~ Basics of Disparate Treatment ~

The role of intent: "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.” Teamsters v. United States 431 U.S. 324, 335-36 (1977)

• Likely the most apparent form of discrimination outlawed by Title VII; to NOT use protected group status in making personnel decisions

What is disparate treatment?

How do you know if disparate treatment exists?

Step 1: Challenger must establish a prima facie case (presents presumptive evidence)

Step 2: The company must articulate that a legitimate, nondiscriminatory reason exists for the rejection of the challenger (burden of production, not prove)

Step 3: The challenger must prove that the organization's reason for their rejection is a pretext for discrimination

~ Disparate Treatment Process ~

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

• The employer needs to only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection”

Disparate TreatmentCompany Defense (Step 2)

>>> Company stated that Green was rejected because of his participation in an illegal “stall-in and “lock-in” against the organization

Challenger Can Demonstrate Pretext (Step 3)

“ ... the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reason 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

Implementation by lower courts of the criteria set forth by

McDonnell Douglas was not seamless!!!

Key issues were:

1) Burden of proof for defense

2) Usefulness of indirect evidence to establish pretext

Furnco Construction v. Waters (1978)

Brief Facts: • No permanent 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 accepted at company site.

• Race discrimination suit filed when black applicants were not hired

• District Court --- No evidence for prima facie case under McDonnell v. Green rules and viewed hiring practices as justifiable

• Ct. Appeals --- Prima facie case made; Co. could not defend it’s practices

• Court of Appeals imposed a remedy for the company to “... take applications, with inquiry as to qualifications and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers with whom the superintendent was not already acquainted.”

• Court of Appeals also criticized the company’s efforts to use statistics to refute the charge of race discrimination (Title VII protects individuals)

Furnco Construction v. Waters (cont.)

SC decision --- Critical comment: “The burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race”

• CA made an error in assuming the company was guilty after successful prima facie case was made (and failure of company to successfully rebut)

• The imposing of a system that would require the company to possibly hire more minority applicants was not justifiable under Title VII

• The use of statistics to show the racial composition of the workforce is legitimate regarding the question of motive (CA rejected use of stats)

“Proof that his work force was racially balanced or that it contained a disproportionately high percentage of minority employees in not wholly irrelevant on the issue of intent when that issue is yet to be decided.” The racial mix of the workforce may be useful to help determine the motivations of a given organization

Texas Department of Community Affairs v. Burdine (1981)

Brief Facts: Sued for sex discrimination in promotion and termination decisions

District Ct. --- No gender bias in promotion/termination decisions; 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.”

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 (e.g., so challenger can have an opportunity to prove pretext)

Supreme Court Decision in Burdine (cont.)

2) Defendant does not have to prove that the plaintiff’s qualifications are less than the person hired

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 preference3) Plaintiff must show direct or indirect evidence that the defendant’s reason(s) were a pretext for discrimination

Two Similar Cases Using Indirect (Circumstantial) Evidence

St. Mary’s v. Hicks (Hicks loses) Judge decisionReeves v. Sanderson Plumbing (Reeves wins) Jury decision

Company hired 3 people in their 30s to fill Reeves position; another supervisor

with a similar record as Reeves was not

fired

Company hired 3 people in their 30s to fill Reeves position; another supervisor

with a similar record as Reeves was not

fired

St. Mary’s Honor Center v. Hicks (1993[Hicks presented strong indirect

evidence presented and lost]Brief Facts: After reorganization, Hicks

• received several disciplinary actions from his new supervisor (before his performance was satisfactory)• was suspended (and later fired) for rules violations by his subordinates (failing to inadequately investigate a brawl between inmates, not ensuring his subordinates entered vehicle use in log book, arguing and threatening his supervisor)

Hicks filed a race discrimination suit alleging disparate treatment

District Ct. decided in favor of St. MarysCourt of Appeals reversed this decision

Court of Appeals Decision in Hicks

>>> Reasons given by the organization were NOT the true factors in the termination decision.

(e.g., Hicks was the only supervisor disciplined 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 the company was unsuccessful defending its use of legitimate factors, the company was guilty of race discrimination as a matter of law

“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.”

~ Supreme Court Decision in Hicks ~

>>> Company did offer (produce) non-discriminatory evidence for its decision. It met burden under the Burdine framework.

>>> Challenger must not only show pretext, but that the reasons were a pretext for discrimination

“ ... it is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.

• Believed the true reason was personal, not based on race

>>> This raised concerns among many SC justices about the value in offering indirect evidence in disparate treatment cases

Reeves v. Sanderson Plumbing (2000)[Indirect evidence was sufficient for plaintiff to win]

• Reeves (age 57) fired for alleged poor work performance;• Reeves files age discrimination suitDistrict Court instructions to the jury: “if the plaintiff fails to prove age was a determinative or motivating factor in the decision to terminate him. Then your verdict shall be for the defendant.”

Jury decided in favor of Reeves

Court of Appeals (CA 5) reversed:

>>> Plaintiff’s showing that defendants’ reasons were false were powerful, but insufficient to prove pretext for age discrimination.

Alleged problems with Reeves performance that were refuted:

1) Poor recordkeeping (cost company $$$)

2) Misrepresentations of records

3) Failure to record absences and hours worked by subordinates (especially 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 malfunctioned 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

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

>>> 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

CA only considered this additional evidence to assess pretext

Additional Evidence by Reeves

Challenger’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.”

“Proof the the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination … Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation …”

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

~ Mixed-Motive Scenarios ~

What is the basic description of amixed-motive scenario?

Essentially it occurs when illegal and legitimate factors are used in making an employment decision.

Key Issues

Mixed-Motive Scenario (cont.)

1) What standard must the defense meet to establish that it used a legal factor?

• Preponderance of evidence vs. clear and convincing evidence

__________________________________________________________________Preponderance Clear and convincing Beyond a reasonable doubt 2) Does the illegal reason have to be a motivating factor or a substantial factor?

3) What evidence must be presented by the plaintiff, direct, indirect or either?

•Ann Hopkins, a senior manager, was passed over for promotion to partner in two successive years

– She proved that several partners (decision makers) made stereotypical sex-based derogatory remarks (e.g., her poor interpersonal skills could be “corrected by a soft-hued suit or new shade of lipstick,” she was “macho,” and she had been “overcompensated for being a woman”)

•Defence countered with proof that Hopkins was brash and abrasive and her contrary behaviour was the reason why she was not promoted (legal reasons)

Price Waterhouse v. Hopkins

•Lower courts ruled for Hopkins

Agreement:

• “Clear and convincing” evidence was the proper defence standard

• An illegal motive (e.g., sex) must be a motivating factor in the decision

-Disagreement on employer liability:

- District court: Liability exists regardless if the use of a legal motive is proven

- Court of Appeals (DC circuit): Defendant is NOT liable if legal motive is proven

Price Waterhouse v. Hopkins (cont.)

Price Waterhouse v. Hopkins (cont.)

Supreme Court decision:

• Proper defense standard for proving a legal motive is a “preponderance of evidence” (not “clear and convincing evidence” used by lower courts)

• Disagreement on whether an illegal motive (e.g., sex) must be a motivating factor or a substantial factor

• O ’Conner stated that proof of an illegal must be in the form of direct evidence (used by subsequent lower courts even though she was alone on the Court in this belief)

“… What is required is what Ann Hopkins showed here: direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.”

Note: Even though O’Conner was alone in requiring direct evidence, the majority of lower courts used this standard in mixed-motive cases

~ Civil Rights Act of 1991 ~

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices.

Except as otherwise provided in this subchapter, 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.

So, if company demonstrates that same decision would have been made regardless of the use of the impermissible factor, the remaining question is one of remedy not violation that is at issue

Costa was fired after getting into a fight with a male coworker

Costa provided indirect evidence that she was treated more harshly than her male coworker that she fought with, as well as other coworkers

The company said that she was terminated for being a repeat offender (and that the male she fought with was not)

Costa provided evidence of other men were treated less severely for offenses (e.g., being late, cursing) and had witnesses testify that she was targeted for intense stalking

Desert Palace Inc., v Costa

The District Court gave the jury the following mixed-motive instruction to the jury:

“ You have heard evidence that the defendant’s treatment of the plaintiff was motivated by the plaintiff’s sex and also by other lawful reasons. If you find that the plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason…. However, if you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.

Desert Palace Inc., v Costa (cont.)

The company contended that the Costa failed to provide “direct evidence” that sex was a motivating factor in her dismissal

Supreme Court ruled in Costa that direct evidence is not required for mixed-motive cases

“In order to obtain a [mixed-motive] instruction … a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.”

Desert Palace Inc., v Costa (cont.)

Phase 1: Proof by a preponderance of direct or indirect evidence that an illegal motive was a motivating factor in an employment decision

Phase 2: Proof by a preponderance of evidence that the employment decision made would have been made anyway in spite of the illegal motive

Phase 3: Proof by a preponderance of evidence that the reasons (evidence) offered by the defence are a pretext for discrimination

Mixed-Motive Scenario

~ Pattern or Practice

Discrimination ~

~ Pattern or Practice Discrimination ~[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

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 (composition statistics) or overrepresentation of minorities/women in less desirable jobs (cross-job disparities)

Phase 2: Defendant can use McDonnell–Burdine defense for pattern statistics; defense for individual claims generally follows McDonnell–Burdine rules

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 13Local 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 (1977)

More desirabl

e job

More desirabl

e job

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.

“ … 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

Hazelwood v. United States (1977)Summary of the statistics used in Hazelwood

Total teachers hired by the district ......................... 1231Total # 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, its AA plan raised hiring rates for minorities after 1972) when the “proper” relevant labor market was used

Wal-Mart v. Dukes (2011)

>>> Plaintiffs alleged system-wide sex discrimination regarding pay and promotion decisions at Wal-Mart

Plaintiff’s Evidence:

1) Study on the culture at Wal-Mart (ripe for gender discrimination)

• Senior management often refer to female associates as “little Janie Qs.

• One manager told an employee that “men are here to make a career and women arent.”

• A committee of female Wal-Mart executives concluded that “stereotypes limit the opportunities offered to women.”

• Wal-Mart permits those prejudices to infect personnel decisions, by leaving pay and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.”

2) Statistics:

• Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees

• The higher the organizational level, the lower the percentage of women

• Women working in the company’s stores “are paid

less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.

Wal-Mart v. Dukes (2011)

Wal-Mart v. Dukes (2011)

All 4 of the following must be met ---

Rule 23. Class Actions (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable,

(1) there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

In addition to Rule 23(a), one of the following must be met ---(b) Types of Class Actions.

A class action may be maintained if Rule 23(a) is satisfied and if:(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

*(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or [Note: This pertains to claims for injunctive or declarative relief; permits a purely statistical analysis for the merits of plaintiff’s class action claims and doesn’t allow the defendant to answer individual claims]

*(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: [Note: More difficult to meet; pertains to claims for monetary relief]

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Injunctive Relief: A court-ordered act or prohibition against an act or condition which has been requested; not a judgment for money

Declaratory Relief: A judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. The party making the request seeks an official declaration of the status of a matter in controversy.

Definitions

Wal-Mart v. Dukes (2011)

District Court: Approved class certification based on Rule 23 (a) and on Rule 23 (b) (2)

On appeal (to CA 9), Wal-Mart argued that the district court made 3 errors:

1) No proof of commonality and typicality – Rule 23(a)2) Using 23(b) (2) eliminated their opportunity to

respond to individual claims3) Rule 23 (b) (2) should not have been used since

claims for monetary relief predominated over injunctive and declarative relief

Court of Appeals (CA 9):

Three judge panel denied the appeal as did an en banc ruling (6-5)

Majority upheld claims for injunctive, declarative relief, and back pay under Rule 23(b) (2) but sent back to the lower court to determine whether punitive damages should be certified under 23(b) (2) or 23(b) (3)

Wal-Mart v. Dukes (2011)

Supreme Court Decision: • Majority failed to certify plaintiffs as a class. Commonality was not satisfied – Rule 23(a)(2)

• Unanimous that Rule 23(b) (2) was inappropriate to use; monetary claims far predominated over injunctive and declarative relief

Dissent: “Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.” The Rule “does not require that ALL questions of law or fact raised in the litigation be common,” indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement,”Believed the case should be sent back to lower court to determine if class certification is possible using rule Rule 23(b) (3)

Wal-Mart v. Dukes (2011)

General Implications:

1) Class certification claims for large monetary awards that fail to offer defendant opportunity to evaluate/address individual claims are “losers” (DOA)

2) For suits of this nature, Plaintiffs need to present some identifiable employment practice or policy that affects the class in the same or similar manner (e.g., commonality requirement)

Wal-Mart v. Dukes --- Update

• News on Wal-Mart v. Dukes (deadlines for suits)

• Role of the OFCCP on pay discrimination?

Secretary of Labor Hilda L. Solis in her address to the 22nd convention of the National Employment Lawyers Association (NELA) on July 1, 2011:

Here's an important point: The Supreme Court's Wal-Mart ruling was limited to class actions under Rule 23 of the Federal Rules of Civil Procedure. But my department's efforts to eliminate workplace discrimination in America don't depend on this rule. …. We enforce an executive order that says federal contractors can't discriminate. We have oversight over any company doing at least $10,000 of government business a year. This means that Pat's office can obtain class-wide relief for victims of pay discrimination without having to file a class action lawsuit. … The Wal-Mart decision won't affect our ability to address pay disparities on a broad scale — even if our lawyers have to tweak some of their legal arguments based on the reasoning used in that case.

• Also, emphasized DOL’s commitment to seek remedies for pay discrimination against women and minorities and promised to increase the percentage of pay investigation from 14% in the preceding year to 20 to 40% going forward.

Other comments by the Secretary of Labor:

• Obama administration remains committed to the Paycheck Fairness Act (failed by two votes in Congress last year.)

Promised to:

• Close loopholes that give employers unjustified defenses to discrimination • Strengthen the ban on retaliation against those who complain about unequal pay

• Rescind Bush-era guidelines preventing effective enforcement of equal pay laws • Create more flexible workplaces so women don't have to choose between motherhood and a fulfilling care

• Enforce a new provision in the Affordable Care Act that guarantees break time for nursing mothers.