Constitutional and original statutory provisions

1. Avery, Ontiveros, Corrada, Selmi and Hart: Chapter 2, Laws Prohibiting Discrimination in Employment (An Overview) Note the purposes of the Chapter: The chapter generally describes the scope of the body of federal statutory laws and executive orders prohibiting discrimination in employment, and the administrative and judicial enforcement schemes identified with these laws. It is a reference chapter, for use as the student examines later chapters on the subject of the meaning and theories of discrimination, and the executive, legislative and judicial shaping and enforcement of the nondiscrimination principle. The chapter is also, on its own, a presentation of certain introductory concepts, e.g., the meaning of “race” and “color”; the definition of “covered employers” and “protected” employees and applicants; Eleventh Amendment limitations on claims against states; administrative exhaustion requirements; remedies and attorneys fees. These purposes remind the student of this subject that the role of the EEOC is to function as a federal administrative enforcement agency and that the role of the federal courts in Title VII cases, and ADEA, Title I ADA, and EPA cases is to interpret and apply these statutes.

2. Constitutional and original statutory provisions • Chapter 2 reminds the student of employment discrimination law that, although not the major focus of the casebook, the Equal Protection Clauses of the Fifth, and Fourteenth Amendments, and the First Amendment provide a constitutional basis for the prohibition of discrimination in employment based on race, sex, lawful alien status, age or religion. • The scope of Constitutional protections, in the context of state and federal employment, and the balancing of First Amendment principles, are examined in many basic courses on Constitutional Law – but are discussed in some detail in Chapters 5 & 8 of the Casebook. • Modern employment discrimination law includes cases which find their basis in the Reconstruction Era Civil Rights Acts, i.e., 42 U.S.C., §1981 (Section 1 of the 1866 Civil Rights Act) and §1983 (Section 1 of the Civil Rights Act of 1871, providing a cause of action for the deprivation of substantive rights guaranteed by the Constitution or federal statutes). • Section 1981 provides a cause of action against private employers who engage in disparate treatment based on race.

3. The Modern Statutory Scheme • The modern statutory scheme emphasized in the course includes: • The Equal Pay Act of 1963 (Amending the Fair Labor Standards Act of 1938) prohibiting sex-based wage discrimination; • Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e, et seq. (as amended in 1972, 1978 and 1991), applicable to both public and private employers, labor organizations, and employment agencies – and establishing protections against discrimination based on race, color, sex, religion and national origin; • The Age Discrimination in Employment Act of 1967, prohibiting discrimination against employees age 40 or older; • Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §12111, as amended in August, 2009, prohibiting discrimination against qualified individuals with disabilities and reaffirming the statutory and regulatory definition of “disability”; • The Civil Rights Act of 1991 (Amending certain sections of Title VII and the ADA), providing for compensatory and punitive damages for intentional discrimination, and for jury trials in Title VII cases, and overturning the Wards Cove line of cases and reaffirming the basic holding of Griggs v. Duke Power (See 42 U.S.C., §2000e-2(k)). • Other protections (not emphasized in this basic course) also include Title IX of the Education Amendments, 20 U.S.C., §1681, et seq., The Vocational Rehabilitation Act of 1973, 29 U.S.C., §791-794; The Immigration Reform and Control Act of 1986; The Government Employee Rights Act of 1991; the Family Medical Leave Act of 1993; The Congressional Accountability Act of 1995; The Glass Ceiling Act of 1991 (1991 CRA); the Genetic Information Nondiscrimination Act of 2008; and Executive Orders 11246, 11375, 11478, and 13087 (applicable to federal contractors and the federal government).

4. The Eleventh Amendment immunity of state employers from employee civil actions • In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that Congress may authorize a private civil action for monetary relief (in the form of equitable back pay and attorney’s fees) against a state employer under Title VII, pursuant to its power under Section 5 of the Fourteenth Amendment. • Despite Congress’ Constitutional authority under Section 5 of the Fourteenth Amendment, the Supreme Court has held (5-4) in Kimel v. Board of Regents that the Eleventh Amendment bars a civil action against the state based on the ADEA, because age, unlike race, is not a suspect classification and a state may therefore discriminate on the basis of age so long as the age classification is rationally related to a legitimate state interest. • The Court has also held (5-4) that a private suit under the Title I of the ADA is prohibited, because the statute’s legislative history fails to disclose irrational employment discrimination by states on the basis of disability (See Bd. Of Trustees of Univ. of Alabama v. Garrett). • The Eleventh Amendment has also been held to bar a private action by a state employee against a state employer for monetary damages in federal court under Section 1981. • In private Equal Pay Act cases, the federal circuit courts have distinguished Kimel and rejected the defense, either because sex is a classification properly subjected to heightened scrutiny, or because Congress validly abrogated state immunity in the EPA; and the defense has been rejected in suits brought under the Family and Medical Leave Act (See Nevada Dep’t of Human Resources v. Hibbs). • The defense is also rejected in cases brought by the federal government itself, i.e., cases brought by the US Department of Justice or the Equal Employment Opportunity Commission.

5. Remedies under other laws • State and local laws in all 50 states provide specific protections against employment discrimination [See e.g., Florida Civil Rights Act, Florida Statutes, Chapter 760.01 - 11; 760.10 (1) – (10)(2006), Unlawful Employment Practices]. • The National Labor Relations Act and the RLA require labor organizations to fairly represent members, without regard to race, color, sex, religion or national origin (The “duty of fair representation”); • Most collective bargaining agreements have such a nondiscrimination or fair representation provision, and a majority also prohibit discrimination in representation based on disability, marital status, sexual orientation, or Vietnam veteran status. • Veterans are uniquely afforded limited job preference under 38 U.S.C., §4301, et seq.

6. Federal Administrative Law: EEOC Enforcement of statutory rights and responsibilities of covered employers and employees • In 1972, Congress extended EEOC’s original power merely to investigate claims of employment discrimination, and authorized the Commission to seek judicial enforcement of Title VII. • EEOC has authority to promulgate regulations pursuant to Title VII (See 42 U.S.C. §2000e-12 and 29 CFR §1601), and the ADA (See 42 U.S.C. §12116 and 29 CFR §1630), as well as procedural regulations and guidelines, e.g., employee selection procedures. • This enforcement scheme identified with the Commission itself is revealed in the body of Supreme Court decisions which interprets and applies employment discrimination law, and it is argued that the Court’s reluctance to defer to the Commission’s expertise has limited the enforcement of nondiscrimination laws. See Melissa Hart, “Skepticism and Expertise: The Supreme Court and the EEOC,” 74 Fordham Law Rev. 1937 (2006)(Discussing deferential review standards in Title VII, ADEA and ADA cases – and concluding that the Court has shown a reluctance to accept the EEOC’s expertise). • Statutory actions under Title VII are explicitly subject to both administrative enforcement and civil actions, and therefore there must be a provision for administrative exhaustion prior to the filing of a civil action. • Briefly, the administrative process is invoked by filing a charge, accompanied by affidavit, with the EEOC area, field, or regional office (See 42 U.S.C. §2000e-5(b) and 29 CFR §1601.12(b). • The Commission may process the charge or refer it to a state deferral agency (e.g., the Florida Human Relations Commission), pursuant to a deferral agreement (See 2000e-5(c)).

7. Definition of a charge of discrimination & timely filing requirements: See generally 42 U.S.C. §2000e-5(e) • In Federal Express Corporation v. Holowecki (2008), the Supreme Court considered a case brought by employees over the age of 40, alleging that programs which tied courier compensation and continued employment to certain performance benchmarks violated the Age Discrimination in Employment Act (ADEA). The Supreme Court held that, in addition to information required by implementing regulations, i.e., the allegation of age discrimination and the name of the charged party, if a filing is to be deemed a “charge” it must be reasonably construed as a request for EEOC to take remedial action to protect the employee's rights or settle a dispute between the employer and employee. The Court (with dissents by Justices Thomas and Scalia) held that EEOC's determination that its “Intake Questionnaire” and a detailed affidavit was a “charge” was a reasonable exercise of its authority to apply its own regulations and procedures. • Title VII requires that charges be filed within a 180 or 300 day period, depending upon state deferral jurisdiction agreements. In a series of cases, United States v. Evans (1977), Delaware State College v. Ricks (1980), Lorance v. AT&T Technologies (1989) and National Railroad Passenger Corp. v. Morgan (2002), the Supreme Court held that this time begins when a “discrete act of discrimination” (e.g., termination, failure to promote, etc.) occurs. Subsequent nondiscriminatory acts “that entail adverse effects resulting from the past discrimination” do not extend the required period for filing a charge. Congress amended Title VII to respond to Lorance, and provided in §2000e-5(e)(2) that a plaintiff could file a timely Title VII charge challenging the effects of an employer’s intentional perpetuation of a discriminatory seniority system, i.e., when the effects of the previously discriminatory system affected their retention, promotion, etc.

8. Timely filing requirements: 42 U.S.C. §2000e-5(e) (continued) • In Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), the Supreme Court held 5-4 that Evans, Ricks and Morgan applied to reject a worker’s claim under Title VII that she could seek relief for pay discrimination when paychecks she received within the charging period reflected discriminatory evaluations prior to the charging period (The Court distinguished its decision in 1986 in Bazemore v. Friday that each paycheck which deliberately paid less to a black worker than a similarly situated white worker is actionable under Title VII, where the pay disparity may be traced to pre-Act intentional pay scales based on race). The Ledbetter Fair Pay Act of 2009 (PL 111-2) reverses the majority’s decision and amends Title VII, §2000e-5(e) to provide that “an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice. In addition to any relief authorized by 42 U.S.C. 1981(a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.” Necessary amendments were also made to the ADEA and the ADA. • For purposes of federal district court jurisdiction, the timely filing requirement is subject to waiver, estoppel (e.g., when an employer misleads a claimant or prevents the filing of a charge) and equitable tolling (recognized where a litigant’s failure to meet a deadline arises from circumstances beyond the litigant’s control).

9. Judicial review and the “right-to-sue” concept • A charging party is entitled to file a civil action in federal court under Title VII, when the EEOC has: • Dismissed a charge; or • Failed to either file a civil action or enter into a conciliation agreement with the employer within 180 days from the filing of a charge. • In such instances, the area, field, or regional office must issue a “right-to-sue” letter to the charging party or her legal counsel. • The receipt of such a “right-to-sue” notice authorizes the charging party to bring suit within 90 days in the appropriate federal district court, or state court. • The 90 day rule is not jurisdictional and is subject to equitable tolling for employer misconduct, where the EEOC notice is inadequate, or where the court has led the charging party to believe the requirements for suit are met. • At the request of the charging party, the EEOC may issue the “right-to-sue” notice within the 180 day period. • The federal court may dismiss a complaint where allegations are conclusory, and may require “well-pleaded factual allegations” (See Ashcroft v. Iqbal (2009)).

10. Purpose of law and administrative process • Title VII, the ADEA and the ADA seek to sustain a principle of “equality” or equal opportunity in the workplace – by making it illegal for employers, employment agencies, or labor organizations to discriminate against applicants or employees based on race, color, religion, sex, national origin, religion, age or disability. • The prominent questions, during the 40+ years of the existence of the statutory scheme, has been (surprisingly) the meaning of the protected class designations, and the operative term “discrimination”: • The seminal cases are Title VII cases, considering allegations of race discrimination against black applicants and employees – and raising the meaning of race under 42 U.S.C. §1981. • However, the legacy of these seminal cases has been the question of the meaning of race as a broader term. See St. Francis College v. Al-Khazraji, a §1981 case brought by a “Caucasian” U.S. citizen, born in Iraq. The Court observed that dictionary and encyclopedic definitions of race have referred to ethnic groups, and not merely the three “recognized” major human races – and held that Congress intended, in §1981, to prohibit discrimination against persons based on their “ancestry or ethnic characteristics,” whether or not such discrimination would be considered “racial” in terms of scientific descriptions of sub-groups of human beings. • A related issue is whether racial identity is self-defined or based upon conclusions drawn from third-party stereotyping and treatment. The Commission continues to address the definitional issues of race and color. See Revised Section 15 of the EEOC Compliance Manual, released April, 2006, and see Trina Jones, “Shades of Brown: The Law of Skin Color,” 49 Duke Law Journal 1487 (2000).

11. Intersectionality theory • Professor Kimberlee Crenshaw suggests that some victims of employment discrimination have multiple identification markers not addressed by a “single-identity” reference: • Professor Crenshaw would argue that requiring a black woman to define the basis or motive for an employer’s discriminatory conduct as “either” race-based or sex-based improperly restricts the proper scope and application of nondiscrimination law; she argues for the recognition of black women as a protected class when defining discrimination. See Jeffries v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir., 1980)(Rejecting a separate comparative analysis and suggesting that plaintiff’s claim was based on her status as a black female). • Cited research shows that black women as a class (1) tend to be disproportionately employed in “traditionally female” jobs compared to white women, and in jobs that are considered “black female jobs” and (2) tend to lag farther behind white men in pay than do white women, because of historical patterns of employment of black females. • There is judicial support for the application of intersectional theory to Asian women and black men. See Lam v. Univ. of Hawaii (9th Cir. 1994) and Bradley v. Pizzaco (8th Cir. 1993).

12. Definitions of employee and employer • While usually not contested in employment discrimination litigation, a plaintiff’s status is subject to challenge, i.e., in cases brought by partners in partnerships, or independent contractors. • In Clackamas Gastroenterology Associates v. Wells, 538 U.S. 440 (2003) the Court considered the question whether 4 physicians actively engaged in the practice of medicine as “shareholders” were to be counted for purposes of the 15 employee minimum requirement of §12111(5) of the ADA (Title VII has a similar threshold requirement). Note that this “interpretive” role of the Court is brought into play when the statute does not “helpfully” define the term “employee.” • The Court held that the definition of the term employee is not dependent on the employer’s “label” (the employee’s “title”), but rather depends upon whether the claimant in a federal employment discrimination law case is a person whose work is subject to the control of the employer, as that concept is described in the Restatement (Second) of Agency and EEOC standards (adopting the Restatement’s “control” test). • In Arbaugh v. Y & H Corporation (2006), the Court held that the 15 employee threshold is not an issue which directly affects the trial court’s subject matter jurisdiction, but is rather an issue related to the plaintiff’s claim for relief. The employer must therefore raise this issue and may not rely on the court to dismiss plaintiff’s claim following a verdict on jurisdictional grounds. • The rationale in Clackamas is extended to Title VII and ADEA cases. • “Employer” is defined as a person engaged in an industry affecting commerce who has 15 or more employees (Title VII and ADA; 20 under ADEA) for each working day in each of 20 or more calendar weeks in the current or preceding calendar year; the definition subsumes employers, labor organizations and employment agencies. See 42 U.S.C. §2000e(b)-(e); 42 U.S.C. §12111(5); 29 U.S.C. §630(b)-(e). The Court’s decision in 1997 in Walters v. Metropolitan Educational Enterprises unanimously adopted a “payroll” approach to the number threshold of Title VII. • In determining whether a single small employer and its parent company will be considered an “integrated employer” for purposes of coverage, the court may consider (1) the inter-relationship of operations; (2) common management; (3) common ownership; and (4) centralized control of personnel and labor relations.

13. Employment practices and the duty of fair representation • To be actionable, an allegedly unfair employment practice, or adverse employment action must relate to a term condition or privilege of employment, e.g., termination, failure to promote, transfer, or refusal to hire. • The liability of labor unions under federal nondiscrimination laws is consistent with the duty of unions under federal labor laws, and role played by unions in collective bargaining and grievance arbitration. Historically, prior to the passage of Title VII, the Supreme Court held that an exclusive bargaining agent could not restrict its membership on the basis of race, and could not discriminate on the basis of race in its bargaining demands with an employer. See Steele v. Louisville & Nashville RR (1944)(RLA), and Wallace Corp. v. NLRB (1944)(NLRA). • Unions are unique entities under federal nondiscrimination statutes because they are subject to liability as both employers (with respect to their own employees) and labor organizations (with respect to their members, or applicants for membership, and for discrimination in apprenticeship programs). In Goodman v. Lukens Steel Corp. (1987), the Supreme Court held that a union violated Title VII when it refused generally to file grievances challenging discharges of black employees, ignored grievances alleging racial harassment, and refused to include claims of race discrimination in grievances on other contract issues. The decision does not require a union to pursue all grievances, but instead prohibits discrimination based on race. Arguably, the Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett (2009) requiring members to comply with arbitration requirements of CB agreements supports the majority’s holding in Goodman.

14. Remedies • Obviously, employment discrimination law cases involve the initial issue of liability, and the subsequent issue of remedies. Originally, Title VII of the Civil Rights Act provided only declaratory and equitable relief, but not compensatory or punitive damages. Where liability was found, the court could enjoin the employer from engaging further in the unlawful practice, and could also order affirmative action, including hiring or reinstatement, with or without back pay. See 42 U.S.C. §2000e-5(g) (The EPA, ADEA and ADA include similar remedies, subject to affirmative defenses in ADA cases raising the issue of accommodations. Liquidated damages may also be awarded for willful violations of the ADEA and EPA). • The originative equitable relief in Title VII cases served to (1) restore the victim of discrimination to her “rightful place” – that is to restore the terms, conditions and privileges of employment that she would have enjoyed were it not for the discriminatory act; and (2) to “make the victim whole” – that is to restore monetary compensation to remedy past or future economic harm caused by the employer’s wrongful act. The Court’s decisions in the Albemarle Paper Co., Moody and Franks line of cases suggest that such relief is “presumptive” upon a finding of liability, unless the defendant demonstrates that such relief should not be awarded. • In 1991, Congress amended the statutory scheme to provide for the award of compensatory and punitive damages in cases of intentional discrimination, and to provide for jury trials where these remedies were sought.

15. Reinstatement, back pay and front pay • A reinstatement order is presumptive, unless it is shown that reinstatement would frustrate the central purpose of the statutory scheme, i.e., when an “innocent employee” currently occupies the “at-issue job” and should not be “bumped” or when animosity between the victim and the employer would make a productive working relationship impossible. (The “no-bumping” concept, approved in U.S. Airways v. Barnett, may apply where bumping would violate a bona fide seniority system under a collective bargaining agreement). • The presumptive reinstatement concept is not applied in “mixed-motive” cases under 42 U.S.C. §2000e2(m) – that is where the employer’s decision was motivated by both legitimate and unlawful considerations, but where the employer would have made the same decision absent the de facto discriminatory motive. • Reinstatement and front pay may be denied, and back pay may be limited, under the Court’s decision in McKinnon v. Nashville Banner (1995) where the employer engages in disparate treatment, but later demonstrates that the victim engaged in conduct which would have justified the adverse employment action. • Back pay may not extend beyond two years prior to the filing of a charge with the EEOC. • Importantly, victims of discrimination have a duty to mitigate damages, and interim earnings or “amounts earnable with due diligence” may reduce back pay. • “Front pay” may be awarded for lost compensation, in lieu of reinstatement, except in 2(m) cases, as noted above.

16. Compensatory and punitive damages • Compensatory and punitive damages, with statutory caps, are authorized by amendments to the statutory scheme enacted in the Civil Rights Act of 1991. • Compensatory damages may be awarded in cases of intentional discrimination (disparate treatment), and are defined to include future compensatory losses, emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life. (EEOC has defined the term to include damage to reputation and character, injury to professional standing or credit standing, loss of health, and aggravation of pre-existing emotional conditions). • The standards for compensatory and punitive damages are different. Punitive damages are awarded if the victim of discrimination proves malice or reckless indifference to the rights protected by the federal statutory scheme. Proof of intent, per se will not justify an award of punitive damages. Guidelines for the award of punitive damages are stated in BMW of North America, Inc. v. Gore (1996). • Federal, state and local governmental employers are exempt from awards of punitive damages. • In cases of employer vicarious liability, punitive damages may be awarded only if the “agent’s” specific act was authorized by the employer; the agent was unfit and the employer was reckless in employing the agent; the agent was acting in a managerial capacity and his act was within the scope of employment; or the employer or its managerial employee approved the unlawful act. • Liquidated damages are recoverable under the EPA and ADEA for willful violations – where the employer knew or showed reckless disregard for statutory prohibitions.

17. Attorney’s fees • The “private attorney general doctrine” recognizes Congress’ specific statutory provision for “fee-shifting” in employment discrimination cases. • A prevailing plaintiff is ordinarily entitled to an award of attorney’s fees, and there is a rebuttable presumption in favor of an award of such fees. • The policy considerations supporting such fee-shifting do not suggest the award of attorney’s fees to defendants where plaintiff’s claim is unsuccessful (note the importance of the civil action in sustaining and advancing the purposes of employment discrimination laws). Thus there is a rebuttable presumption against the award of attorney’s fees to prevailing defendants. However, defendants may seek an award of attorney’s fees where plaintiff’s claim is found to be “frivolous, unreasonable or groundless.” • The “lodestar” principle has been the standard for the amount of attorney’s fees, and suggests the court’s consideration of “reasonable” hours (hours that would be reasonably billed to paying clients, including time spent in administrative proceedings before the EEOC and the work of law clerks and paralegals), at a reasonable hourly rate, usually defined as “the prevailing market standard.”

18. Other topics and cases • The taxation of monetary awards and attorney’s fees is briefly mentioned in Chapter 2, and should be a topic of further examination in courses on the subject of taxation. • Several of the topics presented in Chapter 2 are explored in greater detail in subsequent chapters of the casebook. • Students of Employment Discrimination Law should also consider completing coursework on Employment Law, Pension and Benefits Law, Mediation, Arbitration, Taxation, and Insurance. The College also administers a limited internship program for academic credit under an agreement with the Tampa Office of the U. S. Equal Employment Opportunity Commission.