EMPLOYMENT DISCRIMINATION LAW OUTLINE
PROFESSOR SELMI – FALL 2010
Ch. 1: Race and the Meaning of Equality in the Workplace
1. Pre T7 / Alternatives
a. History
i. Role of unions powerful from 30s-60s – segregated unions for blacks and whites
ii. 1940s – fair employment practice commissions began in some states
1. First time they could handle complaints
2. Precursor to the EEOC
3. Were not very active or successful (except Ohio’s)
b. Only had 42 USC 1981
i. Question at some point if it covered private employers (now clearly does!)
ii. Prohibits discrimination because of race and national origin – still used today
iii. If you are bringing a race or national origin claim you SHOULD/MUST also file this
1. Because damages are NOT capped
c. 14th Amendment
i. Can only be used against public employers
d. Equal Pay Act of 1964
i. Prohibits discrimination but only in pay
ii. Only for sex discrimination (doesn’t apply to race)
iii. Not used very much today
e. KEY DIFFERENCES between section 1981 and title 7
i. No damage caps
ii. Only covers national origin and race (no gender or religion)
iii. Don’t have to go through the EEOC
iv. Discrimination must be intentional
1. No disparate impact
2. Civil Rights Act of 1964: Title VII
a. History
i. Primary statute today
ii. 10 years after Brown v. Bd of Education
iii. Immediately overwhelmed with cases
1. Never recovered
2. Still have a HUGE backlog
iv. Used to have co-jurisdiction with DOJ civil rights division
v. At first – didn’t have damages or jury trials (would discriminate)
b. Key provisions (still important)
i. Prohibits discrimination based on
1. Race
2. National origin
3. Color
4. Religion
5. Sex
ii. Creation of the EEOC
1. Would have to file complaints with EEOC
2. Hope was EEOC would resolve
a. Today remains pre-req to proceed to federal court
3. Odd part – come to a resolution
a. If there’s discrimination EEOC may bring a claim on your behalf
b. If they don’t find discrimination – you can bring claim to federal court
i. EEOC can’t prevent anyone from going to federal court
c. Public v. Private Employers
i. DOJ has jurisdiction over public employers???
ii. EEOC has jurisdiction over private employers
1. More active / exciting
d. Civil Rights Act of 1991
i. Provided damages
3. ADEA, ADA, State Commissions
a. ADEA – Age Discrimination Act
i. Damages with jury trial
ii. Double lost wages if willful action
iii. Most lucrative and successful employment discrimination claims in court
iv. Easier to prove – remains blatant
v. Older people have hard time getting a new job
vi. Class actions are common here
b. ADA – American Disabilities Act
i. Underdeveloped area of the law
ii. Can take into account qualifications and knowledge
c. State Commissions
i. Some are still active
1. Offer better damages sometimes
ii. Rising efforts by plaintiffs to use state boards when they can
4. Theories of Equality
a. Equal Treatment Theory
i. Embraces the notion of “color-blind” or “sex-blind” decision-making
ii. An employee’s race, color, religion, sex, national origin, age, or disability should not be a
factor in any way in an employment decision
iii. Against affirmative action programs
iv. Associated with claims for “disparate treatment”
b. Equal Opportunity Theory
i. Starts from the premise that formal equality (equality on paper) is meaningless so long as
pervasive inequality is a social reality
ii. Criticizes equal treatment as an inadequate conception of equality because it fails to account
for the continuing impact of discrimination
iii. Affirmative action and accommodations are necessary
iv. Associated with claims for “disparate impact” 
1. often focused on results, not just opportunities
5. Differences in Courts (Selmi)
a. Circuit law varies tremendously
i. Critical to know what your circuit says
b. Some courts more favorable to plaintiffs than others
i. Defendant-friendly
1. 6th circuit used to be more hostile to plaintiffs (not anymore)
2. Most hostile – 4th circuit
a. SCOTUS reversed a case 9-0
b. But has been tempered, changing a bit
3. 5th and 11th circuits also traditionally anti-plaintiff
ii. Plaintiff-friendly
1. 9th circuit
2. 1st and 2nd circuit tends to be more plaintiff-friendly
3. Also the 3rd
iii. Most influential when open questions – 7th circuit
1. Because judge posners circuit
Ch. 2: Laws Prohibiting Discrimination in Employment
1. Enforcement Schemes
a. Introduction
i. Constitutional or 1981 Claims
1. No need to exhaust administrative remedies
2. May go directly to federal or state court
3. But still have statutes of limitations
ii. T7, ADA, Equal Pay Act
1. Subject to both administrative processes and adjudication in civil court
a. Must file first with the Equal Employment Opportunity Commission (EEOC)
i. Was established to enforce T7
iii. ADEA
1. Don’t need to exhausted administrative processes
2. Employee / applicant can bring suit as long as
a. Employee filed charge with EEOC within 180 days of challenged action, AND
b. The civil action if filed at least 60 days after filing of the EEOC charge
3. Jurisdictions with state agencies
a. 300 days from time of challenged action or 30 days after the complainant
receives notice that the state agency has completed proceedings
iv. EEOC’s Enforcement Authority
1. Can week judicial enforcement of T7
2. Major federal agency responsible for the enforcement of laws prohibiting
discrimination in employment
3. Jurisdiction over private employers and federal government
4. Doesn’t follow the Administrative Procedure Act (APA)
5. Has deference to define a “charge”
6. Has high level of deference
7. Issues guidelines
b. Administrative Exhaustion (Filing Claims: “Charge of Discrimination”)
i. Timing / Filing Deadlines
1. 180 days (6 months) [DEFAULT] OR
a. From date that the discriminatory date occurred
b. Sometimes easy to know (hired, fired, not promoted)
2. 300 days [MORE COMMON]
a. Only in jurisdictions where there is a deferral agency (deferral jurisdiction)
i. Most everywhere (except Alabama)
ii. Jurisdiction must have approved (by the EEOC) state agency
b. Gives more time because…
i. Supposed to go to state agency first (in theory)
1. Reality – no one does this
2. Usually file simultaneously by checking a box on the form
c. Don’t need to actually file with the state agency to get the 300 days
i. Only need to check the box at the top of the form
ii. Process of a charge
1. Form = charge
a. Employee can fill out online OR
b. In person and EEOC employee will help person fill it out
2. Filing out the form
a. Only requires very basic info “I am a woman and GW law is discriminating
against me.”
b. No filing fee
c. Meant to be very easy
3. EEOC puts charges in priority categories
a. Errors with form (25% can’t even find people)
b. Middle group – not high priority
c. High priority group to investigate
i. Including trying to find class action cases
1. This has actually been fairly aggressive
4. Submitted to employer 10 days after receipt (purpose of charge to notify employer)
a. Normally employers don’t take it seriously
5. Seek to conciliate the charge
a. EEOC cutting back mediation program now
6. If conciliation fails  conducts an investigation
a. EEOC can continue an investigation even if the individual sues
7. Decision: makes determination if discrimination occurred
a. If discrimination  “cause” determination
i. Explains basis of decision
1. Very short – no longer than 2 pgs
ii. Invites employer to settlement talks
1. If does not settle  usually federal lawsuit
b. If no discrimination  “no cause” determination
i. Short explanation (1 pg or less)
ii. Issues employee “Notice of Right to Sue”
c. Sometimes cause but…
i. Not going to take the case
1. Sometimes because the employee has an attorney
8. Possible to amend charge after filed
iii. Notice of the Right to Sue”  Ticket to Federal Court
1. Charging party can also request it beforehand (after 180 days)
a. They have to give it to you no matter what
i. They could be in the middle of the investigation
2. Employee can file a civil action in federal or state court within 90 days of receiving
the notice
a. Courts differ because a lot of people say they lost the paperwork
b. General Rule: courts LESS lenient on procedural deadlines
i. Exception – retaliation
1. Courts will be more willing to forgive errors
iv. “Discrete” v. “Continuing” Acts
1. Plaintiff must demonstrate that they filed charge as long as one of the acts that
formed the pattern of discrimination / harassment occurred 300/180 days before
the charge was filed.
v. Federal employees
1. Exhaustion requirement – more complex b/c they have job protections
2. OPM, EEOC, and Merit System Protection Board have overlapping jurisdiction
c. Scope of a charge
i. Judicial complaint is confined to the scope of the administrative investigation that can
reasonably be expected to flow out of the charge
1. Court may dismiss certain causes of action if they were not sufficiently related to the
original charge
ii. Ledbetter v. Goodyear Tire & Rubber Co. (SCOTUS – 2007)
1. Facts  P first filed with EEOC in 1997. Discrimination had begun over 20 years
ago and affected pay and promotions. Claimed discrimination “carried forward.”
2. Court  Complaint was untimely.
a. Policy decision – court choose to protect employers from stale claims
iii. Lily Ledbetter Fair Pay Act (2009)
1. Employment discrimination occurs when
a. “a discriminatory compensation decision or other practice is adopted”
b. “an individual becomes subject to a discriminatory compensation decision
or other practice”
c. “an individual is affected by an application of a discriminatory compensation
or other practice”
2. INCLUDING
a. Each time wages, benefits, or other compensation is paid
3. Employee can file a claim when it occurs, when you’re aware of it, or when you’re
affected by it.
d. Equitable Considerations (only used in limited circumstances)
i. Equitable tolling
1. Applies only when a litigant’s failure to meet a legally-mandated deadline
unavoidably arises from circumstances beyond the litigant’s control
a. Example – mental disability
ii. Estoppel
1. May be raised where an employer affirmatively misleads a claimant or intentionally
prevents a claimant from filing a charge with the EEOC in a timely fashion
2. Coverage Under Laws Prohibiting Discrimination in Employment (p. 49-56)
a. Who is an “employee”?
i. Pre-2003 Test
1. An employee
a. Accountant who had the title of “partner” but lacked authority usually
associated with partnership under ADEA
2. Not an employee
a. Doctor who contracted to perform medical services at hospital emergency
room under T7
b. Law firm partner who brought sex discrimination claim under T7
ii. Clackamas Gastroenterology Associates v. Wells (2003)
1. Facts  Bookkeeper brings action against medical clinic employer. D asserts that it
did not have 15+ employees for the 20 weeks required by the statute
2. Court  Element of CONTROL most important guidepost (remand)
a. Congress meant “employee” to describe the conventional master-servant
relationship as understood by common-law agency doctrine
i. Servant = person whose work is controlled or is subject to the right
to control by the master
b. Job title should not necessarily be used to determine If person is an
employee or a proprietor
c. If a shareholder-director is an employee depends on “all of the incidents of
the relationship * * * with no one factor being decisive”
d. Definition of Employer 
i. person or groups of persons who owns and manages the enterprise.
Can hire / fire, can assign tasks and supervise their performance. Can
decide how profits and losses of the business are to be distributed.
e. “Employment agreement” not determinative either
3. NOTE: HELD FOR ADA AND T7
iii. Why important?
1. 1st issue  Only Employees Can Bring Claims
a. whether an individual is an “employee” who may invoke the statutory
protections afforded to persons claiming unlawful employment
discrimination
2. 2nd issue  Statutory Minimums
a. purposes of determining whether an employer satisfies the 15- or 20employee threshold for coverage of the relevant antidiscrimination statute
iv. Auditors
1. Who are they?
a. Testers who pose as job applicants to determine if employers engage in
discriminatory hiring practices or to gather evidence of discriminatory
employment practices
2. Do they have standing?
a. 7th circuit  can sue under T7 but not under s.1981
b. 4th circuit  no standing because they have no suffered an injury
b. The meaning of “employer”
i. Generally
1. T7 / ADA Definition
a. “a person engaged in an industry affecting commerce who has 15 or more
employees for each working day in each of 20 or more calendar weeks in the
current or preceding calendar year”
i. Each working day determined by “payroll method” (Walters – 1997
S.Ct.)
1. Whether the employer has an employment relationship with
the individual on the day in question.
2. S.1981
a. No minimum number of employees required for coverage
3. ADEA definition
a. Same as T7 but 20 employees rather than 15
ii. Single Employer
1. Courts have not adopted uniform test / standard to see if a small employer with less
than 15/20 employees and its larger parent company or other affiliates with 15/20
or more employees constitute a single employer
2. Most courts have “integrated employer” test
a. Interrelation of operations
b. Common management
c. Common ownership
d. Centralized control of labor relations and personnel
3. 7th circuit developed their own test
a. If the parent company would be liable for the subsidiary employer’s debts,
torts, or contract breaches under the traditional standards for “piercing the
corporate veil”
b. If the enterprise split itself into smaller companies, “each with fewer than
the statutory minimum of employees, for the express purpose of avoiding
liability under the discrimination laws
c. If the “parent company might have directed the discriminatory act, practice,
or policy of which the employee of its subsidiary was complaining
iii. Individual Liability of Agents of Employers
1. Employer = “ANY AGENT” of the employer
2. Agent definition
a. Supervisory employee who has the authority to make personnel decisions
regarding hiring or firing employees or to otherwise set the terms and
conditions of employment for applicants and employees.
3. Statutes are silent on if agents are individually liable
a. 9th circuit says they are NOT liable in individual capacity (p. 55)
4. Individual liability under S.1981 – maybe (not much law)
iv. Temporary Employees and Employers
1. EEOC warns employers using individuals hired and paid by a staffing firm that the
workers “typically qualify as ‘employees’ of the staffing firm, the client to whom they
are assigned, or both.”
2. Lack of authority on this (Selmi)
3. Remedies
a. Statutory Provisions: Generally
i. Selmi notes
ii.
iii.
iv.
v.
vi.
vii.
1. Generally (except for punitive) the plaintiff has to prove their damages
2. Duty to mitigate damages
3. Unemployment doesn’t usually get deducted by sometimes does
Each of the federal statutes covered, except S.1981 has a specific provision on relief
S.1981
1. Compensatory and punitive damages available
T7 and ADA  same remedies
1. Includes, not limited to – reinstatement or hiring of employees, with or without back
pay or any other equitable relief
2. Special rule with ADA
a. Subject to “good faith” defense on accommodation claims
3. Civil rights act of 1991
a. Compensatory and punitive damages available
i. But only in disparate treatment cases not involved mixed-motives
ii. Caps the amounts based on employer’s workforce
ADEA  uses remedies from Fair Labor Standards Act
1. Legal and equitable relief, including judgments compelling employment,
reinstatement, or promotion
2. Permits awards of liquidated damages (double the back wages owed), which are
recoverable only for willful violations
Equal Pay Act (Amendment of the FLSA)
1. Both legal and equitable relief
2. Including reinstatement, promotion, and the “payment of wages lost and an
additional equal amount as liquidated damages”
a. Liquidated damages only for willful violations
Most frequent relief
1. Reinstatement and monetary damages
b. Basic Remedial Principles
i. Two basic principles
1. Compensatory  Make whole again
a. Ps are entitled to monetary compensation to remedy the economic harm
they have suffered in the past or may suffer in the future as a consequence of
the D’s unlawful employment discrimination
2. Deterrence  Rightful place theory of relief
a. Give successful Ps the “terms, conditions, or privileges” of employment they
would have had with the D but for unlawful employment discrimination
ii. “Presumptive Entitlement Rule” / Rebuttable Presumption (Moody and Franks)
1. Allows victims of unlawful employment discrimination to be awarded whatever
remedies are necessary to achieve rightful place and make-whole relief
2. “seldom overcome” (SCOTUS)
a. Trial courts must make findings of fact to justify denial of complete makewhole and rightful place relief
3. Burdens
a. During remedial phase – P has a relatively light burden of establishing
presumptive entitlement to a particular form of relief
b. Once P has met burden – D has the heavier burden of proof (burden of
persuasion and production) to demonstrate that the P should get no relief or
limited relief
c. Reinstatement
i. Definition
1. A restatement order in a discharge case (or instatement in a refusal to hire case)
a. Is an affirmative injunction directing the D to reemploy (or employ) the P in
the job or position that she had or would have had but for the discriminatory
conduct of the employer
ii.
iii.
iv.
v.
2. Equitable remedy whose appropriateness depends upon the discretion of the court
in the light of the facts of each individual case
Objectives
1. Recreates the employment relationship as it would have existed but for unlawful
employment discrimination
2. Prevents future economic loss to the P
3. Allows an employer to demonstrate good faith compliance with the law to other
employees
4. Prevents the employer from trying to get rid of employees, at any cost, who assert
their rights under laws prohibiting discrimination in employment
May be denied if employer can prove special circumstances
1. Court have deemed appropriate
a. When an “innocent employee” currently occupies the at-issue job and should
not be bumped (avoid domino effect)
b. When hostility or animosity between the P and the employer would make an
amicable and productive working relationship impossible
“Same decision” defense in mixed-motive cases
1. Congress has overruled the presumptive reinstatement rule where D proves the
“same decision” defense
“After-acquired evidence”
1. SCOTUS endorsed a strong presumption against reinstatement in “after-acquired
evidence” cases in which an employer leans that after dismissing an employee for
prohibited reasons that the worker had engaged in conduct that would have
justified the dismissal.
2. General rule
a. Ps in after-acquired evidence cases are NOT entitled to reinstatement, front
pay. Backpay should be calculated to end on the day the new evidence was
discovered.
d. Back Pay
i. Concept / Definition
1. Based on “make whole” principle to compensate victims for the economic losses
they have suffered from the date of the occurrence of the discriminatory act to the
date of the entry of judgment on liability or until the date the P finds comparable
employment
2. Employer can offer the person a job back to limit back pay
a. Used when they know the person will not take the job
ii. Dates
1. Beginning date  date of the occurrence of the discriminatory act
a. i.e. discharge, refusal to hire, or failure to promote
2. Cannot extend to more than 2 years prior to the filing date of a charge
3. Potential cut-off dates
a. Date on which the P’s income from a new job exceeds the income she would
have received “but for” the discrimination
b. Date P removed herself from the labor market
c. Date of normal retirement
iii. Mixed-Motive cases
1. Cannot be awarded if the D carries its burden of proof in showing that the same
decision would have been made despite the discrimination
iv. Elements to compute back pay
1. Include, but not limited to:
a. Wages, salary, bonuses, commissions, raises
b. Fringe benefits – sick pay, vacation pay, pension, health benefits, stock
purchase benefits
i. For health if you were D you could argue they should only get lost
costs and not premiums
v. Statutory duty to mitigate damages (for T7 and ADA)
1. Duty is not an onerous burden
a. P only must try to find a “substantially equivalent” position OR
b. Use “reasonable diligence” to try to find a job that is the same or
substantially equivalent in responsibilities, working conditions, and status to
the job discriminatorily denied
2. Failure to do this is an affirmative defense on which the employer bears the burden
of proof – both the burden of production of evidence and burden of persuasion
vi. Collateral sources
1. i.e. social security, unemployment compensation, welfare, disability income
2. some courts say these may not be used to limit back pay
vii. Interest
1. Pre-judgment interest
a. Intended to compensate the P for the loss of opportunity to invest her wages
at the going rate of interest
b. Trial courts have discretion to award this as part of back pay against private
employers
2. Post-judgment interest
a. Mandatory under federal law
b. Rate of interest is tired to federal interest rates
e. Front Pay
i. Concept / definition
1. When reinstatement is not feasible (though reinstatement is preferred)
a. Generally not entitled to both!
b. Much more common than reinstatement because people don’t want to go
back and the employer doesn’t want the person
2. The difference (after proper discounting to present value) between what the P
would have earned in the future had he been reinstated at the time of trial and what
he would have earned in the future in his next best employment
ii. Statute
1. Not mentioned BUT
2. Overwhelming judicial opinion is that it can be awarded under
a. T7, ADEA, ADA, and S.1981
i. SCOTUS upheld it’s okay in T7
iii. Equal Pay Act
1. Generally not awarded under because back pay and an injunction to equalize wages
usually provides adequate relief.
iv. Elements to compute
1. Generally same as back pay
v. ADEA
1. Usually the biggest part of the award in age discrimination cases
2. If willful discrimination – get double!
vi. Mixed-motive cases
1. Cannot be awarded if the D prevails on its same-decision affirmative defense
vii. Generally limited to two years
1. In this economy – might be four years
f. Compensatory and Punitive Damages
i. Generally
1. Added with the Civil Rights Act of 1991
2. Can get both of these under T7
3. Surprising lack of authority regarding when you’re entitled to them (Selmi)
4. Courts split on if they can be recovered in class actions
a. Punitive damages don’t really apply in disparate impact (no malice)
5. Federal, state, and local governments
a. are exempt from punitive damages
ii.
iii.
iv.
v.
6. ADA  Employers are not on the hook for punitive or compensatory damages IF
they make a good-faith effort to accommodate (Selmi)
a. No damages – just backpay
b. Employer has an incentive
c. Most employers don’t take advantage of this because it will acknowledge the
person is disabled (the most contentious part of many cases)
Caps
1. Has caps according to how many employees the employer has
a. 15-100 employees: $50k
b. 101-200 employees: $100k
c. 201-500 employees: $200k
d. 500+ employees: $300k
2. Juries
a. Not informed of the caps on damages, but a court must reduce the amounts
awarded if their award goes over
3. Caps apply to the aggregate of all claims brought by a single P, not to each claim
a. i.e. means that the total for BOTH compensatory and punitive damages
cannot exceed the caps for each P
4. NO caps for S.1981
a. Even if joined with another claim
b. But can’t get double damages with T7
Compensatory Damages
1. Generally
a. Defined to include “future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, etc.”
b. Notes from Selmi
i. Independent of wages
ii. Generally must be proved
2. EEOC says the following are recoverable
a. Injury to character and reputation
b. Injury to professional standing
c. Loss of health
d. Aggravation of preexisting emotional difficulties if further deterioration is
cause by the employer’s conduct *i.e. victim of incest who brings a sexual
harassment claim)
3. Note from Selmi
a. Should file EVERY TYPE OF RELIEF so you can capture everything you can
get
b. Otherwise – malpractice
Punitive Damages
1. May be recovered against the D if the P proves
a. That the D engaged in an unlawful employment practice “with malice or
with reckless indifference to the federally protected rights” of the P
b. More egregious than intentional discrimination
i. Must have “guilty” knowledge that “may be acting in violation of
federal law”
2. Factors to consider in the amount
a. The nature and severity of the discriminatory conduct
b. Duration and frequency of the conduct
c. Financial status of the employer (net worth)
The Requirement of Employer Vicarious Liability for an Award of Punitive Damages
1. Must be some basis for imputing liability to the employer for the award
2. Restatement (2nd) on agency
a. Punitive damages can be properly awarded against a master or other
principal because of an act by an agent IF BUT ONLY IF:
i. The principal authorized the doing and manner of the act OR
ii. Agent was unfit and the principal was reckless in employing him OR
iii. Agent was employed in a managerial capacity and was acting in the
scope of employment OR
iv. The principal or managerial agent of the principal ratified or
approved the act
g. Liquidated Damages
i. Under ADEA and FLSA (which covered the Equal Pay Act)
1. Liquidated damages means DOUBLE unpaid wages, and these damages are viewed
as a substitute for punitive damages
ii. Recoverable in ADEA if the evidence supports a finding of willful violation
1. Test = requiring proof that the employer “knew or showed reckless disregard”
whether the conduct was prohibited by the ADEA standard
2. If an employer acts unreasonably, but not recklessly  NOT willful
h. Taxation of Awards
i. Most monetary awards recovered in employment discrimination cases
1. are to be treated as taxable income (Burke and post-Burke developments)
ii. Exception: Attorney’s fees
1. Must be reported as income but attorneys fees themselves are exempt for P
2. Attorney must report them (not exempt for the attorney)
i. Attorney’s Fees
i. Entitlement to Fees
1. Exception “private attorney general rule”
a. empowers courts to impose the costs of litigation and attorney’s fees on the
losing party in litigation that is deemed to vindicate important public policy
2. Plaintiffs are entitled to attorney’s fees if they are the “prevailing party”
a. Entitled to attorneys fees in T7, ADA, ADEA, FMLA
b. Why? Policy reason
i. Want to encourage attorneys to take these cases
c. Courts CAN appoint attorneys for T7 cases, sometimes they do
3. P prevails when
a. Actual relief on the merits of the claim materially alters the legal
relationship between the parties by modifying D’s behavior in a way that
directly benefits P
b. Court find that Ps prevail when P has earned more than mere nominal
damages or the relief awarded has an important impact on statutory rights
ii. Standards for an Award of Fees
1. Reasonable Fee  Lodestar Method
a. Number of hours reasonably expended on the litigation TIMES
i. Must not be excessive, redundant, unnecessary
b. A reasonable hourly rate
i. Prevailing market rate standard
1. Those rates prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience and
reputation.
2. Evidence needed to support the fee
a. Important to keep contemporaneous time records
b. May require affidavits and more evidence if attorney doesn’t have a fixed
rate – this is sometimes done by experts
3. Fee enhancements
a. Truly extraordinary results in a controversial case
iii. Attorneys usually take a percentage of other awards
j. Note: Insurance Against Employment Discrimination Claims
i. Some insurance policies require a formal complaint to be filed
ii. “employment practices liability insurance”
1. Huge growth after T7
iii. Still questions if you can insure against the punitive damages
k. Note: Rates in Court (Selmi)
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
18% of cases dismissed
49% of cases have early
6% of cases go to trial
33% success at trial
1. Versus success rate for civil litigation cases – 50%
2. Employment cases have also been lower
3. Juries you generally do better, but not always
4. Not clear why lower success rate
5. Age discrimination plaintiff’s do the best
6. Race cases tend to have the lowest success rate
7. … and a lot of these get reversed on appeal
8. Selmi: thinks courts are hard on employment discrimination cases
Settlement
1. Median settlement  $30k
2. Fairly low
3. 75% of settlements out of 1000 cases were $90k or less
4. Employers have an irrational fear of high jury verdicts
5. Jury awards are higher but not many of them
6. Large firms who handle cases try to do class-action cases
7. A lot of employers pay way too much for their defense
Data
1. Hard to get good data because most cases aren’t published
2. Many cases that are available are “unpublished”
Early settlements tend to be very small
Juries
1. Disparate impact cases don’t get a jury trial but all the other cases do
Chapter 3: Disparate Treatment
1. Introduction / Generally
a. Meaning and Theories of “Discrimination”
i. No statutory definitions of “discriminate”
1. Congress left responsibility to federal courts
ii. Definitions (from Teamsters v. US – 1977)
1. Disparate Treatment
a. Employer treats some people less favorable than others because of their
race, color, sex, religion, or national origin.
b. Proof of discriminatory motive is critical, although it can sometimes be
inferred
c. Key Case  McDonnell Douglas
2. Disparate Impact
a. Practices that are facially neutral in their treatment of different groups but
in fact fall more harshly on one group than another and cannot be justified
by business necessity
b. Proof of discriminatory motive is not required
c. Key Case  Griggs
iii. Most cases brought under disparate treatment
b. Disparate Treatment – Generally
i. Key question  was P the victim of intentional discrimination?
1. Job for the fact-finder
2. Fact finders determination only set aside if clearly erroneous
ii. Factual inquiry  if D treated less favorably due to their protected class
iii. May prove a claim through
1. Direct Evidence OR
a. Definition – no inferences required
b. When an employer’s policy on facially discriminatory
c. Example – hooters policy to not hire men
2. Circumstantial Evidence
a. when jury has to draw an inference of discrimination or non-discrimination
b. Must convince the trier of fact
c. Most Ps can only rely on this
d. Purpose of McDonnell Douglas framework is to assist the factfinder in
deciding the “elusive factual question of intentional discrimination” when a
P uses circumstantial evidence
i. McDonnell Douglas  assumes that a single motive, lawful or
unlawful (but not both) is the reason for an adverse employment
action from which a P seeks relief
1. Classic paradigm
a. P: relying on circumstantial evidence, tries to prove
that an unlawful discriminatory motive is the real
reason for the employer’s decision
b. D: seeks to convince the factfinder that is decision
was based on a legitimate, nondiscriminatory reason
iv. Three factual and analytic schemes
1. Single-motive / pretext claims
2. Mixed- or dual-motive cases
3. Pattern or practice cases
v. Classic example
1. When employers have a facially discriminatory policy or statute
a. Employer has limited defenses here
c. Critical Race Theory (CRT)
i. Definition  Racism is endemic, rather than a deviation from American norms
ii. Starts with a number of basic insights
1. Racism is normal, not aberrant in American society
2. Because racism is an ingrained feature of our landscape, it looks ordinary and
natural to persons in the culture
3. Formal equality – rules and laws that insist on treating blacks and whites alike
a. Can thus remedy ONLY the most extreme and shocking forms of injustice
b. Can do little about the business-as-usual forms of racism that people of color
confront every day and that account for much misery, alienation, & despair
iii. Rejects 3 mainstream beliefs
1. That “blindness” to race will eliminate racism
2. Racism is a matter of individuals, not systems
3. That one can fight racism without paying attention to sexism, homophobia, and
other forms of oppression or injustice
iv. Two explanations with psychology
1. Human mind defends itself against discomfort or guilt by denying or refusing to
recognize those ideas, wishes, and beliefs that conflict with what the individual has
learned is good or right
2. Culture, like the media, parents, peers, and authority figures – transmits certain
beliefs and preferences. Because the beliefs are so much a part of our culture, they
are no experienced as explicit lessons and they seem like part of the normal
perceptions of the world.
v. Selmi Notes
1. Most prominence in the 1990’s
2. Response to traditional liberal thinking
3. Developed by AA scholars who felt that prior work done on race was done by whites
4. This is still relevant to proving cases
5. Proof of discrimination is too focused on decision-makers
6. Focused on systemic discrimination
a. Pervasive but hard to document
7. Challenge the theory that discrimination is aberrational
a. That if we just bring a lot of cases, it will go away
b. Some say it’s impossible – it’s embedded
8. Perspective matters
a. AA/white tend to differ on when they would infer discrimination
9. Not “conscious” (he doesn’t like that term)
a. We used to think of discrimination as someone who knew what they were
doing
b. He prefers term SUBTLE discrimination
i. May not be aware that it’s discriminatory
10. Implicit discrimination harder to prove
2. Disparate Treatment Claims: Pretext / Single Motive Foundations
a. FULL FRAMEWORK  McDonnell Douglas, Furnco, Burdine
i. Prima Facie Elements for P (Employee) – Initial Burden [ preponderance of the evidence:
NOT ONEROUS]
1. 1 – Belongs to a protected group
2. 2 – Applies and qualify for a job which the employer was seeking applicants (hiring)
a. Doesn’t have to be BEST qualified – minimally qualified
3. 3 –Despite qualifications, rejected
a. Didn’t get it and someone else did
i. Shows job open / vacancy
b. After his rejection, position remained open and the employer continued to
seek applicants from persons of complainant’s qualifications
4. 4 – Similarly situated person outside the protected class who was treated better
(Selmi)
a. HARDEST element
b. If you can’t find it, your case may be dismissed
c. Courts trying to make it harder
i. Many circuit courts have added this as an element (p. 111)
5. Note: This test starts a claim because it creates an REBUTTABLE PRESUMPTION
that you’ve been unlawfully discriminated against [Burdine]
a. Because knocks out the 2 main reasons people don’t get hired – lack of
qualifications or the absence of a vacancy
ii. Burden Shift  D (Employer)
1. Must articulate some legitimate, nondiscriminatory reason for the employee’s
rejection
a. No burden of persuasion [Burdine]
i. D must show through evidence the reason for P’s rejection
ii. Explanation must be legally sufficient to justify a judgment for the D
b. Does not need to maximize minority opportunities, only must be
nondiscriminatory [Furnco]
iii. Burden Shift  P (Employee)
1. Must prove by a preponderance of the evidence that employer’s reason was
PRETEXT (ie a cover up) for a discriminatory decision
a. Example – if white people who protested were retained or rehired in
McDonnell Douglas
b. Must be pretext for discrimination and not just pretext or the employer was
just factually wrong (thought you were lying when you weren’t)
b. Cases that Framework Came From
i. McDonnell Douglas Corp. v. Green (1973)
1. Facts  P was black male laid off in the course of a general reduction in work force.
Protested that his discharge and staged a “lock-in.” P applied again for posted job
and D said they did not hire him because of his participation in the lock-in.
2. Court  Creates Prima Facie test and burden scheme. Remands. Says nothing in T7
compels employer to hire someone who has engaged in unlawful activity against it.
ii. Furnco Construction Corp. v. Waters (1978)
1. Facts  3 black bricklayers who sought employment with D. 2 were not offered a
job and 1 was but only after a long time. D only hired people the hiring manager
knew to be experienced and competent the skill. D said it was not economically
feasible to train people.
2. Court  Court of Appeals applied wrong burden to D. Remand.
a. Employer has no duty to adopt a hiring procedure which maximizes
minority employees  Only has to be nondiscriminatory
iii. Texas Dept. of Comm. Affairs . Burdine (1981)
1. Facts  P said that failure to promote and then terminate her was because of
gender discrimination.
2. Court  Court of Appeals erred in giving D higher burden. Remand.
a. The ultimate burden of persuading the trier of fact that the D intentionally
discriminated against the P remains at all times with the P
b. D does not need to persuade the court that it was actually motivated by the
proffered reasons – just that it raises a genuine issue of fact as to whether it
discriminated against the P. 2-part standard.
i. D must show through evidence the reason for P’s rejection
ii. Explanation must be legally sufficient to justify a judgment for the D
c. Note: Breaking Down the Elements
i. The application
1. General rule: failure of P to apply for job is fatal to establish prima facie case
a. Possible Exceptions (Lockridge – 8th Cir. 2003)
i. When D has no formal application process
ii. Where P is unaware of the opportunity
iii. Where the employer’s employment promotions policy is “informal
and subjective” and “vague or secretive”
iv. When P has made “every reasonable attempt to convey his interest
in the job to the employer”
v. When D fails to establish a clear personnel procedure for promotions
b. Futile Gesture Doctrine – EXCEPTION (Teamsters – 1977)
i. Examples when failure to apply may be excused
1. if employer has a reputation for refusing to employ members
of a protected group
2. if an employer has a sign reading “white only” on the hiringdoor office
ii. Qualification element
1. Most courts only require that P establish that she satisfies the minimum
qualifications for the position
iii. Must employment opportunity be awarded to someone outside of P’s protected class?
1. No (O’Connor – ADEA case)
iv. Similarly situated person
1. Many circuit courts have this as a 4th element
2. Several courts say that this is not required element of proof
a. But is a means of proving discrimination
3. How to determine?
a. Nearly identical
b. Directly comparable in all material respects
c. Reasonably close resemblance of the facts and circumstances of the Ps case
d. Material from Notes: Other Types of Claims
i. Types of Claims
1. Promotions  proceed the same as hiring claims
a. Applied and was qualified for the position
b. Was rejected despite the qualification
2. Demotions
a. Employer replaced P with someone of comparable qualifications
b. Similar to a discharge
3. Discharges
a. Vast majority of claims
b. Area where finding a similarly situated person who was treated differently
proves particularly significant
c. Reductions in force
i. Usually requires proof that P was singled out for impermissible
reasons
ii. Litigation Strategy
1. At close of P’s evidence, D can challenge the sufficiency of the P’s prima facie case by
a motion for judgment as a matter of law
iii. Pretext and Honest Belief Defense
1. Most common way to show pretext  similarly situated person got better treatment
2. Other ways (Johnson v. Kroger, 6th cir. 2003)
a. Proffered reason
i. Has no basis in fact
ii. Did not actually motivate the D’s challenged conduct
iii. Was insufficient to warrant the challenged conduct
b. Weakness, implausibility, or contradictions in employer’s reasoning
3. Honest Belief Rule
a. An employer’s good-faith, mistaken belief in the correctness of its
employment decision is not the equivalent of pretext
i. Example – if employer fires employee for being late, but the
employee is able to show he was on time
e. Pretext-Maybe
i. St. Mary’s Honor Center v. Hicks (1993)
1. Background: critical decision, 5-4, had to pick a side (P or D). nothing in statute or
precedent was helpful
2. Facts  Black man was working as a correctional officer. New supervisor hired who
he didn’t work well with. Later demoted and then discharged.
3. Court Once D responds by offering evidence of the reason, the fact finder must
decide if the rejection was discriminatory. MUST believe the P’s explanation. Not
enough to disbelieve the employer.
a. Pretext-Maybe Rule
i. Holds that the prima facie case combined with sufficient evidence for
a reasonable fact finder to reject the employer’s evidence of a
legitimate, nondiscriminatory reason permits, but does not require,
the fact finder to find that the employer’s decision was based on a
discriminatory or unlawful motive
b. Dissent – Souter
i. Criticized majority for adopting a rule that benefits employers who
have been found to have given false evidence because it allows
employers to escape liability for their lies
ii. Reeves v. Sanderson Plumbing Products, Inc. (2000)
1. Clarified the standard of proof on pretext, but mainly repeated Hicks; 9-0 decision
2. Emphasized the importance of proving pretext
a. Proof that D’s explanation is unworthy of credence is only one form of
circumstantial evidence that is probative of intentional discrimination, and it
may be quite persuasive.
iii. McDonnell Proof Structure
1. 1 – Ps evidence of prima facie case
2. 2 – D’s articulated “legitimate nondiscriminatory” reason(s)
3. 3 – P’s evidence to establish pretext
iv. Pretext and Juries (Selmi)
1. Important to explain to a jury that pretext is how we prove discrimination other
than direct evidence
a. If you are saying that pretext is not enough, then you ARE saying that you
need direct evidence
2. These structures mean more for summary judgment, not so much for jury trials
v. When Pretext is Not Enough (Rare) (Laxton - 5th Cir. 2003)
1. When the record conclusively reveals some other nondiscriminatory reason for the
employer’s decision OR
2. When the P creates only a weak issue of fact as to whether the employee’s reason
was untrue and there was abundant and uncontroverted evidence that no
discrimination occurred
vi. “Me Too” Evidence
1. SCOTUS said evidence of discrimination by other supervisors is neither
automatically excluded nor automatically admissible
a. Instead must meet the relevance test generally applicable to evidence
f. Independent Notes
i. The Perjurious Client and a Lawyer’s Ethical Obligations (P. 130)
1. Perjury standard: A witness commits perjury if
a. He testifies under oath about a material fact
b. His testimony is false
c. He knows it is false
d. His testimony is voluntary and intentional and not the result of confusion,
mistake, or faulty memory
2. Prosecution for perjury is a low priority for prosecutors
3. Problem for any attorney
a. Ethical rules
b. Procedural rules (FRCP)
ii. The Same-Actor Defense
1. Sometimes person who hires is also the person that fires
2. Same actor inference
a. Gives the employer an inference that the discharge was not motivated by
discriminatory animus IF:
i. Implicit assumption that when the same supervisor both hired and
fired an employee AND
ii. The period between hiring and firing is relatively short
1. Some say up to 3 years
3. Majority of courts adhere to this
a. Some say matter for the jury to consider
b. Some say neither a mandatory presumption nor a mere possible conclusion
for the jury to draw on
iii. Reverse Discrimination Claims (p. 133)
1. Law uneven on this
2. Gets complicated to apply framework
3. Disparate Treatment Claims: Mixed Motive & Civil Rights Act of 1991
a. Mixed-Motive Cases and the Civil Rights Act of 1991
i. Price Waterhouse v. Hopkins (1989)
1. Facts 
2. Court 
a.
ii. Desert Palace, Inc. v. Costa
1. Facts 
2. Court 
a.
iii. Note: The “Cat’s Paw” Theory
1.
4. Retaliation (p. 159-187)
a.
b. Introduction
i.
c. Analytical Framework for Retaliation Claims
i.
d. Scope of Statutorily Protected Activity
i. Crawford v. Metropolitan Government
1. Facts 
2. Court 
a.
ii. Clark County Schools District v. Breeden
1. Facts 
2. Court 
a.
e. The Meaning of “Discrimination Against” – A Materially Adverse Action
i. Burlington Northern & Santa Fe Railway v. White
1. Facts 
2. Court 
a.
5. Statistical Evidence and Pattern-or-Practice Cases (p. 195-214)
a.
b. Teamsters v. United States
i. Facts 
ii. Court 
1.
c. Hazelwood School District v. United States
i. Facts 
ii. Court 
1.
d. Note: Class Certification in Employment Discrimination Cases
i.
Chapter 4: Disparate Impact
1. Introduction
a.
2. The Theory of Disparate Impact
a. Objective Criteria
i. Griggs v. Duke Power Co.
1. Facts 
2. Court 
a.
ii. Note: The Legitimacy of the Disparate Impact Theory
1.
b. The Bottom-Line Defense
i. Connecticut v. Teal
1. Facts 
2. Court 
a.
c. Griggs Revisited
i. Wards Cove Packing Co. v. Atonio
1. Facts 
2. Court 
a.
3. The Civil Rights Act of 1991 and Contemporary Disparate Impact Doctrine
a.
b. Lanning v. SEPTA (Lanning I)
i. Facts 
ii. Court 
1.
c. Lanning v. SEPTA (Lanning II)
i. Facts 
ii. Court 
1.
4. Remedying the Disparate Impact of Selection Procedures
a.
b. Ricci v. DeStefano
i. Facts 
ii. Court 
1.
(end of syllabus one)
Chapter 7: Discrimination Because of Sex
1. Introduction and Historical Overview
a. History
i. Inclusion of sex in civil rights act of 1964
1. True that sex discrimination was not part of the original bill
2. Was introduced as a joke but then included and lobbied for as a concerted effort
a. Then court always took those cases very seriously
ii. Equal pay act PRECEEDED T7 and it was JUST about sex discrimination (1963)
b. Societal Issues Today
i. Professions
1. Most teachers are women
2. Police – 25% women
3. Firefighters – overwhelmingly male
4. Most law firms – men
ii. Women and child-rearing
1. Has gone from women doing 3 times as much work to 2 times
2. Women tend to be the one who organize play dates
3. Women do indoor work, men do outdoor work
iii. On average – women paid 80% to what men are
1. Misleading
a. Men and women usually start out with the same starting salaries and then
disparities develop over time – some from work patterns but primarily
because of different labor force attachment of women
i. Tend to leave the workforce when they have children. But not all
women and not for long periods of time.
2. However – when women demonstrate that they will not be leaving the workforce,
their salaries equalize
3. Men drink more, get hurt more, sexual harassment more, change jobs more, more
absent from work
a. Don’t seem to be penalized for all those things
c. Law treats sex differently from race
i. Con Law concept – intermediate scrutiny for sex, strict scrutiny for race
ii. Law recognizes and permits some differences
d. City of LA v. Manhart (1978 – SCOTUS)
i. Facts  Because women live longer, made to pay more into a pension plan.
ii. Court  Violation of T7. Women are getting paid less.
2. The Bona Fide Occupational Qualification Defense to Sex Discrimination
a. Definition and Defenses
i. T7: Section 307(e)(1) - Definition
1. … 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 enterprise ***
a. Essence = central mission of the employer’s business (Johnson Controls)
2. NOTE: Race & Color not included!!
ii. This is a very narrow exception and is very hard to satisfy.
1. Easier to satisfy for age than for sex
a. Age can have a rational basis they are more willing to accept
i. As long as you can show actual difference in performance
iii. Essence of the Business
1. EEOC Opinion (1974) Example
a. Said Chinese restaurant can hire Chinese waiters only if speaking Chinese
was necessary in the job, not just for “authenticity”
2. Chambers v. Omaha Girls Club, Inc. (8th Cir. 1987)
a. Facts  Club said single pregnant women cannot be employees because
would frustrate club’s goal to prevent teen pregnancies
b. Court  found rule justifiable as BFOQ
iv. Framework test (from E&E)
1. To successfully invoke the BFOQ defense, employer must establish:
a. That all or nearly all members of the excluded sex cannot perform a
particular job function (or that it is highly impractical to make individualized
determinations of fitness); AND
b. That this job function is reasonably necessary to the essence and the
defendant’s business operations.
v. Not defenses
1. Client preference
a. Examples
i. Hooters: Women needed to “create ambiance”
ii. Home Depot: customers want males to help them on the floor
iii. Southwest: customers want women in hot pants or else go out of
business. BFOQ argument failed.
b. Psychological needs are tangential– not needed for job
2. Cost – AKA Cheaper to Discriminate
a. If this would work – would have to have evidence of serious economic harm
that would cripple survival of business entirely (ie 3rd party lawsuits would
bring company down)
3. Foreign Relations
a. 1971 EEOC Decision
i. “the need to accommodate racially discriminatory policies of other
nations cannot be the basis of a valid BFOQ exception.”
vi. Safety Element
1. Need to have experts testify
vii. Limited to cases of intentional discrimination – disparate treatment
b. Note: A Privacy-Based BFOQ
i. Where BFOQ Works = Privacy Concerns
1. Only area where customer preference is legitimate
ii. Health Care Providers
1. Nurses and maternity wards – some employers will only allow women
2. Allow patients in hospitals to make requests
3. Sex is BFOQ for aides who feed, clothe, and bathe patients in psych hospital
(Jennings)
iii. Locker room attendants, massage therapists, prison workers
iv. EEOC v. Sedita (ND Ill. – 1993) Test
1. An employer asserting a privacy based BFOQ defense must satisfy a 3 part test.
Employer must establish that
a. 1 – there is a factual basis for believing that hiring any members of one sex
would undermine the essence of the business
b. 2 – the asserted privacy interest is entitled to protection under the law
c. 3 – no reasonable alternatives exist to protect the privacy interests other
than the gender based hiring policy
c. Sex Plus Discrimination
i. When sex is one factor in an employment decision in addition to some other factor
ii. Phillips v. Martin Marietta (1971 – SCOTUS)
1. Facts  Employer refused to employ women with preschool children yet men with
preschool children were not disqualified
2. Court  This is sex discrimination because only disqualifying women who have
preschool children. Does not matter that only some women are affected.
3. Sex was one factor in ADDITION to having preschool aged children
d. BFOQ – SCOTUS Cases
i. Dothard v. Rawlinson (1977 – SCOTUS)
1. Disparate Impact
a. Facts  P argued that Alabama’s height and weight requirements for
correctional counselors in state prison’s violated T7 because of disparate
impact on women
b. Court  Agreed with P. Said no evidence that requirements were job-related
2. Disparate Treatment
a. Facts  P challenged requirement that guards who work with inmates in
the state’s sex-segregated maximum-security correctional facilities had to be
the same sex as the inmates. D said it was a BFOQ.
b. Court  Approves of D’s BFOQ defense.
i. There is a basis for expecting sex offenders who have criminally
assaulted women in the past to want to do so again if access to
women were established in the prison.
ii. Also “real risk” that other inmates, deprived of a normal
heterosexual environment would assault women.
iii. Employee’s “very womanhood” would thus directly undermine
her capacity to provide security that is the essence of the job.
ii. International Union, United Automobile Workers v. Johnson Controls (1991- SCOTUS)
1. Facts  D makes batteries and shown there could be birth defects. D institutes
policy excluding women with childbearing capacity from lead-exposed jobs. D
argues 3rd party safety exception.
2. Court  Violation of T7
a. Policy is facially discriminatory because it only requires women to produce
proof that she is not capable of reproducing. Doesn’t apply equally to men.
i. Despite evidence that lead also bad for male reproductive system
ii. Pregnancy Discrimination Act – same as explicit sex discrimination
1. Cannot treat all employees as potentially pregnant
2. Unless pregnant employees differ from others “in their
ability or inability to do work” they must be “treated the
same” as other employees “for all employment-related
purposes.”
b. BFOQ is written narrowly and does not apply to “essence” of battery making
i. Unconceived fetuses not customers or 3rd parties whose safety is
essential to the business of battery manufacturing.
1. Safety exception is limited to instances in which sex or
pregnancy actually interferes with the employee’s ability to
perform the job.
a. Safety decision best left to the mother
ii. BFOQ and PDA prohibit an employer from discriminating against a
woman because of her capacity to become pregnant unless her
reproductive potential prevents her from performing the duties of her
job. Discrimination here because fertile women can do job as good
as anyone
Chapter 8: Discrimination Because of Pregnancy and Family
Responsibilities
1. The Pregnancy Discrimination Act (PDA)
a. PDA passed in 1978 – amended T7
b. Text – 42 USC s2000e(k)
i. Made clear that sex discrimination aka “because of sex” and “on the basis of sex” INCLUDES
pregnancy discrimination:
1. “include, but are not limited to, because of or on the bass of pregnancy, childbirth, or
related medical conditions” AND
2. “women affected by pregnancy, childbirth, or related medical conditions shall be
treated the SAME for all employment-related purposes *** as other persons not so
affected but similar in their ability or inability to work.”
ii. Requires this to be like any other type of discrimination. Don’t have to treat employees any
different or better than non-pregnant employees.
c. Disparate Claims not possible (book wrong)
i. If successful, it would require employers to restructure their employment practices.
1. Note: you always want your claims to be disparate treatment if they can be
d. Male dependent Health Benefits
i. Newport News Shipbuilding & Dry Dock Co. v. EEOC (SCOTUS – 1983)
1. Facts  Female employees given pregnancy benefits. Male employees complained
that their wives not equally covered.
2. Court  Violation of T7. Protection given to married men is less comprehensive
than the protection it affords married female employees.
e. Retirement Benefits
i. AT&T Corp. v. Hulteen (2009 – SCOTUS)
1. Facts  female employees and retirees whose post-PDA pensions were lower
because of pre-PDA company policy which made maternity leave personal leave
2. Court  Bona fide seniority system exception – not a violation of T7
a. Exemption allows systems that apply different standards of compensation
“provided that such differences are not a result of an intention to
discriminate”
f. Preferential Treatment of Pregnant Workers
i. California Federal Savings & Loan Association v. Guerra (1987 – SCOTUS)
1. Facts  Employee complained that unpaid maternity leave was unfair preferential
treatment and a violation of the PDA
2. Court  CA statute requiring employers to grant unpaid maternity leave and
reinstatement rights to pregnant employees it not preempted by the PDA.
a. PDA is a “floor beneath which pregnancy disability benefits may not drop –
not a ceiling above which they may not rise.’
g. The Meaning of “Discrimination on the Basis of Pregnancy”
i. Troupe v. May Department Stores Co. (7th Cir. – 1994)
1. Facts  P was saleswoman at Lord & Taylor put on probation for excessive
tardiness (due to sickness related to pregnancy). One day before her maternity
leave was to begin she was fired. P heard immediate supervisor say she was fired
because they thought she would not come back to work after birth of baby.
2. Court Not a T7 violation
a. P had no evidence that would infer she was a victim of discrimination
b. The PDA does not require employers to offer maternity leave or take other
steps to make it easier for pregnant women to work.
c. Employers can treat pregnant women as badly as they treat similarly
affected but nonpregnant employees.
d. PDA requires employer to ignore an employee’s pregnancy, but not her
absence from work, less the employer overlooks the comparable absences of
nonpregnant employees.
3. Alternative Arguments Possible
a. They should have fired her a long time ago if they were concerned with her
absences. She had a good theory but not developed.
h. Anticipatory Actions (7th Cir.)
i. Employer cannot take anticipatory action unless it has a good faith basis, supported by
strong evidence, that the normal inconveniences of an employee’s pregnancy will require
special treatment.
i. Evidence of Discrimination
i. May point to similarly situated nonpregnant employee who was treated differently (4th
element of a prima facie case)
ii. May include comments made by supervisors or others in the workplace (turns on if they
have discriminatory animus or are “stray remarks”
j. Standing under PDA
i. Husband can have standing to sue because only a man can be discharged for the pregnancy
of his spouse
ii. Nonpregnant employee fired when employer thought she was pregnant
2. Discrimination Against Caregivers
a. Family Responsibility Discrimination
i. Definition
1. FRD is employment discrimination against people based on their caregiving
responsibilities – whether for children, elderly parents, or ill partners. FRD includes
both “maternal wall” discrimination – the equivalent of the glass ceiling for mother –
and discrimination against men who participate in childcare or provide case for
other family members.
2. When an employer treats an employee with caregiving responsibilities based on
stereotypes about how the employee will or should behave, rather than on that
employee’s individual interests or performance, it has engaged in FRD.
ii. Generally
1. No special body of law – just a group of cases (disparate treatment)
2. Against parents, almost always against mother for their child care responsibilities
3. An employer is NOT required to SPECIALLY ACCOMMODATE child-rearing needs.
4. An employer cannot deny leave requests for child-rearing responsibilities and grant
others, for example, attend sporting event or care for elderly relative.
5. 400% increase in FRD cases from 1996 to 2005
6. Men also filing complains – growing
a. Most common reason because of taking leave to be a caregiver
iii. Sex Plus Discrimination
1. Based on discrimination against subclasses of women, distinguished not simply by
sex but by an additional characteristic such as weight, marital status, or parental
status  When sex is one factor in an employment decision in addition to some
other factor
a. Not all members of a disfavored class are discriminated against, just some
i. Subclass of discrimination
2. Phillips v. Martin Marietta (1971 – SCOTUS)
a. Facts  Employer refused to employ women with preschool children yet
men with preschool children were not disqualified
b. Court  This is sex discrimination because only disqualifying women who
have preschool children. Does not matter that only some women are
affected.
c. Sex was one factor in ADDITION to having preschool aged children
3. Chadwick v. Wellpoint, Inc. (1st Cir. 2009)
a. Facts  P applied for and denied promotion and had more experience and
better reviews than the other finalist. At time P was mom of 11 year old son
and 6 year old triplets. P’s husband was a stay-at-home Dad.
i. P says D discriminated against her because of the sex-based
stereotype that mothers, particularly those with young children,
neglect work duties in favor of family obligations.
ii. Several comments from supervisors “bless you”, “you have a lot on
your plate.”
b. Court  Possible violation of T7, remand to jury
i. Employer acting on stereotypical beliefs regarding womens’ time
1. This assumption is sex discrimination
ii. Jury could reasonably determine that a sex-based stereotype was
behind employer’s denial of a promotion. i.e. they didn’t think that a
mother of four would be able to give all to her job.
b. The Family Medical Leave Act
i. Does not modify or affect any state or federal discrimination laws
ii. Definition / Parameters – 29 USC 2612(a)
1. Requires covered employers to provide an eligible employee with up to 12
workweeks of leave during any 12 month period because of
a. The birth of the employee’s child and attendant child care
b. The placement of a child with the employee for adoption or foster care
c. A serious health condition of the employee’s spouse, son, daughter or parent
requiring the employee’s care OR
d. A serious health condition that makes the employee unable to perform the
functions of the job
i. This means at least 3 days off or 2 trips to the doctor
2. 2008 Amendment
a. Provides special extended leave of up to 26 weeks in a year for family
member of individuals injured on active duty in the armed forces where the
service member needs special care.
3. Only applies to employers of 50 or more in size
4. Covers employees who have worked for at least one year for an employer
iii. Leave already provided by employer
1. Does not extend leave already provided by an employer
2. Employer may elect, or employee may require, that paid leave already offered by the
employer be substituted for all or part of FMLA leave
iv. Employee requirements
1. Employee taking leave must provide employer with 30 days notice if leave is
foreseeable, otherwise must provide such notice as is practicable.
v.
vi.
vii.
viii.
2. Must provide sufficient info so that employer knows leave is being requested for an
FMLA-covered circumstance.
a. Need not mention statute specifically
Employer requirements
1. Employee cannot lose benefits accrued prior to the start of leave
2. Employer must maintain the employee’s benefits under a properly recognized group
health plan at the same level and under the same terms as through the employee
had continued to work
3. Reinstatement required for employee to same job or equivalent
a. Unless employer was going to eliminate it anyways
Enforcement
1. Through either private civil action for damages or equitable relief, or through
administrative action by filing a complaint with Secretary of Labor
Use of FMLA
1. FMLA rarely use for child birth because it’s unpaid
a. Used primarily for unpaid sick leave
i. Up to half the work force have no paid sick leave
ii. Can also be fired without FMLA protections
2. Available to men and women – gender-neutral. Although it is used much more often
by women.
Other Notes
1. We are the only industrial nation that does not give a paid leave for childbirth.
2. First statute by Clinton after two vetoes by Bush
3. Selmi wants greater incentives for men to take leave around birth or adoption of a
child b/c burden of child rearing that falls on women explains inequality.
a. Incentives may be requiring men to take 6 weeks of leave OR
b. Creating gov’t contract program aimed at rewarding employers who succeed
in encouraging their employees to take family leave.
Chapter 10: Harassment
1. Harassment Because of Sex
a. Generally / Introduction
i. An area of the law has an interesting dynamic. Has helped shape social norms as social
norms have helped shaped the law.
ii. National attention was focused on sexual harassment during Thomas hearings. National
conversation. This helped changed the law
iii. All major decisions in SH are unanimous. No other type of discrimination like this.
iv. Note on general harassment
1. All within T7
2. Can also bring harassment claims on race, national origin, etc.
a. Case law is basically the same but there is much less of it
b. Racial harassment tends to be more obvious
v. MacKinnon most famous voice on SH
vi. Many employers provide general training on SH now
1. But not required under T7
vii. In 2008, 42% of all harassment claims were SH
viii. Civil rights act of 1991
1. Permitted victims of harassment to seek compensatory and punitive damages under
T7, changing the calculus for the parties on the costs and benefits of these types of
discrimination claims.
ix. Two Theories of SH  Quid Pro Quo and Hostile Work Environment
1. 1980 EEOC Guidelines created outline for these
2. Defining the type of SH is only the first step in the analysis
3. EEOC 1985 says trier of fact must determine the existence of sexual harassment in
light of “the record as a whole” and “the totality of circumstances, such as the nature
of the sexual advances and the context in which the alleged incidents occurred.”
b. Quid Pro Quo
i. NOTE: Not as important of a distinction as it once was
ii. Generally
1. Strict Liability
2. Elements / Definition
a. When sexual compliance is exchanged, or proposed to be exchanged…
b. Either explicitly or impliedly…
c. for an employment opportunity: a job, a promotion or a job benefit, or the
absence of a job detriment…
d. by a supervisor
3. Very little case law on this
a. Doesn’t mean it doesn’t happen but rather that cases settle because
employers are held strictly liable for QPQ harassment
4. Can only arise from the actions of a supervisor
iii. Nicols v. Frank (9th Cir. – 1994)
1. Facts P was deaf-mute female who read at 5th grade reading level. While P
employed as mail sorter her supervisor on the night shift repeatedly demanded that
she perform oral sex on him for six months. All favors occurred at work site in
context of discussions of job benefits and after he would grant P job benefits. P
feared she would lose her job.
2. Court  actions constituted QPQ SH
iv. Clear / Unclear (from Nichols)
1. Clear: if manager says “I will fire you unless you sleep with me”
2. Unclear: if manager asks employee if she would like to have a drink after work to
talk about a possible promotion and sometime after she refuses he denies the
promotion.
v. MacKinnon’s Possibilities
1. QPQ Possible Scenarios
a. Woman declines the advance and forfeits an employment opportunity
b. Woman complies and does not receive benefit
c. Woman complies and received job benefit
2. No harm in asking if…
a. Woman refuses to comply, receives completely fair treatment on the job, ad
is never harassed again.
c. Hostile Work Environment (majority of case law)
i. Generally
1. Two Questions
a. What kind of behavior rises to the level of HWE?
b. When is an employer held liable for the behavior of its employees or
coworkers? (see below #2)
2. Women sometimes complain about behavior that men don’t think is offensive
3. Filing deadline.
a. For an EEOC claim to be timely. 1 of the acts had to occur w/in 300 days
4. No need for similarly situated person
ii. Definition (perspective of the victim)
1. 3 Elements
a. Must be sufficiently “severe or pervasive” to alter conditions of the
workplace (making it uncomfortable / difficult to do the job)
i. Hostile persistent condition of work
ii. Can depend on how frequently and over what time frame
iii. Generally has to be a pattern of behavior
iv. See below (iii)
v. Courts say that a single incident can count but …
1. Very very rare (sometimes rape)
2. No case law on this because if one thing happened then it’s a
QPQ case
b. Talk about “voluntariness” – must be UNWELCOME
i. Can show unwelcomeness by complaining
ii. Unwelcome = requiring proof that the “conduct must be unwelcome
in the sense that the employee did not solicit or incite it, and in the
sense that the employee regarded the conduct as undesirable or
offensive.”
iii. Minors under age of consent incapable of “welcoming” sexual
advances (Doe – 7th Cir. 2006)
c. Reasonable person standard
i. As views of reasonable women change – so too do T7 standards
2. Best definition – Ginsburg in Harris
a. It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the Plaintiff did, that the harassment
so altered working conditions as to “make it more difficult to do the job.”
iii. Defining a “severe or pervasive” HWE
1. Most common type of successful case
a. Involves sexual conduct – touching, propositions, asking people out aka
some kind of affirmative conduct
b. BUT SH is not limited to cases of sexual touching even though they are most
successful because courts can easily identify the behavior.
2. Demeaning behavior towards women – women who “don’t belong”
a. This can be raunchy behavior, jokes, behavior that’s different towards
women
i. Example – taking clients to strip clubs, saying women don’t belong in
the workplace
3. Non-targeted behavior (see: Free Speech defense)
a. Bystander Harassment
i. When coworkers are targeted and are in same protected class
ii. Mixed case law
1. Sometimes victim must be the target, sometimes not
2. Sometimes questions of standing
iii. Usually must be in the “target area” – either plaintiff was a
member of the group that was vilified by the challenged conduct or
that the P was present in the work area where the conduct occurred
b. Non-Targeted Speech
i. When employees are looking at porn at work. Writings on the wall.
Not targeted at any woman in particular but generally derogatory
towards women and offensive.
ii. Employers today are increasingly proactive about this
c. In the context of SH there are often conflicts the rights of employees to
engage in employees and the employer. Almost never in the employers
interest to tolerate harassment.
iv. Defenses
1. Can attack evidence of unwelcomeness
2. Say conduct at issue was either isolated or generally trivial
3. Point out P’s sexual history or sexualized behavior (limited)
a. Victim’s sexual history may be excluded if more harm than good (Evidence
Rule 412)
b. Burns v. Mcgregor (8th Cir. – 1993) **Important in development of the law
i. Facts  P posted nude for Playboy and became target of SH after a
male coworker say her in the magazine and brought it to work
ii. Court  Violation of T7. P’s behavior was outside of work and had
no bearing on workplace.
4. 1st Amendment / Free Speech (p. 524)
a. Robinson v. Jacksonville Shipyards (M.D.Fla.1991)
i. Facts  1st amendment defense for board injunctive relief
ii. Court  Violation of T7
1. it was discriminatory conduct b/c not protected. Private
employer have no 1st amendment rights in the Constitution
2. No 1st amendment right to harass
v. Meritor Savings Bank, FSB v. Vinson (SCOTUS – 1986)
1. Facts P was a teller in a bank. Sued for being under “constant” SH. Supervisor
took her out to dinner and suggested they have sex. Afraid she would lose her job
she agreed. After he made repeated sexual demands and they had sex 40-50 times.
He would also rape her. He would also touch other women in the bank.
2. Court Violation of T7 because of HWE
a. There does not need to be economic harm to the P
b. Outline the parameters for HWE
vi. Harris v. Forklift Systems, Inc. (1993 – SCOTUS)
1. Facts  P worked as a manager and company president often insulted her because
of her gender and often made her target of unwanted sexual innuendos. When
confronted said he was “only joking.” D asserted that the harassment had to rise to
the level of severe psychological injury.
2. Court  Violation of T7 because of HWE
a. No need for harm to victim’s psychological well-being
i. [A HWE]… can and often detract from employees’ job performance,
discourage employees from remaining on the job, or keep them from
advancing in their careers.
b. “so long as the environment would reasonably be perceived as hostile or
abusive, these is no need for it also to be psychologically injurious.”
c. Psychological harm may be taken into account but it is only one factor
2. Employer Liability for Discriminatory Harassment (HWE Context)
a. Vicarious Liability: Harassment by Supervisors
i. Vicarious Liability Test (Burlington)
1. If tangible employment action (TEA) by a supervisor (immediate or higher)
then NO DEFENSE POSSIBLE
2. TEA Is…
a. Hiring, firing, failing to promote, demotion, reassignment with significantly
different responsibilities, or a decision causing a significant change in
benefits
3. Why?
a. Supervisor acting AS the employer
i. TEA becomes the action of the employer b/c injury would not have
been inflicted absent the agency relation
b. Knowledge is presumed when action is taken. Supervisors would notice and
have the ability to do something.
ii. Affirmative Defense IF NO tangible employment action taken (Burlington)
1. Subject to proof by a preponderance of the evidence
a. Burden of proof on the employer
2. Two elements
a. That the employer exercised reasonable care to prevent and correct
promptly any SH behavior AND
i. Evidence that helps
1. SH Policy  Disseminated, Understandable, Effective
a. Effectiveness key – who the complaints go to? Usually
to go to supervisor but often supervisor is harassing
iii.
iv.
v.
vi.
or they don’t want to go to them. Must be another
person to go to (example: HR)
b. Mechanisms depend on
i. Employment circumstances
ii. Including known vulnerabilities
iii. Capabilities of the class of employees in
question (Understandable)
c. Not automatic that burden reached
d. Generally must allow anonymous complaints and
respect anonymity throughout the process
e. Implementation
2. SH training program
ii. Must take affirmative steps to investigate and take corrective action
b. That the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or to
avoid harm otherwise.
i. Failure to use employer’s complaint procedure
1. Hard to argue “futility in complaining”
ii. Long delays in filing complaints
1. Generally 5-6+ month delay is unreasonable
Burlington Industries, Inc. v. Ellerth (1998 – SCOTUS)
1. Facts  P was salesperson and was sexually harassed constantly by someone not
her direct supervisor. Commented could be thought to deny her tangible job
benefits. P did not inform anyone, despite knowing company policy against SH.
2. Court  Framework needs to be played out. Remanded.
a. Note: court created framework to encourage SH policies and further
objectives of T7
Possible exam question
1. Question
a. What happens when the employee complains and the employer acts
appropriately? The employer investigates, finds discrimination, and fires
the employee. What happens in the context of the affirmative defense under
the law?
2. Answer
a. Employer does not avoid liability. You need to satisfy BOTH prongs to be a
good affirmative defense. For the affirmative defense to apply, you have to
have both an effective policy and person has to fail to take advantage of it. If
the person takes advantage of it, then it doesn’t matter
3. Note
a. This is INCONSISTENT with the intent of Burlington. As a result, lower
courts are coming up with creative interpretations because it doesn’t make
sense for the employer to remain liable when they were trying to do
everything within their power.
Note: Claims Arising Out of Paramour Preferential Treatment and the Termination of
Consensual Sexual Relationships
1. 1980 – EEOC said that personal social workplace relationships are outside of T7
a. Does not want to interject in legitimate office romance
2. Favoritism as SH – under CA’s Fair Employment and Housing Act (FEHA)
a. Miller v. Dept. of Corrections (CA – 2005)
i. Facts  Warden had 3 sexual relationships with subordinates at the
same time and gave them unfair employment benefits
ii. Court  Not isolated so this could be sexual favoritism creating an
HWE where message is must sleep with boss to get ahead in the
workplace. Drew on T7 comparison.
Other liability issues
1. Punitive Damages
a. Employer may be held liable for punitive damages where an agent is acting
in a “managerial capacity” and is “acting in the scope of employment”
b. Cannot get punitive damages with public employer
2. Individual Liability  Majority of appellate courts have held that supervisors are
not individually liable under either T7 or ADEA
b. Liability for Negligence: Harassment by Co-Workers and Nonemployees
i. Negligence Standard
1. Proof of employer negligence required in order to establish employer liability with
harassment by nonsupervisory employees
2. Employer liable if known or should have known of misconduct
a. Constructive Notice (not on exam)
i. Where an employee provides management level personnel with
enough information to raise a probability of SH in the mind of a
reasonable employer, or where the harassment is so pervasive and
open that a reasonable employer would have had to be aware of it.
ii. Avoiding Liability
1. Liable unless it can show that it took immediate and appropriate corrective
action
iii. Serial Harassers
1. Employer has heightened responsibility because on clear notice that the same
employee has engaged in inappropriate behavior in the past
2. Test is a proportional response
iv. Harassment by Customers / Clients
1. Employer may be responsible for the acts of nonemployees with respect to SH in the
workplace where…
a. The employer (or its agents or supervisory employees) knows or should
have known of the conduct and fails to take immediate and appropriate
corrective action
Chapter 7: Sex Stereotyping
1. Sex Stereotyping & Sex-Based Dress, Grooming, and Appearance Requirements
a. Sex Stereotyping
i. Definition
1. Employer may not take gender into account in making an employment decision
a. Thus, if make decision based on a sex stereotype = sex discrimination
ii. Employer Liability
1. Once a P in a T7 case shows that gender played a motivating part in an employment
decision, the D may avoid a finding of liability ONLY …
a. by proving that it would have made the same decision even if it had not
allowed gender to play such a role.
iii. Price Waterhouse v. Hopkins (SCOTUS – 1989)
1. Facts  Senior manager denied promotion despite successful record because too
brash and not ladylike enough. Comments from partners stemmed from sex
stereotypes
2. Court  Violation of T7. Stereotyping comments were not stray remarks.
a. Gender must be irrelevant to employment decisions
b. P had substantial evidence from overt overly gendered statements.
iv. Another stereotype  mothers
1. Viewed through the lens of motherhood and housework
v. Same sex plaintiff and defendant is NOT a bar to sex discrimination
1. Oncale v. Sundowner Offshore Services, Inc. (SCOTUS – 1998)
a. Facts  P was male working on oil rig. Other men thought he was
effeminate and he was forcibly subjected to sex-related actions by other
men. Complaints to supervisory panel produced no response.
b. Court Same sex harassment claims are viable as sex discrimination.
Remand.
i. Harassing conduct need not be motivated by sexual desire
ii. Unanimous decision
vi. Post-Oncale
1. Court have rejected same-sex harassment claims when where harassment is
explicitly sexual in nature, when the victim had no evidence that the conduct was
specifically motivated by sex or gender.
vii. Possible to have disparate treatment or disparate impact claims
b. Sex-Based Dress, Grooming, and Appearance Requirements
i. Generally
1. Courts have consistently rejected challenged to employer rules and informal
practices regarding employee workplace attire, grooming standards, and personal
appearance.
ii. Equal Burdens are OKAY
1. EEOC Compliance Manual
a. Expressly permits different dress codes for men and women, requiring only
that the employers impose “equivalent” standards or burdens on male
and female employees
2. “Under established equal burden analysis, when an employer’s grooming and
appearance policy does not unreasonably burden one gender more than the other,
that policy will not violate T7.” (Jespersen)
iii. Jespersen v. Harrah’s Operating Co. (9th Cir. 2006)
1. Facts  P was bartender at sports bar at a casino. Policy required women to wear
makeup and prohibiting men from wearing any. P refused to comply with makeup
policy and was terminated because of it. P said conflicted with her self-image,
dignity, and was degrading and demeaning.
2. Court  No T7 violation
a. No evidence of unequal burdens
i. Same uniform, just different grooming standards and appropriate
sex distinctions are okay
ii. No documentation about costs and times required to comply with
grooming standards. Not willing to take judicial notice.
b. No evidence that D’s motivation was to stereotype women bartenders
i. Uniform is mainly unisex
ii. Grooming standards don’t require P to conform to stereotypical
image that would impede her ability to do her job
iii. Grooming standards not sexually provocative
3. Dissents 
a. Considers makeup requirement on its own terms. Points out need to use a
makeup consultant. Cultural assumption that women are unattractive and
unprofessional without makeup. Policy more burdensome for women.
4. Selmi comment in book
a. Workplace is not about being true to ones self.
b. Core of the workplace environment and being an employee at will
c. Employee has some ability to dictate how their employees look/dress, talk,
and what they do
iv. Sex-Based Weight Requirements
1. Generally
a. Courts tend to treat an airline’s use of dual sex-based weight standards
derived from insurance industry data with the same deference they give to
sex-based dress and grooming codes that are designed to assure that
employees who come in contact with the public have a pleasing, attractive
appearance.
2. Frank v. United Airline, Inc. (9th Cir. 2000)
a. T7 violation because women were required to meet medium build body
while men could be large build. Facial discrimination.
v. No federal anti-discrimination laws against appearance
1. But DC prohibits discrimination on the basis of appearance
vi. Sex and Race
1. Rogers v. American Airlines (SDNY 1981)
a. Facts  Airline prohibited all employees who had public interaction from
wearing corn rows. P sued for sex/race discrimination.
b. Court  no T7 violation, analyzed race/sex claims separately.
2. Discrimination on the Basis of Gender Expression or Gender Identity
a. Transsexual discrimination can be framed and succeed on sex discrimination claim
i. Smith v. City of Salem, Ohio (6th Cir. 2004)
1. Facts  P, a male lieutenant in a fire department was a transsexual medically
becoming female. Co-workers said appearance was not “male enough.” Supervisors
conspired to terminate him. P brought claim for sex discrimination b/c he did not
conform to gender norms. D said discrimination not b/c of sex but b/c of
transsexual status.
2. Court  Violation of T7 per sex discrimination
a. Same as PWH – clear sex stereotyping
i. Focus on the fact that co-workers and agents thought he was
“unmasculine”
1. Discrimination would occur if not BUT FOR the victim’s
sex
b. Transgender status is irrelevant to analysis
3. Note: Court doesn’t liken to Oncale, but just like that!
ii. Schroer v. Billington (D.D.C. 2006)
1. Facts  Interviewed as a man, called to explain changing to a woman and employer
dropped offer even though she was more than qualified for position. P filed claim
regarding sex discrimination
2. Court  Violation of T7 per sex discrimination
a. Discrimination against transsexuals IS because of sex
b. Root of these cases is PWH and Oncale
3. Sexual Harassment of Sexual Minorities
a. T7 does not cover lesbian, gay, bisexual, and transgender person
i. Arguments saying all gays/lesbians fall under T7 will fail  need to change statute
b. Can also frame sexual harassment of gay people as discrimination because of sex
ii. Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002)
1. Facts  Gay male butler in hotel in Vegas was sexually harassed in a HWE by male
supervisors and coworkers. Poked him in the anus, grabbed crotch, blew kisses at
him, told crude jokes, etc.
2. Court  SH claim enough to sustain T7 – reverse and remand
a. Sexual orientation of victim here is irrelevant
b. Two lessons from Oncale:
i. T7 forbids severe or pervasive offensive sexual touching
ii. Offensive sexual touching is actionable discrimination even in samesex workforce
c. Body parts clearly linked to his sexuality – were b/c of sex
d. Being harassed because he doesn’t fit gender stereotypes
3. Notes: Victim thought he was being harassed because he was gay.
a. Self-perception does not matter. Only the perception of others.
c. Discrimination against “sexual practices” probably too broad
i. Vickers v. Fairfield Medical Center (6th Cir. 2006)
1. Facts  P alleged coworkers wrongly thought his “sexual practices” did not conform
to the traditionally masculine role, rather that he behaved more like a woman.
2. Court  PWH not broad enough to encompass the situation
a. Failed to allege he did not conform to traditional gender stereotypes in any
observable way at work
d. Retaliation Claims
i. Cannot claim retaliation for original claim that is not covered by T7
1. Hamner v. St. Vincent (7th Cir 2000)
a. Facts  gay male claimed he was discharged from his job as a nurse for
filing a SH against male doctor
b. Court  P ‘s retaliation claim rejected because
i. only alleged homophobic harassment originally
Chapter 13: National Origin Discrimination
1. Generally
a.
b.
c.
d.
e.
f.
Claims typically filed by Latinos and Asians
Large increase in claims against Arabs after 9/11.
Remains a relatively small category
1981 also applies to national origin
DOJ regulates parallel law with IRCA
Two main issues – English-only and accent discrimination
2. English-Only Requirements for Bilingual Employees
a. Generally
i. Anti-immigrant movement that spilled into the workplace
ii. Cases mainly began in 1980s-90s during movement to make English official national
language.
iii. For the most part, challenged to employer English-only rules almost always fail
1. Employers have a very light burden
a. NOTE: disparate theory might have a better chance of success
2. Selmi says
a. Courts have no focused on them very well and have not analyzed the
distinction between national origin and language
iv. EEOC has taken a particular interest in the area and have made it an area of priority and
have brought many cases and keep bringing cases if they fail
v. Claims are typically brought under disparate impact theory
vi. Some social scientists say  language is an important aspect of national origin or ethnicity
because it sets a cultural group apart from others
b. EEOC Guideline (2009) – Sec. 1606.7
i. (a) When applied at all times.
1. EEOC will presume a policy which applies at all times violates T7
2. These policies may create an atmosphere of inferiority, isolation, and intimidation
which could result in a discriminatory work environment.
ii. (b) When applies at certain times.
1. These policies are okay if the employer can show that the rule is justified by
business necessity.
iii. (c) Notice of the Rule.
1. Common for individuals to inadvertently revert to native language
2. Employer should inform employees of the rule
3. If employer fails to notify employees and makes an adverse employment decision
against them, EEOC will consider it as evidence of discrimination on the basis of
national origin
c. How Language is Tied to National Origin
i. Garcia v. Spun Steak (9th Cir. 1993)
1. “Language is intimately tied to national origin and cultural identity; its
discriminatory suppression cannot be dismissed as an ‘inconvenience’ to the
affected employees”
2. “ . . . his native language remains an important manifestation of his ethnic identity
and a means of affirming links to his original culture.”
d. Customer Service is a satisfactory “Business Necessity”
i. EEOC v. Sephora U.S.A., LLC (S.D.N.Y. 2005)
1. Facts  Bilingual Ps brought disparate impact claim against employer for Englishonly policy. Argued that they were disciplined for behavior not in policy and that
the policy itself violated title VII (because of code switching). D used business
necessity defense regarding customer service.
2. Court  Policy is job related, this no violation
a. Policy was flexible and geared towards the workplace
b. Business necessity defense is what the EEOC suggests is proper
c. Code-switching is an “extreme” view
e. English-only laws in general violated free speech
i. Arizonans for Official English v. Arizona (1997)
1. Facts  Arizona had constitutional provision prohibiting state employees from
using any language other than English in conducting state business. P said violated
free speech and was overly broad
2. Court  agreed with P and struck down provision
3. Accent Discrimination as National Origin Discrimination
a. Generally
i. Real issue is if the employee can communicate
ii. Accent discrimination can be pretext for national origin discrimination
1. Particularly true when there is NO evidence that the plaintiff’s accent has actually
interfered with job performance.
iii. Most cases there is no direct evidence – mainly circumstantial
1. Admitted in 3rd step of McDonnell Douglas framework to establish pretext
b. Burden on employer is quite light to establish a defense
i. Sometimes they do not need ANY evidence
1. Fragante v. City & County of Honolulu (9th Cir. 1989)
a. Facts  P had highest score for a clerk’s position out of 700 applicants who
had taken the test for the position. After interview he was rejected because
they thought he could not communicate b/c of his accent.
b. Court  employer articulated legitimate, nondiscriminatory reason for its
rejection of P and P failed to show that D’s explanation was pretext
i. D did not point to any formal standard, instructions or guidelines
c. Carino v. Univ. of Ok. (10th Cir. 1984)
i. Facts  P brought an action alleging he had been demoted because of his Filipino accent
ii. Court  taking adverse employment actions when an accent doesn’t interfere with job
duties is impermissible
d. In re Rodriguez (6th Cir. 2007)
i. Facts  P could not get a promotion to be a FedEx manager because of his (Hispanic)
accent. P complained and eventually resigned.
ii. Court  Linguistic discrimination = national origin discrimination.
1. Remand to see if FedEx would have refused to promote P even absent a
discriminatory motive.
e. Raad v. Fairbanks North Star Borough School District (9th Cir. 2003)
i. “accent and national origin are obviously inextricable intertwined”
ii. “Adverse employment decisions may be predicated upon an individual’s accent, but only if it
interferes with the individual’s job performance”
iii. Found teacher’s accent did not hinder her performance, thus discrimination
f. Other cases
i. Dominican maid denied promotion to front desk for not being able to communicate
properly in English  permissible (E.D.N.Y. 2006)
ii. Mere comments about an employee’s accent does not suggest underlying bias against their
national origin  too broad(S.D.N.Y. 2003)
iii. Asian customer service representative’s accent was considered in her termination because
it interfered with her job performance  permissible (9th cir. 1989)
g. Critical race theorists
i. Says that accent discrimination is unconscious and thus no evidence is possible
ii. 3 types of bias
1. Accent-job link
a. Employers may misjudge the link between accent and job performance,
assuming the accent will impair performance, when it will not
2. Accent-comprehension link
a. Employers may not recognize the ability of accented speakers to become
more understandable
3. Bias-comprehension link
a. A visual due for “foreign speaker” causes listening comprehension problems
against non-Caucasian speakers)
LECTURE: American Disabilities Act
1. Background
a. History
i. ADA originally passed in 1990 but congressional concern about disability go back much
farther
ii. Rehabilitation law of 1973 – prohibits discrimination by federal govt and federal govt
contracts
1. Early law regarding disability
2. Federal govt Ks must have affirmative action programs for disabled
3. Never had much litigation under it
4. Modest amount of case law, uneven SCOTUS treatment
iii. 1980s – pressure to add protection for disabled regarding the workplace
iv. Passage of the ADA in 1990
1. Almost no opposition in either house or the senate
a. Significant number of members of the house and senate who had personal
experiences with disabled individuals – either themselves or family
members
2. The act is quite broad
3. Was not much attention to details in the ADA
a. Because they was no opposition they allowed interest groups to do most of
the drafting and did not pay close attention to the language
4. The act passed and had broad public support and still does
5. Turned out not to have broad judicial support
b. Substantially amended in 2008 by a series of amendments
i. Gutted and significantly altered the statute  Designed to overturn the original act
ii. Too new for there to be caselaw
c. Scope
i. Applies to employers 15+. No longer applies to state employers.
ii. ADA is broader than the workplace but we are only talking about the workplace
1. Has been more successful with public accommodation – less so on workplace
d. Rationale of ADA (these are different from T7)
i. Concern about high level of unemployment of disabled
ii. Seclusion and exclusion of the disabled- travel
iii. Desire to bring more disabled into the workplace
iv. Misunderstanding regarding the ABILITIES of the disabled
1. Sometimes disabled don’t need any accommodation – many exclusions were just out
of ignorance
a. Ignorance v. animus makes it different  misunderstood their ability
to work
2. Differences from Title VII
a. 1ST  The inherent need to DEFINE disability
i. Controversy about WHO is covered under the ADA (not the case with T7)
1. Other categories it’s easy to define – race, sex, age
a. Under T7 it’s not an issue on who is covered
ii. Statute defines disability in a particular way
1. “a physical or mental impairment that substantially limits one or more major
life activities”
a. Note – must be substantial
iii. “Core Disability” v. Non-Core Disabilities
1. Core group = group that is generally agreed upon.
a. Then a larger group of conditions that people don’t agree on
2. Cases in the Supreme court
a. bad eyesight, ADD, anti-social, bad memory, allergic to smoke, addicted to
smoking
3. Many individuals who had various diseases but could be controlled with medication
4. MOST COURTS INTERPRET DEFINITION NARROWLY
a. Clearly beyond what congress intended – although not clear what Congress
intended.
5. Also turned out that there are different kinds of disabilities but there are also
different temporal limitations to disabilities – some are temporary and some are
not. Some arise at birth some develop later, some occur in the workplace
a. Statute did not give much guidance on this
b. Only limited addiction to drugs but not alcohol. Alcohol addiction (current)
excluded but nothing about rehab or recovering alcoholics. Some limitations
on that though too.
c. For the most part – cases that have pushed the boundaries have always lost
i. ADA meant to change this
b. 2ND  There’s often costs attached to the disability for the employer (2 ways)
i. Person might be less productive
1. This is an open question, not many cases
ii. Disabled individuals often need accommodations in order to perform work in workplace
1. This is more common
2. Employers are required to offer reasonable accommodations and sometimes can
make costs for employer but not as high as some people think
3. To the extent there was opposition it had to do with the costs
a. Was discussion on what kind of costs were reasonable
c. 3RD  Prohibits discrimination of those “regarded” as disabled
i. Prohibits employers from discriminating against individuals who are “regarded” as disabled
1. Different KIND of claim but never been clear what’s been intended by this
a. This might see some changes as a result of the 2008 amendments
ii. Generally an individual who the employer THINKS is disabled but actually is NOT
1. Example – one armed man who doesn’t need any accommodation
2. Example – morbidly obese – was able to lift elderly people but employer thought she
couldn’t
3. 2008 Amendments
a. They kept the definition for the most part but told SCOTUS you have to interpret the
statute more broadly
i. What you’re doing is not what we intended
1. Will be interesting to see if they will do that
2. He suspects they won’t do this = not clear they will take the directive seriously and
expand the scope of the statute unless they are specifically required to do so
b. Two significant provisions of the statute
i. 1st  In determining if someone is disabled, courts can no longer look at mitigating factors
1. This will make a big difference
2. Don’t take into account mitigating factors other than glasses
a. People who wear glasses still NOT disabled
ii. 2nd  Conditions in remissions – will be covered
1. Such as cancer
2. Thinks courts will respond to this too
iii. Outside of the two above, hard to know what will change / improve
c. Volume of ADA litigation is way way down – starting to rise again
i. Will be a few more years before we see what lower courts are going to do
d. Reasonable accommodation provisions
e. New statute suggests that temporary disabilities DO NOT COUNT
i. AKA broken arm
4. Relationship Between Worker’s Compensation and ADA
a. Not an easy answer, not just workers comp, also disability social security
b. In workers compensation, worker who is injured in the course of employment
i. Required to be remedied through workers comp system which is a state insurance scheme –
individuals get replacement income but at a low level.
ii. This is an exclusive remedy. Cannot sue your employer for tort (designed that way)
c. Number of individuals have sought to bring disability claims instead of going for workers
compensation
i. If misplaced, individual will LOSE the disability claim
1. Only arise if injury occurred in the course of work
d. Social security disability relationship
i. SCOTUS case – individual getting long term disability under SS can get ADA too
1. Individual sued under ADA the employer was not reasonably accommodating her
2. Said you could make BOTH arguments – didn’t say you could win both but did say
there are two different statutes
ii. Congress has never dealt with this
5. ADA was Intended to Address HIV+ Individuals
a. Courts have been protective of this b/c CLEAR in original intent of ADA
b. Bragdon Case
i. Facts  he was a dentist. Had HIV+ but did not have AIDS. Hard to fit into the statute
because HIV+ did not make a substantial limitation on a major life function but at some
point likely would be.
ii. Court  said that he was “substantially limited” in procreating
1. Not an easy case / path for SCOTUS to find in the statute about “substantial
limitation”
2. Reason they did this – they were intended to be covered on the statute
6. Remedies
a. Only thing we need to know  ADA borrows the remedies from T7
b. ADA was passed in 1990. At first no damages. No one realized it until later that it wasn’t in the bill.
i. But then in 1991 added a provision to the civil rights act and included it
c. To the extent that the employer makes a good faith effort to offer a reasonable
accommodation to the employee, no compensatory or punitive damages are available
i. Very little litigation on this – partly because cases never get to this
ii. Which should create incentives to employers to take claims seriously
1. Incentives have been muted by the fact they always win but now things might
change
d. Keep in mind, under the ADA, private individuals cannot sue state entities for damages (though
they can still get injunctive relief)
i. Federal government can sue states
ii. Many state statutes for disability also
1. Individuals can bring them under that but just not under ADA
Chapter 14: Age Discrimination
1. Introduction / Generally
a. Age Discrimination in Employment Act of 1967 (ADEA)
i. Employers are to evaluate older employees on their merits and not their age
b. Society today
i. Seeing many older workers / retired people trying to go back into the workplace
ii. Age is probably most significant hiring barrier
c. Scope
i. Protects workers who are 40+ years old against discrimination because of their age
d. No reverse discrimination claims permitted
i. Employers are allowed to prefer older workers
e. Usually see a lot of direct evidence
i. More than any other kind of cases
ii. In part because people do not understand the law
f. Traditionally most successful and most lucrative claims
i. Tend to be making more money because more experienced
ii. Executives – seeking more money
iii. But because they have a hard time getting a job – their lost future wages “front pay” can be
huge depending on how much a court is willing to allow them
1. Courts willing to allow big amounts of back/front pay
iv. Longer periods of unemployment because can’t get another job
v. More direct evidence
vi. people are more sympathetic – everyone is going to get old (all go to jury)
g. Most discrimination cases are disparate treatment
i. Disparate treatment tends to be unsuccessful
h. EEOC Stats
i. 25% of charges filed with the EEOC
ii. Average age 54
iii. 76% male
i. Remedies (Different than T7)
i. Still get backpay AND if they can show willful discrimination/violation  then P is entitled
to double the amount of the backpay as a form of liquidated damages
1. Willful if “the employer knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the ADEA”
ii. Borrows remedies from fair labor standards act
1. Means all the cases go to a jury, including disparate impact cases
iii.
j. Procedural
i. Same as T7 (filing deadlines, etc)
k. State Liability
i. States can’t be sued but most states have similar laws (don’t know if all start at 40 yrs old –
seems low)
ii. Kimel v. Florida Bd. Of Regents (2000)  11th amendment bars state employees from
bringing private actions for monetary damages against nonconsenting states for violations
of the ADEA.
l. Cannot force people to retire
i. Problem for getting new people in
ii. BUT you CAN buy people out and give them incentives to retire
1. They are permissible if done properly
2. Gets technical
3. Must submit / sign a waiver – specific statutory requirements
iii. EXCEPTION  PILOTS
1. Federal requirement that pilots must retire after 65 years old
2. Notes: BFOQ and Sex-plus-Age
a. Bona Fide Occupational Qualification Defense (BFOQ)
i. Generally
1. Available for age cases – relatively strong. Employers are given more leeway to
impose age restrictions.
2. Employers have to show they did significant study to show significant declines and
NOT possible to do individual distinctions – too costly or can’t do it
3. Only rational basis review required
a. From the Constitution
ii. Framework = Two-Pronged Objective Test (Western Air Lines, Inc. v. Criswell (1985))
1. 1st  employer must prove that the age-related job qualification is “reasonably
necessary to the essence of the employer’s business”
2. 2nd  employer must prove that they are “compelled to rely on age as a proxy for
the safety-related qualifications”
a. Can ONLY be satisfied if the employer proves that it had a factual basis for
believing that
i. “all or substantially all” persons over the age limitation would be
“unable to perform safely and efficiently the duties of the job
involved” OR
ii. That “age was a legitimate proxy for the safety-related job
qualifications because it is “impossible or highly impractical to deal
with older employers on an individualized basis”
iii. Definition
1. Where age is a bona fide occupational qualification reasonably necessary to the
normal operation of the particular business”
iv. Most cases where jobs involve public safety
1. Pilots  Must retired at age 65
2. Exemption also for state and local public safety officers
a. State and local governments the option of establishing mandatory age
requirements for hiring and retirement for public safety officers, including
police and firefighters
b. Sex plus Age
i. Midlife and older women increasing share of workforce facing age and sex discrimination
ii. Few courts recognize this with framework
1. Arnett v. Aspin (E.D. Pa 1994)  P had prima facie case because…
a. She is a member of the protected subclass that is women over 40
b. Qualified for and applied for the positions in question
c. Despite qualifications, she was denied the positions
d. Other employees outside her protected class were selected, in this case 2
women under 40
e. NOTE: stated that this was under T7 and not recognized under ADEA
2. SCOTUS and federal courts have NOT recognized this yet
a. Continue to treat them separately
3. Disparate Treatment
a. Generally / Elements
i. Most ADEA cases brought under disparate treatment
ii. Regarding the Framework [below]
1. SCOTUS has not directly decided whether the analytical scheme of McDonnell
Douglas is equally applicable to ADEA claims
2. But lower courts have consistently applied some variant of the analytic framework,
typically requiring Plaintiff to establish a prima facie case
iii. P must show [PRIMA FACE CASE ELEMENTS]
1. He is with the age group protected under ADEA
2. He suffered an adverse employment action or disposition
3. He was qualified for the position either lost or not gained
4. A person younger than the plaintiff was selected for the position over the plaintiff
a. Even if that person is also in the protected class
i. O’Connor v. Consolidated Coin Caterers Corp. (1996)
1. Requires evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory
criterion
2. The fact that a replacement is substantially younger than the
P is a far more reliable indicator of age discrimination than is
the fact that the P was replaced by someone outside the
protected class
b. No rule on HOW much “substantially younger” someone has to be
i. “no particular age difference must be shown”
ii. 3rd cir  5 year can be enough, 1 year not enough
iii. 8th cir  5 year difference not substantial enough
iv. 7th cir  less than 10 year difference is presumptively insubstantial
unless the P “directs the court to evidence that her employer
considered age to be significant”
c. 2nd Circuit has changed element #4 to be “the circumstances surrounding
that action give rise to an inference of discrimination”
iv. If P establishes prima facie case
1. Burden or production shifts to the employer to present evidence of a legitimate,
nondiscriminatory reason for the adverse action taken
2. If the employer carries this burden of production (legit, nondis reason)…
a. the burdens of production and persuasion return to the plaintiff to produce
sufficient evidence from which a jury could find that an employer had
intentionally discriminated against the plaintiff in violation of the ADEA
b. Must prove age discrimination DIRECTLY  not that it’s just a related factor
i. Hazen Paper Co. v. Biggins (1993)
1. Facts  P was fired and claimed age had been a determinative factor in petitioners’
decision to fire him. D said that he had been fired for doing business with a
competitor.
2. Court  No disparate treatment when the factor that is motivating the employer is
some feature other than the employee’s age (remand)
a. Protected trait must have actually played a role and had a determinative
influence on the outcome
b. Age cannot just be “correlated”
i. Even though “years of service” correlates, not the same thing
c. If another reason is true, then no problem with stereotyping and
stigmatizing anymore
d. ERISA violation – actionable (see p. 742 for more)
3. NOTE: this case is just like Hicks (key that you have to PROVE discrimination)
4. “Age-Proxy Theory” not valid
a. Other factors cannot be “stand ins” for age
ii. Why the distinction?
1. Purpose was to make employers stop relying on stereotypes
a. Has to be individualized
b. Employers must PROVE a loss of productivity – cannot assume it
i. Has to do with the PURPOSE of the statute
1. Same idea as the ADA – not animus but stereotypes and
assumptions
2. General sense that people’s productivity DOES decrease with
age – abilities thought to decline while salary does not
iii. Cost Justification Defense  Firing employees to save money (MAYBE OKAY)
1. Most cases say you cannot do that BUT
a. if you bring in the productivity aspect you may be able do that
2. Strong case is when employer offers less money for same job to another person
a. Underexplored aspect of age discrimination
3. Mixed case law – may change after Hazen
a. Geller v. Markham (2d Cir. 1980)
i. Facts  55 year old teacher said that hiring only teachers with less
than 5 years of experience had a disparate impact on teachers over
40 years old. D said policy was to save money.
ii. Court  Rejected defense
b. Anderson v. Baxter Healthcare Corp. (7th Cir. 1994)
i. Facts  cost saving argument
ii. Court  age and compensation are analytically distinct
1. An employer can take one into account and not the other
4. Related issue: Cutting Fringe Benefits
a. Finnegan v. TWA (7th cir. 1992) / PRE-HAZEN
i. Not discrimination to cut fringe benefits that adversely impacted
those 40+ when company was trying to avoid bankruptcy
c. Mixed-Motives Theory NOT Available / Permitted
i. A plaintiff must prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the “but-for” cause of the challenged employer decision
1. Gross v. FBL Financial Services, Inc. (2009)
a. Facts  when P was 54 years old he was reassigned / demoted. Suggested
that his reassignment was “at least part due” to his age
b. Court ADEA does not authorize a mixed-motive claim. Age must be the
BUT FOR cause of the employer’s adverse decision
i. Court has never held that burden shifting framework applies to
ADEA (but after this courts continue to apply it)
c. “because of” = THE reason
ii. Note regarding ADEA statute / congress
1. 1991 civil rights act did NOT amend the ADEA regarding mixed-motive claims
2. Bill has been introduced in Congress to overturn mixed-motives section, but it’s
gone nowhere. In the old days AARP would have overturned it right away
4. Disparate Impact
a. Disparate Impact claims ARE permissible under ADEA but narrow scope
i. Smith v. City of Jackson, Mississippi (2005)
1. Facts  Officers complained that they were given less generous salary increases
than officers under the age of 40. Those who had less than 5 years of tenure
received proportionately greater raises.
2. Court  No disparate impact claim here, but possible
a. Compares to Griggs, which interpreted the identical text
i. EEOC and DOL also agree
b. Scope of disparate-impact liability is narrower under ADEA than T7
i. Ward Cove’s pre-1991 interpretation of T7 identical language
remains applicable in ADEA
1. Not enough to just allege that there is a disparate impact on
workers or point to a generalized policy that leads to the
impact
a. Employee MUST isolate and identify the specific
employment practices that are responsible for
any statistical disparities
ii. Some think this makes case “unwinnable”
c. Low “Reasonable” Standard  VERY easy to satisfy
i. No need to “business necessity” for the policy
1. Court’s rationale
a. Downsizing in general had negative impact on age
and mergers
b. Courts wanted to limit cases to litigation
d. Reliance on seniority and rank was “unquestionably reasonable given the
City’s goal of raising employees’ salaries to match other communities”