Anti-Discrimination Flashcards
Federal Sources of antidiscrimination
o Title VII: everyone is protected, race, religion, pregnancy, sex, national origin
o § 1981: everyone, prohibits race discrimination, even in the private employer context
o ADA: disability - limited class, qualified
o ADEA: age - 40 or older
o Other: GINA, USERRA
Themes and Key Issues:
o When is intent needed? How does one prove intent? Role of stereotypes? Unconscious bias?
o When is facially neutral policy discriminatory?
o To what extent does employer need to accommodate one of a protected class?
o When is discrimination against nonminorities unlawful? (Title VII protects against ALL, including nonminorities)
o When, if ever, is discrimination legally justified? Yes, NARROW circumstances: BFOQ defense.
o Has antidiscrimination law work?
4 “models” of discimrination
Disparate treatment = based on the idea of intentional discrimination NEED INTENT (but intent doesn’t have to have animus, just needs to be differing treatment based on classification)
* “Individual” Disparate Treatment (most cases)
* “Systemic” Disparate Treatment
Disparate impact = facially neutral laws that have discriminatory effects on a protected group, which cannot be justified
* o π must isolate the factor that creates the disparity
* o ∆ needs to show that it was a necessity i.e. good business reason
* o π then shows that the necessity can be served by other ways
Harassment – some say this is subcategory of disparate treatment, but analytical framework is distinct.
Reasonable Accommodation = places burden on employers to those who are protected to accommodate them (i.e. disability-ADA, or religion issues)
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Individual Disparate Treatment
Proving Discrimination:
Plaintiff has burden of establishing discriminatory intent.
o Direct & Circumstantial Evidence:
a. Need a motive that is tied to the outcome
o Pattern or policy (smoking gun)
o Circumstantial evidence, such as comparing to other workers (“comparables”)
prove they suffered negative employment action/consequence based on class.
Cases for Section
Slack v. Havens:
Title VII discrimination case. Black workers told to do heavy clean up that white coworkers wouldn’t do. Supervisor made stereotype remarks.
for whatever. Even if for-cause, maybe could still fire because they refused to clean.
** In order to prevail, plaintiff must show discriminatory motive. Conscious intent to discriminate.**
* Agent of the employer employer motive, meaning the actions of manager/supervisor imputed to employer.
* Statements of supervisor about the stereotype can be enough if linked to decisions.
* Here, even without the statements, was there enough to show discriminatory intent? Probably, we could infer discrimination from the differing treatment of the 4 blacks compared to the 1 white (aka comparator evidence). Differing treatment could give rise to reasonable inference of discrimination.
Discriminatory Motive must be tied to a protected class.
Biggins:
: old guy terminated to avoid paying his pension
* Not enough to show correlation with protected class motive needs to be tied to the outcome need CAUSATION. Pension vesting is analytically different then age. Correlation is not enough. No age discrimination here because only correlation present.
(a) NOTE – what about the fact that older people generally have higher salaries and many employers can replace them with someone younger for less money
(i) True motivation to save money NOT actionable
(ii) Motive tied to actual age discrimination actionable
i. Example: you CANNOT be fired because you are Mexican, but you CAN be fired because you don’t speak English.
* Firing someone to avoid a pension vesting is NOT per se age discrimination pension vesting was correlated with age, but was not age-related discrimination must be actually about age, and not just something correlated with age.
McDonnell Douglass Framework:
McDonnell Douglass burden-shifting framework ONLY applies to circumstantial evidence cases
Step 1: BURDEN ON PLAINTIFF- Employee must show a prima facie case (need all 4 elements) (presenting sufficient evidence creates a presumption of discrimination – not onerous)
(a) Employee belongs to a protected class (not only racial minority);
(b) Employee is minimally qualified for the job (easy standard);
(c) Adverse employment action against employee (not hired, terminated, not promoted); AND
(d) Other circumstances suggesting discrimination (i.e. not hired, but position remained open, or the job went to someone outside the protected class, or you were replaced by someone outside the protected class, or job was filled by someone not qualified at all, etc.)
Step 2: BURDEN SHIFTS TO EMPLOYER – Employer must show a “non-discriminatory reason” the employer’s showing of a non-discriminatory reason is simply a burden of production (NOT persuasion) (if employee shows, the presumption drops away)
(i) This is very easy to satisfy but if employer cannot even give a reason, then employee wins.
Step 3: BURDEN SHIFTS BACK TO EMPLOYEE π must then come forward with evidence that employer’s proffered reason is “pretext”.
(a) This can be done in two ways: 1) its simply false; 2) true, but not the real reason
(i) This is where “comparators” may come into play;
(ii) Show reason may have been true, but others were not affected by the reason
i. i.e. I was late, but other people were late twice as much and nothing happened
Hicks:
PLAINTIFF HAS ULTIMATE BURDEN OF PERSUASION ON WHETHER OR NOT THE MOTIVE WAS DISCRIMINATORY. Plaintiff not entitled to summary judgment because prima facie case and pretext was proven. Plaintiff still has the burden to demonstrate that the underlying motive is discriminatory (plaintiff must show reason was pretextual, AND discrimination was the real cause for decision).
prior to Reeves there was three-way split on Are prima facie case and pretext alone enough to prove discrimination?
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3 types of “pretext” jurisdictions:
o “Pretext plus”: to get to the jury, you need evidence beyond prima facie case & pretext need to show that discrimination is real reason (i.e. with statistics, facts, comparables, etc.)
o “Middle”: look at the particular facts of the case to see what is enough could reasonable fact finder find X? if so, get to jury
o “Pretext alone”: π only needs to show pretext to get to jury
Reeves:
age discrimination case where there is prima facie case and pretext. Court rejected pretext plus approach and took the middle approach.
o Court says Hicks is properly read as allowing inference of discrimination from prima facie and pretext alone. (p.564)
o Court cautioned though and said that this is NOT always adequate.
o Note – not all lower courts follow Reeves
o ***Reeves makes clear that McDonnel Douglas burden shifting framework is for the Judge NOT the jury. Court does not instruct jury on McDonnel Douglass framework, rather they should be told to decide if ultimate reason was discriminatory.
o Mendelsohn (p. 367) – “me too” statements from others may be used as evidence. SCOTUS said each case the court must look at relevance in light of the circumstances and determine if it is prejudicial.
Comparator Evidence:
- People who are similarly situated to the π (except for actually being in the protected class) but were treated differently.
- Comparators mostly come into play at the pretext stage.
o Comparators may be used, for example, where someone outside the protected class gets a job despite having lesser qualifications than the plaintiff.
o Comparator evidence may also be used in disparate discipline cases, but courts typically require a very close correspondence between the plaintiff and the comparator before such proof is given much weight.
The main question is really about whether there is sufficient evidence to get to a jury but π can still lose even if π gets to jury
- NOTE – both Title VII and §1981 bar discrimination against whites.
(a) Men are also protected against sex discrimination under Title VII.
(b) In regard to “reverse discrimination,” a number of courts have adopted a “background circumstances test,” which requires that the π establish background circumstances that support an inference that the employer discriminates against the majority in order to make out a prima facie case.
Mixed-Motive Analysis: Framework for Causation (Price Waterhouse):
- Price Waterhouse – this case is important for two reasons. 1) employer actions based on sex or other stereotyping is actionable as intention discrimination. 2) this case established how the court should address mixed motives.
- Court said plaintiff can show motive showing employer acted based on stereotypes.
o Here this case involved sex stereotyping which were shown by the clear employer statements. - Mixed motive issue – defendant argued that it would have made the same decision anyway.
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Court said “would have made same decision” is an Affirmative Defense.
Brennan Framwork:
o Once a plaintiff establishes that sex is a motivating factor, defendant can avoid liability by proving it would have made same decision anyway.
O’Conner Framework
o Narrowest view – burden shifts to the defendant only when there is “direct evidence” that sex was a “substantial factor” in that decision.
o O’Conner suggested distinction between direct evidence (Same decision anyway) and circumstantial evidence cases (McDonnel Douglas).
o
Plaintiff need not prove but-for causation under Title VII (unlike torts cases). The burden depends on the nature of the evidence, as per Justice O’Conner.
1991 Civil Rights Act took the Brennan Framework but changed the affirmative defense to a remedy limiting provision. if same decision w/o motivating factor then only protected from monetary damages.
Desert Palace – (This case was AFTER Price Waterhouse) (1991 Civil Rights Act – Congress expressly adopted a motivating factor test for Title VII and said the defense in Price Waterhouse is no longer defense to liability, rather it limited damages.)
o Court says there are NOT two separate tracts (NOT one for direct evidence and one for mixed motives)
a. Plaintiff may prove a discriminatory motive by any evidentiary means.
b. Once a plaintiff proves discriminatory motive then the Price Waterhouse “same decision” defense is available and defendant bears the burden of persuasion.
c. How can we think about these?
* Think of it akin to breach and causation in torts:
o Plaintiff bears burden of discriminatory motive (direct or circumstantial).
o If discriminatory motive is found, then defendant can be liable, but can come forward to show would have made same decision anyway. Defendant has burden here.
Gross - under ADEA, P bears burden of proving discriminatory motive AND causation. 1991 Civil
Rights Act doesn’t apply to ADEA.
Systemic Disparate Treatment
o Motive must still be a factor, but it affects an entire group rather than one person.
o Allege a policy or pattern of practice.
a. There are two ways it can be shown:
o Express (Actual policy) – This is rare unless the employer believes it is legal for some reason.
o Tacit policy (pattern or practice of disparate treatment normally proven through statistics).
(a) This is a form of circumstantial evidence.
(b) Disparate treatment can be so difficult to prove when there is not an overt policy usually involves a “battle of the experts”.
(c) Two principal ways that employers attack the plaintiffs’ statistical demonstration:
(i) Disputing whether statistics actually show a disparity
(ii) Explaining away the statistical disparity as something other than discrimination
BFOQ Defense
Bona-fide Occupational Qualifications (BFOQ) Defense: (only applies in express policy circumstances) BFOQ allows classifications in limited circumstances where the protected characteristic is strongly enough related to success on the job.
a. BFOQ does NOT apply to RACE.
b. Employers CANNOT rely on stereotypes or assumptions to use a BFOQ.
c. It must be reasonably necessary to the essence of the business. (Extremely Narrow Defense!)
d. BFOQ must be objective & verifiable and concern job-related skills or aptitudes.
* BFOQ Elements:
o Qualification must go to the central mission (“essence”) of the business and central to the position (cannot be tangential mission or job function)
o Must be “reasonable necessity” more than mere convenience or reasonableness
(i) Can show that all persons in the protected group are unable to perform essential job duties
OR
(ii) Can show that it is impossible to test the all of the protected group to show who can and who cannot perform the job.
How might plaintiff defeat BFOQ defense? Use comparator evidence to show all person in class are not incapable of doing the job.
BFOQ and gender? – actress, anatomical differences, undercover agents, etc.
BFOQ Defense
Bona-fide Occupational Qualifications (BFOQ) Defense: (only applies in express policy circumstances) BFOQ allows classifications in limited circumstances where the protected characteristic is strongly enough related to success on the job.
a. BFOQ does NOT apply to RACE.
b. Employers CANNOT rely on stereotypes or assumptions to use a BFOQ.
c. It must be reasonably necessary to the essence of the business. (Extremely Narrow Defense!)
d. BFOQ must be objective & verifiable and concern job-related skills or aptitudes.
* BFOQ Elements:
o Qualification must go to the central mission (“essence”) of the business and central to the position (cannot be tangential mission or job function)
o Must be “reasonable necessity” more than mere convenience or reasonableness
(i) Can show that all persons in the protected group are unable to perform essential job duties
OR
(ii) Can show that it is impossible to test the all of the protected group to show who can and who cannot perform the job.
How might plaintiff defeat BFOQ defense? Use comparator evidence to show all person in class are not incapable of doing the job.
BFOQ and gender? – actress, anatomical differences, undercover agents, etc.
BFOQ Cases
Johnson Controls:
Court said no BFOQ when employer barred women for jobs where exposure to lead was possible. BFOQ focuses on job qualifications only
* NOTE – Cannot say that you are “protecting” the employee by your discrimination (needs to be related to essential job functions i.e. cannot refuse to hire pregnant women because job deals with lead exposure
(a) (pregnancy is not related to essential job functions of handling lead) person has choice to choose whether she wants to work with lead or not, but employer can’t bar them outright.
Breiner:
Only women were hired as correctional officer Lieutenants.
o Court rejected de minimis theory and BFOQ
o Court said there was no showing of “high correlation” between sex and ability to perform job.
a. Court said employer did not show that all men could not supervise female prisoners.
b. No basis to assume sex abuse would continue under male supervision.
Good example of how narrow this defense is
*Customer preference and market differentiation alone typically fails (Love Airlines case, flight attendant weight policies, Hooters litigation Using sex appeal is insufficient to justify a facially discriminatory policy on sex.
*Privacy/autonomy interests of clients, patients, customers are more likely to succeed. (custodial setting like jails)
Voluntary Affirmative Action
o Voluntary Affirmative Action:
a. AA plan’s use of race or sex must be aimed at remedying a manifest imbalance in a traditionally segregated job category.
b. AA plan is okay if it does not deprive an employee of a vested right, is not an absolute bar to majority workers’ advancement, and it is aimed at attaining (not maintaining) racial balance.
c. Generally two requirements:
* Must be based on a “manifest imbalance” between percentage of historically excluded workers in the category and percentage in relevant labor pool. (Not necessarily need to have history of discrimination)
* Must not “unduly trammel” on the rights of majority workers. Program has to be narrowly tailored to address the rights, without hurting the majority.
* Weber case – Example of an acceptable program.
o SCOTUS UPHELD.
o Half of training slots were reserved for black (historically withheld)
o Important that it only reserved half the slots, and the time was restricted and stopped once labor pool was balanced.
* Taxman – probably unacceptable, but case settled
o School board laid off white over black teacher for diversity reasons.
o No imbalance was shown here between the races
o Case settled. But there was no manifest imbalance and it probably unduly trammeled on the rights of majority workers.
d. Race CANNOT be used as a tiebreaker in deciding who to promote or terminate.
i. NOTE –there is a difference between analyzing AA plans under TVII and the Constitution an AA plan may meet TVII and yet still be unconstitutional.
ii. NOTE – court has recognized diversity as justified rationale in higher education, but has NOT recognized it in the employment context (as of yet).
Systemic Disparate Impact Discrimination:
o Disparate impact theory does NOT require intent that fact that there “is” a disparate impact is enough.
Griggs - Court suggests a balance: concerned about legitimate interest of employers, but also concerned about barriers for minority groups that are unsupported by business necessity
* Tries to eliminate facially neutral policies that disproportionately harm a certain class if NOT justified.
* Promotes equality in opportunity by eliminating unnecessary barriers.
* But still does recognize that employers might have good reason for policy.
* Another potential justification is to address forms of institutionalized discrimination.
o In Griggs, blacks had fewer educational opportunities and the employer relied on education for promotion criteria and said that would perpetuate past discrimination
o Court said can maintain education requirement ONLY if good reason for doing so
Systemic disparate impact cases are rare and difficult to bring forward. Although not many brought, it has had a profound impact on employers. They are aware of this and likely do not have tests that could not be justified.
First there was Griggs, then an intervening case called Wards Cove that changed framework, then in 1991 the Civil Rights act changed the framework back to what it looked like in Griggs.
a. **3 Elements to a Disparate IMPACT claim: **
1) Π must isolate a single particular factor or criterion that an employer is using, which is causing a disparity. (can be difficult in many settings that use many factors instead of single criterion)
2) Π must show significant disparate impact (usually through statistics % of group applied vs % of that group accepted)
(a) EEOC established a 4/5 test. Basically that if minorities hired at less than 80% of rate of majority then that would be deemed sufficiently disparate impact.
3) IF plaintiff can show 1 and 2, then burden SHIFTS TO ∆ to show some form of “business necessity” for the challenged criteria. (This is actual shift of burden of persuasion. Must prove by preponderance of evidence. Must be particularized legit good business reason that is related to particular job, job functions. Bar is set fairly high here.)
Examples where employer was unable to satisfy business necessity: Griggs employer was unable to show why the educational requirement was needed. Court pointed out that other who did not attain education did just fine in the job. Wight lifting requirement a FD requires someone to carry weight up a ladder. This might be necessary, BUT the employer must be able to demonstrate that the particular weight requirement is in fact necessary. One way to contest this is to show firefighters are successful in other departments that do not need to carry such weight (comparator evidence can be used to contest the employer requirement)
NOTE 1991 Civil Rights Act – provides that even if employer is able to show the business necessity, the plaintiff can them come back and show that there is an alternative that serves the same necessity but has less of an impact, then employer has to use that. CAUTION – rarely litigated, but this is possible option for plaintiff)
