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Disparate Impact

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 jobs.

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 Constitution.

Watson v. Fort Worth B&T -- Disparate Impact analysis is applicable to both objective and subjective employment practices.

Disparate Treatment

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 complainant's qualifications.

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 of discrimination.

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.

P&P is:

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 geographical region.

Mere imbalance is not determinative.

Statistics are probative because they are often a telltale sign of purposeful discrimination.

Statistics can be used to make out a PF Case. This is especially true where there is gross disparity, and there is other supporting evidence.

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 discrimination.

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 considered.

Union Discrimination

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 discrimination.

Dissent in union case said that it would not have imposed a burden on the union to remedy employer's discrimination. Ware doesnt like it.

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.

Statistical Evidence

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 of act.

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 be qualified.

Evidence that conspicuously demonstrates disparate impact is enough.

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 disparate impact.

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 correlation, however.

Three step validation procedure:

First specify particular train or characteristic.

Then determine that the trait is an important element of work behavior.

Finally, must demonstrate by professionaly acceptable methods that the selection device is predictive or correlative with the work behavior.

BFOQ Defense

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 for BFOQ.

Safety exception is narrow. For example, in Dothard, safety of woman alone was not enough to justify the exclusion on basis of sex.

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 purposes.

PDA prohibits BFOQ unless it relates to the essence of the particular business.


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.

Bonafide means the seniority system was not created with discriminatory intent.

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 limitations period.

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 fide:

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 industry practice.

Court must consider whether the seniority system had its genesis in racial discrimination.

Whether the system has been negotiated and maintained from of discriminatory intent.

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 only whites.

Where there is evidence of discriminatory intent or purpose the court will not overrule a finding unless clearly erroneous. Here no feeling of mistake.

Sex Discrimination

Hishon v. King & Spalding

Same standards apply to sex discrimination case as to employment discrimination.

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 impact.


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:

Seniority system

Merit system

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 alone.

Arizona Governing Comm. v. Norris

Employer selected three providers, all of whom paid lower benefits to women.

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 themselves.

Both parties to a discriminatory contract are liable for any discriminatory provisions, regarless of which party suggested their inclusion.

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 been different.

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 VII.

Johnson Controls

Must justify fetal protection policy under BFOQ defense. See BFOQ above.

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 sexual favors.

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 similar treatment.

Severe enough to affect terms and conditions of employment.

Sufficient facts exist to prove notice to employer and respondeat superior relationship.

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 liable.

Hicks v. Gates Rubber Co.,

Aggregation of sexual and racial harassment into a Title VII claim is permissible.

Rabidue v. Osceola Refining

Standard when judging hostile work environment claim is the reaction of a reasonable person in essentially similar circumstances.

Sexual Preference

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 pay.

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 similarity.

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 reason.

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 analysis:

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 religion.

To have a forbidden effect it must be fair to say that the government itself has advanced religion through its own activities and influence.

O'Connor confines opinion to not-for-profit activities.

TWA v. Hardison

Law requires reasonable accomodation of employees religious beliefs.

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 employment requirement.

He has informed the employer about the conflict.

He was discharged or disciplined for failing to comply wiht the conflicting requirement.

Employer is free to choose among the least burdensome reasonable accomodation.

EEOC v. Ithaca Industries.

Court had held that an absolute refusal to work on Sunday was per se unreasonable

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 instead.

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.

National Origin

Erebia v. Chrysler Corporation

Hostile work environment claim under National Origin.

Threshold -- something more than isolated or sporadic shop talk. Must show:

Environment was hostile

Reported it to bosses

Management failed to take adequate steps to remedy.

Approaches the constructive discharge test, but is somewhat less than that.

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 discrimination.

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.

PF Case

Protected expression

Adverse employment action

Causal nexus between the two.

Exhaustion of Administrative Remedies

Basic Requirements

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 wait.

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.

Equitable Tolling

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 action.

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 injury.

May order reinstatement

May order backpay

Ware says there is a presumption of backpay unless factors indicate otherwise.

May order retroactive seniority.

Granting retro seniority rights does not modify any right under seniority system.

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.

Attorneys Fees

Prevailing party gets attorney's fees.

Prevailing defendant can, in some instances, get fees, but this is rare.

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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