An Employment Discrimination Primer
Silly and embarassing as it is to correspond with a respected professor from one of your favorite blogs pseudonymously, well, I guess I'm just silly and embarassed. I'd hate to promote the stereotype that female academics are schoolgirls at heart, but I must admit I'm all aflutter when I check my sitemeter stats and realize that actual law professors read my blog. Okay, true, it's only two of them (at least more than once)--but still, if you have Dan Filler and Ann Bartow reading your blog, you are one happy camper. How I yearn for the days when I will stroll into the faculty lounge, well-stocked with Tazo teas and Swiss Miss hot cocoa packets (seriously, with that endowment, couldn't admin do better?) and say "Oh, hello Martha/Bob/Stew," with an air of complete collegiality and confidence. But despite their best efforts to make me feel comfortable, I'll keep calling writing them epistles beginning "Dear Prof. ____", and feel very humbe and put in my place when they validate my signal of respect and sign off as "Prof. _____." Which is strange, because the academics I email on occasion nowadays with a blog post tip (I do love hat tips attributed to my non-pseudonymous alter ego) are complete strangers. Yet the professors who actually taught me and had that formal Professor-Student relationship with me sign off invariably with their initials--the usual compromise. It lets young academics feel at once simpatico with their students and also "we're not on a first name basis yet." So instead of signing off as "Professor Chris Langdell," he would simply sign off "CL." It works, people. I would think that emailing a stranger, much less a (technically) lawyer person, would let some profs drop the title and let down their hair. But I digress. And I actually intend to blog about blogging later.
So, Prof. Filler writes:
Although I don't know employment discrimination law, I'm surprised there is a "pick one" approach. It seems to me that if you were discriminated against because you were an African-American woman, you could claim discrimination on both fronts. It is precisely because you a woman who is black - rather than a man who is black, as in your example - that you were discriminated against. And it is also precisely because you are an African-American woman - rather than a white woman. Most discrimination cases now turn on actual intent, don't they? Disparate impact cases are either dying or dead. You can use disparate impact, but principally to show intent - rather than to prove discrimination is occuring. (Intentless discrimination may not violate the law - as if true "intentlessness" actually existed.)
This reminds me, a very young and (I hate to keep having to write this) aspiring academic, to always be clear, precise, and cite sources. Prof. Filler is right that disparate impact cases are "either dying or dead"--mainly because in the post-1991 Civil Rights ACt framework, they're nearly impossible to prove. To prove disparate impact, the plaintiff must demonstrate that the employer uses a particular employment practice that causes a disparate impact on the basis of race/gender/etc., and "bottom-line numbers" disparity is insufficient to prove this. The Employer then has to demonstrate that the challenged practice (e.g. an employment test, job requirement, etc.) is job-related for the position and consistent with the business necessity of the employer. The burden of proof is then shifted back to the plaintiff to show that there is a less discriminatory alternative employment practice and that the Employer refuses to adopt it. It's pretty hard for the Plaintiff to meet the burden for its first argument, and then for the burden of showing that there's a less-discriminatory alternative. And actually, what I had in mind wasn't really Disparate Impact theory, but rather Systemic Disparate Treatment.
Keep in mind that this is separate from Individual Disparate Treatment, in which the Plaintiff alleges that the Employer is intentionally discriminating against him/her on the basis of some protected trait (age/race/sex/disability). In this case, we have another burden-shifting paradigm (McDonnell-Douglas v. Green) in which the Plaintiff establishes a prima facie case of discrimination based on ____ (s/he applied for job, was qualified, and despite qualifications was rejected, and circumstances give rise to an inference of discrimination). The Employer then has the burden to show that the treatment of the Plaintiff was based on a legitimate, non-discriminatory reason. The burden shifts back to the Plaintiff to show that the Employer's proferred reason is merely pretext for discrimination.
Now, Disparate Impact and Systemic Disparate Treatment are not wholly unrelated (Segar v. Smith). In Systemic Disparate Impact, the Plaintiff is arguing that there is a formal employment policy of discrimination ("Irish need not apply," "No Negroes"). In the absence of a formal policy, the Plaintiff may argue that the employer's pattern or practice of employment decisions reveals that a policy of disparate treatment operates (Employer requiring female employees to make larger pension contributions than men because they live longer, or disallowing pregnant/capable of bearing children female employees to work in jobs involving lead exposure). The Employer may then challenge the facutal basis of the Plaintiff's case (no formal policy, counter statistics), challenge the inference of discriminatory intent, or admit the discrimination but assert a recognized defense ( bona fide occupational qualification). Say an employer practice is adopted because of its disparate impact on a proteted class trait--that's awful similar to disparate impact.
In my original statement, I gave a mini-hypo (not very fleshed out, as I was concentrating on another point) of a qualified black woman who is passed over for promotion as similarly or less qualified white women and black men are promoted to either the same position or same managerial level. We could have three hypos--the first, to demonstrate Individual Disparate Treatment, in which the Employer for years has condescended to her, patronized her, made her do the most menial tasks not required of other employees of similar rank, made buffoonish remarks about "jungle fever" or hummed the Stones' "Brown Sugar" very obviously in her presence. The Employer treats white women well enough, or at least demurely. The Employer also treats Black men okay, in the sense that he doesn't call them "Boy" or other remarks, and generally rewards their work in the same way he rewards the work of others (at least the white women, who knows how well such an Employer might treat his white male workers). I'd say this is an argument for disparate treatment, in which the Employer is basically making clear his unequal attitude towards and treatment of this black female employee. This is probably the easiest case to prove. It's harder when the evidence is murkier (egregious as many employment discrimination cases that hit the news wire may sound, not every employer will be as obvious about their discriminatory intent), and the pretextual "I wasn't discriminating, honest" defenses easier to make. Assuming that there is credible evidence against the Employer of his ill-treatment and rude remarks, what possible legitimate, non-discriminatory reason can the Employer offer that a court will believe?
Second hypo--Systemic Disparate Treatment. Apply this hypo to not just one Black female employee, but (depending on firm size) a sizable statistic of them. Think of ways in which employer policies could make it so that Black female employees could be shunted into jobs/positions that are the least desirable or most dangerous. Imagine a hiring/compensation/promotion policy that concentrates everyone but black women into higher paying jobs, more desirable jobs, etc. In this case, since the Employer can offer a bona fide occupational requirement defense, or the "lack of interest/self-selection" defense. It's harder to prove the Plaintiff's case if the Employer's reasons appear to be legitimate, although if there is enough evidence of systemic disparate treatment of a class of employees, I can imagine the Plaintiffs prevailing.
But they don't always. When I wrote the original statement, I was thinking of Degraffenreid v. General Motors, in which five Black women alleged that the Employer's seniority system perpetuated the effects of past discrimination against Black women. Although GM didn't hire Black women prior to 1964, the court noted that "GM has hired...female employees for a number of years prior to the enactment of the CRA of 1964." The court was saying that because GM did hire women--white women--during the period that no Black women were hired, there was no sex discrimnation. Reasoning that Black women could choose to bring either a sex or a race discrimination claim, the 5th Cir. court went on to say:
"The legislative history surrounding Title VII does not indicate tah the
goal of the statute was to create a new classification of "black women" who
could have greater standing than, for example, a black male. The prospect
of the creation of new classes of protected minorities, governed only by the
mathematical principles of permutation and combination, clearly raises the
prospect of opening the hackneyed Pandora's box."
Of course, this is only the 5th Cir., and this was 1983. True, there is some negative history with the Degraffenreid standard, and it hasn't been followed by all the other circuits. But it has never been overruled. This conception of Title VII is still out there. Conceivably, plaintiffs may be forced to choose one theory of discrimination or the other. The existence of promoted white women (i.e. to prove gender equity and friendly fairness) and promoted black men (i.e., to prove racial equity and friendly fairness) could possibly erode or discredit other circumstantial evidence tending to prove the Employer's systemic disparate treatment. This makes it harder to prove an already difficult to prove case. This case continues to bother me, and so I sort of mentioned it in the previous post, but here is some background for those so inclined to read.
Just to clarify. And it has been truly enjoyable reviewing one of my favorite classes in law school--one that every law student should take, because it is such a wonderful holistic review of a ton of law school subjects (contracts, torts, remedies, constitutional law....). I refuse to make promises about what I'm going to blog about anymore, since I always seem to break them.