Employment Discrimination Law, Visions of Equality in Theory and Doctrine
Author:
Rutherglen, George
Edition:
5th
Copyright Date:
2021
21 chapters
have results for Employment Discrimination Law
Chapter 1 Development of the Law 32 results (showing 5 best matches)
- These developments illustrate how employment discrimination law is based on, but different from, constitutional law as it has evolved from . Because employment discrimination law is primarily statutory, Congress always has the final say over how far the principle against discrimination should be extended in the workplace. Unlike constitutional decisions, judicial decisions interpreting the laws against employment discrimination can be overridden by Congress, as they have been on several occasions. But if Congress has the final say, the courts often have the initial say, most prominently on the issue of what constitutes prohibited discrimination. In giving the concept of discrimination a central role in employment discrimination law, Congress also gave the courts a leading role in defining what that concept means. By invoking the concept of discrimination, Congress also invoked the tradition of judicial activism associated with civil rights law. Activist decisions have not always...
- The statutes prohibiting employment discrimination go beyond all of these doctrinal limitations on constitutional law, while retaining the same fundamental purpose and many of the same qualities as the constitutional principle against discrimination. The ultimate goal of both sources of law is to promote equality: to provide equal opportunity in public life without regard to characteristics such as race or sex. In the statutes prohibiting employment discrimination, this purpose is carried beyond government action to private employment; beyond race and sex to other grounds of discrimination, such as age and disability; and beyond intentional discrimination to neutral practices with discriminatory effects. The shared qualities of both statutory and constitutional law are the abstract and open-ended nature of the prohibitions. The Constitution simply requires “due process” and “equal protection of the laws,” while the statutory prohibitions simply prohibit discrimination, although in a...
- This series of decisions had ramifications outside of constitutional law as well, and most directly for employment discrimination law, in the enactment of “fair employment practice” (FEP) laws in several states after World War II. These laws favored administrative enforcement on the model of the National Labor Relations Board and centralized control over enforcement rather than leaving it to individual private actions. The means of enforcement proved to be a source of continuing controversy, but the substantive provisions of state FEP laws provided the model for numerous bills introduced in successive sessions of Congress, one of which eventually became Title VII of the Civil Rights Act of 1964. State FEP laws were only sporadically enforced, and not adopted, until after the decision in . That decision is rightly regarded as the foundation of modern civil rights law, including employment discrimination law.
- The influence and content of the constitutional principle against discrimination remains a matter of controversy, both within constitutional law itself and in its implications for statutory law. The concept of discrimination needs to be defined and articulated in the form of workable standards suitable for enforcement through the legal system. The next chapter takes up this task at the abstract level of defining the overall goal of the laws against employment discrimination, followed by two chapters that examine how this goal is implemented at the concrete level of defining prohibited discrimination. At both levels of analysis, the similarities between constitutional law and the interpretation of statutory law are striking and important.
- the act created the most important of the statutory prohibitions against employment discrimination and the one that most clearly expanded upon the protection offered by the Constitution. The act as a whole prohibited discrimination by a wide range of private entities beyond the reach of the Fifth and Fourteenth Amendments. In addition to Title VII, Title II of the act prohibited racial discrimination in public accommodations, whether these were operated by private entities or by the government, and Title VI prohibited racial discrimination by recipients of federal funds, again regardless of who received these funds. Like these other titles, Title VII extended the constitutional principle against discrimination, in this case, to private employers. In doing so, Title VII enacted into federal law the prohibitions—and indeed, much of the exact language—found in state fair employment practice laws. ...all aspects of employment: hiring, discharge, compensation, fringe benefits, conditions...
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Chapter 2 Discrimination and Equality 45 results (showing 5 best matches)
- Reliance on such alternative conceptions of merit, however, cannot be regularly invoked in interpreting and enforcing the laws against employment discrimination. These laws have limited aims and limited scope, which impose corresponding limitations on the institutional power of courts. As the term itself implies, the laws against employment discrimination apply only to employment. They do not regulate education, social background, or family upbringing, all of which affect an individual’s qualifications for employment. Even if Title VII were to succeed in eliminating all discrimination related to employment, it would still leave great inequalities in other sources of income and in wealth, not to mention many other factors that affect individual ability and motivation. But these laws are limited in another way as well: they prohibit discrimination only on certain specified grounds, such as race or sex. They do not prohibit discrimination based on any of the innumerable factors that...law
- Each of these perspectives provides a separate means of analyzing the laws against employment discrimination, but no one perspective is complete in itself. In any fully developed theory of employment discrimination law, components from each perspective are necessary, with the differences among them mainly a matter of emphasis. Thus, a typical moderate view does not rely solely on the history of the civil rights laws and the types of discrimination that were prevalent immediately before they were enacted. It also must be pluralistic, offering an account of the economic costs and benefits of preventing future discrimination, as well as an assessment of the adequacy of existing remedies for the continuing effects of past discrimination. And conversely, any fully developed theory based on the economic or remedial perspective must also offer an account of how the laws against employment discrimination came to be enacted and the evils to which they were addressed. Only the emphasis...
- If it were to stop there, however, the economic perspective could offer no justification at all for the laws against employment discrimination. If the market is adequate to assess merit, then it is adequate to prevent discrimination when it is unrelated to merit. And in those cases—perhaps few, perhaps many—in which discrimination is related to merit, the law detracts from efficiency by prohibiting discrimination. Thus, legal prohibitions against discrimination are either redundant or counterproductive, but in any case, unnecessary. Repealing these laws would have the advantages of freeing labor markets from unneeded regulation and eliminating the cost of enforcing the regulations themselves. This conclusion takes the economic perspective and its presumption against regulation to its logical extreme: eliminating all regulation of employment decisions.
- Disputes over discrimination are the flip side of disputes over equality: discrimination identifies what is prohibited; equality is what should be achieved. The laws against employment discrimination were passed in order to promote equality, first for racial and ethnic groups and then for other disfavored groups. Just as the nature of prohibited discrimination is contested, so is the kind of equality to be achieved. Many different versions of equality have been proposed and defended, but they can be organized around the emphasis that they give to three different perspectives: historical, economic, and remedial. Speaking very broadly, each of these perspectives is associated with a moderate, conservative, or liberal position on employment discrimination law, but with varying political positions within each perspective and considerable overlap among them.
- None of these perspectives—historical, economic, or remedial—is entirely freestanding, or even entirely independent of competing perspectives. The differences between them, as I have said, are a matter of emphasis rather than a matter of fundamental principle and comprehensive theory. They are three different ways of looking at the laws against employment discrimination, which would have to be combined and reconciled to develop a fully adequate theory. As will emerge in the subsequent chapters in this book, no single perspective can offer a satisfactory description, let alone a justification or critique, of existing law. For example, Richard Epstein offers a comprehensive argument for repeal of the laws against employment discrimination, mainly from the economic perspective. ...perspective that the civil rights laws were necessary to break down barriers to racial equality created by legally imposed segregation. In response to the remedial view, he argues at length for the...
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Chapter 3 Individual Claims of Intentional Discrimination 59 results (showing 5 best matches)
- In the other provision, “intentional discrimination” is given its narrower—and far more common—meaning in employment discrimination law. This meaning refers to the grounds on which an employment decision is discriminatory: an employer intends to discriminate in this sense only by intending to act on the basis of race or some other prohibited characteristic. The provision in question limits damages to cases of “unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact).” As the parenthetical phrase indicates, the statute distinguishes between intentional discrimination and disparate impact. The former (sometimes also called disparate treatment) involves consideration of race or some other prohibited characteristic; the latter involves only discriminatory effects. Liability for employment practices that have a disparate impact, discussed in detail in the next chapter, emphasizes the effects of employment decisions, not the process...
- No decision in employment discrimination law has been cited more frequently than . Yet none has had a more ambiguous legacy. This single decision has made shifting burdens of proof a dominant theme in employment discrimination law. Even apart from individual claims of intentional discrimination, most of the substantive law under Title VII concerns who has the burden of proof on a variety of different issues. But despite the proliferation of shifting burdens of proof, fundamental issues have been left unresolved and even the outcome of particular cases has been left to depend upon all the evidence in the record. These failings have led to continued refinements of these burdens, or alternatively, to calls to channel employment discrimination cases to forms of alternative dispute resolution, principally arbitration.
- Robert Post, Prejudicial Appearances: The Logic of Antidiscrimination Law, 88 Calif. L. Rev. 1, 8–16 (2000)
- Title VII does not contain any definition of intentional discrimination as a technical term of art. Neither do any of the other statutes modeled on Title VII. In this respect, the statutory law of employment discrimination follows constitutional law in leaving the exact nature of what is prohibited without any precise definition. In fact, the phrase “intentional discrimination” is at least partly redundant. All discrimination is intentional in some sense because it requires noticing or acting on some kind of distinction. In ordinary English, outside of civil rights law, the phrase “to discriminate” carries no negative connotations and simply means to “make a distinction,” which is an activity that cannot be done inadvertently or accidentally. Exactly what kind of distinction transforms discrimination into a morally disapproved and legally prohibited activity remains controversial, but the most natural answer is found in the main statutory prohibitions against employment discrimination.
- The prohibition against intentional discrimination is framed according to the negative conception of equality. It is a prohibition against considering characteristics such as race or sex in making employment decisions. In this respect, it follows the historical perspective in focusing upon previously widespread forms of discrimination. But where these forms of discrimination were open and explicit in the past—simply excluding racial minorities and women from particular jobs—they have become hidden and implicit today. After the passage of Title VII, any employer engaged in overt discrimination on these grounds would face a great risk of liability. Employers have adjusted to the requirements of Title VII by eliminating the most obviously discriminatory employment practices, and even when they cannot succeed in doing so, they have strong reasons to settle claims arising from overt discrimination that can be easily proved. It is only the less obvious forms of discrimination that are any...
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Chapter 13 State Laws 14 results (showing 5 best matches)
- Just as the modern law of employment discrimination began with state law, it is fitting to conclude this survey with an account of where state law stands today. When Title VII was enacted, 21 states had laws against employment discrimination, limited mainly to discrimination on the basis of race, national origin, and religion. Discrimination on the basis of sex was generally prohibited only in a handful of states, although almost half had requirements of equal pay for equal work. This situation changed rapidly after the passage of Title VII, whose enforcement provisions established a system of “cooperative federalism” requiring resort to state and local administrative remedies before filing a charge under Title VII. Today, all the states, except a few in the deep South, have laws prohibiting discrimination on the same grounds as Title VII, and most of those that do not have joined the remainder of the states in prohibiting discrimination on the basis of age and disability.
- State law has a broader reach because, both figuratively and practically, it is closer to the individuals and firms that fall within its scope. This proximity increases the political support for laws against employment discrimination, as evidenced by the fact that these laws have now been enacted by nearly all the states. The coverage of state law can therefore be more extensive, reaching employers that are not covered by Title VII. Some, but not all, of the state laws against employment discrimination reach employers with fewer than the threshold of fifteen employees that triggers coverage under Title VII. State laws can also have special provisions which, although they overlap to a large extent with Title VII, provide additional remedies with respect to state employment and state contracts.
- State laws against employment discrimination generally follow federal law, both in their explicit provisions and in how those provisions are interpreted. Only occasionally does state law depart from federal law in the areas in which both overlap. The most significant differences arise in the area in which state law does not overlap with federal law, but in which its coverage extends further.
- State law initially contributed to the law of employment discrimination by providing a model for federal laws such as Title VII. It does so now by extending coverage, in a modest way to smaller employers, but in a more innovative fashion to additional grounds of prohibited discrimination, such as marital status and sexual orientation. Procedurally, state laws have also offered a wider and more effective array of administrative remedies than federal law. In all of these respects, state laws continue to provide models for possible changes in federal law.
- State laws also differ from federal law in covering additional grounds of discrimination. These range from discrimination on the basis of sexual orientation, now prohibited by a near majority of states, to discrimination on the basis of marital status. The significance of these added grounds of discrimination lies in their use as a model for other states and the federal government. For instance, bills have been regularly introduced in Congress to amend Title VII to prohibit discrimination on the basis of sexual orientation, and the latest, the Equality Act, passed the House of Representatives on May 20, 2019. The Supreme Court then stepped in and interpreted the prohibition against sex discrimination in Title VII to reach discrimination on the basis of sexual orientation and gender identity. Discrimination on these grounds nevertheless remains controversial and has resulted in constitutional decisions restricting the coercive effect of such laws to protect the right of free...
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Introduction 4 results
- My own perspective emerges clearly enough in what follows. Within the limits of a realistic appraisal of what the law can accomplish in changing social practices, I believe that the laws against employment discrimination play a useful role in remedying the persistent inequalities of American life. To say this is not to say very much. It is necessary also to identify the specific forms of inequality to be remedied and the means to do so. It is at this point where the most fundamental disputes break out over the aims and methods of employment discrimination law. Disputes over the kind of equality to be achieved are the flip side of disputes over the kinds of discrimination to be prohibited: Equality is the end, and prohibitions against discrimination are the means. My purpose in this book is not to offer an extended argument for my own beliefs on these questions, but to describe the law as it is and as it is likely to develop: to provide an introduction to the statutes and decisions,...
- Over the latter half of the twentieth century, the field of employment discrimination law grew from a minor specialty into a flourishing branch of legal practice. It began, modestly enough, with the passage of fair employment practice statutes in several states before the decision in . That decision, in 1954, changed the landscape of civil rights law, and much else besides. By the end of the decade that followed, nearly half the states had passed fair employment practice laws, and Congress had passed the most important civil rights legislation in American history, the Civil Rights Act of 1964. Title VII of this act contained the first general prohibition against employment discrimination in federal law, and from this point forward, Title VII, together with the constitutional decision in provided the framework for the subsequent development of employment discrimination law. This body of law is almost wholly statutory, but it is deeply influenced by the active role taken by the...
- Accordingly, this book begins with a brief historical survey of the development of the law in this field. It is immediately followed by an exposition and analysis of the major theoretical approaches to the law as it has developed. From these abstract considerations of history and theory, the next chapters move to concrete questions of interpretation and enforcement of the major statute in this field, Title VII of the Civil Rights Act of 1964. The substantive provisions of Title VII are examined initially with an emphasis on their application to discrimination on the basis of race, with other grounds of discrimination considered as they introduce exceptions and qualifications to these basic prohibitions. Separate chapters examine procedures and remedies under Title VII, topics of some complexity but also of great practical significance. The following chapters examine statutes enacted entirely separately from Title VII. Some of these statutes, such as the various Reconstruction civil...
- Decisions interpreting the laws against employment discrimination have multiplied, as have the books and articles commenting on these developments. As the law in this field has become more complex and technical, it also has become less accessible. In such a large and growing field, any attempt at detailed analysis across the full range of significant issues would require a lengthy treatise or casebook, and several have been published. This book has a different aim: to provide a critical introduction to the field. Just as this book must be selective in its coverage, it must also be ...positions. Criticism must inevitably be offered from one perspective rather than another. I have tried to identify the unifying principles in this body of law and to provide a framework for their application and analysis. Advocates from different points of view often take controversial positions on these issues, and while it is impossible to remain wholly neutral, I have tried to present each point of...
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Chapter 10 Reconstruction Civil Rights Acts 26 results (showing 5 best matches)
- The modern law of section 1983 begins with which interpreted the statute to provide a remedy for all deprivations of constitutional rights under color of state law, even if state law itself provided a remedy. This holding made section 1983 the vehicle for enforcing all constitutional rights against the state, including those based on the constitutional prohibitions against discrimination. Before the enactment of Title VII and its amendment to cover states and localities as employers, section 1983 already provided a remedy for employment discrimination by state and local officials. Moreover, with the recognition of a constitutional prohibition against sex discrimination within a decade after passage of Title VII, section 1983 covered all the same grounds of discrimination as Title VII: race, national origin, sex, and religion. Employees of state and local government therefore have overlapping remedies for employment discrimination under section 1983 and Title VII. The overlap results...
- section 1981 apparently led the Supreme Court to have second thoughts about extending the statute to all forms of private discrimination. In the Court held that the literal terms of section 1981, as it then read, covered only discrimination in making or enforcing contracts, leaving claims of discrimination in conditions of employment to be remedied under Title VII. This decision prompted Congress to amend section 1981 in two significant respects in the Civil Rights Act of 1991. First, Congress put to rest any debate over the application of section 1981 to private discrimination by explicitly providing that the statute applied to “nongovernmental discrimination” in addition to discrimination under color of state law. and made section 1981 applicable to all aspects of any contractual relationship, including conditions of employment.
- This overlap, of course, is only partial. Title VII’s great innovation was to extend the constitutional prohibition against discrimination to private employment. Section 1983 expressly refrains from taking this step by requiring action under color of state law, a statutory requirement that follows the Fourteenth Amendment’s limitation to state action. And even when this requirement is satisfied, the content of the prohibitions differs in significant respects. The constitutional prohibition enforced by section 1983 extends only to intentional discrimination, not to practices that have a disparate impact. Evidence of disparate impact may be used to prove intentional discrimination, but an additional inference about the intent of government officials must be drawn in order to reach this conclusion. Disparate impact alone does not constitute a violation of the Constitution.
- the Supreme Court held that section 1982 prohibited housing discrimination by private individuals. The Court relied upon the enactment of the Civil Rights Act of 1866 under the Thirteenth Amendment, with its power to reach entirely private conduct. The reasoning of this decision was then applied without further question to claims under section 1981 alleging discrimination by private employers. This decision, interpreted section 1981 to provide a remedy for employment discrimination that is entirely independent of Title VII. Yet the enactment of Title VII only a few years earlier plainly diminished the practical significance of the extension of section 1981 to private discrimination. Insofar as it applied to employment discrimination, section 1981 mainly prohibited conduct that was already prohibited by Title VII.
- This chapter begins with a brief summary of the law under section 1983. An exhaustive treatment would require an entire book, but even a brief discussion of section 1983 illustrates the pervasive influence of constitutional law throughout the law of civil rights. The following section examines section 1981 and takes up both its similarities and contrasts with constitutional law, and its parallel development with interpretation of Title VII. The chapter concludes with a short discussion of another highly technical statute enacted during Reconstruction: section 1985(3), which nevertheless has some bearing on employment discrimination claims.
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Chapter 11 The Age Discrimination in Employment Act 30 results (showing 5 best matches)
- Unlike the statutes discussed in previous chapters, the Age Discrimination in Employment Act (ADEA) raises issues predominantly under the economic perspective on employment discrimination. There is no history of discrimination against older workers comparable to that against racial and ethnic minorities and against women. Recent legislation, far from discriminating against older workers, has instead conferred benefits upon them, through such major programs as Social Security and Medicare and, with respect to employment, through protection of pension benefits under the Employment Retirement Income Security Act (ERISA). Unlike discrimination on the basis of race, national origin, sex, or religion, discrimination on the basis of age is not suspect as a matter of constitutional law.
- The ADEA prohibits age discrimination in almost exactly the same terms as the prohibitions in Title VII. This should come as no surprise, either as a matter of theory or as a matter of history. Title VII is the single most important enactment in employment discrimination law, and it has therefore served as the model for all subsequent legislation in this field. The ADEA itself actually originated in a provision in Title VII requiring a study by the Secretary of Labor of the employment opportunities of older workers. This study found considerable prejudice against hiring older workers—a finding emphasized in the subsequent legislative debates over the ADEA. Although this finding is at odds with the life-cycle theory of earnings, which emphasizes termination of older workers rather than failure to hire them, it was used to support a prohibition against age discrimination, modeled on Title VII, covering all aspects of employment.
- Nevertheless, an opposite and equally valuable lesson can be drawn from the breadth of the ADEA. It is that laws against employment discrimination protect the majority as well as the minority and that everyone benefits from general prohibitions against discrimination in public life. Paradoxically, in identifying a genuine protected class of older workers, the ADEA has broadened, not narrowed, the coverage of the civil rights laws, extending the principle against discrimination to groups that do not usually benefit from its protection. In doing so, the ADEA has also broadened the base of popular support for these laws, both in the legislature and in the process of enforcement and compliance that determines their ultimate effectiveness. And in going beyond the protection of traditional civil rights groups, the ADEA has reinforced the willingness of the majority to support civil rights laws, a necessary condition of any effective legislation in a democratic society.
- In states that do not have an agency that enforces a state law against employment discrimination on the basis of age, the charge must be filed with the EEOC within 180 days of the alleged discrimination. In states that do have an appropriate agency, the charge must be filed with the EEOC within 300 days of the alleged discrimination or 30 days of notice of termination of state proceedings, whichever is earlier.
- Nor does age discrimination have the kind of cumulative effects that forms of discrimination have, or at least none that would warrant a broad interpretation of the ADEA to remedy the effects of past discrimination. Age discrimination does not apply to a discrete and insular minority, but to individuals who may have had a full range of opportunities and advantages earlier in life. It does not limit the employment opportunities available to a fixed class of people and their descendants. It applies only to an ever-changing cohort of older workers. A remedial perspective therefore confronts no persistent effects of age discrimination that need to be remedied.
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Chapter 6 Sex Discrimination Under Title VII and the Equal Pay Act 69 results (showing 5 best matches)
- Title VII is the most important federal prohibition against sex discrimination in employment, but it was not the first. It was preceded by the Equal Pay Act of 1963, which was enacted by the same Congress that enacted the Civil Rights Act of 1964. In contrast to Title VII, the Equal Pay Act prohibits only sex discrimination, only in compensation, and only when women and men perform equal work. The interpretation and enforcement of both Title VII and the Equal Pay Act have been complicated by the history of their enactment. As noted in Chapter 1, constitutional law did not develop a general prohibition against sex discrimination until several years after the enactment of Title VII. This sequence of constitutional law following statutory law was the reverse of that for racial discrimination, in which constitutional decisions came first. The statutory prohibitions against sex discrimination, however, had no pre-existing basis in constitutional law, raising persistent questions which...
- The prohibition against sex discrimination in Title VII follows the model of racial discrimination in one crucial respect: it is in large part a formal prohibition, against considering sex in any decision related to employment. It departs from the model of race in other ways, such as admitting exceptions that do not apply to racial discrimination, but these exceptions have been narrowly construed. As we have seen, for instance, the Bennett Amendment has been narrowly interpreted to prohibit all forms of intentional sex discrimination with respect to pay. And outside the scope of the Bennett Amendment, claims of sex discrimination can also be established under the theory of disparate impact. So a formal interpretation does not exhaust the scope of the prohibition against sex discrimination in Title VII. Nor does a formal interpretation capture all aspects of the law of sexual harassment. Yet a formal interpretation goes surprisingly far in explaining the prohibition against sex
- Theoretical disputes over the various perspectives on employment discrimination law seldom make an immediate difference in concrete cases. Yet when they do, the differences are profound and enduring. Abstract differences in theory yield competing arguments that affect the overall direction and scope of the law. Interpretation of the prohibitions against sex discrimination in Title VII and the Equal Pay Act has settled on an uneasy reliance upon a formal approach, although one not quite equivalent to the conception of equality as colorblindness. Where enforcing an absolute prohibition upon considering sex increases the employment opportunities of women, the courts have been content to follow the model of colorblindness. Where exceptions and qualifications are necessary, as in the law of sexual harassment, alternative conceptions of equality have come into play. These leave room for arguments based on the entire range of theories about the nature of sex discrimination and how best to...
- This cautious approach might well have been justified in the first federal legislation concerned with sex discrimination in employment. Before the passage of the Equal Pay Act, only two states had general laws against sex discrimination in employment and no more than half the states had laws requiring equal pay for equal work. Without widespread experience with these laws, Congress framed its initial effort at regulation narrowly. The great irony, of course, is that the very same Congress, only a year later, would enact the very broad prohibition against sex discrimination in Title VII.
- The most apparent of these provisions are in the Equal Pay Act, with its narrow prohibition against sex discrimination in pay in jobs involving equal work. The substantive and procedural provisions of this act are discussed in the first section of this chapter. Proceeding in chronological order, the next section takes up the consequences of the enactment of Title VII, and in particular, the relationship between its broad prohibition against sex discrimination and the narrow prohibition of the Equal Pay Act. The uncertain relationship between these prohibitions derives from the unusual way in which sex was added to Title VII, as an amendment on the floor of the House of Representatives without any previous consideration by committee. A third section then considers the general nature of the prohibition against sex discrimination in Title VII and its interpretation according to the model of colorblindness in the law of racial discrimination. A formal interpretation according to this...
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Chapter 7 Other Forms of Discrimination and Defenses Under Title VII 44 results (showing 5 best matches)
- None of the different perspectives on employment discrimination law justifies a departure from the model of race for classifications on the basis of national origin. The history of discrimination against national origin groups, such as Chinese and Hispanics, is just as worthy of condemnation as discrimination against groups conventionally defined by race. And in the case of some of these national origin groups, like the Chinese, discrimination on the basis of national origin is difficult to distinguish from discrimination on the basis of race. The economic theory of discrimination draws no distinction between racial and national origin groups, relying instead on tastes for discrimination and stereotyping, which apply equally to discrimination on both grounds. The remedial perspective, as well, is not limited to racial discrimination. It supports special compensatory measures to counteract the effects of other forms of discrimination. Each of these perspectives might yield different...
- Title VII extends the model of racial discrimination beyond sex to national origin and religion. These forms of discrimination raise distinctive issues and present further variations on the different approaches—historical, economic, and remedial—that can be brought to bear on employment discrimination law. With respect to discrimination on the basis of national origin, the similarities to racial discrimination are dominant, but with respect to discrimination on the basis of religion, it is the differences that are striking. Like any complex regulatory scheme, Title VII also contains ancillary prohibitions that assist in enforcement of the statute. This chapter discusses the prohibitions against retaliation and against discrimination in advertising. A few defenses and limits on coverage, which cut across all of the prohibitions in Title VII, also deserve a brief discussion. They raise issues of practical significance and illustrate the compromises embedded in any piece of legislation...
- As this last point illustrates, constitutional law exercises a more direct influence over the definition of religious discrimination than over discrimination on other grounds. Most of this influence results from the dual nature of the protection of religion under the First Amendment, both against any law “prohibiting the free exercise” of religion, as well as any law “respecting an establishment of religion.” Between these two clauses in the First Amendment, there is only a narrow range left for the permissible operation of the legal prohibitions against religious discrimination.
- The BFOQ creates a narrow exception to the prohibitions against discrimination on the basis of sex, national origin, and religion, but not to the prohibition against discrimination on the basis of race. The omission of a BFOQ for race reflects a deliberate congressional decision to prohibit all racial classifications in employment. It also creates the anomaly that some classifications on the basis of national origin are permissible, while similar classifications on the basis of race are not. By contrast, in constitutional law, the two forms of discrimination have been considered to be so similar that the prohibitions against each have been regarded as equivalent.
- Congress addressed the systematic connection between national origin and alienage in a comprehensive revision of the immigration and naturalization laws, the Immigration Reform and Control Act of 1986. This act contained two complicated prohibitions against employment discrimination. The first was designed mainly to protect aliens who were lawfully in this country and had the right to work here despite their status as aliens. It extends, however, to any “protected individual,” which includes citizens and several technically defined categories of aliens, and it prohibits any form of discrimination on the basis of “citizenship status.” The second prohibition is against discrimination on the basis of national origin, but only by employers who are not covered by Title VII because they have fewer than fifteen employees.
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Preface 3 results
- In the years since the original edition of this book, employment discrimination law has gone in two different directions, broader and more general on the one hand, and narrower and more specific on the other. Prohibitions against discrimination have expanded to recognition of the rights of LGBTQ individuals, as the Supreme Court made clear in a landmark decision interpreting Title VII. In another direction, the case law has become more refined and nuanced on a wide range of issues, from claims of retaliation, to proof of intentional age discrimination, to certification of class actions. All of these developments need to be accounted for and brought within a comprehensible structure. This need has only increased as the law has expanded in scope and become more complicated.
- This book is intended as an introduction to the field of employment discrimination law, both at the abstract level of theory and at the concrete of level of doctrine. It is an introduction as much for experienced lawyers and scholars who come to this field for the first time, as for law students who have just begun their careers. My hope is that it will convey to everyone within this broad audience the basic structure of this field, and more importantly, the fundamental questions that animate it. These are questions, I believe, that go to the heart of our nation’s commitment to civil rights and the struggle over competing visions of equality in American life. This introductory text cannot attempt to answer these questions. Its aim, instead, is to reveal the influence that they have exercised over both the form and content of employment discrimination law. Technical legal rules, as much as grand statements of principle, have been shaped by the different perspectives that can be taken...
- In attempting to demonstrate the influence of abstract propositions over concrete cases and doctrines, I have drawn on assistance from many sources. All of these are connected in one way or another to my colleagues and students at the University of Virginia School of Law. For their continuing challenges, criticisms, and inspiration, I am very grateful.
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Chapter 5 Affirmative Action 38 results (showing 5 best matches)
- The constitutional and statutory standards diverge in other respects as well, illustrating how employment discrimination law has developed and changed from its origins in constitutional law. First, as was emphasized in , the constitutional standards do not reach all forms of affirmative action in employment, only those involving sufficient government action to trigger the application of the Fifth Amendment (to the federal government) or the Fourteenth Amendment (to the states). Government action in employment discrimination cases can take two different forms: court-ordered remedies, such as injunctions, or action taken by the government as an employer itself. Second, even when the Constitution does apply to an affirmative action plan through these means, different standards
- Beneath all of the doctrinal complexity of these different sources of law lies a fundamental question about affirmative action: how far to follow each of the different perspectives on employment discrimination law, and, in particular, how far to take the remedial perspective in compensating for past discrimination in the absence of proof that the beneficiaries of affirmative action have actually suffered from past discrimination, no matter how remote it may be. Limiting remedies only to proven victims of discrimination—as is done routinely for all other claims of discrimination—would leave many instances of discrimination entirely without any remedy. The small amount of any possible recovery, procedural obstacles such as the statute of limitations, or simple inadequacy of evidence, prevent many otherwise meritorious claims from being successfully prosecuted. The remedial perspective seeks to fill this gap in ordinary enforcement of the civil rights laws by prescribing broader...
- He reasoned that the preference was defective because it was not based on evidence of past employment discrimination by the school district, but on the need to provide minority students with role models and on the existence of general societal discrimination. Although he would not have required findings of discrimination to be made when the preference was adopted, he found insufficient evidence of past discrimination by the school district. He also found that the preference was not narrowly tailored to remedy past discrimination because it imposed too great a burden upon laid-off white employees. Justice O’Connor agreed with Justice Powell on the absence of evidence of past discrimination, but she found the preference to be unrelated to remedying any form of employment discrimination since it was designed to match the percentage of minority teachers with the percentage of minority students.
- With the prominence given to constitutional litigation over affirmative action, the validity of the OFCCP regulations, like the EEOC regulations on the same subject, is likely to be determined only after the constitutional question is settled. On this issue, more than any other in employment discrimination law, the influence of constitutional law goes far beyond its immediate doctrinal implications. It provides the framework and much of the content for narrower arguments over statutes and regulations on the same subject. The interpretation of these nonconstitutional sources of law depends in large part on the ultimate resolution of the constitutional questions.
- Two sets of regulations, both familiar only to specialists in employment law, deal with affirmative action in employment. One set, promulgated by the EEOC, attempts to prescribe standards for permissible preferences under Title VII. The other, far more comprehensive and far more significant, has been promulgated by the OFCCP in the Department of Labor. The OFCCP regulations implement executive orders that prohibit discrimination and require affirmative action by federal contractors. Both sets of regulations have been cited by the Supreme Court in its decisions on affirmative action, but in a telling omission, not on points of any significance. The Court has neither held the regulations invalid nor attempted to offer a limiting interpretation of their provisions. Consequently, both sets of regulations have an uncertain degree of authority, enough so that employers cannot ignore them, but not so much that courts are bound by their literal terms.
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Index 57 results (showing 5 best matches)
Title Page 2 results
Chapter 4 Class Claims: From Intentional Discrimination to Disparate Impact 70 results (showing 5 best matches)
- Barbara Lindemann Schlei & Paul Grossman, Employment Discrimination Law 113 n.106 (2d ed. 1983) (criterion validation costs estimated at between $100,000 and $400,000 in 1978).
- If the theory of disparate impact is designed only to prevent hidden discrimination, then it would result in liability only when there was evidence of disparate treatment (evidence not strong enough, however, to justify a finding of intentional discrimination), and it would impose a significant, but not overwhelming, burden on the employer to show that a disputed employment practice was related to performance on the job. The theory would ease the plaintiff’s burden of proving intentional discrimination, but only to a degree. By contrast, if the theory of disparate impact is designed to discourage employment practices that disproportionately exclude members of minority groups and women, then it would result in liability in the absence of evidence of disparate treatment and it would impose a heavy burden of justification on the employer. The theory would serve the independent purpose of eliminating neutral employment practices that imposed systematic disadvantages upon racial...
- so that a charge filed with the Equal Employment Opportunity Commission (EEOC) can properly seek relief only for discrimination occurring within the preceding 300 days. Only discrimination that occurred during this period and after the effective date of Title VII constitutes an actionable violation of Title VII. Discrimination that occurred earlier can no longer be the subject of a timely claim. The existence of such discrimination can still support an inference of discrimination within the appropriate period, but it is only evidence, not the fact that must be proved. For the same reason, the appropriate comparison is not with the racial composition of the employer’s current work force, which may reflect the cumulative effect of discrimination outside the relevant period determined by the statute of limitations. The correct figure is limited to the pool of employees actually hired over the relevant period defined by the statute of limitations. ...of discrimination that itself...
- The ambiguity in the theory does not only result from the competition between the historical and remedial perspectives in the law of employment discrimination. It also results from the ambiguity latent in the economic perspective between merit as determined by the employer, supporting management discretion, and merit as determined by some objective standard, resulting in judicial reexamination of management decisions. In individual claims of intentional discrimination, merit appears in the first sense, allowing employers a wide range of choices among “legitimate, nondiscriminatory reasons” for disputed employment decisions. In class claims of disparate impact, employers must advance a stronger justification for practices that have a disparate impact. Exactly how much stronger has been a matter of continuous dispute dating back to the original decision in
- Much more might be added to the discussion of statistical evidence and its relationship to the plaintiff’s prima facie case. Disputes over statistical techniques, labor market analysis, the reliability of underlying data and whether all these considerations, taken together, permit a finding of intentional discrimination, can be found throughout the cases on proof of class-wide disparate treatment. What is remarkable about these issues, however, is how they stand at one remove from a purely negative conception of equality, with its emphasis on “colorblindness”—on what cannot be considered in making employment decisions. Disputes over statistical evidence look only to the effects of an employer’s personnel practices, not its decision-making process in adopting or applying those practices. Of course, inferences from effects to intent have long been recognized in the common law. And conversely, individual instances of discrimination have routinely been used as anecdotal evidence of...
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Chapter 8 Procedures Under Title VII 42 results (showing 5 best matches)
- and conversely, that the time limits under other employment discrimination statutes are not tolled during resort to administrative proceedings under Title VII. Together, these decisions stand for the general principle that the special procedures, and in particular, the time limits, for pursuing different remedies for employment discrimination must be satisfied independently. Several different claims might arise out of one act of discrimination, but insofar as they are based on different sources of law, the special procedures for each of them must be separately satisfied.
- This last clause indicates the prominent role that class actions have played in the enforcement of Title VII. Class actions were frequently certified in the period immediately following enactment of Title VII under the principle that “racial discrimination is by definition a class discrimination.” This trend was abruptly halted by a series of decisions by the Supreme Court in the late 1970s. In subsequent years, private litigation has remained a significant means of enforcing Title VII, but mainly through individual actions, which have largely determined the kinds of claims, the nature of relief, and the types of plaintiffs that are most common in employment discrimination cases. The conditions and restrictions on private actions have accordingly exercised a pervasive influence over the development of the law under Title VII.
- The time limits for filing with the EEOC depend upon the existence of a state or local agency to enforce a statute or ordinance against employment discrimination. In a state or locality without such an agency, of which very few are left, a charge must be filed with the EEOC within 180 days of the alleged discrimination. In a state or locality with such an agency, a charge must be filed with the EEOC within 300 days of the alleged discrimination or within 30 days of notice of termination of state or local proceedings, whichever period expires first.
- Considered separately, the policies behind each stage of a Title VII case appears to have some plausible support. Encouraging resort to state and local remedies generates greater support for the ultimate goal of eliminating employment discrimination. Fostering settlement avoids the further costs of litigation. Limiting the power of the EEOC as a federal agency assures that cases will ultimately be resolved by the impartial authority of the courts. And encouraging plaintiffs to sue through an award of attorney’s fees provides individuals with an opportunity to obtain full legal representation, even if they would not otherwise have the means to do so. Yet considered together, these policies yield a complex system of enforcement that threatens to sidetrack employment discrimination cases into a multitude of collateral procedural issues.
- the Court again held that a class action had been erroneously certified, this time by the district court, because the class consisted of applicants for employment, but the named plaintiff was an employee who alleged discrimination on his own behalf only in promotions. In the Court stated: “We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving class-wide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of , the Court added that the “across-the-board” rule led to neglect of the requirements of Rule 23, but the Court left open the possibility that employment practices applicable to employees and applicants might justify certification of an equally broad class. affirming the denial of class certification in some respects, but not others, based on differences in the conditions of employment of class members working at different locations.
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Chapter 12 Disabilities 35 results (showing 5 best matches)
- Under the original version of the ADA, plaintiffs who brought disability discrimination claims experienced a remarkably low level of success, less than ten percent in claims litigated to judgment. Other studies found no increase in employment of individuals with disabilities after passage of the ADA, although these studies stopped short of proving that this shortfall in employment resulted from the ineffectiveness of the ADA, as opposed to other factors.discrimination. Providing government benefits to such individuals might be more effective than protecting them from discrimination.
- The Rehabilitation Act has three different provisions that apply to employment: section 501, which prohibits discrimination and requires affirmative action on the basis of disability by federal agencies; section 503, which requires federal contractors to “take affirmative action to employ and advance in employment qualified individuals with disabilities”; and section 504, which prohibits discrimination against otherwise qualified individuals with disabilities in federally assisted programs. Title VI of that act (to be distinguished from Title VII) prohibited racial discrimination in programs receiving federal funds. Following this model, the extent of federal regulation under the Rehabilitation Act depends upon the degree of federal involvement in the program. Sections 501 and 503 impose an obligation upon federal agencies and federal contractors to engage in affirmative action, but section 504 does not require recipients of federal funds to do so.
- Title VI of that act prohibited racial discrimination by the recipients of federal funds. . This title, however, did not apply to employment discrimination, which was covered only by Title VII.
- This chapter begins chronologically, with the Rehabilitation Act and a discussion of its prohibitions against employment discrimination. The next section discusses the ADA. Subsequent sections address two fundamental issues common to both statutes: the definition of protected individuals with a disability and the scope of the duty of reasonable accommodation.
- Christine Jolls & J.J. Prescott, Disaggregating Employment Protection: The Case of Disability Discrimination, Nat’l Bureau of Econ. Res. Working Paper Series, vol. 10740 (2004) (available at ) (finding state-by-state variations in employment of individuals with disabilities after enactment of the ADA).
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Chapter 9 Remedies 28 results (showing 5 best matches)
- Yet these claims do not open up new job opportunities for minorities or women to the same extent as cases brought by applicants for employment. Current or former employees have already passed the initial hurdle to acceptance by an employer, and although they may allege discrimination in working conditions, promotions, or termination decisions, they do so as much to preserve existing opportunities as to expand them. Preserving existing opportunities is a worthy goal, but it is more appropriate to the conventional historical perspective on employment discrimination, rather than the broad remedial perspective. It envisages limited changes through individual litigation, rather than far-reaching reforms through procedural devices such as class actions. This tendency toward incremental change is reinforced by the method for computing attorney’s fees.
- provides the model for other laws against employment discrimination, the remedies available under Title VII, and the issues that they raise, largely determine the scope and nature of relief under these other statutes.
- The principal criticism of the lodestar method of calculating fee awards is that it creates the wrong incentives for plaintiffs’ attorneys. Because it does not compensate attorneys at all for cases that they lose, it encourages them only to take cases that they are likely to win. In the cases they actually win, they receive the lodestar amount but without any enhancement for the difficulty or riskiness of the case. In cases that they lose, they recover nothing at all from the defendant, and, on the assumption that employment discrimination plaintiffs have limited means, they receive only minimal compensation directly from the plaintiffs. The attorneys gain no net benefit, and are likely to suffer a net loss, from taking risky cases. They are better off taking only the cases described earlier, in which the plaintiff is well acquainted with the defendant’s employment practices and is likely to obtain a substantial recovery of back pay or damages.
- Equitable remedies can take a variety of forms, from injunctions prohibiting future discrimination or restructuring employment practices, to individual awards of back pay and seniority. The early predominance of equitable relief in the enforcement of Title VII resulted from the presumed disadvantages of jury trial. As originally enacted, Title VII authorized only “equitable relief,” taking the traditional equitable form of the injunction as the model for most remedies, but also including monetary relief in the form of back pay. ...of the district court. Allocating these issues to the court necessarily took them away from the jury, along with any role in adjudicating the underlying claims of discrimination. This removed the possibility of jury nullification, thought to be a significant threat in the South in the years immediately after enactment of Title VII. Although damages are now available to remedy violations of Title VII—and with them, the right to jury trial—questions...
- Class-wide relief can be sought either in class actions brought by private plaintiffs or pattern-or-practice actions brought by the government. The shift from individual to class claims does not change the standards governing relief under Title VII, but it does change the way in which those standards are applied. It also invites consideration of how a broad remedial conception of equality can be brought to bear through large-scale litigation. Awards of compensatory relief to plaintiffs in individual actions, no matter how comprehensive, do not directly change the employment practices of institutional employers. Relief in class actions and pattern-or-practice actions can directly accomplish this result. And, indeed, for victims of discrimination with claims too small to support an individual action, class claims are the only practical means to award any relief to them at all. Such relief often can only be approximate because of the difficulties of determining how an entire class of...
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Table of Contents 13 results (showing 5 best matches)
Editorial Board 8 results (showing 5 best matches)
- William B. Graham Distinguished Service Professor of Law and Former Dean of the Law School
- Sterling Professor of International Law and Former Dean of the Law School
- Sho Sato Professor of Law
- Dean and the Sol & Lillian Goldman Professor of Law
- Bonnie and Richard Reiss Professor of Constitutional Law
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- Publication Date: December 14th, 2020
- ISBN: 9781647085698
- Subject: Employment Discrimination
- Series: Concepts and Insights
- Type: Hornbook Treatises
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Description:
This book provides an introduction to the field of employment discrimination law, both at the abstract level of theory and at the concrete level of doctrine. It is as much an introduction for experienced lawyers and scholars who come to this field with a thorough knowledge of other aspects of the law as for law students who have just begun preparing for their careers. The leading decisions of the Supreme Court receive a comprehensive analysis, in terms both of theory and doctrine, putting them in the context of the relevant statutory provisions and other judicial decisions. This book offers three different theoretical perspectives–based on history, economics, and critical social theory–to explain both the complexities and the tensions inherent in existing law.
The new edition of this book addresses several major developments in the field, which have gone in two different directions: towards broader and more general prohibitions, and at the same time, towards exceptions recognized on a variety of grounds. The broad trend is epitomized by the Supreme Court’s interpretation of Title VII’s prohibition against sex discrimination to include discrimination on the basis of sexual orientation and gender identity. The Supreme Court took this step in the wake of constitutional decisions legitimizing gay and same-sex marriage. It also acted despite the repeated failure of bills in Congress that would have explicitly prohibited employment discrimination on the basis of sexual orientation and gender identity. The restrictive tendency is evident in decisions recognizing and expanding the constitutional right of religious organizations to choose ministers and teachers of faith regardless of the laws against employment discrimination. All of these major developments, and others as well, are covered in the new edition of this book.
