Employment Discrimination School, Part 6 (Section 1981)

One of the most overlooked federal discrimination statutes is Section 1981. It prohibits race discrimination and provides as follows:

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens[.]

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

42 U.S.C. § 1981.

In many instances, courts will apply reasoning from Title VII cases to Section 1981 cases, but there are key differences between the statutes that are worth noting. Section 1981 does not have a statutory cap on remedies, it does not require a plaintiff to exhaust administrative remedies, it has a different statute of limitations, and provides a cause of action for individuals (such as independent contractors) who may not be covered by Title VII.

Employment Discrimination School, Part 5 (ADA)

The Americans with Disabilities Act, also called the ADA, was not enacted until 1990. It prohibits discrimination against a qualified individual on the basis of disability.

The ADA’s primary operative provisions are structured very differently than those of Title VII and the ADA. The ADA has a general anti-discrimination provision, 42 U.S.C. § 12112(a), which provides as follow.

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112. This section is then followed by 42 U.S.C. § 12112(b), which is a seven-part provision that provides further descriptions of and definitions for the prohibited acts. Importantly, the ADA also requires accommodation of disability in certain circumstances.

When interpreting the discrimination provisions of the ADA, courts often use the proof structures developed under Title VII. However, given the courts’ willingness to read the statutory provisions of Title VII and the ADEA as requiring separate analytical frameworks, it is always worth exploring whether the ADA requires different treatment from the other discrimination statutes.

Employment Discrimination School, Part 4 (ADEA)

In 1967, Congress enacted the Age Discrimination in Employment Act, also called the ADEA. In its current iteration, the ADEA provides:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3)  to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C. § 623(a). The ADEA also contains some very important language of limitation: “It shall not be unlawful for an employer, employment agency, or labor organization(1) to take any action otherwise prohibited under subsections (a) . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Courts refer to this latter provision as the “reasonable factor other than age” (RFOA) provision.

Enacted just three years after Title VII, the ADEA’s first two operative provisions are very similar to Title VII’s main provisions. Indeed, throughout the first decades of these statutes’ enforcement, the courts tended to read the two statutes in a similar way. If a court developed a proof structure for Title VII, courts would also use that same proof structure for ADEA claims. But, in the last two decades, the Supreme Court has interpreted the ADEA discrimination provisions to require different proof structures than those used under Title VII.  It is no longer safe to assume that a concept that applies in the Title VII context also applies to the ADEA.

Employment Discrimination School, Part 3 (Title VII)

Title VII is the cornerstone of federal employment discrimination protections.  It was enacted as part of a much large piece of civil rights legislation, the Civil Rights Act of 1964.  The debate regarding passage of such comprehensive discrimination protections was long and contentious.  Title VII has been amended several times since its original enactment, and these amendments will be discussed in detail as they become relevant. Section 703(a) of Title VII currently provides:

(a)  Employer practices

It shall be an unlawful employment practice for an employer –

(1)   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; or

(2)   to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2.

When addressing a question under Title VII it is always important to know three things about its main operative provisions. First, Congress did not define key words in the statute, such as “to discriminate,” “because of,” or “terms, conditions, or privileges of employment.” There is even very little legislative history about this key language.

Second, the main operative provision is divided into two sections. Courts often characterize the first section as prohibiting disparate treatment (intentional discrimination against a person or a group) and the second as prohibiting disparate impact (applying a facially neutral policy in a way that has an adverse impact based on a protected trait). However, there is nothing in the structure or history of Title VII’s development that requires such a split. I encourage attorneys to begin to explore whether (a)(2) can be a helpful section to apply to disparate treatment claims.

Finally, our discussion is quickly going to turn to the judicial gloss the courts have placed on the statute. As the courts begin to develop discrimination law, they will start to create categories of discrimination and create frameworks for these categories. None of these frameworks or categories was contained in the original language of the statute.

Employment Discrimination School, Part 2 (Overview, State Law)

Future blog posts will discuss federal discrimination law, but it is always important to remember that state law is at play. In some instances, a state’s anti-discrimination law will mimic the federal discrimination in important respects.   This post covers some differences that often exist between state and federal law.

In some cases, state statutes provide greater protection than their federal counterparts. For example, the term “employer” is defined under some federal statutes as covering only those employers with a certain minimum number of employees. Employees who work for companies with fewer than fifteen employees do not fall within the employment discrimination protections of Title VII or the ADA, and a private employer must have at least fifty employees to fall within the reach of the FMLA. As a result, individuals who work for smaller employers often must rely on state statutes for discrimination protection.

Some state statutes provide protections for the same classes of individuals as the federal statutes, but define the protections differently. For example, while the ADEA offers age discrimination protection only for those 40 and older, some states protect employees who are younger than 40 from age discrimination.

In other instances, state statutes protect different categories of individuals from discrimination. For example, some states protect victims of domestic violence from discrimination, others prohibit discrimination because a person has a GED, and others protect workers from discrimination based on sexual orientation or gender identity.

Federal and state statutes often provide different remedies. For example, a plaintiff proceeding on an ADEA discrimination claim cannot recover punitive damages or emotional distress damages; however, some state statutes allow age discrimination plaintiffs to recover both types of damages. Under Title VII, the amount of punitive and emotional distress damages that a plaintiff may obtain is limited by statutory caps. Some state discrimination regimes do not provide a statutory cap for such damages or have higher statutory caps. On the opposite end of the spectrum, some state discrimination statutes do not allow recovery of punitive damages at all, while others cap punitive damages at lower points than federal legislation. While some of the federal statutes do not allow lawsuits to proceed against individual supervisors, some state statutes provide for individual liability.

While most states’ discrimination statutes are construed to be in line with federal law, some are not. As federal discrimination law has differentiated the ADEA from Title VII, many state laws can no longer mimic federal law. This is because states often have unitary statutes that prohibit discrimination against all protected classes in one statute. This is in contrast to federal law, which prohibits age discrimination in a separate statute (the ADEA) from sex and race discrimination (Title VII). Federal law also provides a separate statute for disability discrimination (the ADA).

Employment Discrimination School, Part 1 (Overview, At-will Employment)

This begins a series of posts that will guide you through basic concepts in employment discrimination law. The intent of these posts is to serve as a school outside the physical walls of the law school. By starting with this post and continuing to read posts until this project is finished, you will understand the most important concepts in employment discrimination law.

These posts are aimed at law students studying the field for the first time, at practicing lawyers who need refreshed knowledge, for practicing lawyers entering the field, for human resources professionals, or anyone else wanting to learn more about discrimination.

These posts will explore the four main federal statutes that protect workers against employment discrimination: Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and 42 U.S.C. § 1981 (§ 1981).

Title VII provides protections against employment discrimination based on a person’s race, color, national origin, religion, or sex. As is obvious by their titles, the ADEA prohibits age discrimination in employment, and the ADA prohibits disability discrimination, with Title I of the ADA dedicated to the employment context. Section 1981 protects against race discrimination in employment and other contexts.

Before discussing these statutes in detail, it is important to ground them in the larger context of employment law in the United States.  In the United States, the default rule governing employment is called at-will employment. But see Mont. Code Ann. § 39-2-904(1) (statute abrogating the employment at-will doctrine in certain termination cases).

Under at-will employment, absent a contract, a statute or other law to the contrary, an employer may fire an employee for any reason. That reason can be a good reason or a bad reason. In fact, at-will employment does not require the employer to provide any reason for terminating an employee.

Likewise, an employer can hire an employee for any reason or no reason. The employer also can change the terms and conditions of employment for any reason or no reason.

To provide an example of at-will employment, consider the following. A supervisor calls three employees into a room. He tells each employee to roll a dice. Any employee whose dice lands on six will be terminated. Firing employees in this way is not smart and is not good business practice, but it is legal under at-will employment.

There are many exceptions to the at-will employment rule. One set of those exceptions is the federal employment discrimination statutes, which we will discuss in great detail. States also have statutes that protect employees against discrimination.

Some states, either through statutes or the common law, have carved out public policy-based exceptions to at-will employment. These exceptions vary widely by state, but exceptions have been recognized where an employee refuses to break the law, where an employee is performing a public obligation (such as performing jury duty), or when the employee is exercising a legal right, such as filing a worker’s compensation claim or protesting unsafe working conditions. Contracts also provide an exception to at-will employment.

The concept of at-will employment is important because, in most states, it is the default rule governing hiring, terminations, and the terms and conditions of employment when no other law or contract applies to the employment relationship. As we study discrimination law, you will see that the courts are some times balancing anti-discrimination mandates with the power given to employers under at-will employment.

Outside the United States, many countries explicitly provide employees protection against unjust terminations or require an employer to pay an employee when an employee is fired absent cause. Some countries recognize an employee right of privacy or right of personality. See Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 Chi-Kent L. Rev. 221, 261 (1996).