Individual Disparate Treatment Discrimination

1. Individual Disparate Treatment Discrimination Chapter 3

2. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Introduction Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 Civil War Reconstruction Statutes Disparate Treatment Discrimination Americans with Disabilities Act of 1990 Rehabilitation Act of 1973

3. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Section 703(a) • It shall be an unlawful employment practice for an employer — • 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 • to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

4. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent § 1981 (a) 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 punishments, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) 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.

5. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Discriminatory Intent • Slack v. Havens (9th Cir. 1975) • Pohasky = supervisor = employer • Pohasky’s statements admit discriminatory motive • Statements = Prejudice • Prejudice in action = discrimination • What if he hadn’t said anything?

6. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Slack v. Havens • Pohasky might have acted out of animus • But he might have been acting from stereotyping: • Blacks clean better • Women put their families ahead of their jobs • Mormons are too staid to be fun • Stereotypes might be “true” – of the group • Women live longer than men • Or they might be false • Women are worse drivers than men • Either way, to act on a stereotype essentializes the individual merely as a member of the group

7. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Gender Stereotypes Sugar and spice and everything nice,That's what little girls are made of.Snips and snails and puppydog tails,That's what little boys are made of. • Aggressive • Ambitious • Unemotional • Skillful • Loud • Messy • Athletic • Math and Science Oriented • Submissive • Emotional • Quiet • Neat/Clean • Clumsy • Artsy • Nurturing

8. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Race Stereotypes

9. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Hazen Paper Co. v. Biggins Disparate Treatment v. Disparate Impact • Disparate Treatment – intentionally treating individuals differently based on race, color, religion, age, etc… • Available under ADEA and other antidiscrimination statutes • Disparate Impact – Facially neutral treatment, unjustifiably and disproportionately affecting a particular group • Available under Title VII, not under § 1981, and maybe not under the ADEA

10. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Hazen Paper Co. v. Biggins • Is it disparate treatment if a factor correlates with age? • Age per se v. Years of service • Overqualified • N.B. Such a factor should have a disparate impact • Intent  mere correlation • Intent = motive • Intent = conscious stereotyping/rational discrimination • Intent = unconscious stereotyping?

11. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Age Stereotypes • Reduced energy and enthusiasm • Reduced physical abilities • Resistant to change • Can’t relate to younger individuals • Conservative • Forgetful

12. Circumstantial Evidence of Discriminatory Intent The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Employer Opportunism and the ADEA Young, medium skill, and underpaid Young, medium skill, and underpaid High experience; “That raise was so overdue!” High experience; overpaid; “I’ll never find a job that pays like this”

13. Individual Disparate Treatment Biggins v. Hazen Paper Systemic Disparate Impact Slacks v. Havens Systemic Disparate Treatment

14. Animus “Rational” Discrimination Semi-Conscious Unconscious Workplace Structures Workplace Cultures

15. The Present and Future of Individual Disparate Treatment Law Circumstantial Evidence of Discriminatory Intent • McDonnell Douglas Corp v. Green (1973) • Title VII claims • Step 1: Claimant - Prima facie case of racial discrimination • Belongs to a racial minority • Applied and was qualified • Despite qualifications – rejected • Position remained open • Step 2: Respondent – Articulate legitimate reasons • Step 3: Claimant – Prove pretext Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

16. The Present and Future of Individual Disparate Treatment Law Plaintiff’s Prima Facie Case • What does it mean to “apply”? • Does plaintiff need to show basic, equal, or superior qualifications? • What is a rejection and when does it occur? • What if the position doesn’t remain open? • What if plaintiff is replaced by someone of the same class? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

17. The Present and Future of Individual Disparate Treatment Law And if a discharge is challenged? McDonnell Douglas “prima facie” formulation? Individual Discharges Course of Reduction Discharges Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

18. The Present and Future of Individual Disparate Treatment Law An Aside: Adverse Employment Action • Is materiality a requirement to show a prima facie case? • Or is any adverse action by the employer sufficient? • If material, what suffices? • Asking female applicants family-oriented questions • Average evaluations • Lower bonuses • Not letting women work a night shift (when pay is same as day) Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

19. The Present and Future of Individual Disparate Treatment Law Summing Up McDonnell Douglas • Service: Plaintiff proves prima facie case (Chapter 3, Part C 1) • Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2) • Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2) Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

20. The Present and Future of Individual Disparate Treatment Law Defendant’s Rebuttal Case “Articulate a legitimate, nondiscriminatory reason” • A burden of production only • Defendant need not prove its reason is factually true • Defendant need not prove its reason motivated the decision • What does Biggins say about “legitimate”? • But Defendant must put its reason into evidence • Argument isn’t enough; defendant must put in proof Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

21. The Present and Future of Individual Disparate Treatment Law Plaintiff’s Proof of Pretext • Plaintiff must prove defendant’s reason a pretext • Plaintiff must prove a pretext for discrimination • The presumption raised by the prima facie case “drops from the case” when defendant carries its burden • But the proof that makes up the prima facie case remains • Can a reasonable jury infer discrimination from that proof plus the proof of pretext? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

22. The Present and Future of Individual Disparate Treatment Law Testing Plaintiff’s Case • Defendant’s Challenges: • Rule 12(b)(6)? • Summary Judgment (Rule 56 (b))? • Judgment as a Matter as Law (Rule 50 (a))? • JML (“Directed Verdict”) at close of plaintiff’s case • JML (“J.N.O.V.”) after jury verdict • Judge or Jury • 1991 Civil Rights Act added right to a jury trial Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

23. The Present and Future of Individual Disparate Treatment Law McDonald v. Santa Fe (1976) • 3 employees • 2 white, one black; • All participate in a theft; • But only 2 get fired – both the whites • Why not fire all three? • Aren’t employers allowed to fire employees who steal? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

24. The Present and Future of Individual Disparate Treatment Law McDonald v. Santa Fe Trail (Continued) • Is discrimination against whites actionable under Title VII? • Is discrimination against males actionable under Title VII? • Is discrimination against whites actionable under §1981? • If everyone can sue for race (or gender) discrimination, is at-will gone? • Or may any reason be okay if equally applied: • Theft may be sufficient grounds for discharge, but is it “applied, alike to members of all races?” • Good reason, bad reason or no reason remains the law – if applied equally Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

25. The Present and Future of Individual Disparate Treatment Law McDonald v. Santa Fe (continued) • Title VII proscribes bad cause, but does not require good cause; • Thus, it encourages, but does not require, meritocracy • No Capricorns need apply • not good cause, but not bad cause either • No baby boomers need apply • not good cause, and is bad cause Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

26. The Present and Future of Individual Disparate Treatment Law Race • What is Race? • Nationalities? • E.g. • Are Puerto Ricans a race or are they Latino? • Are Jews a race or a religion? • Are Jordanians a different race than Iranians? • Biology? • Caucasoid • Mongoloid • Negroid Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

27. The Present and Future of Individual Disparate Treatment Law “Reverse” Discrimination • “Reverse discrimination” is illegal • Except pursuant to a valid affirmative action plan? • If there is an affirmative action plan, is it easier or harder to make out a claim? • Prima facie case for reverse discrimination: • In a minority dominated business • McDonnell Douglas test • In a White dominated business • “background circumstances?” • Admissions • Affirmative action/diversity statements? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

28. The Present and Future of Individual Disparate Treatment Law ADEA and “Reverse” Age Discrimination You’ll never beat my ADEA Style! Um… I can live with that! ADEA Everyone over 40 is FIRED!!!! Fine, everyone under 40 is FIRED! Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

29. The Present and Future of Individual Disparate Treatment Law Reverse Age Discrimination • One of these things is not like the other… • Favoring 45 year-olds over 60 year-olds • Favoring 60 year-olds over 45 year-olds • Cline v. General Dynamics • Why might this be more acceptable? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

30. The Present and Future of Individual Disparate Treatment Law Title VII v. § 1981 • § 1981 • No special requirements for filing with the EEOC • No damages cap • Not limited to “employment” • Statute of limitations might be longer or shorter • State general tort statute governs • Except that four year federal default statute sometimes applies Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

31. The Present and Future of Individual Disparate Treatment Law Where Does the Union Fit In? NLRA Non-Members UNION Contractual Relationship Members Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

32. The Present and Future of Individual Disparate Treatment Law Back to McDonnell Douglas • Service: Plaintiff proves prima facie case (Chapter 3, Part C 1) • Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2) • Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2) Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

33. The Present and Future of Individual Disparate Treatment Law Patterson v. McClean Credit Union (1989) • Does Patterson have to prove she is morequalified? • Did she prove a McDonnell Douglas prima facie case? • Did defendant rebut the prima facie case? • Better qualified people were promoted? • Or, at least, defendant thought they were better qualified? • Plaintiff had the opportunity to prove pretext • What was wrong with the trial court’s approach to pretext? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

34. The Present and Future of Individual Disparate Treatment Law Revisiting “Qualifications” • So what does “Qualifications” mean? • At the prima facie stage • At the rebuttal stage • At the proof of pretext stage • Equal? • Superior? • Substantially? • Clearly? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

35. The Present and Future of Individual Disparate Treatment Law Revisiting Rebuttal • The Defendant only need put in evidence of nondiscriminatory reasons. • “Legitimate” has no independent meaning Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

36. The Present and Future of Individual Disparate Treatment Law Revisiting Pretext • Proving pretext • Reason(s) has no basis in fact • Reason(s) did not actually motivate defendant • Reason(s) were insufficient for action taken • Are objectively false reasons pretextual if defendant subjectively believed them true? • But if objectively false, how will jury find the defendant was in good faith? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

37. The Present and Future of Individual Disparate Treatment Law Issue of Material Fact • Are any of these sufficient circumstantial evidence to create an issue of material fact for a jury? • Not everyone in the desired position has that superior qualification • General discrimination with respect to minorities • Treatment was unique to plaintiff Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

38. The Present and Future of Individual Disparate Treatment Law Post McClean Title VII McDonnel Douglas / Burdine § 1981 ADEA Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

39. The Present and Future of Individual Disparate Treatment Law Investigation vs. Discovery • Investigative road blocks • Privilege • Costly discovery • Protective orders • Legal ethics • Legal accommodation • Court balancing of interests Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

40. The Present and Future of Individual Disparate Treatment Law Discovering the Truth • Court balancing of interests • Plaintiff’s interests • Obtaining information • Minimizing costs • Defendant’s interests • Protect privileged information • Avoid binding statements by employees • Court analysis is individual employee specific Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

41. The Present and Future of Individual Disparate Treatment Law St. Mary’s Honor Center v. Hicks (1993) • Where did things go wrong for Hicks? • McDonnell Douglas / Burdine Schema • Prima facie case  • Rebuttal  • Proof of pretext ? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

42. The Present and Future of Individual Disparate Treatment Law St. Mary’s Honor Center v. Hicks (1993)(Continued) • The plaintiff proves the prima facie case… • The defendant proffers an explanation • The judge finds explanation pretext • So why not judgment for plaintiff? • Presumptions DO NOT shift the burden of proof in Title VII cases. • The judge did not find the reason a pretext for discrimination Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

43. The Present and Future of Individual Disparate Treatment Law St. Mary’s Honor Center v. Hicks (Dissent) • Is the plaintiff’s burden a license for defendants to lie? • Silence (is not golden? is lying golden?) • Scenario 1 • Prima facie case •  is silent • Judgment as a matter of law • Scenario 2 • Prima facie case •  offers legitimate reasons •  disproves them • No judgment as a matter of law Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

44. The Present and Future of Individual Disparate Treatment Law St. Mary’s Honor Center v. Hicks (Dissent) • Does the presumption created by the prima facie case disappear after production of proffered but false reasons? • If the  is not bound to the proffered reason, what is point of requiring it to give one? Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

45. The Present and Future of Individual Disparate Treatment Law Reeves v. Sanderson Plumbing (2000) • Trial • Plaintiff’s prima facie case established • Defendant’s rebuttal presented • Plaintiff rebuts • Jury finds for plaintiff and awards $$$ • 5th Circuit overturns the verdict • A reasonable jury could have found defendant’s explanation pretext • But not sufficient evidence that the real reason was discriminatory Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

46. The Present and Future of Individual Disparate Treatment Law Reeves v. Sanderson Plumbing (Continued) • Supreme Court reverses: Plaintiff’s prima facie case + Sufficient proof of pretext WILL USUALLY allow (not require) trier of fact to find discriminatory intent  Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

47. The Present and Future of Individual Disparate Treatment Law Aftermath of Hicks and Reeves • Pretext Only vs. Pretext + vs. Pretext Sufficient • Less slicing and dicing of plaintiff’s proof • But can the jury infer discriminatory intent from (1) proof that makes up plaintiff’s prima facie case + (2) proof that defendant’s nondiscriminatory reason is a pretext • If plaintiff can’t prove pretext, she loses • If she can prove pretext, she doesn’t necessarily win • But she should normally get to the jury • The jury may infer from defendant’s production of a false reason that it did so to conceal a true discriminatory reason Circumstantial Evidence of Discriminatory Intent Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

48. The Present and Future of Individual Disparate Treatment Law Price Waterhouse v. Hopkins (1989) (Plurality) • Title VII – “because of such individual’s … sex” • Does “because of ” = “but-for causation?” • What is the difference? • How does this affect “mixed motive” situations? • How much of a cause does it need to be? Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent

49. The Present and Future of Individual Disparate Treatment Law Price Waterhouse v. Hopkins (1989) (Plurality) • Burdens of proof • Title VII protections of employers’ freedom of choice • Plaintiff – Gender played a motivating factor • Defendant – Would have decided the same regardless • How does this reconcile with Burdine? • Characterize the defendant’s burden Restrictions on Employer Freedom of Choice Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent

50. The Present and Future of Individual Disparate Treatment Law Price Waterhouse v. Hopkins (1989) (Plurality) • Burdine v. Price Waterhouse (Pretext v. Mixed motive) • Burdine/Pretext • Who bears the burden: The Plaintiff • What is at issue: The actual reason • Price Waterhouse • Who bears the burden and for what: • The Plaintiff – Substantial motivating factor • Defendant - Hypothetically, would the same decision have been made regardless Pretext Mixed Motive Direct Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent