2) 180 days to file a complaint to the EEOC.

4) jury trial

6) the only relief under TITLE VII before 1991 was equity. NOW it is caps depending on the number of employees

8) both claims are being filed.

McDonnell Douglass answered part of the question. Burdine completed it.

Texas dpt of community Affairs v. Burdine: ( gender discrimination)

1) the plaintiff must show prima facie case of discrimination

3) the plaintiff must prove ( burden of persuasion) that these reasons were a pretext

Employer failed to train her to promote her: show intent to discriminate.

The court of Appeals said that once the plaintiff disproves the reasons advanced by defendant, he/she wins. The supreme court reversed and decided:

1) plaintiff must disproved the evidence of defendant AND

Because the plaintiff bears the burden of persuasion at all times.

Price Waterhouse v. Hopkins 1989 ( gender discrimination: aggressiveness)

There were legitimate and illegitimate reasons to fire her.

The defendant had to prove that the decision would have been the same even in the absence of the illegitimate purpose: if the defendant meets the burden then the defendant wins. The 1991 act changed this part of the decision: IF AN ILLEGITIMATE MOTIVE HAS BEEN PART OF THE DECISION, IT DOES NOT FORECLOSE THE PLAINTIFF FROM WINNING, IT ONLY FORECLOSE INDIVIDUAL RELIEF.

The difference between McDonnell/ Burdine burden of proof and Price Waterhouse is that in McDonnell/ Burdine, the burden never shifts: With direct evidence, the burden shifts to the defendant to prove by a preponderance of evidence that the decision would be the same.

The employers started to use that defense: employer during discovery discovers something that would have led him/her to fire the employee anyway. They were issues concerning what this evidence led to against the employee

- matter of liability

- matter of remedy:

- no reinstatement, no back pay.

See Mckennon v. Nashville Banner Publishing Co.: the USSC decided that the after acquired evidence only limits the remedies but not liability.

-it protects state bodies employees.

- it applies under the 14^th amendment:

- equal protection

Requirements:

1) a person defendant

2) acting under color of state law

3) causes a person plaintiff

4) to be injured or subjected to the deprivation of rights

5) where those rights secured by the constitution or other federal laws.

Miller v. Cigna Corp 1995 ( Age discrimination)

It is a challenge that is broader that disparate treatment:

- formal policy of the employer

- a policy that is proven through a pattern

When TITLE VII was passed, formal policies were very common and much of these were then eliminated but it till happens:

- gender: a traditional view of women in society, stereotypes.

= how to apply the law when employers decide upon facts based on stereotypes.

L.A. dpt of Water and Power v. Manhart 1978 ( gender)

It was based on actuarial evidence.

The court said that TITLE VII was targeted at individuals: it is an expressed gender-based discrimination. The employer had put into place a pension benefit fund where the women had to pay more because they lived longer. The court rejected the cost analysis made by the employer as it is not a defense against discrimination.

A policy where pension monthly payment are the same for men and women but women will get less when retiring is as unlawful as the policy in Manhart. See Arizona Governing committee v. Norris.

There are some statutory defenses: equal payment act: if the discrimination is based on something else than gender. There is no pay back remedy because TITLE VII is not retroactive.

Trans World Airline, Inc v. Thurston 1985 ( age discrimination)

It was a collective bargaining agreement between the Union and the company: after age 60, pilots had to retire and there was a seniority system for them to be flight engineers. Flights engineers did not have this age 60 retirement requirement.

It does not matter that 80% of the pilots became flight engineers, what mattered was that it was an expressed discriminatory policy.

Under the formal policy discrimination, there is no need to show intent but here it will be needed.

There is no need of showing individual discrimination. YOU only need to show a group discrimination using statistics.

There are two stages:

1) liability stage: show pattern

2) remedy stage: who is entitled and how much.

Teamsters v. U.S. 1977 ( race and ethnicity, line drivers that were mostly white)

In this case, the court analyzed the relevancy of statistics.

Comparison between the percentage of employee that worked for the employer and the percentage of the population in the area: you infer from that evidence that the employer was engaged in discrimination. What made it a better case is that the A.G. had individual testimonies to support his position. The court rejected the argument that the court could not look at the statistics because they were pre-act but the practice was continued after the act was passed.

The court used the entire workforce because it was not job that needed special skills.

Hazelwood School District v. U.S. 1977 ( race discrimination)

The dispute focused on the object of statistics:

- the geographic area: you had to use the specific area.

The court remanded the case because the court did not look at the hiring procedure after the enactment of TITLE VII.

Statistics can be used in both disparate treatment cases and disparate impact cases. They are used to make use that a certain event is not pure chance.

The greater the deviation, the more likely the result is not pure chance.

There are standard deviation that give confidence. But in the absence of any other explanation, there is discrimination.

Z= O-NP

Z: standard deviation.

P: labor pool

N: total number of employees.

O: observed outcome

ex:

- labor pool: 20% of Mexicans

- 500 employees

- 77 Mexicans

This outcome is not the result of pure chance

Bazemore v. Friday 1986 ( race discrimination)

Agricultural area: segregation branches before the TITLE VII but after passage of the act they were merged, but the discrimination in salaries were not entirely eliminated.

The used salaries to show discrimination, the court said that you need to use other factors, like variations by county which the district court did not take into account: it had to come in for its probative value.

The court rejected that you could not look at pre-act discrimination because of the salaries, the discrimination became post-act: multiple regression analysis.

Personnel administrator v. Feeney 1979 ( equal protection: gender discrimination )

The court looked at the intent of the legislature when it passed the act for veterans. Even though, most veterans were male, the statute was intended to anyone who was a veteran not only males.

EEOC v. Sears, Roebuck and CO 1988 ( gender discrimination)

Sears won because the EEOC only showed statistical evidence by way of multiple regression analysis.

It is very interesting because of the type of defenses used by Sears: like the women were less interested in that kind of job.

The court stated that following the jurisprudence in disparate treatment cases, the burden of persuasion on the issue of intent to discriminate is on the plaintiff and the standard to review a decision is the clearly erroneous one.

Pb 4.1:

As soon as the pattern and practices is established, the burden shifts to the defendant.

1) it is not an unlawful practice to hire employees

2) on the basis of religion, sex and national origin

3) where these are Bona fide occupational qualification

4) reasonably necessary

5) to the normal operation of that particular business.

The BFOQ defense does NOT reach race or color discrimination. THE ADEA provides for the same defense.

Early decisions:

- Phillips v. Martin Marietta Corp 1971 ( gender discrimination): differential hiring policies for men and women having preschool-age children could arguably be a BFOQ under TITLE VII if such conflicting family obligations were demonstrably more relevant to job performance for a woman than for a man.

- Dothard v. Rawlinson 1977 ( gender discrimination): the court said that BFOQ was a very narrow exception but that a rule requiring the hiring of prison guards of the same sex as the inmates was lawful.

The FAA had promulgated a general prohibition that pilots over 60 should retire, Western Air Lines put the same restriction to flight engineers. The pilot ban was held as a BFOQ.

The court used the test laid down by a circuit court in 1977:

- reasonably necessary

- show that almost/ all excluded people could not do the job

The employer could not meet the test.

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

The women challenged the policy because it was one of the highest paid job. Pregnancy based discrimination is now comprised in TITLE VII ( thus overruling Gilbert which stated that an employer could discriminate on the basis of pregnancy) prohibition of sex discrimination.

They could not take the fetus into account.

They applied the same test as in Criswell:

The policy had to be necessary to the essence of the business, which was not the case as fertile males could do the job.

The also said that in the airlines cases, safety was in the essence of the business.

In fact, the employer lost because it was an overbroad exclusion.

Preemption of TITLE VII:

The statute does not pre-empt usually except when there is conflict.

Where the BFOQ defense applies:

- the obstetrical nurse.

This is not mandated by either TITLE VII or the ADEA. It is only mandated for federal contractors.

A lot of private employers engage in affirmative action.

America v. Weber 1979 ( race discrimination):

Weber was a government contractor, he was required to engage in affirmative action. Because the plan was required by the Executive Order.

The court found that the Executive Order was consistent with TITLE 7. There was a collective agreement that warranted hiring of experienced workers: it discriminated against Blacks because the Union was the trainor and discriminated against Blacks: thus the affirmative action plan which provided that 50% of the positions will be filled by Blacks. The court upheld the program.

Johnson v. Transportation Agency of Santa Clara County 1987 ( gender discrimination)

They used gender as a factor but they did not set aside jobs for women. In some cases, the court have required that the affirmative action plan had to be temporary. The court found that the plan was not temporary but it was flexible in achieving its goals ( attain a balance)

The majority stated that

1) it does not have to be a prima facie case of discrimination as TITLE VII warrants, it can be shown by statistical imbalance.

2) they decided the way they decide pattern and practices cases.

3) if they had struck down the plan, it would discourage affirmative action

4) no need to show prior discrimination to justify the plan.

Adarand Construction v. Pena 1995 ( Race discrimination):

It held the affirmative action plan unconstitutional because it was not redressing past discrimination!!!!! Standard of review: strict scrutiny.

See analysis of the Executive order on p. 399-404.

It applies to

1) TITLE VII

2) ADA

It does not apply to

We do not know if it applies to ADEA.

If we treat people the same way, the same result must ensued: thus we look at the result.

Griggs v. Duke Power CO 1971( qualifications discrimination)

The tests in Griggs were used to discriminate. The employer must provide a business justification

It is not because the test has a disparate impact that it is illegal.

does not require intent, but just that the opportunities are limited because of membership of protected class.

The employer has the burden to show that there is a business justification.

1) who is affected/ discriminated?

2) how are they affected?

3) what kind of evidence?

Dothard v. Rawlinson 1977 ( gender discrimination):

She used the population at large instead of using the applicant pool because the requirements might discourage the applicants as they would know that they would not meet them.

The employer can rebut the prima facie case by showing that the discrimination is job related: no showing of that in the case.

N.Y. City Transit Authority v. Beazer 1979 ( drug addicts): the methadone case. No showing of impact.

Wards Cove Packing Co. v. Atonio 1989 ( Race discrimination):

The Court of Appeals agreed with plaintiff that the relevant groups to look at were the non cannery jobs and the cannery jobs, the supreme court reversed saying that the relevant groups had to be in connection with job.

This prompted the 1991 Act and it overruled the portion of Wards cove on the burden of proof and the finding of a prima facie case.

Pb 5.1:

Abott v. Federal Forge:

Under ADEA: not hiring former employees did not create a disparity in age groups. You cannot look only at the affected group you need to look at the relevant labor market.

Connecticut v. Teal 1982 ( race discrimination):

The employer tried to defend themselves by a bottom line defense: they remedied the discrimination by favoring blacks. The court said that it is not because some were favored that there was no discrimination against the other individual employees.

The majority said:

- this test deprives of job opportunity

- it does not matter that the employer tied to remedy it through bottom line results

- the group was particularly disparately impacted due to the test.

The amendment of 1991 outlawed race norming:

- you use different cut off scores for different minorities.

- you compare the scores within the minority

- but if the employer can relate the test to job performance, it will be a defense.

Multiple component systems: combination of several factors:

Watson v. Fort Worth Bank & trust 1988 ( race discrimination)

Disparate impact theory also applies to subjective job criteria

Now under CRA 1991, the only good law under Watson is:

1) subjective employment practices can be challenged under disparate impact theory.

2) after the plaintiff meets his/her burden of prima facie case, the burden shifts to the employer to prove there is a business necessity.

EEOC v. Chicago Miniature Lamp MFG 1991 ( race discrimination)

- used word of mouth techniques to hire people.

- disparate impact on blacks.

- most of the incumbent workers were Hispanics and Asians.

- the court said that it could not be challenged because it was mostly inaction

- it was not hiring practice.

Finnegan v. Trans World Airlines, Inc 1992 ( ADEA):

- it had to cut cost.

- it was inevitable

- could not be challenged under DIT and the court did not even go into job relatedness or business necessity.

It was not discriminating against the older workers, it put the two groups on the same level.

With CRA 1991, the employer must show reason is job related and is consistent with business necessity. The two have to be proven.

Fitzpatrick v. City of Atlanta 1993 ( race discrimination)

The case arose before the act of 1991 came into effect but the court applied the new language relating to job related and business necessity.

Firefighters: masks: there was safety problem: business necessity.

The court wanted the plaintiffs to show some statistical proof.

Business necessity is more a business justification.

See Fitzpatrick again: the alternative must be achieve the same goals as the policy applied by the employer: the shadow beard was not as efficient.

THE CRA 1991 provides that the plaintiff can show there was an alternative and the defendant failed to adopt it. Equally effective and not more costly.

Cost justification: the Supreme Court decided that an employer could not refuse to hire older workers because of their higher salary expectations. Cost justification is not an available defense in a disparate treatment case.

Albemarle Paper Co v. Moody 1975 ( race discrimination)

The employer had done a validation study of the tests he was using,, but the court rejected that it was job related or a business necessity.

This is a criterion validity. Albemarle used a concurrent validity:

- you sue the employees and correlation between jobs and scores

= the problem you get in Albemarle: they did not do that for all the jobs.

They used the test that applied to experienced white workers to new non white non experienced applicants.

Albemarle followed the EEOC guidelines.

Acceptable Validation test:

1) test has to be objective of jobs performance

2) give the test to applicants

- validation: there must be a statistically significant correlation

- does not have to be one to one

- .3 correlation at 5% confidence level is acceptable.

Concurrent validity:

- current employees were hired without the test

- give the test to the current employees

- give the test to applicants

- compare current employees results with the applicants results.

Construct validity:

-used for things like personality traits

- need to use in jobs, does not have to be objective.

Content validity

- you are testing the person on the job

- it is the easiest to defend

TITLE VII validation does not apply in constitutional cases.

The Court went into the requirements of TITLE VII for the job relatedness and said that the test was related to the success of the training program.

They are usually the work of Unions: collective bargaining.

It might be applied differently considering the specifics.

Franks v. Bowman Transportation Co:

Teamsters v. U.S. 1977 ( seniority):

They were 2 groups in this case: pre-act discriminatees and post act discriminatees.

But here the seniority system perpetuated discrimination as the line drivers were white before the act.

If the seniority system has ben created to discriminate then there is no defense

If the system has been created without any intent to discriminate and it perpetuates pre-act discrimination, the employer can use the defense.

You cannot attack a seniority system under Disparate impact, you need to show intent.

United Airlines Inc. v. Evans 1977 ( gender discrimination)

She cannot bring a claim because she did not challenge her own discharge when she could. And she cannot use the seniority system to challenge her discharge.

Benefit Seniority:

1) the longer you work, longer your vacation

2) longer you work, more money you will earn

3) longer you work, your health insurance may improve

Competitive Seniority

1) seniority determines who gets laid off

2) seniority determines more desirable job assignments

3) it may determine who gets a promotion

CHAPTER 6 INTERRELATION OF THE DISPARATE TREATMENT & DISPARATE IMPACT THEORIES OF DISCRIMINATION

In a systemic disparate treatment, it has to be substantial deviation according to Hazelwood.

Under disparate impact, you can use both objective and subjective criteria.

Business necessity is a burden of persuasion. It is stricter than a legitimate business reason which is only a burden of production.

Fisher v. Transco Services Milwaukee Inc 1992 ( ADEA):

This was not a systemic disparate treatment case.

They used the 2 theories:

Disparate treatment:

The may meet their burden by showing that age was the determining factor in their discharge or they may used the McDonnell / Burdine shifting process.

A/ Prima facie case when indirect evidence:

1) they were in the protected class

3) they were discharged or demoted and,

4) the employer sought a replacement for them

B/ Then burden of production shifts to employer to articulate a legitimate, nondiscriminatory reason for the discharge

Disparate impact:

1) the plaintiff must show that the employer used a particular employment practice that results in a disparate impact upon a protected class of workers

SPECIAL PROBLEMS IN APPLYING TITLE VII, SECTION 1981, AND THE ADEA

Gender discrimination was inserted at the last minute.

Nashville Gas Co v. Satty 1977:

denial of seniority due to pregnancy leave is unlawful.

Newsport News Shipbuilding & dry Dock Co v. EEOC 1983 ( gender discrimination):

The majority said that it was male discrimination because they did not benefit, the dissent argued that the PDA protected employees not spouses.

The problem is that PDA does not provide for pregnancy benefits but only discrimination against gender and pregnancy.

- it prohibits the employers from providing all the benefits except pregnancy benefits

- if the employer provided no disability benefits, the employer does not have to provide pregnancy disability benefits.

California federal Savings & loan Association v. Guerra 1987 ( gender discrimination: pregnancy)

The state statute was similar to the Family Medical Leave act of 1993.

The issue was preemption.

Title VII only allows preemption when there is a conflict with the state.

Furthermore, TITLE VII does not prohibit states to give preferential treatment, it only prohibits discrimination against discrimination.

EEOC v. Warshawsky and Co 1991 ( gender discrimination):

The policy was affecting women disproportionately. The court said you had to look at the man vs woman number: the women were 11 times more fired the men.

The court went on in looking if the employer had a business reason: there was no evidence brought by the employer.

2) sexual Harassment:

There are 2 types of sexual harassment:

1) quid pro quo:

- where an employer demands sexual favors in exchange for employment benefits or to avoid employment detriment.

- can only be done by a supervisor, because only a supervisor has the power to give the benefits or the detriment.

2) hostile environment:

- atmosphere sufficiently severe to create an abusive working environment for an employee.

Hostile environment Sexual harassment:

- not a tangible economic loss, however it is covered by TITLE VII because:

1) it may interfere with the employee work performance

2) terms and conditions of employment.

Generally, it is the gender component of the harassment that makes it illegal, not there is a sexual component to the harassment.

Meritor Savings Bank v. Vinson 1986 ( gender discrimination):

- the court rejected that a claim on sexual harassment had to be based on an economic loss.

- the gist of a claim is that the sexual advances were unwelcomed.

- Vicarious liability applies ( respondeat superior)

Harris v. Forklift Systems Inc 1993 ( gender discrimination)

The test is:

- a reasonable person will receive the environment as hostile.

- the plaintiff actually perceived the environment as hostile.

The harassment must be sufficiently severe to alter the employment.

Elements:

- frequency

- severity

- whether it is physically threatening or humiliating or a mere offensive utterance.

Ellison v. Brady 1991 ( gender discrimination):

But a lot of courts have rejected this argument.

The employer did not do enough to prevent the harassment.

- Meritor rejects strict liability: vicarious liability.

- most courts used strict liability when in a quid pro quo harassment case.

Remedial action:

It is not because the employer had a grievance procedure, that it will protect him.

Constructive discharge: when the employee resigned because of the situation.

It is not really covered under federal rule.

DeSantis v. Pacific Telephone & telegraph Co 1979

The Court rejected that the disproportionate theory used in Griggs applied to sexual orientation. The court said that sex discrimination was based on gender men v. female not on the same sex gainst the others.

Differences in Employment Criteria

males who prefer male sexual partners are treated differently than females who prefer male sexual partners: the court refused to bootstrap TITLE VII that way .

Effeminacy

Price Waterhouse argument: this is a discrimination based on stereotypes. TITLE VII does not protect against effeminacy.

The Supreme court never addressed the issue under TITLE VII.

It is more successful under constitutional grounds.

It is similar to other discrimination.

Disparate treatment.

Disparate impact.

Reasonable accommodation:

- employer has a duty to reasonably accommodate

- unless undue hardship on the conduct of business

The court reads this provision narrowly: undue hardship: anything more than de minimis cost.

What is religion:

All the issue turns around the definition of religion.

Wilson v. U.S. West Communications 1995 ( religion)

Brown v. Polk County, Iowa

They used the mixed motive test: the defendant did not meet its burden that absent this motive he would have been fired anyway. Different from Wilson, where her attitude was disruptive.

ADEA is pretty similar to TITLE VII.

There is no heightened scrutiny for age discrimination. It is a rational basis test.

Defenses:

reasonable factors other than age.

Exceptions:

- municipalities and cities can discriminated where police officers and firefighters are concerned.

Bona Fide Employee benefit plan: it has been modified:

it allows the employer to respect the terms of a bona fide benefit plan if it is not a subterfuge to go around the act.

It is OK to discriminate so long as you don;t use it to discriminate in some non benefit aspects.

EEOC guidelines:

it allows the employer to provide for equal benefits or equal costs: Congress adopted this interpretation.

Burden on the employer to justify the plan.

Retirements plan: they are lawful so long as they are voluntary and consistent with the terms of the Act. If the employee accepts the plan, he waives his right to sue.

The court have tended to interpret national origin as ethnicity. It is not regional discrimination.

New issues:

1) language

2) accents.

Fragante v. City And County of Honolulu. 1989 ( national origin).

The court also stated that the plaintiff did not carry the ultimate burden of showing national origin discrimination: then they assumed that and they go for a legitimate non discriminatory reason that the defendant had to show. His accent was so pronounced that the court said that it was a legitimate non discriminatory reason as he had to deal with customers.

Espinoza v. Farah Manufacturing Co 1973

only Americans could be hired. They sued under national origin.

The employer lost on both theories but national origin does not include alienage.

Congress then passed the act on Alienage.

The Rehabilitation Act of 1993 covers federal employers, federal fund recipients whereas the ADA covers private and public employees.

Duty of Reasonable accommodation:

- Congress rejected the narrow interpretation given in religion: it is much broader.

Undue hardship: duty even though costs exists.

Title 1 of ADA: definition of disability:

- impairment: defined in the regulation p 169

- major life activity substantially limited by the disability

The statute prohibits discrimination on the basis of history even though the employee is no longer impaired. It prohibits perception by employer as well, See Cook v. State of Rhode Island p 839 ( obese).

Proving disability:

1) person had a disability

2) person was a qualified individual with disability.

School Board of Nassau County v. Arline 1987 ( ADA)

She was terminated because she had tuberculosis. The employer said she was fired because of contagion: the court rejected this argument because you cannot separate the effects of the disease from the disease itself.

But the court left open the possibility of a defense based on contagion if the employer an show a real threat.

Forrisi v. Bowen 1986 (ADA):

But if the alleged disability only limits one kind of job, you are not really limited.

Under the ADA, to be a qualified employee with a disability, you have to be able to perform an essential part of the job.

A qualified individual:

1) an individual who can perform essential functions with or without reasonable accommodation

2) courts have held that considerations should be given to the employer to define essential function.

3) any written job description

- defines discrimination: failure to make reasonable accommodation is discrimination

- also defines qualified individual.

Southeastern Community College v. Davis 1979 ( ADA)

The USSC said that the plaintiff must prove that she can perform the major part of the program as it is, the employer had no duty to change dramatically the program to accommodate her.

Direct threat: to others and the EEOC guidelines includes direct threat to the employee as well.

They are just like the other discrimination cases. There is an expressed classification of disparate impact.

Norcross v. Sneed 1985 ( ADA)

Burden of proof:

1) the plaintiff has the ultimate burden of proof.

2) burden shifting:

a) the plaintiff has the burden of establishing Prima facie case

b) defendant has the burden to rebut the presumption of disability discrimination

c) plaintiff has the burden to show pretext.

3) intent: if defendant meets its burden to rebut the presumption, plaintiff has to show pretext by circumstantial evidence.

4) Mixed motive test

- no proof of mixed motive, so it is a pretext case.

- language of Rehab: solely because of the disability: there cannot be a mixed motive case.

Drug users are not disabled, but rehab drug users are.

10^th circuit put the burden on the employer to prove that the employee is not qualified: joins BFOQ.

Accommodation:

- the plaintiff must make some showing that accommodations are possible

- the employer must then show that these accommodations are not reasonable or cause undue hardship.

2) systemic disparate treatment:

Prove by a policy or a pattern

Galloway v. Superior Court:

Jurors cannot be blind.

The court said that you cannot have a blanket policy. Kind of staereotype that the ADA wants to eliminate.

How do you establish discrimination in systemic disparate treatment?

1) typically uses statistics

2) in a disability case, each disability has a different effect.

3) too difficult to set a pattern.

Vande Zande v. State of Wisconsin department of Administration:

The sink case. And work at home.

The court said that something that stems from a disability is a part of it.

The reasonable accommodation that she wanted were rejected.

Depending on the jobs, the courts have accepted that working at home could be a reasonable accommodation.

Undue hardship:

- you can show costs and then it merges with reasonableness

- but it is not the only way to show undue hardship.

See Dexler v. Tisch 1987 p 925.

The ADA provides that the employer must give accommodation if the disability is known to him/ her. But it is not clear if the employee has to request it.

Direct threat: Arline case

It is a statutory defense. The threat must be a real threat of real injury.

The defense will be rejected unless the job entails transmission.