S. Amir Kohan

Individual Disparate Treatment Discrimination



*Employer treats some people less favorably than others because of [some protected characteristic]

*Proof of discriminatory motive is critical (in some situations it can be inferred from the mere fact of differences in treatment)


Slack v. Havens (9th Cir. 1975): Black employees told they must do janitorial assignment in their dept while a white woman was excused.  Immediate supervisor explains “Colored people should stay in their places, they are hired to clean because they clean better” – black employees refuse assignment, were fired and sued.

  • Trier of fact makes determination based upon reasonable inferences drawn from totality of the facts, conglomerate of activities and entire web of circumstances presented by the evidence on the record as a whole.
  • Griggs v. Duke Power: mandates that court look beyond appellants’ alleged lack of intent to discriminate and consider the consequences of the employment practices in question.
  • This case = reasonable determination by court that found discrimination in terms and conditions of employment applied to appellees.
  • ALSO: this case offers test for SUCCESSOR CORPORATION LIABILITY. (p. 4, case printout)


Hazen Paper v. Biggins (US 1993):  Employee discharged (allegedly for doing business with competitors) weeks before pension was to vest.  Brings suit under ADEA and ERISA.

  • HELD: Decision based on years of service is not necessarily age based – age and years of service are analytically distinct. Firing employee in order to prevent pension benefits from vesting does not, without more, violate ADEA (though does violate ERISA!)
  • Employer cannot rely on age as proxy for employee’s remaining characteristics, i.e. productivity, competency, etc.
  • For disparate treatment, liability depends upon whether the protected trait actually motivated employer’s decision and had determinative influence on outcome.
  • ALSO: liquidated damages for ADEA violation depends on whether the violation was willful. See Thurston – standard is “if employer knew or showed reckless disregard for the matter or whether its conduct was prohibited by the ADEA.”  Congress aimed to create a “two-tiered” liability scheme under which some, but not all, violations would give rise to liquidated damages.  So NOT standard of “whether employer knew that ADEA was in the picture” which would virtually obliterate any distinction between willful and nonwillful violations.  If employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed.









INDIRECT PROOF MODEL – Order and Allocation of Proof in Circumstantial Evidence Cases


  1. Plaintiff’s Prima Facie CaseBurdine (1981, p.58), McDonnell Douglas


  1. Elements of PF case:


  1. P is a member of a protected group
  2. P applied for and was qualified for position


  1. P must show that P at least met objective criteria for position (employer may then articulate the subjective factors in explanation for its action)
  2. P bears burden of showing comparitive qualifications of P.


  1. P was not chosen
  2. Position remained open after P rejected and employer continued to seek applicants


  1. P has burden of proving PF case by the preponderance of the evidence.
  2. P carries BURDEN OF PERSUASION AT ALL TIMES that D intentionally discriminated against P.  The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.


  1. Purpose of PF case
  2. Eliminates most common nondiscriminatory reasons for P’s rejection.
  3. Creates rebuttable presumption that employer discriminated against employee.  If D silent after PF case, ct enters judgment for P.
  4. Determines whether or not P will be allowed to have case decided on the merits by trier of fact.


  1. Plaintiff DOES NOT have to offer direct evidence of discriminatory intent. Aikens (1983, p.70)


  1. Pl who is not member of protected class – i.e. white male – not entitled to McDonnell Douglas presumption unless they demonstrate the existence of “background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority” – approach followed by most courts when dealing with suits brought by members of historically favored group. (Note 1, p. 63)


  1. Pl does not need to prove she was replaced or passed over in favor of someone from outside her class in order to establish PFC (according to most courts).


  1. “Direct Evidence” as a Substitute for the PFC: Cordova v. State Farm (9th 1997), Pl can also establish a PFC of disparate treatment without satisfying the McDonnell Douglas test, if she provides evidence suggesting that the “employment decision was based on a discriminatory criterion illegal under the Civil Rights Act.”
    • In Cordova, the evidence offered was a statement by the supervisor responsible for hiring who referred to another employee as a “dumb Mexican” who was hired only b/c he was a minority.
    • Some courts have limited directed evidence to statements of bias by decision makers that explicitly refer to the decision alleged to be discriminatory.



  1. Defendant’s Burden after PF case


  1. Burden of PRODUCTION shifts to D.   D must only ARTICULATE legitimate, nondiscriminatory reasons for employee’s rejection.  D must clearly set forth specific reasons through admissible evidence.  (An answer to a complaint will not be enough).  D must raise a genuine issue of material fact.
  2. D need not persuade the ct that it was actually motivated by these reasons.
  3. If D meets this burden, PF case and presumption of discrimination is rebutted.


  1. Purpose of D’s burden


  1. Meets P’s PF case by presenting legitimate reason for action
  2. Frames factual issues with sufficient clarity so that P has full and fair opportunity to prove pretext.


  1. D does not have to prove that person hired was more qualified than P.  Burdine.


  1. D can fire employee for “good reason, bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason” Nix v. WLCY Radio (11th Cir. 1984)  Burdine requirement that the reason be ‘clear and reasonably specific’ affords the Pl some protection against reasons so nebulous or vague as to make disproving them impossible.  (Employer’s rejection of applicant b/c of “yucky” attitude legally insufficient in context of Pl’s PFC – Robbins v. White-Wilson Medical 5th Cir. 1981)
  2. Plaintiff’s Proof of Pretext


  1. If D carries burden of production, P then has opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by D were not its true reasons, but were a pretext for discrimination.  *Since the PFC burden is not onerous, and neither is the evidentiary burden on employer, most disparate treatment cases are resolved at the pretext stage*


  1. Pretext: a false explanation put forward to cover up unlawful discrimination.


What is and is not pretext?


  1. NOT PRETEXT – P cannot prove pretext merely by showing that the employer was mistaken or relied on incorrect information.  If employer sincerely, though mistakenly, suspected the D of being dishonest, employer will satisfy burden and will prevail.  Employer usually entitled to a “business judgment” jury instruction to the effect that a good faith business decision, even if mistaken or unwise, is not alone sufficient to establish discrimination.


Biased comments, even by supervisors, that are unconnected with the employment decision in question are frequently described as “stray remarks” – admissible but not alone enough to raise triable issue on pretext.


  1. PRETEXT – if employer changes explanation for challenged employment decision between time of decision and time of trial, this will be pretext.


P can also show pretext if the reason offered for employment decision was applied only to P but not to other employees, i.e. that ‘similarly situated employees’ to whom the articulated reason could or should have been applied have in fact been treated more favorably than the plaintiff.


While D doesn’t have to proof it hired more qualified applicant, evidence showing hire/promotion of less qualified applicant may be probative of pretext.  Pl must show she was objectively and substantially better qualified.


  1. This proof of pretext merges with P’s ultimate burden of persuasion that P was victim of intentional discrimination.















St. Mary’s Honor Center v. HICKS (US 1993, p. 70)

ISSUE: whether the trier of fact’s rejection of the employer’s asserted reasons for its actions mandates a finding for the plaintiff.

  • Majority: Rejection of proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, no additional proof of discrimination is required – BUT the rejection of D’s proffered reasons does not compel judgment for plaintiff
    • If it did, that would contradict the fundamental principle of FRE 301 on presumptions which states that a presumption does not shift the burden of proof and would ignore Court’s admonition that Pl at all times bears the “ultimate burden of persuasion.”
    • Dicta in Burdine – Pl may succeed in meeting burden directly (by persuading the court that a discriminatory reason more likely motivated the employer) or indirectly (by showing that the employer’s proffered explanation is unworthy of credence) – Majority says this just doesn’t fit and should be regarded as an inadvertence – Title VII is not cause of action for perjury, shouldn’t be a ‘judgment for lying’ notion.
    • Aikens: Not enough to disbelieve the employer, the factfinder must believe the Pl’s explanation of intentional discrimination.
  • Dissent: This holding adopts a scheme that will be unfair to Pl’s, unworkable in practice, and inexplicable in forgiving employers who present false evidence in court. Employers not likely to announce their discriminatory motive, Pl’s must rely on indirect evidence.
    • If it’s not enough simply to disbelieve the employer, makes it into a “pretext plus” approach.



  1. Even if P proves pretext, P MUST ALSO PROVE that D was motivated by discriminatory intent.  Not enough just to prove pretext.  (See Hicks dissent)


  1. If P proves pretext, judge has discretion whether or not to find that D intentionally discriminated against P.  Judge can either:


  1. Find that D intentionally discriminated based only the proof of pretext, or
  2. Find that although D’s reasons were pretextual, D motivated by other legitimate, unarticulated reasons such that there was no intentional discrimination.  In this case, P prevails only if can prove that D was motivated by discriminatory intent or reason not articulated by D.


Criticism of Hicks case


  1. P will be required to refute all nondiscriminatory reasons for not being hired, not just reasons articulated by employer.  Hicks dissent, (p. 84).
  2. Almost requires direct evidence of intentional discrimination.  Pretext plus.


Foster v. Dalton (1st Cir. 1995, p. 90)

– African American woman sues Secretary of Navy alleging denial of job b/c of race.

– District Ct: D successfully rebutted PFC by proffering nondiscriminatory reason: preselection of a friend of the appointing officer

– Title VII doesn’t outlaw ‘cronyism’ and use of old boy network in hiring does not constitute per se racial discrimination (Yet how likely is a black female ever going to be part of an “old boy network”?!)



Reeves v. Sanderson Plumbing (US 2000, p. 96)

– Q:      Is D entitled to judgment as matter of law when Pl’s case consists exclusively of PFC and sufficient evidence for trier of fact to disbelieve D’s legit nondiscriminatory explanation?

– I:       The kind and amount of evidence necessary to sustain jury’s verdict that employer unlawfully discriminated based on age.

– D contended that pl failed to maintain accurate attendance records; Pl attempted to demonstrate that answer was pretext for age discrimination.

– Ct of Appeals: Pl had not introduced sufficient evidence to sustain jury finding of discrim; may have introduced enough to show pretext but this was not dispositive of the ultimate issue: whether age motivated the employment decision.

– SC – petitioner made substantial showing that respondent’s explanation was false; ct of appeals erred in proceeding from premise that pl must always introduce additional independent evidence of discrimination (beyond PFC and falsity of D’s explanation); it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation (it is just not compelled – see Hicks).

– Whether judgment as matter of law is appropriate depends on:

– Strength of Pl’s PFC

– Probative value of the proof that D’s explanation is false

– Any other evidence that supports the employer’s case and properly may be considered



Bell v. AT&T (10th Cir. 1991 – pre Hicks): sua sponte invocation of new nondiscriminatory reason for employer’s actions deprived Pl of “full and fair opportunity to demonstrate pretext” – Does Bell survive Hicks?


Neal v. Roche (10th Cir. 2003): Pl concedes the employer’s proffered reason for the contested employment action is a pretext for a motive not prohibited by statute – therefore, summary judgment may be appropriate.


– p. 13 Supplement – Jury Instructions re: Hicks/Reeves.


  1. Court then decides question of fact, i.e. whether employer intentionally discriminated or not.  Ct decides which party’s explanation of employer’s motivation it believes.  Aikens


  1. More difficult to apply proof model to higher level jobs.  Difficult to prove P was qualified for job when subjective qualities like leadership, loyalty, and likeability are involved.  P should look to job description to determine education, experience and skills needed.


  1. Difficult to prove if employer has fake discriminatory requirement.


  1. If employer has a certain qualification, such as a test or physical, which discriminates against protected class, in order to attack this qualification under disparate treatment, P must prove that practice was established to intentionally discriminate or prove that employer intentionally adminstered procedure so as to discriminate against protected class.
  2. May be easier just to prove through disparate impact.


  1. McDonnel Douglas/Burdine proof model helps facilitate court’s inquiry.


  1. Strategy – P wants to find most narrow holding of cases so that P can protect herself from motion for summary judgment.  Otherwise D could argue everything else is just dicta.



Johnson Controls – (1991, p.147)


  1. Plaintiff’s Prima Facie Case


  1. P must prove intentionally overt or facial discrimination by direct evidence.
  2. In Johnson Controls, P showed that policy of not allowing women who are pregnant to work in battery manufacturing b/c of the danger of lead poisoning to fetus is not neutral.  It does not apply to males since fertile men, but not fertile women, are given choice of whether want to work in this position.  Policy on its face is discriminatory since only a female employee must prove that she is not capable of reproducing while men do not, even though lead exposure can hurt male fertility.


  1. Defendant’s Response to PF case


  1. ONLY defense to facially discriminatory policy is Bona Fide Occupational Qualification (BFOQ).  D carries burden of persuasion to prove that sex, religion or national origin interferes with employee’s ability to perform job.  BFOQ is very narrow defense.


  1. Title VII §703(e) – p.1238 – Employer allowed to discriminate if sex, religion, or national origin is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”  *NOTE* Race is never a BFOQ.


  1. WEEKS/DIAZ (Essence of Business) TEST FOR BFOQ:


  1. All or substantially all of the people in the particular protected class cannot perform job.
  2. Job qualification excluding protected class must relate to “essence of business.”   Dothard


Western Airlines v. Criswell: To establish BFOQ defense, employer must first demonstrate that the qualification used to justify the age requirement is reasonably necessary to the essence of its business and then prove that it was compelled to rely on age as a proxy for this qualification by establishing either that all or substantially all indivs over a particular age lack the qualification or that it is impracticable or impossible to treat persons over this age on an individualized basis.


  1. Examples of BFOQ.


  1. SAFETY OF THIRD PARTIES in Dothard.  Female guards not allowed to guard male prisoners in a maximum security prison b/c this particular prison had a “jungle-like atmosphere.”  Safety of prisoners and guards would be put in jeopardy and sex was related to a guard’s ability to do job — maintaining prison security.  Ct required high correlation between sex and ability to perform job function; refused to allow employers to use sex as a proxy for strength although it may be a fairly accurate one.
  2. AUTHENTICITY OR GENUINENESS – Gender can be BFOQ where it is necessary for authenticity or genuineness, e.g. actor or actress.  EEOC Guidelines.  Also possible could support BFOQ for Chinese nationality to maintain authentic atmosphere of ethnic Chinese restaurant.
  3. PRIVACY – Customer preferences related to privacy or modesty is good basis for BFOQ.  Personal privacy interests at stack are protected by law and have to be recognized by employer in running its business.


  1. Good role model rule – Omaha Girls Club fired plaintiff, a single woman who became pregnant in violation of the ‘negative role model’ rule which barred ‘single parent pregnancies’ – 8th Cir. upheld the rule as a BFOQ.



  1. Examples of Invalid BFOQ


  1. No BFOQ in Johnson Controls.  Safety of fetuses is not essential to business of battery manufacturing.  Reproductive potential did not prevent women from performing duties of job.  (Concurrence cites Dothard, Criswell, saying that avoidance of substantial safety risks to third parties is inherently part of both an employee’s ability to perform a job and an employer’s ‘normal operation’ of its business – would put fetal safety in this category)
  2. No BFOQ in Wilson v. Southwest Airlines (p.162).  Female-only policy for flight attendants of airline violates Title VII since “female sex appeal” is not a BFOQ.  Marketing image of “love” is not reasonably necessary to normal operation of business, i.e. transportation of passengers quickly and safely.  Instead = non-mechanical, sex-linked job functions only tangential to the essence of the occupations and business involved.
  3. Generally, except for customer privacy concerns, BFOQ cannot be based on discriminatory preferences of customers.  Wilson.
  4. Extra COST of employing members of protected class will not be a BFOQ such that employer can refuse to hire those people.  BUT unclear if costs can be considered a BFOQ if they cause employer to go out of business.  Johnson Controls – Court does not decide case in which costs would be so prohibitive as to threaten survival of employer’s business.  Just reiterates prior holding that the incremental cost of hiring women cannot justify discriminating against them.
  5. No BFOQ in Thurston – age, to be a BFOQ, must be related to the particular position in question.  This case dealt with preferred status for another job for certain captains but not others (not ones disqualified b/c of age) – since age was not a BFOQ of the second job (flight engineer), can’t be used as an excuse even if it is BFOQ of original job of captain.


  1. Reason Congress adopted BFOQ – Congress unwilling to require employers to change the vary nature of their operations in response to statute.  Price Waterhouse (p.136).





















MIXED MOTIVE CASES – Cases involving plaintiffs who were subject to adverse employment decisions resulting from mixture of legitimate and illegitimate motives. Price Waterhouse v. Hopkins (US 1989, p.107)


  1. Plaintiff’s Prima Facie Case


  1. Plaintiff must show by a preponderance of the evidence that intentional discrimination was a motivating factor at time of decision, even if it were mixed with other legitimate reasons.  Plaintiff must show D relied on race, gender, religion, etc. in making its decision.  Stereotyped remarks can be evidence that gender or race played a part, but do not by themselves prove discrimination.
  2. Unclear whether one needs direct evidence in mixed motive cases or if circumstantial evidence is enough.  Resolved in Desert Palace, Inc. v. Costa : SC held that direct evidence not required.  (Supp. 14)  Nothing in the text of the 1991 CRA mentions much less requires that a plaintiff make a heightened showing through direct evidence.
  3. Plaintiff carries burden of persuasion that discrimination was a motivating factor.


  1. Defendant’s Case


  1. Employer has burden to prove by a preponderance of the evidence the AFFIRMATIVE DEFENSE that it would have made the same decision even if it had not discriminated.  If employer proves this, it limits its damages.  If employer does not prove this defense, it loses.
  2. D has Burden of persuasion to prove affirmative defense.
  3. Employer must show that its legitimate reason, standing alone, would have induced it to make the same decision.  Employer will not prevail if it shows that it was motivated only in part by legitimate reason.
  4. An employer may not prevail by offering a legitimate reason for its decision if that reason did not motivate employer at time of decision.


  1. 1991 Civil Rights Act – §703(m) Amendment of Title VII p. 967 (and p. 133 text)


  1. Partly reverses Price Waterhouse.  Expands liability but limits damages.  If P proves that illegitimate motive, whether or not mixed with legitimate motive, led to discriminatory decision, D is liable.  D cannot escape liability by asserting affirmative defense, can only limit damages with it.
  2. If employer proves affirmative defense, P only gets declaratory relief, limited injunctive relief, and attorneys fees, but NO DAMAGES and no order requiring any admission, reinstatement, hiring, promotion or payment described in 706(A).  §706(g)(2)(B), p. 975.


  1. Facts of Price Waterhouse


  1. P was female who was not made partner for both legitimate (she was abrasive and difficult to work with) and illegitimate (she was a woman) reasons.






QUESTION FOLLOWING Desert Palace – how does this affect the McDonnell Douglas/Burdine framework?

– At summary judgment phase, courts differ on impact of Desert Palace.

– One district court (MN) ruled that courts are no longer obliged to apply the McDonnell Douglas/Burdine framework when considering an MSJ b/c plaintiff’s failure to demonstrate a genuine issue of fact re: employer’s explanation is no longer enough to prevent the case from reaching the jury – pl can fail this without automatically or necessarily failing to prove that another motivating factor was illegitimate.  When D prevails under McD D/B scheme, court is left with classic mixed-motive scenario – therefore SJ would be inappropriate even where pl could not show that the employer’s explanation was pretext.

– Another district court concluded that McD D/B continues to control the initial burdens of pl and def, but that Desert Palace requires a modification of the pretext stage.  To prevail after D produces a legit, non-discrim reason for its conduct, Pl must prove by preponderance of the evidence either (1) that D’s reason is not true, but is instead pretext or (2) that D’s reason, while true, is only one of the reasons for its conduct and another ‘motivating factor’ is the pl’s protected characteristic (mixed-motive alternative)


  • B/c §107 makes no mention of retaliation or §704, most courts have held that mixed-motive analysis only applies to §703 cases and Price Waterhouse continues to apply to retaliation cases. Courts divided over whether mixed-motive analysis applies in ADA


  • Causation and the identity of the Decision-maker: (Supp. 22-23)
    • Reeves: while decision maker didn’t have formal authority to discharge, he enjoyed actual authority w/in corp – married to president of company and exercised “absolute power” within the company.
    • Shager: supervisor was hostile to older workers, but committee (unbiased and unaware of supervisor’s prejudice) discharged pl on supervisor’s recommendation. Held: if committed acted as the conduit of supervisor’s prejudice, then innocence of its members would not spare the company from liability.  However, if committee was not a mere rubber stamp but made an independent decision to fire Pl there would be no basis for employer liability.
    • Courts follow different paths – some require that the decision making authority have in practice turned the decision over to the subordinate. Some still limit employer’s liability to situations where the biased employee is the “actual decision maker.”


















  1. After-Acquired Evidence.


  1. D had a discriminatory motive when made employment decision.  After decision is made, employer discovers a legitimate reason for making that same employment decision.
  2. Differs from mixed motive in the timing of discovering the legitimate reason.  In mixed motive, legitimate reason discovered before decision made and actually partially motivated employment decision.  In after-acquired evidence, legitimate reason discovered after decision is made, and this legitimate reason played no role in motivating decision.


McKennon, (US 1995) p. 137

  • ADEA violation cannot be entirely disregarded where after acquired evidence would have led to discharge: after acquired evidence of wrongdoing which would have resulted in discharge does not bar employees from any relief under ADEA.
  • ADEA’s private right of action – furthers deterrent and compensation purposes of act. Would not accord with this scheme if after-acquired evidence barred all relief for an earlier violation of the Act.
  • However, employee’s misconduct is relevant to remedies – in order to take due account of the lawful prerogatives of the employer in the usual course of its business. GENERAL RULE: neither reinstatement nor front pay is an appropriate remedy.  Proper measure of back pay: calculate from the date of unlawful discharge to the date the new info discovered, court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.
  • Employer cannot make any use of after-acquired evidence unless it can “establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.”
  • EEOC guidelines for establishing the above: p. 141 of text.


Sellers v. Mineta (8th Cir. 2004, Supp. p. 24)

  • Under McKennon, burden is on the employer to establish that the employee’s wrongdoing would preclude reinstatement. District court in this case denied reinstatement solely b/c of acrimonious relationship of the parties and made no finding that D’s policies would in fact preclude reemployment of Pl, case remanded for determination of whether Pl was in fact “unsuitable for reinstatement solely b/c of her post-termination conduct.”


Rivera v. NIBCO, Inc. (9th Cir. 2004, Supp. p. 24)

  • In immigration context, employer must prove that it would actually have fired the employees had it known that they were undocumented – in order to reduce perverse incentive of employers to not ask about immigration status at time of hiring but then demand it during discovery in order to limit damages for their wrongful conduct (undocumented aliens would not be entitled to reinstatement or back pay)






Findings of Fact and Appellate Review, p. 144


  • Rule 52(a) of FRCP requires judge in actions tried without jury to make separate findings of fact and conclusions of law to support her judgment.
  • Findings of fact shall not be set aside unless clearly erroneous; due regard given to trial court to judge credibility of witnesses.
  • “Clearly erroneous” = although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
  • Until passage of CRA 1991, Title VII provided only equitable remedies – most cases tried to judge sitting without jury.
  • 1991 Act – added compensatory and punitive damages, specified that either party in Title VII action may demand jury trial if damages are claimed by Pl. Cts. give even greater deference to findings of fact by juries – Reeves demonstrates the “reasonableness” test for review of jury verdicts.  Heavy burden on party who would challenge district court’s fact finding.




  1. DISPARATE IMPACTGriggs, Dothard


                        * Involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and can’t be justified by business necessity.

                        *Proof of Discriminatory motive not required!!


Four Theories of Disparate Impact

  1. Intent theory: evidence of adverse impact is evidence of discriminatory intent – yet DI theory is not an intent based standard.
  2. Past discrimination theory: employment criterion with DI on black persons is unlawful if the DI results from past race-based decisionmaking – yet DI doesn’t require showing of past discrimination.
  3. Functional equivalent theory: neutral criteria that have adverse impact on blacks and can’t be justified by any business necessity are the functional equivalents of race and should be treated like race – several of the justices subscribe to this theory – See O’Connor’s plurality opinion in Watson.
  4. Statistical discrimination theory: views the DI model as a mechanism to prohibit discrimination as defined by economic theory – grounded in an economic analysis of labor markets and proceeds on the view that DI is designed to prohibit economic discrimination.


CALDWELL: one purpose of Title VII is to increase productive efficiency by allowing individuals to achieve their full economic potential.  In the long run, efficiency will be improved if the pool of potential workers is widened by adding persons whose full potential would never be developed if denied entry-level positions.  (Note 3, after Wards Cove printout)


Griggs – established DI.  After P’s PFC, burden of persuasion – not merely production – shifted to employer to prove that the practice in question was business necessity (See Albemarle Paper, Dothard)


Wards Cove (US 1989, BB printout)

  • Remodeled disparate impact that was established in Griggs
    • Required highly focused showing that particular employment practices caused DI
    • Reduced the employer’s rebuttal obligations from a showing of job-relatedness and business necessity to a “reasoned review of the employer’s justification”
    • Redefining the rebuttal stage to a burden of production, not persuasion.
  • Dissent: D’s justification is classic example of affirmative defense – in the face of sufficient proof of DI, only recourse is to justify the practice by explaining why it is necessary to the operation of the business
    • The additional requirement of “isolate and identify specific practices” is unwarranted.
    • Questions the court’s view of the ‘qualified population and relevant labor market’


1991 CRA – Changed DI once again after Wards Cove

– Amended §703 – added (k)(1)(A): definition of disparate impact.

(A) Unlawful employment practice based on DI is established only if:

  • a complaining party demonstrates that respondent uses particular employment practice that causes DI and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.
  • The complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B)(i) Pl shall demonstrate each particular challenged employment practice causes a DI, except that if Pl

can demonstrate to the court that the elements of D’s decision making process are not capable of separation for analysis, the process may be analyzed as one employment practice.


(ii) If D demonstrates that specific employment practice does not cause DI, doesn’t have to demonstrate that practice is required by business necessity.


(C) Demonstration referred to by (A)(ii) shall be in accordance with the law as it existed BEFORE Wards Cove, with respect to the concept of “alternative employment practice.


* Demonstrates = meets burdens of production AND persuasion.

* 1991 Act generally interpreted as intended to return DI doctrine to pre-Wards Cove status.

* Lanning: Court’s interpretation of business necessity standard in Wards Cove doesn’t survive Act




  1. Plaintiff’s case


  1. Identify and isolate which particular business practice is causing observed statistical disparity.  Wards Cove citing Watson (Pl must show that disparity is result of one or more of the employment practices they are attacking – otherwise D would be potentially liable for myriad of innocent causes that may lead to statistical imbalances in the composition of their workforce – Ct says liberal civil discovery rules give Pls broad access to employer’s records, help them document their claims, establish causal link)


  1. 1991 CRA – If complaining party can demonstrate that the elements of an employer’s decision making process are not capable of separation for analysis, decision making process may be analyzed as one employment practice.


  1. Business practice can be OBJECTIVE (written or physical tests).


  1. Could be test itself
  2. Could be how test is scored or how scores are ranked.  Zamlen (p.152)

iii. “Norming,” i.e. allowing different groups to have different pass cutoffs, is outlawed by 1991 CRA.

  1. Could be height and weight requirements.  Dothard


  1. Business practice can be SUBJECTIVEWatson.


  1. interviews
  2. performace evaluations

iii. combination of subjective and objective




  1. STATISTICS.  Prove that the particular practice causes a statistical disparity.

Statistics are direct proof of discrimination.  When data that relate directly to the practices of the defendant are not available, Pl may make out PFC with more general stats, leaving D to show the inapplicability of those stats to its practices – Griggs.


  1. Plaintiff has burden of production and persuasion.


  1. Defendant’s case


  1. D will offer evidence to demonstrate inaccuracy or irrelevancy of P’s statistics, e.g. deficiencies in geographic area, qualified labor market, relevant time period, or general accuracy.


Wards Cove – majority adopts the ‘relevant labor market’ concept of Hazelwood (a systemic disparate treatment case) – says stats should compare the racial composition of the at-issue jobs and the racial composition of the qualified population in the relevant labor market.  Yet in systemic DT cases, issue is whether stats support inference of discriminatory intent – in DI cases, it’s whether D’s neutral employment practice has DI on statutorily protected group – is the relevant group the same for both cases?????


  1. If D cannot do this, then admits statistics are accurate.  D then must prove that business practice is job related for the position in question and consistent with business necessity.  1991 CRA.


Given practice must have manifest relationship to the employment in question.  Griggs

Business practice is demonstrably necessary to meet a valid business goal.  Fitzpatrick


  1. For an objective test, it can be that it was properly validated.


Zamlen (6th Cir. 1990, p. 275): b/c firefighter exam in this case did parallel the actual tasks which firefighters perform on the job and city did demonstrate direct correlation btw higher test scores and better job performance, exam withstands challenge even though it doesn’t test other skills that are used in firefighting that women might excel at – See Berkman – city’s failure to include aerobic capacity in the exam does not invalidate exam that tested anaerobic capacity important for firefighting.

– Three methods of test validation: Criterion-related Validation; Content Validation; Construct Validation – see p. 281-282.


  1. For a particular practice, could be health and safety of employee.  Employer must prove with expert testimony and evidence that the practice is demonstrably necessary to meeting the goal of worker health/safety. Fitzpatrick. (AA Firefighters sue b/c dept ‘no beard rule’ has discriminatory disparate impact on AAs; Ct recognizes that protecting employees from workplace hazards is a goal that – as a matter of law – has been found to qualify as an important business goal for Title VII purposes)


  1. Business necessity is less stringent than BFOQ.  BN more of a “reasonable standard.” Because BFOQ deals with intentional discrimination – harsher standard (???)




Lanning v. SEPTA (3rd Cir. 1999, BB printout): Wards Cove interpretation of ‘business necessity’ does not survive the 1991 Act.

  • Standard for Business Necessity: A discriminatory cutoff score is impermissible unless shown to measure the min. qualifs necessary for successful performance of the job.
  • Dissent: public safety is issue in this case; differentiates certain positions from lower level nonsafety-sensitive ones.
  • Lanning II: on remand, Dist. Ct again ruled in favor of SEPTA, 3rd Cir affirmed; Ct rejected argument that evidence of “some people who fail test still do good job” means that the test doesn’t establish “the minimum qualification necessary” – says it’s perfectly reasonable to demand more than a 5-20% chance of success, esp. when public safety at issue.
  • Yet US v. Delaware: court says 75% pass/fail cutoff for state trooper literacy test doesn’t hold up – D failed to demonstrate that applicant who scored below 75% is unlikely to be able to perform the trooper job; convergent evidence showed that very large # of applicants who score below 75% are highly likely to be able to do the job.


Kilgo v. Bowman (Note case, p. 275): employer’s reliance on an employment criteria as a business necessity may backfire and result in a finding of intentional discrimination if the criteria has not, in fact, been uniformly applied by the employer.



  1. A “bonafide seniority system” is a valid defense.   §703(h).  Even where the employer’s pre-Act discrimination resulted in whites having greater existing seniority rights than blacks, Title VII was designed to have no effect on these established seniority rights – its effect is prospective and not retrospective.  Teamsters.


  1. Can challenge seniority system if can show intent to discriminate when system created.  Teamsters.


Factors relevant to determination of “bona fide” seniority system:

(1) Whether it operates to discourage all employees equally from transferring between seniority units

(2)  Whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice)

(3)  Whether the system had its genesis in racial discrimination

(4)  Whether the system was negotiated and has been maintained free from any illegal purpose.


  1. Seniority system must be related to time, i.e. correlation between benefits and length of service.  California Brewers.  Dissent argues that it should be “cumulative” length of service.


  1. D has full burden of production and persuasion to prove job-relatedness and business necessity.  1991 CRA.


  1. D cannot use bottom-line defense, i.e. that bottom line result of process shows appropriate balance.   Connecticut v. Teal (if particular hiring practices may operate to deprive minorities of employment opportunities and prevent them from proceeding to the next step in the selection process – D will be liable if can’t show that the barrier is job related, even if ‘bottom line’ is balanced)  Title VII guarantees individuals the opportunity to compete equally with white workers on the basis of job-related criteria.




  1. Plaintiff’s Rebuttal – may show that employer was using the practice as a mere pretext for discrimination or by offering “less discriminatory alternative”


  1. P has burden to prove that D could use another device with less disparate impact which would also achieve employer’s goal.  (Pretext)  1991 CRA – “less discriminatory alternative.”
  2. If employer does not adopt less discrim. alternative, may be accused of pretext for discrim.  Albemarle Paper
  3. Any alternative practices offered by Pl must be equally effective as D’s chosen procedures in achieving D’s legitimate employment goals.  Factors such as cost or other burdens of proposed alternative devices are relevant in determining whether they would be equally as effective as the challenged practice.


EEOC v. Joe’s Stone Crab, Inc. (11th Cir. 2000)

-Illustrates relationship b/n DT & DI and use of percentages in both

-Joe’s Stone Crab house had no female waiters à EEOC brought suit

-PFC / Evidence of discrimination:

-Statistically signif. disparity b/n proportion of women in labor pool & those hired

Word of mouth “Roll Call” hiring procedure: usually attacked as either intentionally discriminatory in operation, or as part of DI case in which Πs include people who would have applied for jobs had they heard about them

Reputation of ∆ as only hiring men: has ∆ given this impression?

(points towards DT)

Subjective hiring criteria: Could be evidence of either DT or DI b/c no obj. guidelines

Holding: ∆ may be guilty of DT but Π failed to show factors necessary to prove DI

DT: Evidence that people who are making the decision are bringing to bear their preconceptions of what a waiter should be

DI: No evidence that Joe’s facially neutral hiring policy caused its reputation of only hiring men. No causal nexus b/n facially neutral policies and disparity. All evidence points to intentional discrimination.

[aberrant holding à most circuits would find DI]






















* Pattern or practice of intentional discrimination

* Cases usually filed by govt or litigated as class actions

                 * 4th and 6th Circuits: individual claiming intentional discrimination must proceed under McDonnell Douglas-Burdine framework – yet P-or-P evidence may be relevant to proving an otherwise-viable individual claim for disparate treatment.

                 *In sexual harassment context: can establish P-or-P based solely on proof that as a regular practice employer tolerated objectively offensive conduct toward female employees; for individuals to collect damages, must demonstrate that they were subject to harassment and it was subjectively unwelcome. EEOC v. Mitsubishi (C.D. Ill. 1998)


Manhart (US 1978, p. 392): D required female employees to make larger contributions to its pension fund than its male employees b/c women as a class live longer than men.

  • Title VII: basic policy of the statute requires court to focus on fairness to individuals, rather than fairness to classes. Individual risks, like indiv performance, may not be predicted by resort to classifications proscribed by Title VII.
  • Practice does not pass the simple test of whether the evidence shows “treatment of a person in a manner which but for that person’s sex would be different.” Constitutes discrimination and is unlawful unless exempted by Equal Pay Act of 1963 or some other affirmative defense.
  • No ‘cost-justification’ defense available in Title VII suit.
  • Ct does not affirm Ct’s retroactive relief; said the burden would fall on innocent retirees who count on the pension.
  • Ct expands this holding in AZ Governing Committee v. Norris (US 1983): involved use of sex-based actuarial tables that only used sex and not other factors related to longevity; irrelevant that the plan was voluntary, still constitutes condition of employment. Likewise irrelevant that the plan offered other non-discriminatory options.


Thurston (US 1985, p. 769): TWA has policy which allows captains displaced for reasons other than age to “bump” less senior flight engineers, but captains compelled to vacate their positions upon reaching age 60 did not have the same “privilege of employment.”



















  1. Plaintiff’s Case


  1. Plaintiff must prove by a preponderance of the evidence that discrimination is a pattern or practice, i.e. discrimination is the standard operating procedure of employer.  Discrimination is regular rather than the unusual practiceTeamsters (Part II), Hazelwood.  For PFC of P or P, need to prove more than just isolated or sporadic discriminatory acts by employer – must show there is a regular, purposeful, less-favorable treatment of a protected group. (King)


“P or P only present where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature.  Single, insignificant, isolated acts of discrimination by a single business would not justify a finding of P or P”

– Legislative History of §707(a) as quoted in Teamsters


  1. Type of proof


  1. Statistics – circumstantial evidence of intentional discrimination against a class.  Probably need greater statistical proof than a disparate impact case (i.e. larger statistical deviation)


  • Function of stats in systemic disparate treatment is different. In DI, direct proof that practice disproportionately affect’s Pl’s class.  Here, its circumstantial evidence of intentional discrimination against class of applicants or employees


  • EEOC v. Sears – EEOC opted to rely almost entirely on stats and not present anecdotal evidence – high-risk strategy that ultimately failed.


  • Refining Statistical Analysis
    • Hazelwood – “relevant labor market area”
      • Labor market statistics controlled to provide relevant population to compare with the employer’s workforce. Tailored to reflect potential applicants who are actually qualified and available for the job at issue (Wards Cove) – typically gross labor market stats must be adjusted both for requisite skills and geographic scope.
      • Requisite Skill: Johnson v. Transp. Agency (US 1987, p. 307) – when a job requires special training, the comparison should be with those in the labor force who possess the relevant qualifications.
      • Geographic Area: debatable. Should it consider applicant pool data?  Could that be affected by the known discriminatory practices of the employer?   e. Joe Stone Crab.
    • Olson’s Dairy – can use travel times confirmed by census data and the actual applications received to determine the area of prospective applicants; to test for discriminatory hiring, evaluate employer’s workforce in terms of available labor pool, not the other way around (can’t just say that white teenagers living nearby are the labor pool if others are applying and willing to commute in for the job)
    • Ottaviani – Can use Multiple Regression analysis; no rule of law re: level of statistical significance needed. Yet there are problems with multiple regression – next to impossible to account in the analysis for all factors which may play a role in a disputed decision and some factors (such as rank, job performance, etc) will be extremely difficult to quantify for purposes of analysis.




  1. Anecdotal evidence from victims of specific instances of discrimination to bolster the stats.


  1. History of discriminatory practices – statistics or anecdotal.


  1. Subjective Hiring practices – in Hazelwood, each principal possessed virtually unlimited discretion in hiring teachers; general guidance = such intangibles as personality, disposition, appearance, ability to deal with people count towards “most competent” person available.


Hazelwood (US 1977) – Govt alleges P or P based on:

(1) History of alleged racially discriminatory practices

(2) Statistical disparities in hiring

(3) Standardless and largely subjective hiring procedures

(4) Specific instances of alleged discrimination against 55 unsuccessful black applicants


  • Dist Ct – not persuaded. Looked at the small numbers of black children in Hazelwood schools, compared those numbers to the numbers of black teachers employed.
  • 8th – reversed. Proper comparison of stats is between the black teachers in Hazelwood and the black teachers in the relevant labor market area.  This statistical disparity, viewed against background of hiring procedures, held to constitute a PFC of pattern or practice racial discrimination.
  • Ct. – Goes with 8th Cir statistical analysis, but remands – says must give D chance to rebut the PFC with proof that the statistical disparities were product of ‘pre-Act hiring’ rather than unlawful ‘post-Act discrimination’
  • Trial court must make determination of appropriate comparative figures – usefulness of stats depends upon further evaluation of the facts and circumstances – court lists factors for deciding what “relevant labor market area” means in this case on p. 304.



  1. P also puts on PRETEXT PROOF at this stage since there is no tripartite proof model.


  1. P has burden of production and persuasion.
















  1. Defendant’s case – must articulate legitimate, nondiscriminatory reason for hiring patterns.


  1. Attack Statistics – alternate explanation for P’s statistical results, e.g. missed a factor or variable.  D could offer own statistics.


EEOC v. Sears: Sears attacked EEOC’s stats by undermining their assumptions that women have equal interests and qualifications of applicants for commission sales positions.  Ct said that Sears did not have burden of responding with more probative statistical analysis – can use any type of evidence to challenge Pl’s stats.  Dissent: can’t believe majority accepts this as complete explanation for the huge stat disparities favoring men.  And notes that this type of stereotyping is exactly what Title VII meant to address – scarcely any recognition of employer’s role in shaping the interests of applicants (yet must employers resocialize?)


  1. D has to rebut anecdotal evidence.  May “disparage in arguments or in briefs the probative weight which the Pl’s evidence should be accorded.”


  1. Burdens of production and persuasion shift to D.


  • Once Pls establish broad patter or policy of discrimination, courts have found it is reasonable to infer that the employer discriminated against particular individuals, unless the employer can prove otherwise.


  • ADEA does not have a parallel provision to Title VII’s provision permitting AG to bring civil actions to stop widespread practices that prevent protected groups from fully exercising their rights – individuals may join the govt’s suit – but courts nevertheless have adopted the pattern-or-practice terminology and the shifting burden of persuasion to ADEA actions.


  • In King: majority – didn’t think Pls presented sufficient evidence to support company-wide pattern of discrimination, one set of Pls offered no statistical evidence; dissent – highlights the testimony and witness statements re: management’s disdain for older workers and the pl’s strong statistical evidence.




















  1. Introduction


  1. Most trials have two stages.


  1. Liability stage and Relief stage
  2. At relief stage, there is a presumption of discrimination.  In class-wide cases, each person is presumed to have been discriminated against unless D can prove ineligibility.


  1. §706(g) – (p.1249) – If D found liable for intentional discrimination, court can:


  1. enjoin discriminatory practice
  2. order reinstatement or hiring of P
  3. order D to pay backpay starting from up to two years prior to the filing of the EEOC charge
  4. order “any other equitable relief the court deems appropriate.”
  5. Interim earnings from other employment will serve as mitigation of backpay and will reduce backpay award.


  1. Mixed motive cases (Price Waterhouse) have separate damage provisions.  §706(g)(2)(B).


  1. Backpay can include cash (wages), pension, sick leave, vacation time and retroactive seniority.





EQUITABLE RELIEF – backpay and frontpay, as well as other ‘equitable remedies’


  1. BACKPAY – generally defined as lost wages up to the date the discrimination has ceased or the date of judgment.


Backpay should almost always be granted by the court.  Albemarle Paper Co. v. Moody (1975, p. 601)  Court has very little discretion not to award backpay since otherwise important national goals would be frustrated.


Reasons for Backpay

  1. Prophylactic purpose.   Backpay awards deter for employers from discriminating by forcing employers to self-examine and self-evaluate employment procedures and to eliminate discriminatory practices.
  2. Make-whole purpose.  Backpay will remedy discriminatory effect for P by putting her in same place she would have been in but for discrimination.  Compensate for injuries suffered.








  1. Denial of Backpay.


  1. Backpay should only be denied for reasons which would not frustrate these above two statutory goals of eradicating discrimination throughout the economy and making person whole.
  2. P not entitled to backpay if suffered no lost wages.
  3. P may not be entitled to backpay if she failed to mitigate damages.  This is an affirmative defense that the employer bears the burdens of production and persuasion to prove.  (p.651)
  4. If D violated Title VII b/c of good faith compliance with state law, ct may not require backpay award.  Note 2, p. 610.
  5. Absence of bad faith non-compliance with Title VII is not reason enough to deny backpay.
  6. Backpay may be denied if its request substantially prejudices other party.  Albemarle.  P may not be entitled to backpay since when first filed complaint, P did not request backpay and even denied that it would seek backpay.  P, five years later, then makes request.  Request is remanded to trial ct to see if prejudices D.



  1. Limitations on Backpay.  When does accrual of backpay toll, i.e. when does backpay period stop running?


  1. Backpay starts two years prior to filing of EEOC charge.  Congress made policy decision to start period at two years.


  1. UNCONDITIONAL OFFER W/OUT SENIORITY – Backpay can terminate if employer unconditionally offers the P the job previously denied and P has right to full court-ordered compensation.  Ford Motor (II) (1982, SCt., p. 628)  D does not have to include retroactive seniority with unconditional offer.


  1. This rule still achieves goal of ending discrimination through voluntary compliance since employer now has incentive to hire P.  Employer will want to hire P so that backpay award stops growing since if hire someone else, backpay would continue to accrue and employer would in a sense be paying twice as much for one worker.


Lower ct rationale rejected since requiring employer to offer job with retroactive seniority make the hiring of the P more costly than hiring of someone else.  Also inserting P within seniority structure will displace other workers and cause unrest.


  1. This rule also makes P whole since P is under duty to mitigate anyway.  P required to accept unconditional offer without retroactive seniority since P would be required to accept an offer from another employer even if that employer did not give retroactive seniority.  Furthermore, P can always recover retroactive seniority if P wins lawsuit.  P, however, should not be guaranteed this retroactive seniority through offer since issue not litigated.  Prof thinks it is disingenuous to say P can continue working while litigating seniority issue.


Even if P has accepted job that is superior to or equal to offer by discriminating employer, not requiring retroactive seniority still makes P whole since P no longer suffers ongoing injury by accepting better or equivalent job.


iii. What if P thinks that replacement job is superior to the D’s job offer without seniority, but inferior to the D’s job offer with seniority?


Rule still accomplishes goals.  If P accepts replacement job and turns down offer, it is b/c P thinks (1) replacement job plus the possibility of backpay up to the time of the offer are more valuable than (2) the job offer plus the possibility of full backpay from the court.  P is not guaranteed seniority but must weigh chances in litigation.


  1. Backpay does not terminate once P finds another job.  In order to be made whole, P must receive what she would have earned but for discrimination.  Ford Motor (I) (1981, Cir., p. 613).  This rule, if adopted, would cause Ps not to accept future employment with possibility of being laid off or fired in order to preserve Title VII claim.


  1. Backpay does not terminate if P joins training program.  Ct can subtract earnings during program, but program itself does not terminate backpay period.  P still not employed.  Ford Motor (I)


  1. Unemployment compensation should not be subtracted from backpay award.  Benefits of unemployment compensation are collateral to award and should not benefit employer even if employer is paying this tax.


  1. Back pay not permanently terminated when an employee is fired for misconduct or voluntarily quits interim employment – that kind of per se approach is contrary to balancing of equities approach – employee misconduct that costs him comparable employment (for mitigation purposes) merely suspends rather than tolls back pay.  Johnson v. Spencer Press (1st Cir. 2004)


  1. Calculation of Backpay


  1.          Court can look to those who actually were hired instead of P to determine what P should have been earning.  Can construct hypothetical work history.  Ct. does not have to follow work history exactly.  Ct can abandon history of person actually hired if not accurate since ct should focus on probable career of victim, not actual career of hired employee.


  1.    Court should calculate what P would have earned but for discrimination and subtract what P actually earned during period.  P also gets accrued interest of backpay.  Result is backpay award.


  1. Griffin v. Michigan Dept. of Corrections (6th Cir. 1993) – question of monetary compensation and compensatory promotions that are necessary to place female employee in same position as if she had not been discriminated against.  Usual rule: look to promotions that would have accrued to an average member of the cohort of workers of the class that P occupied at the time.  If P wants to show she would have attained additional advancement above average in the absence of illicit discrimination – she has to demonstrate that by preponderance of evidence.  If D wishes to argue P was not as good as average, it would have that burden.


  1. Posner – argues it should be lost chance calculation in cases involving competitive promotion (where hard to calculate advancement track) – similar method as that used in medical malpractice cases.  This theory applied in Bishop v. Gainer (7th Cir. 2001): 3 candidates for single promotion, denied b/c of race – based on their relative placements on the promotion list, Dt. Ct. calculated each pl’s odds of obtaining the promotion absent discrimination and awarded back pay (based on the pay for the position in question for the back pay period) accordingly.


  1. Dougherty v. Barry – where employer discriminated against 8 applicants for two positions, D.C. Cir reversed award of full back pay to all 8 employees.  Since couldn’t determine which 2 would have received the promotions, the value of the two promotions should be divided among the Pls pro rata (if you could determine which 2 should have gotten it, they get the full amount of the 2 promotions, the others get none)




**  Sometimes effect of discrim will extend beyond date of judgment: pl cannot be put in rightful place without dislodging an incumbent employee or reinstatement not viable b/c of substantial hostility between parties. Where reinstatement not viable option, award of front pay as substitute – necessary part of “make whole” relief mandated by §706(g) as interpreted in Albemarle. **

Only appropriate where reinstatement impractical on account of circumstances not attributable to plaintiff – where it is pl’s own misconduct that makes reinstatement impossible, front pay inappropriate.


  1. Some courts also award frontpay as monetary relief.  Frontpay is payment of damages based on assumed career path, including promotions, even if P does not hold that position, i.e. the difference between the employee’s actual earnings and those of hypothetical employee in the claimant’s rightful place.  Frontpay stops when P attains promotion.  Frontpay is calculated from time of judgment until the time the P assumes new position.


  1. Frontpay can also be payment between date of judgment and date of P assuming position if position is not yet open.


  1. The purpose of frontpay is to put P in the same position she would have occupied in the absence of discrimination.














Compensatory and Punitive Damages – 1991 Civil Rights Act


  1. P may recover punitive and compensatory damages (in addition to any relief authorized by 706(g)) if can show that D intentionally discriminated and Pl cannot recover under §1981 (damages not available in disparate impact cases)


  1. P may recover punitive damages if she can show that employer engaged in discriminatory practice(s) with malice or reckless indifference to the federally protected rights of an aggrieved individual (not applicable against government, government agency or political subdivision)


  1. Compensatory damages – shall not include backpay, interest on backpay or any other relief authorized under 706(g) – Compensatory damages are for future pecuniary loss, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.

**Carey v. Piphus (US 1978) – claimants must submit actual proof of injury – cannot be presumed just b/c pl is victim of discrimination.

**EEOC Guidelines: existence, nature and severity of emotional harm must be proved – Commission will typically require medical evidence of emotional harm to seek damages for such harm in conciliation negotiations

** Courts substantially divided over whether Pl’s testimony alone is sufficient to support anything more than a nominal damage award for emotional harm.


  1. P’s award of compensatory damages is capped depending on the size of the employer.  Range is $50,000 (for employers with 15-100 employees) – $300,000 (more than 500 employees) – for other values, see p. 576.

** Limits apply only to the aggregate of all the Title VII claims of an individual plaintiff (caps apply to each party, not each claim).  Courts differ whether max should be reserved more most egregious cases or not.  Supp. p. 99.

** If there are other claims in a case, not subject to the caps (i.e. state claims), courts may allocate a general jury award in excess of the caps to the non-capped claims.  Ex: Dt Ct allocated all compensatory, backpay, frontpay awards to state law claim, punitive damage award to Title VII claim, and only had to reduce punitive award down to $300,000 to meet the statutory cap.

** Jury awards in excess of cap must be reduced.  Even those under the cap can be reduced as excessive if not supported by sufficient evidence.  Courts differ on importance of awards in other cases.  (DC Cir. – rejects comparisons to other awards, says proper test is whether “supported by evidence, does not shock the conscience, or is not inordinately large so as to be obviously unreasonable.”  5th Cir. uses “maximum recovery rule” – requires a remittitur to the max amount a jury could have awarded based on previous awards in similar cases supplemented by multiplier or % enhancement)


  1. Jury trial – if complaining party seeks compensatory/punitive damages under this section, any party may demand jury trial – and court shall not inform jury of the caps on damages.  (again, this only applies to disparate treatment – not disparate impact case, where these damages not available!)


  1. Amount of these types of award will probably depend on state of economy.  These types of damages always affect 3rd parties since employer passes on costs to others.



42 USC §1981 = modern version of a Reconstruction Era civil rights statute, forbids racial discrimination in making and enforcing of contracts, has been construed as providing alternative cause of action for racial discrimination in employment (race based claims against private employers).

42 USC §1983 = equal protection claims against public employers.

Used to be able to join these to Title VII claim to get jury trial on all issues of fact common to both claims – meant you could get full legal relief for some claims, not others –

Congress fixes this with 1991 CRA which gives damage remedy for Title VII actions]







  1. Status Quo – Enjoin discriminatory practice but do not give employee any beneficial treatment such as retroactive seniority.  Leave P where she is found.

Problem – doesn’t help P.

  1. Bumping –  displacement of employee who currently holds position.

Problem – disruptive to workforce.

  1. “Rightful Place” – Put P in same place where she would have been but for discrimination.  Give retroactive seniority and preference for position when it opens.  Courts adopt this last standard.  Franks  Allows employer and employee to share burden.


  1. RETROACTIVE SENIORITY ALLOWED for class of identifiable victims of illegal hiring practices.


  1. Victims may recover retroactive seniority back to the date of their employment application.  Franks v. Bowman Transportation Co. (1976, p. 658).   This type of relief does not violate §703(h) regarding allowing bona fide seniority systems.  This section only refers to operation of seniority systems that are challenged as perpetuating effects of discrimination.  It does not refer to relief once a discriminatory act is proved.
  2. Retroactive seniority is not always required.  But in many instances, it will be necessary in order to make victim whole.  Otherwise victim will never achieve position in hierarchy of seniority but for the discrimination.
  3. In this manner, burden of past discrimination is carried by both discriminatee and nondiscriminatee employees.  Even if full retroactive seniority given, victim probably not put in rightful place so victim bears some burden.  And those nondicriminatee employees bear some burden since will be displaced by victim after given seniority.  Franks (p.671).
  4. Dissent – argues that victims should be given benefit seniority but not competitive seniority.  So victims will get proper pension, vacation, and sick leave, but not ability to get preferential assignments or protection from layoffs.




  1. Promotion of P to a position that she might have obtained but for the discrimination may be allowed as relief.  Locke v. Kansas City P&L Co. (1981, 8th Cir, p. 685).  “Job skipping” can be proper if:


  1. P is qualified, and
  2. position was in line of progression that P normally would have been promoted to, and

iii. service in lower position as a prerequisite for higher position is not justified under business necessity.


  1. If D can prove by a preponderance of the evidence that P would not have been promoted but for discrimination, promotion may be denied.  Note 1, p. 693.





  1. If probationary period is a uniform requirement imposed by employer on all new employees for valid purpose, P should be subject to it.  Franks
  2. If employer does not impose probationary period uniformly, then ct may exempt P from it.
  3. Ct can also require P to serve probationary period but retain jurisdiction over case.




  1. Bumping of innocent employee usually never allowed.  Usually only allowed if D is “recalcitrant” in remedying discrimination.  See p. 694-95.
  2. Ct can require that when next position opens, it be filled by P.





  1. Employer’s unlawful conduct must cause the denial of employment for injunctive relief to be appropriate.  This issue only limits remedy and decided only after determination that employer unlawfully discriminated.
  2. This causal link can be through not hiring, firing, or constructive discharge, i.e. P quits involuntarily due to intolerable working conditions.  If P quits voluntarily, no reinstatement and backpay period stops at point of quitting.



  1. Objective Test for Constructive Discharge – “A finding of constructive discharge depends upon whether a reasonable person would view the working conditions as intolerable, not upon the subjective view of the employee-claimant.”  Derr v. Gulf Oil Co. (1986, 10th Cir., p. 700).


Test that is rejected is the subjective test of whether employer intended to make P quit or P’s quitting was reasonably foreseeable by the employer.


  1. When are conditions “intolerable” such that “reasonable” person would quit?  p.704, n.2.


  1. Significant increase in workload?
  2. Disappearance of reasonable expectation of promotion?
  3. Change in job from full-time to part-time?
  4. Being required to train subordinates who would become employee’s superior?
  5. In Derr, fact that she held job for long time in anticipation of promotion and then was demoted    back to clerk made quitting reasonable.


  1. Facts of Derr – P was hired as an clerk and later was temporarily promoted to associate analyst.  P was doing satisfactory work and was being groomed for analyst position.  P’s boss biased against women and dissuaded P from getting promotion since she had children at home.  P’s boss later demoted P back to clerk position and P quit.





  • Voluntary Affirmative Action (by private OR public employers): Title VII
    • TEST: (Weber)
      • Pl has BOP of showing that plan is invalid
      • Plan must be undertaken to further an AA plan designed to eliminate employer work force imbalances (a manifest imbalance) in traditionally segregated job categories.
        • PF case not required; only a manifest imbalance must be shown.
          • Policy: so ∆ doesn’t have to admit they discriminated; encourages voluntary affirmative action plans.
          • Weber: upheld plan reserving 50% of jobs for blacks until % of blacks in the jobs resembled the % of blacks in the local labor force
        • Plan must not unnecessarily trammel the rights of majority employees or create an absolute bar to their employment.
        • Plan must be temporary.
        • Note: if plan has no goals/standards and is guided by whims, probably discriminatory. Township of Piscataway.
        • Note: AA based on stereotype, rather than intended to correct racial imbalance, not allowed.
          • Ferrill: struck down AA plan that race-matched telemarketers’ jobs.


  • Government sponsored Affirmative Action: Equal Protection Clause
    • Note: If employer is public, Л can bring Title VII or EP claim
    • Adarand
    • Race


All classifications, invidious or benign, imposed by federal, state, or local government actor, get strict scrutiny review


  1. Plan must serve a compelling government interest.
  • Remedying past discrimination by employer is compelling
    • Must prove the past discrimination
  • Remedying past societal discrimination is NOT compelling
  • Attaining a diverse student body is compelling
    • Grutter, Gratz
    • Diversity may be a compelling interest in areas beyond higher ed: workforce, military (but hasn’t happened yet)


  1. Plan must be narrowly tailored to serve that interest.
  • Is the plan the least restrictive means of achieving that interest?
  • Is the plan overinclusive or underinclusive?
  • Individualized consideration instead of quota
    • Grutter used individualized consideration
    • Gratz used 20 point system = not allowed
    • What Johnson would argue: if it was individualized, he would have won b/c he was better qualified



  • Intermediate scrutiny:
  1. Plan must serve important government objectives
  2. Plan must be substantially related to achievement of those objectives.



Local 28 (US 1986): Court upholds AA as court ordered relief for T7 violation.

  • Availability of race-conscious affirmative relief under 706(g) furthers broad purposes of T7 – won’t be needed in most cases and won’t always be appropriate.
  • OK that it might give preferential treatment to those not identified as victims of unlawful discrimination.
  • Court should exercise discretion with eye towards Congress’ concern that race-conscious affirmative measures not be invoked simply to create a racially balanced workforce.
  • Should be used when employer/labor union has engaged in persistent or egregious discrimination or to dissipate the lingering effects of pervasive discrimination.
  • Look at Weber test.



Croson(US 1989): Strict scrutiny and AA

City failed to demonstrate compelling government interest to justify plan requiring prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more “Minority Business Enterprises,” since factual predicate supporting plan did not establish the type of identified past discrimination in city’s construction industry that would authorize race-based relief.

  • There did not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting, and the 30% quota could not be said to be narrowly tailored to any goal, except perhaps outright racial balancing.
  • On remand, the Court of Appeals held that the city’s Plan violated both prongs of strict scrutiny, in that (1) the Plan was not justified by a compelling governmental interest, since the record revealed no prior discrimination by the city itself in awarding contracts, and (2) the 30% set- aside was not narrowly tailored to accomplish a remedial purpose.


Grutter (US 2003) – Court held that remedying past discrimination was not the only compelling state interest that could justify governmental use of race.  Held that MI Law School has ‘compelling interest in attaining a diverse student body.” – and their ‘critical mass’ goal met definition of narrowly tailored plan.





Petit v. City of Chicago (7th Cir 2003) – one of first post-Grutter affirmative action in employment cases.

  • 7th Cir transplanted SC’s analysis – concluded that ‘achieving diversity’ = even more compelling in large metropolitan police force charged with protecting a racially and ethnically divided city like Chicago.
  • City had compelling interest in diverse pool of sergeants to both set proper tone w/in dept and to earn the trust of the external community.
  • Sufficiently narrowly tailored – standardizing of the test results merely eliminated an advantage the white officers had on the test, plus minimized harm to members of nonpreferred group and was limited in duration.




  1. SEX


  1. Sex-Plus Discrimination and Pregnancy


  • “Sex-plus” discrimination involves the classification of employees on the basis of sex plus one other ostensibly neutral characteristic
  • Practical effect of interpreting §703 to include this type of discriminations is to impose an equal protection gloss upon the statute. Such an interpretation may be necessary in order to counter some rather imaginative efforts by employers to circumvent §703
    • DISPARATE TREATMENT in nature (e.g. “I won’t hire men with long hair”)


  • Willingham (5th Cir, 1975): Distinctions in employment practices b/n men & women on the basis of something other than immutable or protected characteristics do not inhibit opportunity.

man was fired for wanting to keep hair long (court said grooming code was OK)

Not based on sex alone, based on grooming. A line must be drawn between an employer’s        right to exercise judgment as to how to operate business and employee’s fundamental rights        (employee could look for another job, cut their hair)

TEST FOR “SEX-PLUS”: To violate Title VII, restriction / rule must involve SEX plus some IMMUTABLE CHARACTERISTIC or a FUNDAMENTAL RIGHT (e.g. having children)


  • Phillips v. Martin Marietta (US 1971, PerCuriam): Ida Phillips brought action alleging that she was denied employment based on sex. Mrs. Phillips was informed that they were not accepting job applications from women with pre-school kids, and Martin employed men with pre-school aged kids, and there was no evidence of discrimination against women in general b/c 75-80% of those hired were women.

Holding: Is the condition in question a BFOQ? Ct. said there is not enough information to determine whether it is a BFOQ or not so SJ improper.


Pregnancy Discrimination

  • Title VII originally construed such that discrimination b/c of pregnancy was not sex discrimination. Gilbert (1976)

Gilbert: Health plans for men & women are still legal if nothing provided for pregnancy. Title VII does not require giving women extra benefits.

  • PDA passed b/c Gilbert court did not accept DI argument for pregnancy
  • Why is pregancy discrimination DI, not DT?

– always a problem of cost, reality is pregnant employees are expensive employees              (plausible business necessity)

– DI cases not as easy as seem to be b/c pre Teal, so could rely on bottom line stats

– problem with intentional cases is that they involved giving woman an extra goody rather than giving them something less – can you consider it discr. to not give someone goody?


  • Pregnancy Discrimination Act of 1978 (PDA)

 Congress amended Title VII to overturn Gilbert by defining “sex” to include “pregnancy”


  • 701(k)
    • “b/c of sex” includes, but is not limited to, b/c of or on the basis of pregnancy, child-birth, or related medical conditions, and
    • women affected by pregnancy, child-birth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected by similar conditions resulting in their ability or inability to work


  • BFOQ / Business necessity are still valid defenses to pregnancy classifications

e.g. Harris v. PanAm: stewardesses required to take maternity leave upon discovery of pregnancy justified under BFOQ defense

  • Effect of PDA on main theories of discrimination

1) Disparate treatment: 2nd clause makes it difficult to apply to DT (must treat employee in equal manner to another employee similarly situatied in terms of ability to work but is not pregnant)


2) Formal pregnancy policies can be systematic disparate treatment:

  • depend on whether the classification serves to treat pregnancy less favorable on more favorably than others similarly situated
  • formal policies treating pregnancy less favorably are unlawful
  • Newport News (S.Ct. 1983): Employer put cap on benefits for spouses of employees but not for female employees themselves. holds purpose of PDA is to prevent employer from dividing employees into those that bear cost of pregnancy & those that don’t. The Newport News plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.
    • Rehnquist/ Powell dissent: Language of PDA only applies to actual employees, so spouses not covered by PDA
    • MAJ relies on intent behind PDA, b/c language doesn’t help them
    • Formal policies treating pregnancy more favorably are NOT forbidden
  • 701(k) does not forbid employers from giving special preference for pregnancy benefits
  • Congress intended the PDA to be for a floor beneath which pregnancy disability may not drop, not a ceiling above which they may not rise (Guerra)
  • Title VII does not preempt state law that required employers to provide special benefits for pregnant women



  1. Sex Linked Factors

LADWP v. Manhart (S.Ct, 1978, Stevens): Sex-differentiated employee contributions to a pension plan, even if based on valid actuarial tables, are prohibited by Title VII. Court said LA can’t force women to pay more b/c women statistically live longer than men. Title VII focuses on the individual – there is no assurance that any given individual woman will live longer than the average man.

  • Court also argue that this type of pension payment plan would send a bad message to the public. Title VII says that it is bad to separate people in this manner. There is a cost for forbidding this type of discrimination (short-living men subsidize women), but the cost is worth it b/c appearance of inequality is supposed to be abolished by Title VII.

***  focuses on intent / purpose of statute, not language


  1. Sexual Harassment


Harassment claims fall into 2 categories:

  • Quid Pro Quo (usually only arises when sex is requested to prevent adverse employment action à sex or your job)
  • Hostile Work Environment


  • Elements of Hostile Work Environment (Meritor):
  • Severe OR Pervasive Conduct

-“Totality of Circumstances” Test:

-level of offensiveness (severity)

-frequency or pervasiveness of offensive encounters

-length of time over which encounters occurred

-context of harassment

-focuses on harasser’s conduct


  • Hostile or abusive working environment

      -harassment must be objectively abusive (reasonable jury) and subjectively abusive to Π

      -if employee didn’t subjectively perceive the environment to be abusive, no violation

-focuses on employee’s conduct / response


  • Unwelcome

-voluntary submission to harassment does NOT make it OK, if it was not welcome

-subjective standard

-evidentiary issue à unwelcomeness vis-à-vis the harraser (job as stripper not relevant)

-Courts have little patience with idea that certain characteristics always demonstrate welcomeness


  • Based on employee’s membership in protected class

      -MUST be because of employee’s membership in protected class (e.g. because of sex)


  • Problems with a subjective/ “reasonable victim” standard:

-Predictability (workers must have sense of appropriate standards of behavior / difficult if not consistent)

-Giving jury instruction to approach the harassment from the subjective protected class prospective only reinforces stereotypes


Oncale v. Sundowner (US, 1998, Scalia): Title VII does not explicitly bar same-sex harassment claims. P must show conduct at issue constituted discrimination because of sex.

  • Not a protection for harassment against homosexuals / just says same sex claims aren’t barred, but they must still be because of sex, not because of sexual orientation
  • Provided three examples of actionable conduct:
  1. Harraser is gay
  2. Harasser is harassed b/c of harasser’s general hostility towards that person’s gender
  3. Comparative evidence shows harasser treated their same sex differently (worse) than other sex

Employer Liability for Harassment


Tangible Employment Action (Quid Pro Quo) Hostile Environment

Company / Alter Ego


Strict Liability


Strict Liability




Strict Liability

Strict liability w/ affirmative defense

Co-worker / 3rd Party


Not Applicable




-Alter ego = CEOs, presidents


-Customers can create hostile work environment (e.g. manager does nothing about customers harassing a waitress)


Affirmative Defense (Burlington v. Ellerth):

  • Employer acted reasonably to prevent & correct the harassment
  • Pl failed to take advantage of corrective opportunities

Exception to 2: If employee can prove that she had reasonable fear she would be punished for reporting it or would be ignored, employer can’t rely on fact that she didn’t report it for this defense (FEAR MUST BE REASONABLE, if fear is unreasonable, employer can establish the 2nd element of the defense)


By providing this affirmative defense, employers are encouraged to create effective procedures to address reported harassment





Title VII does NOT protect employees against discrimination b/c of homosexuality, transex., or bisex.


De Santis (9th Cir., 1979): Title VII’s prohibition of sex discrimination applies only to discrimination on the basis of gender, which does not include sexual preference such as homosexuality.


















  1. Accommodation


Statutory Authority

  • Religion = all aspects of religious observance and practice, as well as belief unless employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious practices (also protects atheists, those with moral/ethical beliefs that occupy the role of religion in their lives, NOT political or social ideology – that falls outside limits of T7 protected religious belief)
  • 701(J) – requires employers to reasonably accommodate the religious beliefs of its employees without undue hardship on the conduct of the employer’s business


Pl’s PFC:

  1. Has bona fide religious belief that conflicts with an employment requirement [P’s sincere religious belief (subjective standard)]
  2. Informed employer of this belief.
  3. Employee was disciplined for failing to comply with the conflicting employment requirement.


Employer Rebuttal: Burden of persuasion (shift from Π to ∆)

  1. Good faith effort to accommodate Π’s religious belief / reasonable accommodation was provided
  2. Could not provide reasonable accommodation without undue hardship
  1. a) Any cost over a de minimis cost is an undue hardship (Hardison)

Hardison: Holding: White – TWA made reasonable accommodations.  A collective bargaining agreement cannot be used to violate Title VII, but the Act does require employer to take steps inconsistent with otherwise valid agreement. Requiring TWA to bear more than de minimis cost is undue hardship. Also, Court would not allow religious accommodation to trump agreed-upon seniority system.

  1. i) TWA told union if you can find someone then fine = good faith effort
  2. ii) paying $ & violating collective bargaining agreement = undue hardship

Dissent: Marshall & Brennan – Statute has no bite if accommodations cannot    require employer to treat others equally. Employees are sometimes exempt from    work requirements, so TWA must show that is exhausted reasonable accommodations and remaining alternatives would have caused undue hardship.


Wilson (8th Cir 1995): Abortion button case; Ct rules that employer offered her reasonable accommodation by letting her wear button but cover it at work.

  • If employer offers reasonable accommodation and employee declines, end of inquiry.
  • Ct will not consider employee’s preferred accommodation or inquire as to the hardship it would cause, unless employer claims it is unable to offer any reasonable accommodation without such hardship.


  • Courts worried application of Title VII violates First Amendment (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof)
  • Courts worried about telling employers that they have to favor one religion over another

3)   Not a very protective regime, but lower courts not as strict as Supreme Court, inclined to require more of employers than Hardison





  1. Exemptions


  • Religious employer exemption: §702(a) – “Title VII shall not apply to a religious corporation, association, education institution, or society” – Exempts them with respect to “the employment of individuals of a particular religion to perform work connect with the carrying on by such educational institution of its activities.”
  • Religious curriculum exemption: § 703(e)(2) – it is not unlawful for religious school to hire person of certain religion if curriculum of such school is directed toward the propagation of a particular religion
  • BFOQ – §703(e)(1) – not unlawful to employ any individual where religion = BFOQ


Mississippi College (5th Cir. 1980): College is Baptist and has policy of preferring active Baptists on faculty. Part-time female assistant professor was not hired full-time.

– Because school was arguing an exemption, they did not allow EEOC to enter the school for discovery reasons (First Amendment reasons). So EEOC issues subpoena b/c they won’t comply with request for information/investigation.

– EEOC contends that College’s assertion that it declined to hire Summers b/c of her religion should not prevent it from investigating to determine if this was just pretext for some other form of discrimination.

– §702 exemption applies only to discrimination based on religion – if exempt, EEOC cannot further investigate to see if religious discrimination was pretext for another type of discr. So must remand to see if exemption applies. On remand, court must decide which employment practices are exempt from coverage of Title VII.


-If we’re talking about a church and we’re dealing with relationship of the church to people carrying on a core function (ministerial) of the church, can’t investigate (1st Am.).

-Look to see how close function of organization is to something that’s core to the church, to see if there can be absolutely no investigation b/c McClure applies.

-If McClure fails, there’s the Lemon entanglement and burden on organization test.






















  • Need to show ∆ knew or believed that Π was of certain NO
  • What does NO include?
  • Discrimination based on country where you and/or your ancestors came from
  • Not limited to politically recognized nation


Discrimination based on Citizenship

  • Alienage discrimination is NOT prohibited by Title VII (Espinoza)
  • Congress intended national origin and citizenship to be separate / Congress itself discriminates       against citizenship by requiring citizenship for many civil service jobs
  • No courts will allow a Π to bring a DI NO claim based on citizenship requirements
  • Immigration Reform & Control Act – 1986, Filled gap of Title VII
  • Forbids hiring, recruiting illegal aliens / requires obtaining documentation of legal status
  • An employer’s request for more or different documents than are required to confirm an employee’s employment eligibility will violate statutory ban on discrimination only if the request was made for a discriminatory purpose or with intent to discriminate
  • Prohibits employers with > 3 employees from discrim. on basis of citizenship

      –           Except:

–           Illegal aliens

–           For public employers where allowed by statute/regulation/executive order

–           Where alien is competing with an equally qualified citizen

–           Prohibits retaliation for seeking relief under IRCA

–           Can’t discriminate against undocumented people (still covered by Title VII)


English-only requirements

  • Disparate impact claim
  • Generally courts find that English-only requirements do not violate Title VII b/c not discrimination based on immutable characteristic, but behavior
  • Purposes of English-only rules:
  • client contact
  • bilingual employees harass monolingual employees in language that monolingual

employees don’t understand

  • Employer defense = business necessity.
  • Analogy to grooming cases:

– e.g. rule says women can not wear pants, this is not covered by Title VII /  it is within persons control as to whether or not they speak English


“No accent” policies

  • Employers who wish to enforce a “no-accent” policy have had little success in courts (b/c of issue of immutability / worker can’t really control their accent & hard to learn a new language)
  • However, if too heavy, may be legitimate, non-discriminatory reason or job related / business necessity – Fragante v. City and County of Honolulu (9th 1989)










  1. RACE OR COLOR (p. 358-59)


McDonald v. Santa Fe: Title VII applies to whites & men also.  Employer liable for firing white man b/c of his race.


Remember – Race not a BFOQ – thus characterizing claim as alleging national origin, as opposed to race discrimination, can be critical where the defendant wants to take advantage of this defense.


Also – affirmative action policies often define the class included within their provisions by racial membership.


Can bring suit for racial discrimination if fired b/c are in interracial relationship or have biracial child, as well as claim that you were discriminated against re: color of your skin (darkness/lightness)



  1. Covered Employees and Entities

15 or more employees


Rinella, (N.D. Ill, 1975): Issue = whether attorneys of a firm were independent contractors or employees for the purpose of meeting the 15 employee minimum needed for coverage.

  • Ct holds: professional employment situations intended to be covered by T7.
  • Court must examine “totality of the firm’s arrangements” to determine whether employer-employee relationship in fact exists. Look at hiring, firing, fees paid to firm, control over compensation, whether compensation actually functions like a salary (not independent fees won), outward appearances, etc.


Walters (US 1997): Payroll method for determining whether employer satisfied the 15 employee requirement.  Employer “has” employee whenever there is an employment relationship between them, regardless of whether individual actually works or is compensated on any specific day during the period of that relationship.


Alexander (7th Cir 1996): Pl must prove the existence of an employment relationship in order to maintain a T7 action against D; Independent Contractors not protected by T7.

  • Five factor test to determine employment relationship:
    • Extent of employer’s control and supervision over the worker, including directions on scheduling and performance of work (most important factor!)
    • Kind of occupation and nature of skill required, including whether skills are obtained in the workplace
    • Responsibility for the costs of operation (equipment, supplies, etc)
    • Method and form of payment and benefits
    • Length of job commitment and/or expectations


  1. Covered Decisions

Hishon v. King & Spalding (US, 1984): Issue: is partnership decision a covered employment decision under T7 – Is it a term, condition, privilege of employment?  Ct says – benefit denied Pl need not be employment to fall within T7 – need only be term/condition/privilege.

  • Ct holds that T7 applies to partnership selection process, motion to dismiss reversed.


  1. ADEA


ADEA v. T7

  • 4(a)(1)(2) is almost identical to language of T7
  • Age = any person over age 40
  • Procedural mechanisms used for ADEA are virtually the same as with T7
  • Remedies are the same
  • Can bring ‘hostile work environment claim’ under ADEA
  • If bringing age discrimination claim in regards to a reduction in force, don’t have to prove that you were replaced w/ someone younger – just show that it occurred in circumstances that give rise to inference of age discrim, such as the fact that younger workers weren’t laid off.
  • ADEA has 20 employee minimum / T7 is 15 employee minimum
  • ADEA NOT amended by CRA 1991:

SO, retains old PW method: if employer can demonstrate it would have made same decision       regardless of age discrimination, it’s free from all liability

** To be liable in PW method, Π still must prove that age was very important factor


Unlike Title VII, however, ADEA § 4(f)(1) significantly narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age”



Hypo: Airline company (AC) only hires pilots under 35 and can only become pilot after 14 years of training with company (justification: FAA has mandatory retirement age = 60). Can AC legally enforce this?

-AC’s argument = Cost BFOQ (we’re investing a lot in training these pilots & we want a return on our investment)

-NO GOOD. Generally, cost BFOQs won’t work b/c there’s always a cost based rationale for hiring younger people (allowing this BFQO would complete eviscerate the act).

-Standard of proof for safety BFOQ is much lower in ADEA cases


Thurston: Transfer policy that discriminates against protected individuals b/c of age = violation of ADEA

– In this case, policy prevented some people from getting jobs as flight engineers when                they were no longer able to be pilots if there were no flight engineer positions available.                      – Since age was not a BFOQ for flight engineer, this type of transfer system violates ADEA




Smith v. City of Jackson, Miss. (US 2005): Police and public safety officers brought suit against city, under ADEA alleging that salary increases they received were less generous than increases received by younger officers. Fifth Circuit affirmed dismissal of disparate-impact claim.

  • Holdings: The Supreme Court held that:
    (1) ADEA authorizes recovery in disparate-impact cases, but
    (2) complaint did not set forth valid disparate-impact claim – complaint did not identify any specific test, requirement, or practice within pay plan that had adverse impact on older workers. Employee must isolate and identify specific employment practices that are allegedly responsible for any observed statistical disparities.
  • City’s revision of employee pay plan, granting raises to police and public safety officers in order to bring their salaries up to regional average, did not violate ADEA; decision to grant larger raise to lower echelon employees for purpose of bringing salaries in line with that of surrounding police forces was decision based on “reasonable factor other than age” that responded to city’s legitimate goal of retaining police officers.


Defenses to age discrimination – §4(f)

  • BFOQ
    1. Western Airlines v. Criswell (US 1985): To establish BFOQ defense, employer must:
      1. First demonstrate that the qualification used to justify age requirement is reasonably necessary to the essence of its business
      2. Then prove that it was compelled to rely on age as a proxy for this qualification by establishing either:
        1. That all or substantially all individuals over a certain age lack the qualification OR
        2. That it is impracticable or impossible to treat persons over this age on an individualized basis.
  • Decision based on reasonable factors other than age
  • Bona fide seniority system
  • Decision based on good cause


General Dynamics (US 2004): ADEA does not prohibit favoring old over young – does not cover “reverse age discrimination.”

  • Statute restricts protected class to age 40 and above.
  • In Hazen Paper v. Biggins – no violation of ADEA in firing employee b/c his pension is about to vest – this is analytically distinct from age even though it would never occur without advanced years.


























  1. CRA 186642 U.S.C. 1981


  • 1983 = cause of action whenever gov’t. violates constitution in a way that inures that person

– §1983 prohibits any distinctions that are not constitutionally allowed

(e.g. race, sometimes sex)

– Reality = Under §1983, race & sex claims more easily stated (“race” broad like §1981)

– Equal Protection Clause prohibits discrim. based & race & other characteristics/ thru 1983, victim can sue and potentially recover damages


  • 1981 applies to both public and private acts of racial discrimination (according to SC), but ONLY applies to race – protects right to make and enforce contracts, guarantees to all persons the same right to “the full and equal benefit of all laws and proceedings for the security of persons and property” (this second one relates only to state action – first one relates to private parties)


  • “Race” defined more broadly in §1981 than T7. Whatever was meant by “race” in 166 defines who can state a claim under §1981 (e.g. Irish, Jewish).

-“Race” under §1981 often encompasses national origin, particularly when national origin is associated with racial characteristics


State action?

  • T7 covers both private AND gov’t. employers / state action not necessary
  • 1981 reaches both private and gov’t.
  • 1983 requires state action à private individuals do not violate Constitution (only Gov’t.)


Disparate Impact?

  • T7 allows DI
  • §1981,83 do NOT allowed recovery under DI theory à must prove INTENTIONAL discrimination


Benefits of Bringing Action under §§ 1981, 1983

  • Minimum # of employees: No minimum # of employees (T7 requires at least 15 employees)
  • Remedies: NO damage caps! (T7 has compens./punitive damage caps)
  • S/L: NO S/L, adopt analogous S/L of state where discrim. occurred (T7 has elaborate procedural precursor to file with state agency, and puts complicated deadlines on bringing suit; shorter S/L)


Only after T7 was passed did courts begin to read §§1981, 1983 broadly


Bobo v. ITT: §1981 may NOT be the basis for a SEX discrimination action












  1. ADA

–     ADA expanded the Rehabilitation Act

–     applies to employers with > 15 employees / ADA doesn’t apply to fed. employees

–     Title 1 of ADA deals with employment:

1) prevents irrational bias against people with disabilities

2) Requires employers to adjust terms & conditions of employment to meet the needs of their disabled employees


–     Balance rights of employer & disabled employee a lot tougher b/c there often is a legitimate   reason to discriminate against disabled people (more expensive, burdensome, etc.)


Prima Facie Case

  • Disabled Individual
    1. has, had, or is regarded as having
    2. a physical or mental impairment
    3. that substantially limits
    4. a major life activity (MLA)
  • Otherwise qualified
    1. can perform essential job functions
    2. with or without reasonable accommodation
  • Adverse Employment Action Because of Disability (§102 a, b)
    1. applied for and been denied a job
    2. qualified
    3. job was given to another


                        ** Both DT & DI claims OK


  1. Meaning of “disability”


Bragdon v. Abbott:  HIV + woman is considered disabled under ADA (however, HIV isn’t a per se disability)

  • Physically impaired b/c of physical affects of the virus
  • Reproduction = MLA

– Reproduction is central to life process itself

– MLA does not only mean things that have a public, economic, or daily character

– Substantially limited b/c of risk of infecting sex partner & risk of infecting child

– don’t need complete inability to substantially limit / definition met even if difficulties are not insurmountable (i.e. she could have sex, but sex would be so dangerous to others, that she really can’t

– Rehnquist dissent:

whether someone has a disability under ADA is an individualized inquiry

-in this case, reproduction neither generally a MLA, nor specifically a MLA

-MLAs = greater in quantity or extent / essential for day-to-day existence

-HIV doesn’t substantially limit / voluntary choices can’t be a limit

– O’Connor concurrence:

– MLA = representative MLAs of all persons – “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, & working”


Physical or Mental Impairment

  • Pursuant to Bragdon ruling, courts take an individualized evaluation of each condition before them, guided in large part by interpretive regulations issued by federal agencies
  • EEOC takes position that impairment doesn’t have to be permanent; determinations made on ad hoc basis – must be long term or potentially long term b/c anticipated duration is indefinite, unknowable or expected to be at least several months.
  • “regarded as” = (1) employer mistakenly believes employee has impairment, (2) employer believes an actual, nonlimiting impairment substantially limits one or more MLAs
    • Can’t be b/c Pl responsible for employer’s mistaken judgment
    • Individual who is erroneously perceived as disable is not entitled to accommodation (no Congressional intent – Deane v. Pocono – 3rd Cir, 1997 – in such cases, Pl must establish not only that he is so regarded, but that he is in fact capable of fully performing all relevant (essential and marginal) job duties in order to qualify under the statute as an “otherwise qualified indiv w/ disab.”
    • Blackwell (p. 811): fact of Pl’s exclusion for being a transvestite demonstrated that employer regarded his being transvestite as a disability and so Pl does not have to allege or prove that his disability actually impaired his ability to function.
  • Predisposition to illness is not an impairment (EEOC regs)
  • Exclusions on p. 802.
  • Drugs – current use not protected, but addiction is; “no longer engaging in such use” = drug free period of considerable length, not immediate abstinence from drug use.


Substantially Limits

– EEOC = includes both inability to perform a MLA that the average person in the general population can perform, and a significant restriction as to the condition, manner, or duration under which an individual performs a particular activity as compared to an average person in the general population


“Substantially limits” &  Working as the MLA

Sutton: the phrase “substantially limits” [with relation to working as a MLA] requires, at                                 minimum, that plaintiffs allege they are unable to work in a broad class of jobs


EEOC: significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single job does not constitute a substantial limitation in the MLA of working


-To determine whether substantially limitied in MLA of working, look at geographical area and # & type of jobs utilizing similar training, skills or abilities


Mitigation: Any MLA will be judged after mitigation / correction (e.g. bad eyesight will be judged with corrected vision)

Sutton v. United – court rejected approach of EEOC and Justice Dept that called for determination of disability without reference to mitigating/corrective measures.

  • If mitigation creates other problems, those other problems can serve as the basis of an ADA claim (e.g. side effects from medication necessary to control seizures, which interfere w/ MLA) – Christian v. Anthony Medical(7th Cir.)
    • Only applies if particular treatment (which causes disabling side-effects) was medically necessary and not “merely an attractive option.”


Toyota v. Williams (S.Ct., 2002):

Holding: Π must show an impairment that prevents or severely restricts the individuals from doing most activities that are of central importance to most people’s daily lives / impairment must be permanent or long-term

– Effect of the impairment on the individual must be assessed on an individual basis

Proper question: Whether claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job


  1. Meaning of “qualified individual”


Pl required to demonstrate that she can, in fact, perform the essential functions of the job with or without a reasonable accommodation.


Cleveland v. Policy Management (US 1999): ADA claimant not estopped just b/c previously had filed for SSDI benefits (which require total disability, no ability to work – while ADA requires you to be able to perform essential job functions)

  • Pl must explain/attempt to resolve disparity between two claims but must be given opportunity to do so.


Castellano v. City of NY (2d Cir 1998): ADA claim brought by disabled retiree alleging discrim in post employment fringe benefits; “qualified indiv w/ disabil.” satisfied in this limited context if Pl established that she had been able to perform the essential function of the job while employed and, on that basis, has earned the post-employment fringe benefit.


First decide what essential job functions are (employer gets lots of autonomy here), Then, ask if this essential function can be reasonably accommodated


  • In determining if something is an essential job function, courts are supposed to give weight to job descriptions (ex-ante), rather than what the employer says after he’s presented with disabled employee (post-hoc)
  • Employer should be allowed to assign job description (employer autonomy asserting itself), unless these job descriptions are obviously pretextual (determined by finder of fact)
  • Individualized inquiry for workplace – e.g. if you have 30 secretaries and only one is deaf, the non-deaf ones can answer phone


Background essential functions: in addition to essential job functions, there are background essential functions that usually aren’t listed in job description (e.g. getting along civilly with co-workers, showing up to work)

– Inquiries for essential job function often collapse into inquiries about reasonable accommodation (b/c case law in this area is underdeveloped)


Scenarios Demonstrating Difference b/n T7 & ADA


1) Person has disability w/ absolutely no effect on work (e.g. severe eczema), but employer is grossed out à clear violation / just like T7 scenarios (“I don’t wanna be around blacks”)


2) Disability does not affect essential job functions, but some form of accommodation needed for “nonessential” job functions (e.g. law prof. doesn’t need use of legs, doesn’t affect essential job function). Accommodation would be related to “nonessential” job functions.


3) Disability does affect essential job function (e.g. hearing impaired secretary) / accommodation relates to actual job function


            * Scenario 1 is really the only one that parallels T7




Safety threat exception

If your disability causes a threat to others in workplace à not qualified for the job


Bragdon standard: Is there a significant risk from standpoint of employer based on available, objective medical evidence?

  • views of public health authorities are given great weight, but not conclusive


In Bragdon, Π put out 3 pieces of evidence demonstrating she is not at risk:

1) affidavit from CDC official who says that dentists aren’t at risk if the follow reasonable        precautions

– PROBLEM: Not available medical evidence (not readily accessible to dentist)


2) Amer. Dental Assoc. policy on treating HIV + patients à if you take reasonable precautions, no risk dentist obligated to treat this patient

– PROBLEM: Unclear whether Amer. Dental Assoc. guidelines are risk assessment or ethical guidelines (might not really judge if there is a risk)


3) CDC Dentistry g-lines set out precautions dentists should take in treating HIV+ patients

– Widely available, related to risk, but don’t cut it b/c not an explicit assessment of risk but instead focused on precautions which should be taken to avoid risk


Juries need to be provided with precise risk / can’t turn ethical guidelines into calculus of risk


  1. Nondiscrimination and Accommodation


Nondiscrimination under ADA – means no adverse action and affirmative duty of reasonable accommodation (if not undue hardship on employer)


“Associational discrimination” – can have claim under ADA if discriminated against based on association with someone with known disability.  Purpose is to prevent conduct predicated upon unfounded stereotypes about persons who associate with disabled individuals.


What is adverse action?  Doe v. Dekalb School Dist. (11th Cir. 1998): objective standard to be used – i.e. to determine whether reasonable person in the Pl’s position would view the employment action in question as adverse.  Here, Pl was transferred to different school, unclear if this was adverse.


Mixed motive analysis – available for ADA. Section 107(a) of 1991 CRA does not apply – so we are under original Price Waterhouse model.


Don’t need to show that you were replaced by non-disabled person.  P. 823.












Duty to Accommodate

Reasonable accommodation: objectively determined standard.

  • Viewed as comprising something less than the maximum effort it would take to permit a disabled individual to work but requiring the implementation of an effective alteration of the workplace based on either a survey of accommodations made by other employers or by a calculation of whether the costs incurred in providing the accommodation are proportionate to the benefit obtained by the disabled employee.


Undue hardship: viewed as economic safe harbor for the particular employer – requires evaluation of the specific defendant’s ability to sustain the cost of an otherwise reasonable accommodation, regardless of whether a different employer might be required to adopt that same proposed accommodation.


Fjellestad v. Pizza Hut (8th Cir 1999): Pl bears initial burden of informing employer that she is disabled and requesting an accommodation that will render her “otherwise qualified” for employment.  Employer – then must enter “informal interactive process” with employee to determine whether appropriate reasonable accommodation exists.

  • If D fails to make good faith effort to engage in interactive process, D will be found to have violated Act (per se liability) unless D can prove that no reasonable accommodation was possible.


Barnett – Sup. Ct. left alone the 9th Cir’s more relaxed standard re: triggering of interactive process with employer – which holds that the process is triggered either by a request for accommodation by a disabled employee or by the employer’s recognition of the need for such an accommodation.


Taylor v. Principal Financial (5th Cir 1996): Pl must do more than just reveal disability to supervisor – no affirmative obligation of company to reasonably accommodate unless it also knows of the limitations experienced by employee as result of the disability.


Reassignment to vacant position – can be form of reasonable accommodation.  See p. 827.


ADA has a social component à affirmative obligation to accommodate workplace (like affirmative action for disabled people) / puts costs on employers to remedy problem (unless “undue hardship”)


Reasonable Accommodation

-First, employee has burden of proving that an accommodation is reasonable (objective standard / abstract, not looking at individual)

-Second, ∆ has burden of proving that accommodation is an undue hardship (subjective standard)

– Richer, bigger employers expected to make more accommodations (bigger burden)

-Undue burden & unreasonable accommodation = same argument











USAir v. Barnett: Employee switches from lifting to mailroom for bad back. Other employees wanted to exercise seniority to get in mail room. Π argues that setting aside seniority system would be reasonable accommodation. SC disagrees. Rebuttable presumption that alteration of seniority system is NOT a reasonable accommodation.

-this particular accommodation is not reasonable b/c of the benefits of seniority system:             predictable advancement, giving employees expectations of what will happen

-if seniority system makes an exception, it’s not consistent & benefit of seniority system is           gone

-O’Connor concurrence: If seniority systems are legally enforceable, you can’t subvert them. If they aren’t legally enforceable, ADA trumps them. Another employee’s enforceable right to position makes it not “vacant”

-similar to TWA v. Hardison: Airline couldn’t accommodate employee’s’ observance of religious beliefs without violating collectively-bargains agreement

– Scalia dissent:

  • Seniority system should never bow down to ADA
  • Employer must accommodate disability, not disabled employee
  • Reason why this person can’t get job is b/c of their seniority, not b/c of their disability
  • Scalia only wants to accommodate things that directly relate to disability
  • Scalia is wrong / he’s assessing this situation in a Title VII model of discrimination, which isn’t the same as ADA. ADA requires additional expenditures to accommodate, Title VII might not

– Souter / Ginsburg dissent:

– intent of Congress was to reject TWA v. Hardison, even collectively bargained agreement should bow to accommodations


[Vivid illustration b/n difference of T7 & ADA:


**ADA not about equality, its about recognizing that we have put burden on employer to do more than equalize (like T7) à put affirmative duty on employers to accommodate people with disabilities


Scalia,  Breyer (MAJ) don’t care about leg. history


Ginsburg, Souter care about leg. history à take time to discover that purpose of act is more than creating equality. Purpose is creating accommodations (better opinion according to Schiller)]


Barnett RECAP: employer entitled to benefit of rebuttable presumption that any accommodation that requires it to violate the terms of its seniority system is unreasonable in the general run of cases.

  • Pl has opportunity to demonstrate that “special circumstances” warrant a finding of reasonableness in disrupting the seniority system
  • Ct offered non-exhaustive list of two situations where the presumption could be rebutted:
    • Employer’s retention and “fairly frequent” exercise of the right to make unilateral changes to its seniority system suggested that one more departure would not likely make a difference
    • Where the seniority system already contained exceptions such that, in the circumstances, one further exception was likely to matter.







  1. Defenses


Employer Defenses

  • Employment Action for Reason Other than Disability
  • Accommodation causes Undue Hardship
  • Π poses a direct threat to the health & safety of others in the workplace
  • Religious institution exemption
  • Food handlers with infectious diseases exemption
  • Job relatedness and business necessity
    1. When Pl asserts that qualification standards create disproportionate exclusionary impact (DI) on disabled individuals that cannot be cured by a reasonable accommodation – D relieved of liability if it can prove that the challenged policy is job-related and consistent with business necessity.
    2. EEOC v. Exxon (5th Cir 2000): D doesn’t have to demonstrate “direct threat” in order to show that it was job related and consistent with business necessity.
      1. These two affirmative defenses are separate and applicable in two distinct contexts.
      2. “Business necessity defense” of §103(a) – linked to cases in which D was alleged to have relied on facially neutral employment qualification that disproportionately excluded disabled individuals, requires evidence that the challenged qualification is justified as a policy of generally applicability.
  • “Direct threat defense” of 103(b) – linked to employment requirement applied to an individual, requires evidence that focuses on the specific risks posed by this individual.


Bona Fide Insurance Plans – Where Pl alleges that employer’s health plan contains

disability-based distinction, in order to fall within the protection of §501(c) the

employer must establish:

  • That this provision is part of a bona fide insurance plan not inconsistent with state law
  • Or bona fide self-insured plan
  • AND the plan is not being used as a subterfuge to evade the purposes of the ADA.
























Employers don’t want arbitration clause – if there is going to be a fight, employer is bigger fish who can afford to litigate and stick it out unlike employee.  Great for contractual fights.


Question – is it good mechanism for statutory discrimination suits?


Pre-dispute arbitration agreement – like an executive contract, collective bargaining agreement, etc.  Agree in advance that if there will be a dispute, they’ll arbitrate.


Post-dispute arbitration agreement – parties already in a live controversy, decide then to submit to arbitration.  Not controversial at all.


Pre-dispute is the controversial part – arbitration is final, binding, no appeal (except reviewable for very narrow purposes) – employers use it as a way of staying out of court.  Make them sign these agreements as a condition of getting or keeping job, must agree to arbitrate any and all claims.  Employee bar thinks this is unfair and should be illegal.  Unconscionable adhesion contracts.  WRONG BECAUSE:

  • Very limited discovery in arbitration – plaintiff needs this discovery b/c pl has burden of proof and none of the evidence (employer has all the files, people, etc.)
  • Title VII and ADEA provide for jury trials. Title VII amended in 1991 specifically to include right to jury trials.
  • Arbitration stops the development of the law – no appellate courts looking at these cases to see if the law has been followed and develop it as applied to new situations.


Failure to deal with stare decisis – all involve public law.

Plaintiffs bar only pick people who make a lot of money or class actions that settle before trial.

Don’t serve garden variety claims of people every day.


Voluntary arbitration agreements if employees will be fired if don’t sign?  Need to set up truly voluntary, very good adr systems.


Find ways to bring cost and formality of the system down – labor unions used to play this role.  Solution is bringing costs down.


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