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Principles and Development of Employment Discrimination Law in the U.S. Professor Glenn George University of North Carolina School of Law Visiting Professor, Sichuan University Law School. North Carolina. Overview.

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principles and development of employment discrimination law in the u s

Principles and Development of Employment Discrimination Law in the U.S.

Professor Glenn George

University of North Carolina School of Law

Visiting Professor, Sichuan University Law School

overview
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
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
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
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
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
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
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 legislation1
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
Protected Categories
  • Race
  • Color
  • Religion
  • Sex
  • National origin
  • Age (ADEA)
  • Disabilities (Rehabilitation Act and ADA)
theories of discrimination
Theories of Discrimination
  • Individual Discrimination (“disparate treatment”)
  • Group discrimination (“systemic disparate treatment”)
  • Disparate impact
individual discrimination
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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