Morgan Stephens

EMPLOYMENT DISCRIMINATION OUTLINEFALL 2010

BERRY

§ 1 - Overview§ 2 - Individual Disparate Treatment§ 3 - Systemic Disparate Treatment§ 4 - Disparate Impact§ 5 - Ricci v. DeStefano § 6 - Sex Discrimination§ 7 - Other Grounds for Discrimination§ 8 - Affirmative Action§ 9 - Statute of Limitations§ 10 - Remedies§ 11 - 42 U.S.C. §§ 1981 & 1983§ 12 - Age Discrimination in Employment Act§ 13 - Americans With Disabilities Act

§ 1 - Overview1. Perspectives of Equality

a. Historical Perspective (Colorblindness)i. Decision not to consider certain categories such as race, gender, national

origin – i.e., neutral or “blind” as to these issuesii. Past discrimination has been addressed by Title VII, etc.

iii. Race, color, religion, sex, or national origin are irrelevant iv. Use of such categories is prohibitedv. Negative conception of equality by prohibiting discriminatory conduct

b. Economic Perspective (Equality as Merit)i. Based on choosing to consider certain categories of “merit” . . . fair because

treated equal as to same proper criteriaii. Careers open to the best talent – right to compete

iii. Positive conception of equality – what the employer can consideriv. Basis for “management discrimination” as a defense to employment

discrimination c. Remedial Perspective (Equality of Opportunity)

i. Consideration other circumstances, such that everyone has an equal opportunity

1. Circumstances can include past discrimination, prior denial of opportunity, etc.

ii. Looks backward to identify all of the effects of past discrimination then looks forward to determine whether these effects persist despite the abolition of past discrimination practices

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iii. Asks whether present practices, even if not repeating the past, continue to perpetuate their unjust effects

iv. Basis for affirmative action and disparate impact; goes beyond equal competition and has been extended to situations where no past discrimination has occurred

2. Title VIIa. Initial Requirements

i. Plaintiff must timely file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC)

ii. After the EEOC ceases its investigation or it releases a right-to-sue letter, a court suit must be timely filed

1. Non-deferral states = 180 days from unlawful employment practice2. Deferral states

b. Employer Practices – § 703(a)(1)i. It shall be an unlawful employment practice for any employer:

1. To fail or to refuse to hire or 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; or

2. 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, because of such individual’s race, color, religion, sex, or national origin.

c. § 703(m) - Impermissible consideration of race, color, religion, sex, or national origin in employment practices

i. Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

3. Individual Disparate Treatmenta. Single Motive - § 703(a) - “because of”

i. Direct Evidence/Smoking gun (Slack)1. Plaintiff may offer direct evidence, such as that the defendant

admitted that it was motivated by discriminatory intent or that it acted pursuant to a policy that is discriminatory on its face

2. In most cases, direct evidence of discrimination is not available, given that most employers do not openly admit that they discriminate

ii. Circumstantial Evidence/No Smoking Gun (McDonnell Douglas)1. Prima Facie Case

a. Must make a showing of intentional discrimination because of race, gender, national origin, etc. (creates an inference of discrimination)

i. Belongs to racial minority

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ii. Applied and was qualified for a job for which the employer was seeking applicants

iii. Despite his qualifications, he was rejectediv. After his rejection, the position remained open and the

employer continued to seek applicants from persons of complainant’s qualifications

b. Flexible rule and largely presumedc. Raises an inference of discrimination

2. Defense a. Must articulate some legitimate, non-discriminatory reason for

plaintiff’s rejectionb. Shifts Burden of Production to employer to present evidence

from which a reasonable inference can be drawn that the plaintiff was rejected for a legitimate, nondiscriminatory reason

c. Once employer’s burden of production is met, the entire burden of proof shifts back to the plaintiff

3. Rebuttal (Pretext)a. Plaintiff must produce evidence from which a reasonable

inference can be drawn that the defendant’s offered reason was not the real reason for his rejection, but that discrimination was

b. Plaintiff must then also persuade the fact finder to draw that inference by a preponderance of the evidence

c. Proof that defendant is lying does not entitle plaintiff to summary judgment (St. Mary’s)

d. If lying is only proof, defendant not entitled to summary judgment (Reeves)

b. Mixed Motive - § 703(m)i. What happens?

1. If the fact finder believes the employer’s articulated nondiscriminatory reason for its action, yet also believes that the plaintiff has shown that an impermissible factor motivated the employer’s decision then a mixed motive case exists and § 703 applies

ii. Direct or Circumstantial Evidence1. Intentional discrimination against member of a protected group2. Was a motivating factor in3. An adverse employment

iii. If a prohibited factor was one of the factors consider then…1. An unlawful employment practice has been established and employer

is liable2. Defendant can limit plaintiff’s remedy to declaratory/injunctive relief

(& attorney’s fees) by showing that the action would have been taken in the absence of the impermissible motivating factor

c. After Acquired Evidence

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i. Where after acquired evidence provides the employer a legitimate reason for adverse action against the employee, the employee can still recover back pay, but may not be reinstated or receive front pay (McKennon)

4. Systemic Disparate Treatmenta. Plaintiff must show EITHER:

i. Formal, announced policy of discrimination 1. Is there a formal policy of discrimination like in Manhart where

women paid more in pension because they lived longer? ORii. Pattern of employment decisions reveals a practice of disparate treatment

1. Prima facie case which leads to an inference of discriminationa. Must prove that discrimination was the employer’s standard

operating procedure--the regular rather than the usual practice (Teamsters)

b. Often, statistics are used to establish the inference that illegal motivation has caused a pattern or practice of employment discrimination (Teamsters)

c. The proper statistical comparison for showing a discrepancy between hiring or workforce composition is to compare the composition of the job at issue with the composition of the qualified relevant labor market (Hazelwood)

i. Depends on facts, but consider proper geographic area, time period, and job-related qualifications

b. Defensesi. Rebutting the inference of discriminatory intent by presenting evidence to

counter plaintiff’s evidence (Feeney)1. ONLY available in cases where pattern or practice of discrimination

is allegedii. Bona Fide Occupational Qualification - § 703(e)

1. It shall not be an unlawful employment practice for an employer to base its hiring and employment decisions on religion, sex, or national origin, in circumstances where those “qualifications are reasonably necessary to the normal operation of that particular business or enterprise.” NOT FOR RACE OR COLOR

2. Very narrow defensea. Must relate to the essence or central mission of the employer’s

business (Johnson Controls)3. Employer must prove that the excluded class cannot safely or

effectively carry out essential tasks (Johnson Controls)4. Employer must also establish a basis for believing that all or nearly

all members of a class lack the requisite qualification for the position5. Employer’s motivation behind the policy does not matter

5. Disparate Impact a. Prima Facie Case

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i. Plaintiff has the burden of proof to show disparate impact on the basis of race, color, religion, sex or national origin and the specific (neutral) employer policy that caused them

1. Establishes prima facie case by using statisticsa. Must use relevant geographic and labor markets (Ward’s

Cove)ii. Typically challenged facially neutral employment practices include

height/weight requirements, tests, and educational requirementsb. Defense

i. Defendant then has the burden of proof to show that the policy is “job related for position in question and consistent with business necessity” OR that it fits within the statutory exceptions: bona fide seniority or bona fide merit systems

1. I.e. a manifest relationshipc. Rebuttal

i. Plaintiff then has burden to show that the defendant’s justification is pretextual, because there are other ways to achieve the business purpose without the discriminatory outcome

6. How Theories Relatea. Individual and Systemic Disparate Treatment

i. Statistical evidence of systemic disparate treatment typically is not enough (alone) to establish individual disparate treatment (Baylie v. FRB)

b. Systemic Disparate Treatment and Disparate Impacti. Keep analysis separate, but systemic behavior can give rise to both type of

claims in a given case (EEOC v. Dial)c. Individual Disparate Treatment and Disparate Impact

i. Ricci v. DeStefano

§ 2 - Individual Disparate Treatment1. Proving Intentional Discrimination

a. Direct Evidencei. Smoking Gun (Slack)

ii. Motivating factor (Price Waterhouse)b. Circumstantial Evidence

i. McDonnell Douglas frameworkii. Motivating factor (Price Waterhouse)

2. Smoking Gun/Direct Evidencea. Slack v. Havens (1975)

i. Facts1. White employee made several discriminatory comments about blacks;

clearly prohibited discrimination case

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2. Four black women claimed that they were illegally discharged because they refused to perform cleaning duties that were not within their job description

a. “Colored people should stay in their places”b. “Colored folks are hired to clear because they clean better”

3. Without the discriminatory statements it would be hard to prove that he actually discriminated against the employees

ii. Standard applied:1. Whether the employer was treating the plaintiffs differently because

of their raceiii. Take Away

1. Discriminatory words and actions are proof of discriminatory intent and direct evidence can be used to show an intent to discriminate under Title VII (Slack)

3. What if there is no “smoking gun” as in Slack?a. Circumstantial evidence (McDonnell Douglas)

i. Infer from…1. Unequal treatment2. Defendant lying about reason (pretext)

ii. When you can’t show “because of” discrimination by direct evidenceb. Mixed motive problem (Price Waterhouse)

i. When you can’t show “because of” discrimination by single motive

4. Burden of Proofa. Burden of Production

i. What plaintiff must show to survive motion for summary judgment or motion for directed verdict

ii. Plaintiff must provide enough evidence to show that a reasonable jury could infer that he/she established the cause of action

b. Burden of Persuasion i. What a plaintiff must show to prevail at trial (jury or judge)

ii. Plaintiff must provide enough evidence to prove case by a preponderance of the evidence

5. McDonnell Douglas Corp. v. Green (1973)a. Facts

i. Cecil Green was laid off because a general reduction at McDonnell Douglasii. Green organized a stall-in and then wished to be re-hired by the company,

but McDonnell Douglas refused to do soiii. Green sued for discrimination because he believed that they didn’t hire him

because of his participation in a civil rights protestb. Take Away

i. In order to demonstrate individual discrimination under Title VII, plaintiff must prove a prima facie case of discrimination; defendant can then rebut by offering a legitimate justification for its actions; plaintiff can then still prevail

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by demonstrating that the proffered justification is pretextual (McDonnell Douglas)

c. Broken Downi. Prima Facie Case

1. Protected class under Title VII2. Qualified for the job (very low standard)3. Suffered some adverse employment action4. After the rejection, the position remained open and the employer

continued to seek applicants from persons with similar qualifications (irrelevant if the employee is discharged)

ii. Defense1. Articular some legitimate, non-discriminatory reason for plaintiff’s

rejectiona. Shifts Burden of Production to employer to present evidence

from which a reasonable inference can be drawn that the plaintiff was rejected for a legitimate, nondiscriminatory reason

2. Doesn’t have to be true, just need to say something that on its face sounds true – must be able to back up and defend though

iii. Rebuttal (Pretext)1. Plaintiff must produce evidence from which a reasonable inference

can be drawn that the defendant’s offered reason was not the real reason for his rejection, but that discrimination was

2. Plaintiff must then also persuade the fact finder to draw that inference by a preponderance of the evidence

3. Once employer’s burden of production is met, the entire burden of proof shifts back to the plaintiff

6. Furnco Construction Corp. v. Waters (1978)a. Facts

i. None of the bricklayers were hired based on application, but the contractor hired his employees through word of mouth or previous work together

b. Take Awayi. 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 number of a protected class (Furnco)

7. Texas Dept. of Comm. Affairs v. Burdine a. All you have to do to satisfy the burden of production is to offer a legitimate, non-

discriminatory reasonb. Ultimate burden of persuasion remained with the plaintiff throughout the trialc. Defendant's burden was merely an intermediate evidentiary burden requiring the

defendant to sustain only the burden of production, never the burden of persuasiond. The defendant’s burden of production does not include any other requirement,

including a justification that defendant’s choice was more qualifiede. Confusing Language

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i. Burden of showing pretext “merges” with burden of persuasionii. May succeed either . . .

1. Directly (by showing that discriminatory reason motivated employer) OR

2. Indirectly (by showing that employer’s proffered justification is not worthy of credence – a lie)

iii. Seems to mean that all you have to show that their reason was a lie – and now the plaintiff is entitled to summary judgment (Not in Scalia’s opinion in Hicks)

8. St. Mary’s Honor Center v. Hicks (1993)a. Facts

i. Melvin Hicks, a black man, was hired as a correctional officer at St. Mary's in August 1978 and was promoted to shift commander, one of six supervisory positions, in February 1980

ii. Eventually demoted and later fired - brought this suitiii. Met the McDonnell Douglas formula and it creates a presumption that the

employer unlawfully discriminated against the employee but a case is never settled this way

b. Take Awayi. Proof that defendant’s legitimate non-discriminatory justification for its

adverse employment action is false does not entitle plaintiff to directed verdict / summary judgment (Hicks)

9. Reeves v. Sanderson Plumbing Products, Inc. (2000)a. The absence of proof other than plaintiff’s prima facie case that defendant’s

proffered . . . b. Whether a defendant is entitled to judgment as a matter of law when the plaintiff’s

case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate, nondiscriminatory explanation for its action (Reeves)

10. Price Waterhouse v. Hopkins (1989) - MIXED MOTIVEa. Facts

i. Hopkins was a senior manager in an office of Price Waterhouse accounting and she was proposed for partnership

ii. Her partnership was held over for the next year because some mixed reviews of her performance that basically boiled down to two things

1. Her interactions with her subordinates2. Her being a woman (sex stereotypes)

iii. The next year, she was denied partnershipiv. Price Waterhouse didn’t do anything to the people who made the

discriminatory commentsb. Notes

i. She can show that gender was A factor in the decision to deny her partnership, but she can’t show that it was THE decision

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ii. Court says that “but-for” causation is a hypothetical construct (made up)1. The Courts wants us to ask – if absent the discrimination would

Hopkins have been denied partnership anyway?2. Was gender a factor in the employment decision at the moment it was

made? – Because of doesn’t mean solely because ofiii. When an employer considers gender and legitimate factors at the same time,

then that decision was “because of” sexiv. However, the employer may still be able to prove by a preponderance of the

evidence that it would have come to the same decision regarding a particular person even if they considered race, gender, etc.

c. Take Awayi. Where gender (or some other prohibited category) plays a role in an adverse

work decision, defendant can prevail only by showing by a preponderance of the evidence that, even without such improper consideration, the same decision would have been made (Price Waterhouse)

d. Codified Price Waterhouse in Civil Rights Act of 1991i. Plaintiff can establish an unlawful employment practice by showing that a

prohibited reason was a motivating factor for employment actionii. Defendant can limit plaintiff’s remedy to declaratory/injunctive relief (&

attorney’s fees) by showing that the action would have been taken in the absence of the impermissible motivating factor

1. Congress didn’t want you to use religion, gender, or race at all so they include attorney’s fees

e. What does plaintiff have to show to shift the burden?i. Plurality (Brennan + 3): unlawful motive = a “motivating part” of decision

ii. White: unlawful motive = a “substantial factor” in adverse employment decision

iii. O’Connor: “substantial factor” shown by direct evidence1. Lower courts use this because the standard is much higher – get rid of

cases by requiring direct evidence

11. Desert Palace v. Costa i. Issue

i. Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed motive instruction under Title VII

ii. Notesi. Comes down to jury instructions

ii. Plaintiff wants motivating factor instruction not “but-for” iii. Take Away

i. 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 meets the plaintiff’s burden as to causation. Defendant can, of course, limit plaintiff’s remedy to injunctive relief and attorney’s fees if it can show that because of some other legitimate reason the outcome would probably be the same (Desert Palace)

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12. McKennon v. Nashville Banner Publishing Co. (1995)a. Facts

i. McKennon was discharged from her job as part of a workforce reduction necessitated by cost

ii. She thought it was because of her ageiii. Before she was fired, she made copies of some important documents but the

employer did not learn about it until after it fired heriv. Banner sent McKennon a second letter informing her of her discharge for

the second time after learning of these unwarranted copiesb. Notes

i. Plaintiff can still win the case, but the remedy is now limited2. No reinstatement and no front pay (time from when you’re fired and

when you get another job)3. It would be inequitable if that happened4. Back pay is determined from the time of being fired to the date the

new evidence was uncoveredc. Take Away

i. Where after acquired evidence provides the employer a legitimate reason for adverse action against the employee, the employee can still recover back pay, but may not be reinstated or receive front pay (McKennon)

13. Rachid v. Jack in the Box (2004) - 9/8/10a. Facts

i. Timecard case – fired because of ageii. ADEA uses the same language as § 703(m)

b. Notesi. Merged McDonnell Douglas and Price Waterhouse

ii. Richid approach – to get passed summary judgment1. Prima facie case2. Defendant

a. Legitimate justification3. Plaintiff

a. Pretext (lying) ORb. Mixed Motive (Defendant’s reason only one of the reasons)

iii. Only the 5th Circuit uses this approachc. Take Away

i. In the 5th Circuit, the court applies a modified McDonnell Douglas approach in which the question of burden of production can be met by plaintiff showing pretext or motivating factor (Rachid)

14. Retaliationa. § 704(a) and all of the other statutesb. 2 Types of Claims

i. Opposed employment practiceii. Participated in an investigation

c. Elements

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i. Plaintiff engaged in protected activityii. Adverse employment action

iii. Causal link

15. Burlington Northern v. White (2006)a. Facts

i. The only woman working in this place operating a forkliftii. She received comments about her being a woman and was then replaced as a

forklift operator for a “more senior man.”iii. Burlington did not question that the motivation for the acts was retaliatory,

but it questioned the statutory significance of the harm these acts causedb. Take Away

i. Retaliation claims are not limited to adverse employment actions, but must be actions harmful such that they could dissuade reasonable worker from making or supporting a charge of discrimination (White)

16. CBOCS v. Humphries (2008)a. Factsb. Notesc. Take Away

i. Retaliation claims are available under § 1981 (CBOCS)

17. Crawford v. Nashville (2009)a. Facts

i. Vicky Crawford worked Metropolitan Government of Nashville and Davidson County. In 2002, the department of human resources began an investigation into Dr. Gene Hughes, the newly hired employee relations director for the Metro School District. Several female employees had expressed concern about being sexually harassed by Hughes

b. Notesi. Opposed any practice that § 703 makes unlawful

ii. Just because the employee hasn’t filed a complaint doesn’t mean that the employee doesn’t oppose the proscribed behavior

c. Take Awayi. Employee response to internal investigations can serve as a the basis for

anti-retaliation claims based on opposition or participation (Crawford)

§ 3 - Systemic Disparate Treatment (9/13/10)1. Dept. of Water & Power v. Manhart (1978)

a. Factsi. Women, as a class, paid more in pension than did the male employees and the

company reasoned that women live longerii. Therefore, the women took home 14.84% less pay

b. Notesi. Not fair to the individual says the Court

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ii. You have to think of people as individuals even in a class based claimc. Take Away

i. Systemic disparate treatment discrimination is measured in terms of its effect on individuals, not on a class (Manhart)

2. Teamsters v. United States (1977)a. Facts

i. United States brought action against a company for discriminating against Spanish-surnamed persons and African Americans

b. Notesi. Disparate impact does not require that you show an intent to discriminate

ii. Evidence1. Statistical Evidence

a. Numbers that show discrimination2. Anecdotal Evidence

a. 40 specific instances of discriminationiii. Statistics play an important role when discrimination is disputed, but statistics

may be rebutted1. Their usefulness depends upon the surrounding facts

c. Take Awayi. Statistical evidence can be used to prove discriminatory intent (Teamsters)

3. Hazelwood Sch. Dist. v. United States (1977)a. Facts

i. Teacher discrimination b. Notesc. Take Away

i. In order to demonstrate prima facie case of pattern and practice discrimination, statistics must consider proper comparable hiring market (Hazelwood)

4. Models of Statistical Proofa. Simple Model (Teamsters)

i. Extreme disparitiesii. Inexorable zero

b. Complex Model (Hazelwood)i. Presence / treatment of minority in relevant labor market

ii. How the same group treated by defendant employeriii. A comparison between the (1) and (2) to determine whether discrimination

can be inferred

§ 4 - Disparate Impact (9/15/10)1. Why do we have disparate impact?

a. Theory 1 - only to prevent hidden discrimination - allows liability where proof of intent is too difficult to show [historical - colorblindness]

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i. Economic / Merit - objective criteriab. Theory 2 - to discourage employment practices that disproportionately exclude

women and minorities [Remedial - equal opportunity]i. Economic / Merit - subjective autonomy of employer

2. Griggs v. Duke Power Co. (1971)

a. Factsi. Facially neutral standards

1. HS education2. General intelligence test

ii. Impact1. Racial disparity in performance2. Serves to exclude African-Americans; including whites

iii. Past history1. Jobs filled almost exclusively by white2. Preferences given to whites in the past

b. Notesi. How do we know if the test is okay? Disparate effects can be justified where

the test is related to . . . 1. Business necessity2. Reasonable measure of job performance

ii. § 703(h) - tests are okay as long as its effect is not discriminatoryiii. Basic Proof Structure

1. Plaintiff has burden of proof to show disparate effects of neutral employer policy

2. Defendant has the burden to respond with job related for the position in question and consistent with business necessity

3. Plaintiff then has the burden to show that the defendant’s justification is pretextual, because other alternatives exist

iv. Ambiguities in Griggs1. Clearly establishes that we have disparate impact2. But is it narrow or broad?

c. Take Awayi. 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 within, 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 within the company (Griggs)

3. Albemarle Paper Co. v. Moody (1975)a. Facts

i. Company required all applicants for skilled line positions at the company to:1. Possess a high school diploma2. Pass Wonderlic and Beta tests

b. Notes

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i. Job relatedness must be viewed in the context of the plant’s operation and the history of the testing program

c. Take Awayi. Title VII prohibits the use of employment tests unless they have a manifest

relationship to the employment in question (Albemarle Paper)

§ 5 - Ricci v. DeStefano (9/27/10 & 9/29/10) 1. Ricci v. DeStefano (2009)

a. Factsi. A bunch of different versions depending on which justice was giving the facts

ii. Basically, white firefighters sued the city after the city threw out the test it felt was unfair towards minorities

b. Analysisi. Prima Facie case

1. Was this really because of race?a. Kennedy - yes

i. The city thought that too many whites and not enough minorities would be promoted if the test were kept

b. Ginsburg - noii. Huge departure, because

1. There was no adverse employment action2. The tests were thrown out not to discriminate against whites, but

because they were unfair3. Remedying Title VII disparate impact problems cannot count as

disparate treatment, otherwise disparate impact would have no meaning

iii. City’s Defense1. Does the city have a legitimate business justification for throwing out

the tests?a. Plaintiff’s claim - no because potential of disparate impact

lawsuit is not a legitimate justificationb. Defendant’s (Hypothetical minority P’s)

i. City’s test, while neutral, had a disparate impactii. Test was not job related for the position in question and

consistent with business necessityiii. There were other ways to test without the test

2. Rock and A Hard Placea. Disparate Impact Claimsb. City Policyc. Disparate Treatment Claims

iv. NEW STANDARD1. Potential disparate impact is a legitimate business justification only

where “there is a strong basis in evidence of disparate impact liability”

2. Comes from Equal Protection jurisprudence

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v. Here, the Majority says there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate impact liability in violation of Title VII

c. Notesi. A far departure from the SC’s jurisprudence

ii. There was no adverse employment actiond. Take Away

i. Where an employer discard test results based on racial disparity, such action is disparate treatment under Title VII, unless the employer can demonstrate a strong basis in evidence that the test created a disparate impact (Ricci)

§ 6 - Sex Discrimination (10/4/10)1. Equal Pay Act (1963)

a. Prohibits only discrimination on the basis of sex and only discrimination in payi. Does not extend to all the terms and conditions of employment, only pay

b. An employer can comply with the Equal Pay Act, but not Title VII simply by refusing to employ women in any job in which they would perform equal work with men

c. Elements 29 U.S.C. § 206(d)(1)i. Plaintiff has the burden of proof:

1. No discrimination in wages by sex where:a. Equal work onb. Jobs that require equal skill, effort, and responsibilityc. Performed under similar working conditions

ii. Defendant has burden of proof:1. Except where such payment is made pursuant to:

a. Seniority systemb. Merit systemc. A system which measures earnings by quantity or quality of

productiond. A differential based on any other factor other than sex

2. Corning Glass Works v. Brennan (1974)a. Facts

i. Corning paid a higher base wage to male night shift inspectors than it did to female inspectors performing the same tasks on the day shift

ii. The male night employees’ higher wage was paid in addition to a separate night shift differential paid to all employees for night work

iii. Everyone hired after 1969 got paid the same, but the red circle rate was given to employees who worked before

b. Analysisi. Corning didn’t carry its burden of proving that the higher rate paid for

inspection work was in fact intended to serve for night work, rather than added payment based on sex

ii. The different rates arose simply because men would not work at the lower rates paid to women inspectors

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iii. Corning tried to say that it was “working conditions” (part 3 of EPA) that was the difference for the pay based on the time of day

1. However the court found that “working conditions” encompassed “surroundings” and “hazards” not the time of day

c. Take Awayi. Defendant has the burden of proof to establish exceptions under the EPA, time

of shirt does not alone create different working conditions (Corning Glass)

3. Shultz v. Wheaton Glass Co. (1970)a. Facts

i. Female selector-packers were paid 10% less than the male selector-packers and snap up boys were paid 2 cents more than the female selector-packers

ii. Male selector packers help the snap up boys with their work (women weren’t allowed to do the work of the snap of boys)

b. Analysisi. While all male selector-packers receive the higher rate of pay, there is no

finding that all of them are available or actually perform snap up boys’ workii. The work does not have to be exactly equal, only substantially equal work

iii. Cannot create separate job classifications for work unless the jobs are genuinely different

c. Take Awayi. The Equal Pay Act concept of “equal work” should be flexibly construed to

prevent disparities in pay by gender resulting from specious job classifications (Shultz)

4. County of Washington v. Gunther (1981) - 10/6/10a. Facts

i. Group of four female county prison guards sued the County of Washington for unequal wages, alleging that their pay was less than that of male guards for no reason other than sexual discrimination

b. Analysisi. The Bennett Amendment allows employers to “differentiate upon the basis of

sex” in paying their employees “if such differentiation is authorized” by the Equal Pay Act

1. It’s okay to discriminate based on sex as long as it’s okay under the Equal Pay Act

ii. Bennett Amendment is interpreted as incorporating (i) to (iv) defenses of the Equal Pay Act into Title VII

1. Defense (iv) - the catch all provision - is the only defense that doesn’t already appear in Title VII

iii. Majority Opinion1. Only defenses (i) to (iv) authorize an employer to allow difference in

pay2. Exceptions for unequal work would allow explicit sex discrimination

in pay - clearly against the policy of Title VII3. Legislative history indicates Bennett Amendment was technical only

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4. RIGHT ON POLICYiv. Dissent

1. Defenses (i) to (iv) are redundant with other provisions of Title VII2. RIGHT ON THE NARROW TEXT

c. Take Awayi. Claims of sex-based wage discrimination under Title VII need not satisfy the

Equal Pay Act’s “equal work” requirement (Gunther)

5. AFSCME v. State of Washington (1985)a. Factsb. Analysisc. Take Away

i. Evidence that an employer based its compensation scheme on the competitive market is not sufficient to establish liability under disparate treatment or disparate impact theories of Title VII (AFSCME)

6. Geduldig v. Aiello (1974) - 10/11/10a. Facts

i. California had a disability insurance plan that did not cover pregnancy.b. Analysisc. Take Away

i. State disability insurance programs are social welfare legislation subject only to constitutional review for a rational basis in serving a legitimate state interest. Such programs that exclude pregnancy related disability does not constitute invidious sex discrimination in violation of the Equal Protection Clause (Geduldig)

d. Notesi. Congress amends Title VII with Pregnancy Discrimination Act of 1976

1. Prohibits sex discrimination on the basis of pregnancy2. § 701(k)

7. Newport News Shipbuilding & Dry Dock v. EEOC (1983)a. Facts

i. Spouses didn’t get the same benefitsii. Doesn’t comply with the statute

b. Analysisi. Court looks at the purpose of the statute

c. Take Awayi. Failure to provide pregnancy benefits for spouse of employee violates that

employee’s Title VII rights (Newport News)ii. “Because of” sex includes pregnant women

8. Dothard v. Rawlinson (1977)a. Facts

i. Alabama prison guard caseb. Analysis

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i. Bona fide occupational qualification1. Does not apply to race2. Applies to age, sex3. Test

a. Is qualification reasonably necessary to the normal operation of the business

4. Examplesa. Prison guardsb. Therapeutic carec. Physical privacy

c. Take Awayi. Being a male is an acceptable bona fide occupational requirement for contact

positions in all male maximum-security prison based on extreme level of violence and potential for sexual assault (Dothard)

9. United Automobile Workers v. Johnson Controls (1991)a. Facts

i. Any women who is able to get pregnant, then you’re excluded from working with batteries containing lead

ii. The company requires some form of medical documentationb. Analysisc. Take Away

i. Bona fide occupational qualifications can be a defense to disparate treatment, but must relate directly to the essence of the business that employer engages in (Johnson Controls)

10. Meritor Savings Bank v. Vinson (1986) - 10/13/10a. Notes

i. “Respondent argues that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex. Petitioner apparently does not challenge this proposition. It contends instead that in prohibiting discrimination with respect to ‘compensation, terms, condition, or privileges’ of employment, Congress was concerned with what petitioner describes as ‘tangible loss’ of ‘an economic character,’ not ‘purely psychological aspects of the workplace environment.’”

ii. “A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” In other words, an economic quid pro quo, while actionable, is not required under Title VII.

iii. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of (the victim’s) employment and create an abusive working environment.’”

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b. Take Awayi. Creation of a hostile or abusive work environment, even though there is no

adverse ‘economic’ action, is enough to establish a Title VII sex discrimination claim. (Meritor)

11. Oncale v. Sundowner Offshore Services, Inc. (1998)a. Notes

i. This case presents the question whether workplace harassment can violate Title VII’s prohibition against ‘discrimination because of sex’ when the harasser and the harassed employee are of the same sex.

ii. Look at the Funnel of Abstraction when applying the statute…how was it meant to be interpreted?

iii. “Title VII’s prohibition of discrimination ‘because of sex’ protects men as well as women. We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principle evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principle evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principle concerns of our legislators by which we are governed.”

b. Take Awayi. Title VII’s prohibition against gender discrimination applies to men and women

(Oncale)

12. Burlington Industries, Inc. v. Ellerth (1998)a. Factsb. Analysisc. Take Away

i. Employers are vicariously liable for the actions of their supervisors in creating a hostile work environment; where no tangible employment action takes place, the employer may raise a defense of reasonable care or failure to report (Ellerth)

13. Jespersen v. Harrah’s Operating Company a. Factsb. Analysisc. Take Away

i. Title VII does not prohibit “separate but equal” treatment of men and women’s grooming and dress requirements, so long as one gender is not unduly burdened (Jespersen)

§ 7 - Other Grounds for Discrimination (10/18/10)

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1. Espinoza v. Farah Manufacturing Co. (1973) – National Origina. Factsb. Issue

i. Whether a company can deny employment to an alien and whether this violates Title VII’s proscription against discriminating based on national origin

c. Analysis d. Take Away

i. Employer policy of hiring only citizens does not violate Title VII’s prohibition against discrimination based on “national origin” (Espinoza)

2. Garcia v. Spun Steak Co. (1993) – English Onlya. Facts

i. Not allowed to speak Spanish at the work placeb. Issue

i. Whether an employer violates Title VII in requiring its bilingual workers to speak only English while working on the job

c. Analysisi. Need to show that the policy causes some adverse effects

d. Take Awayi. “English only” language rules do not per se case disparate effects in the

workplace (Spun Steak)

3. Trans World Airlines v. Hardison (1977) – Religiona. Facts

i. Worldwide Church of God follower changes position within TWA and is now forced to work on Saturday

ii. Brought suit under Title VIIb. Issuec. Analysisd. Take Away

i. While Title VII requires an employer to offer reasonable accommodation based on religion an employer is not required to elevate such accommodation above seniority or merit systems even though such a system may have discriminatory consequences (Hardison)

4. United States v. Board of Education (1990)a. Facts

i. Muslim teachers wanted to wear her religious garb to schoolb. Take Away

i. Prohibition against religious dress in classroom doesn’t violate Title VII because it cannot be accommodated without undue hardship (Board of Education)

§ 8 - Affirmative Action (10/20/10)

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1. Affirmative Actiona. Constitutional standard

i. Public employersii. Public coercion of private employers (state action)

b. Statutory standardi. Public and private employers

ii. Judicial enforcementiii. Explicit statutory approval of affirmative action for Native Americans

2. Affirmative Action Standardsa. Constitutional Standards

i. Prohibited 1. Strict scrutiny (Adarand)2. Intermediate Level – Morton v. Mancari (Important purpose)3. Rational Basis

ii. Permittedb. Statutory Standards

i. Prohibited 1. Egregious Discrimination – (Sheet Metal Workers)2. BFOQ (not race)3. Manifest Imbalance (Weber)4. Legitimate non-discriminatory reason

ii. Permitted

3. Adarand Construction v. Pena a. All racial classifications by government will be subject to strict scrutiny under the

Constitution and will thus survive only if they are narrowly tailored to serve a compelling governmental interest

b. Mancari is the exception to this . . . Nation Americans have a more lenient standard

4. Morton v. Mancari (1974)a. Facts

i. Indians have preference for employment/promotion with the Bureau of Indian Affairs and non-Indian employees challenge this preference under Equal Employment Opportunity Act of 1972 and Due Process Clause

ii. Indian Reorganization Act of 1934 provides preference to Indiansb. Statutory Question

i. Whether Indian preference under the IRA, sub silentio, was repealed by Title VII and EEOA

ii. A – Court found that Congress did not intend to repeal the Indian preferencec. Constitutional Question

i. Whether the Due Process Clause of the 5th Amendment protects the non-Indians

ii. A – Indians are a quasi-sovereign tribal group and non-Indians in the Bureau of Indian Affairs interferes with their ability to govern themselves

iii. Court applies a lower standard than strict scrutiny, Indians got more deference

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d. Take Awayi. The Indian Reorganization Act of 1934, which gives special preference to

Indians for jobs in the Bureau of Indian Affairs, was not overturned by the EEOA and is not unconstitutional (Morton)

5. Sheet Metal Workers’ Int’l Union v. EEOC (1986)a. Facts

i. Union was found guilty of discriminating against blacks and Hispanics in violation of Title VII. They refused to comply and the district court found them guilty of contempt

b. Take Awayi. Judicially imposed race-conscious affirmative action, as a remedy for

persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination, is not unconstitutional (Sheet Metal Workers)

6. United Steelworkers v. Weber (1986)a. Facts

i. CBA establishes preference for black workers in ‘craft’ positions. They allocated 50% of positions to blacks, and there were almost zero black ‘craft’ employees

ii. Choice of preference = wholly voluntary and private effort to eliminate racial imbalance

b. Notesi. Wholly voluntary preferences do not violate 703(a)/(d): discrimination

“because of’ race or 703(j): employer cannot be required to implement preferences”

ii. Because the racial classification was ‘designed to break down old patterns of racial segregation and hierarchy’ AND it did not necessarily trammel the interests of white employees

c. Take Awayi. Title VII does not forbid all private, voluntary, race-conscious affirmative

action plans (Weber)

7. Johnson v. Transportation Agency (1987)a. Facts

i. TA uses gender as a factor in hiring in order to remedy their history of past discrimination. They want to level the playing field

b. Issuei. Is this discrimination to men because preference is given to women even

though they scored the same on the employment test and almost equal in all other areas

c. Notes

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i. The company’s decision to hire the woman pursuant to an affirmative action plan that represents a moderate, flexible, case-by-case approach to get a fair representation of minorities

ii. To see whether an affirmative action plan is okay…1. Is there an manifest imbalance?2. Is this a traditionally segregated job?

d. Take Awayi. Affirmative action plans generally do not violate Title VII particularly where

they serve to remedy past discrimination where there is a manifest imbalance of gender or race in a traditionally segregated job (Johnson)

ii. THESE OUTCOMES ARE HEAVILY FACT DEPENDENT ON THE CASES WE’RE TALKING ABOUT

§ 9 - Statute of Limitations (10/27/10)1. United Air Lines, Inc. v. Evans (1977)

a. Factsi. You can be a stewardess for United as long as you weren’t married; plaintiff

was fired when she got married; United changed the rule and Evans got her job back several years later; the problem was she didn’t get seniority back which entitled her to better benefits

b. Issuei. Where the statute of limitations was triggered? United argued that it was in

1968 when they fired her for being married; Evans argued that she was discriminated against in 1972 when she was denied benefits

c. Notesi. The Court found that Delta did not have to give her back her seniority because

there was no violation of Title VIIii. You must first exhaust the state process, then you go to the EEOC - they’ll

give you a right to sue letter if they choose not to represent youd. Take Away

i. If a worker who is forced to resign because a discriminatory policy does not file a charge within the statutorily specified time period, any claim for discrimination is lost, even if it has a continuing effect by lessening the current seniority of the worker when later rehired (Evans)

2. Ledbetter v. Goodyear Tire & Rubber Co. (2007)a. Facts

i. Worked at Goodyear and when she was about to retire, she noticed that the men were making more than her; she won at trial, but on appeal the Goodyear lawyers raised the question of statute of limitations

b. Issuei. What activity qualifies as an unlawful employment practice in cases of

discrimination with respect to compensation. c. Take Away

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i. Plaintiff cannot recover for pay discrimination that is the result of intentionally discriminatory pay decisions that were made outside the statute of limitations period (Ledbetter – Overruled)

3. Lilly Ledbetter Fair Pay Act of 2009 a. Plaintiff can recover for pay discrimination that is the result of intentionally

discriminatory pay decisions that were made outside the statute of limitations period (Fair Pay Act overrules Ledbetter).

b. Each paycheck where an employee is paid less, a new claim for discrimination arises - so the statute of limitation starts over

4. Lewis v. City of Chicago (2010)a. Facts

i. Another firefighter test; plaintiffs fall into the “qualified” test results; two groups were picked and only well-qualified people were selected; brought a disparate impact claim; city argued that

b. Issuei. Can a disparate impact claim accrue at all? Yes

c. Notesi. Where the discriminatory act by the employer is intentional (disparate

treatment), the statute of limitations runs from the date that the alleged discriminatory act occurred; later effects of that decision do not restart the clock. [Except when relating to employee pay]

ii. Where the discriminatory act is not intentional (adoption of a neutral test with a disparate impact), the statute of limitations runs from the date of the effect of the adoption of the policy, not the date that the policy was adopted.

d. Take Awayi. The EEOC statute of limitations in Title VII disparate impact cases runs from

the date in which the discriminatory test is applied, not when it is adopted (Lewis v. City of Chicago)

ii. Anytime the city uses the test to hire a firefighter, a new claim arises

5. AT&T Corp. v. Hulteen (2009)a. Facts

i. Pregnancy discrimination by AT&T occurred before the Pregnancy Discrimination Act that we saw in Gilbert was passed

b. Notesi. Because the discrimination occurred before the statute was adopted and did

not apply retroactively, then there was no discrimination because it was legalc. Take Away

i. An employer does not violate the PDA when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally where such pension payments accord with a bona fide seniority system’s terms (Hulteen)

§ 10 - Remedies (11/1/10)

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1. Albemarle Paper v. Moody (CB 602-11) - Equitable Remediesa. Facts

i. Disparate impact case does not require intentional discriminationii. Trial court refuses to authorize back pay because there was no evidence of bad

faith on behalf of the employerb. Court’s Opinion

i. Purpose of Title VI was to make persons whole for injuries suffered on account of unlawful employment discrimination (to remedy present and past effects)

ii. Back pay was an obvious connection to this purposec. Take Away

i. Mere absence of bad faith on employer’s part does not preclude back pay as a remedy for the plaintiff (Albemarle Paper)

ii. Just need to show that employer violated the statute by creating a disparate impact

2. Franks v. Bowman Transportation Co. (CB 616-23) - Seniority Reliefa. Facts

i. Plaintiffs want the seniority that they otherwise would have had if they had been hired absent the discrimination

b. Notesi. Class-based seniority relief for identifiable victims of illegal hiring

discrimination is a form of relief generally appropriate under § 706c. Take Away

i. Identifiable applicants who were denied employment after effective date and in violation of Title VII may be awarded seniority status retroactive to the dates of their employment applications (Franks)

3. Kolstad v. American Dental Association (1999) - Punitive Damagesa. Factsb. Notes

i. Individual1. Discriminate in the face of a perceived risk of liability from the

subjective perspective of the employer2. The employers must know what they’re doing is wrong

ii. Company1. In the context of punitive damages, company cannot be vicariously

liable for its agents where these decisions are contrary to the employer’s “good faith efforts to comply with Title VII.”

c. Take Awayi. To be liable for punitive damages in Title VII cases, the discriminator must

know or perceive risk that its actions will violate federal law - there is no requirement of egregious misconduct, but employer not liable for punitive damages if acting with “good faith efforts to comply with Title VII.” (Kolstad)

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4. Christiansburg Garment Co. v. EEOC (1978) - Attorney’s Feesa. Facts

i. Defendants what attorney’s fees paid forb. Notes

i. Prevailing defendants almost never get attorney’s fees, but prevailing attorney’s using get them

ii. Meritless means that the claims must have no foundation in lawiii. Defendants can only recover attorney’s fees where the action brought is found

to be unreasonable, frivolous, or without foundationc. Take Away

i. A district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation (Christiansburg Garment)

§ 11 - 42 U.S.C. §§ 1981 & 1983 (11/3/10)1. 42 U.S.C. § 1981

a. All persons within the jurisdiction of the United States shall have the same right in Both Title VII and 42 U.S.C. §1981 afford protection from racial discrimination in private employment to all races (McDonald).

b. every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens

i. Without question, § 1981 applies to African Americansii. An individual who establishes a cause of action under § 1981 is entitled to

both equitable and legal relief including compensatory and sometimes punitive damages - back pay is not restricted to the two years specified for back pay under Title VII

c. No need to comply with Title VII administrative rules (not prerequisites to § 1981)d. ONLY APPLIES to disparate treatmente. Broader than Title VII in one area - it covers employers with less than 15 employees

2. McDonald v. Santa Fe Transportation Co. (1976)a. Issue

i. Does § 1981 prohibit racial discrimination in private employment against whites as well as nonwhites? Yes

b. Notesi. Court looks at the language and history of § 1981 to determine that it applies

to both whites and nonwhitesii. It says “All persons” & was introduced as such

iii. When it passed the senate it was not limited to nonwhites, but the House added the “as enjoyed by white citizens” language

1. The amendment was not viewed as limiting the bill’s scopec. Take Away

i. Pretext analysis also applies to reverse discrimination claims under Title VII and §1981 (McDonald)

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3. Johnson v. Railway Express Agency, Inc. (1975)a. Facts

i. Black guy who worked for railroad timely filed an EEOC charge that blacks were being discriminated against with respect to seniority rules and jobs assignments

b. Notesi. The limitation period for claims under § 1981 is determined and applied

independently of claims under Title VIIii. For § 1981, the appropriate limitation is determined by state law

c. Take Awayi. Since § 1981 provides an independent remedy for employment discrimination

with its own distinctive procedures and remedies, the limitations period is determined and applied independently of claims under Title VII (Johnson)

4. 42 U.S.C. § 1983a. Generally

i. Most general of the federal civil rights statutesii. Creates a claim for the deprivation of any federal rights “under color of any

statute, ordinance, regulation, custom, or usage of any state”b. Notes

i. This is a jurisdictional statute just to get into federal courtc. Limitations

i. Like § 1981, claims under § 1983 do not require exhaustion of administrative remedies

ii. Plaintiff can proceed to court, but must do so under the state law for tort claims for personal injury

5. Jett v. Dallas Independent School District (1989)a. Facts

i. White football coach brought a claim for discrimination against a school’s black principal and the school board

b. Issuei. Whether the school board is going to be liable for the actions of the principal

and what is the appropriate standard?c. Notes

i. § 1981 vs. § 1983ii. Congress did not intend municipalities to be subject to vicarious liability for

the federal constitutional or statutory violations of their employeesiii. Thus, to prevail on his claim for damages against the school district, petitioner

must show that the violation of his "right to make contracts" protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.”

iv. If the city or state doesn’t have a custom or policy that the employee is following, then you can’t get to the city or state

v. Court wants to limit liability for city and states

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d. Take Awayi. Claims alleging violations of § 1981 by state and local officials must be

brought under § 1983. As a result, plaintiff must demonstrate action taken by authorized official pursuant to policy or custom (Jett)

§ 12 - Age Discrimination in Employment Act1. Age and Theory of Equality

a. Historical equality (characteristic-blind): Employer cannot consider age in employment decisions but are we as troubled if it is not “the” factor?

b. Economic equality (merit-based): Employer considers age only as it relates to merits of job

i. Age can be an asset or a detrimentc. Remedial equality (opportunity): Employer considers age only to remedy disparity in

opportunityi. Do we have a long history of discriminating against old people?

1. NO - so it’s a little different than the remedial considerations that are present in the other discrimination contexts

ii. There is not a long history of denial of equal opportunity based on age (compared to race/gender)

2. How is the ADEA discrimination different?a. Only protects individuals over the age of 40b. Basically copies the language of Title VII so you’d think the application would be

exactly the same

3. ADEA claimsa. Disparate Treatment (Individual/Systemic) - discriminated because of age

i. Direct Evidence1. Intentional discrimination2. Cause (but-for)3. Adverse employment decision

ii. Circumstantial Evidence1. Shifting burden of proof

b. Disparate Impact - neutral test has discriminatory impact on age

4. O’Connor v. Consolidated Coin Caterers Corp. (1996) - Disparate Treatment (Single)a. Facts

i. 56 year old was fired and replaced a 40 year old. Plaintiff brings claim of disparate treatment under Title VII

b. Issuei. If the company replaces someone who’s protected with someone who is also

protected, does it violate the ADEA?c. Notes

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i. The fact that one person in a protected class lost out to someone who is also in a protected class is irrelevant - so long as the plaintiff lost out because of his age

ii. The age of the person who replaced you is not relevant to plaintiff’s prima facie case

d. Take Awayi. An employee can make out a prima facie case of age discrimination if

replaced by a “substantially younger” worker, even if the replacement is over 40 (O’Connor)

5. Anderson v. Baxter Healthcare Corp. (1994) - Disparate Treatment (Single)a. Facts

i. Plaintiff was fired because the company believed that he failed to maintain the fire equipment

b. Notesi. Mere submission from coworkers or supervisor indicating that an employee’s

performance was satisfactorily is not good enough for a jury to infer that the employee was discriminated based upon his age

ii. Even though Title VII and ADEA use the same language, the court will often require MORE evidence

c. Take Awayi. Like under Title VII, an ADEA plaintiff bears burden to produce evidence

from which a trier of fact can infer that the proffered reason for discharge is false; generalized conclusory evidence will not suffice (Anderson)

6. Hazen Paper Co. v. Biggins (1993) - Disparate Treatment (Single)a. Facts

i. Fired two weeks before his 10 year pension vestsb. Issue

i. Was the employee fired because of age or was it about something else? And if was about something else, was it really about age?

c. Notesi. Court concluded that he was not fired because of his age, but rather it was

because the employer did not want to give him his pension benefitsii. This is true even though there is a correlation between age and pension

iii. Disparate treatment case, liability depends on whether the protect trait (age) actually motivated the employer’s decision

d. Take Awayi. Where an adverse action is not “because of” a protected trait, even if

correlated to that trait, plaintiff cannot establish disparate treatment (Hazen Paper)

7. Gross v. FBL Services - Mixed Motive DOES NOT APPLY TO ADEAa. Issue

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i. The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the ADEA?

b. Notesi. Unlike Title VII, the ADEA’s text does not provide that a plaintiff may

establish discrimination by showing that age was simply a motivating factor.ii. To establish a disparate treatment claim under the plain language of the

ADEA, therefore, a plaintiff must prove that age was the ‘but for’ cause of the employer’s adverse decision.

1. But For = ‘Necessary Reason’ (without age, you wouldn’t have got fired)

a. In the ADEA statute, because of means but forb. But in Title VII, it doesn’t mean “but for” causation at all, it

only means a reason2. Motivating Factor = ‘Sufficient Reason’ (i.e. Price Waterhouse)

iii. Congress did not amend ADEA in 1991 to add motivating factor section, but the Court ignored that Price Waterhouse was the controlling precedent

c. Take Awayi. The “motivating factor” test DOES NOT APPLY to age discrimination

(ADEA) claims; and there is no burden of persuasion shifting as to causation in such cases (Gross)

ii. ADEA plaintiff must show “but-for” causation through direct evidence or the McDonnell Douglas burden shifting analysis

8. Smith v. City of Jackson (2005) - Disparate Impacta. Facts

i. Younger police officers are given higher bump in pay and the older officers say they’ve been discriminated against based on the their age

b. Issuei. Whether claims based on the theory of disparate impact could be asserted

under the ADEA.c. Notes

i. Yes, but it is a weaker, more narrower versionii. Difference between statutes

1. ADEA was amended with Title VII in ADEA2. Reasonable factor other than age defense

iii. There’s not been a history of discrimination in age and it makes sense that the disparate impact claim is narrower

d. Take Awayi. Claims based on disparate impact can be asserted under the ADEA although

the standard of justification requires only reasonableness (Smith)

9. Meacham v. Knolls Atomic Power Laboratory (CB 740-45)a. Factsb. Issue

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i. Whether an employer facing a disparate impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the fact finder of its merit

c. Notesd. Take Away

i. When an employer raises a defense of “reasonable factor other than age” while defending a claim of disparate impact, the employer bears the burden of proving that claim (Meacham)

10. Western Air Lines v. Criswell (CB 746-56) - Bona Fide Occupational Qualificationsa. Factsb. Issue

i. Whether the jury was properly instructed on the elements of a bona fide occupational qualification

c. Notesd. Take Away

i. For mandatory requirement to be justified under the extremely narrow BFOQ defense, age qualifications must be “reasonably necessary to the particular business” and it must be “impossible or highly impractical” to evaluate older employees on an individualized basis (Criswell)

§ 13 - Americans With Disabilities Act1. Introduction

a. Similar to Rehabilitation Act of 1973i. Applies to the federal government and federally funded programs, and federal

contractorsb. Americans with Disabilities Act (ADA): Applies to all employers with at least 15

workersi. The ADA of 1990 generally prohibits private employers, state and local

governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities

ii. It also applies to employment agencies and to labor organizationsiii. This statute has a byzantine series of provisions and regulations that uses

words defined elsewhere in the statute1. Check to see if it’s defined in the statute

2. ADA Elementsa. An employer is required to make a reasonable accommodation to the known disability

of a qualified applicant or employee if it would not impose an ‘undue hardship’ on the operation of the employer’s business

i. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure or its operation

b. An individual with a disability is a person who:

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i. Has a physical or mental impairment that substantially limits one or more major life activities;

ii. Has a record of such an impairment; ORiii. Is regarded as having such an impairment (even if you don’t)

c. A qualified employee or applicant with a disability is an individual who, WITH OR WITHOUT REASONABLE ACCOMMODATION, can perform the essential functions of the job in question

i. Reasonable accommodation may include, but is not limited to:1. Making existing facilities used by employees readily accessible to and

usable by persons with disabilities2. Job restructuring, modifying work schedules, reassignment to a vacant

position3. Acquiring or modifying equipment or devices, adjusting or modifying

examinations, training materials, or policies, and providing qualified readers or interpreters

3. ADA Analysisa. Plaintiff must show:

i. He/she has a disability (physical impairment, in a major life activity, and is substantially limiting) and

ii. Defendant discriminated against him/her based on that disability (failed to provide a reasonable accommodation)

b. Defensei. Did plaintiff pose a direct threat to the health and safety of others?

4. Bragdon v. Abbot (1998)a. Facts

i. Lady who had HIV went to the dentist who determined that she need a cavity filled. The dentist refused to fill the cavity at his office. He said it could be performed at a hospital but the patient would need to pay for her hospital stay

b. Issuei. Is plaintiff’s HIV a physical impairment? Yes - from the moment of infection

c. Notesi. Does HIV substantially impair a ‘major life activity?’

1. Yes - Major life activities include ‘functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’

2. Here, she can’t have children due to the risk of infectionii. So, plaintiff must show:

1. He has a disability: physical impairment (Yes), in a major life activity (Yes), and is substantially limiting (Yes)

2. And the defendant discriminated against him based on that disability (failed to provide a reasonable accommodation)

3. And the plaintiff did not pose a direct threat to the health and safety of others

d. Take Away

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i. To establish an ADA claim based on the existence of a physical disability, the plaintiff must demonstrate that he/she has a physical impairment that substantially limits one or more major life activities (Bragdon)

5. School Board of Nassau v. Arline a. Facts

i. School teacher was fired after suffered a third relapse of tuberculosis within two years, a disease that’s contagious in certain circumstances. She sued under § 504 of the Rehabilitation Act (predecessor to ADA with same language)

b. Notesi. Court said that it was impossible to separate plaintiff’s contagiousness from

her physical impairmentc. Take Away

i. A person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of § 504 of the Rehabilitation Act of 1973 (Nassau)

6. Sutton v. United Air Lines (CB 785-99)a. Facts

i. Twin sisters have severe myopia, but with corrective lenses each has 20/20 vision. The sisters applied for jobs as commercial airline pilots, but United informed them that they didn’t meet the minimum vision requirement and terminated their interview

ii. An individual with a disability is a person who:1. Has a physical or mental impairment that substantially limits one or

more major life activities; 2. Has a record of such an impairment; or 3. Is regarded as having such an impairment.

b. Issuei. Can the effects of plaintiff’s corrective measures (glasses) be taken into

account?c. Notes

i. Under plaintiffs’ first claim that United discriminated against plaintiffs because of their disability - § 3(1)(A)

1. Court found that because once the plaintiffs wore their glasses their disability was corrected

ii. A “disability” exists only where an impairment “substantially limits” a major life activity, not where it “might,” “could,” or “would” be substantially limiting if mitigating measures were not taken

iii. Under plaintiffs’ third claim that they were regarded as having an impairment - § 3(1)(C):

1. A covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual- it must believe either that one has

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a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting

iv. Under substantially limited…1. There must be several jobs that you can’t do2. Major life activities must be a class of activities

d. Take Awayi. Mitigation measures count towards consideration of whether one has a

disability, and major life activities must be a class of activities (Sutton)ii. Sutton requires physical and mental conditions to be evaluated in their

corrected state in order to determine whether they substantially limit a major life activity

e. ADA AMENDMENTS (2008)i. Impairments are now to be evaluated “without regard for to the ameliorative

effects of mitigating measures"ii. The definition of “disability” and “substantially limits” shall be interpreted in

“favor of broad coverage”iii. Exceptions

1. Impaired vision that could be corrected by ordinary eyeglasses or contact lenses

2. So the Amendments basically affirm the holding of Sutton

7. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (CB 818-22)a. Facts

i. Plaintiff based her claim that she was “disabled” under the ADA on the ground that her physical impairments (carpal tunnel syndrome) substantially limited her in (1) manual tasks; (2) housework; (3) gardening; (4) playing with her children; (5) lifting; and (6) working, all of which, she argued, constituted major life activities under the Act

b. Notesi. To be substantially limited in performing manual tasks, an individual must

have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives

ii. The impairment’s impact must also be permanent or long-termc. Take Away

i. When assessing ‘disability,’ one must look to tasks in one’s ordinary daily life, NOT employment related activities (Toyota)

8. ADA Amendments (2008)a. Main purposes

i. Reject Sutton’s requirement that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures

ii. Reject Sutton’s view of third prong (regarded as)

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iii. Reject Toyota’s view that the terms ‘‘substantially’’ and ‘‘major’’ in the definition of disability under the ADA ‘‘need to be interpreted strictly to create a demanding standard for qualifying as disabled’’

b. New Definitionsi. Major Life Activity:

1. Includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working

2. Also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

ii. Disability:1. Disability in this Act shall be construed in favor of broad coverage of

individuals under this Actiii. Substantially Limits

1. Does not allow consideration of mitigating effects … except eyeglasses and contact lenses (if you can correct your vision, then you’re not disabled)

c. Summaryi. Nassau is embraced.

ii. Sutton is abandonediii. Toyota is abandonediv. The definition of disability is broadenedv. “Substantially limits” does not allow consideration of mitigating effects …

except eyeglasses and contact lenses

9. Southeastern Community College v. Davis (CB 826-32)a. Facts

i. Davis wants to be a nurse but she can’t hear so she brings a suit under the Rehabilitation Act

ii. She can only read lips and cannot make out different sounds unless spoken directly at

b. Notesi. Court finds that she’s not otherwise qualified because you have to show some

level of qualification ii. Could they accommodate her though? No, the burden is too high

iii. Can’t change the entire nursing program to accommodate heriv. School’s unwillingness to make adjustments was not discrimination

c. Take Awayi. Section 504 does not require an educational institution to “lower or to effect

substantial modifications of standards to accommodate a handicapped person” (Davis)

10. U.S. Airways v. Barnett

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a. Factsi. Baggage handler wants to switch jobs as a reasonable accommodation but to

transfer his seniority would conflict with other people’s seniorityb. Notes

i. Court found that the seniority system prevailed because changing its seniority would be an undue hardship on the operation of its business

ii. You can’t demand that you should get a job over someone with more seniorityc. Take Away

i. Employers do not have to make an ADA accommodation for disabled persons when such accommodations conflict with seniority rules, unless plaintiff can show special circumstances that would make such an accommodation “reasonable” (Barnett)

11. Chevron U.S.A. Inc. v. Echazabal a. Facts

i. Worker has Hepatitis C and the company told him that he couldn’t work because it would make his condition worse

ii. Plaintiff sues Chevron under the ADAb. Notes

i. The ADA conflicts with the Regulation as the correct qualification standardii. Does the ADA preclude the regulation?

c. Take Awayi. ADA does not preclude EEOC regulation from defining harm affirmative

defense to include harm to self (Exhazabal)

12. Albertson’s v. Kirkingburg a. Facts

i. Truck driver has myopia and the company says that it doesn’t want him to drive because he doesn’t meet the DOT’s driving requirements

ii. But there’s a waiver in the DOT’s requirements that says after 3 years without an accident, the requirements are waived

iii. However, the company’s policy does not allow for a waiverb. Notes

i. Court said this is a job related business necessity and the company should not have to adopt the federal standard

ii. The company’s standard is higher than the federal standard1. Just because the federal rule allows one thing, doesn’t mean the

company has to as wellc. Take Away

i. Employers can use federal law as a basis for establishing a ‘job necessity’ requirement under the ADA, even if the federal law can be waived in certain circumstances (Kirkingburg)

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