Equal Protection Direct discrimination

Quasi-suspect class Intermediate scrutiny

- Gender, sexual orientation
- Not discriminatory if an exceedingly persuasive
justification, and applies to real, fact-based, and/or
biological differences between the sexes.
Statue will not survive Equal Protection scrutiny if:
Gender-neutral statute can serve the interest just as well
An unintended party benefits from it (additional benefits for
those it has no reason to prefer)
Rule statement
A plaintiff alleging discrimination in violation of the Constitutions Equal
Protection Clause must show that the employer acted with
discriminatory intent. Yet, even if intent is proven, the government may
still avoid liability if it can demonstrate that it had adequate
justification for the discrimination.
Administrative convenience is not an important government objective.
Equal Protection Indirect Discrimination
Two fold question
1) Is the statutory classification indeed neutral in the sense that it is
not gender-based? (Is it covertly discriminatory?)
2) Does the adverse effect of the statute reflect invidious sexdiscrimination?
Equal Pay Act
Rule statement
The Equal Pay Act requires that men and women be given equal pay
for equal work in same establishment. The jobs do not have to be
identical, but they must be substantially equal. The term
substantially equal is defined by the contents of the job, not the title.
Substantially equal jobs protected by Equal Pay Act
- In terms of what the job entails
- Not necessarily in title or job description
- Factors to consider: skill, effort, responsibilities, working
conditions.
Defenses to Equal Pay Act (affirmative defense: Bennett
Amendment)
1) Seniority
2) Merit
3) Quality or quantity of production
4) Any other factor other than sex

The act of promoting men only IS NOT a violation of Equal Pay Act
Privacy concerns could be an issue when applying Equal Pay Act
Title VII
Title VII prohibits discrimination in making employment decisions such
as hiring, firing, compensation, etc., by basing them on race, color,
sex, or national origin.
Title VII applies to employers with 15 or more employees on payroll.
Disparate treatment
Title VII prohibits employers from treating applicants or employees
differently because of their membership in a protected class.
Sex stereotyping on a persons gender nonconforming behavior is
impermissible discrimination.
Disparate treatment: Direct and indirect evidence
Plaintiff can show her membership of the protected class was a
motivating factor in the adverse job action. Direct evidence can be
admission by employer to discriminatory intent or the policy itself was
discriminatory. In order to prove disparate treatment through indirect
evidence, plaintiff must prove discriminatory intent indirectly by
inference. (McDonald-Douglas formula). First, plaintiff needs to
establish prima facie case by showing member of protected class,
qualified but rejected, and non-members were treated more favorably.
Then the employer responds with a legitimate, nondiscriminatory
reason for such treatment. (Burden of Proof is on employer).
Afterwards, plaintiff must prove that the employers stated reason is
pretext to hide discrimination. (Past discrimination, general policies,
reason not worthy of credence.)
Civil Rights Acts of 1991
Under Civil Rights Acts of 1991, plaintiff in a mixed motive case only
needs to show that discrimination was a motivating factor to prevail on
her claim. However, if defendant can show, by preponderance of
evidence, that he would have made the same employment decision
absent the factor in question, plaintiff will not be entitled to damages.
In a mixed motive retaliation claim, plaintiff will not be entitled to
declaratory relief, injunctive relief, or attorneys fees because it is not
covered by Civil Rights Acts of 1991.
Dress codes
Requiring sex-differentiated dress code can be in violation of Title VII if
it places unequal burdens on men and women. If such policy relies on

cultural norm rather than sex-stereotyping, and does not place unequal
burdens on both sexes, the court will generally will uphold such policy.
Disparate impact
A violation of Title VII of the 1964 Civil Rights Act may be proven by
showing that an employment practice or policy has a
disproportionately adverse effect on members of the protected class as
compared with non-members of the protected class. Therefore, the
disparate impact theory under Title VII prohibits employers "from using
a facially neutral employment practice that has an unjustified adverse
impact on members of a protected class. A facially neutral employment
practice is one that does not appear to be discriminatory on its face;
rather it is one that is discriminatory in its application or effect."
Defenses: BFOQ
Employer can assert BFOQ as defense since Title VII does not prohibit
employers making employment decisions on otherwise impermissible
grounds, such as religion, sex, or national origin, if it is reasonably
necessary to the normal operation of that particular business or
enterprise. (The essence of the job).
Two-part test:
1) Does the particular job under consideration require that the
worker be one sex only?
2) If so, is that requirement reasonably necessary to the essence of
the business?
Not BFOQ: Archaic notion/stereotyping, safety of employee, cost
justification
BFOQ: Safety of third parties, customer preference if essence of the job
is sex or sex-appeal, authenticity, physical incapability.
Independent contractors are not employees, so not covered by Title VII
Title VII is not limited to tangible and economic loss or damage.
Sexual harassment under Title VII
Under Title VII, discrimination based on sex includes sexual
harassment, either quid pro quo harassment or hostile work
environment.
Quid pro quo harassment
Quid pro quo harassment is when submission or rejection to
unwelcome sexual advances affect employment decisions. A classic
example is offering promotion in exchange of sex.
Hostile work environment

In order to prevail in hostile work environment claim, an employee

must show
1) Workplace permeated with discriminatory intimidation, ridicule,
and insult (one of 5 protected classes)
2) Sufficiently severe or pervasive (objectively and subjectively)
a. Totality of circumstances test (Harris v. Forlift)
i. Frequency
ii. Severity
iii. Physically threatening or mere offensive utterance
iv. Psychological harm
3) To alter conditions of employment
a. No tangible loss necessary
4) Create hostile or offensive work environment
a. According to reasonable person (objective)
b. According to victim (subjective)
3 will be analyzed through totality of circumstances. Generally, courts
will look at frequency, severity, physical/psychological harm, an
unreasonable interference with work performance.
4 can be satisfied by showing that a reasonable person in the same
position would have perceived the environment hostile, and so did the
employee. Actual interference with the job, even though it bolsters the
claim, is not necessary.
Defense Sexual harassment
You can do affirmative defense by showing
1) Employer took reasonable steps to prevent and correct sexual
harassment at workplace, AND
2) The employee unreasonably failed to take advantage of the
employers corrective or preventive measures.
But, you cant do this if an employment action was followed by sexual
harassment.
Not available in CA
1) Avoidable consequences doctrine may be available under FEHA
2) Case will not be dismissed under this doctrine.
Voluntariness is not an affirmative defense to hostile work environment
claim.
Same-sex sexual harassment is a claim under Title VII.
Sexual harassment based on sexual preference is not allowed. (It is
not a protected class)
Transexuality is not protected by Title VII.
Changing ones religion = changing ones sex if used for basis for
employment decision.
Court is very skeptical of plaintiffs reasons for delaying or failing to
bring the suit. Fear of retaliation, usually, is not a sufficient reason in

delaying or failing. The proper method of dealing with retaliation is

filing a retaliation claim.
Title IX: Sexual harassment in schools.
Rule statement
Title IX prohibits exclusion from participation, benefit denial, or
discrimination based on gender under any education program or
activity receiving federal financial assistance.
Sexual Harassment Employee
1) Liable if officials had actual notice of specific and responded with
deliberate indifference.
2) Not having a non-discrimination policy and internal grievance
procedure is not enough to constitute liability.
Sexual Harassment Peer
1) Deliberate indifference to known acts of harassment
2) If district exercises substantial control over the harasser and the
context
3) Severe, pervasive, and objectively offensive to deprive the victim
of access to educational opportunity and benefit provided by the
school.
School athletics
1) The number of participation opportunities for male and female
athletes is substantially proportionate to their respective
enrollments; or
2) The institution has a history and continuing practice of
expanding participation opportunities responsive to the
developing interests and abilities of the underrepresented sex; or
3) The institution is fully and effectively accommodating the
interests and abilities of the underrepresented sex.
Remedying Past Discrimination
Rule statement
Remedying the present effects of past discrimination is a
compelling/exceedingly persuasive government goal. So such
programs/statutes must be narrowly tailored to that goal. (Strict
scrutiny). There must be a strong basis in evidence that the past
discrimination caused the present effects.
Important government interest
- Require that past discrimination must be shown for strict scrutiny
but not for intermediate
- Dont require that the government must have been the entity
doing the discrimination

Require that past discrimination must have occurred in that

particular field
Not be based on archaic notions.

Affirmative Action
Employment decision based on affirmative action 1) must mirror Title
VIIs intent (have a remedial purpose), 2) must not unnecessarily
trammel interest of non-member employees, and 3) must be
temporary measure designed not to maintain a balance, but to
eliminate an imbalance.
Public Accommodation
Unruh Civil Rights Act
Unruh Civil Rights Act in CA prohibits discrimination based on sex or
sexual orientation, and it applies to all business establishments.
(Commercial activities)
Private Variety (Club)
If an establishment is a private club, it will not be subject to Unruh Civil
Rights Act and be protected by 1st Amendment.
Analysis
I. Does the statute apply?
a. Does group engage in sending a message?
II. If so, does the organization have 1st Amendment Rights?
a. Freedom of expressive association
i. Religions + political get substantial protection
b. Freedom of private association
i. Small, exclusive, selective = private
c. Is it truly a private club v. a place of public
accommodation?
III. If so, would applying the law interfere with the 1st Amendment
Rights?
a. Is there a compelling state interest (besides suppression of
ideas)?
b. Is that statute narrowly tailored to achieve that interest?
Sexual Orientation Discrimination
Substantive due process violation because government is depriving
individuals of fundamental rights, such as right to liberty and privacy.
This disadvantages a suspect class, so it is subject to strict scrutiny.
Traditional, cultural norm is not a compelling state interest.
Equal Protection: Equal outcome, not equal treatment.
In CA, pregnancy is qualified as a disability.

Title VII If you get fired for being late all the time, and other people
get fired for the same reason, your Title VII claim might fail.
You could be a bad employer, but are you a Title VII bad employer?
BFOQ for pregnancy 3rd party safety
- Not her, not the baby.
Title VII: Is it applicable?
- 15+ employees
- Applies to all government employers
Title 9:
- Federal funding / state funding
Some of the issues are not so apparent. i.e. Equal Pay Act
Statutory causes of action v. constitutional causes of action