CASE 42-3
RICCI v. DESTEFANO
Supreme Court of the United States, 2009
567 U.S. 557, 129 S. Ct. 2658, 174 L.Ed.2d 490
http://scholar.google.com/scholar_case?case=8509283780298736470&q=557+U.S.+.557&hl=en&as_sdt=2,34
Kennedy. J.
In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of
lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the
stakes were high. The results would determine which firefighters would be considered for
promotions during the next two years, and the order in which they would be considered. Many
firefighters studied for months, at considerable personal and financial cost.
When the examination results showed that white candidates had outperformed minority
candidates, the mayor and other local politicians opened a public debate that turned rancorous.
Some firefighters argued the tests should be discarded because the results showed the tests to be
* * *
Title VII of the Civil Rights Act of 1964, [citation], prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional
discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not
intended to discriminate but in fact have a disproportionately adverse effect on minorities
(known as “disparate impact”). As enacted in 1964, Title VII’s principal nondiscrimination
provision held employers liable only for disparate treatment. That section retains its original
wording today. It makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” [Citation.] Disparate-treatment cases present “the most easily understood
type of discrimination,” [citation] and occur where an employer has “treated [a] particular person
less favorably than others because of” a protected trait. [Citation.] A disparate-treatment plaintiff
must establish “that the defendant had a discriminatory intent or motive” for taking a job-related
action. [Citation.]
The Civil Rights Act of 1964 did not include an express prohibition on policies or practices
that produce a disparate impact. But in Griggs v. Duke Power Co., [citation], the Court
interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact,
Twenty years after Griggs, the Civil Rights Act of 1991, [citation], was enacted. The Act
included a provision codifying the prohibition on disparate-impact discrimination. * * * Under
the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an
employer uses “a particular employment practice that causes a disparate impact on the basis of
race, color, religion, sex, or national origin.” [Citation.] An employer may defend against liability
* * *
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what
otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in
which statutes and principles point in different directions. Our task is to provide guidance to
* * *
[This] Court has held that certain government actions to remedy past racial discrimination—
actions that are themselves based on race—are constitutional only where there is a “‘strong basis
in evidence’” that the remedial actions were necessary. [Citations.]
* * *
Congress has imposed liability on employers for unintentional discrimination in order to rid
the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs,
in the name of compliance with the other only in certain, narrow circumstances. The standard
leaves ample room for employers’ voluntary compliance efforts, which are essential to the
statutory scheme and to Congress’s efforts to eradicate workplace discrimination. [Citation.] And
the standard appropriately constrains employers’ discretion in making race-based decisions: It
Resolving the statutory conflict in this way allows the disparate-impact prohibition to work
in a manner that is consistent with other provisions of Title VII, including the prohibition on
adjusting employment-related test scores on the basis of race. [Citation.] Examinations like those
administered by the City create legitimate expectations on the part of those who took the tests.
As is the case with any promotion exam, some of the firefighters here invested substantial time,
money, and personal commitment in preparing for the tests. Employment tests can be an
important part of a neutral selection system that safeguards against the very racial animosities
Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by
the City in sole reliance upon race-based statistics.
* * *
We hold only that, under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an unintentional disparate
impact, the employer must have a strong basis in evidence to believe it will be subject to
disparate-impact liability if it fails to take the race-conscious, discriminatory action.
Remedies — Remedies include enjoining the employer from engaging in the
unlawful behavior, appropriate armative action, reinstating employees and
awarding back pay. Damages for all victims, except those subject to racial
discrimination, are capped or limited depending upon the company’s number of
employees. Either party in all instances may demand a jury trial.
armative action plan is maintained by a private employer, a state or local
government employer, or the federal government. A 1995 ruling placed new
constraints on the federal government in programs that favor minorities.
Sexual Harassment — Constitutes a violation of Title VII when it creates an
o%ensive working environment or is the basis for employment decisions.
CASE 42-4
FARAGHER v. CITY OF BOCA RATON
Supreme Court of the United States, 1998
524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed.2d 662
http://scholar.google.com/scholar_case?case=15103611360542350644&q=524+U.S.+775&hl=en&as_sdt=2,22
Souter, J.
This case calls for identification of the circumstances under which an employer may be held
liable under Title VII of the Civil Rights Act of 1964, [citation], for the acts of a supervisory
employee whose sexual harassment of subordinates has created a hostile work environment
amounting to employment discrimination. We hold that an employer is vicariously liable for
actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to
the reasonableness of the employer’s conduct as well as that of a plaintiff victim.
* * *
In February 1986, the City adopted a sexual harassment policy, which it stated in a
memorandum from the City Manager addressed to all employees. [Citation.] In May 1990, the
City revised the policy and reissued a statement of it. Although the City may actually have
circulated the memos and statements to some employees, it completely failed to disseminate its
policy among employees of the Marine Safety Section, with the result that Terry, Silverman,
Gordon, and many lifeguards were unaware of it. [Citation.]
From time to time over the course of Faragher’s tenure at the Marine Safety Section, between
job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex
with their male counterparts and asked whether she would do the same. [Citation.]
Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a
physical characteristic he found unattractive, he would readily have had sexual relations with her.
[Citation.] Another time, he pantomimed an act of oral sex. [Citation.] Within ear-shot of the
female lifeguards, Silverman made frequent, vulgar references to women and sexual matters,
Faragher did not complain to higher management about Terry or Silverman. Although she
spoke of their behavior to Gordon, she did not regard these discussions as formal complaints to a
supervisor but as conversations with a person she held in high esteem. [Citation.] Other female
lifeguards had similarly informal talks with Gordon, but because Gordon did not feel that it was
his place to do so, he did not report these complaints to Terry, his own supervisor, or to any other
city official. [Citation.] Gordon responded to the complaints of one lifeguard by saying that “the
City just [doesn’t] care.” [Citation.]
On the basis of these findings, the District Court concluded that the conduct of Terry and
Silverman was discriminatory harassment sufficiently serious to alter the conditions of
Faragher’s employment and constitute an abusive working environment. [Citation.] The District
Court then ruled that there were three justifications for holding the City liable for the harassment
of its supervisory employees. First, the court noted that the harassment was pervasive enough to
support an inference that the City had “knowledge, or constructive knowledge” of it. [Citation.]
Next, it ruled that the City was liable under traditional agency principles because Terry and
Silverman were acting as its agents when they committed the harassing acts. [Citation.] Finally,
the court observed that Gordon’s knowledge of the harassment, combined with his inaction,
In a 7-to-5 decision, the full Court of Appeals, sitting en banc, adopted the panel’s
conclusion. [Citation.]
* * *
II
A
Thus, in Meritor we held that sexual harassment so “severe or pervasive” as to “alter the
conditions of [the victim’s] employment and create an abusive working environment” violates
Title VII. [Citation.]
* * *
So, in Harris, we explained that in order to be actionable under the statute, a sexually
objectionable environment must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be
so. [Citation.] We directed courts to determine whether an environment is sufficiently hostile or
abusive by “looking at all the circumstances,” including the “frequency of the discriminatory
These standards for judging hostility are sufficiently demanding to ensure that Title VII does
not become a “general civility code.” [Citation.] Properly applied, they will filter out complaints
attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive
language, gender-related jokes, and occasional teasing.” [Citations.]
While indicating the substantive contours of the hostile environments forbidden by Title VII,
our cases have established few definite rules for determining when an employer will be liable for
* * *
B
* * *
In order to accommodate the principle of vicarious liability for harm caused by misuse of
supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by
employers and saving action by objecting employees, we adopt the following holding in this case
tangible employment action is taken, a defending employer may raise an affirmative defense to
liability or damages, subject to proof by a preponderance of the evidence, see [citation]. The
defense comprises two necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise. While proof that an employer had promulgated an
antiharassment policy with complaint procedure is not necessary in every instance as a matter of
Applying these rules here, we believe that the judgment of the Court of Appeals must be
reversed. The District Court found that the degree of hostility in the work environment rose to
the actionable level and was attributable to Silverman and Terry. It is undisputed that these
supervisors “were granted virtually unchecked authority” over their subordinates, “directly
controlling] and supervising] all aspects of [Faragher’s] day-to-day activities.” [Citation.] It is
also clear that Faragher and her colleagues were “completely isolated from the City’s higher
management.” [Citation.] The City did not seek review of these findings.
While the City would have an opportunity to raise an affirmative defense if there were any
serious prospect of its presenting one, it appears from the record that any such avenue is closed.
The District Court found that the City had entirely failed to disseminate its policy against sexual
harassment among the beach employees and that its officials made no attempt to keep track of
III
The Court of Appeals also rejected the possibility that it could hold the City liable for the reason
that it knew of the harassment vicariously through the knowledge of its supervisors. We have no
occasion to consider whether this was error, however. We are satisfied that liability on the ground
of vicarious knowledge could not be determined without further factfinding on remand, whereas
the reversal necessary on the theory of supervisory harassment renders any remand for
consideration of imputed knowledge entirely unjustifiable (as would be any consideration of
negligence as an alternative to a theory of vicarious liability here).
IV
Comparable Worth — Statistics indicate that working women earn about 70%
as much as working men. The Equal Pay Act does not address a remedy for
women whose traditional jobs (secretaries, nurses) have been systematically
undervalued and underpaid. The comparable worth concept advocates
development of relative bias-free values based on factors such as skill, effort,
working conditions, responsibility, and mental demands for different jobs.
Executive Order
Issued by President Johnson in 1965, it prohibits discrimination by Federal
contractors based on race, color, sex, religion, or national origin. It also requires
armative action in recruiting. It applies to:
• all contractors who enter into a Federal contract to be performed in the US
• all subcontractors to be paid more than $10,000
All nonconstruction employers with 50 or more employees who have more than
$50,000 in contracts must have a written armative action plan.
Age Discrimination in Employment Act of 1967
Applies to private employers having twenty or more employees and to all
governmental units, regardless of size. Also prohibits mandatory retirement for
Disability Law
The Rehabilitation Act of 1973 assists the handicapped in obtaining
rehabilitation training, access to public facilities, and employment and requires
Federal agencies and contractors to take armative action to hire qualified
handicapped persons. The Americans with Disabilities Act of 1990 requires,
among other things, employers with 15 or more employees to exclude a person’s
handicap from any hiring decision. The Vietnam Veterans Readjustment Act
of 1974 requires firm having $10,000 or more in federal contracts to engage in
armative action for disabled veterans and Vietnam-era veterans.
NOTE: See Figure 42-3: Federal Employment Discrimination Laws
