Employment Discrimination

703(h)

703(h) differentials created by bona fide seniority systems are insulated from challenge if they are “not the result of an intention to discriminate because of race, color, religion, sex, or national origin”; a seniority system is bona fide if "it is neutral on its face" (Teamsters);
Test (Pullman-Standard, Ct 1982, CB 195): “a finding of actual intent to discriminate on racial on the part of those who negotiated or maintained the system” Factors to consider for whether system is bona fide:
§ 1. Whether the system applies equally to everyone § 2. Follows bargaining unit seniority system (if the ER does no go along with bargaining unit seniority system that may be an indicator they are doing something fishy) § 3. Whether genesis of the seniority system was discriminatory § 4. Whether seniority system was negotiated and has been maintained free from any illegal purpose § 5. Focus on custom: is this a typical type plan? Is it fairly common? If so, it is probably bona fide; but if it is unusual, then they better have a good reason for something that goes against custom (Brewers Ass'n: focus on "commonly accepted notions of the contours of a seniority system") § 6. Timing (In class hypo): if the seniority system was passed a month before the enactment of TVII then we might want to look for evidence of a discriminatory motive. Perhaps past discrimination would be evidence of a discriminatory motive.

o 1. Promote long term commitment to the firm: encourage works to acquire skills, to train newcomers without fear of replacement, continue to work hard to gain deferred benefits o 2. Operate to limit the discretion of management and provide a relatively neutral means of resolving the competing interests of their members o 3. Works feel the rules are legitimate because they are based on a criterion (length of service) that confirms the work of the past and which offers greater security to all workers who remain in the firm

o seniority awards are appropriate under the remedial scheme of TVII in certain circumstances based on discretion of judge (Franks) o nonapplicant may receive an award of retroactive seniority, but he must show that he was a victim of the unlawful discrimination (heavy burden): § Must show he would have applied for the job if it had not been for those practices § Must show he was qualified (Teamsters)

· 1. EE must show Prima Facie Case: EE has burden of persuasion throughout o A. EE belongs to a protected class § Not necessarily a minority (see CB 28, N 3: white employees can challenge adverse treatment on account of race, McDonald) § Sexual orientation is not a protected class o B. EE applied and was qualified for a job for which the ER was seeking applicants § This is not litigated often § EE does not have to show that he was the most qualified; just that he met the qualifications o C. Despite that qualification, he was rejected; or, broadly, there was an adverse employment action § TVII protects EEs from ER actions that are “materially adverse” (Burlington, CB 28 N5) o D. After rejection the position remained open and the ER continued to seek applicants from persons of complainant’s qualifications § does not mean the position is open forever; just means that the ER did not eliminate the position § In a termination case, there is no part D · 2. ER must produce a legitimate nondiscriminatory reason for action (LNR) o Has to be legitimate and nondiscriminatory § Legitimate means not illegal (i.e. ER could refuse to hire a person because he was gay); simply means a reason not prohibited by TVII (i.e. ER could say he didn’t hire because EE was old, but then might face an ADEA claim) § Does not have to prove that it was actually motivated by the proffered reasons (i.e. can say astrologer told you so even if you have never been to an astrologer) (Burdine) o Burden of production (do not call burden of persuasion or burden shift): practically an ER rarely cannot meet this burden (Burdine) § Important step though because it narrows the issues and gives the ER something to respond to o ER does not have to show that the persons hired were more qualified, do not have to give protected class preferential treatment, just have to be colorblind (Burdine) · 3. EE must ultimately show that the reason for the adverse action was discrimination! o Show this by either: § (1) pretext or § (2) ER’s proffered explanation is unworthy of credence § Burdine: “P must now have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence” § Unworthy of credence: the fact that an ER’s explanation is unworthy of credence can be enough (with PF case) to sustain finding of discrimination (Reeves): “Proof that the D’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . Once the ER’s justification has been eliminated, discrimination may well be the most likely alternative explanation” ú Whether this is enough depends on (Reeves): strength of the P’s PF case, probative value of the proof that ER’s explanation is false, other evidence that supports the ER’s case and that properly may be considered on a motion for judgment as a matter of law

"On account of religion" mean all aspects of religious observance and practice, as well as belief" Requires ER to make reasonable accommodation for EE's religious observance or practice (TWA)Reasonable Accommodation: does not have to be the most ideal, just reasonable (Ansonia)UNLESS ER can show undue hardship: means more than de minimis cost

Corporations/Associations: must have a primary religious purposeSchools: ER is owned in whole or substantial part by a particular religionMinisterial exception: primary duties consist of "teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship"

Focus must be on individual and not the the group; Longevity may be the determinate factor, but age may not be used as a proxy for longevity unless there is no other way to measure longevity

Key is to look at whether the difference is a burden on one sex or another, if it is an added benefit only one sex can enjoy there is probably not adverse employment action (unless there is a distinction between men and women in the same category)

1. The ER has a stereotypical view AND2. The ER engaged in an adverse employment action because of that view
Ask: if this person were a diff race, gender, religion, would they have been treated the same? if No, that is a problem!

1. P must establish a disparate treatment claim (If no DI then no need for defense)2. Burden of proof shifts to the ER to establish affirmative defense: the defense permits discrimination in certain instances where sex discrim is reasonably necessary to the normal operation of the particular business; job qualification must be related to the essence or the central mission of the ER's businessAnd Weeks "substantially all" test: 1. ER must establish reasonable cause to believe that all or substantially all persons of the class would be unable to perform safely and efficiently the duties of the job OR2. The protected class was a legitimate proxy for safety-related qualifications by providing that it is "impossible or highly impractical" to make individualized assessments of the qualification of the workers

1. Quid pro quo: this for that 2. Hostile Work environment: altering work conditions or requiring people to work in a discriminatorily hostile or abusive environment

1. EE perceives abusive environment2. Reasonable person (in the shoes of the P) perceives hostile or abusive environment (no need to be pscychologically injurious)
Factors:FrequencyPhysically threatening or humiliating? Unreasonably interferes with EE's work performancePsychological harm may be taken into accountSeverityFUPPS

Punitive damages are only available when P can show reckless indifference and malice as to the ER's egregious behavior: must be knowingly and recklessly violating the statute

1. ER must show that it acted with reasonable care to prevent and correct promptly any harassing behaviorPossible ways to show: attempts to mitigate harm through harassment policy (notice is impt) and complaint procedures, address complaints brought under procedures2. AND the ER must prove the P's unreasonable failure to take advantage of the preventative or corrective opportunities provided by the ER or to otherwise avoid harmNB: NOT available when the ER offense culminates in a tangible employment action (available if no change to the terms and conditions of employment)