The Civil Rights Act of 1964

INDIVIDUAL DISPARATE TREATMENT

The Civil Rights Act of 1964

42 U.S.C. §2000e et seq. (contains Title VII)
Applies to public and private employers
Prohibits discrimination because of race, color, religion, national origin, and sex.

Disparate Treatment

Individual or class claims
D was intentionally discriminatory

Disparate Impact

Class claims only
Facially neutral policy/discriminatory intent

Title VII, §703(a)(1)

It shall be an unlawful practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Competing Theories of Equality

The Historical Perspective – colorblindness
The Economic Perspective – merit
The Remedial Perspective – opportunity

Slack v. Havens

Holding
Discriminatory words and actions are proof of discriminatory intent and direct evidence can be used to show an intent to discriminate under Title VII.
Note the standard
Whether treating plaintiffs differently than other b/c of their race.

Two Causation Solutions

McDonnell Douglas Framework – when you can’t show b/c of race, etc. by direct evidence. (circumstantial evidence problem)
Price Waterhouse Framework – when you can’t show b/c of race, gender, etc. by a single motive. (mixed motive/motivating factor problem)

Burdens

Burden of Production
What P must show to survive motion for SJ
Burden of Persuasion
What P must show to prevail at trial.

McDonnell Douglas v. Green

Dealing with individual discrimination
What must P show to get to the jury?
Direct evidence (smoking gun) OR
Circumstantial evidence (McDonnell Douglas)
McDonnell Douglas Test (Summary Judgment)
Prima Facie Case: protected class, qualified, rejected, another got the job, promotion, etc, (adverse employment action)
D: legit, non-discriminatory reason
P: reason is pretextual (P can still prevail by showing reason is pretextual).
Under this test
P can prove discrimination through circumstantial evidence
Construed flexibly to apply to all adverse employment scenarios.
Generally no applied in reverse discrimination cases.
In practice
P can almost always show P/F case
D can almost always offer a legit justification.
Comes down to pretext.
Shifting burdens – burden of production.
P always retains burden of persuasion.
In terms of equality
P/F case – colorblindness
D: legit reason – merit
P: pretext – equal opportunity
P/F case is FLEXIBLE and largely PRESUMED
P is a member of a protected class under Title VII
P is qualified for the job (low standard)
P suffered some adverse employment action: another hired to fill job, not promoted w/others, demoted, fired, etc.

Furnco Construction v. Waters

Holding
In order to justify an allegedly discriminatory employment practice, an employer does not have to show that the employment practice in question would allow it to hire the most # of a protected class. (Just has to be reasonably related to the achievement of some legitimate purpose).

Texas Dept. of Comm. Affairs v. Burdine

D only has burden of production to articulate a legit, non-discriminatory reason for its adverse employment decision.
D’s burden of production does not include any other requirement, including a justification that D’s choice was more qualified.
D never has burden of persuasion.
Language created ambiguity
Burden of showing pretext merges w/burden of persuasion. May succeed either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.
Could be read two ways, so…next case.

St. Mary’s Honor Center v. Hicks

Reasons D gave were not the real reason for P’s demotion and discharge.
P can show that D was lying about justification, so does P win?
If P can show that D is lying about alleged justification, such evidence does not ALONE COMPEL the court to award P a directed verdict/summary judgment.
But, such evidence can be used to infer discrimination.
So, the evidence used to carry the burden of persuasion can include (1) direct evidence of discrimination and/or (2) indirect evidence showing that D’s reason is false (w/no mandated consequence that P win solely based on falsehood).
Holding
Proof that D’s legit non-discriminatory justification for its adverse employment action is false does not entitle P to directed verdict/summary judgment.
After St. Mary’s, Courts of Appeal interpret the case to mean that P must show the following to win:
(1) Direct evidence of discrimination OR
(2) Indirect evidence of discrimination
Pretext (D’s Justification was false)
PLUS additional evidence creating an inference of discrimination.

Reeves v. Sanderson Plumbing Products

If P’s only evidence is P/F case and that D is lying about alleged justification, does that compel the court to award D a directed verdict/summary judgment?
It is not enough to disbelieve the employer; the factfinder must believe the P’s explanation of intentional discrimination.
It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.
Holding
If P’s only evidence is P/F case and that D is lying about the alleged justification, that does not COMPEL the court to award a directed verdict/summary judgment; the absence of proof other than P’s P/F case and the D’s proffered reason was untrue does not entitle D to directed verdict/summary judgment.

McDonnell Douglas Revisited

P burden of production – P/F case
D burden of production – legit, non-discriminatory reason
P burden of production to show pretext
Proof that D is lying does not entitle P to SJ
If lying is only proof, D not entitled to SJ
*Ask whether jury can infer that action was b/c of race, etc. Lying is evidence of discrimination, and can establish burden of production.*

Another Causation Proof Problem

B/c of can mean but for causation, but does it have to?
What if employer had several reasons, including a discriminatory one? Should the P have to prove that discrimination is “the” reason or just “a” reason?
Solution
When you can’t show “b/c of” race, etc. by single (mixed motive/motivating factor problem)
Price Waterhouse Framework

Price Waterhouse v. Hopkins

Critical inquiry – whether gender was a factor in the employment decision at the moment it was made.
B/c of does not mean solely b/c of. Title VII mean to condemn even those decisions based on a mixture of legitimate and illegitimate considerations.
Congress meant only to obligate P to prove that the employer relied upon sex-based considerations in coming to its decision.
Holding
Where gender (or some other prohibited category) plays a role in an adverse work decision, D can prevail only by showing by a preponderance of the evidence that, even w/out such improper consideration, the same decision would have been made.

Civil Rights Act of 1991 (official language, pg. 12, outline)

Codified Price Waterhouse
P can establish an unlawful employment practice by showing that a prohibited reason was a motivating factor for employment action.
D can limit P’s remedy to declaratory/injunctive relief (and atty’s fees) by showing that the action would have been taken in the absence of the impermissible motivating factor.

So…

Burden of persuasion shifts to the D to show that the adverse action would have been taken irrespective of any discriminatory motive.
Doing so does not win the case, but limits P’s remedy.

But

What does P have to show to shift the burden?
Plurality (Brennan + 3): unlawful motive = “a motivating part” or decision.
White: unlawful motive = a substantial factor” in adverse employment decision.
O’Connor: “substantial factor” shown by direct evidence.

Desert Palace v. Costa

Issue – whether a P must present direct evidence of discrimination in order to obtain a mixed-motive instruction.
How to instruct the jury on causation?
Motivating Factor
P has initial burden of persuasion to show “motivating factor”
D has burden of persuasion to rebut (only limiting P’s remedy) by showing that even w/out motivating factor, decision would be the same.
After PW and CR 1991
In hypothetical motive/mixed-motive cases
D’s legit other motive does not matter as to liability
D’s legit other motive if D can prove, can restrict P’s remedy to

Injunctive AND

Money damages

The lower courts applied this burden shifting as to causation only where P could provide direct evidence that the prohibited category was a motivating factor.
Holding
Direct evidence is NOT required in a “mixed-motive” case; any evidence that race/gender, etc. was a “motivating factor” for the employer’s decision meet the P’s burden as to causation. D can, of course, limit P’s remedy to injunctive relief and attorney’s fees if it can show that b/c of some other legit reason the outcome would probably be the same.

After Desert Palace

Direct evidence
Smoking gun (Slack)
Motivating factor (Price Waterhouse)
Circumstantial evidence
McDonnell Douglas framework
Motivating factor (Price Waterhouse)
Can allege McDonnell Douglas and Price Waterhouse as alternative theories of causation.

Rachid v. Jack in the Box, Inc.

Unlike McDonnell Douglas, which simply involves a shifting of the burden of production, Price Waterhouse involves a shift of the burden of persuasion, to the D
Alternative methodologies for proving discrimination.
Burdens
Burden of production – can I go to trial?
McDonnell – P, shifts to D, shifts to P
Burden of persuasion – do I win at trial?
McDonnell Douglas – all on P
Price Waterhouse

If P shows motivating factor; causation shifts to D (but only as to remedy limitation).

This case – merging of the McDonnell Douglas and Price Waterhouse approaches.
Modified McDonnell Douglas Approach (Holding)
P must still demonstrate a P/F case of discrimination; the D then must articulate a legit, non-discriminatory reason for its decision to terminate the P; and if the D meets its burden of production, the P must then offer sufficient evidence to create a genuine issue of material fact either (1) that the D’s reason is not true, but is instead a pretext for discrimination; or (2) that the D’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the P’s protected characteristic.
So…
Modified McDonnell Douglas Approach
P/F case
D: legit justification
P: (1) pretext or (2) mixed motive
Under Rachid, in the 5th circuit, the court applies a modified McDonnell Douglas approach in which the question of burden of production can be met by P by showing pretext or motivating factor.
Mixing McD with PW

Title VII, §704(a)

It shall be an unlawful employment practice for an employer to discriminate against any of his employees…b/c he has opposed any practice made an unlawful employer practice by this subchapter, or b/c he has mad a charge, testified, assisted, or participate in any manner in an investigation, proceeding, or hearing under this subchapter.

Retaliation

Also available under ADEA
2 types of claims
Retaliation b/c “opposed” employment practice
Retaliation b/c participated in investigation
Elements (follows McD Douglas framework)
(1) P engaged in protected activity,
(2) that an adverse employment action was taken against P, and
(3) that there was a causal link b/tw the protected activity and the adverse employment action.

Burlington Northern and Santa Fe Railway Co. v. White

Anti-retaliation provision – does that provision confine actionable retaliation to activity that affects the terms and conditions of employment?
B/c 703(a) and 704(a) differ in important ways.
703(a) explicitly limits scope to actions that affect employment or alter the conditions of the workplace.
Holding
Retaliation claims are not limited to adverse employment actions, but must be actions harmful such that they could dissuade reasonable workers form making or supporting a charge of discrimination.

CBOCS West, Inc. v. Humphries

42 U.S.C. §1981 (a) – all persons w/in the jurisdiction of the U.S. shall have the same right in every state and territory to make and enforce contracts…as it is enjoyed by white citizens.
Contracts clause
Issue – whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related right.
1991 Amendment - §1981(b) – make and enforce contracts defined
Make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
Holding
Retaliation claims are available under §1981.

Crawford v. Metropolitan Government

Holding
Employee response to internal investigations can serve as the basis for anti-retaliation claims based on opposition or participation.

CLASS CLAIMS: SYSTEMIC DISPARATE TREATMENT

The Basic Elements

Title VII, 703(a) applies
To establish systemic disparate treatment, a P must show either:
(1) The employer has an announced, formal policy of discrimination;
OR
(2) The employer’s pattern of employment decisions reveals a practice of disparate treatment.
(two methods of proof)
Looks to both a negative conception AND a remedial conception – statistical disparity concerns opportunity.
Need for legit, rather than just non-discriminatory reasons, are more significant here.

Los Angeles Dept. of Water & Power v. Manhurt

Issue – whether the existence or nonexistence of “discrimination” is to be determined by comparison of class characteristics or individual characteristics. A “stereotyped” answer to that question may not be the same as the answer that the language and purpose of the statute command.
In this case, women live longer than men; pension plans.
The basic policy of the statute requires that we focus on fairness to individual, rather than fairness to classes.
Holding
Systemic disparate treatment discrimination is measured in terms of its effect on individuals, not on a class.

Teamsters v. United States

Whether there was a patter and practice of such disparate treatment, and if so, whether the differences were ‘racially premised.’”
What kind of evidence?
Statistical evidence
Anecdotal evidence
Both can be used (statistical after this case)
Holding
Statistical evidence can be used to prove discriminatory intent.
Statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.

Hazelwood Sch. Dist. v. United States

Government’s burden to establish by a preponderance of the evidence that racial discrimination was the employer’s standard operating procedure – the regular rather than the unusual practice. (pattern and practice).
But … does St. Louis city count (as relevant market) or is it just St. Louis county?
If don’t include city, 5.7% (of black teachers in county) v. 3.7% (of black teachers in Hazelwood district)
If include city, 15.4% (of black teachers in St. Louis area) v. 3.7%.
Holding
In order to demonstrate prima facie case of pattern and practice discrimination, statistics must consider proper comparable hiring market.

Models of Statistical Proof

The Simple Model (Teamsters)
Extreme disparities in treatment
The “inexorable zero”
The Complex Model (Hazelwood)
(1) presence/treatment of minority in relevant labor mkt.
(2) how same group treated by defendant employer
(3) a comparison b/t the two to determine whether discrimination can be inferred.
Notes on the Complex Model
Labor market must be determined according to job at issue
Labor market must be defined in geographical terms
Applicant-flow statistics and use = unresolved
Pro: % may different from population
Con: may distort depending on effects of prior policies.

CLASS CLAIMS: DISPARATE IMPACT

In General

Not individual, only systemic
Does not require proof of discriminatory intent (whereas disparate treatment does). Instead, it requires proof of discriminatory effects (from facially neutral policies).

Griggs v. Duke Power

Issue – whether an employer is prohibited from requiring a high school education or passing of 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 had been filled only by white employees as part of a longstanding practice of giving preference to whites.
Should it matter that tests are
Unrelated to job
Known to create disparity (largely based on past discrimination).
Practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.
The Act (Title VII) proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude…cannot be shown to be related to job performance, the practice is prohibited.
Title VII, Section 703(h)
Nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, it administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin…
Nothing in the act precludes the use of testing or measuring procedures. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.
So…2 standards apply
Business necessity AND
Reasonable measure of job performance
Thus, disparate effects can be justified where the test is “job related for the position in question and consistent with business necessity.”
Question becomes, what level of justification is required by the Court from ER to avoid liability where neutral policies create disparate outcomes.
Holding
Standardized testing requirement and high school graduation requirement violated Title VII because it prevented a disproportionate number of African-American employees from being hired by, and advancing to higher-paying departments w/in the company AND was not directed or intended to measure an employee’s ability to learn or perform a particular job or category of jobs w/in the company.

Albemarle Paper Co. v. Moody

We are concerned with only the question whether Albemarle has shown its tests to be job related.
Company required all applicants for skilled line positions at the company to:
1. Possess a high school diploma
2. Pass Wonderlic and Revised Beta Examination
Current employees in positions (almost all white) did not have to meet these qualifications.
The question of job-relatedness must be viewed in the context of the plant’s operation and the history of the testing program.
EEOC Guidelines
Constitute “the administrative interpretation of the Act by enforcing agency, and consequently they are entitled to great deference.
In the case, guidelines: discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.
Albemarle’s validation study was materially defective in several ways.
District Court erred in concluding that Albemarle had proved the job relatedness of its testing program.
So…
P: must who that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.
D: must prove “manifest relationship to the employment in question”
P: can establish pretext by showing that other tests…w/out similarly undesirable racial effect, would also serve the employer’s legit interest in ‘efficient and trustworthy workmanship.”
Holding
Title VII prohibits the use of employment tests unless they have a “manifest relationship to the employment in question.”

Washington v. Davis