1. "Disparate treatment... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” ~ Basics of Disparate Treatment ~ The role of intent: [Likely the most apparent form of discrimination outlawed by Title VII; to NOT use protected group status in making personnel decisions] > >> Direct and indirect (circumstantial) evidence is allowable

2. *Direct: that which shows, without inference, the existence of the fact in question [Decision-maker statement: “I fired him because he was Black”] Supervisor remark soon before he denied a female a promotion she said she had been promised: “f --- ing women, I hate f --- ing women in the office” [Heim v. Utah, 1993]. Not considered as direct evidence Direct Versus Indirect Evidence [Direct and indirect evidence does not involve the quality of the evidence, but how it isused] *Relatively uncommon (UAW v. Johnson Controls). Circumstantial: Organization’s forte is in its management who are “mostly young, well educated....” The company was “young, mean, and lean” The challenger ought to retire The challenger should have foreseen his firing when a yonger person was hired >>> Comments made by the organization’s president (who was involved in the decision to fire the challanger. Circumstantial evidence that is directly tied to an adverse decision [Radabaugh v. Zipp Feed Mills, 1993 --- evidence of unlawful intent)

3. Step 1: Challenger must establish a prima facie case Step 2: The company must articulate that a legitimate, nondiscriminatory reason exists for the rejection of the challenger Step 3: The challenger must prove that the organization's reason for their rejection is a pretext for discrimination ~ Disparate Treatment Process ~

4. McDonnell Douglas Corp. v. Green (1973) 1)Belong to a racial minority 2)Apply and be qualified for the job in which the employer was seeking applications 3) Be rejected for the job in question despite being qualified 4) After being rejected, the position must remain open and the company has to continue to seek applicants from person’s of the complainant’s qualifications Challenger Burden (Step 1): To establish a prima facie case of racial discrimination, a complainant must: >>> Green was Black >>> Green applied for a mechanic position and his past work for the company was “satisfactory” >>> Green was not hired >>> Company continued hiring applicants

5. ~ Application Requirement ~ Futile Act Doctrine: If a company has a longstanding practice of not hiring minorities From Teamsters: If an employer should announce his policy of discrimination by a sign reading "Whites Only" on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer's actual practices - by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition of that part of his work force from which he has discriminatorily excluded members of minority groups

6. ~ Qualification Issue ~ Absolute: The plaintiff possesses minimum qualifications for the job (e.g., based on a job description) Relative: The plaintiff’s qualifications compare favorably to others considered for the position (e.g., plaintiff must prove that he/she was most qualified for the job) From Teamsters v. U.S. (footnote 44): The plaintiff must prove that her rejection for a given job was not the result of “an absolute or relative lack of qualifications.”Teamsters v. U.S.

7. The employer needs to only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection” Disparate Treatment Company Defense (Step 2 ) >>> Company stated that Green was rejected because of his participation in an illegal “stall-in and “lock-in” against the organization

8. Challenger Can Demonstrate Pretext (Step 3) “... the plaintiff must then have an opportunity to prove by a preponderence of the evidence that the legitmate reasosn offered by the defendant were not its true reasons but were a pretext for discrimination.” How might this be done (with what information)? Company’s treatment of challenger during his prior employment (e.g., to his legal civil rights conduct) Organization’s policies/practices regarding minority employment (e.g., prior evidence of a pattern of discrimination – statistics) Evidence that Whites involved in the illegal activities were hired

9. Furnco Construction v. Waters (1978) Brief Facts: Race discrimination suit filed when black applicants were not hired No permanant workforce at company; staffing done per job. In this case, hiring done based on those individuals known to be qualified and by recommendations. No applications were excepted at company site. District Court. --- No evidence for discrimination under Green Ct. Appeals --- Prima facie case made; Co. was guilty of discrimination allegations History of racial discrimination; rejected as legitimnate the need for supervisor to select those whose ability was known to him; no whites had applied at company site Court of Appeals recommended the company to “... take applications, with inquiry as to qualifiactions and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers wuith whom the superintendent was not alrady acquainted.”

10. “... We think the Court of Appeals went awry, however, in apparently equating a prima facie showing under McDonnell Douglas with an ultimate finding of fact as to discriminatory refusal to hire under Title VII; the two are quite different and that difference has a direct bearing on the proper resolution of this case. A McDonnell Douglas showing is not the equivalent of a factual finding of discrimination... “It [the Court of Appeals] did not conclude that the practices were a pretext for discrimination, but only that different practices would have enabled the emplyer to at least consider, and perhaps to hire, more minirity applicants.” Prima facie case made; but prima facie case does NOT equal guilt (as implied by Ct. Appeals). Supreme Court Decision in Furnco

11. “The Court of Appeals... thought Furnco's hiring procedures not only must be reasonably related to the achievement of some legitimate purpose, but also must be the method which allows the employer to consider the qualifications of the largest number of minority applicants. We think the imposition of that second requirement simply finds no support either in the nature of the prima facie case or the purpose of Title VII The dangers of embarking on a course such as that charted by the Court of Appeals here, where the court requires businesses to adopt what it perceives to be the "best" hiring procedures, are nowhere more evident than in the record of this very case. “Title VII … does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees” No requirement to choose process that guarantees most minority appplicants Supreme Court Decision in Furnco (cont. )

12. Use of statistics may be relevant to show motive The Court of Appeals also appears improperly to have concluded that once a McDonnell Douglas prima facie showing had been made out, statistics offered by petitioner to show that its work force was racially balanced were totally irrelevant to the question of motive. The employer,... must be allowed some latitude to introduce evidence bearing on his motive. Thus, although petitioner's statistics were not and could not be sufficient to demonstrate conclusively that its actions were not discriminatorily motivated, the District Court was entitled to consider the racial mix of the work force when making a determination as to motivation,...” Supreme Court Decision in Furnco (cont. )

13. Texas Department of Community Affairs v. Burdine (1981) Brief Facts: District Ct. --- No gender bias in promotion decision; Evidence based on testimony from supervisor that: Not as qualified as person promoted Did not work well with some others Court of Appeals: --- 1) Company needs to prove the use of a non-discriminatory reason with a preponderance of evidence 2) Objective evidence must be presented that the person hired/promoted possessed the highest qualifications “... to satisfy this burden, the defendant “must prove that those he hired... were somehow better qualified than was plaintiff, in other words, comparative evidence is needed.”

14. Supreme Court Decision in Burdine 1) Defendant burden is one of production/articulation (not persuasion) We have stated consistently that the employee’s prima facie case... will be rebutted if the employer articulates lawful reasons for the action,... the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus... the defendant’s explanation of its legitimate reasons must be clear and reasonably specific

15. Supreme Court Decision in Burdine (cont.) 2)Defendant does not have to prove that the plaintiff’s qualifications are less the the person The views of the Court of Appeals can be read... as requiring the employer to hire the minority or female applicant whenever that person’s objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference 3) Plaintiff must show direct or indirect evidence that the defendant’s reason(s) were a pretext for discrimination

16. St. Mary’s Honor Center v. Hicks (1993 ) Brief Facts: After reorganization, Hicks received several discipliary actions from his new supervisor (before his performance was satisfactory). He was suspended (and later fired) for rules violations by his subordinates, failing to iadequately investigate a brawl between inmates, not ensuring his subordinates entered vehicle use in log book, arguing and threating his supervisor Hicks filed a race discrimination suit alleging disparate treatment District Ct. decided in favor of St. Marys Court of Appeals reversed this decision

17. Court of Appleals Decision in Hicks >>> Reasons given by the organization were NOT the true factors in the termination decision. (e.g., Hicks was the only supervisor disciplied for acts of his subordinates, similar/more serious violations by co-workers was ignored or treated lightly, and Hick’s supervisor began the verbal argument to provoke Hicks) Consequently, they decided that since pretext was established, the company was guilty of race discrimination “Because the defendants’ proffered reasons were discredited, defendants were in a position of having offered no legitimate reason for their actions.... offering no rebuttal to an established inference that they had unlawfully discriminated against plaintiff on the basis of his race.”

18. ~ Supreme Court Decision in Hicks ~ >>> Comany did offer (produce) non-discriminatory evidence for its decision. It meet it burden under the Burdine framework. >>> Challenger must not only show pretext, but that the reasons were a pretext for discrimination “... should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderence of the evidence that the legitmate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.” [From Burdine]

19. Reeves v. Sanderson Plumbing (2000) Reeves (age 57) fired for alleged poor work performance District Court ruled in favor of Reeves Court of Appeals reversed >>> Pretext may exist regarding the reasons offered by the organization; but not sufficient evidence of age discrimination

20. Alleged problems with Reeves performance: 1) Poor recordkeeping (cost company $$$) 2) Misrepresentations of records 3) Failure to record absences and hours worked by supordinates (especialy important given presence of union and costs for grievances/arbitration) 4) Failure to discipline subordinates Reeves showed evidence that records were properly maintained; time clock malfunctioed and he wrote the actual arrival time on time cards; company never calculated the dollar loss allegedly caused by Reeves Disciplinary decisions were the responsibility another supervisor There had never been a union grievance or complaint about recordkeeping No evidence of falsifying records introduced

21. >>> Age-related remarks made by the person who was the decision-making regarding his firing (e.g., “was so old that he must have come over on the Mayflower,” “was too damn old to do his job.” >>> Another supervisor (age 33) with the same production efficiency levels as Reeves, was not fired Additional Evidence by Reeves

22.  Age-based remarks not made in the context of the decision to fire Reeves  No evidence that others who recommended Reeves be fired were motivated by age  Two other decision-makers involved in Reeves’ firing were over age 50  All three Hinge Room supervisors were accused of poor recordkeeping  Several supervisory positions were filled by those over 50 years old Company Defense

23. Court of Appeals erred in limiting evidence after Step 2 to the age- related remarks, and not considering the facts of the case as a whole. “... the court must review the record taken as a whole.” “... the court should review all of the evidence in the record Challenge’s burden is to demonstrate: “that the stated reasons were not the real reasons for [petitioner’s] discharge; “that age discrimination was the real reason for [petitioner’s] discharge.” Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent’s explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that respondent had intentionally discriminated. Supreme Court Decision in Reeves

24. McDonnell-Douglas v. Green: >>> Developed 3-step process for disparate treatment claims Furnco v. Waters: >>> Establishing a pioma facie case does NOT equal a finding of discrimination >>> No requirement to use a process that attracts the most minority members >>> Use of statistics (representation) may be used to show motive Disparate Treatment Case Summary

25. Texas v. Burdine: >>> Company required tp produce evidence of legitimate reasons (not prove them) >>> Objective evidence is not required to document that most qualified person was hired/promoted St, Mary’s v. Hicks: >>> Demonstration of pretext by challanger is NOT enough; evidence that the offered reasons were a pretext for discrimination is required Reeves v. Sanderson Plumbing: >>> Evidence in addition to that offered in establishing a prima face case should be considered (the record as a whole) Disparate Treatment Case Summary (cont.)

26. ~ Pattern or Practice Discrimination ~

27. [Subset of Disparate Treatment Discrimination] From Title VII --- Section 707(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United State

28. Phase 3 : Plaintiff’s requirement for showing pretext is the same as previously discussed for McDonnell–Burdine cases for both the overall and individuals claims The Pattern or Practice Scenario Phase 1 : Plaintiff provides statistical evidence of underrepresentation of minorities/women in the workforce or overrepresentation of minorities/women in less desirable jobs Phase 2: Defendant can use McDonnell–Burdine defense for pattern statistics; defense for individual claims generally follows McDonnell–Burdine rules

29. Basic factors for evidence of pattern or practice discrimination Impact on actual applicants (“Flow” statistics) Impact on potential applicants Representation regarding a company’s workforce (“Stock” statistics). Most commonly used comparison in EEO cases Basically, this is a comparison between 2 numbers (often percentages) % reflective of the company’s work force versus % indicative of the relevant population or labor force  Or cross-job comparisons (e.g., between 2 jobs) within an organization

30. The federal government sued a nationwide trucking company and its union for discrimination against black and Hispanic Americans in hiring intercity truck drivers. The government claimed that these minorities were relegated to lower- paying driving jobs by the existence of separate units (local unions) for intercity and local drivers. Protection from layoff and competition for vacancies were determined by bargaining union seniority, so that intercity runs were given to the applicant who had been an intercity driver the longest. To support its argument, the government presented the following statistics on the company work force: White Black & Hispanic ____________________________________________________ Intercity drivers 1802 13 Local drivers 1117 167 _____________________________________________________ Also, the government introduced population statistics that showed further disparities. For instance, some company terminals in areas of substantial black population had no black intercity drivers. Teamsters v. United States

31. Teamsters --- Representation statistics as evidence of a prima facie case Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long lasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though 703 (j) makes clear that Title VII imposes no requirement that a work force mirror the general population." From Title VII ---703 (j) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor– management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

32. "At best, these attacks go only to the accuracy of the comparison between the composition of the company's work force at various terminals and the general population of the surrounding communities. They detract little from the Government's further showing that Negroes and Spanish-surnamed Americans who were hired were overwhelmingly excluded from line-driver jobs. Such employees were willing to work, had access to the terminal, were healthy and of working age, and often were at least sufficiently qualified to hold city-driver jobs. Yet they became line drivers with far less frequency than whites.... Of 2,919 whites who held driving jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167 (93%) were city drivers. In any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero." In cases where the differences are vast, technical issues regarding statistical analyses/comparisons may be irrelevant Teamsters [Degree of disparity between workforce & population statistics] >>> Company failed to articulate a legitimate reason for the disparities

33. Hazelwood v. United States Summary of the statistics used in Hazelwood Total teachers hired by the district......................... 1231 Total # of teachers hired since 3/24/72................. 405 % of Black teachers hired by the district............... 1.8% % Blacks hired since 3/24/72.............................. 3.7% % Black teachers living in metropolitan area........ 15.4% (surrounding county; % the gov't thought was appropriate) % Black teachers in area living outside center city.. 5.7% (local area; % that Hazelwood thought was appropriate) % Black pupils enrolled in school district.............. 2.3% >>> Hazelwood won since the S.C. decided that they had articulated a legitimate reason for the imbalance (e.g., competition from the City of St. Louis) when the “proper” relevant labor market was used

34. Qualification requirement : When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value (from Hazelwood v. U.S.) Relevant Labor Market (cont):

35. What determines the number to be used indicating the labor market? What geographical area is to be used? (e.g., a city, region, entire nation) Who is counted in the geographical area? (e.g., everyone in the population, only those with certain qualifications) Who is counted within the company? Full-time workers only or do part-time employees get counted? Employees in all job classes, a categorization of certain job classes, or only one job class? Employees in just one department, the entire facility, or facilities across the nation? Some Key Issues/Questions