Employment Discrimination – Selmi – Fall 2011
EMPLOYMENT DISCRIMINATION: Discrimination is a legal judgment for a court to make.
I. Coverage:
a. Title VII: Race, Color, Religion, Sex, National Origin
i. Applies to eers with 15+ ees
ii. Claim Stats
1. Race most commonly filed charge, then Gender
2. Color and Religion least commonly filed charges
3. Retaliation largest category of claims, Sexual Harassment second largest
iii. N.B. Individuals cannot be sued individually under Title VII for their discriminatory actions
b. ADEA: Age
c. ADA: Disability
d. §1981: Intentional discrimination in contracting based on race and national origin (NOT religion, sex, age, disability)
i. Disparate treatment/intentional discrimination only
ii. No requirement to exhaust administrative remedies/file with EEOC
1. Borrows analogous state SOL, usually 3 years for tort suits
iii. No damage caps
II. Filing and Procedure
a. Title VII, ADA, ADEA:
i. Charge of discrimination must be initially filed with the EEOC/the state equivalent
1. SOL: 300 days from the discriminatory act
a. Harassment: must have at least one act of harassment within the last 300 days
i. Shorter SOL for non-deferral jurisdictions: 180 days
1. EEOC has not determined that non-deferral Js can handle the complaints
2. Most Js are deferral
ii. EEOC sends charge to eer and they must respond
iii. Possible steps:
1. EEOC may investigate charge
a. If investigate, will make determination of whether discrim occurred
i. Will issue cause or no cause letter
1. If cause: will mediate and invite eer to settle
a. EEOC represents “the people,” NOT the ee
i. Ee can have own attorney, can intervene in suits brought in federal court
b. EEOC can settle case without consent of ee because it is the party
ii. If case does not settle, EEOC may file suit in federal court
2. Right to sue notice: Ee MUST HAVE a right to sue notice to sue in federal court
a. Will be issued if EEOC investigates, issues cause letter, cannot settle the case, chooses not to file suit
b. Will be issued if EEOC investigates, issues no cause letter
i. No cause letter generally inadmissible/carries no evidentiary weight in subsequent suits brought by ees
c. Will be issued if requested after EEOC has 180 days to investigate charge
b. Rights and Remedies:
i. For disparate treatment
1. Jury trial for disparate treatment
a. Cases more successful in front of juries than judges
2. Backpay/frontpay
a. Backpay: lost past wages minus mitigation
b. Frontpay: lost future wages minus mitigation (provided until the effect of the discrimination is remedied)
i. Can include pay for lost benefits, e.g. retirement and health benefits
3. Job Relief
a. Hiring
b. Reinstatement
c. Promotion
4. Damages: Comps and punitives combined are capped at $300,000
a. Compensatory
i. Emotional injury/other compensable injury
b. Punitive
i. Must prove malice or recklessness
ii. No punitives against public eers
5. Attorney’s fees
c. For disparate impact
i. NO jury trial for disparate impact
1. Cases more successful in front of juries than judges
ii. Backpay/frontpay?
iii. Specific performance?
iv. Injunctive relief?
v. NO damages
vi. Attorney’s fees
III. Disparate Treatment: Title VII, Equal Protection Clause for government employers—§1983
a. Def: Employer treats some people less favorably than others on the basis of race, color, sex, religion, or national origin
i. DOES NOT require proof of animus
b. Proof Structure when using Circumstantial Evidence of Discrimination with Single Motive: McDonnell Douglas (1973):
i. P/Ee must establish a prima facie case of discrimination
1. P is a member of protected class
2. P was qualified for the job (met minimum qualifications)
a. At PFC, need not prove most qualified or better qualified than selectee
b. Future Gesture Doctrine: Failure to apply may be excused where eer has reputation for refusing to employ members of protected group
i. E.g. consistent discriminatory treatment of applicants
ii. Manner in which vacancies publicized
iii. Recruitment techniques
iv. Responses to casual or formal job inquiries
v. Composition of workforce/exclusion of protected group
3. Job/position was available and someone else got it/P suffered adverse eement action
a. Selectee need not be person outside of P’s protected class
b. Constructive Discharge: When person quits before they are fired:
i. Must prove conditions so intolerable that reasonable person in ee’s position would have felt compelled to resign. No rxable person could be expected to continue. Suders
1. Some courts require proof of eer intent to create intolerable conditions to force ee to resign
ii. Can also apply where, when given option, ee quits rather than being fired
4. SOME CIRCUITS: Similarly situated person* was treated more favorably than P
a. *Defined narrowly: directly comparable in all material respects
i. E.g. same supervisor, same job duties, same experience, same performance, same (other factors at issue)
b. N.B. Requiring this as part of the PFC is a mechanism that makes it easy to grant SJ in favor of eers
ii. Burden of production shifts to D/Eer to rebut presumption of discrimination by articulating legitimate, nondiscriminatory reason for action
1. Burdine (1981): Need only produce admissible evidence of reason. Need not persuade court actually motivated by reason.
2. Need not be “legitimate”/sound business practice, e.g. “I flipped a coin”
3. Can be “I don’t know” if explain why don’t know why P treated differently
4. Honest Belief Rule: Eer’s good-faith, mistaken belief in correctness of eement decision not pretext
a. E.g. firing person for being late even though they were on time, firing body builder for faking sick even though he was actually sick that day
i. Eer’s articulated reason need not be true; merely need be honest belief of what was true at time
5. Same Actor Inference: Where person who discharges ee is same person who hired ee:
a. Eer is entitled to inference that discharge not motivated by discriminatory animus
b. Especially strong inference if time between hiring and discharge is short, but has been applied when interval is up to 3 years
6. Furnco (1978): Eer has no duty to implement practices that maximize hiring of people in protected classes
iii. Burden of proof shifts to P/Ee to prove: 1) eer’s articulated reason a pretext for discrimination and 2) discrimination was real reason for action
1. Can prove pretext and discrim by demonstrating that non-discriminatory reason was not true (no basis in fact, did not actually motivate conduct, OR was insufficient to warrant conduct)
a. BUT: Hicks: Pretext Plus: (1993) Not required to find for P even if P disproves non-discriminatory reason/proves pretext. P always bears ultimate burden to prove discrimination was real reason for action.
i. P must have full and fair chance to prove pretext
1. There must be record evidence to support conclusion that action not due to discrimination
2. Can prove pretext and discrim by demonstrating similarly situated person (often outside P’s class) treated more favorably than P
3. Can bolster evidence of pretext and discrim with Me Too Evidence*:
a. *Evidence of how other people were treated in workplace, raised in individual discrimination case, to show that eer has a history of treating people that way and treated ee that way too
4. Can grant SJ for D based on weak showing of pretext
c. Mixed Motives: Price Waterhouse (1989) and the Civil Rights Act of 1991: Eer had multiple motives for decision, one or more of which was discriminatory, and one or more of which was non-discriminatory.
i. Mixed motives DOES NOT apply to the ADEA
ii. N.B. Helpful where there are multiple decision makers
iii. Discriminatory motive need only be a motivating factor (not most motivating factor or substantial motivating factor)
1. E.g. Gender stereotyping and poor interpersonal skills
a. N.B. Most mixed motives case scan be recast as single motive cases because legitimate reason was influenced by stereotyping/subtle discrimination
2. More favorable to P on SJ than single motive because need only have evidence indicating discrimination was A motivating factor, not THE motivating factor
iv. Where mixed motives are found
1. Judgment of liability in favor of P
2. BUT, if eer can prove it would have made same decision absent discriminatory motive, no back pay, job relief, or damages. Judgment of liability entitles to: declaratory or injunctive relief, attorney’s fees
a. Legitimate motivation of eer:
i. Must be true
ii. Must have existed at time decision was made
1. After-acquired evidence: If find evidence during discovery that would be grounds for termination, evidence goes to remedies, not liability
a. Time when issue is discovered is endpoint for backpay.
v. Costa (2003): Need not present direct evidence of discrimination in order to utilize mixed motives framework
1. Stray Remarks Doctrine: Stray remarks are opposite of direct evidence
a. If comment with discriminatory overtones is not considered direct evidence, it is considered stray remark
i. Way of limiting what is considered direct evidence
1. Finding that something is direct evidence compels finding for P or mixed motives case
d. The Cat’s Paw Theory/Subordinate Bias Liability: Where multiple decision makers involved, and ultimate decision maker is unaware that another person involved in process had unlawful discriminatory motive
i. P must show that ultimate decision maker followed biased recommendation of subordinate without independently investigating complaint against ee
1. If eer performs independent investigation, it avoids liability
a. Chain of proximate causation broken by investigation
i. Discriminatory motive did not cause ultimate decision maker’s action post-investigation
IV. Class Actions and the Use of Statistical Proof of Discrimination: Applicable under the DT OR the DI theory
a. Disparate Treatment: Pattern or Practice: Stats used to prove intentional discrimination by eliminating chance as explanation for occurrence of an action. Today would want 9-10 standard deviations to bring a case.
i. Damages available to class members after Civil Rights Act of 1991
ii. Teamsters: (1977): Statistics alone CAN establish intent to discriminate. 9 standard deviations in this case.
1. Calculating standard deviations: √(n)(p)(q)=one standard deviation
a. N=Number of drivers/people in position (1,828)
b. P=Percent blacks expected (.05)
i. Could use: percentage blacks in labor force
ii. Percentage of applications from blacks
iii. Percentage of ees that are drivers (e.g. 30% of white ees are drivers, so 30% of black ees should be drivers)
c. Q=Percent not blacks expected (.95)
2. After get number for one standard deviation: pn-number of blacks in position=difference between number of black expected and number of blacks in position/one standard deviation=number of standard deviations
3. Greater than two standard deviations eliminates the possibility that something is due to chance
a. Standard deviations alone do not rule out other possibilities besides chance:
i. Relative qualifications of white and black applicants, e.g.
1. Multiple regression analysis: more sophisticated means of establishing existence and impact of relevant variables
a. Can isolate and control for these factors
i. Do not include factors tainted by discrimination (e.g. crop assignment done in discriminatory manner, so crop assignment cannot explain differences in extension agents’ pay)
ii. Do not include factors not actually relevant to decision maker
iii. Hazelwood: (1977): Determining relevant labor market critical to statistical analysis
1. Using St. Louis county alone vs. St. Louis including the city changes the standard deviations from 1.72 (chance) to 6.5 (not chance)
iv. Wal-Mart: (2011): Subjective decisionmaking cannot be the equivalent of discrimination, though it could be shown to be the vehicle for discrimination
1. Employers not required to have broadly representative workforce
a. Statistical expectation for purposes of standard deviation analysis, but no legal responsibility to reach quota
2. Employers do not have obligation to review/study practices regularly to ensure they are not discriminatory
3. Certification ruling is tantamount to liability ruling because cases that are certified almost certainly settle
b. Analyzing the Statistics:
i. Limited eer defenses to these cases. May challenge stats, but not affirmatively defend statistical disparities
1. Eer must prove, not merely assert, that stats are inaccurate, incomplete, or focused on wrong measure
a. Qualifications/lack of interest can be used to argue for different number for (P)ercentage blacks expected in equation
b. Eer will argue to disaggregate data into smallest sample size in order to make harder to find statistical significance
c. P/ee will argue to argue to aggregate data into largest sample size in order to make easier to find statistical significance
c. Proceeding with the Pattern or Practice Class Action:
i. Stage 1: Has D engaged in a pattern or practice of intentional discrimination?
ii. Stage 2: What is the appropriate remedy?
1. Structural remedy to alleviate the pattern or practice of discrimination
a. Less subjective selection process
b. Changing required test or test score
2. What individual class members are entitled to relief
a. Generally use a formula
b. Actual qualifications as opposed to statistical estimate of number of people expected may become issue at these hearings
d. Disparate Impact and Stats: Stats used to prove that eement action has disparate impact
i. Damages not available
e. Stats alone CAN be sufficient to prove DI
V. Disparate Impact: Title VII, ADEA (using the Ward’s Cove standard where P has burden to demonstrate test is not business necessity), ADA, NOT EPC—§1983 (Washington v. Davis), NOT §1981
a. Def: Facially neutral employment practices have greater impact on one group than another and cannot be justified by business necessity
i. Suits most common/plausible in areas of written tests and physical agility tests
b. Bench trials. If proceeding alongside DT claims, jury decides DT claim and judge decides DI claim.
c. Griggs (1971) and the Civil Rights Act of 1991 (courts now cannot abolish DI as a matter of common law): DI theory is designed to eliminate discriminatory treatment in cases in which it might be difficult to prove intent. Eliminates ability to use past discriminatory practices to perpetuate current inequities in employment (e.g. past inequities in education translated into current eement inequity by requirement of high school degree to work in desirable departments)