1. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Individual Disparate Treatment Discrimination Chapter 3

2. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Age Discrimination in Employment Act of 1967 Introduction Title VII of the Civil Rights Act of 1964 Disparate Treatment Discrimination Civil War Reconstruction Statutes Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 Americans with Disabilities Act of 1990 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

3. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Section 703(a) It shall be an unlawful employment practice for an employer — (1)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 (2)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. The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

4. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) § 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. The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

5. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

6. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

7. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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. The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Submissive Emotional Quiet Neat/Clean Clumsy Artsy Nurturing Aggressive Ambitious Unemotional Skillful Loud Messy Athletic Math and Science Oriented

8. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Hard workers Good at math Self-effacing Rich Pushy Good athletes Into rap music Unmotivated Family-oriented Immigrant, maybe illegal Tiempo Latino Race Stereotypes The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

9. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

10. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

11. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Age Stereotypes Reduced energy and enthusiasm Reduced physical abilities Resistant to change Can’t relate to younger individuals Conservative Forgetful The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

12. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Employer Opportunism and the ADEA The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent 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” Young, medium skill, and underpaid

13. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Individual Disparate Treatment Slacks v. Havens Biggins v. Hazen Paper Systemic Disparate Impact Systemic Disparate Treatment

14. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Animus “Rational” Discrimination Semi-Conscious Unconscious Workplace Structures Workplace Cultures

15. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Circumstantial Evidence of Discriminatory Intent McDonnell Douglas Corp v. Green (1973)  Title VII claims  Step 1: Claimant - Prima facie case of racial discrimination i.Belongs to a racial minority ii.Applied and was qualified iii.Despite qualifications – rejected iv.Position remained open  Step 2: Respondent – Articulate legitimate reasons  Step 3: Claimant – Prove pretext The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

16. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

17. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) And if a discharge is challenged? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Individual Discharges Course of Reduction Discharges McDonnell Douglas “prima facie” formulation?

18. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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) The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

19. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Summing Up McDonnell Douglas 1.Service: Plaintiff proves prima facie case (Chapter 3, Part C 1) 2.Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2) (Chapter 3, Part C 2) 3.Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2) The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

20. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

21. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

22. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

23. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

24. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

25. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

26. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

27. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) “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 1. McDonnell Douglas test  In a White dominated business 1. “background circumstances?” 2. Admissions 3. Affirmative action/diversity statements? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

28. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) ADEA and “Reverse” Age Discrimination The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Everyone over 40 is FIRED!!!! You’ll never beat my ADEA Style! Fine, everyone under 40 is FIRED! Um… I can live with that! ADEA

29. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

30. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

31. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Where Does the Union Fit In? UNION Contractual Relationship NLRA Non-Members The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Members

32. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Back to McDonnell Douglas 1.Service: Plaintiff proves prima facie case (Chapter 3, Part C 1) 2.Return: Defendant rebuts discriminatory intent (Chapter 3, Part C 2) (Chapter 3, Part C 2) 3.Point: Plaintiff proves defendant’s reason are pretextual (Chapter 3, Part C 2) The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

33. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Patterson v. McClean Credit Union (1989) Does Patterson have to prove she is more qualified? 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

34. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

35. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Revisiting Rebuttal The Defendant only need put in evidence of nondiscriminatory reasons.  “Legitimate” has no independent meaning LawfulUnlawful Discriminatory Non-discriminatory The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

36. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

37. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

38. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Post McClean Title VII ADEA § 1981 McDonnel Douglas / Burdine The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

39. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Investigation vs. Discovery Investigative road blocks  Privilege  Costly discovery  Protective orders  Legal ethics Legal accommodation  Court balancing of interests The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

40. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

41. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 ? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

42. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

43. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

44. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

45. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Reeves v. Sanderson Plumbing (2000) Trial  Plaintiff’s prima facie case established  Defendant’s rebuttal presented  Plaintiff rebuts  Jury finds for plaintiff and awards $$$  5 th Circuit overturns the verdict  A reasonable jury could have found defendant’s explanation pretext  But not sufficient evidence that the real reason was discriminatory The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

46. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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  The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

47. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

48. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

49. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Restrictions on Employer Freedom of Choice

50. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) 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 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent Pretext Mixed Motive

51. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Price Waterhouse v. Hopkins (1989) (Plurality) Proof  Plaintiff - How can motivating stereotypes be proven?  Defendant – Objective evidence of likelihood of the same outcome using legitimate reasons  The same decision would be justified; Or…  The same decision would have resulted;  Why is “clear and convincing evidence” not the standard? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

52. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Price Waterhouse v. Hopkins (1989) (Plurality) Justice White, Concurring in the judgment  Unlawful motive was a substantial factor in the adverse employment action. See Mt. Healthy v. Doyle  Objective evidence by employer not necessary The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

53. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Price Waterhouse v. Hopkins (1989) (Justice O’Connor, Concurring ) Justice O’Connor, Concurring in the judgment  Agrees burden should shift to employer to show by a preponderance of the evidence  “But-for” = “Because of ”  Where a breach has been established  Burden is on the defendant; However,  ONLY by a showing of “DIRECT evidence that an illegitimate criterion was a substantial factor in the decision.” How is this different than the plurality Why, and how, is this different than Burdine? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

54. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Price Waterhouse v. Hopkins (1989) (Justice O’Connor, Concurring ) The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent   1)MD prima facie case 2)Direct Evidence 3) Legitimate reasons 4) Selects Framework Plaintiff’s case Price Waterhouse Threshold Price Waterhous e Framework McDonnell Douglas

55. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Aftermath of Price Waterhouse What is the relationship between PW & MD? Is direct evidence required to invoke PW? Issues of statements as direct evidence  What was actually said?  Does the comment really reflect an illegitimate reason?  How does perception relate to intent? (E.g. “niggardly”)  Do we mean everything we say? Confusion as to how much evidence is needed to be direct and to shift into a burden-shifting framework?  Can a lot of circumstantial evidence be enough (direct)? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

56. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) The Civil Rights Act of 1991 § 703(m), 42 U.S.C.S. § 2000e-2(m) (2003)  “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

57. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) The Civil Rights Act of 1991 § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)  (B) On a claim in which an individual proves a violation under section 703(m) [42 USCS § 2000e-2(m)] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-- (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m) § 42 USCS § 2000e-2(m)]; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).42 USCS § 2000e-2 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

58. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) New Limitations on Employer Liability § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)  (B) On a claim in which an individual proves a violation under section 703(m) [42 USCS § 2000e-2(m)] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-- (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m) § 42 USCS § 2000e-2(m)]; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).42 USCS § 2000e-2 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

59. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) New Limitations on Employer Liability § 703(m), 42 U.S.C.S. § 2000e-5(g) (2003)  (B) On a claim in which an individual proves a violation under section 703(m) [42 USCS § 2000e-2(m)] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-- (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m) § 42 USCS § 2000e-2(m)]; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).42 USCS § 2000e-2 The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

60. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) The Civil Rights Act of 1991 § 1981 was not amended ADEA was not amended Does McDonnell Douglas or Price Waterhouse analysis apply to these? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

61. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) All For One, And One For All? How should multiple decision makers be treated?  Collegial Structure  Hierarchical Structures  Combination What role would discriminatory contributors need to play to impute the whole? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

62. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) § 1983 Ku Klux Klan Act of 1871  Provides a remedy for violation of “rights, privileges, or immunities secured by the Constitution and laws”  Applies only to state action  Remedial advantages eliminated by The Civil Rights Act of 1991  Disparate Impact theory not available The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

63. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Title VII, § 1981, § 1983 Is §1983 still useful? Are Title VII and §1983 mutually exclusive? How to choose between § 1981 and § 1983? How does 11 th Amendment immunity affect § 1983 Who gets absolute or qualified immunity? The Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

64. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Costa v. Desert Palace, Inc. (2003) Title VII Statutory Framework  Price waterhouse  An employer who considers both gender and illegitimate factors at decision time, made it “because of” sex.  Employer may have “same decision affirmative defense  The Civil Rights Act of 1991  A prohibited motivating factor is unlawful regardless of defense  Solves burden shifting issues  Direct Evidence Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

65. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Costa v. Desert Palace, Inc. (2003) Direct Evidence  Classic approach  Animus Plus position (Majority view)  Animus position Disparities between and within Circuits This Court  Return to the language of the statute  No special evidentiary standard  Proof by a preponderance of the evidence of an illegitimate motivating factor Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

66. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Costa v. Desert Palace, Inc. (2003) The Framework for Proving a Title VII Violation  McDonnell Douglas  Primarily a tool for plaintiff’s in the summary judgment phase  Requirements of a prima facie case are not intended to be ritualistic  Plaintiffs can succeed by persuading the Court that a discriminatory reason motivated an employer action, or by proving the employer’s proffered reason is pretext  The plaintiff always bears the burden of proof  This is not the exclusive method of proof in such cases Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

67. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Costa v. Desert Palace, Inc. (2003) Number of motives affects jury instructions  Only reasonable conclusion is one motive  Jury receives “Because of” instruction  If the employee succeeds then full Title VII remedies are avialable  No “same decision” defense available  Evidence support two or more motives  Jury receives “motivating factor” instruction If they answer in the affirmative the burden shifts Employer may have “same decision” defense If the employer succeeds then damages are limited to:  Attorney’s fees, declaratory relief, and order prohibiting future discrimination Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent

68. Zimmer, Sullivan & White, Employment Discrimination (Aspen, 6th ed, 2003) Individual Disparate Treatment Law Did Costa get it right? What is the relationship Present and Future of Individual Disparate Treatment Law Direct Evidence of Discriminatory Intent Circumstantial Evidence of Discriminatory Intent The Meaning of Discriminatory Intent § 1981§ 1983 Title VII ADEA Mixed Motive Pretext Pre-trial Trial Burden Shifting “Becaus e of” Direct Evidenc e Circumstantial Evidence