EMPLOYMENT DISCRIMINATION OUTLINE – SPRING 2006 – PROFESSOR DIANNE AVERY

2-9-06:

1. Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. 1.1. The Act prohibits discrimination based on race, color, religion, sex or national

origin.

1.1.1. Sex includes pregnancy, childbirth or related medical conditions.

1.1.2. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment.

1.2. Employment agencies may not discriminate when hiring or referring applicants.

1.3. Labor Organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.

Defenses to Employment Discrimination - There are four basic types of defenses to employment discrimination claims.

1. Business necessity.2. Bona fide occupational qualification.3. Seniority Systems.4. After-acquired evidence of employee misconduct.

Business Necessity: The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. Business necessity is a defense to disparate impact discrimination.BFOQ: The bona fide occupational qualification (BFOQ) defense requires an employer to show that a particular skill is necessary for the performance of a particular job. The BFOQ defense is used in cases of disparate treatment discrimination.Seniority Systems: A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer. A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.

Under Title VII, the following two time frames applyNondeferral JurisdictionThere can be no more than 180 days from UEP (Unfair Employment Practices) to the EEOC (Equal Employment Opportunity Commission)Deferral Jurisdiction (NYS!!) longer time to file claim

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There can be no more than 300 days from UEP to the EEOC, also requirement that state have 60 days to try and resolve complaint, so it’s more like 240 days in reality.

There is a list of statutes on page 14 of the statute supplement

42 USC § 1981 (a) – This was in the Civil Rights Act of 1866This statute in conjunction with 1983 applies to any employer who has 1 employee or more. Title VII covers more things (i.e., sex, religion).

St. Francis v. Al-KhazrajiFacts: P was a U.S. citizen who was born in Iraq (he was an Arab). He brought a claim of racial discrimination against his employer.Issue: Whether an Arab can bring a racial discrimination claim under § 1981 when Arabs are considered Caucasian? (3 recognized races are Caucasian, Mongoloid & Negroid)Holding: A distinctive physiognomy is not essential to qualify for § 1981 protection.Reasoning: Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. RULE: § 1981 reaches discrimination against an individual because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of Homo sapiens.Related Issues: What actually constitute race? Someone claiming to be black but visually appearing to be white (Eminem? Wayne Brady? Ali G?) – What are they? Does it matter how they are perceived to be by the general community? What about Racial Fraud? When is someone in a protected status or not? Color discrimination - A black woman sued under Title VII that she was fired for not being African-centric enough by a black employer. She claimed that because she had died blonde hair and dressed “like a white bitch” were the reasons she was fired.

Procedure: Title VII claims can be brought in either Federal or State court. This is all in the enforcement provision of the statute. The EEOC is the one you have to go to. Look at EEOC.gov to see how to file out a complaint form. NYS: You are filing a sexual harassment lawsuit – which agency do you contact first? Go to state first. NYS has a 1 year filing period. In addition, NYS covers employers of 4 or more employees. What is covered under NYS law in addition to Title VII? Sexual Orientation, Marital Status, etc. What does the EEOC do? They investigate and either dismisses it if they find that there is no discrimination. If they find some discrimination, they can take it themselves.

National Railroad Passenger Corp. v. Morgan (does not apply to pattern & practice)Facts: Morgan, a black man, filed a racial discrimination suit against his employer. Morgan alleged that during the time period that he worked for Amtrak he was “consistently harassed and disciplined more harshly than other employees on account of his race. The D claimed that he did not file timely but he claims that these acts happened repeatedly.

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Issue: Can the Court consider conduct that would ordinarily be time-barred ‘as long as the untimely incidents represent an ongoing unlawful employment practice?’Holding: A discrete retaliatory or discriminatory act “occurred” on the day that it “happened.” A party therefore must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it. All prior discrete discriminatory acts are untimely filed and no longer actionable.Reasoning: The Court has repeatedly interpreted the term “practice” to apply to a discrete act or single “occurrence,” even when it has a connection to other acts. The Court has also held that discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period.RULE: Each discriminatory act starts a new clock for filling charges alleging that act. Each incident constitutes a separate actionable “unlawful employment practice.”Related issues: You can reach back for damage purposes.

Clackamas Gastroentology Associates v. Wells Facts: P was a bookkeeper who filed a claim after she was fired. The employer claimed that it wasn’t covered by Title I of ADA because it did not have 15 or more employees for the 20 weeks required by the statute.Issue: Whether 4 physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as “employees.”Holding: Case is remanded for reconsideration whether they were employees in light of the right-to-control test because there was not enough evidence on record to determine that at this point.Reasoning: The common law touchstone of control (how much control the employer has over the employee) should be used to determine the employment status. The mere fact that a person has a particular title should not necessarily be used to determine whether he or she is an employee or a proprietor, nor should an “employment agreement” decide it either. RULE: The answer to whether a shareholder-director is an employee depends on ‘all of the incidents of the relationship with no one factor being decisive.’

2-14-06:

Title VII – {§703(a)(1): Disparate Treatment}

Pretext (Single Motive)Mixed MotiveAfter-Acquired EvidencePattern or PracticeAffirmative ActionHarassment

- 703(a)(2) – Disparate Impact- 704(a) – Retaliation – Opposition & Participation

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1. Prima Facie Case (PF case); establish that P is:a. a racial minority/protected classb. Qualified for the jobc. Rejected/Fired (constructive discharge can also count although the

elements of constructive discharge need to be met)d. Remained opened

2. Legitimate non-discriminatory reason (defense) LNDR (not an absolute defense)3. Pretext – (P attempts to disprove LNDR) the purported discriminatory reason for

the actions (Their LNDR being not true makes it more likely that the pretext is true)

Two major theories of discrimination are disparate treatment and disparate impact. Disparate Treatment – the employer simply treats some people less favorably than others because of their race, color, sex, religion or national origin.

The critical issue the fact-finder must decide is whether the plaintiff has proven that an adverse employment practice is based upon unlawful discriminatory motivation.

Proving intentional discrimination can be difficult in disparate treatment cases, particularly in those cases in which a plaintiff must rely solely upon circumstantial evidence.

However, the law is well-settled, that, as in any civil case, a plaintiff may prove a claim of unlawful employment discrimination, including the ultimate fact of intentional discrimination, by direct or circumstantial evidence.

McDonnell Douglas Corp. v. Green Facts: P brings a claim under 704(a) retaliation for previous civil rights work and 703(a) because of his race (black). P was a civil rights activist and participated in unlawful protests (lock-in, etc.) against D. After the civil rights act was passed, P sought employment with D and was rejected. D contends they did not hire him because of his previous unlawful conductIssue: Whether D’s defense is valid against P, and if so, does it close the case?Holding: P did establish a prima facie case of racial discrimination and that petitioner successfully rebutted that case. The case must be retried with a fair opportunity for P to challenge D’s defense.Reasoning: After P establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee’s rejection. Employer’s reason is acceptable under Title VII because it never compels an employer to absolve and rehire an employee who has engaged in such deliberate and unlawful activity against it.RULE: P can establish a prima facie case by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from person’s of complainant’s qualifications. After a PF case is established, the burden then shifts to the Employer to give a reasonable, non-discriminatory reason.

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Related issues: There is a common law rule of employment at will. An employee can get fired at any time for any reason except for those protected under law (race, gender, etc.)

Texas Department of Community Affairs v. Burdine Facts: TDCA hired P, a female, as an accounting clerk and she alleged that the reason she was not promoted and then terminated were because of her gender in violation of Title VII. TDCA said they fired her because she was involved in a group of employees who did not get along well together.Issue: After the P has proved a prima facie case of discriminatory treatment, does the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed?Holding: No, when the plaintiff has proved a prima facie case of discrimination, the defendant only bears the burden of explaining clearly the nondiscriminatory reasons for its actions.Reasoning: McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally. RULE: Under Burdine, the ultimate burden of persuading the trier of fact, on all issues, remained with the plaintiff. Related issues: Under the new law, the plaintiff only has to prove the prima-facie case. Once she has, she has shifted the burden of persuasion and production to the employer. If the employer meets its burden, then under the new law the plaintiff must demonstrate (i.e., prove by preponderance) that there is pretext. Related issues: Title VII does not demand that Employers give preferential treatment to minorities. It does not matter if the job is filled after the iv element of the prima facie case is met.

2-16-06:

St. Mary’s Honor Center v. Hicks Facts: P, Hicks, a black man worked for as a correctional officer. Hicks had a change in Supervisors who then consistently reprimanded him (a series of disciplinary actions) until they finally fired him when he threatened one of his new Supervisors after being provoked (an exchange of heated words). P sues that they discriminated against him in violation of Title VII, 703(a)(1) & D gives a weak explanation for their actions.Issue: If the trier of fact rejects the employer’s asserted reasons for its actions; does that mandate a finding for the Plaintiff?Holding: NoReasoning: The fact-finder’s disbelief of the reasons put forward by the D may, together with the elements of the prima-facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination BUT just the rejection itself does NOT compel judgment for P.RULE: The fundamental principle of Rule 301 is that a presumption does not shift the burden of proof. The Title VII plaintiff at all times bears the “ultimate burden of persuasion.” It is not enough to disbelieve the employer; the fact-finder must believe the plaintiff’s explanation of intentional discrimination.

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Related issues: This case requests that there be circumstantial evidence that supports the pretext. (dorky people refer to this as pretext plus)

Reeves v. Sanderson Plumbing Products, Inc. Facts: P, Reeves who is a 57 year old man, worked for SPP. P was fired for failure to accurately keep attendance records of his subordinates. P contends that he was fired because of his age in violation of the Age Discrimination in Employment Act (ADEA) of 1967. P introduces evidence that he had accurately recorded the attendance and hours of the employees under his supervision. Issue: Whether the D is entitled to judgment when P’s case consists only of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the D’s legitimate, nondiscriminatory explanation for its action.Holding: YesReasoning: Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.RULE: The standard for judgment as a matter of law mirrors the summary judgment rule. The difference between this case and Hicks is in regard to pretext. For Hicks, it was the burden of proof after all the evidence had been submitted. In this case, it was how much evidence is required to satisfy a Rule 50 motion or the SJ rule (rule 56).

2-21-06: Evidence

McDonnell Douglas said that you need to establish (1) PF case (2) LNDR (3) PretextPrice Waterhouse said that you need direct evidence and that it was a “motivating factor” in the actCRA of 1991 said that direct evidence was not required for a mixed motive instruction

Structure for answering an exam question involving evidentiary issuesAsk the following questions:

- Nature of Evidence – direct / circumstantial- How many motives? – single / mixed- Causation – sole / but for / necessary & sufficient / primary / substantial /

a motivating factor / a factor- Proof structure:

o shift burden of production onlyo shift burden of persuasion only

Direct Evidence Cases

No need to make out a PF case as under McDonnell Douglas where there is direct evidence of discriminatory treatment. Once discriminatory treatment is proved by direct evidence, D cannot rely on the legitimate nondiscriminatory reason. D must prove that the same decisions would have been reached even absent the discrimination.

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Single Motive Cases

When there is one factor related to their termination and the P contends that it is discriminatory. The case turns on whether the motive was discriminatory or not.

Mixed Motive Cases

Where a plaintiff proves that an impermissible factor played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it hadnot taken into account the impermissible factor. Plaintiff does not have to show that the impermissible factor was the sole or motivating factor, only that it was a factor considered.

- After Price Waterhouse established “a motivating factor” requirement, O’Connor said in 1989 that it was a substantial factor with direct evidence.- See page 17 of Supplement for 1991 Civil Rights Act which was a direct response to Price Waterhouse. “MOTIVATING FACTOR”- Page 9 explains what demonstrating means- CRA of 1991:

§ 703(m) (p.17)§ 701 (m) (p.11)§ 706 (g)(2)(B) (p.26 - 27)

- There is still debate to this day as to what makes direct or indirect evidence in the circuit courts today- Facial discrimination – a policy that expressly discriminates – but you need to have a BFOQ (bona-fide occupational quality) that explains why you discriminate that way (i.e., waitress at Hooters)

- There is never a BFOQ for race or gender!!- What about, employer fires a woman because “no woman can do this job” – this is direct evidence – I trailed off at this point- Reliance on stereotypes: S.Ct. ruled, in Price Waterhouse, that this is evidence of discrimination- Epithets Direct --------------------------------------------------------------------------- Circumstantial(Facial) Statement of disc. animus, stereotypes, epithets, ?????? stray remarks

Desert Palace, Inc. v. Costa Facts: Desert Palace Inc. employed Costa (a lady) as a warehouse worker and heavy equipment operator. DP Inc. terminated Costa after a series of disciplinary sanctions. Costa alleged discrimination because of her gender.Issue: Whether P must present direct evidence of discrimination in order to obtain a mixed motive instruction.Holding: No

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Reasoning: P need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex or natural origin was a motivating factor for any employment practice.” RULE: Direct evidence of discrimination is not required in mixed-motive cases.Related issues: This case interpreted the CRA of 1991

2-23-06:1. Ash v. Tyson Foods 2. After acquired evidence – McKennon3. Pattern & Practice Cases – King Consolidated Services4. Affirmative Action – Iadmarco

- What about when someone lies on their resume? How does this impact their relief?- Pattern-or-Practice aka Systemic Discrimination: (these are disparate treatment) these are employment discrimination cases brought by the government. It is very hard! These are usually brought under class actions and result in large settlements. The P must show that the employer participated in purposeful discriminatory actions. You need something paramount to “a smoking gun.”

McKennon v. Nashville Banner Publishing Co. (After-Acquired Evidence)Facts: P was discharged from Banner as part of a work force reduction plan. P sued claiming age discrimination under ADEA. In preparation for the case, P testified that she had copied several confidential documents during the time of her employment for “insurance” purposes if she was fired. Banner immediately sent her a letter telling her that this was a violation of her job and she was terminated (again). Banner then filed for summary judgment based on this information claiming that they would have terminated her for this reason. Issue: Whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to the discharge if it had been discovered earlier. (this decision is related to relief ONLY)Holding: NoReasoning: McKennon’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. RULE: Remedial relief after an employee has been discovered to engage in wrongdoing must be handled by the judicial system in the ordinary course of further decisions. When an employee seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone. The burden of persuasion is on the D to prove that they WOULD have fired the person on those grounds at the time.

EEOC v. Consolidated Service SystemsFacts: EEOC brought this suit against a cleaning service (Consolidated) owned by a Korean immigrant, Hwang, who employs mostly just Koreans. Circumstantial evidence =

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(1) 73 % of the applicants for jobs with consolidated, and 81% of the hires were Korean and (2) Less than 1% of the work force is Korean and at most 3% of the janitorial and cleaner work force.Issue: Whether the circumstantial evidence compels an inference of intentional discrimination.Holding: No, there is no evidence that Hwang is biased in favor of Koreans.Reasoning: There are multiple nondiscriminatory reasons for the overrepresentation of Koreans in Consolidated’s workforce. Examples include (1) The owner relies on word of mouth to obtain employees rather than reaching out to a broader community less heavily Korean. It is the cheapest method of recruitment. (2) Employees relatives and friends apply for jobs, etc.RULE: You cannot infer discrimination from just an imbalance in the work force.

King v. General Electric Company (Pattern of Practice or Systemic)Facts: 2 groups of employees brought suit against their employees under ADEA. The trial court entered judgment on behalf of some of the plaintiffs and against other plaintiffs. Issue: DHolding: DReasoning: A plaintiff in an age discrimination case may prove his claim in two ways: by presenting direct or circumstantial evidence OR by an indirect, burden-shifting method of proof. Under either method, the ultimate burden of persuasion remains with the P at all times. RULE: Isolated, sporadic discrimination is not sufficient. Because of the seriousness of this charge, it is essential that plaintiffs adequately support allegations that an employer routinely engages in widespread discrimination.Related issues: This is treated only as a disparate treatment case and NOT a disparate impact case! Finding for the EEOC would force an active duty on Consolidated that would possibly drive him out of business.

2-28-06:Disparate Impact: Employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. AKA Adverse impact, disparate effect, unintentional discrimination or statistical discrimination

Griggs v. Duke Power Co.Facts: Before the CRA of 1965, the company openly discriminated on the basis of race in the hiring and assigning or employees (which were designated as “white-only”). After the CRA, they implemented a policy that required high school diplomas & passing of standardized tests for these jobs. Issue: Whether an employer is prohibited by the CRA of 1964 from requiring a high school education or passing a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify blacks at a substantially higher rate than white applicants, and (c) the jobs in question formerly

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had been filled only by white employees as part of a longstanding practice of giving preference to whites.Holding: YesReasoning: Congress passed the CRA (1965) and forbid using devices and mechanisms controlling force unless they are a demonstrably reasonable measure of job performance. The test must measure the person for the job and not the person in the abstract.RULE: An employment practice, facially neutral, which operates to exclude protected individuals, must be shown to be job-related. Purpose of act is to remove artificial, arbitrary, and unnecessary barriers to employment which operate invidiously to discriminate on the basis of protected classifications.Related issues: Griggs started Disparate Impact which was then codified by the 1991 CRA.

Intent in Disparate Impact cases: What are the intent issues? - Still have PF Case

1. identify policy or practice (703(a)(1)2. show degree of impact on protected class (703(a)(2)3. show causal relationship.

- Then the burden of persuasion shifts to the D to:(1) disprove P’s case and (2) prove job related (JR) & consistent with business necessity (BN).

- If P can show that there is an alternative practice with less adverse impact, this will work as a prima facie case but it is very rare.

3-2-06: Statistical Evidence

- The Nixon administration courted Southern Democrats opposed to civil rights (Dixiecrats), now we just call them Red-State Republicans, or, more simply, Republicans. - Pattern or Practice Cases: Burden of Proof on Plaintiff is preponderance of the evidence. Pattern & Practice requires more discovery than ordinary disparate treatment (DT) case because pattern may not be readily apparent. As an evidentiary matter the burden is more difficult. P must show that the disparate treatment is systemic. - P & P is something more than isolated, sporadic incidents, but a repeated, routine, or generalized set of incidents.P & P can fit under either disparate impact (DI) or DT analysis. Comparisons in workforce are made between those:

- within the employers workforce.- within the numbers of qualified minorities within a given geographical region.

1. Statistics2. Anecdotal3. Pre-Act hiring

Teamsters v. United States (1977)Facts: The issues here are under Title VII of the CRA of 1964 and involve an alleged employment practices engaged in by an employer and a union. The complaint charged

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that the company had followed discriminatory hiring, assignment and promotion policies brought against blacks at its terminal at Nashville, Tenn. It was charged as a “pattern and practice” of employment discrimination against blacks and Hispanics. Statistical evidence showed that blacks and Hispanics were given lower paying jobs than whites.Issue: Can statistical evidence be used to establish a prima facie case of racial discrimination?Holding: Yes.Reasoning: We have repeatedly approved the use of statistical proof where it reached proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection cases.RULE: Statistics can be used to make out a PF Case.Related issues: Mere imbalance is not determinative. Statistics are probative because they are often a telltale sign of purposeful discrimination. This is especially true where there is gross disparity, and there is other supporting evidence. Private parties may seek relief under pattern and practice, not just class action plaintiffs.

Hazelwood School District v. United States (1977)Facts: School with low percentage of black teachers.Issue: Whether a basic component of a finding of a pattern or practice of discrimination – the comparatively small percentage of black employees on Hazelwood’s teaching staff was probative force.Holding: No, it was notReasoning: Statistics come in an infinite variety. Their usefulness depends on all of the surrounding facts and circumstances. Only the trial court is in a position to make the appropriate determination after further findings. And only after such a determination is made can a foundation be established for deciding whether or not Hazelwood engaged in pattern or practice of racial discrimination in its employment practices in violation of the law.RULE: Must link gross disparity in numbers to some selection device.Related issues: Proper comparison is not between student racial composition, but between faculty composition and composition of qualified public school teachers in the relevant labor market. Once a statiscal disparity is shown, the defendant must be given a chance to show that the pattern is a result of pre-Act hiring rather than unlawful post-Act discrimination.

3-7-06:- Pattern & practice disparate treatment

- Teamsters: Black drivers v. Blacks in community- Hazelwood: Black teachers hired vs. # of black students in school vs. # of black

teachers in country & city- Disparate impact (class action)

- Dothard: # of women eligible vs. nationwide stats- Futile doctrine: why apply when you know that you don’t even meet the

requirements- Dothard v. Rawlinson: May show DI based on national height/weight statistics.

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- FUTILE DOCTRINE: No need to show actual comparison with job applicants because qualification might discourage many applicants who would otherwise be qualified.

Dothard v. Rawlinson (1977)Facts: Rawlinson, 22 year old female, sought employment with the Alabama Board of Corrections as a prison guard and brings this suit alleging that she had been denied employment because of her sex in violation of federal law (Title VII). She failed to meet the minimum 120 pound weight requirement established by an Alabama statute. The statute also establishes a height minimum of 5 feet 2 inches.Issue: Are these height/weight requirements a violation of Title VII of CRA (65)?Holding: Yes, Title VII of the CRA of 64 prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents.Reasoning: D produced no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. If the job-related quality that D identify as BFOQ; it could be achieved by adopting and validating a test for applicants that measure strength directly.RULE: Evidence that conspicuously demonstrates disparate impact is enough. D may not adopt a standard for height and weight as a substitute for a standard of strength. Rather, a test for strength that is measured directly satisfies the requirement.Related issues: 4/5th Rule: A selection rate for any race, sex, or ethnic group which is less than 4/5 or 80% of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact, while a greater than 4/5’s rate will generally not be regarded by the Federal enforcement agencies as evidence of adverse impact.

BFOQ Defense:- What comprises a BFOQ situation?- BFOQ is narrow & court has read it narrowly.- Congress intended the word "occupational" to mean related to the employee’s ability to do the job.- Johnson Controls' policy did not fall within the safety exception for BFOQ.- Safety exception is narrow. For example, in Dothard, safety of woman alone was not enough to justify the exclusion on basis of sex.- Sex not a proxy for some other qualification (like strength) because it excludes the individually strong woman.- Prior cases involving safety and pregnancy indicated that the safety of the fetus was the concern of the mother, and that the safety of the passengers dominated.- Safety of third parties in Dothard and Criswell was indispensable to the particular business.- BFOQ must relate to essence of business.- Safety exception only applies to situations where the employees’ pregnancy actually interferes with their ability to do the job.- PDA includes its own BFOQ standard: "unless pre., empl. differ form others in their ability or inability to work they must be treated the same as other employees for all employment-related purposes.

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- PDA prohibits BFOQ unless it relates to the essence of the particular business.

- Griggs(71): JR (job related) = BN (business necessity)- Albermale(72): JR (job related)- Dothard fn 14 – necessary – safe and efficient performance

Contreras v. City of Los AngelesFacts: Former and present city workers appeal from the district court’s judgment that they are entitled to no relief under Title VII of the CRA(1964) and 42 U.S.C. § 1981 for having lost their jobs by failing allegedly discriminatory civil service examinations.Issue: Did the City meet its burden of proving that the auditor examination was job related? What must an employer show to meet its burden of proving that pre-employment tests, having a disproportionate, adverse impact on a racial minority, are sufficiently justified by business need to survive a Title VII challenge?Holding: Yes, it was job related.Reasoning: Job-Relatedness -- Employer must demonstrate that a significant relation exists between the challenged selection device and important elements of the job or training program, not merely some rational basis for the practice.Employer does not have to demonstrate a perfect positive correlation, however.RULE: Three step validation procedure:

1. First specify particular train or characteristic.2. Then determine that the trait is an important element of work behavior.3. Finally, must demonstrate by professionally acceptable methods that the selection

device is predictive or correlative with the work behavior.

- CRA(91): eliminates race-norming and gender-norming (changing standards to have similar pass rates for groups; lower grades for blacks = higher grades for whites, less physically stringent requirements for women = tougher requirements for men)- Disparate impact DOES NOT require intent to be proved

3-9-06:- Watson was a 4/4 decision. They agreed on subjective analysis disparate impact but disagreed on Griggs approach to disparate impact. Watson did not reverse Griggs but began to put constraints on it.

Watson v. Fort Worth Bank & TrustFacts: There is an unchecked white supervisory corps whose subjective analysis leads to a racially adverse impact.Issue: What is the proper evidentiary standard to be applied in cases where disparate impact analysis applies to subjective criteria?Holding: There are high standards of proof in disparate impact cases.RULE: P’s burden of proof goes beyond just showing statistical disparities. The P must identify the specific employment practice that is challenged. P is responsible for isolating and identifying the specific employment practices that are allegedly responsible for the disparities. Causation then must be proved; the P must show both the statistical disparity of a kind and degree sufficient to show the practice has caused the exclusion of

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a protected group and disparities must be sufficiently substantial that they raise such an inference of causation. Courts are not obliged to assume the P’s statistical evidence is reliable. A 2nd constraint is the “business necessity” or “job relatedness” defense. (More on this in the following case)Related issues: Disparate Impact analysis is applicable to both objective and subjective employment practices.

Ward Cove Packing Co. v. AntonioFacts: Two companies operate salmon canneries in remote and widely separate areas of Alaska. Jobs at the canneries are of two general types: “cannery jobs” on the cannery line, which are unskilled positions; and “non-cannery jobs,” which fall into a variety of classifications. Non-cannery jobs are classified as skilled positions and are filled by mostly whites whereas the unskilled, cannery jobs are filled with non-whites which pay less. A class on non-white cannery workers who were employed at the canneries brought this Title VII action against petitioners claiming that their hiring/promotion practices were responsible for the racial stratification. Respondents also complained about segregated housing and dining facilities. This claim was brought under both the disparate-treatment and disparate-impact theories of Title VII liability.Issue: What is the proper application of Title VII’s disparate-impact theory of liability?Holding: It is not enough to establish a prima facie case of disparate impact by simply showing an unbalance in the percentage of non-white vs. white workers.Reasoning/RULE: If there is a racial imbalance in the workforce, (1) P must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. The employer then carries out the burden of producing evidence of a business justification for his employment practice (business-necessity defense). (2) Respondents may still be able to prevail after this defense, if they can produce a viable alternative: “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate hiring interests.” (3) If the petitioners refused to use this, it would prove that their practices were a pretext for discrimination. Related issues: Any alternative practice must be equally effective as their original hiring procedures. Business Necessity is a defense to a disparate impact claim and NOT a disparate treatment claim!!

- Wards Cove Packing Co. v. Antonio -- Disparate Impact Cases: Plaintiff must demonstrate the specific employment practice which results in the disparate impact.- New law changes this. Under the new law where the practices cannot be separated for analysis the whole procedure may be viewed as one practice.- Business necessity in Disparate Impact means the employment practice must serve, in a significant way, the legitimate employment goals of the employer.- No requirement of essential or indispensable.- To demonstrate pre-text the plaintiff must show that other tests or selection devices, without a similarly undesirable effect, would serve the employers legitimate goals.- Clearly Erroneous -- Standard of Review from Title VII cases. Findings of fact viewed under Clearly Erroneous standard.

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- Standard means that when, after reading the facts, the reviewing court is left with the impression an error has been made.- Where there are two permissible views of the evidence, a fact finders choice between them cannot be clearly erroneous. - Where finding is based on credibility determinations of the witnesses, unless there is internal inconsistency in the finding itself, it cannot be overturned on appeal.

3/21/06:- The key issues to pick up on in this section is when to bring an equal pay claim vs. a 1981 claim vs. etc. (disparate impact, disparate treatment)- The Supreme Court has adopted 3 standards of review in equal protection jurisdiction, ranging from deferential to strict. Strict scrutiny applies when a governmental rule, law or policy creates a suspect classification, such as race, burdens a fundamental right. (see page 895 of book for a detailed description of all 3)- Washington v. Davis -- Constitutional Standard for Disparate Impact under 14th Amendment (NOT TITLE VII). Don't need direct evidence of subjective intent. Test validated as to performance in academy, not job performance once out of academy. Court says this is enough. - You cannot get punitive damages against a Government entity but you can get compensatory damages- Under Title VII, you cannot sue individuals

Washington v. DavisFacts: Black police officers filed suit alleging that promotion policies were racially discriminatory. “Test 21,” which applicants were required to get at least 40 out of 80 on, was under issue here. The test was designed to test verbal ability, vocabulary, reading and comprehension.Issue: The validity of a qualifying test administered to applicants, Test 21, for positions on the force.Holding: Test is validReasoning: The Supreme Court has never held that the standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII. The central purpose of the equal protection clause of the 14 th Amendment is the prevention of official conduct discriminating on the basis of race. A law that is neutral on its face and serving ends otherwise within the power of the government to pursue, is NOT invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. RULE: Under Title VII, discriminatory purpose need not be proved BUT under the 5th

and 14th Amendments, discriminatory purpose must be proved.Related issues: For constitutional claims of discrimination, there must be discriminatory purpose or intent. Purpose may be inferred from the totality of the relevant facts. Disparate impact is not irrelevant, but it is not the touchstone of an invidious racial discrimination forbidden by the Constitution.

3-28-06:

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- Affirmative Action: A race or sex-specific plan that is designed to provide a remedy for the present and continuing effects of historical overt discrimination against blacks and women, as well as the effects of discrimination motivated by unconscious biases and stereotypical assumptions. - Some commentators characterize affirmative action as “reverse discrimination” because employers are permitted to take the race or sex of the applicant or employee into consideration as a factor in making employment decisions.- Equal protection challenges (14th & 5th Amendments) to affirmative action (see case below)

Wygant v. Jackson Board of EducationFacts: School board adopted race-based preferences in determining which teachers to lay off. They layer off white teachers before black ones because they felt that the kids needed minority role models.Issue: Is this plan Constitutional?Holding: NoReasoning: There needs to be a compelling interest (supported by a compelling state purpose) and the means that are chosen to accomplish that purpose need to be narrowly tailored. Their stated purpose was not compelling enough.RULE: The requirements for a race-based classification plan is (1) it is supported by a compelling state purpose and (2) the means that are chosen need to be narrowly tailored.

- Affirmative action and Title VII’s equality principle

United Steelworkers of America v. WeberFacts: There is an affirmative action plan at the plant that reserves for black employees 50 % of the openings in an in-plant craft training program until the percentage of black craft workers in the plant is commensurate with the percentage of black in the local labor force.Issue: Whether Congress, in Title VII, left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories.Holding: Yes they did. Title VII does not prohibit such race-conscious affirmative action plans.Reasoning: The prohibition against racial discrimination in §§ 703(a) and (d) of Title VII must therefore be read against the backdrop of the legislative history of Title VII. Congress’ primary concern was with “the plight of the Negro in our economy” – to open employment opportunities for Negroes. The words intended to cause employers & unions to self-evaluate and implement practices to eliminate this inequality. The plan does not unnecessarily trammel the interests of white employees. See rule below.RULE: This affirmative action plan does not violate Title VII’s equality principle ALTHOUGH that doesn’t mean ALL affirmative action plans do not violate Title VII. This one doesn’t because it doesn’t require the discharge of white employees to be replaced with blacks, nor does it create an absolute bar to the advancement of white

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employees & the plan is only temporary (coming to an end once the representation on the internal work-force more closely matches the outside labor force).

Johnson v. Transportation AgencyFacts: Transportation Agency promulgated an affirmative action plan on their own. TA selected a woman over a male applicant (Johnson) for the position of a dispatcher. Johnson then sued under Title VII.Issue: Whether TA impermissibly took into account the sex of the applicants in terms of their hiring decision in violation of the CRA of 1964.Holding: NoReasoning: This affirmative action plan represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in TA’s work force.

3-30-06:- “Free market” vs. equality re: sex- sex-based wage disparity – segregated jobs- wage premium for just a male – (cornings glasswork case)- Work performed during day and night, when equal, demands equal pay. Where night inspectors, who were male, were paid more than day inspectors, who were female, there was a violation of the act. The only way to fix it was to equalize pay between men and women for same work.- This all exists within employment at will but Title VII prevents them from firing her because of “intentional discrimination” as in it prohibits retaliation for asserting your rights-

The Equal Pay Act of 1963

Corning Glass Works v. BrennanIssue: Whether Corning violated the Equal Pay Act of 1963 by paying a higher base wage to male night shift inspectors than it paid to female inspectors performing the same tasks on the day shift, where the higher wage was paid in addition to a separate night shift differential paid to all employees for night work.Holding: Yes, they violated the Equal Pay Act. Reasoning: The Company’s continued discrimination in base wages between night and day workers, though phrased in terms of a neutral factor other than sex, nevertheless operated to perpetuate the effects of the company’s prior illegal practice of paying women less than men for equal work.RULE: The Equal Pay Act is broadly remedial and it should be construed and applied so as to fulfill the underlying purpose which Congress sought to achieve. Must equalize pay between men and women for equal work.Related issues: Men can also sue under this act against women receiving higher wages for the same work.

- Bennett amendment made the affirmative defenses of the EPA applicable to Title VII.

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County of Washington v.GuntherFacts: Women, who were employed as guards in female section of petitioner county's jail until that section was closed, filed suit under Title VII of the 1964 Civil Rights Act for back pay and other relief, alleging that they were paid lower wages than male guards in the jail's male section and that part of this differential was attributable to intentional sex discrimination. The United States District Court rejected the claim, and plaintiffs appealed. The Court of Appeals reversed and denied a petition for rehearing. Issue: Does a Title VII sex-based wage discrimination claim require proof that the P and an opposite-sex comparator received disparate pay for “substantially equal” jobs?Holding: No, it does not require proof. The Supreme Court held that the Bennett amendment does not restrict Title VII's prohibition of sex-based wage discrimination to claims of equal pay for “equal work.” Reasoning: The failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination.RULE: Claims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differentials attributable to seniority, merit, quantity or quality of production, or “any other factor other than sex.”Related issues: Claims for sex-based wage discrimination can be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job. This significantly broadened the reach of Title VII sex discrimination law beyond the EPA’s narrow “equivalence” standard.

4-4-06:- Equal Pay Act: - Manhart (1978)- PDA (1978)- Newport news- Bartell- Facial discrimination: when there is no question that there is discrimination and the only issue requiring to be answered is whether it is for the wrong reasons- City of LA v. Manhart: May not treat individuals as components of a protected class. City argued that longevity, not sex, was being used. Court did not accept the argument. Actuarial figure based on sex and sex alone.

Sex Discrimination

City of L.A. v. Manhart (1978)Facts: Los Angeles Department of Water and Power required its female employees to make larger contributions (15% more) to its pension fund than its male employees because it did a study that showed that women would live longer, thereby withdraw more from the pension. These contributions were withheld from the checks so it made woman paid less than a man working the same job.

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Issue: Whether this practice discriminated against individual female employees because of their sex in violation of §703(a)(1) of Title VII.Holding: Yes, the Department’s practice violated Title VII.Reasoning: In this case, The Department cannot make them contribute more because the class as a whole lives longer. Such a practice does not pass the simple test of whether the evidence shows “treatment of a person in a manner which but for that person’s sex would be different.” Title VII precludes treatment of individuals as simply components of a group. For instance, if height is required for a job, a tall woman cannot be turned down because women, on average, are shorter. Even a true generalization about the class is insufficient reason for disqualifying an individual to whom the generalization does not apply.Related issues: Equal Pay Act requires employers to pay members of both sexes the same wages for equivalent work except when the differential is pursuant to one of four specified exceptions: (1) Seniority system (2) Merit system (3) Payment by amount of output or quality (4) Differential based on any factor other than sex. Cost is never a justification for violation of Title VII.

Discrimination on the basis of pregnancy

Newport News v. EEOCFacts: When the Pregnancy Discrimination Act became effective, the company amended its health insurance plan to provide its female employees with hospitalization benefits for pregnancy-related conditions to the same extent as for other medical conditions. The plan continued, however, to provide less favorable pregnancy benefits for spouses of male employees. The male employees challenged the new plan under Title VII.Issue: Whether petitioner has discriminated against its male employees with respect to their compensation, terms, conditions, or privileges of employment because of their sex within the meaning of §703(a)(1) of Title VII.Holding: The pregnancy limitation in this case violates Title VII by discriminating against male employees.Reasoning: PDA prevents discrimination on the basis of pregnancy. Firm’s policy operated to provide benefits less favorable to the spouses of male employees. Firm discriminated against male employees because it afforded less protection to male employees than to female employees. Does not pass the simple test of whether the evidence shows that treatment of a person in manner but for the person’s sex would have been different. This plan provides limited pregnancy related benefits for employees’ wives, and affords more extensive coverage for employees’ spouses for all other medical conditions requiring hospitalization. It unlawfully gives married men a less inclusive benefits package less than it does for its married female employees.RULE: The package must provide the same pregnancy coverage to male employee’s female spouses that it does to female employees.

Erickson v. Bartell Drug Co.Facts: Employee sued employer, alleging that employer's prescription drug plan discriminated on basis of sex by selectively excluding coverage for prescription contraceptives.

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Issue: Whether the selective exclusion of prescription contraceptives from defendant’s generally comprehensive prescription plan constitutes discrimination on the basis of sex.Holding: On employee's motion for summary judgment, the District Court held that exclusion of prescription contraceptives from generally comprehensive prescription drug plan offered by employer discriminated against female employees on basis of sex, and thus violated Title VII as amended by Pregnancy Discrimination Act (PDA).Reasoning: When an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell’s choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory.RULE: There is a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.

4-6-06:- Can you discriminate against a young woman who has a good potential to become pregnant in the near future? Of course not!- Does FMLA do anything to lessen the avoidance of hiring women who could become pregnant soon?- The FMLA requires employers with over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. Also works for new babies (either adopted or parent’s childbirth)- The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work.- FMLA tries to change the playing field by making it equal but there still is a social interpretation of men taking leave to watch their newborns

Family Medical Leave Act

Nevada Dept. of Human Resources v. HibbsFacts: Former employee of the Nevada Department of Human Resources brought suit against Department, Department's Director, and a supervisor, alleging violation of the Family and Medical Leave Act (FMLA). The United States District Court for the District of Nevada entered summary judgment in favor of defendants, and plaintiff appealed. The Ninth Circuit Court of Appeals reversed. Issue: Whether an individual may sue a State for money damages in federal court for violation of § 2612 (a)(1)(C).Holding: The Supreme Court held that state employees may recover money damages in federal court in the event of the state's failure to comply with the family-care provision of the Family and Medical Leave Act (FMLA). Affirmed.Reasoning: The States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment.

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RULE: There will be no exam question on this but be aware of this as another backstop onto sex discrimination claims. Not an exam question = erased from memory!!

Bona Fide Occupational Qualification

- The statutory loophole that employers, and the courts, turned to in order to justify-and preserve-sex-based practices that limited women’s employment opportunities is § 703(e)(1) of Title VII, the “bona fide occupational qualification” or BFOQ defense: it shall not be an unlawful employment practice for an employer to hire and employ employees on the basis of religion, sex or national origin in those certain instances where those factors are a BFOQ reasonably necessary to the normal operation of that particular business or enterprise.

UAW v. Johnson Controls(This is an important case!)Facts: Class action was brought challenging employer's policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding Occupational Safety and Health Administration (OSHA) standard. The United States District Court granted summary judgment for employer. On appeal, the Court of Appeals affirmed.Issue: Does Business Necessity apply to a fetal protection policy which only operates on women? May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive?Holding: Reversed and remanded. The Supreme Court held that: (1) employer's policy was facially discriminatory, and (2) employer did not establish that sex was a bona fide occupational qualification (BFOQ).Reasoning: Title VII prohibits sex-based classifications in terms and conditions of employment. Lack of malevolent motive is not enough to convert a facially discriminatory policy into a neutral policy. Benign motives cannot allow consideration of BN (business necessity) defense. Does not pass the simple test of whether the evidence shows treatment of a person in a manner which but for that person's sex would be different.RULE: The language of both the BFOQ provision and the PDA which amended it, as well as the legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. Related issues: Professor says that this case should have been filed as a disparate impact case involving a discriminatory effect of fertile women and that Johnson would have raised a business necessity defense.4-11-06:- Sexual Harassment: Quid pro quo and hostile work environment -> definitions on p. 444 of text- The elements of sexual harassment are present in note # 1 on p. 453 of the text- Two categories of sexual harassment:- Quid Pro Quo: Conditions an employment opportunity or benefit on the exchange of sexual favors. (QPQ)- Hostile work environment: Creates an atmosphere of hostility. (HWE)

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- What triggers Title VII in the following case?

Meritor Savings Bank v. VinsonFacts: Female bank employee brought sexual harassment suit against bank and supervisor under employment discrimination statute. The United States District Court for the District of Columbia entered judgment in favor of employer and supervisor and employee appealed. The Court of Appeals reversed and remanded. Issue: Is this actionable under Title VII?Holding: Affirmed and remanded.Reasoning: Willingness of plaintiff, in submitting to the sexual harassment, is not material. Ware believes "coercion" is a better standard. For sexual harassment to be actionable, it must be sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment and create an abusive working environment. Gravamen of complaint is that sexual advances were unwelcome.RULE: The Supreme Court, Justice Rehnquist, held that: (1) claim of hostile environment sexual harassment is a form of sex discrimination actionable under Title VII employment discrimination statute; (2) employee's allegations were sufficient to state claim for hostile environment sexual harassment; (3) district court's erroneous belief that sexual harassment claim will not lie absent economic effect on employee required remand; (4) correct inquiry on issue of sexual harassment was whether sexual advances were unwelcome, not whether employee's participation in them was voluntary; (5) evidence of employee's sexually provocative speech and dress was not per se inadmissible; and (6) mere existence of grievance procedure in bank and bank's policy against discrimination, coupled with employee's failure to invoke that procedure, did not necessarily insulate bank from liability.Related issues: No per se rule against admitting evidence of plaintiff's dress, manner of speech, or conduct. Employer Liability -- courts are to examine the common law of agency for guidance in finding the employer liable. This case established Hostile Work Environment in addition to Quid Pro Quo.

Harris v. Forklift Systems, Inc.Facts: Former employee filed Title VII action, claiming that the conduct of the employer's president amounted to "abusive work environment" harassment on the basis of gender. The United States District Court dismissed the action pursuant to a report and recommendation of a United States Magistrate Judge. Former employee appealed. The Court of Appeals affirmed. Issue: Whether conduct, to be actionable as “abusive work environment” harassment (no quid pro quo harassment issue is present here), must “seriously affect an employee’s psychological well-being” or lead the plaintiff to “suffer injury.”Holding/ RULE: The Supreme Court held that: (1) to be actionable under Title VII as "abusive work environment" harassment, the conduct need not seriously affect an employee's psychological well-being or lead the employee to suffer injury; (2) the Meritor standard requires an objectively hostile or abusive environment as well as the victim's subjective perception that the environment is abusive; and (3) whether an environment is sufficiently hostile or abusive to be actionable requires consideration of all the circumstances, not any one factor.

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Judgment of Court of Appeals reversed and case remanded.

- 5th Circuit has said same sex sexual harassment claims are not actionable under Title VII- Other circuits have said it applies only if the harasser can be proven to be homosexual meaning that there was some sexual attraction- Look to the Oncale opinion for more on this subject- Scalia states there are 3 avenues for same-sex harassment: (1) harasser = homosexual (2) harasser is motivated by general hostility to the presence of that gender (even if it’s the same sex) (3) Mixed sex workplace – comparative analysis “but for”- SONDA – New York’s Human Rights law that protects gay rights

4-18-06:- Read Statutory Supplement pp. 148 – 62: EEOC - Enforcement Guidelines- We are dropping age discrimination- Ch. 15 Retaliation

Employer liability for discriminatory harassment- Employer Liability: courts are to examine the common law of agency for guidance in finding the employer liable.- Meritor held that “workplace sexual harassment is illegal” Employers are not always liable for sexual harassment by their supervisors NOR is absence of notice to an employer insulate that employer from liability- Your first question in these type questions should always be – who is the harasser? (coworker or supervisor – the standard is negligence for holding an employer liable for a coworker’s harassment which is the lowest standard to prove) What is the relationship?- Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.- Harassment by Co-Workers- Employer generally liable only if employer knew or should have known and failed to take action. - Employee notice to supervisor is notice to Employer under agency law.- Employers may also be liable for harassment by non-employees.- Same-sex harassment violates Title VII.- For Exam Question: Ask what was going on in fact pattern actual harassment or not?- Then ask who is the harasser (H/R) and what is the relationship to the victim?- USE CHART HANDOUT FOR EMPLOYEE LIABILITY OF SEXUAL HARASSMENT- The case below involves a challenged case of quid pro quo because the woman quit and was not fired after some comments implied that sexing (dressing like a ho’ for sho’) it up could improve her future promotional opportunities. She never complained. The court with this opinion creates new law!

Burlington Industries, Inc. v. EllerthFacts: Employee who had suffered no adverse job consequences as result of alleged sexual harassment by supervisor brought suit against former employer under Title VII alleging that sexual harassment forced her constructive discharge. The United States

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District Court entered summary judgment in favor of employer. The Seventh Circuit Court of Appeals reversed. Issue: Whether, under Title VII of the CRA of 1964, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions.Holding/Rule: YES! The Supreme Court held that: (1) employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate or successively higher authority over employee; (2) in those cases in which employee has suffered no tangible job consequences as result of supervisor's actions, employer may raise an affirmative defense to liability or damages; and (3) affirmative defense requires employer to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided or to avoid harm otherwise.

- If it’s coworker harassment, it is a negligence standard, the P must prove that employer knew or should have known and failed to act

Faragher v. Boca RatonFacts: Former city lifeguard sued city under Title VII for sexual harassment based on conduct of supervisors. Following bench trial, the United States District Court entered judgment for lifeguard. A panel of the Court of Appeals reversed in part. After vacation of panel opinion and granting of rehearing en banc, the Court of Appeals reversed decision of District Court in part. Issue: What are the circumstances under which an employer may be held liable under Title VII of the CRA of 1964, for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?Holding: An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim. RULE: The Supreme Court held that: (1) employer is subject to vicarious liability under Title VII to a victimized employee for actionable discrimination caused by a supervisor, but employer may raise an affirmative defense that looks to the reasonableness of employer's conduct in seeking to prevent and correct harassing conduct and to the reasonableness of employee's conduct in seeking to avoid harm, and (2) city was vicariously liable to lifeguard in view of its failure to exercise reasonable care to prevent harassing behavior.

4-20-06:Constructive Discharge

- The Ellerth/Faragher framework: Delineate two categories of sexual harassment claims: (1) those alleging a “tangible employment action,” for which employers may be

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held strictly liable; and (2) those asserting no tangible employment action, in which case employers may assert the affirmative defense. - The key issues here are: Into which Ellerth/Faragher category hostile-environment constructive discharge claims fall, and what proof burdens the parties bear in such cases. - In Ellerth and Faragher, the Court invoked the principle drawn from agency law that an employer is liable for the acts of its agent when the agent is “aided in accomplishing the tort by the existence of the agency relation.” - When a supervisor engaged in harassing conduct takes a tangible employment action against a subordinate, the Court reasoned, it is beyond question that the supervisor is aided by the agency relation. - A tangible employment action (definition!), the Court stated, is an “official act of the enterprise” and “fall[s] within the special province of the supervisor.”- In contrast, when supervisor harassment does not culminate in a tangible employment action, Ellerth and Faragher explained, it is less obvious that the agency relation is the driving force.- When no tangible employment action is taken, an employer may defeat vicarious liability for supervisor harassment by establishing the two-part affirmative defense. - That defense accommodates the “avoidable consequences” doctrine Title VII “borrows from tort law,” by requiring plaintiffs reasonably to stave off avoidable harm. - Ellerth and Faragher clarify, however, that the defending employer bears the burden to prove that the plaintiff-employee unreasonably failed to avoid or reduce harm.- *** This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. Pennsylvania State Police v. SuderFacts: Female former employee sued state police, alleging sexual harassment by her supervisors resulting in constructive discharge, in violation of Title VII. The United States District Court granted summary judgment for state police. Employee appealed, and the United States Court of Appeals reversed and remanded. Holding: The Supreme Court held that: (1) Ellerth/Faragher affirmative defense was available, and (2) fact questions precluded summary judgment. Vacated and remanded.RULE: To establish “constructive discharge,” a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may assert the Ellerth/Faragher affirmative defense to such a claim unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.Related issues: Questions to ask: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? Also judge the employee/employers responses/reactions.

4-25-06:

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- For Final, you will be given 2 questions- Pick a route, and refer to opinions- Do not repeat the facts! Please do discuss the facts in the context of your analysis and legal issues- Abbreviations are fine- Do not give citations to cases!- Do not necessarily give names of cases (only S.Ct cases if necessary & 1 name is acceptable)- Use ink, not pencils!!- You will use ALL your time so be prepared to write 2 hours per each question- She’s looking for good smart analysis – there is no model answer- You will be expected to know sexual harassment stuff and be able to apply it in a different context dealing with racial, religious or national origin harassment- GET WITH STUDY GROUP!

Discrimination because of religion- “Religion” = Observance & practice as well as belief unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.- The courts do not want to evaluate the various tenets of the different religions- Hypo: KKK as a religion? No, because it is too political…….see page 583- There are a bunch of examples on these pages- Title VII says that you don’t need to accommodate the belief but rather the practice if there isn’t an undue burden on the employer- A Church wants to employ people in its religion (Amos case on page 586) - FDIC approved bank cannot discriminate on basis of religion whereas a church that falls under a religious entity can

Heller v. EFB Auto Co.Facts: Jewish former employee brought action against former employer for religious discrimination under federal and Oregon law and wrongful termination under Oregon common law. The United States District Court entered judgment for former employer on religious discrimination claims and entered jury verdict for former employer on wrongful termination claim. Former employee appealed. Issue: What constitute a prima facie case of religious discrimination under Title VII?Holding/RULE: The Court of Appeals held that: (1) employee established prima facie case of religious discrimination; (2) employer did not make reasonable efforts to accommodate employee's attendance at ceremony in which his wife and children were converted to Judaism; and (3) jury instructions regarding wrongful termination claim, which was derivative of claim under federal Civil Rights Act, did not reflect nature of liability under Act. Reversed and remanded.

Trans World Airlines, Inc. v. HardisonFacts: Action was brought by former airline stores clerk against airline and labor organizations on claim of religious discrimination in connection with his discharge. The

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District Court, entered judgment for defendants and stores clerk appealed. The Court of Appeals reversed the judgment for the airline. Issue: What is the extent of the employer’s obligations under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.Holding/RULE: The Supreme Court held that: (1) seniority system itself, as set out in collective bargaining agreement, represented a significant accommodation by employer to the needs, both religious and secular, of all of airline employees; (2) airline could not be faulted for having failed itself to work out a shift or job swap for stores clerk whose religious beliefs prohibited him from working on Saturdays; (3) absent a clear and express indication from Congress, an agreed-upon seniority system in collective bargaining agreement was not required to give way so that airline employer could accommodate stores clerk whose religious beliefs prohibited him from working on Saturdays; (4) absent a discriminatory purpose, under the Civil Rights Act, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences, and (5) airline was not required to permit stores clerk to work a four-day week if necessary in order to avoid working on his Sabbath or to replace employee on his Saturday shift with other available employees through payment of premium wages.Reversed.

Ansonia B.O.E. v. PhilbrookFacts: High school teacher brought action under Title VII alleging that school board's policy of allowing only three days of paid leave for religious observance and not allowing three days of paid leave for personal business to be used for religious observance conflicted with his religious beliefs which prohibited him from engaging in secular employment on holy days, more than three of which occurred during school year. The United States District Court held that teacher failed to prove religious discrimination, and teacher appealed. The Court of Appeals reversed and remanded. Issue: Whether the Court of Appeals erred in finding that Philbrook established a prima facie case of religious discrimination and that an employer must accept the employee’s preferred accommodation absent proof of undue hardship.Holding/RULE: The Supreme Court held that once Court of Appeals assumed that school board, by means of its leave policy, offered high school teacher reasonable alternative to accommodate his religion, it should not have required board to demonstrate hardship of teacher's alternatives; therefore, remand was required.Remanded.

4/27/06:Discrimination because of religion

- There will be an exam question on race, religion, sex, etc. – all the stuff that we covered- UPS was sued by a Rastafarian under a religion claim who alleged that they refused to hire him for his beard which his religion refuses to trim. It is a sign of piety. <- I made that part up- UPS has a policy that requires its drivers to be clean shaven- Should Employee have brought this as a disparate impact claim which would have then allowed the Defense to use the business necessity claim?

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- Sometimes, there is a threshold question of whether it is a sincere religion which is not in question in this particular case- More cases on ReligionCorp of Mormons v. Famous Amos: Religious organization is exempted from Title VII where hiring for both religious and nonreligious jobs. § 703 does not violate the Establishment Clause under a Lemon analysis: Does the law serve a secular legislative purpose. In essence, does the law promote a particular religious viewpoint?- Law must have an effect which neither advance nor inhibit religion.- To have a forbidden effect it must be fair to say that the government itself has advanced religion through its own activities and influence.- O'Connor confines opinion to not-for-profit activities. TWA v. Hardison: Law requires reasonable accommodation of employees’ religious beliefs. Employer has a duty to accommodate but accommodation must not causethe employer undue hardship. Here, could not force the airline to override seniority provisions in the collective bargaining agreement.Ansonia v. Philbrook: Any reasonable accommodation satisfies the employers’ burden. Employee may not hold out for his preferred accommodation. Smith v. Pyro Mining Co.: PF Case for Religious Discrimination: Plaintiff holds a sincere religious belief that conflicts with an employment requirement. He has informed the employer about the conflict. He was discharged or disciplined for failing to comply with the conflicting requirement. Employer is free to choose among the least burdensome reasonable accommodation. EEOC v. Ithaca Industries: Court had held that an absolute refusal to work on Sunday was per se unreasonable. Appeals court held differently. Must accommodate. IAM v. Boeing: Where an employee has a strong religious view that forbids her from paying union dues, she may make a charitable contribution instead. NLRA does not preempt Title VII. Feldstein v. Christian Science Monitor: Religious organizations may discriminate on the basis of religion at no penalty. End of story.- I really like this Professor. She is really interested in the material and very nice to the students. Unlike other Professors, she acts like she’s here to actually TEACH which is a nice change from the arrogance and unprofessional actions of almost every other incompetent professor (well, more like ½ to 2/3) that I’ve had here.- We will have an exam question of religion in a public setting – see public guidelines on 626- Douchebaggery on the part of an employer is not illegal – employment at will but cannot conflict with laws regarding discrimination law- Harassment on the basis of sexual orientation is not good so stop doing it!- CANNOT HAVE A BFOQ DEFENSE IN A CASE INVOLVING RACE OR COLOR- NO CITIZENSHIP QUESTION ON EXAM

- New Topic: National OriginErebia v. Chrysler Corporation: Hostile work environment claim under National Origin. Threshold -- something more than isolated or sporadic shop talk. Must show: (1) Environment was hostile (2) Reported it to bosses (3) Management failed to take

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adequate steps to remedy. Approaches the constructive discharge test, but is somewhat less than that. - If a supervisor had engaged in the conduct it would have been imputed to the Employer. Where employer knew about it and took no action, employer is liable.Gutierrez v. Muny Court of LA: English only rule has adverse impact on protected groups and should be closely scrutinized. Disparate impact analysis works here. Facially neutral policy works to disadvantage of Hispanics. No showing of business necessity.- Immigration Reform & Control Act effect on discrimination: May not discriminate on the basis of citizenship status if this is pretext for national origin discrimination. May not discriminate against a non-citizen if they are becoming a citizen using the IRCA approach.LULAC v. Pasadena: Janitors dismissed for giving false SSN information. Could notget SSN’s yet under IRCA. Since we’re applying under IRCA, antidiscrimination provisions were in effect and this was discrimination based on citizenship status.- English-only requirement for bilingual employees discussed below

Garcia v. Spun Steak Co.Facts: Spanish-speaking employees brought action against employer, alleging that English-only policy violated Title VII. The United States District Court granted summary judgment for employees, and employer appealed.Issue: Whether an employer violates Title VII of the CRA (1965) in requiring its bilingual workers to speak only English while working on the job.Holding/RULE: The Court of Appeals held that: (1) disparate impact claim may be based upon challenge to practice or policy that has significant adverse impact on “terms, conditions, or privileges” of employment of protected group under Title VII; (2) employees who spoke both Spanish and English failed to show that employer's requirement that bilingual workers speak only English while on job had significant adverse effects on terms, conditions, or privileges of their employment; and (3) genuine issue of material fact existed as to whether employee who spoke no English was adversely affected by English-only rule. Reversed and remanded.Related issues: Still being debated in the higher court

Hasham v. California State Board of EqualizationFacts: Employee brought Title VII action against employer alleging discrimination based on his Pakistani national origin. Following jury trial, the United States District Court entered summary judgment in favor of employee. Employer appealed. The Court of Appeals held that: (1) evidence that employer intentionally discriminated against employee based on national origin was for jury; (2) time reports showing that successful candidate had failed to timely complete several audits was relevant; (3) instruction that jury did not have to find for employee even if it found that reasons presented by employer for nonpromotion were not its real reasons was not warranted; and (4) fact that District Court vacated $350,000 compensatory damages award did not compel finding that liability verdict was based on passion.Holding: Affirmed.

5/2/06:

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- We are not covering age discrimination on the exam!!- p. 18 of supplement – statutory provisions of Title VII- It shall be unlawful “to discriminate against employees or applicants”- What is an employee? Former employees? - “Because he opposed or participated” – what does discriminate mean?- Opposition conduct v. Participation conduct – KNOW THE DISTINCTION- Burlington Northern v. White: Woman was subjected to harassment by mail employees at railroad who told her they didn’t belong there. She filed a complaint with the EEOC and was suspended for insubordination shortly afterwards for something “unrelated.”-Suspension was ultimately reversed and she was awarded back pay- What is sufficient to trigger an adverse retaliation claim?- Any material adverse change in the terms of employment including temporary suspension, etc. that was reasonably likely to deter the plaintiff from engaging in a particular protected activity (complaining to your employer about harassment, filing a charge with the EEOC, ETC.) ultimate employment decision.- Broadest EEOC standard- What is an ultimate employment decision? Look to previous definition of a tangible employment decision- THIS IS AN OPEN QUESTION AND WE DON’T KNOW (a hiring, firing, demotion are easy to qualify but giving someone different assignments is fuzzy)- What are the prima facie elements of a retaliation case? See below- Defense needs to be a Legal non-discriminatory reason and if that works, then P must establish the pretext- Does 703m (mixed motive) and 706g2b (limiting relief) apply? If not, Courts will apply old Price-waterhouse which means they can win if they prove they would have fired the employee anyway.- The Supreme Court hasn’t decided

ELEMENTS OF A PRIMA FACIE RETALIATION CASE

Love v. RE/MAX of America, Inc.Facts: Female employee brought suit against employer under statute prohibiting employment discrimination and under Equal Pay Act. After bench trial, the United States District Court rendered oral decision in which he determined that employer had not discriminated against employee or violated Equal Pay Act with respect to her salary, but that her discharge was retaliatory and directed award of damages and attorney fees. Employer appealed. The Court of Appeals held that: (1) evidence supported finding that employee asserted her rights in good faith, but mistaken, belief that statutes had been violated, and (2) evidence supported finding that causal connection existed between employee's conduct and employer's action in discharging her.Holding: Affirmed.RULE: Courts adjust the burden-shifting scheme of McDonnell Douglas v. Green for retaliation cases. The P must first establish a prima facie case of retaliation which is (1) that she was engaged in statutory protected activity, (2) that she suffered an adverse employment action at the hands of the employer; and (3) that a causal link exists between the protected activity and the adverse action.

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RETALIATION: PARTICIPATION VS OPPOSITION CONDUCT

- Woodson v. Scott Paper says the following- Participation: (1) An employee who files charges with the EEOC or with a similar state agency is protected by § 704(a) from employer retaliation. (2) Also protects employees who participate in a Title VII investigation, proceeding, or hearing on their own behalf or on behalf of another. (3) If employee encourages co-workers to enforce their Title VII rights, refuses to sign an inaccurate affidavit on behalf of the employer, testifies on behalf of a co-worker, aids the state or federal investigating authority, participates in a conciliation meeting on behalf of a co-worker, submits affidavits on behalf of coworkers to the EEOC, etc.- Opposition: § 704(a) protects informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges.

5-4-06:- Both questions on exam use private employers which mean there will be no Constitutional claims, so just focus on the statutes- 2 fact patterns; our job will be to determine which facts are important- The exam from last year is very similar- There will be no question on the exam involving arbitration- Assume that the states referred to are within the 13th Circuit Court of Appeals- There has been no rulings within your circuit, so you can draw on sister jurisdictions & Supreme Court- Assume that businesses are not unionized, employees did not sign term contracts or any agreements OR there is a human rights law- KNOW FLOWCHART!- Unionized: 1974: Alexander v. Gardner-Denver (CBA -> E/R -> Union)- Nonunionized: Gilmer & Circuit City- ALTERNATIVE DISPUTE RESOLUTION- Many employment claims don’t get past arbitration- Plaintiffs win way more jury trials than they do bench trials- Since there aren’t as many bench trials as there used to be, Judges have been shutting down employment discrimination claims at the summary judgment stage- I’m done, dude…..it’s over, Johnny- Pre-dispute/Post-dispute

Gilmer v. Interstate/Johnson Lane Corp.Facts: Registered securities representative brought suit against his employer alleging that his termination violated Age Discrimination in Employment Act (ADEA). Employer filed motion to compel arbitration. The United States District Court denied motion and employer appealed. The United States Court of Appeals reversed.

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Issue: Whether a claim under the ADEA can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application.Holding: The Supreme Court held that age discrimination claim was subject to compulsory arbitration pursuant to arbitration agreement in securities registration application. Affirmed.

Circuit City Stores, Inc. v. AdamsFacts: Employer brought action under Federal Arbitration Act (FAA) to enjoin employee's state court employment discrimination action and to compel arbitration. The United States District Court ordered arbitration, and employee appealed. The United States Court of Appeals reversed, holding that all employment contracts were beyond FAA's reach. Issue: Are employment contracts excluded from the FAA?Holding: The Supreme Court held that only employment contracts of transportation workers were exempted from FAA. Reversed and remanded.

Brief summary of class

Title VII of the Civil Rights Act of 1964• Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy.• In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.• Enforcement of Title VII by EEOC.Types of Discrimination• Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.• Intentional discrimination by an employer against an employee is known as disparate-treatment discrimination.• Disparate-impact discrimination occurs when an employer’s work force does not reflect local market.Religious Discrimination• Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.Gender Discrimination• Title VII prohibits sex discrimination in the work place.• Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job.• Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.• Case 17.1 Carey v. Mount Desert Island Hospital (1998).Gender Discrimination• Two types of sex discrimination:

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– Differential treatment.– Sexual harassment, which itself, exists in two varieties:• Hostile Work Environment.• Quid Pro Quo.Sexual Harassment• Title VII does not specifically mention sexual harassment as a form of sex discrimination, but the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sexual harassment.• There are currently two forms of recognized sexual harassment:– Hostile Work Environment.– Quid Pro Quo.“Hostile Work Environment”• Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment. • The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.Harassment by Supervisors: Quid Pro Quo • Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit.Online Harassment• Company email systems• Company chat rooms• Posting sexually explicit images on company computer systems, screen savers, etc.• Employees will generally not be liable if prompt action taken.Remedies under Title VII• Liability may be extensive. Plaintiff may receive:– Reinstatement.– Back Pay.– Retroactive Promotions; and– Damages.Discrimination Based on Age• The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.• Under Kimmel v. Florida Board of Regents states are immune from private lawsuits brought in federal court under 11th Amendment.Discrimination based on “Disability”

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• The Americans with Disability Act (ADA) requires employers to offer reasonable accommodation to employees or applicants with a “disability” who are otherwise qualified for the job they hold or seek.• The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.• Case 17.3 Clackamas Gastroenterology Assoc., P.C. v. Wells (2003).ADA• To prevail on a claim under ADA, plaintiff must show she:– Has a “disability.”– Is otherwise qualified for the employment in question; and– Was excluded from employment solely because of the disability.• Plaintiff must first exhaust administrative relief with EEOC.ADA: What is a “Disability”?• ADA defines disability as:– Physical or mental impairment that “substantially limits one or more of major life activities; or– A record of such impairment; or – Being regarded as having such an impairment. • Determination is decided on a case-by-case basis.ADA: “Reasonable Accommodation”• If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.– Examples: wheelchair ramps, flexible working hours, improved training materials.• Job Applications and Pre-Employment Physical Exams.• Case 17.4 Flowers v. Southern Regional Physician Services, Inc. (2001).Defenses to Employment Discrimination • There are four basic types of defenses to employment discrimination claims.– Business necessity.– Bona fide occupational qualification.– Seniority Systems.– After-acquired evidence of employee misconduct.Business Necessity• The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.• Business necessity is a defense to disparate impact discrimination.BFOQ• The bona fide occupational qualification (BFOQ) defense requires an employer to show that an particular skill is necessary for the performance of a particular job.

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• The BFOQ defense is used in cases of disparate treatment discrimination.Seniority Systems• A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer.• A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.Affirmative Action• Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.• AA has led to “reverse discrimination” cases such as Adarand and the recent U.S. Supreme Court cases:– Gratz v. Bollinger (2003).– Grutter v. Bollinger (2003).

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