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I.

Introduction
o Employee – an individual employed by an employer; subject to policies; paid for
time; under control of employer.
o Employer – employs 15 or more employees; people who make policies; includes
any agent of the employer. An agent is defined as a supervisory employee who
has the authority to make personnel decisions regarding hiring or firing
employees or to otherwise set the terms and conditions of employment for
applicants and employees.
o Employment Practice – anything connected with “compensation, terms,
conditions or privileges or employment.”
 Remedies – Title VII §706
o Back pay
o Front pay (hiring cases)
o Compensatory & Punitive damages (malice) – capped
 Employers with more than 14 but fewer than 101 employees: $50,000
 More than 100 but fewer than 201: $100,000
 More than 200 but fewer than 501: $200,000
 More than 500: $300,000
o Liquidated damages (willful violations) – double unpaid wages
o Taxation of damages awards
o Attorney’s fees – prevailing party
o Instatement & reinstatement
o Retroactive Seniority

II. Theories of Discrimination and Analytical Paradigms


 Title 703(a) - It shall be an unlawful employment practice for an employer –
o (1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin; or
o (2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin.
 Two principal theories of discrimination –
o Disparate Treatment is when an employer intentionally treats some people less
favorably than others because of their race, color, sex, religion or national origin.
It is the most easily understood type of discrimination because it is on its face
discriminatory. Proof of discriminatory motive is critical, although in some
situations it can be inferred from the mere fact of differences in treatment.
o Disparate Impact is when an employer uses employment practices that are
facially neutral in their treatment of different groups but in fact have a
discriminatory affect and fall more harshly on one group than another and cannot
be justified by business necessity. Proof of discriminatory motive is not required.

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A. Disparate Treatment Theory
 The Basic Theory –
o Title 703(a) - It shall be an unlawful employment practice for an employer –
 (1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.
o Burden of Proof – Plaintiff bears ultimate burden of proving intentional
discrimination in a disparate treatment case
 Direct evidence
 Plaintiff: direct evidence of intentional discrimination
 Defendant – BFOQ
o No BFOQ for race
 Circumstantial (indirect) evidence – McDonnell Douglas
 1. Plaintiff:
o Member of a protected class
o Qualified
o Adverse employment action
o Facts that give inference of unlawful discrimination
 2. Defendant: Burden of production to articulate a non-
discriminatory reason
 3. Plaintiff: Burden of proof to show pretext and real reason was
discrimination
o McDonnell Douglas v. Green (1973) - refusal to hire based on race. Plaintiff
must allege:
 Member of a racial minority,
 applied and was qualified for an open position,
 was denied the job,
 position remained open and employer continued to accept applications
from persons of complainant’s qualifications
o Texas Dept of Community Affairs v. Burdine– Once employer has articulated a
non-discriminatory reason for its actions, prima facie case is rebutted; burden of
proof is on the plaintiff to show pretext.
 Mixed Motive Cases & Civil Rights Act of 1991
o A mixed motive case is where an employer’s decision was based on multiple
factors, at least one unlawful.
 No mixed motive in ADEA or retaliation
o Price Waterhouse v. Hopkins – The words of §703 (“because of an employee’s
sex etc.”) suggest Title VII prohibits decisions if discrimination on a forbidden
ground is a motivating factor.
 A female senior manager claiming gender discrimination was denied
partnership at her office due to “interpersonal skills” problems. Plaintiff
must show that the employer actually relied on her gender in making its
decision.
 Prima Facie Case for Mixed Motive:
 Plaintiff: burden of proof

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o employer relied on forbidden ground in making the
employment decision
 Defendant: burden of proof
o Same decision test - employer would have made the same
decision based solely on a permissible ground.
 An employer may not prevail in mixed motive cases by offering a
legitimate and sufficient reason for its decision if that reason did not
motivate it at the time of the decision.
o Desert Palace, Inc. v. Costa – holds direct evidence is not required in order to
obtain a mixed motive instruction. (rejects Justice O’Connor’s position that a
mixed motive evidentiary framework requires direct evidence)
o Congressional response: Civil Rights Act of 1991, §703(m) – “Except as
otherwise provided in this title, an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice, even
though other factors also motivated the practice.”
o Cat’s Paw Theory – When an unbiased decision maker is duped into making a
discriminatory decision by a prejudiced subordinate, the actual decision maker is
still liable for the discrimination (i.e., HR does the firing but takes
recommendations from a biased supervisor).
 Retaliation Cases –
o Title VII § 704 [§ 2000e-3]. (a) It shall be an unlawful employment practice
for an employer to discriminate against any of his employees or applicants for
employment, for an employment agency, or joint labor-management committee
controlling apprenticeship or other training or retraining, including on-the-job
training programs, to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge,
testified assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
o Prima Facie Case for Retaliation – Doesn’t apply when there is direct
evidence
 Plaintiff:
 Engaged in statutorily protected activity;
o Participation
o Opposition
 She suffered a materially adverse action at the hands of the
employer; and
 A causal link exists between the protected activity and the adverse
action.
 Defendant:
 Articulate a legitimate, nondiscriminatory reason for the adverse
action it took against the plaintiff.
 Plaintiff:
 Pretext and real reason was discrimination

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o If a mixed motive case, retaliation may not be a motivation unless employer can
show it still would have done the same thing absent discriminatory action. (Price
Waterhouse)
o The participation clause prohibits retaliation because an individual has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing to enforce laws prohibiting discrimination in employment.
 Covers filing of a charge with the EEOC or state agency.
 Protects employees and applicants from retaliation regardless of the
underlying merits of the claim.
o The opposition clause prohibits retaliation because an employee or applicant
opposed any practice made an unlawful employment practice.
 Federal courts have generally granted less protection for opposition than
participation.
o “Discrimination” means Adverse Action –
 Burlington Northern v. White –employer’s actions must be harmful or
injurious to the point that they could well dissuade a reasonable worker
from making or supporting a charge of discrimination.
 Opposed to 703(a), 704(a)’s anti-retaliation provision does not limit
discrimination to “compensation, terms, conditions, or privileges of
employment” but rather prohibits ‘an employer to discriminate against’ an
employee. Congress intended the anti-retaliation provision to prevent an
employer from interfering with an employee’s efforts to secure
enforcement of the Act’s basic guarantees. And since an employer may
take action that causes harm outside of the workplace, the anti-retaliation
clause is not limited to actions in the workplace.
o Clark County School District v. Breeden – If the conduct plaintiff that protests is
not prohibited conduct under Title VII, plaintiff is not covered under the
retaliation statute.
 Statistical Evidence & Pattern or Practice Cases –
o § 707(a) Whenever the Attorney General has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of resistance to the full
enjoyment of any of the rights secured by this subchapter, and that the pattern or
practice is of such a nature and is intended to deny the full exercise of the rights herein
described, the Attorney General may bring a civil action in the appropriate district court
of the United States by filing with it a complaint (1) signed by him (or in his absence the
Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice,
and (3) requesting such relief, including an application for a permanent or temporary
injunction, restraining order or other order against the person or persons responsible for
such pattern or practice, as he deems necessary to insure the full enjoyment of the rights
herein described.
o Pattern or practice cases address systemic problems.
o Involve the allegation that a large employer is systematically discriminating in
hiring or pay against minorities or women. The claim is made not on the basis of
overtly discriminatory qualifications – for example, that the employer has an
express rule against hiring women for particular jobs – but rather on the basis of
statistical analysis of the employer’s workforce, leading to an inference that
discrimination is going on because few minorities or women are hired or

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promoted, even though there is substantial interest in the jobs, or because of
blatant disparities in compensation as between minorities or women and non-
minority or male employees.
o Teamsters v. U.S. (1977)- Statistics are used to establish a prima facie case – a
rebuttable inference of discrimination. Anecdotal evidence helps bolster the
statistical evidence.
 Statistical evidence showed less than 1% of more prestigious job positions
were given to African Americans and Latinos.
 Long-lasting and gross disparity between composition of a workforce and
that of the general population may be significant
o Hazelwood School District v. U.S. (1977) – Gross statistical disparities between
employer’s workforce and available labor pool may constitute prima facie proof
of a pattern or practice of discrimination.
 Informal hiring process for teachers yielded a small percentage of black
teachers but plaintiffs do not give percentage of blacks in community that
are eligible to teach.
o Defenses to Pattern or Practice Discrimination -
 BFOQ
 Lack of interest defense – a group is significantly underrepresented
because members are not interested in the work involved so applications
commensurate with their presence in the relevant population group.
 Pre-Act discrimination
 Same Decision
 Rebut the inference of discriminatory intent

B. Disparate Impact Theory (unintentional – effective is discriminatory)


 §703(a)(2) It shall be an unlawful employment practice for an employer— to limit, segregate, or
classify his employees or applicants for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color, religion, sex, or national
origin.
 §703(a)(2) disparate impact theory applies to discrimination that may be unintentional
but has an effect of discrimination.
 Disparate impact theory not adopted until 1971 in Griggs.
 Generally – Employers cannot adopt practices that have a significant disparate impact on
groups unless practice is job related and of business necessity. After plaintiff establishes
prima facie case, the burden shifts to the employer to show business necessity. If shown,
plaintiff may still prevail if he shows other practices, without a similar undesirable racial
effect, would also serve the employer’s legitimate interests, i.e., pretext exists.
 Griggs v. Duke Power Co. (1971) - held employers cannot require a high school
education or passing of a standardized general intelligence test as a condition of
employment when neither standard is shown to relate to successful job performance;
requirements operate to disqualify blacks at a higher rate than whites; and the jobs in
question have been filled only by white employees.
 §703(h) - nor shall it be an unlawful employment practice for an employer to give and to
act upon the results of any professionally developed ability test provided that such test,

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its administration or action upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or national origin.
o Employers must show that the test is justified as a business necessity and is
related to the job.
 Prima Facie Case for Disprate Impact -
o Plaintiff – must show discriminatory impact of facially neutral policy
o Defendant
 challenging the plaintiff’s statistical evidence as not showing a significant
disparate impact;
 job related and consistent with business necessity
 practice is a professionally developed test
 bona fide seniority system
 bona fide merit and piecework system
o Plaintiff
 other tests or selection devices, without a similarly undesirable racial
effect, would also serve the employer’s legitimate interest in efficient and
trustworthy workmanship
 Kinds of Test validation -
o content validation – tests that measure the actual skills or knowledge needed to
perform the job
o criterion validation – tests that have been shown to correlate scores with success
on the job
o construct validation – a blend of content and criterion validation
 The 80% (or 4/5) Rule - Show that employees in protected class are hired (or pass a test
or meet some other qualification) at less than 80% of the rate of the most successful
group. If employer gives a test on which 75% of white employees and 25% of black
employees are successful, the test is potentially unlawful because the resulting fraction is
1/3, and you need at least 4/5 to avoid raising an inference of disparate impact.
 The Bottom Line Defense – Just because the bottom line result achieved is racial
balance does not protect an employer from liability if he nonetheless used a
discriminatory process. (Connecticut v. Teal)
 §703(j) - Nothing contained in this subchapter shall be interpreted to require any
employer…to grant preferential treatment to any individual or to any group because of
the race, color, religion, sex, or national origin of such individual or group on account of
an imbalance which may exist with respect to the total number or percentage of persons
of any race, color, religion, sex, or national origin employed by any employer…in
comparison with the total number or percentage of persons of such race, color, religion,
sex, or national origin in any community, State, section, or other area, or in the available
work force in any community, State, section, or other area.
o Employers are not required to achieve a “balanced” workforce by giving
“preferences” to individuals because of their race, color, religion, sex, or national
original, which means failure to have a balanced workforce is not by itself a
violation of the statute
 Subjective Employment Criteria –
o Watson v. Fortworth Bank & Trust Co. (1988) - holds the Griggs disparate
impact analysis of disparate impact applies under Title VII to subjective criteria

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in determining whether an employer’s practice of committing promotion
decisions to the subjective discretion of supervisory employees has led to illegal
discrimination.
 The plaintiff’s burden in establishing a prima facie case must go beyond
statistical disparities and instead must identify the specific employment
practice that is challenged.
 Once the practice has been identified, causation must be proved, i.e., the
plaintiff must show statistical evidence of a kind and degree sufficient to
show that the practice in question has caused the exclusion of applicants
because of their membership in a protected group. Statistical disparities
must be sufficiently substantial that they raise an inference of causation.
 When a plaintiff has made a prima facie case of disparate impact, and
when the defendant has meet its burden of producing evidence that its
practices are based on legitimate business reasons, the plaintiff must show
that other tests or selection devices, without a similarly undesirable
racial effect, would also serve the employer’s legitimate interest in
efficient and trustworthy workmanship.
 Wards Cove Packing Co. v. Atonio (1988) – adopts a more rigorous application of the
Griggs standard in disparate impact theory cases.
o In determining whether there was racially discriminatory employment practices
present in an Alaskan cannery, the Court held statistics may be used but the
comparison must be between the racial composition of the persons holding the
at-issue jobs and the racial composition of the qualified.
o Racial imbalance does not, without more, establish a prima facie case of disparate
impact as long as there are no barriers or practices deterring qualified nonwhites
from applying from non cannery positions.
o (Causation issue) Just as an employer cannot escape liability under Title VII by
demonstrating that at the bottom line his work force is racially balanced, a Title
VII plaintiff does not make out a case of disparate impact simply by showing that
at the bottom line, there is a racial imbalance.
o Wards Cove made a disparate impact claim difficult by-
 Exacting statistical standard for the prima facie case
 Requirement to show how each challenged practice causes disparate
impact – not enough to show disparity
 Defendant not required to prove that a practice that has a disparate impact
is “necessary,” merely to provide evidence that it significantly serves a
legitimate business goal
 Burden of proof on Defendant to show that the practice does not
significantly serve a legitimate business goal
 Alternatively – burden on plaintiff to show that a less discriminatory
practice could achieve the same goal just as effectively without more
expense
 Civil Rights Act of 1991 –
o §703 (k)(1)(A) An unlawful employment practice based on disparate impact is
established under this title only if—
 (i) a complaining party demonstrates that a respondent uses a particular
employment practice that causes a disparate impact on the basis of race, color,

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religion, sex, or national origin and the respondent fails to demonstrate that the
challenged practice is job related for the position in question and consistent
with business necessity; or
 (ii) 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.
o §703(k)(1)(B)
 (i) With respect to demonstrating that a particular employment practice causes a
disparate impact as described in subparagraph (A)(i), the complaining party shall
demonstrate that each particular challenged employment practice causes a
disparate impact, except that if the complaining party can demonstrate to the
court that the elements of a respondent's decision-making process are not
capable of separation for analysis, the decision-making process may be analyzed
as one employment practice.
 (ii) If the respondent demonstrates that a specific employment practice does not
cause the disparate impact, the respondent shall not be required to demonstrate
that such practice is required by business necessity.
 Business Necessity –
o Lanning v. Southeastern Pennsylvania Transit Authority (I) - Business
necessity means employer must show that its practice is “necessary” – which
means that the test cut-off is set to measure minimum qualifications necessary
for successful performance of the job.
o Ricci v. DeStefano – Employer may not voluntarily reject the results of a
professionally developed test used in a promotion procedure unless it has a
strong basis in evidence for believing that use of test results would violate Title
VII.
 Promotional testing for firemen yielded the highest results for whites.
The City tried to throw out the results in order to avoid a disparate impact
claim. White firemen brought suit.
 Setting aside the test result because of the statistical disparity based on
race is race-based decision making – it is an adverse employment action
against white applicants for promotion on account of their race – thus
issue is whether the purpose to avoid disparate-impact liability is a valid
defense.
 No strong basis in evidence – “no genuine dispute that the examinations
were job-related and consistent with business necessity. Test was devised
by professional consultant after “painstaking analysis” of the positions, in
which minorities were “overrepresented”

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Part III. Specific Categories of Discrimination

A. Sex Discrimination

§ 703 [§ 2000e-2]. (a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to


discriminate against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color, religion, sex, or national origin.
________________________________________________________________________________
(m) Except as otherwise provided in this title, an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also motivated the
practice.

 Theories of Sex Discrimination -


o The “equality “or “sameness” theory – describes women as substantially similar
to men in most respects germane to employment. Discrimination is the erroneous
failure to recognize this similarity, resulting in treatment of women as inferior,
unable, or otherwise different from the paradigmatic male denizens of the
workplace.
o The “difference” theory says discrimination results from the failure to recognize
these differences, to anticipate the devaluative light in which employers might
view them, or to accommodate them in structuring the demands of workplaces.
o The “sex role spillover” theory characterizes discrimination as the devaluative
sexualization or derogation of women in the workplace. Harassment characterizes
women primarily as sexual objects, or as objects of sex-based derision, rather than
as competent workers.
o City of Los Angeles Dept. of Water & Power v. Manhart –the existence or
nonexistence of discrimination is not to be determined by comparison of class
characteristics but rather individual characteristics.
 the dept. required women employees to make larger contributions to its
pension fund than its male employees because women live longer.
 Therefore, despite the generalization, many of those individuals will not
live as long as the average man yet will receive smaller compensation.
 The Court held fairness is a policy matter but cannot be used to
discriminate based on protected classifications. Regardless, the basic
policy of 703 focuses on fairness to individuals rather than classes.
o Price Waterhouse v. Hopkins – Once a plaintiff in a Title VII case shows that
gender played a motivating part in an employment decision, the defendant may
avoid liability only by proving that it would have made the same decision even if
it had not allowed gender to play such a role.

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 Candidate for partnership in accounting firm recommended by partners in
her office based on stellar performance at winning new business and
getting job done. Board evaluating candidates voted to put her on “hold”
after reviewing comments submitted by partners, some of which reflected
settled views on how women were supposed to present themselves in a
workplace. Concerns expressed about her “people” skills in relating to
subordinates. Expert testimony found some of the comments submitted to
reflect “sexual stereotypes”.
 Plaintiff does not have to prove that personnel decision was made
“solely” due to sex; as long as sex played a role, statute was violated
unless sex is a BFOQ.
o Oncale v. Sundowner Offshore Services, Inc. – workplace harassment can
violate Title VII’s prohibition against discrimination because of sex when the
harasser and the harassed employee are of the same sex.
 A male employee was physically assaulted in a sexual manner and
threatened with rape by respondents.
 The Court rejects any conclusive presumption that an employer will not
discriminate against members of his own classification.
 With “hostile environment” claims, there is no justification under Title VII
to exclude same-sex harassment claims.
 Title VII should extend to sexual harassment of any kind.
 BFOQ Defense/Appearance Requirements –
o Section 703 (e) Notwithstanding any other provision of this subchapter, (1) it
shall not be an unlawful employment practice for an employer to hire and employ
employees, for an employment agency to classify, or refer for employment any
individual, for a labor organization to classify its membership or to classify or
refer for employment any individual, or for an employer, labor organization, or
joint labor-management committee controlling apprenticeship or other training or
retraining programs to admit or employ any individual in any such program, on
the basis of his religion, sex, or national origin in those certain instances where
religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or
enterprise.
o BFOQs are a defense to disparate treatment claims only!
 BFOQs do not apply to race/color classifications.
o Dothard v. Rawlinson (1977) – safety justification for excluding women from
correctional officer assignments to all-male prison.
 Essence of the job test – If a woman would be able to perform the essence
of the job, BFOQ would not apply.
 Court says a woman could not perform the job because women in an all-
male max security prison would attract sexual attacks that could disturb
order in the prison, resulting to injuries to inmates and co-workers.
o UAW v. Johnson Controls - Battery manufacturer limits women with capacity to
have children due to lead exposure that could possibly hurt fetus (fetus protection
policy). Female employees must demonstrate they cannot have children in order
to work.

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 JC felt societal obligations to future generations and wanted to avoid
liability.
 This is a disparate treatment case (only applies to women) so may use
BFOQ as a defense.
 Can be concerned about third parties but BFOQ is not justified.
 BFOQ does not apply because –
 Pregnancy or fertility does not affect women’s ability to perform
job.
 In regard to tort liability, if JC complies with toxic regulations and
warns employees, it will not be found negligent.
 Ability to become pregnant had no effect on their ability to
perform the job.
o Jespersen v. Harrah’s – specific styling regulations for employees upheld. The
requirement that women must wear makeup is not discriminatory because the
policies are not unduly burdensome on females than males.
 The Equal Burden test - Burden on plaintiff to show that the grooming
rule viewed as a whole places a much greater burden on women than men.
 Pregnancy & Family Responsibility –
o Section 701 (k) The terms "because of sex" or "on the basis of sex" include, but
are not limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, 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 but similar in their ability or inability to work, and nothing in section
2000e-2(h) of this title shall be interpreted to permit otherwise.
o The Pregnancy Discrimination Act – Title VII amendment - “Because of or on
the basis of pregnancy, childbirth or related medical conditions, and women
affected by pregnancy, children or related medical conditions shall be treated the
same for all employment-related purposes as other persons not so affected but
similar in their ability or inability to work.”
o It is discriminatory to treat pregnancy-related conditions less favorably than other
medical conditions. Therefore, male employees are entitled to dependency
coverage for their pregnant wives.

B. Sexual Orientation & Gender Identity Discrimination


 Sex v. Gender – Title VII covers sex discrimination (biological differences) but also
protects gender stereotyping (gender presentation; Price)
 Sexual Orientation – a person’s attraction to another person
o In the Employment Non-Discrimination Act, sexual orientation is homosexual,
heterosexual, or bisexual
 Gender Identity – one’s gender-related identity, appearance etc. without regard to
designated sex at birth.
 Sexual orientation claims are presently litigated under constitutional claims and executive
orders.
 Title VII does not ban discrimination based on sexual orientation.
 Alternate Sources of Protection Against Discrimination -

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o Constitutional claims under the 5th and 14th amendment for public employees
State Constitutions
o Corporate Policies
o Collective Bargaining Agreements

C. Harassment as Discrimination -
 EEOC Guidelines - 29 CFR § 1604.11 Sexual harassment -
o (a) Harassment on the basis of sex is a violation of section 703 of title VII.1
Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly or implicitly a term or
condition of an individual's employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating,
hostile, or offensive working environment.
o (b) In determining whether alleged conduct constitutes sexual harassment, the
Commission will look at the record as a whole and at the totality of the
circumstances, such as the nature of the sexual advances and the context in which
the alleged incidents occurred. The determination of the legality of a particular
action will be made from the facts, on a case by case basis.
 Rogers v. EEOC (5th Circuit 1971) – First appellate recognition that “a working
environment heavily charged with discrimination may constitute an unlawful practice.” If
an employer adopts a discriminatory practical attitude it has a negative impact. Title VII
goes beyond tangible advancements.
 Quid Pro Quo Theory – a supervisor implicitly or explicitly conditions favorable
treatment on surrender to sexual invitations
 Hostile Environment Theory – sexual harassment as a hostile, persistent condition of
the work atmosphere to the employee because of her or his sex.
 Quo Pro Quo–
o Prima Facie Elements –
 Sex demanded in exchange for something
 Made under circumstances where employee believed conduct was
necessary in order to avoid negative consequence or be conferred a
benefit.
 Sexual desire need not be a motive of the conduct.
 Victim has to be selected because of sex to fit under Title VII.
 Hostile Environment –
o Prima Facie Elements –
 Plaintiff:
 Subjected to unwelcome sexual harassment
 Harassment was “because of” the sex of the plaintiff
 Harassment was sufficiently severe or pervasive to affect a term,
condition, or privilege of employment, when viewed from the
perspective of a reasonable person in the position of the plaintiff,
 The conduct was experienced as abusive or hostile by the plaintiff,

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 Doctrine of respondeat superior applies to make employer liable.
o Meritor Savings Bank v. Vinson – found respondent was victim of sexual
harassment in a psychological (opposed to economic) nature, despite “voluntary”
sexual intercourse since it was nonetheless unwelcome.
 Title VII extends to the emotional and psychological effects of a hostile
work environment.
 The correct inquiry is whether the sexual advances were unwelcome, not
whether participation was voluntary.
o Harris v. Forklift Systems, Inc. (1993) - A hostile environment exists if the
environment may reasonably be believed and is actually believed to be hostile and
abusive towards women.
 Charles Hardy, president of company. Teresa Harris, rental manager.
Hardy made sexually-related insulting comments about Harris, insinuated
in front of others that they might have a sexual relationship, threw objects
in front of Harris and other women and demanded that they pick them up,
demanded that Harris and other women retrieve items from his front pants
pocket, made sexual innuendos about their clothing. After Harris
complained about his conduct, he reformed briefly but soon relapsed to
similar conduct. Finally Harris could take it no more, quit, and sued under
Title VII.
 Factors to examine - frequency of discriminatory conduct; severity;
whether it is physically threatening or humiliating or a mere offensive
utterance; does it unreasonably interfere with employee’s work
performance. Effect on employee’s psychological well-being is relevant
on question whether employee found the environment abusive.
o Alternative Theories -
 1. Intentional Torts – some states may find this preempted by state civil
rights law, but it may remain a viable theory where not preempted.
 2. Breach of implied covenant of good faith and fair dealing?
 3. Negligence claims usually barred by Workers Compensation Laws,
except perhaps for gross negligence
 4. For public employees, equal protection claims
 Employer Liability –
o Burington Industries v. Ellerth – an employee who refuses the unwelcoming and
threatening sexual advances of a supervisor, yet suffers no adverse, tangible job
consequences, can recover against the employer but the employer has the
opportunity to assert and prove the affirmative defense of liability.
 Cases based on threats which are carried out are referred to often as
quid pro quo cases, distinct from bothersome attentions or sexual
remarks that are sufficiently severe or pervasive to create a hostile
work environment.
 If an employer demands sexual favors from an employee in return for a
job benefit (quid pro quo cases), discrimination with respect to terms or
conditions of employment is explicit.
 An employer is vicariously liable if -

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 When a discriminatory act results in a tangible employment
action; a significant change in employment status or benefits.
(hiring, firing, denial of a raise etc). This action could not have
been inflicted absent the agency relation. Only a supervisor or
other person acting with authority may inflict such an injury. The
act becomes the act of the employer. No affirmative defenses
available.
 When the act does not result in a tangible employment action,
a defending employer may raise an affirmative defense to
liability or damages by preponderance of the evidence. The
defense comprises two elements –
o 1) that the employer exercised reasonable care to prevent
and correctly prompt any sexually harassing behavior, and
o 2) the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.
o Vicarious liability for workplace sexual harassment can be established only where
the harasser was a “supervisor with immediate (or successively higher) authority
over the employee.”
o Harassment by a supervisor who does not meet this definition will generally be
treated as co-worker harassment, and the plaintiff will have to demonstrate
that the employer was negligent in permitting the harassment to continue after
actual or constructive notice of the conduct.
o “Paramour preference” claims based on one employee’s allegations that a
supervisor has given preferential treatment to another employee with whom he
has a sexual relationship are outside Title VII.
o Individual liability of harassers is not under Title VII – general view of federal
courts is that Title VII only authorizes remedies against the employer, not
individual supervisors.
 State and local laws – some provide authority to impose liability on
individual harassers, depending on the nature of the case.
o Pennsylvania State Police v. Suders –
 To establish a constructive discharge, the plaintiff must make a showing
that the abusive working environment became so intolerable that her
resignation qualified as a fitting response.
 An employer may defend against a claim by showing both that it had
installed a readily accessible and effective policy for reporting and
resolving complaints of sexual harassment and that the plaintiff
unreasonably failed to avail herself of that preventive or remedial
apparatus. This affirmative defense is not available if the employee quits
in reasonable response to an employer-sanctioned adverse action officially
changing her employment status or situation.
 Since precipitating act may not be “an official act of the company,” it is
appropriate to allow Ellerth/Faragher defense in constructive discharge
cases unless employee shows that her resignation was triggered by an
“official act of the company.”

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 Harassment by Co-Workers and Nonemployees - Proof of employer negligence will
continue to be required in order to establish employer liability in Title VII cases dealing
with harassment by nonsupervisory employees. An employer is negligent if he knew or
should have known about the conduct and failed to stop it.
o If the employer acts promptly upon notice of a problem and takes effective steps
to deal with it, the employer escapes liability under Title VII. (i.e., although the
employee experienced harassment until the employer acted to end it, the employer
bears no liability for any harassment that occurred before it learned or should
have learned of it and had a reasonable opportunity to investigate and take action)
 Harassment Because of Race - same standard as in sexual harassment. Must be
unwelcoming and pervasive objectively and subjectively. (Harris v. International Paper
Co.)
o (1) unwelcome comments, jokes, acts and other verbal or physical conduct of a
racial nature in the workplace; and
o (2) the existence of any of the three following circumstances:
 (i) submission to such conduct is implicitly or explicitly made a term or
condition of an individual's employment; or,
 (ii) submission to or rejection of such conduct by an individual is used as a
basis for employment decisions affecting such individual ("quid pro quo"
harassment); or,
 (iii) such conduct has the purpose or effect of substantially interfering with
an individual's work performance or creating an intimidating, hostile, or
offensive working environment ("hostile environment" harassment); and
o (3) the employer, or its agents or supervisory employees, knows or should have
known of the conduct.

D. Discrimination Because of Religious Practice or Belief


 1st Amendment provides – “Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof.”
 Title VII §701(j) – The term “religion” includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s
business.”
 EEOC Guidelines – Employers have an obligation to accommodate religious practices of
employees except if it poses an inconvenience.
 The Religious Entity Exemptions –
o Title VII provides two broad exemptions for religious employers - §702(a) and
§703(e)(2).
o §702(a) – Title VII does not apply to a religious corporation, association,
educational institution or society with respect to the employment of individuals of
a particular religion to perform work connected with the carrying on by such
corporation, association, educational institution, or society of its activities.
o §703(e)(2) – it shall not be unlawful employment practice for a school, college,
university, or other educational institution or institution of learning to hire and
employ employees of particular religion if such institution is, in whole or

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substantial part, owned, supported, controlled, or managed by a particular religion
or by a particular religious corporation, association, or society, or if the
curriculum of such institution is directed toward the propagation of a particular
religion.
o The two provisions overlap so religious schools typically invoke both provisions.
o The Ministerial Exception (5th Cir) – when sex and race discrimination claims
are brought against religious employers, the Free Exercise Clause would preclude
judicial review of decisions by religious entities concerning the terms and
conditions of employment of their ministers because the relationship between an
organized church and its ministers is its “lifeblood.”
 Establishing a Prima Facie Case –
o Plaintiff: if proven, employer must provide reasonable accommodation
 the employee had a bona fide religious belief that conflicted with an
employment requirement;
 that employee informed employer of this belief;
 and that employee was disciplined for failing to comply with the
conflicting requirement of employment.
o Defendant:
 Unable to reasonably accommodate to an employee’s religious observance
or practice without undue hardship on the conduct of the employer’s
business.
o EEOC v. Abercrombie & Fitch Stores, Inc. – Employee was required to wear
short skirts and revealing clothing though it was against her religion. Employer
reasonably accommodated employee by allowing different type of dress but
eventually had to discharge her for noncompliance.
 Accommodation Without Undue Hardship -
o Two-step analysis:
 1. Has the employer attempted to make a reasonable accommodation?
 2. If yes, can the accommodation be made without undue hardship?
o §703 (h) Notwithstanding any other provision of this subchapter, it shall not be an
unlawful employment practice for an employer to apply different standards of
compensation, or different terms, conditions, or privileges of employment
pursuant to a bona fide seniority or merit system, . . . , provided that such
differences are not the result of an intention to discriminate because of race, color,
religion, sex, or national origin . . .
F. National Origin Discrimination
 Title VII – unlawful to discriminate . . . because of “national origin” unless it is for a
bona fide occupational qualification.
G. Age Discrimination
 The Age Discrimination in Employment Act of 1967 (ADEA) protects workers who
are at least 40 years old against discrimination because of their age.
 §621(a) “It shall be unlawful for an employer to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of such
individual’s age.”

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 § 631(a) The prohibitions in this chapter shall be limited to individuals who are at least
40 years of age.
 Disparate Treatment –
o *Note: Supreme Court has yet to rule definitively on the method of pleading a
prima facie – Most lower courts have adapted the McDonnell-Douglas
methodology for cases where the plaintiff lacks “smoking gun” direct evidence of
age discrimination.*
o ADEA § 623 (a) It shall be unlawful for an employer— (1) to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age;
o Prima Facie Case:
 Plaintiff:
 He was within the age group protected under the ADEA
 He suffered an adverse employment action or disposition
 He was qualified for the position either lost or not gained and
 A person younger than the plaintiff (substantially younger but need
not be under 40) was selected for the position over the plaintiff.
 Defendant: burden of production
 Reasonable factor other than age
 Plaintiff:
 Pretext and real reason discrimination
o Hazen Paper Co. v. Biggins – may use an employee’s seniority and proximity to
retirement and vesting pension benefits as a factor because these are analytically
distinct from age.
 P was discharged right before his retirement benefits vested. His pension
was based on years of service and thus related to age. Firing an employee
in order to avoid pension benefits is still unlawful but not under ADEA.
 The essence of ADEA is when the employer is motivated by believing an
employee cannot perform his job at a certain age. Age may not be relied
upon as a proxy for an employee’s other characteristics, but when a
decision is based entirely on a factor other than age, ADEA is not
implicated, even if that factor may correlate with age.
o Mixed Motive Cases – cannot bring mixed motive cases under ADEA because
age needs to be a determinative (not merely motivating) factor.
 Where evidence shows that the discharge was motivated by more than one
reason (one being age, the other being a factor other than age), there is no
burden on the employer to show that it would have taken the action based
solely on the other factor. Burden is on plaintiff to show that age was the
“but for” cause of the action. (Gross v. FBL Financial Services)
o Bona Fide Occupational Qualification - (f) It shall not be unlawful for an
employer, employment agency, or labor organization— (1) to take any action
otherwise prohibited under subsections (a), (b), (c), or (e) of this section where
age is a bona fide occupational qualification reasonably necessary to the
normal operation of the particular business, or where the differentiation is
based on reasonable factors other than age…

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 Two-pronged test:
 Age-related job qualification is reasonably necessary to the
essence of the employer’s business and
 Employer is compelled to rely on age as a proxy for safety-
related qualifications because of the difficulty of deciding risk
factors on an individual basis. Employer must show a factual basis
for believing that all or substantially all persons older than the age
limit would be unable to perform the job safely and efficiently.
 Disparate Impact -
o Disparate impact claims can be asserted under ADEA
o Plaintiff has burden to identify the particular practice or policy causing the
disparate impact.
o If Plaintiff meets its proof obligations under Ward’s Cove to establish a prima
facie case of disparate impact, the burden shifts to Defendant to justify its policy
under the RFOA defense, as to which Defendant has burden of proof.
o Smith v. City of Jackson – recognizes disparate impact theory under ADEA.
 The City of Jackson, seeking to enhance recruitment for its police and
public safety positions, adopted salary increases that raised the pay of
lower-ranked officers, since they were most concerned with attracting
entry level employees with competitive wages. The policy had the effect
of giving bigger percentage increases to younger employees than older
employees, as most of the higher-ranked officers were over 40.
 Since Congress used the same language in the principal operative
provisions of Title VII and ADEA, ADEA should receive the same
interpretation as the language of Title VII, which has been construed in (2)
of the relevant provision to give a disparate impact cause of action.
o The “reasonable factor other than age” provision tends to confirm this reading,
since it modifies “factor” with “reasonable.” Thus a factor “other than age” that
causes a disparate impact would be unlawful unless it is “reasonable.”
o This means that the burden of proof on the employer in an ADEA disparate
impact case is not to prove that the challenged policy is consistent with business
necessity but rather that it is reasonable.
o Wards Cove still applies in that the particular practice must be isolated to show
disparate impact. (even though Title VII ’91 Amendment overrules Wards Cove)
o Meacham v. Knolls Atom Power Lab – RFOA is an affirmative defense. When
prima facie case is established, the burden goes to employer to use reasonable
factors other than age to justify.
 30 out of 31 employees laid off in the RIF were in the ADEA protected
class, and 28 of them brought suit on both disparate treatment and
disparate impact theories.
 Disparate impact theory subjected the result to statistical analysis,
asserting that result skewed by age could not occur by chance and
subjective factors used by managers to rate employees for purpose of
layoff selection correlated most highly with the age of those selected for
layoff.

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 When employers have to lay off for economic reasons, age cannot be a
factor but may use seniority because those are the employees that cost
more. Factors looked at are performance, flexibility and skills.
o Waivers - If an employer is sued and wishes to defend based on a waiver
executed by the employee, the burden is on the employer to prove that every
element of the OWBPA (Sec. 626) was complied with – the waiver is seen as an
affirmative defense. Oubre v. Entergy Operations (1998)

H. Disability Discrimination
 Americans with Disabilities Act –
o §501 – Federal government agencies to take affirmative steps to employ persons
with disabilities
o §503 – Private companies and state and local entities with federal government
contracts worth at least $100,000 to take affirmative steps to employ persons with
disabilities
o §504 – Any entity receiving federal financial assistance and any program or
activity conducted by a federal agency may not discriminate against qualified
persons with disabilities.
 “Disability” –
o a physical or mental impairment that substantially limits one or more of the
major life activities of such individuals;
o a record of such impairment; or
o being regarded as having such an impairment.
 Substantially limited means to a large degree or considerable.
o without regard to the ameliorative effects of mitigating measures except for
ordinary eyeglasses and contact lenses.
 Major life activities means important – of central importance to daily life.
o an impairment need only substantially limit one major life activity for the
individual to be considered to have a disability. Impairments that are episodic or
in remission count if they would substantially limit a major life activity when
active.
 U.S. Airways v. Barnett – A reasonable accommodation is one that does not cause an
undue hardship. Unlike Title VII, ADA requires employer to spend money to
accommodate, including reassignment to vacant position.
o Plaintiff suffered back injury while working so bid on less physically demanding
job. Job was not available to him because of seniority system.
o It is reasonably to use neutral seniority system.
o If seniority system is run in a way that gives exceptions, it would be reasonable to
accommodate.
o Should not sacrifice other employees for reasonable accommodations. Mandating
employers to make exceptions to seniority rules for ADA accommodations would
undermine employees’ expectations, and could prejudice rights of non-disabled
employees.
 Huber v. Wal-Mart (8th Cir.)– A company cannot be required to give preference to a
disabled person less qualified.

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o Huber worked as a grocery order filler at $13, until an injury to her arm disabled
her from performing that job. She sought reassignment to a router position that
she was capable of performing. Wal-Mart said she would have to apply for that
position, under a process where the position goes to the best qualified applicant.
Wal-Mart filled the position with another applicant who, it is stipulated, was
better qualified than Huber.
 Sutton v. United Airlines – A disability only exists where an impairment substantially
limits actually – not could or would.
o twin airline pilots with vision problems were not considered disabled therefore
not protected under the ADA.
o Must look at plaintiffs in their corrective state to see if they are disabled.
o If impairment can be corrected, not disabled under ADA.
o If disqualified for a particular job, you are not substantially limited in major life
activity of working in other jobs.
o Looks to protect only those significantly impaired.
 Toyota Motor v. Williams – developed carpel tunnel on the job – claimed she was
disabled because she was substantially limited in major life activities. Court ruled against
her by giving major life activities a strict interpretation.
 Reasonable Accommodations –
o After proving disability, must show one is qualified – an individual who, with
our without reasonable accommodation, can perform the essential function
of the employment position.
o Direct Threat defense – Qualification standards may include a requirement that
an individual shall not pose a direct threat to the health or safety of others in the
workplace.
o Vande Zande v. Wisconsin Department of Administration (7th Cir. 1995) -
 Employee had a clerical/Secretarial/administrative job in the Housing
Department and was a paraplegic.
 Physical workplace accommodations were granted by employer. She
wanted sinks in kitchenette facilities in new office building to be low
enough to be accessible to her. Employer refused, pointing out she could
use sinks in bathrooms, which were designed to be accessible. She argued
this would stigmatize her for having to use different sink from other
employees. Her condition required her to be at home for an 8-week period.
She asked for the employer to provide her with a home desk-top computer
that would make it possible for her to do her work from home. Employer
rejected this – she already had a laptop at home and employer did not have
enough work for her to do at home to occupy her full-time for 8 weeks.
Employer said she should use paid sick leave or vacation time to cover the
home time when she had no paid work to do.
 Cost is relevant; the issue in evaluating whether an accommodation is
reasonable includes both whether it is efficacious (i.e., would make it
possible for the employee to perform the essential functions of the job)
and also whether it is cost-justified. Cost should not be disproportionate to
the benefit. Undue hardship is also focused on cost issues, but the issue
there is whether an accommodation that may be reasonable viewed in the

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abstract is unreasonable because of its impact on the employer. Under the
undue hardship analysis, the question of cost/benefit is relevant, but also
the question of economic impact on the employer apart from this.

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