Emp’nt Discrim

Prof Tepker – Spring 2000

OUTLINE

I.Chapter 3: Individual Disp Treat Discrim

A.Introduction

  1. Series of Congressional statutes that deal w/ various aspects of emp’nt discrim:
  1. Title VII of Civil Rights Act of 1964 – broadly proscribes discrim in emp’nt on basis of race, color, religion, sex, or nat’l origin.

(1)Public Policy Exception – forbidden in state law to discriminate against emp’ee in regard to protected activity. In OK, Burk public policy tort.

(2)1978 Pregnancy Discrim Act – added definition of sex that included “pregnancy & childbirth.”

(3)1991 Act – redefined burdens in disp imp cases, defined liability in mixed motive cases, prohibited discriminatory adjustment of test scores, limited challenges to judicially approved affirmative action plans, authorized jury trials, redefined time allowed for challenge to seniority systems & authorized damages for intentional discrim.

  1. Civil War Reconstruction statutes – 42 U.S.C. § 1981 – provides “all persons [shall have] same right to make & enforce Ks as is enjoyed by white citizens.” Prohibits racial discrim in emp’nt K.

(1)Johnson v. Railway Express Agency - § 1981 affords fed remedy against discrim in private emp’nt on basis of race.

(2)Patterson v. McLean Credit Union – restricted § 1981 language to extend only to formation of K but not to problems that may arise later from conditions of continuing emp’nt.

  1. Equal Pay Act of 1963 – requires that men & women who perform equal work for emp’r receive equal rates of pay. Coverage & enforcement based on Fair Labor Standards Acct.
  1. Age Discrim in Emp’nt Act of 1967 – prohibits employ discrim against persons over 40 on basis of age;
  1. Rehabilitation Act of 1973;
  1. Americans w/ Disabilities Act of 1990

2.Executive Order 11246 – obligates service & supply contractors, & their subcontractors, not to discriminate on basis of race, color, sex, religion, or nat’l origin. Also directs contracting emp’rs to undertake affirmative action to attract & employ qualified individuals in underrepresented classes.

  1. E.O. 11246 obligations are Kual in nature & enforced by fed gov thru br/ K actions. Aggrieved individuals file claims w/ Labor Dept but no judicial remedy.

3.EEOC – Five primary functions:

  1. charge processing, investigation, & conciliation;
  2. litigation;
  3. interpretation;
  4. fed emp’ee complaint adjudication;
  5. resolution of complaints by state gov emp’ees characterized as “policy makers.”

B.Meaning of Discriminatory Intent

  1. Disp treat – theory of intentional discrim
  2. Disp imp – theory of unintentional discrim
  1. Three Basic Evidentiary Models by which P may prove illegal motive or discriminatory intent:
  1. Direct – spoken/written evidence of animus against protected class – must link remark to challenged decision.

(1)Slack v. Havens (S.D. Cal, 1975) – Racial comments made during discriminatory emp’nt decision are “smoking gun” evidence of unlawful emp’nt practice. Law does not require such persuasive evidence as was available in this case.

(a)Reasoning – D, through its managers & supervisors, meant to require Ps to perform task that it would not require of white emp’ee. D enforced manager & supervisor decision by firing Ps when they refused to clean. Consequence was racial discrim.

  1. Circumstantial/Pretext
  2. Statistical
  1. Terminable-At-Will K – common law rule of emp’nt Ks is that any K not for definite time is terminable at will by either party – for any reason or for no reason, for good reason or for bad reason.
  1. Stereotype – generalization – tendency to attribute to individual a characteristic one generally attributes to certain class. Is stereotype sufficient to prove discrim? Yes.
  1. Hazen paper Co. v. Biggins (US, 1993) – No disp treat under ADEA when factor motivating emp’r is some feature other than emp’ee’s age. Company decision to fire older emp’ee solely b/c pension benefits close to vesting does not constitute age discrim b/c years of service is motivating factor distinct from age.
  1. Rule – “Disp treat” – emp’r treats some people less favorably than others b/c of protected characteristics – available under ADEA. In disp treat, liability depends on whether protected trait (age) actually motivated emp’r’s decision. Necessary intent is act of discrim against emp’ees on forbidden grounds.
  2. Reasoning – Very essence of age discrim for older emp’ee to be fired b/c emp’r believes that productivity & competence decline w/ old age. Stigmatizing stereotype disappears when emp’r’s decision is wholly motivated by factors other than age, even if motivating factor is correlated w/ age.
  3. Hazen Paper pressures Ps to sue on every possible basis to avoid emp’r “admitting” it acted on some ground P failed to assert & thereby defeating ground on which P chose to sue.
  4. Point of ADEA, as Hazen Paper sees it, is that emp’rs should not presume any decline in abilities &, even where declines occur, emp’r should not act on those changes unless relevant to job in question.
  5. Discriminatory intent is distinct from criminal intent or tort intent. Don’t prove malice.
  1. Johnson v. NY – emp’r conditioned emp’nt on emp’ee membership in Nat’l Guard, which required retirement at age 60. Ct held, while Guard’s unquestionable age discrim was beyond ADEA’s reach, emp’r’s use of Guard membership imposed age-based criterion b/c it “inextricably linked” P’s age to his termination.
  1. Walton v. Cowin Equipment Co. – Unthinking discriminatory treatment can meet threshold of intentional discrim b/c emp’r has some obligation under Title VII to think.

C.Inferential Evidence of Discriminatory Intent

  1. P’s P/F Case – Process of proving discriminatory intent in realm of inadvertent yet intentional discrim.
  1. McDonnel Douglas Corp v. Green (US, 1973) – outlines analytical process after all evidence is presented – does not outline order of presenting evidence. BPE shifts but not BOP.

(1)P in Title VII case carries initial burden of establishing p/f case: (1) that he belongs to racial minority; (2) that he applied & was qualified for job for which emp’r was seeking applicants; (3) that, despite qualifications, he was rejected; (4) that, after rejection, position remained open & emp’r continued to seek applicants from person of P’s qualifications.

(2)Burden then shifts to emp’r to articulate legitimate, nondiscriminatory reason for emp’ee’s rejection. Refusing to hire emp’ee based on past illegal activity is legitimate reason.

(a)Non-discriminatory – negates discriminatory motivation as cause for decision.

(b)Legitimate – not illegal under statute being evaluated.

(3)Burden shifts back to emp’ee to show that emp’r’s proffered reason is pretext for actual discrim. Pretext can be shown by offering evidence that emp’r does not act consistent in regard to its offered justification towards all classes of emp’ees.

  1. Although McD formula does not require direct proof of discrim, it does demand that P demonstrate at least that his rejection did not result from two most common legitimate reasons for rejecting job applicant: (1) absolute or relative lack of qualifications or (2) absence of vacancy in job sought.
  1. P/f case is legally mandated presumption that D committed act in question. Presumption not empirical – designed to allocate burden of proof. Replace presumption of innocence w/ presumption of liability.
  1. Emp’r free to make subjective decisions until ct finds those decisions ridiculous, irrational, unfair, etc.
  1. McD p/f case: (prof’s analysis)

(1)Member of protected class;

(2)Similarly situated[1] – superficial equality (circumstantial) – must prove some plus factor sufficient to prove an inference of liability or guilt.

(3)Event for ct to evaluate – adverse emp’nt decision.

  1. O’Conner v. Consolidated Coin Caterers (1996) – Fact that one person in protected class has lost out to another person in protected class is irrelevant, so long as he has lost out b/c of his status in class.
  1. McDonald v. Santa Fe Trail Transportation (US, 1976) – Reverse discrim. Title VII prohibits racial discrim against white emp’ees upon same standards as applicable to blacks.

(1)Held - § 1981 applies to racial discrim in private emp’nt against white persons b/c (a) language of statute applies to “all persons,” including whites; (b) legislative history demonstrates that Act upon which current one is modeled applied to whites as well as non-whites.

(2)§ 1981 is both broader & narrower in scope than is Title VII: Broader in that it covers all emp’nt Ks, even those of small emp’rs & it reaches beyond emp’nt to all Ks. Narrower b/c limited to race discrim & Title VII includes sex, religion, & nat’l origin.

(3)Two points from this case:

(a)Regardless of one’s race, one is not to be subjected to disp treat based on race.

(b)P need not show race is only cause of disp treat but only that it is “but for” or decisive cause.

(4)Reverse Discrim under ADEA – does not work same b/c ADEA defines protected age & does not cover discrim of workers below age of 40. But does ADEA allow preferential treatment of older emp’ees w/in protected class? Varying views:

(a)Given wide range of ages covered by ADEA & undoubted fact that discrim increases as workers grow older, it must be impermissible to discriminate against older protected workers in favor of younger protected workers.

(b)ADEA simply prohibits age discrim against class of persons & would be anomalous to allow some members of that class to be preferred.

  1. Texas Dept of Community Affairs v. Burdine (US, 1981) - McDonnell Douglas does not shift BOP but only BPE & this does not unduly hinder P. Pretext is not unduly hard for P to prove: (1) D’s offer of legit reasons must be clear & reasonably specific; (2) D retains incentive to persuade trier of fact that emp’nt decision was lawful; (3) liberal discovery rules supplemented by P’s access to EEOC files.

(1)Rule – Emp’ee’s p/f case of discrim is rebutted if emp’r articulates lawful reasons for action - emp’r need only produce admissible evidence that would allow trier of fact rationally to conclude that emp’nt decision not motivated by discriminatory animus.

(2)Rationale – Functional argument for shifting BOP – emp’r is in control. Tradition of labor argument – duty of proving just cause falls on emp’r in context of labor disputes. Proof of discriminatory intent is factual issue & emp’r has better access to facts.

  1. D’s Rebuttal & P’s Proof of Pretext

a.How to prove pretext?

(1)stats about workplace, hiring data, job description – relevant to disp treat & disp imp cases.

(2)EEOC investigations;

(3)Grievance filings

(4)Mere proof of failure to follow progressive discipline is not conclusive of discrim. But selective application of progressive discipline may be informative. Look for sudden, impulsive, emotional application.

(5)Look at totality of facts & circumstances.

  1. Patterson v. McLean Credit Union (US, 1989) – spurred amendments to Civil Rights Act in 1991. Partially overruled by those amendments.

(1)Held – B/c emp’ee can present variety of evidence in attempt to establish pretext, jury instruction erroneous in requiring emp’ee to show she was better qualified than successful white competitor.

  1. Walker v. St. Anthony’s Medical Center (1989) – no per se requirement that emp’ee show as part of p/f case that she was replaced by individual from outside protected class.
  1. Purkett v. Elem (1995) – even nonsensical explanations – “implausible,” “silly,” “fantastic,” or “superstitious” – can satisfy D’s burden of production.
  1. Burdine’s requirement that emp’r’s explanation must be legally sufficient to justify judgment for D means at least that reason must be put into evidence & not just offered as a reason.
  1. Articulated Reason Not Believed – “Pretext Plus”

(1)St. Mary’s Honor Center v. Hicks (US, 1993) – No direct evidence, tending to prove factual existence of intentional discrim. Theory in this type of case – prove by indirect evidence – eliminate non-discriminatory reasons & left w/ inference of discrim. After St. Mary’s, still allowed to draw this inference but not compelled to do so.

(a)Held – Emp’ee’s showing of emp’r’s offered reasons as pretext does not compel judgment for emp’ee. Rejection of D’s reasons will permit trier of fact to infer ultimate fact of intentional discrim but does not compel judgment b/c P still bears ultimate burden of persuasion.

(b)Rationale – At close of D’s case, ct is asked to decide whether issue of fact remains for tribunal to determine. None does if, on evidence presented, (1) any rational person would have to find existence of facts constituting p/f case, & (2) D has failed to meet BOP. In that event, ct must award judgment for P as matter of law. If D meets production, trier of fact decides ultimate question: whether P showed D intentionally discriminated against him. Factfinder’s disbelief of D’s reasons may, together w/ elements of p/f case, suffice to show intentional discrim.

(c)What does ct hope to achieve w/ this decision? Lying emp’rs benefit from this opinion. Opinion intended as jury instructions to lower cts - making sure juries are told cannot find intentional discrim by proxy. Jury instruction that reinforces P’s ultimate burden of proof.

D.Direct Evidence of Discriminatory Intent – evades need to establish p/f case. Leaps over this burden by direct evidence, not only of decisive cause, but of motivating factor. “But for” remains relevant but P does not have to prove forbidden ground is but for cause.
  1. Mixed MotiveCases – emp’r asserts that even assuming illegal motive, it would have reached same decision based on legit concerns. If emp’r proves this, emp’ee’s remedies limited to injunctive relief & atty fees.
  1. Price Waterhouse v. Hopkins (US, 1989) – P’s burden is to show by POE that forbidden ground is substantial or motivating factor; does not need to show it is “but for” cause of decision at time decision was made. Price Waterhouse Instruction - When P proves gender was motivating factor in emp’nt decision, D may avoid liability only by proving by POE that it would have made same decision even if it had not taken P’s gender into account. Also held that stereotyping is direct, though circumstantial, evidence & can be sufficient to shift burden

(1)Rule – Emp’r’s burden is affirmative defense – P must persuade factfinder on one point, then emp’r must persuade it on another. Emp’r may not prevail in mixed-motive case by offering legit & sufficient reason for its decision if that reason did not motivate emp’r at time of decision. Emp’r must show by POE (not C&CP) that its legitimate reason alone would have induced same decision.

(2)Reasoning – Price Watershouse instruction - Burden shift is not inconsistent w/ Burdine b/c Burdine involves proving discrim by indirect means (knocking out all others) & here burden shifts b/c proof is direct & P has met its burden by proving discrim is motivating factor. Also, explanation for not promoting is steeped in stereotype & serves as direct evidence of discrim as motivating factor.

(3)White Concur – Disagrees w/ plurality’s seeming requirement that emp’r submit objective evidence that same result would have occurred absent unlawful motivation. No requirement of objective evidence. Instead, in mixed motive cases it is sufficient proof for emp’r to credibly testify that action would have been taken for legitimate reasons alone.

(4)O’Connor Concur – P must produce evidence sufficient to show that illegitimate criterion was substantial factor in particular emp’nt decision such that reasonable fact-finder could draw inference that decision was made “b/c of” P’s protected status. Only then would burden of proof shift to D to prove that decision would have been justified by other, wholly legitimate considerations.

  1. Ostrowski v. Atlantic Mutual Ins (2nd Cir, 1992) – “Jury must be told that mixed-motive issue does not arise unless it first determines that P has carried burden of proving forbidden motive but has failed to prove that emp’r’s explanations were pretextual.”
  1. § 703(m) – states that Title VII violation is established when P demonstrates that race or sex “was motivating factor for any emp’nt practice, even though other factors also motivated practice.”
  1. 1991 Civil Rights Act modified Price Waterhouse:

(1)rejects “substantial factor” threshold test of emp’r’s state of mind that concurrences advocated. Instead, unlawful emp’nt practice is established when complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any emp’nt practice, even though other factors also motivated practice.

(2)Changed effect of emp’r carrying its same decision defense. Instead of defense to liability, now only defense to full remedies if emp’r is able to demonstrate that it would have made same decision even if protected characteristic had not been considered. Remedies limited to declarative relief, injunctive relief, & atty fees & costs.

(3)Defense applicable to every Title VII case in which P proves that characteristic protected by Title VII was a motivating factor for emp’r.

  1. After-Acquired Evidence – Unlike Mixed Motive cases, where legal & illegal motives operate simultaneously in decision-maker’s mind, after-acquired evidence presupposes illegal motive acting alone, followed by post facto speculation that had emp’r been aware of certain info, it would have been motivated by this & not by discrim animus to make same decision.
  1. Summers v. State Farm Mutual Ins. (10th Cir, 1988) – during discovery in emp’nt discrim charge, emp’r learned that P had falsified insurance records while working for emp’r. Ct upheld summ j for emp’r.
  1. Wallace v.Dunn Construction (11th Cir, 1992) – rejected Summers – “Summers gives emp’rs option to escape all liability by rummaging through unlawfully-discharged emp’ee’s background for flaws & then manufacture legitimate reason for discharge that fits the found flaws.” Law governing after-acquired evidence should not ignore time lapse b/w unlawful act & discovery of legitimate motive.
  1. McKennon v. Nashville Banner Publishing (US, 1995) – Price Waterhouse analysis does not apply. Emp’r motivated solely by illegal considerations so that ct’s remedial power not limited by 1991 statutory provisions applicable to mixed motive cases. To avoid backpay liability & reinstatement, emp’r must establish that wrong-doing was of such severity that emp’ee in fact would have been terminated on those grounds alone had emp’r known of it at time of discharge.
  1. Intent of Multiple Decision-Makers – problem of imputed intent.
  1. 3 types of intentional discrim cases:

(1)proof by process of elimination – indirect evidence – shifting burdens – showing pretext

(2)proof by direct evidence – smoking gun

(3)proving intent by stats & antidotes

  1. Is New Structure of Individual Disp treat Theory Emerging?
  1. Turmoil in law of indv disp treat discrim. (1) McD not well founded & destroyed by subsequent decisions. (2) Confusion concerning proper scope of application of & relationship b/w McD/Burdine cases & Price Waterhouse cases. (3) Scope of applicable provisions of 1991 Civil Rights Act not yet clear w/in Title VII jurisprudence. (4) 1991 Act’s effect on other anti-discrim statutes not yet apparent.
  1. Prof’s Opinion – HicksBiggens don’t make much difference & do not blur. Problem – tendency of fed judges not to want docket flooded.