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Understanding Employment Discrimination Law
With the addition of a new co-author, Professor Bruce N. Cameron, the third edition of Understanding Employment Discrimination Law continues its tradition of providing a comprehensive and up-to-date discussion of all aspects of the complex and rapidly changing field of employment discrimination law. Although the scope and application of the Supreme Court's recent watershed decisions remain to be worked out in the lower courts, this book's discussion of these cases will provide the student and practitioner alike with a point-of-departure for following the development of the law in these areas.
424 pages, Paperback
First published July 29, 2009
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February 6, 2023
Objective Summary
The second edition of Haggard’s hornbook summarizes employment discrimination law in the United States up until 2008, the year it was published. Discrimination law stems from the Constitution, federal statutes, state statutes, and cases. All four change with time. Developments after the book’s publication are not covered, obviously. Such developments include, most notably, Bostock v. Clayton County, 140 S. Ct. 1731 (2000) (finding the term “sex” in employment discrimination to include gender identity and expression and other cases finding the term to include sexual orientation). Also not covered are state and international laws against discrimination.
The Equal Protection Clause of the Fourteenth Amendment is the direct constitutional basis for antidiscrimination laws. The Commerce Clause of Article 1, Section 8 provides the indirect basis for the federal statutes, regulations, and executive orders. The federal law includes at least the following:
1. The Civil Rights Act of 1964
2. The Age Discrimination in Employment Act
3. The Civil Rights Act of 1866, Section 1981
4. The Civil Rights Act of 1871, Section 1983
5. The Civil Rights Act of 1871, Section 1985(3)
6. The Equal Pay Act of 1963
7. Executive Order 11246
8. The Americans with Disabilities Act
9. The Civil Rights Act of 1991.
The law did not develop as a unified, coherent approach to combat discrimination in employment. Consequently, applicable laws both overlap and differ in important ways. Haggard tries to summarize the case law. Disagreements between courts and confusion for practitioners remain. (See the very last quote at the bottom of this review for a flavor of the challenges.)
At the highest level, employers who treat employees negatively because of protected status are in violation of one or more of the federal laws listed above. This seemingly simple idea contains many complexities. Who is an employer, who is an employee, what does it mean to treat an employee negatively, what if an employer has a mixed motive for the negative treatment, does the prohibition against discrimination apply to coworkers and supervisors, does it apply to customers, what is a protected status, how does an employee prove they were treated negatively, how does an employer prove they did not treat an employee negatively, who has the burden of proof, and what is the remedy for an employee who can show they were treated negatively because of discrimination? Different sections of Haggard’s book try to answer these questions, though the answers are not always clear, making a summary difficult.
In brief answer to some of the questions above, negative treatment usually includes some sort of tangible employment action like a termination, demotion, pay cut, or change in hours or responsibilities. Protected status includes race, color, religion, sex, age, disability, national origin, and veteran status. Employees can show discrimination through direct evidence (e.g., a supervisor admits discriminatory motive or it is stated in an email) or indirect evidence (e.g., statistics or circumstances that allow for an inference of discrimination). Direct evidence is increasingly rare because few supervisors openly state their discriminatory animus. Instead, most cases are resolved through a burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In this framework, a plaintiff employee must first make a prima facie showing of discrimination: They must show they are a member of a protected class, they are qualified for the position, they were terminated or not selected for the position, and someone else from a different protected class was not treated negatively by the employer. Once the prima facie case is made by the plaintiff, the defendant employer must present a legitimate, nondiscriminatory reason for its decision. Finally, the burden shifts back to the plaintiff to show that the stated reason proffered by the employer is pretext for discrimination, which is the actual reason.
Discrimination cases fall into two types: disparate treatment and disparate impact. Disparate treatment can be either against an individual or systemic. The most common discrimination cases involve allegations of disparate treatment against an individual. In such cases, the motivation from the employer can be either single (e.g., Paul Plaintiff is punished for being Jewish) or mixed (e.g., Polly Plaintiff is punished for being female and perpetually tardy). An example of systemic disparate treatment might be something like an employer permitting only males to be supervisors. Such systemic disparate treatment cases, like direct evidence of discrimination, are increasingly rare.
Disparate impact discrimination can exist in the absence of any discriminatory animus or overt bias by an employer. Disparate impact arises when a neutral rule negatively impacts a protected class. For example, use of qualification tests (IQ or subject matter) on which black applicants score lower than Asians or whites would be an example of disparate impact. Such tests have been functionally eliminated for employers because of their disparate impact. Employers using such tests must prove their efficacy as related to the specific job for which they are hiring, and few employers attempt to clear that high hurdle. Other examples of disparate impact may be a requirement that all employees work one weekend per month (which could affect religious observers of the Sabbath) or all firefighters be clean shaven (which could impact black firefighters who more frequently face skin problems when shaving).
Haggard’s hornbook is designed to summarize the law, so any greater summary will not be attempted here. Any students or practitioners seeking background on a particular discrimination law or issue would do well to reference the particular section in the hornbook.
Subjective Thoughts
Reading this book, I was struck by two recurring thoughts. First, there are a lot of typos. (E.g., page 140 has this sentence: “On the other hand, some courts have held that an accent that does not interference with job duties cannot be the basis of an adverse employment decision.” Page 166 has this sentence: “Single motive retaliation claims are usually proved by the McDonnell Douglas prima face case type of circumstantial evidence.”) Nearly every page had some misspelling, grammatical error, spacing issue, or other typo. It was distracting. And surprising considering this was the second edition of the book. I can’t believe any editor actually put eyes on this thing. I did not take the time to cite-check any of the references, so I have no reason to think there is substantively incorrect information. But the failure to correct the numerous obvious typos is disconcerting.
Second, the state of American law is unbelievably tragic and inefficient. It is absurd to me the breadth and depth to which laws have spread. Law, fundamentally, is force. A law is a threat to arrest and ultimately kill someone if they do not comply with it. The whole notion of antidiscrimination law is antiquated, wasteful, and immoral. It is antiquated because it was an attempt to right the wrongs of previous government discrimination in the forms of slavery and Jim Crow. The overcorrection, however, has been here for decades. There are no laws disadvantaging black people or women. On the contrary, there are specific set-asides, programs, and dictates around affirmative action that benefit them. Major sources of power and influence, such as Hollywood, the media, elite universities, government, and corporations, go to great lengths to recruit and retain “underrepresented minorities.” Openly admitting racist, sexist, homophobic, transphobic, and other politically incorrect beliefs is career suicide. (See, e.g., Roseanne Barr, Paula Dean, Donald Sterling, Kanye West, Mel Gibson.) The notion that in the absence of antidiscrimination laws there would be widespread discrimination is unsupported. The laws are antiquated.
The laws are also wasteful. How many billions of dollars in compliance, litigation, and administration are spent enforcing all the antidiscrimination laws? How many complaints are frivolous or settled as nuisance suits? Those numbers may be elusive. But the EEOC, attorneys, and others who make their living off alleged discrimination have every incentive to exaggerate its prevalence and impact. Any time spent trying to comply with the myriad laws and regulations, such as reading this hornbook by Haggard, is not time spent improving a product, serving a customer, or just relaxing. It is pure waste.
Finally, the antidiscrimination laws are immoral. There are two principles at play: antidiscrimination and freedom of association. There is no obvious reason why the latter must succumb to the former. Is racism wrong? I think so. I find it generally distasteful to treat an individual negatively because of an unchosen and immutable characteristic. Though not all protected statuses are the same. No one chose their race, but people do choose their religions. No one can change their national origin or age, but they can change their religion. Lumping religion in with other characteristics doesn’t make sense. Religion is just an idea or aggregation of ideas. Some ideas are good, some are bad. To declare all religious ideas off-limits as reasons not to associate is asinine. Free people must be able to choose with whom they associate and do business. If someone wants to be racist or bigoted, they should have the legal right to do so, including not hiring or firing employees in their business or not serving customers. If their discrimination is irrational, they will be punished in a free market. If their discrimination is rational, then the government is definitionally creating inefficiencies and waste, which harms everyone. Not every problem should be “solved” by government. In fact, because government is force, very few problems should involve government. Government is ultimately the threat of death. I am unwilling to say that a person or business who does not want to hire or serve men, women, black people, white people, Christians, Muslims, Jews, Chinese, gays, old people, or veterans should be killed for those beliefs. It’s just that simple. Anyone who says otherwise is not intelligent or moral.
There are many counterarguments to the perceived necessity or benefit of antidiscrimination laws. Unfortunately, I doubt many people ever even consider them. I recommend three books from Richard A. Epstein: Forbidden Grounds, Principles for a Free Society, and Simple Rules for a Complex World. I also recommend three books from Thomas Sowell: Basic Economics, Applied Economics, and Economic Facts and Fallacies. If the arguments in any of these books carried the day, a book like Haggard's would be unnecessary. People and businesses could use their time in more productive ways.
Revealing Quotes
“Has the plaintiff suffered a so-called adverse employment action? This has been defined as a ‘materially adverse change in the terms or conditions of employment.’ . . . If the employment decision involves no change in salary, benefits, title, responsibilities, or work hours, it will generally not be considered adverse, no matter how subjectively unhappy the employee is with the employer’s decision.”
“Intent is a question of fact and the factfinder’s determination in that regard can be set aside on appeal only if it is clearly erroneous. . . . Factual error satisfying this standard is rare.”
“Section 703(m) [of the Civil Rights Act of 1991] states that ‘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.’”
“In other words, how is the fundamental adverse employment action requirement met [in a hostile work environment claim that may result in no tangible loss of an economic nature]? The Supreme Court resolved that question in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), by essentially holding that the work environment itself is a condition of employment that cannot be altered on a discriminatory basis. However, for that alteration to occur and be considered adverse, the conduct in question must be unwelcome and it must be severe or pervasive.”
“In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court established that the hostile element had both a subjective an objective prong. That is, the plaintiff must not only ‘subjectively perceive the environment to be abusive,’ she must also show that a reasonable person would perceive the environment as hostile or abusive. . . . The more difficult prong of the test is the objective one. In Harris, the Court twice used the term ‘reasonable person’ rather than ‘reasonable woman,’ which was the term used by the court below. On the other hand, in Oncale v. Sundowner Offshore Services, the Court used the phrase, a ‘reasonable person in the plaintiff’s position’—which would seem to include the plaintiff’s gender.”
“The Court has stated that Title VII was not intended to impose a ‘general civility code for the American workplace.’ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).”
“The legal definition of national origin is short and clear: it means the country a person or that person’s forebears came from. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). . . . National origin, however, does not refer to citizenship, and alienage discrimination is not prohibited by Title VII.”
“The Court emphasized this was an objective test of materiality. While ‘petty slights, minor annoyances, and simply lacking good manners’ would not qualify, ‘excluding an employee form a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination’—and thus would be actionable retaliation. Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414-16 (2006).”
“Unless the employer’s plan qualifies, preferring minorities over non-minorities is an illegal form of reverse discrimination. EEOC v. David Gomez & Assocs., 1997 U.S. Dist. LEXIS 3269 (N.D. Ill. 1997).”
“The Court concluded that ‘the limitations periods commenced to run when the tenure decision was made and Ricks was notified.’ Delaware State College v. Ricks, 449 U.S. 250, 259 (1980). . . . In sum, the date of decision and notice generally marks the beginning of the Title VII statue of limitations.”
“As long as the employer’s reason for the adverse action was something other than age, even if the action is patently illegal under some other statute, then it does not violate the [Age Discrimination in Employment Act]. The Supreme Court made this clear in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (holding that discrimination on the basis of some characteristic that merely correlates with age, such as pension receipts, was not discrimination because of age under the ADEA).”
“Which comments quality [sic] as evidence of age bias and which do not is impossible to generalize about. The stray comments principle has been applied here. Beyond that, some commentators suggest that the courts are more tolerant of derogatory, joking, and other age related [sic] comments than they are of analogous sex and race comments.”
“Sex-segregated job categories and discriminatory wages, of course, became illegal under Title VII of the Civil Rights Act of 1964. But rather than repealing the [Equal Pay Act], Congress simply added another layer of statutory protection.”
“One court held that comparisons among college faculty members should be confined to the same or at least closely comparable academic departments. Monroe-Lord v. Hytche, 668 F. Supp. 979 (D. Md. 1987), aff’d 854 F.2d 1317 (4th Cir. 1988).”
“Each non-construction contractor and subcontractor that has at least 50 employees and a federal contract of $50,000 or more must develop and adopt a written Affirmative Action Program (AAP) and file an annual EEO-1 compliance report. 41 C.F.R. §§ 60-1.7(a), -1.40(a).”
“The Department of Labor regulations vigorously insist on the following principles: That ‘placement goals may not be rigid and inflexible quotas;’ that all selections decisions be made ‘in a nondiscriminatory manner;’ that placement goals do not justify ‘preference[s]’ or ‘set asides;’ and that placement goals cannot be used to supersede ‘merit selection principles’ or to require a contractor ‘to hire a person who lacks qualifications to perform the job successfully.’ 41 C.F.R. § 60-216(e).”
“Pregnancy, by itself is not covered [by the ADA]. Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999).”
“Even if an individual has been successful in establishing, for workers’ compensation or other statutory purposes, that a particular disability has rendered that person totally unable to perform the job, this does not necessarily bar an ADA claim. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the Supreme Court held that the purposes of the two kinds of statutes are sufficiently different, so that claiming an inability to do the job in one context does not estop a person from claiming the ability to do it in another.”
“It is not clear how much of the Title VII disparate impact discrimination model the ADA was intended to incorporate. What kind of statistics are relevant? The original Griggs statistics? Or the Wards Cove/1991 Act statistics? Does the 4/5ths standard apply for determining statistical significance? Is the job-related/business necessity defense the same, narrower, or broader? Where does the availability of non-impact alternatives fit in, if at all? Is it the same as the reasonable accommodation referred to in Section 103? And who has the burden of proving or disproving it?”
The second edition of Haggard’s hornbook summarizes employment discrimination law in the United States up until 2008, the year it was published. Discrimination law stems from the Constitution, federal statutes, state statutes, and cases. All four change with time. Developments after the book’s publication are not covered, obviously. Such developments include, most notably, Bostock v. Clayton County, 140 S. Ct. 1731 (2000) (finding the term “sex” in employment discrimination to include gender identity and expression and other cases finding the term to include sexual orientation). Also not covered are state and international laws against discrimination.
The Equal Protection Clause of the Fourteenth Amendment is the direct constitutional basis for antidiscrimination laws. The Commerce Clause of Article 1, Section 8 provides the indirect basis for the federal statutes, regulations, and executive orders. The federal law includes at least the following:
1. The Civil Rights Act of 1964
2. The Age Discrimination in Employment Act
3. The Civil Rights Act of 1866, Section 1981
4. The Civil Rights Act of 1871, Section 1983
5. The Civil Rights Act of 1871, Section 1985(3)
6. The Equal Pay Act of 1963
7. Executive Order 11246
8. The Americans with Disabilities Act
9. The Civil Rights Act of 1991.
The law did not develop as a unified, coherent approach to combat discrimination in employment. Consequently, applicable laws both overlap and differ in important ways. Haggard tries to summarize the case law. Disagreements between courts and confusion for practitioners remain. (See the very last quote at the bottom of this review for a flavor of the challenges.)
At the highest level, employers who treat employees negatively because of protected status are in violation of one or more of the federal laws listed above. This seemingly simple idea contains many complexities. Who is an employer, who is an employee, what does it mean to treat an employee negatively, what if an employer has a mixed motive for the negative treatment, does the prohibition against discrimination apply to coworkers and supervisors, does it apply to customers, what is a protected status, how does an employee prove they were treated negatively, how does an employer prove they did not treat an employee negatively, who has the burden of proof, and what is the remedy for an employee who can show they were treated negatively because of discrimination? Different sections of Haggard’s book try to answer these questions, though the answers are not always clear, making a summary difficult.
In brief answer to some of the questions above, negative treatment usually includes some sort of tangible employment action like a termination, demotion, pay cut, or change in hours or responsibilities. Protected status includes race, color, religion, sex, age, disability, national origin, and veteran status. Employees can show discrimination through direct evidence (e.g., a supervisor admits discriminatory motive or it is stated in an email) or indirect evidence (e.g., statistics or circumstances that allow for an inference of discrimination). Direct evidence is increasingly rare because few supervisors openly state their discriminatory animus. Instead, most cases are resolved through a burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In this framework, a plaintiff employee must first make a prima facie showing of discrimination: They must show they are a member of a protected class, they are qualified for the position, they were terminated or not selected for the position, and someone else from a different protected class was not treated negatively by the employer. Once the prima facie case is made by the plaintiff, the defendant employer must present a legitimate, nondiscriminatory reason for its decision. Finally, the burden shifts back to the plaintiff to show that the stated reason proffered by the employer is pretext for discrimination, which is the actual reason.
Discrimination cases fall into two types: disparate treatment and disparate impact. Disparate treatment can be either against an individual or systemic. The most common discrimination cases involve allegations of disparate treatment against an individual. In such cases, the motivation from the employer can be either single (e.g., Paul Plaintiff is punished for being Jewish) or mixed (e.g., Polly Plaintiff is punished for being female and perpetually tardy). An example of systemic disparate treatment might be something like an employer permitting only males to be supervisors. Such systemic disparate treatment cases, like direct evidence of discrimination, are increasingly rare.
Disparate impact discrimination can exist in the absence of any discriminatory animus or overt bias by an employer. Disparate impact arises when a neutral rule negatively impacts a protected class. For example, use of qualification tests (IQ or subject matter) on which black applicants score lower than Asians or whites would be an example of disparate impact. Such tests have been functionally eliminated for employers because of their disparate impact. Employers using such tests must prove their efficacy as related to the specific job for which they are hiring, and few employers attempt to clear that high hurdle. Other examples of disparate impact may be a requirement that all employees work one weekend per month (which could affect religious observers of the Sabbath) or all firefighters be clean shaven (which could impact black firefighters who more frequently face skin problems when shaving).
Haggard’s hornbook is designed to summarize the law, so any greater summary will not be attempted here. Any students or practitioners seeking background on a particular discrimination law or issue would do well to reference the particular section in the hornbook.
Subjective Thoughts
Reading this book, I was struck by two recurring thoughts. First, there are a lot of typos. (E.g., page 140 has this sentence: “On the other hand, some courts have held that an accent that does not interference with job duties cannot be the basis of an adverse employment decision.” Page 166 has this sentence: “Single motive retaliation claims are usually proved by the McDonnell Douglas prima face case type of circumstantial evidence.”) Nearly every page had some misspelling, grammatical error, spacing issue, or other typo. It was distracting. And surprising considering this was the second edition of the book. I can’t believe any editor actually put eyes on this thing. I did not take the time to cite-check any of the references, so I have no reason to think there is substantively incorrect information. But the failure to correct the numerous obvious typos is disconcerting.
Second, the state of American law is unbelievably tragic and inefficient. It is absurd to me the breadth and depth to which laws have spread. Law, fundamentally, is force. A law is a threat to arrest and ultimately kill someone if they do not comply with it. The whole notion of antidiscrimination law is antiquated, wasteful, and immoral. It is antiquated because it was an attempt to right the wrongs of previous government discrimination in the forms of slavery and Jim Crow. The overcorrection, however, has been here for decades. There are no laws disadvantaging black people or women. On the contrary, there are specific set-asides, programs, and dictates around affirmative action that benefit them. Major sources of power and influence, such as Hollywood, the media, elite universities, government, and corporations, go to great lengths to recruit and retain “underrepresented minorities.” Openly admitting racist, sexist, homophobic, transphobic, and other politically incorrect beliefs is career suicide. (See, e.g., Roseanne Barr, Paula Dean, Donald Sterling, Kanye West, Mel Gibson.) The notion that in the absence of antidiscrimination laws there would be widespread discrimination is unsupported. The laws are antiquated.
The laws are also wasteful. How many billions of dollars in compliance, litigation, and administration are spent enforcing all the antidiscrimination laws? How many complaints are frivolous or settled as nuisance suits? Those numbers may be elusive. But the EEOC, attorneys, and others who make their living off alleged discrimination have every incentive to exaggerate its prevalence and impact. Any time spent trying to comply with the myriad laws and regulations, such as reading this hornbook by Haggard, is not time spent improving a product, serving a customer, or just relaxing. It is pure waste.
Finally, the antidiscrimination laws are immoral. There are two principles at play: antidiscrimination and freedom of association. There is no obvious reason why the latter must succumb to the former. Is racism wrong? I think so. I find it generally distasteful to treat an individual negatively because of an unchosen and immutable characteristic. Though not all protected statuses are the same. No one chose their race, but people do choose their religions. No one can change their national origin or age, but they can change their religion. Lumping religion in with other characteristics doesn’t make sense. Religion is just an idea or aggregation of ideas. Some ideas are good, some are bad. To declare all religious ideas off-limits as reasons not to associate is asinine. Free people must be able to choose with whom they associate and do business. If someone wants to be racist or bigoted, they should have the legal right to do so, including not hiring or firing employees in their business or not serving customers. If their discrimination is irrational, they will be punished in a free market. If their discrimination is rational, then the government is definitionally creating inefficiencies and waste, which harms everyone. Not every problem should be “solved” by government. In fact, because government is force, very few problems should involve government. Government is ultimately the threat of death. I am unwilling to say that a person or business who does not want to hire or serve men, women, black people, white people, Christians, Muslims, Jews, Chinese, gays, old people, or veterans should be killed for those beliefs. It’s just that simple. Anyone who says otherwise is not intelligent or moral.
There are many counterarguments to the perceived necessity or benefit of antidiscrimination laws. Unfortunately, I doubt many people ever even consider them. I recommend three books from Richard A. Epstein: Forbidden Grounds, Principles for a Free Society, and Simple Rules for a Complex World. I also recommend three books from Thomas Sowell: Basic Economics, Applied Economics, and Economic Facts and Fallacies. If the arguments in any of these books carried the day, a book like Haggard's would be unnecessary. People and businesses could use their time in more productive ways.
Revealing Quotes
“Has the plaintiff suffered a so-called adverse employment action? This has been defined as a ‘materially adverse change in the terms or conditions of employment.’ . . . If the employment decision involves no change in salary, benefits, title, responsibilities, or work hours, it will generally not be considered adverse, no matter how subjectively unhappy the employee is with the employer’s decision.”
“Intent is a question of fact and the factfinder’s determination in that regard can be set aside on appeal only if it is clearly erroneous. . . . Factual error satisfying this standard is rare.”
“Section 703(m) [of the Civil Rights Act of 1991] states that ‘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.’”
“In other words, how is the fundamental adverse employment action requirement met [in a hostile work environment claim that may result in no tangible loss of an economic nature]? The Supreme Court resolved that question in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), by essentially holding that the work environment itself is a condition of employment that cannot be altered on a discriminatory basis. However, for that alteration to occur and be considered adverse, the conduct in question must be unwelcome and it must be severe or pervasive.”
“In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court established that the hostile element had both a subjective an objective prong. That is, the plaintiff must not only ‘subjectively perceive the environment to be abusive,’ she must also show that a reasonable person would perceive the environment as hostile or abusive. . . . The more difficult prong of the test is the objective one. In Harris, the Court twice used the term ‘reasonable person’ rather than ‘reasonable woman,’ which was the term used by the court below. On the other hand, in Oncale v. Sundowner Offshore Services, the Court used the phrase, a ‘reasonable person in the plaintiff’s position’—which would seem to include the plaintiff’s gender.”
“The Court has stated that Title VII was not intended to impose a ‘general civility code for the American workplace.’ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).”
“The legal definition of national origin is short and clear: it means the country a person or that person’s forebears came from. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). . . . National origin, however, does not refer to citizenship, and alienage discrimination is not prohibited by Title VII.”
“The Court emphasized this was an objective test of materiality. While ‘petty slights, minor annoyances, and simply lacking good manners’ would not qualify, ‘excluding an employee form a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination’—and thus would be actionable retaliation. Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414-16 (2006).”
“Unless the employer’s plan qualifies, preferring minorities over non-minorities is an illegal form of reverse discrimination. EEOC v. David Gomez & Assocs., 1997 U.S. Dist. LEXIS 3269 (N.D. Ill. 1997).”
“The Court concluded that ‘the limitations periods commenced to run when the tenure decision was made and Ricks was notified.’ Delaware State College v. Ricks, 449 U.S. 250, 259 (1980). . . . In sum, the date of decision and notice generally marks the beginning of the Title VII statue of limitations.”
“As long as the employer’s reason for the adverse action was something other than age, even if the action is patently illegal under some other statute, then it does not violate the [Age Discrimination in Employment Act]. The Supreme Court made this clear in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (holding that discrimination on the basis of some characteristic that merely correlates with age, such as pension receipts, was not discrimination because of age under the ADEA).”
“Which comments quality [sic] as evidence of age bias and which do not is impossible to generalize about. The stray comments principle has been applied here. Beyond that, some commentators suggest that the courts are more tolerant of derogatory, joking, and other age related [sic] comments than they are of analogous sex and race comments.”
“Sex-segregated job categories and discriminatory wages, of course, became illegal under Title VII of the Civil Rights Act of 1964. But rather than repealing the [Equal Pay Act], Congress simply added another layer of statutory protection.”
“One court held that comparisons among college faculty members should be confined to the same or at least closely comparable academic departments. Monroe-Lord v. Hytche, 668 F. Supp. 979 (D. Md. 1987), aff’d 854 F.2d 1317 (4th Cir. 1988).”
“Each non-construction contractor and subcontractor that has at least 50 employees and a federal contract of $50,000 or more must develop and adopt a written Affirmative Action Program (AAP) and file an annual EEO-1 compliance report. 41 C.F.R. §§ 60-1.7(a), -1.40(a).”
“The Department of Labor regulations vigorously insist on the following principles: That ‘placement goals may not be rigid and inflexible quotas;’ that all selections decisions be made ‘in a nondiscriminatory manner;’ that placement goals do not justify ‘preference[s]’ or ‘set asides;’ and that placement goals cannot be used to supersede ‘merit selection principles’ or to require a contractor ‘to hire a person who lacks qualifications to perform the job successfully.’ 41 C.F.R. § 60-216(e).”
“Pregnancy, by itself is not covered [by the ADA]. Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999).”
“Even if an individual has been successful in establishing, for workers’ compensation or other statutory purposes, that a particular disability has rendered that person totally unable to perform the job, this does not necessarily bar an ADA claim. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the Supreme Court held that the purposes of the two kinds of statutes are sufficiently different, so that claiming an inability to do the job in one context does not estop a person from claiming the ability to do it in another.”
“It is not clear how much of the Title VII disparate impact discrimination model the ADA was intended to incorporate. What kind of statistics are relevant? The original Griggs statistics? Or the Wards Cove/1991 Act statistics? Does the 4/5ths standard apply for determining statistical significance? Is the job-related/business necessity defense the same, narrower, or broader? Where does the availability of non-impact alternatives fit in, if at all? Is it the same as the reasonable accommodation referred to in Section 103? And who has the burden of proving or disproving it?”
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