Lecture Notes on Employment Discrimination

Samuel L. Jackson Story

  • Professor shares a story from his undergraduate days at the University of Mississippi.
  • Walking with classmates, they encounter Chancellor Robert Khayat carrying luggage for a black man.
  • The black man is revealed to be Morgan Freeman.
  • A female classmate mistakes Morgan Freeman for Samuel L. Jackson.

Disparate Treatment Discrimination

Direct vs. Circumstantial Evidence

  • Last week's discussion focused on the difference between direct and circumstantial evidence.
  • The Reed versus Neopost case from the Fifth Circuit was reviewed.
  • Direct evidence is explicitly stating discriminatory intent.
  • Circumstantial evidence requires the McDonald Douglas framework.

McDonald Douglas Framework

  • The McDonald Douglas framework is a way to organize proof in circumstantial discrimination cases.
  • It was established in the 1970s.
  • It helps address the difficulty of proving discrimination, which often occurs as a thought process.
  • The framework involves comparing the plaintiff's treatment to that of other employees.

Prima Facie Case

  • The plaintiff must present a prima facie case.
  • Elements include:
    • Being qualified for a position.
    • Membership in a protected class.
    • Rejection despite qualifications.
    • The position remaining open or being filled by someone outside the protected class.
  • The elements of a prima facie case can vary.
  • The function of the prima facie case is to eliminate the most common non-discriminatory reasons for the employment action

Defendant's Burden

  • Once the plaintiff presents a prima facie case, a rebuttable presumption of discrimination arises.
  • The defendant must then articulate a legitimate, non-discriminatory reason for the employment action. The defendant has a burden of production, not persuasion.
  • The defendant's burden is a very low hurdle: they must point to proof that a legitimate, non-discriminatory reason might exist.

Plaintiff's Rebuttal

  • The burden shifts back to the plaintiff to prove that the employer's reason was pretext for discrimination.
  • Disbelieving the employer is not enough; the ultimate question is whether discrimination occurred.
  • Early 1990s saw debate over whether plaintiffs needed to prove "pretext plus" (pretext and discrimination).
  • The ultimate question is always whether discrimination occurred.
  • It should be noted that Title VII of the Civil Rights Act doesn't state that firing someone for a false reason is unlawful, but it does state that it is unlawful to take an action concerning someones condition of employment because of their membership in a protected class.

Why Have a Burden-Shifting Mechanism?

  • Some commentators believe the burden-shifting mechanism is unnecessary.
  • Most district court judges continue to use the McDonnell Douglas framework because the Supreme Court has not explicitly said not to use it.
  • Circumstantial discrimination remains difficult to prove.

Trial vs. Summary Judgment

  • The McDonnell Douglas framework does not control how a trial goes.
  • At trial, the plaintiff presents their case-in-chief like any other civil trial.
  • The defendant presents their case to rebut the plaintiff's case.
  • Plaintiff typically will have an opportunity to present rebuttal proof that addresses issues for the first time in the defendant's case.
  • Trial judges have discretion over rebuttal proof.
  • Rebuttal proof at trial is not the same as the third step in the McDonnell Douglas framework.
  • Plaintiffs must prove their entire case before resting their case-in-chief, as rebuttal is not guaranteed.

Judge's Standard for Summary Judgement

  • Judges looking at summary judgment or rule 50 have to look only at undisputed facts and make all inferences in favor of the non-moving part.
  • If there is no evidence that proffered reasons were protection, then summary judgement is appropriate at that element.
  • Factors such as witness's articulation, posture of the case before the court, and how arguments are made can affect the standard and this leads to solid black line.
  • As an example of a case, a female college professor alleged she was not paid as much as her male counterparts. What that proof showed was that she was among the most highly paid members of her department, excluding the chair. The comparators she brought up were outside of the department and it's hard to compare those as they are studying different things and have different administrative structures in their departments. So due to these undisputed facts, there was no proof to show that it was protection and sovereign judgment was appropriate.

Mixed Motives

  • The McDonnell Douglas framework doesn't account for the possibility of multiple reasons for an employment decision.

Section 1981

  • Section 1981 is the Civil Rights Act of 1866.
  • It grants equal rights to all people re:the rights of white people.
  • It applies to race discrimination in the employment context.
  • Employment relationships are contractual relationships.
  • Doctor Case: Perry versus VHS San Antonio. Hospital wasn't his W-2 employer, but they had the right to remove him. Circuit provided exhaustive analysis of both enterprise liability and joint employment analysis.
  • Because of said case, it is vital to demonstrate the contractual relationship that you're alleging was impaired because of discrimination (in this case race discrimination).

Pricewaterhouse Case

  • The Pricewaterhouse case (1988-1989) concerns Ann Hopkins, who was put on hold for partnership and ultimately quit, akin to what the courts deemed to be a constructive discharge because no reasonable person would stay in her position.
  • There was significant statistical proof in the record.
  • She was considered abrasive, brass, lacked interpersonal skills, overly aggressive, unruly harsh, difficult to work with, and impatient with staff. However there was also evidence of sexism.
  • She was told to walk more femininely, talk more femininely, dress more femininely, wear makeup, have hairstyle, and wear jewelry in order to get partnership. This all is pretty clearly sex coded and the circuit talked about this as sex discrimination using stereotypes.
  • An expert testified stating that sex stereotyping, that now may seem obvious, played a part in her failure to be promoted. This is one of the firs cases where the courts can see that one doesn't use expertise to to show reasons for something is happening because sociological, psychological research is legitimate for a case like this.
  • Due to Pricewaterhouse not having a set guideline for part ship, you get into an area where these decisions can be made subjectively meaning there's more leverage when someone is disctiminated against circumstantially.
  • Then the DC District Court made findings stating the decision not to be recommended was both based on her personality but also unlawful reasons such as sex stereotyping, and that they wrote it on the comment cars. Pricewaterhouse then took on a affirmative defense, and was able to prove that they weren't going to make the same decision, however it was an equitable relief because it was made by clear and convincing evidence.
  • The Supreme Court took this in order to determine what mixed motives meant in the title 7 context.
  • Plurality said, they are going back to look at the language of Title VII that states to shall not have action concerning terms or conditions of someones employment because of thier sex, but not soleley because of thier sex. It's not that sumple
  • So, but for causation (But for the unlawful motive, the discriminatory action would not have happened) Is not acquired here.
  • Sandra Day O'Connor said that there would need to be direct evidence of discrimination and injects what she codes as the concept of