Individual Disparate Treatment Hishon v. King & Spalding (U.S. 1984) Title VII prohibits discrimination in compensation, terms, conditions, or privileges of employment A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.
Individual Disparate Treatment Wet T-Shirt Lawyers, Washington Post (Dec. 23, 1983): female summer associates at King & Spalding asked to participate in firm s wet T-shirt contest; winner described as having a body we d like to see more of Class action gender discrimination suits against Steptoe & Johnson, Chadbourne & Parke, other firms
Individual Disparate Treatment Minor v. Centocor, Inc. (7 th Cir. 2006) Adverse employment action : a material difference in terms and conditions of employment Court: requiring the plaintiff to work 25% longer for the same income (functionally the same as a 20% reduction in her hourly pay) is a material difference Minor did not prevail: she did not prove that she was treated worse than other employees on account of age or sex
Individual Disparate Treatment Autozone transferred an African-American sales manager from a store serving a largely Latinx clientele to a store closer to his home; the transfer involved no reduction in pay, benefits, or responsibilities o Allegation: manager was told that the company wanted to keep the store predominantly Hispanic The transfer did not adversely affect the manager s employment status. EEOC v. Autozone, Inc., 860 F.3d 564 (7 th Cir. 2017)
Individual Disparate Treatment Price Waterhouse v. Hopkins (U.S. 1989) o Facts; issue Justice Brennan s plurality opinion because of and but-for causation Held: when a plaintiff proves that gender played a motivating part in an employment decision, the employer may avoid liability by proving, by a preponderance of the evidence, that it would have made the same decision even if gender had not been taken into account
Mixed-Motive Cases Cases in which the employer is motivated by unlawful and lawful reasons o Single motive cases: employer is motivated by lawful or unlawful reasons (e.g., Slack, McDonnell Douglas) The Civil Rights Act of 1991
Mixed-Motive Cases Title VII Sec. 703(m): 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. Title VII Sec. 701(m): The term demonstrates means meets the burdens of production and persuasion.
Mixed-Motive Cases Title VII Sec. 706(g)(1): where plaintiffs prevail in intentional discrimination courts may order hiring or reinstatement with or without backpay or other equitable relief Title VII Sec. 706(g)(2)(B): where the employer demonstrates a same-decision defense in a mixedmotive case a court may grant declaratory relief, injunctive relief, and attorney s fees and costs but may not award damages or order hiring, reinstatement, promotion or pay
Mixed-Motive Cases Desert Palace, Inc. v. Costa (U.S. 2003) o Facts; issue Justice O Connor s Price Waterhouse concurrence The jury instruction Sec. 703(m) s text The statute is silent on the type of evidence required in mixed-motive cases; direct or circumstantial evidence may be used
Fifth Circuit Pattern Jury Instruction 11.13 Charge: If you find that Plaintiff [name] s [protected trait] was a motivating factor in the Defendant [name] s decision to [specify adverse employment action] [him/her], even though other considerations were factors in the decision, then you must determine whether Defendant [name] proved by a preponderance of the evidence that it would have made the same decision even if it had not considered Plaintiff [name] s [protected trait].
Fifth Circuit Pattern Jury instruction 11.13 Jury Question: Has Defendant [name] proved that it would have made the same decision to [specify adverse employment action] Plaintiff [name] even if it had not considered [his/her] [protected trait]? Answer Yes or No.
Mixed-Motive Cases Price Waterhouse Step 1: plaintiff s motivating factor proof Step 2: employer s samedecision defense o Established: employer is not liable o Not established: employer is liable, plaintiff is entitled to full relief Title VII Section 703(m) Step 1: plaintiff s motivating factor proof o Employer is liable Step 2: employer s samedecision defense o Established: partial relief for plaintiff o Not established: plaintiff is entitled to full relief
Individual Disparate Treatment Gross v. FBL Financial Services, Inc. (U.S. 2009) o Issue presented by the parties; the issue decided by the Court because of : Title VII Sec. 703(a)(1); the Civil Rights Act of 1991 amendments; ADEA Sec. 623(a)(1) Court: A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the but-for cause of the challenged employer decision. Smith v. City of Jackson (2005)
Gross (cont.) Case is not controlled by Price Waterhouse Justice Stevens dissent o It is inappropriate for the Court, on its own initiative, to adopt different causation requirements for ADEA and Title VII cases o Congressional endorsement of Price Waterhouse s interpretation of because of language in Title VII is reason to adhere to the motivating factor test Justice Breyer s dissent: criticizes the use of but-for causation in determining mind-related characterizations that constitute motive
Individual Disparate Treatment The same-actor defense The same supervisor defense ( me too evidence) Age difference in ADEA cases The same-race, same-sex, etc. replacement Good stats and good acts Decisionmaker in the same protected class
Systemic Disparate Treatment Formal Policies Los Angeles Dept. of Water & Power v. Manhart (U.S. 1978) Women, as a class, do live longer than men. Title VII unambiguously prohibits discrimination against any individual ; focuses on fairness to individuals rather than fairness to classes Held: employer s policy violates the language and the policy of Title VII There is no cost-justification defense
Systemic Disparate Treatment Pattern And Practice Claims Teamsters v. United States (U.S. 1977) o Class action Pattern or practice : racial discrimination was the Company s standard operating procedure the regular rather than the unusual practice The plaintiff s prima facie case: statistics; individual cases of intentional discrimination (bolster/buttress cases)
Teamsters (cont.) Underrepresentation in the employer s workforce? The Central Assumption: 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 racial and ethnic composition of the population in the community from which employees are hired. See Title VII Sec. 703(j)
Teamsters (cont.) The employer s rebuttal evidence Holding Underrepresentation: compare (1) the observed number in the employer s workforce and (2) the expected number in the relevant population Two-step analysis: (1) prima facie case and (2) rebuttal o Post-liability Teamsters hearings