Employment Discrimination Notes

Employment Discrimination

Introduction

  • The class focuses on employment discrimination, not labor or employment benefits.

  • It is largely statutory, starting with Title VII of the Civil Rights Act of 1964, ADA, ADEA, and other statutes.

At-Will Employment

  • Definition: The default employment relationship in Mississippi where an employer can terminate an employee for any reason (good, bad, or no reason) without an express employment contract.

  • If there's no contract defining employment terms, it defaults to at-will employment.

  • Even with a work agreement specifying the work period and pay, you can still be an at-will employee.

Exceptions to At-Will Employment

Public Policy Exception (McCarn Case)

  • Created by the Supreme Court, allowing employees to sue employers, even without a contract, if:

    • Employee reported illegal acts of the employer and was discharged.

    • Employee refused to participate in illegal acts at the employer's request and was discharged.

  • Caveats:

    • The illegal acts must be criminal, with potential criminal liability.

    • The plaintiff must point to a criminal statute that would be violated.

    • The employee cannot have participated in the wrongful acts themselves.

    • A plaintiff's subjective belief of illegality is insufficient; actual violation of a criminal statute must be alleged.

McCarn Claims Against Governmental Entities

  • Typically barred due to sovereign immunity under the Mississippi Tort Claims Act.

  • The discretionary function immunity protects governmental entities from lawsuits regarding discretionary decisions.

  • Firing decisions are often considered matters of public policy, thus falling under discretionary function immunity.

  • Federal courts often decide McCarn claims because they are supplemental jurisdiction claims attached to federal claims, like Title VII or ADA.

Interaction with Federal Claims

  • It's rare to see a one-count employment discrimination complaint.

  • People often belong to multiple protected classes (race, sex, religion, national origin).

  • Rules of civil procedure allow pleading alternative claims.

  • You can be discriminated against based on multiple factors simultaneously.

  • Comparators may differ for each claim, requiring different proof.

Important Caveat to At-Will Employment

  • An employer can terminate for good, bad, or no reason, unless the reason is otherwise made unlawful.

  • Firing for stupid reasons can lead employees to seek real reasons, potentially uncovering discrimination.

Coverage of Statutes

Key Questions

  • What traits or protected classes do federal statutes cover?

  • Which individuals or entities are prohibited from discriminating or retaliating (who is an employer)?

  • Which individuals do federal statutes protect (who is an employee)?

  • These questions must be asked in every case but are usually straightforward.

Major Statutes and Protected Classifications

  • Title VII, Civil Rights Act of 1964: Race, sex, color, national origin, or religion.

  • ADEA (Age Discrimination in Employment Act): People over 40 (protecting older workers).

  • ADA (Americans with Disabilities Act): Employment discrimination based on disability (Title I).

  • Equal Pay Act: Sex-based pay disparities.

  • Pregnant Workers' Fairness Act: Follow-up to the Pregnancy Discrimination Act.

  • Sexual orientation and gender identity discrimination are considered discrimination based on sex under Title VII (Bostock case).

Actual vs. Perceived Traits

  • Claims can be based on an employer's belief/perception that someone is a member of a protected class.

Exodus 2.1 Hypothetical

  • A private charitable organization focusing on disadvantaged youth wants to start a mentoring program for Black students, with Black mentors.

  • Is it permissible to use race as a hiring criterion?

  • The motive is to hire mentors who can connect with the kids.

  • This raises questions about affirmative action and whether it is a bona fide occupational qualification.

McDonald v. Santa Fe

  • Can a claim be brought by white complainants alleging race discrimination when comparing themselves to the treatment of black people?

  • The policy driving the Civil Rights Act of 1964 was to level the playing field for historically disadvantaged groups.

Section 1981

  • Part of the Civil Rights Act of 1866.

  • States that all persons within the jurisdiction of the United States shall have the same right to make and enforce contracts as is enjoyed by white citizens.

Title VII vs. Section 1981
Title VII

  • Enacted to provide discrimination protections for all groups.

  • Covers race, sex, color, national origin, or religion.

Section 1981

  • Provides that all persons within the jurisdiction of The United States shall have the same right to make and enforce contracts as is enjoyed by white citizens.

  • Protections afforded to white people for reverse discrimination.

Differences:

  • No administrative exhaustion requirement under Section 1981.

  • EEOC wasn't created until 1964.

  • Those suing under Section 1981 don't need to go to the EEOC, wait for a right-to-sue letter, or sue within 90 days of the letter's issuance.

  • A race discrimination claim under Section 1981 has a three-year statute of limitations in Mississippi, whereas Title VII claims must be memorialized in a charge of discrimination to the EEOC within 180 days of the alleged unlawful employment decision.

  • Section 1981 doesn't have the same damage caps as Title VII.

  • It allows suing people other than the employer, and individuals can be liable under Section 1981.

Saint Francis College Case

  • Section 1981 doesn't apply to national origin discrimination, only race.

  • In this case, an Iraqi college professor was denied tenure, claiming it was due to his national origin.

  • It's usually easy to determine if someone has been discriminated against due to their race or their national origin.

Citizenship

  • Citizenship requirements are not the same as national origin discrimination (Espinoza case).

  • However, can be used as a proxy for it.

Religion

  • Protects against religious discrimination and requires accommodation of religious practices.

  • The question of what constitutes a bona fide religion is complex.

  • Differences in religious beliefs or denominations can lead to discrimination claims.

  • Sincerely held religious beliefs are essential.

  • Title VII allows some types of religious discrimination for churches, schools, etc.

Exercise 2.2

  • Church of Body Modification is a recognized church and belief.

  • Atheism is considered a religious belief.

Sex Discrimination

  • Manhart case (City of Los Angeles): retirement plan contributions based on the fact that women statistically live longer than men.

  • Title VII does not allow discrimination based on sex, even if there is a really good reason.

  • Title VII was not enacted as a group remedy but to respond to societal and systemic factors at the individual level.

  • Presumption of back pay in Title VII cases where unlawful discrimination is found.

Martital Status

  • Not in and of itself a protected classification.

  • It's not unlawful to favor married people over unmarried people.

  • It can easily be a proxy for discrimination.

Exercise 2.3

  • Implementing a policy that prohibits spouses from working in the same department.

  • Often, you want your employees to remain neutral and weigh independent factors or assign them to departments that are relatively equal.

  • Often, smaller businesses are driven by smaller picture problems.

  • Hyper specific problems in the workplace often don't lend themselves to big picture policy solutions.

Age Discrimination

  • Claims are only available to people over 40.

  • Congress's priorities were focused on a societal belief that older people are less productive or less capable.

  • ADEA has allowed compulsory retirement for some types of positions.

Biggins Case

  • Looks at the correlation between age and other factors like seniority.

  • Congress only said age; they didn't say seniority policy or pension status were discriminatory.

  • Congress didn't make seniority status discriminatory.

Disparate Impact vs. Disparate Treatment
Disparate Treatment

  • Intentional discrimination where your, or one of your, motivations is unlawful discrimination in taking employment action.

Disparate Impact

  • Facially neutral employment policy or practice that works a disparate impact on a protected class.

  • Has to do with a facially neutral employment policy or practice that works a disparate impact on a protected class.

  • Doesn't involve proving which policy was designed to impact a particular class.

  • Firefighter testing cases.

Who Is a Proper Defendant?

Title VII

  • Any person engaged in commerce with 15 or more employees is an employer.

ADEA

  • Threshold is 20 employees.

FMLA

  • Not strictly a discrimination statute.

  • Has a 50 employee threshold.

Enterprise Liability

  • May occur when you're on the payroll of one company but there is a separate company that is interrelated.

Joint Employers

  • Temp agency situations.

  • The employers are not integrated; some employers are sharing employee relationships.

Employer Definition

  • Talking about the organization

Individual Liability

  • There is generally no individual liability for Title VII discrimination, the ADA, or ADEA.

Government Employees

  • Qualified immunity, 11th amendment immunity are different considerations.

Who Is a Covered Individual?

  • An individual employed by an employer.

  • People like independent contractors, volunteers, and partners in a partnership who think the relationship is that of an employer are not typically covered.

Common Law Test

  • Used to determine if one is an employee vs. an independent contractor.

  • Do they bring their own tools to the job?

  • Does the purported employer control their hours of work?

  • Does the purported employer control the manner of means of their work?

  • Does the purported employee have multiple clients they service?

Gig Economy

  • Uber, Lyft, DoorDash, and other companies make their workers sign everything they can to ensure they are qualified as independent contractors. Uber drivers would, for instance, not be a covered individual.

Owners of a Business

  • A series of factors are considered such as organizational control. ( Clackamas case)

  • Was the individual’s work supervised?

  • Does individual share in profits or losses?

Law Firrms

  • How are member and shareholder responsibilities defined?

  • Are shareholder responsibilities and membership requirements clearly defined?

  • Always have it in the back of your mind who is going to be considered an employee, a partner, or shareholder, as well as the parameters for turning from an employee to a shareholder.

Kings And Spaulding Case

  • Had to do with an associate at a law firm who wanted to be made a partner.

  • What were the terms, if any, for the employment opportunity such that it would be afforded to an associate given her status as an employee?

Next Steps

The next class session will cover disparate treatment, unlawful motives, and what proofs they look like, including the use of flowcharts.