mixed-Motive Scenario
Phase 1: Proof by a preponderance of direct or indirect
evidence that an illegal motive was a motivating factor in
an employment decision
Phase 2: Proof by a preponderance of evidence that the
employment decision made would have been made anyway
in spite of the illegal motive
Phase 3: Proof by a preponderance of evidence that the
reasons (evidence) offered by the defence are a pretext for
discrimination
~ Pattern or Practice
Discrimination ~
~ Pattern or Practice Discrimination ~
[Subset of Disparate Treatment Discrimination]
From Title VII --- Section 707(a)
Whenever the Attorney General has reasonable cause to believe
that any person or group of persons is engaged in a pattern or
practice of resistance to the full enjoyment of any of the rights
secured by this subchapter, and that the pattern or practice is of
such a nature and is intended to deny the full exercise of the rights
herein described, the Attorney General may bring a civil action in
the appropriate district court of the United State
The Pattern or Practice Scenario
Phase 1: Plaintiff provides statistical evidence of
underrepresentation of minorities/women in the workforce
or overrepresentation of minorities/women in less desirable
jobs
Phase 2: Defendant can use McDonnell–Burdine defense for
pattern statistics; defense for individual claims generally
follows McDonnell–Burdine rules
Phase 3: Plaintiff ’s requirement for showing pretext is the
same as previously discussed for McDonnell–Burdine cases
for both the overall and individuals claims
Teamsters v. United States (1977)
The federal government sued a nationwide trucking company and its union for
discrimination against black and Hispanic Americans in hiring intercity truck
drivers. The government claimed that these minorities were relegated to lowerpaying driving jobs by the existence of separate units (local unions) for intercity
and local drivers. Protection from layoff and competition for vacancies were
determined by bargaining union seniority, so that intercity runs were given to the
applicant who had been an intercity driver the longest. To support its argument,
the government presented the following statistics on the company work force:
White
Black & Hispanic
____________________________________________________
Intercity drivers
1802
13
Local drivers
1117
167
_____________________________________________________
Also, the government introduced population statistics that showed further
disparities. For instance, some company terminals in areas of substantial black
population had no black intercity drivers.
Teamsters --- Representation statistics as evidence of
a prima facie
case
Statistics showing racial or ethnic imbalance are probative in a case such as this one only
because such imbalance is often a telltale sign of purposeful discrimination; absent
explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in
time result in a work force more or less representative of the racial and ethnic
composition of the population in the community from which employees are hired. Evidence
of long lasting and gross disparity between the composition of a work force and that
of the general population thus may be significant even though 703 (j) makes clear that
Title VII imposes no requirement that a work force mirror the general population."
From Title VII ---703 (j) Nothing contained in this subchapter shall be interpreted to
require any employer, employment agency, labor organization, or joint labor–
management committee subject to this subchapter to grant preferential treatment to any
individual or to any group because of the race, color, religion, sex, or national origin of
such individual or group on account of an imbalance which may exist with respect to
the total number or percentage of persons of any race, color, religion, sex, or national
origin employed by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership or classified by any
labor organization, or admitted to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of persons of such
race, color, religion, sex, or national origin in any community, State, section, or other
area, or in the available work force in any community, State, section, or other area.
Teamsters
[Degree of disparity between workforce & population statistics]
"At best, these attacks go only to the accuracy of the comparison between the composition of
the company's work force at various terminals and the general population of the surrounding
communities. They detract little from the Government's further showing that Negroes and
Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver
jobs. Such employees were willing to work, had access to the terminal, were healthy and of
working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they
became line drivers with far less frequency than whites. ... Of 2,919 whites who held driving
jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes
and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167
(93%) were city drivers. In any event, fine tuning of the statistics could not have obscured
the glaring absence of minority line drivers. As the Court of Appeals remarked, the
company's inability to rebut the inference of discrimination came not from a misuse of statistics
but from "the inexorable zero."
In cases where the differences are vast, technical issues regarding statistical
analyses/comparisons may be irrelevant
>>> Company failed to articulate a legitimate reason for the
disparities
Hazelwood v. United States (1977)
Summary of the statistics used in Hazelwood
Total teachers hired by the district .........................
Total # of teachers hired since 3/24/72 .................
% of Black teachers hired by the district ...............
% Blacks hired since 3/24/72 ..............................
% Black teachers living in metropolitan area ........
1231
405
1.8%
3.7%
15.4%
(surrounding county; % the gov't thought was appropriate)
% Black teachers in area living outside center city ..
5.7%
(local area; % that Hazelwood thought was appropriate)
% Black pupils enrolled in school district ..............
2.3%
>>> Hazelwood won since the S.C. decided that they had
articulated a legitimate reason for the imbalance (e.g.,
competition from the City of St. Louis) when the “proper” relevant
labor market was used
Wal-Mart v. Dukes (2011)
>>> Plaintiffs alleged system-wide sex discrimination regarding pay and
promotion decisions at Wal-Mart
Plaintiff ’s Evidence:
1)Study on the culture at Wal-Mart (ripe for gender discrimination)
•
•
•
•
Senior management often refer to female associates as “little Janie Qs.
One manager told an employee that “men are here to make a career and
women aren’t.”
A committee of female Wal-Mart executives concluded that “stereotypes limit
the opportunities offered to women.”
Wal-Mart permits those prejudices to infect personnel decisions, by leaving
pay and promotions in the hands of “a nearly all male managerial workforce”
using “arbitrary and subjective criteria.”
Wal-Mart v. Dukes (2011)
2)
Statistics:
•
Women fill 70 percent of the hourly jobs in the retailer’s stores but make
up only “33 percent of management employees
•
The higher the organizational level, the lower the percentage of women
•
Women working in the company’s stores “are paid less than men in every region”
and “that the salary gap widens over time even for men and women hired into the
same jobs at the same time.
Wal-Mart v. Dukes (2011)
Rule 23. Class Actions (a) Prerequisites. One or more members of a class
may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable,
(1) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests
of the class.
(b) Types of Class Actions.
A class action may be maintained if Rule 23(a) is satisfied and if:
(1)prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that
would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would
be dispositive of the interests of the other members not parties to the individual adjudications or
would substantially impair or impede their ability to protect their interests;
*(2) the party opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the
class as a whole; or [Note: This pertains to claims for injunctive or declarative relief; permits a
purely statistical analysis for the merits of plaintiff ’s class action claims]
*(3) the court finds that the questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings
include: [Note: This pertains to claims for monetary relief]
(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 the
particular forum; and
(D) the likely difficulties in managing a class action.
Definitions
Injunctive Relief: A court-ordered act or prohibition against an
act or condition which has been requested; not a judgment for
money
Declaratory Relief: A judgment of a court which determines the
rights of parties without ordering anything be done or awarding
damages. The party making the request seeks an official
declaration of the status of a matter in controversy.
Wal-Mart v. Dukes (2011)
District Court: Approved class certification based on Rule 23 (a) and on Rule
23 (b) (2)
On appeal (to CA 9), Wal-Mart argued that the district court made 3 errors:
1) No proof of commonality and typicality – Rule 23(a)
2) Using 23(b) (2) eliminated their opportunity to respond to
individual claims
3) Rule 23 (b) (2) should not have been used since claims for monetary
relief predominated over injunctive and declarative relief
Court of Appeals (CA 9):
Three judge panel denied the appeal as did an en banc ruling (6-5)
Majority upheld claims for injunctive, declarative relief, and back pay under
Rule 23(b) (2) but sent back to the lower court to determine if punitive
damages are appropriate using Rule 23(b) (3)
Wal-Mart v. Dukes (2011)
Supreme Court Decision:
• Majority failed to certify plaintiffs as a class. Commonality was not satisfied –
Rule 23(a)(2)
• Unanimous that Rule 23(b) (2) was inappropriate to use; monetary claims far
predominated over injunctive and declarative relief
Dissent: “Rule 23(a)(2) establishes a preliminary requirement for maintaining a
class action: “[T]here are questions of law or fact common to the class.” The Rule
“does not require that all questions of law or fact raised in the
litigation be common,” indeed, “[e]ven a single question of law or fact common
to the members of the class will satisfy the commonality requirement,”
Believed the Court mistakenly used Rule 23(b)(3) criteria into the
commonality inquiry of Rule 23(a). Case should be sent back to lower court
to determine if class certification is possible using rule Rule 23(b) (3)
Wal-Mart v. Dukes --- Update
• News on Wal-Mart v. Dukes (deadlines for suits)
• Role of the OFCCP on pay discrimination?
Secretary of Labor Hilda L. Solis in her address to the 22nd convention of the National
Employment Lawyers Association (NELA) on July 1, 2011:
Here's an important point: The Supreme Court's Wal-Mart ruling was limited to class
actions under Rule 23 of the Federal Rules of Civil Procedure. But my department's efforts
to eliminate workplace discrimination in America don't depend on this rule. …. We enforce
an executive order that says federal contractors can't discriminate. We have oversight over
any company doing at least $10,000 of government business a year. This means that Pat's
office can obtain class-wide relief for victims of pay discrimination without having to file a
class action lawsuit. … The Wal-Mart decision won't affect our ability to address pay
disparities on a broad scale — even if our lawyers have to tweak some of their legal
arguments based on the reasoning used in that case.
• Also, emphasized DOL’s commitment to seek remedies for pay discrimination against
women and minorities and promised to increase the percentage of pay investigation from
14% in the preceding year to 20 to 40% going forward.
Other comments by the Secretary of Labor:
• Obama administration remains committed to the Paycheck Fairness Act (failed by
two votes in Congress last year.)
Promised to:
• Close loopholes that give employers unjustified defenses to discrimination
• Strengthen the ban on retaliation against those who complain about unequal pay
• Rescind Bush-era guidelines preventing effective enforcement of equal pay laws
• Create more flexible workplaces so women don't have to choose between
motherhood and a fulfilling care
• Enforce a new provision in the Affordable Care Act that guarantees break time for
nursing mothers.
Basic factors for evidence of pattern or practice
discrimination
• Impact on actual applicants (“Flow” statistics)
• Impact on potential applicants
• Representation regarding a company’s workforce (“Stock” statistics).
Most commonly used comparison in EEO cases
Basically, this is a comparison between 2 numbers (often percentages)
• % reflective of the company’s work force
versus
• % indicative of the relevant population or labor force
 Or cross-job comparisons (e.g., between 2 jobs) within an organization
Some Key Issues/Questions
What determines the number to be used indicating the labor market?
• What geographical area is to be used? (e.g., a city, region, entire
nation)
• Who is counted in the geographical area? (e.g., everyone in the population, only
those with certain qualifications)
Who is counted within the company?
• Full-time workers only or do part-time employees get counted?
• Employees in all job classes, a categorization of certain job
classes, or only one job class?
• Employees in just one department, the entire facility, or
facilities across the nation?
Relevant Labor Market (cont):
Qualification requirement:
When special qualifications are required to fill particular
jobs, comparisons to the general population (rather than to
the smaller group of individuals who possess the necessary
qualifications) may have little probative value (from
Hazelwood v. U.S.)