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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.

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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


  • 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


  • 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


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