Title 7: Background, Coverage, Proving Discrim., & Stt. Defenses

Background of Empl. Discrim.

  1. Gen. Rule: C/L @ Will Empl.
  2. Exceptions Through Stt's
  3. Alexander v. Gardner
    1. Parallel & overlapping remedies b/c Title 7 coexists w/other stt's
    2. Can't have prospective waiver / waive indiv. rts

Coverage of Title 7

  1. Empl. Rel.'s
    1. Need 2 Show Empl. Rel. Somewhere 2 B Covered
    2. Def.'s
      1. Er.
        1. Person w/15 / more ee's 4 each working day 4 20 / more wks
        2. Excl's
          1. US / fed. ee's
          2. Indian tribe
          3. Bona fide priv. membership clubs
      2. Agent of Er / Supervisor
        1. Trad.'ly supervisor is ee so not liab.
        2. But recently, indiv'ly liab. 4 sex harassment in pub. sector
      3. Ee's v. Indep. K'or
        1. Ee is whoever is on Er's payroll, not phys'ly working
        2. Econ. realities test on issue of control det.'s, not label
      4. Empl. Agency
        1. Er can't restrict empl. opp. in ads
  2. Empl. Dec.'s
    1. Dec. 2 Make Partn.
      1. Partn. prom. is benefit & priv. of empl. so can't discrim.
  3. Exemptions
    1. Er Can Discrim. Against Aliens
    2. Nonprofit Relig. Org. as Er (702)a)
      1. Total exemption ok's discrim. based on anything 4 heart of relig. dec.'s
      2. Partial exemption ok's only 4 relig. discrim.
        1. If on its face, convincing relig. discrim. evid., EEOC can't investig. further
        2. Can discrim. nonprofit nonrelig. activity / recreation based on relig. belief, but probably not 4 prof. activity

Proving Discrim.

  1. Title 7 Not Obligate Preference
  2. Disparate Treatment (703)a)1)
    1. Need Intent
      1. Finding of fact
      2. Can B lack of uniform applic. / discrim. applic. of facially neutral pract. Section 706)g)1 only 2 use "intent"
    2. Indiv'al Disp. Treatment
      1. Structure of Proof
        1. Prima Facie Case (PFC) by P
          1. Member of protected class
            1. Race, color, nat'l origin, gender, / relig.
            2. Not have 2 B min. / woman 2 sue
          2. Qualified ee
          3. Adverse axn
            1. Can sue 4 promotion w/o vacancy posting if informal
            2. Must prove there was a job 4 hiring case
          4. Applic. of similar qualif. hired / promoted
        2. Er's B/prod. of Evid. / Rebuttal
          1. Legit. nondiscrim. rsn 4 adverse axn
          2. Subj. eval. / rsns ok
        3. Pretext w/Ultimate B/P on P
          1. P must re-est. after D rebuts 2 show rsn is pretext
            1. Change of rsn good pretext
            2. Stat's imp. but not controlling
            3. Any PFC evid. also 4 pretext
            4. If er's rebuttal is subj., P can prove pretext ez'er 4 blue collar but not 4 white collar
          2. Single motive
            1. Indir.'ly prove er's rsn isn't credible /
            2. Disprove all er's rsn +
            3. Prove er motivated by prejud. as rsn
          3. Mixed motive
            1. Dir.'ly prove discrim. rsn is more likely the motive
            2. Prove a motivating factor (1991 amend. 703)m)
            3. Aff. def. 4 er in remedy 702)g)2)B so that wouldn't need 2 pay any damages
    3. Sys. Disp. Treatment
      1. Structure
        1. PFC
          1. Gross stat disparities 2 infer intent
            1. Qualified labor force v. er's workforce
            2. Qualified labor pool is people w/that skill
            3. Can infer intentional discrim. 4 SD of 2 / 3 but no litmus test
            4. Look @ stat over 5 / 10 yrs. of hires
            5. Need 2 control 4 skill level & geog. area
          2. Indiv. disp. treatment cases / specif. case
          3. Other relev. evid.
            1. History of racial discrim.
            2. Stand.'less hiring proced.
        2. Er
          1. Rebuttal by showing stat. inaccurate / insig.
          2. Alt. nondiscrim. explanation
  3. Disparate Impact (703)a)2)
    1. No Need 4 Intent
      1. Facially neutral policy has disp. impact on protected group
      2. Can't freeze result of prior empl. discrim.
      3. For large # of people b/c if small #, stat.'ly insig.
    2. Structure: 703)k
      1. PFC
        1. P demo's specif. pract. / entire process (if elements Rn't capable of sep.) causes disp. impact on protected group
        2. Pract. could B subj.
        3. If success rate of disadv.'ed group is lwr than 80% of top group, then adverse impact
      2. Er's Aff. Defense
        1. Er. demo's that job rel.'ed + consistent w/busi. nec.
          1. Show pract. is nec. 2 meet imp. busi. goal
          2. Ee's safety as busi. nec. proven by expert testi.
        2. Bottom line / overall result is no defense 2 disp. impact by specif. process
        3. Validating tests 4 job rel.'edness
          1. Criterion rel.'ed: hire ee's 1st 2 see how well ee's do
          2. Content: like typing test 2 see speed
          3. Construct: test abstract qualities / trait imp. 4 good job perf. like LSAT
          4. Can't validate by giving tests only 2 skilled / white
      3. Pretext
        1. P demo. alt. pract. has less discrim. effect + er. refused 2 adopt
    3. Tests
      1. Banding is hiring top #'s regardless of ranking on tests
      2. Can add extra pts 4 veterans but not 4
        1. City residents
        2. Min.
  4. Retaliation: 704)a
    1. Can't Retaliate Against Ee 4
      1. Opposing unlawful pract. /
      2. Partic.'ing in any investig., prcg, & hrg by testifying, assisting, / charging
        1. Incl's refusing 2 partic. / testifying 4 co.
        2. Incl's relatives / best friends
    2. Structure 4 Opposition Case
      1. PFC
        1. Stt'ly protected exp.
          1. Rsbl belief that er. viol.'ed
          2. Rsbl form / manner of exp'ing opposition
        2. Adverse axn
        3. Causal link btwn [1] & [2] by
          1. Er's knowledge
          2. X btwn [1] & [2]
      2. Er has B/prod.: Rebuttal
      3. Pretext
        1. Proved applied +
        2. Er's rsn was his opposition
    3. Er Can't
      1. Fire ee if ee's exp. not interrupt work & job perf.
      2. Fire ee 4 disloyalty alone
      3. Retaliate against former ee

Stt Defenses 2 Title 7 Cases

  1. Bona Fide Sen. Sys.
    1. Sen. Dates
      1. Co. sen. date when start 2 work 4 co. 4 vacation leave, etc.
      2. Barg.'ing unit sen. date when start 2 work 4 that group 4 competitive bid, etc.
    2. Bona Fide Sen. Sys. as Abs. Defense 4 Er: 703)h
      1. Sen.
      2. Merit
      3. Earnings
      4. Q / quality of prod.
    3. Bona Fide / Adopted W/O Intent 2 Discrim. by Factors
      1. Applies ='ly 2 all race / ethnic group
      2. Rational / by ind. pract.
      3. Not genesis in racial discrim.
      4. Maintained free from illegal purpose
  2. Bona Fide Occupational Qualification: 703)e)1
    1. Er's Aff. Defense: Rsbl Nec. 2 Normal Operation of Partic. Busi.
      1. Narrow
      2. When Er adm'ed 2 discrim.
      3. Available 4 all classif. except race
    2. Structure
      1. Job / duty @ issue go 2 essence of busi. +
      2. All / subst'ly all of excl'ed members can't perf. job /
      3. Impossible 2 do indiv. testing 4 age
    3. Not Defense Gen'ly
      1. Customer pref.
        1. Exception in for. culture 4 beheading
      2. Cost unless cost so prohibitive that threatens survival of busi.
      3. Gender 4 guards in male prison
    4. Accepted Defense
      1. Privacy 4 nursing home, not 4 prison
      2. 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

Go Back to Law School Notes
1