Employment Discrimination

Reeves v. Sanderson Plumbing Prods. Inc. (2000)

when plaintiff presents evidence proving pretext, that is ordinarily enough to go to a jury; not pretext plus standard for plaintiff, plaintiff's pretext evidence also ≠ Judgment as Matter Of Law for plaintiff i) The burden shifting framework was applied: (1) Reeves is able to prove his prima facie case of age discrimination (2) Sanderson proffers an LNR: He was sloppy with time records and changed records to cover for people who were late. (3) Reeves rebuts: He was actually just fixing errors with the machines and other stuff he was blamed for was not his job, or happened when he was on vacation ii) Procedural history (1) Jury finds for Reeves and he gets double liquidated damages because it was "willful." (2) 5th Cir. grants JNOV because Reeves never showed that discrimination was the real reason, just rebutted the LNR/showed pretext (Pretext-Plus) iii) Held: Disproving LNR and proving pretext is enough for factfinder to find discrimination. (1) π proving pretext raises factual issue that precludes judgment as a matter of law at any stage (2) SCOTUS rejected pretext-plus: π does not necessarily need additional evidence after showing pretext (3) In a situation where π disproved LNR and the jury found for P, the jury verdict can be overturned if the evidence did not suffice to allow a reasonable juror to find discrimination (a) When reviewing lower court's decision, the appeals court should not be a factfinder and substitute its own judgment iv) Instead, pretext gives rise to a permissive inference of discrimination. (1) In some cases, it may still be that a reasonable FF could not find that the action was discriminatory even after rebutting the LNR, but not always. (2) Court must assess the evidence and find whether reasonable FF could find for π on the discrimination issue; if not, D still wins as a matter of law. v) Ginsburg concurrence: thinks it should almost always go to the jury when π has convincing evidence attacking an LNR (1) Even today, we don't know for sure what happens when a plaintiff wins the burden shifting game; usually, it will go to the jury, but sometimes the defendant could win if they have a vast majority of the evidence (2) The general rule is that this is enough (3) In theory, it could be possible for plaintiff to win on SJ merely by rebutting the LNR, but it would never, ever happen d) Why is the Court resistant to idea that disproving LNR is enough? i) It places the burden of persuasion on D (1) But π had burden of proving the pretext was wrong ii) Some Ds could not explain reasons for conduct, but their conduct was not discriminatory e) What is the benefit of burden shifting? i) π gets favorable inferences ii) Allows for more discovery iii) Adds a focus to the case that allows π to attack D f) Furnco, 1978: we assume defendant's silence = D i) A prima facie case raises inference of discrimination b/c if Δ cannot explain act as something other than discrimination, we have to consider that there was a reason that it may have been discrimination ii) Why isn't this the law anymore? (1) Discrimination used to be very explicit (2) We have a more conservative court (3) There's a perception that discrimination lawsuits are often frivolous (4) Courts may imagine that we live in a less discriminatory world

National Origin & Alienage

Check out chart on page 64

Even when black women are plaintiffs and bring intersectional claims, they can only represent other black women

Few black women in the workplace, so class actions unlikely

Impartiality model of Anti-Discrimination Law

1) The aim of ADL = treat similarly situated people the same. The law is a neutral force to make the employment process free of irrelevant considerations of race/gender 2) Individual analysis w/ the perspective focused on the current situation 3) Employers have to be impartial w. respect to employee's traits 4) can be broad or narrow See: Griggs

Conclusion & Themes

1) Not covered by Title VII: sex. orientation, height, weight, appearance, credit history, criminal background. The battle to add classes is really in the legislative branch, not judicial 2) Classes that get heightened scrutiny: a) Frontiero v. Richardson: At the time of the case, only race got heightened 14 th Amendment scrutiny. This case added sex because it satisfied these factors: a) History of Discrimination b) Immutability c) Visibility d) Political Powerlessness e) Similar in ability to contribute to society (1) Similar to "qualified" from ADA doctrine b) Now, race, alienage, religion get strict scrutiny c) Sex and legitimacy get intermediate scrutiny d) Disability and sexual orientation get "rational basis with bite" e) It's not always clear that the Court uses the Frontiero factors, but they seem to be the factors used, even in Title VII cases 3) Weight a) Portnick (Jazzercise case) a) A jazzercise instructor was good at job, but was ultimately not kept because she was fat b) Should the law protect her right to be a jazzercise instructor? (1) She was capable of doing the job, but negative stereotypes about fat people affected her job qualifications—but should weight be given Title VII protections? (2) Δ would have a BN/JR: people go to these classes to get in shape. They prefer thin instructors because the customers themselves want to be thin (a) They can even argue that she's not qualified for the job if Δ argues that projecting an image of thinness is important to the product sold to customers (3) Her opportunities are limited by stereotypes, not ability. There's a sense of injustice, but as things stand, she has no claim unless she tries to go the ADA "regarded as" route, but that's a stretch b) Telemarketer case a) Despite being a successful saleswoman, appearance still an important consideration b) Does it matter that clients have a preference for thin salespeople? (1) It would add to a BN/JR defense because customer preference here doesn't carry the same considerations as in a race or sex case 4) Appearance a) Ex. The W Hotel only hires people who look like models. Do we care? a) While they say they're projecting an image of beauty, we wouldn't allow them to project an image of white America b) Appearance is very subjective—how do you determine who is in a protected group if appearance is a protected group? 5) Class a) How much of appearance/weight/etc is just class? b) There is definitely a history of discrimination according to class c) Hypo: a) Law firm takes applicants to lunch and judges table manners as a job requirement (1) This tends to screen out people from lower socioeconomic status. While there may be a related DI claim for race, is it enough that people are excluded from opportunities because of class? (2) BN/JR: the law firms can say they don't care about class, they care about whether the applicant would be able to hold their own at a lunch meeting with rich clients

tangible employment action?

A significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position.

Constructive Discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave.

How to avoid arbitration:

Basically there are two ways to get out of arbitration... (1) Say it's unconscionable under state law; a high bar and likely to be barred by FAA. (2) Say it wasn't a valid K.

BFOQ

Bona Fide Occupational Qualification Title Vii: instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise a) Note: There is no BFOQ defense for classifications based on race b) ALSO no BFOQ under the ADEA Always construed very narrowly and rarely applies in practice

If the employer accommodates some women to some extent, like light duty, it's easier to get away with not accommodating one worker's specific request

But when all pregnant women are denied accommodations, then the employer is fighting an uphill battle

Hypo: You represent an employee who files complaint with EEOC and gets fired the first day after notice goes out; no other evidence that the two are related.

Courts hold that closeness in time can sometimes be enough to make out the prima facie case, but it has to be very close in time, like finding out on Monday and firing on Tuesday.

EEOC v. Dial, 2006

EEOC wins on D/T and D/I claims, but seems like defendant's should win at least one i) Dial made workers do a lifting and moving test called the Work Tolerance Screen, the WTS. They claim that... (1) Their experts say it tested actual skills you need to do the job (content validity) (2) Injuries have decreased (indirect criterion validity: Basically, since we use the test and injuries are down, that must mean that it predicts your ability to do the job without getting injured) (a) Court didn't buy it. You'd need to test employees and show a link between performance on the test and occurrence of injuries ii) EEOC brings action under two theories: covert systemic disparate treatment and DI (1) Note that this means the trial was conducted in two stages: Jury trial for DT, then bench trial for DI, because there are no jury trials for DI iii) Applying the analysis: Covert systemic disparate treatment. (1) π doesn't think the tests were scored fairly. Women did just as well as men, but were scored lower. Before the test, women were able to actually do the job. (2) Prima facie case (Teamsters/Hazelwood): uses statistical evidence (a) Bottom line evidence passes muster to prove this up, but it wouldn't work for disparate impact prima facie case because it doesn't identify a PEP (3) Legitimate non-discriminatory reason (Sears) (a) The LNR: Strength and doing it right, not gender, explains this disparity--strength test (b) EEOC responds: Women are being failed on the soft factors when they should pass (c) Dial: Men and women are different; women fail the test (d) EEOC: You used to have 46% women and it's falling; they could do the job then, why not now? iv) Applying the analysis: Disparate impact. (1) Disparate impact: LNR becomes pfc case for D/I (a) Employees/EEOC show that the strength test/scoring screens out a disproportionate number of women (b) Like it often is, both parties rely on the same fact as the LNR and the disparate impact elements (2) Business necessity/job relatedness (a) Content validity: Their expert says that the test is just doing stuff that you have to do in the job (i) Rebuttal: Test is harder than the job (b) Criterion validity: Passing the tests makes you less likely to get injured (i) Rebuttal: That's because OSHA stuff got implemented around the same time (3) Less discriminatory alternative employment practice: (a) Better workplace safety practices, if fully implemented, would get you the same reduction in injuries and wouldn't be discriminatory (b) π didn't offer an LDA; π could have proposed a strength test with stronger content validity like doing the actual lifting necessary for the job v) Held: EEOC wins on both theories (1) This is sort of inconsistent to the extent disparate treatment is about intentional discrimination and disparate impact is about unintentional discrimination, but consistent to the extent that disparate impact is about discrimination that isn't probably intentional (2) DI: tests caused disparity, even if tests were administered fairly (3) DT: tests were administered unfairly (a) Additional possible DT claim: why was the test adopted in the first place? Was it to hire less women (Feeney)

Garcia v. Spun Steak (1992);

Generally, English-only workplace rules do not discriminate against Spanish-speaking employees. Exceptions apply, but usually, the business necessity requirement applies. i) Specific Holding: no right to express cultural identity at work so SJ granted against most plaintiffs; remanded for determination for Spanish only plaintiffs b/c not being able to talk at work would negatively impact the benefits and privileges of employment or terms and conditions ii) Factory where most employees are Hispanic and all but two speak English. Other employees say that named plaintiffs were talking shit in Spanish about other non-Spanish speaking employees iii) The workers' arguments: (1) the rule denied them their right to express their cultural heritage in the workplace; (2) the rule denied them a privilege that monolingual English-speaking employees had; and (3) the rule violated the EEOC guidelines and created "an atmosphere of inferiority, isolation, and intimidation." iv) The EEOC guidelines for English-only rules: (1) If it applies at all times, that's a per se Title VII violation that can't be justified by business necessity (2) If it's a "sometimes" policy, the prima facie case is stipulated but the business necessity could still be shown v) Held: Summary judgment for employer, but remanded on issue of whether employees who just don't speak English at all might be unduly burdened. (1) Reasons: (a) You don't have a right to express your cultural identity at work, (b) The rule doesn't discriminate; it doesn't give Anglophone employees any benefit that Spanish speakers get (c) EEOC's guideline is rejected by the Court (i) Unlike agencies with rulemaking authority, the EEOC's guidelines don't get Chevron deference (ii) They just aren't supported by the policy of Title VII vi) Held: They haven't even made out a prima facie case because this doesn't rise to level of affecting the terms and conditions of employers (1) There was certainly an impact, but not a significant one (de minimis) vii) Dissent: We should have deferred to the EEOC; they're the ones with the expertise

Coleman

However, the self-care provision is NOT a congruent and proportional, so it is not a valid exercise of the 14.5 power; can only be exercised under commerce clause power, more limited than 14.5 power (1) No past discrimination rationale to back this rule up (a) Ginsburg dissent: We need the self-care provision. Otherwise care-giving remains a stereotype perpetuating women as caretakers

National origin:

Individual/ancestor's place of origin or having the characteristics of having that place of origin

Griggs v. Duke Power Company

Landmark Supreme Court decision stating that tests must fairly measure the knowledge or skills required for a job requiring diploma/IQ test only permissible when tests are related to job performance 1) Duke Power Used to have totally segregated work force -> tried to use new policy after Title Vii that req'd high school diploma to transfer/get promotion 2) Disparate impact law...why have it? to get discrimination that is hard to see 3) Held: Using IQ/high school diploma as req'ment is unlawful under Title VII under disparate impact theory -> flunks business necessity -> Ct notes that under disparate impact theory you don't have to prove any malice/intent behind discrimination, but there probably was some in this case

Alienage:

Not being a US citizen (immigration status) IRCA requires employers to discriminate based on work authorizations, but not between citizens and permanent residents (1) Requires discrimination against undocumented people; but prohibits discrimination among citizens and legal residents (2) Institutes paperwork requirements to verify work authorization. Employers are supposed to check docs. If they seem legit, then employers are supposed to accept. Can't ask for more or different docs to engage in further discrimination

Young v. UPS (2015)

PDA doesn't require giving same accommodations to pregnant women as those w/ disability; part 2 says treat them no differently than others, not treat the same as the person with the largest accommodation i) Under UPS' rules, 3 classes of employees qualified for reassignment to light duty: (1) Injured on the job (2) ADA (3) People who lose DOT certification (4) Pregnant women were excluded from reassignment qualifications ii) π: Pregnant women should get the same accommodations as disabled people (1) If anyone is accommodated, pregnant women should get accommodated ("most-favored nation" status: giving a promise that they'll get the best or equivalent deal) (2) Court: no. Congress didn't intend this interpretation. Granting pregnancy equal status to ADA would require accommodation for pregnancy elsewhere iii) Δ: 2 nd prong of PDA only says gender discrimination includes pregnant women. Whether pregnant or not, pregnant women get treated the same as everyone who doesn't fit the three categories (1) Court: no. The Δ in Gilbert argued that their facially neutral rules just happened to impact pregnant women more and Court didn't buy it there either. iv) The Court instead pointed towards a McDonnell-Douglass framework (1) What LNR could satisfy employer's burden? (a) Something more than just cost/convenience. It's hard to see what would satisfy the burden. (b) If the employer is accommodating a large group of people, but not pregnant women, the LNR becomes harder to prove because it starts to look more like pretext (i) Note: If UPS said they'd only cover on-the-work injuries, it would violate the ADA

Diagram of Section 703(a)(1)

Protected Class/Trait -Employer Discriminates against that trait-> Terms, conditions, or privileges of employment (page 2 of outline)

Pretext-Plus

Requirement for an applicant (or employee) to show both that the employer's explanation for making an adverse employment decision was untrue and that the true motivating factor was discriminatory Employer has burden of production for LNR, but plaintiff has ultimate burden of persuasion. Knocking out the LNR isn't enough. π must prove by a preponderance of the evidence both that the asserted LNR is pretextual and that discrimination was the real reason for the AEA π does not win as a matter of law just by disproving LNR

remediation of past discrimination

The policy we want is for "employers and unions to self-examine and to self- evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history."

Mixed-Motive Cases and the 1991 Civil Rights Act

The situation: When employer was motivated by both permissible and impermissible factors

Customer harassment liability

This is also governed by a negligence standard, but reasonableness standard is likely lower than in coworker liability

McDonald v. Santa Fe Train Trans. Co

Title VII and 1981 also protect white people from racial discrimination i) White plaintiff is fired for stealing antifreeze but says that it was discrimination because his black accomplice wasn't fired. (1) Defendants will try to argue that the black perp's culpability level was different, but precise equivalence isn't the standard. ii) Held: Title VII and 1981 also protect white people from racial discrimination. This claim is allowed. iii) Both sides marshal different versions of legislative intent: (1) Dissent says that per McDonnell-Douglass: Purpose of Title VII was to stop patterns of discrimination that hurt minorities. (2) Majority says that the purpose was to protect people of "every race and color."

Degraffenreid v. GM, E.D. Mo. 1976

Title VII doesn't cover intersectional claims -- gotta fit in either race or sex; intersectional groups not new protected classes under Title VII (1) Black women brought suit alleging GM had discriminated against them for being black women (2) Held: They could bring either race or sex claims but not this intersectional claim (a) Black people and women are protected classes, not "black women," and there's no evidence they discriminated against women or black employees as a whole (b) If we allow this kind of claim, we'll create a lot of intersection claims (3) Discounts the possibility that black women have experiences different from white women and black men

Washington v. Davis (1976)

USSC: Established that employment selection tools that adversely impact protected classes are lawful if they have been validated to show future success on the job Only Disparate Treatment claims allowed in con law, Disparate treatement claims req discriminatory intent 1) Washington DC gov't used IQ test that negatively impacted minorities (Title Vii didn't apply to gov't jobs then so this was broughy under the 14th amendment) 2) Held: Under 14th amendment, you're required to show some form of discriminatory purpose or intent (left door open to use disparate impact as evidence of intent) -> constitutional claims can't be brought under disparate impact; it has to be under Title VII 3) Stevens' Dissent: An actor presumed to have intended the natural consequences of his deeds -> there isn't even a "bright line" b/w intentional and unintentional, or b/w DI and DT. If the actor intends deed and deed has DI, isn't the deed intentional? 4) Policy critique by Thomas: DI theory assumes discrepancies are due to discrimination

Narrow impartiality

Using neutral rules is enough

Wal-Mart Stores v. Dukes, US 2011

commonality in R. 23 is a stronger standard than once thought; no commonality in nationwide class where underlying D is the policy to let thousands of individual managers employment decisions based on subjective criteria; employment D classes must be under (b)(3), even backpay counts as (b)(3) "damages"; Watson likely not appropriate for class actions b/c subjective decisions and decision makers are highly individualized (and therefore not common) a) π's general claim: Walmart managers' discretion on pay and promotion was applied subjectively in a way that led to discrimination against women b) The biggest class-action civil rights case in US history: Wal-Mart has big disparities in promotions, pay, etc. between women and men. The evidence: (1) Both sides have experts and cross examine each other's experts (a) Statistical evidence (multivariate regression) where they controlled for a ton of other possible factors including performance (i) In Walmart: heavier on pay issue than promotion; inside regions and stores (ii) Outside Walmart: πs show that women at other stores similar Wal-Mart don't have such a big disparity useful for countering lack of interest arguments that Δ might have about the labor market (b) Plaintiffs show statistically significant differences (i) The higher up the management chain, the bigger the gender gap (c) Defendants say that when you control for a few more factors, including some dubious ones like "starting pay" then the disparities start to go away (d) Plaintiff wins on this stuff at trial court level (2) Plaintiffs offer a significant amount of anecdotal evidence (a) Majority: 120 anecdotal reports aren't enough when there's millions of πs (i) Dissent is concerned that this would create a proportionality requirement 1. Majority says that they're not creating a proportionality requirement, but it's also not clear how much anecdotal evidence would be enough. They just said 120 wasn't enough in this case (3) Social framework evidence: Sociological-like evidence of Wal-Mart's corporate culture. The idea is that even if people are individually exercising their discretion, they're all doing it within the context of a common culture of women-hating (a) This discretion is going to be exercised in a common way because of this common culture, says the expert (b) Majority doesn't buy it because it's not a specific employment practice (i) But, isn't the policy of relying on managers' subjective discretion one? c) Plaintiffs' theories of liability: D/T, D/I, D/T by D use of neutral policy (Feeney) (1) Disparate treatment: (a) Because they are women, πs got less pay and fewer promotions (i) Even if you just looked at management, they knew the policies would have this impact and they allowed it to continue (ii) πs have to show that even though there are many autonomous decision makers, they're all acting as part of a common practice 1. This is a pretty tough hill to climb to show a common practice, have to show that every manager at every store had the same policy of not promoting women (b) Disparate treatment: π challenged the policy of giving broad discretion to managers. (i) WM used "willingness to relocate" as one of its criteria for managers; this probably has a disparate impact on women 1. It might be that male superiors are assuming this and engaging in DT, too (2) Disparate impact: WM's company-wide policy of delegating promotion decisions to individual managers and letting them make promotions..falls disparately on women (a) Still not enough commonality to tie together millions of women as plaintiffs (3) D/T via D use of neutral policy: neutral policy of letting managers make decisions this way was actually D/T b/c Walmart knew policy had this effect on women d) Held: Reverse grant of class certification. (1) The anecdotal reports aren't enough to show commonality under Rule 23(a) (a) Dissent: In Teamsters, we said that you don't necessarily have to have any anecdotal evidence (2) Before Wal-Mart, the "commonality" prong was believed to be pretty lenient, but WM tightens it up considerably. (a) The discretion indicates the opposite of commonality. (3) Also, this was not appropriate under (b)(2) because monetary relief does predominate, so they should have been under (b)(3). (a) πs would have thought they would get away with it because back pay is equitable relief (b) Court responds: That classification is for remedies purposes, not class certification purposes (i) If it's about something individual plaintiffs get, it has to be under (3) (ii) This means that most employment discrimination class action will have to be under (b)(3) (c) It sort of makes sense because, practically speaking, if this resulted in a judgment, how is that pie going to be divided up? (i) Plaintiffs want to do a "trial by sample." Actually have hearings for a manageable sample of plaintiffs that's representative of the class and extrapolate (ii) District court did figure out that Wal-Mart had a huge database with everyone's info on there so you really could find out who everyone's counterparts of the opposite gender got paid (4) SCOTUS never actually decides the merits of this case, but is there really a difference between resolving the issue of commonality like this and resolving the merits of the case? (a) Answering the question of commonality seems to involve addressing the merits of the case (5) Manageability: doesn't seem to be addressed but it will be a high bar to clear. e) Aftermath: (1) Are we really going to have hundreds of thousands of hearings on this? Not really (2) IF we're going to have class actions, they're going to be smaller in scope than this one (3) What is left of Watson, which held that leaving everything up to discretion can give rise to disparate impact liability? (a) It seems that it may survive, but only as to individual claims and not class action/certification (i) E.g. you can still go after a single decision-maker (b) The Walmart court assumes that most managers would use their discretion in a way that wouldn't be discriminatory; this seems to weaken the inference necessary for Watson-type liability (4) What's left of Hazelwood? In that case, they proved a pattern or practice without having to prove that every principal was actually discriminating. (a) It wasn't a class action, but... (b) EEOC doesn't have to follow Rule 23; they just have to prove pattern & practice (5) What about Teamsters? (a) It's cited with approval for the fact that it had anecdotal evidence, but a proportional amount to the number of class members (b) Maybe at some point, you're so big that even class action procedure isn't enough on its own. They might need more site-specific evidence (c) The plaintiffs brought a CA-wide case instead of a nation-wide case and that failed for basically the same reason (6) You can differentiate from Walmart from a lot of these cases by pointing to the sheer size of the class in Wal-mart (a) Teamsters was also national, but it had an "inexorable zero" (b) This could limit the applicability of Walmart (7) How can you bring a class action suit now? (a) Make the same case, but in a smaller size (e.g. by state) (b) Limit the claim (e.g. challenge the promotion practices of going from associate to manager) (i) This makes it harder to challenge and change corporate culture (c) Do a D/I class action

Laughlin v. Metropolitan Washington Airports Authority, 4th Cir. 1998

activity under opposition clause must be reasonable, courts use balancing test: balance the interest in protecting activities opposing discrimination against the employer's interest in having control over personnel (1) Plaintiff sees a document on boss's desk that was related to allegations made by LaSauce that she got retaliated against in another co worker's investigation. She scans and sends confidential documents to LaSauce and gets fired for that (2) Held: No liability because she was not engaged in protected activity (a) We are not under the participation clause because there was actually no ongoing investigation yet and nobody asked her to get those documents; she just went rogue (b) Nor are we under the opposition clause because she wasn't participating in a protected activity. (i) Balancing test: Balance the purpose of the act to protect persons engaging in reasonably in activities opposing discrimination against the employer's interest in not having their hands tied in the objective selection and control of personnel (ii) Essentially a second caveat under opposition clause: Your activity opposing the discrimination has to have been reasonable 1. Court thought her actions were disproportionate and unreasonable 2. Illegal actions presumptively unreasonable: a. That's why retaliation claim didn't work in McDonnell-Douglass (illegal protest) (iii)Many employees try to steal internal documents, etc. but this almost always turns the retaliation case into a loser (c) She could have been justifiably fired for disloyalty

Johnson v. Transp. Agency of Santa Clara County, US 1987

articulates test for voluntary AA plans from Weber; voluntary AA only okay when manifest imbalance in a traditionally segregated job category, and policy can't unduly trammel the interest of other employees a) The Transportation Agency, Santa Clara, California promoted Diane Joyce to road dispatcher over Paul Johnson. a) Both candidates were qualified for the job. As an affirmative action employer, the Agency took into account the sex of the applicants in making the promotion decision b) At the end of the day, it was basically because of the AA policy that she got hired b) Court upholds the AA plan/Joyce's promotion a) Conceptually: The AA plan is the LNR in the McDD analysis, then Johnson has the burden to show the plan is invalid/pretextual. He can't make this showing b) Held: An employer may only adopt an affirmative action policy when... (1) There is a manifest imbalance in a traditionally segregated job category; AND (2) The policy must not unduly trammel the interest of other employees (3) This shows that the plan is addressing past discrimination (a) Note: to the Majority, it doesn't seem to matter whether the discrimination came from the employer or from external sources. A voluntary plan means you don't require π or Δ to battle over what the source of discrimination is. Potential sources for discrimination: (i) Employer's own DT (ii) Employer's practices causes DI (iii)Other employers' DT (iv)Other institutions like schools (v) "Social Attitudes" (vi)Biology 1. Scalia suggests women are biologically not attracted to manual labor (4) What is a manifest imbalance? (a) What numbers do you compare? It was easy here since the number was 0 (b) Fn.10: Takes training into account. Addresses O'Connor's contention that an employer is only allowed to adopt a plan when someone could sue and make a prima facie showing. Court is concerned that without a plan, no one can become qualified and become a π and show a PFC (i) Majority wants to take into account people who could become qualified c) How to define the manifest imbalance? (1) Compare to relevant labor pool? (a) Here, it's the inexorable zero, so there isn't an issue (b) General rule: Compare employees to the labor market (c) If it's a skilled subsection, compare to the skilled labor market. The only people who could apply for the job were those who had some skills (i) Teamsters: most skilled so we assume most city drivers would apply to be line drivers, vs Sears, where different skills for selling washing machines and selling makeup d) It doesn't have to be the case that the employer would lose a disparate impact case for there to be a manifest imbalance e) It's okay that sex was used merely as a plus factor; they considered many different factors and if sex was the one that pushed her over the edge, that's okay. (1) He didn't have a "legitimate, firmly rooted expectation" in getting this job; he knew it was a holistic situation and he didn't even get the #1 highest score c) O'Connor's concurrence: a) Employer must have a firm basis for believing that remedial action is required. (That some plaintiff could sue them.) Voluntary action in the shadow of litigation. That is when the employer is allowed to take voluntary action. For Justice O'Connor, voluntary action almost has to be in the shadow of litigation. (1) An employer would have such a firm basis if they had a statistical basis to make a prima facie case d) Scalia's dissent: a) This is not because of discrimination, it's because of social attitudes and biology b) This isn't like Weber because there, there was a problem with discrimination, but here there wasn't c) What really happened was that Johnson got the job he would have gotten taken away because of sex

BFOQ defense only applies in

disparate treatment cases; business necessity applies only in disparate impact cases.

Aftermath of Griggs

§ 703(h) of Title VII allows the use of a professionally-developed ability test -> You can use a test if it actually measures whether you could do that job -> General tests like IQ tests are not related enough to what employers should be worrying about (i.e. can you do the job?) to be justifiable

Race

: Sometimes it can be difficult to define due to the existence of "Hispanic," which can be construed multiple ways

Rule 23 Class Actions

a) 23(a): the four factors that must be met b) Then we move to rule 23(b): Must satisfy one of the two prongs...

Ricci v. DeStefano, US 2009

in order to use race-based policy, employer must have a strong basis in evidence that had it not taken actio, it would have been liable for disparate impact a) Lawsuit brought against the city of New Haven, Connecticut by twenty city firefighters alleging that the city discriminated against them with regard to promotions a) The firefighters, nineteen of whom are white and one of whom is Hispanic, all passed the test for promotions to management b) City of New Haven officials invalidated the test results because none of the black firefighters who passed the exam had scored high enough to be considered for the positions. c) The city stated that they feared a lawsuit over the test's adverse impact on a protected minority. The complainants claimed they were denied the promot d) ions because of their race—a form of racial discrimination b) Held: New Haven engaged in disparate treatment discrimination c) Why is this disparate treatment? a) Majority would say that the decision was ultimately made because of race; under the reverse the groups test, it clearly fails (1) Doesn't seem like narrow DT: no preferential treatment based on race (2) If you look at the individual white πs, it does look like disparate treatment to the extent that it's about their individual promotions getting thrown out because of their race b) Dissent would say that there wasn't discrimination to the extent a white person was being treated differently than a black person; everyone equally didn't get promoted because they threw it out d) This type of "raced based action" is allowed when there's a strong basis in evidence that had the employer not taken the action, it would have been liable for disparate impact a) A showing that would satisfy just a PFC is not enough b) Here, the standard isn't met. In a hypothetical disparate impact claim by the black firefighters... (1) The PFC could be easily proven up; 100% of the people who pass are not black, so it passes the 80% rule (2) BN/JR: The city could argue that they hired a company (IOS) to come up with a test with content validity and validate it so it wouldn't result in disparate impact liability. (a) Good faith reliance on a 3 rd party's test is not a good enough (b) No evidence of content validity, but city aimed for content and context validity in the design (c) Also, the criteria for hiring were part of the CBA: They agreed with the union that the test was worth 60%, the oral job interview was worth 40% (3) Less discriminatory alternative: (a) Using an assessment center that would be much more predictive of job ability (b) They could have used methods used by other cities that produced less DI (c) Change the weight of the test from 60/40 written/oral to the inverse. Arguably not "available" because it's part of their contract with the union and management can't just unilaterally change it, but they've also spent a lot of money developing the current system e) SCOTUS declined to remand this case for further findings of fact, but what if they did and it was proven that avoiding disparate impact liability was the real motivation? a) That wouldn't necessarily get them out of disparate treatment liability because they would need to show that objectively, there was a strong basis that they would be liable f) Kennedy: This is "race-based action" or "express race-based decision making." But what counts as "RBDM?" a) What if they had thrown out the test before they had administered it because a pilot group that didn't count had that weird distribution? Fine by Kennedy b) What if they always used one white interviewer, one black, one Hispanic? Fine by Kennedy c) What if they do an affirmative action program like in Johnson or Weber? Is Ricci consistent? (1) It seems like the city should have just kept the test, adopted bonus points for racial minorities, and called it an affirmative action program. However, that isn't consistent with CT. v. Teal exactly. (2) Banding tests post-results probably wouldn't be ok, but if the plan was to use banding all along, it may be ok (3) Title VII does not prevent you from using race to promote a fair opportunity for everyone regardless of race. The problem for Kennedy may still be that they would be doing it after the test d) Title VII 703(l) prevents altering test scores, use different cutoffs, or otherwise alter results of states on the basis of protected status. (1) The majority says that surely if you can't even use bonus points, you can't go even further and throw out the whole test. Changing the 60/40 split would have the same problem. e) Can "politics" be the legitimate nondiscriminatory reason? If it's a disparate impact claim, the employer might offer "cronyism" as its valid LNR and that's okay, so why not "we don't want to piss off the black community of New Haven? (1) Politics would be a valid LNR, e.g. if they wanted more Democrats, but if it's race politics, then taking race into consideration would probably lose the Kennedy vote f) What should the city do now? (1) Get legal advice as to how strong the disparate impact claim is? Can they prove BN/JR if they need to? (a) Gather the evidence needed to prove that they would be liable under DI (2) If the plaintiffs are going to win a disparate impact claim, they'll have an LNR, but there's always the possibility that plaintiff could prove pretext (e.g. it was really because of racial politics/PR) or attack the legitimacy of the LNR (3) Justice Kennedy would say that the city was really sincere about wanting to avoid disparate impact liability, but their conduct might still have been unlawful b/c they made the employment decision because of race (a) Usually, bad reasons are still LNRs if they are sincere. However, that doesn't seem to be what's going on in these cases. (b) You could analogize this to overt disparate treatment. Maybe this is a case like Feeney: the thing that's disparate treatment here is overtly taking race based action. (4) Would Ricci have come out the same way if the city had made the change immediately before the test instead of after the test? Ricci himself had already studied for the test, etc. (a) The city is doing the exact same thing for the same reason, etc. but then again there'd be a big standing issue because nobody would know. (b) What if the real reason was just to placate the black community? (i) The normal standard for when you can do a voluntary affirmative action program doesn't take intent into account; maybe it's because of your personal goodwill, maybe not (c) You could say that pre-test/pro-test or "visible victims" is the determinative factor. (i) The "vested interest" reason for the outcome in Ricci does seem to be most consistent with the AA standard in terms of not trammeling on the rights of whites. (d) The equal protection clause would create a problem with disparate impact law, at least as to state governments. g) Aftermath: $2m settlement with $3M attorneys' fees on board, too. (1) Black firefighter brought the very disparate impact claim that the city feared. (2) 2d Circuit, after dismissal by district court, said that the plaintiff here wasn't bound by Ricci. (3) City says, we should be protected from DI suit because if we did throw it out, we'd be sued for DT. In the DI suit, they could say they had a strong basis in evidence that they would lose a DT claim (because they already did) (a) However, where does that fit into the three step analysis for DI claims? Maybe they have to add another step? (4) On remand, plaintiff loses because he hasn't proved the test would actually have a disparate impact, but then appeals again. (5) 2014: Finally, finally settled. New Haven was roundly criticized for doing this b/c it would have been disposed of and the whole thing would have been cleaned up h) A new round of testing is being considered, with a new rule: 400 applicants from the city, 400 from elsewhere, capped page 97

Creating this new defense (Ellerth defense) lead to a lot of fighting over what's a sufficient complaint procedure and whether the employee took advantage of it

(1) Employers never succeeds where... (a) They have no policy whatsoever (b) If employees don't know about the policy or how to use it (c) The employee used the complaint procedure and nothing happened whatsoever (2) What does it mean for a policy to be good enough? (a) Clearly defined steps, contacts, wide distribution of information (b) Letting people know what they're supposed to do and who they're supposed to complain to (c) Making sure employees have someone else to complain to other than their supervisor (i) Risk of open door policy (complain to any supervisor): very easy for π to satisfy the burden of using the complaint procedure and shifting burden to Δ for not stopping the conduct (ii) Employers better off by designating a formal contact person and establishing formal procedures—but employees must know about them (d) Some courts say that a policy has to say, "We won't retaliate if you report it," but that isn't the law in general (e) employer has to reasonably do something in some way to correct the action (f) The policy must be reasonably effective in practice, not just on paper (3) The Ellerth defense in practice: (a) What does it mean for an employee to unreasonably fail to take advantage of the policy? (i) Time could play a role, like if you don't complain for a long time it might be, "Why did you not bring it up until now?" 1. The law likes prompt complaints

Wilson v. Southwest Airlines (1981)

"attractive females" ≠ BFOQ for flight attendant; "love" not essence of business, selling tickets is a) Southwest has this whole "Love" marketing campaign based on a sexed-up image with attractive women at every point of contact for customers b) Held: No BFOQ in this case because it's not related to the essence of the business i) To recognize a BFOQ for jobs requiring multiple abilities, some sex-linked and some sex-neutral, the employer must have required the Weeks' requirement that sex be so essential to the successful job performance that a member of the opposite sex could not perform the job (e.g. stripper) ii) The CREATED the sexy lady persona iii) Again, the sex appeal thing is part of their marketing strategy, but not their business of air travel c) Δ conducted a survey to show importance of the attractiveness of the stewardesses. It was not highly ranked, but what if it was? i) Still just a customer preference, and Δ was responsible for creating the preference

The 4/5 Rule: Required quantum of impact for liability

(1) EEOC guidelines provide a doctrinal standard for when a practice has a significant enough disparate impact to establish a prima facie case. "Is this a big enough disparate impact for the courts to care?" (2) "A selection rate for any [protected group] which is less than 4/5 (80%) of the group with the highest rate will generally be regarded by the federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by federal enforcement agencies as evidence of adverse impact." (a) Teal: (i) 54.17% of blacks pass a test and 79.53% of whites pass the same test, the black pass rate is 68.1% of the white rate, which violates the 4/5 rule (3) Hypo: Workplace with 20,000 workers institutes a new test. 10,000 white workers pass. Out of 10,000 black workers, 9,000 pass (a) Δ passes the 80% rule, but the disparity is so great that it's obviously statistically significant

Three contexts for AA

(1) Federal contractors under E.O. 11246 (2) Remedial: As a remedy for Title VII violation (3) Voluntary: Employer chooses, not because they lost (but maybe because they're worried about getting sued).

Pollard v. DuPont, 2001.

(1) Held: Front pay and back pay are both forms of equitable relief even through they're basically paying money. (2) All the stuff from the original version of Title VII was equitable relief to avoid the jury trial issue, and that hasn't changed just because money damages were added. (3) The rationale: this isn't damages so much as the money you were equitably supposed to already have.

Four factors of Rule 23(a)

(1) Numerosity: So many plaintiffs that multiple suits/consolidation/joinder is impractical (2) Commonality: Significant common questions of law/fact (a) Tightened up by the Walmart decision (3) Typicality: The claims, and the plaintiffs, are typical of the class (a) Try to avoid heterogeneous groups getting aggregated together (4) Adequacy of representation (a) Representative plaintiffs: no possible conflicts with other class members (b) Attorneys: Are they going to pursue a strategy that will serve the interests of all class members? (i) Ex. What damages are they asking for? In Davis, they didn't ask for compensatory damages, just equitable relief and punitives, so they could get in under 23(b)(2) and not (b)(3) 1. Before Walmart, there seemed to be a Catch-22: if you didn't ask for compensatory damages, you could be accused of inadequate representation, but if you do ask for it, you have to go to 23(b)(3)

Hergenreder v. Bickford Senior Living Group, 6th Cir. 2011

(1) Nurse works for senior living signed a bunch of documents when she got hired, but none of these talked about arbitration. (a) However, the employee handbook referred to it obliquely and said to refer to another document, the "Dispute Resolution Process." (b) The handbook isn't a K itself because it specifically says so right in the handbook itself, but in many cases this is a majorly disputed issue. (2) Issues: (a) Was there an offer? (b) Was it accepted? (i) Bickford says that continuing to come into work constituted acceptance of all the terms of the employment. (3) Held: Not a binding K. (4) What would Bickford do wrong and what would it have to do to establish a K? (a) She didn't actually have to sign the dispute resolution procedure form. This should have been its own thing or included in something else she signed. (b) Make it clear that the handbook is a contract and make employees agree to it (5) What arguments should an employer use to counter unconscionability/waiver of substantive rights arguments? (a) Argue that whether it's unconscionable is itself arbitrable. (b) Argue that those issues are severable. The ancillary issues of whether the cap on damages or whatever other punitive parts of the clause are unenforceable can be litigated but the underlying thing is meant for arbitration.

The two prongs of 23(b)

(1) Prosecuting separate actions by or against individual class members would create a risk of: (a) Inconsistent or varying adjudications with respect to individual class members, establishing incompatible standards of conduct for party opposing class; or (b) Would be dispositive of the interests of other members not parties to the individual adjudications or would substantially impair or impede their abilities to protect their interests. (2) 23(b)(2): Classwide conduct that merits classwide injunctive relief (a) Monetary relief cannot predominate (i) Unclear if nominal damages are ok. Typically, if you're seeking monetary damages, you have to do 23(b)(3) (b) Opt-out opportunity not required, notice not required (i) This makes sense because the injunction is going to apply to the whole company (ii) Very important because otherwise, π has to spend a lot of money on sending out notices to potential πs (3) 23(b)(3): Common questions must predominate (a higher bar than "significant") (a) Common questions predominate (b) Class action process is "superior" (c) Opt-out opportunity required, notice required (4) Under both prongs, courts also consider whether the class action is "manageable."

Supervisor liability vs co-worker liability:

(1) Under supervisor liability standard (like respondeat superior): employer has burden of proof (a) Employer presumed liable unless it meets Ellerth affirmative defense standard: (i) Employer must prove it took reasonable care to prevent and correct harassment, AND (ii) Employee unreasonably failed to take advantage of opportunities to prevent/correct (2) With negligence standard, burden of proof is on employee. (a) Employee must prove that: (i) Employer knew or should have known of harassment, AND (ii) Failed to take adequate corrective action

Anti-bottleneck model of anti-discrimination law

1) ADL = part of larger effort to remove bottlenecks, like tests or patterns of discrimination, that most constrain opportunities 2) Employer's arbitrary requirements, etc. operate as bottlenecks at the systemic level. Look at requirements for opportunities -> Ex: high school diploma requirement could create bottleneck 3) Discrimination is one form of bottleneck: You have to be white, make, etc. to get through this bottleneck 4) Goal = reduce severity of the sever bottlenecks; you can't totally eliminate them. ADL aims to reduce severity of the worst bottlenecks

Diversity Model of Anti-discrimination law

1) Aim of ADL = promote inclusion of groups and their differences. Law should recognize race/sex related differences and value experiences associated w/ underrepresented groups 2) Institutions benefit from diversity. Institutions should be designed to be more inclusive to reap those benefits -> Consider carefully what count as "merit". Sometimes one group will pick definitions of merit that produce more people from their group. Value different characteristics 3) Ties in w/ affirmative action -> Weber: these plans promote the intentions of congress in passing Title VII and further the Act's goals 4) Group analysis focused on current situation

Terms, Conditions, & Privileges of Employment

1) Hishon v. King & Spalding -- discussed in notes only a) π suing based on being denied partnership at a law firm b) Are partners of a law firm employers? D: no, going from associate to partner is akin to going from employee to business associate (1) J. Powell: partners are business associates, so no Title VII claims since there's no employee-employer relationship 2) Minor v. Centocor a) What is too minor a change in employment conditions? b) 7 th Cir.: extra work for the same pay is economic disadvantage, so it is an adverse employment action 3) Discriminatory evaluations a) They could affect an employee in the future, but a suit would be premature because there has been no change to the terms of employment Employee would just have to wait it out 4) Transfers to different positions a) Courts are split as to whether this is enough of a change to terms/conditions of employment 5) What if an employee quits? a) Constructive Discharge π would have to show that the employer's discrimination creates conditions that compelled them to quit. and that a reasonable person would have also quit. May depend on whether the employer's conduct was calculated to make π quit

Types of claims under Title VII of the Civil Rights Act

1) individual disparate treatment 2) systemic disparate treatment 3) disparate impact 4) harassment 5) reasonable accommodation

Disruption model of anti-discrimination law

1) opposite of diversity 2) aim of ADL = disrupt settled stereotypes and sorting practices that create the differences among the groups 3) Employers themselves sometimes create differences b/w groups and ADL is there to prevent this -> Society creates differences by sending people to different jobs/schools/etc. People have different access to education/skills/jobs, which creates artificial differences 4) Institutions should disrupt the processes that create these group differences 5) Diversity model celebrates differences; disruption model says we need a critical mass of all different types of people so minority people won't feel tokenized -> Focus is on employers/institutions creating differences in people, not that people are inherently different from each other 6) Individual, Group, and Structure analysis that looks at both the past and current situation

Perpetuating past discrimination model of anti-discrimination law

1) the aim of ADL = counteract past discrimination that still affects us today. The law is a policy instrument to correct for past disadvantages experienced today by members of a protected class 2) Not enough to prevent current discrimination. Must also mitigate damage of the past discrimination. Even if an employer isn't discriminating, the employer's actions are freezing in place past discrimination (You can bring in other institutions into this analysis) 3) Group analysis, w/ perspective focused on the past See: Weber

EEOC v. Management Hospitality of Racine, Inc.;

; even if employer has a policy, liable for Harassment when employee complies and employer doesn't respond (1) IHOP waitresses are blatantly harassed all the time by a supervisor, which court holds was severe and pervasive (2) Company does have a sexual harassment policy and put up a poster about it, but the policy didn't tell them who specifically they needed to talk to and then when the waitresses complained to another supervisor, nothing happened! (3) Problems for Δ: (a) Poster on discrimination wasn't clear (b) Complaining employees were teenagers (c) Inadequate training (d) Not clear what path employees should follow to report (e) Lack of alternative reporting (f) No corrective action until employees hired an independent investigator (4) Held: Liability for hostile work environment (5) The harasser was a supervisor, so the company is strictly liable unless it can raise the Ellerth defense, which it can't (a) Employer cannot show the first prong is satisfied because the policy was too vague and didn't provide a clear path to deal with their claims and when the employees tried, nothing happened (b) Employees can show second prong is satisfied because with the policy being so vague, they can easily and plausibly say that talking to the one supervisor was what the policy called for them to do and more was not needed to beat the defense (i) Court emphasizes that the employees are teenagers and it needs to be extra clear what they needed to do

index of dissimilarity

A measure of segregation that indicates how isolated two groups are from each other in a particular area or city. the idea: How many people would have to switch places before we would get a distribution of people/jobs that would appear random? ii. On this measure, there's clearly something going on, but it isn't so clear what's causing it. 1. Many jobs are highly gender-segregated. iii. Progress was fast right after 1964 civil rights act and other various statutes, but it's really slowed recently. 1. Many different possible culprits and motives. 2. Maybe differences in choices? 3. Maybe increasingly unsympathetic judges remove the teeth from the statute? iv. Easier to look at this from the bottom up from the top down. v. Bertrand and Mullainathan (Emily and Greg) 1. White names receive 50% more callbacks; Racial gap is uniform across industries; Callbacks are more responsive to resume quality for white names than black names; Controlled for possibility of inferring social class from race

Schroer v. Billington (2008)

Discrimination because trans person doesn't perform sex roles as expected is D/T, reasons offered by Library were pretext i) Trans woman was highly qualified and on the brink of being hired by the Library of Congress when she was presenting as a man. When she mentioned that she was transitioning, the Library of Congress hiring people got weird, rescinded the offer ii) Two different theories of liability: Sex stereotyping and sex discrimination (1) Compare to Price Waterhouse: (a) A π who is not conforming to what is expected from the expected gender. Employer did not want to hire someone they saw as a man in a dress (b) This case is interesting because of the military component—it affected what the masculinity expectations held by the employer (2) Court compared gender transition to religious conversion—discriminating against a conversion from one religion to another is discrimination because of religion iii) Court used McDonnell/Burdine (1) Viewing sex broader than when Title VII was enacted to encapsulate π into the protected class of sex (2) Prima facie case: (a) Member of protected class? Yes (b) Adverse action: Yes (c) Non-class person was hired: Yes (3) LNR: (a) Many are proffered: (i) Contacts may no longer want to associate with π; (ii) Credibility testifying before Congress may be affected; (iii)Trustworthiness; (iv)Distractions; and (v) Security clearance (4) Pretext (a) All the purported reasons are shown to pretextual; they didn't even look into whether the reasons they cited would actually be a problem or not (e.g. security clearance) (b) If her transition affects credibility due to a Congressman's discriminatory attitudes, then the employer is giving effect to discrimination → employer is itself discriminating

Texas Dept of Housing & Community Affairs v. Inclusive Communities, Thomas Dissent

Disparate impact law bad b/c all disparate impact does is presumes all disparities = discrimination Thomas said that DI law wasn't written into any law/statute and ct shouldn't allow disparate impact claims i) Thomas hates disparate impact law b/c he says it presumes discrimination from what may be purely logical discrepancies (1) Thomas is worried about relying only on statistics to prove discrimination instead of actually proving that there was a particular practice that caused disparity ii) Statute at issue was Fair Housing Act, Thomas says shouldn't put disparate impact law in FHA iii) Griggs was wrong (not based in text); shouldn't expand this D/I logic to other statutes (1) Griggs: put disparate impact claim in Title VII (2) Smith: put disparate impact claim in ADEA iv) Thomas says EEOC created D/I and SCOTUS accepted it in Griggs v) SCOTUS doesn't allow race balancing (Fisher), so not appropriate here

Step 2 of MD Framework: Employer's Legitimate Nondiscriminatory Reason

Elements: -> Defendant -> Admissible evidence (only burden of proof) -> Articulate a legitimate, non-discriminatory reason (LNR) for the adverse employment action. -> Texas Dept. of Community Af airs v. Burdine, Tex Dept of Community Affairs v. Burdine: defendant only has burden of production as to LNR, plaintiff always has burden of persuasion (1) π always retains the burden of persuasion in an employment discrimination case. Δ has the burden of presenting evidence sufficient to support an LNR (2) This is a very low bar to clear. Δ only has a burden of production, not a burden of persuasion. Need not be a "good" reason, just not an illegal one. (a) The fact that the employer misjudged the qualifications isn't determinative, but it could be relevant to pretext showing. (b) If the LNR is totally irrational, that's also relevant to pretext, because an employer probably wouldn't really be that dumb. (3) If defendant doesn't offer a LNR, fact-finder must find discrimination under Burdine; motion for summary judgment or JNOV (4) If plaintiff proves its prima facie case and defendant offers a LNR but can't produce any admissible evidence to back this up, fact-finder must find discrimination through SJ or JNOV per Burdine. (a) Testimony would be sufficient evidence to back up an LNR (5) If the plaintiff proves its prima facie case, and the defendant offers a legitimate, non-discriminatory reason (LNR) and produces some admissible evidence but the fact-finder wouldn't be persuaded: (a) Permits, but does not compel the fact-finder to infer the ultimate fact of intentional discrimination (b) Just enough evidence that a fact-finder could be persuaded. But fact-finder doesn't need to be persuaded. Burdine. (c) A party's dishonesty about a material fact can be inferred as affirmative evidence of guilt (d) Jury verdicts get a lot of deference

Step 1 of MD Framework: Plaintiff's Prima Facie Case

Elements: -> Plaintiff -> Preponderance of evidence (burden of proof, persuasion) -> Prima facie case (PFC). Specifics may vary based on the type of adverse employment action and the Circuit Court's standards. -> McDonnell -Douglaa Corp. v. Green i) The form this proof takes will vary based on the type of discrimination and type of adverse employment action ii) Generally takes this form: (1) Plaintiff was member of a protected class (a) E.g. racial minority, protected age group, etc. (b) Includes white men—McDonald v. Santa Fe Trail (i) White πs make out a prima facie case the same way where whites are a minority or where supervisors are black (ii) Absent those features, white πs are sometimes required to present evidence of Background circumstances to establish that it's an unusual case of discrimination against the majority 1. Evidence: statistics, expired consent decree, mismanaged affirmative action (2) Plaintiff was qualified for the position (a) Qualified for job for which the employer was seeking applicants (b) Plaintiff was doing satisfactory work (3) Plaintiff suffered an adverse employment action (4) Circumstances give rise to an inference of discrimination. (a) That, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell-Douglass Corp. v. Green¸411 U.S. 792 (1973). (b) S/he was replaced by a person outside the protected age group. (c) Replaced by a younger person iii) At trial, it looks more like this (1) Protected classification? (2) Employer discriminated? (3) It affected terms, conditions, or privileges of employment? iv) Note: Getting past the prima facie stage doesn't get π to a jury. The π still has to get through each stage to survive summary judgment

Step 3 of MD Framework: Pretext

Elements: -> Plaintiff -> Preponderance of the evidence (burden of proof, persuasion) -> the legitimate, non-discriminatory reason articulated by Defendant is not it's true reasons, but mere pretext for the discrimination. -> McDonnell-Douglass Corp. v. Green¸411 U.S. 792 (1973). i) This is where a lot of the action is in these cases. ii) Even if the LNR is false, π must still prove that the reason for the action was discrimination iii) Some cases hold that if the defendant can be proven to be lying about their reason but plaintiff can't actually prove it was because of discrimination, plaintiff doesn't necessarily win but can win if jury could infer that the real reason must have been discrimination

EEOC v. Sephora, 2005

English-only policy for sales person not discrimination b/c business necessity - make customers feel comfortable and welcome to sell makeup i) Official policy of store: Speak English "on stage" (sales floor) when clients are around. πs say that they actually got in trouble for speaking Spanish elsewhere, when it wasn't forbidden under the policy ii) Employer wins on partial SJ on the policy as written, but didn't even reach whether it was discriminatory as applied (1) Why did Sephora want to do this? (a) Avoid a big national class action, etc. if policy is ruled facially discriminatory iii) Disparate impact theory of liability: No liability (1) They have made out the prima facie case (2) BUT the defendant has shown business necessity. They need to make customers comfortable and welcomed so they can communicate and sell makeup (a) Workers allowed to speak Spanish if a Spanish-speaking customer approaches them (b) πs challenging English-only policies tend to lose at the BN/JR stage

Defendant can, by giving the LNR for a DT case, make the Plaintiff's DI case. (Particular Practice causes DI) This happens in Dial, but not always the case. . .

LNR has to be the internal employment practice of the employer to kick it to DI land

Hazen Paper Company v. Biggins (1993)

No mixed motive provision in ADEA, only strict but-for causation; pension not a proxy for age so no age discrimination when the employer's decision to terminate an employee is based on factors other than age 1) Employee hired at 62, fired right before the 10 year mark for the pension to vest. Employer claims it was for working w/ competitor 2) ADEA uses "because of" language. Liability doesn't arise when employer's decision was wholly motivated by factors other than age [no mixed motives doctrine in ADEA] -> Are age and years of service intertwined? SCOTUS holds that they are indeed analytically distinct -> Different from Slack v Havens b/c there race was a but-for cause for the firing, and P had direct evidence of racist comments 3) There's an age requirement in the ADEA statute, doesn't apply for younger workers after older workers 4) HYPO: flip a coin, one side is white, one is black- discriminatory? Yes, differential treatment i. What if a stereotype is true & performance is declining as workers get older? Doesn't change it ii. What if firing based on performance and older people have low performance? More complicated, apparently facially neutral, but maybe not. Look at evaluation method... chosen in a discriminatory way? Discriminatory impact?

Cal Fed Savings and Loan Ass'n v. Guerra (1987)

PDA is a floor for pregnancy benefits, but states can offer more benefit without worry of preemption i) California law required employers to provide pregnancy leave for women, regardless of whether the company offers leave for other disabilities (1) This kind of split women's movement/feminists: Some believed that it should be the same for all, others that women are unique. ii) Employer challenged this arguing that this special treatment for women violates Title VII iii) Held: The PDA does not preempt/bar CA from doing this (1) The big headline statement of the general rule: The PDA is a floor below which pregnancy benefits cannot drop, not a ceiling above which they cannot rise (2) CA employers can follow both the state and federal laws on point, which means the state law isn't preempted: You just offer 4 months unpaid disability leave for any disability, including pregnancy iv) Is there a ceiling? (1) Overly generous benefits may ultimately nudge women out of the workforce (2) States can't make general laws that assume people's' abilities based on gender or stereotypes (a) Ex. Can't require light-lift restrictions for all pregnant employees

Gender nonconformity not related to transexuality:

Rule: Unequal burden test. Prima facie case is met if the rule is more burdensome on one sex than another.

Slack v. Havens (1975)

Ruling: unlawful for employer to make decision b/c of race even if based on true stereotype or stereotype w/o animus; also this case has clear direct evidence of discrimination; animus not req'd, just differential treatment 1) 4 black employees asked to do dangerous cleaning, they refuse and get fired -> supervisor all but admitted being racist; rare smoking gun; note that title VII doesn't just prevent denigrating discrimination, it prohibits all discrimination; even if manager claims racist comments were meant as compliments, still made treated differently based on race 2) employer argues that he may have been racist, but they were fired for insubordination, not b/c of race Held: liability of disparate treatment 1) Actions of supervisor are imputed to the employer under 42 USC 2000e(b) a) agency b) causal link c) ratification -> TLDR: you can only sue the employer - if employer can say they aren't liable for the employee's conduct, under statute there is nobody to sue 2) There was a causal relationship b/w discrimination and firing: If they hadn't been treated in a discriminatory manner, they never would have had to choose b/w tolerating discrimination and being insubordinate -> However if they always fired for insubordination, no matter what the reason, it would seem to weaken the causal relationship 3) Employer itself ultimately ratified the discriminatory behavior by giving effect to supervisor's conduct -> court assumes that the employer knew why this all originally happened...but how should we address it when they don't -> here the management were in the best position to know so they should have known

3 Steps of McDonnell-Douglass Framework for Individual Disparate Treatment (Check chart on page 7)

Step 1: Plaintiff's prima facie case Step 2: Employer's Legitimate Nondiscriminatory Reason Step 3: Pretext Note: Not a chronology; the evidence for all three is developed all at once at trial; however, courts/juries determine the correct outcome by doing them in order. i) Shifting the burden can be determinative; lots of leverage in settlement

Title VII Filing Procedure/Statute of Limitations & Judicial Enforcement

Step 1: π files charge with the EEOC (and state/local agency, if applicable) Step 2: EEOC investigation/mediation Step 3: The Right to Sue Letter Step 4: The Lawsuit

United Steelworkers of America v. Weber

The 1979 Supreme Court case with a quota of minorities meant to remedy past discrimination. And the Supreme Court said that was okay. Union Bargained for affirmative action policy to rectify past discrimination of the unions, this didn't discriminate against whites; avoids impossible catch 22 a) Kaiser would only hire craftworkers who had prior craft experience. The problem was that blacks didn't used to be allowed in the craftworkers' union, so only 1.83% of skilled craft workers in Gramercy plant were black even though the Gramercy plant itself was 39% black. i) Union and company agree to a voluntary affirmative action program where a certain goal for racial diversity is set, etc. and new training program that's 50% reserved for black workers. ii) White π is mad because he's passed over for this program despite his seniority b) SCOTUS upholds this policy. i) This is a form of remediation of past discrimination. ii) Remediation of past discrimination: The policy we want is for "employers and unions to self-examine and to self- evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history." iii) Anti-bottleneck rationale: It wasn't the plant itself that was doing the discrimination; they required training that only unions provided and the unions didn't allow any black workers in. c) Dissent by Rehnquist reflects narrow impartiality view: affirmative action is unfair and discriminatory d) Different from Griggs because in this case, the relief only benefits black employees, whereas in Griggs tossing the test helped everyone, including white employees e) If this policy not allowed, employers in catch 22 i) Violate Title VII for discrimination in workplace/hiring b/c no blacks ii) But can't fix that without discriminating against whites

Arbitration Background

a) In the past (35 years ago or more), there was really no such thing as arbitration of employment disputes outside of the labor arbitration context. b) ADR has taken off to a huge extent in recent years as SCOTUS has interpreted FAA as basically a national policy of favoring arbitration in every possible circumstance, even trumping various state laws. c) Mandatory arbitration is the big issue: when employer wants to impose rule that all claims must be arbitrated rather than litigated on its employees.

Vance v. Ball State University (2013)

To be a supervisor, you must have the power to take a TEA against the plaintiff, can therefore get Strict Liability through respondeat superior; otherwise, negligence standard applies (1) Racial harassment by someone who's arguably a supervisor (2) Issue: Was she a supervisor? (3) Held: To be a supervisor, you must have the power to take a TEA against the plaintiff→ can get Strict Liability through respondeat superior; otherwise, negligence standard (a) When employers attempt to confine decision making power and then there's a lot of reliance on recommendations of lower ranking employees, employers have effectively delegated power to take tangible employment actions on the employees on whose recommendations it relies (b) Why? This way is clearer than the EEOC's broader definition (i) However, there's a serious possibility for ambiguity; what if a "supervisor" is involved in the firing process (triggers it by recommending but can't unilaterally do it, etc.) (4) Dissent: Non-supervisors under this test would still have authority to inflict diff types of retaliation against someone, like giving them worse work to do, etc. (a) We should allow RS where a non-supervisor retaliates (5) How does this work differently? (a) What if employee files internal complaint about coworker harassment, then nothing happens? Employer strictly liability because employer should have known and did nothing (b) What if there's no policy and someone gets co worker-harassed? Liability because they should have known by virtue of having good policies (c) In the IHOP case? The guy could assign harder work tasks, but had no power to hire/fire (i) Same basic result because the employer should have known if they had a good policy and didn't do anything (d) The main difference with Vance is that the burden of proof is on the plaintiff rather than the defendant, even though most of the factual issues will be pretty similar and most cases would reach the same outcome under either analysis (i) This makes a lot of difference because the facts are often really disputed in these cases

Trans πs

Trans πs are much more likely than gay πs to win on Title VII claims i) Most but not all cases/circuits hold that discrimination against trans people violates Title VII, and when it's recognized, trans πs have a good chance to win;

Pregnancy Discrimination Act of 1978

Treats discrimination based on pregnancy-related conditions as illegal sex discrimination i) 701(k) added to the definition of an unlawful employment practice: "The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; ii) "and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise"

Section 703(a) of Civil Rights Act Title VII

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature: >submission is made explicitly or implicitly a term of an individual's employment submission or rejection is used as a basis for employment decisions affecting the individual >such conduct has purpose or effect of unreasonably interfering with a person's work performance or creating an intimidating, hostile or offensive work environment i. (1) 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; or ii. (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.

Harassment because of sex?

What does it mean to be harassed because of sex? Several plausible theories... i) Victim's sex was but-for cause of the harassment (reverse the groups) (1) A person of the other sex would not have been harassed ii) Victim's gender was the but-for cause, so if performing gender "wrong" was the cause, it could be liability (1) If the victim performed gender differently, they would not have been harassed iii) "Because of sex" means the intrusion of sexuality into the workplace where it does not belong iv) "Because of sex" means the enforcement of sex role hierarchies (1) MacKinnon said that this was about "asserting male dominance through imposing sex on a man with less power" (a) By asserting male dominance through imposing sex (i.e. sexual assault and threats thereof) on a man with lesser power, thereby "feminizing" him so he plays the traditional role of a woman (2) Undermines the actual or perceived competence of workers who fall outside the dominant sex/gender v) In practice, HR departments tell employees, "keep sexuality 100% out of the workplace"

After-acquired evidence of wrongdoing:

When an employer learns information in discovery that would have led them to fire plaintiff anyway, what happens? Employee isn't barred from all relief. (1) Employee can still recover back pay from the period beginning when they were fired, ending when the employer learned of the fact that would have led to her firing. (2) Employee cannot get front pay or reinstatement

Title VII and affirmative actions:

When an employer loses a Title VII case and gets an injunction against it, the injunction doesn't just say to stop, it can also prescribe race conscious new policies, for example, "post listings instead of use word of mouth," "you have to advertise and recruit to target women," basically signaling affirmatively to people who used to get excluded that they're now welcome (1) Largely depends on how egregious the discrimination is/has been (2) Court can can even include numerical goals and timetables that employers have to meet to prove they're really trying (3) But courts are hesitant to impose policies that inflict externalities on incumbent employees

Broad impartiality

You have to be impartial in selecting the rules themselves. Keep in mind the impact of the rule See: Griggs

The general rule: 704(a)

a) "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... "because he has opposed any practice made an unlawful employment practice by this title, or [the opposition clause] (1) Employee must have a good faith belief that the conduct was unlawful or that the thing you're opposed to violates Title VII (2) Does not require a finding of a Title VII violation b) "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this title. [the participation clause] (1) Doesn't matter whether underlying claim is valid or frivolous (2) Does not even require that the employee believe that there was a Title VII violation as long as the employee suffered an adverse employment action (3) Invoked when a charge is filed with the EEOC, or just about to be filed b) The analysis works like this: a) Plaintiff's prima facie case: much like McDonnell-Douglass (1) π engaged in protected conduct/expression... (a) Under opposition clause: Opposed conduct that you had a reasonable good faith belief violated Title VII (i) Your actions must be reasonable (Laughlin): 1. Balancing test: Balance the purpose of the act to protect persons engaging in reasonably in activities opposing discrimination against the employer's interest in not having their hands tied in the objective selection and control of personnel (ii) Responding to an internal investigation of someone else's complaint counts (Crawford). (b) Under participation clause: You participated in an investigation, proceeding, or hearing pursuant to a Title VII claim (i) Activities that count: making a charge, testifying, assisting, participating in any manner in an investigation, proceeding, or hearing under Title VII (2) Plaintiff suffered an adverse action: (a) Standard: Anything that would have deterred a reasonable worker form making a charge (White) (3) There was a causal link between the conduct/expression and the adverse action (a) But-for causation b) Defendant's LNR works the same: Legitimate, non-retaliatory reason for the adverse action c) Plaintiff's pretext burden works the same c) Retaliation is very common; it's more likely to be a winner than a claim based on the underlying discrimination.

Intro: Law vs. Equity

a) A very old common-law distinction: we used to have law courts to enforce the law and equity/chancery courts to step in when the law didn't produce equitable results. b) In the US, law and equity were merged at the federal level, but a lot of states kept the bifurcated system for a long time; Delaware Court of Chancery is still a thing. a) Classic legal remedy is damages; for equity, it's an injunction. b) The key distinction: (1) Classic law remedy: damages (2) Classic equity remedy: injunctions

Affirmative action in federal contracting

a) Affirmative action is most famous in the higher education context, but it started in employment. It works a lot differently! b) The phrase "affirmative action" came from an executive order by Kennedy that aimed to make federal contractors implement a new nationwide policy of non-discrimination (1) However, they knew that they couldn't just stop discrimination instantly c) The follow-up, executive order 11246 (1965) requires federal contractors not only to not discriminate, but to take affirmative actions including... (1) Contractors have to have a written plan for AA to ID problems and say what they'll do about them (2) Various steps are allowed to ensure equal employment opportunities d) 1969: Nixon's labor dep't implements the Philadelphia Plan, which set up specific plans for various Philly craft unions, which were notoriously recalcitrant federal contractors e) AA doesn't always mean "bonus points" for disadvantaged group, it can also mean goals and timetables, recruitment efforts

Discrimination on the basis of religion: background

a) After Title VII, the first religion cases drew a line between individuals' belief or status and their conduct (1) You couldn't fire an employee just for her beliefs but you could fire her because of her behavior even if it's a religious observance. The big one was people who wouldn't work on the Sabbath. (2) Congress didn't like this result b) 1972 Title VII amendments added 701(j): (1) The term religion includes "all aspects of religious observance and practice, as well as a belief, unless and employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." (a) Plus, "Under Title VII, an employer is required to accommodate an employee's sincerely held religious belief unless the employer can prove that the accommodation would result in an undue hardship to the employer's business." (2) This reads very broadly, but has been construed more narrowly than its words suggest (3) The actual demands on employers are generally much weaker than in the ADA (4) Why would courts construe it narrowly? If you go too far in enforcing Title VII by forcing people to accommodate religion → establishment clause problem (a) Respecting religion too much looks like favoritism, establishing a religion and thereby discriminating against all others c) Currently, there are two types of issues in Title VII religion cases (1) Religious discrimination (2) Religious exceptions from Title VII

Accent Discrimination- Matsuda "Voices of America"

a) Better as D/T or D/I? i) Under D/T, Δ could say there was no problem with national origin, just the accent (1) π: the accent is clearly tied to national origin (a) A is inseparable from B (i) Obviously there's exceptions, but it is very tightly intertwined (b) A is a proxy for B, chosen intentionally (i) Problem is that Δs escape by using BN/JR b) Is it stereotypical itself that accent and national origin are strongly linked? E.g. assuming a Hispanic applicant will have an accent i) This is something that we have to be careful about c) What if it was due to customer preference? i) That's no defense for a disparate treatment claim d) What if an employer will hire people of any race or national origin, but only if they have a white, Midwestern accent? i) That's national origin discrimination e) Could it be a BFOQ if it was a job where you had to speak really clearly and be understood by the maximum number of people? i) One case said, "Yes" ii) The Weather Service Case (1) The job is heavily communication-based. Can the employer choose the accent that is "clearer" to most customers? (2) Discrimination against a particular group can feed the sentiment that the accent is unclear. Either consciously or subconsciously, the person interprets the accent as unclear (3) Customer preference and ability to do the job are very intertwined here and there's also a safety concern (a) But does that mean the employer should only recruit from Indiana? iii) Courts themselves will judge accents and determine how hard they are to understand (1) Makes sense if juries (local community) make such a determination, but what about a judge's ruling either in a bench trial or on a dispositive motion? (a) They feel qualified to judge the accent; as a π attorney, you hope they listen to the experts f) Could an employer say they hire a lot of Filipino employees, but not π specifically because of his thick (Filipino) accent? i) Trickier if we view the connection between accent and national origin less tight

Does ADL advance meritocracy?

a) Burger: By pushing for more job-specific tests, the law is pushing towards more meritocracy by removing barriers that inhibit opportunities for protected groups b) Wouldn't employers choose the most meritocratic method of hiring without Title VII? i) Meritocracy may be expensive (1) Disrupts work environments because white male workers must adjust. New workers have to fit into an environment that wasn't made for them (2) Consolidated Services: Employer's neutral recruitment process caused disparity (a) Cost effectiveness and efficiency don't always go hand in hand with meritocracy ii) Inertia: an employer's practice may have been in use simply because it was always around and it just happened to freeze/perpetuate discrimination

Intro to Class actions

a) Class actions in employment discrimination suits used to be more common in the 70s b) Today, the law is less settled after Dukes v. Wal-Mart, especially because so many of these cases settle, but the settlements are getting smaller

1991 Civil Rights Act and Ward's Cove

a) Congress did not like Ward's Cove and wanted fix a couple of problems: i) Try to make the distinction between disparate impact and disparate treatment clearer ii) Try to reframe disparate impact as NOT being about smoking out intentional disparate treatment iii) Plaintiffs still have to show a particular practice (1) But exception if practices too intertwined to be separated (2) True burden shift to defendant's now on BN b) Now it works like this: i) Step 1: Plaintiff has burden to show prima facie case that a particular employment practice creates a disparate impact. (1) 703(k)'s statement that the first step is met when "a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact" shows that this holding of Ward's Cove was codified (a) No bottom-line liability—can't just look at the end result. π must identify a clear target and Δ can defend the policy in a clear way (b) The problem: Defendants are the ones who have the relevant information to answer this question, so π's won't be able to do this without significant discovery (2) As under Ward's Cove, the parts of the hiring process are "not capable of being separated for analysis" can all be treated as the same process [703(k)(1)(b)(i)] ii) Step 2: Defendant has burden to show that the particular practice was "job related for the position in question and consistent with business necessity" (1) This is now a burden of persuasion per § 703(m), defining demonstrating as meeting both burden of production and persuasion (2) Ward's Cove has been overturned on this point (3) No bottom-line defense available (a) Employer can't use defense that the bottom-line results are more favorable to one class than another when they still have a discriminatory policy iii) Step 3: Plaintiff can rebut defendant's showing by demonstrating an alternative employment practice that the employer refuses to adopt -- in some jurisdictions (1) No longer framed as a pretext; it's about another way to do things being available that would work as well, not trying to smoke out intentional discrimination (2) "The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of 'alternative employment practice'" (3) Ward's Cove was also overturned on this point (4) The alternative practice must be equally effective as the Δ's chosen procedure in achieving the same goals and Δ must have had time to implement the practice (a) Costs and other burdens are considered (b) Must have been available at the time of disparate impact (c) If the alternative practice is already in the industry generally, it shows the practice was available c) The disparate impact version of the burden shifting framework isn't quite as well-developed as the McDonnell-Douglass version because it simply isn't litigated as often

The equal opportunity harasser: Harasser is going after members of both sexes

a) Could be enforcement of sex role hierarchies i) Asserting male dominance (see Oncale) ii) Imposing stereotypes that align with typical sex stereotypes b) No one legal standard applies to these cases

Is pregnancy a "disability?"

a) It could be beneficial—it could bring reasonable accommodation and preferential treatment. The problem is that people have different levels of abilities when pregnant i) EEOC: pregnancy is not a disability, but some women may have complications that make it like a disability (1) How would this get treated by the ADA's provisions on transitory and minor disabilities? After all pregnancy is temporary b) There are different ways to think about it i) Functional model: Can you do the work? (1) "Qualified individual" problem [essential job functions] (a) In DT, you'd land in BFOQ—general prohibition on pregnancy in the workplace would not be a BFOQ (b) It would be easier to say an employee is not qualified as opposed to having to prove a BFOQ ii) Social model: disability is in part defined by whether we set up barriers that cause problems based on people's physical capacity iii) What's at stake? (1) Less controversial now that disabilities are less stigmatizing (2) Changes to ADA would make the option more appealing

Step 2: EEOC investigation/mediation

a) EEOC has 180 days to investigate the situation and determine whether there is "reasonable cause." a) The EEOC gets so many of these that it doesn't really do that much in terms of investigation; often they don't do anything (1) Not much $ for investigations b) The most important part: EEOC notifies the employer of the charge a) This often sets off a fight about retaliation--when did employer learn that employee participated in EEOC investigation c) If the EEOC finds reasonable cause (not a high bar, just possibly valid), the EEOC tries to "mediate" the dispute in the "conciliation" process. Can we fix it without a lawsuit? a) It does happen that dispute is resolved through conciliation, but not that often. EEOC doesn't have the resources to devote a lot of time to this (1) This counts as "exhaustion", so that plaintiffs not barred from going into ct by admin law procedure b) If the conciliation doesn't work (the usual outcome), the EEOC can either... (1) Issue a right to sue letter to the prospective plaintiff, in which case they can bring a Title VII lawsuit (2) Bring the case itself. The EEOC does this only occasionally, and usually only in precedent-setting cases that the EEOC has a big interest in the outcome of d) If the EEOC finds no reasonable cause, plaintiff gets a "dismissal of notice of rights" letter, but the Plaintiff can still just file the suit anyway. a) Why even have this process when either outcome leads to the same thing? It does probably screen out a few loser cases and avoid a few lawsuits when it can mediate, plus it lets the EEOC step in as an institutional player. b) This is not fatal to π's claim, but it is indicative that the EEOC thinks the claim could get dismissed

General rule of harassment

a) Elements of quid pro quo sexual harassment claim: i) Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is made, and... ii) Submission to sexual conduct by an employee... (1) Is made a term or condition of employment or... (2) Forms a basis for employment decisions affecting that person b) Elements of a hostile work environment claim: i) Severe or pervasive harassment giving rise to objectively and subjectively hostile "hostile or abusive" work environment ii) Harassment is because of sex/race/etc iii) The employer is legally responsible for the harassment

FMLA Coverage: To use the FMLA, an employee must have worked for the employer for at least 12 months and have worked for 1250 hours over that period

a) Employer must have at least 50 employees within a 75 mile radius b) Kicks in when a serious health condition that makes the employee unable to perform the essential functions of his/her job i) If the employee can do the job but requires an accommodation→ ADA c) Benefits: i) Twelve work-weeks of leave every 12 months ii) You can take it all at once, intermittently, or via a reduced schedule iii) Leave is unpaid, but employees get to keep group benefits like insurance d) Requirements to use it: It has to be for... i) Birth/adoption/foster care placement within one year of birth/placement ii) Caring for your spouse/child/parent with a serious health condition (1) Children must be either under 18 or over 18 but incapable of self-care because of a mental or physical disability (2) Parent can only mean biological parent—no coverage for in-laws (3) Must be related to health, not just that no one else is available to take care of them (a) Serious health condition is one that requires inpatient care in hospital, hospice, or residential medical care facility or continuing treatment by a health care provider (4) Caring for other relatives or caring for anyone for non-medical reasons are not covered iii) Exigency arising out of employee's spouse/child/parent in the military on active duty iv) 26 workweeks in a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member's spouse/child/parent/next of kin e) Protections: You can't be fired for taking FMLA leave or for something that only happened because you took FMLA leave (so you can't be fired for failing to meet your quotas this quarter if you took one month of FMLA leave that quarter) i) This is like a retaliation protection ii) Comes up a lot when leave causes an employee to miss benchmarks for a bonus based on performance/hours worked

Swarns article

a) Essentially just know that the discrimination has still continued, workers of color still a lot worse off than whites b) POC are in the union now, but the unofficial way jobs are assigned means they get fewer jobs, less pay, than white workers a) Jobs largely staffed via word-of-mouth, so POC still don't have same opportunity as whites b/c their dads/uncles get them staffed on jobs c) Payment from lawsuit settlements just now reaching plaintiffs, most only get $10,000 to compensate for a career full of discrimination

Primus on the future of Title VII

a) General Reading a) Can't take race into account like DI requires. You must be color-blind as the 14 th Am. requires (1) Probably not what Ricci will stand for (2) Fatal for the DI doctrine. If the 14 th Am and DI conflict, the court has to follow the 14 th (3) Threatens efforts to voluntarily comply with Title VII b) Institutional Reading a) Public entities can't make race-based decisions like a court could order race-conscious remedies c) Visible victims 10)When it's easy to point to who is suffering from the race-based decision, it's hard to justify Title VII

Ultimately, there's not many intersectional cases because it's hard to prove that the LNR is pretext for a specific intersectional group

a) Hard to use numbers to prove discrimination especially once there's a lot of different groups/intersections (1) Δ: this is just a unique π, not enough plaintiffs for b) πs prefer to litigate simple cases

It seems like the bottom line is:

a) If you're a potential plaintiff and you complain about a Title VII violation, you had better reasonably believe it was actually a violation. IF you go to the EEOC and file a claim, you're just protected and don't have the reasonable belief standard standing between you and the money (1) But you need good evidence before going to EEOC b) How will real plaintiffs do it: (1) Would a reasonable person even know what a Title VII violation is? (2) People don't really see their problem in legal terms, at least at first; they don't think of it in terms of, "this is illegal!" just that they have a workplace problem. c) There's a catch 22 in that you can't complain too early, in which case it isn't severe/pervasive, or too late, in which case you might not have reasonably taken advantage of the internal opportunities to prevent/correct (1) This only applies to harassment cases, where Ellerth can factor in d) The plaintiff has an incentive to favor the EEOC over internal complaint procedures because the participation clause has more coverage (1) The opposition clause lets plaintiffs say, "I didn't really know the law, but I thought it was probably discrimination," and be protected.

Variables in Play for DT

a) In regular DT cases, there are two variables: i) Membership in protected class ii) Employment decision b) In systemic disparate treatment cases, there's a multivariate account, addressed with statistical analysis: i) Random variation causing disparities ii) Discrimination iii) Nondiscriminatory factor correlating with protected trait (1) E.g. in Hazelwood, Δ says teachers from the city don't want to work in a rural area. They're not alleging random variation, but offering a correlated non-discriminatory factor (2) Lack of interest (a) But this can be a product of discrimination [see: futility]

The retaliation catch-22: complain too early, lose retaliation protection; complain too late, Ellerth defense says employer not liable b/c you didn't reasonably use policy.

a) It's easier to get under the protection of the participation clause than the opposition clause... (1) It's a good idea to go ahead and go through the formal EEOC process, etc. (2) However, if you don't let the employer know or take advantage of the employer's internal complaint procedure, sometimes it can make it harder to impute the liability to the employer because the Δ invokes the Ellerth defense (a) Complain too early, retaliation claim won't kick in yet (b) Don't go through employer's process, Ellerth defense defeats underlying claim of D (3) Plaintiff can easily get into a Catch-22 situation where after one bad incident, it probably isn't a plausible Title VII claim, so you can't just go to the EEOC or complain to the employer; not yet a ripe retaliation claim, so you can be fired (a) Weak retaliation protection if you go to HR as opposed to EEOC (b) Participation better (no GF belief) required, but you do have to have some evidence to go to EEOC b) The incentive the law creates: don't complain to HR or use the procedures the company provides until it gets bad enough that you have a reasonable Title VII claim. (1) Wait too long, however, and you're kind of looking like you unreasonably failed to take advantage of the employer's internal procedure. The Δ would prevail on Ellerth defense because they weren't given the opportunity to address the problem

Post-1991 Civil Rights Act version for mixed motive cases

a) Lowered the standard for causation: Plaintiff has burden of persuasion to prove that membership in a protected class was a motivating factor in the adverse personnel action. i) O'Connor/White used "substantial motivating factor" and because their concurrences were the narrowest grounds, that was the standard that was applied from 1989-1991 ii) If you can show a motivating factor, there's liability to some extent, period iii) Direct evidence not required for jury instruction regarding mixed motives b) Introduced a partial affirmative defense if the defendant can show it would have made the same decision absent the discrimination i) If it applies, limits plaintiff to declaratory relief (Δ discriminated), certain kinds of injunction (no more discrimination), and attorney's fees ii) Why? We still want some liability, especially prospective injunctions, for actions with even partially discriminatory motives to prevent it from happening again iii) Why would Congress want to punish Δ if they can prove they would have made the same decision? (1) There's a larger concern: eliminating/deterring the use of improper motivating factors in employment decisions c) So essentially, plaintiffs have to show only a motivating factor to establish liability, but have to show but-for causation to get damages, reinstatement, etc.

Background: interaction of Title VII/ICRA/§1981

a) National origin discrimination; i) 1-3 employees: No protection ii) 4-14 employees: Prohibited by ICRA iii) 15+ employees: prohibited by both ICRA and Title VII iv) All employees: Protected by 1981 b) Alienage discrimination: i) 1-3 employees: No protection ii) 4+ employees: Prohibited by ICRA except as to aliens who don't have work authorization even though it's required by ICRA. iii) All employees: Protected by §1981 (in most circuits)

The role of the jury in a harassment case

a) Norms are very important in harassment cases and they change dramatically over time. i) Female competency and expectations change as women break stereotypes ii) Popular culture changes

What counts as a religion?

a) Not just the big four or five religions count (1) This reflects the idea of the first amendment of the gov't not picking and choosing which ones have that standing b) BUT extremely outlandish beliefs will not be covered c) Courts will be skeptical when religion seems to have been adopted for a manipulative reason (1) People testify as to their commitment to religion, use witnesses (2) But Courts still reluctant to look too deep d) Atheism would count as a religious belief

Step 4: The Lawsuit

a) Plaintiff must file suit within 90 days of right-to-sue letter

Reverse the individual and reverse the groups test: impartiality

a) Reverse the individual: narrow impartiality i) Ex. if Ann Hopkins had been male, she would not have been rejected from partnership for being insufficiently feminine. ii) If Feeney had been male, she would still have not made it--reverse the person test (1) Therefore, it isn't discriminatory under a narrowly impartial view b) Reverse the groups: i) The question: "Would the policy still be the same if the effect on the groups was the same?" ii) However, if in a world where mostly women who served in the military, the legislature wouldn't have passed it, then it would be discriminatory under a broad impartiality view (1) However, this is getting pretty conjectural iii) The reverse the groups test is certainly broader and captures stuff that wouldn't be captured by the "discriminatory intent" test of Feeney

3 areas where BFOQ often arises/sometimes succeeds

a) Safety: Prison guards can be required to be male. Dothard v. Rawlinson b) Privacy: Never officially recognized by SCOTUS, but in a few narrow cases this has been recognized when it comes to like OBGYN nurses c) Something similar to the Healy case i) kids who are abuse victims and can't deal with someone of the abuser's gender Customer preference almost never gives rise to a BFOQ defense a) Foreign customers being misogynists who refuse to hire women, for example, doesn't let you refuse to hire women b) However, the hospital abuse victim kids thing seems to be an exception.

Step 3: The Right to Sue Letter

a) Should happen within 180 days; if plaintiff doesn't receive it, they can request a letter from EEOC b) Plaintiff can request the EEOC end its investigation early and sue early before the 180 days pass. c) If EEOC takes longer than 180 days to finish its investigation and issue the letter, plaintiff can allow EEOC to keep investigating; whenever it finishes, plaintiff then has 90 days to file suit

Accommodation: T7 requires affirmative steps for employer to accommodate

a) Step 1: Prima facie case. Plaintiff has to show that... (1) Employee has a bona fide religious belief that conflicts with an employment requirement, and (2) The employee informed the employer of this belief, and (a) This is the one that kills Reed. Nobody knows even at the appellate level (3) The employee was disciplined for failing to comply. b) Step 2: Employer shows that it either... (1) Offered a reasonable accommodation, OR (2) Shows that offering a reasonable accommodation would be an undue hardship. (a) Here: He never informed his employer of his belief! No liability.

Attorney's fees

a) The American Rule: Everyone pays their own b) Title VII departs from this with a fee-shifting rule: A prevailing party can win its attorneys' fees (1) Not perfectly symmetrical: (a) Plaintiffs more likely to get their fees than defendants are (b) Defendants usually only get them when the lawsuit is frivolous or near-frivolous. For plaintiffs the line isn't quite as high as punitive damages.

Covert Systemic/"Pattern or Practice" Disparate Treatment & Statistical Proof

a) The employer disputes whether they have a DT policy and π has to prove that the policy does in fact exist b) Often brought by EEOC (private parties) or DOJ (state/local gov't) but also private plaintiffs/classes i) P&πbrought by EEOC ii) Covert systemic DT brought by private P c) These are often really big cases where overall numbers, not individual plaintiffs, matter; often brought as class actions

Religious exceptions: religious organizations are exempt from some parts of T7

a) The ministerial exception: a) When it comes to choosing a minister, Title VII doesn't apply. Court won't interfere with choices of who a minister is (can D on basis of race, sex, et.c) b) The ministerial exception bars an employment discrimination claim where: (1) The employer is a religious institution (a) Doesn't need to be an actual traditional religious institution like a church , or operated by one (b) The standard: employer's "mission is marked by clear or obvious religious characteristics" (2) The employee is a ministerial employee: (a) Based on the "primary duties" of the employee c) The source of ministerial exception arises out of the First Amendment itself and applies across the board to all the categories of people who would be covered under Title VII. b) Statutory exceptions under various provisions of Title VII apply only to discrimination on the basis of religion a) Where employer is a religious corporation, association, educational institution, or society: 702(a) b) Employer is a school or college either owned or controlled by a particular religion or religious organization, or where the curriculum is "dedicated towards the propagation of a particular religion.": 703(e)(2) c) Religion is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise: 703(e)(1)

The policy of arbitration

a) The problem with arbitration (1) Seems sort of slanted towards repeat player employers (2) Arbitrators value the justice of Solomon rather than actually choosing who deserves to win. (3) Remedies can be kind of limited. b) Why favor arbitration? (1) It's faster and cheaper (arguably) (2) Freedom to contract (see above—what negotiation actually went into it?) (3) Privacy c) Where does this leave the EEOC? Can an arbitration clause bind the EEOC? (1) Nope. EEOC isn't a party and isn't affected, so it can still bring suit if it wants. d) The real big issue has to do with class actions: Usually arbitration clauses say that you have to bring your claim in arbitration as an individual and not as a class. (1) It seems like these clauses may kill class actions. (2) But they'd already have this incentive anyway. Why does Title VII litigation even still exist?

Liability for damages in pattern/practice cases: Teamsters v. US, US 1977

a) This was the damages phase of the Teamsters litigation after the liability phase had finished. Now the issue is whether individual plaintiffs get back pay b) The rule for the damages phase of liability in pattern/practice cases: (1) Employees/applicants: (a) After a discriminatory pattern or practice has been proven, individuals have to prove that they were members of the class. Rebuttable presumption of discrimination (b) Then, defendant can avoid liability to show that individual employees were not victims of the pattern or practice, thus are not entitled to relief. (i) Particular plaintiffs weren't qualified (hitting at plaintiff's pfc) (ii) Employers present LNR: (iii)Same decision test: even w/out D, would have made same decision (someone else better, another bad feature of the applicant) (2) Non-applicants: (a) Plaintiff must carry his own burden with respect to each specific individual. They must prove that they wanted the job and were qualified (b) Some, but not all, applicants may not have applied because the employer's reputation for discrimination warded them away (i) Futility argument from Joe's Stone Crab (ii) same as futility argument in Teamsters, Hazelwood, Joe's Stone Crab 1. Sears is different b/c we can't assume makeup salespeople are qualified to sell washing machines. (3) Employees who didn't apply for a promotion to a better job within the company? (a) They can recover if they prove that while the discrimination was going on, they wanted the job (b) This is very hard to prove c) The problem: Even if they didn't discriminate at all, not everyone who wanted the job would have applied. If we make them whole, it's sort of a windfall. How do we address that? (1) In theory, damages would be a lot less if defendant could prove that he would have hired plaintiff 1 absent discrimination and therefore 2, 3, and 4 have no damages. d) Remember: back pay is the net difference between what they should have gotten and what they did get. (1) Damages could be reduced if plaintiff does, or should have with reasonable diligence, get another job

History of Title VII damages

a) Title VII was purposefully designed so as not to trigger a right to a jury trial because news flash, white juries in Alabama might not be that interested in following Title VII. b) 1991: Congress passed the 1991 CR Act and added compensatory and punitive damages for intentional discrimination cases (everything but disparate impact); a) Also added statutory caps to take the edge off (1) The caps are per π, so the employer could still be hit hard if there are multiple πs, especially with class action suits b) Demanding compensatory or punitive damages give either party the right to demand a jury trial c) Note: Remember, §1981 and 1983 do not have any damage caps. They're just regular torts and treated as such.

Note on sovereign immunity: Only parts of the FMLA are enforceable against state governments

a) Title VII, ADA, PDA passed with both the commerce power and 14 th Am. power i) All employment is commerce clause b) But Congress doesn't have sovereignty over states, so it can't use the commerce clause to make a state employer liable for $$ damages

Intent & P&P cases

a) Up-Down i) Look at upper management policies that make lower managers engage in discriminatory conduct b) Bottom-Up i) Lower management engages in discriminatory conduct and upper management is unaware or passively approving

Front pay:

a) Wages that would have been paid for period from after judgment entered and before reinstatement/pay in lieu of reinstatement (1) Period from where discrimination occurred and plaintiff begins to lose wages → Judgment entered: Back pay. Big difference! ←x----------------back pay-------------------------x-------------------------front pay--------------x Disc. firing Judgment When P starts working again b) In many cases, there isn't really front pay because nobody wants to go back to the status quo, so the parties would negotiate a lump sum payment

Intro to the Concept of Disparate Impact

a) What can explain a disparity? i) Random variation (no liability) ii) Intentional discrimination (systemic disparate treatment liability) iii) Neutral, non-discriminatory factor correlated with protected status (disparate impact liability) b) Δ can defend against a Disparate Treatment claim by claiming there's a neutral reason, then defend using Disparate Impact doctrine

Step 1: π files charge with the EEOC (and state/local agency, if applicable)

a) What is a charge? a) Must be... (1) In writing (2) Name the alleged violator (3) Generally allege discriminatory acts (4) Could reasonably be construed as request for agency to take some kind of remedial action b) In practice, many are more in the form of questions rather than allegations, so there aren't really strict requirements. This is more like notice pleading than Twombly/Iqbal pleading c) The EEOC form is designed for pro-se πs (1) Doesn't ask if it's a DT, DI, or harassment case (2) Rare for the EEOC to actually litigate due to a huge backlog d) The right to sue letter is intended to act as a sign for πs to get a lawyer b) Texas Workforce Commission Civil Rights Division is the state agency in Texas; most states have one. Local agencies could also be involved a) Generally, you just send the same thing to all agencies at whatever level that might be responsible for this even though you don't technically have to in many cases c) The basic SOL is 300 days from when the relevant discrimination occurred a) How do you pinpoint when the discrimination occurred? It's easy when you have someone getting fired, but it's harder when it's an ongoing thing. b) Note: it's 180 days when there's no state agency c) Exceptions: (1) Ledbetter: Ledbetter Fair Pay Act says statute resets after each discriminatory paycheck, benefits alleged--but plaintiff must bring claim for pay discrimination, can't be merely incidental to claim (a) Sex discrimination claim based on pay differential: Ledbetter works from 1979 to 1996. There were allegedly discriminatory evaluations that affected her pay in an ongoing way even back in the 70s and 80s even though the suit was in 1996 (b) SCOTUS holds that this isn't timely, but Congress reverses it (c) Ledbetter Fair Pay Act: Statute of limitations for compensation-based Title VII claims starts to run after the last paycheck, not when the discrimination happened (i) There's an ongoing pay disparity that extends the time to sue (ii) Narrow applicability: only for cases where π is getting less pay for the same work because of sex (only unequal pay for equal work, doesn't help when work roles are only "similar") (d) This is fair in that people don't always know they've been injured for a long time because you don't know what other employees get paid, but it puts employers in a very tough position trying to defend these cases about stuff that happened decades ago (i) Almond v. Unified School District: 10th Circ, 2011 1. Janitors told they will get lower pay in 2 yrs, believe it's age D 2. But don't file claim until lower pay starts; claim D act was the receipt of the lower pay 3. Court says no, D act was the notice that they would get the lower pay, plaintiffs must conform to 300 day rule a. Ledbetter exception doesn't kick in here b/c didn't allege pay discrimination b. We make plaintiffs allege it and make it part of the main claim b/c most D actions in workplace have some effect on pay i. This would be the exception that swallows the 300 day rule if standard not strict c. In general, π needs to sue when things happen, not when they learn it was unlawful, etc. d. If you don't even know there was an injury, Ledbetter applies, but if π knows they've been injured but doesn't know it's discrimination (yet) doesn't get the same protection (2) Other exceptions: (a) There is another Ledbetter-like exception for seniority systems (i) They can be challenged when adopted or used (b) Facially discriminatory policies can be challenged at any time (3) Hostile work environment claims: (a) SOL starts running again after each instance of conduct; you can bring suit on the basis of the totality of the stuff that happened to you, including stuff that was too long ago. (b) Effectively, the only way the SOL can lapse on these is if the harassment stops and 300 days pass (if the harasser gets transferred or something) d) Events past the SOL can come in as relevant background evidence, but the employer wouldn't be liable unless an exception applies (e.g. ongoing harassment, DI, seniority systems, Ledbetter Act) d) When the EEOC/state agency gets it, they docket it and they have 180 days to come up with some decision (next step)

Why hasn't arbitration swallowed all of employment discrimination laws?

a) Why doesn't every employee in the US sign a binding arbitration clause? It seems like it should happen, but it never has. b) Smaller employers are unlikely to have written Ks like this anyway. c) Even larger employers may think, "Well we don't need it because we don't discriminate against anyone." d) These clauses also often encompass all kinds of disputes that employers might not want to arbitrate. e) Employers usually win anyway so maybe it's quicker and easier to dispose of the loser claims through summary judgment than arbitration and that doesn't justify the efficiencies in the closer cases.

Slack v. Havens revisited

a) Women allege D because they are black and are women, forced to clean b) One group singled out for better treatment- White Women c) Suppose that the newly hired employees are white males and they do the cleaning duties (and suppose the racist comments were never made) (1) Causes problems for π at the prima facie case (a) So not just plain sex D b/c white woman didn't have to clean (b) Have to allege intersectional D (2) They still have changes to the job description and they still have Sharon Murphy (the white woman) as a comparator (3) As among women, white women are being treated differently than black women (a) Race claim with just women groups as comparators

Faludi- "Diane Joyce"

a) Women in middle class/professional jobs proliferate after anti-D law; but women in blue-collar jobs still rare a) Not a lack of interest problem; women want these jobs and are qualified, but aren't hired b) Or they are hired and face lots of harassment, and eventually leave b) Joyce actually didn't want this big equality lawsuit, she just wanted a higher paying job c) In defense of the white male (eye roll): a) White men work hard, don't get what they want (1) This is discrimination, white men are the scapegoat for centuries of racism (as if they did nothing...) (2) White men are the only unprotected group in America....now back to our regularly scheduled programming

14 Penn Plaza, LLC v. Pyett, US 2009

a) πs were reassigned. They want to sue over age discrimination but the π's union agreed to an arbitration clause in the CBA b) After suit filed, employer says that this needs to be enjoined because there's this arbitration clause in their CBA. c) Held: The arbitration clause is enforceable; court compels arbitration in their ADEA claim. (1) This was sort of a labor law rather than employment law issue. (2) What if employer/employee K is signed and employee agrees never to sue at all? (a) Won't work; you can't contract away your substantive statutory rights. Arbitration clauses are different because you're waiving procedural rights d) Policy problem: employees typically have zero ability to negotiate employment K, so the arbitration clauses aren't really negotiable

Burlington Northern and Santa Fe Ry. Co. v. White

adverse action doesn't have to be in terms and conditions of employment to violate retaliation statute; would reasonable employee have found challenged action materially adverse a) Employee who complained of harassment by her supervisor got reassigned from being a forklift operator to being a track laborer, which has the same pay and benefits but is much less pleasant a job to actually do b) Filed a discrimination charge with the EEOC and got suspended; then she files a grievance, wins, and gets back pay c) Issue: did she suffer an adverse action? d) Held: Yes, she suffered an adverse action, even though she didn't get fired; she got a more arduous workload, which was harmful enough to dissuade a reasonable worker from making or supporting a charge (1) Both the reassignment and the suspension were materially adverse/retaliation (2) Test is whether a reasonable employee would have found challenged action materially adverse (3) This is broader than the tangible employment action line that the court draws for harassment claim (the Ellerth line); all that's required is that it might have (a) This encourages employees to bring claims and enforce Title VII. There has to be room beyond clearly meritorious claims so we encourage employees to enforce their rights (4) Hypo: Fiskin's son is expelled from UT over something Fishkin did as a way to get back at him. (a) This would count as a materially adverse action. (5) Just general rudeness, snubbing, etc. are not materially adverse; something like not getting invited to lunch wouldn't matter, but if it were a professional development thing that was important for professional advancement, getting snubbed from that could count

Retroactive seniority: Franks v. Bowman Transp. Co., US 1976

also have to award retroactive seniority; goal of equitable relief to make plaintiff's whole, so we give plaintiff's the money and status that they would have gotten if not for discrimination a) πs won and district court issued injunction: They get priority to be hired to the jobs they were supposed to be hired for but they don't get retroactive seniority b) SCOTUS holds: You have to give them retroactive seniority as well. If they hadn't been discriminated against, they would have been hired and would have seniority, so this is necessary to make them whole. a) Maybe the other employees don't' like it, but allowing this to stop Title VII equitable relief by kowtowing to majority employees won't effectuate purposes of Title VII. (1) If they don't push the plaintiffs up to where they're supposed to be, it arguably hurts the effort to produce the kind of integrated workplaces we like. (2) They suggest that nobody's losing anything because nobody is losing their seniority (3) Retroactive seniority can be zero-sum: it can affect the work assignments people get (a) It could avoid being zero-sum if the retroactive seniority only applied to things like pension vesting, vacation time, and promotion eligibility (b) The dissent would not have awarded competitive seniority (c) The concurrence suggested a money award instead (i) Seems insufficient because it doesn't address lingering effects of discrimination. Not everything can be liquidated (e.g. prestige, work duties, office) b) However, majority is a bit sympathetic to the problem of harming incumbent employees: Court will not toss out incumbent employees who did get the jobs and replace them with the plaintiffs. (1) Won't throw out other employees that did get jobs, but employer will probably pay front pay to plaintiffs -- the pay they would be making if position available

University of Texas Southwestern Medical Center v. Nassar

causation in retaliation claims is strict "but-for" causation, unlike causation in substantive discrimination parts of Title VII a) Doctor works for school and hospital, says boss D against him b/c race b) Doctor criticizes university boss and wants to only work for hospital moving forward c) Hospital was going to offer doctor full-time job, decides against it d) Holding: retaliation claims require "but-for" causation, not easier "motivating factor" test from underlying D cases (1) So if employer has 1 non-retaliatory reason for adverse employment decision, no retaliation under T7 e) Use McDonnell-Douglass proof structure, burden of persuasion always on plaintiffs (1) Plaintiff's pfc case of retaliation: (a) Opposition: I (reasonably) opposed what I had a GF belief was D; i suffered an adverse employment action (anything that would deter me from coming forward), and the but-for cause was my act in opposition as retaliation for my opposition; OR (b) Participation: I participated in Title VII claim in some way, that was the but-for cause of the adverse employment action (2) Defendant only has to offer one legitimate non-retaliatory reason; plaintiff maintains burden of proof (3) Pretext debate

Hively v. Ivy Tech

associational Discrimination, gender performance stereotype as a form of Discrimination i) First circuit to hold that sexual orientation discrimination is sex discrimination (1) Can't consider sexual orientation without sex (2) Reverse the groups: if we keep π's partner the same but change π to male, then the treatment would have been better (a) Dissent: the test is wrong because there's 2 factors changing: 1) sex; and 2) sexual orientation. You need to compare lesbians to gay men (i) Dissent ignores that π was violating stereotypes and gender expression ii) Brings in "association" into the "because of sex" doctrine (1) Comes from Loving v. Virginia (2) Narrow impartiality question: are people of different sexes being treated the same? (a) π would not be suffering if that trait were different (b) But it's a losing argument: no discrimination because there's restrictions to both men and women (3) Majority: in the same way that you can't punish an interracial couple because of race, you can't punish a gay couple because of sex iii) What should courts do with sexual orientation? (1) Sex is an idea that changes over time; discrimination also changes (a) See: harassment. It's a doctrine that wasn't around in 1964 but came about as we progressed on women's rights (2) Gender stereotypes come into play (heteronormativity) (3) Posner: let's be real, we change the meaning over time. No need to try to fit the definition of sex as we know it to the definition around in 1964 (4) Statutory language doesn't really define sex (a) Sex was added in an attempt to kill Title VII (b) But gender is clearly covered, so gender performance would have to be covered (Price Waterhouse) (i) Ex. 1. L: "you called my client gay and used gay slurs, but did you actually think he's gay?" 2. Witness: "no" 3. L: "did you mean that he's effeminate?" 4. Witness: "yes" (5) Some forms of discrimination aren't centered on sex and may work as a defense outside the 7 th circuit (a) Ex. Immorality, or fear of AIDS

Availability of back pay: Albemarle Paper Co. v. Moody, US 1975

bad faith not a factor in awarding backpay; this case creates a presumption of backpay in T7 cases a) Employer's seniority system violated Title VII. District court looked at the lack of evidence of bad-faith noncompliance AND the fact that πs had said before that they were not looking for backpay a) At this time, there was no liability for damages under Title VII b) Held: The "lack of bad faith" element does not enter into analysis as to whether to order back pay; you can get back pay even if employer didn't act in good faith. The aim of Title VII is to make π whole and to encourage employers to not discriminate a) Title VII isn't about moral turpitude, it's about two things... (1) modifying primary conduct and creating equal opportunity. (2) The policy is to make whole successful plaintiffs. b) The fact that plaintiff delayed even asking for back pay could be relevant but isn't here. (1) If you prejudice the other side by delaying (e.g. using surprise to prevent their defense), you aren't entitled to that remedy, but that wasn't the case here. c) This case often cited for the proposition that there's a presumption that back pay is appropriate in a Title VII case. (1) Back pay is actually a form of equitable relief so it doesn't trigger a jury trial. c) Rehnquist's concurrence: If you create a presumption of back pay, aren't you raising the issue of jury trials? Paying money looks a lot like damages and if you have damages you have a jury trial; that probably isn't what Congress intended

Diaz v. Pan Am (1971)

being a woman ≠ BFOQ for flight attendant position; can't assume no man will have skills just because most won't-- must test for skills and not assume based on stereotype a) Pan-Am says that women are better at being flight attendants, because they're superior at providing comfort to passengers and men like attractive stewardesses, so they're happier b) BFOQ defense does not apply because the essence of the business here is flying people from point A to point B, NOT keeping them happy with T&A i) "Before sex discrimination can be practiced, it must not only be shown that it is impractical to find the men that possess the abilities that most women possess, but that the abilities are necessary to the business, not merely tangential." ii) Court probably could have bought the idea that for flight attendants, keeping customers is important, but men could do it too, but went the more extreme route iii) This is basically down to customer preference, which we know is not a BFOQ c) The company unsuccessfully argued that they can't really tell which individuals are good at the non-mechanical aspects of the job, so they have to use sex as a surrogate i) Correlation is not going to do it. See Manhart ii) While court accepted the possibility of a correlation, it's not a valid consideration since you can't exclude all men if some men could do the job iii) You could conceivably use age as a BFOQ if an individual assessment is

International Union, UAW v. Johnson Controls, Inc. (1991)

being sterile/male not a BFOQ for job, Johnson Controls not in the business of protecting fetuses; speculative tort liability doesn't allow you to discriminate a) No women capable of bearing children can work in positions at a battery plant where you get exposed to lead; π included a woman who got sterilized to keep the job, woman who got involuntarily transferred, and man who wanted to transfer to avoid lead but couldn't sue over this b) The theory: Sex plus. Being a woman plus being of childbearing age is what triggers the discrimination Held: Protecting fetuses is not a BFOQ i) BFOQ must be related to actually doing the job. (1) Unlike prison guards, who wouldn't be able to keep order in dangerous situations, this is a personal choice and only hurts the employee herself (2) not so broad as to include social concerns ii) BFOQ must be the "essence" or "central business" of the employer (1) The "overall business" is making batteries, not making batteries and protecting fetuses (2) In Dothard, the inmates were an essential component of the business iii) Under the pregnancy discrimination act, Congress expressed the policy that pregnancy decisions are 100% reserved for the woman herself; employers are not allowed to be paternalistic like this (1) If the policy had been for women who were actually pregnant, it would be blatantly illegal under the PDA so the same result is mandated here d) White/Rehnquist/Kennedy concurrence: You could have a fetal protection policy if you could show that exclusion of women from certain jobs was reasonably necessary to avoid substantial tort liability e) Scalia concurrence: A cost-based BFOQ could be valid if the business's survival would be threatened by the cost of employing a certain category of person. For example, a shipping company might refuse to hire pregnant women as crew members on long voyages (NOT what the majority says in dicta)

Moore v. Hughes Helicopters

black women can't be class reps for class of black people or class of women; intersectional claims not adequate/typical of class members (1) Black woman wants to be a named π in class action, representing both black and female employees (2) Court won't certify her as class representative on behalf of all women because black and white women's interests might not be aligned (a) She's not representative of women as a whole because black women are uniquely situated because of the race element (b) Read: she doesn't adequately represent white women

El v. SEPTA (2007)

can have a BN of having employees w/out criminal convictions if safety/low risk of violence part of BN i) El worked as a bus driver for SEPTA driving around disabled people (1) SEPTA's rule: Certain criminal convictions automatically and permanently disqualify you from employment. (2) Turns out that El had a 40-year-old conviction for second-degree murder, and when this comes to light, they fire him ii) π challenged Δ's criminal record rule because it disproportionately affected minorities (DI) iii) SEPTA Tries to raise the BN/JR defense to defend its use of this rule's disparate impact on minorities iv) Held: Held: To establish BN/JR, employer must "show that discriminatory hiring policy accurately—but not perfectly—ascertains an applicant's ability to perform successfully the job in question." v) Here, SEPTA has established business necessity: (1) SEPTA's expert testified that former violent criminals have a pretty substantial risk of recidivism, and even after many years they're more likely than the average person to commit a crime (civil liability and public safety) (a) π did not rebut with his own expert witness. Probably didn't have the $$ to do so vi) Circumstances for proper consideration of criminal conviction: from EEOC guidelines (1) the nature/gravity of the offense, (2) the time that's passed, and (3) the nature of the job held/sought vii) Why do public entities face so many disparate impact suits? (1) Historically just white men and big institutions led to many tests/potential information (2) More efforts to get more diversity

EEOC v. Joe's Stone Crab (2000)

can have liability for systemic D/T, but not necessarily also D/I (no particular practice); introduces futility arguments i) Famous Miami Beach restaurant famous for fancy-schmantz-ness hires waiters based on a big "casting call"/"roll call" thing where a hundred people all show up at once; not many women even show up because everyone sort of knows Joe's doesn't hire women. (1) Before EEOC gets on their case, they hire no women, then after EEOC charge, they hire 20% female waiters ii) Is this disparate impact or disparate treatment? No active practices iii) Held: Joe's' is liable under a systemic disparate treatment theory, but not disparate impact (1) They silently acquiesced to the impression that people got that male waiters were better (2) Joe's wanted to have male waiters, and chooses to do this with the one-day roll call thing and the word-of-mouth stuff and that arguably means less women (3) Just passively allowing themselves to continue to have the reputation wasn't a particular employment practice (a) Futility argument: women not applying b/c feel like it's useless (4) Even though a particular employment practice couldn't be identified to get into disparate impact, JSC lost on remand, with the jury apparently concluding that they were subtly perpetuating the impression that they weren't welcome iv) Note: BFOQ is only available for overt/explicit policies. JSC couldn't offer a BFOQ b/c policy was expert.

Jones v. City of Boston

can use statistical significance when acceptance rates so high (80% rule wouldn't show discrimination here); jury has to decide if department refused to adopt test; if is there a less discriminatory alternative that is equally valid, employer should use that. a) Police officers sue b/c drug test (hair follicle) has D/I on black officers (black hair products hold onto contaminants) b) Acceptance rates so high that court doesn't use 80% rule, use statistical significance; 98% blacks v 99% whites c) Test was clearly BN but fell too harshly on Blacks, plaintiffs proposed alternative test i) More reliable, less likely Discrimination, already used to reinstate officers after hair test ii) Reas jury could have found that new test was Discriminatory, but did dept refuse to adopt it? (1) That's a jury question (2) Adams says plaintiff must demonstrate viable alternative and give employer chance to adopt (3) But also suggests if employer had chance to adopt and alternative was available, employer choosing not to adopt = refusal d) How to tell if a test is a good LDA: i) costs are same ii) measures the same thing iii) easily implemented? e) In general, LDA cases and precedent are few and far between f) Jury decides how to weigh K component of LDA and whether employer refused to implement LDA = less discriminatory alternative

Teamsters v. US (1977)

can use statistics to point to discrimination, compare expected (based on population) to observed; statistics alone may be enough for disparate treatment liability a) US sued TIME DC, who allegedly discriminated against black/Hispanic applicants who applied to be line drivers (long distance rather than intra-city) b) Evidence offered that the court found persuasive i) Statistical evidence: (1) Internal statistics about huge disparities in positions by race (a) The inexorable zero: There are stations where there are literally zero black drivers in areas with many black people. (2) Compared to the overall population; not perfect because not everyone can be a driver, but it's not a high-skill job. The disparity can be a sign of discrimination ii) Anecdotal evidence: Witnesses say that they got discriminated against c) Held: Liability for systemic disparate treatment. i) An imbalance alone is NOT enough to give rise to liability. They still have to prove intent, even if it's circumstantially (1) 703(j): No obligation to make workforce proportional to population (2) However, at least in theory, the gov't can win if the circumstantial statistical evidence is egregious enough, even if the statistical evidence is all they have ii) Employer gets an opportunity to rebut evidence of overall pattern of discrimination (1) Rebutting individual anecdotes isn't enough, however (2) Matters in the remedy phase—if a particular π would have been passed over anyway, that π would not be able to recover d) Teamsters was a class action: 2 step trial plan i) Step 1: general case for aggregate disparate treatment (1) Plaintiff alleges pattern or practice of D (a) Will use statistics and individual anecdotes to show disparity (b) But must also prove discriminatory intent b/c this is a disparate treatment claim (2) Defendant gets chance to rebut evidence of overall discrimination (a) Can challenge stats or offer an alternative reason for disparity (3) If plaintiffs successful on pattern/practice claim, proceed to individual remedy stage ii) Step 2: Individualized remedy phase. Was each person discriminated against? It's strongly presumed but can be rebutted (1) Plaintiffs have to prove that they belong in the class (2) Defendants offer individual LNRs (a) If defendant has an LNR, individual plaintiffs lose and don't get remedy e) Court makes sure to note that the comparison between workers and population is NOT tantamount to quotas; in fact, that would probably be disparate treatment i) But Local 28?

Maldonado v. US Bank & Manufacturer's Bank (1999)

can't fire pregnant women under assumption that they will miss work beyond leave policy; like Manhart, can't fire b/c general stereotype that pregnant people take more leave i) US Bank fired Maldonado as soon as she told her supervisor she was pregnant; they assumed she'd miss a bunch of work during the summer when they need workers the most (1) Now the employer says, we would have treated anyone who was going to have to miss a bunch of time in the summer just the same; the fact that this was the case due to pregnancy didn't' enter into it ii) Held: This was still unlawful discrimination (1) She never said she'd have to miss any time necessarily; if she'd asked for four months of leave when that wasn't the policy, that would make it okay to fire her perhaps (2) They're just making generalized assumptions about pregnancy, not treating her as an individual; it's kind of like Manhart with the life insurance premiums in that just because some generalizations are statistically true on average, you can't make assumptions about everyone in that group on that basis. (a) Distinguishes this case from Marshall v. Am. Hosp. Assn., where an employee said, I'm going to need this much leave at this time, and because it conflicted with organizing a big conference, it was okay to fire her. Employer did not make any assumptions—they fired π because they knew she would not be able to work during an important conference (3) Unlike in Marshall, she wasn't necessarily asking for special treatment iii) Court notes that the PDA specifically said, "we disagree with the holding and reasoning of Gilbert!" (1) However, the reasoning of Gilbert lives on. Courts still distinguish between "voluntary" conditions, like birth control and breastfeeding iv) What if there was a general policy of "NO leave for any reason, period"? Would it be legal under the PDA? (1) Imagine this causes pregnant women to leave the job (2) The impact could be shown as affecting only women, then Δ would have to go to BN/JR

St. Mary's Honor Center v. Hicks (1993)

court says plaintiff must show pretext-plus, put in additional evidence to prove pretext or defendants wins as MOL (standard changes in Reeves) i) After management changes at halfway house, all of a sudden black supervisor gets in many disciplinary problems, gets fired when he threatens his boss, and was replaced with a white dude (1) Employer proffers an LNR: He broke rules and threatened his supervisor (2) Hicks rebutts/pretexts: Everyone else didn't get in trouble for many things he did (e.g. when it was his subordinates who screwed up) and his supervisor instigated that confrontation to purposefully get him fired ii) Held: Pretext-Plus: Employer has burden of production for LNR, but plaintiff has ultimate burden of persuasion. Knocking out the LNR isn't enough. π failed to prove that bad treatment was due to race rather than personal animus (1) π must prove by a preponderance of the evidence both that the asserted LNR is pretextual and that discrimination was the real reason for the AEA (2) π does not win as a matter of law just by disproving LNR iii) Dissent: (1) Responded Scalia's suggestion that P's burden is to prove all other possible explanations (a) Souter: This makes it way too hard to win with no direct evidence of discrimination; you have to rebut all possible other explanations. (2) In Burdine, π could succeed by proving the LNR is false (3) The problem is, if the employer won't say what the real reason is, how is the π supposed to proceed? Does he have to disprove everything? iv) Fishkin: Maybe you do have to rebut all other possible explanations to win as a matter of law, but not to win at trial; you just have to persuade jury by a preponderance of the evidence

EEOC. Warshawsky

defendant failed to justify BN/JR of unforging leave policy, so D i) Δ discharged 53 employees. 50 were female, 20 of whom were pregnant ii) EEOC litigates this in part as a DI claim (1) Comparisons (a) EEOC wants to compare pregnant first year employees with non-pregnant employees (b) Δ wants to compare pregnant first year employees and employees who requested leave during the first year (c) Court went with female employees and male employees overall, which showed 2.5 standard deviations (pregnancy discrimination= sex discrimination, so just compare men to women) (i) 80% analysis: (women who kept job)/(men who kept job): 1. 95.6/99.6. Fails test a. doesn't fail the ⅘ rule but it statistically significant (5.5 standard deviations) (ii) Courts sometimes substitute the tests if one shows impact more clearly 1. Could also use statistical significance measure like in Jones iii) DT: among first year employees, men who requested leave were allowed; women were fired (1) 75% of women fired compared to just 37.5% of men (2) Unequal treatment in requesting leave iv) Here, Δ had to defend both a DT and a DI claim (1) A policy can create DI and also be applied differently to different groups; (a) Feeney kind of DT where neutral policy applied in such a way to make it an act of intentional D v) In defense, Δ can add details to statistics and differentiate individuals by giving LNR for differences in treatment vi) Held: Δ failed to justify BN/JR, even under the deferential Wards Cove standard vii) Ultimately, the FMLA doesn't affect this claim much since the FMLA requires at least 12 months of employment

Desert Palace, Inc. v. Costa (2003)

direct evidence of D not required for mixed-motive instruction a) Costa was the only female Teamster in a warehouse. She's subjected to escalating pattern of conflicts where she got disciplined a lot more harshly than a man would have been, got harassed, got retaliated against when she complained. b) Issue: Did she have to introduce direct evidence of discrimination to get the mixed-motive instruction? c) Held: No, you don't have to introduce direct evidence of discrimination to get a mixed motive instruction or to prove that the impermissible factor was a motivating factor in the adverse employment action (AEA). d) There are two ways to analyze these claims: i) There is only one kind of claim, whether it's a pretext or mixed motive case. (1) π always proves that protected class status caused AEA and Δ always offers LNR (2) π either proves that . . . (a) The LNR was pretext, or (b) Sufficient evidence that it was a mixed motive situation and the protected class status was a motivating factor (i) If this, Δ can prove that the same decision would have been made regardless ii) There are two separate kinds of claims: Burdine/McDonnell-Douglass burden shifting and Price Waterhouse mixed motive. iii) The 5th Circuit has attempted to combine the two.

General Electric v. Gilbert, US 1976

discrimination against pregnant women not sex discrimination, discrimination against a medical condition that's not covered under Title VII a) Employer's insurance policy covers non-occupation related disabilities but specifically excludes pregnancy b) Held: this was not a violation of Title VII because it was not directly discriminatory due to gender i) The distinction is between pregnant and non-pregnant people, not between men and women (1) Unprotected trait is what's at stake, even if it happens to be linked with a protected trait (2) Everyone gets the same benefits; it's a facially neutral policy that incidentally has a unique effect on women (3) Women already get a disproportionate amount of the benefits from the policy (4) Employer and the court used cost to justify treating pregnancy different (5) The court painted pregnancy as a choice (6) Men don't get more coverage than women ii) If Title VII was meant to protect pregnant women, Congress would have included it iii) The Court reasoned that pregnancy was just "different" (1) They conceded that there could have been a pretext, but in this case, pregnancy is just different c) Dissent: This isn't facially neutral because a guy could get a vasectomy or something like that; they chose to exclude only the thing that affects only women i) Attacked the proposition that because pregnancy has a voluntariness notion, that it should be treated differently (1) After all, sports injuries and vasectomies are voluntary but covered ii) Didn't like that the majority seemed to require π to prove pretext to succeed. Blackmun pointed out that this case was not overruling Griggs on this point iii) Also, GE had a bad enough track record that it's highly probable that this was targeted to women d) Viewed through different models i) Impartiality (1) Narrow: What the Court used to justify that men and women were treated equally--treating individual men and women the same (2) Broad: all ailments men can suffer are covered, including prostate cancer, but not all conditions are covered for women. It's not impartial. (a) Look at the intent of the policy—was it to enforce stereotypes that women belong at home? ii) Bottleneck (1) Employers' concerns about pregnancy and childbirth broadly limit women's job opportunities e) Could π have alleged DI? i) There's certainly an impact on women that men don't have ii) BN/JR: Δ would have to show how costs drove the decision to exclude pregnancy f) Congress acted quickly to address this case with the Pregnancy Discrimination Act of 1978

Maldonado v. City of Altus

discrimination b/c city failed to prove business necessity of English-only policy i) 29 Hispanic employees, all bilingual, of Altus; at least one complaint from non-Spanish-speaker ii) Summary judgment for employer reversed by the Circuit Court iii) π alleged that the policy created a hostile work environment for latino workers because they would be mocked by non-Spanish speakers (1) Weird to see this in a DI case iv) Disparate impact theory wins here: (1) Prima facie case easily shown, plus; (2) The city hasn't showed business necessity because nothing had really happened and they hadn't introduced any good evidence that there was really a communication, resentment, etc. problem in the first place (3) Plus it was really broad and didn't even let them speak Spanish on breaks, etc. (a) There was a difference in how it was written and how it was applied, with the application reaching into broader, private spheres that couldn't be justified by BN/JR (4) Plus, there was some evidence of harassment over the ban by English speakers and the mayor saying that Spanish was a "garbage" language (a) This was probably the thing that differentiated it from Spun Steak and Sephora v) English only rules are problematic not just with Title VII, but with Equal Protection (1) In Maldonado, it was easier to draw an inference of ill-will (a) May give rise to DT claim (2) Shows white fragility—white employees uncomfortable with other languages/peoples

Damages for emotional distress: Turic v. Holland Hospitality, Inc., 6th Cir. 1996;

don't need expert testimony to establish emotional distress, witnesses are enough; eggshell skull rules applies from torts a) Turic got fired because she got pregnant and was considering getting an abortion b) Damages for an injury like mental distress are not presumed; you actually have to introduce evidence to prove them c) But what kind of evidence? (1) You don't have to get expert testimony or have been diagnosed with something, etc. (2) You're good if you just have lay witnesses testify that plaintiff was all distraught, etc. Even Plaintiff's own testimony counts, but probably isn't enough just on its own d) This stage is basically subjective; if a plaintiff is more sensitive than the average person, that can affect damages (1) Many tort principles apply to Title VII remedies, like the eggshell π (2) Doesn't apply to the liability phase

Adams v. City of Chicago (2006)

employee must show LDA was available at the time time, employer must have had chance to adopt it [case mentioned in notes only] i) Police officers had always been promoted based on their big promotion test, but in 1997, a task force suggested making promotions merit-based, using performance reviews and the like as 30% of the decision. They did one last round of promotions with the old system in early 1997 and that gave rise to the lawsuit ii) Issue: Was there a LDA? This is actually the decisive issue only because they both agreed to concede the disparate impact and BN/JR, which is rare iii) Held: No liability based on LDA prong because π hasn't shown that the LDA was available at the time; they needed to do the promotions and didn't have time to implement it iv) Court suggests that there isn't an affirmative duty to reexamine your existing policies and see if there are alternatives i) How close does the LDA have to resemble the challenged policy? How equal must they be? i) Look at the last candidate hired/promoted in each method to compare if they can equally have success on the job ii) What if the LDA is more expensive? (1) Unclear how much of a factor cost is, but it's surely prohibitive at some point (a) Probably less demanding of a factor than BFOQ. j) BN/JR i) Never clearly laid out by SCOTUS ii) El v. Septa: Accurately-but not perfectly; common sense not enough; something must connect the test and job iii) In cut-off scores, 'more is better' is insufficient; if people who miss the cutoff could still do the job, it's likely not a valid test

Zamora v. Elite Logistics

employer required plaintiff to provide more documentation than required by law, but no discrimination b/c LNR and no showing that suspension or firing was a pretext i) Zamora was an LPR, then a USC, who didn't speak English. His employer found out that ICE was going to raid the workplace, so the employer proactively checked employees' SSN. π was among the employees whose SSN got flagged. Employer didn't trust π's docs because there were conflicting DOBs. π got suspended until he got more proof. π got more proof, but was fired when he demanded an apology ii) Ancillary problem with litigation: latinos made up majority of the workplace (1) Similar in that aspect to Oncale, Zamora, Back v. Hastings (2) Zamora also lacks a comparator; no white employee with same problem iii) π alleged discrimination based on national origin (1) LNR: the SSN was flagged and Δ wanted to comply with IRCA (a) Δ: admitted that at one point, they weren't driven by a desire to comply with IRCA, but rather just attempting to avoid penalties (b) Knocking out the LNR isn't enough to get to a jury (i) Ginsburg: I disagree with that statement. Ordinarily, knocking out the LNR gets you to a jury (2) Pretext: π argued pretext because he was required to provide more documents than what is needed to verify (a) For pretext, π has to point to a non-legitimate objective (b) The prohibition on asking for more documents than needed to verify employment status, rather than a bright line point at which the request is too much. Here, more docs were needed than normal because of conflicting information (3) Ultimately, Court didn't think there was a fact issue about why π was fired. He was fired for demanding an apology, not because of his alienage iv) π's SSN got flagged because there were many people using it. Was it discriminatory to assume π was the one who was using it fraudulently? (1) The employer got IRCA protections to insulate them from discrimination concerns arising from attempts to verify (2) It's hard to litigate because we're dealing with inferences about alienage rather than direct evidence like comments about race/national origin

Dynamex v. Superior Court

employers can't just designate someone an independent contractor to avoid liability

Wilson v. US West Communications, 8th Cir. 1995

employers have to offer a reasonable accommodation for religion, but doesn't have to be the employee's most preferred accommodation; undue hardship to offer most preferred accommodation a) π worked for US West and decided to take a vow to wear a button with an aborted fetus on it (1) West, an ardent Catholic, believed her soul would be damned if she broke the vow, so she refused to take it off at work (2) US West, through her three different Catholic supervisors, gave her three options: (a) You can wear it in your cubicle but not around other people (b) You can cover the button up at work (c) Wear a different button with the same message but no fetus picture b) Held: US West wins because they offered a reasonable accommodation, namely covering up the button when she was at work (1) Her vow didn't necessarily say that she had to have the button on and have everyone see it; it could be covered and she would still be following the vow. This whole talk about being a "living witness" was made up after the fact (2) The other two accommodations wouldn't pass muster because they actually would involve breaking the vow by taking the thing off (3) Note that the π doesn't have to actually request a certain obligation. Employer just has to offer a reasonable one as long as it wouldn't be an undue hardship (4) Court is kind of on shaky ground when it makes a finding of fact that she doesn't have to have the button out where people can see it all the time. It sort of defeats the purpose c) What if she was actively prosthelytizing to all the other workers? It seems like employer still wins on undue hardship d) What if 20% of people did it and other employees said, "This work environment! It's hostile!" Seems like undue hardship wins again e) What if coworkers' preferences, etc. are such that they're bothered big time like in Wilson by a head scarf, star of David necklace, etc.? (1) At some point, it becomes a more straightforward disparate treatment situation

Griggs v Duke Power (second look for disparate impact)

employment tests w/ discriminatory impact must measure the skills for the job a) Employer used two kinds of IQ test things, including the Wonderlic, and requires a high school diploma b) Held: Liability for disparate impact. i) Congress mandated that tests used to screen for employment, etc. must measure the person for the job, and not the person in the abstract. (1) An IQ test measures something, but it isn't germane to how they'd actually perform in these specific jobs (2) Tests and the like need to actually be related to the particular job; this is what the EEOC had been saying all along in its compliance manuals c) If Duke were to make a new test that's more germane to the actual job but still creates an imbalance, they can show business necessity and job relatedness and maybe avoid liability i) This works similarly to a BFOQ, but is less stringent of a standard d) The statute, at § 703(a)(2): i) It's an unlawful employment practice "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." ii) Disparate impact liability is based on a highly purposivist reading of the statutory text, which doesn't really mention anything about this: with no DI liability, you could just take the back door to discriminate as much as you want iii) The idea of Title VII is to advance meritocracy, at least according to Burger: we should give the jobs to people who are actually good at it, not someone who can clear some other stupid barrier to entry e) The analysis as of Griggs: i) Prima Facie: Plaintiff has the burden to show that the defendant's policy has a disparate impact ii) BN/JR: Defendant has the opportunity to show that he policies are job related and consistent with business necessity iii) (the "alternative employment practice" stage of the framework wasn't added yet, but was soon after)

Basic rule: Meritor Savings Bank v. Vincent, US 1986

established elements of hostile work environment claim, distinguished between quid pro quo a) The very first sexual harassment Title VII claim to reach SCOTUS, that laid down the law for a lot of it; they took a while to step in because... i) Culture was changing; we didn't even have the term "sexual harassment" until it was coined in 1979. The women's movement in the 70s led to progress in Employment Discrimination law and policy b) Bank manager coerced employee into doing a lot of sexual stuff, up to and including sex, which the paradigmatic "man on woman, unwelcome advances" situation, albeit a lot more egregious than most cases. c) Set out four elements for a hostile work environment claim: i) Plaintiff must show that harassment is "severe or pervasive" (1) It must affect the compensation, terms, conditions or privileges of employment; if it isn't, Title VII doesn't reach the conduct (2) Must create an abusive work environment (3) Title VII is not a civility code; it has to be important ii) Conduct that gives rise to a hostile work environment (1) Quid pro quo is sufficient but not necessary iii) Harassment must have been because of sex iv) Conduct must have been conduct for which the employer is responsible d) Weird evidentiary issues: Evidence of the same manager's harassment of others is inadmissible, but evidence of the employee's dress and "personal fantasies" is admissible i) Rule 412 is underdeveloped for harassment -- probative vs. prejudicial standard in evidence

McDonnell-Douglass Corp v. Green (1973)

established proof structure for D/T claims (also used in R claims) a) Green, civil rights activist, gets fired from McDonnell-Douglass Corp. and participates in a big protest, then doesn't get rehired when they have a big round of hiring. i) His retaliation claim didn't make it up on appeal because the stall-in wasn't a protected activity under § 704. If it had been a lawful protest, he likely would have had a good retaliation claim. b) Held: the tree-step McDonnell-Douglass framework is established in this form: i) Step 1: Prima facie case of racial discrimination: (1) π belongs to racial minority (2) π applied and was qualified for the job for which employer was seeking application (3) Despite his qualifications, he was rejected (4) After the rejection, the position remained open and the employer continued to seek applicants. ii) Step 2: Legitimate nondiscriminatory reason (1) This is not really a very hard burden iii) Step 3: The legitimate nondiscriminatory reason was pretextual. (1) This is where the real action is in most cases. c) Many of these factors won't apply in every case, so the factors will have to be applied somewhat differently in cases that involve hiring rather than firing, etc. d) Applied: i) Green has proved up the prima facie case ii) McDonnell-Douglass has met its burden by providing a valid LNR, namely that he participated in the illegal protest. iii) Green hasn't gotten a chance to show that the LNR was pretextual yet; remanded so he can make this showing. e) On remand, Green could win by showing... i) White employees who engage in illegal protests don't get fired or something like that ii) Proving an overall pattern of discriminatory behavior through use of statistics, etc. Check out Hypos on Page 9

Burlington Ind. v. Ellerth

establishes possible affirmative defense when no tangible employment action taken (1) Employee brought a claim against the supervisor of her supervisor, who was known to insinuate something bad would happen to her professionally if she didn't go along with his handsiness and general ****boi qualities (2) Held: Sets out the TEA and non-TEA supervisor liability rules. (a) If there is a tangible employment action (i.e. supervisor didn't use his power from employer), employer is strictly liable (b) If there is no TEA, employer is liable but can raise an affirmative defense with two elements. Employer must prove... (i) Employer took reasonable care to prevent and correct harassment. 1. This will usually mean that the employer has taken reasonable care to implement a reasonable sexual harassment policy with suitable complaint procedure. (ii) Employee unreasonably failed to take advantage of opportunities to prevent/correct. 1. Employer has to actually enforce the policy when employee uses the complaint procedure (3) The idea: Give employers a strong incentive to implement and enforce their sexual harassment policies and for employees to take advantage of those policies when there's a problem (a) This will hopefully prevent these problems from happening as much as possible and keep them out of court when they do (b) Why don't we have a rule like this for disparate treatment? (i) Simplest answer is that for disparate treatment liability, there has to be a TEA (ii) As far as the court is concerned, when a supervisor takes a TEA against an employee, it's effectively the employer who's acting (agency law) (4) What is a tangible employment action? A "significant change in employment status, such as discharge, demotion, or undesirable reassignment." (a) In Ellerth, the main stuff at issue was an implicit threat that wasn't actually followed through on. This doesn't count because nothing about her employment status actually changed because of this. (b) Quid pro quo and HWE are basically folded into one kind of analysis because the threatened quid pro quo is now included under the "no TEA/Hostile Work Environment" path and a quid pro quo threat that's actually acted on is a TEA claim. (ii) Courts are not very sympathetic to the argument, "I didn't complain sooner because I feared retaliation." This is interesting because retaliation is your best bet for a Title VII win so plaintiffs have an incentive to be aggressive 1. there would need to be clear proof that retaliation was imminent (iii)2nd Circuit: Every employee fears retaliation, but the law is designed to encourage employees to speak up and let the employer have a chance to fix it (b) What does it mean for an employer to respond reasonably?

Alternative employment practices:

f) In practice, this factor likely won't be relevant. Plaintiffs have literally never won a significant case on this factor b/c the exact same evidence will mean they win on BN/JR in almost any case g) The doctrine: π must show that an alternative employment practice is i) Available and ii) Δ failed to adopt it

Using Discovery to ascertain π's immigration status

i) Back pay (1) If π is not authorized to work, Δ can then say the remedy is limited because they wouldn't have re-hired π or that they would have had reason to fire π ii) Intimidation (1) Employers can use this tactic to intimidate/threaten immigrant πs, which could result in πs dropping their cases (2) Big problem in national origin litigation

EEOC prescribes three ways to validate a Business Necessity test:

i) Content validity: content of the test is representative of the content of the job (1) E.g. you have to do something on the test you'd have to do on the job or you're tested on info you have to use to do the job ii) Criterion validity: performance on the test is criterion that predicts performance in the job (1) Arguably the most powerful form of proof if you can get it (2) Best for Δ if they can show a test with few inferential steps between the criterion and the job (3) In Lanning, Δ argued and won criterion validity—running predicts performance on the job. π could have argued Δ used construct validity and the test simply measured running ability, not job iii) Construct validity: Test performance correlates with some form of a "construct" for what you need to do the job (1) This requires an extra inferential step (2) E.g. Dothard v. Rawlinson: Strength is the construct for what you need to be a prison guard and Alabama argued that height and weight were correlated (3) Arguably the weakest; you'd rather rely on the other two if possible iv) All three are valid ways to validate a test, and all three could be implicated in the same case

Vicki Schultz - "Telling Stories about Women and Work"

i) Courts that speak of women's lack of interest or qualifications tend to bundle hosts of qualities under the labels "masculine" and feminine" so that it is natural to speak of certain jobs as appealing to men but not to women. ii) Contra both liberal and conservative judges, women's work preferences do in fact differ, but these preferences are produced by structures for which employers are responsible. Employer's create job categories that carry gender tags and harassment of women who enter male categories in spite of their reputations occurs. The result is that prudent women, being rational actors, consciously or subconsciously avoid these categories and manifest preferences against them. (1) Gender differences are neither innate nor necessarily formed in pre-work life (contra conservatives). Equally true, gender differences do in fact exist (contra liberals) even if they are not innate. (a) Sounds like Schultz is advocating for the disruption model of anti-discrim

Stereotypes

i) Descriptive (1) Statistical/Generalized (a) About groups in the abstract (i) [Members of a prohibited class] behave a certain way (ii) Example: "Women are not good drivers." (2) Interpretive (a) Viewing the behavior of [members of a prohibited class] differently as a result of that membership. (b) Example: "She is aggressive and does not work well with others." (But if she were a man, that same behavior would be interpreted as being a "go-getter.") ii) Prescriptive (1) [Members of a prohibited class] should behave a certain way. (2) Example: "She should wear makeup and act 'ladylike.'" iii) In this case we had all 3 (1) Lots of Prescriptive-- "proper behavior" (2) Generalized-- Women shouldn't be partner (3) Interpretive-- Telling her she should be more feminine What role do stereotypes play in ADL? i) If an employer bases a decision on whether a person fits or doesn't fit a stereotype, they have acted on the basis of [protected class trait]

"Trait discrimination" : has caused lots of problems for courts

i) Discrimination on the basis of some trait that is connected in some way with a protected category but isn't coextensive with it ii) How close is neutral trait (hair, veteran status, high school diploma) to protected trait (race, sex) (1) Neutral trait is inseparable from protected trait → DT liability (a) Pregnancy under the PDA is inseparable from sex (b) Must be tightly linked (c) If the link is weaker, perhaps disparate impact would be a better option (2) Neutral trait is proxy for protected trait, chosen intentionally → DT liability (a) Feeney hypo: if veterans preference was in order to ensure that men get the best jobs (b) English-only or no accent policies can be proxy for national origin D (3) Neutral trait would not have been chosen, but for impact on protected trait → DT liability (a) Reverse the groups test (b) Feeney: policy wouldn't have been enacted if it would impact men's opportunity (4) A is correlated with B, statistically → DI liability (a) Height correlated with sex (b) Language correlated with national origin (c) Diplomas correlated with race on the facts in Griggs (5) The discrimination is only on the basis of the intersection of a neutral trait and a protected trait → plus style DT (a) An employer discriminates against women with school-age children, but not other women or men

The types of discrimination Check out page 17 for chart of Individual DT and Systemic DT

i) Disparate treatment (1) Individual (a) Proven by direct evidence (b) Proven by circumstantial evidence (2) Systemic (a) Overt (explicit policy), limited BFOQ defense (b) Covert (Pattern or practice) ii) Disparate impact b) Discrimination occur somewhere in the causal chain

LNR in DT case → DI Liability?

i) In many cases, an employer trying to put forward an LNR in a systemic disparate treatment case actually raises the issue of disparate impact liability and is pretty much what it takes to make the prima facie case for disparate impact case ii) Not every LNR would trigger this problem however. An LNR like, "women aren't interested in this kind of work" could theoretically work as an LNR but wouldn't work as a particular employment practice iii) Only if the neutral factor that led to the difference in the disparate treatment analysis is an employment practice itself is this issue raised. iv) The strongest defense to DT is to point to a nondiscriminatory purpose (1) Δ can then go on to the deferential BN/JR standard instead of BFOQ (2) BN/JR easier for defendant's to get than BFOQ

Selmi- "Was The Disparate Impact Theory a Mistake?"

i) Instead of DI, we should expand meaning of intent in DT ii) Employment discrimination changes as society changes (1) See: harassment. People brought suit in the 70s and failed. Courts would hold that π wasn't fired because she was a woman, but because of her relationship with her boss iii) Disparate impact is kind of a waste of time because it's so much less likely to win at trial and isn't litigated nearly as often (1) EEOC would say that just because this isn't resulting in a lot of trials and wins doesn't mean it isn't working; the main battleground here is settlements because these mostly settle iv) The legal-realist response: Courts would have limited disparate treatment anyway. They've usually taken a limited view of "intentional discrimination." Some things look like discrimination to courts and some things don't and that changes over time.

Theories of ADL models in Griggs

i) Narrow impartiality: (1) This satisfies narrow impartiality b/c tests were given to everyone and employer offered to fund education for employees ii) Broad impartiality: (1) To the extent DIt is really about smoking out bad intentional discrimination, this seems like it's working; the choice of rule seems to have been done on purpose. (2) Black employees did not have equal access to education, so the requirements were significant iii) Perpetuation of past discrimination: (1) Court is more concerned about this than the possibility that intentional discrimination could be going on subconsciously (2) There's a different treatment of the incumbents—prior beneficiaries of past discriminatory practices in hiring/promotions don't have to take the test (3) Even if employee doesn't mean to discriminate, in effect, it's a situation where due to past discrimination, black employees are less able to meet these qualifications. The reason for the disparity isn't what the company did (actually due to crappy segregated schools) but nor can the company freeze the past discrimination in place. iv) Diversity model: (1) "Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox... It has... provided that the vessel in which the milk is proffered be one all seekers can use." Must provide opportunities in a "shape" that different job seekers can use. v) Disruption model: (1) Relevant to how high school diplomas are prerequisites. vi) Anti-bottleneck model: (1) These kinds of tests proliferate and could in time have a systemic effect of screening out a lot of people from much of any participation in good jobs. (2) Here, the tests were thrown out for everyone. Opening the bottleneck helps everyone, including white applicants, as opposed to just the people negatively affected

Harassment for which the employer is responsible

i) Note: Plaintiff can only bring a suit against an employer, not an individual harasser. Therefore, the harasser's conduct must be able to be imputed to the company itself ii) The rule: (1) If tangible employment action occurred, employer is strictly liable (a) Tangible employment actions: significant change in employment status (b) Includes hiring, firing, failure to promote, reassignment with significant change in responsibilities, change in benefits (c) Unfulfilled threats do not count (2) If no tangible employment action... (a) High-ranking executive who is the "alter ego" of the company? Strict liability (b) Supervisor? (i) Supervisor must be shown to be aided in the tort by their position with the employer (ii) Faragher/Ellerth supervisory liability: Employer is strictly liable, but has an affirmative defense if they can prove... 1. They took reasonable care to prevent/correct the harassment, and... 2. Employee unreasonably failed to take advantage of opportunities to prevent/correct. (c) Coworker? Negligence standard for liability. Employee must prove that the employer... 1. Knew or should have known of the harassment, and... 2. Failed to take adequate corrective action (ii) Applies when the harassing employee lacks the power to take tangible employment actions. Also applies in cases of customer harassment (iii)Burden rests with π

Hibbs

i) Rehnquist explained that we need the FMLA and it is congruent and proportional to the 14 th amendment to address stereotypes about women that affects women's ability to remain in the workforce ii) FMLA's family care-giving provision is a valid exercise of congress' 14.5 power, so gov't employees have the right to take FMLA leave

Language cases generally

i) The link between a language (e.g. Spanish) and national origin can be tight, just like pregnancy and sex. From this view, it would be DT, but not many courts follow this ii) Maldonado shows how harassment could be actionable (1) Usually, πs lose. When they win, it's like Maldonado where the rule fits into a larger pattern of harassment. When challenging the rule itself, πs don't prevail much

Lanning II (2002)

i) Upholds DC, says Septa has shown enough evidence that test measures minimum qualifications for success of job (1) Those who pass test have 70% success on job, those who don't have 20% success ii) Dissent says standard arbitrary, not related to BN

Proving pretext/rebutting the LNR [most important/contested part of D/T claim]

i) What evidence is necessary to prove pretext? (1) Statistics are often relevant (2) Were employees who were white, etc. treated the same? (3) How did the defendant treat the plaintiff? (4) There are many possibilities ii) What happens when the plaintiff rebuts the LNR? There are several possibilities... (1) Plaintiff wins as a matter of law (2) Δ wins if π has insufficient evidence of discrimination (3) The case goes to the jury/factfinder iii) This has been a huge issue often fought about

Cazorla v. Koch Foods of Mississippi 2016

i) discovery dispute case based on U-visa application (1) sexaul harrassment by employer led employee to file for U-Visa (a) Employer says this is a scheme and wants access to discovery documents for U-visa (b) Employee does not want the discovery information shared because of sensitive immigration status information contained (2) Pertinent part: Court says typically, employer gets this discovery on balance, but the "chilling effect" would harm the integrity of the u-visa program, creating a problem for future applicants, so this needs to be changed as a matter of public policy

Staub v. Proctor Hospital (2011)

if supervisor (and possibly coworker) performed act motivated by D against protected class members, and animus intended to cause AEA, and that action is proximate cause of AEA, employer liable under USERRA a) π was a reservist and often had to take leave from work for military duties. His supervisors were upset and treated him unfairly. His immediate supervisor, and then her supervisor, behaved in discriminatory ways, but had no authority to fire. Their comments and recommendations led to management making the decision to fire P. πsued under USERRA, similar to Title VII, but protects military members, b) This case can be approached in two ways: i) π against the Hospital and take the hospital's conduct as a whole (1) Not how Scalia approached it ii) Find someone in the chain who was (1) Hostile to vets/reservists; and (2) Had an intent to cause firing [discriminatory motive + intent to cause result] (a) If supervisor performed act motivated by discrimination against protected class members, and animus intended to cause adverse employment action, and that action is proximate cause of adverse employment action, employer liable under USERRA (i) Even if statements from coworker, employer still liable for blind reliance c) The court placed a great importance on the lower supervisor's intent. They pulled in tort law selectively i) There was no evidence about the lower supervisors' intent, so what evidence can πoffer? (1) Point to acts that have reasonable foreseeability (tort law) (a) FN.3: "actor desires to cause consequences of his act, or that he believes that the consequences are certain to result from it" (b) But foreseeability not the standard here; you have to actually intend the consequences (the firing), not just be reasonably certain that the firing would occur ii) The court's doctrine is set up to look for specific people. when discriminatory acts can't be attributed to a specific person, it makes the case more difficult. d) How important is the fact that the culprits were supervisors? i) It's not settled in case law what would happen if co-workers were behind the discriminatory acts ii) A decision maker has more control over supervisors (e.g. management training, policies, oversight) e) Compared to Slack: i) In Slack, the court looked at ratification, agency principles ii) In Staub, the court requires a finding of intent f) Defense i) If Hospital can prove that the decision to terminate was separate from the supervisors' biased acts, the hospital can escape liability (1) Similar to same-decision test

EEOC v. Catastrophe Management

if the trait is immutable (unchanging), better case for discrimination (D/T); here, not so b/c hair is mutable a) π's job offer was rescinded once the hiring person noticed that π had dreadlocks and π refused to cut them (1) EEOC argues this hairstyle and race are connected, so refusal based on dreadlocks was a proxy for race. b) What is professional? c) EEOC ran into a problem because they're making a DT claim, but they seem to argue using DI doctrine (1) i.e. impact on black applicants, disproportionate effect d) DI view of the case (1) Enforcement of the policy leads to groups of black applicants to not be considered for employment e) The character of the link is highly disputed—how tightly linked are dreadlocks for race? (1) When is it an immutable trait and when is it a choice? (2) Hypo: would banning afros be a Title VII violation? (a) Current law would say yes, based on physiology and culture (b) The court in Catastrophe would look at artifice and choice (i) Would black women have to do much to comply? Straighten, chemically relax (3) Similar to accent and national origin: link, but not a perfect link f) Hypo: (1) Employer refused to hire black woman with dyed blonde hair because it violated policy against extreme hair color; white women with dyed blonde hair are ok (a) Court found no discrimination (b) Definition of 'extreme' is contentious and leads to discrimination (c) Courts are wary about saying traits/characteristics are linked to race. Hair is less of a worry, in that courts are less likely to find the link

Personal Administrator v. Feeney (1979)

in con law, only DT claims; preference for veterans ≠ D preference for men; classification/requirement chosen in spite of effect on women, not because of a) MA has a veteran's preference system for its civil servants where any qualified veteran automatically beats all non-veterans, resulting in a civil service that is 95% male. b) Does this violate the equal protection clause of the 14th Amendment? i) Washington v. Davis: Must show discriminatory intent to violate due process; no disparate impact claims under the constitution. c) Held: No liability because it was not done with discriminatory intent. i) When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionately adverse, a twofold inquiry is thus appropriate (1) Whether the statutory classification is neutral in the sense that it is not gender-based (2) If the classification itself, covert or overt, is not based upon gender, whether the adverse effect reflects invidious gender-based discrimination ii) The intent here was to help veterans, not to hurt women (although usually you're charged with intending the reasonably foreseeable consequences of your actions, but that doesn't apply here, where they say it was "in spite of" and not "because of" the effect it'd have on women). iii) As far as con law claims go, all we really have is the "because of," not "in spite of" standard. d) Marshall's dissent: i) When the foreseeable disparate impact of a policy is this disproportionate, the state should have the burden to show that the decision wasn't made because of sex ii) We should have been applying intermediate scrutiny e) Brown's dissent: i) There was no discriminatory intent; there were a bunch of exemptions from the veteran thing for traditionally female jobs; it's really a way to funnel women into 'appropriate' jobs

Lerohl v. Friends of MN Sinfonia

in determining "employee" definition, control is just one factor in the analysis, not dispositive. a) π is a musician; had to take time off due to illness then Δ did not give π much work. π makes Title VII and ADA claims. Δ responds by saying π was just an independent contractor, not an employee b) The statutory definition of 'employee' is not helpful c) EEOC and π claim that 'control of employee' is a critical factor in determining whether to consider someone an employee. i) Court disagreed, saying it's just one of many factors and no factor is determinative on its own (1) At the same time, the court harps on whether the musicians had a freedom of choice of who to work for and when to work d) Court ruled that π was not an employee, so Title VII and ADA claims were precluded e) What about UPS/FedEx drivers? i) Very different from hiring a plumber for single, specific jobs ii) The drivers are integral parts of the enterprise iii) There's uniforms, company vehicles, little discretion in work iv) Fishkin: I'd consider them employees, but courts are split f) Bottom line: independent contractors don't find much protection in Title VII, ADA, and general ADL i) Similarly, difficult for potential Ps who work in franchises

Gross v. FBL Financial Services (2009)

mixed-motive framework doesn't apply to ADEA claims a) Issue: Does the Title VII mixed motive burden shifting framework apply in ADEA claims? b) Held: No! i) Congress did not add the new language like that of the 1991 CR act to the ADEA; Congress could have amended ADEA when amended Title VII but it didn't ii) ADEA provides, "[i]t shall be unlawful for an employer... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age" (emphasis added). iii) Thus, a plaintiff must prove by preponderance of the evidence (which may be direct or circumstantial) that age was the "but-for" cause of the challenged employer decision. c) Cynical view: the dissenters in Price Waterhouse now have five votes so they can decline to extend a rule they never liked even if it doesn't really make sense. d) Stevens' dissent: Why would "because of" mean two dif erent things in the ADEA and in Title VII? i) Congress already said no to "but-for" approach w/ CRA 1991 ii) Said Slack and Reeves weren't mixed motive cases, so OK to only use McDonnell-Douglass framework iii) What about Smith? There language added to Title VII also applied to ADEA, why different outcome here e) Breyer's dissent: You can't really show vanilla "but-for" causation in one of these cases because what you have to prove is what's going on in a defendant's head. It's always circumstantial and hard to prove which is why we have this whole burden-shifting thing; the employer needs to show why they were in the right because they're the only one who can.

Connecticut v. Teal (1982)

no bottom line defense to D, Discriminating against individuals violated Title VII (1) Connecticut Welfare Department uses a civil service exam where 68% of whites pass compared to only 55% of blacks, but then they use affirmative action policies as part of the second stage in the process that result in more blacks than whites being promoted (a) Here, the πs were already doing the job then a test determined that they could not do the job. They were qualified, but were screened out by the test (b) If it weren't for the test, the affirmative action program would not be necessary in the first place (2) Held: This satisfies the first step of the DI analysis; the "bottom line defense" does not prevent plaintiffs from proving the prima facie case and doesn't provide the employer with an affirmative defense (a) Title VII is about equal opportunities for individuals, not groups. It doesn't help these plaintiffs who get screened out by the test that their overall group does okay (b) Allowing stuff like this is just racial balancing, not providing equal opportunity; they need to just use a test that measures job performance (c) Also, holding otherwise would allow discrimination within subgroups (hire women but only women with no children, etc.) (3) This is the corollary to Ward's Cove, which basically said that the bottom line doesn't create liability, so therefore nor should it prevent liability

Clark County Sch. Dist. v. Breeden, US 2001;

opposition claims require GF belief that Title VII was violated, seems like it requires some familiarity with Title VII (H must be severe or pervasive, plaintiff's not); participation claims, if based solely on temporal relationship between participation, adverse act needs to be very soon after employer learns of employee's participation a) Female employee complains after an applicant for a job discloses an off-color remark he had made and two male coworkers have a laugh about it b) Her two claims: (1) She was punished for informally complaining to her two supervisors (a) This is an opposition claim and not a participation claim because there has been no Title VII charge or anything (2) She says she was punished for filing charges with NV Civil Rights Comm'n because she got transferred right after c) Opposition claim fails: (1) This was one little incident; nobody could reasonably believe this one passing comment violated Title VII (a) To be a hostile work environment, it has to be severe or pervasive and no reasonable person could have thought it was in this case because it was one-off comment (b) Court brings in objective, reasonable person standard to judge good-faith belief (i) Fisher doesn't like the use of good-faith belief because it indicates a subjective standard, but the standard is supposed to be objective (2) To give rise to retaliation claim, the bad conduct doesn't have to be an actual violation, but it sort of needs to be in some kind of zone of plausibility where a reasonable person could think it was (a) Plaintiffs often lose their underlying Title VII discrimination claim but win on retaliation for this reason. d) Participation claim fails: (1) The evidence showed that they were already discussing/planning to transfer her before they even knew about the lawsuit. This claim fails on the causation prong of the prima facie case (2) This is a bit fishy, but if that's what really happened it's the right outcome e) π relied on the temporal link between participation and the adverse action (1) When that is the only thing π relies on, the temporal link must be very strong

Back v. Hastings on Hudson

no comparators needed to show that an employment decision based on the stereotype that young mothers are less devoted to work is a form of gender-based discrimination that violates the Fourteenth Amendment. a) π is a woman who was denied tenure because she had a child and the administrators assume she'll want to leave her job to be a mom eventually i) (like Δ in PwC: prescriptive stereotyping, women should stay home and be mothers) b) This is interesting because it's a DT claim but π has a problem: almost all employees are women and have children. How can she show DT? i) Δ: Discriminated because of her child, not because of her sex → sex-plus case ii) There are no comparators for π because she was a counselor at a school where there weren't many (if any) men employed. iii) π's evidence: comments from supervisor about π's ability to do the job while also being a mother hinted at discrimination. Stereotypes about her status as a mother and full-time worker resulted in her loss of tenure (1) Before π became a mother, she got glowing reviews. Becoming a mother shifted the tone of her evaluations (a) While there are no comparators, π had compelling evidence. The shift in the evaluations was probative c) Holding: π was discriminated against; no comparators needed due to the link between the actions and stereotypes about mothers d) No evidence of discrimination by school board: i) Superintendent relied on discriminatory statements, but he also did a reasonable investigation → not blind reliance issue like in Staub

Oncale v. Sundowner Offshore Services, Inc., US 1998

no sexual attraction/interest required for sex-based harassment i) Oncale is a roustabout on an offshore oil rig who was subjected to harassing conduct by other male coworkers ii) Issue: Does it matter whether these guys were gay or not? (1) Case law before Oncale said these cases would only succeed if the guys were gay iii) Held: hostile work environment irrespective of whether the victim or perpetrators were gay. Severity of harassment is judged from the perspective of the person in π's position considering all the circumstances (1) Scalia: This was obviously harassment because of sex, regardless of whatever the precise motivation was; common sense and context should govern (2) Scalia seems to suggest that the "sex is but-for cause" standard should govern, but doesn't make it too clear (3) In this case, it was clear that sexualized conduct occurred iv) Motivations behind harassment didn't seem to matter much to the Court

Jespersen v. Harrah's;

not discrimination b/c policy falls equally on men and women; also Title VII not requiring anything more than society's standards of what a woman looks like at her personal best i) Harrah's casinos new dress code policy: All women must wear makeup and everyone has new uniforms, etc. ii) Held: No unlawful discrimination because of sex (1) This isn't meant to make women conform to stereotypes or animus against women (2) It's equally burdensome on men and women; the code applies to everyone. This probably isn't true, but Jesperson's trial counsel didn't anticipate that this would be an issue, so it wasn't developed (3) Real reason: don't want to risk interfering with employers' mandating personal grooming policies or professional dress. iii) Gender performance (1) While "personal best" was an accepted LNR, Court didn't consider that the employer's "personal best" standard encapsulated their conception of how a woman should look and act (2) Uniforms wouldn't be a problem if there weren't gender expectation requirements (3) These policies conform to widespread societal expectations/stereotypes, so Title VII may not have much power. The law can only go so far when pressing up against social norms

Price Waterhouse v. Hopkins (1989)

plaintiff must prove that discrimination was "substantial motivating factor" in adverse employment decision under mixed-motive analysis; also, stereotypes can form basis of sex discrimination, when someone performs protected identity differently than expected and are punished for it; same decision test limits liability a) PW had 99% male partners, and Ann Hopkins wanted to be one. She doesn't make partner after written evaluations said she was unduly aggressive/harsh/macho, needed to go to "charm school," cussed. They advised her to be more feminine if she wanted to be partner. i) She tried to girl it up for a year and that didn't work either; didn't even get nominated. Then she quit, claimed constructive discharge, and sued. b) District court: π not promoted for both legitimate and illegitimate reasons. She didn't get promoted both because of her gender/stereotyping and because of legit interpersonal problems with her coworkers. c) Held: Stereotypes are relevant to establish discrimination. i) "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of the job if they behave aggressively and out of a job if they don't." d) Held: proof structure in mixed motive cases i) Title VII does not establish a "but-for" causation standard. ii) π employee must first prove by a preponderance of evidence that membership in a protected class was a motivating factor in the adverse decision (1) Burden of persuasion, not merely production. (2) Concurrences say "substantial motivating factor." e) Same-decision test: would the employer have made the same decision absent discrimination? i) Defendant can defeat liability if it can show that it would have made the same decision even if it hadn't taken the impermissible factor into account. (1) The burden shifts: the employer, Δ must prove by preponderance of evidence (2) Δ must show grounds at the time decision was made, not a reason found after the fact (3) However, proving the same decision would have been justified isn't the same as proving it would have been made: Not a defense if a good reason to fire that person comes out in discovery but employer didn't know/care at the time. f) O'Connor's Concurrence: πmust show direct evidence that an illegitimate criterion was a substantial motivating factor in the decision, makes majority here (later overturned by CRA 1991)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

primary duties of employee look ministerial, therefore T7 doesn't apply a) π is a "called teacher" who teaches math and other secular subjects a lot of the time (1) She has to miss some work due to narcolepsy and now the school doesn't want her back. When she threatens to bring an ADA claim, they fire her (2) EEOC's claim: She's being discriminated against b/c of disability and was retaliated against for threatening to sue b) School's response: Δ is protected by the ministerial exception c) Held: Ministerial exception applies; school is not subject to Title VII (1) She's a minister because: (a) Ministerial title (b) Use of ministerial title for tax cuts (c) She carried out important religious functions (i) She had a lot of ministerial training and basically both her and the employer considered her a minister (2) A church can fire ministerial employees for whatever reason; even if it did fire her for being disabled or for wanting to file a lawsuit, both of which would usually be illegal, it's okay in this case because of the ministerial exception (a) This seems weird, but the 1 st Amendment trumps Title VII d) Alito/Kagan concurrence: (1) We shouldn't focus on the formal stuff when we decide who's a minister or not. Not all religions have all the formal trappings that we saw in this case and some religions might use a broader group of people to fulfill the minister type of function (some churches consider each member to be a minister) (2) Can we keep the state out of the question of deciding who is a minister? The court would rather not decide but it's really hard to avoid some amount of classification (a) The Court is at least defining the boundaries of who is considered a minister e) This was a very controversial case at the sixth circuit level, but it's decided 9-0 and there isn't even much difference between the concurrences. (1) The way the sixth circuit tells it, it's a lot less clear that she can really be characterized as a minister. It's important how the facts are framed.

Local 28 Sheet Metal Workers Int'l Ass'n v. EEOC (1986); remedial affirmative action

race-conscious relief ok when correcting persistent/egregious discrimination or when fighting lingering effects of past pervasive discrimination a) Employer lost a Title VII lawsuit and got enjoined to stop discriminating. Court orders them to adopt an AA plan to hire minorities: a) By 1987, they need 29.23% minorities in the overall union membership, which is the same as in the labor pool (1) This is a big ask given that we aren't just talking about new recruits. But if limited to hiring, then they could just not hire anyone b) Fund set up for recruiting and training efforts on the union's dime b) Held: Title VII allows courts to order affirmative race-conscious relief as a remedy for past discrimination. a) When it is allowed? Two situations: (1) Persistent or egregious discrimination (2) When necessary to dissipate the lingering effects of past pervasive discrimination b) Why is it allowed? Why not just hold them in civil contempt? (1) Contempt clearly wasn't affecting this union considering the discrimination persisted for decades (2) Goals of Title VII go beyond just punishing violators or making them stop violating Title VII. Sometimes an injunction won't be enough (3) Sometimes, the problems linger on without the employer actually violating Title VII; if it's all based on nepotism, word of mouth, etc. then minorities still won't make headway even if the employer doesn't actively discriminate any more (a) Basically, we need some non-white members to participate in non formal mechanisms (i.e. nepotism). (b) There's a lingering reputation that has to get affirmatively rebutted. We have to address futility problems (Joe's Stone Crab and Teamsters) c) Court notes that the people the remedies help don't necessarily have to be victims of the company's discrimination themselves. (1) It's not just about retroactively making victims whole but prospectively dismantling the mechanisms of discrimination and preventing it in the future. c) Dissent: These goals/timetables are basically a racial quota d) Majority responds that they aren't a quota, they're a benchmark to measure whether the employer is actually trying to comply with our injunction a) Temporary: The difference is that it's not a command to maintain a certain distribution, more a goal they have to meet and then they're done b) Flexible: It was only temporary and they were willing to revise goals when the union couldn't hire enough people to meet it, etc. c) This isn't unnecessarily trammeling on the interests of incumbent white employees; it doesn't make anyone get fired, doesn't totally screen out whites, etc.

TWA v. Hardison

reasonable accommodation required of employers, but undue hardship standard very easy to meet--concern for other employees, also concern for establishing a religion a) π wants Saturdays off for Sabbath b) Held: No liability. To require an employer to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship c) Main reason: This would mean special treatment at the cost of other employees; if he doesn't work on Saturday ever, everyone else has to do it more often d) The interesting thing about this: Protection of establishment clause means that employer can't be require to go too far by the statute because it could verge on establishment e) The rule now: Employee has to be given the option to try and trade shifts, etc. so that it can work, but employer can't just not make one person work Saturdays (1) BUT employer doesn't have to make sure that the employee never has to work on a Saturday

Thompson v. North American Stainless, LP, US 2011

retaliation against lady b/c action taken against her man (close enough in relationship) would have deterred her from making a complaint; her man has standing to sue as well under "zone of interests test" a) Thompson's fiancée and coworker Regolado tells him she got sexually harassed and Regolado files a sex discrimination charge with the EEOC. Thompson gets fired! (1) Did they retaliate against Regolado? (a) It seems that the person who's really fulfilled the terms of the statute is Regolado because she's the one who complained to the EEOC (b) The problem is that she wasn't the one who got something done to her, it was her fiancée (2) Held: It was retaliation against Regolado and Thompson (a) It's retaliation to take any action that "might well have dissuade d a reasonable worker form making or supporting a charge of discrimination." This clearly counts (i) We go beyond looking at the terms/conditions/benefits of employment (b) How far does this go? The court declines to set a precise rule. Firing your family member is enough, minor sanction against friendly coworker clearly isn't, but beyond this, we're going to develop the line over time through the common law process (3) Who has standing to sue? (a) Both have standing under new test adopted from the APA, the "zone of interest" test (b) Someone might not have a claim for the underlying violation but he is still within the zone of interests the statute was meant to protect (c) What's weird is that she would have issues: she still has a job

Ward's Cove Packing Co. v. Antonio (1989)

says plaintiff must indicate a particular practice that causes disparate impact; defendant only has burden of production on BN, plaintiff always has burden of persuasion a) Salmon packing company has two tracks for workers: i) Cannery workers are mostly Filipino/First Nations people who live in Alaska ii) Non-cannery workers are mostly whites and from Seattle b) Held: No disparate impact liability. i) Plaintiffs could not show a disparate impact because they couldn't point to a specific employment practice that caused this result ii) Also no "bottom line" discrimination→ plaintiff must point to a particular practice that causes disparate impact c) Ward's Cove era disparate impact burden shifting looks a lot like disparate treatment liability: i) Plaintiff must point to a particular employment practice that caused a disparate impact. (1) Unless it's a "clump" of related practices that can't be separated (e.g. component scores of written test and interview are added together, but neither individual score is recorded) (2) No bottom line liability in a DI case; just the fact of a disparity is no longer enough to lead to liability (3) Unlike in Teamsters where you can make a prima facie case just with just statistical element. ii) Employer must prove that their practice "serves, in a significant way, the legitimate goals of the employer." (1) Burden of production, not persuasion iii) Plaintiff can rebut this by showing that an alternative employment practice could have been used to achieve the same goal (1) Basically, showing that the proffered reason is pretext d) Why did Δ win? i) π did not show that cannery workers applied or were qualified for the non cannery positions ii) SCOTUS created a much more Δ friendly DI doctrine that imitated DT (1) π could show a disparate impact, but if π could not point out a specific discriminatory practice or if π cannot show a less discriminatory alternative, then Δ wins (2) Ignored DI's function of "smoking out" discrimination

Harris v. Forklift Systems, Inc.

sets objective standard (reas person) and subjective standard (this plaintiff) for evaluating severity/pervasiveness of conduct Court ruling that established "reasonable person" standard in a sexual harassment case. i) President of the company was known to make derogatory comments about women being dumb, gross sexual innuendos, etc. ii) Issue: were these comments severe or pervasive enough to satisfy the first element? iii) D. Ct.: Δ's conduct was not so severe as to be expected to seriously affect π's psychological well-being (1) Rejected by SCOTUS. π does not need to show actual psychological harm iv) Held: There is a dual subjective/objective test for severity and pervasiveness: (1) Was it subjectively a hostile work environment to the π? (2) Would it be an objectively hostile work environment to a reasonable person v) Objective prong: Courts have split on whether it means "a reasonable woman," "a reasonable person with the same fundamental characteristics as the plaintiff," etc. (1) Ellison: Analyze harassment from victim's perspective (2) Fuller v. Oakland (9 th Cir.): perspective of a reasonable person with the same fundamental characteristics vi) It doesn't necessarily have to have been directed at plaintiff, but it has to be objectively/subjectively severe/pervasive vii) Court doesn't get into whether the bad but non-sexual treatment she received (not getting a promotion or company car when her male counterparts did) was harassment

Watson v. Fort Worth Bank & Trust (1988)

subjective employment practices can give rise to disparate impact liability (1) Black employee at a bank is repeatedly passed over for promotions under a completely subjective/discretionary hiring and promotion policy (2) Held (in a very fragmented 8-justice opinion): Subjective or discretionary employment practices may be analyzed under the disparate impact theory of liability in appropriate cases (a) Employers are supposed to be using rational models to select their employees (b) Subjective discretion can result in disparate impact when a racist is put in charge of making these decisions or when unconscious bias is not checked (c) We don't' want to let employers turn their process into a black box to dodge liability (3) Significant overlap between this and disparate treatment: (a) Conceptually, DI liability is for setting up a system where people could discriminate unchecked and DT liability is for the results of that system (b) In many cases, π will just argue both theories, challenging both the decisions made (DT) and the impact of the policy (DI)

Kolstad v. American Dental Association, US 1999

test for punitive damages against employer (NOT egregiousness, state of mind): malice/reckless indifference and actions that can be imputed to the employer a) π won in her sex D claim in trial court, but trial court wouldn't give punitive damages instruction b) Court of appeals affirmed c) SCOTUS held that the test for punitive damages was...NOT EGREGIOUSNESS (1) Malice or reckless indifference (a) Discrimination isn't always malicious/recklessly indifferent, but if it is, punitive damages are available unless second part doesn't apply (i) Malicious or indifferent as to π's rights (b) Employer must at least discriminate in the face of a perceived risk of liability (2) Vicarious liability: Actions that can be imputed to the employer (a) We want to incentivize employers to please drum it into their employees not to do this that or the other

Lanning v. Septa (Lanning I) (1999)

tests/standards w/ discriminatory impact must be shown to measure minimum qualifications necessary for successful performance of the job i) Southeastern Penn. Transit Authority runs the trains/transit police in Philly wanted to have fitter officers 💪 (1) Experts originally prescribed this test: (a) Run 1.5 miles in 12 minutes (b) Bench press a certain amount. (c) Other exercises: pull ups, etc. (2) During litigation, they changed it (a) Run 1.5 miles in 12 minutes, (b) Turnstile jump (c) Barrier surmount (climb a fence) (d) Drag a 170 lb dummy (e) Weapon test (3) If you pass, you do an interview and hiring decisions are based on the combo of the two (4) Earlier version: 12% of women and 60% of men pass, so women's pass rate is about 20% of men's. Clearly fails the 80% test ii) π challenged the running test (1) Because the test discriminated so much, πs questioned the importance of that ability to job performance (2) π's best evidence: current officers could not pass the test; officers were promoted even though they couldn't pass the test iii) SEPTA raises a business necessity/job relatedness defense. (1) SEPTA did a test where they did the running test on current officers and then had them do other tests that would show the physical capability to do well on the job. They found that 90% of the ones who could do the running passed the regular test but only 5%-20% of those who failed did (2) So there's arguably an unnecessary inferential step like in Dothard, but SEPTA could show that their cutoff is objectively correlated with something. iv) Held: To raise the BN/JR defense, discriminatory cutoff score must be shown to measure the minimum qualifications necessary for successful performance of the job in question. (1) "More is better" is not an acceptable justification. You can't say, "Well 8 minute miles are good enough, but if we can get 7 minute miles, so much the better" (2) The 5-20% to 90% is good enough to satisfy this test (3) There's also a volitional defense argument here: The level of 1.5 miles in 12 minutes is low enough that just about anyone, male or female, could do it if they trained (4) Plaintiffs said that SEPTA used the "Goldilocks" method: They originally were saying that 12 minute miles were good enough, but then wanted to go to even stricter than 8 minute miles, but realized it would have too much of a disparate impact, then split the difference (a) In a way, they already chose the less discriminatory impact compared to requiring a "good" 1.5 miles time. Maybe SEPTA wins in part because they're already doing what we want them to do v) Dissent: We should allow employers in the realm of public safety to hold employees to a higher standard because public safety is at stake (1) The test for BN/JR would be less strict vi) This case represents how the BN defense works today: (1) Common sense assertions are not enough; you need evidence (2) More is better does not work; you have to identify a specific threshold of being able to do the job (3) However, this doesn't mean that you don't have the freedom to hire the best candidates for the job. The problem is when you have too high cutoffs for certain metrics that might screen out people who might make up for that one deficiency and actually be the best candidates

occupational segregation

the separation of men and women into different kinds of jobs Top-Down: gaps in society (MvF, $$$, Types of jobs) Bottom-up: particular case and what's happening (Ex: emily/greg vs lakisha/jamal study)

Voluntary Affirmative Action: United Steelworkers of America v. Weber, 1979

this voluntary AA plan okay under Title VII, established test for voluntary AA plans a) The Steelworkers of Kaiser Aluminum (which had skilled craft workers who are 1.8% black in an area where the local labor force was 39% black) negotiated a CBA that included an affirmative action plan a) The new plan: Train 50% black, 50% white until skilled black workers until we get up to 39% of local labor force. b) π is a white guy who didn't get selected for the training despite his higher seniority b) Held: This AA plan is allowed under Title VII a) There is a "manifest imbalance in a traditionally-segregated job category" because just look at the numbers b) This plan doesn't unnecessarily trammel the interests of white employees (1) Maybe he didn't get hired, but he didn't get laid off to make room for a black employee either. Whites still get half the training slots, etc. (2) Seems like a balancing-test sort of standard c) This is in the larger spirit of Title VII even though its text seems to say, "race does not enter into hiring decisions." d) The purpose is to break down the old patterns of racial segregation, hierarchy. e) Holy Trinity Church: Not within the letter but within the spirit of the statute. f) Court doesn't lay down a standard for which plans are allowed or not allowed, but this one is on the right side. c) Dissent: Title VII means that you can't treat whites and blacks differently by its plain language, period. a) What could you do under their remedy? (1) Just treat applicants impartially (2) Change recruitment/advertisement to target more minority applicants (3) Be race conscious but don't' treat them differently on the basis of race; create a training program and do outreach through black churches, etc. so you reach the black population d) There's an important distinction between actions that are race conscious and treating people differently based on race for the dissenters

Los Angeles Dep't of Water & Power v. Manhart (1978)

under Title VII, can't discriminate against individuals in the name of treating the groups equally a) Male and female employees get the same pension benefits, but women have to pay more because they live longer on average. b) Held: This is unlawful discrimination under Title VII i) Even though it doesn't necessarily have any animus behind it, this is making a facial classification that's treating women differently than men as a class ii) Title VII makes it unlawful to "discriminate against any individual...because of such individual's [membership in the class]" (emphasis added). (1) Doesn't matter that you're treating the groups fairly-- not every woman will live longer than every man c) This isn't really just actuarial reality, they don't adjust pension withholdings for being a smoker, fat, generally unhealthy. i) Even if the statistical generalization was true (which it was; women live longer), that doesn't mean you can classify employees in a prohibited way. d) Equal Pay Act of 1963 i) Prohibits women being paid different amounts for the same work. ii) However, only applies when it's exactly the same work; if it's work of "comparable worth" (janitor vs. secretary) but isn't the same job, no claim. e) Dissent by Burger and Rehnquist i) On an aggregate level, women are not being harmed; they're getting back what they put in, just like men. f) Related hypos i) Rational Statistical Discrimination (1) There's different treatment, but it's backed up by statistics (2) Still discrimination; can't treat individuals differently because of membership in a group ii) Employer takes money out of each employee's paycheck to fund parental leave. Takes more money from female employees (1) Discrimination, same as Manhart iii) Employer has policy of not hiring pre-menopausal women because they're concerned about maternity leave (1) Discriminatory g) Is it fair to punish rational behavior? i) Becker: free market would be much more efficient ii) But ADL is there to push back against discriminatory practices, even rational ones

EEOC v. Sears (1988)

use of stats not enough, need anecdotes; introduction of "disinterested theory"--women not applying for better jobs b/c not interested women pushed into low commission jobs; court sided with Sears citing "differences" a) Sears has commissioned and non-commissioned salespeople, with commissioned people earning about twice as much and being overwhelmingly male i) Commissioned jobs are mostly "manly" things and vice versa, although not 100% ii) At least according to the court, the commissioned jobs are more competitive, have more pressure, more risk, less gabbing with your coworkers, more evening/weekend working, and more technical knowledge required iii) The pay structure has varied over time, but at the time, the commissioned people got an hourly rate and 3% commission b) Evidence presented: i) The EEOC, preparing for a Waterloo moment, marshaled the kind of statistical evidence a court would want: (1) Did a multivariate regression taking into account many types of factors like age, education, sales experience (including whether they had experience selling this particular type of thing) and even whether they wanted a commissioned or non-commissioned job (although this got removed from the app when the suit got filed) based on applicant data vs. workforce data ii) Dueling expert testimony about how women are and whether they'd even be interested in this kind of thing iii) Sears conducted surveys of female employees to show that they weren't qualified or interested. c) What's the reason for this disparity? i) Sears: Women aren't interested ii) Coercion model: Sears is keeping them out by signaling that they aren't wanted in commissioned jobs, allowing harassment to create bad environment for women, etc. (1) Probably not really the case here; women reported they preferred non commission work (2) Futility: choice affected by employer's disingenuous opportunities iii) Schultz model: People who are place dim situations where they don't have an opportunity to advance recalibrate their expectations and become less ambitious iv) Sears is selling certain types of items on commission because they know it'll be men selling them d) Held: No unlawful discrimination! The 7th Circuit is persuaded that women genuinely aren't interested in this type of job i) EEOC may have had good statistics, but they didn't marshal the kind of anecdotal evidence to make it a compelling story (1) Now, the EEOC will never even try to win on statistics alone, probably rightly so ii) Court seems to be receptive to the "no interest" argument, which has become increasingly the case over time. e) The disruption model is highly relevant here. ADL should disrupt societal/outside influences that limit employment opportunities i) People get socialized at work. Your workplace highly influences and shapes aspirations and beliefs about work ii) Employers can change this by changing the advancement ladder, work structures, and other aspects about the workplace to disrupt ongoing discrimination iii) Externalities (1) Gender roles and expectations (2) Role models: What do people in your environment believe about work? f) Comparing Sears to Hazelwood i) The jobs being compared in Sears are different, so the jobs can't be used as proxies for each other (1) Differences in selling heavy appliances and selling makeup in Sears; no difference in teaching in Hazelwood. ii) Stereotypes helped draw the line between the types of jobs (1) Harder to use racial stereotypes to explain differences in job interests than to use gender iii) In Hazelwood, anecdotal evidence backed up statistics. Statistics alone aren't enough (Sears)

Hazelwood School District v. United States (1977)

used only stats to show D/T, dispute on which stats to use; introduction 2-3 SDs rule -- likelihood that discrepancy due to chance? a) No black people in Hazelwood until 1954, but now they have to make sure the teachers reflect the community b) π sued alleging discrimination in recruiting & hiring c) What was the proper comparator (labor market)? i) District Court: compare black students to black teachers (1) District court erred, held for school district: School has 2.3% black students and 1.8% black teachers (2) District court also erred by using the number of teachers overall rather than the number of teachers hired since Title VII became effective ii) Court of Appeals: the relevant labor market is the St. Louis area—close to 15% (1) Court of appeals held for gov't: in the St. Louis county area, it's 5.7% black teachers, and in St. Louis city, it's 40% black teachers (2) Pointed out that the district court ignored anecdotal evidence and history of discrimination iii) SCOTUS: Remanded for the question of what exactly the relevant labor market is and to resolve the issue of liability iv) White's concurrence: Applicant data should usually be the standard b/c it captures the population they could actually hire (1) However, there's a futility problem v) Stevens' dissent: Gov't already proved up the case so it shouldn't even be remanded (1) Δ argued that using the city as a comparator was inappropriate because teachers may prefer to just live in cities. However, π proved that much of the labor force already commutes from the city into Hazelwood, so the city is clearly part of the relevant labor market vi) On remand, it settled, so this question was never resolved d) Comparison to relevant Labor Markets i) Factors that can influence what the RLM would be: (1) Past discrimination & segregation (2) Applicant flow data (a) But may be thrown off by futility problem (3) Externalities like location (commute) (4) Attitudes about the employer ii) J. White: Bring in applicant data e) External Statistics - Compare to labor market at-large i) Population statistics: compare to general makeup of population (1) Generally for jobs that anyone can pick up and learn (a) Teamsters, most people can drive ii) Relevant Workforce statistics: compare to relevant labor market (1) For jobs with specialized skills/experience (2) SCOTUS: for D.Ct. to determine, not appeals court iii) §703(j): employers not required to give preferential treatment to one protected trait over another due to the total number or percentage of persons with that protected trait in the community or in the available workforce (1) But it may be probative of discrimination (a) If there were no discrimination, the hiring statistics usually match up with the general population/workforce statistics (2) Congress added this to address fears about quotas f) Math and disparate treatment i) Standard deviation: How far from the expected result based on chance are we? The further away from the expected result, the less likely it is that random chance created the numbers. (1) 68% of the time, the result falls within +1 standard deviation (2) 95% of the time, the result falls within +2 standard deviations (3) 99.7% of the time, the result falls within +3 standard deviations (4) If the difference between the expected value and the observed value is greater than two or three standard deviations, then the chance that it is random is highly suspect ii) In Hazelwood, the expected result would be the number of black teacher proportionate to that of black teachers in the relevant labor market, whatever that would be (1) If both the city and county were the labor market, then we'd expect about 15%, or 62 teachers. Instead, there were only 15 hired—6 standard deviations away (2) If it were only the county that was the labor market, it would be 5.7%, or 23 hires. The 15 actual hires is only one or two standard deviations away (weaker evidence of disc.) iii) Usually courts set the standard to prove systemic disparate treatment at two standard deviations, which is 95% accurate (1) But it's actually a spectrum. Two to three standard deviations is highly probative but a smaller deviation could combine with other stuff g) However, in practice, plaintiffs don't try to win on just statistics; they always use anecdotal evidence or some other type of evidence to tell the story of what the defendant was actually doing i) Ds are entitled to use statistics for rebuttal, but they may instead attack P's proof as inaccurate or insignificant

reverse discrimination

using race or sex to give preferential treatment to some people Background: Section 1981 -> Provides in relevant part that shall have the right to make and enforce contracts as white people -> Only Covers race, not sec, national origin, religion, or any other (1) but what is "Race"? Leads to a lot of fighting (2) it does permit "reverse discrimination" claims McDonald v Santa Fe Train (1973): Title Vii and 1981 also protect white people from racial discrimination Note that the ADEA does not work in reverse, no protection for people under age 40

EEOC v. Abercrombie & Fitch

when accused of not accommodating, employer doesn't need actual knowledge of need for accommodation; plaintiff must only show that suspected need for religious accommodation was a motivating factor for hiring decision a) Applicant didn't tell employer that she needed a religious accommodation; Employer didn't hire her b/c it assumed she would need an accommodation b) Employer can't make religion a factor in decision making a) Employer says not liable b/c no K of accommodation (1) T7 has no knowledge requirement, unlike ADA (where plaintiff must ask employer for specific accommodation) b) Also says not D/T, only D/I for failure to accommodate b/c policy neutral (1) But T7 requires accommodation, employment decision based on this factor included in definition or religion, so T7 violation c) Alito's concurrence says T7 requires some knowledge by employer d) Thomas's concurrence, dissent: (1) Application of neutral policy never equals D/T

Jeffries v. Harris County Community Action Ass'n, 5th Cir. 1980

when black females allege employment discrimination, not relevant that employer didn't discriminate against black men or white women essentially recognizing that intersectional discrimination is different than just discrimination against individual identities a) Black woman is passed over for a promotion (1) She can't make a good race claim because the job she wanted was filled by a black man. It isn't necessarily 100% fatal, but it's not good either (2) There's also a problem with a pure sex discrimination claim because she won't be able to show pretext to counter the employer's LNRs as about half of the supervisors already were women b) Held: Courts should consider compound discrimination claims like this. (1) "Therefore, we hold that when a Title VII plaintiff alleges that an employer discriminates against black females, the fact that black males and white females are not subject to discrimination is irrelevant and must not form any part of the basis for a finding that the employer did not discriminate against the black female plaintiff." (2) Just because black men and/or white women are not discriminated against doesn't mean that black women don't have a claim. Analogizes this case to "sex plus" cases involving discrimination against women who also had school age children, etc. Phillips v. Martin Marietta Corp. (a) If we allow claims for sex operating in conjunction with neutral non-protected factors, why wouldn't' we allow it for sex plus another protected trait? (3) But who is the comparison group in a case like this? (4) Does this let πs have it both ways? To pursue claims for race and sex separately, and then race plus sex as another claim? (a) The framework has to accommodate for the experience of people who have intersection of traits (i) Allows for the two routes of intersectional claims c) Disposition: remanded for additional findings: (1) District court didn't look at the possible "pure intersectional" claim that she was trying to prove, just as race and sex separately, but now they have to -- court approving intersectional discrimination claim (2) District court didn't make any findings about whether she was actually qualified for this job. d) Courts can either look at this as sex-plus discrimination or trait discrimination (1) Sex plus: women w/ children discriminated against; women w/out children and men w/ children not discriminated against, OR (2) Trait discrimination: discriminated against for having a child, and say that having child status is a proxy/correlative with being a woman. e) Hypo (1) 4 employees: black woman, black man, white woman, white man. They get in an argument with a supervisor and all slap the supervisor. All the employees, except for the white man, get fired. The black woman brings suit (a) How could the Δ proceed? (i) If the black man, white woman, and white man are all the comparators, then it's hard to show discrimination against black women (b) How could a π attorney proceed? (i) All the fired employees have a Title VII claim 1. The problem is being not white

Payne v. Travenol

when black women are class representatives, but remedy doesn't extend to black men when their claims center on their discrimination as members of an intersectional group (1) πs wanted to have two classes: black men and black women. πs argued significant disparities between whites and blacks, then a gap between black men and black women (2) Black/female employees prevailed in their discrimination claims but won't extend the remedy to black men despite the fact that there were across-the-board disparities between black and white employees of both genders (a) Either only fight against race discrimination and award will apply to black men (b) Or fight using claims of intersectional discrimination and award won't apply to black men (3) There are different types of claims you might want to bring and it might be the case that either approach is right (a) "Double discrimination" (Payne): business discriminates on basis of race, also discriminates on basis of sex; intersectional plaintiffs just get doubly discriminated against (b) Pure intersectional claim (Degraffenried, Moore): (i) Degraffenried: plaintiffs alleged purely intersectional claim, court rejected this claim b/c said no protection for intersectional groups (ii) Moore: plaintiffs allege intersectional D claims; court says they can't represent class of all women or black men plaintiffs (4) Double Discrimination makes it easy to pick out comparators: (a) You can compare to white women or black men, both are treated better than black women (5) With pure intersectional, we might look at who got the highest score if there are a lot of groups (a) Compare to highest scoring group, whoever that is (6) The Degraffenreid court might allow both race and gender claims on the first framework, but doesn't contemplate the other one at all (a) π fell victim to a seniority system because Δ used to not hire black women. Δ said they used to hire women, so no discrimination. Court wouldn't consider black women as a group, so π had to argue sex or race discrimination separately (7) In Payne, πs were in the double discrimination box, but weren't allowed to argue that women and black males were affected (8) In Moore, it's basically the first one; the plaintiff wanted to represent all women

McKennon v. Nashville Banner Publishing Co., 1995

when employee fired for D, but employer later discovers some legit reason for firing them...back pay calculated from day she was fired until day when employer learns of legit reason to fire (1) Plaintiff gets fired and it emerges in discovery that before she got fired, she had been copying and taking a bunch of internal documents as ammo in case she did get fired. (2) The employer probably would have fired her for this, but they didn't know about it until they fired her allegedly because of age. (3) Held: Liability, but damages reduced: (a) Just because there was after-acquired evidence of wrongdoing that might have got her fired anyway doesn't mean there won't be liability. (b) The proper formula: Back pay calculated starting when she was fired and extending to when the employer finds out the fact that would lead them to fire her anyway. ←--------back pay------------x----------------------x-------------------------front pay--------------x> Disc. Firing Discovery Judgment When P starts working again (c) You could argue that she did this in anticipation of litigation so it was all precipitated by the unlawful discrimination (4) Problematic result of the case: (a) Employers can start a fishing expedition to try to find some reason they could have fired π so they can limit backpay check page 87

EEOC v. Consolidated Service Systems

word-of-mouth recruiting ≠ D/T; court won't apply Title VII against community it was designed to support a) Korean-American-owned housekeeping company has employees who are, perhaps unsurprisingly, like 80% Korean in a 1% Korean city b) EEOC brings suit alleging systemic disparate treatment: i) The theory: They only want Korean workers, so they only advertise these positions through word of mouth within the Korean community ii) They also brought a disparate impact claim but it lost on an idiosyncratic 7th Circuit thing where Posner said that word of mouth isn't even a "practice" by an employer that can give rise to disparate impact liability c) Held: No unlawful discrimination because the employer's proffered LNR is actually the real reason i) They say, and the court believes, that . . . (1) Word of mouth is cheaper than other ways to advertise and they don't really have to do anything else to get enough applicants (2) It works better because if someone was referred by an existing employee, it means the employee was willing to stick his neck out for them ii) Court really doesn't want to stick it to a bunch of immigrants who are trying to work their way up the ladder in about the only way they can (1) Posner just comes out and says it: The defendants are the type of people Title VII was made to help so we aren't going to let the EEOC use it to punish them for not actively trying to recruit white people (2) Also, like in Sears, sticking together and recruiting from their own community is just how immigrants do business iii) This is a case where the story about why segregation occurs is basically dispositive. If it had been a white-owned company that only recruits at the country club...