Principles and Development of Employment Discrimination

Law in the U.S.

Professor Glenn GeorgeUniversity of North Carolina School of LawVisiting Professor, Sichuan University Law

School

North Carolina

Overview

• Introduction to U.S. anti-discrimination principles – U.S. Constitution and employment discrimination statutes

• Theories of employment discrimination• Types of remedies available• Questions

Introduction to American Anti-Discrimination Law: The

Fourteenth Amendment (1868)

“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Brown v. Board of Education (1954)

Challenge to system segregated education -- “separate but equal” schools for white and African-American children

Brown v. Board of Education

Segregation as discrimination• Supreme Court found that policy of

separation suggests inferiority• Physical segregation as discrimination• “Mental” segregation as discrimination

-- stereotyping

Stereotyping as Discrimination

• Women are bad drivers.• African Americans are not smart.• Men are strong; women are weak.• African Americans are good

athletes.

Public to Private

• Fourteenth Amendment applies only to government action

• Legislation by Congress to expand discrimination protection to the private sector and expand protected categories

Anti-Discrimination Legislation

Civil Right Act of 1964–Title II – Public Accommodations–Title VI – Race discrimination by

those receiving federal funds–Title VII – Employment

discrimination

Anti-Discrimination Legislation

• Age Discrimination in Employment Act (ADEA) (1967) (as amended)

• Americans With Disabilities Act (ADA) (1990)-- Expanding coverage of the

Rehabilitation Act of 1978-- Amended by the ADA Amendments Act of 2008

Protected Categories

• Race• Color• Religion• Sex• National origin• Age (ADEA)• Disabilities (Rehabilitation Act and ADA)

Theories of Discrimination

• Individual Discrimination (“disparate treatment”)• Group discrimination (“systemic

disparate treatment”) • Disparate impact

Individual Discrimination

• Most common• An individual claims he or she was

denied a job or employment benefit because of his or her protected category (race, sex, etc.)

• Issue for the court: What was the “real” reason or motivation for the employer’s decision?

How to Prove Unlawful Intent?

• “Direct” evidence – employer admits or states basis of decision. (“Women cannot drive trucks.”

• Circumstantial evidence – discrimination is inferred or assumed from other facts.

• “Pretext” – proving that the employer’s explanation is not the “real” reason for his actions

Proving “Pretext”

• Example: The employer hires a man and claims the man is better qualified, but the facts show that the female applicant is better qualified.

• Example: I am African American and the employer fires me for missing 3 days of work. The facts show that several white employees also missed 3 days but were not fired.

Price Waterhouse v. Hopkins (1989)

• Ann Hopkins was denied partnership in her accounting firm

• Direct evidence: Hopkins told to dress and act more femininely – wear jewelry, have her hair styled, wear make-up, etc.

• Circumstantial evidence: Hopkins was more successfully in handling large accounts than men who were made partner

Remedies

• Theory of “make whole” – putting the plaintiff where she should have been had the discrimination never happened.

• Example: I damage your car in a traffic accident. I pay to have the car repaired so that the car is in the same condition as before the accident.

• Attorneys fees

Individual Remedies (cont.)

• Compensatory damages-- other damages from loss of job

• Punitive Damages-- only available in especially serious cases

• Total “cap” of $300,000• Attorneys fees

Remedies: Individual Discrimination

Example: Ann Hopkins was not made a partner in her accounting firm because of her sex.

“Equitable” relief:• Order that Ms. Hopkins be made a partner• Calculate and award salary/income Ms.

Hopkins would have made as a partner (deduct income earned during same period).

• Add other lost benefits

Group (Systemic) Discrimination

• A “group” claim – the plaintiffs are trying to prove that the employer treats all or most members of the group (blacks, women, etc.) worse that others

• Intent is still the key issue to be proved – what is the employer’s real motivation?

Proving Group Discrimination

• Use of statistics – for example, the workforce is 50% female but my employees are only 10% female

• Use of specific examples involving individuals – for example, stories of specific individuals who were not hired even though well qualified

Hazelwood School Dist. v. U.S. (1977)

• Issue: Hiring African-American teachers in school district near St. Louis, Missouri

• “Qualified” pool = certified teachers in the St. Louis area

• Qualified pool = 15% African American• Hazelwood = 2% African American

teachers

Remedies: Group Discrimination

• Injunction – stop discrimination in the future

• Attorneys fees• “Affirmative action” – unusual remedy

only in most serious cases• Individual relief – presumption of

discrimination must be disproven by employer

Disparate Impact

• Use of a neutral factor that excludes a larger percentage of the protected class (compared to the majority)

• Example: All employees must be 175 cm tall.• Requirement will exclude some men but

many more women.• Intent is not important – but employer can

defend by proving business necessity

Duke Power v. Griggs (1971)

• Implementation of high school diploma requirement

• Only 30% of whites finished high school in North Carolina

• But only 6% of African Americans finished high school, therefore disproportionately excluded

• Defense: Was a high school diploma needed for the jobs?

Remedies: Disparate Impact

• Injunction to prohibit continued use of job requirement challenged

• No individual relief other than the opportunity to compete for the job without the challenged job requirement

• Attorneys fees• No damages available

Questions?