Griggs v. Duke Power Co. -- An employment practice, facially
neutral, which operates to exclude protected individuals, must be
shown to be job-related.
Purpose of act is to remove artificial, arbitrary, and unnecessary
barriers to employment which operate invidiously to discrimiinate
on the basis of protected classifications.
May still use tests to measure. But tests must be a reasonable
measure of job performance.
Standard changed by Washington v. Davis, may use tests which
predict successful completion of training program.
Ablemarle Paper Co. v. Moody -- definition of job relatedness.
Tests with a discriminatory impact impermissible unless shown by
professionally accepted methods to be predictive or correlated to
job performance for which the candidate is being evaluated.
Content validation -- looks at actual job skills.
Criterion validation -- is predictive of job performance.
Test may be used for jobs other than the one validated only if
there are no significant differences between studied and unstudied
Washington v. Davis -- Constitutional Standard for Disparate
Impact under 14th Amendment (NOT TITLE VII).
Don't need direct evidence of subjective intent.
Test validated as to performance in academy, not job performance
once out of academy. Court says this is enough.
For constitutional claims of discrimination, there must be
disciminatory purpose or intent.
Purpose may be inferred from the totality of the relevant facts.
Disparate impact is not irrelevant, but it is not the touchstone
of an invidious racial discrimination forbidden by the
Watson v. Fort Worth B&T -- Disparate Impact analysis is
applicable to both objective and subjective employment practices.
Circumstantial Evidence Cases
McDonnell-Douglas Corp. v. Green -- Order and allocation of proof
in private, non-class actions challenging discrimination.
Complainant in Title VII case must carry the initial burden of
establishing a prima facie case of racial discrimination. This
may be done by showing:
That the plaintiff belongs to a racial minority;
That the plaintiff applied and was qualified for a job for which
the employer was seeking applicants;
Note: the employee does not have to show he was the most
qualified, just that he was qualified.
That despite the plaintiff's qualifications he was rejected; and
that, after his rejection the position remained open and the
employer continued to seek applicants from persons of
Burden shifts to employer to articulate some legitimate,
nondiscriminatory reason for the plaintiff's rejection
Once the employer meets his burden of production the employee must
be afforded an opportunity to show that petitioner's stated reason
for rejection was in fact pretext.
Pre 1991 Civil Rights Act, the burden of persuasion remained, at
all times, with the plaintiff.
Now the burden of persuasion rests with the moving party. The act
speaks in terms of "demonstrates."
The act then defines demonstrates as "meets the burdens of
production and persuasion."
McDonald v. Sante Fe Trail Transp. Co.
Statutory language protects any individual. This means you can't
treat a majority employee differently than a minority employee --
must treat them all the same.
Wording in McDonnell v. Green was illustrative, not limitative.
Furnco v. Waters -- Central focus of the inquiry is always whether
the employer is treating some people less favorably than others
because of their race, color, religion, sex, or national origin.
PF Case under McDonnell Douglas raises an inference of
discrimination because we presume the acts, unless otherwise
explained, are more likely than not to be based on the
consideration of impermissible factors. PF case is not a finding
To dispel the adverse inference from the PF case all the employer
has to do is articulate some legitimate, nondiscriminatory reason
for the employee's rejection.
Racially balanced work force cannot insulate an employer from
liability for disparate treatment.
Pattern or Practice Cases
Burden of Proof on Plaintiff is preponderance of the evidence
Pattern & Practice requires more discovery than ordinary DT case
because pattern may not be readily apparent.
As an evidentiary matter the burden is more difficult. Must show
that the disparate treatment is systemic.
something more than isolated, spradic incident, but a repeated,
routine, or generalized set of incidents.
P & P can fit under either DI or DT analysis.
Comparisons in workforce are made between those:
within the employers workforce.
within the numbers of qualified minorities within a given
Mere imbalance is not determinative.
Statistics are probative because they are often a telltale sign of
Statistics can be used to make out a PF Case. This is especially
true where there is gross disparity, and there is other supporting
Private parties may seek relief under pattern and practice, not
just class action plaintiffs.
Direct Evidence Cases
No need to make out a PF case under McDonnell Douglas where there
is direct evdience of discriminatory treatment.
Once discriminatory treatment is proved by direct evidence, cannot
rely on the legitimate nondiscriminatory reason. Must prove that
the same decisions would have been reached even absent the
Mixed Motive Cases
Where a plaintiff proves that an impermissible factor played a
motivating part in an employment decision, the defendant may avoid
a finding of liability only by proving by a preponderance of the
evidence that it would have made the same decision even if it had
not taken into account the impermissible factor.
Plaintiff does not have to show that the impermissible factor was
the sole, or motivating factor, only that it was a factor
Union may not discriminate in any respect against a member because
of race, etc.
Failure to file and process grievances, because to do so would
have created an animus with the employer or because pursuing these
grievances would have affected the white members, was actionable
Dissent in union case said that it would not have imposed a burden
on the union to remedy employer's discrimination. Ware doesnt
Order and Allocation of the Burdens of Proof
Texas Dept of Comm. Affairs v. Burdine
Under Burdine, the ultimate burden of persuading the trier of
fact, on all issues, remained with the plaintiff.
Under the new law, the plaintiff only has to prove the prima-facie
case. Once she has, she has shifted the burden of persuasion and
production to the employer.
If the employer meets its burden, then under the new law the
plaintiff must demonstrate (i.e., prove by preponderance) that
there is pretext.
Wards Cove Packing Co. v. Antonio -- Disparate Impact Cases
Plaintiff must demonstrate the specific employment practice which
results in the disparate impact.
New law changes this. Under the new law where the practices
cannot be separated for analysis the whole procedure may be viewed
as one practice.
Business necessity in Disparate Impact means the employment
practice must serve, in a significant way, the legitimate
employment goals of the employer.
No requirement of essential or indispensable.
To demonstrate pre-text the plaintiff must show that other tests
or selection devices, without a similarly undesirable effect,
would serve the employers legimate goals.
Clearly Erroneous -- Standard of Review from Title VII cases
Findings of fact viewed under Clearly Erroneous standard.
Standard means that when, after reading the facts, the reviewing
court is left with the impression an error has been made.
Where there are two permissible views of the evidence, a
factfinders choice between them cannot be clearly erroneous.
Where finding is based on credibility determinations of the
witnesses, unless there is internal inconsistency in the finding
itself, it cannot be overturned on appeal.
Hazelwood School District v. United States
Must link gross disparity in numbers to some selection device.
Proper comparison is not between student racial composition, but
between faculty composition and composition of qualified public
school teachers in the relevant labor market.
Once a statiscal disparity is shown, the defendant must be given a
chance to show that the pattern is a result of pre-Act hiring
rather than unlawful post-Act discrimination.
Bazemore v. Friday
That an employer discriminated with respect to salaries prior to
the time it was covered by Title VII does not excuss perpetuating
that discrimination after it took effect.
Each paycheck that gives a black less than a white is a separate
violation. Employer had a duty to equalize salaries upon effect
Dothard v. Rawlinson
May show DI based on national height/weight statistics.
No need to show actual comparison with job applicants because
qualification might discourage many applicants who would otherwise
Evidence that conspicuously demonstrates disparate impact is
May not adopt a standard for height and weight as a substitute for
a standard of strength. Test for strength, measured directly,
satisfies this requirement.
Connecticut v. Teal -- Bottom line statistics do not insulate an
employer from liability, nor do they provide a defense from
A nonjob related test that has a disparate impact and is used to
limit or classify employees is used to discriminate whether it had
that design or intent and despite an employers efforts to
compensate for that discriminatory effect.
Watson v. FWB&T
In DI case, plaintiff's burden in establishing a PF case boes
beyond the need for show that there are disparities in the work
force. Plaintiff must identify the specific employment practice
that is challenged.
Once identified, causation must be proved. Plaintiff must offer
statistical evidence of a kind and degree sufficient to show that
the practice in question has caused the exclusin of applicants for
jobs or promotions because of membership in a protected group.
Statistical evidence is always open to attack.
Business Necessity Defense
Applies in cases of disparate impact.
Must have a facially neutral policy.
Policy must comport with the business requirments of the business.
UAW v. Johnson Controls -- Does Business Necessity apply to a
fetal protection policy which only operates on women?
Title VII prohibits sex-based classifications in terms and
conditions of employment
Lack of malevolent motive is not enough to convert a facially
discriminatory policy into a neutral policy.
Benign motives cannot allow consideration of BN defense.
Does not pass the simple test of whether the evidence shows
treatment of a person in a manner which but for that person's sex
would be different.
Contreras v. City of LA
Job-Relatedness -- Employer must demonstrate that a significant
relation exists between the challenged selection device and
important elements of the job or training program, not merely some
rational basis for the practice.
Employer does not have to demonstrate a perfect positive
Three step validation procedure:
First specify particular train or characteristic.
Then determine that the trait is an important element of work
Finally, must demonstrate by professionaly acceptable methods that
the selection device is predictive or correlative with the work
What comprises a BFOQ situation?
BFOQ is narrow & court has read it narrowly.
Congress intended the word "occupational" to mean related to the
employees ability to do the job.
Johnson Controls' policy did not fall within the safety exception
Safety exception is narrow. For example, in Dothard, safety of
woman alone was not enough to justify the exclusion on basis of
Sex not a proxy for some other qualification (like strength)
because it excludes the individually strong woman.
Prior cases involving safety and pregnancy indicated that the
safety of the fetus was the concern of the mother, and that the
safety of the passengers dominated.
Safety of third parties in Dothard and Criswell was indispensable
to the particular business.
BFOQ must relate to essence of business.
Safety exception only applies to situations where the employees
pregnancy actually interferes with their ability to do the job.
PDA includes its own BFOQ standard: "unless pre., empl. differ
form ot hers in their ability or inability to work they must be
treated the same as other employees for all employment-related
PDA prohibits BFOQ unless it relates to the essence of the
Phase I -- Present Effects of Past Discrimination as a Violation
of Title VII
Quarles v. Phillip Morris -- Departmental seniority system that
has its genesis in racial discrimination is not a bona fide
seniority system. Present effects of past discrimination are
subject to the reach of the law.
Seniority created by the act for blacks discriminated against
could not be used to bump whites out of incumbent positions, but
only when bidding for new jobs.
Phase II -- The New law of Seniority
International Bro. of Teamsters v. US
Bonafide systems not unlawful even where pre-act discrimination
results in non-minority employees having greater seniority.
System which perpetuates pre-act discrimination can still be
Bonafide means the seniority system was not created with
Lorance v. ATT
For union liability need actual intent to discriminate on
statutorily proscribed grounds on the part of those who negotiated
or maintained the system.
Time of adoption of the seniority system is what triggers the
United Airlines v. Evans
No continuing violation theory. Old violation, even though it
operated to her disadvantage, had not legal significance.
Phase III -- Seniority After Teamsters
Use "seniority system" as defined by NLRB decisions.
American Tobacco v. Patterson
Discriminatory impact is not enough. There must be a finding of
actual intent to discriminate.
Pullman-Standard v. Swint
Four factors to look at to determine if a seniority system is bona
Does the system operate to discourage all employees equally from
transferring between seniority units.
Court must examine the rationality of hte departmental structure
upon which the seniority system relies, in light of general
Court must consider whether the seniority system had its genesis
in racial discrimination.
Whether the system has been negotiated and maintained from of
These are questions of fact for the trier of fact.
Not a mixed fact/law question. Clearly erroneos rule applies.
Wattleton v. Int'l Broth. of Boiler Makers
Series of changes in collective bargaining agreement benefitted
Where there is evidence of discriminatory intent or purpose the
court will not overrule a finding unless clearly erroneous. Here
no feeling of mistake.
Hishon v. King & Spalding
Same standards apply to sex discrimination case as to employment
Title VII covers partnerships
Once a contractural relationship of employment is established the
provisions of Title VII attach and govern that relationship.
Promise to consider for partnership is a term of condition or
privilege of employment.
Benefit that is part and parcel of employment relationship may not
be doled out in a discriminatory fashion.
Lynch v. Freeman
Working conditions can be the basis of disparate impact claims.
Where facially neutral policy affects one class more than another,
then DI analysis comes into play.
There is no requirement that plaintiff herself alleviate the
City of LA v. Manhart.
May not treat individuals as components of a protected class. In
this case, may not make the contribute more because the class as a
whole lives longer.
Equal Pay Act requires employers to pay members of both sexes the
same wages for equivalent work except when the differential is
pursuant to one of four specified exceptions:
Payment by amount of output or quality.
Differential based on any factor other than sex.
City argued that longevity, not sex, was being used. Court did
not accept the argument. Actuarial figure based on sex and sex
Arizona Governing Comm. v. Norris
Employer selected three providers, all of whom paid lower benefits
Employer selection of providers was sex discrimination because
employees could not invest their money any other way.
State would have violated Title VII if they operated the system
Both parties to a discriminatory contract are liable for any
discriminatory provisions, regarless of which party suggested
State cannot insulate itself from liability through third party.
Newport News v. EEOC
PDA prevents discrimination on the basis of pregnancy.
Firms policy operated to provide benefits less favorable to the
spouses of male employees.
Firm discriminated against male employees because it afforded less
protection to male employees than to female employees.
Does not pass the simple test of whether the evidence shows that
treatment of a person in manner but for the persons sex would have
Cal Fed Savings & Loan v. Guerra
California law providing greater protection and better leave of
absence benefits to pregnant workers was not pre-empted by the
Supremacy Clause of the Constitution.
Is not inconsistent with the purposes of Title VII.
Does not require the doing of an act which is unlawful under Title
Must justify fetal protection policy under BFOQ defense. See BFOQ
Chambers v. Omaha Girls Club
Where Christian organization sought for its counselors to be role
models, could permissibly discriminate on the basis of pregnancy
using the business necessity test.
BFOQ/BN applies because role model is important and essential to
the purpose of the organization.
Meritor Savings Bank v. Vinson
Two categories of sexual harassment:
Quid Pro Quo
Conditions an employment opportunity or benefit on the exchange of
Hostile work environment
Creates an atmosphere of hostility.
Voluntariness of plaintiff, in submitting to the sexual
harassment, is not material.
Ware believes "coercion" is a better standard.
For sexual harassment to be actionable it must be sufficiently
severe or pervasive so as to alter the conditions of the
plaintiffs employment and create an abusive working environment.
Gravamen of complaint is that sexual advances were unwelcome.
No per se rule against admitting evidence of plaintiff's dress,
manner of speech, or conduct.
Employer Liability -- courts are to examine the common law of
agency for guidance in finding the employer liable.
Yates v. Avco
Elements of the claim:
Women are members of a protected class
They were subject to unwelcome sexual harassment.
The harassment was based on sex because men were not subjected to
Severe enough to affect terms and conditions of employment.
Sufficient facts exist to prove notice to employer and respondeat
Absence of notice does not insulate an employer from liability
Grievance procedure does not insulate from liability.
Steele v. Offshore Shipbuilding
Where company discharges its duty to promptly remedy violations of
Title VII under hostile work environment, company will not be
Hicks v. Gates Rubber Co.,
Aggregation of sexual and racial harassment into a Title VII claim
Rabidue v. Osceola Refining
Standard when judging hostile work environment claim is the
reaction of a reasonable person in essentially similar
Gays are out of luck -- their status is not protected.
May be able to make a colorable claim under the "sexual
stereotyping" rule of Price Waterhouse.
Corning v. Brennan
Work performed during day and night, when equal, demands equal
Where night inspectors, who were male, were paid more than day
inspectors, who were female, there was a violation of the act.
The only way to fix it was to equalize pay between men and women
for same work.
Thompson v. Sawyer
EPA does require jobs to be identical, only substantially similar.
Expert testimony is probably necessary to establish substantial
Kouba v. Allstate Ins. Co.
As a result of using prior salary as a factor in paying new
agents, women on average made less than men.
"Any factor other than sex" is an affirmative defense under the
EPA and must be pleaded and proved.
Employer cannot use a factor which causes a wage differential
between male and female employees absent an acceptable business
County of Washington v. Gunther
Bennett amendment made the affirmative defenses of the EPA
applicable to Title VII.
Claims for sex-based wage discrimination can be brought under
Title VII even though no member of the opposite sex holds an equal
but higher paying job.
AFSCME v. State of Washington
Comparable Worth is not a Title VII theory. Must prove
substantial similarity, not merely comparable worth.
Where state uses market factors to set job salary, no
discriminatory intent (DT) because state did not create disparity.
Corp of Mormons v. Famous Amos!
Religious organization is exempted from Title VII where hiring for
both religious and nonreligious jobs.
703 does not violate the Establishment Clause under a Lemon
Does the law serve a secular legislative purpose.
In essence, does the law promote a particular religious viewpoint.
Law must have an effect which neither advance nor inhibit
To have a forbidden effect it must be fair to say that the
government itself has advanced religion through its own activities
O'Connor confines opinion to not-for-profit activities.
TWA v. Hardison
Law requires reasonable accomodation of employees religious
Employer has a duty to accomodate but accomodation must not cause
the employer undue hardship.
Here, could not force the airline to override seniority provisions
in the collective bargaining agreement.
Ansonia v. Philbrook
Any reasonable accomodation satisfies the employers burden.
Employee may not hold out for his preferred accomodation.
Smith v. Pyro Mining Co.
PF Case for Religious Discrimination:
Plaintiff holds a sincere religious belief that conflicts with an
He has informed the employer about the conflict.
He was discharged or disciplined for failing to comply wiht the
Employer is free to choose among the least burdensome reasonable
EEOC v. Ithaca Industries.
Court had held that an absolute refusal to work on Sunday was per
Appeals court held differently. Must accomodate.
IAM v. Boeing
Where an employee has a strong religious view that forbids her
from paying union dues, she may make a charitable contribution
NLRA does not preempt Title VII.
Feldstein v. Christian Science Monitor
Religious organizations may discriminate on the basis of religion
at no penalty. End of story.
Erebia v. Chrysler Corporation
Hostile work environment claim under National Origin.
Threshold -- something more than isolated or sporadic shop talk.
Environment was hostile
Reported it to bosses
Management failed to take adequate steps to remedy.
Approaches the constructive discharge test, but is somewhat less
If a supervisor had engaged in the conduct it would have been
imputed to the Employer. Where employer knew about it and took no
action, employer is liable.
Gutierrez v. Muny Court of LA
English only rule has adverse impact on protected groups and
should be closely scrutinized.
Disparate impact analysis works here
Facially neutral policy works to disadvantage of hispanics.
No showing of business necessity.
Immigration Reform & Control Act effect on discrimination:
May not discriminate on the basis of citizenship status if this is
pretext for national origin discrimination.
May not discriminate against a noncitizen if they are becoming a
citizen using the IRCA approach.
LULAC v. Pasadena
Janitors dismissed for giving false SSN information. Could not
get SSNs yet under IRCA.
Since were applying under IRCA, antidiscrimination provisions were
in effect and this was discrimination based on citizenship status.
Payne v. McLemores
Cannot retaliate against an employee for lawful acts protesting
Employee needs reasonable belief that Employer is violating the
act. If he has a reasonable belief, he cannot be retailiated
against for protesting.
Illegal acts are not protected.
Policy: prevent chilling of protected rights.
Adverse employment action
Causal nexus between the two.
Exhaustion of Administrative Remedies
Timely file a charge with the EEOC
Timely file a complaint with the federal court within 90 days of
receipt of notice of right to sue from EEOC.
Timely Filing with EEOC
Must file within 300 days in a deferral jurisdiction.
But charge may not be filed before expiration of sixty days after
procedings have been started at the state or local level
Creates a 240 day requirement. May not bring a claim in a
deferral jurisdiction unless its brought to the local agency
within 240 days of the act.
300 day rule in non-deferral jurisdictions -- no requirement to
Statute begins to run on the date the decision is made and
communicated to the employee (Ricks).
Continuing Violation Theory. -- there really isnt one.
But, in Lorance, where the seniority system was the culprit, the
new act is amended to start the statute running when the effect is
first felt by the employee, not when the system is adopted.
If defendant conceals reasons or facts that would put plaintiff on
notice of discriminatory action, then statute runs not from date
of decision but from time when plaintiff learned of discriminatory
If defendant is corporation that asks for more time to conduct its
own investigation, and says it won't assert the S/L as a defense,
its bound to its word.
State Judicial Remedies
When you lose at a deferral agency, don't seek review in state
court. If you do, you're bound to the state court proceding
through res judicata.
Timely Filing in Federal Court
Must file within 90 days of receipt of right to sue letter.
Some courts use constructive receipt, others use actual receipt,
depending on circumstances.
If represented by counsel, notice to counsel is notice to you.
Make Whole and Rightful Place Theories.
Make Whole Theory
Idea is to compensate the victim as if there had never been an
May order reinstatement
May order backpay
Ware says there is a presumption of backpay unless factors
May order retroactive seniority.
Granting retro seniority rights does not modify any right under
Innocents are not penalized, and no dot benefit.
Collateral Source Rule
Funds collected from other sources (welfare, etc.) are deducted
from backpay award.
Must mitigate if possible.
May order frontpay -- this is where the court awards money to make
up for the fact that blacks don't have as much seniority or other
benefits by virtue of discrimination.
Franks v. Bowman Transp. Co.
Ct. allowed retroactive seniority.
703(h) does not bar the award of retroactive seniority.
Retro seniority is not required in all circumstances.
Procedural and Substantive Standards
May award retroactive seniority to non-applicants if can show that
reputation prevented them from applying.
Predicated on belief that application was futile gesture.
Bibbs v. Block
1991 Act overrulled Bibbs and Price Waterhouse.
Plaintiff must show discrimination was motivating reason. If
defendant shows the same decision would have been made, then:
Court won't order backpay or reinstatement.
Court can order an injunction.
In a class action each member does not have to exhaust remedies.
Prevailing party gets attorney's fees.
Prevailing defendant can, in some instances, get fees, but this is
Only need to prevail on any substantive issue.
Settlement can result in fees being awarded.
Often times settlement agreements tend to lock out fees as a
function of settlement.
Fees tied to things successful on. So, if have ten counts, and
only succeed on one, then only get 1/10 the fees or fees
associated with that issue.
Final Note -- PF Case under DI
Identifies a particular selection criteria or employment practice.
Shows that the practice operates to exlude members of a protected
class in numbers disproportionate to their representation in the
qualified job market.
Employer must show job related/business necessity
Plaintiff can then show other selection criteria which serve the
employers legitimate needs without the negative impact.
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