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The Ledbetter Act also states that Title VII is violated anew each time the employee receives
a paycheck reflecting a discriminatory pay policy.
There are similar time-limit requirements in place for discriminatorily adopted seniority
systems under Section 706(e)(2).
If there is reasonable cause, the EEOC attempts to arrange a voluntary settlement. If the
EEOC is unsuccessful in doing so within 30 days of the complaints filing, the EEOC may sue in
federal court.
If the EEOC dismisses the complaint or does not file suit, a notification is sent to the
complaint stating that he or she may sue within 90 days of receipt of this “right–to–sue” notice.
A person who loses a discrimination suit in a state court is precluded from filing a suit on the
same facts in federal court according to Kremer v. Chemical Construction Co. (U.S. 1982). But, a
negative outcome by a state agency does not preclude a complainant from filing suit in federal court
according to University of Tennessee v. Elliot (U.S. 1986).
An NLRB rejection of a ULP charge alleging racial discrimination does not preclude a Title
VII suit stemming from the same facts. But, when an employee voluntarily accepts reinstatement
with back pay as a settlement, he or she is precluded from suing under Title VII on the same facts.
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The plaintiff in Title VII suits always has the burden of proof. The plaintiff meets this
burden by establishing a prima facie case of discrimination. The plaintiff may use anecdotal or
statistical evidence to establish the prima facie case.
CASE 8.6 MCDONNELL DOUGLAS CORP. V. GREEN
411 U.S. 792 (1973)
Background: The petitioner is McDonnell Douglas Corporation, and aerospace and aircraft
manufacturer. The respondent, Green, is an African-American who worked for petitioner as a mechanic
and lab technician from 1956 until he was laid off in 1964 as part of a general reduction in the
workforce. Green was also a long-time civil rights activist who protested his discharge and the hiring
practices of McDonnell Douglas as being racially motivated. As part of these protests, Green
participated in a “stall–in” and allegedly participated in a “lock–in.” Three weeks after the lock-in
McDonnell Douglass publically advertised for a new employee to fill Green’s position. Green reapplied
for the position and was rejected, based on what McDonnell Douglas stated was his participation in the
stall-in and lock-in.
Green then filed a complaint with the EEOC alleging McDonnell Douglas did not rehire him because of
his race and involvement in the civil rights movement in violation of Sections 703(a)(1) (prohibition of
Issue: Is the burden of proof in a disparate treatment case the following: (1) The employee must first
present a prima facie showing of discrimination. (2) The burden then shifts to the employer to articulate
a legitimate nondiscriminatory reason for rejecting the employee. (3) Finally, the employee has the
burden to show that the employer’s reason for rejecting the employer was merely pretext?
Decision: Yes. The Act does not require that an employer hire any person just because he used to be a
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ANSWERS TO CASE QUESTIONS
1. The plaintiff need only present facts sufficient to raise a presumption of discrimination to create a
prima facie case; the Court offers an example-the plaintiff can show: i) that he or she belongs to a
2. McDonnell stated that it refused to rehire Green because of his participation in the illegal
3. If Green could demonstrate that whites who had been convicted of minor criminal offenses had
been rehired, or that Green’s participation in civil rights activities was the real reason for not
If defendant advances a legitimate justification to plaintiff’s prima facie case, the plaintiff
must then have the opportunity to show that the defendant’s justification is just a pretext, or cover–
up. A plaintiff can show this directly by showing that a discriminatory reason likely motivated the
defendant or indirectly by showing the defendant’s justification is not credible. This standard is
difficult to meet and the Supreme Court has wavered on whether an illegal discriminatory motivation
must still be shown when indirect evidence is used to rebut the defendant’s justification.
Disparate Impact Claims
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evidence must be offered to prove that “the practice in question has caused the exclusion of
applicants for jobs or promotions because of their membership in a protected group.”
Plaintiffs can use the Four-Fifths Rule to demonstrate a disparate impact.
The plaintiff can rebut a showing of job-relatedness by showing that other non–
discriminatory methods are available and would satisfy the defendant’s legitimate business concerns
or by showing that the job-related justification is a pretext.
After-acquired evidence* about an employee allegedly fired for discriminatory reasons who
After-acquired evidence is evidence, discovered after an employer has taken an adverse employment action
that the employer uses to justify the action taken.
Arbitration of Statutory EEO Claims
An arbitration proceeding under a CBA does not prevent an employee from filing suit under
Title VII, per Alexander v. Gardner v. Denver Co. (1974), but an individual agreement to arbitrate
THE WORKING LAW
Equal Employment Opportunity Commission Adopts Mediation
EEOC’s Mediation Process: Shortly after a charge is filed, we may contact both the employee and
employer to ask if they are interested in participating in mediation. The decision to mediate is completely
voluntary. If either party turns down mediation, the charge will be forwarded to an investigator. If both
Arbitration Clauses in Collective Agreements
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The Supreme Court in 14 Penn Plaza v. Pyett (U.S. 2009), however, required employees to
arbitrate under a CBA arbitration clause that specially covered any claims under Title VII because
the statutory and contractual claims were expressly included in the agreement.
Individual Agreements to Arbitrate Employment Discrimination Disputes
Circuit City Stores, Inc. v. Adams (U.S. 2001) is a case in which the Supreme Court
Challenges to the Enforceability of Agreements to Arbitrate
An arbitration agreement must be knowingly and voluntarily agreed to by an employee to be
enforceable. Also, an agreement that is unfair to the employee or “restrict[s] remedies available to
employees less than those remedies available under the appropriate EEO statute” is not enforceable.
Some federal courts have adopted the reasoning in Armendariz v. Foundation Health
Psycare Services, Inc. (Cal., 2000) to determine the validity of an arbitration agreement.
Costs of Arbitration
Arbitration agreements that subject an employee to unreasonable expenses associated with
the arbitration are unenforceable.
Remedies Under Title VII
Plaintiffs are entitled to a jury trial.
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Intentional violations of Title VII allow a party to recover compensatory and punitive
damages.
Back pay awards are limited “to a period prior to two years before the date of the filing of a
complaint with the EEOC.” The plaintiff is also required to mitigate damages.
Compensatory and Punitive Damages
Compensatory and punitive damages are awardable if the plaintiff can show what a private
sector defendant has engaged “in a discriminatory practice or discriminatory practices with malice or
with reckless indifference to the federally protected rights of an aggrieved individual.” These
damages are separate from and in addition to other awards.
The Civil Rights Act of 1991’s amendments to Title VII allowed recovery of punitive
damages when the employer intentionally discriminated and did do “with malice or reckless
indifference to the federally protected rights of an aggrieved individual.” The Supreme Court in
Kolstad v. American Dental Association (1999) addresses the particulars of this provision. For
instance, an employer may raise the argument that it made a good faith effort to comply with Title
VII and avoid punitive damages.
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Attorney fees should generally be awarded to a prevailing plaintiff, but a prevailing
defendant should be awarded legal fees only when the plaintiff’s case was “frivolous, unreasonable,
vexatious, or meritless.” Nevertheless, Section 706(k) does not require attorney fees to be awarded at
all.
The rules for class actions under Title VII are provided for in Rule 23 of the Federal Rules of
Civil Procedure.
Public Employees Under Title VII
State and local employees are covered by Title VII and have the same procedural
requirements as private employees.
Section 706(f)(1) requires the U.S. Attorney General instead of the EEOC to file suit against
a state or local public employer.
Federal employees are first required to consult with an EEO counselor within the
employees’ agency. If the employees’ are not satisfied with the counselor’s findings, they can file a
formal complaint with the agency’s designated EEO official. The EEO official then conducts and
investigation, holds a hearing, and issues a decision. If the employees are still not satisfied, they can
appeal the decision to the agency head. After appealing to the agency head and not gaining a
satisfactory resolution, the employees can either seek judicial review or file with the EEOC. If a
complaint is filed with the EEOC, the employees are subject to the general EEOC procedures.
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ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. The prohibition against religious discrimination under Title VII is not absolute⎯Title VII
prohibits employment discrimination based on religion when the religious belief or conduct can
be reasonably accommodated by the employer or union, without undue hardship. As in Hardison,
2. National origin under Title VII refers to one’s place of origin, or the place from which one’s
3. According to the Kremer case, the dismissal of an EEO suit by a state court precludes the
complainant/plaintiff from filing suit on the basis of the same facts under Title VII in a federal
4. Remedies available to a successful Title VII plaintiff include an order of hiring or reinstatement,
back pay and benefits, remedial seniority, injunctions against unlawful employment practices, and
5. If there is no state or local EEO agency, the complaint must be filed with the EEOC within 180
days of the alleged discrimination. Under the work-sharing arrangements set up by the EEOC and
various state agencies, if the complainant files with the EEOC first, as long as it is within 300
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CASE PROBLEMS
6. The Supreme Court held that the complaint was not validly filed; the complaint was over his
denial of tenure, so the alleged discrimination took place when he was informed of the decision to
7. The court held that the Monitor was a religious activity of the Christian Science Church, a
religious organization, and that it was exempt from Title VII because of S. 702. The Monitor
could therefore apply the religious test to its applicants for employment. This case was decided
8. No. The Supreme Court held that her complaint related to the discharge for getting married; the
refusal to credit prior seniority upon rehire applied to all employees, so was not a violation of
9. The Supreme Court held that the plaintiffs had established a prima facie case of discrimination by
10. Yes. The court held that even though Walker was a Quaker, her beliefs were bona fide and held
with the strength of religious beliefs⎯they were not merely a personal preference. The Postal
11. The court considered the question of undue hardship in light of both the Massachusetts Supreme
Judicial Court’s views in New York & Massachusetts Motor Service and the federal common-law
discussion of undue hardship under Title VII. Cloutier’s insistence on a wholesale exemption
from the no-facial-jewelry policy precluded Costco from using its managerial discretion to search
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12. The court held that the statute of limitations doesn’t begin to run until the claimant learns of the
13. The court found that the plaintiff offered evidence that she was effectively demoted as part of the
2006 reorganization, and that she offered evidence that would allow a reasonable jury to find that
the demotion was part of a manager’s long-term effort at retaliation for a sexual harassment
14. The court held that the action to enforce the settlement agreement was an action brought under
15. No. The plaintiff herself admitted that her sex was not “the motivating or substantial factor”
behind the employment decision – her beliefs were. Given the plaintiff’s beliefs regarding
HYPOTHETICAL SCENARIOS
16. Title VII does not prohibit discrimination based upon citizenship. Also, national origin
17. No. If accommodating Gobendar’s religious beliefs would pose an undue hardship then Security
Systems does not have to accommodate him. Security Systems would have to demonstrate that
18. Beginning in the 1990s, the U.S. Supreme Court has promoted alternative dispute resolution.
This trend began with a case in which the high court held that a signatory to a standard
employment agreement in the financial industry could be held to arbitration of his age
discrimination case under that contract’s arbitration clause. Since then, the court has made it clear
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19. No. National origin can serve as a BFOQ when an employer shows there is a business necessity for
the safe and efficient performance of the job to hire employees of a particular ethnic or national
20. Thrivent Financial can use a couple provisions of Title VII to justify its hiring policy. Religion as a
BFOQ Section 703(e)(1) of Title VII includes religion within the BFOQ exception. Religion, as
with gender or national origin, may be used as a BFOQ when the employer establishes that