Agenda for 3rd Class

1. Agenda for 3rd Class • Handouts • Slides • Readings • Name plates • Review of Last Class • Legislative History of Title VII

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read Griggs v Duke Power handout • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on page 6 of the Griggs v Duke Power handout • Mandatory writing • Group 1. Q1 & Q5 • Group 2. Q2 & Q6 • Group 3. Q3 & Q7 • Group 4. Q4 & Q8 • Optional writing • All questions that are not mandatory • Optional: “How to Read a Legal Opinion” • On Webpage, “Supplemental Materials,” “Third Class”

3. Review of Last Class I • Text of Title VII • Structure of Title VII • 701. Definitions • 703(a) core provision • “It shall be unlawful to …. discriminate … because of … race, color, religion, sex, or national origin” • 703(e)-(j) exceptions and clarifications • (e) bona fide occupational qualifications (BFOQ) • (h) seniority and ability tests • (j) No requirement of preferential treatment on account of numerical imbalance • 705. EEOC • 706. Procedure • Some provisions are clear – See Blackboard questions • Some provisions are subject to legitimate disagreement • Issues discussed in class

4. Review of Last Class II • Meaning of “affirmative action” has changed • 706(g) “affirmative action” means hiring, reinstatement, and/or backpay • Contrasted to “enjoining” (ordering an end to) future discrimination • Race can not be a BFOQ, • But what about situations where race is really job relevant? • Actor in biography of Frederick Douglass • Undercover agent hired to infiltrate the KKK • When are ability tests legal? • 703(h) “professionally developed tests” are not illegal, provided they are not “designed, intended, or used to discriminate” • Does “used” imply “intended”? Is “used” redundant? • When are race-conscious remedies (affirmative action) legitimate? • 703(j) says they are not required to redress numerical imbalances • Are they allowed if voluntary? Or are they forbidden by 703(a) • Can a court order affirmative action to redress discrimination after (or before) the Act?

5. Questions on Title VII • 5) (Already discussed?). Suppose that a hospital is hiring doctors shortly after the passage of Title VII. They had actively discriminated against women before 1964. Its hires after 1964 were strictly gender-blind and based on merit only. Unfortunately, because medical schools also discriminated against women, there were very few female doctors to hire. As a result, only 10% of the hospital’s newly hired doctors are female, and less than 1% of all its doctors are female. Has the hospital violated Title VII?

6. Questions on Title VII • 6) (already discussed?) Same facts as Question 5, but, in addition, the hospital’s Board of Directors is ashamed that the hospital discriminated for so long against female doctors and is embarrassed by the fact that such a small number of its doctors are female. To rectify the situation, the Board of Directors instructs those in charge of hiring to make sure that 50% of all newly hired doctors are female and to promote female doctors more quickly in order to ensure that female doctors are in senior positions as well as entry-level positions. Does the new hiring policy violate Title VII? • 7) Same facts as Question 6, except the hospital continued to discriminate until 1970, and the Board of Directors’ instructions on hiring 50% female doctors and promoting female doctors more quickly was made in 1970. Does the instruction to hire 50% female doctors and to promote female doctors more quickly violate Title VII?

7. Questions on Title VII • 8) A factory hires male and female workers on a non-discriminatory basis. One of the supervisors has told several women that he will give them better performance evaluations and recommend them for promotion if they sleep with him. He has a habit of hugging all employees, male and female, when they arrive. He also enjoys watching pornography during his lunch break, and he invites all employees, male and female, to join him. Has the company violated Title VII?

8. Legislative History of Title VII • “Legislative History” means how a bill became law • What members of Congress said in debate about bill • What Congressional Committees wrote about the law • Often used to help interpret statutes, but controversial in recent decades • Title VII’s legislative history is particularly rich • Immense achievement for Johnson administration • 3 groups • Ardent supporters: Northern Democrats • Ardent opponent: Southern Democrats • Moderates: Republicans • Neither ardent supporters nor ardent opponents were a majority • So moderates needed to vote for Act in order for it to pass • Republicans • Generally pro-business & against government intervention • Generally northern • Wanted to minimize effect of Title VII on their constituents

9. Legislative History of Title VII • 1. Why do you think Mr. Smith twice said that says that he is “serious” about his amendment outlawing discrimination based on sex? (Congressional Record p. 2577 columns 1 and 2)? Why do you think Mr. Smith read the letter about the imbalance between men and women? (Congressional Record, p. 2577 columns 1 and 2). • 2. Why do you think Mr. Smith proposed the Amendment? Why do you think Mr. Celler opposed the amendment? • 3. Why do you think Mrs. Griffiths is concerned that the Civil Rights Act, if not amended to prohibit discrimination on the basis of sex, will make “white women … last at the hiring gate”? (Congressional Record, p. 2578 column 3). • 4. What do you think was Congress’s intent was in amending the Civil Rights Act of 1964 to ban discrimination based on sex? • 5. When, on June 11, the Senators debated Mr. Tower’s proposed amendment about job testing, what were the principal arguments in favor and against the amendment? See Congressional Record pp. 13942-13504).

10. Legislative History of Title VII • 6. What was difference between the amendments introduced by Senator Tower on June 11 and June 13, 1964? You can find the relevant texts on Congressional Record page 13492 column 2 and page 13724 column 1. • 7. Why do you think the amendment proposed by Senator Tower on June 11 was rejected, but the amendment proposed by Senator Tower on June 13 was agreed on? • 8. How would the amendments proposed by Senator Tower on June 11 and June 13 apply to the test in Myart v. Motorola described above. Can you argue that the test would not violate either amendment? Can you argue that the test would violate at least one of the amendments? For these purposes, assume that (a) the test in Myart was a general intelligence test, like an IQ test, (b) it was not designed to discriminate against African Americans or other minorities, (c) Motorola did not adopt it with the intent of discriminating against African Americans or other minorities, (d) African Americans and other minorities did worse on the test than whites, and (e) the relationship between test scores and job performance had been studied and demonstrated for whites, but had not been studied for African Americans and other minorities.

11. Reading a Case • Chief Justice • “Opinion of the court,” majority, dissent • “the writ” • “class action” • District Court, Court of Appeals, Supreme Court • “reversed”