Discrimination Details

Pattern of Practice Discrimination

  • Unlike individual discrimination cases under McDonnell Douglas, pattern of practice cases don't require proof that each class member experienced individual discrimination.
  • If statistics and other proof show a standard operating procedure of discrimination, and the defendant can't prove the plaintiff's proof is inaccurate, the class plaintiff is entitled to a presumption.
  • Each employment decision within the class challenge is presumed to be the result of discrimination. Individual class members don't have to prove their specific decision was discriminatory and get a presumption of entitlement to damages.
  • The defendant can rebut individual claims by showing the plaintiff wasn't qualified or there was another legitimate reason for the employment action.
  • Plaintiffs deterred from applying due to the discriminatory practice can also be part of the class.
  • In Hazelwood case, the populations compared are important. (e.g., St. Louis County as a whole vs. St. Louis County area without the city).
  • These cases are complex and expensive to prove, requiring expert testimony on statistics under Series 700 of the rules of evidence.

Bona Fide Occupational Qualifications (BFOQs)

  • BFOQs involve direct, intentional discrimination where an employer disqualifies a protected class.
  • The employer must prove that the essence of the business requires people outside those protected classes.
  • They must prove that all or substantially all members of that class can't fulfill the job functions, or it's impossible to screen out those who can't.
  • BFOQs are limited to religion, sex, and national origin; race/color BFOQs are not allowed.
  • It is a very narrow exception, almost always involving safety or privacy concerns.
  • BFOQ is a defense to an intentional discrimination claim.

After Acquired Evidence

  • If an employer learns of employee misconduct after termination that would have led to firing, it can limit back pay from the time of discovery.
  • This doesn't erase liability for discrimination but can limit available remedies.

Cat's Paw Theory

  • A plaintiff alleges that a subordinate employee with discriminatory animus influenced the ultimate decision-maker, even if that decision-maker didn't have discriminatory intent.
  • This is still considered intentional discrimination.
  • The subordinate's act must be motivated by the plaintiff's membership in a protected class and be a proximate cause of the adverse employment action.
  • Examples include discriminatory performance reviews or recommendations that lead to termination.

Disparate Impact

  • Disparate impact occurs when a facially neutral policy has a disproportionate impact on a protected class.
  • Intent or animus is not required; the focus is on statistics.
  • The question is whether plaintiffs always have to prove intent if the statistics are very one-sided.
  • The policy doesn't explicitly exclude people by protected class, but the effect does exclude people in a protected class from a job or group of jobs or to categorize people by their membership in a protected class.
  • In Griggs case, black employees were primarily in the Labor Department, the lowest-paying department with limited advancement opportunities.
  • Prior to Title VII, the company had an explicit policy of only hiring black employees into the Labor Department.
  • High school diplomas were required for departments other than labor and for transfers out of labor after Title VII's effective date.
  • This perpetuated pre-Title VII discrimination.
  • New Policy: High school degree + two aptitude tests (general intelligence + mechanical comprehension) for all departments except labor and those hired before the policy
  • Black Employees were statistically less likely to have a high school diploma or aptitude tests at the time so it had a disproportional impact on them.

Supreme Court's View on Disparate Impact

  • Title VII requires removal of artificial, arbitrary, and unnecessary barriers to employment when they discriminate based on race.
  • This focuses on the operation of policies that create barriers.
  • Policies that have the effect of discrimination are actionable, even without proof of discriminatory intent.
  • While Title VII focuses on formal equality, Supreme court is going a step further and saying that even when you don't prove discrimination, if there are policies in the workplace that have the effect of discrimination, that's actionable anyway.
  • Title VII isn't a jobs program, and employers can use their judgment in maintaining their workforce.
  • There are specific provisions in Title VII that allow for testing as a measure of screening applicants for certain jobs. Statute has codified some of these things.
  • If there are policies or tests that screen out people, there must be a demonstrable relationship between the requirements and the actual job requirements.
  • Title VII intends to eliminate arbitrary barriers to employment.
  • If policies screen out applicants in ways unrelated to job performance and disproportionately impact a protected class, it violates Title VII.
  • The key analysis involves job relatedness and business necessity.

Job Relatedness and Business Necessity

  • If a qualification is necessary for job performance and directly related to the employee's ability to perform, a disparate impact doesn't violate Title VII.

Wards Cove Case (1989)

  • The employee must prove a specific employment practice that creates a disparate impact on a protected trait.
  • The burden shifts to the employer to articulate a reason for the disparity supported by business justification.
  • Then, the employee must prove that the business practice did not serve the legitimate goals of the employer, or that the employer could have adopted other alternative business practices to meet those goals and chose not to.

Problems With the Ward's Cove Test

  • The employee's ultimate burden is to prove a negative, that even though there may have been a legitimate business justification, it did not actually serve that business justification.
  • McDonnell Douglas was developed to funnel down the issue. The purpose of having those two first steps is so that we know what the plaintiff says, we know how the defendant responds, and then the finder of fact is gonna make determination about who's telling the truth. Was this really the reason?
  • The employee is tasked to analyze how essential this thing really is to the employer's business and then to prove they didn't need to put this practice into place.
  • This overlay of McDonnell Douglas on top of disparate impact claims made disparate impact claims hard to prove.

Civil Rights Act of 1991

  • Congress clarified its intent regarding disparate impact, as the Supreme court's role has been to interpret Title VII. Other changes:

    • Added the Pricewaterhouse motivating factor analysis
    • Jury Trial with 3 jurors

  • Congress recognized a disparate impact theory and set out a framework:

    • A complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, national origin, and the respondent fails to demonstrate that the challenged practice is job related for the position in question, and consistent with business necessity.
    • Explicitly tells the courts what the burden shifting analysis is. The plaintiff shows that there's that specific employment practice that had a disparate impact based on protected classification, and the respondent must demonstrate, as the burden of proof, burden of persuasion, that the challenge practice is job related for the position in question and consistent with business necessity.
    • The plaintiff can further show that the defendant had an alternative employment practice without the same disparate impact that still served its legitimate business interests but refused to adopt it.

Framework for the Court

  • Prima Facie Case

    • Identify the protected group.
    • Show a facially neutral specific employment practice (if not facially neutral, it is a disparate treatment case).
    • Show a disparate impact on that protected class - wrapped up in that is the concept that there is some kind of causal link.

  • Burden of Persuasion

    • Goes to the defendant, it's an affirmative defense to show job relatedness, consistency with business necessity.

  • Plaintiff's Opportunity

    • Prove an alternative business practice.
      *A defendant can avoid liability in a disparate impact case just by identifying one small portion of its employment practice that does not have a disparate impact when a larger view shows that there is a disparate impact.

  • In some of these cases, we're gonna be looking at whether an individual test or measure can pass the job relatedness or business necessity test, and in some of these cases, you'll be looking at more broadly whether the qualities that specific tests are a proxy for are appropriate and can show job relatedness and business necessity. Either one of those can be the basis of a disparate impact case.
    *Is goblineness and consistent with business necessity an and or an or? AND (There is some debate as to whether they're really the same thing, whether they're two separate entities.)
    *This affirmative defense, by the way, is similar to what we see in we saw last week in the BFOQ context, right?

EEOC's Eighty Percent Rule

  • If the selection rate for any group is less than 80% of the rate with the highest selection rate, it's prima facie proof of a disparate impact.
  • The point is that when you are administering a test, whether it's an aptitude test, some kind of physical test, there are ways that you can validate those tests scientifically, professionally. You can show that the tests are predictive of job performance. You can show that the tests accurately measure the skills that are required for the job. You can show that there are tests that measure certain qualities. There are screeners that you can take that show your leadership aptitude.
  • The alternative business practice argument is almost always an alternative argument. You're usually not arguing on the front end. Yes, this thing they did was a great predictor of performance, and it happened to exclude all black applicants or female applicants what you're arguing is that it's not consistent with job related and business necessity. And the reason that this is consistent with the pretext or is analogous to the pretext portion of the McDonnell Douglas analysis is that your posture at that point is that you are rebutting what the defense says, It is your response to their proof that even if that's true and we have reasons that's not, there are other things you can do that wouldn't have this disparate impact.
    Connecticut versus Teal case. This is a testing case. What was the problem with that? You're measuring the impact at the bottom line. The impact of the test has already ignored the specific employment practice that was being challenged in that case was not the ultimate promotion, it was the application of that test as a measure who would be of who would be considered for employment or for promotion.

Dothard Case (Height and Weight Requirements)

  • Height and weight requirements are facially neutral.
  • The plaintiff/female applies to be a prison guard, didn't meet the 120 pound weight cut off.
  • 5 foot two requirement excludes over 33% of women nationwide, it excludes a little over 1% of men.
  • The 120 pound weight requirement excluded more than 22% of women, but a little over 2% of men together more than 41% of women are excluded from applying for these jobs, as opposed to under 1% of men (a disparate amount)