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Employment Discrimination

Employment Discrimination

I. Policy Bases for Antidiscrimination Law


A. Are Antidiscrimination Laws Necessary to Eliminate Discrimination- Epstein
1. Epstein (says market will correct)
B. Why Prohibit Discrimination- Epstein
1. Epstein
2. Williams, Alchemy of Race and Rights
C. Costs and Benefits for Prohibiting Discrimination
1. Weighing Economic Costs and Benefits- Benjamin
A. Oppenheimer, Understanding Affirmative Action
2. Weighing Noneconomic Costs and Benefits

II. Concept of Discrimination Under Title VII, ADEA, and 1981

Topic Key Points


ADEA Section 4
(a) It shall be unlawful for an ER- (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; (2)
to limit, segregate, or classify his EEs in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an EE, because of such individual's age; or (3) to reduce the wage rate of
any EE in order to comply with this chapter.
42 U.S.C. § 1981. Equal rights under the law
Release date: 2005-02-25
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under
color of State law.

A. Individual Disaparate Treatment Law

1. Intro

2. Meaning of Discriminatory Intent

Slack v. Havens Case


Brief
FACTS:
 action brought by 4 black women who allege they were discriminatorily discharged, due to their race, in violation of C.R.A.
of 1964 (42 USC §2000e-2(a)(1)).
 3 Ps were working in bonding and coating dept of D w/ a white woman Sharon Murphy when their supervisor (Mr.
 Pohasky) told them they would be clean the dept the next day.
 the 3 Ps complained that such cleanup was not w/in their job description and it was hard and dangerous.
1
s
 supervisor agreed and said he would check to see if they had to do it.
 next day Mr. P sent Sharon to work in another dept and called 4th P in to help other 3 Ps w/ cleanup.
 Ps wanted to know why Sharon was excused from cleanup since she had low seniority and Mr. P had no answer.. When they
protested cleanup, Mr. P said they could do the work or else. Mr. P also said at some point "colored people should stay in
 their places."
 The Ps were taken to office of the general supervisor where they were fired.
 On the way to general supervisor's ofc Mr. P said "colored folks are hired to clean b/c they clean better."
 after being fired, next day Ps were offered jobs back if they cleaned. all rejected offer.
ISSUE: Was the termination of the Ps unlawful discrimination against them b/c of their race?
RULE:
When a supervisor demands that one race perform certain duties that he does not subject members of other races to perform and
his supervisors allow this he, and therefore the company, have violated CRA and are liable for such violations.
APPLICATION:
 D is an "ER" under Title VII
 Ps argue is discrimination and proof based on:
1) no explanation why Sharon, white co-worker, excused from cleanup;
2) fact that 1 P was called back to the dept for cleanup purposes;
3) evidence of D's discriminatory motivation:
a) stmts made by Mr. P
 D argues:
1) not discrimination, but merely a dispute as to Ps job classification.
a) In support of this argument are the discussions b/w D and Ps about their duties to clean.
2) D says Mr. Ps statements and his state of mind are immaterial and not the reason for Ps termination.
- Ct says Mr. Ps discriminatory conduct = Ds conduct b/c:
1) 42 USC §200e(b) includes "any agent" of an ER as w/in the defn of ER- so Mr. P is an "ER;
2) causal relationship b/w Mr. P's discriminatory conduct and the Ps being fired- had he not required them to clean or else
they would still be working;
3) by backing up Mr. P's ultimatum the D ratified his discriminatory conduct and must be held liable.
CONCLUSION:
Ds conduct amounted to an unlawful employment practice prohibited by C.R.A. (42 USC §200e-2(a)(1)).

Hazen Paper Co. v. Biggins

Case Brief
PHx: P (Biggins) sued D claiming he was discharged in violation of ADEA and ERISA. Jury trial. Verdict for P. Dist ct denied
D's motion for jdgmt
FACTS:
ISSUE:
Whether the jury verdict was supportable: should judgment as a matter of law (judgment n.o.v.) have been granted on the ADEA
claim based on disparate treatment b/c no reasonable jury could have inferred age discrimination in light of the proof offered?
(burden of proof = preponderance of evidence that age motivating factor)
RULE:
a) There is disparate treatment under the ADEA when the factor motivating the ER the EE's age.
b)The "intent to discriminate" is critical to a disparate treatment violation.
[ 2 kinds of disparate treatment cases: (1) ER may have a formal, facially discriminatory policy requiring adverse treatment
of EEs w/ a protected trait; or (2) ER may have been motivated by a protected trait on an ad hoc, informal basis.]
Policy reasoning for ADEA: The essence of age discrimination is adverse action taken b/c an ER believes that productivity and
competence decline w/ old age. So ADEA formed to protect older workers who were being deprived of their employment based
on inaccurate and stigmatized stereotypes.
APPLICATION:
 in a disparate treatment case like this, liability depends on on whether the protected trait (under ADEA age) actually
motivated the ER's decision.
 when age plays a determinative part in the ERs decisionmaking process, a disparate treatment claim may succeed.
 ct says age and yrs of service are distinct
CONCLUSION:
Remanded to reconsider whther the jury had sufficient evidece to find an ADEA violation.

3. Circumstantial Evidence of Discriminatory Intent


2
A. Plaintiff's Prima Facie Case

McDonnel Douglas Corp. v. Green

Case Brief
PHx:
 DCt: MD's refusal to rehire G was based on solely on his participation in the stall in and not on his legitimate civ rts activities.
 appeal, 8th cir, affirmed unlawful protests were not protected acts under §704(a), but reversed dismissal of G's
§703(a)(1) claim relating to racially discriminating hiring practices.
FACTS:
 McDonnell Douglas Corp (MD) employs over 30,000 people.
 Green (G) employed as a mechanic and lab tech from 1956-1964 when he was laid off.
 G felt his discharge was racially motivated.
 G protested by participating in a "stall-in". Blocking traffic using cars during peak traffic at plant- shift hour changes.
 G blocked traffic as part of the stall in and his car was towed and he was arrested and plead guilty to obstructing traffic.
 later, MD advertised for qualified mechanics, G's trade and G applied fro re-employment.
 MD rejected G based on his participation in the stall in.
 Title VII case based on disparate treatment theory of liability- must show proof of intent to discriminate.
 Title VII enacted to prevent artificial, arbitrary, and unnecessary barriers to employment.
ISSUE:
Does Title VII permit an ER to use a former EE's illegal conduct a a pretext for discrimination prohibited by §703(a)(1)? no
RULE: If a prima facie case of racial discrimination is rebutted by the D, the complainant must then show that the reason
given for rejection was pretext for discrimination.
APPLICATION:
 what is required for a Title VII compliant:
 initial burden on P to establish a prima facie case by showing:
1) P belongs to a racial minority;
2) he applied and was qualified for job ER was seeking applicants for;
3) despite his qualifications, he was rejected; and
 after his rejection, the position remained open and ER continued seeking applicants w' P's qualifications.
4)
 ct says G (respondent) proved a prima facie case thus creating a presumption that MD unlawfully discriminated vs G.
 burden then shifts to ER to rebuke the presumption by giving a legitimate, nondiscriminatory reason for the rejection
 ct says MD did this by basing the rejection on G's participation in the stall in.
 if MD has rehired former white EEs who have participated in acts like G then G's acts in this case may be a pretext for MD
discriminating vs him.
Class Notes
 
 if I have a circumstantial case what is an illegitimate nondiscriminatory reason an ER can give? pretty broad
 to show pretext need to show other similarly situated EEs are being treated differently
 ER only needs to articulate the LNDR
DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN
Title VII Civil Rts Act of 1964
SEC. 703.
(a) It shall be an unlawful employment practice for an ER--
(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 EEs in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an EE, because of such individual's race, color, religion, sex, or
national origin.
(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or
otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer
for employment any individual on the basis of his race, color, religion, sex, or national origin.
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(c) It shall be an unlawful employment practice for a labor organization--


(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race,
color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in
any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such
employment opportunities or otherwise adversely affect his status as an EE or as an applicant for employment, because of
such individual's race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an ER to discriminate against an individual in violation of this section.
(d) It shall be an unlawful employment practice for any ER, labor organization, or joint labor-management committee
controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any
individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established
to provide apprenticeship or other training.
(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an ER to hire and
employ EEs, 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 ER, 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, and (2)
it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of
learning to hire and employ EEs of a particular religion if such school, college, university, or other educational institution or
institution of learning is, in whole or in 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 school, college, university, or other
educational institution or institution of learning is directed toward the propagation of a particular religion.
(f) As used in this title, the phrase "unlawful employment practice" shall not be deemed to include any action or measure taken by
an ER, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a
member of the Communist Party of the United States or of any other organization required to register as a Communist-action or
Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities
Control Act of 1950.
(g) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an ER to fail or refuse
to hire and employ any individual for any position, for an ER to discharge any individual from any position, or for an
employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or
refuse to refer any individual for employment in any position, if--
(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed
or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any
security program in effect pursuant to or administered under any statute of the United States or any Executive order of the
President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.
(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an ER to apply different
standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit
system, or a system which measures earnings by quantity or quality of production or to EEs who work in different locations,
provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national
origin, nor shall it be an unlawful employment practice for an ER to give and to act upon the results of any professionally
developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this
title for any ER to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid
to EEs of such ER if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938,
as amended (29 U.S.C. 206(d)).
(i) Nothing contained in this title shall apply to any business or enterprise on or near an Indian reservation with respect to
any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to
any individual because he is an Indian living on or near a reservation.
(j) Nothing contained in this title shall be interpreted to require any ER, employment agency, labor organization, or joint labor-
management committee subject to this title 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 ER, referred or
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classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor
organization, or admitted to, or employed in, any apprenticeship or other training program, 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.
OTHER UNLAWFUL EMPLOYMENT PRACTICES
SEC. 704. (a) It shall be an unlawful employment practice for an ER to discriminate against any of his EEs or applicants for
employment, for an employment agency 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 title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this title.
(b) It shall be an unlawful employment practice for an ER, labor organization, or employment agency to print or publish or
cause to be printed or published any notice or advertisement relating to employment by such an ER or membership in or any
classification or referral for employment by such a labor organization, or relating to any classification or referral for
employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on
race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation,
specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide
occupational qualification for employment.
Key Points
To establish a prima facie case of racial discrimination, a complainant must show that (1) he is a member of a racial
minority; (2) he was a qualified applicant for the position the ER was filling; (3) he was not chosen in spite of his
qualifications; and (4) the position remained open after his rejection.
The burden then shifts to the ER to articulate some legitimate nondiscriminatory reason for the ER's rejection.
The burden then shifts a 3rd time to the complainant to demonstrate, if possible, that the ER's presumptiley valid
reason was in fact a cover-up for a racially discriminatory decision.

- if you establish a prima facie case and ER does nothing you should win
- all ER needs to do is come forward w/ a LNDR for its action then we return to P to show that reason is merely pretext.
- whites are also protected by Title VII and 1981
- pretext case b/c similarly situated people were not treated the same thus theft was not the real reason
- establish pretext by showing similarly situated persons are not treated the same

McDonald v. Santa Fe Trail Transp Co.

RULE: §1981 and Title VII prohibit discrimination against all races, white as well as nonwhite.

APPLICATION:
 Analysis of Title VII:
 Santa Fe argues that even if T7 is applicable to whites it affords the Ps no protection in this case b/c their dismissal was
 based on their criminal offense against Santa Fe.
 the ct rejects this argument. Ct finds this case to be analogous to McDonnell Douglas: if criminal acts disqualify an EE it must
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disqualify all EEs who commit such acts regardless of race. Illogical to retain guilty EEs of 1 race while discharging those
of another.
 Analysis of §1981:
 issue concerning §1981- does it prohibit racial discrimination in private employment against whites as well as nonwhites?
 Santa Fe arguments as to why it does not apply to whites:
1) by the use of the phrase "as is enjoyed by white citizens" §1981 limits itself to protection of nonwhites against racial
discrimination;
2) legislative hx shows 1981 is limited to the protection of nonwhites:
a) language of 1981 derives from §1 CRA 1866 which was concerned w/ assuring rights to slaves freed under the 13th amend;
 Cts analysis of §1981:
1) the terms of 1981 do not exclude its application to racial dscrimination against nonwhites b/c 1981 explicitly applies to "all
persons";
2) the phrase "as is enjoyed by white citizens" in §1981 merely describes the racial character of the rights being protected;
3) legislative hx:
a) bill ultimately enacted as CRA 1866 was introduced as a "bill... to protect all persons in US in their civil rights" and
initially described as applying to "every race and color."
b) bill viewed as applying to whites and nonwhites;
4) Act was meant, by its broad terms, to proscribe discrimination in making/ enforcement of Ks against/ in favor of any
race. CONCLUSION: Dist ct erred in dismissing Ps' claims under §1981 on the ground that the protections of that
provision are unavailable to white persons.

Class Notes

#11 p. 116 you can take racial prefernces in some situations such as affirmative action plans. If that were the case here it would be
direct evidence of racial discrimination, but that would be permissible to do so. see foot note #8 in Santa Fe

Secondary Source Notes

 what is reverse discrimination?


 you need to have some good reason for discharge
under 1981 what does "race" mean? means any identifiable classes of persons who are subjected to intentional discrimination
solely b/c of their ancestry or ethnic characteristics. (includes Arabs, Germans, ...
Key Points

Classic case of pretext:


Dealing w/ pretext ask: "how are similarly situated persons treated?"
After Santa Fe clear whites have claims under 1981 and T7.

1) Comparing 1981 and T7

Topic Notes

§1981
 has no express procedural provisions governing the enforcement of its substantive proscription against
racial discrimination in private employment;
 remedies are broader than under T7;
 coverage not limited to employment; covers all employment contracts;
 narrower than T7 b/c limited to race;
 longer SOL than T7.
 right to jury trial
 no EEOC claims

T7
 has express procedural provisions governing the enforcement of its substantive proscription against
racial discrimination;
 remedies are narrower than 1981 b/c under T7 there is a statutory cap;
 coverage limited to employment with ER employing 15 or more EEs;
 covers race, sex, religion, and national origin;
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shorter SOL than 1981.


Topic Class Notes

 what is reverse discrimination?


 you need to have some good reason for discharge
 under 1981 what does "race" mean? means any identifiable classes of persons who are subjected to intentional
discrimination solely b/c of their ancestry or ethnic characteristics. (includes Arabs, Germans, ...

2) Reverse Age Discrimination

Topic Notes

 treating younger people more favorably than older people


 Cline case says not a legitimate claim

General Dynamics Land Systems Inc. v. Cline , 124 S.Ct. 1236

Case Brief

FACTS:
ISSUE:
RULE:
APPLICATION:
CONCLUSION:

B. Defendant's Rebuttal and Plaintiff's Proof of Pretext

Patterson v. McLean Credit Union

Case Brief

PHx:
 P sued D when she was laid off claiming that D had violated §1981 by harassing her, failing to promote her, and
then discharging her b/c of her race.
 Dist ct gave the jury an instruction that in order for P to prevail (1981 promotion violation claim) as to her
promotion, she had to show that she was better qualified than her successful white competitor.

FACTS:
 Patterson, P, is a black woman. She was employed by D for 10 yrs as a teller and file coordinator until she was laid off.

ISSUE: Can the ct limit the type of evidence a complainant may offer to show that an ER's reasons for disparate treatment were
a pretext? No.

RULE: The ct can not limit the type of evidence a complainant may offer to show that an ER's reason for
disparate treatment was pretext.

Court Analysis:
 Dist ct erred when it instructed jury that P had to prove that she was better qualified than the white EE who received
the promotion.
 to prevail under §1981, a P must prove purposeful discrimination;
 ultimate issue is whether D intentionally discriminated vs P;
 steps to be taken to prove violation:
1) P has initial burden of proving, by preponderance of evidence, a prima facie case of discrimination;
a) can do this by proving by a preponderance of evidence that P applied for and was qualified for an available position, she
was rejected, and after rejected D continued to seek applicants for the position/ filled the position w/ a white EE;
2) after P establishes prima facie case there is an inference of discrimination;
3) to rebut this inference, ER must present evidence P was rejected/ other applicant chosen for a legitimate
nondiscriminatory reason;
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a) D presents ev he gave job to white applicant b/c she was better qualified and thus rebutted the inference/presumption;
4) burden shifts back to P to persuade jury of the intentional discrimination
a) opportunity to show D's proffered reason for its decision was not its true reason. To do this P is not limited to presenting ev of
a certain type;
b) ev P can present to establish D's stated reason is pretextual may take a variety of form and does not have to just be (as the
jury instruction stated) that P was better qualified than the white applicant who was hired;
c) other ev:
1) past treatment of P by D...

Class Notes
burden on P to initially show she was qualified is all required for prima facie case.
can not attack prima facie case by saying she is not the most qualified.
Key Points
ER attacks prima facie case and also that the LNDR is not pretext; if ER does this are they entitle to SJ?
- motivation/ intent is a fact ?
- P must show pretext to show inference of intent to discriminate if P does not = SJ
see p. 107-108 #14 you can not infer discrimination if you an not prove pretext

- D can get SJ by 1) showing P's prima facie case was not established; or 2) P can not create a factual dispute regarding
the legitimacy of the LNDR

-until 1991 all such cases were bench trial

St. Mary's Honor Center v. Hicks

Case Brief

FACTS:
 St. Mary's is a halfway house operated by Missouri Dept of Corrections and Human Resources (MDCHR)
 P, Hicks, was hired as an correctional officer
 promoted to shift commander
 1983 MDCHR made extensive supervisory changes
 P retained his position, but Powell became his supervisor
 prior to this change P had satisfactory employment but after this change P was disciplined numerous times and even suspended for 5
days and later demoted to correctional officer and then discharged after threatening Powell during an argument.

RULE: A complainant in an employment discrimination case always maintains the burden of showing that the actions
taken against him were taken b/c of his race, even if he has shown the ER's proffered explanation to be a pretext.

APPLICATION:
 P shows that similarly situated EEs were not being fired for same or worse violations
 pretext was therefore shown
 so do we have to show more than pretext for P to win?
 What does this case really mean?
Class Notes
 Prof hires me. A year later he fires me. Could use the "same actor" defense. see note p. 125
- USSCt dealing w/ issue of applying McDONALD Douglas: Judge is juror and decides whether LNDR is true. ? then is whether
P wins b/c LNDR is not true. Ct says more than proving pretext is required Pretext Plus. (mere fact LNDR is a lie is not enough
for P to win).
- ct says burden still on P to prove his case even though LNDR is not true
- b4 this case if you showed pretext you won; not the case not must show more
-

Reeves v. Sanderson Plumbing Products, Inc

Case Brief

PHx:

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 P sued D for firing because of his age (age discrimination).


 Trial ct: jury verdict in favor of petitioner; $35k compensatory damages which the judge doubled as liquidated damages
 b/c jury found the age discrimination by ER was willful; judge also awarded $28,490 in front pay for 2 yrs lost income.
 Ct of Appeals for 5 th Cir: reversed; petitioner had not introduced sufficient evidence to sustain jury's finding of unlawful
discrimination.
FACTS:
 Petitioner, Reeves, was 57 yoa.
 EE of respondent for 40 yrs
 worked in "Hinge room" as supervisor of the regular line
 his duties: recording attendance and hours of those he supervised.
 his supervisor was Caldwell, age 45.
 P's co-worker was Oswalt who was 34 who testified Chestnut treated he and P differently.
 Chestnut, the director, ordered an audit of the Hinge Rooms timesheets for three months.
 Chestnut testified the audit revealed numerous timekeeping errors and misrepresentations by Caldwell, Oswalt, and Reeves. As
a result it was recommended that petitioner and Caldwell be fired and they were.
ISSUE:
RULE: The factfinder's disbelief of the reasons put forward by defendant may, together w/ the elements of the prima
facie case, suffice to show intentional discrimination.
[ Comments made about the protected trait may be used as circumstantial evidence to show an ERs intent to discriminate]
Court Analysis:
 Prima facie case: Reeves is at least 40 (57 yoa) and age based comments directed toward P by Chestnut, and harsher
treatment by Chestnut toward P thean younger EEs.
 LNDR reason provided by ER: fired P b/c due to his failure to maintain accurate attendance records. Owner testified he
 was fired b/c he had intentionally falsified company pay records.
 P's burden to persuade jury it was in fact intentional age discrimination:
1) P introduced evidence he had accurately recorded attendance and hours and that Chestnut demonstrated age-based animus
toward P.
2) P presented evidence that owner's LNDR was false by providing evidence he had properly maintained attendance
records. Chestnut testified timeclock malfunctioned sometimes;
3) not his duty to discipline late and absent EEs; Sanderson admitted it was Caldwell's duty;
 To show D's explanation was pretext P had to show:
4) the stated reasons were not the real reasons for P's discharge; and
5) that age discrimination was the real reason for P's discharge.
 ct concluded that P established a prima facie case, introduced enough evidence for a jury to reject respondent's
explanation, and produced additional evidence of age-based animus= sufficient evidence for jury to find
respondent intentionally discriminated.
Class Notes
 not sufficient ev presented by P to show D's actions were pretextual- Ct of Appeals
 Reeves rejects the "pretext plus" rule from Hicks (Hicks really said additional evidence is just helpful not required evidence)
 stray comments can always be circumstantial evidence of intent: they are not required but are beneficial to P's case
 pretext issue is left in hand of jurors as long as there is enough evidence for them to make a finding one way or the other
 Hicks they decided it was not pretext, whereas here they said it was pretext
 Ginsburg Concurring: jury has power to decide if pretext when the proffered LNDR is a lie.

4. Direct Evidence of Discriminatory Intent

Price Waterhouse v. Hopkins

Case Brief

FACTS:
 at Price Waterhouse a senior manager becomes a candidate for partnership when partners submit her name as a candidate.
 other partners then can submit written comments about each candidate.
 the firm's Admission Committee then reviews the comments and interviews partners who submitted them. Then
 makes recommendations to the Policy Board.
 Policy Board then decides whether to submit candidates name for partnership vote, to hold, or reject.
 Hopkins worked for D for 5 yrs when her candidacy for partnership was proposed.
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 She had successfully secured a $25 million K w/ Dept of State


 she was found to work well w/ clients
 partners had counseled her to improve her relations w/ staff members: poor interpersonal skills- overly aggressive,
 unduly harsh, difficult to work w/ and impatient w/ staff. (LNDR for not promoting)
 the written comments about P from partners indicated they reacted negatively toward her b/c she was a woman and showed
 sex stereotyping.
 Beyer, when he told P why the Policy Board had placed her candidacy on hold stated that in order to improve her chances
for partnership she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her
 hair styled and wear jewelry." (clearly shows gender motivated discrimination for not promoting)
 Dr. Fisk a social psychologist testified at trial that the partnership selection process was likely influenced by sex stereotyping based
on overtly sex-based comments from partners and gender-neutral comments by those who hardly knew P.
 direct evidence: one partner repeatedly commented that he could not consider any woman seriously as a partnership
candidate..."
ISSUE:
RULE:
Once the P proved illegal/ illegitimate factors played a motivating part in the employment decision, the ER is
presumptively liable. The D may avoid liability by proving by a preponderance of the evidence that it would have made
the same decision had it not taken the P's protected class into account.

Court Analysis:
 T7 claims of sex discrimination involve 2 parts:
1) first: determine if gender was the motivating factor in the employment decision at the moment the decision was made.
The reason does not have to solely be based on gender. It can be a mix of gender and a legitimate consideration.
a) P must prove that the ER relied upin sex-based considerations in its decision.
2) second: ER shall not be liable if it can prove by preponderance of evidence that, even if it had not taken gender into account,
it would have come to the same decision regarding a particular person [ER prerogative]. [burden on ER not EE] [is an
affirmative defense ER must prove]
 in this case the comment by Beyer was direct evidence of a discriminatory reason for not promoting P
 b/c P offered this direct evidence the ct was correct in requiring the D to prove by preponderance of ev
 that it would have made the same decision had it not taken into account P's gender.
 ct found that D did not do this and is therefore liable
 mixed motive case: legitimate and illegitimate factors
CONCLUSION:
in a mixed motive case you must show gender played a role in decision making process.
-
 A legitimate motivating factor and an illegitimate motivating factor.
 Plurality - decision; giving burden of persuasion to the ER - only need to show something is a motivating factor
 Does not affect Burdine framework

Concurring - White
But For or Because Of - all you need is a motivating factor, and then
Shift the burden to the ER only when the illegitimate factor was a substantial fact in the
decision O'Connor
Burden shift when it was a substantial factor and only where there is direct evidence
Class Notes
 how do we differentiate this case from McDonald and Burdine?
plurality says show gender is a motivating factor

class notes 09/14/05:


- individual disparate treatment: you were treated differently b/c race, gender...
- establish prima facie case and if ER does nothing u win, but if they refute and give LNDR shifts back to P to show LNDR is
pretext
- Hicks allows claims to be brought to jury for disparate treatment claims
- McDonald Douglas was at time of bench trials
- Hicks we see a problem: judge acting as factfinder says he does not believe the LNDR so that means pretext is
shown. Does that mean P should win or not? Judge tells P you need to show more. This is for SJ claims and directed
verdict claims. Clearly shown articulated readons are pretext so pretext established as a matter of law so P should win
or go to trial and we should win by a directed verdict.
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Hicks did not create a pretext plus test.


- Reeves we saw what was really going on in Hicks. Jury looked at pretext and did not believe ER's LNDR and found for P. This
was not a different std than Hicks b/c there are some instances where pretext is shown to be untrue but may still not be enough
to show discrimination and more ev needed. One you establish pretext looking at ev as a whole could a reasonable juror find
either way? Jury can go either way follow Hicks or say there is enough ev to show pretext. All that is needed is enough evidence
to support jury finding either way.
p. 169 Civil Rts Act of 1991
mixed motive cases is direct evidence required? O'Connor says yes for the burden to shift to ER.
- was gender just a motivating factor or a substantial motivating factor? just needs to be a motivating factor. Civ Rts Act of 1991.
- can only apply mixed motive when you have direct evidence otherwise apply circumstantial evidence using McDonald Douglas.
- mixed motive cases shift burden of persuasion to the ER that there LNDR would have achieved the same result w/o the
discriminatory motive.
- Civ Rts Act 1991: if you have a mixed motive case and prove result would have happened anyway ou are still liable but may be
able to limit the P's remedies [p. 169]
- note #22 p. 173 Is the expert witness necessary? no. Juror can determine the nature of the comments w/o the expert putting
ideas in their heads.
- How dos the ER shoulder its burden? p. 174 #26
introduce expert testimony of factors that operated in its decision-making or expert testimony of how a reasonable ER would
have evaluated the candidate.

A. Notes on Intent of Multiple Decision-Makers

Topic Notes

Complicated when multiple decision makers, corporations or partnerships


Should intent of one of the decision makers be imputed onto the other?
§ 1981 rejects imputing the discriminatory intent of a union onto the ER b/c respondeat superior is not applicable, there is
no fiduciary relationship, the ER had no control over the union, it was not a non-delegable duty (General Building
Contractors v. Pennsylvania)
Intent of the actual decision maker is focus
Collegial or Hierarchical
Decision of the body can be tainted by one influence that considers prohibited characteristics even if do not know of the other
member's motivation
Barbano - group that tolerates discriminating vote or remarks does warrant a finding that the committee/board decision
was tainted
Other courts held - there is no liability where 1 of 3 members used prohibited motivation
B reviews A's acts; A may be able to skew B's decisions, A could fabricate situation, or B could rubberstamp
A's recommendation - could be a set up
When a causal relationship between the subordinate's illicit motive and the ERs ultimate decision is broken, and the ultimate
decision is clearly made on the independent and legally permissive basis, the bias of the subordinate is not relevant. If
decision maker is not insulated from subordinate's influence then the discriminatory attitudes are imputed onto the
supervisor
Multiple decision makers often has multiple reasons for terminating/no hiring other than the official reason stated
Issue - Is there an unbroken chain of causation - but for
Price Waterhouse involved multiple decision makers
Topic Class Notes
- need to have a controlled process for group votes to show group not influenced by individual views.

B. Notes on Sec 1983

Topic Notes
§ 1983 - creates remedies for violation under any statute, does not create substantive rights
Can only be used against state actors
Advantages over Title 7 - can be used to redress any Constitutional violation; does not have to resort to administrative
or state remedies, longer time limits, not statutory caps
Same litigation structure as Title 7 claims
Argument - § 1983 not applicable in employment discrimination
Congress did not intend Title 7 to supplant § 1983
§ 1981 & § 1983 - § 1981 broader b/c reaches all contracts, but narrower b/c limited to race; § 1983 is any constitutional
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violation by a state actor


Overlap - racial discrimination in K dealings by state government
§ 1983 Limitations - only to state actors, no vicarious liability, state immunities, if it is a fovernmetn official as an
individual defendant the immunity applies (absolute & qualified)
Immunity - qualified most common - scope of discretion and the responsibility of the official - dispute: focus on the objective
reasonable official or the subjective state of mind; Must focus on the decision maker subjective if intent must be proven
§ 1983 limitations apply to damage actions, not equitable remedies

5. Present and Future of Individual Disparate Treatment Law

Costa v. Desert Palace, Inc

Case Brief

FACTS:
: Petitioner = Desert Palace employed Respondant = Costa; She was the only women in the local Teamsters Union. Costa claims
disciplined more severely, denied privileges, she was subject to intense stalking by a supervisor, treated less favorably, supervisor
tolerated sex-based slurs against her. Costa was terminated after Physical altercation with Gerber (also a union member). Desert
Palace moved for Summary Judgment, district court denied motion, submitted to a jury with the instructions:
The plaintiff has the burden of proving by a preponderance of the evidence that she suffered adverse work
conditions and that her sex was a motivating factor in any such work condition imposed upon her.
Mixed Motive Instruction - If defendant was motivated by sex and other lawful reasons, must only find whether
sex was a motivating factor at all, if so then plaintiff is entitled to win, then if you find defendant was motivated by both,
then must decide whether plaintiff is entitled to damages, unless defendant can prove by preponderance of evidence that
would have made the same decisions if did not consider the illegitimate motivation.
Desert Palace objected to instruction, claimed that instruction only valid if there was direct evidence (O'Connor's
concurrence) Court awarded Costa - Back pay, compensatory and punitive damages
ISSUE:
Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title 7
as amended? Legitimate & Illegitimate reasons for employment decision
Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive jury
instruction under 42 USC 2000e-2m?

RULE:
: ER can escape liability by proving by a preponderance of the evidence that it would have made the same decision even if it
had not allowed gender to play a role. (Price Waterhouse)
APPLICATION:
Reason: Need to address which opinion of Price Waterhouse is controlling
Individual because of
Price Waterhouse made not mention of direct evidence requirement - that came from O'Connor's
concurrence. After Price Waterhouse - 2 Amendments
1) Only have to prove it was a motivating factor
2) ER has limited affirmative defenses, but does not absolve of liability; it restricts remedies
ER must prove it would have taken the same action without the illegitimate motivation.

Statute is unambiguous - it does not mention a heightened burden; only state demonstrate that an ER used a forbidden
consideration with respect to an employment practice
Demonstrates - meets burden of production and burden of persuasion - not direct evidence
If Congress wanted to use only direct evidence, then would have made it clear as in other statutes, its only state as a
preponderance of the evidence as interpreted by this court
Evidence can be direct or circumstantial; often circumstantial is more convincing than direct evidence
O'Connor concurrence - Follow new codification - court did not abuse its discretion
Class Notes
 after this case you have the question of is McDonald Douglas dead? no. USSCt has not said it is dead.
 mixed motive instruction requires jury find that ER proved something
 some jurisdictions say that all Desert Palace is about is jury instruction and McDonald Douglas plays a key role in SJ process.
 so what does Desert Palace mean? not sure yet.

Notes
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29. p. 175 McKennon: Ct found that an EE discharged b/c of discrimination is not barred from relief when, her termination on l

Problem 3.1 p. 198


- T7 case
- use McDonald Douglas test: must show pretex. Is there evidence of pretext? must see if there are other Capricorn and
vegetarian drivers and guy hiring knew about that. If so this could be pretext.
- Reeves case
- bad case for individul disparate treatment b/c you can't show their crazy reasons are discriminatory.
Key Points
Class Notes 09/19/05
Review of last class:
 finished individual disparate treatment: use McDonald Douglas test for circumstantial evidence and single motive; if mixed
motive use Desert Palace; how it gets framed depends on the analysis as SJ (McDonald Douglas) or jury instruction
 the future of Acosta: not fully resolved yet. Don't need direct evidence.
 Multiple decision makers
 mixed motive: if use this you might be cutting off your clients remedies;
 after-acquired evidence

Today: Systemic Disparate Treatment- Group based Intent


Formal policies Statistical Disparities
(similar to direct evidence) (similar to circumstantial)
individual disparate treatment Individual disparate treatment
Manhart, Thurston Teamster, Hazelwood, Bazemore

B. Systemic Disparate Treatment Discrimination

Topic Class Notes

 group based disparate treatment


2 kinds of areas: (1) some direct ev [ie formal policies] and (2) some circumstantial ev [ie prove this through statistical analysis
and probability]
 this still involves disparate treatment so we must still prove intent to discriminate
 instead of individual based now it is group based intent to discriminate
analysis similar to individual disparate treatment: 2 areas: (1) some direct ev [ie formal policies] and (2) some circumstantial ev
of intent to discriminate against the group [ie prove this through statistical analysis and probability that there is a pattern of
discrimination]
 with statistics we are talking about probabilities: if the result is not normal than your result is because of something forcing
the result
 if this is a hiring process and you have 100 people apply: 50 men and 50 women and all men are hired then statistical you
 can infer you have done something to make that happen and is proof of an inference of intent to discriminate.
 statistics used to infer discrimination against certain groups

Trans World Airlines v. Thurston

Case Brief

FACTS:
TWA = captain, co-pilot, flight engineer; under collective bargaining agreement all cockpit EEs are required to retire at 60 (was
lawful under pre amended ADEA) Afraid policy applied to flight engineers violates the ADEA. Any engineer over 60 can still
work, but does not give 60 yr old pilots an automatic flight engineer status; mandatory requirement. Can bump from captain to
flight engineer with other reasons, medical or other, but not age. Even incompetents can still keep job. Thurston & Parkhill -
required to retire when they turned 60. If disqualified by age, must retire.

RULE:
Reason:
Hishon - If benefit is part and parcel of employment relations he may not be doled out in a discriminatory fashion.
TWA claims under McDonnell Douglas there is no prima facie case, there is no employment available.
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Do not need McDonnell there is direct evidence, the policy is discriminatory on its face.
TWA - claims 2 affirmative defenses
1) Age = Bona Fide Occupational Qualification
2) Party of Bona Fide Security System exempt from coverage 29 USC 623

Neither are valid - ADEA 4(f)(1) the age-based discrimination must relate to a particular business
Policy to retire, age disqualification, not given same option as other disqualifications Excluding
from allowing light engineers is the problem, 60 is not a BFOQ for flight engineer. Security
System?
Class Notes

- respondents fail to make out a prima facie case under McDonald Dougla: that is ok b/c here we have policy evidence which is
equal to direct evidence and McDonald Douglas applies to circumstantial evidence.

LA Dept of Water & Power v. Manhart

Case Brief
FACTS:
Study shows that women as a class live longer than men. LA requires female EEs to make larger contribution to pension plans
than males. Men and women of the same age get the same monthly benefits funded by their contributions. Women take less
home, but benefit after retirement for longer. (14.84% higher contribution)
RULE:
Reason:
Before Title 7 - ERs could decide their own pension contribution plans, now, cannot create policies based on stereotyped
impressions (women generally live longer than men)
Although the decision were based on truth, the classes are in fact difference, it is not always true that a woman will live
longer than a man.
Statue was created to protect individuals, creating fairness, there is no indication that Congress intended special rules
for insurance coverage.
If compare to group insurance plan (as LA suggests) reasoning is flawed, because as a whole healthy people subsidize for
less healthy, unmarried subsidize for married (it is in direct conflict with the mechanics of group ins)
The practice is in direct conflict with the statute
LA argues - no discriminatory effect - and that studies prevent the plaintiff's from making prima facie case; NO
THE POLICY ON ITS FACE discriminates against every female.
Notes:
Sex distinction can be made in dress code of different sexes, as long as separate but equal; may also be valid in different
treatment under affirmative action plans
Could be using gender as a proxy for longevity
Bona fide Occupational Qualification
Equal Pay Act - equal pay for equal work
Cost justification is not a defense under the statute
Damned if you do, damned if you don't
Example - women received lower benefits than men, but pay the same amount = yes gender discrimination
Class Notes
Defenses:
- can not be cost
- can not be customer preference
- can be a bona fide occupational preference [ie locker room attendant- in male locker should be a male; ...]

1. Formal Policies of Discrimination

2. Patterns and Practices of Discrimination

Topic Key Points

review:
Proving and defending a systemic disparate treatment case.

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Prima facie case- Teamsters


Relevant labor market- Hazelwood
Using statistics-Bazemore
(regression analysis)
Attack the statistics- Bazemore
Rebut the inference- Feeney
Lack of interest- Sears
BFOQ- Criswell/ Johnson Controls

Teamster v. United States

Case Brief

PHx:
 US brought 2 actions. 1st against T.I.M.E.-D.C. charging discriminatory hiring, assignment, and promotion policies
against against Negroes. 2nd charged D with a pattern and practice of employment discrimination against Negroes and
 Spanish-surnamed persons throughout the company's transportation system.
 Central claim against D was that the company had engaged in a pattern/ practice of discrimination against minorities in
 hiring line drivers.
 Dist Ct and Ct of Appeals held ER had violated T7 by engaging in a pattern and practice of employment discrimination against
Negroes and Spanish-surnamed Americans and that the union had violated the Act by agreeing with the ER to create and
maintain a seniority system the perpetuated the effects of past racial and ethnic discrimination.
FACTS:
 Govt burden of making out a prima facie case of discrimination: had to prove by preponderance of the evidence that
racial discrimination was the company's standard operating procedure.
 Govt did this with statistical evidence: company had 6,472 EEs. Of these, 314 (5%) were Negroes and 257 (4%) were
Spanish-surnamed. Of the 1828 line drivers only 8 (0.45) Negroes and 5 (0.3%) Spanish-surnamed. 83% of Negroes and 78%
of the Spanish-surnamed EEs of the company held lower paying city operations and serviceman jobs, whereas 39% of
 nonminority EEs held same jobs.
 along with the statistical evidence the govt also introduced individual testimony recounting 40 instances of discrimination.
 Company's response to the statistical evidence: statistics alone can not prove the existence of a pattern or practice of
discrimination, or even establisha prima facie case shifting the burden to the D to rebute the inference of discrimination.
 ct says this is not about statistical evidence alone b/c of individuals testimony. And even if it were only statistical evidence
 the ct hads held that evidence alone can establish a prima facie case.
 the D also claims the statistical evidence showing racial imbalance is misleading b/c low personnel turnover rather than
 post-Act discrimination accounts for the statistical disparities.
 ct says wrong: record shows many line drivers hired during this period and almost all were white.
ISSUE: Can a prima facie case of systemic employment discrimination be established by statistical evidence alone? Yes.
RULE: A prima facie case of systemic employment discrimination may be established by statistical evidence.
APPLICATION: In this case there was statistical evidence along with additional evidence.
CONCLUSION: Illegal motive can be proved through employment patterns that indicate a systemic pattern of discrimination.
Proving Systemic Disparate Treatment:
1) Proof of prima facie case: Initial burden on P to show through accepted statistical methodologies that there is an under-
representation of a protected class in the ER's work force which cannot be explained as a product of chance. (show statistically
significant imbalance). Here there were numerous instances of individual discrimination and statistical evidence.
2) Rebutting the prima facie case: Burden then shifts to D to show that P's statistics were unreliable or give LNDR for the
apparent discriminatory pattern. Here ct rejected D's claim of good faith-just hiring best-qualified applicants and the
individual instances of discrimination.
3)

Class Notes

 statistics can show an imbalance and if you do not give a reason your work force does not mirror the community
 then it can be inferred that there is a discriminatory reason.
 statistical evidence can help you, but it is not unrefuttable.
 circumstantial ev can be backed by statistical ev
 if you look at the pool from which you draw on then statistics says over time your workforce should match the
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statistics of that area. If it does not then there is an inference of discrimiantory intent.
 note #23 How do you rebut the fact that there were zero minorities in a position? almost impossible.

Hazelwood School District v. United States

Case Brief

PHx:
 AG sued Hazelwood School District alleging a pattern/ practice of employment discrimination in violation of T7.
 Dist Ct held Govt had failed to establish a pattern/ practice of discrimination. In so deciding it looked at the # of Negro
 teachers as compared to the # of Negro students and found both low.
 Dist Ct judgment for D
 Ct of Appeals for 8th Cir reversed. Held proper statistical comparison was between # of Negro teachers in Hazelwood
and Negro teachers in the relevant labor market area. Ct then included St. Louis and found the statistical disparity
 significant enough to constitute a prima facie case of a pattern/ practice of racial discrimination.
 Ct of Appeals also found 16 cases of the 55 instances where Negroes were denied jobs to be individual discrimination.
 Ct of Appeals judgment for govt.

FACTS:
 Hazelwood followed unstructured procedures for hiring teachers leaving the principal with almost unlimited discretion
in hiring teachers for his school.
 Only guidance was to hire most competent person available.
 Hired 1st Negro teacher in 1969 and the number gradually increased the following years.
 statistical info: # of Negro teachers: 6 of 957 in 1970; 16 of 1107 end of 1972; 22 of 1231 in 1973 year. This was compared to
the 1970 census of teachers 19000 teachers employed in St. Louis area: 15.4% Negroes- this included St. Louis School
District that sought a 50% Negro teaching staff. If that school district was left out 5.7% of the teachers in the county were
 Negro in 1970.
 Govt alleged pattern/ practice of discrimination based on: (1) hx of alleged racially discriminatory practices, (2)
statistical disparities in hiring, (3) the standardless and largely subjective hiring procedures, and (4) specific
 instances of alleged discrimination against 55 unsuccessful Negro applicants for teaching jobs.
 Hazelwood contends that there was a lacking in probative force evidence of a pattern or practice of discrimination.
ISSUE: What is the right pool of applicants to use for your statistical analysis?
RULE: When gross statistical disparities exist between the composition of a work force and that of the general population,
this alone may constitute prima facie proof of a pattern or practice of discrimination. Court Analysis:

 Ct looks to Teamsters v. US regarding statistical evidence and found that the Govt had burden to establish by a
preponderance of evidence that racial discrimination was the ER's standard operating procedure.
 Ct of Appeals was correct in comparing the racial composition of Hazelwood's teaching staff and the racial composition of
the qualified public school teacher population in the relevant labor market. However, it erred by substituting its judgment for
 that of the Dist. Ct..
 Ct of Appeals disregarded the possibility the prima facie statistical proof might be rebutted by statistics dealing with
Hazelwood's hiring after it became subject to T7 (racial discrimination by public ERs was not made illegal until March
 1972 under T7).
 Once a prima facie case has been established by statistical work force disparities, the ER must be given an opportunity to show
that the claimed discriminatory pattern is a product of pre-Act hiring rather than ulawful post-Act discriminations.
CONCLUSION:
Info:
standard deviation analysis states the probability that an observed outcome was the product of chance or random selection. 4
steps: (1) identifying an expected outcome; (2) observing the actual outcome; (3) determining the difference b/w the expected and
actual outcomes; and (4) applying mathematical formuale to calculate the probability that the difference b/w the expected and
observed outcomes was a product of chance.
Class Notes
 why does the ct say the correct pool of applicants includes St. Louis? b/c that is probably where many applicants
potentially would come from since it is part of the relevant labor market
 ct decides what the relevant labor market is
 would be important to know their recruiting policies
 Justice White concurring: worried about the failure to use applicant pool data in finding a prima facia case
 what is the proper pool of applicants to look at: it is not the percentage of students; actual applicant pool could be the basis
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[this could be a problem if your pool is still missing something b/c of some policy]
Justice Stevens dissent: important to look at post-Act data b/c that info is important for statistical analysis.
Secondary Source Notes

Facts: Π sues on behalf of 55 unsuccessful black applicants for teaching jobs in the Hazelwood school. Π alleged that the ER had
a history of allegedly discriminatory practices, offered statistical disparities in hiring, evidence that the hiring process was
standardless and relatively subjective, and offered specific instances of discrimination against the 55 unsuccessful applicants. The
statistics showed that 15% of the teachers were black in the St. Louis area, but this statistic was actually high because one school
hired 50% blacks and the other schools in St. Louis only had 5.7%. In Hazelwood school district only 1.8% of the teachers were
black. (comparing black teachers in St. Louis to black teachers in Hazelwood). There was also evidence that 2% of the children in
Hazelwood were black and that a close %--1.8% of the teachers were black. Based on this statistic, the District Court held for the .
The appellate court rejected the comparator group used in the trial court as irrelevant. The Appellate Court relevant comparator is
the % of blacks teaching in Hazelwood and the % of blacks in the qualified public school teacher population in the relevant labor
market.
I: What is the proper comparator group?
Holding: The proper comparator is the % of those allegedly discriminated against in the relevant qualified labor
market. The Court sent the case back to the trial court to determine whether the relevant labor market includes the city of St.
Louis because one school in that district hires 50% blacks and skews the statistics by 10%. The Court directed that the lower
court consider factors such as whether there was recruitment in that area and whether there was evidence that teachers in that
area would like or even prefer to work in the Hazelwood district.
Concurrence: Argued that the relevant labor market should be the applicant pool. Problem with this as the comparator is that not
every interested person will not apply. Especially if the ER does not recruit the protected class or if people applying know that an
ER has a history of discrimination. The comparator must be relevant in time (before v. after passage of Act), space (relevant
area), and skill (relevant qualifications).
  Also may want to consider whether people are interested in the job in the relevant labor market.
 Some say the applicant pool is usually the best data, but the relevant qualified labor market is a good substitute if
the ER did not keep all records accurately. However, there are problems with the applicant pool if they don't recruit
minorities or people are deterred from applying in other ways. Those in favor of using the applicant pool argue that
usually unqualified people wont apply and those who apply are interested in working and willing to consider
 working at that location.
 If the job does not require "special skills" as teaching does then the comparator can be the general population in the
relevant area as it was in Teamsters. However, Πs often argue that it should be "unskilled workers" in the relevant
 population because this often contains a higher number of minorities.
 How do you establish the relevant geographic area. Most say it is the area within which an ER can reasonably
expect people to commute. Some argue it is where the recruits but this approach can pose problems (see Alaska
case).
 Some courts argue that unless there is a gross disparity in the statistics, that it is also necessary to produce more
evidence such as anecdotal evidence. However, this argument really only applies to unskilled cases where the
relevant comparator often used is the general population. In skilled worker cases whether the qualified relevant
labor market is the comparator, statistics are more conclusive.
 Moohr said in class that that statistical evidence is enough to prove the PF case, but may need anecdotal evidence of
 individuals to prove a discriminatory pattern or practice by POE.
 If Π only has anecdotal evidence, may only be able to prove individual disparate treatment.
 Also, if parties are using statistics, they are easier to attack the smaller the sample is. Remember to check the
 numbers as well as the statistics because the two do not always point in the same direction.
 can either refute the statistics by arguing that the statistics used are wrong because the wrong comparator was used
 or can offer their own statistics in rebutal to weaken the PF case.
 Pre 1964 act statistics that show discrimination will support an inference that discrimination has continued,
particularly where relevant aspects of the decision-making process have undergone little change.

Bazemore v. Friday

Case Brief

Bazemore v. Friday, 1986: (per curiam). North Carolina's agricultural extension program, pre Civil Rights Act of
1964, operated racially segregated branches. After Act, two branches merged, but there were still salary disparities.
ISSUE: whether Court of Appeals erred in upholding the District Court's refusal to accept the petitioner's expert
statistical evidence as proof of discrimination by preponderance of the evidence. HOLDING: Yes.
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RULE: In case alleging a pattern or practice of discrimination, a plaintiff must establish by a preponderance of the
evidence that racial discrimination was the company's standard operating procedure. If the defendants have not
succeeded in having a case dismissed on the ground that plaintiffs failed to establish a prima facie case, and have
responded to the plaintiff's proof by offering evidence of their own, the fact-finder then must decide whether the
plaintiffs have demonstrated a pattern or practice of discrimination by the preponderance of the evidence.
REASONING: Ct. of Appeals rejected petitioner's regression analysis data for multiple reasons (top of pg. 233). Ct of
Appeals erred, first, in stating that petitioner's regression analyses were unacceptable as evidence of discrimination,
because they did not include all measurable variables thought to have an effect on salary level. Ct. of Appeals also
failed to examine regression analyses in light of all the evidence in the record.
JUDGMENT: Remanded
NOTES:
Developing systemic approach to disparate treatment cases reveal a progressively greater reliance on
sophisticated statistical techniques to establish plaintiff's case.
Class Notes
 u can use statistics to prove your case; and to make a prima facie case
 look at regression analysis as a whole with the evidence presented in the case to prove systemic disparate treatment case
 when using multiple regression analysis it is costly b/c you need an expert witness to explain what this means to a jury.
 ER can challenge this type of statistical analysis

3. Defenses to Disparate Treatment Cases

Topic Notes
Three approaches to defending against a systemic disparate treatment case:
1) challenge the factual basis [statistics]on which P's case is predicated;
a) deny that a formal policy exists or
b) challenge the facts on which P's case is based
2) challenge the inference of discriminatory intent the statistics raise [Feeney case]; or
3) admit the discrimination but assert a recognized defense .

A. Rebutting the Inference of Discriminatory Intent

Personnel Administrator v. Feeney , 442 U.S. 256, 1979

Case Brief
PHx:
 this case illustrates how to rebut a prima facie case of disparate treatment by discrediting the inference
of discriminatory intent.
 this is an equal protection challenge and not a T7 case b/c T7 exempts veterans preference laws from the protection of
 the statute.
 lower ct found found the law to be unconstitutional/ discriminatory b/c there was no way the consequences of the law
toward women was unintended.
FACTS:
 MA passed law that gave veterans an absolute preference in getting state jobs.
 98% of veterans are male
 Appellee's argument:
 rests on the presumption that a person intends the natural and foreseeable consequences of his voluntary actions.
 the goal of this law was to benefit veterans and the legislature had to be aware that the means chosen to do this would prevent
women from obtaining these jobs. The legislature did not intend to harm women, but that was the inevitable result. And
where there is such a result can that result be described as unintended?
ISSUE: Can a law have an intentional discriminatory effect w/o having an illegal discriminatory purpose? yes.
RULE: (1) An inference of discrimination may be drawn from the adverse consequences of a law, but this is proof of
discrimination in and of itself. (2) A law can have an intentional discriminatory effect w/o having an illegal discriminatory
purpose.
Court Analysis:
 "discriminatory intent" implies more than intent as volition or intent as awareness of consequences. It implies decisionmaker
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selected or reaffirmed a particular course of action at least in part "b/c of" its adverse effects upon an identifiable group and
not merely "in spite of."
 statutory hx analysis shows: (1) law not enacted to discriminate against women; (2) the law was to benefit "any veteran"
which included men and women.
 knowingly accepting discriminatory consequences does not rise to the level of purposefully excluding persons based on
 their sex.
 this law discriminates in favor of veterans, not in favor of a particular sex.
Key Points
not our fault the veterans are mostly males

EEOC v. Sears Roebuck & Co. , 839 F.2d 302, 1988

Case Brief

Lack of interest defense case.

PHx:
 EEOC brought suit against Sears for its systemic and persistent failure to hire or promote women into higher-
paying commission sales positions.
 EEOC challenged Sear's hiring, promotion, and compensation practices as systemic disparate treatment on basis of
 gender. More men in higher-paying commission positions and more women in lower-paying sales jobs paid hourly.
 Trial ct Sears won.
 7th Cir Ct Sears won.
FACTS:
 For its prima facie case the EEOC presented statistical evidence in the form of regression studies that showed
systemic disparate treatment on basis of gender in hiring and promoting women for commission sales postions.
 Sears presented testimony and surveys to show that women were not interested in commission positions.[women not interested
commission positions b/c too risky, too much pressure, involved working outside normal hours, and commission sales required
 technical knowledge and expertise.]
 Sear's ev showed Sear's attempted to recruit women into these positions but were unsuccessful.
ISSUE: May proof of women's low interests in and qualifications for certain positions provide a defense to a systemic disparate
treatment claim? Yes.
RULE: Proof of women's low interest in and qualifications for certain positions may provide a defense to systemic
disparate treatment claim.
Court Analysis:
 in Teamsters the Court held that there are no limits on the type of evidence an ER may use to rebut the prima facie case.
 Rehnquist stated that Ds in a discrimination case may attempt to impeach the reliability of statistical ev, they may offer
 rebutting ev, or they may disparage the probative weight the P's ev should be given.
 Court rejected EEOC's contention that Sear's interest ev is insufficient as a matter of law to rebut the EEOC statistical ev.
 EEOC's statistical ev was rebutted by Sear's by a showing that: (1) commission selling differs from non commission selling,
(2) women not equally interested w/ men in commission, (3) women not equally qualified as applicants for commission
selling as men.

Concurring and dissenting:


 ct in its decision is exhibiting stereotypical qualities - women like to stay home and cook and clean.
 ct allows the ev of lack of interest to refute the EEOC's statistical ev, yet it fails to take into account that the lack of interest
may be caused by the ER shaping the interest of the applicants.
Class Notes

 ct suggests Sears has made a valid argument


 is this defense of no interest b/c of actual no interest or b/c the ER has created a noninterest
 has the ER done something in a particular way so that they are not interested or so that they would not apply at all?
hypo: Prof is starting up a new Waltmart store in Ft. Worth. To hire people he goes to Chamber of Commerce and tells them he is
looking for EEs and all that apply or whites and so he hires them all. Is this disparate treatment? Has he tampered with the pool?
Key Points

not our fault there is a lack of interest among females for this job.

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1) 1

Topic Notes

 similar to Teamsters b/c of inexorable zero


 does this mean there is a good statistical disparate treatment case- the inexorable zero
 no bfoq defense
 could argue women do not have an interest in being drivers
 could challenge the statistic, but not very helpful b/c of the inexorable zero
 rebut the inference: ie women not interested in being drivers- probably not a good reason
 not a good disparate tx case
 is this a good systemic disparate treatment case? no
good individual disparate treatment case? no b/c can not show pretext

B. Bona Fide Occupational Qualifications

Topic Class Notes

 usually a defense to cases we have not looked at that involve a formal policy.
 ER admitting they are treating protected class differently
 must be necessary to the essence of the business operation
 no member of the protected class can do the job or so few can do the job that it is cost
prohibitive sometimes there are privacy reasons to apply the BFOQ

Section 703(e) of Title VII

Case Brief
 this section provides : it shall not be unlawful employment practice to hire EEs on basis of religion, sex, or national origin in
instances where those traits are a bona fide occupational qualification [bfoq] reasonably necessary to the normal
 operation of that particular business/ enterprise.
 bfoq defense does not include race or color discrimination
 narrow defense
 ex locker attendant
 ex Hooters girls
 bfoq may be established by showing:
1) impractical for the ER to deal with each EE on an individualized basis to determine his particular ability to perform his
job safely;
2) some of the group of EEs possess traits which preclude safe and efficient job performance that cannot be ascertained by
means other than knowing their age;
3) all or substantially all persons in the disfavored group would be unable to perform safely and efficiently the duties of the
job involved.
 Dothard v. Rawlinson: ct upheld bfoq requiring guards to be same sex as inmates they guarded. Essence of the prisoner
counelor position was to maintian security.
 Criswell: BFOQ applied to flight engineers; ADEA involved- banned people over age 60; essence of Western's business is safe
transportation of passengers. Western may establish its FBOQ by: (1)Must prove it is highly impractical for Western to
deal with those over 60 on an individual basis. (2) that some 2nd officers over age 60 possess traits of a physiological,
psychological or other nature which precludes safe and efficient job performance that cannot be ascertained by
means other than knowing their age.(3) also prove BFOQ if all or substantially all persons in the disfavored group
would be unable to perform safely and efficiently the duties of the job nvolved. 
Class Notes
p. 267
2. should a wet nurse be required to be a woman? yes, biological requirement
3. colleges can not now retire tenured faculty at a given age unless they can establish a bfoq.
Key Points
 may establish its FBOQ by:
(1)Must prove it is highly impractical for Western to deal with those over 60 on an individual basis.
(2) that some 2nd officers over age 60 possess traits of a physiological, psychological or other nature which precludes safe
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and efficient job performance that cannot be ascertained by means other than knowing their age.
(3) also prove BFOQ if all or substantially all persons in the disfavored group would be unable to perform safely and
efficiently the duties of the job nvolved.

International Union, UAW v. Johnson Controls, Inc. , 499 U.S. 187, 1991

Case Brief

PHx:
 P filed a class action alleging the policy constituted asexual discrimination under T7.
 trial ct held D's policy was valid under a business necessity defense.
 Appellate ct affirmed.
 appeal of grant of defense motion for SJ

FACTS:
 D is a battery manufacturer.
 D had a policy which refused to allow any fertile women from holding jobs involving lead exposure.
 the result of the policy was that women lost their jobs, were transferred, or faced sterilization to keep their jobs.
 Pregnancy Discrimination Act [PDA] contains a bfoq: unless pregnant EEs differ from others in their ability to work they
must be treated the same as other EEs for all employment related purposes.

ISSUE: May ERs exclude fertile females from certain jobs merely b/c of concern for the health of the fetus the woman
might conceive? No.

RULE: (1) ERs may not exclude fertile females from certain jobs merely b/c of concern for the health of the fetus the
woman might conceive.
(2) the bfoq of safety is limited to instances in which sex or pregnancy actually interferes w/ EE's ability to perform
the job.
Court Analysis:
 sex discrimination is a bfoq only when it is reasonably necessary to the normal operation of a particular business.
 sex discrimination b/c of safety is allowed only when sex or pregnancy interferes w/ EE job performance.
 Here D could not establish a bfoq b/c fertile women can mnfctr batteries as efficiently as anyone else
 it is the individuals right and choice to work or not
 Criswell and Dothard the Court stressed that in order to qualify as a BFOQ, a job qualification must relate to the essence or to
the central mission of the ER's business. essence of the business test

Class Notes

 is this systemic disparate treatment policy? yes


 are women being treated differently then men? yes.
 men can be effected by lead exposure
 this is a formal policy of discrimination
 not a valid bfoq defense
 sex can be a valid bfoq when: (1) related to ability to do the job; (2) policy necessary to ensure safety; (3) safety to 3rd parties.
 Here the 3rd parties are not indispensable b/c they are not even here now.
 No bfoq for this fetal protection policy.
 very difficult to prove no person can do the job for BFOQ defense except ie like sperm donor
 Justice White: privacy issue can warrant use of BFOQ [ie locker room attendant; wet nurse].
 essence of business can make safety an important concern
 Notes p. 278-
 footnote 4 p. 273 no USSCt dealing w/ privacy based sex BFOQ
 note #7 p. 279 Hooters girls; sounds like customer preference to make a BFOQ, problem b/c using customer preference
 to discriminate
 note #8 airline could not justify sex discrimination based on BFOQ for weight differences for females and males.
 if there really is a biological difference so that it only effect one sex could the company then have a formal policy
 for discriminating that would be a BFOQ.
 BFOQ should not be customer preference
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 note #11 T7 has no BFOQ for race


 note #15 privacy concerns allowed as BFOQ to protect vs invasion of privacy
 note #16 being a female was not a BFOQ for a weight loss center despite the center's mostly female customers' preference
for female counselors
note 17 religion as BFOQ

4. Voluntary Affirmative Action

Topic Notes

 United Steelworkers of America v. Weber, 443 U.S. 193 (1979), majority upheld an ER's voluntary affirmative action plan.
 union discriminated
 T7 does not prohibit all discrimination
 adopted training program in conjunction with the union to create craft skilled workers from their unskilled worker base.
 Trying ot get Blacks in so reserved 50% openings for Black skilled workers.
 Plan was upheld as legal b/c: 3 prong Weber test:
1) purpose of the plan was to mirror those of the statute/ to correct a manifest
imbalance; a) designed to break down old patterns of racial segregation and hierarchy;
b) to open employment opportunities for Negroes in occupations which had been traditionally closed to them;
2)the plan does not unnecessarily trammel the interests of white EEs [ie plan does not discharge white workers and
replace them with Negroes]
a) the plan does not impose an absolute bar to the advancement of white workers;
3) plan is a temporary measure;
a) plan is NOT intended to maintain racial balance, but simply to eliminate manifest racial imbalance.

Topic Class Notes


 Executive Order 11246 requires afirm action plan if you have a federal contract with the govt
 affirmative action is not a defense. Is not an affirmative defense. usually raised by the P to show that the affirmative
action plan is not legitimate under Weber. Burden on P to show that the required elements for the plan do not exist.

Topic Key Points


 review from last class on 09/28/05:
 BFOQ- Criswell; Dothard; Johnson Controls
 affirmative defense: 1) necessary to essence of the business
- no person in excluded group can do the job [Dothard] or it is impractical to determine who can
A. very difficult B. Highly impractical-proxy

Affirmative action: Johnson; Weber


1)correct manifest imbalance
2) does not unnecessarily trammel majority interests
3) temporary

Is affirmative action a defense? How to prove?


Piscataway- diversity defense?
Kenworthy v. Escaar
end of systemic disparate treatment.

- If I have a systemic disparate treatment claims what are the defenses that can be brought?
deny a formal policy exists, BFOQ, rebute the inference of discriminatory intent by challenging the statistics or

Weber

Case Brief

 ct applies the three prong test of Weber and finds that this plan does not satisfy either one.
1) does the plan mirror the purpose of the statute/ correct a manifest imbalance?
a) T7 2 goals: end discrimination and to remedy segregation and under representation of minorities that
discrimination has caused.
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b) this plan is non-remedial so it does not mirror the purposes of the statute.
c) statutory interpretation of T7 shows race cannot be a factor in EE decisions and legislative hx shows
barring considerations of race from the workplace was Congress' primary objective.
d) here there is no recognition of diversity as a T7 objective.
e) Board argues that racial diversity is an exception based on USSCts endorsement of diversity as a goal in the
equal protection context.
f) Ct says wrong. Prior cases show afirm action is lawful if an ER can point to a manifest imbalance in
traditionally segregated job categories.
g) ct conclusion: language of T7 and the 2 cases reviewing afirm action plans convinces the ct that a non-remedial
afirm action plan can NOT form the basis for deviating from the antidiscrimination mandate of T7.
2) whether the Board's policy unnecessarily trammels nonminorities interests? Yes.
a) policy lacks definition and structure regarding diversityoals and standards and is therefore leaving the Board free
to discriminate against nonminorities.
b) this plan also takes away the jobs of nonminorities in favor of minorities and this substantially trammels on rights of
nonminorities
3) valid Plan must be of limited duration/ temporary; this plan is of unlimited duration

Johnson v. Transportation Agency of Santa Clara County , 480 U.S. 616, 1987

Case Brief

PHx:
 Johnson filed suit alleging sex discrimination under the Equal Protection Clause and T7.
 Dist Ct.: found Johnson more qualified and that sex was the determining factor in her selection. Using the criteria from
 United Steelworkers the court found the Plan invalid b/c it was not temporary.
 Ct of Appeals reversed.
 USSCt granted review.

FACTS:
 Johnson, a male EE, challenged the validity of the affirmative action plan which made gender a factor in
employment decisions- promotions.
 Transportation Agency (Respondent) voluntarily began an affirmative action plan applicable to promotions of EEs.
 Agency had 238 skilled craft worker positions and no women held positions in it.
 Following the plan, Respondent passed over Petitioner, Paul Johnson a white male, and promoted A female EE, Joyce, to
 road dispatcher.
 The Plan was adopted to remedy the effects of past practices and to attain equitable representation of minorities.
 Plan provides that the Agency is allowed to consider sex and race in making promotions to positions within
 traditionally segregated job classifications where minorities are under represented.
 Plans long term goal: attain a work force whose composition reflected the proportion of minorities and women in the
 area labor force.
 Short term goals: were to be set up and adjusted annually;
 Plan set aside no specific number of positions for minorities, but authorized consideration of ethnicity or sex as a
 factor when evaluating qualified applicants.
 1979 Agency adopted vacancy for road dispatcher.
 12 applied. 9 were qualified. 7 certified as eligible after 1st interview. 2nd interview recommended Petitioner.
 Prior to 2nd interview Joyce contacted County's Affirmative Action Office b/c she feared her application would be viewed
 negatively. Office contacted Agency's Affirm Action Director and recommended Joyce be promoted.
 Joyce was promoted.
 Petitioner bears burden of establishing invalidity of the Plan.
 McDonnell Douglas framework applies:
1) P establishes prima facie case that race or sex taken into account in ER's employment decision;
2) burden shifts to ER to articulate LNDR which can be an affirmative action plan;
3) burden shifts to P to prove ER's justification is pretextual and the plan is invalid.
 affirmative action plan must be remedial and therefore only temporary; ends once remedy occurs.
ISSUE: Did the Respondent violate T7 in making its promotion decision when it took into account the applicants sex as part of its
affirmative action plan? No. As long as the plan uses sex as a factor on a flexible, case-by-case basis it is not prohibited by T7.
RULE: An affirmative action plan adopted by public ERs authorizing decision makers to consider as a factor race or sex
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of the applicant in an under represented group as a "plus" factor in selecting b/w two qualified applicants does not violate
T7.
APPLICATION:
 to prevail the P must establish that the plan does not meet the Weber 2 prong test:
1) justification: private ERs may adopt an affirmative action plan only to remedy conspicuous imbalances in
traditionally segregated job categories.
2) reasonableness: The plan must be fixed, detailed, and presumably written. Plan must set a goal in terms of % where the
ER's work force would roughly equal the racial and gender make-up of the qualified population.
a) means of achieving the goal unreasonable if: unduly trammels opportunities of white male EEs/ applicants [ie by refusing
to consider white male applicants or reserving certain positions for minorities only].
 Steps for this type of Tit;e VII claim:
1) 1st P must establish sex has been taken into account in an employment decision;
2) ER must provide a LNDR for the decision - the existence of an affirmative action plan works [needs to justify the plan based
on a conspicuous imbalance in traditionally segregated job categories]; [plan here recognized an imbalance and enacted
a flexible case by case approach to using gender as a factor in hiring decisions to achieve a balanced work force]
CONCLUSION: Affirmed.
Dissent by Scalia:
 to consider sex in an employment decision is prohibited by T7.
plan was not enacted to remedy prior discrimination b/c district ct found Agency had not discriminated in the past.
 prima facie case requirement he suggested was rejected
when there is a public ER involved w/ an affirmative action plan you could also have an equal protection
issue Class Notes
 Weber extended to affirmative action plans based on sex
 use Weber 3 prong test as well

Taxman v. Board of Education of the Township of Piscataway , 91 F.3d 1547, 1996

Case Brief

PHx:
 US and white teacher, Taxman, brought T7 action challenging school board's afirm action plan of preferring minority
teachers over nonminority teachers in layoff decisions where teachers equally qualified.
 USDist Ct granted partial SJ for US and teacher for discrimination on the basis of race.
 trial for damages: Taxman awarded damages $134,014.62 for backpay, fringe benefits, and prejudgment interest under
 T7. Jury awarded $10k for emotional suffering. Ct dismissed the claim for punitive damages.
 Board appealed the SJ for liability and teacher appealed the denial of punitive damages.
 CT of Appeals affirms SJ for Taxman; held nonremedial Afirm action plans prohibited by T7; board's plan violated T7 b/c used
to promote racial diversity and not as a remedy and unnecessarily trammeled nonminority interests.; ...see p. 1547.
FACTS:
 1975 Board developed an afirm action policy applicable to employment decisions.
 1983 document states afirm action plan purpose is to ensure equal employment opportunity and prohibit discrimination
 in employment b/c of race.
 When candidiates appear to be of equla qualification, candidates meeting the criteria of afirm action program will
 be recommended.
 The Board's policy did not have any remedial purpose and it admitted this (p. 1563).
 Black teachers were never under represented in the schools during all relevant times.
 1989 Board was to reduce by one the teaching staff in the Business Dept.
 at the time there were 2 teachers of equal seniority; one was P Taxman, white and other Williams, black.
 Board found two to be equal and in prior decisions involving such circumstances Board had broken the tie through
 random process [ie lottery]
 in this case the Superintendent recommended the afirm action plan be used to make the decision. Based on his notion
 that Williams was the only black teacher in the dept.
 Taxman was terminated as a result.
 Reason given for keeping Williams was in order to maintain a culturally diverse staff.
 issue before the ct on appeal is the validity of the Board's policy under T7.
ISSUE: Is it a violation of T7 when an ER uses race as a factor in selecting which of two equally qualified EEs to layoff? Yes.
RULE: Where EEs are otherwise identical, an affirmative action plan may not be used to allow race to be a tiebreaker.

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APPLICATION:
 ct applies the three prong test of Weber and finds that this plan does not satisfy either one.
1) does the plan mirror the purpose of the statute/ correct a manifest imbalance?
a) T7 2 goals: end discrimination and to remedy segregation and under representation of minorities that
discrimination has caused.
b) this plan is non-remedial so it does not mirror the purposes of the statute.
c) statutory interpretation of T7 shows race cannot be a factor in EE decisions and legislative hx shows
barring considerations of race from the workplace was Congress' primary objective.
d) here there is no recognition of diversity as a T7 objective.
e) Board argues that racial diversity is an exception based on USSCts endorsement of diversity as a goal in the
equal protection context.
f) Ct says wrong. Prior cases show afirm action is lawful if an ER can point to a manifest imbalance in
traditionally segregated job categories.
g) ct conclusion: language of T7 and the 2 cases reviewing afirm action plans convinces the ct that a non-remedial
afirm action plan can NOT form the basis for deviating from the antidiscrimination mandate of T7.
2) whether the Board's policy unnecessarily trammels nonminorities interests? Yes.
a) policy lacks definition and structure regarding diversityoals and standards and is therefore leaving the Board free
to discriminate against nonminorities.
b) this plan also takes away the jobs of nonminorities in favor of minorities and this substantially trammels on rights
of nonminorities
3) valid Plan must be of limited duration/ temporary; this plan is of unlimited duration [show temporary w/ short term
goals and not to maintain goals]
CONCLUSION: Layoffs based on race unduly trammel the interests of white EEs.
Dissent:
 actual QP: whether the school ir required to make its decsions b/w two equally qualified candidates based on chance or
does Title VI permit the school to factor into account its belief that the students are benefited by a diverse faculty.
 T7 was not intended by Congress to limit the reach to merely remedying past discrimination.
Key Points
 affirmative action plan is not an affirmative defense b/c burden on P to show not a LNDR using Weber's 3 prong test
cultural diversity can NOT be the basis of your affirmative action plan [does not fit within Weber- not
remedial to correct some imbalance in the work place].

III. Systemic Disparate Impact Discrimination

Topic Notes
 disparate impact discrimination- exists when employment policies, regardless of intent, adversely affect one group
more than another and can not be adequately justified.
 disparate impact theory applies to: T7, ADA, and maybe ADEA.
 does NOT apply to: 1981 or 1983 claims, not apply under the Equal Protection clause
 policy is neutral on its face/ a neutral practice by ER that has a disparate impact on one group that can not be
 adequately justified.
 available under Title 7 and originated in Griggs
 CRA 1991: this movt came together b/c of USSCt decisions on cases in 1989 primarily Wards Cove decision. Signed b/c
 it was in the midst of the Clarence Thomas // Hill hearings.
 Bush not like CRA 1991 b/c put burden on ER and makes ER hire quotas to get around this

A. Sec 703h Exceptions

B. Concept of Disparate Impact Discrimination

Griggs v. Duke Power Co. , 40 U.S. 424, 1971

Case Brief

RULE: Practices fair in form but discriminatory in effect may violate T7 even though the ER's motivation in adopting
the practice is neutral or benign.
An ER could avoid liability if it could show that the challenged requirement "related" to the job.
Facts: EEs of Duke Power filed a Title 7 class action claim. Out of 95 EEs only 14 were black. District Court found that prior
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to Title 7 enactment Duke openly discriminated based on race. Duke has 5 departments, Labor is the lowest paying department.
Promotions are usually made within the departments based on seniority. 1955 required high school education for all departments
except for the Labor Dept. 1965 after act they quit openly discriminating required high school education and to transfer to any
department from the labor department. Also, required satisfactory scores on 2 aptitude tests. In September allowed transfer from
labor to coal handling without high school education if passed 2 tests (the required score based on high school education median
score range. District Court found no racial intent shown in adopting high school education or std. Test requirements. The
requirements are applied fairly to both whites and blacks.
Reason: Title 7 purpose = equality of employment opportunity and removing barriers that in the past were discriminating.
Policies that are neutral on face cannot be maintain if they operate to freeze status quo of prior discrimination. Whites do better
on these tests than black, because blacks have received inferior education. Congress did not intend for Title 7 to hire people
regardless of qualifications. Congress requires removal of any artificial/unnecessary boundaries. If cannot prove requirements are
related to job then the requirement is unlawful. Company claims - tests are to improve overall workforce, but people continue to
work and perform job without requirements they must not be job related. ER may not have intent; but Title 7 is directed at the
consequences or employment practices.
ER burden - prove that the requirement was related to job performance
Company claims - under 703 of status allows professionally developed ability testing, but the tests are not always reliable
and EEOC guidelines, permits the use of only job related tests. Applicant must still meet job qualifications. Test must
actually measure the person for the job, and not in the abstract.
Class Notes
 focus on the acts of the alleged perp or the effects on the group
 Systemic Disparate Impact statute
 USSCt now shifting burden of persuasion to ER
 touch stone is business necessity
 burden of persuasion is on ER. ER must prove you there is a business necessity for the practice.
Secondary Source Notes
Review of last class on 10/03:
Intro to theory of systemic disparate impact discrimination
Griggs: a policy or practice neutral on its face that causes a disparate impact on a protected group.
touchstone-business necessity
Wards Cove: a particular employment practice
Watson: the employment can be a subjective one
Teal: no bottom line defense
CRA 1991: rejects Wards COve burden of proof- creates bottom line offense

Wards Cove Packing Co. v. Atonio , 490 U.S. 642, 1989

Case Brief
PHx:
 P filed a T7 class action suit against D alleging D's hiring/ promoting practices were causing the racial stratification of the
work force which kept him and other minorities from obtaining positions as noncannery workers. Also complained of the
 racially segregated housing and mess halls.
 Ct of Apeals held P had made out a prima facie case of disparate impact, relying on statistical evidence only and remanded
case to Dist Ct instructing it that it was ER's burden to prove disparate impact caused by its hiring and employment
 practices was justified by business necessity.
 Appeal from finding that ER's employment practices have a disparate impact on minorities.
FACTS:
 D are 2 companies that operate salmon canneries in remote areas of Alaska.
 They operate only during the salmon runs.
 the number of EEs varies each year based on the salmon run.
 B/c of the remote location workers are housed at the canneries and have their meals in company mess halls.
 Two types of jobs at the canneries: (1) cannery jobs and (2) noncannery jobs.
 Cannery jobs: unskilled positions; filled predominately by nonwhites [Filipinos and Alaska Natives]; pay is less than
 for noncannery jobs; hired through union
 Noncannery jobs: skilled positions; mostly white workers; hired during winter months from companies offices in WA
 and Oregon; these positions pay more than the cannery jobs;
 The workers are segregated into dorms and mess halls based on their job classifications.
ISSUE: Does statistical evidence comparing a high % of nonwhite workers in one position to a low % of such workers in other
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positions establish a prima facie case of disparate impact of ER's policies in violation of T7? No.
RULE: To establish a prima facie case the EE must show specific hiring practices had a disparate impact on nonwhites.
Rebuttal by ER- ER must show there was a business necessity for its practices or legitimate business purpose, and the
availability of alternate practices to reach same ends w/ less of a racial impact

Court Analysis:
 Ct of Appeals was incorrect in holding the P had made out a prima facie case of disparate impact based solely on the statistical evidence
showing a high % of nonwhite workers in the cannery jobs and a low % of such workers in the noncannery positions.
 Why this comparison was wrong:
1) the cannery work force did not reflect the pool of qualified job applicants or the qualified population in the labor force.
2) If the absence of non-minorities holding skilled positions is due to a lack of qualified nonwhite applicants, an
ER's employment practices cannot be said to have a disparate impact on nonwhites.
 T7 P does not make out a prima facie case of disparate impact simply by showing that "at the bottom line" there is
racial imbalance in the work force.
 Prima facie case requirements: The P will have to show that the disparity they complain of is the result of one or more of
the employment practices that they are attacking here, specifically showing that each challenged practice had a significant ly
 disparate impact on employment opportunities for whites and nonwhites.
 some will complain tis is too high a burden on T7 P's but it is not based on liberal civil discovery rules which provide Ps
 w/ access to ER records.
 If P makes out a prima facie case then burden shifts to ER to provide a business justification for their use of these practices.
 This part consists of 2 components:
3) consideration of the justifications an ER offers for his use of these practices and
a) ER has burden of production and not persuasion which remains with P for establishing a business justification
for the practice;
b) no requirement that the challenged business practice be essential or indispensable to the ER's business.
2) the availability of alternative practices to achieve the same business ends, with less racial impact.
a) if P can establish other legitimate hiring practices that would serve the D's interests and not an undesirable racial
effect the P can establish D's practices were pretext for discrimination.
CONCLUSION: reversed regarding P having made out a prima facie case w/ only statistical evidence and remanded.
Dissent:
Majority confuses ERs burden, is it to provide an affirmative defense, or a justification for a legitimate business purpose.
EE - always ultimate burden of persuasion, but does not have to prove specific practices caused a specific impact,
unwarranted burden
ER - in impact cases, once prima facie case is proven, then only option is an affirmative defense of business necessity. (Burden of
production, lighter than burden of persuasion) must be essential?
Court should give more credit to the statistical evidence.
Court failed to make findings on whether the cannery workers were qualified for the non-cannery positions.
Should be compared to the labor market in Alaska, California, Pacific Northwest that would accept this employment - highly
difficult to provide statistics.
Class Notes
 what is the right pool to use for our comparison?
 qualified applicant pool might be the most relevant pool to use
 you can not look at the bottom line of a statistical disparity you need to show a specific practice caused the disparity
 no longer ER's burden to show business necessity
 SCt said burden of persuasion should not be burden of persuasion for the ER. - this was overturned. This led to the CRA
 of 1991.
 several practices going on P alleged created disparate impact. Wards Cove said no P you ust point to the particular
employment practice. -this is still good law.
CRA 1991: after Wards Cove we have some requirements of CRA 1991: see next section C

C. Structure of Disparate Impact Law After the 1991 Civ Rts Act

Topic Class Notes


you can rely on the bottom line if you can not separate the specific practices [rejects this part of Wards Cove]

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1. P's Proof of a Prima Facie Case

A. A Particular Employment Practice

Watson v. FT Worth Bank & Trust , 487 U.S. 977, 1988

Case Brief
PHx:
Watson filed a Title 7 suit claims. Trial court rejected Watson's claims, she established prima facie case, and ER rebutted it,
there was no pretext, analyzed under disparate treatment. Court of appeals affirmed, that it should be analyzed under disparate
treatment rather than disparate impact.
FACTS:
 Watson is a black woman hired by Fort Worth Bank. She unsuccessfully applied for 4 promotions, supervisor, drive in,
etc. The positions were give to white EEs.

 Fort Worth Bank only had subjective hiring, no formal hiring policies.
ISSUE: Whether disparate impact analysis applies to employment decisions made by subjective hiring?
Watson argues - subjective has the same opportunity to discriminate, if not more.
ER should not be able to insulate themselves from liability by delegating to supervisors own subjective opinions. Still
have subconscious stereotypes and prejudices.
Remanded because trial court did not consider under disparate impact.
Reasoning:
Griggs - plaintiff does not have to prove intent for Title 7 violation. Facially neutral policies have significant adverse effects
on protected groups have been held to violate Title 7. Disparate Impact - focus on statistical disparities.
Neutral policies are functionally equivalent to intentional discrimination.
Prior disparate impact cases have only dealt with objective hiring criteria.
RULE:
Connecticut v. Teal , 457 U.S. 440, 1982

Case Brief
Facts: Four black EEs worked for Dept of Inc Maintenance for the State of Connecticut. Each was promoted provisionally, but
they had to meet certain criteria to maintain the positions. To attain permanent status they must pass a written examination. None
of the 4 passed, and they did not retain their promotions.
Test - 329 candidates, 259 White, 48 Black, White passage rate = 68%; Black passage rate = 54% as part of the affirmative
action plan.
Considerations for promotion - 1) past work performance, 2) recommended as candidates by supervisors, 3) seniority
OF those 46 promoted - 35 White, 11 Black. Bottom line result was more favorable to black EEs. Teal filed suit allege racial
discrimination.
State claimed - bottom line defense should be complete defense, Issue: Is
a racially balanced workforce a defense to a Title 7 violation?
Rule: A racially balanced work force is not a defense to a T7 violation.
Reason: No it is not a defense - if it was a defense it would ignore the primary purpose of Title 7 - to protect individuals,
rather that protection of the group as a whole.
Amici Curea briefs were submitted on behalf of the state - they confuse the aim of Title 7; discriminatory intent and unlawful
discrimination;
Title 7 does not intend to allow ER to discriminate against certain individual as long as it does not discriminate against the
group as a whole.
Teal's rights have been violated under Title 7.
EE has burden of persuasion = preponderance of evidence.
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Dissent:
Disparate Treatment = must show intent
Disparate Impact = must prove by inference of the effect on a group. There can be no violation under Disparate Impact
unless have proof of how it impacts a group.
They cannot deny the defendant the opportunity to prove there was no impact on that particular group.
Problem - Force ERs to either eliminate tests or rely on expensive, job-related, testing procedures, the validity of which may
or may not be sustained if challenged.
Solution - quota hiring, which has been held as a violation itself
Class Notes
 you can not use bottom line analysis for disparate impact
 if the 1st practice has a disparate impact then any correction in the 2nd practice is irrelevant.
 ct says not going to allow quotas
 as a defense you can not rely on bottom line if there was a practice earlier that caused disparate impact; P can use bottom
line for proving disparate impact
subjective hiring practices can be disparate impact.
 if you have a practice that causes a disparate impact and later on you try to correct that ct says you are still liable.
Key Points
"bottom line" theory of defense: an ER's acts of racial discrimination in promotions- effected by an examination having
disparate impact- would not render the ER liable for the racial discrimination suffered by EEs barred from promotion if the
"bottom line" result of the promotional process was an appropriate racial balance. Teal held this was not a defense for an ER nor
was it a bar for the EE in establishing a prima facie case]. This theory ignores the fact that T7 guarantees EEs the opportunity to
compete equally with white workers on the basis of job-related criteria.

B. The New Bottom Line Exception of the 1991 Civ Rts Act

Topic Notes
 with respect to demonstrating that a particular employment practice causes a disparate
impact, 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.
 so this says that now the "bottom line" defense can apply, but need to make sure the the statistical evidence is not based on too
small a sample.
 if the P can make out a prima facie case based on the bottom line exception to the general requirement that P identify a
particular employment practice causing the impact, the burden of persuasion shifts to the D to prove either (1) that the
specific practices that make up the decision-making process do not cause the impact; or (2) that the remaining practices are
justified as job related and consistent with business necessity; or (3) that those practices fall within the §703(h) defenses.
if an ER does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to show
that other tests or selection devices, without a similarly undesirable racial effect, would also serve the ER's legitimate interest in
"efficient and trustworthy workmanship." Such a showing would be evidence that the ER was using its tests merely as a "pretext"
for discrimination.

Topic Class Notes


 look at the entire decision making process and can then look at the
 Chavez v. Coors Brewing Co.: can you use the bottom line or do you need to ID a specific element as causing the disparate
impact? you want to argue the bottom line exception should apply and you are incapable of separating the acts/ elements.
 bottom line exception is available when you can argue the separate practices can not be separated.
 general rule is you must show that each practice caused a disparate impact.
 if you as P get the exception to apply the ER has to argue defenses
defenses: (1) it is not the practice that causes the disparate impact, (2) business necessity, (3)
C. The ER Uses the Practice

Topic Notes

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 there must be a causal link b/w the practice used by the ER and the resulting impact.
burden on P to prove this.

Dothard v. Rawlinson , 433 U.S. 321, 1977

Case Brief

PHx:
 Rawlinson made a disparate impact claim against Dothard [the Prison] b/c she alleged the facially neutral statutory height
and weight requirements discriminated against women, thus excluding them from positions as correctional counselors.
 Dist ct found Rawlinson had made out a prima facie case of unlawful sex discrimination based on national statistics of
male and female heights and weights.

FACTS:
 Rawlinson was a 22 yoa college grad w/ major in correctional psychology.
 she applied for position as correctional counselor trainee, but was refused b/c she failed to meet the min weight requirement
 of 120 lbs. [also min height of 5'2"]
 correctional counselor's primary duties include: maintain security and control of inmates.
 to be eligible for the position of correctional counselor: must possess an AL drivers' license, HS education or equivalent, be
free from physical defects, b/w ages of 20.5 and 45 yrs, and fall b/w the min height and weight requirements of 5'2" and 120
lbs and max of 6'0" and 300 lbs.
ISSUE: Is there a requirement that the statistics used in establishing a prima facie case of sex discrimination reflect the
characteristics of the actual applicant pool? No.
RULE: There is no requirement that the statistics used in establishing a prima facie case of sex discrimination reflect the
characteristics of the actual applicant pool.
Court Analysis:
 appellants argue the Dist ct was wrong in accepting the generalized national statistics to establish a prima facie case,
should have required statistics from the actual applicants for correctional counselor positions in Alabama.
 ct says it was not an error b/c: Griggs - the applicant process itself might not adequately reflect the actual potential applicant
pool, since otherwise qualified people might be discouraged from applying b/c of a self-recognized inability to meet the very
standards challenged as being discriminatory. Potential applicant could look at the height and weight requirements and
 decided she did not fit and not even apply.
 appellants next argue even if Rawlinson established a prima facie case they have rebutted the prima facie case
 of discrimination by showing the height and weight requirements are job related.
 Ct says wrong appellant you have not rebutted the prima facie case by saying the requirement is job related. Appellant you
have produced no evidence correlating height and weight requirements with the requisite strength requirements necessary
 for the job.
 If the height and weight requirements were bona fide for ensuring the requisite strength for job performance. A test
measuring strength directly would achieve their objective and they have none.

CONCLUSION:
 the height and weight requirements for this job violate T7 b/c they measure the person in the abstract and not the person for the
job.
White's Dissent:
 true issue is whether there was discrimination in dealing with actual or potential applicants.
 he does not believe that the % of women applying or interested in the prison guard position approximates the the % of
 women either in the national or state population.
 he believes the P could show that the composition of the applicant pool was distorted by the exclusion of of nonapplicants
 who did not apply b/c of the allegedly discriminatory job requirement. But there was no such showing here.
 he believes that the majority of applicant s interested in the position would not fail to meet the height weight requirements.
he concludes Rawlinson has not made out a prima facie case.

Class Notes
 which statistics do you want to look at the US or Alabama?
 Alabama because better representation of your potential labor pool
 what is the right pool for your statistical comparison.
 Hazelwood says the relevant pool is the pool of actual applicants.
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 Notes p. 363 #9


 #7

Problem 5.2
 disparate impact case b/c no intent, policy appears neutral
 is there a business justification? no. a gun is a gun.
 what is the relevant labor pool?
 other facts needed?
 worry that the gun they are using already is already an alternative and has a lesser impact so no need to switch.
 Key Points
 to show a prima facie case of disparate impact:
1) P must show that the ER's practice has a disparate impact
2) ER must show there is a manifest relationship with the job-business necessity
3) P can show alternative practices available that are nondiscriminatory impact

D. The Amount of Impact

Topic Notes
 EEOC 4/5 Rule: if you have an application process and make a decision and it has a disparate impact on more than 4/5
then you have disparate impact.
 §703(k)(1)(A)(i) requires P to prove that the practice she challenges "causes a disparate impact" but it does not
 define "disparate."
 Statistical Techniques to Establish Disparate Impact: two basic problems that are often confused:
1) whether there is any impact: probability that a particular sample is representative of the universe.
2) whether the amount or quantum of impact is sufficient.
 the statistical significance of results from samples: if you are interested on the impact on the universe, the question is whether,
had the test been given to the universe, the same result would have been obtained. For a statistician the larger the sample
size the more certain it is it represents the universe.
whether the sample of individuals applying for the job in question is representative of the population as a whole matters only if
disparate impact is established by showing an impact on the general population, rather than on the interested applicant pool or
some other comparison group.

2. Defendant's Rebuttal

Topic Notes
 there a re 5 rebuttal possibilities available to an ER to respond to a prima facie case of disparate
impact discrimination.
1) ER's use does not cause impact;
2) business necessity and job relatedness

A. ER's Use Does Not Cause Impact

Topic Notes
 ER cold try to undermine P's prima facie case by introducing evidence that the data P relied on was flawed.
 §703(k)(1)(A)(i): general rule that a complaining party demonstrates that a R uses a particular employment practice that
 causes a disparate impact, with demonstrate being defined as meets the burden of production and persuasion.
 §703(k)(1)(B)(ii): appears to create an affirmative defense that imposes on the ER the burden of persuasion
to prove that a specific employment practice does not cause the disparate impact.
 D does not carry the burden of persuasion when it merely undermines the evidence the P uses to establish a prima
facie case.
However, if the P establishes disparate impact by national data or with the experience of other EEs then
§703(k)(1)(B)(ii) accords the ER an affirmative defense that its own use of the practice does not have a disparate
impact.

B. Business Necessity and Job Relatedness

Lanning v. Southeatern Pennsylvania Transportation Authority , 181 F.3d 478, 1999

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Case Brief

FACTS:
 1.5 mile run in 12 minutes
ISSUE: Must a discriminatory cutoff score on an entry level employment examination be shown to measure the minimum
qualifications necessary for successful performance on the job in question in order to to survive a disparate impact claim? YES.
RULE: A discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum
qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge.

Class Notes
10/10/05: Last Class Notes:
Disparate Impact:
How much? 4/5ths or Rule of the EEOC
Rebuttal: Job related and Business necessity
Finish Lanning today
__________________

 This case occurred after CRA of 1991 was put into place.
 aerobic capacity tested thru ability to complete 1.5 mile w/in 12 minutes
 on remand ct held the 1.5 mile run in 12 min/ 42.5mL test was upheld as justified by business necessity as a minimum
qualification necessary. Ct defined "minimum qualifications necessary as meaning likely to be able to do the job.
 burden of persuasion on the emloyer to show the standard adopted is required as a necessary minimum std

Secondary Source Notes


 CRA of 1991 corrected WardsCove and puts burden on the ER.

3. Alternative Employment Practices

Topic Notes
 if an ER does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to
show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the ER's legitimate
interest in "efficient and trustworthy workmanship." Such a showing would be evidence that the ER was using its tests
merely as a "pretext" for discrimination.
 express defense for professionally developed tests.
703(h)
Fitzpatrick v. City of Atlanta , 1993

Case Brief

PHx:
 this is a T7 race discrimination action. Suit was brought by several African-American firefighters employed by the City. City
has a clean shaven policy that requires firefighters to shave. The Ps claim they have medical conditions that prevent them
 from shaving and that this requirement is discriminatory.
 Dist ct granted SJ for the City. It found the ER rule prohibiting all beards was justified by business necessity, then looked
 to see if there was a less discriminatory alternative and found none.
 firefighters have appealed.

FACTS:
 12 P-appellant firefighters, all African-American men who suffered from pseudofolliculitis barbae ("PFB"), a bacterial
disorder which causes men's faces to become infected if they shave them.
 OSHA, ANSI, and NIOSH safety standards say that for the SCBA mask to seal and operate properly and safely its edges
 must be able to seal securely to the wearer's face.
 originally firefighters with PFB were permitted to participate in a program known as the "shaving clinic." Allowed to wear
very short shadow beards. It was believed that as long as the shadow beards were kept short the hair would not interfere
 with the masks seal.
 1988 FD decided the shadow beards would no longer be permitted b/c they may interfere with the safe use of the SCBA.
 Under this new policy firefighters who cannot be clean-shaven could not hold a position that required fire-fighting duty.
 If no other openings available after 90 days they were terminated.
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ISSUE: May an ER engage in practices that have a disparate impact on a protected minority if necessary to meet an
important business goal and if there are no less discriminatory alternatives? Yes.
RULE: ERs may engage in practices that have a disparate impact on a protected minority if necessary to meet
an important business goal and if there are no less discriminatory alternatives. APPLICATION:

 To establish liability for disparate impact, an EE must 1st demonstrate that the employment action has a
disproportionate adverse impact on a protected class. (policy adversely affected FFs w/ PFB-mainly African-Americans)
 The ER then has the burden of showing that the challenged practice is necessary to meet an important business goal. (City
 did this with SCBA safety standards)
 According to the CRA of 1991, the ER has the burden of persuasion once the EE has established a prima facie case.
If the ER is able to show a business necessity for the employment action, the EE may overcome the defense by demonstrating that
alternative policies with less discriminatory effects exist. (2 alternatives Ps suggested were no good)

Class Notes
 A neutral policy on its face that has a disparate impact on some African-Americans.
 Once ER demonstrates burden of persuasion then P has burden of persuasion that there is a viable alternative available. Here
P failed to do this.
Is it ok for an ER to interview African-American males and ask if they have PFB? yes. no. maybe.

D. Exceptions

Topic Notes
 T7 offers 3 other statutory defenses in disparate impact cases, in addition to job relatedness/ business necessity defense.
703(h) creates exceptions for professionally developed employment tests, for bona fide seniority systems, and for bona fide
merit systems.

1. Professionally Developed Tests

Topic Notes
it shall not be an unlawful employment practice for an ER to give and to act upon the results of any professionally developed
ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate
b/c of race, color, religion, sex, or national origin.

2. Bona Fide Seniority Systems

Topic Notes
section 703(h) also provides an exception to T7 for seniority systems: it shall not be an unlawful practice for an ER 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 b/c of race, color, religion, sex, or
national origin.

A. Lester C. Thurow, The Zero Sum Society

Topic Notes
 to have a fair race it is necessary to (1) stop the race and start over, (2) force those who did not have to carry weights to carry them
until the race has equalized, or (3) provide extra aid to those who were handicapped in the past until they catch up.
 none of the above choices is a consensus choice in a democracy.
 Discrimination against someone always means discrimination in favor of someone else.
 The need to practice discrimination(positive or negative) to eliminate the effects of past discrimination is one of
 the unfortunate costs of past discrimination. To end discrimination is not to create "equal opportunity."
 "The present effects of past discrimination" concept of liability: an otherwise neutral, legitimate seniority system does
 not become unlawful under T7 simply b/c it may perpetuate pre-Act discrimination..
 B/c of 703(h) , T7 has no effect on the legality of a seniority system even where women and minority males were
 handicapped in their present ability to compete for jobs.
 Since 703(h) is an exception from liability for disparate impact discrimination, the seniority system issue should be an affirmative
defense w/ the burden of proof and persuasion on the D. If the ER succeeds in carrying the burden of establishing
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its affirmative defense, then the P has a surrebuttal step of proving that the system had its genesis in intentional discrimination.
 1st element of the defense may be for the ER to show that the seniority system is part of a collective bargaining
agreement negotiated by union and management.
 Since seniority is one of the classic issues of unionism and since Congress knew that when it enacted 703(h), the
affirmative defense provided by that section should apply only to seniority systems that have been collectively bargained by
 labor and management.
 The 2nd element of the defense is for the ER to provide that its challenged policy is a traditional component of a system of
seniority. First, there must in fact be a system that is being used. Second, what is sheltered under the seniority system will
 be judged by a broad test that accepts notions of what are commonly thought to constitute a seniority system.
 703(h) does not sweep within its protections "employment rules that depart fundamentally from commonly accepted
 notions concerning the acceptable contours of a seniority system.
 The final step in the analysis of the seniority system defense is P's surrebuttal that the operation of the seniority system is
 the product of intentional disparate discrimination.
 4 factors that are relevant in evaluating whether a seniority system was bona fide:
1) whether the seniority system operates to discourage all EEs equally from transferring b/w seniority units;
2) whether the seniority units are in the same or separate bargaining units (if latter, whether that structure is rational and
in conformance with industry practice);
3) whether the seniority system has its genesis in racial discrimination; and
whether the system was negotiated and has been maintained free from any illegal purpose.

3. Bona Fide Merit and Piecework Systems

Topic Notes
 Section 703(h) sets forth an exception to disparate impact liability for ba=ona fide merit and piecework systems: It shall not be
an unlawful employment practice for an ER to apply diferent standards of compensation, or different terms, conditions, or
privileges of employment pursuant to a bona fide...merit system, or a system which measures earnings by quantity or quality of
production...provided that such differences are not the result of an intention to discriminate.
 system that measure compensation by quantity of production are piecework systems: more worker produces the more he
is paid.
 In Guardians, a police test case, the court held that a hiring system that ranks applicants according to their performance on

discriminatory examinations cannot claim the status of a bona fide merit system within the meaning of the statute.
 703(h) makes sense only if the term bona fide merit system is understood to refer to merit in areas related to the necessities
of the business, not merit in the abstract.
The merit system defense is justified only if the ER demonstrates that the system is job related.

4. An Alternative Employment Practice Exists

Topic Notes
 P can demonstrate an alternative employment practice to practices that are sheltered by 703(h), including
professionally developed tests, bona fide seniority systems, and bona fide merit systems.
 Historically, ERs have resisted seniority as destructive of management prerogatives.
In Bryant, P proved a test had a disparate impact and the D then proved that the test had been properly validated. Ct
held at that point the burden shifts back to the P to prove that there was another available method of evaluatiion which
was equally valid and less discriminatory that the D refused to use.

Smith v. City of Jackson , 2005

Case Brief
PHx:
 Petitioners brought suit under ADEA claiming City deliberately discriminated against them b/c of their age
(disparate treatment claim) and they were adversely affected by the plan b/c of their age (disparate impact claim).
 Dist Ct granted SJ to the City on both claims.
 Ct of Appeals affirmed SJ on the disparate impact claim, but held petitioners entitled to further discovery on
 disparate treatment claim. Majority held Disparate impact claims are unavailable under ADEA.
 USSCt granted petitioners writ of certiorari and held ADEA does authorize recovery in disparate impact cases. Still
affirmed after it concluded petitioners did not have a valid disparate impact claim.
FACTS:
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 Petitioners, police and public safety officers for the city allege salary increases received in 1999 were less generous to
 officers over age 40.
 Petitioners claim the raise violated the ADEA.
ISSUE: Whether the disparate-impact theory of recovery announced in Griggs for cases brought under T7 of the CRA of 1964,
is cognizable under the ADEA? Yes.
RULE:
CONCLUSION:
 5 Justices say you can have a disparate impact claim under the ADEA.
Scalia does it under deference to the EEOC.

Class Notes
 no disparate impact claim b/c relevant factors other than age
 disparate impact may be so hard to prove under ADA that it may not exist

A. p 425 Problem

Topic Class Notes


 Evaluate Able's claim under the three theories of discrimination:
1) Individual disparate treatment claim: need to prove intent by the ER to discriminate. How would you prove intent? prima
facie case using McDonnell Douglas: prima facie case she is a minority, she was qualified, and she was denied the position.
Then ER to show they have a LNDR. Then P to show that this LNDR is pretext.
a) they told her she was qualified. No direct evidence so use indirect/ circumstantial evidence using McDonnell Douglas.
b) keeping her in the running seems suspect. Is this a seniority thing.
c) Not the greatest claim b/c hard pressed to show pretext.
2) Systemic Disparate Treatment claim: only 2 [4%] of the 50 supervisors were minorities. What is the relevant applicant
pool to draw from? the 1000 clericals 160 of which were minorities [10%]. If you end with a pool of 16 and select 2 is there
a problem? too small of a sample size to get a strng statistical inference.
a) easy challenges to this claim are the statistics [pool] and lack of interested minorities in the position.
b) under Hazelwood look at the pool they are drawing from and there is no intent.
c) statistics could help b/c P could argue inexorable zero.
d) Joining Teamsters inexorable zero and the relevant labor market if you are not discriminating over time the pool should
match the labor force. Not needed here b/c not using labor market hiring from within.
3) Disparate Impact claim: best claim
a) 20% clerical workers were white
b) hiring from with in and the three year requirement have disparate impact-neutral on its face.
c) the facially neutral policy does not have to be formal it can just be an SOP.
If you can not separate the impact causes you can use the bottom line offense which here is 4% to suggest disparate impact,
but then ER can attack the size of the pool [sample size].

Topic Key Points


 in general, the best case to bring is a systemic disparate treatment case b/c make out prima facie case w/ statistics ER
must rebute it. Jury trial more damages available.
 Sometimes bring systemic disparate treatment claim and disparate impact claim b/c ER will admit disparate impact to
refute disparate treatment by saying they had no intent but used neutral policy that had disparate impact.
Individual disparate treatment cases can get knocked out easily under the analysis.

IV. The Interrelation of Disparate Treatment and Disparate Impact Theories of Discrimination A.

Keeping Disparate Treatment and Disparate Impact Analysis Distinct

Raytheon v. Hernandez , 2003

Case Brief

FACTS:
 Respondent Hernandez was a 25 yr EE with D.
 One day respondent's appearance and behavior at work suggested he might be under influence of drugs or ETOH. Pursuant to

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company policy R took a drug test. Positive for cocaine.


 R admitted to using cocaine and was forced to resign.
 2 yrs later R applied to be rehired.
 In reviewing his application his personnel file was pulled and it showed he had left b/c of personal conduct.
 R's application was rejected b/c company has policy against rehiring empoyees who were terminated for
 workplace misconduct.
 No idea he was a former drug addict.
 EEOC found reasonable cause to believe R was not rehired b/c of his disability- record of past ETOH and drug use.
 Dist ct granted D's motion for SJ regarding R's disparate treatment claim.
 Dist ct refused to consider R's disparate impact claim b/c R failed to plead or raise the theory in a timely manner.
 9th Cir agreed disparate impact claim was barred but reversed the disparate treatment claim using McDonnell
Douglas Anaysis.
1) R was "disabled" when he quit to avoid discharge and R qualified for the new position
2) burden shifted to D to provide LNDR for not rehiring R.- company policy. This shows ER's actions not motivated by
R's disability.
3) burden shifts to R to prove D's LNDR is really pretext.
 Ct of Appeals erred by holding the company's LNDR [policy] was unlawful b/c of its disparate impact on former drug
addicts. USSCt says wrong analysis. Ct of Appeals confusing disparate impact w/ disparate treatment. Here the policy
is a LNDR under the ADA.

ISSUE:

RULE:

Disparate treatment vs disparate impact:


 Disparate treatment: ER simply treats some people less favorably than others b/c of their race, color, religion, sex, or
other protected characteristic. Liability depends on whether the protected trait actually motivated the ER's
 decision. [ER has intent to discriminate]
 Disparate impact: involves 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 cannot be justified by business necessity. A facially neutral
employment practice may be deemed illegally discriminatory without evidence of the ER's subjective intent
to discriminate that is required in a disparate treatment case.
Class Notes
 here there is a blanket policy against hiring drug users- LNDR.
 discrimination based on disparate tx [ur treating some1 differently b/c of....] and impact [involves a policy neutral on its face
 that has a disparate impact on a protected class}
 disparate impact involves a neutral policy on its face
 Raytheon suggests you must put other party on notice of the particular pleading
assuming this is a disparate treatment claim under ADA you are disabled if you were a drug addict not rehired after you stopped
your drug use. All ER has to do is claim LNDR such as the policy here.

B. Relationship bw Disparate Impact and Treatment Where There is a Statistical

1. Note on Relationship bw Individual and Systemic Disparate Tx Cases

Topic Notes
 Question is whether the resolution of the systemic claims can help or hinder the individual cases being litigated.
 Demonstrating a systemic pattern of intentional discrimination creates a presumption that the individual members of the
 racial group in question had themselves been discriminated against on account of race.
 The ER can avoid granting relief to individual members of the class only if it can carry the burden of persuasion that
 each individual was not a victim of individual disparate treatment.
 Failure of the systemic claims does not cut off the right of individuals making up the class to advance claims of
 individual disparate treatment.
 Crucial difference b/w individual claims of discrimination and a class action alleging a general pattern/ practice of
discrimination is that the inquiry regarding an individual's claim is the reason for a particular employment decision, while at
the liability stage of a pattern/ practice trial the focus will not be on individual hiring decisions, but on a pattern of

discriminatory decision making.
Even when it is established that there is no practice or policy of discrimination, individual Ps can still claim that the challenged
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action was the product of individual disparate treatment.

C. Reconciling the Tension bw Disparate Treatment and Disparate Impact

Topic Notes
 Professor Laycock believes there is a fundamental inconsistency b/w the statistical showings for the 2 systemic theories.
1) Teamsters court assumes that but for discrimination the ER's work force would in the long run mirror the racial
composition of the labor force from which it was hired. This conclusion requires the assumption that black and
white populations are substantially the same in all relevant ways, so that any differences in result are attributable to
discrimination.
2) This assumption, which is so critical to statistical disparate treatment cases, is fundamentally inconsistent with
the policy premise of disparate impact theory.
3) Disparate impact theory insists that ERs require only those skills necessary to the job.
4) It is clear that what is wrong with this idea of turning all disparate treatment defenses into disparate impact claims
is the 2 theories are inconsistent.
5) The disparate treatment 1/2 of the strategy assumes black and white populations or men and women populations
are identical.
6) The disparate impact 1/2 assumes that they are greatly different. This pair of inconsistent assumptions lets the P
prove discrimination, but the proof is invalid.
 Thought on Professor Laycock's belief:
 Disparate impact liability focuses on the reasons an empoyer gives.
 ERs may not intentionally use prohibited factors; ERs may use any other criteria unless they have a disparate impact, in
which case they may be used only if justified.
Disparate treatment and disparate impact principles seem to work in conjunction to achieve the basic goals of T7.

1. Note on Nature vs Nurture

V. Disability Discrimination
A. Intro

Topic Notes
T1 covers most employment agencies, labor orgs., and ERs, including state and local govts.
T2 generally prohibits disability discrim by state and local govts, may also prohibit employment discrim.
Private ERs are subject only to T1, but state and local public ERs may be subject to T1 and T2.
Rehabilitation Act of 1973 required most fed contractors and fed executive agencies to take affirmative action to employ and
promote qualified persons with disabilities. Also protects such persons from disability discrim in any program or activity that
receives fed financial assistance or is conducted by a fed executive agency.
Congress, in enacting ADA, found discrim vs disabled to be pervasive and costly.

B. Meaning of Disability

Topic Notes
 To claim protection under the ADA, a P must be "a qualified individual with a disability"; that is, the P must be an
 individual with a disability who can perform essential job functions with or without reasonable accommodations.
 ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one or
more of the major life activities of an individual; (2) a record of such an impairment; or (3) being
 regarded as having such an impairment.
 Excluded as a disability homosexuality, bisexuality, other sex related conditions, and compulsive gambling,
kleptomania, pyromania, and disorders resulting from illegal use of psychoactive drugs.
 Factors to be considered to see if person is substantially limited in a major life activity include: (1) nature and severity of
impairment; (2) duration or expected duration of the impairment; and (3) the permanent or long term impact, or the
 expected permanent or long term impact of or resulting from the impairment.
 KEY--> ADA does not depend on establishing an actual, present disability. A record can be enough if it meets #1 defn
 of disability.
 For disability defn #3: "regarded as having such an impairment" means: (1) a person who does not have disability
that substantially limits a major life activity but is treated by others as having such an impairment.
In Airline, the USSCt considered this 3 prong meaning of disability. A teacher was fired b/c the school believed her TB posed a

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health threat to others. The Ct held the teacher was covered as having a disability since she was fired b/c of the contagiousness
which was caused by her underlying condition/ impairment. KEY--> Unfair for an ER to distinguish b/w the effects of a disease
on others and the effects of a disease on a patient and to use that distinction to justify discriminatory intent.

1. Actual Disability

Bragdon v. Abbott , 1998

Case Brief

FACTS:
 Abbott infected with HIV 1986. She was asymptomatic and went to dentist, Bragdon, for appointment. She disclosed her
HIV on patient form. Bragdon, as part of his policy, refused to fill her cavity since she had HIV. He offered to do it at
 hospital at no additional charge. She would have to pay for hospital.
 Abbott sued Bragdon under ADA alleging discrim on basis of her disability.
ISSUE: (1) Whether HIV is a disability under the ADA when the infection has not progressed to the symptomatic phase. (2) Does
HIV affect a major life activity?
RULE: The Test for "disability" requires examination of 3 separate elements: (1) physical or mental impairment (2) that
substantially limits (3) one or more major life activities.
Ct Analysis:
1. Is HIV a disability under ADA?
 ct looked to ADA defn of disability. Found HIV fits under defn of disability as being an impairment that substantially limits
1 or more major life activities of the individual.
 ct made this finding after a 3 step process: (1) was HIV a physical impairment? (2) Does the life activity Abbott relies
 on constitute a major life activity? (3) Does the impairment substantially limit the major life activity?
 Ct looks at Congressional intent and sees that Congress intended the ADA to grant at least as much protection as the RA.
 For step 1 Ct finds that HIV falls within the general defn set forth in the RA. Based on the stages of HIV the Ct holds it is an
impairment from the moment of infection. it causes immediate abnormalities in the blood and wt cell count. For these
 reasons the Ct holds that HIV is regarded as a physiological disorder.
 Step 2: Does HIV affect a major life activity? Yes.
 Ct makes this finding based on the substantial limitation HIV has an the ability to reproduce and bear children. Reproduction
 is a major life activity. Ct looks to RA and in so doing finds reproduction to be a major life event.
 Step 3: Was HIV a substantial impairment on her reproduction? Yes. HIV limited her ability to reproduce in 2 ways: (1) the
risk reproduction imposes on the partner, and (2) the risk she imposes on the child. KEY--> Ct says "substantial limitations"
 does not equal utter inability.
 Ct finds support for its holding that HIV is covered under the ADA. Congressional intent supports this finding based on
the fact that ADA adopted RA definition of disability.
CONCLUSION: HIV is covered under the ADA.

Notes:
2. EEOC stated that "physical or mental impairment" does not include physical chars, such as weight, height, and eye color, that
are in the normal range and not a result of a physiological disorder. Neither is pregnancy an impairment.
5. RA contains no language suggesting it is linked to how an individual became impaired. Therefore, voluntariness is
only relevant in determining whether a condition has a substantially limiting effect.
11. In Furnish, the ct distinguished b/w an impairment's effect on a body system versus the impairment's impact on activities.
Under the ADA, only when the impact of the illness substantially limits a major life activity is an individual considered
disabled under the ADA. The ct rejected P's claim that liver function was a major life activity that was substantially affected by
his infection with Hep B.

Key Points

The Test for "disability" requires examination of 3 separate elements: (1) physical or mental impairment (2) that
substantially limits (3) one or more major life activities.

Toyota v. Williams , 2002

Case Brief
FACTS:

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 Williams [R] worked with pneumatic tools at Toyota.


 R claiming to be disabled b/c of her carpal tunnel syndrome sued Petitioner for failing to provide her w/ a
 reasonable accommodation as required by ADA.
 R worked for P from 1990 on the engine fabrication assembly line using pneumatic tools. Use of these tools caused her pain
 in her hands, wrists, and arms. Shge went to Dr. and he said for her not use pneumatic tools.
 For next 2 yrs P assigned her to modified jobs in QCIO. R performed these jobs satisfactorily.
 1996 P made QCIO EE rotate thru all 4 QCIO processes. R began to have neck and shoulder pain.
 R requested P accommodate her condition and allow her to return to her original 2 jobs in QCIO.
 R claims P denied he request. P says R just began to miss work.
 Last day R worked, De. 6, 1996 she was placed on a no-work-of-any-kind restriction by her Dr. Jan 27, 1997 R was fired
 for poor attendance.
 Dist Ct granted SJ to Petitioner finding impairment did not sbstlly limit any major life activity.Also at time she
 requested accommodation she was not disabled.
 Ct Appels reversed and granted partial SJ finding impairment did sbstly limit a major life event of performing manual tasks.
 This Ct granted certiorari.
ISSUE: What is the proper standard for assessing whether an individual is sbstly limited in performing manual tasks under the
ADA?
RULE: To be substantially limited in performing manual tasks, an individual must have an impairment that prevents or
severely restricts the individual from doing activities that are of central importance to most people's daily lives. The
impairment must also be permanent or long-term. If so then disabled under the ADA. Ct Analysis:

 Congress intended the existence of a disability to be determined on a case by case basis.


 ADA requires those seeking its protections to prove a disability by offering evidence that the extent of the limitation caused
by their impairment in terms of their own experience is substantial.
1) Ct analysis:
 look 1st to the defn of disability under the ADA. "substantially limits" means impairments that interfere in considerable/
major way with the performance of manual tasks, NOT minor interferences.
 Look 2nd to defn to major life activity under ADA: finds it refers to those activities that are of central importance to daily
 life. For manual tasks to fit in this category they must be central to daily life.
 Ct of Appeals analysis wrong b/c it focused on R's inability to perform manual tasks associated only with her job.
 The correct analysis would be" When addressing the major life activity of performing manual tasks, the central inquiry must
be whether the 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.
CONCLUSION: Ct of Appeals reversed and remanded.

Notes:
2. Ct agreed w/ 6th Cir that performing manual tasks is a major life activity. But to be such the manual tasks must, singly
or together, be central to daily life.
9. In Bristol, 10th Cir held that determining whether something constitutes an impairment or major life activity is a question
for the ct, but whether the impairment substantially limitsd the major life activity is a question of fact for jury.
13. In Albertson's v. Kirkinsburg, USSCt held that the fact that an impairment requires an individual to perform a major life
activity differently does not mean it is substantially limiting.
Sutton v. United Airlines , 1999

Case Brief
FACTS:
 Ps are twin sisters who have severe myopia causing there uncorrected vision to be 20/200 or worse, but with corrective
lenses vision is corrected to 20.20 or better.
 Ps applied for employment as pilots.
 Ps were given interviews, but told during interview they did not meet minimum qualifications b/c minimum vision
 requirement was 20/100 or better uncorrected.
 P were not offered positions and filed suit alleging R had discrim against them on the basis of their disability, or b/c
 R regarded Ps as having a disability in violation of the ADA.
 Dist ct dismissed Ps complaints for failure to state a claim. Ct of Appeals 10th Cir affirmed.
ISSUE: In determining whether an individual is substantially limited with respect to a major life activity under the disabled
defn of the ADA, must such disability be determined taking into consideration any corrective measures? Yes.
RULE: In determining whether an individual is substantially limited with respect to a major life activity under the
disabled defn of the ADA, such disability must be determined taking into consideration any corrective measures.
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Ct Analysis:
1) Did Ps state a claim under the defn of disability/ did they allege they possess a physical impairment that sbstly limits them
in one or more major life activities?
a) To decide this it must be decided whether disability is to be determined with reference to corrective measures or not.
i) P argues whether an impairment is sbstly limiting should be decided w/o regard to corrective measures.
ii) D argues an impairmnet does not sbstly limit a major life activity if it is corrected. Says EEOC guidelines conflict with plain
meaning of ADA. Under ADA corrective measures must be taken into account to determine if impairment sbstly limits major life
activity. Sighting Congressional intent not to include as disabled those whose impairment s could be corrected, defn of disabled
takes a present view of whther the impairment is sbstly limiting and with corrections there is no sbstl limitation.
Dissent Stevens:[ I agree]
 If we apply customary tools of statutory construction, it is clear that the threshold question whether an individual is disabled
under the ADA focuses on her past or present physical condition without regard to mitigation that has resulted from
rehabilitation, self-improvement, prosthetics, or medication.
 Must look at statutory construction and ask: (1) whether the determination of disability for people that Congress intended to
cover should focus on their unmitigated or mitigated conditions? Statutes 3 prong defn shows it includes the unmitigated
condition. Otherwise, there would have been no reason to add subsection B which covers a person who previously had a
condition that is recorded. Legislative hx also shows unmitigated was intended based on Senate Reports and HR reports.
 The simple inquiry here was whether the Ps are members of the ADA's protected class.
Dissent Breyer:
If the interpretation of including unmitigated conditions opens the flood gates for litigation than the EEOC could,
through regulation, restrict the definition of disability not to include unmitigated.
CONCLUSION: Ps have no claim b/c not protected class members under the ADA since not disabled b.c impairment was
corrected.
Notes:
2. Article said that disability should be understood as a "condition in which people- b/c of present, past, or perceived
impairments- are viewed as somehow outside the norm for which society's institutions are designed and therefore likely to have
systematically less opportunity to participate in important areas of public and private life."
4. Murphy was decided same day as Sutton, considered disability discrim claim of mechanic dismissed b/c of high BP. P claimed
disability determination should be made w/o regard to meds he took to control BP. Ct rejected this. After Sutton Ps must develop
factual records to support their impairmnet is sbstly limiting even when controlled by meds.
5. What happens if it is the meds that cause the impairment to be sbstly limiting to a major life activity?
6. Should an individual be covered by ADA if his impairment is sbstly limiting only b/c he fails to control an otherwise
controllable illness such as diabetes? Most cts say not covered.
A. Note on Deference to the EEOC

Topic Notes
 To what extent is the EEOC entitled to meaningful deference from cts in its interpretation of the statutes it administers?
 What judicial deference, if any, is due the materials promulgated by the EEOC?
 T1 of ADA confers substantive rule making authority on the EEOC. So issues concerning what constitutes an essential
job function, a reasonable accommodation, an undue hardship, or a direct threat [issues under T1] would be subjected to
 the interpretive authority of the EEOC.
 in Chevron, USSCt recognized that agency interpretations of silent or ambiguous statutes are due deference from the cts when
Congress has delegated law-interpreting power to the agency. But no deference given if Congress itself has spoken to the
precise question at issue.
Skidmore deference has also been given to agency when it had not been delegated interpretive authority such an interpretation is
given persuasive authority depending on the thoroughness of its consideration, validity of its reasoning, its consistency with
precedent.
B. 1

C. 2

2. Record of such an Impairment

Topic Notes
 ADA defines disability to include having a record of an impairment that sbstly limits a major life activity.
 The impairment indicated in the record must be 1 that would sbstly limit 1 or more major life activities.
 What ev is necessary?
 More than the mere existence of a record of a hospital stay is required.
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Can individuals with learning disabilities establish ADA coverage? In Davidson, a psychotherapist was able to do so based on
the history of the impairment limiting her ability to learn.

A. 3

3. Regarded as having such an Impairment

Sutton v. United Airlines , 1999

Case Brief
FACTS:
See earlier case facts above.

ISSUE: Where a P seeks to show that an ER's requirement sbstly limits the major life activity of working, must the P allege he is
unable to work in a broad class of jobs, and not a single job, as compared with the average person having comparable training,
skills, and abilities? Yes.

RULE: When the major life activity under consideration is that of working, the statutory phrase "sbstly limits" requires,
at a minimum, that Ps allege they are unable to work in a broad class of jobs, and not a single job, as compared with the
average person having comparable skills, training, and abilities.

APPLICATION:
 Ps failed to allege that their poor eyesight is an impairment that sbstly limits their major life activity of working. The only
job they were limited by regarding working has been being a pilot and there are other jobs available ie pilot instructor,
 regional pilot...
 An otherwise valid job requirement does not become invalid simply b/c it would limit a person's employment ops in a
sbstl way if it were adopted by a sbstl number of ERs.
CONCLUSION: claim dismissed.

3. Retaliation and Interference

Topic Notes
 In Krouse the ct held that b/c the language of ADA retaliation provision protects "any individual," a P asserting a retaliation
claim under ADA need NOT establish he is qualified individual w/ a disablility. Nor does he need to establish that the
conduct he complained of actually violated the statute as long as he can establish he had a good faith, reasonable belief that
the challenged actions violated the law. [So if A makes a claim for vegetable B and A is then retaliated against A can make a
 claim under ADA even though A is not disabled.]
 ADA's anti-retaliation provision is broader than T7 or ADEA.
Fogelman held that a son who claimed he was retaloiated against b/c of his father's suuit could not succed in a retaliation claim
under ADEA- ct held ADEA did not reach the son's claim b/c it protects only persons who themselves have engaged in
protected activity. Ct did hold that a 3rd party retaliation claim was cognizable under the ADA- ct said it is the ER's intent, not
the EE's actions, that are determinative.

4. Harassment

Topic Notes
 A hostile work environment claim may be brought under the ADA.
Hostile work environment claim may arise when P can show he was targeted for harassment either b/c of his disability or
his request for accommodation.

G. Title II of ADA

Topic Notes
 T2 may also prohibit disability discrim in certain public employment.
 T2 provides: Subject to the provisions of this title, no qualified individual w/ a disability shall, by reason of such disability,
be excluded from participating in or be denied the benefits of the services, programs, or activities of a public entity, or be

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subjected to discrim by any such entity.


 Public entity: includes any state or local govt or agency.
 KEY --> T2 does not have the 15 EE minimum applicable under T1.
 Cir Cts are in disagreement as to whether T2 reaches employment discrim. Disagreement based on the definition of discrim
under T2. 9th Cir says it prohibits discrim only in the provision of services, programs, and activities. 11th Cir reads discrim
 as encompassing employment discrim.
 P may seek coverage under T2 b/c ER has less than 15 EEs or applicable procedures and remedies differ from T1. Also T2
 has longer SoL.
 KEY--> Remedies for T2 CoA do NOT include punitive dmgs. Remedies are those traditionally available for BoK.
T2 also has an accessibility requirement. The services, activities and programs must be readily accessible to and usable by
individuals with disabilities. This does have exception if such accessibility requirements cause and undue financial and
administrative burden. However, for new construction or remodeling the building must be readily accessible and usable for
disabled persons and there is no undue hardship or reasonable requirement defense here.

H. Rehabilitation Act of 1973

Topic Notes
 The Rehabilitation Act [RA] is useful as a remedy for disability discrim in employment.
 KEY--> RA covers the Federal govt as an ER, unlike the ADA.
 RA also sometimes provides more favorable enforcement procedures and remedies than ADA.
RA has 2 shortcomings: (1) very narrow coverage- applies only to federal ERs with a specified relationship w/ fed govt, such as
fed agencies, recipients of fed funding, and fed contractors. (2) RA fails to provide a discriminatee [P] w/a private rt of action for
disability discrim by a fed contractor.

1. Federal Employment

Topic Notes
 ADA does prohibit disability discrim in fed employment for EEs of House of Reps and the instrumentalities of Congress.
 RA is one of the few sources of law that protect fed EEs from disability discrim.
 RA requires each dept and agenct, and instrumentality in the executive branch to formulate and implement an affirmative
 action plan, and prohibits discrim against disabled.
 RA adopts the standard in T1 of ADA for determining whether disability discrim has occurred.
The remedies, procedures and rts for fed EEs the same as a T7 P.

2. Federal and Federally Assisted Programs

Topic Notes
 RA contains 2 coverage provisions: (1) prohibits disability discrim "under any program or activity receiving federal
financial assistance." (2) prohibits disability discrim "under any program or activity conducted by an Executive agency or by
 the US Postal Service."
 #1 creates interpretive problems- the meaning of "program or activity" and "receiving federal financial assistance."
 "receiving federal financial assistance:" has generally been held mean that direct or indirect federal monetary subsidy
 was intended for the entity.
 #1 has available remedies, procedures, and rts set forth in T6 of CRA. A private rt of action is available. Backpay and attorney
fees may be recovered, but not punitive dmgs.
#2 creates 2 issues: (1) does this provision prohibit covered agencies from discriminating against their own EEs or only against
public beneficiaries of agency conducted programs? (2) Does violation of this provision give rise to a private rt of action?

3. Govt Contractors

Topic Notes
 RA provides that: any K in excess of $10k entered into by any Fed dept or agency for the procurement of personal
property and nonpersonal service shall contain a provision requiring that the party King with the US shall take affirmative
 action to employ and advance qualified individuals with disabilities.
 Complaints are filed with the Dept of Labr and the Dept investigates.
 No private rt of action for such a discriminatee.
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KEY--> a V of disability discrimination by a fed contractor cannot obtain judicial relief under the RA.

VI. Procedures and Remedies


VII. Sexual and Other Discriminatory Harassment

Topic Notes
 Sexual harassment and other discriminatory harassment can violate T7 even if the victim suffers no adverse
employment decision or economic impact as a result.
 Sexual harassment and other harassment is frequently practiced in violation of company policy.
 Harasser is often satisfying his own personal interest, rather than the ER's.
This raises a new issue: what is the ER's liability for harassment by supervisors and co-workers in violation of company policy?

Meritor Savings Bank v. Vinson , 1986

Case Brief

PHx:
 P sued the bank's VP, Taylor and the bank, claiming she had constantly been subjected to sexual harassment by Taylor
during her 4 yrs of employment.
 Dist Ct denied P relief. Held she had voluntary sexual relationship with Taylor that had nothing to do with her employment
 at the bank or promotions/ advancements..
 Ct of Appeals reversed and remanded, finding unwelcome sexual advances violated T7.
 Appeal by Bank from reversal of the denial of relief in a sexual harassment case.
FACTS:
 Vinson (P) was hired by the bank (D) in 1974.
 P was later promoted to assistant branch manager on merit.
 P was discharged from the bank in 1978 for excessive use of sick leave.
 Vinson argues unwelcome sexual advances that create an offensive or hostile working environment violate T7.
 Bank contends, in passing T7, Congress was concerned with tangible loss of an economic character and not
 purely psychological aspects of the work place environment.
 As proof of this the bank looks to the legislative hx of the Act and precedent which it alleges this Ct's focus has been
 on tangible, economic barriers erected by discrimination.
 USSCt says wrong bank. 1st the language of T7 says nothing to suggest that Congress contemplated such limitations. 2nd, in
1980 the EEOC issued Guidelines specifying that sexual harassment is a form of sex discrimination prohibited by T7.
Further, it supports the view that harassment leading to noneconomic injury can violate T7.
 defining "sexual harassment" actionable under T7: unwelcome sexual advances,
 requests for sexual favors, and other verbal or physical conduct of a sexual nature.
 EEOC has defined sexual harassment in it s Guidelines to include sexual misconduct where
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.
[hostile work environment]
 T7 affords EEs the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Rogers
v. EEOC.
 P may establish a violation of T7 by proving that discrimination based on sex has created a hostile/ abusive work environment.
ISSUE: What is required for a person to have an actionable claim of sexual harassment?
RULE: For sexual harassment to be actionable, it must be sufficiently severe or pervasive as to alter the conditions of the
victim's employment and create an abusive working environment.
not all work place conduct that may be described as harassment affects a term, condition, or privilege of employment w/in the
meaning of T7.

APPLICATION:
 P's claim of rape and harassment suffice for stating a claim of hostile environment-sexual harassment.
 The fact that sex related conduct was voluntary is no defense to a sexual harassment suit under T7 since the gravamen of the
 claim is the alleged sexual advances were unwelcome.
 There is no per se rule against admitting evidence of the P's dress and personal fantasies.
 The determination as to whether there is sexual harassment must be made based on the record as a whole and the

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totality of the circumstances.


CONCLUSION: The statutory language is not limited to economic or tangible discrimination, but strikes the entire spectrum
of disparate treatment.
Court held that taking action against an EE b/c the EE rejected a supervisor's sexual advances is "b/c of sex."

Class Notes
 what does "unwelcome" mean? must be severe and pervasive to alter the work environment.
 2 argument s why "b/c of sex was added to T7: (1) to defeat the bill they added "b/c of sex" and (2) it was a well orchestrated
plan of feminist groups b/c there were several feminist groups in place that had started earlier w/ women sufferance and rt to
vote and had a broader plan that would culminate in the equal rts and they worked carefully to ensure sex got added at the
 last minute so that it would not be knocked out by debate.
 We do not now what "b/c of sex" means: could mean gender, sexual attraction, sexual orientation, gender identity- what
 you identify your gender to be.
 Harassment has to be b/c of one of the protected classes [linked to a protected trait].
 As a matter of law sexual orientation is not b/c of sex. So not covered by T7.
 Can there be same sex harassment under T7? yes if it is sexual attraction. In Meritor ct says sex is sexual attraction.
 No claim for sexual orientation but claim for sexual attraction. What if group of guys pulls down co-worker's pants b/c they
think he is gay, is that sexual harassment? no, b/c it is b/c he is gay- sexual orientation. But if a guy pulled down a woman's
pants it would be sexual harassment.
 For hostile work environment it has to be to the level of being sufficiently severe and / or
pervasive and unwelcome.
Should the V's dress be a factor to take into account.
Key Points
 conduct has to be unwelcome. Question is not whether conduct was voluntary.
 You may look at the dress and clothing for welcomeness.
 2 types harassment: (1) quid pro quo: asking for sexual favors in the work place.(2) hostile environment: has to be so
 severe and pervasive as to alter the workplace environment [single incident usually not enough for "severe and pervasive"].
 Vicarious liability if hostile environment and ER knows and does not remedy.
After this case and supervisor involved P's tried to argue their case was quid pro quo to go around the ER lack of knowledge
defense.

A. Harassment Because of Sex

Oncale v. Sundowner Offshore Services, Inc. , 1998

Case Brief

PHx:
 Oncale (P) sued D under Title 7 for sexual harassment.
 Dist ct granted D SJ stating a male has no CoA under Title 7 for harassment by male co-workers.
 5 Cir ct affirmed.

FACTS:
 P worked for D on an oil platform in the Gulf of Mx. He was on an 8 man crew.
 Lyons and Pippen had supervisory authority.
 On several occasions P was subjected to humiliating sex-related acts against him by Lyons, Pippen, and Johnson.
 Pippen and Lyon also physically assaulted P in a sexual manner, and Lyon threatened rape.
 P complained to supervisors but nothing was done.
 P quit and asked his pink slip to state he left due to sexual harassment and verbal abuse.
ISSUE: Can workplace harassment violate Title 7 if the harasser and harassed EE are of the same sex? Yes.
RULE: [Scalia] Workplace harassment can violate Title 7 even if the harasser and harassed EE are of the same sex.
APPLICATION:
 When the issue arises in the context of a "hostile environment" sexual harassment claim, the state and fed cts have taken
a variety of positions.
 No justification in statutory language or precedent for the exclusion of same sex harassment claims under Title 7.
 Sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
 Critical issue is whether members of 1 sex are exposed to disadvantageous terms or conditions of employment to which
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members of the other sex are not exposed. Harris


 Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on basis of sex.
 P may be able to show sex harassment based on difference of treatment of one gender over another.
 P must always prove conduct at issue was not merely tinged with offensive sexual connotations, but actually
 constituted discrimination b/c of sex.
 Title 7 forbids behavior so objectively [as judged from the perspective of a reasonable person in P's
position, considering all the circumstances] offensive as to alter the conditions of the v's employment.

Class Notes
 If there was a single woman out there and she was being harassed it would be easy to say she was being treated that way
"b/c of her sex."
 If male on male harassment than if harasser is gay then this may be proof of sexual harassment, but if harasser not gay
 then harder to show "b/c of sex."
 Consideration of the social context of the behavior has to be taken into account. Ex. not same sex harassment when
football player slapped on butt by coach.

B. Unwelcome conduct

Topic Notes
 Last class: Intro to sex-b/c of sex? What does that mean?
 Meritor Savings- harassment
 Quid pro quo Hostile environment
 unwelcome
 pervasive
 will not cover Matvia today- should get to Suder
Today: more about sexual harassment and the ER's Affirmative Defense

Burns v. McGregor Electronic Industries , 1993

Case Brief
PHx:
 Burns filed suit against D alleging sexual harassment.
 The Dist CT held that Oslac did make unwelcome sexual advances towards Burns, but bc/ of her history she would not
 have been offended by these advances.
 Trial ct said 2 elements needed for establishing sexual harassment: (1) whether the conduct was unwelcome b/c it was
 not solicited or invited and (2) whether the conduct was offensive to the P.
 Ct of Appeals says the 2nd requirement is wrong. B/c the gravamen of any sexual harassment claim is that the alleged
sexual advances are unwelcome.
FACTS:
 Burns was employed by D.
 During her employment her manager-trainee Marla often made inappropriate sexual comments as Brns left the restroom.
 She also made daily comments to other workers about Burns.
 Burns testified that Oslac, the company owner, talked to her about sex, asked her to watch pornographic movies w/ him,
 and made lewd gestures.
 When Burns refused Oslac's weekly requests for dates he told her she must not need her job very badly.
 Burns allowed her father to take nude photos of her and the pics appeared in 2 magazines.
ISSUE: Is the threshold for determining that sexual advances are unwelcome and constitute harassment whether they
are uninvited and offensive? YES.
RULE: The threshold for determining that sexual advances are unwelcome and constitute harassment is whether they are
uninvited and offensive.
For the lower ct to find the conduct was unwelcome but not offensive is inconsistent as a matter of law.
 Burns choice to pose nude for a magazine is immaterial to the issue of whether she found Oslac's work related
conduct offensive.
Class Notes
your character comes into issue as a P
Key Points

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 How you dress outside the workplace does not mean you are welcoming certain behavior in the workplace.
Can look at what you do in the workplace [ie clothing and appearance in workplace can be determinative and relevant].

C. Severe or Pervasive Harassment

Harris v. Forklift Systems Inc. , 510 U.S. 17, 1993

Case Brief
FACTS:
 Teresa Harris (P) worked as manager for D, an equipment rental company, from April 1985-Oct 1987.
 Hardy was Forklift's president.
 Hardy often insulted P b/c of her gender and made her the target of unwanted sexual innuendoes.
 Other EE witnessed Hardy's actions.
 In mid-August P complained to Hardy about his conduct. Hardy apologized and said he would stop.
 In early Sept, Hardy started again and on Oct 1 P quit.
 P sued D for sex discrimination under T7, claiming Hardy's conduct had created an abusive work environment.
 PHx: Dist Ct and Ct of Appeals found it was a close case, but held Hardy's conduct did not create an abusive environment
even though his comments would have offended a reasonable woman, but they were not severe as to seriously effect her
 psychological well-being.
 P appealed and the USSCt granted certiorari to resolve whether conduct, to be actionable as abusive work
environment harassment, must seriously effect an EE's psychological well-being or lead the P to suffer injury.
ISSUE: Whether conduct, to be actionable under T7 as abusive work environment harassment, must seriously effect an EE's
psychological well-being or lead the P to suffer injury. No.
RULE: Sexual harassment is not required to be psychologically injurious in order to constitute an abusive work
environment.
APPLICATION:
 Standard: When the work place is permeated with "discriminatory intimidation, ridicule, and insult," that is
"sufficiently severe or pervasive to alter the conditions of the victim's employment," T7 is violated.
 If the V does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of
 the V's employment and there is no T7 violation.
 Dist Ct erred in relying on whether the conduct "seriously affected P's psychological well-being" or led her to "suffer injury."
 Psychological harm is not an element required by T7.
 So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it
also to be psychologically injurious.

J. Scalia Concurring:
 The standard the majority states does not provide any clear guidance to trial cts and juries. However, the language of
the statute is so vague that there is no other alternative.
Class Notes
 there is an objective and subjective requirement. Conduct that is not severe or pervasive enough t create an objectively hostile or
abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond T7's purview.
 You don't need psychological injury.
Key Points
Objective std and subjective std.

1. Note on Liability for Single Incidents of harassment

Topic Notes
 Meritor requires that harassment be severe or pervasive. So does this mean one serious incident is not enough?
 Jones v. Clinton the single incident was not sufficiently severe to constitute sexual harassment.
 Some cts find serious single incidents of harassment sufficient to establish liability under T7, especially if complaint
involves physical contact.
Cts reluctant to find actionable harassment for single incidents of verbal harassment.

2. Note on the Reasonable Person Standard

Topic Notes
 Harris judges harassment by an objective standard: a reasonable person in her position must feel harassed.
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 Should harassment be judged from the perspective of a reasonable woman or V?


 9th Cir:
1) Ellison (1991) standard used was analyze the harassment from V's perspective. Take into account that conduct many
men consider unobjectionable may offend many women.
2) after Harris new standard used: whether the workplace is objectively hostile must be determined from the perspective of a
reasonable person with the same fundamental characteristics.
Michigan SCt standard: rejects the reasonable woman standard. A reasonable person standard examines the totality of
the circumstances to ensure a fair result. No use of the gender-conscious standard b/c it allows stereotypes to be applied.

D. Vicarious Liability

Burlington Industries v. Ellerth , 524 U.S. 742, 1998

Case Brief
PHx:
 EE of D, Ellerth (P) sued ER under T7.
 Dist ct- SJ was granted to ER.
 Ct of appeals reversed.
FACTS:
 EE P is Ellerth. Worked as sales person for D from March 1993- May 1994.
 subjected to constant sexual harassment by her supervisor, Slowick.
 Slowick was a mid-level manager and not Ellerth's immediate supervisor.
 Ellerth worked as salesperson and was subject to constant sexual harassment by her supervisor, Slowik. She wants the Ct. to
recognize three incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. During her
tenure at Burlington, she did not inform anyone about Slowik's conduct even though she knew that Burlington had a policy
against such harassment.
ISSUE: whether under T7 an EE who refuses the unwelcome and threatening sexual advance of a supervisor, yet suffers
no adverse job consequences, can recover against the ER without showing the ER is negligent or otherwise at fault for the
supervisor's actions.
RULE: ERs are subject to vicarious liability for a hostile working environment created by a supervisor with
authority over a victimized EE.
REASONING: There are quid pro quo cases and hostile work environment cases. The latter requires a showing of harassment
that is severe and pervasive. The terms are relevant when there is a threshold question whether a plaintiff can prove
discrimination in violation of T7. Ellerth is asserting a hostile work environment claim. → ISSUE: whether an ER has vicarious
liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or
conditions of employment, based on sex, but does not fulfill the threat.
RULE: An ER is subject to vicarious liability to a victimized EE for an actionable hostile environment created by a supervisor
with immediate authority over the EE. When no tangible employment action is taken, a defending ER may raise an affirmative
defense to liability or damages, subject to proof by preponderance of the evidence. The defense comprises of two elements:
1) that the ER exercised reasonable care to prevent and correct promptly any sexually harassing behavior
2) that the plaintiff EE unreasonably failed to take advantage of any preventive or corrective opportunities provided
by the ER to avoid harm or otherwise.
HOLDING: Burlington is still subject to vicarious liability, but it must have an opportunity to prove the affirmative defense.

Class Notes
 If it is a quid pro quo claim it is in itself establishing a hostile environment and no need to establish it is severe or pervasive.
 Meritor ct said you might have a defense if ER did not know. So ER created sexual harassment policies so EE could
 advise them of sexual harassment and if the EE did not then not ER's fault.
 Here we gao into the question of how to deal with a supervisor who is doing the sexual harassment.
 no tangible employment action is taken: this is important b/c used to establish vicarious liability
 If a tangible employment action is taken against the ER then ER is subject to vicarious liability and has no affirmative defense.
 The defense only applies when no tangible employment action is taken.
When no tangible employment action is taken, a defending ER may raise an affirmative defense
to liability or damages subject to proof by a preponderance of the evidence. The defense
compromises 2 necessary elemente: (a) ER exercised reasonable care to prevent and correct
promptly any sexual harassing behavior [has a sound sexual har policy in place thaht is
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enforced] and (b) that the P EE unreasonably failed to take advantage of any preventive or
corrective opportunities to provided by the ER or to avoid harm otherwise [I had in place a
sound fair sexual harassment policy in place but the empployee did not use it].
Key Points
 When lower level supervisor they are not acting within the scope of their employment when they harass.
 When supervisor takes a tangible employment option for harassment than ER is vicariously liable b/c their agent can
 take tangible job options and does so under the ERs authority.
 If no tangible job action taken then ER has affirmative defense of not having knowledge of teh harassment.
2 parts of the affirmative defense: (1) ER had an effective sexual harassment policy in place
{widely disseminated and known by ERs and when used it is effective] (2) EE failed to use
the policy.

Pennsylvania State Police v. Suders , 542 U.S. 129, 2004

Case Brief
Suders alleges sexual harassment by her supervisors. Says severity of harassment forced her to resign. Suders was accused of
taking a file home with her, so Suders contacted Smith - Elliot, Equal Opportunity Employment Officer stating that she was being
harassed and was afraid. Suders was told to file a complaint, but she was not given information on how to obtain the necessary
forms. Suders was arrested and forced to resign for the force. District Court said Suders' hostile work environment claim was
untenable because she unreasonably failed to avail herself to the PSP internal procedures for reporting harassment (second prong
of aff. Defense test). Third Circuit reversed because it said b/c it was not clear that PSP program against sexual harassment was
effective and because Suders had a constructive discharge claim.
ISSUE: Whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and
therefore precludes assertion of the affirmative defense.
HOLDING: An ER does not have recourse to the affirmative defense when supervisor's official act precipitates the constructive
discharge.
Constructive Discharge Doctrine: an EE's reasonable decision to resign because of unendurable working conditions
is assimilated to a formal discharge for remedial purposes. This is an objective inquiry.
JUDGMENT: Court of Appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in
constructive discharge cases.
DISSENT: Court has adopted a definition of constructive discharge that does not resemble actual discharge. It is possible to
allege a constructive discharge absent any adverse employment action.
2 prongs for affirmative defense for an ER: To prevail on the basis of the defense, the ER must prove
that "(a) [it] exercised reasonable care to prevent and correct promptly any sexually
harassing behavior," and that (b) the EE "unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the ER or to avoid harm otherwise."

Must point to an official action related to the constructive termination to say it is a tangible
employment action.

Class Notes

Sex Harassment:
Meritor- unwelcome not about voluntariness- hostile environment: severe and pervasive usually more than a single act.
[how you dress may be relevant to ? of welcomeness]
Harris- objective: reasonable person and subjective: actually abusive.
-psychological injury not required.

Ellerth: ER says if we had only known we would have taken action. In Meritor it was suggested when this was the case the ER
should be able to raise it as a defense. If you never notify ER has no opportunity to stop it. Makes sense when co-worker
harassing co-worker, but what about if it is a supervisor? should ER be held vicariously liable or is defense still good?
Ellerth is only about supervisor actions. What do we do when we want to bring a sexual harassment claim can the ER raise the
defense? Meritor resulted in sexual harassment policies being enacted in companies. Co-workers are not agents of the ER-
negligence. Supervisor is an agent.
After Meritor you always tried to frame your case as prid pro quo so there are no issuse concerning policy in place
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If co-worker harassing you and ER has good fair policy and effective responses then ER has defense.

Effective policy: used as adefense by ER. Can be rebutted by EE as to not being effective.

When there are supervisor actions only:


If supervisor see 1st ask is there a tangible employment action taken. If yes then ( 2) vicariously liable and does not matter about
state of knowledge of ER. But if no tangible job action taken than ER has the affirmative defense in Ellerth: (1) [it]
exercised reasonable care to prevent and correct promptly any sexually harassing behavior,"
by having an effective anti-harassment policy that works and that (2) the EE "unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the ER or to
avoid harm otherwise."[did not use it or let the ER know]

In Ellerth was there tangible job action? Just quit. Is constructive discharge actionable? yes, if it gets to the level of
a tangible job action
Key Points
Although recognizing that Suders' testimony would permit a fact trier to conclude that her supervisors had created a hostile work
environment, the court nevertheless held that the PSP was not vicariously liable for the supervisors' conduct. In support of its
decision, the District Court referred to Faragher v. Boca Raton, decided the same day, this Court held that an ER is strictly
liable for supervisor harassment that "culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment." But when no such tangible action is
taken, both decisions also hold, the ER may raise an affirmative defense to liability. To prevail
on the basis of the defense, the ER must prove that "(a) [it] exercised reasonable care to
prevent and correct promptly any sexually harassing behavior," and that (b) the EE
"unreasonably failed to take advantage of any preventive or corrective opportunities provided
by the ER or to avoid harm otherwiseSuders' hostile work environment claim was untenable as a matter of law, the
District Court stated, because she unreasonably failed to avail herself of the PSP's internal antiharassment procedures. The court
did not address Suders' constructive discharge claim.
The Third Circuit reversed and remanded the case for trial. The appeals court disagreed with the District Court in two key
respects: First, even if the PSP could assert the Ellerth affirmative defense, genuine issues of material fact existed about the
effectiveness of the PSP's program to address sexual harassment claims; second, Suders had stated a claim of constructive
discharge due to hostile work environment. The appeals court ruled that a constructive discharge, if proved, constitutes a
tangible employment action that renders an ER strictly liable and precludes recourse to the Ellerth < affirmative defense.
Held: To establish "constructive discharge," a plaintiff alleging sexual harassment must show that the abusive working
environment became so intolerable that her resignation qualified as a fitting response. An ER may assert the Ellerth affirmative
defense to such a claim unless the plaintiff quit in reasonable response to an adverse action officially changing her employment
status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable
working conditions. Pp. 2351-2357.

Matvia v. Bald Head Island Management, Inc. , 2001

Case Brief

Rule: An ER is not strictly liable for a supervisor's sexual harassment of an EE where the EE receives a raise and a
promotion, the ER has in place a sexual harassment policy and enforces it upon learning of sexual harassment, and the
EE fails to report the misconduct promptly.
BHIM hired Matvia as housekeeper. Her supervisor, Terbush, started giving Matvia unwanted attention. Matvia told BHIM
officials about the harassment, and Terbush was fired for harassing her. BHIM had sexual harassment policy. After Terbush
fired, Matvia says she was treated differently by her co-workers.
ISSUE: Was there a tangible employment action? Or is BHIM allowed to assert the affirmative defense?
HOLDING: Not tangible employment action in this case, so BHIM can raise the affirmative defense.
REASONING: BHIM has an adequate policy in place and properly prevented / corrected the improper behavior of Terbush.
Matvia did not take advantage of preventative opportunities because she investigated on her own before reporting to her ERs.
JUDGMENT: BHIM not liable because it has proved both prongs of affirmative defense.

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To prevail on the basis of the defense, the ER must prove that "(a) [it] exercised reasonable
care to prevent and correct promptly any sexually harassing behavior," and that (b) the EE
"unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the ER or to avoid harm otherwise."

Matvia v. Bald Head Island Management: BHIM hired Matvia as housekeeper. Her supervisor, Terbush, started giving Matvia
unwanted attention, making unwanted advances. Matvia told BHIM officials about the harassment only after he forcibly tried to
kiss her, and Terbush was fired for harassing her. BHIM had sexual harassment policy. After Terbush fired, Matvia says she was
treated differently by her co-workers, but she was promoted and given raises in light of the harassment. Matvia filed Title 7 claim,
and district court granted summary judgment for BHIM in light of an affirmative defense that allows an ER to avoid strict
liability for a supervisors sexual harrasment if no tangible action was taken against the EE and the ER exercised reasonable care
to prevent and correct promptly any harassing behavior, and that the EE unreasonably failed to take advantage of any preventative
or corrective opportunities.
ISSUE: Was there a tangible employment action? Or is BHIM allowed to assert the affirmative defense?
HOLDING: Not tangible employment action in this case because she was not demoted, or fired, so BHIM can raise the
affirmative defense.
REASONING: BHIM has an adequate policy in place and properly prevented / corrected the improper behavior of Terbush.
Matvia did not take advantage of preventative opportunities because she investigated on her own before reporting to her ERs.
Matvia argues - received benefits in exchange for her silent suffering; the court rejects
The fact that the other co-workers ostracized here is irrelevant because once the harassment was reported it stopped.
JUDGMENT: BHIM not liable because it has proved both prongs of affirmative defense.

Class Notes
enough here to say harassment was severe and pervasive.
Is the company policy a defense here? yes. Supervisor involved. No tangible employment action so ER can assert
the affirmative defense.
She alleges there were tangible employment actions taken: promotion and positive evals. But ct says no this was routine so
no tangible job action.
On defense they prevail b/c (1) had an effective policy in place and it was not ambiguous or vague. Ev EEs knew about the
policy and there was proof it was used and worked. (2) the policy was used. Here she did not use it. SHe failed to report in
 a timely manner.
 Here the ER did all that it could to prevent this.
 Negligence standard.
 If an ER is going to be held liable should give them adequate opportunity to take corrective action..
Note: If ER knew or should have known and failed to take action that that was a basis for liability b/c shows policy ineffective.
But if ER has policy, trained and done all could then done well.

If co-worker harassing then it is P's burden to show it was within the scope of employment and ER knew or should have known.

If you report it you could then also have a claim of retaliation.

Key Points
 If you only report the last incident the affirmative defense can still be utilized.

VIII. Special Problems in Applying T7, Sec 1981, and ADEA

A. Intro
B. Coverage of T7, Sec 1981, and ADEA
Hishon v. King & Spalding , 1984

C. Sex Discrimination

Topic Class Notes


 sex discrimination claims have raised difficult problems b/c of the difficulty in defining what the term "sex" means under T7.
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4 areas of where there are definitional problems: pregnancy; sexual harassment; gender-based grooming and dress codes;
and discrimination on basis of sexual orientation or preference.

Topic Key Points


 what does "sex" mean?
 gender
 sexual attraction
 sexual harassment
sexual orientation

1. Grooming and Dress Codes

Topic Notes
A. Willingham v. Macon Telegraph Publishing (5th Cir. 1975):
 Equal employment opportunity may be secured only when ERs are barred from discriminating against EEs on the basis of
immuntable characteristics, such as race and national origin.
 A hiring policy that that distinguishes on some other ground, such as grooming codes or length of hair, is related more
 closely to the ER's choice of how to run his business than to equality of employment opportunity.
 Congress sought only to give all persons equal access to the job market, not to limit an ER's right to exercise his
 informed judgment as to how best to run his shop.
 rule: The mere fact of gender-specific differences in dress and grooming codes does not violate T7.
B. While the mere existence of disparate grooming codes is not illegal, ERs who require female EEs to dress in provocative
clothes may be guilty of sexual harassment.
C. Carroll v. Talman Federal SAvingd & Loan Assn. (7th Cir. 1979):
ct considered a dress code allowing males to wear "customary business attire," but requiring women to wear uniforms.
The ct distinguished the case before it where the disparate treatment was demeaning to women: "While there is nothing offensive
about uniforms per se, when some EEs are uniformed and others not there is a natural tendency to assume that the uniformed
women have a lesser professional status than their male colleagues attired in normal business clothes." D. Different standards of
dress for different positions do not violate T7.

Topic Class Notes


can we have different stds for dress codes? cts don't want to get into this.

Craft v. Metromedia, Inc. , 1985

Case Brief

FACTS:
 When Craft (P) was demoted from co-anchor to reporter by D she sued the owner and operator for violation of T7 based
on gender discrimination.
 D a TV station hired (P) Craft to co-anchor the news.
 D was concerned immediately with P's clothing and makeup.
 P was provided with materials concerning wardrobe and makeup.
 D arranged for Macy's to provide her with clothing.
 P was to try on the clothes and tape it and send tape for review to Wilford.
 Research was conducted for viewer perceptions of D's newscast and the response was negative as to P's appearance.
 In response P agreed to work with D to improve this.
 A follow-up phone survey showed P ranked lower in almost all categories to other female co-anchors.
 P was replaced.
 Dist ct ruled in favor of D.
 P attacks Dist ct judgment alleging:
1) Dist ct erred in failing to find that D enforced appearance stds more strictly as to females than male on air personnel.
a) This ct rejects this saying the record shows D enforced the stanards equally in response to individually problems. No error
by Dist ct.
2) Dist ct erred in failing to recognize that the stds themselves were discriminatory. She was forced to conform to a stereotype.
a) No error. Reasonable appearance requirements were critical to D's economic well-being.

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ISSUE: Where an ER enforces its appearance standards equally as to males and females, has gender discrimination violated
T7? No.
RULE: Where an ER enforces its appearance standards equally as to males and females, no gender discrimination
violative of T7 has occurred.
CONCLUSION:
 T7 prompts ERs to discard outmoded sex stereotypes posing distinct employment disadvantages for one
sex. These criteria do not implicate T7.

Problem 7.2 p 549

Case Brief
Facts:
 Cindy is employed as a waitress at a nightclub.
 There are no waiters employed.
 Dress code for Cindy (waitresses): hot pants and tight t-shirt that leaves her midriff bare.
 2 of 3 bartenders are male.
 Dress code for bartenders: long pants, long-sleeved shirts, and vests.
 Cindy has been subjected to obscene remarks and sexual advances from male customers while working.
 She complained to manager about being touched and he ejected the customer, but did nothing about the remarks.
 Alice works as a dancer in the club. She is distressed by the remarks made by the men in the crowd and the skimpy clothes
she must wear.
Issues:
 Has Cindy been the victim of sexual harassment?
 Can she insist on wearing less-revealing clothes?
 Does Cindy have any rights under T7?
 Does Alice have any rights under T7?
Claims:

2. Discrimination on the Basis of Seual Orientation

Desantis v. Pacific Telephone & Telegraph Co. , 1979

Case Brief

Phx:
 Homosexuals brought 3 separate fed dist ct actions claiming ERs discriminated vs them in employment decisions b/c of
their homosexuality thus violating Title 7.
 Dist cts dismissed as failing to state a claim.
 Appeal from dismissal of title 7 actions for discrimination based on sexual preference.
FACTS:
 Appellants argue Dist ct erred in holding Title 7 does not prohibit discrimination on basis of sexual preference.
 Also that they could establish disparate impact caused by discrimination against homosexuals.
ISSUE: Does the fed law's prohibition of sex discrimination apply only to discrimination on the basis of gender, which does
not include sexual preference such as homosexuality? Yes.
RULE: The fed law's prohibition of sex discrimination applies only to discrimination on the basis of gender, which does
not include sexual preference such as homosexuality.
Court Analysis:
 looked to text of Title 7: plain meaning of its text Congress meant only the traditional notions of "sex." Bills have been
introduced to ammend the Act to prohibit discrimination against sexual preference, but these have not been enacted. Reason
for Title 7 prohibition vs sex disrim in employment is to ensure man and women are treated equally. Title 7 does not
include sexual preference.
 Disproportionate impact claim: Appellants argue this based on Griggs, but the ct refuses to allow this in regard to
homosexuals b/c COngress did not intend for such coverage and Congressional goals would not be achieved in doing so.
 Congress job to add this not cts.
 Appellant next argues ER is in violation b/c using different employment criteria for men and women which USSct said was a
violation in Phillips v. Martin Marietta. Ct rejects this saying the employment policy uses the same criteria and rejects male
and female homosexuals equally.
Concurrence and Dissent:
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 Tit;e 7 does not protect homosexuals.


 The disparate impact claim by P would protect gay males so he should be allowed to make this case.
 Key Points
 you can not have discrimination on basis of sexual orientation under Title 7.
 No intent by legislature when wrote Title 7 to include this.
Effeminacy: does this involve sexual orientation issues or sexual stereotyping. If it is sexual stereotyping than covered by Title 7
under Price Waterhouse.

3. Equal Pay for Equal Work

Topic Notes
 In determining whether individuals are similarly situated, an EPA case begins by focusing on the equality of the work
performed, rather than on the similarity of the workers.
Structure of EPA case is different than Title 7 case, so Congress sought to harmonize the 2 statutes by directing in §703(h)
of Title 7, that wage differentials authorized by the EPA sdo not violate Title 7.

Topic Class Notes


 Narrower than Title 7. It is discrimination on sex based on pay. Different b/c work has to be "substantially similar" and
get paid differently.
Defense is any factor other than sex.you can not have comparable worth claims regarding the value of the jobs to the ER.
Comparable worth can NOT be used for EPA analysis.

4. Pregnancy

Topic Notes
 Pregnancy Discrimination Act of 1978 (PDA) which amended Title 7 to include a new §701(k):
"Because of sex" or "on the basis of sex" include, but are not limited to, b/c of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related....(p.471)

Topic Class Notes


This amend expressely makes pregnancy fall under the definition of "sex"

Newport News Shipbuilding & Dry Dockv. EEOC , 1983

Case Brief
FACTS:
 Newport Shipbuilding and Dry Dock (D) sponsored a medical plan that provided the same hospitalization coverage for male
and female EEs but that differentiated b/w female EEs and spouses of male EEs by imposing a cap on the pregnancy-related
 hospital benefits for spouses of male workers.
 EEOC (P)challenged D policy citing the PDA.
 Lower cts ruled in favor of P and D appealed.
ISSUE: May an ER give married mal EE spouses a benefit package that is less inclusive that the dependency coverage provided
to married female EEs? No.
RULE: ERs may not give married male EEs' spouses a benefit package that is less inclusive than the dependency coverage
provided to married female EEs.
Ct Analysis:
 D plan is unlawful b/c it provides limited pregnancy-related benefits for EEs' wives, and affords more extensive coverage for
EEs' spouses for all other medical conditions requiring hospitalization. Thus, the husbands of female EEs receive a specified
level of hospitalization coverage except for pregnancy-related conditions; the wives of male EEs receive such coverage
except for pregnancy-related conditions.
 The 1978 Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other mediacl
conditions. Thus, D's plan unlawfully gives married male EEs a benefit package for their dependents that is less inclusive than
the dependency coverage provided to married female EEs.
CONCLUSION: An inclusive plan that singles out pregnancy-related benefits for exclusion is discriminatory on its face.
The policy treats eEEs of different genders unequally and violated the PDA.

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Troupe v. May Dept. Stores , 1994

Case Brief

FACTS:
 Troupe (P) was a saleswoman for D.
 She was placed on probation for being tardy b/c of morning sickness.
 After being placed on probation she was tardy 11 more times.
 The day before her maternity leave she was fired.
 P filed suit under the PDA.
 Her supervisor told her the company discharged her b/c she was not expected to return to work after she had her baby.

ISSUE: Is termination of a pregnant EE to avoid paying costs of maternity leave discrimination under the PDA? No.
RULE: Standing alone, the termination of a pregnant EE to avoid paying costs of maternity leave is not
discriminatory under the PDA.
 Analysis:
Ct
 Title 7 does not bar financially motivated dismissals, but requires a finding that the ER failed to treat similarly situated EEs
 the same.
 To see if pregnancy was the reason for P's termination the Ct looks at a hypothetical involving a male in place of P. Ct finds
that his ER would have also fired him so P was not fired b/c she was pregnant but b/c she cost the company more than she
 was worth to it.
 PDA requires an ER to ignore the EEs pregnancy but not other conduct that it does not ignore of other EEs like tardiness.
 Had P's termination been purely remedial rather than deterrent, the inference that P was not fired b/c of her tardiness would
be strong.
CONCLUSION: P needs to show that one nonpregnant EE had not been fired when about to begin a leave similar to hers.

Class Notes
 Ct looks at similarly situated nonpregnant EEs to compare to see if pregnant EE was discriminated against.
 This can be very hard to do. May need to look at the leave policy or such.
Pregnancy is not considered a disability under the ADA.

D. Discrimination on Account of Religion

Topic Key Points


 Knowledge of religion of a person
 Religion: Disparate tx and failure to accommodate.
 Separate claim is duty to accommodate when a religious practice conflicts with work. Er only need provide a
(1) reasonable accommodation [if provided no claim; does not have to be accommodation EE requests]. (2) does
the accommodation cause an undue hardship: std is Anything more than a de minimis cost is an undue hardship.
 What is religion? in disparate tx cases it is usually about some type of whacky religion. Most of the time ct is
not going to decide this and will look at factor and see if it is religion under COnstl analysis.
[mixed motive means good reason and bad reason]

1. Nondiscrimination and the Special Duty to Accommodate EEs' Religious P

Topic Notes
Religious discrimination cases often proceed on the same theories of discrim as RD and GD. There are cases where P claims D
admitted its religious motivation and others in which the courts must infer an impermissible purpose from more circumstantial
evidence.
Topic Class Notes
 Duty to accommodate [T7 claim different than below]
Bars discrimination on account of religion. [disparate treatment claim]

Van Koten v. Family Health Mngmt , 7th Cir, 1998

Case Brief

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FACTS:
 P is licensed chiropractor hired by D.
 P believes and practices Wiccian religion.
 As a Wiccian he is vegetarian, believes Halloween is a holy day, believes the sun and moon are gods, and does astrology
 for co-workers.
 2 days after he said Halloween was a holy day he was fired.
 P failed to fill out forms on patients as was required by procedure and when told this by a clinic manager he said _uck
 the procedure. Nov 1
 On Nov. 2 Koten was discharged. D stated reason for the termination was Van Koten's "profane refusal to follow
 procedures which were required in his employment."
 P claims D fired him b/c of his Wiccian belief.
 Dist ct said he did not make his prima facie case and granted D SJ.
 P appeals saying D did know of his religious belief.
ISSUE: What is needed to establish a PF case of religious discrimination?
RULE: Under T7 it is unlawful for an ER to fail or refuse to hire or discharge any person, or to discriminate against any
preson with respect to his compensation, terms, conditions, or privileges of employment b/c of such preson's religion.
Religion- includes all aspects of religious observances and practice and belief as well, unless an ER demonstratees that he
is unable to REASONABLY ACCOMODATE an EE's or prospective EE's religious observance or practice WITHOUT
AN UNDUE HARDSHIP on the conduct of the ER's business.
***An unlawful employment practice is established when the complaining party demonstrates that religion was
a MOTIVATING factor for any employment practice, even though other factors also motivated the practice.
APPLICATION:
 Prima facie test for religious discrimination: claimant normally meets the PF burden if he demonstrates:
1) he is a member of a protected class [belief must be sincerely held],
2) he was qualified for the job in question,
3) he was discharged or suffered adverse employment decision,
4) and that the position remained open after his discharge to similarly qualified candidates.
5) Dist ct said that the P needs to also show that the ER had knowledge of the EE's religious beliefs. [7th Cir never expressly
requires this but said that knowledge, regardless of whether it is required in a OF test, would also be relevant to the issue
 of pretext.
 IF P meets the PF burden then ER has the opportunity to produce evidence [McDonnell Douglas] of a LNDR.
 If ER offers LNDR, then EE can prove pretext [here P did this by arguing the proximity of time b/w his statement
 about Halloween and being fired, but ct rejected this as being mere speculation].
 Ct held that record contained sufficient evidence that the PF was made but that P failed to raise a genuine issue of material
fact that the LNDR was a pretext.
CONCLUSION: Affirmed.
Notes p. 586
1-2. Shapolia v. Los Alamos Ntl La, (10th Cir. 1993): P claimed he was fired b/c he was not a Mormon like his supervisors.
Reverse Discrimination PF case: P must show:
1) that he was subjected to some adverse employment action;
2) that, at the time the employment action was taken, the EE's job performance was satisfactory;
3) and some additional evidence to support the inference that the employment actions were taken b/c of a
discriminatory motive based upon the EE's failure to hold or follow his ER's religious beliefs.
5-9. Definition of Religion: §701(j) 1972 amen to T7-
 "religion" includes all aspects of religious observance and practice, as well as beliefs, unless an ER demonstrates
that he is unable to reasonably accommodate to an EE's or prospective EE's religious observance or practice w/o
 undue hardship on the conduct of the ER's business.
10. USSCt defn of religious based belief- a sincere meaningful belief which occupies in the life of its possessor a place parallel
to that filled by God of those admittedly qualifying for the same exemption. Later expanded to include moral and ethical
beliefs that assumed the function of religion in the registrant's life.
***Only if the belief rests SOLELY upon considerations of policy, pragmatism or expediency does it fail to qualify.
11. Prime v. Loyola Univ., (7th Cir. 1986): P a Jew complained that he was denied a teaching tenure position b/c school set aside
places for Jesuits. Judge Posner said this was not religious discrimination b/c P was not denied the job b/c he was a Jew or b/c
he was not a Catholic. Denied only b/c he was not a Jesuit- he said then there was no religious discrim.
But the USSCt in Phillip (1970) reached the opposite result where the ER, which discriminated against women w/
preschool age children, claimed it did not engage in GD or SD b/c it was gender plus the age of the kids that was
the disqualifier. CT held sex plus another factor was SD.
12. Rule: even if a belief is religious it must be sincerely held. Prior conduct inconsistent with the professed belief will provide
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evidence of lack of sincerity.


13. Rule: If the ER discrim on the basis of religion it may be permissible.
a) Normal Mixed motives analysis: while a violation of T7 for religion to be a motivating factor in an employment
decision, an ER may limit a plan's remedies by showing it would have taken the same action for NONDISCRIM
reasons. Cowan (8th Cir)-P can proceed under Pricewaterhouse mixed motive analysis if an EE first establishes that
religion was a motivating factor in the employment decision. Then the burden shifts to the D, to show that it would
have made the same decision in the absence of the illegal criteria. KEY→a P is entitled to have his case analyzed
under mixed motives standard if they present evid of conduct or statements by persons involved in the decision
making process that may be viewed as directly reflecting the alleged discriminatory attitude.
b) Under T7, certain religious organizations are permitted to discrim based upon religion but not race, sex,
or other prohibited ground.
c) BFOQ: may be used by secular ERs in appropriate cases.
d) RELIGIOUS RESTRICTIONS MAY ALSO BE UPHELD WHEN NECESSARY TO AVOID
ESTABLISHMENT CLAUSE PROBLEMS-usually cases on this ground deal with teachers in public
schools handing out Bibles and preaching to kids. BUT other cases have gone against ERs who barred religious
artifacts outside of cubicles/office, that barred religious advocacy, or when there was no harm or disruption due
to the religious activity.
14. The T7 1972 amend. created a special theory of liability for RD. KEY→an ER must not only avoid discrim but also
REASONABLY accommodate an EE's religious observance UNLESS to do so would be an UNDUE HARDSHIP on the ER's
business.
15. a.)What accommodation is "reasonable"? USSCT in Ansonia (1986) held that the fit b/w the
EE's religious needs and the ER's offered accommodation does not have to be very tight.
KEY→the accommodation prong is very very differential to the ER→Once an ER has made a
reasonable accommodation then the ER has satisfied its duty under § 701(j). No need to
require the ER to choose any particular areas accommodation.
b.) Undue Hardship only comes into play if the ER fails to offer any reasonable
accommodation. KEY→ anything MORE than a De Minimus cost can be an undue hardship
(TWA)-both monetarily and also if it is a burden administratively for the ER. The
accommodation will be an undue hardship if it would require the ER to violate federal
laws (refusing to provide SSN#).

Key Points
 Prima facie case for religious discrimination: claimant normally meets the PF burden if
he demonstrates:
1) he is a member of a protected class [belief must be sincerely held],
2) he was qualified for the job in question,
3) he was discharged or suffered adverse employment decision,
4) and that the position remained open after his discharge to similarly qualified candidates.
5) the ER had knowledge of the EE's religious beliefs. ,
Wilson v. U.S. West Communications , 8th Cir, 1995

Case Brief
FACTS:
 Wilson a catholic made a religious vow to wear a pro-life button (almost at all times) w/a picture of a fetus on it until
abortion was ended. This caused a disruption at work and her boss offered her 3 options: 1. wear it only in her cubicle 2.
cover the button at work 3. wear a button w/o the picture. She said she could not do it b/c she was a living witness. She was
then fired and Wilson claims RD.
 TRIAL CT-found that options 1 & 2 were not reasonable accommodations of X but that making her cover the button was
a reasonable accommodation b/c the court found that her vow did not require her to be a living witness. Also, there was an
undue hardship on the ER (40% loss of productivity).
RULE: An ER is required to reasonably accommodate an EE's religious beliefs or practices unless doing so would cause
the ER undue hardship;
APPLICATION:
 COURT→EE makes a PF case of RD by showing that:
1. the EE has a bona fide religious belief that conflicts w/ an employment requirement
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2. the EE informed the ER of this belief


3. the EE was disciplined for failing to comply w/the conflicting employment requirement.
 COURT→upheld the trial ct, one b/c even though her religious beliefs did not cause any other EE to miss work or reschedule
(the typical reasonable accommodation dispute) it caused a great fuss at the office (especially the photograph), and that being
a living witness was not in her vow b/c she only came up w/that when her boss told her to cover the button (so the covering
was reasonable accommodation), and no inquiry into undue hardship b/c once ER offers reasonable accommodation that's the
 end of the inquiry.
 KEY→number of courts have rejected claims b/c the EE did not allege or prove that her religious beliefs REQUIRED
certain conduct, even if they motivated it.
Class Notes
 Cts do not want to deal with the sincere religious belief they would rather attack other issues.
Case Group Px: P says shaking hands is against his religion. Under Brown

E. Age Discrimination

Topic Notes
age discrimination is subject to rational basis review, and the ADEA is not as expansive as other T7 protections.
 Cline: there is no reverse discrim under ADEA. IE b/c younger people being treated less favorably then older.
 Hazen: when using 10 yr vesting only as a factor for termination then this is not proof of age discrim.

1. Good Cause and Reasonable Factors other than Age

Topic Notes
ADEA→it shall NOT be unlawful to discharge or otherwise discipline an individual for good cause. It seems clear that the
ADEA does not require that the ER demonstrate the kind of good cause that might be appropriate before tenured or civil service
EEs are fired. Also, it is not unlawful to take any action otherwise prohibited where the differentiation is based on reasonable
factors other than age.
KEY→adverse action against older workers, but on bases other than age, is VALID. EEOC→makes clear that age must play
no part in reasonable factors, for example the higher labor costs associated w/the employment of older EEs do not constitute
reasonable factors other than age (at some cost level there might be a BFOQ).

2. Bona Fide Executive Exception

Topic Notes
Although mandatory retirement is generally prohibited by the ADEA, bona fide executives can be mandatorily retired at age
65 under certain circumstances:
1. a bona fide executive remains fully protected by the ADEA until 65 and may not be discriminated against on age grounds
except for mandatory retirement.
2. the EE must both be in a bona fide executive or high policy making position and he must receive defined benefits of $44K
a year.

3. Exception for Police and Firefighters

Topic Notes
ADEA permits state or political subdivisions to fail or refuse to hire or to discharge any person w/respect to the employment of
an individual as a firefighter or law enforcement officer, provided that the action is taken pursuant to a bona fide hiring or
retirement plan that is not a pretext. Congress has allowed mandatory retirement at age 55. KEY→both firefighter and law
enforcement officers are defined broadly.

4. Bona Fide EE Benefit Plans

Topic Notes
ADEA→it shall not be unlawful for an ER to take any action otherwise prohibited by the ADEA to observe the terms of a bona
fide EE benefit plan, where for each benefit/package, the actual amount of payment made or cost incurred on behalf of an older
worker is NO LESS than that spent on a younger worker.
KEY→it permits age based discrim only in the payment of fringe benefits, not base compensation or other employment
privileges, and then only w/in the parameters defined by the EEOC→ER has the burden to show its plan=bona fide
EXAMPLE→cost of $100K of life ins is $1K for workers aged 40, but $1K will only buy $70K of life ins for 60 year old-this is
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fine the actual cost is similar for both old and young although old man gets less benefit.
KEY→ERs are permitted to define the average cost of workers in age brackets of no more than 5 years to compare w/the
average cost of workers in the next younger bracket.

5. Early Retirement Incentive Plans

Topic Notes
-look at OWBPA-such plans involve both carrots and sticks. The ER creates a window of opportunity during which the EE can
obtain greater retirement benefits if he elects early retirement, when the window shuts the enhanced benefits disappear. Also,
these plans, though no direct threat, are offered during downsizing and have an implicit threat that layoffs will follow if enough
workers do not take early retirement.
OWBPA→1. permits a benefit plan that is a voluntary early retirement plan consistent w/ the ADEA. 2. a pension plan will
not violate the statute solely b/c it provides for the attainment of a minimum age as a condition of eligibility for normal or
early retirement benefits.
KEY→OWBPA does specify a rigorous laundry list of substantive and procedural requirements before a waiver of ADEA rights
will be deemed knowing and voluntary (an EE who agrees to a plan that is illegal will therefore waive his rights if his consent is
knowing and voluntary w/in the ADEA.
RULE→not only does the party asserting the validity of the waiver, usually the ER, have the
burden of establishing that a waiver qualifies, but the ADEA further provides that for a
waiver to be knowing and voluntary, an agreement must AT LEAST be:
1. written in a manner calculated to be understood
2. make specific reference to ADEA claims
3. not waive rights arising after its execution
4. be supported by consideration in addition to anything of value to which the
individual already is entitled
5. advise the individual in writing to consult an atty
6. provide at least 21 days for the EE to consider her decision
7. provide a 7 day period during which the waiver may be revoked.
ALSO→special requirements when the waiver is sought as part of a program offered to a group of workers, such as an
early retirement plan→ 1. notice period is 45 days instead of 21 2. the ER must provide the group w/ detailed info
concerning it, including job titles and ages of those selected for the program.

Oubre v. Entergy Operations, Inc. , 522 U.S. 422, 1998

Case Brief

FACTS:
an EE as part of a termination agreement signed a release of all claims against her ER. The release did not comply with the ADEA
b/c it did not give her time to consider her options, no 7 days, and no mention under the ADEA. She received severance pay in
installments. Now she sues under ADEA. ER→claims that before P can sue she must first tender back the monies they gave her,
and if she failed to do so w/in a reasonable time after learning of her rights, the EE ratifies the K and makes it binding.
SUP. CT→said the OWBPA is clear→an EE may not waive an ADEA claim unless the waiver satisfies the OWBPA's
requirements. The rule proposed by the ER would frustrate the statute's practical operation as well as its formal command. In
many instances a discharged EE may have spent the money before they learned they could sue and would have no way to
tender the money back. KEY→the EE's mere retention of monies cannot amount to a ratification equivalent to a valid release of
her ADEA claims, b/c the retention did not comply w/the OWBPA any more than the original release did. BUT→maybe ER
has a restitution claims. KEY→the bad ADEA release may be valid as to other claims.

ISSUE: what about waivers in retirement plan regarding T7 or ADA claims?→no direct law here but one could argue the
OWBPA standard should apply to T7 and ADA waivers. KEY→remember that an arbitration clause does not give up
rights/remedies under the law-it just changes the forum.
RULE: An ADEA claim can only be released when OWBPA is strictly followed.
APPLICATION:

Scalia Dissent:

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Class Notes
 OWBPA is very strict and if any possible claim under ADEA could possibly be made then follow the OWBPA requirements.
Facts:
B. ISSUE→what about waivers in retirement plan regarding T7 or ADA claims?→no direct law here but one could argue the
OWBPA standard should apply to T7 and ADA waivers. KEY→ remember that an arbitration clause does not give up
rights/remedies under the law-it just changes the forum.
Key Points
Know the requirements, how applied under Oubre.

A. Problem 7.3

F. National Origin and Alienage Discrim

Topic Key Points

MULTIPLE CHOICE ?S ON THIS TOPIC

1. National Origin Discrim

Topic Notes
 "Irish need not apply"
 The only USSCt decision on T7 prohibition of NOD is Espinoza v. Farah (1973). ER refused to hire a citizen of Mx, who
was a lawfully admitted resident alien, b/c she was not a citizen of the US. The Ct dismissed the disparate tx claim b/c
NOD refers to the COUNTRY from which a person or her ancestors came- it does not refer to a person's citizenship
status. No evidence of intent to discrim against Espinoza b/c of her Mexican ancestry. Then the CT turned to disparate impact
and dismissed that also b/c the P failed to show that the citizenship requirement had a disproportionate impact on persons of
 Mx ancestry.
 Key pts from Farah --> (1) T7 prohibition of NOD prohibits discrim based on ancestry and NOT disrim based on alienage.
(2) Both disparate tx and impact analysis are applicable in determining NOD. (3) T7 does protect aliens from
employment discrim based on race, color, sex, religion, and nat'l origin.
Unanswered issues: (1) Does T7 protection of aliens extend to aliens who cannot legally work in the US. (2) Did the Ct hold
that nat'l origin does not include a US national origin.

EEOC v. Sears , 2001

Case Brief

FACTS:
 Santana was born in Mx in 1960, has olive skin and speaks with an Hispanic accent.
 Moved to US in 1971 and became a naturalized citizen of US.
 In 1979 he enlisted with the Marines and is still a Marine.
 In 1985 Sears hired him as a part-time loss prevention agent for its CA store. Worked here 10yrs until Marines transferred
 him to NC in 1995.
 Oct 1995, he visited NC Sears store in Moorehead City to inquire about a position as part-time loss prevention agent. He spoke
with Mansfield the loss prevention mngr at the store who said the store could use him and gave him number for Kateske, the
 store's operation mngr. Mansfield also said he would talk to Kateske about Santana and his experience.
 Santana had Sears store in CA send transfer forms to Moorehead store.
 He called Kateske and Kateske said the store could use him and to get in touch when he arrived.
 He arrived in Dec and despite repeated visits to the store and 3 applications being submitted, Sears did not contact him
 until Oct 1996.
 Oct 1996 HR specialist Haynes called him and invited him to interview. During the interview Haynes commented on
 his accent and asked where he was originally from and he answered Mx.
 Haynes took him to meet with Kateske, who interviewed him in the store mngrs office and offered him the position and sent
 him for drug test and told him he would start after the negative test was in.
 Test taken on Oct 25 was negative.
 Nov 1 he returned to the store and asked when he could start. He was told trainer was sick. Then on Nov 8 he called and was
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told background ck was being performed and he would be called by Nov 12.
 He spoke with the new loss prevention mngr, Mrazick, who said there was an immediate need for loss prevention agent and
he was impressed w/ his experience.
 Nov 22 he went to the store and was told he would be contacted by Nov 26.
 Nov 27 he called Kateske and she told him he was not going to be hired b/c someone else was hired and there was no
 payroll to hire him.
 He learned that the person hired in his place was a Caucasian female born in VA hired on Nov 12.
 He contacted Sears HQ to complain and was told the store would find him a position, but it never did.
 He filed an EEOC complaint early 1997 alleging NOD.
 In response to the charge Sears offered several reasons for not hiring Santana.
ISSUE: Is SJ for an ER inappropriate where the EE makes out a PF case of discrim combined w/ ev from which a reasonable
fact finder can conclude that a refusal to hire is motivated by illegal discrim? Yes.
RULE:
APPLICATION:
 Santana's PF case: (1) member of protected class, (2) he was well qualified for position and diligently pursued it, (3)
despite his qualifications he was rejected, and (4) the position remained open and was filled by a less qualified person.
 burden shift to ER: offered LNDR? yes. The belief that Santana was investigated for sexual harassment. This reason
 was unfounded.
 Burden shifts to Santana to show LNDR was pretext: lots of ev that Sears LNDR justification was false, especially since
Sears offered several reasons each time a reason was sought.
A. notes

Topic Notes
 #9 Fragante (9th Cir.)- P from the Phillipines was denied a position involving contact with the public [DMV clerk job].
He had the highest score on Civil Service Exam which tested grammar and spelling.
 Rule from Fragante --> ERs may lawfully base an employment decision upon a person's accent when it interferes
 materially w/ job performance [disparate tx LNDR or could be BFOQ-when part of job to speak clearly]
 #10 Farah said nat'l origin did not include alienage but look at Biggens --> would find a T7 violation when foreign accent
discrim was used as a proxy for NOD. Key--> also if ER hired others w/ heavy accents that would be a pretext maybe.
 #13-16 Generally job rules requiring that English only be spoken in the work place or requiring the ability to speak
English have withstood attack under T7 [see Garcia and Rush (business necessity in hospital DEFENSE FOR
 DISPARATE IMPACT)]. On its face English-only rules are not a problem unless they have a disparate impact.
 #19 Rule--> Under T7 Native Americans have been treated as a racial minority and have been protected from discrim on basis
of nat'l origin. §702(i) allows preferential tx of Indians by businesses near reservations, but T7 does NOT permit an
on-reservation ER to prefer one tribe over another.
#20 §1981- Donaire- §1981 does prohibit discrim based on foreign ancestry or ethnicity. What about foreign accent?

Topic Class Notes


 If you say you did not hire person b/c you could not understand a single word from that Frenchman. Could have
alienage discrim.
what if accent not looked at as discrim on its face and instead as neutral on its face? If disparate impact claim for policy requiring
only English to be spoken then according to EEOC there must be a business justification.
2. Alienage Discrim

Topic Notes

 Farah: T7 alienage/ citizenship discrim is NOT included w/in T7 prohibition of NOD.


 §1981- accords all persons w/in the jurisdicition of the US the same rt to make and enforce Ks as is enjoyed by white
citizens. Limited appellate authority indicates that §1981 prohibits alienage discrim in both state and private employment.
ISSUE--> Whether §1981 also prohibits alienage discrim against aliens who cannot legally work in the US. 2 possible
approaches: (1) analyze under disparate tx, including the mixed motive and after acquired ev doctrines. (2) Hold that IRCA
places unauthorized aliens outside the scope of 1981 protections.
 Key--> 1 ct, which thought that §1981 prohibited alienage discrim held that §1981 does not protect US citizens from
citizenship discrim. ALSO--> even if §1981 protects US citizens from citizenship discrim a foreigh corp may have a treaty
 rt to discrim in favor of its fellow citizens.
 ISSUE--> Is there some kind of BFOQ or business necessity defense against §1981? None in the statute and no case law on it.
Under §1981 alienage could be brought in under race discrim
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3. Immigration Reform and Control Act of 1986 [IRCA]

Topic Notes
IRCA requires ERs to discrim against unauthorized aliens, but also prohibits ERs from discrim against aliens who are
authorized to work in the US. Also, the statute prohibits NOD and discrim against US citizens (legislative hx says this was really
for recently naturalized citizens).

G. Retaliation

Topic Notes
 T7, §1981, and the ADEA create a remedy for certain retaliatory conduct.
 §704(a)→it shall be an unlawful employment practice for an ER to discrim against any of his EEs or applicants for employment b/c
 he has 1. opposed any practice made an unlawful employment practice by this title [opposition conduct], or
2. b/c he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under this title [participation conduct].
 §1981-even it does not prohibit retaliation explicitly, recent appellate decisions have interpreted the statute as doing so→may
be in doubt due to the S. Ct. case of Patterson.
For a retaliation claim you do not need to have a legitimate claim in the 1st place.

Clark County School District v. Breeden , 2001

Case Brief
PHx:
 Dist ct: SJ for ER.
 Ct of Appeals: reversed SJ for ER in T7 retaliation action.

FACTS:
 Breeden's (R) male supervisor met w/ her and another male EE to review psychological reports for 4 applicants. On report
disclosed that the applicant had once commented to a co-worker, "I hear making love to you is like making love to the
 Grand Canyon."
 #1 Respondent's supervisor then looked at R and said, "I don't know what that means." Other EE laughed and said he
 would tell him later.
 R complained about the comment to the offending EE and to other supervisors.
 R alleges she was retaliated against b/c of these complaints.
 In 1997 R filed T7 retaliation claim vs P Clark County School District. Claim alleged that P had taken 2 separate
 adverse employment actions against her in response to 2 different protected activities she engaged in.
 Incident #2: R also claims she was retaliated against for filing charges w/ Nevada Equal Rts Cmmsn and EEOC and for
filing the present suit. R filed her lawsuit on April 1, 1997. On April 10 R's supervisor told R's union director she was
 thinking of transferring R and she was transferred in May.
 Dist ct found that R did not serve P with summons and complaint until April 11, thus the ct concluded R had not shown
any causal connection b/w her protected activities and the adverse employment decision.
ISSUE: Is SJ for the ER in a T7 retaliation action appropriate where no reasonable person would believe that the action
complained of violated T7 and where the EE fails to show a causal connection b/w protected activities and alleged
retaliation? Yes.
RULE: SJ for the ER in a T7 retaliation action appropriate where no reasonable person would believe that the action
complained of violated T7 and where the EE fails to show a causal connection b/w protected activities and alleged
retaliation.
Key--> A P must show a causal connection b/w her protected activity and an adverse employment decision for retaliation
under T7.
Ct APPLICATION:
 Ct held that incident #1: no 1 could reasonably believe that the incident violated T7. Sexual harassment under T7 is
actionable only if it is so severe and pervasive as to alter the conditions of V's employment and create an abusive working
 environment. This single incident [#1] could not be held to violate T7 by any reasonable person.
 The statement was within the scope of her job in reviewing such applications.
 #2Ct held that Ct of Appeals was in error when it held there was a causal connection b/w transfer and protected activity b/c of
the right to sue letter from EEOC to R 3 mos b4 Rice announced the transfer idea. This Ct held the transfer was being
contemplated b4 the suit was learned about. Conclusion: ERs need not suspend previously planned transfers upon discovering
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that a T7 suit has been filed, and their proceeding along lines previously contemplated, though not determined, is no
evidence of causality..
record shows lack of causality b/w filing of R's suit and decision to transfer.
Class Notes
Not a good sexual harassment case b/c the comment was not severe and pervasive so as to create a hostile work environment.
Notes

Case Brief

 #1
1) there are 2 distinct claims of retaliation: (1) opposition [discrim against EE b/c person opposed any practice, made an
unlawful employment practice by this title] and (2) participation [discrim against EE b/c he made a charge, testified,
assisited, or participated in any manner in an investigation, proceeding, or hearing].
2) Breeden's opposition claim was for retaliation based on her internal complaints.
3) Breeden's participation claim was for retaliation based on her filing of charges w/ state agency and EEOC. [no good b/c ER
did not know until after the transfer about the participation action]. [Could be argued ER knew 2 yrs earlier, but 2ys is not
temporally close enough in proximity]
4) Participation conduct has received greater protection than opposition conduct.
5) Rule--> Opposition conduct must be supported by a reasonable good-faith belief that the ER acted unlawfully or a finding
that the ER's action was in fact unlawful, no such determination necessary for participation conduct.
#5 Is Breeden inconsistent with Ellerth's affirmative defense of V's to report offensive conduct before it becomes severe
and pervasive? perhaps. why should EEs who do what Ellerth encourages not be protected against retaliation?
Class Notes
 USSCt says a "reasonable" person must believe the initial claim for there to be a retaliation claim for making that 1st
claim. But who is the reasonable person? the reasonable law knowledgeable person or what? who knows?

1. Protected Conduct

Topic Notes
 The form of participation activities generally will not take the P outside the protection of the Act. ERs have been found
guilty of retaliation when they act on any ground related to filing a discrim charge.
Can the form of the EE's opposition activities take the EE outside the protections of the Act? Yes. McDonnell Douglas the said
that nothing in T7 compels an ER to absolve and rehire one who engaged in such deliberate, unlawful activity against it. Fanstel-
some acts of protest by EEs, even if done for a protected purpose, are sufficiently disloyal as to justify discharge.

Jennings v. Tinley Park Community Consolidated School District , 1988

Case Brief
FACTS:
 J was employed by the school district [D] as secretary to the Superintendent, Procunier.
 There as an alleged sex discrim based on disparity in pay b/w secretaries [all female] and custodians [all male].
 Custodians were paid 1.5x hrly rate for overtime, but secretaries were not.
 D argued secretaries were not required to work overtime.
 In Feb 1979 secretaries sent a letter to school brd, which was given to Procunier to present, objecting to the pay disparity.
 Secretaries requested permission from Procunier to meet bimonthly.
 Procunier informed secretaries of a pay schedule he came up w/ that he planned to present to the brd.
 Secretaries opposed the plan.
 Procunier and J meet again to discuss secretaries concerns.
 At brd meeting Procunier proposed his salary schedule which was adopted.
 Without Procunier's knowledge, secretaries decided to prepare their own pay schedule and J drafted it: "P.S. Salary Study."
 They decided to deliver the plan personally to brd members on June 1 and did not deliver copy to Procunier until later that day.
 J never told Procunier about the plan.
 B/c of the timing of delivery Procunier was not prepared to answer brd members questions about the plan that day.
 After this incident the working rltshp b/w Procunier and J deteriorated.
 June 13 Procunier met w/ J to discuss the timing of the plan delivery and his displeasure at having not been informed about
 it ahead of time.
 June 15 they again met and Proc told J b/c she was not laoyal and suportive he was recommending her termination. Reason
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stated for her termination was her conduct arising out of the prep and delivery of the P.S. Salary Study as it related to
her supervisor, Procunier.
ISSUE: Did J's conduct give rise to a LNDR for her discharge, despite the fact that the substance of her protest was protected?
Yes.
RULE: When an EE engaged in opposition to a perceived unlawful employment practice particippates in conduct which
does not further the protest, but merely hinders another person's ability to perform his job, that EE relinquishes statutory
protection.
Ct Analysis:
 COURT→ 3 step analysis for retaliatory discharge under T7:
1) P has the burden of proving a PF case of discrimination based upon opposition to an unlawful employment practice. P
meets this burden by showing:
a. she was engaged in statutorily protected expression, opposition to a seemingly unlawful employment practice.
b. she suffered an adverse employment action (some courts say that that means that adverse employment decision requires an
adverse hiring, pay, promotion, leave, demotion, or discharge decisions and NOT unfair criticism, warnings, or evaluations,
hostility of co-workers, surveillance, or a lateral reassignment. Some say the opposite and say that an adverse employment action
is not required, holding that retaliation can result from acts beyond the employment relationship.).
c. and there was a causal connection b/w the statutorily protected expression and the adverse employment action (at minimum
plan must show ER knew of the conduct, also proximity b/w conduct and adverse action is good). KEY→the P need not establish
that the action she was protesting was actually an unlawful employment practice, but rather only that she had a REASONABLE
BELIEF that the action was unlawful. (Some courts take a different view:
(1) good faith belief of a violation is sufficient. (2) some apply an objective reasonableness standard. (3) some require both
good faith and reasonableness).
2) after PF established by plan→the burden shifts to the D to articulate a LNDR for the adverse employment action. Disciplining
an EE for protesting apparently unlawful employment discrimination does NOT=SLNDR. BUT→disciplining an EE for conduct
that is UNREASONABLE, even if borne out of legitimate protest, does not violate T7.
3) burden then shifts back to P to show that the D's articulated reason was pretext for the actual discrim motive.

Conclusion: HERE→the substance of the P's protest, unlawful SD, was OK BUT it was unreasonable for her to deliberately
disrupt the work environment and interfere w/the supervisor's relationship w/his own superiors.

Class Notes

 Loyalty is not a per se defense to a retaliation claim there must be something more.

Secondary Source Notes

P was discharged from her secretarial job after she delivered a salary schedule to school board members behind her supervisor's
back and was fired for disloyalty. She sues claiming unlawful retaliation.
COURT→ 3 step analysis for retaliatory discharge under T7: 1. the P has the burden of proving a PF case of discrimination based
upon opposition to an unlawful employment practice. P meets this burden by showing:
a. she was engaged in statutorily protected expression, opposition to a seemingly unlawful employment practice.
b. she suffered an adverse employment action (some courts say that that means that adverse employment decision requires an
adverse hiring, pay, promotion, leave, demotion, or discharge decisions and NOT unfair criticism, warnings, or evaluations,
hostility of co-workers, surveillance, or a lateral reassignment. Some say the opposite and say that an adverse employment action
is not required, holding that retaliation can result from acts beyond the employment relationship.).
c. and there was a causal connection b/w the statutorily protected expression and the adverse employment action (at minimum
plan must show ER knew of the conduct, also proximity b/w conduct and adverse action is good). KEY→the P need not establish
that the action she was protesting was actually an unlawful employment practice, but rather only that she had a REASONABLE
BELIEF that the action was unlawful. (Some courts take a different view: 1. good faith belief of a violation is sufficient. 2. some
apply an objective reasonableness standard. 3. some require both good faith and reasonableness).
2. after PF established by plan→the burden shifts to the D to articulate a LNDR for the adverse employment action. Disciplining
an EE for protesting apparently unlawful employment discrimination does NOT=SLNDR. BUT→disciplining an EE for conduct
that is UNREASONABLE, even if borne out of legitimate protest, does not violate T7.
3. burden then shifts back to P to show that the D's articulated reason was pretext for the actual discrim motive.
HERE→the substance of the P's protest, unlawful SD, was OK BUT it was unreasonable for her to deliberately disrupt the
work environment and interfere w/the supervisor's relationship w/his own superiors.

Key Points

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 COURT→ 3 step analysis for retaliatory discharge under T7:


1) P has the burden of proving a PF case of discrimination based upon opposition to
an unlawful employment practice. P meets this burden by showing:
a. she was engaged in statutorily protected expression, opposition to a seemingly unlawful
employment practice.
b. she suffered an adverse employment action (some courts say that that means that adverse
employment decision requires an adverse hiring, pay, promotion, leave, demotion, or
discharge decisions and NOT unfair criticism, warnings, or evaluations, hostility of co-
workers, surveillance, or a lateral reassignment. Some say the opposite and say that an
adverse employment action is not required, holding that retaliation can result from acts
beyond the employment relationship.).
c. and there was a causal connection b/w the statutorily protected expression and the adverse
employment action (at minimum plan must show ER knew of the conduct, also proximity b/w
conduct and adverse action is good). KEY→the P need not establish that the action she was
protesting was actually an unlawful employment practice, but rather only that she had a
REASONABLE BELIEF that the action was unlawful. (Some courts take a different view:
(1) good faith belief of a violation is sufficient. (2) some apply an objective reasonableness
standard. (3) some require both good faith and reasonableness).
2) after PF established by plan→the burden shifts to the D to articulate a LNDR for the adverse
employment action. Disciplining an EE for protesting apparently unlawful employment
discrimination does NOT=SLNDR. BUT→disciplining an EE for conduct that is
UNREASONABLE, even if borne out of legitimate protest, does not violate T7.
3) burden then shifts back to P to show that the D's articulated reason was pretext for the
actual discrim motive.

2. Adverse Action

Topic Notes

2nd element of PF case [adverse action] has become a critical issue for the dismissal of retaliation cases on the basis that
the adverse action is not adverse enough.

Ray v. Henderson , 2000

Case Brief

FACTS:
 Ray complained formally and informally to the EEOC of the treatment of women at his work place.
 Ray claims that in retaliation for complaining his supervisors eliminated the EE Involvement Program, the flexible start
 time policy, instituted lockdown procedures, and reduced his workload and his pay.
 After the complaint, Ray was targeted for verbal abuse related to the complaint for a period of over 1.5 yrs.

ISSUE: (1) Whether Ray suffered adverse employment actions after complaining of harassment at work. (2) Whether Ray has a
valid hostile work environment claim under T7 retaliation.

RULE: (1) An EE suffers adverse employment action when the EE is subjected to adverse tx that is reasonably likely to
deter EEs from engaging in protected activity.
(2) A hostile work environment claim may be the basis for a retaliation claim under T7 if it is sufficiently severe and
pervasive and offensive both subjectively and objectively.

APPLICATION:
 steps in a retaliation claim:
1) P makes out PF case of retaliation by showing:

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a) he engaged in a protected activity; parties do not contest this


b) his ER subjected him to an adverse employment action; and this is disputed
c) a causal link b/w the protected activity and the adverse action exists. since b is disputed so is this
2) If P makes out PF case, then burden shifts to ER to articulate LNDR for its decision;
3) If D does so, then P must show that the reason [LNDR] was merely pretext for discrim
motive.  The cts analysis of "what constitutes adverse employment action":
1) ct held that there is a wide array of what constitutes this, but mere ostracism by co-workers does not.
2) the 9th Cir [takes an expansive view of what constitutes adverse employment action] has held that a lateral transfer does-
Strother; transfer of job duties and undeserved performance ratings does- Yartzoff; and an unfavorable job reference
does-Hashimoto.
3) 2nd and 3rd Cir. have an intermediate position and have held: adverse employment action is something that materially affects
the terms and conditions of employment.
4) 5th and 8th Cir. has the most restrictive test: holds that only ultimate employment actions such as hiring, firing, promoting,
and demoting constitute actionable adverse employment actions.
5) The EEOC define adverse employment action as: any adverse tx that is based on a retaliatory motive and is reasonably likely
to deter the charging party or others from engaging in in protected activity. Focus is on the deterrent effect so it follows the
purpose of T7.
 This ct adopts the EEOC defn b/c it fits the precedent and is consistent with several other cir cts and is consistent with T7's
purpose.
 Application of EEOC defn to this case:
6) All 4 actions Ray complained were taken against him for complaining qualify as adverse employment actions; they were all
reasonably likely to deter Ray or others from complaining about discrim in the workplace.
 Ct then examines whether Ray being subjected to a hostile work environment is cognizable under T7 anti-retaliation.
 Ct finds that harassment as retaliation for engaging in protected activity is no different than harassment on basis of race and
gender.
 So harassment that creates a hostile work environment can be cognizable under T7 retaliation if when you look at the totality of
the circumstances you find it to be severe and pervasive enough to alter the conditions of employment and create an abusive
work environment.

CONCLUSION: Dist ct erred in granting SJ on the hostile work environment retaliation claim.

Notes:
 2. T7 does not prevent/ punish an ER for unjustifiably rewarding an EE to avoid a discrim claim.
Class Notes

 Can co-workers retaliate and create a hostile work environment making ER liable for retaliation? Yes, if supervisor
 knows about it and does nothing or if the supervisor is behind the actions.
 If you quit can you then claim retaliation? yes under 9th Cir definition of adverse employment action. Could be
constructive termination.
Group 2 Px:

V. Disability Discrimination

A. Intro

Topic Notes

T1 covers most employment agencies, labor orgs., and ERs, including state and local govts.
T2 generally prohibits disability discrim by state and local govts, may also prohibit employment discrim.
Private ERs are subject only to T1, but state and local public ERs may be subject to T1 and T2.
Rehabilitation Act of 1973 required most fed contractors and fed executive agencies to take affirmative action to employ and
promote qualified persons with disabilities. Also protects such persons from disability discrim in any program or activity that
receives fed financial assistance or is conducted by a fed executive agency.
Congress, in enacting ADA, found discrim vs disabled to be pervasive and costly.

Topic Class Notes


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 1st ask yourself: is this a disability by defn under the statute?


 So what is the defn of disability under the statute?
ADA and RA could apply for basis of having a disability.

B. Meaning of Disability

Topic Notes

 To claim protection under the ADA, a P must be "a qualified individual with a disability"; that is, the P must be an
individual with a disability who can perform essential job functions with or without reasonable accommodations.
 ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one or
more of the major life activities of an individual; (2) a record of such an impairment; or (3) being
regarded as having such an impairment.
 Excluded as a disability homosexuality, bisexuality, other sex related conditions, and compulsive gambling,
kleptomania, pyromania, and disorders resulting from illegal use of psychoactive drugs.
 Factors to be considered to see if person is substantially limited in a major life activity include: (1) nature and severity of
impairment; (2) duration or expected duration of the impairment; and (3) the permanent or long term impact, or the
 expected permanent or long term impact of or resulting from the impairment.
 KEY--> ADA does not depend on establishing an actual, present disability. A record can be enough if it meets #1 defn
 of disability.
 For disability defn #3: "regarded as having such an impairment" means: (1) a person who does not have disability
that substantially limits a major life activity but is treated by others as having such an impairment.
In Airline, the USSCt considered this 3 prong meaning of disability. A teacher was fired b/c the school believed her TB posed a
health threat to others. The Ct held the teacher was covered as having a disability since she was fired b/c of the contagiousness
which was caused by her underlying condition/ impairment. KEY--> Unfair for an ER to distinguish b/w the effects of a disease
on others and the effects of a disease on a patient and to use that distinction to justify discriminatory intent.

Topic Class Notes

You do not want your child to be taught by a teacher with AIDS is that discrim? AIDS is a disability.

1. Actual Disability

Bragdon v. Abbott , 1998

Case Brief

FACTS:
 Abbott infected with HIV 1986. She was asymptomatic and went to dentist, Bragdon, for appointment. She disclosed her
HIV on patient form. Bragdon, as part of his policy, refused to fill her cavity since she had HIV. He offered to do it at
 hospital at no additional charge. She would have to pay for hospital.
 Abbott sued Bragdon under ADA alleging discrim on basis of her disability.
ISSUE: (1) Whether HIV is a disability under the ADA when the infection has not progressed to the symptomatic phase. (2) Does
HIV affect a major life activity?
RULE: The Test for "disability" requires examination of 3 separate elements: (1) physical or mental impairment (2) that
substantially limits (3) one or more major life activities.
Ct Analysis:
1. Is HIV a disability under ADA?
 ct looked to ADA defn of disability. Found HIV fits under defn of disability as being an impairment that substantially limits
1 or more major life activities of the individual.
 ct made this finding after a 3 step process: (1) was HIV a physical impairment? (2) Does the life activity Abbott relies
 on constitute a major life activity? (3) Does the impairment substantially limit the major life activity?
 Ct looks at Congressional intent and sees that Congress intended the ADA to grant at least as much protection as the RA.

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 For step 1 Ct finds that HIV falls within the general defn set forth in the RA. Based on the stages of HIV the Ct holds it is an
impairment from the moment of infection. it causes immediate abnormalities in the blood and wt cell count. For these
reasons the Ct holds that HIV is regarded as a physiological disorder.
 Step 2: Does HIV affect a major life activity? Yes.
 Ct makes this finding based on the substantial limitation HIV has an the ability to reproduce and bear children. Reproduction
 is a major life activity. Ct looks to RA and in so doing finds reproduction to be a major life event.
 Step 3: Was HIV a substantial impairment on her reproduction? Yes. HIV limited her ability to reproduce in 2 ways: (1) the
risk reproduction imposes on the partner, and (2) the risk she imposes on the child. KEY--> Ct says "substantial limitations"
 does not equal utter inability.
 Ct finds support for its holding that HIV is covered under the ADA. Congressional intent supports this finding based on
the fact that ADA adopted RA definition of disability.

CONCLUSION: HIV is covered under the ADA.

Notes:
2. EEOC stated that "physical or mental impairment" does not include physical chars, such as weight, height, and eye color, that
are in the normal range and not a result of a physiological disorder. Neither is pregnancy an impairment.
5. RA contains no language suggesting it is linked to how an individual became impaired. Therefore, voluntariness is
only relevant in determining whether a condition has a substantially limiting effect.
11. In Furnish, the ct distinguished b/w an impairment's effect on a body system versus the impairment's impact on activities.
Under the ADA, only when the impact of the illness substantially limits a major life activity is an individual considered
disabled under the ADA. The ct rejected P's claim that liver function was a major life activity that was substantially affected by
his infection with Hep B.

Class Notes

 not an employment case


 interprets ADA using statutory analysis
 if you have HIV you have a disability b/c (a) it is a physical impairment, (c) major life activity it affected was
 reproduction, and (b) HIV substantially limits your ability to reproduce.
 We can not say that HIV is a per se disability b/c it may not always an impair a major life activity. IE the HIV infected may be
infertile so that reproduction is not a major life activity.
pregnancy is not a disability b/c it will end so knocked out under substantially limits. Complications from pregnancy could
make it a disability- ie complication that puts you on bed rest and you do not know how long it will last.

Key Points

The Test for "disability" requires examination of 3 separate elements: (1) physical or mental impairment (2) that
substantially limits (3) one or more major life activities.

Toyota v. Williams , 2002

Case Brief

FACTS:
 Williams [R] worked with pneumatic tools at Toyota.
 R claiming to be disabled b/c of her carpal tunnel syndrome sued Petitioner for failing to provide her w/ a
 reasonable accommodation as required by ADA.
 R worked for P from 1990 on the engine fabrication assembly line using pneumatic tools. Use of these tools caused her pain
 in her hands, wrists, and arms. She went to Dr. and he said for her not use pneumatic tools.
 For next 2 yrs P assigned her to modified jobs in QCIO. R performed these jobs satisfactorily.
 1996 P made QCIO EE rotate thru all 4 QCIO processes. R began to have neck and shoulder pain.
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 R requested P accommodate her condition and allow her to return to her original 2 jobs in QCIO.
 R claims P denied he request. P says R just began to miss work.
 Last day R worked, De. 6, 1996 she was placed on a no-work-of-any-kind restriction by her Dr. Jan 27, 1997 R was fired
 for poor attendance.
 Dist Ct granted SJ to Petitioner finding impairment did not sbstlly limit any major life activity.Also at time she
 requested accommodation she was not disabled.
 Ct Appels reversed and granted partial SJ finding impairment did sbstly limit a major life event of performing manual tasks.
 This Ct granted certiorari.

ISSUE: What is the proper standard for assessing whether an individual is sbstly limited in performing manual tasks under the
ADA?

RULE: To be substantially limited in performing manual tasks, an individual must have an impairment that prevents or
severely restricts the individual from doing activities that are of central importance to most people's daily lives. The
impairment must also be permanent or long-term. If so then disabled under the ADA.

Ct Analysis:
 Congress intended the existence of a disability to be determined on a case by case basis.
 ADA requires those seeking its protections to prove a disability by offering evidence that the extent of the limitation caused
by their impairment in terms of their own experience is substantial.
1) Ct analysis:
 look 1st to the defn of disability under the ADA. "substantially limits" means impairments that interfere in considerable/
major way with the performance of manual tasks, NOT minor interferences.
 Look 2nd to defn to major life activity under ADA: finds it refers to those activities that are of central importance to daily
 life. For manual tasks to fit in this category they must be central to daily life.
 Ct of Appeals analysis wrong b/c it focused on R's inability to perform manual tasks associated only with her job.
 The correct analysis would be" When addressing the major life activity of performing manual tasks, the central inquiry must
be whether the 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.
CONCLUSION: Ct of Appeals reversed and remanded. Remanded to see if she could perform tasks essential to her daily
lives since Ct Appeals screwed this up when they looked to see if she could perform manual tasks at work.
Notes:
2. Ct agreed w/ 6th Cir that performing manual tasks is a major life activity. But to be such the manual tasks must, singly
or together, be central to daily life.
8.
9. In Bristol, 10th Cir held that determining whether something constitutes an impairment or major life activity is a question
for the ct, but whether the impairment substantially limits the major life activity is a question of fact for jury.
13. In Albertson's v. Kirkinsburg, USSCt held that the fact that an impairment requires an individual to perform a major life
activity differently does not mean it is substantially limiting.

Class Notes

Class Notes from 11/9/05


Statutory defn of a disability:
1. (a) physical or mental impairment (b) sbstly limits (c) a major life activity or
2. record of impairment or
3. regarded as

Who can perform the essential functions of the job w/ or w/o reasonable accommodation unless undue hardship

all of the above equal a qualified individual with a disability + most be able to perform the essential functions of the
job w/ w/o reasonable accommodations.

If you go thru #1 make sure you go thru 2 and 3 if needed. All you need is 1,2, or 3 o say you are disabled under the statute.
 If you are a qualified individual w/ a disability undue hardship could still prevent you from prevailing.

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Rehabilitation Act sets out a list of major activities: functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. Ct also held reproduction was in Bragdon.

Was carpal tunnel a disability for Williams:


1) is it a physical or mental impairment? yes
2) does it substantially limit? no
3) is there a major life activity that is substantially limited by carpal tunnel? No

 the life activity of working as a major life activity requires you to be substantially limited in a broad class. If work is
the major life activity you are probably not a qualified individual with a disability b/c you can not perform the essential
 functions of the job.
 USSCt has not stated whether working is a major life activity.

Sutton v. United Airlines , 1999

Case Brief

FACTS:
 Ps are twin sisters who have severe myopia causing there uncorrected vision to be 20/200 or worse, but with corrective
lenses vision is corrected to 20.20 or better.
 Ps applied for employment as pilots.
 Ps were given interviews, but told during interview they did not meet minimum qualifications b/c minimum vision
 requirement was 20/100 or better uncorrected.
 P were not offered positions and filed suit alleging R had discrim against them on the basis of their disability, or b/c
 R regarded Ps as having a disability in violation of the ADA.
 Dist ct dismissed Ps complaints for failure to state a claim. Ct of Appeals 10th Cir affirmed.
ISSUE: In determining whether an individual is substantially limited with respect to a major life activity under the disabled
defn of the ADA, must such disability be determined taking into consideration any corrective measures? Yes.
RULE: In determining whether an individual is substantially limited with respect to a major life activity under
the disabled defn of the ADA, such disability must be determined taking into consideration any corrective
measures. Ct Analysis:
1) Did Ps state a claim under the defn of disability/ did they allege they possess a physical impairment that sbstly limits them in
one or more major life activities?
a) To decide this it must be decided whether disability is to be determined with reference to corrective measures or not.
i) P argues whether an impairment is sbstly limiting should be decided w/o regard to corrective measures.
ii) D argues an impairmnet does not sbstly limit a major life activity if it is corrected. Says EEOC guidelines conflict with plain
meaning of ADA. Under ADA corrective measures must be taken into account to determine if impairment sbstly limits major life
activity. Sighting Congressional intent not to include as disabled those whose impairment s could be corrected, defn of disabled
takes a present view of whther the impairment is sbstly limiting and with corrections there is no sbstl limitation.
Dissent Stevens:[ I agree]
 If we apply customary tools of statutory construction, it is clear that the threshold question whether an individual is disabled
under the ADA focuses on her past or present physical condition without regard to mitigation that has resulted from
rehabilitation, self-improvement, prosthetics, or medication.
 Must look at statutory construction and ask: (1) whether the determination of disability for people that Congress intended to
cover should focus on their unmitigated or mitigated conditions? Statutes 3 prong defn shows it includes the unmitigated
condition. Otherwise, there would have been no reason to add subsection B which covers a person who previously had a
condition that is recorded. Legislative hx also shows unmitigated was intended based on Senate Reports and HR reports.
 The simple inquiry here was whether the Ps are members of the ADA's protected class.

Dissent Breyer:
If the interpretation of including unmitigated conditions opens the flood gates for litigation than the EEOC could,
through regulation, restrict the definition of disability not to include unmitigated.

CONCLUSION: Ps have no claim b/c not protected class members under the ADA since not disabled b.c impairment was
corrected.

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Notes:
2. Article said that disability should be understood as a "condition in which people- b/c of present, past, or perceived
impairments- are viewed as somehow outside the norm for which society's institutions are designed and therefore likely to have
systematically less opportunity to participate in important areas of public and private life."
4. Murphy was decided same day as Sutton, considered disability discrim claim of mechanic dismissed b/c of high BP. P claimed
disability determination should be made w/o regard to meds he took to control BP. Ct rejected this. After Sutton Ps must develop
factual records to support their impairment is sbstly limiting even when controlled by meds.
5. What happens if it is the meds that cause the impairment to be sbstly limiting to a major life activity?
6. Should an individual be covered by ADA if his impairment is sbstly limiting only b/c he fails to control an otherwise
controllable illness such as diabetes? Most cts say not covered.

A. Note on Deference to the EEOC

Topic Notes

 To what extent is the EEOC entitled to meaningful deference from cts in its interpretation of the statutes it administers?
 What judicial deference, if any, is due the materials promulgated by the EEOC?
 T1 of ADA confers substantive rule making authority on the EEOC. So issues concerning what constitutes an essential
job function, a reasonable accommodation, an undue hardship, or a direct threat [issues under T1] would be subjected to
 the interpretive authority of the EEOC.
 in Chevron, USSCt recognized that agency interpretations of silent or ambiguous statutes are due deference from the cts when
Congress has delegated law-interpreting power to the agency. But no deference given if Congress itself has spoken to
the precise question at issue.
Skidmore deference has also been given to agency when it had not been delegated interpretive authority such an interpretation is
given persuasive authority depending on the thoroughness of its consideration, validity of its reasoning, its consistency with
precedent.

B. 1

C. 2

2. Record of such an

Impairment Topic Notes

 ADA defines disability to include having a record of an impairment that sbstly limits a major life activity.
 The impairment indicated in the record must be 1 that would sbstly limit 1 or more major life activities.
 What ev is necessary?
 More than the mere existence of a record of a hospital stay is required.
Can individuals with learning disabilities establish ADA coverage? In Davidson, a psychotherapist was able to do so based on
the history of the impairment limiting her ability to learn.

A. 3

3. Regarded as having such an Impairment

Sutton v. United Airlines , 1999

Case Brief

FACTS:
See earlier case facts above.
ISSUE: Where a P seeks to show that an ER's requirement sbstly limits the major life activity of working, must the P allege he is
unable to work in a broad class of jobs, and not a single job, as compared with the average person having comparable training,

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skills, and abilities? Yes.


RULE: When the major life activity under consideration is that of working, the statutory phrase "sbstly limits" requires,
at a minimum, that Ps allege they are unable to work in a broad class of jobs, and not a single job, as compared with the
average person having comparable skills, training, and abilities. APPLICATION:

 Ps failed to allege that their poor eyesight is an impairment that sbstly limits their major life activity of working. The only
job they were limited by regarding working has been being a pilot and there are other jobs available ie pilot instructor,
 regional pilot...
 An otherwise valid job requirement does not become invalid simply b/c it would limit a person's employment ops in a
sbstl way if it were adopted by a sbstl number of ERs.

CONCLUSION: claim dismissed.

Class Notes

 you have to show employer regarded you as substantially limited in a major life activity not regarded as physically or
mentally impaired.
Hard to prove ER regarded you as substantially limited in a major life activity.

C. Meaning of Qualified Individual w a Disability

Topic Notes

The Meaning of "Qualified Individual with a Disability"

ADA: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training and other terms, conditions and privileges of employment.

SW Comm. College v. Davis: SC rejected reading of "otherwise qualified" that would protect individuals who were qualified
apart from their disability. Instead, Court interpreted term to mean an individual who can meet the demands of the job or program
despite the disability.
interpretation carried over into Title I of ADA.
While Title I extends its protections to disabled individuals who can perform the essential tasks of their jobs, it will not
permit employers to deny employment because a disability precludes the performance of nonessential or relatively
unimportant aspects of the job.

Topic Class Notes

Today 11/14/05 Last Class:


Statutory definition
Qualified Individual:
disabled and can perform essential (f)s w/ or w/o reasonable accommodation.

Can cancer on its own be a disability? not alone


What about diabetes? no not if no other complications.

1. Essential Job Functions

Deane v. Pocono Medical Center , 1998

Case Brief
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Essential Job Functions


Deane v. Pocono Medical Center: Deane, RN, sued PMC under ADA as "regarded as" disabled plaintiff when PMC did not
accommodate her such that she would be able to retain her position, that required heavy lifting, after a job related accident.
ISSUE: Whether "regarded as" plaintiffs, in order to be considered qualified under the ADA, must show that they are able to
perform all of the functions of the relevant position or just the essential functions, with our without accommodation.
HOLDING: Plain language of ADA requires proof only of a plaintiff's ability to perform a position's essential functions
ISSUE: Is Deane a qualified individual?
TEST: "Qualified individual"
1) court must determine whether the individual satisfies requisite skill, experience, education, and other job-
related requirements of employment position that such individual holds or desires
2) must determine whether the individual, with or without reasonable accommodation, can perform the essential
functions of the position sought
a. court must consider whether the individual can perform the essential function of the job without
accommodation. If yes, qualified.
b. If not, court must look to whether the individual can perform the essential functions with a
reasonable accommodation. If yes, qualified. If not, Plaintiff has failed to est. element of pf case.
In the present case, Plaintiff contends that lifting is not an essential job function and PMC says that it is.
Court says that two possible types of evidence for determining essential functions of positions are written job
descriptions and employer's judgment.
EEOC: whether a particular function is essential is a factual determination that must be made on case by case basis
à are issues of material fact here, so no SJ

NOTES
Numerous courts have held that regular and timely attendance at work is an essential job function, so disabled individual who
cannot meet that requirement is not "qualified" within meaning of ADA and Rehabilitation Act
Just because a job function is performed for only a small percentage of employee's time does not mean it is not essential
Employer may not deny employment to a disabled individual because she is unable to perform functions that are not
essential.

Class Notes

who proves the essential functions of the job? here they brought in an expert witness- very unusual. Job descriptions.
Usually employer comes up w/ essential (f)s of the job.
Ct does not defer to what ER says are the essential job (f)s here. Ct allowed expert wtns to testify. Not a reasonable
accommodation to have someone else perform the essential (f)s of the job. However, it could be a reasonable accommodation to
have an accommodation to help you w/ an essential.
Should focus on what the person actually does on the job. Person may not perform the work in the job description.
 temporary positions: ADA does not require you to create a new position. If you create a temporary position and leave them
in it for over 1 yr or so you may be deemed to have created a new position.
 Note
 1. consideration shall be given to the ER's jdgmt as to what (f)s of a job are essential and that written job descriptions
 prepared prior to advertising or interviewing shall be considered ev of the essential (f)s of the job.
 2. does the position exist to perform the job whether you do it often or not.
 3. regular attendance is an essential (f) of the job most of the time.
 4.
 5. time you actually spend performing the (f) does not determine whether it is an essential (f) or not.
 6. Once we have an essential (f) than it is not a reasonable accommodation to have someone else perform that (f).
9.

A. 4

Topic Class Notes

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 is this a disability
 is there a physical or mental impairment
 is there a major life activity involved
 is the major life activity sbstly limited by the disability
 If answering phone is an essential job (f) than no reason to go to accommodation issue.
If you find answering phone not an essential (f) of the job then TDD may be a reasonable accommodation if it is not
outrageously expensive.

2. The Duty of Reasonable Accomodation

Topic Notes

Duty of Reasonable Accommodation


Under ADA, not enough for an employer to treat its disabled employees the same than it treats non-disabled employees
to perform their jobs
Employer must take affirmative steps that will allow disabled employees to perform their jobs
If disabled person can perform essential functions with reasonable accommodation, the employer has a duty to provide those
accommodations.
If disabled person requires accommodations that are not reasonable or that impose an undue hardship, disparate treatment
on the basis of disability is permitted and accommodating the disability is not required
Employers not only have duty to provide reasonable accommodations so that disabled persons can perform essential job
functions, but also have duty to provide accommodations that permit disabled individuals to enjoy equal access to the
benefits and privileges of employment.
In a reasonable accommodation case, the disabled individual is requesting different treatment.

Cleveland v. Policy Mngmt Systems Corp , 1999

Case Brief

PHx:

FACTS:
 Cleveland suffered a stroke which damaged her concentration, memory, and language skills.
 She was fired and filed an application for Social Security Disability Insurance [SSDI] in which she stated she was
 disableld and unable to work.
 Her condition improved and she returned to work for D. As a result she was denied SS benefits.
 3 mos later she was fired and asked SSA to reconsider her application for benefits stating she was terminated due to
 her condition and still disabled and unable to work.
 In the application she also stated she tried to work again but D terminated her b/c she was unable to do the job in light of
 her condition.
 At the hearing for reconsideration she said "I am unable to work due to my disability.'
 SSA awarded her benefits. One week b4 the award, CLeveland filed an ADA lawsuit against D alleging D failed to
 provide her w/ accommodations
 SSA: provides $ benefits for individual who is under a disability. Meaning unable to do previous work or engage in any
 other kind of substantial gainful work which exists. Does not mention whether this is w/ reasonable accommodations.
 ADA: goal is to eliminate disability discrim. Disable person is one who is qualified for the job: can perform the
 essential functions of the job w/ or w/o reasonable accommodations.
 Ct of Appeals held that a P could not have a claim under SSA and ADA b/c would involve 2 conflicting propositions: I am
too disabled to work and I am not too disabled to work. To prevent these 2 claims of factual conflict the ct used a special
 judicial presumption to prevent P like Cleveland from successful;y asserting an ADA claim.
 CT here hold the judicial presumption is no good b/c too many situations where SSDI claim and ADA claim can exist
 together w/o conflict.
 An ADA claim that P can perform essential functions of job w/ reasonable accommodations may prove consistent w/ SSDI
claim that P can not perform her own job w/o the accommodation.
ISSUE:
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RULE: In order to defeat SJ w/ respect to an ADA suit in a case in which the P has been successful on an earlier SSDI
total disabiity claim, the P must explain any apparent inconsistencies b/w the claims sufficient to allow a reasonable
juror to conclude that the P could perform the essential functions of the job w/ or w/o reasonable accommodation.

APPLICATION:

Notes:
3. After Cleveland, cts no longer presume that a claim for disability benefits is necessarily inconsistent w/ a T1 claim but instead
closely examine the factual stmts made in the benefits proceedings.

Class Notes

 if you are under the SSDI you are not cut off from ADA claim
when you apply for SSDI and get them you may still be able to claim ADA violation.

Vande v. State of Wisconsin Dpt of Admin , 1995

Case Brief

Facts: Vande Zande = paraplegic worked for Wisconsin; because of condition developed pressure ulcers that required her to
stay at home. Wisconsin made several accommodations for her handicap - lowered one sink, purchased special furniture,
adjusted schedule to accommodate medical appointments, and making changes to plans to new employee locker rooms. Vande
Zande wanted Wisconsin to provide her with a lap top so she could work full time from her home, and to lower the kitchenette
sinks. Vande Zande quit, and sued Wisconsin. District Court - Summary Judgment to Wisconsin, Vande Zande appealed.
Issue: Is the duty of reasonable accommodation satisfied when the employer does what is necessary to enable the disabled worker
to work in reasonable comfort?
Reason: Yes, the duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled
worker to work in reasonable comfort. Wisconsin reasonably accommodated Vande Zande. Wisconsin was not required to spend
money to lower the sink. The employer does not have a duty to expend even modest amounts of money to bring about absolutely
identical working conditions for disabled and non-disabled workers. (Undue Burden)

Class Notes

reasonable accommodation vs. undue hardship


cost proportional to benefit
1st step: Are you disabled? Is there a physical or mental impairment that affects a major life activity substantially; is there
a record of the impairment; or are you regards as impaired.
2nd step: Can you perform the essential functions of this job? You should look at what the ER does-job descriptions, ads
for position, but this is not conclusive of what the essential functions of the job are. You should look at what the actual
performance of the job requirements. Does frequency make a difference? No. Must look at the importance of the function
 of the job. Ie life guard. Analze each situation on a case by case basis.
 3rd: once you determine it is an essential function of the job must see if reasonable accommodation needed: It is not a
reasonable accommodation to have to restructure the job. Not a reasonable accommodation to have to hire someone to
 help them perform esssential job functions. Job restructuring is not necessarily a reasonable accommodation.
 Burden to show "qualified" is on the disabled person.

Notes:
Just b/c it is a requested accommodation does not mean it is required.
Can be liable under ADA for disparate treatment, failure to provide a reasonable accommodation.
* ER defenses: undue hardship is ER burden [reasonable accommodation is EE burden].
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Cost benefit analysis from the reasonable aspect: if cost of providing the benefit/ accommodation is severely outweighed by the
benefit it will provide then not a reasonable accommodation.
_ if an EE

US Airways v. Barnett , 2002

Case Brief

Facts: Barnett injured his back while working as a cargo-handler for US Airways. Barnett was transferred to a less physically
demanding job in the mail room. After 2 years, his mail room position became open to a seniority system bidding war.
Employees that were senior to him were going to bid for the position. Barnett wanted US to not designate his job as vacant
because it was a reasonable accommodation. US refused and Barnett lost his job. Barnett filed suit, District Court granted
summary judgment to US Airways based on a seniority system, it had been in place for decades, common to industry, alteration
would cause undue hardship.
Issue: Is an employer's showing that a requested accommodation conflicts with seniority rules ordinarily sufficient to show, as a
matter of law, that an accommodation is not reasonable unless the employee presents evidence of special circumstances that
makes a seniority rule exception reasonable in the particular case.
Reason:
 Case by case and fact intensive

 RULE - Ordinary case - employer showing that a request accommodation conflicts with seniority rule is sufficient to
show as a matter of law that an accommodation is unreasonable, unless the employee presents evidence of special
circumstances that makes the seniority rule exception reasonable in the particular case.

 US argues - seniority system virtually always trumps disability

 The court finds ADA does not create an automatic exemption -

 Barnett argues - reasonable mean effective; but seniority rule has nothing to do with effectiveness of
accommodation; it would not be an accommodation if it was not effective

 Plaintiff - must show reasonable accommodation available

 Defendant - must show undue hardship flow from the accommodation suggested, and it is therefore unreasonable.

 Statute does not require case by case that a seniority system should prevail, because it would not be reasonable in the run
of cases that the assignment trump such a system's rules.

 Employees expectations - rely on seniority system for advancement, predictability, etc..

 Remand for plaintiff to show there are special circumstances
Concurrence: 1st must determine that the seniority system is legally enforceable.
Dissent: The language of the ADA requires employers to modify or remove policies and practices that burden a disabled because
of his disability to eliminate barriers that would not be barriers but for the employee's disability.
Facts:
Barnett injured his back at work as a cargo-handler.
He invoked his seniority rts and transferred to a less physically demanding position in the mailroom.
2 yrs later his mailroom position became open for seniority bidding. He asked US Airways to accommodate his disability-
imposed limitation by making an exception to the seniority bid so that he could remain in the mailroom position and
not be bumped out by seniority.
US Airways did not make the exception and Barnett was bumped from the mailroom.
Barnett then brought this ADA suit against D. He claimed that D's failure to keep him in his mailroom position was a failure
by D to provide him w/ a reasonable accommodation.
Dist Ct granted D SJ based on the fact that the accommodation was an undue hardship. The accommodation would go against
the seniority system policy and therefore be an undue hardship for D and its EEs.
Ct of Appeals reversed saying the presence of a seniority system is just one factor in the undue hardship analysis. A case
by case analysis is required to see if a particular reassignment would be an undue hardship to ER.

Issue:

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Whether the ADA requires an ER to reassign a disabled EE to a position as a reasonable accommodation even though
another EE is entitled to hold the position under the ER's bona fide and established seniority system. Ordinarily ADA
does not require that assignment.

Analysis:
D argues that the fact the accommodation would violate the seniority system always makes the
accommodation unreasonable.
Barnett argues that a seniority system violation to make an accommodation must be looked at on a case by case basis to see
if it is an undue hardship.
The ADA specifies that preference [form of a reasonable accommodation] will sometimes be required to achieve the Act's
equal opportunity goal. The fact that the difference in treatment violates an ER's disability neutral rule cannot by itself
place the accommodation beyond the Act's potential reach. Thus the ct rejects D's argument that an accommodation that
violates a seniority system is always an unreasonable accommodation.
"Reasonable accommodation" does NOT mean effective accommodation.
Ct holds that: A P/ EE can defeat the ER's motion for SJ by showing that an accommodation seems reasonable on its
face/ feasible for the ER. Once the P has made this showing, the ER then must show special circumstances that
demonstrate undue hardship in the particular circumstances [burden on ER to show that particular
accommodation would cause it to suffer an undue hardship.
Holding: An ER is ordinarily entitled to SJ when an accommodation would violate an established seniority system. However,
the P can present evidence that despite the presence of the seniority system, the requested accommodation is reasonable
in the situation. The P can do this by explaining why an exception to the ER's seniority policy can be a reasonable
accommodation even though ordinarily it can not be. P can do so by showing seniority system is often changed by ER
such that EEs have reduce expectations of the system being followed. Or show the system itself contains exceptions.
Rule: Ordinarily a seniority system will trump.

Scalia dissent:
ADA provisions order ERs to modify or remove policies and practices that burden a disabled person b/c of his disability.
A seniority system is not a disability related obstacle.
The Cts' burden shifting rule merely gives the disabled EE an opportunity to show the seniority system is a sham. The
power to undercut a bona fide system.
This decision leaves the issue subject to constant litigation.
He believes that a ER's seniority system should always prevail in a disablilty claim where seniority will be violated for an
accommodation. Such an accommodation is not reasonable.
Souter dissent: Barnett was not seeking a change. He wanted to keep the position he had had for 2 yrs. He was not bumping
someone else w/ seniority out of a job just requesting the job not be opened for seniority filling. His request was reasonable.

Class Notes

 effectiveness is part of the reasonableness of an accommodation.


 If you have an EE who is blind do you need to provide them w/ guide dog at work? No b.c that would be personal benefit.
 Ordinarily a seniority system will prevail when his assignment goes against the seniority system.
 Notes:
2. A seniority system contained in a collective bargainning agreement is Kual.
3.

A. Note on Accomodations Necessary to enjoy the Benefits and Privileges of Emp

Topic Class Notes

Accmdts to enable EE to perform essential (f)s


Also statute says: accmdts enabling disabled EEs to enjoy equal benefits and priviliges of emplymt as are enjoyed by EEs
w/o disabilities.
What all does this include? Includes accmdts designed to permit equal access to cafeterias, lounges, and restrooms.
Felde: Er offered 2 retirement options: 1 regular servc retirement available to all EEs and paid 100% of unused sick leave;
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and 2 Disability retirement:only for disabled EEs and capped sick leave payout at 80% of max # hrs. Felde claimed
that the cap was discriminatory. Ct held it was not b/c all EEs had access to regular retirement option w/o cap. ER not
required to provide disabled w/ a better retirement option than other EEs.
EEOC guidance on accmdts: obligation to make reasonable accommodations does not extend to things that are primarily for the
personal benefit of the disabled person. Job related modifications are the type of reasonable accommodation. If the
modification assists on and off the job in his daily life it will be considered personal and ER is not required to provide it.
Lyons v. Legal Aid: ladies injuries made it difficult for her to walk. Ct held that providing her w/ a parking space was a
work-related need, not a personal need. W/o the close parking space she could not reach the locations for the essential
functioning of the job.

B. Note on Knowing that Accomodation is Needed

Topic Notes

EEOC Guidance: If an EE w/ a known disability is having difficulty performing his job an ER MAY inquire whether the EE
is in need of a reasonable accommodation. In general it is the responsibility of the disabled EE to inform the ER that an
accommodation is needed.
Bultemeyer: custodian returned to work after extended leave for serious mental illness and then failed to report for a work
assignment. He was fired b4 Dr letter arrived recommending he work in less stressful school. EE did not ask for
accommodation. Ct held ER knew of his disability so had increased responsibility to initiate the process and ask if he
needed accommodation.
Many cts take opposite approach.
Lower cts unwilling to impose liability on ER solely for failure to ask if accommodation is needed. There must be ev that
had they asked a reasonable accommodation could have been found.
An EE who fails to participate in discussions about accommodations may forfeit protection against disability discrim.

3. Undue Hardship

Topic Notes

 "undue hardship" is an accommodation requiring significant difficulty or expense, which must be determined
 by considering all relevant factors, including the size and financial resources of the covered entity.
 Reasonable accommodation is a generalized inquiry whereas undue hardship is narrow and focuses on the particular ER.
 Burden on ER to prove that the accommodation would be an undue hardship.
 Borkowski: factors to consider for determining if accommodation is an undue hardship for an ER: (1) nature and cost of
the accommodation; (2) overall financial resources of the ER' facility involved in the provision of the accommodation;
(3) overall financial resources of the covered entity; (4) type of operation of the covered entity. The hardship does not
 have to be so great as to threaten the company's existence to be an undue hardship.
 The ER must show a cost -benefit analysis/balancing for undue hardship.

Topic Class Notes

1) undue hardship burden of ER

D. Discrimination Qlfctns Stds

Topic Notes

ADA provides that "discrim" includes: (3) utilizing stds, criteria, or methods of administration that have the effect of
discrimination on the basis of a disability; (6) using employment tests or other selection criteria that screen out or tend to
screen out disabled or a class of disabled persons unless the std, test, or criteria is shown to be job-related for the position
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and consistent w/ business necessity.


Qualification stds that are either facially discrim or have a disparate impact on disabled can violate ADA, but there are
defenses of job-related business necessity, permitted or required by fed statute or regulation, or necessary to prevent
a direct threat to health and safety.

1. Direct Threat

Topic Notes

 Direct threat defined as a significant risk to the health or safety of others that cannot be eliminated by a
 reasonable accommodation.
 Also relevant to whether person is a qualified person with a disability.
 In determining whether a "significant risk" exists the Ct in Airline explained the inquiry: to include facts, based on
reasonable medical judgments, about (a) the nature of the risk, (b) the duration of the risk, (c) the severity of the risk,
(d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

Chevron USA v. Echazabal , 2002

Case Brief

Facts:
E was laid off b/c he had Hep a liver condition that would be exacerbated by continuing to work at the oil refinery b/c of the
chemicals.
E sued Chevron under the ADA.
Chevron defended w/ the defense of direct threat. E's employment by Chevron posed a direct threat to E's health.
Dist ct granted chevron SJ. Ct of Appeals reversed.
Issue: Does the ADA permit an ER to refuse to hire a person b/c his employment would pose a direct threat to his own
health, owing to the disability? YES. The EEOC regulation allows this defense.
Rule: An ER can refuse to hire an individual b/c his performance on the job would endanger his own health, owing to a disability.
Analysis:
Here the EEOC was interpreting a provision of the ADA. Under T12 the EEOC has been delegated exclusive rulemaking
authority and the EEOC defn was in the regulation itself and not in the Interpretive Guidance. Ct here deferred to EEOC.

Class Notes

 not paternalism to expose yourself to danger b/c direct threat defense has to be based on reasonable medical judgment and not
based on stereo types.
For direct threat look at sound medical ev.

2. Job related and COnsistent with Business

Necessity Albertsons v. Kirkingburg , 1999

Case Brief

Facts:
Albertsons hired K as a truck driver. K had many years of driving experience and performed well on a road test.
B4 starting work K was examined by Dr to see if he meet federal vision stds for commercial drivers [DOT stds]. K suffers
from amblyopia that leaves him 20/200 in one eye-monocular vision. The Dr erroneously certified him as meeting DOT
vision stds and he was hired.
Two years later K was injured on the job and was required to have a physical b4 returning to work. The doctor discovered he
did not meet DOT vision stds and recommended he obtain a DOT vision waiver. K applied for the waiver, but
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Albertsons fired him for not meeting DOT stds. He did obtain the DOT waiver.
K sued Albertsons claiming his termination violated ADA.
Albertsons argues that K was not a qualified individual w/ a disability b/c he did not meet the minimum level of visual
acuity set forth by DOT.
Ct of Appeals erroneously held that since Albertsons relied on the DOT std it must also allow for the waiver. USSCt says
wrong. Albertsons does not have to allow the waiver stds since they are experimental. The ER is allowed to insist on the
federal minimum stds alone and ER is not required to make individual assessments that such qualifications are a
business necessity or job related
Rule: Under the ADA, an ER who requires as a job qualification that an EE meet an otherwise applicable federal safety regulation
need not justify enforcing the regulation solely b/c its stds may be waived in an individual case.
Thomas concurring: K was seeking the position of commercial truck driver. The essential function of the job is to be able to
drive a commercial truck. Since K could not meet the min DOT visual std he could not drive the truck. Therefore, K was not
qualified to perform the job under the ADA. The waiver program was not a reasonable accommodation b/c the waiver did not
change the DOT requirement.

3. Disparate Impact
Alexander: USSCt rejected claim that Med Center 14 day limitation on inpatient coverage would have an unlawful disparate
impact on the disabled.

E. Burdens of Production
ADA individual disparate treatment claim: ER whose decision was based on LNDR will not be liable for disability discrim unless
the neutral criterion applied has a disparate impact, is not job related, and is not a business necessity.
Disability discrim doffers from other discrim in 2 ways: (1) ADA expressly permits ER to act on basis of EE's disability [only
allowed under T7 and ADEA for BFOQ defense]; and (2) ADA expressly requires ERs to treat individuals differently on basis of
disability b/c ERs are required to provide accommodation to disabled EEs [under T7 and ADEA ERs are never REQUIRED to
prefer a protected class member, exceptto accommodate a religious practice].

Class Notes

 govt std was ok to follow even though waiver


 Vision to DOT std was a job necessity and a BFOQ



3. Disparate Impact

E. Burdens of Production and Proof

1. Motive Based Inquires

Kiel v. Select Artificials , 1998

Case Brief

Facts:
Kiel deaf since birth. Employed as billing clerk for Select. Requested TDD on several occasions so he could make private
and business calls. Select did not provide TDD saying TDD no necessary for Kiel to perform his duties.
Kiel was about to request a TDD again and co-owner of Select asked him what he was doing. He replied he was asking for TDD.
She told him Select would not purchase TDD.
Kiel became upset, and shouted at her "You're selfish", and slammed his desk drawer. Kiel did this in front of other EEs.
After this incident Select decided to terminate Kiel.
Kiel claims discrim discharge, retaliation, and failure to accommodate under ADA.

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2. Qualified Individual with a Disability

F. Special Pxs of Disability Discrimination

3. Retaliation and Interference

Topic Notes

 In Krouse the ct held that b/c the language of ADA retaliation provision protects "any individual," a P asserting a retaliation
claim under ADA need NOT establish he is qualified individual w/ a disablility. Nor does he need to establish that the
conduct he complained of actually violated the statute as long as he can establish he had a good faith, reasonable belief that
the challenged actions violated the law. [So if A makes a claim for vegetable B and A is then retaliated against A can make a
 claim under ADA even though A is not disabled.]
 ADA's anti-retaliation provision is broader than T7 or ADEA.
Fogelman held that a son who claimed he was retaloiated against b/c of his father's suuit could not succed in a retaliation claim
under ADEA- ct held ADEA did not reach the son's claim b/c it protects only persons who themselves have engaged in
protected activity. Ct did hold that a 3rd party retaliation claim was cognizable under the ADA- ct said it is the ER's intent, not
the EE's actions, that are determinative.

4. Harassment

Topic Notes

 A hostile work environment claim may be brought under the ADA.


Hostile work environment claim may arise when P can show he was targeted for harassment either b/c of his disability or
his request for accommodation.

G. Title II of ADA

Topic Notes

 T2 may also prohibit disability discrim in certain public employment.


 T2 provides: Subject to the provisions of this title, no qualified individual w/ a disability shall, by reason of such disability,
be excluded from participating in or be denied the benefits of the services, programs, or activities of a public entity, or be
 subjected to discrim by any such entity.
 Public entity: includes any state or local govt or agency.
 KEY --> T2 does not have the 15 EE minimum applicable under T1.
 Cir Cts are in disagreement as to whether T2 reaches employment discrim. Disagreement based on the definition of discrim
under T2. 9th Cir says it prohibits discrim only in the provision of services, programs, and activities. 11th Cir reads discrim
 as encompassing employment discrim.
 P may seek coverage under T2 b/c employer has less than 15 EEs or applicable procedures and remedies differ from T1.
 Also T2 has longer SoL.
 KEY--> Remedies for T2 CoA do NOT include punitive dmgs. Remedies are those traditionally available for BoK.
T2 also has an accessibility requirement. The services, activities and programs must be readily accessible to and usable by
individuals with disabilities. This does have exception if such accessibility requirements cause and undue financial and
administrative burden. However, for new construction or remodeling the building must be readily accessible and usable for
disabled persons and there is no undue hardship or reasonable requirement defense here.

H. Rehabilitation Act of 1973

Topic Notes

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 The Rehabilitation Act [RA] is useful as a remedy for disability discrim in employment.
 KEY--> RA covers the Federal govt as an ER, unlike the ADA.
 RA also sometimes provides more favorable enforcement procedures and remedies than ADA.
RA has 2 shortcomings: (1) very narrow coverage- applies only to federal ERs with a specified relationship w/ fed govt, such as
fed agencies, recipients of fed funding, and fed contractors. (2) RA fails to provide a discriminatee [P] w/a private rt of action for
disability discrim by a fed contractor.

1. Federal Employment

Topic Notes

 ADA does prohibit disability discrim in fed employment for EEs of House of Reps and the instrumentalities of Congress.
 RA is one of the few sources of law that protect fed EEs from disability discrim.
 RA requires each dept and agenct, and instrumentality in the executive branch to formulate and implement an affirmative
 action plan, and prohibits discrim against disabled.
 RA adopts the standard in T1 of ADA for determining whether disability discrim has occurred.
The remedies, procedures and rts for fed EEs the same as a T7 P.

2. Federal and Federally Assisted Programs

Topic Notes

 RA contains 2 coverage provisions: (1) prohibits disability discrim "under any program or activity receiving federal
financial assistance." (2) prohibits disability discrim "under any program or activity conducted by an Executive agency or by
the US Postal Service."
 #1 creates interpretive problems- the meaning of "program or activity" and "receiving federal financial assistance."
 "receiving federal financial assistance:" has generally been held mean that direct or indirect federal monetary subsidy
 was intended for the entity.
 #1 has available remedies, procedures, and rts set forth in T6 of CRA. A private rt of action is available. Backpay and
attorney fees may be recovered, but not punitive dmgs.
#2 creates 2 issues: (1) does this provision prohibit covered agencies from discriminating against their own EEs or only against
public beneficiaries of agency conducted programs? (2) Does violation of this provision give rise to a private rt of action?

3. Govt Contractors

Topic Notes

 RA provides that: any K in excess of $10k entered into by any Fed dept or agency for the procurement of personal
property and nonpersonal service shall contain a provision requiring that the party King with the US shall take affirmative
action to employ and advance qualified individuals with disabilities.
 Complaints are filed with the Dept of Labr and the Dept investigates.
 No private rt of action for such a discriminatee.
KEY--> a V of disability discrimination by a fed contractor cannot obtain judicial relief under the RA.

I. Alternative Approaches to Discrimination

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