1. 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

2. North Carolina

3. Overview Introduction to U.S. anti-discrimination principles – U.S. Constitution and employment discrimination statutes Theories of employment discrimination Types of remedies available Questions

4. 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.”

5. Brown v. Board of Education (1954) Challenge to system segregated education -- “separate but equal” schools for white and African- American children

6. 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

7. Stereotyping as Discrimination Women are bad drivers. African Americans are not smart. Men are strong; women are weak. African Americans are good athletes.

8. 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

9. 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

10. 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

11. Protected Categories Race Color Religion Sex National origin Age (ADEA) Disabilities (Rehabilitation Act and ADA)

12. Theories of Discrimination Individual Discrimination (“disparate treatment”) Group discrimination (“systemic disparate treatment”) Disparate impact

13. 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?

14. 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

15. 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.

16. 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

17. 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

18. 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

19. 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

20. 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?

21. 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

22. 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

23. 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

24. 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

25. 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?

26. 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

27. Questions?