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Employment Discrimination Outline

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1 Employment Discrimination I. Title VII: What does the statute prohibit or require (bases of discrimination and issues)?
A. Discrimination based on: race, color, sex, national origin, religion, objection to unlawful practices or participation in enforcement efforts (retaliation) B. Employment actions covered: hiring, promotion, compensation, discharge, terms & conditions, referral to employment, classification of membership, admission to apprenticeship training programs, employment advertising C. Who can be sued? Private employers (15+ employees), state & local governments, unions (15+), employment agencies, joint apprenticeship committees, federal govt. (special rules), congress (special rules)

1. "Employer" defined as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person" SS 701(b)

2. Employer/Independent Contractor: Lerohl v. Friends of Minnesota: found freedom of choice factor controlling. In that case the court found that IC musicians retained the discretion to perform elsewhere and to accept or reject playing a particular concert series. Hiring party withheld no income taxes and provided no employee benefits. a). Number of factors considered including duration of relationship between the parties; whether hiring party has the right to assign additional project to a third party; the method of payment: employee benefits; and tax treatment of third party b). In questions about law firm partners, the focus has generally been on the question of whether the partners in question have sufficient power to control the firm or are functionally more like associates. EEOC v. Sidley Austin (7th 2002) c). Interns and volunteers: courts generally require compensation to be considered an employee: Pg 321

3. Integrated enterprise doctrine: Sometimes 2 or more distinct legal entities are viewed as being in reality a single employer thus allowing all the employees to be used to aggregate the required number of employees: Pg 321

4. Joint employment: an employees of one entity may hold another entity liable; the premise is not that 2 entities are one but that they co-determine the essential terms and conditions of employment: Pg 321

5. Government employment: Title 7, ADEA, and ADA generally reach state and local governmental employees. ADA does not itself reach federal, but there is similar protection under the Rehabilitation Act.

6. Exemptions: Title 7 excludes "bona fide private membership club" and people needing a national security clearance. It also excludes veteran preference laws.

7. No Jurisdictional Element: 15 plus employees must be "each working day in each of twenty or more calendar weeks in the current or preceding year). Not a jurisdictional element.

2 D. Extraterritorial Effect: generally US citizens abroad are protected if they work for US owned or controlled employers, but not if compliance with statutes would require employer to violate law of foreign country. E. Exemptions: "Bona fide private membership club," and Indian tribes are exempt.

1. Ministerial exception: Hosanna-Tabor

2. First Amendment right to association: Boy Scouts v. Dale: First Amendment insulated boy scouts from New Jersey's ban on discrimination on the basis of sexual orientation. Orgs must have an expressive discriminatory purpose at odds with statute and only if complying would affect in a significant way their ability to advocate public or private viewpoints, are they then covered with protection. F. Theories available: Individual & Systemic Disparate Impact, HWE, QPQ II. ADEA (Age Discrimination in Employment Act) A. Who is protected? Individuals who are at least 40 years of age SS12(a) B. What does this statute prohibit/require? Tracks T7's language but makes it unlawful to discriminate "because of such individual's age"

1. unlawful to reduce wages to comply with ADEA

2. lawful: to discriminate when age is a BFOQ, or there's a bona fide sonority system C. Because of:

1. Hazen Paper v. Biggins (U.S. 1993): There is no disparate treatment claims under the ADEA when the factor motivating the employer is some feature other than the employee's age. a). In a disparate treatment case, liability depends on whether the protected trait actually motivated the employer's decision. The employer here terminated the P because his pension was about to vest. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other.

2. P must prove that his age must have played a role in the employer's decisionmaking process and had a determinative influence on the outcome: Reeves v. Sanderson Plumbing

3. In all ADEA cases, the P must carry the burden of persuasion and production that age was a but-for cause of the adverse employment action. Gross v. FBL (2009) USE PRICE WATERHOUSE DISSENT D. O'Connor v. Consolidated Coin (US 1996): the discrimination prohibited by ADEA is discrimination because of an individual's age, though the prohibition is limited to individuals over 40. The language doesn't ban discrimination because they are aged 40 or over; it bans discrimination against employees because of their age, but limits the protected class to those over 40. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than P is a far more reliable indicator of age discrimination than is the fact that the P was replaced by someone outside the protected class E. What theories of liability are available?

1. Systemic Disparate Treatment: Formal Polices only

2. Individual Disparate Treatment: use McDonnell Douglas framework

3 F. Whose can be sued? Employers, employment agency, or labor agency, state and federal government, or any agent thereof with 20+ employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year

1. Use the doctrines above for Title VII. G. McDonnell Douglas applies to ADEA cases H. General Dynamics v. Cline (US 2004): the effect of Cline is to eliminate any ADEA claim when the preferences challenged are for older workers, and there is nothing in the decision that would prevent more dramatic employment actions than the curtailing of benefits from also being permissible. For example, if the employer chose to lay off younger workers rather than older workers, the Court reading would bar any suit by younger workers, even if they were over age 40. III. Americans with Disabilities Act (ADA) A. Exemptions for religious discrimination: 42 U.S.C. SS 12113(d)(1): exempts religious organizations from discriminating on religion (but not on race, sex or other prohibited ground); Spencer v. World Vision: group fits exemption if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts. IV. 42 U.S.C. SS1981 A. Whom does this statute protect? All persons within the jurisdiction of the US B. Government employment: NOT Covered by 1981 C. Whose conduct us regulated? Rights are protected against impairment by non-governmental discrimination and impairment under color or state law D. What conduct does statute prohibit/require? Everyone has the same right to "enforce Ks, to sue, be parties, give evidence, and to the full and equal benefit of all is enjoyed by white citizens"

1. Don't have to worry about "employment" because statutes reaches all contract relations, so 1981 reaches partnership and independent contractors

2. Does not reach federal employment, Title 7 is exclusive remedy for federal employment E. What theories of liability are available? Racial discrimination (systemic disparate impact, both kinds) F. McDonnell Douglas applies to SS 1981 cases G. Procedural Prerequisites? None H. Sexual Orientation V. 14th Amendment Equal Protection A. Race or national origin are suspect classes: Strict scrutiny: government must have a compelling interest and government must show that discrimination is narrowly tailored to further that interest. B. Sex is intermediate scrutiny: must show an important governmental interest and the discrimination must have a substantial relationship to the important government objective. C. In Washington v Davis, P must establish the existence of discriminatory intention as part of its prima facie case. No disparate impact under 14th. D. Feeney added that a P will have to prove more than D's awareness of the foreseeable consequences of its voluntary actions. The state actor must be

4 shown to have acted, at least in part, because of, and not merely in spite of, the adverse effects of its conduct upon an identifiable group. VI. What is Intentional Discrimination?
A. Paramour: Decintio v. Westchester: male respiratory therapists complained that there department head discriminated against them by adopting promotion standards designed to disqualify them and to favor a female applicant with whom he was romantically involved. Court found no discrimination. Ps were not discriminated against because of their status as males, but because the boss preferred his paramour. B. Personal animosity is also not actionable: Green v. Administrators pg 341: Also, disappointment in failed relationship was not discrimination because of sex: See Pipkins v. City of Temple. C. Grooming Standards: Jesperson v. Harrah: We have long recognized that companies may differentiate between men and women in appearance and grooming policies. The material issue is not whether the policies are different, but whether the policy imposed on the plaintiff creates an unequal burden for the P's gender.

1. Sex stereotype: If a grooming standard amounts to impermissible stereotyping it is actionable. That standard not met here where the case is essentially a challenge to one small part (makeup requirement) of what is an overall apparel, appearance, and grooming policy that applies largely the same requirements to men and women. D. Personnel Administration v. Feeney (US 1979): Court rejected intentional discrimination claim under Equal Protection Clause where state law that conditioned job on veteran status, which at that time, constituted 98% males. The Court found that discriminatory purpose implies that the decisionmaker, here a legislature, selected or reaffirmed a particular course of action at least in part "because of" not merely "in spite of" its adverse effect on a particular group. E. Sexual Stereotype: In Price Waterhouse, the Court said that taking adverse action because of P's failure to conform to a sex stereotype is a form of sex-based conduct. F. Lower-level supervisors: Staub v. Proctor Hospital (2011): Case brought under Uniformed Services Employment and Reemployment Rights Act of 1994. Lower supervisor got higher supervisor to fire Staub. Court held that if a supervisor performs an act motivated by animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable. If a supervisor's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action, then the employer will not be liable. G. Me too evidence: Sprint/United v. Mendelsohn (2008) says in dicta that evidence from employees who were subject to actions of a different decisionmaker from P can be admissible evidence. VII. What constitutes a prima facie case of intentional discrimination?
A. Person belongs to a protected class

1. What is race? Iranians: Abdullahi v. Prada (7th 2008); Hispanics: Salas v. Wisconsin (7th 2007)

5 B. That he applied and was qualified for a job for which the employer was seeking applicants, or fired from a job, or suffered an adverse employment action,

1. Adverse action: action involving "compensation, terms, conditions, or privileges or employment" or "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" SS 703(a) a). Decision to hire or fire counts b). Discrimination in severance package counts: Gerner v. County of Chesterfield (4th 2012) c). Extra work functionally same as reduction in hourly pay: Minor v. Centocor (7th 2006) d). Separating races: Ferrill v. The Parker Group (11th 1999): racially segregating telemarketers where no economic harm was involved, just the dignitary harm of being segregated by race e). Meaningful changes in compensation: Leibowitz v. Cornell Univ. (2d 2009) f). Raises: Crawford v. Carroll (11th 2008) g). Lack of adequate protective clothing and private shower because these conditions jeopardize female firefighters ability to perform the core functions of her job in a safe and efficient manner: Wedow v. City of Kansas City (8th 2006) h). Constructive discharge: Pennsylvania v. Suders (US 2004)

2. Inadequate adverse action: pg 65 a). Mid-range or negative evaluation: Primes v. Reno (6th 1999) b). Lateral transfer with no reduction in pay or title: Williams v. Bristol (7th 1996): But see Czekalski v. Peters (DC 2007) (transfer to position with significantly diminished supervisory and programmatic responsibilities could be adverse employment action). c). Failure to provide P with a computer: Enowmbitang v. Seagate (8th 1998) C. Despite his qualifications he was rejected D. After his rejection the position remained open and the employer continued to seek applicants from persons of complainant's qualifications, or in firing case, other employees who are not members of the protected class were retained under apparently similar circumstances.

1. Comparator Cases: P prevails by proving that she was treated differently than a comparator and that difference in treatment supports the inference that the different treatment was because of race.

2. The question is not whether the employer made an erroneous decision; it is whether the decision was made with discriminatory motive. Even an incorrect belief that an employee's performance is inadequate constitutes a legitimate reason: Mayberry

3. Evidence that other employees, within the protected class, were treated the same dooms a claim. Hughes v. Bedsole (4th 1995)

4. For an employer to prevail, a jury need not determine that the employer was correct in its assessment of the employer's performance; it need only

6 determine that the D in good faith believed P's performance to be unsatisfactory: Elrod v. Sears (11th 1991)

5. Some lower courts seem to require the comparator to be "nearly identical" to P. Castillo v. Roche Labs (11th 2012). But other courts are more lenient. Crawford v Indiana (7th 2006). CIRCUIT SPLIT

6. P must prove that she met the minimum qualifications for the job.

7. Can P win even if she can't prove that the she was more qualified, or even if she admits that she is less qualified than those promoted or hired? Yes: Dominquez-Curry v. Nevada (9th 2005) court found that P could claim discrimination in promotions even though she conceded that the person D promoted instead of her was more qualified on at least one axis. In that case, there were employer admissions. E. Same-actor doctrine: circuit split substantial weight on side of D on summary judgment. Courts have sometimes dismissed a P's discrimination case when the person who hired the P was also the person who fired them. Some courts view it as a presumption while others view it as merely an inference and treat it like any other evidence. F. Work-rule case: P must show either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly. To establish a prima facie case, he must show that white employees were treated differently under circumstances nearly identical to his. Mayberry v. Vought Aircraft (5th 1995) G. Age Discrimination case: P must show that he is over the age of 40, that he was discharged, that he was qualified for the position from which he was discharged, and that a younger person replaced him. If D rebuts inference, P must present probative evidence that the articulated reason is merely a pretext for discrimination. Elrod v. Sears (11th 1991) H. VIII. Systemic Cases: Used in CLASS ACTIONS ONLY: A. Teamsters v. US (1977): Court found proof of systemic discrimination by comparing the percentages of employee race to the percentages of line drivers. Or, they compared the racial composition of an employer's workforce to the composition of the population at large. Such statistical differences are telltale signs of purposeful discrimination. B. Hazelwood School District v. US (1977): P's burden to establish by a preponderance that racial discrimination was the employer's standard operating procedure, the regular rather than the unusual practice. Court compared the representation of blacks in the employer's workforce to the percentage of blacks, in that particular field, available to be hired by the employer.

1. Standard: Where a job requires special qualifications, Hazelwood said that comparisons to the general population may have little probative value, and the court will need to look instead to that subset of the general population that possesses the relevant job qualifications.

2. Under standard deviation analysis, when the actual outcome (here, the racial position of the employer's recently hired or total workforce), is two standard deviations from the expected outcome (here the racial composition of the specific relevant population), the disparity between these two variables is deemed to be statistically significant. Thus, in the absence of a

7 legitimate explanation, it is proper to allow the jury to infer the disparity was caused by an employer's unlawful motive. C. Paige v. California (9th 2002): in promotions case, actual pool of promotional applicants is the correct comparison group for P's claim of systemic disparate treatment. D. Wal-Mart v. Dukes (2011): giving discretion to each individual manager was not proof of systemic disparate treatment IX. McDonnell Douglas v. Green (US 1973) A. Allege a Prima Face Case of Discrimination

1. If employer doesn't put forth a reason, P wins a judgment. B. Burden Shifts to Employer to Articulate a Reason for the Employee's Rejection

1. McDonnell Douglas established that an employee's disloyalty is a legitimate reason. But less rational and even illegal reasons also suffice.

2. D must be able to put the reason into evidence; it is not enough to merely argue the possibility since the D has the burden of production.

3. D must also provide a sufficiently specific reason to carry its burden of production C. Plaintiff Rebuts and Shows that the Stated Reason Is Pretext

1. Proof of pretext requires factfinder to find both 1) D's reason to be pretextual; and 2) the pretext is a coverup for an underlying discriminatory motive. St. Mary's v. Hicks

2. Lies/Circuit Split: Some courts require that P show the reason is wrong; other courts require P to show that D's reasons are a lie. Pg. 24

3. Honest belief rule: the question is not whether the asserted reason is true but whether the D believed it to be true when it took the challenged action. Upshaw v. Ford (6th 2009)

4. A finding by the jury that D's reason is not the real reason doesn't automatically justify a finding of pretext but would often at least permit the inference that D was lying by asserting it.

5. Evidence relevant to showing of pretext includes: a). The reason is mistaken or incorrect: Lott v. Merril (6th 2012) b). Prior treatment of P c). Statistics as to D's employment policy and practice: McDonnell Douglas d). Failure to follow procedures: Where it is alleged that established rules were bent or broken to give a non-minority applicant an edge in hiring or promoting practices, that is evidence of pretext: Carter v. Three Springs (11th 1998) e). Failure to promulgate hiring and promotion policies can be circumstantial evidence of discrimination: Carter v. Three Springs (11th 1998) f). Proof of P's superior qualifications, standing alone, may be sufficient evidence of pretext to go to jury. Raad v. Fairbanks (9th 2003). Some courts required that the disparity in qualifications be of such significance that no reasonable and impartial decision-maker would have chosen the candidate selected over the Plaintiff.

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