Title 7: Background, Coverage, Proving Discrim., &
Background of Empl. Discrim.
- Gen. Rule: C/L @ Will Empl.
- Exceptions Through Stt's
- Alexander v. Gardner
- Parallel & overlapping remedies b/c Title
7 coexists w/other stt's
- Can't have prospective waiver / waive indiv.
Coverage of Title 7
- Empl. Rel.'s
- Need 2 Show Empl. Rel. Somewhere 2 B Covered
- Person w/15 / more ee's 4 each working day 4
20 / more wks
- US / fed. ee's
- Indian tribe
- Bona fide priv. membership clubs
- Agent of Er / Supervisor
- Trad.'ly supervisor is ee so not liab.
- But recently, indiv'ly liab. 4 sex harassment
in pub. sector
- Ee's v. Indep. K'or
- Ee is whoever is on Er's payroll, not phys'ly
- Econ. realities test on issue of control det.'s,
- Empl. Agency
- Er can't restrict empl. opp. in ads
- Empl. Dec.'s
- Dec. 2 Make Partn.
- Partn. prom. is benefit & priv. of empl.
so can't discrim.
- Er Can Discrim. Against Aliens
- Nonprofit Relig. Org. as Er (§702)a)
- Total exemption ok's discrim. based on anything
4 heart of relig. dec.'s
- Partial exemption ok's only 4 relig. discrim.
- If on its face, convincing relig. discrim. evid.,
EEOC can't investig. further
- Can discrim. nonprofit nonrelig. activity / recreation
based on relig. belief, but probably not 4 prof. activity
- Title 7 Not Obligate Preference
- Disparate Treatment (§703)a)1)
- Need Intent
- Finding of fact
- Can B lack of uniform applic. / discrim. applic.
of facially neutral pract. Section 706)g)1 only § 2 use
- Indiv'al Disp. Treatment
- Structure of Proof
- Prima Facie Case (PFC) by P
- Member of protected class
- Race, color, nat'l origin, gender, / relig.
- Not have 2 B min. / woman 2 sue
- Qualified ee
- Adverse axn
- Can sue 4 promotion w/o vacancy posting if informal
- Must prove there was a job 4 hiring case
- Applic. of similar qualif. hired / promoted
- Er's B/prod. of Evid. / Rebuttal
- Legit. nondiscrim. rsn 4 adverse axn
- Subj. eval. / rsns ok
- Pretext w/Ultimate B/P on P
- P must re-est. after D rebuts 2 show rsn is pretext
- Change of rsn good pretext
- Stat's imp. but not controlling
- Any PFC evid. also 4 pretext
- If er's rebuttal is subj., P can prove pretext
ez'er 4 blue collar but not 4 white collar
- Single motive
- Indir.'ly prove er's rsn isn't credible /
- Disprove all er's rsn +
- Prove er motivated by prejud. as rsn
- Mixed motive
- Dir.'ly prove discrim. rsn is more likely the
- Prove a motivating factor (1991 amend.
- Aff. def. 4 er in remedy §702)g)2)B so that
wouldn't need 2 pay any damages
- Sys. Disp. Treatment
- Gross stat disparities 2 infer intent
- Qualified labor force v. er's workforce
- Qualified labor pool is people w/that skill
- Can infer intentional discrim. 4 SD of 2 / 3
but no litmus test
- Look @ stat over 5 / 10 yrs. of hires
- Need 2 control 4 skill level & geog. area
- Indiv. disp. treatment cases / specif. case
- Other relev. evid.
- History of racial discrim.
- Stand.'less hiring proced.
- Rebuttal by showing stat. inaccurate / insig.
- Alt. nondiscrim. explanation
- Disparate Impact
- No Need 4 Intent
- Facially neutral policy has disp. impact on protected
- Can't freeze result of prior empl. discrim.
- For large # of people b/c if small #, stat.'ly
- Structure: §703)k
- P demo's specif. pract. / entire process (if
elements Rn't capable of sep.) causes disp. impact on protected
- Pract. could B subj.
- If success rate of disadv.'ed group is lwr than
80% of top group, then adverse impact
- Er's Aff. Defense
- Er. demo's that job rel.'ed + consistent w/busi.
- Show pract. is nec. 2 meet imp. busi. goal
- Ee's safety as busi. nec. proven by expert testi.
- Bottom line / overall result is no defense 2
disp. impact by specif. process
- Validating tests 4 job rel.'edness
- Criterion rel.'ed: hire ee's 1st 2 see how well
- Content: like typing test 2 see speed
- Construct: test abstract qualities / trait imp.
4 good job perf. like LSAT
- Can't validate by giving tests only 2 skilled
- P demo. alt. pract. has less discrim. effect
+ er. refused 2 adopt
- Banding is hiring top #'s regardless of ranking
- Can add extra pts 4 veterans but not 4
- City residents
- Retaliation: §704)a
- Can't Retaliate Against Ee 4
- Opposing unlawful pract. /
- Partic.'ing in any investig., prcg, & hrg
by testifying, assisting, / charging
- Incl's refusing 2 partic. / testifying 4 co.
- Incl's relatives / best friends
- Structure 4 Opposition Case
- Stt'ly protected exp.
- Rsbl belief that er. viol.'ed
- Rsbl form / manner of exp'ing opposition
- Adverse axn
- Causal link btwn  &  by
- Er's knowledge
- X btwn  & 
- Er has B/prod.: Rebuttal
- Proved applied +
- Er's rsn was his opposition
- Er Can't
- Fire ee if ee's exp. not interrupt work &
- Fire ee 4 disloyalty alone
- Retaliate against former ee
Stt Defenses 2 Title 7 Cases
- Bona Fide Sen. Sys.
- Sen. Dates
- Co. sen. date when start 2 work 4 co. 4 vacation
- Barg.'ing unit sen. date when start 2 work 4
that group 4 competitive bid, etc.
- Bona Fide Sen. Sys. as Abs. Defense 4 Er:
- Q / quality of prod.
- Bona Fide / Adopted W/O Intent 2 Discrim. by
- Applies ='ly 2 all race / ethnic group
- Rational / by ind. pract.
- Not genesis in racial discrim.
- Maintained free from illegal purpose
- Bona Fide Occupational Qualification:
- Er's Aff. Defense: Rsbl Nec. 2 Normal Operation
of Partic. Busi.
- When Er adm'ed 2 discrim.
- Available 4 all classif. except race
- Job / duty @ issue go 2 essence of busi. +
- All / subst'ly all of excl'ed members can't perf.
- Impossible 2 do indiv. testing 4 age
- Not Defense Gen'ly
- Customer pref.
- Exception in for. culture 4 beheading
- Cost unless cost so prohibitive that threatens
survival of busi.
- Gender 4 guards in male prison
- Accepted Defense
- Privacy 4 nursing home, not 4 prison
- Women guards 4 women prison
This material is copyrighted by the author. Use of the material
for profit is strictly prohibited without written permission
from the author.
May 4, 1997
Ms. Haeji Hong
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