Stetson University

Employment Discrimination Law

Professor: Robert D. Bickel
E-mail address: bickel@law.stetson.edu
Office: E-203

This online syllabus and Course Page is intended to facilitate classroom discussion in my foundations course on the subject of Employment Discrimination Law.  It is not intended to provide legal advice to employers, current or former employees or applicants for employment.  Although I appreciate interest in the course page from all persons interested in the subject, I do not respond to inquiries from persons who are pursuing cases, nor do I make referrals to law firms.

Required Text:

Avery, Ontiveros, Corrada, Selmi and Hart, Employment Discrimination Law: Cases and Materials on Equality in the Workplace (8th Edition), with current supplement and statutory supplement


Course Description

As Professors Friedman and Strickler observe, the course is attractive to students because it subsumes "issues steeped in social policy considerations."  The specific goals of the course are: to expose students to the legislative history of the employment opportunity provisions of the 1964 Civil Rights Act and to then focus upon the substantive remedial federal law; to discuss the public policy of laws prohibiting employment discrimination; and to examine how the federal enforcement agency and federal courts function in this special field. 

This course does not cover Florida Statutes, Chapter 760, establishing The Florida Commission on Human Relations, or state law claims under the employment discrimination laws of any particular state.

Class Preparation

One of the strengths of the Casebook is the effective use of text, case digests and note materials.  Each assignment contemplates that students will read the text, cases and note materials that are presented, and which are inter-related.  These materials are equally important, and should be approached as equally important when reading, making a personal study guide, and preparing for class discussion.  In class, we will emphasize the general discussion of the statutory law, judicial interpretation of "discrimination" in the context of employment (including judicial deference to the process of administrative enforcement and the expertise of the enforcement agency), and the analytical approach to employment discrimination cases.  We will not "brief" each case per se, but will assume that students are sufficiently prepared for a critical general discussion of the materials, focusing on the foundation of the subject (and thus the most significant or essential aspects of the assigned cases and materials).  Because it is important to survey most of the topics presented in the Casebook, we will emphasize efficiency and effectiveness, and avoid detailed, redundant, or individual desires to pursue particular subjects in lieu of a general coverage of the general subject of Employment Discrimination Law.  

It is assumed that each student will be well prepared for class discussion.  Students will be graded based on their performance on an anonymously graded comprehensive "take-home" final examination, drawing upon the assigned readings.  The assigned readings include a discussion of the history and foundations of the principle of nondiscrimination, and the policy, theory and analytical framework of federal employment discrimination laws and cases.  The instructor will assist in the class discussion of the subject, but students are expected to generally contribute to the discussion of all assigned materials, and contribution to class discussion may be considered as a factor in the student's final grade.  Grades will, of necessity, be governed by the College's current grading policies, including any required grade normalization policy.

Dedication

This course is dedicated to those who gave their lives during the struggle for equality and civil rights.  Leaders and foot soldiers of the Civil Rights Movement were unlawfully beaten, jailed and killed in an attempt to prevent the enactment of fundamental civil rights laws that many of us now take for granted.  We owe them our promise that, in advising our clients - whether complainants or employers - we will never take for granted or abuse the laws for which we are the gatekeepers - and that our ultimate work will be dedicated to the advancement of civil rights.

Reflections

In the 1960's, Dr. Martin Luther King, Jr. commented frequently upon his belief in the relationship between the direct action campaign for racial equality, and the role of the law in sustaining and advancing social justice.  In one of many commentaries, he both observed this relationship and cautioned us about where we stood and the direction we would be required to follow:

"Direct action is not a substitute for work in the courts and the halls of government.  Bringing about the passage of a new and broad law by a city council, state legislature or the Congress, or pleading cases before the courts of the land, does not eliminate the necessity for bringing about mass dramatization of injustice in front of a city hall.  Indeed direct action and legal action complement one another [and] when skillfully employed, each becomes more effective.  Overwhelmingly, America is still struggling with irresolution and contradictions.  It has been sincere and even ardent in welcoming some change.  But too quickly, apathy and disinterest rise to the surface when the next logical steps are to be taken.  Laws are passed in a crisis mood after a Birmingham or a Selma, but no substantial fervor survives the formal signing of the legislation.  The recording of the law in itself is treated as the reality of the reform.  Justice for black people will not flow into society merely from court decisions nor from the fountains of political oratory.  The comfortable, the entrenched, the privileged, cannot continue to tremble at the prospect of change in the status quo.  When millions of people have been cheated for centuries, restitution is a costly process.  Inferior education, poor housing, unemployment, inadequate health care - each is a bitter component of the oppression that has been our heritage.  Each will require billions of dollars to correct.  Justice so long deferred has accumulated interest and its cost for this society will be substantial in financial as well as human terms.  This fact has not been fully grasped, because most of the gains of the past decade were obtained at bargain rates.  The desegregation of public facilities cost nothing; neither did the election and appointment of a few black public officials * * * "

In 2003, in Chapter 1 of his Foundations text on the subject of Employment Discrimination Law, Professor John Donohue observes: "The notion that discrimination in employment on the basis of race and sex is and should be prohibited by law is so deeply ingrained in the modern consciousness that challenges to this view may seem bizarre.  Prior to WWII however, the idea would have seemed equally strange that the federal government could tell private employers…that they must hire certain, albeit fully qualified, workers instead of some other preferred group of workers.  Indeed, this profound shift in the public's perception of the appropriate role of law represents one of the major developments in legal consciousness since the Civil War * * * With the possible exception of Native Americans, no racial or ethnic group in America has experienced such sustained and appalling treatment, and therefore has a stronger claim than blacks to compensatory and corrective governmental measures.  The calculated oppression of black Americans by governmental bodies is not the product of some distant past but continued in some virulent form at least until the mid-1960's, when the legislative and executive branches of the federal government finally joined the Supreme Court in trying to aid blacks with various antidiscrimination and affirmative action measures.  In the current political debate over affirmative action, it is at times alarming to see how little of the appalling history is still remembered, and how quickly the notion has gained currency that the moral debt to a people enslaved and then oppressed and degraded has been paid by 30 years of relatively even-handed and in some cases preferential treatment."

EEOC website: Students may access the website of the United States Equal Employment Opportunity Commission at www.eeoc.gov

Introduction to the problem of discrimination in employment and basic employment discrimination law theory:

  • (1 Class) Read Casebook, Chapter 1: Race and the Meaning of Equality in the Workplace; then consider the legislative history of Title VII of the Civil Rights Act.  (Click on the following titles to access the readings and PowerPoint on the legislative history of Title VII):

» Title VII: Legislative History

» Legislative History Power Point

  • (2 Classes) Read Chapter 2.  (Click on the following prompt to access the professor's PowerPoint on the subject of Chapter 2):

» Chapter 2 Power Point

» General chart of EEOC Charge Process

  • (1 Class) Note related to readings beginning with Chapter 3:  The assigned readings will reveal the extent to which the United States Supreme Court recognizes the Equal Employment Opportunity Commission's interpretation of the statutes it has been charged with enforcing.  Click on the prompt below and read Professor Melissa Hart's article, and as you read the cases throughout the course, consider her thesis that the Court has refused to reach consensus on the question of judicial deference to EEOC regulations, with certain justices preferring to retain a broad and undefined discretion to accept or reject agency analysis.  The concept of administrative deference is an important part of your study of administrative law in the context of this course, and you should consider this aspect of your readings throughout the course.

» Skepticism and Expertise: The Supreme Court and the EEOC

74 Fordham L. Rev. 1947 (2006)

The authors describe the litigation campaign that led to Brown v. Board of Education, as influencing the litigation strategy which later characterized early employment discrimination law.  The strategy involved the filing of large numbers of cases under Title VII and Section 1981 of the Civil Rights Act, a monitoring system - to identify cases, issues, and industries - that suggested a systematic law reform approach, and the use of class action litigation.  This strategy eventually resulted in the United States Supreme Court's consideration of Griggs v. Duke Power Company.  The authors properly characterize Griggs v. Duke Power Co. as perhaps the most important civil rights case since Brown v. Board (See Chapter 4, Note 1 following Griggs).  The story of the litigation strategy that led to Brown I, and the campaign for law reform is the subject of Professor James Patterson's important book, "Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy" (Oxford University Press, 2001).  For a general discussion of the nature and extent of racial prejudice, see Donohue, Chapter 5.

  • Part 2: Theories of Discrimination and Analytical Paradigms.  The development of disparate treatment (intentional discrimination) theory and the burden of proving motive: (2 Classes) Read Chapter 3, Section A, Introduction, The meaning and theories of discrimination [Note especially the summary of these theories in Teamsters v. United States, and their identification with §§ 703(a)(1) and 703(a)(2) of Title VII of the Civil Rights Act of 1964, 42 U.S.C., §§ 2000e-2(a)(1) and (2).  Read the Introduction to Section B and then consider the "single motive/pretext" cases (McDonnell-Douglas Corp. v. Green; Furnco Construction Company v. Waters; Texas Department of Community Affairs v. Burdine; St. Mary's Honor Center v. Hicks), and all note materials, including the note materials summarizing Reeves v. Sanderson Plumbing.
  • (1 Class) Read Chapter 3, Section 2, Mixed motive cases and the Civil Rights Act of 1991.  Professor Melissa Hart argues that until the Supreme Court's decision in Desert Palace v. Costa, federal courts tended to perpetuate a definition of disparate treatment which requires an "either-or" finding on the question of the honesty or falsity of an employer's asserted reasons for its employment decision regarding the plaintiff (applicant, employee or former employee).  This "either-or" perspective of intent, Professor Hart argues, is inappropriately restrictive in cases involving subjective decision-making by an employer, because it suggests that only overtly biased (indeed bigoted) decisions - decisions which are the product of a readily apparent "bad motive" - are subject to Title VII relief.  Such a perspective, she suggests, is inconsistent with a proper reading of Title VII, and scholarly literature.  More specifically, Professor Hart suggests that recent judicial decisions express concern about employment decisions which are based, not upon overt racial or gender bias, but upon unexamined assumptions about others that the decision-maker may not even be aware of - thus making it difficult to reveal discrimination as a "motivating factor."  Professor Hart argues that recent sociological and psychological studies show that discriminatory biases and stereotypes are pervasive, even among well-intentioned persons, and that the employment decision-making process may be significantly influenced by the unconscious bias of employers whose conscious belief is that people should have equal social, political and economic opportunities.  If this is true, Professor Hart observes, it is not inconsistent to suggest that an employer might choose a candidate for employment who is perceived to be the "best" candidate, in the context of a selection process that is, in fact, discriminatory.  Resolving this unwarranted characteristic of the "either-or" test for motive (and thus disparate treatment), the Court's decision in Desert Palace creates the opportunity for a court to find that an employment decision can be both "honest" and yet influenced by the existence of discriminatory motive.  In other words, the Court's reconsidered view of the proper analytical approach to mixed-motive cases in Desert Palace permits a finding that an employer honestly believed it was relying on nondiscriminatory reasons, when in fact, other evidence points to race or gender bias in the selection process.  See Melissa Hart, "Subjective Decision-making and Unconscious Discrimination," 56 Alabama Law Rev. 741 (2005).
  • (1 Class) Read the cases and note materials in Chapter 3, Section C, Retaliation.  Note:  Chapter 3, Section D presents a brief commentary on early prominence of "pattern or practice" jurisprudence, and the issue of class certification.  Recent scholarship has renewed the importance of class actions challenging systemic discrimination and the successful settlements in publicized cases involving Texaco, Coca-Cola, Home Depot, Shoney's, and State Farm Insurance.  EEOC remains interested in pattern or practice cases and the importance of judicial approaches to class certification, because class certification is critical to the most effective aspect of Title VII enforcement.  The scientific aspects of these cases is traditionally given only minimal coverage in casebooks, and the impact of these cases is revealed by the success of settlements, once class certification is obtained. 
  • (2 Classes) Read Chapter 4 on the theory of Disparate Impact (Section 703(a)(2) of Title VII), noting the seminal importance of Griggs v. Duke Power and its reaffirmation in the language of the 1991 Civil Rights Act, the analytical framework of disparate impact cases, and the ultimate concern of the law that criteria that eliminate applicants or employees from jobs or promotions be bona fide.  Omit Wards Cove Packing Co. v. Atonio, and instead read Note 2, page 252-254; then consider the Lanning cases and Ricci v. DeStefano as examinations of the "business necessity" defense and the affirmative use of disparate impact analysis.

                                                    
    Chapter 4 Power Point
     Click on Title to Access Power Point
  • Note: Race discrimination in employment and Section 1981 of the Reconstruction Era Civil Rights Acts: Following the Civil War, Congress enacted the Civil Rights Act of 1866 to make clear that black Americans were entitled to the guarantees of national citizenship, including contract and property rights, access to courts and equal protection of the laws.  Following the passage of the Fourteenth Amendment (See Statutory Supplement, Page 1), Congress reaffirmed these rights and passed the Civil Rights Act of 1866, 42 U.S.C. § 1981 (See Statutory Supplement, pages 2-5).  Section 1981 has been read and applied to prohibit intentional discrimination on the basis of race in employment.  In Washington v. Davis, the Supreme Court held that the Fourteenth Amendment supports a claim by public employees against a public employer (there the District of Columbia Metropolitan Police Department) alleging purposeful (intentional) discrimination based on race.  The Court held that a showing of disparate impact could in certain circumstances support a finding of purposeful discrimination based on race, but that, absent such circumstances, an allegation of disparate impact, per se, should be the subject of a Title VII claim.  In General Building Contractors Association v. Pennsylvania (a case brought against Local 542 of the International Union of Operating Engineers, challenging the operation of a hiring hall under a contract between the union and construction industry employers), the Supreme Court held that Section 1981 is applicable to claims of intentional discrimination based on race in employment (conduct motivated by a discriminatory purpose).
  • Part 3, Specific Categories of Discrimination.  (2 Classes) Read Chapter 7, Discrimination Because of Sex, emphasizing the historical overview, the definition of sex (discrimination "because of sex"), stereotyping theory, and the extent to which sex may be, directly (as a matter of policy) a bona fide occupational qualification, or the extent to which bona fide occupational qualifications may disproportionately exclude women from jobs or promotions. 

>> WAL-MART STORES v. DUKES 131 S. Ct. 2541 (2011)
[Click on citation to access the Professor's edited version of the opinion of the Court]

  • (1 Class) Read Chapter 8, Discrimination Because of Pregnancy and Family Responsibilities, noting the persistence of pregnancy-based disadvantageous treatment based on gender, and the emerging concern that family responsibilities, including caregiving, not be the subject of gender-biased disadvantageous treatment.  Note also the emergence of the requirement of affirmative accommodation as an aspect of nondiscrimination.
  • (1 Class) Read Chapter 9, Discrimination Because of Sexual Orientation, Gender Expression, and Gender Identity, noting the continuing history of proposals for federal statutory protection against discrimination (including harassment) directed at lesbian, gay, bisexual or transgender employees, and note the influence of state law, as contrasted with federal law, as sources of protection against employment discrimination based on sexual orientation or gender identity. 
  • (2 Classes) Read Chapter 10, Harassment.  Class discussion will focus first on the definition of harassment as a form of disparate treatment, the two theories of sexual harassment (cf. harassment based on race), and the analytical approach to quid pro quo and hostile work environment cases; discussion in the second class session will focus on the "vicarious" liability of the employer for sexual harassment, because it is a form of discrimination that is identified with the individual or group conduct of supervisors or co-workers.
  •  (2 Classes) Read Chapter 14, Discrimination Because of Age: Note that discrimination because of age, like discrimination because of disability, is the subject of distinct federal legislation enacted after the Civil Rights Act of 1964, here 29 U.S.C. §§ 621-633 (See Statutory Supplement).  Consider the social policy foundation for the federal law prohibiting discrimination based on age, and the explicit statutory recognition of disparate treatment theory.  Note also the unique implication of employer retirement systems, and employer lay-off and "downsizing" decisions.  Finally, note the Supreme Court's "divided" recognition of disparate impact theory, and the "reasonable factor other than age" defense in ADEA cases.

>>A Review of the Legislative History and Judicial Interpretation of the ADEA
[Click on this prompt to access PowerPoint]

  •  (2 Classes) Discrimination Because of Disability:  As with Chapter 14, focus initially on the legislative purpose for distinct federal statutory protections that were not a part of the Civil Rights Act of 1964, here Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111-12118.  Note the evolution of the judicial definition of "discrimination" following the enactment of the ADA, in Raytheon v. Hernandez, U.S. Airways v. Barnett, and Huber v. Wal-Mart Stores, Inc.; the judicial definition of "disability" in Sutton v. United Air Lines, Inc., and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams; and the ADA Amendments Act of 2008, PL 110-325, which was enacted principally to reject the Supreme Court's decisions and rationale in Sutton and Toyota.  Finally, note the affirmative duty of employers to provide reasonable accommodation for an otherwise qualified employee, the "direct threat and undue hardship" defenses unique to ADA cases - and how these two factors influence the analytical approach to ADA cases.
  •  (1 Class) Read Chapter 12, Discrimination Because of Religion:
  •  If the legislative history of Title VII reveals no original intent to emphasize the protection of religion in the workplace, why is the inclusion of the term "religion" an important aspect of Title VII?  Congress defined Title VII's protection against religious discrimination without an explicit provision for an employer's affirmative duty to accommodate an employee's religion.  Is the recognition of such an affirmative duty to accommodate necessary to sustain a nondiscrimination principle?  If statutory language defining the term "religion" for purposes of employment discrimination law is inadequate, how have federal courts approached the meaning of religion?  How does the judicial approach to the meaning of religion, in the context of employment discrimination law invoke the principle of judicial deference?  How does Title VII protect religion-affiliated employers from a compromise of their religion-based freedoms?
    • What are the elements of a prima facie case alleging discrimination in employment because of religion?

    • What is meant by "reasonable accommodation" of an employee's religion?  Do Hardison and Philbrook adequately protect against discrimination on the basis of religion?  How should Hardison be applied in situations not controlled by a collective bargaining agreement?  (Evaluate the Court's statement that neither a seniority system nor a collective bargaining agreement may be employed to violate Title VII, but that the employer may not be asked to take measures inconsistent with the terms of a valid CBA or seniority system).  Is the dissent correct that the majority's rationale renders Title VII's protection of religion essentially worthless or meaningless?  What, if anything, does Philbrook add to Hardison?

    • In cases involving public employers, how does the First Amendment influence the interpretation of Title VII in cases alleging discrimination because of religion?
  •  (1 Class) Discrimination on the basis of National Origin: Chapter 13 begins by briefly reminding us that, although it is known as "a nation of immigrants," the United States has a history of nativism, including the endorsement of immigration quotas, and that Immigration and Nationality legislation is increasingly the subject of political and judicial consideration of the rights of workers and employers.  Discrimination on the basis of national origin remains a complex issue, with implications, such as citizenship or documentation requirements, that distinguish it from more traditional forms of employment discrimination - and which are more fully developed in courses on Immigration law.
  •  (1 Class) Part 4.  Read Chapter 16, Affirmative Action:  The Introduction to Chapter 16 is an important commentary on the factors that have blurred the connection between "affirmative action" (affirmative duty) and the principle of nondiscrimination.  In the context of the history of race discrimination, it seems that the present effects of past discrimination are obvious, in both education and employment.  Reflect back on Professor John Donohue's comment, presented at the outset of this course:

 "The notion that discrimination in employment on the basis of race and sex is and should be prohibited by law is so deeply ingrained in the modern consciousness that challenges to this view may seem bizarre.  Prior to WWII however, the idea would have seemed equally strange that the federal government could tell private employers…that they must hire certain, albeit fully qualified, workers instead of some other preferred group of workers.  Indeed, this profound shift in the public's perception of the appropriate role of law represents one of the major developments in legal consciousness since the Civil War * * * With the possible exception of Native Americans, no racial or ethnic group in America has experienced such sustained and appalling treatment, and therefore has a stronger claim than blacks to compensatory and corrective governmental measures.  The calculated oppression of black Americans by governmental bodies is not the product of some distant past but continued in some virulent form at least until the mid-1960's, when the legislative and executive branches of the federal government finally joined the Supreme Court in trying to aid blacks with various antidiscrimination and affirmative action measures.  In the current political debate over affirmative action, it is at times alarming to see how little of the appalling history is still remembered, and how quickly the notion has gained currency that the moral debt to a people enslaved and then oppressed and degraded has been paid by 30 years of relatively even-handed and in some cases preferential treatment."

Consider whether any resolution of the "affirmative action debate" is possible, absent acceptance of the principle that both the Fourteenth Amendment and Title VII support, indeed require, affirmative efforts to remedy the present effects of deliberate historical discrimination in education and employment that obviously presents barriers to equal employment opportunity, as that term is contemplated.  To deny that equal employment opportunity exists in the absence of a remedy for past and continuing effects of societal race and sex discrimination is to ignore the very history which led to the enactment of the Civil Rights Act of 1964 - and the concept of affirmative duty implicit in Brown v. Board of Education.  The Supreme Court's divided decisions in City of Richmond v. J.A. Croson Company and Adarand Constructors, Inc. v. Pena, find further support in the Court's higher education cases, beginning with the Court's plurality decision in Regents of the University of California v. Bakke, and its divided opinion in Gratz v. Bollinger.  The higher education cases, beginning with Bakke, indeed shift the entire justification for affirmative action from the concern for the victims of deliberate discrimination to the institutional (and state) interest in diversity.  See R. Bickel, "The Nondiscrimination Principle and American Higher Education: Judicial Failure to Recognize the Present Effects of Past Discrimination" 20 Education and the Law 1 (Routledge, Taylor & Francis Group, 2008).

Consider the authors' summary of the equal protection challenges to voluntary governmental affirmative action efforts in Wygant v. Jackson Board of Education, United States v. Paradise, Richmond v. J.A. Croson Co., and Adarand Constructors, Inc. v. Pena, and challenges to the legality of "affirmative action plans" under Title VII, in United Steelworkers v. Weber and Johnson v. Transportation Agency.  Finally, consider the relevance of the reaffirmation of the Griggs disparate impact analysis in the 1991 Civil Rights Act, and the provisions of § 703(m) of Title VII, 42 U.S.C., § 2000-e2(m). 

  • (1 Class) Part 5.  Alternative Dispute Resolution: Any student interested in the practice of Employment Discrimination Law should complete the College's course work on the subject of Alternate Dispute Resolution.  We will briefly discuss this Chapter, emphasizing the issues of arbitrability, arbitration agreements, and the arbitration of claims in unionized workplaces.
Discrimination Because of Pregnancy and Family Responsibilities
 Click on Title to Access Power Point

>> WAL-MART STORES v. DUKES 131 S. Ct. 2541 (2011)
[Click on citation to access the Professor's edited version of the opinion of the Court]

  • (1 Class) Read Chapter 8, Discrimination Because of Pregnancy and Family Responsibilities, noting the persistence of pregnancy-based disadvantageous treatment based on gender, and the emerging concern that family responsibilities, including caregiving, not be the subject of gender-biased disadvantageous treatment. Note also the emergence of the requirement of affirmative accommodation as an aspect of nondiscrimination.



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