Employment Discrimination Notes

Employment at Will & Protective Classifications

  • Review of previous topics:
    • Employment at will and its exceptions.
    • Protective classifications (overview; more detail later).
    • Defining “employer” and “covered individual” (not always intuitive).
    • Three key questions:
      • Is the individual covered?
      • Is the entity an employer under the relevant act?
      • What is the protected classification?
        • The protective classification determines which statute applies, impacting the definition of “employer”.
          • Title VII: 15-employee threshold.
          • Americans with Disabilities Act (ADA): 20-employee threshold.
    • EEOC (Equal Employment Opportunity Commission) process:
      • Plaintiffs must exhaust administrative remedies by filing a charge with the EEOC.
      • The EEOC investigates and issues a right-to-sue letter.
      • The EEOC focuses on covered individuals, employers, and protected classifications to determine if investigation is warranted.

Individual Disparate Treatment

  • Most common type of discrimination lawsuit.
  • Involves one plaintiff (though multiple plaintiffs can be grouped).
  • Disparate treatment: Intentional discrimination based on membership in a protected class.
  • Distinguished from disparate impact: Facially neutral policies with a disproportionate impact on protected classifications.
  • Statutory text:
    • Title VII (page 62): Unlawful for an employer to fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
    • ADA: Similar to Title VII, but with important differences to be discussed later.
    • Section 1981: Guarantees all people the same rights to contract as white people; applies only to race discrimination.

Pregnant Workers Fairness Act

  • New legislation requiring employers to accommodate pregnant employees.
  • Overlaps with Title VII and the Pregnancy Discrimination Act.

Formal vs. Substantive Equality

  • Formal equality: Equal treatment under the law (focus of Title VII).
  • Substantive equality: Equality of results (not the focus of Title VII).

Burden of Proof

  • General rule in civil actions: Plaintiff must prove every element of their claim by a preponderance of the evidence.
  • Discrimination claims: Burden of proof is more complex due to Supreme Court decisions.
  • Direct vs. circumstantial evidence:
    • Evidentiary rules do not distinguish between the two for admissibility.
    • In discrimination cases, the distinction is significant for determining the order and burden of proof.
    • Direct evidence: Express articulation of a discriminatory reason for an employment action.
    • Circumstantial evidence: Evidence from which discrimination can be inferred.

McDonnell Douglas Framework

  • Most important case studied during the semester; a foundational case regarding litigation procedure.
  • Concerns the failure to hire case of Mr. Green, who engaged in disruptive protests against McDonnell Douglas.
  • Eighth Circuit Decision:
    • Eighth Circuit viewed McDonnell Douglas's decision-making as subjective.
    • Subjective decision-making was considered suspect, employer carries burden of showing subjective reasons were not discriminatory.
    • Subjectivity does not necessarily equal discrimination; it limits employer's discretion to control the workplace.
  • McDonnell Douglas case attempts to balance the employer's interests with the employee's right to be free from discrimination.
  • Burden-Shifting Framework:
    • Plaintiff's Initial Burden: Establishes a prima facie case of discrimination.
      • The plaintiff belongs to a racial minority.
      • The plaintiff applied and was qualified for a job for which the employer was seeking applicants.
      • Despite qualifications, the plaintiff was rejected.
      • After the rejection, the position remained open, and the employer continued to seek applicants with the plaintiff's qualifications.
      • A prima facie case does not equal a proven case of discrimination.
      • Its purpose is to eliminate the most common non-discriminatory reasons for an employment action.
      • The facts vary across Title VII cases (see Footnote 13 in the case).
    • Defendant's Burden: Articulate a legitimate, non-discriminatory reason for the employment action.
    • Plaintiff's Final Burden: Show that the employer's stated reason was a pretext for discrimination.
  • Prima Facie Case:
    • Gives a rebuttable presumption of discrimination.
    • Eliminates what are thought to be the most common non-discriminatory reasons for the employment decision.
    • Doesn't mean that the plaintiff is presumptively entitled to the job.
  • In the case brought before the Supreme Court, McDonnell Douglas was not compelled to hire Green, who participated in illegal activity; at the same time, Green cannot be denied employment based on his race.
  • Rebuttal presumption if the prima facie case is true: Discrimination was more likely than not the reason for the employment action.
  • Standard is not applied in other areas of the law; some think this is unfair.
  • Burden does not instruct juries, but used at summary judgment.
  • After a plaintiff establishes the prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason (LNDR).
    • Example: Employee clocked in late five times in a row; time cards are evidence.
    • It is enough for the employer to state a legitimate reason that would defeat the plaintiff's claim of discrimination if true.
    • Very low burden.
    • If a defendant gives a vague or conclusory statement for LNDR, it might not suffice.

Articulating a Legitimate Nondiscriminatory Reason

  • Burden is very low, but has to be an actual (non-discriminatory) reason.
  • Subjective reasons are permitted (e.g., personality conflict).
  • Reasons must be shown via proof, w/o credibility determination.
  • There is some admissible proof or proof that would be admissible at trial to substantiate the reason that you're articulate.
  • Rare for cases to be decided on this point.

Pretext

  • Plaintiff must show that the employer's reason for taking the employment action was untrue.
  • Plaintiff has a full and fair opportunity to demonstrate that the defendant's reason was not the real reason, and to show that it was discrimination.
  • Verdine case and the Saint Mary Honor Center case clarify that the ultimate burden of proof lies with the plaintiff, who must prove discrimination.
  • If a plaintiff can't successfully navigate the burden-shifting framework, then the case is dismissed.
  • The fact that somebody lied about a thing does not automatically mean that the real reason was discrimination; a factfinder must conclude discrimination occurred.
  • It is really bad to have bad reason or no reason at all.
  • What if the employer is incorrect? If showing it was mistaken, such a finding does not mandate that discrimination was the reason the employer acted in this way.
  • Reeves case: a finding of pretext can permit an inference that discrimination was the real reason.

Stray Remarks

  • Difference between a stray remark and direct evidence: If an employer told a joke that was based on race, sex, gender, is that just a joke or evidence that future actions stemmed from bigotry?

  • There is no good answer to this question.

  • There is no stray remarks “doctrine”; just two words that get injected into judicial opinions.

Business Judgement

  • Not exactly a rule or doctrine, but lawyers plead it as an affirmative defense.

  • Reflection of the employer's right to choose their workforce.

Direct vs. Circumstantial Evidence

  • Direct evidence: No inferential leap required to determine discrimination.
    *Remarks

  • Actions by decision-makers

  • Courts require a temporal sense of proximity.

Four-Part Test to determine a Direct Proof (the Reed vs. Neo Post-Fifth Circuit Case)

  • They are related to the protected class.

  • They are proximate in time to the employment decision.

  • They are made by an individual with authority over the decision.

  • They are related to the decision.
    *Circumstantial Evidence must indicate Discriminatory Animus.

Same Decision Maker and Same Class

  • Arguments about proof in the case more than anything else.

  • If an employee is bringing a claim of discrimination, the person who initially hired the employee and fired him was the same.

  • Inference that discrimination does not exist is established.

  • With race, sex, age, there are still people who discriminate like this, so not absolute defenses.

Adverse Employment Actions

  • Employment Actions must be an Ultimate Employment Act. (ex. hiring, firing, demotion)

  • There has to be some degree of severity for it to be an employment action.

  • You must prove that discrimination was not the reason you were not selected; you're arguing that it wasn't a big enough deal that matters.

  • City of West Point Police Dept case: must show that detective would have been a promotion.
    *Supreme Court says what the transferee does not have to show, according to the relevant text, is that the harm incurred was significant.