Employment Discrimination Outline Fall 2011

I: INTRODUCTION
1. Basics
a. WHAT are the Procedures for Enforcing Anti-discrimination Law? i. Title VII enforcement procedures are found in 706, 42 U.S.C. 2000e-5. 1. A charge of employment discrimination must be filed with the EEOC within 180 or 300 days from the date of the unlawful employment practice. Under the Fair Pay Act, the EEOC filing period is 180 days in states without a local fair employment practices agency, and 300 days in states with a local fair employment practices agency. The plaintiff must also file with the relevant state agency before filing with the EEOC. Additionally, the state agency must be accorded 60 days to act before the EEOC can commence its processes. 2. 706(b) requires: a. Date b. Place c. Circumstances of alleged unlawful practice d. Must be under oath for Title VII and ADA charges. ii. The unlawful employment practice occurs when the discrete act occurs, when the discriminatory decision is made; not when it became effective (Discrete Act Rule). iii. Standard: when a reasonable person could be expected to be aware of facts giving rise to knowledge of the decision or act. This does not mean knowledge that the act itself was discriminatory; just that the act/decision occurred. 1. Factors to be considered in determining when the unlawful practice occurred include: a. Finality of decision b. Unequivocal nature of decision c. Complainant receives notice of final decision 2. The Paycheck Rule was established by the Fair Pay Act is an exception to the Discrete Act Rule and provides that: a plaintiff who suffered discrimination in compensation can file a timely charge within 180/300 days of receiving a paycheck that is lower than it would have been absent the discrimination. In other words, a new clock begins to run from the date of receipt of every discriminatory paycheck. Compensation decisions, with present consequences on pay are actionableno matter how far in the past the discrete compensation decision is made. iv. Hostile Work Environment Claims also contain an exception to Discrete Act Rule 1. A hostile work environment claim can be timely charged within 180/300 days of any act that contributes to the same contaminated environment. a. At least 1 incident harassment must have occurred within 300 days of the date the charge is filed. 2. Hostile work environment claims involve discriminatory actions that are continuing in nature. 3. Charging party may file charge with EEOC where she lives, where she works, where alleged discrimination occurred. 4. Timeliness requirements can waived or subject to equitable tolling. b. Facially discriminatory practices can be challenged at any time.

c. Typical Scenario i. To file a lawsuit quickly under Title VII or ADA . . . Plaintiff must file suit within 180 days of filing charge with EEOC, but must request and receive a right-to-sue letter from EEOC ii. To file lawsuit quickly under ADEA . . . plaintiff can file suit 60 days after filing charge with EEOC and can file without a right-to-sue letter from EEOC. b. Remedies for Discrimination i. 706(g)(1) of Title VII and 107 of the ADA provide for: injunction, affirmative action as appropriate, reinstatement or hiring of employees, with our without back pay, or any other equitable relief as the court deems appropriate. ii. 626(b) of the ADEA provides that: a court may grant legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement, promotion, or enforcing the liability for amounts deemed to be unpaid wages. iii. Back Pay should only be denied in special circumstances. a. Front Pay: compensation for successful employment discrimination plaintiff for losses during period starting with judgment and ends when plaintiff is reinstated or in lieu of reinstatement. i. Reinstatement is preferred but front pay is substitute when reinstatement is not feasible. b. Compensatory Damages i. Standard: amount cannot be grossly excessive. ii. Proof of intent to discriminate entitles plaintiff to compensatory damages iii. Compensatory damages are calculated per person and the limits above combine compensatory and punitive damages only. iv. Damages do not include back pay, front pay, benefits, interest, etc. v. Types of harm for which compensatory damages are a remedy include: 1. Harm to reputation 2. Loss consortium 3. Inability to care for oneself or family 4. Loss of home 5. Bankruptcy vi. Almost anything that is not within the back pay award. c. Punitive Damages (Title VII and ADA) i. Damages do not include back pay, front pay, benefits, interest, etc. ii. Punitive damages cannot be grossly excessive. iii. Punitive damages are only available in disparate treatment cases. d. Attorneys Fees i. A court may award attorneys fees to the prevailing party under Title VII or the ADA.

II: INDIVIDUAL DISPARATE TREATMENT

pp 88-144

1. Basics
a. WHAT is Disparate Treatment? i. These claims are by far the most common in employment disc cases ii. Looking for a facially discriminatory claim here iii. It is the intentional denial of an opportunity or benefit of employment because of a characteristic protected by EEO laws. b. **HOW do you succeed in a disparate treatment case? i. You must FIRST prove INTENT to discriminate. 1. You can prove discriminatory intent with direct evidence or circumstantial evidence or both.
a. Direct employer revealing discrimination (uncommon); more direct evidence can be more persuasive i. E.g. racist statements, discriminatory hiring policy, etc. 2. Circumstantial (or indirect/inferential) much more common a. E.g. timing, comparative evidence, remarks similar to racist/sexist comments in various contexts, statistical evidence, etc.

ii. When making a claim for employment discrimination based on disparate treatment, you are always looking for differential treatment; meaning, other employees were treated differently than plaintiff(s). iii. ***Note that Ps can meet the burden in these cases head on by showing
either that discrimination based on protected class was the determining factor in adverse action this can be done using direct or circumstantial evidence 1. cts in recent years have used the Price Waterhouse mixed motive/motivating factor framework for direct evidence cases!! 2. or they can use the McD-Doug framework outlined below

c. WHAT are the ELEMENTS to an individual disparate treatment claim? (3) i. Employer intended to discriminate; ii. Employer took action that had adverse effect on individuals employment; and iii. Employers action was linked to its intent to discriminate. d. WHAT is the Standard for proving discriminatory intent? i. Plaintiff must show that her protected trait. 1. Played a role in the employers decision; and 2. Had a determinative influence on the outcome ii. NOTE: This standard applies in Title VII, ADEA, and ADA cases. e. WHAT does the STATUTE say? i. Statutory Text disparate treatment claims based on 703(a)(1) 1. Employer Practices: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin

2. Cases
a. Seminal Case: McDonnel Douglas (1973, p. 93). Method of proving disparate treatment. i. This case was a failure to hire case, that outlined the elements of prima facie case to prove disparate treatment. McDonnell-Douglas 3-step burden-shifting framework [NOTE: applies to applicants and current employees, i.e. discharge] mostly indirect evidence cases. Pretext/Single Motive. ii. Steps: 1. Plaintiffs prima facie case, which creates a presumption of discrimination a. Must show that she is a member of the protected class; b. Applied for and was at least minimally qualified for a position employer was seeking to fill; c. Despite her qualifications, an adverse action (a materially adverse action that alters the terms, conditions, or privileges of employment) was taken against plaintiff in the form of rejecting her; and d. After her rejection, the position remained unfilled and employer continued to seek applications from others with plaintiffs qualifications. (It is typically easy for plaintiffs to establish a prima facie case as courts generally will not allow defendants to short circuit McD analysis by challenging plaintiffs qualifications). (Be sure to modify elements of prima facie case to fit the factual situation presented). 2. Then the burden shift to the D-employer to articulate some legitimate nondiscriminatory reason for the employees rejection a. This can be done with basically any reason so long as it doesnt violate Title VII, but the defendant must have evidence supporting the reason). b. Not a burden of proof here, just has to produce a legitimate reason i. Leg nondisc reason just means a legal reason based on admissible evidence c. If D fails this burden of production, P wins, but D usually easily rebuts 3. Burden shifts back to P to show that Ds stated reason for rejection was in fact pretext a. Burden of proof (production and persuasion) remains with the plaintiff to show that that the employers stated non-discriminatory reason is pretext for intentional discrimination. 4. Standard: Can a reasonable jury infer discrimination from the evidence of the prima facie case plus the proof of pretext? 5. Examples of ways to prove pretext include: a. Reason(s) has no basis in fact b. Reason(s) did not actually motivate defendant c. Reason(s) were insufficient for action taken d. Inconsistent reasons e. Changing reasons f. Discriminatory comments g. Unequal treatment between similarly situated individuals (comparitor evidence) h. Evidence of stereotyping

b. Burdine. (1981, p. 104). Method of proving disparate treatment continued. i. Rule: The plaintiff has the burden of establishing a prima facie case of discrimination, and if the defendant can articulate a legitimate nondiscriminatory reason for the conduct then the burden falls back to the plaintiff to prove by a preponderance of the evidence that the reasons put forth by the defendant were just a pretext for discrimination. ii. Analysis: There was confusion in lower courts about 2nd stage of McD-Doug framework some cts had held that D need to prove legitimate nondisc reason by a preponderance of the evidence 1. Sup Ct clarifies that its only a burden of production and that P will have ample opportunity to attack the reason in the 3rd stage of the analysis (this will make D give a good reason) 2. Defendant does not have to show that reasons are true. Just have to put forward reasons that are legitimate or non-discriminatory. Just has to raise a genuine issue of fact. Defendant will almost always offer a legitimate, non-discriminatory reason; and they will almost always get to the pretextual, where the burden is shifted back.

III: Mixed Motive and the Civil Rights Act of 1991

1. Basics
a. Mixed Motive i. A mixed motive case is one in which the employer relies on both legitimate, nondiscriminatory reason and an unlawful, discriminatory reason at the moment it makes an adverse employment decision, and both the legitimate and illegitimate reasons are motivating factors in the adverse employment decision. ii. Statutory text mixed motive claims based on 703(m): 1. Impermissible consideration of race, color, religion, sex or national origin in employment practices Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. 2. Plus see also 706(g) limits the relief available to a P from a 703(m) claim IF D proves by POE that they would have made the same decision anyways no damages or admission/reinstatement/hiring/promotion a. P can still get declaratory relief, injunctions, attorneys fees i. No Comp/Pun damages though b. Ds aff defense must prove that this truly was the reason 3. Both of these are congressional reactions to the Price Waterhouse decision Plaintiffs Atty Initially youd want to prove 100% it was based on the discriminatory reason a plaintiffs lawyer wont take a mixed motive case because its too much work and doesnt make enough sense for the plaintiffs atty, but in case theres doubt, mixed motive gives you a fall back position Defendants Atty: Since theres a finding that they had a discriminatory motive that was a factor, ER will like this outcome because they will still get off from some damages with the mixed motive statute. Like the plaintiff wont come in arguing mixed motives, the ER wont come in arguing mixed motives either the way you usually end up in mixed motive land is that someone (usually the judge) decides theres enough evidence of both a discriminatory and nondiscriminatory reason that youll give it to the jury with mixed motive instructions.

2. Cases
a. Price Waterhouse v. Hopkins (1989, p. 134). Resolved conflict among courts concerning the respective burdens of proof of D and P in suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegit motives. i. Held: when a plaintiff proves that her gender played a motivating part in an employment decision, the D 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 Ps gender into account. If ER can show this, there is no violation of Title VII 1. Congress did not like this and amended the statute to add this language 2. This is b/c once there is an unlawful motive, the discrimination that occurred can be wiped off b/c there was a good reason to fire the person 3. Congress also didnt want to interfere with the prerogatives of the business owner who would have fired the EE anyway a. Solution was for Congress to limit remedies but allow attys fees so that Ps still have incentive to bring these cases ii. (J. OConnor). Held that burden of persuasion shifted to D when P demonstrated by direct evidence that an illegitimate factor played a substantial role in an adverse employment decision rejected. b. Desert Palace v. Costa. (2003, p. 145). Current Law i. Supplies a new evidentiary rule which provides that P need only demonstrate that race/sex/etc. was a motivating factor and no special showing of direct evidence is required 1. And restricts remedies for P if D proves affirmative defense 2. Basically makes it easier for P to win on the liability issue if P shows motivating factor, but limits remedies if D can prove aff defense ii. Held: The Ct held that a ct. can give mixed motive instruction with circumstantial evidence of employers discrimination as well. Direct evidence is not required in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964. iii. the SCs decision interpreting 703(m): 1. RULE: Absent some statutory prohibition, P can use circumstantial or direct evidence to shift burden of persuasion to D to prove the aff defense a. NOTE: Ds can use circum or direct evidence to prove aff. defense iv. Majority view: Some courts still hold that there is a separate single motive claim separate from mixed motive claims v. Notes: 3. Ds generally want the single motive instruction whereas Ps generally want mixed motive 4. yet, in situations where P feels they have a stronger case, they might just want the normal single motive instruction a. in general, any party that feels they have the stronger case wants the single motive instruction and vice versa for a weaker case

IV: SYSTEMATIC DISPARATE TREATMENT

(pattern or practice cases) pp. 195-216

1. Basics
a. WHAT are systematic disparate treatment cases known as? i. Pattern or Practice claims b. WHAT is the pattern or practice theory? i. When an employer engages in a pattern of discrimination 1. e.g. an employer who routinely rejects certain minorities or steers them into lowpaying jobs ii. It is a way to attack class-wide treatment when you dont have an actual policy or explicit discrimination. c. HOW can you prove a pattern and practice claim (standard of proof)? i. Stage 1: LIABILITY 1. P must establish PF case that discrimination was the companys standard operating procedure, not just an isolated incident. a. Need significant evidence of the alleged routine and more recently courts have refused to find for P here without significant individual testimony to support statistical evidence, b. Done through evidence of longstanding and gross statistical disparities, gaps of two or more standard deviations between expected outcomes and actual outcomes, anecdotal evidence, etc. 2. Burden of Proof then shifts to D, either to show that Ps statistical showing is unreliable/inaccurate OR that statistical disparities can be explained by some nondiscriminatory reason a. If D fails to meet this burden, P prevails at Stage I, and litigation proceeds b. Note: a very strong statistical showing, alone, can establish a prima facie case of systemic disparate treatment. ii. Stage II: REMEDY 1. Individual members of protected class who were subject to adverse employment decisions are now presumed to be entitled to relief as victims of discrimination, unless defendant can meet burden of proof that discrimination was not the reason for that individuals adverse treatment iii. **All members of protected class are presumed to be discriminated so if there is liability, D usually settles rather than go to trial with each separate P d. WHAT is the significance of statistical evidence? i. Very important in these types of cases. They are merely one form of circumstantial evidence. ii. Can be used in both disparate impact and disparate treatment claims. iii. if there is a big deviation from the numbers that employer hires and numbers in the general population or some other sample (based on locality, skill, etc.), then this deviation can be statistically significant 1. Concept of Standard Deviation a. Fewer SDs means difference is more likely due to chance iv. Need appropriate comparative class 1. Ps must use right geographical boundaries when presenting statistical evidence in these cases

e.

f.

g. h.

i.

a. Reasonable commuting distance b. there are also complexities for highly-skilled positions where EEs have to be hired from far away c. this can be very determinative of Ps case i. e.g. see the Hazelwood case 1. if choose narrow boundary, P loses and opposite is true with more broader boundaries of all of St. Louis How is statistics used in disparate treatment and disparate impact cases? i. Disparate treatment pattern-or practice cases: stats are relied on to establish an intent to discriminate ii. Disparate impact: stats establish a prima facie case of discriminatory effect of a particular employment practice, this shifting the burden to employer to justify practice. HOW can employers defend against these claims? i. Challenge (burden of production) the probative value of the statistics 1. What are some examples of challenges? a. Analysis used wrong variables; sample size too small; analysis used an inappropriate data comparitor i.e., labor market when applicant pool was more appropriate. ii. Challenge or rebut (burden of production) the inference of discriminatory intent (some reason other than discrimination explains statistical disparity). iii. Asserting an affirmative defense to facially discriminatory policies (burden of proof) whereby the employer admits to discrimination but seeks to have it excused by an affirmative defense in the statute, e.g., seniority system or a BFOQ. WHAT is BFOQ? i. Stands for bona fide occupational qualification (Title VII 703(e)(1); ADEA 4(f)(1) 1. Bona Fide Seniority System [qualification (Title VII 703(h); ADEA 4(f)(2)(A))] WHAT is the BFOQ Defense to Facially Discriminatory Policies or Practices? i. This defense allows employers to make employment decisions based on sex, religion, or national origin where the protected traits constitute a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise. But this defense is never for discrimination based on race or color 1. Employer must establish that the contested job qualification is reasonably necessary to the essence of the particular business; a. This is an objective test b. Defendant must identify the job qualifications c. Reasonably Necessary means more than reasonable or convenient d. Essence of the Business means the job from which plaintiff was excluded. AND 2. Employer must prove that it was compelled to use the protected trait as a proxy of the job qualification. a. Employer must present evidence to support the belief that all or substantially all individuals could not perform the duties or meet the qualifications; OR b. Employer must show that it is impossible or highly impractical to test each individual to determine whether he or she could meet the job qualification. WHAT is the safety exception to the BFOQ defense? i. This exception allows employers to consider the safety of 3rd parties where keeping those 3rd parties safe is part of the essence of or critical to the normal operation of that particular

business.

2. Cases
a. Teamsters v. United States. (1977, p. 196) Premise is that employer has engaged in a pattern (or practice) of intentional discrimination and that pattern is primarily demonstrated through use of statistics. i. Facts: Although this is a disparate impact claim, the statistical evidence principles discussed are applicable in disparate treatment claims also ii. Held: SC held that government carried its burden of proof by showing that blacks and Hispanics were given menial positions and were not hired as line drivers iii. SC says that stats alone can be enough for P to win a pattern-or-practice claim, and stats are definitely enough when combined with anecdotal testimonial evidence iv. Reasoning 1. Government used statistical and testimonial evidence a. Very low percentage of blacks/Hispanics hired overall and virtually no black/Hispanic line drivers b. Plus they had anecdotal evidence of 40 witnesses 2. D gives other reasons such as low personnel turnover, etc. but ct rejects these because they say that D has had plenty of opportunity to hire line drivers and they didnt hire minorities 3. D also argue that Ps stats are wrong looking at the wrong labor pool a. But SC states that these are unskilled jobs so can look at entire surrounding commuter labor market b. Hazelwood School Dist. v. US (1977, p. 199). Improper Statistics. If you have a teaching job with certain qualifications as is the case here, you cannot use general population figures and have to look at the relevant labor force. i. Note: this case introduces the notion that relevant labor mkt analysis is critical to fine-tuning statistical evidence for determining statistical significance. Generally, the relevant labor mkt includes both the geographical area from which the ER draws its EEs and the population in that area which has the qualifications for the at-issue jobs. ii. Ct. Also looked at stats of number of black teachers employed by the school a. but SC says these are artificially low because Title VII only started to be applied to public employers in 1972 b. Ds dispute Ps stats claim they are looking at the wrong qualified labor pool i. Dispute geography and qualification of sample 2. Dist ct also took into account that very few black students attend these schools a. But ct states that this has nothing to do with the teachers analysis 3. SC remands to lower courts to look at post-1972 hiring numbers a. Ct of appeals erred in holding for govt at trial ct level, D has an opportunity to rebut the stats i. Special issues of pre-Act and post-Act discrimination b. they didnt resolve the geography issue but did give the trial ct factors to go by c. SC did say that govt can compare racial composition of teaching staff to racial composition of the QUALIFIED PUBLIC SCHOOL TEACHER POPULATION in the relevant labor market 4. Ps also had other non-statistical evidence 50+ qualified blacks turned away, no hiring standards, recruitment from historically white institutions,

a. So on remand this is all probably cumulative enough with the stats for govt to prevail on systemic disc claim c. UAW v. Johnson Controls. (1991, p. 363). BFOQ i. Facts: D-ER manufactured batteries that exposed workers to lead and they were worried about injuring female fetuses which lead them to exclude all FERTILE WOMEN 1. This is a facially discriminatory policy but they are asserting the BFOQ here ii. Procedure: 1. Lower cts find for D because D is doing the right thing 2. SC reverses the key inquiry is: are they treating people differently b/c of sex? YES a. Then is it illegal? Is there a BFOQ? i. define essence of job narrowly making batteries 1. doesnt matter if you are a man or woman 2. if they were really concerned with reproductive health, then they would protect fertile men too ii. D argues that essence of job should be defined broadly making batteries in a safe way b. Title VII was expanded by the Pregnancy Discrimination Act to include because of or on the basis of pregnancy, childbirth, or related medical conditions [see 701(k)] i. SC used this in their analysis discrimination on the basis of pregnancy IS discrimination because of sex ii. Congressional policy of letting families worry about the welfare of their children has nothing to do with manufacturing batteries effectively c. RULE: A job qualification must relate to the essence or to the central mission of the employers business

V: DISPARATE IMPACT
Pp 217-67

1. Basics
a. WHAT is disparate impact? i. Leaving realm of intentional discrimination, now we are dealing with facially neutral policies of the D-employer business necessity issue is key 1. Dealing with facially neutral policies that more harshly on one group than others b. WHAT is the difference between disparate treatment and disparate impact? i. Disparate treatment is the purposeful (proof of intent is required) exclusion of protected class members from jobs ii. Disparate impact discrimination exists when employment policies, regardless of intent, adversely affect one group more than another and cannot be adequately justified. 1. Intent is not a requirement to prevail on a disparate impact claim, but not that there are similarities here with Systemic (pattern or practice) discrimination c. WHAT STATUTE is it covered under? i. Disparate impact theory of liability is available under Title VII and ADEA, but is narrower with a different defense under the ADEA. d. *HOW does a plaintiff make out a prima facie case based on a disparate impact theory? i. Plaintiff must first identify a particular facially neutral policy or practice that is adversely affecting one group more than the other ii. Next, plaintiff must establish a causal connection between the challenged practice and the disparitythis is usually done using a statistical study. iii. The plaintiff has the burden of proof regarding this prima facie case. e. *HOW can a defendant prevail after plaintiff makes prima facie case? i. A defendant can still prevail if it can meet its burden of proof and demonstrate that the challenged policy or practice is job-related and consistent with a business necessity. ii. To establish that the challenged practice is justified by a business necessity, an employer must show that the challenged employment practice accuratelybut not perfectly ascertains an applicants ability to perform successfully the job in question. f. *HOW can a plaintiff still prevail even if the employer can establish that the challenged policy or practice is job-related and consistent with a business necessity? i. If the plaintiff can set forth alternative practices to achieve the same business ends without the disparity, and the defendant refuses to adopt the alternative practices. Plaintiff has burden of proof here. g. *WHAT is the CURRENT STATUS of Disparate Impact? i. The Civil Rights Act of 1991 added Section 703(k)(1)(A) to redefine Disparate Impact 1. An unlawful employment practice based on disparate impact is established if: a. Plaintiff proves that employer uses a particular employment practice that causes a disparate impact AND b. Employer fails to prove the challenged practice is job related and consistent with a business necessity; OR b. Plaintiff shows less discriminatory alternative employment practice and employer refuses to adopt this alternative i. Note, however, that to be considered, the plaintiffs proposed alternative practices must be equally as effective as the employers chosen practice. ii. Moreover, factors such as the cost or other burdens of the proposed

alternative practices are relevant in determining whether the proposed alternative practices would be equally as effective in serving the employers legitimate employment goals. h. WHAT are the 2 ways to document the disparate impact of a selection procedure? i. Statistical Method of Proof. The most common means is to rely on the statistical method of proof outlined in Chapter 3 1. Where the plaintiff demonstrates that the observed number of hires or promotions is statistically significantly different from what one would expect in a neutral selection process ii. 80-percent rule. The other means of proof is specific to the disparate impact theory. a. A plaintiff may establish adverse impact by showing that the employees in the protected class are hired, or pass a test at a rate that is below 80 percent of the rate of the most successful group. a. 80 percent rule remains a useful benchmark and in appropriate cases can be sufficient to establish the first step in a disparate impact case. i. WHAT are the REMEDIES under a disparate impact claim? i. Only equitable relief is available with disp impact no comp/pun damages and NO JURY TRIALS either, only bench trials CIVIL RIGHTS ACT OF 1991: PURPOSE: Pg. 37 of Supplement Congress meant to codify business necessity and job related enunciated by the USSC in Griggs and the other USSC decisions prior to Wards Cove Act geared to overturn Wards Cove It laid out the Burden of Proof in Disparate Impact Cases (p15-16 of supplement) section (k)(1) (A)(i) and (ii). It says you can show disparate impact in one of two ways (either one): o by plaintiff showing an employment practice causes a disparate impact, and ER fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity Pg. 11 of Stat. Supplement demonstrates means meets the burdens of production and persuasion. o OR if the complaining party makes the demonstration of an alternative employment practice and the respondent ER refuses to adopt it We know this was a reaction to Wards Cove to overturn it (specifically with regard to the burdens) and to reaffirm Griggs **But note that in general, most cts look at disparate impact as the 3-part burden shifting framework, even though there are 2 alternative ways Ps can prove disparate impact
ANALYSIS: - Start with language of the Statute - Then cite to the relevant case (these two are consistent, but Courts are used to seeing them framed this way) o For AGE cases cite to Criswell and use that Framework used more for AGE discrimination cases (note defendant won in Criswell) o For SEX cases Johnsons Controls is the framework thats used for SEX discrimination (note Plaintiffs won in JC)

2. Cases a. Griggs v. Duke Power (1971, p. 217). 3-part analytical framework for disparate impact. a. Most important case since Brown v. Board b. Facts: Prior to Civil Rights Act, the D here had a segregated workforce (which was all right before the Civil Rights Act) they had white jobs and non-white jobs. The D ER had a high school requirement for employment prior to the Civil Rights Act. When the Civil Rights Act, the D implemented a standardized test precluded blacks from moving into certain jobs. c. Held: Ct holds that the test must in some way relate to the job looked at EEOC guidelines on 703(h) also d. Factual outcome of Griggs: This case notes that Ps do not have to show any discriminatory motive or discriminatory intent to prove ED. e. The Cts definition of disparate impact: If you have a neutral practice that excludes a protected group at a disproportionate rate and is not job related (not justified by business necessity), then this is functionally equivalent to discrimination that is prohibited by Title VII. f. Reasoning. i. The ct looked at the policy/practical implications if you decide this case against P, then all Ds would use such tests to screen to make a bar for minorities 1. plus its hard to prove inten ii. Past intentional discrimination creates embedded discrimination (The ER may be trying to get a benefit from past discriminatory educational system for the outcome that it wants on the standardized tests i.e. blacks performing poorly) iii. The fact that the practice had a discriminatory effect is discriminatory! b. Watson v. Forth Worth Bank & Trust. (1988, p. 239). Use of Subjective Criteria. a. Facts: Subjective judgment of supervisors was used for promotions and they kept promoting whites over similarly situated blacks for teller positions b. Held. Unanimous SC holds that disp impact analysis applies to subjective criteria c. Reasoning. i. SC realized that employers would just add in some subjective elements to such processes to make it all subjective and thereby discriminate ii. If an employers undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional disc, then it is illegal (i.e. if it adversely affects)

VI. RACE DISCRIMINATION

1. Basics
a. Color/Race i. Statutory Text Norton started with some other key provisions here 1. 42 U.S.C. 1981 Equal rights under the law a. basically, everyone shall have the same right to make and enforce contracts as is enjoyed by white citizens b. so this protects all races including whites c. legislative purpose to protect individuals of every race and color d. floor statements showed that it would protect whites as well as blacks 2. Note that Title VII includes color under its protected classes see 703(a)(1), but it has special exceptions for Indian Tribes a. 701(b) The term employer does not include an Indian Tribe b. 703(i) Businesses or enterprises extending preferential treatment to Indians Nothing shall apply to any business or enterprise on or near an Indian reservation publicly announced under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. b. The meaning of race and color i. Race (See St. Francis College v. Al-Khazraji) c. Color is different than race different complexions (some say that antidiscrimination statutes should not be based on race, but rather color colorism is a big problem) i. Basic Idea looking at situations where light-skinned people are hired over darkerskinned ones 1. INTERSECTIONALITY THEORY posits that individuals have multiple identities that are not addressed by legal doctrines based solely on a single identity or status a. i.e. where 2 or more theories intersect; race+, or sex+, etc. i. higher standard placed on one group sort of = black women b. Some commentators criticize cts for forcing black women to choose between bringing suit under race or gender, but not both d. Discrimination on the basis of race or color has been universally held to include discrimination on the race of one's spouse i. Instances of discrimination where a person is discriminated against b/c of their spouses skin color ii. An argument for this can be made based on the text because of language covers employers that punish interracial relationships

2. Cases
a. St. Francis College v. Al-Khazraji. 1981 case, looking at meaning of race here i. Facts: denied a job because he was from Iraq, though a US citizen, D argues its not race disc b/c he is white ii. SC says that Congress intended to protect from disc identifiable classes of persons who are subjected to intentional disc solely b/c of their ancestry or ethnic characteristics 1. what matters is what they were thinking back then in the 19th C. because it didnt matter what modern scientific theory thinks of race look at what text meant in 187 a. i.e. people today would consider fair-skinned as white b. i.e. when analyzing the text, must look to intent back then iii. RULE: 1981, at a minimum, reaches disc against an individual b/c he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens 1. So what is race disc under 1981? statutory interpretation a. National origin claim would have been easier b. Ps prefer 1981 claims over Title VII b/c no cap on damages, longer statute of limitations; a lot of suits have both claims

VII. EQUAL PROTECTION AND SECTION 1981 (RACE) Statutory vs. Constitutional Issues with Disparate Impact
1. Basics
a. Based on the 14th amendment equal protection clause (5th amend for feds) b. This is the context affirmative action is usually discussed meat of most aff action litigation i. We only looked at it as applied in Title VII above c. Constitutional limits on a governmental employer have to comply with both Title VII and the Constitution/Equal Protection Clause as a threshold matter i. Private employers only worry about Title VII

2. Cases
a. Washington v. Davis (1967, p. 293) i. Background: After Griggs, it was clear that disc impact claim could be brought under Title VII, but Ps here framed it as a constitutional issue and wanted the ct to get to the constitutional issues ii. Facts: 2 P black police officers brought suit against a test, blacks were passing at lower rates than whites, Ps bring disp impact claim under EP clause in Constitution argued that test doesnt measure ability accurately? iii. Issue. So does Constitution prohibit disp impact employment? iv. Held. 1. SC says NO Constitution only prohibits intentional discrimination a. i.e. EP is about invidious discrimination b. EP is about EP of the law, not results c. So only intentional actions can be brought under Const 2. Ct relies on precedent and analogous situations a. Also looks to totality of circumstances, i.e. policy 3. Ct is very concerned about opposite holding in other contexts it would unravel a lot of statutes v. Remember EP clause is narrower in that it applies to govt, but its BROADER in that applies in all CONTEXTS to govt (not just employment)

VIII: SEXUAL DISCRIMINATION

1. Basics
**Gender Stereotyping is actionable under Title VII. Price Waterhouse v. Hopkins **Same-sex sexual harassment is actionable under Title VII. Oncale. a. WHAT is the critical inquiry in sexual harassment cases? i. The critical inquiry in sexual harassment cases is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of other sex are not. ii. Note: Harassing conduct need not be motivated by sexual desire to support an inference of discrimination because of sex. b. WHAT STATUTE is it available under? WHAT does it say? i. Statutory Text 703(a) 1. Unlawful to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individualssex

2. Title VII prohibits sex discrimination based on gender stereotyping but does not prohibit sex discrimination based on sexual orientation. c. WHAT does Employment discrimination because of sex include? i. Sexual harassment ii. Same-sex discrimination iii. Failure to adhere to gender stereotypes iv. Pregnancy discrimination d. HOW do sexual harassment employment discrimination cases differ from other discrimination cases? i. A Title VII violation can occur w/o an adverse action (hostile work environment) e. WHAT is the Standard for hostile work environment claim? HOW do you make out a prima facie case of sex harassment/hostile work environment w/o a tangible employment action? i. Plaintiff must show. 1. Unwelcome conduct; a. In determining whether conduct was unwelcome, consider whether plaintiff indicated that the conduct was unsolicited, uninvited, or plaintiff was unwilling to participate. Consent or voluntary participation is not a defense to a sexual harassment charge. Instead, the question is whether sexual advances were unwelcome. b. The plaintiffs dress and/or provocative speech may be relevant to whether conduct was unwelcome. 2. Based on plaintiffs gender; 3. Sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment and employee subjectively perceived the environment as abusive; and (Harris) a. In determining whether conduct is sufficiently severe or pervasive, standard is whether the harassment can be reasonably perceived as hostile (objective) and whether the plaintiff actually perceived the environment to be hostile (subjective). b. Judge the objective severity of the harassment from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances. Also consider the social context in which the behavior

occurs. c. Relevant factors include: i. Frequency ii. Severity iii. Physically threatening, intimidating or humiliating iv. Unreasonably interferes with plaintiffs job performance v. Whether working conditions have been discriminately altered. d. Conduct is not unlawful under Title VII if it is merely tinged with offensive sexual connotations, horseplay, or intersexual flirtation. Title VII comes into play before defendants conduct causes plaintiff to have a nervous breakdown. Note, however, psychological injury is not required to state a claim of sexual harassment hostile work environment. 4. Some basis for imputing liability to company. f. HOW do you make out a prima facie case of hostile work environment where you have a tangible employment action? i. Plaintiff must prove 1. That she is a member of a protected class; 2. She was subjected to unwanted harassment in the form of sexual advances or requests for sexual favors; 3. Based on a protected trait; and 4. A tangible employment action resulted (from refusal to submit or from submission). a. Where plaintiff alleges harassment and a TEA, the employer can challenge the plaintiffs case by highlighting the lack of a tangible employment action or by proving that the challenged conduct was not carried out because of a protected trait. g. WHAT are the 3 Approaches to Dress, Grooming, and Appearance Requirements? i. 3 Approaches: 1. Unequal Treatment this is if only men or only women have to comply with a dress or grooming policies a. If there are different policies for men and women, how do we tell if they are discrimination based on sex? to do this, look at differential burden below: 2. Differential Burden see if it is harder for men to comply than for women and vice versa a. E.g.: If ER had policy that women have to be feminine and good workers and men have to be masculine and good workers. Is this discrimination based on sex? i. This is equal treatment b/c men and women have to stick within their gendered roles ii. We would have to look at this from an unequal burden perspective 1. We can think of this as sex discrimination if we deem sex as more akin to gender: this b/c not all women are feminine and not all men are masculine within society 3. Stereotyping in some situations, dress, grooming, and appearance standards are considered to be a form of sex stereotyping ii. If an ER regulates the dress, grooming or appearance of an EE, is this discrimination based on sex? 1. E.g.: If ER has a policy stating that all women must appear neat in their appearance and men have no requirement. Is this is a discriminatory policy?

a. Yes b/c this is differential treatment (if you treat women differently from men, this will be discrimination based on violation of equal treatment approach) iii. E.g.: If ER has a policy stating that all EEs must appear neat and professional in appearance. Is this discrimination? 1. Depends on how we define professionalism a. Cts often take the equal treatment approach and make it into one of equal burden i. If Professionalism further defined by ER: 1. Men must have hair trimmed above collarbones 2. Women must have their hair styled 3. Everyone must wear professional attire for men: means suit and tie; for women means skirts/suit/pantyhose/heels b. Equal Burden: Note that ER can require diff grooming requirements for men and women, as long as the burden is same for men and wome i. When we determine whether burden is the same for men or women, we take into acct: 1. Cost and comfort iv. E.g.: If ERs policy says, no jeans, no visible tattoos, no piercings, other than 3 in each ear this is ok b/c it is equal across the board. v. E.g.: Can USF pass a policy to fire Prof. Ontiveros for not wearing make up? (how about not wearing corn-rows geared at African American women) i. USF does not have to show that policy is job-related or BFOQ unless P can show that this is discrimination b/c of sex (but most of the time Ct will state that requiring only women to wear makeup is not discrimination based on sex as long as it is part of an ERs appearance policy) Prof. Ontiveros can show that USFs policy is discrimination b/c of sex via: 1. Equal Burden 2. Stereotyping 3. Must they show job-related? BFOQ? ii. Is the proper ER response that this policy is job-related or that it is a BFOQ? 1. Since this is a facially discriminatory policy b/c only women have to wear make-up, the ER would have to present a BFOQ. (whereas if it was facially neutral but had disparate impact, ER would have to respond with job-relatedness) a. BFOQ: is the woman less efficient in teaching if she didnt wear make-up (go back to Johnson Controls case) this is a hard standard to meet (E.g. of disparate impact claim ER like USF just has a good grooming policy but that it is harder for women to comply than men so this would be an unequal burden on women even though facially neutral ER would have to respond with job-relatedness) iii. About USFs policy, Ontiveros could argue that there is a differential burden, but if lose on this and lose on sex stereotyping, then make-up policy is not discrimination on the basis of sex and we dont even have to reach the ER response (ER does not even have to present BFOQ or job-relatedness defense)

Discrimination because of Pregnancy pp 406-433, 443-52 i. Pregnancy Discrimination Act 1978 (Title VII, 701(k)) i. Defined because of sex or on the basis of sex to include because of or on the basis of pregnancy, childbirth, or related medical conditions. ii. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes including receipt of benefits under fringe benefit programs iii. Title VII does not prohibit the termination of employees are pregnant It prohibits treating pregnant employees dissimilarly from others. iv. Required employers to provide women-only benefits or otherwise incur additional expenses on behalf of women in order to treat the sexes the same v. This prohibited any consideration of pregnancy by ER except for abortion purposes or BFOQ vi. Only Exception was for benefits related to abortion which ERs are required to provide only if womans life would be endangered if she carried the pregnancy vii. Also BFOQ j. Prima Facie Case. Cases of individual disparate treatment under the PDA are generally analyzed under the burden-shifting scheme of McDonnell Douglas-Burdine-Hicks i. Plaintiff show that she is a member of protected class (pregnant women) k. Disparate Impact and Disparate Treatment i. Although the vast majority of claims under the PDA are pursued as disparate treatment claims, there is a consensus among courts that plaintiffs may pursue disparate impact claims alleging that the burdens of an employers facially neutral policy falls more heavily on pregnant women. l. Scope of Related Medical Conditions under the PDA i. Related medical conditions the term has been consistently interpreted to mean at least that an employer must cover pregnancy to the same extent that it covers other conditions in a health insurance, temporary disability or other benefit plan offered employees.

Pregnant Woman at the Wine Bar E.g. the person who works there has to drink a lot of wine and talk to people. You have a woman working there who is pregnant (and wants to keep doing it) and the owner says they dont want her to work there anymore can they fire her and justify it on BFOQ grounds? - No o B/c shes still able to perform the duties of the job she can still drink wine and talk to people so if you look at it from that perspective the ER cant mount the BFOQ o Customer Preference is strongest argument, but it loses because Courts say its not a reason for the BFOQ unless it goes to the essence of the business, and the essence of the business is not promoting safe alcohol intake (the essence of the business is serving and drinking wine) argument is that its going to effect our customer base because of customer preference (but Southwest airline case told us the customer preference wont win) E.g. #2 What is the customers dont just prefer, but they REFUSE to drink from her because shes pregnant? - These look like the Foreign Cultural cases - There are some cases where courts will deal with it as refusal to deal and allow BFOQ for

2. a.

Cases
Oncale v. Sundowner Offshore Services (1998, p. 348). Same-Sex Harassment. i. Issue. Whether there is an actionable sexual harassment claim when the harasser and the harassed employee are of the same sex? iii. Held. Same-sex harassment can be actionable under Title VII, it did not hold that same-sex harassment b/c of sexual orientation is actionable under Title VII (Rene). iv. Rule: Sexual harassment must occur b/c of SEX not sexual orientation ii. 3 way split in lower circuits 1. 5th said it never was disc 2. another circuit said it was disc when harassee was gay/lesbian 3. another circuit said it was disc when it was severe or pervasive regardless of sexual orientation of the victim iii. Scalias unanimous majority opinion takes route #3 1. first, looked at text because of sex in the terms, conditions of employment is broad, covers men as well as women a. can cover same-sex under certain circumstances 2. precedent also shows that whites can discriminate against other whites, and males discriminate against other males 3. no congressional intent on this iv. Ds argue that this will result in a general civility code in the American workplace 1. but Scalia says that other forms of discrimination being prohibited has not resulted in this a. there is a limiting factor it must be severe or pervasive b. Its still on the P to always prove, with whatever evidentiary route, that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex. 2. Title VII is not a general civility code 3. Objective severity of harassment must be judged from a reasonable person in the Ps show UNDER ALL THE CIRCUMSTANCES Social Context and common sense matters!! a. e.g. coach smacking a player in the butt is not the same as a boss slapping a secretary in the butt v. Scalia lists non-exclusive list of situations of same-sex harassment that are actionable 1. Harasser motivated by sexual desire 2. D motivated by general hostility to presence of men in workplace 3. D treats men differently than women vi. THIS IS STILL OPEN TO SC INTERPRETATION!! b. Price Waterhouse v. Hopkins. (1969, p. 342). Sex Stereotyping. Certain types of sex stereotyping are found to be discrimination based on sex. i. This began in the ii. Facts: Ann Hopkins worked for PW; partners said that she needed to be more feminine; said that she should go to charm school and dress and act more femininely. iii. Issue: SC needed to decide if this was discrimination based on sex iv. Held: This was a form of sex discrimination. Why? 1. Based on unequal treatment, partners are saying that she cannot be a masculine woman

2. This is based on outmoded stereotypes based on sex: This is a but for argument b/c but for Hopkins sex, she could have progressed. 3. Differential Burden: PW is requiring Hopkins to be a certain type of woman a feminine woman to have this job and you also have to be a good worker a. Whereas men only have to be good workers b. Note that there is a disjunction between being a feminine woman and a good worker. There is a difference b/t being a feminine woman and a good worker (If you are requiring both a good worker and a feminine woman, there is a disjunction) 4. Per Price Waterhouse, if you insist on women being a certain way in terms of gender stereotypes, this is discrimination based on sex v. Here, Hopkins ends up losing. The Ct says this is discrimination based on sex but there was a legitimate and nondiscriminatory reason for firing her in that she was mean to the staff, even though some of the men promoted were also mean to the staff (but they were mean to the staff in a different way c. Jespersen v. Harrahs Operating Co. (2006, p. 387). Sex-Based Dress, Grooming and Appearance Requirements. pp.385-405 i. Facts: P was a female bartender who didnt follow new makeup policy and was terminated, D basically had different requirements for men/women. P said that she would be less effective in dealing with customers in the bar if she did wear make-up, but we never get to the arguments to the ER response b/c the Ct determines that this was not sex discrimination b/c requirements for men were just as burdensome as for women. ii. Reasoning. 1. Ct does not buy sex stereotyping 2. Ct also says that there is no unequal treatment here 3. Ct does not want to apply sex stereotyping cases to grooming c. The Ct tried to avoid the sex stereotyping issue b/c this would be moving from sex as biological differences to gender as a social construct iii. Note that if there is a different grooming policy for men and women on its face, this policy would already be stereotyping based on sex iv. Inherent in the ERs policy is the fact that men and women are different and occupy different gender roles v. If ER says that this is an equal burden and the ct buys that this is not discrimination, then the Ct is saying that men and women are different in terms of their gender roles and what we expect from them in society vi. The 9th circuit panel said that they agreed with PWC that if a grooming policy stereotypes one sex over the other, it should be struck down, but a policy that requires women to wear blush, makeup, lipstick as was the case here is not stereotyping against women so no discrimination vii. Majority uses the unequal burdens test 1. RULE: employer can adopt different appearance standards for each sex, but those standards may not impose a greater burden on one sex than the other d. If there is a stricter requirement on one sex, then there is a Title VII claim i. i.e. if sex-specific test is more burdensome on one than the other ii. ct says you need to show that it costs more for women than men here and ct holds that the burdens here are no more than what is put on the men under the policies

iii. OR ct says you can show a time burden, and P didnt 2. Majority distinguishes Price Waterhouse not about grooming and appearance standards viii. Dissent says there is an unequal burden more stringent on women judge compares the standards and stated simply that men dont have to do anything about makeup and women do 3. Also, she felt degraded 4. Points to costs and time burdens here 5. Relies on the SCs Price Waterhouse decision same situation 6. He also mentions the gender stereotyping type of claim that the Rene decision discussed d. Newport News Shipbuilding & Dry Dock Co v. EEOC. (2006, p. 387). Pregnancy Discrimination Act. i. Facts: This case comes about after Congress decided to overrule the Gilbert decision, and say that Title VII prohibits sex discrimination on the basis of pregnancy. Here, employer amended its plan after this decision, but the plan still provided less favorable pregnancy benefits to the spouses of male employees- does this violate Title VII? ii. Held: Court finds that this plan violates Title VII & the Pregnancy Discrimination Act. The EEOC issues interpretive guidelines which stated that IF an employer decides to provide coverage for dependents, then it must equally cover the medical expenses of spouses of male employees. The court finds the plan unlawful because it affords less protection to married male employees than to married female employees, and so it is discrimination because of sex. iii. Rules to Take from Newport News: 1. PDA & Dependents: The Pregnancy Discrimination Act does also require that spouses of male employees be given equal coverage for pregnancy-related expenses, IF the company provided benefits to dependents. e. Troupe v. May Dept Stores. (1994, p. 412). Pregnancy Discrimination Act. i. To get over the hurdle of summary judgment, all that is required is evidence from which a rational trier of fact could reasonably infer that the defendant had fired the plaintiff because the latter was a member of a protected class, in this case the class of pregnant women ii. Held: plaintiff made no effort to show that I all the pertinent facts were as they are except for the fact of her pregnancy, she would not have been fired. iii. Reasoning 1. The PDA requires the employer to ignore an employees pregnancy but not her absence from work, unless the employer overlooks the comparable absences of nonpregnant workers. 2. If an employee who (like Troupe) does not have an employment contract cannot work b/c of illness, nothing in Title VII requires the employer to keep the employee on payroll. 3. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees. f. Erickson v. Bartell Drug Co. (2001, p. 423). Related Medical Conditions under PDA. i. Facts: An employer has chosen to offer an employment benefit which excludes from its scope of coverage services which are available only to women. ii. Held: the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. 1. Title VII does not require employers to offer any particular type or category of

benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sexbased characteristics and that it provides equally comprehensive coverage for both sexes. iii. Reasoning: 1. Pursuant to Gilbert and Newport News and Johnson Controls, Title VII requires employers to recognize the differences between the sexes and provide equally comprehensive coverage, even it that means providing additional benefits to cover women-only expenses. 2. Under PDA, discrimination because of pregnancy, childbirth, or related medical conditions is a form of prohibited sec discrimination. 3. Business decision to control costs. The cost savings D realizes by excluding prescription contraceptives from its healthcare plans are being directly borne by only one sex in violation of Title VII. 4. Intent of Congress in enacting the PDA, even if not the exact language uuused in the amendment, shows that mere facial parity of coverage does not excuse or justify an exclusion which carves out benefits that are uniquely designed for women. 5. The special and increased healthcare needs associated with a womans unique sexbased characteristics must be met to the same extend, and on the same terms, as other healthcare needs.

IX: DISABILITY DISCRIMINATION

1. Basics
a. What is prohibited under the ADA? i. On pg. 70 of the Statute Book An ER may not discriminate against a qualified individual with a disability. 1. How does ADA define discriminate? Discrimination includes: a. disparate treatment, b. disparate impact ((b)(7) of statute on pg. 71 talks about disparate impact), c. (b)(5) it is also discrimination if an ER fails to make a reasonable accommodation unless the ER can show that the accommodation creates an undue hardship on the operation of the ERs business. b. WHAT STATUTE is disability discrimination available under? What does it provide? i. Title I is the ADAs employment chapter. It provides that: 1. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment. c. WHO is protected under the ADA? i. Only a qualified individual with a disability is protected under ADA. ii. 42 U.S.C. 1211(8) defines a qualified individual with a disability as: an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. 1. For the purposes of this title, consideration shall be given to the employers judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. a. Evidence that would demonstrate that a particular job function is essential includes: i. Job description ii. Actual performance iii. Expert testimony about profession iv. Employers judgment d. WHAT is the DEFINITION of disability? i. A physical or mental impairment that substantially limits one or more major life activities; ii. A record of such an impairment; or iii. Being regarded as having such impairment. 1. ADA coverage does not depend on establishing an actual, present disability. Rather, an individual with a record of a physical or mental impairment that substantially limits a major life activity is within the definition of disability. 2. Even if a person does not currently have such an impairment or was previously misclassified as having such an impairment, he is within the definition if he has a record of such an impairment. iv. An individual can also establish a disability by showing that an employer regarded individual as having a disability. 1. ADA regulations define regarded as having such an impairment to mean: a. Has a physical or mental impairment that does not substantially limit major

e.

f.

g. h.

i.

j.

life activities but is treated by a covered entity as constituting such limitation; b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or c. Has none of the impairments [discussed above] but is treated by a covered entity as having a substantially limiting impairment. WHICH disabilities will always be disabilities? 1. Autism, cancer, diabetes, and epilepsy will always be deemed disabilities. 2. Moreover, episodic impairments or those in remission are disabilities if they would substantially limit a major life activity when active. WHAT is the 3-Step process for determining coverage under definition of disability? 1. Is the illness, injury, or disease a physical or mental impairment? 2. What is the major life activity affected? 3. Does the impairment substantially limit the major life activity? WHAT is the Definition of physical or mental impairment? 1. Physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one of the bodys systems; mental or psychological disorder. WHAT constitutes a major life activity? 1. Activity that is of central importance to daily life. 2. Major life activities are not limited to public or economic activities. 3. ADAAA includes a non-comprehensive list of major life activities a. Seeing b. Hearing c. Sleeping d. Eating e. Working f. Operation of a major bodily function WHAT Factors are considered in determining whether impairment substantially limits major life activity? 1. The nature and severity of the impairment; 2. The duration or expected duration of the impairment; and 3. The permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. Note, substantially limiting impairment can be short-term 4. The difficulties associated with the impairment need not be insurmountable for the impairment to substantially limit a major life activity. a. If an impairment substantially limits a major life activity, plaintiff need not also demonstrate that the impairment substantially limits plaintiffs ability to perform activities of central importance to daily life. 5. Whether a plaintiff is substantially limited is determined without regard to ameliorative effects of mitigating measures. WHEN is plaintiff regarded as having such an impairment under the definition of a disability? i. Plaintiff is subject to an action prohibited by the ADAAA ii. Because of the plaintiffs actual or perceived impairment iii. Whether or not the impairment limits or is perceived to limit a major life activity 1. This definition does not apply to transitory (less than or equal to 6 months) or minor impairments iv. Plaintiff does not need to establish that major life activity was substantially limited.

k.

l.

m.

n.

v. NOTE: an employer has no obligation or duty to provide a reasonable accommodation to an individual regarded as having such an impairment. WHAT is the ADA Prima Facie Case of Disparate Treatment i. Plaintiff must show that she is disabled ii. Plaintiff must show she is a qualified individual with disability 1. Here plaintiff needs to identify the essential functions of the job and bear the burden of proving (proof and persuasion) that she could perform essential functions of job with a reasonable accommodation. iii. Plaintiff suffered an adverse action 1. Discrimination under ADA is more than adverse action. The failure to reasonably accommodate is also discrimination under ADA. iv. Plaintiff was treated less favorably than similarly situated, non-disabled individuals. HOW do you define Reasonable Accommodation? i. Section 102(b)(5) of the ADA defines discrimination to include: 1. Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or 2. Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant. ii. To be qualified for a reasonable accommodation under the ADA, the disabled person must first be deemed able to perform the jobs essential functions with or without reasonable accommodations. WHAT is the STANDARD for reasonable accommodation? i. The duty of reasonable accommodations is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort. 1. In defending the reasonableness of a requested accommodation, plaintiff must: a. Show that requested accommodation is efficacious, b. Show that requested accommodation fits or is tailored to the individuals disability, c. Show that requested disability is cost effective (proportional to benefit of the accommodation). ii. If a disabled individual can perform essential functions with reasonable accommodation, the employer has a duty to provide those accommodations. iii. If the disabled individual requires accommodations that are not reasonable or that impose an undue hardship, disparate treatment on the basis of disability is permitted and accommodating the disability is not required. iv. Reasonable accommodation goes beyond providing accommodations required to perform essential job functions. 1. Employers also have a duty to provide accommodations that permit disabled individuals to enjoy equal access to the benefits and privileges of employment. WHAT is the Prima Facie Case of Failure to Accommodate i. Plaintiff is disabled under ADA ii. Plaintiff is qualified individual with a disability under the ADA iii. Employer failed to provide a reasonable accommodation.

o. WHAT are Defenses to Prima Facie Case of Failure to accommodate i. Burden of production to demonstrate that requested accommodation was not reasonable ii. Burden of proof to show that requested accommodation would impose an undue hardship on the operation of the business. p. Define Undue Hardship i. Standard: A failure to accommodate can be defended on the ground that the necessary or proposed accommodation would pose an undue hardship on the operation of the employers business. ii. Under the ADA, an undue hardship is: an accommodation requiring significant difficulty or expense, which must be determined by considering all the relevant factors, including the size and financial resources of the covered entity. iii. The relevant factors that must be considered are: 1. Nature and cost of the accommodation needed; 2. Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 3. The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and 4. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. iv. Employers are not required to show that they would be driven to the brink of insolvency to establish an undue hardship. v. Mathematical precision and complex economic formulae are not required. Rather, a common-sense balancing of the costs and benefits in light of the factors listed in the regulations is all that is expected. vi. Burden of proof (production and persuasion) rests with employer to demonstrate an undue burden. vii. Reasonable accommodation is a generalized inquiry, while undue hardship determination focuses on the particular employer. q. Discriminatory Qualification Standards i. The term disqualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. 1. Definition of direct threat: a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation 2. The EEOC requires that the direct threat determination be based on a reasonable medical judgment that considers such factors as the duration of the risk, the nature and severity of the potential harm, the likelihood of the potential harm, and the imminence of the potential harm. ii. In sum, qualification standards that are either facially discriminatory or that have a disparate impact on disabled individuals can violate the ADA, but all discriminatory qualification standards are subject to the same defensesthey may be defended on the basis that they are job related and consistent with business necessity, permitted or required by another federal statute or regulation, or necessary to prevent a direct threat to health and safety.

2. Cases
a. **Raytheon v. Hernandez. (2003, p. 808). Disparate Treatment. i. Facts: EE worked for Hughes Missile systems for a long time in 1991 he tested positive to a cocaine drug test and was forced to resign. In 1994 he reapplies. On the application he said hes a former employee. The company policy is not to rehire anyone who was terminated for workplace misconduct, so he doesnt get his job back. 1. He alleges he is being rejected because of his drug use because hes either a recovered drug addict or because he has a record of drug abuse. 2. See p75 for how the ADA deals with drug use ER is free to terminate someone who is using drugs; but it also recognizes that being an alcoholic or a drug addict can qualify as a disability. (protected if you can show youre rehabbed) 3. He brings a disparate treatment claim - (court uses the same prima facie steps): ii. McDonnell Douglas steps: 1. Step One - Qualified individual with a disability a. Question: how can you say youre qualified when you left under bad circumstances and the company policy is that they wont rehire those terminated for bad reasons? p726 first full paragraph and fn4 court says there are issues re whether or not he would be qualified, but since its a motion for summary judgment we read it in the light most favorable to the plaintiff and let him pass on this i. Note from facts in this case, it doesnt appear there was dispute that he had a disability. Its up to the defendant to challenge it. There is a difference between someone whos used drugs v. an addict with a disability. But it would only come up if the defendant challenged it. ii. Note that this subsumes step 2 of the Ps prima facie case iii. Qualified element comes up more often under the ERs defense 1. Applied for position 2. Was denied 3. Position remained open or went to someone without the category 2. Step Two ERs response a. Defendant then articulates a legitimate nondiscrimination reason they carry the burden of production, not the burden of proof b. Defendant says the reason was the workplace policy that says if youre fired for misconduct you wont be rehired, and here the EE had been fired for misconduct this is a neutral employment practice c. The 9th Circuit held that this policy can never suffice when the EE was fired for drug use because it has the disparate impact on the protected class therefore, it cannot be a legitimate nondiscriminatory reason They said even though there is a neutral policy that says they dont hire people who are terminated for misconduct, this policy has the effect of discriminating d. BUT The Supreme Court says thats incorrect disparate treatment is about intent (and that the 9th circuit conflated the disparate impact case w/disparate treatment case) you must go on to the traditional third step the only question left for the court is whether or not the legitimate nondiscriminatory reason was a pretext. They REMAND it

e. On remand, would you find that the ER had a legitimate nondiscriminatory reason? YES. 3. Step Three (pretext?) didnt get that far in this case, but it would on remand how would it play out? a. Defendant would probably win b. Defendant could cite to Furnco which gives deference to the employer re setting his own policies c. What would plaintiffs best argument be that it is pretext? Look for facts such as: evidence that says they really did refuse to rehire him because of his past drug problems ex. evidence that its nonuniform application of the policy (look for statistics that they rehired other people who were terminated for misconduct when the misconduct wasnt about drugs that would show that the policy was really aimed at keeping drug users out); ex. someone who said I remember him, he tested positive for drugs and we dont want him back; ex. letter in his application from someone saying he was an addict but is better now (to prove they knew about it). d. If theres enough evidence, it goes to the jury and the jury gets to decide. b. US Airways v. Barnett (2002, p. 813). Failure to Make a Reasonable Accommodation, unless the ER can show undue hardship: i. Facts: Long term EE at US Airways gets injured, cant do his job as baggage handler anymore, uses his seniority to move into the mail room. US Airways policy gives preference to seniority and more senior employees can bump into other jobs from time to time. Later his position becomes open to seniority bidding, and two more senior employees want his job. US Airways bumps Barnett out of his job. Barnett sues claiming US Airways failed to make a reasonable accommodation by letting him stay in the mailroom. iii. Issue: Is it a reasonable accommodation to allow an EE to keep a certain job? iv. Held: that an employer is not ordinarily required to give a disabled employee a higher seniority status to enable the disabled employee to retain his or her job when another qualified employee invokes an entitlement to that position conferred by the employers seniority system. v. Four different approaches are discussed to how to resolve it: 1. MAJORITY (Breyer): Ordinarily it will be an unreasonable accommodation to require the employer to ignore the seniority system, but plaintiff may be able to show special circumstances that make the accommodation reasonable based on the overall facts of the case. [Majority and OConnor say Normally a seniority system should be allowed] 2. OCONNOR CONCURRENCE: The seniority system must be legally enforceable we wont automatically bring up the special circs inquiry. If a legally enforceable seniority system exists, then it will always be unreasonable to require an employer to accommodate as desired in this case. (she presented a bright line rule that would be simple to follow) 3. SCALIA AND THOMAS DISSENT: There are some rules that burden all employees equally and you dont need to change those under the ADA, because the ADA protects only those who are burdened who are qualified individuals who are burdened because of their disability (ADA only suspends rules which disability would prevent P from observing does not apply to neutral rules

like seniority) If theres a neutral rule but doesnt burden because of disability, the employer doesnt have to accommodate even if it means losing a job. The only work rules you need to change are those which present a barrier because of disability. Scalia makes the points: a. we are only looking at discrimination because of disability (explained above) b. too many possibilities a. essentially what youll end up doing is giving preference to those with a disability, instead of just protecting them from barriers that occur because of their disability, and placing too much of a burden on the employer c. The ADA is only meant to treat them equally, not to give them any sort of preference, its not an affirmative action act. In this case, the only reason he couldnt stay in the mail room was because of his seniority, not because of his disability; and if you make the ER let him stay because of the disability, then youre giving the person with the disability preferential treatment. b. What the ADA talks about is modifying the original baggage handling job, not protecting a worker from being subject to seniority. c. Huber v. Wal-Mart Stores, Inc. (2007, p 827) i. Issue: Whether an employer who has an established policy to fill vacant job positions with the most qualified applicant is required to reassign a qualified disabled employee to a vacant position, although the disabled employee is not the most qualified applicant for the position ii. Held: the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate. Disability Discrimination II The Meaning of Discrimination. Pp. 834-51 d. Sutton v. United Airlines (1999, p. XXX). What is a disability? i. A disability is a condition which substantially limits one or more major life activities. ii. Facts: This became known as the blind pilots case. Plaintiffs were twin sisters who had severe myopia and needed glasses, and wanted to be commercial airline pilots. Their uncorrected vision was no better than 20/100 so they couldnt be pilots. They claim that they have been discriminated on the basis of their disability under the ADA. iii. Held because they could fully correct their vision, they werent considered impaired, so essentially they did not have a disability (b/c their major life activity: work, was not substantially limited). Even though without glasses they couldnt see, with glasses they could see well enough, so they are not a qualified individual with a disability because you judge whether or not somone has a disability with their corrective measures in place. iv. RULE: Disability is evaluated after person has taken corrective measures, and youre only a person with a disability if even with those corrective measures you still have an impairment that substantially limits a major life activity. v. POLICY: Does this rule seem right? 1. Yes, because the ADA wasnt passed to protect everyone who needs glasses 2. But, if you use other examples read about these in casebook! 3. Pg. 752 Stephens and Breyer - someone who lost a leg and wears a prosthetic leg

and can walk fine with it there is argument that this person should still be able to go forward with a claim as a person in the protected class. They will not be able to get in the door b/c they are someone with a disability. 4. someone with epilepsy who with medication its controlled a. Correct outcome for these examples? No, because you cant be regarded as having such an impairment b. Note: In response to claim that not being allowed to be a pilot means she is substantially limited in a major life activity because its her inability to work court said you dont just look at one job, you look at a class of jobs (more than just the one). e. Toyota Motor v. Williams (2002, p. XXX) i. Facts: woman has carpal tunnel syndrome in arms and has limitations on manual tasks that she can do. She alleges she is limited in major life activities in gardening, housework, playing with children, as well as some tasks at work. ii. Question is: Is she substantially limited in a major life activity? iii. Held. Court finds No, shes not limited in her ability to do manual tasks because she is able to do a variety of things such as brush her teeth, do some jobs on the assembly line. The court remands it to look at the characteristics which would qualify as limits on major life activities because this only looked at a class of tasks, and thats not right you have to look at all types of manual tasks. 1. You might think she has carpal tunnel and ER should have to make certain reasonable accommodations for her. But they dont have to if she doesnt have a disability, and the Court says she does not have a disability because she is not substantially limited in a major life activity. 2. Examples of Major Life Activities: a. ability to work: i. If you are alleging substantial limitation on the life activity of ability to work, then you have to look at not just the one job you cant get, but instead a class of jobs 1. ex. lifting jobs that require you to lift over 20 pounds 2. ex. jobs that require manual dexterity b. manual tasks: i. If you are alleging substantial limitation on the life activity of performing manual tasks, you have to look at all manual tasks 1. The lower court said you have to look at a class of manual tasks the Supreme Court said no, thats wrong. 2. Some Major Life Activities walking, breathing, reproduction, manual tasks and a few others. 3. Today: You have to be really disabled just because you have a prosthetic leg youre not disabled you have to substantially limited in your ability to walk a. PLUS You must be a qualified individual with a disability you have to be able to do the job i. You have to have a disability (substantial limits on major life activity) ii. Plus you can require a reasonable accommodation in terms of helping you to be qualified, but if that accommodation is something youre making yourself at the outset then you may never be able to be disabled to begin with

1. With or without the reasonable accomodation, you still have to be able to do the job

X: SEXUAL ORIENTATION DISCRIMINATION

1. Basics
a. Sexual orientation is not included under Title VII! i. It was not intended to be covered by Title VII; therefore, not covered even if P can show that D used sexual stereotypes or that men were disproportionately impacted because homosexuality is more prevalent in men and easier to detect. Remember: discrimination on the basis of sexual orientation is not discrimination under Title VII. What follows from that, is that if you harass a gay person because they are gay, then its not protected under Title VII. a. On Exam: use Price Waterhouse for gender and sexual harassment cases for sexuality! (but also highlight the analytical tensions: state that sexual orientation is not a protected category) Gender Price Waterhouse i. Sex Biological Differences Sexuality Sexual harassment cases

2.

3. Basics
a. Smith v. City of Salem (2004, p. 469). 6th circuit decision. i. Facts: dealing with a gender identity disorder, P was a transsexual, was made fun of at work in fire dept, P became more female as time went on, D had some sitdowns with him and then hatched a plan to have him fired, later he was suspended ii. Issue: was he discriminated against b/c of his sex or trans-sexuality? iii. Held. Ct holds he was discriminated against b/c of his sex 1. Ct says Price Waterhouse changed everything 2. If the women in PW case was victim of sex disc, then this firefighter was too (i.e. for having feminine characteristics, etc.) (but for his sex, he wouldnt be disc against) 3. so here P allowed to bring sex stereotyping and gender disc claims under Title VII 4. Ct also noted that 24 hr suspension is an adverse action! b. Rene v. MGM Grand Hotel (2003, p. 478). Sex-Stereotyping. 9th Circuit decision. i. Facts: P worked for MGM Hotel, butler on high floor, openly gay, alleged sexual harassment by coworkers and supervisors 1. all incidents involved touching 2. P claims physical sexual conduct is based on sex 3. D claims that P was harassed b/c of his sexual orientation, not because of his sex ii. Held: sexual orientation is irrelevant to Title VII claims, and the abuse was sexual, verbal, and physical 1. they argue that physical sexual conduct is sex-based, i.e. per se rule 2. Court says that it is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature. iii. Hostile Work Environment exists when an employee can show: 1. That he or she was subjected to physical conduct of a sexual nature 2. That this conduct was unwelcome and 3. That the conduct was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment. st iv. 1 conc agree with result using different rationale 1. they use gender stereotyping theory actionable gender stereotyping harassment 2. i.e. P suffered because he wasnt the right type of guy v. Dissent claim that this harassment was not based on gender, rather it was based on his sexual orientation (i.e. being gay) 1. plus they say that P never brought up the gender stereotyping claim in the lower cts 2. and they pointed to the factual record mainly masculine gay comments, only one line referring to him as being feminine vi. In Sum, Norton says we are seeing three views in the lower courts: 1. Majority from Rene defines sex as broad category 2. Gender-stereotyping view of 1st conc 3. Dissents view that harassment based on sexual orientation is not actionable 4. THIS IS STILL OPEN TO SC INTERPRETATION!!

XI: RELIGIOUS DISCRIMINATION

i. Basics
a. HOW do you define religion? i. Definition. Belief is a religion if it functions as a religion in plaintiffs life. 1. In making this determination, consider: a. Whether the belief is sincerely held, and b. Whether the belief is religious in the plaintiffs view b. WHAT STATUTE is this available under? i. Under Title VII 2000e(j), religion includes all aspects of religious observance and practice, as well as belief. 1. Title VII defines religious discrimination as the failure to reasonably accommodate religious practices and observances. 2. Note, however, that Title VII allows religious discrimination by certain religious employers and also permits such discrimination when religion is a bona fide occupational qualification. 3. Religious discrimination cases are unique because Title VII places an affirmative duty on employers to make reasonable accommodations for persons religious beliefs and practices unless an employer demonstrates that he is unable to reasonably accommodate an employees or prospective employees religious observance or practice without undue hardship on the conduct of the employers business. c. HOW do you establish a prima facie case of employment discrimination? i. Employee must show: (p. 641) 1. Employee has a bona fide religious belief that conflicts with an employment requirement, 2. Employee informed employer of this belief, and 3. Employee was disciplined for failing to comply with conflicting employment requirement, ** If P succeeds in establishing its prima facie case, D must provide a reasonable accommodation to an employees religion, unless the employer demonstrate that he is unable to reasonably accommodate to an employees religious observance or practice w/o undue hardship on the conduct of the employers business. d. WHAT is the Employers Duty of Reasonable Accommodation? i. The question of what constitutes a reasonable accommodation focuses on the relationship between the employees religious needs and the employers offered accommodation. ii. An employer is not required to select the employees proposal of reasonable accommodation. 1. Rather, once an employer has made a reasonable accommodation for employee, the employer has satisfied its duty under 701(j). The employer need not show that the employees proposed accommodations would cause an undue hardship. iii. If the employer fails to offer reasonable accommodations, the second issue comes into play: whether a requested accommodation poses an undue hardship for the employer. 1. Standard: de minimis cost; a. To require an employer to bear more than a de minimus cost is an undue hardship. De minimis cost entails not only monetary concerns, but also the employers burden in conducting its business. 2. Preferential treatment would be a hardship because of the disruption it would cause.

3. **Any hardship asserted must be real rather than speculative, merely conceivable or hypothetical. e. WHAT is the Analysis for the Duty of a Reasonable Accommodation? i. Can be viewed as a 3-step analysis 1. Plaintiffs proof that a neutral practice burdens his religious observance or practice; 2. Plaintiff sought some kind of accommodation; and 3. At this point, employer must prove either that it offered a reasonable accommodation or that any accommodation would be an undue hardship. f. WHICH institutions are exempt from Title VIIs prohibition of religious discrimination? i. Religious institutions are exempt. Ministerial Exemption (p. 640) ii. See 42 U.S.C. 2000e-1(a) 1. Provides a ministerial exception for a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with carrying on the activities of the organization. 2. The ministerial exception is grounded in two constitutional rationales: a. That the imposition of secular standards on a churchs employment of its ministers will burden the free exercise of religion b. That the states interest in eliminating employment discrimination is outweighed by the churchs constitutional right of autonomy in its own domain. 3. As a general rule, if the employees primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision of or participation in religious ritual or worship, he or she should be considered clergy. iii. See 42 U.S.C. 2000e-1 1. Avoiding Liability. 2. When an employee shows that her employer took an adverse employment action against her on the basis of a religious observance or practice, the employer can avoid liability by showing either that it reasonably accommodated the employees observance or practice, or that accommodation of the observance or practice would result in an undue hardship for the employer. 3. However, when an employee shows that her employer took an adverse action against her on the basis of her religious beliefs, and not because of an observance or practice, the employer is liable.

ii. Cases
a. Trans World Airlines, Inc. v. Hardison. (1977, p. 651). Undue hardship. An ER bearing more than a de minimus cost is an undue hardship! i. When does undue hardship become an issue? 1. When ER argues he wasnt able to make accommodations one justification the ER can give for not having offered an accommodations is because an accommodation would present an undue hardship ii. Here, the ct said the ER made a reasonable accommodation iii. What exactly was the ERs reasonable accommodation? 1. And what would be the undue hardship in the ER doing something else? iv. Facts: P EE becomes part of the religion of the Worldwide Church of God and he cannot perform work on Saturdays as part of his religion. He transfers to another building, where he cannot bid on his seniority anymore and cannot have any more time off to observe his Sabbath. v. Held: The Ct finds that the efforts of company to accommodate him were reasonable and that there would be undue hardship if they had to accommodate him any more. The Ct also said that offering OT should not be a requirement on the part of the ER vi. What did the ER do here specifically to accommodate the EE? 1. The ER held a few meetings to see if anyone would be willing to switch with the EE and no one volunteered to do this. This is the extent of what the ER did does not seem like it was much. vii. The Ct said that the ERs duty to accommodate does not require steps inconsistent with the bargaining agreement or seniority. 1. An ER bearing more than a de minimus cost is an undue hardship viii. Reasoning: 1. There is a fear that once you insist that an ER pay more than de minimus cost, this would be favoring a religion (in violation of the 1st Amendment, which prohibits interference with free exercise of religion and prohibits establishment of religion) 2. If you give preference to those who need Saturdays off for religious reasons, this would be exercising a religious preference over other EEs who need Saturdays off for non-religious reasons. a. Note that the fact that everyone has to work in Saturdays is a neutral policy and does not privilege one religion over another (but some would argue that since most jobs have Sundays off, this is a preference for Christian holidays; the system was built to accommodate some religions over others and religious minorities end up suffering) b. Ansonia v. Philbrook . Reasonable Accommodation i. Facts: EE was a teacher and was given time off for certain days. His religion required 6 holy days, and he was only given 3 days off. EE asked if he could either pay for the cost of substitute or get 3 days off additionally, b/c he wanted to be paid for time off. ER said no! ii. Held: The Ct said that the School made a reasonable accommodation here. iii. The Ct said that the ER must suggest a reasonable accommodation iv. Does not have to be anything that EE wants, just has to be reasonable v. There is a great deal of discretion given to the ER to suggest a reasonable accommodation!

XII: AGE DISCRIMINATION

1. Basics
a. WHAT is the ADEA? What is the basic idea behind it? i. Age Discrimination in Employment Act (1967) ii. Basic Idea Congress wanted to stop discrimination against people as they aged. Wanted to get rid of the problem of inaccurate and stigmatizing stereotypes that productivity and competence decline with age. b. WHAT does the Statute say? i. Statutory Text very much modeled on Title VII and Fair Labor Stds Act 1. 623(a)(1) same as 703(a)(1), only difference: because of such individuals age 2. 623(a)(2) same as 703(a)(2), adversely affect, because of age 3. ADEA applies to employment agencies 623(b), labor organization practices 623(c) 4. Retaliation provision 623(d), covers opposition and participation 5. 630(b) covers employers of 20 or more c. WHO does the ADEA (29 U.S.C. 623) protect? i. Protects individuals age 40 and older. ii. 40 is the key age, protected class is 40 and older they defined the protected class here 1. see 631 2. selectively protecting only certain ages, unlike Title VII where ALL races, colors, etc. are covered d. WHAT are the Enforcement Remedies under ADEA? i. Note that the enforcement and remedies are less generous than Title VII 1. can still get loss backpay, injunctive relief, attorneys fees 2. but no compensatory/pun damages 3. if there is a WILLFUL violation, ct can double the backpay as liquidated damages, 626(b) ii. Where an employer is forced to terminate a worker covered under the ADEA, employers sometimes offer the relevant employee a severance package in exchange for a waiver of age discrimination claims. 1. The Older Workers Benefit Protection Act of 1990 (OWBPA) established mandatory minimum standards employers must meet to obtain valid waivers of age discrimination claims. e. WHAT theory are most ADEA cases brought under? Disparate treatment or disparate impact? i. Most cases are brought disparate treatment theory of discrimination ii. Can use McD framework with circumstantial evidence most common 1. SC has noted that you dont have to be replaced by someone that is younger than 40, but person does have to substantially younger statute only says P has to be 40, not the replacement person (see also General Dynamics below) a. But cts take into account difference with the substantially younger part iii. OR direct evidence framework (through Price Waterhouse and progeny) f. How does disparate impact different under ADEA than Title VII? i. Under Title VII, identify facially neutral policy that adversely affects group, then D has a bus necessity defense ii. Disp impact is narrower in ADEA b/c of the RFOA reasonable factors other than age BFOQ that is in the text of the statute, but not in Title VII

g.

h.

i. j.

k.

l.

m.

n.

1. Narrower scope that Title VII but does not mean that it is not protected. 2. Scalia also wants bus necessity added in, but Norton says Congress had the opportunity to amend ADEA like Title VII and they didnt 3. Majority in Smith stuck with RFOA WHAT is the definition of employer under ADEA? i. Under ADEA, an employer must have 20 or more employees in 20 consecutive weeks. By contrast, a Title VII employee need only have 15 or more employees for 20 consecutive weeks. WHAT is the Standard for ADEA liability? i. Inference of age discrimination is supported by a substantial age difference between plaintiff and his replacement/comparitor. ii. Also, the plaintiffs replacement/comparitor need not be younger than 40 to raise an inference of age discrimination. iii. However, a 45 year-old plaintiff cannot bring a claim of age discrimination under ADEA where replacement/comparitor is 50 because Congress sought to protect older employees, not younger ones. WHAT does the Because of age Standard? i. Means plaintiff must prove age was the reason and the but-for cause of the challenged employment action. Does the ADEA permit disparate impact claims? i. Yes, ADEA permits disparate impact claims because the prohibition of age discrimination section of ADEA should be read with the prohibition section of Title VII, which has been held to permit disparate impact claims. What are the elements of a Prima facie case under disparate impact theory of liability? i. Identify the facially neutral practice ii. Demonstrate the statistical disparity iii. Show the causal nexus between practice and disparity WHAT is the Employers Defense to ADEA disparate impact claim? RFOA!!! i. Employer can argue that the challenged action was based on reasonable factors other than age (RFOA). See 29 U.S.C. 623(f)(1). 1. Reasonableness of factors does not include an inquiry into less discriminatory alternatives. ii. Burden of Proof of RFOA: Employer has a burden of proof (production and persuasion). WHAT is the BFOQ under ADEA? i. BFOQ 623(f): must be reasonably necessary to the normal operation of the particular business, OR where the differentiation is based on reasonable factors other than age 1. mirrors language of Title VII BFOQ ii. see Western Airlines decision 2 prong test for BFOQ 1. Reasonably necessary to the essence of the Ds job 2. Plus employer must show its a perfect proxy to do the job i.e. a certain age is necessary iii. remember that cts narrowly construe the BFOQ iv. Safety exemption by Congress for firefighter and law enforcement officers can set mandatory retirement age 623(j) 1. also exemption for certain highly paid execs, see 623(c) WHAT is the Harassment analysis under ADEA? i. Also works the same way

ii. *You very rarely see age-based harassment claims b/c there is no money in it, no comp/pun damages, and most harassment does not result in firing

2. Basics
Disparate Treatment under ADEA a. Hazen Paper Co. v. Biggin. (1993, p. 737). Pension Rights. Supreme Court made clear that ADEA only covers stigmatization based on age. Narrows ADEA some i. Facts: P was fired at age 62, brought suit 1. P can make out PF case 2. D claims that they fired b/c he was in business with competitors 3. Jury says no, and finds for P on the ultimate question of intentional discrimination ii. Issue is clarifying standard when D-ER violates the ADEA by acting on the basis of a factor that is empirically correlated with age, like pension status or seniority iii. Held: taking away pension rights isnt stigmatizing iv. Rule: SC says that there is no disp treatment under the ADEA when the factor motivating the employer is some feature other than the employees age 1. D claims they fired P b/c of the pension plan and he was about to vest a. This is not a distinction based on age, but rather vesting i.e. not about age here, just pension which affects young and old people b. Ct says P can still have claim under ERISA but not ADEA!! c. Mere correlation with age is not enough. v. Majority says factors such as age and pension status are separable 1. But could bring in ADEA claim if vesting depended on age which is different than here where it was based on years of service vi. Simple Majority Holding: Ds can fire for a reason other than age 1. i.e., if its not based on age and related stereotypes of lack of productivity and knowledge purpose behind ADEA, want to get rid of stigmatizations. Court says that when the employers decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappear even where the motivating factor is correlated with age. a. Different than Title VII Title VII protects some things that are not stigmatizing, i.e. that are basically generalizations b. Note here that cost can basically be a defense whereas it cant in Title VII b. Sperling v. Hoffman-LaRoche (1996, p. 743). i. NJ district court decision that comes out after Hazen Paper ii. Facts. Class action suit where D did massive layoffs, very common, Ps responded with specific interrogatories with all these reasons why they thought they were fired iii. The court here analyzes all the reasons and say what are valid and not: 1. Salary not based on age 2. Ample retirement benefits, only eligible after 50 ct says this wasnt actionable claim b/c its not based on age, but rather pension [see Hazen Paper] a. plus ct says its not stigmatizing here 3. Age-related disability ct says no, no evidence it was based on this a. proximity to retirement nope, not based on age, just retirement 4. Perceived as less productive and/or less creative YES, they can bring this i. this is the purpose behind ADEA get rid of stigmatizations 5. Perceived to have limited skills yes, again stereotypes 6. perceived as over-qualified no, not b/c of age 7. No longer fits into organization yes, might be steeped in stereotypes of older

workers 8. Note that these 3 just survive motion to dismiss a. still have to have a case on the merits 9. Practical results its ok to target older people if you are doing it for a reason other than AGE!!, then its not actionable under ADEA a. it still might be actionable under other laws (see Hazen Paper and ERISA) c. Consolidated Coin Caterers Corp. i. Basically says that how old the person is who replaces you and the difference between the two has a big impact on whether or not you can recover. ii. The Fourth Circuit held that an ADEA plaintiff must prove, as an element of a prima facie case, that he was replaced by an individual of comparable qualifications who is not withing the age group that is protected by the ADEA. The Fourth Circuit was the only court of appeals to adopt such a rule. iii. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. (10 years is likely the arbitrary cut-off) iv. As a result of Consolidated Coin Caterers, the Second Circuit now articulates the prima facie case for age discrimination as follows: (1) plaintiff is a member of the protected class; (2) plaintiff is qualified for the position; (3) plaintiff has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of discrimination. Disparate Impact under ADEA d. Gross v. FBL Financial Services, Inc. (2009, p. 756). i. Issue. Whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act (ADEA) 1. Also had to decide whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA. The court holds that it does not. ii. Held. Six justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a motivating or a substantial factor in the employers action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. iii. Reasoning. Court said that the Courts interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse. 1. It follows that under Section 623(a)(1), the plaintiff retains that burden of persuasion to establish that age was the but-for cause of the employers adverse action. 2. Hence the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motive cases as in any other ADEA disparate treatment action. A plaintiff must prove by preponderance of the evidence (which may be direct or circumstantial), that age was the but-for cause of the challenged employer decision. e. Smith v. City of Jackson (2005, p. 769). i. Facts. More junior, younger, officers got bigger pay raise. They wanted to obtain better qualified officers, so were boosting newer officers salaries. Turns out that the newer

officers were younger so there was a disparate impact on older officers. No facially discriminatory policy at work here so not disparate treatment. 1. Cant bring disparate treatment claim b/c of Hazen Paper, so they do disparate impact ii. Held. Majority 1. ADEA allows disparate impact claims a. Held that the ADEA does authorize recovery in disparate impact cases comparable to Griggs. i. It is actionable and available b. Compared text of statute and looked at how Title VII was interpreted in Griggs very similar c. Also looked at some legis history report aim was to get at a whole range of this type of disc d. Plus they give deference to EEOC position on this 2. Also analyze the RFOA Reasonable Factors Other than Age (BFOQ provision) Defense you would raise if you were sued. a. The RFOA provisions provides that it shall not be unlawful for an employer to take any action otherwise prohibited under subsection (a) where the differentiation is based on reasonable factors other than age discrimination. i. In disparate impact cases, the allegedly otherwise prohibited activity is not based on age. It is accordingly in cases involving disparate impact claims that the RFOA provision plays its principal role bole by precluding liability if the adverse impact was attributable to a nonage factor that was reasonable. 3. Ps lose though on the disp impact claim b/c ct finds no claim on these facts a. Ct says here they didnt identify a specific test that adversely affected older workers b. More importantly, the D makes out the RFOA they were trying to make junior salaries more competitive/comparable to other professions, i.e. attract good talent iii. Concurrence (J. Scalia). Basically gives deference to EEOC in close cases like here 1. but he adds in the tougher bus necessity defense for Ds too [EEOC] iv. Concurrence (OConnor). but only in the judgment 1. Thinks that disp impact should not be available under ADEA

ADEA: Age Discrimination in Employment Act - Disparate treatment claim available o ADEA not violated when fired on basis of employees pension status, which is correlated w/ age, but not directly based on age. o 1 yr age difference might not be enough to show discrimination o McDonnell Douglass framework - NO disparate impact claim available. Smith. o ADEA not intended to remedy age-disparate effects that arise from the application of employment plans or practices that are not based on age. o Purpose of ADEA is to protect older workers. o -police officer has no disparate impact claim against employer who has a facially neutral pay plan based on tenure, that has the result of giving higher pay increases to employees under age 40. But does have disparate treatment claim - Argue: ADEA should include a disparate impact claim b/c when ADEA was adopted, Cts had not yet developed the disparate impact theory for Title VII, and Title VII and ADEA are very similar in text.