EMPLOYMENT DISCRIMINATION

RONALD TURNERA.A. WHITE PROFESSOR OF LAW

UNIVERSITY OF HOUSTON LAW CENTER

Chapter 1: Work And The Common Law

• The employment-at-will doctrine [p. 4, note 1]

• “[M]en must be left . . . to discharge or retain employees at will for good cause or for no cause, or even bad cause without therefore being guilty of an unlawful act per se.” Payne v. Western & Atl. R.R. (Tenn. 1884)

Chapter 1: Statutory Exceptions To The At-Will Doctrine

• Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.

• 42 U.S.C. Section 1981 (current codification of the Civil Rights Act of 1866)

• The Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq.

• The Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12101 et seq.

Chapter 1: Proving Discrimination—Individual Disparate Treatment Discrimination• Title VII Sec. 703(a)(1): it is unlawful for an employer “to

discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”• (1) “Discriminate”; (2) “because of”’; (3) race, color, etc.

• “Disparate treatment”: “The employer simply treats some people less favorably than others because of their race, religion, sex, or national origin. Proof of discriminatory motive is critical.” [p. 2]

Chapter 1: Proving Discrimination—Individual Disparate Treatment Discrimination• Slack v. Havens (S.D. Cal. 1973)

• Facts; issue

• Supervisor Pohasky: “Colored people should stay in their places.” “Colored folks are hired to clean because they clean better.”

• Court: Pohasky is an “agent” of the company, Title VII Sec. 701(b); the company ratified Pohasky’s conduct

• Held: the employer engaged in unlawful racial discrimination prohibited by Sec. 703(a)(1) [p. 4]

Chapter 1: Individual Disparate Treatment Discrimination• Evidence of animus is not required [p. 5, note 5]

• Difference between animus and motive?

• Pohasky’s statements were admissions and not hearsay and could be introduced against the company [p.5, note 6]

• Stereotypes; cognitive bias; unconscious discrimination; Project Implicit and the Implicit Association Test [pp. 6-8]

• The extent of workplace discrimination [p. 7-10]• Field experiments and audit studies (e.g., Emily and

Greg/Lakisha and Jamal); symphony orchestra hiring[p. 9]

Chapter 1: Proving Discrimination—Individual Disparate Treatment Discrimination

• Hazen Paper Co. v. Biggins (U.S. 1993)• Jury verdict for Biggins: ADEA claim ($560,775), ERISA ($100,000),

wrongful discharge ($1), fraud ($315,098), breach of contract ($266,897), state law claim ($1)

• ADEA case: did age actually motivate—have “a determinative influence on”—the employer’s decision? [pp. 10-11]

• An “employee’s age” is “analytically distinct from his years of service”; “an employer can take account of one while ignoring the other” [p. 11]

• Stray comments [p. 13, note 2]; “OK boomer”?

Proving Discrimination—Individual Disparate Treatment Discrimination

• McDonnell Douglas Corp. v. Green (U.S. 1973)• Facts (stall-in and lock-in); issue

• The plaintiff ’s prima facie case (burden of proof)• (1) Belonged to a racial minority; (2) applied for and

was qualified for job; (3) was rejected; (4) after the rejection the employer continued to seek applicants from persons of plaintiff ’s qualifications [p. 16]

• See footnote 13

McDonnell Douglas (cont.)

• The employer’s burden of production: articulate a legitimate, nondiscriminatory reason [p. 16]

• The plaintiff ’s pretext showing (burden of proof): the employer’s stated reason was a cover-up for racial discrimination• Evidence of pretext?

• Case remanded: Green lost (390 F.Supp. 501 (E.D. Mo. 1975)

The McDonnell Douglas Ping Pong• Plaintiff ’s prima facie case (burden of proof): (1) member of a protected

group; (2) qualified; (3) adverse employment action; (4) employer sought persons/replacement (not required in all cases)• Creates a legally mandatory rebuttable presumption of

discrimination [p. 20]

• Employer’s LNR: burden of production (not proof)• The rebuttable presumption disappears (the “bubble bursts”) [p. 20,

note 5]; rebuttal requirements [p. 21, note 7]

• Plaintiff ’s showing of pretext (burden of proof): employer’s stated reason was not the real reason (lie? falsehood? honest mistake? honest belief?) [p. 21]

The McDonnell Douglas Ping Pong• Proof of pretext is not necessarily sufficient to find

for the plaintiff: the pretext must cover up the employer’s discriminatory motive [p. 22, note 9]

• Where pretext is proven, the factfinder is permitted, but is not required to find for the plaintiff

• McDonnell Douglas is a single-motive case (the employer acted lawfully or unlawfully); mixed-motive cases in which the employer acted lawfully andunlawfully will be discussed later

Chapter 1: Proving Discrimination—Individual Disparate Treatment Discrimination• Reeves v. Sanderson Plumbing Products, Inc. (U.S. 2000)

• Facts; jury verdict; issue

• The McDonnell Douglas framework and plaintiff ’s pretext showing

• The Fifth Circuit’s error

• Rule: if a plaintiff proves pretext the factfinder may (but is not compelled to) find for the plaintiff [p. 28]

• Plaintiff ’s prima facie case evidence and evidence of pretext may permit a finding of employer liability [p. 29]

Chapter 1: Proving Discrimination—Individual Disparate Treatment Discrimination

• Reeves rejects the “pretext-plus” rule arguably adopted by the Supreme Court in St. Mary’s Honor Center v. Hicks and established the “pretext-only” rule [pp. 32-33, note 5]

• Pleading (Twombly/Iqbal) [p. 34]• Judgment as a matter of law: summary judgment (FRCP

56); directed verdict after the plaintiff rests (FRCP 50(a)); after jury verdict (FRCP 50(b)) [p. 35]

• Jury trials in Title VII cases since 1991 [p. 35]