Law School Course Outline for Employment Discrimination Law
Dr. Michael A. S. Guth
EMPLOYMENT LAW: http://riskmgmt.biz/cle.htm/
NS = Nutshell on Federal Employment Discrimination Law
ER = Employer, EE = Employee, ENT = Employment, K = contract,
pfc = prima facie case, legitimate nondiscriminatory reason =
LNR / NDR = nondiscriminatory reason.
PART ONE: PROTECTING EMPLOYEES FROM STATUS DISCRIMINATION
Chapter 1: Paradigms for Status Discrimination
Note on Title VII of the Civil Rights Act of 1964 and other
Federal Initiatives Against Race Discrimination in Employment Triumph of
We distort the natural freedom of the labor market unlike
other markets. How can this sacrifice of freedom be justified?
THREE IMPERFECTIONS in the LABOR MRKT: 1) lack of information; 2) immobility
- accute for 2nd wage earner, family with illness & health insurance tied to
employer; 3) "sunk cost" of experience
The workplace has become a primary social community in addition to an
economic relationship. EEs gain personal satisfaction, emotional / psychological
gratification. The labor market is not necessarily "free and efficient." ENT =
more than just cash. People will not necessarily change jobs just to get a
little more money. Noneconomic variables influence job selection and utility
Social Service Safety Net in USA - compares unfavorably to other
industrialized nations. Presumes people prefer to work over unemployment.
1. Why are we using law at all to regulate a relationship that is primarily
economic? (why not let ENT markets operate alone? )
a. To help diminish fraud in civil society and protect the unwary who cannot
protect themselves (this is a limited answer)
b. Further dimension that transcends simple economics--E powerful
psychological component: we define ourselves by our work.
c. Market for labor is vastly different than other commodities market. Info
is different and people do not behave rationally in terms of economic factors.
Microeconomic model is not strictly applicable.
Goals of Title VII: 1) Neutrality in hiring and promoting employees - alter
current practices, and 2) Remediation - correct past wrongs, that is the
justification for the impact portion. 42 U.S.C. Section 2000e
Extends anti-discrimination to private sector employers
Seeks to promote economic integration of blacks into society
Covers all private employers with 15 or more employees and all government
employers, state, federal and local.
The Civil Rights Act of 1964, Section 703(a)
(codified at 42 USC Sections 2000e-2000e-17) - very sweeping prohibition
It shall be an unlawful ENT practice for an ER--
(1) to fail to refuse to hire or to discharge any individual or otherwise
discriminate against individual with respect to his compensations, terms,
conditions, or privileges of ENT, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his EEs or applicants for ENT in any way
which would deprive or tend to deprive any individual of ENT opportunities, or
otherwise adversely affect his status as an EE, because of such individual's
race, color, religion, sex or national origin.
Also covers discrimination against whites & men. Compels neutrality.
Remember that Title VII depends for its enforcement on private actions by EEs.
Congress relied on the private bar to represent (vindicate) those injured. This
was a policy choice: using private rights to enforce public scheme requires Low
Threshold to prove case (to keep the cases in court). [gets around 12(b)(6)
motions] Makes it possible for plaintiff to get to court, stay in court, and pay
attorneys - fee shifting for prevailing plaintiff.
B. Proving Individual Disparate Treatment
Main Inquiry in intentional discrim. cases: What was the ER's motive?
Under McDonnell Douglas, prima facie case creates the inference that the
Defendant was motivated by an impermissible factor.
3-Step analysis (NS p. 70)
1. Plaintiff creates initial inference of illegal motivation by proof that as
a member of a protected class, he was treated differently than a similarly
situated person of another class. If proven, go to #2
2. Defendant has burden of articulating a legitimate, nondiscriminatory
reason (LNR) for the treatment. (McDonnell Douglas); NOTE: Defendant's burden is
NOT of persuasion--it is to produce evidence from which lawful motivation could
be inferred (Burdine). Defendant must prove that the employee hired was "better
qualified." If Defendant fails to present such reasons, judgment must be for
3. If Defendant produces a LNR for its action, Plaintiff has burden to
present evidence of a pretextual nature of Defendant's articulated reason. If π
fails to produce proper evidence, judgment for Defendant. BUT, if Plaintiff
produces sufficient evidence to raise an issue of fact as to Defendant's
motivation, this evidence brings into focus the ultimate factual issue, namely
Defendant's true motivation. Plaintiff carries the burden of persuasion
(preponderance of the evidence) that Defendant was illegally motivated.
McDONNELL DOUGLAS v. GREEN, 93 S. Ct. 1817 (1973) Green was a long-time civil
rights activist. Defendant laid off Plaintiff, a mechanic, as a part of a
general reduction in the workforce. Plaintiff protested that his firing and some
of Defendant's other practices were racially motivated. In protest, Plaintiff
and others engaged in a "stall-in" including unlawful trespass. Shortly
thereafter, Defendant announced job openings. Plaintiff re-applied. Defendant
rejected Plaintiff's application citing his participation in the stall-in and
lock in. Plaintiff filed complaint with EEOC claiming violations of Sections
703(a)(1) and 704(a)--the latter section makes it unlawful to discriminate
(retaliate ' 704) ag. someone "because he has opposed any practice made an
unlawful ENT practice by this subchapter." EEOC found no probable cause to
believe there was a violation of the Act and the trial ct. held that the EEOC
finding barred suit. 8th Cir. Ct. of Appeals reversed, Supreme Court affirmed,
and this remains the law today: The fact that the EEOC does not issue a right to
sue letter does not bar suit under Title VII. (Filing of Title VII EEOC charge
is a prerequisite for going to court; EEOC - mediate and merit determination)
Procedural Framework articulated by the Supreme Court in McDonnel Douglas:
1. Plaintiff must carry an initial burden of establishing a prima facie case
of racial discrimination by showing:
a. that he belongs to a protected class;
b. that he applied for and was qualified for a job for which the ER was
c. that despite his qualifications, he was rejected, and,
d. that, after his rejection, the position remained open and the ER continued
to seek applications from persons of π's qualifications.
The prima facie showing allows the Plaintiff to stay in court; it is
circumstantial evidence tending to give rise to the inference that race (or
another impermissible quality) was a motive in the ENT decision. ER acted in a
way not economically explicable.
2. If π establishes a prima facie case, the burden shifts to Δ to articulate
a legitimate, nondiscriminatory reason. "Evidence that would allow inference of
a nondiscriminatory reason" - low threshhold for ER.
Do not want to give ER incentives to hire on the basis of race - to pick
among equally qualified candidates - just to avoid lawsuits.
If the Defendant establishes a reason with admissible evidence that IF
BELIEVED, would explain the action, then the presumption is rebutted. The reason
asserted by the employer need not be believed at this time. Ct takes the
assertion AS IF BELIEVED. Credibility is not an issue until the trial.
Only burden of production on defendant. Burden of persuasion remains with the
3. If Defendant gives a LNR, then Plaintiff must have a fair opportunity to
prove that the articulated reason was pretext for discrimination. Burden then
back on Plaintiff, with preponderence of the evidence.
what is the main thing this case shows: how the burden of proof shifts around
in a Disparate Treatment case.
how demanding is the prima facie case requirement: not very demanding at all.
The threshold is set low on purpose by statute.
why is the requirement that the plaintiff be in a protected class not
demanding: since the statute prohibits all discrimination on race, sex, etc.,
everyone is really in a protected class. (?)
If, after a discrim. suit has been filed against it, the ER articulates a LNR
for the decision, the π then presents additional evidence of discrimination
which convinces the trier of fact that the π was discriminated against, it does
not matter that the Plaintiff initially did not satisfy the 4 McDonnel-Douglas
factors. (See U.S. Postal Board v. Aikens 460 US 711 (1983)).
TEXAS DEPT. of COMMUNITY AFFAIRS v. BURDINE, 101 S. Ct. 1089 (1981) (p. 30)
TDCA hired Burdine. Burdine failed to receive a promotion and was fired. ER's
LNR: Burdine was abusive to customers. Although she was subsequently rehired,
she sued under Title VII alleging gender discrimination. District Court found
for Defendant(ER). Court of Appeals reversed on the ground that Defendant failed
to prove by a preponderance how its articulated reason rebutted Plaintiff's
prima facie case. Reversed for EE. SCt. rejects 5th Circuit reasoning.
Issue: Does Defendant have the burden of persuasion as to the legitimacy of
its articulated reason? NO.
Holding: Once a Plaintiff proves by a preponderance of the evidence, his
prima facie case (pfc), then the burden shifts to the ER, not to prove but to
rebut the pfc by producing evidence that its action was for a LNR.
Title VII does not require an employer to hire or promote a minority or woman
over an equally qualified white male. ER may use any valid (constitutional)
reason to select a candidate for a given position.
The ultimate burden of persuasion remains with the plaintiff at all times.
Once the presumption is established, the Defendant rebuts with the assertion
of any other reason which is assumed to be believed. The ER did not bear the
burden of persuading the court that it was motivated by its proffered reason; ER
need only raise a "genuine issue of material fact as to whether it discriminated
ag. the Plaintiff."
The Plaintiff then has the burden of showing the reason cited is erroneous
and pretextual OR showing direct evidence of discriminatory motive. NOTE: if
there is direct evidence it will be in the prima facia case and will usually
result in settling.
If the reasons shown for the action are pretextual, the court assumes the Δ
is hiding the real reason which is presumed to be illegitimate, i.e.,
discriminatory. Here is where the credibility of the asserted reasons for the
action become an issue. NOTE: we still do not know the real motive, there is
only the inference that it is illegal.
If there is direct evidence of illegal motive, then even if there were other
justifiable reasons, the action is not allowed.
Thus, at stage two the ER "must clearly set forth, through the introduction
of admissible evidence, the reasons for Plaintiff's rejection. The explanation
provided must be legally sufficient to justify a judgment for the Defendant. If
the Defendant carries his burden of production, the presumption raised by the
pfc is rebutted, and the factual inquiry proceeds to a new level of
According to Burdine, the purpose for placing this burden of production on
the ER at this early point is to sharpen the factual inquiry and aid the
Plaintiff in the burden of showing pretext. (This goal may be sharply undercut
by St. Mary's Honor Center, below)
1. 5th Cir. approach would have required ERs to hire a minority applicant
anytime they were equally qualified with other candidates.
2. Congress did not intend to grant such preferential treatment.
3. ERs would be tempted to discriminate against whites or males just to avoid
the cost of the lawsuits.
ST. MARY'S HONOR CENTER v. HICKS, 113 S.Ct. 2742 (1993) (PRETEXT case:
impeach D's articulated NDR for motivation) Hicks, black, was employed by a
Missouri half-way house in a supervisory capacity. He had a new boss and got
fired. Hicks was replaced by a white male. Hicks proved a prima facie case. ER
articulated these nondiscriminatory reasons for the decision: (1) the severity
of his workers' misconduct; (2) quantity of their misconduct. Hicks proved he
was the only one fired for the conduct of people supervised, that people he
supervised were not disciplined, and that those workers' conduct was not severe.
D.Ct. found that Hicks had proved that the ER's reasons were pretext. But, the
court said that it still did not believe that the firing was racially motivated
(personal vendetta, not racial vendetta). Judgment for Defendant/ER. Ct./Ap.
rev'd saying that, upon finding of fact of pretext, Plaintiff wins in a Title
Issue: Does the Court's rejection of the asserted NDR by the employer mandate
judgment for Plaintiff? NO (5-4 decision). Alt: Does P win upon proof of pretext
but not pretextual discrimination? NO
RULES: (1) Even if the Plaintiff proves a prima facie case and that the ER's
articulated reasons are pretext, he still may lose on the ultimate question of
(2) Nothing in the law permits substituting for the required finding that
employer's action was product of unlawful discrimination, the much different
(and much lesser) finding that ER's explanation of its action was not
(3) ER's burden at Stage 2 is only the burden of PRODUCTION. The McDonnel-Douglas
pfc raises a Fed. R. Evid. 301-type presumption of discrimination. THUS if a
Plaintiff proves a pfc by a preponderance of the evidence, and the ER meets the
burden of production of articulating LNR for the decision, and these reasons are
DISbelieved by the trier of fact, the Plaintiff nonetheless has the burden of
proving by a preponderance of the evidence that the ER unlawfully discriminated.
(It is possible for a Plaintiff to present a pfc, discredit the ER's articulated
reasons and STILL lose Disparate Treatment claim--this is what happened to
(4) π then has the burden of rebutting the ER's stated reason (this burden
"merges" with the ultimate burden of proof to show intentional discrimination).
St. Mary's explains the issue in the procedural context of a π's motion for
directed verdict: "If a Defendant has failed to sustain its burden but
reasonable minds could differ as to whether a preponderance of the evidence
establishes a pfc, then a question of fact does remain, which the trier of fact
will be called upon to answer."
(5) As the Supreme Court said "although [respondent/π] has proven the
existence of a crusade to terminate him, he has not proven that the crusade was
Racially Motivated." (quoting the D.Ct.) It was significant to the D.Ct. and the
Supreme Court noted that there were blacks on the review committee and the
number of blacks remained constant. (Personal vendetta but not racial vendetta)
Thus, the π cannot succeed INDIRECTLY; a showing of pretext requires a
showing of "pretext for discrimination." "It is not enough . . . to disbelieve
the ER; the fact finder must believe the π's explanation of intentional
The rebuttal of the reasons given only proves that they were false, not that
discrimination was the real reason. The π must still meet this burden. The trier
of fact must decide, and evidence that the employer gave false reasons CAN lead
to the inference that there was discrimination, it is not so as a matter of law.
This gives great discretion to the trier of fact. In this situation, most of the
time the Plaintiff will win.
The motive for the firing remains a mystery, it is only determined what it is
not. In this case we can assume that the π was a jerk and for some reason the
Defendant did not have enough evidence or chose not to use this as a defense,
however, we can assume the judge saw it.
(Pat liked the dissent by Souter: If D gives a false reason, then the court
has an even greater reason to grant P's inference of bad motive than from P's
prima facie case).
Does St. Mary's v. Hicks gut Burdine? No--mostly you will win by showing that
reasons are pretextual.
Burdine says that the Plaintiff can "succeed in this either directly by
persuading the court that a discriminatory reason more likely motivated the ER
or indirectly by showing that the ER's proffered reason is unworthy of
credence." In other words, the π can either show pretext OR rebut the ER's
evidence of nondiscrimination. St. Mary's labels this dictum contradictory and
inexplicable and makes clear that a Title VII Plaintiff must prove his case, not
just disprove the ER's articulated reasons. After St. Mary's, Plaintiff cannot
Burdine contemplates that there will rarely be direct evidence. Case will
almost always revolve on facts that the employer knows but does not want
discovered and the Plaintiff does not know but needs to prove.
PRICE WATERHOUSE v. HOPKINS, 109 S.Ct. 1775 (1989) (p. 38) - MIXED MOTIVE
CASE. π worked for Δ for 5 years when she was proposed for partner. Denied
partnership b/c not feminine enough. Good Motive: Interpersonal skills lacking,
gruff, demanding. Bad Motive: Treated her different because she was a woman;
conduct tolerated in men was penalized in women. Ct. of Appeals held that
Defendant could prevail by proving by clear and convincing evidence that it
would have made the same decision without regard to gender.
Issue: Is Title VII violated where both a discriminatory and legitimate
motive lies behind an ENT decision? YES.
Rule: "Once a π in a Title VII case shows that a factor (gender) played a
motivating part in an ENT decision, the Defendant may avoid a finding of
liability only by proving by a preponderance of the evidence that it would have
made the same decision even if it had not allowed the factor (gender) to play
such a role."
O'Connor's concurrence wanted Plaintiff to show that an impermissible
category was a substantial motivating factor - this change abrogates that
difference. This decision was a plurality, so the answer is not entirely clear:
a factor or a substantial factor.
Note: However, the Civil Rights Act of 1991 addresses the issue: new section
703(m) says that the statute is violated if race etc "was a motivating factor
for any ENT practice, even though other factors also motivated the practice." If
so, a violation is established.
HOWEVER, if the ER shows that "it would have taken the same action in the
absence of the impermissible motivating factor" then the π is not entitled to
damages or reinstatement; the court may only order Declaratory or Injunctive
relief and attorneys fees directly related to the 703(m) claim. (see
Basically, "a" motive violation may allow judicial relief rather than
allowing ER to escape from liability. Burden of proof is on ER to prove
affirmative defense. How? Strong evidence of consistent behavior with respect to
this conduct, e.g., we take affirmative steps to catch any cashier stealing
money, not just this particular cashier; we always fire those discovered.
CRA of 1991 makes punitive damages available - previously had not been.
Dr. Michael A. S. Guth, Ph.D., J.D., is a practicing attorney at law based in
Oak Ridge, Tennessee. He has taught two continuing legal education seminars on
Employment Discrimination Law from which this course outline is derived. It was
also taken from class notes on Employment Law taught at the University of
Tennessee College of Law. He also teaches courses on-line at the undergraduate
and graduate level, including courses in corporate tax. For additional
information, please see the web page
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