Employment Discrimination Outline
Is it a lawsuit against a church?
- Free Exercise Clause
- Does employer have 15+ employees?
- Race, color, sex, religion, national origin
o Does not include age
o Santa Fe: applies to discrimination against whites, too
- Does not require employers to take affirmative steps to increase # of minorities
Must also look at state statutes.
Is policy facially neutral?
- NO ? Use disparate treatment - YES ? Use disparate impact
- Must show that there is not a facially neutral policy (there must be a facially
discriminatory policy). If there is a facially neutral policy, try disparate impact.
- Л must show discriminatory intent
o Unconscious stereotyping is not enough for intent to discriminate
o Direct evidence
? Racist statements
? Slack: blacks are better at cleaning/should stay in their
? Discriminatory hiring policy
? Use Slack test or
? Did the protected trait actually motivate the employer’s
o Employer can fire older employee if reason is
pension and not age
? Price Waterhouse
o Circumstantial evidence
? Slack: white women w/ less seniority were excused from
cleaning/black woman brought over from another dept to clean
? Craft: no discrimination against female newsanchor advised about
how a female anchor should dress, etc when: 1 other female had
not been criticized/several males were criticized/comments based
on individual weaknesses rather than gender stereotypes
? Use McDonnell Douglass or
? Price Waterhouse
o Unconscious stereotyping is not enough.
o Intentional discrimination does NOT have to involve hatred of the
protected group. Joe’s Stone Crab
Is there direct evidence of discriminatory intent?
Yes ? Use Slack or PW
- Price Waterhouse Mixed Motive Framework
No ? Use McDonnell or PW
- McDonell Burden-Shifting Framework
o For Title VII, ?1981, and ADEA claims
o Л always has BOP to show by POE that discrimination motivated the
o 1. Л had burden of production: PF case
? i. Is Л a member of a group protected by the statute?
? ii. Did Л apply and was Л qualified for a job for which employer
was seeking applicants?
? iii. Was Л rejected?
? iv. Did the position remain open and did employer continue to seek
applicants from persons of Л’s qualifications, or did employer hire
someone not of Л’s protected class?
? If Л makes PF case, rebuttable presumption of discrimination rises.
? Bryant: discrimination can be based on non-white stereotypes
? Л, light-skinned black woman, wore a suit and blond hair;
coworkers were more Afrocentric. Л was called a
?wannabe,” left out of meetings, passed up for promotion,
fired, replaced w/ dark-skinned black woman w/ dreadlocks.
o 2. Burden of production shifts to ? to rebut w/ evidence of a legitimate,
? ? only has to put forth evidence of a reason; ? does not have to
prove it was motivated by the reason
? If ? puts forth evidence of a legitimate reason, the presumption of
discrimination raised by the PF case drops.
? If ? fails, judgment for Л
? Reason can be illegal (pension) IF employer applied the reason
equally to members of all races.
? McD: unlawful conduct (car stalling), IF employer refused to hire
ALL people who participated in the conduct
? Personal reasons are OK (Jerk) but watch out b/c can be motivated
? Patterson: white person better qualified
? If ? argues that discrimination was pursuant to a legitimate
affirmative action program, switch to Weber framework.
? Pretext is now irrelevant: do not switch back to McDonnell
Douglas: finish with the Weber framework.
o 3. Burden shifts back to Л to show this reason is a pretext for ?’s
discriminatory motive (finish McDonnell framework)/ or that the
nondiscriminatory reason was not the only motivator, and ? was also
motivated by discrimination (switch to Price Waterhouse framework)
? Direct or circumstantial evidence
? Circumstantial evidence (Patterson)
o ? did not follow its employment policies
o ? does not have any employment policies
o Л was better qualified
? Example of circ evidence when proffered reason is
inappropriate conduct, Hicks: Л was only supervisor
disciplined for violations committed by his
subordinates/similar and more serious violations by others
were disregarded/boss created verbal confrontation in order
to provoke Л to threaten him
? Hollins: grooming policy of neat and well-groomed
required advance approval for new hairstyles. Employer
disapproved of black Л’s hairstyles. PRETEXT b/c 5 white
women w/ identical hairstyles were not reprimanded/white
women wore shag hairstyles, which were more dangerous
than Л’s hairstyle of corn rows/white women could wear
ponytails but Л was criticized for it.
? Bryang: pretext: Л was deliberately excluded from the
meetings ? claims she missed
? Reeves (US SC): evidence of pretext is usually enough to get to a
jury. Pretext-plus rule of Hicks is wrong. Reeves did not specify
when more than pretext is needed. This is where the circuits differ.
? 2d Cir: If ?’s reason is pretext, sometimes requires that Л
also show that discrimination was the real reason.
o ?’s false explanation can do this
? In most cases, you can assume that if the
reason is not true, there is discrimination.
o Other circ evidence can also prove intentional
discrimination. Look at:
? Strength of Л’s PF case
? Any other evidence that supports ?’s case
o No pretext found:
? Hicks: race not real reason if: blacks are on
hiring board/some black employees not
disciplined/# of black employees remained
? Reeves: comments made some time before
employment decision was made are not
direct evidence of intent to discriminate in
- Price Waterhouse Mixed Motive Framework
o Direct evidence: Do NOT start with McDonnell Douglas
o Circumstantial evidence: start with McDonnell Douglas, and switch to PW,
or argue PW in the alternative
o Л can't get damages.
o When to use PW:
? If can’t show pretext, or pretext evidence is weak.
? Ex: if employer has a strong legitimate reason, such as Л
got in a fist fight (Costa)
? Note: Employers don’t want to ask for a mixed motive instruction
b/c admits they had a bad motive.
o Л can argue in the alternative: argue McDonnell, then say even if ?'s
reason is legitimate, it is not the only reason, and then argue PW.
o 1. Л must show by POE that protected trait was a motivating factor
? does not have to be the only factor
? stereotyping is not enough. But stereotyped remarks are evidence
that gender played a role.
? PW: Л, only female out of 88 partner nominees, did not make
partner; 47 made partner; partners complained that Hopkins was
macho, unladylike, needed charm school, should be more
feminine/wear makeup/jewelry, evidence that partners did not
think women should be partners, Л was only candidate who
secured $25m deal.
o 2. Burden shifts to ? to show by POE that it would have reached the same
decision even in the absence of the protected trait.
? This is employer’s affirmative defense under Title VII.
? Deminimus or volitional
? Deminimus: it is too minimal
? Volitional: he didn’t have to wear it
SYSTEMIC: patterns and practices of discrimination
- PF case easier to prove here than w/ individual disp treat, b/c stats alone might be
o Rebutting PF case is harder w/ systemic (good faith inadequate)
- Is there a formal policy?
o If not, proceed to Teamsters framework:
- 1. Л’s PF case: Was there a pattern or practice of disparate treatment?
o Л must show that discrimination was standard operating procedure
? Isolated incidents not enough
o Use statistical proof (this is all that is needed)
? Must compare racial composition at employer to racial
composition in the relevant labor market.
? No evidence of specific instances necessary
? Testimony evidence helpful if available
? Look at applicant pool statistics:
o How many women apply (more than are hired?)
? Sears: 61% of applicant pool is women
o How many women are hired: what % of total hires
? Only 27% of commission jobs went to
? Look at requirements for the job
? Look at stats w/in this workplace
o 9% minorities; only 1% of drivers are minorities
o 80% of minorities had low-$ jobs; 39% of whites
had low-$ jobs
? Look at the rest of the work force for this job and see
what % of this type of employee are women; compare to
o Hazelwood: county schools had 1.4% black
teachers; city schools had 15.4% black teachers
o What is relevant labor pool? Make arguments.
o Teamsters: all blacks were hired after litigation
? NOTE: if employer is small, it is harder to get probative
statistics (2 out of 6 not very useful).
o Must show causal nexus b/tw specific employment practice identified and
the statistical disparity shown.
? Joe’s Stone Crab: reputation is not an employment practice.
- 2. ?’s rebuttal: Was the pattern a product of pre-Title VII hiring?
o Hazelwood: % of black teachers went up after Title VII became effective,
o Statistical evidence not required for rebuttal
o Claim of good faith/hired the best-qualified is inadequate
o Hazelwood: can argue that blacks aren’t interested
? But are they not interested b/c they know they won’t be hired?
o This is harder than in an individual disparate treatment case
DEFENSES to disparate treatment cases (for individual AND systemic)
- 3 ways to defend:
o Challenge the factual basis of Л’s PF case
? Deny that a formal policy exists, or
? Challenge the facts on which Л’s case is based (use statistics to
counter Л’s statistics),
o Challenge the inference of discriminatory intent the statistics raise
? Lack of interest by Лs; can’t prove intent to discriminate
o Sears: no discriminatory intent b/c women were not
interested in the higher paying jobs.
? Rebut: women ARE interested b/c they
applied. Argue that Sears was acting on
? In spite of, not because of
o Feeney: law that was a preference of veterans over
non-veterans, not men over women; no intent to
discriminate against women
? BUT, you can also argue that gender was a
motivating factor. Perhaps Feeney was
wrongly decided. o Admit the discrimination but assert a recognized defense (see below):
o If can’t make the argument that Лs weren’t interested
o Rebut: word-of-mouth is used b/c it selects members of a specific group:
circ evidence of intent to discriminate.
? If all employees are men, then women are out of the loop.
o It is too minor
o He didn’t have to wear the earring
- Bona Fide Occupational Qualifications (BFOQ) o Under Title VII
? “it shall not be an unlawful employment practice for an employer
to hire and employ employees...on the basis of religion, sex, or
national origin in those certain instances where religion, sex, or
national origin is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
? TEST: (Johnson Controls)
? Discrimination must be reasonably necessary to the normal
operation of the particular business
? The qualification must be related to the job
o Reproductive potential of women does not prevent
them from making batteries.
o Safety of women is not related to driving a cab
o Airline police requiring women to weigh less than
men not a bfoq, Frank v United Airlines
? Does not apply to race
? Some circuits apply BFOQ to race
? Only applies if there is a facially neutral policy
? Dothard: prison can require guards in contact positions to
be the same gender as inmates, for safety reasons. But
danger to the woman herself does not justify discrimination;
women must decide if she wants the job.
o Rebut: this bfoq reinforces stereotypes, which Title
VII intends to eliminate
? Rosenfeld: does the job require sexual characteristics? (wet
? Healey: gender is a BFOQ for child therapists
? Craft: female newsanchor told how to dress properly, wear
makeup, not discrimination b/c appearance is related to
company’s success b/c is on tv.
? Joe’s Stone Crab: old world dining style: having all men
does not relate to the essence of the job: serving food.
o Under the ADEA:
? Western Air: age is a BFOQ for flight engineers (health reasons)
? Johnson: age is NOT a BFOQ for firefighters
- Voluntary Affirmative Action (by private OR public employers): Title VII
o Not an affirmative defense; burden is still on Л. Johnson.
o TEST: (Weber)
? Л has BOP of showing that plan is invalid
? 1. Plan must be undertaken to further an AA plan designed to
eliminate employer work force imbalances (a manifest imbalance)
in traditionally segregated job categories.
? PF case not required; only a manifest imbalance must be
o Compare % of minority workers to relevant local
? Johnson: women are 36% labor market; 22%
at this place
? 0% of women were skilled craft
o Policy: so ? doesn’t have to admit they
discriminated; encourages voluntary affirmative
o Weber: upheld plan reserving 50% o jobs for blacks
until % of blacks in the jobs resembled the $ of
blacks in the local labor force
? Is minority qualified? Interested?
? 2. Plan must not unnecessarily trammel the rights of majority
employees or create an absolute bar to their employment.
? Many factors are preferred to quotas.
? Johnson: rights not trammeled b/c you aren’t promoted.
Must be fired or demoted in order for rights to be
? 3. Plan must be temporary.
? Is plan intended to attain a balanced work force, not to
? Is there an end date or a plan to reevaluate?
? Note: if plan has no goals/standards and is guided by whims,
probably discriminatory. Township of Piscataway.
? Note: AA based on stereotype, rather than intended to correct
racial imbalance, not allowed.
? Ferrill: struck down AA plan that race-matched
- Government sponsored Affirmative Action: Equal Protection Clause
o Note: If employer is public, Л can bring Title VII or EP claim
? All classifications, invidious or benign, imposed by federal, state,
or local government actor, get strict scrutiny review
? 1. Plan must serve a compelling government interest.
o Remedying past discrimination by employer is
? Must prove the past discrimination
o Remedying past societal discrimination is NOT
o Attaining a diverse student body is compelling
? Grutter, Gratz
? Diversity may be a compelling interest in
areas beyond higher ed: workforce, military
(but hasn’t happened yet)
? 2. Plan must be narrowly tailored to serve that interest.
o Is the plan the least restrictive means of achieving
o Is the plan overinclusive or underinclusive?
o Individualized consideration instead of quota
? Grutter used individualized consideration
? Gratz used 20 point system = not allowed
? What Johnson would argue: if it was
individualized, he would have won b/c he
was better qualified
? Intermediate scrutiny:
? 1. Plan must serve important government objectives
? 2. Plan must be substantially related to achievement of
Л's REBUTTAL to defenses:
- Rebuttal to lack of interest defense
o Did employer recruit by ads in newspapers read mostly by men?
- Rebuttal to word-of-mouth defense
o If employees are men, then women are out of the loop
DISPARATE IMPACT (is always systemic)
- Do not have to show intent
- There must be a facially neutral policy
o This is a disparate impact case b/c the policy on its face is neutral: it says
no men can have beards; it doesn’t say no black men can have beards. The
policy says nothing about race. But, the policy has a disparate impact on
black men b/c 50% of black men have this condition and 25% have it so
severely that they can’t shave. Bradley
o If there is a facially discriminatory policy, try disparate treatment.
- TEST (Civil Rights Act of 1991, and Griggs)
o CRA controls; it confirmed Griggs. CRA also codified the alternative
employment practice part of Wards Cove.
o 1. Л’s PF case
? a. Must show disparate impact (no guidance. Use statistics)
? Look for a statistical disparity b/tw proportion of minority
in the available labor pool and the proportion of the
minority hired by the employer
? Dothard: height/weight requirements for correctional
counselor position exclude 41% of women but 1% of men
? Bradley: Domino’s no-beard policy had a disparate impact
on black males b/c 50% have a skin disease and can’t shave
? Rogers: policy that says no braids does not discriminate b/c
applies to both genders and all races.
o Volitional arg: she doesn’t have to wear braids
o Ct should have found disparate impact b/c more
women/blacks wear braids than men/whites
? b. Must show specific, facially-neutral employment practice
? Bottom line exception: If it is impossible to separate the
employer’s practices and identify a specific practice, the
entire employment process can be analyzed as one
employment practice, with bottom-line statistics to show
o Ex of these statistics: who was hired using this
? c. Must show that employer uses the practice, and it causes the
? Only a causal link is required; not but for
o 2. ? must show business necessity (Griggs)
? Court 1:
? Must show business necessity (1 thing): does employment
practice relate to job performance?
o Griggs: High school degree requirement not related
b/c employees w/o the degree perform satisfactorily.
o Griggs: intelligence test not related b/c the test is
not related to job performance, and blacks have
inferior education in schools and don’t do as well
on the test.
? Court 2, Lanning, majority: courts must show (2 things):
? a. Practice must be job related for the position in question
? b. Business necessity: cutoff score must test only the
“minimum qualifications necessary” = likely to be able to
do the job
o Maximizing operations (higher aerobic performance)
not enough for business necessity
? Bradley: no biz necessity for customer preference b/c
essence of job is delivering pizzas; not looking nice
o 3. Л can show that an alternative practice is available
? Л must show: alternative practice does not have the undesirable
discriminatory effect, serves the employer’s interest, and the
employer refused to adopt this practice.
? Dothard: strength test instead of height/weight requirements
? Fitzpatrick: WRT requirement that firefighters be clean shaven so
their masks will fit properly, allowing shadow beards or only
shaving where the mask goes are not comparably effective
alternative practices b/c aren’t as safe
- ? rebuttal options
o Show no causation
o Use statistics to show that Л’s data is flawed
o De minimus
o Volitional: he didn’t have to wear it
o Biz necessity (see above)
- Grooming and dress codes: very unsettled area of the law
ADA: DISABILITY AND THE DUTY OF REASONABLE ACCOMMODATION
MERGE into ADA below
- ADA: If a disabled individual can perform essential functions with reasonable
accommodation, the employer has a duty to provide those accommodations.
o Exception: If the accommodation would impose undue hardship on the
operation of the business. An undue hardship requires significant difficulty
? Look at:
? Employer’s assets
? Benefits of the accommodation to the disabled worker
? Altering a seniority policy is usually an undue hardship
? But Л gets a chance to show special circumstances that
make an exception from the seniority system a reasonable
accommodation in the particular case.
o Timely and regular attendance is an essential job function
o 1. Л's PF case:
? a. Accommodation is reasonable b/c it is efficacious
? employer not required to allow employee to work
unsupervised at home b/c productivity would go down