Professor’s Updates
September 2010
to
Cases and Materials on Employment Discrimination
Seventh Edition, 2008
&
2009 Supplement
Michael J. Zimmer
Charles A. Sullivan
Rebecca Hanner White
All professors and students using the Casebook are permitted
to download and reproduce these Updates in whole or in part.
Copyright © 2010
Page references are to the 2008 Casebook. Where the 2009 Supplement alters the casebook and this Update alters the Supplement, both references are provided. .
CHAPTER 1
INDIVIDUAL DISPARATE TREATMENT
A. INTRODUCTION
B. THE ELEMENTS OF AN INDIVIDUAL DISPARATE TREATMENT CASE
1. Intent to Discriminate
Caseboook, page 7, add at end of Note 7, The Extent of the Phenomenon:
See also Sumit Agarwal et al, Dismissal with Prejudice?: Race and Politics in Personal Bankruptcy, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1548473 (controlling for debtors' demographic and financial situation, white judges are 21% more likely to dismiss a chapter 13 reorganization petition of an African American debtor relative to a white debtor);
Casebook page 8, add at end of second paragraph in Note 7, The Extent of the Phenomenon:
Laura Giuliana, David I. Levine, & Jonathon Leonard, Manager Race and the Race of New Hires, 27 J. Lab. Econ. 589 (2009) (using data from a large retailer with frequent employee turnover, the study finds that non-black managers hire more whites and fewer blacks than do African American managers; in areas with large Hispanic populations, Hispanic managers hire more Hispanics and fewer whites than white managers).
Casebook page 8, add at end of second paragraph in Note 8, Is “Unconscious Discrimination” an Oxymoron?:
Cf. Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893, 1900 (2009) (agreeing that “Title VII already prohibits unconscious as well as conscious race and gender discrimination,” the article “cautions against approaches to unconscious discrimination - whatever its prevalence and whatever the inadequacies of existing law - that rely principally on stronger legal coercion as the primary tool to fight implicit discrimination” because of the potential negative effects on internalization of nondiscrimination norms).
Casebook, page 8, add before Selmi cite in last paragraph in Note 8, Is “Unconscious Discrimination” an Oxymoron?:
See also Patrick Shin, Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law, Hastings Law Journal (forthcoming), available at http://ssrn.com/abstract=1588110 (assuming that implicit bias exists and can be proven to have caused an adverse employment action ,the article examines whether making such conduct illegal is normatively desirable).
Casebook page 9, add at end of Note 11, The Bad Old Days:
Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L. Rev. 1053, 1055 (2009) (“the findings of the IAT are ambiguous. The test could just as plausibly be thought to measure racial bias that is simply covert, known to oneself yet intentionally concealed from researchers. On this interpretation, the IAT reveals not that individuals are more biased than they realize, but that they are more biased than they want others to know”).
2. Terms, Conditions, or Privileges of Employment
Casebook page 20, add before citation to McCoy in Note 2, Materiality:
Leibowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009) (“non-renewal of an employment contract constitutes an adverse employment action for purposes of Title VII and the ADEA. . . . [W]hether plaintiff was “laid off” or “terminated,” or her employment was “not renewed” is not critical to the legal analysis; rather, she suffered an adverse employment action because she was denied the requested continued employment, regardless of the label); Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 320 (3d Cir. 2008) (“The failure to renew an employment arrangement, whether at-will or for a limited period of time, is an employment action”);
Casebook page 20
Supplement page 4, add to second insert for page 20 before Beyer:
Barone v. United Airlines, Inc., 355 F. App'x 169 (10th Cir. 2009) (asking plaintiff to choose between resignation and reassignment several states away from her current assignment was an adverse employment action);
Casebook page 20
Supplement, page 4, add bulleted items to third insert for page 20:
· Reed v. UAW, 569 F.3d 576 (6th Cir. 2009) (a union’s requiring an employee to make a charitable contribution that was $100 greater than the amount he would pay in agency fees as a dues-objecting non-member, was not a materially adverse change in terms or conditions of his employment).
· Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720 (7th Cir. 2009) (reassignment of teacher from 12th grade/Honors/AP English classes to 7th grade English class was not retaliatory or discriminatory adverse action, despite contention that teaching junior high students is less prestigious than teaching seniors, where plaintiff continued to teach same subject in same building under same conditions).. Hrisinko v. N.Y. City Dep't of Educ., 2010 U.S. App. LEXIS 5180 (2d Cir. Mar. 11, 2010) (transfer to substitute teacher position was adverse employment action even though salary and benefits did not change, where it was less distinguished, had diminished responsibilities, and eliminated plaintiff’s opportunity for tenure).
3. Linking Discriminatory Intent to the Employer’s Treatment of Plaintiff
C. PROVING THE DISCRIMINATION ELEMENT
Casebook page 44
Supplement page 5, add at beginning of second insert for page 44 before Van Voorhis cite:
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622 (7th Cir. 2009) (evidence that supervisor made derogatory remarks about ethnicity, including calling plaintiff a “stupid Polack,” created a fact issue as to the reason for her discharge by that supervisor even though the decision to terminate her happened several months later, at the end of the school year);
Casebook page 50
Supplement page 7, add after Clack in insert for page 50:
Martino v. MCI Communs. Servs., 574 F.3d 447 (7th Cir. 2009) (plaintiff presented a “particularly weak cat’s paw case” because “there were not one, but two layers of bias-free analysis” between his supposedly biased supervisor and the final decision); Dwyer v. Ethan Allen Retail, Inc., 325 F. App’x 755 (11th Cir. 2009) (even assuming that supervisor was biased, that bias could not be imputed to employer when the actual decisionmaker independently investigated policy violation and the supervisor did not recommend discharge).
Casebook page 50
Supplement page 7, update citation for Befort article in insert for page 50:
60 S.C. L. Rev. 383 (2008)
Casebook page 57, add at end of carryover Note 1(a), Not by the Numbers:
See Ruiz v. County of Rockland, 609 F.3d 486 (2d Cir. 2010) (a defendant claim of serious misconduct by plaintiff does not bar his making out a prima facie case when his performance evaluations showed satisfactory work: “the step at which the court considers such evidence is important” because “no amount of evidence permits a plaintiff to overcome a failure to make out a prima facie case”); Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (a plaintiff is not required to disprove the asserted reason for firing him at the prima facie stage of the analysis since to do so would collapse the defendant’s burden of production into the prima facie case; thus, plaintiff carried its burden by showing that he met the employer’s expectations “other than the tardiness and unavailability Yellow offers as its reasons for firing him.”).
Casebook page 58, add at end first paragraph in Note 6, The Third Step: Proving Pretext:
Upshaw v. Ford Motor Co., 576 F.3d 576, 586 (6th Cir. 2009) (promotion of white candidates based on faulty performance ratings was nevertheless a legitimate, nondiscriminatory reason for failing to promote an African-American).
Casebook page 59, add at end of Note 7, Pretext for Discrimination:
Perhaps because the jury is to focus on the ultimate issue of discrimination vel non, the trial court did not abuse its discretion by choosing not to explicitly instruct the jury in pretext terms. See Browning v. United States, 567 F.3d 1038 (9th Cir. 2009). Contra Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232 (10th Cir. 2002).
Casebook page 66, add at end of Note 4(b), Defendant’s Stats:
See also Risch v. Royal Oak Police Dep't, 581 F.3d 383 (6th Cir. 2009) (triable pretext issue existed when plaintiff’s composite score on a test was higher than two male counterparts selected for promotion; the department claimed the promoted males had better scores in certain respects, but adverse comments about the capabilities of female officers, degrading remarks about women, and expressions of opinion that females would never be promoted to command positions provided additional evidence of pretext).
Casebook, page 67, add at end of carryover Note 4, Failure to Follow Procedures:
See also Medlock v. UPS, Inc., 608 F.3d 1185 (10th Cir. 2010) (no pretext shown for employer’s refusal to reinstate plaintiff for not taking responsibility for his prior infraction even though its practice of rehiring drivers who admitted misconduct was not formal policy)
Casebook, page 67, add near end of Note 7, Several Nondiscriminatory Reasons before Zaccagnini cite:
Jones v. Nat'l Am. Univ., 608 F.3d 1039 (8th Cir. 2010) (a change in the employer’s reasons for its action between those offered the EEOC and those adduced at trial can be evidence of pretext sufficient to uphold a jury verdict, at least in the context of other evidence of age bias);
Casebook, page 67, add at end of Note 7, Several Nondiscriminatory Reasons:
However, plaintiff’s concession that a lawful motive exists precludes the inference of a discriminatory motive that might be otherwise drawn from a finding of pretext regarding the defendant’s asserted nondiscriminatory reason. Reeder v. Wasatch County Sch. Dist., 2009 U.S. App. LEXIS 28264 (10th Cir. Dec. 23, 2009), held that plaintiff’s claim that the termination decision was motivated by the school board’s desire to save money was fatal to her case absent any link between that desire and plaintiff’s age. Thus, the fact that the school board denied a monetary motivation was irrelevant.
Casebook page 72, add before “This issue” in fifth line of last paragraph:
But see Lee v. Kan. City S. Ry. Co, 574 F.3d 253, 261 (5th Cir. 2009) (for comparator proof “[i]t is sufficient that the ultimate decisionmaker as to the employees’ continued employment is the same individual, even if the employees do not share an immediate supervisor”).
Casebook page 77, add before “see generally” towards end of last full paragraph:
See also Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 694 (8th Cir. 2009) (evidence that an employer followed an affirmative action plan in a consent decree in taking a challenged adverse employment action “may constitute direct evidence of unlawful discrimination").
Casebook page 86, add at end of carryover Note 1, The Significance of Reeves:
See also Torgerson v. City of Rochester, 605 F.3d 584 (8th Cir. 2010) (where rankings were significantly impacted by the subjective interview process, which accounted for 40 percent of the final score, the fact that the plaintiffs were ranked lower than the successful candidates did not bar the establishment of a prima facie case); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289 (4th Cir. 2010) (a plaintiff raised factual question of pretext regarding her failing of a physical fitness test by a combination of factors, including prior biased comments in other positions, the fact that the employer ordered the test to assess a minor, temporary injury, the test did not directly evaluate her injury, its use was atypical in the industry, and the reasons she failed were not related to the injury that triggered the test).
Casebook page 92
Supplement page 11, replace everything after extract with the following:
See generally Charles A. Sullivan, Plausibly Pleading Employment Discrimination, http://ssrn.com/abstract=1657872 (detailing ways to effectively plead discrimination claims even if Swierkiewicz does not survive Twombly and Iqbal) ); Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179, 194 (2010) (“While there may be some legitimate concern about the validity of Swierkiewicz generally, the decision should be considered good law at least as to cases brought under Title VII.”); Joseph A. Seiner, Pleading Disability, 51 B.C. L. Rev. 95 (2010); Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 82 (2010); Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark L. Rev. 15 (2010); Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011;
Casebook page 92
Supplement page 11, add at end of page:
Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d Cir. 2009) (a disability claim satisfied Iqbal pleading standards when it alleges that (1) her employer regarded plaintiff as disabled because of an injury at work; (2) she applied for an open telephone operator position for which she was qualified; (3) she was not transferred to that position; (4) the employer never contacted her about the telephone operator position or any other open positions; and (5) she believed the defendant’s actions were based on her disability).
D. IMPLEMENTING DESERT PALACE AND REEVES
Casebook page 95
Supplement page 24, add at end of Note 1, The Holding:
The circuit courts have so far read Gross not to affect the application of McDonnell Douglas analysis in ADEA cases. E.g., Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (“Gross stands for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case. McDonnell Douglas, however, imposes no shift in that particular burden” since it shifts only a burden of production); Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.2 (2d Cir. 2009) (applying McDonnell Douglas after Gross requires the plaintiff to prove that age was the but-for cause of the defendant’s adverse employment action); Velez v. Thermo King de P.R., Inc., 585 F.3d 441 (1st Cir. 2009); Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009). They have also continued to look to something like “direct evidence” – not as a burden-shifting device but rather as a reason to find that age was a determinative factor.
Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201 (11th Cir. 2010); Baker v. Silver Oak Senior Living Mgmt. Co., 581 F.3d 684 (8th Cir. 2009).
Casebook page 95
Supplement page 25, add at end of Note 2, Three Step Rationale:
See generally Michael C. Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buffalo L. Rev. 69, 107 (2010) (Gross provides “no convincing reason for rejecting the holding of Price Waterhouse as precedent for interpreting the ADEA and for instead favoring Justice Kennedy’s dissenting interpretation of identical controlling language in Title VII.”); Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instruction, 51 B.C. L. Rev. 279 (2010) (critiquing Gross for its unpersuasive effort to reject burden shifting under the ADEA in part because the majority failed to support its claim that jury confusion would result); Martin J. Katz, Gross Disunity, 114 Penn St. L. Rev. 857 (2010).