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5 Nondiscrimination and Affirmative

Action in Employment

Sec. 5.1. The Interplay of Statutes, Regulations, and Constitutional Protections

The area of employment discrimination is probably more heavily blanketed with overlapping statutory, regulatory, and constitutional requirements than any other area of postsecondary education law. Several federal statutes and one major executive order prohibit discrimination by employers, including postsecondary institutions, and each has its own comprehensive set of administrative regula- tions or guidelines (see Section 5.2). Other federal laws prohibit retaliation for the exercise of the rights provided by the laws—also a form of discrimination. All states also have fair employment practices statutes, some of which provide greater protections to employees than federal nondiscrimination statutes.

Because of their national scope and comprehensive coverage of problems and remedies, and because in some cases they provide greater protection than the laws of many states, the federal antidiscrimination statutes have assumed great importance. The federal statutes, moreover, supplemented by those of the states, have outstripped the importance of the federal Constitution as a remedy for employment discrimination, particularly for employees of private colleges. The statutes cover most major categories of discrimination and tend to impose more affirmative and stringent requirements on employers than does the Constitution.

Race discrimination in employment is prohibited by Title VII of the Civil Rights Act of 1964 as amended, by 42 U.S.C. § 1981, and by Executive Order 11246 as amended. Sex discrimination is prohibited by Title VII, by Title IX of the Education Amendments of 1972, by the Equal Pay Act, and by Executive Order 11246. Age discrimination is outlawed by the Age Discrimination in

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Employment Act (ADEA). Discrimination against employees with disabilities is prohibited by both the Americans With Disabilities Act (ADA) and the Rehabil- itation Act of 1973. Discrimination on the basis of religion is outlawed by Title VII and Executive Order 11246. Discrimination on the basis of national origin is prohibited by Title VII and by Executive Order 11246. Discrimination against aliens is prohibited indirectly under Title VII and directly under the Immigration Reform and Control Act of 1986 (IRCA; discussed in Section 4.6.5). Discrimination against veterans is covered in part by 38 U.S.C. § 4301. Some courts have ruled that discrimination against transsexuals is sex discrimination, and thus violates Title VII (see, for example, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)). Other forms of discrimination are prohibited by the laws of some states.

The nondiscrimination aspects of the statutes and Executive Order 11246 are discussed in this Section, and they are contrasted with the requirements of the federal Constitution, as interpreted by the courts in the context of discrimina- tion claims. The affirmative action aspects of the statutes and Executive Order 11246 are discussed in Section 5.4 (as applied to staff) and Section 6.5 (as applied to faculty).

The rationale for laws prohibiting discrimination in employment decisions is that characteristics such as race, sex, religion, or age (among others) are irrel- evant for employment decisions. In debates prior to the passage of the Civil Rights Act of 1964, the first comprehensive federal law prohibiting employment discrimination, congressional leaders stressed the financial cost to both busi- ness and members of minority groups of employment decisions based not on individual qualifications or merit, but on “immutable” characteristics such as sex or race.

In cases where discrimination is alleged, the parties must follow a prescribed order of proof, which is described later in Section 5.2. In cases of intentional discrimination, for example, the plaintiff must present sufficient evidence to raise an inference of discrimination; the defense then is allowed to rebut that inference by presenting evidence of a legitimate, nondiscriminatory reason for the action the plaintiff alleges was discriminatory. The plaintiff then has an opportunity to demonstrate that the defendant’s “legitimate nondiscriminatory reason” is a pretext, that it is unworthy of belief. The substantive and proce- dural requirements of each of the relevant laws are examined in Section 5.2, as are the nature of the remedies available to plaintiffs. Then each type of dis- crimination (race, sex, and so on) is examined in Section 5.3, with examples of how these claims typically arise, the types of issues that colleges defending these claims must generally address, and the implications of these cases for administrators and institutional counsel.

Although disputes arising under the nondiscrimination laws have tended to be litigated in federal court, some employers in the nonacademic sector are using “mandatory arbitration agreements” to require employees who raise alle- gations of employment discrimination to arbitrate their claims rather then sub- mitting them to a judicial forum. The use and lawfulness of requiring employees to arbitrate discrimination claims is discussed in Section 2.3.

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Beginning in the late 1990s, the U.S. Supreme Court handed down a series of rulings limiting congressional authority to abrogate the sovereign immunity of states with respect to their liability for violations of federal nondiscrimination laws. These cases are discussed in Section 13.1.6. They apply to claims asserted against state colleges and universities by their employees in federal court, but by extension may now also apply to such claims brought in state court (see Alden v. Maine, discussed in Section 13.1.6). These cases have addressed some, but not all, of the federal nondiscrimination laws discussed in this section. Application of the sovereign immunity doctrine to discrimination claims against state colleges is discussed for each law so affected.

Several of the federal nondiscrimination laws have extraterritorial applica- tion. This is significant for colleges that employ U.S. citizens outside the United States to staff study abroad programs or other college programs that occur outside of the United States. The Civil Rights Act of 1991, discussed in Section 5.2.1, amended Title VII and the Americans With Disabilities Act to provide for extraterritorial application, thus legislatively overruling a U.S. Supreme Court decision, in EEOC v. Arabian American Oil Co., 498 U.S. 808 (1990), that Title VII did not have extraterritorial application. The Age Dis- crimination in Employment Act was amended in 1984 to extend extraterrito- rial jurisdiction to U.S. citizens working abroad for U.S. employers, or for a foreign company that is owned or controlled by a U.S. company (29 U.S.C. § 623(h)). The Equal Pay Act also provides for extraterritorial application; a 1984 amendment changed the definition of “employee” in the Fair Labor Standards Act (of which the Equal Pay Act is a part) to include “any individ- ual who is a citizen of the United States employed by an employer in a work- place in a foreign country” (29 U.S.C. § 630(f)). Equal Employment Opportunity Commission (EEOC) Guidelines on the extraterritorial application of these three laws can be found on the EEOC’s Web site, available at http://www.eeoc.gov.

Another issue of increasing importance is the number of retaliation claims that employees who allege discrimination are now filing. The nondiscrimina- tion laws contain language that makes it unlawful to take an adverse employ- ment action against an individual who opposes or otherwise complains about alleged employment discrimination. Language in Title VII is similar to that in other federal nondiscrimination laws:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title [42 U.S.C. § 2000e-3(a)].

Retaliation claims have more than doubled since the mid-1990s, and constituted 27 percent of all claims filed with the EEOC in 2002. Such claims are further discussed in Section 13.5.7.5.

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Sec. 5.2. Sources of Law

5.2.1. Title VII. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is the most comprehensive and most frequently utilized of the federal employment discrimination laws. It was extended in 1972 to cover educational institutions both public and private. According to the statute’s basic prohibition, 42 U.S.C. § 2000e-2(a):

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 dis-

criminate against any individual with respect to his compensation, terms, condi- tions, 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 employ- ment 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.

The law covers not only employers but labor unions and employment agencies as well. Liability under Title VII is corporate; supervisors cannot be held indi- vidually liable under Title VII, although they may under other legal theories (Miller v. Maxwell’s International, 991 F.2d 583 (9th Cir. 1993)).

Students who are employees may be protected under Title VII, but whether a student is also an employee is a factual issue (see, for example, Cuddeback v. Florida Board of Education, 318 F.3d 1230 (11th Cir. 2004), ruling that a gradu- ate student research assistant was an employee for Title VII purposes under the “economic realities test”). Fellowships may be considered wages, or they may be characterized as financial aid. (For a discussion of the guidelines for deter- mining whether a fellowship recipient is an employee, see Sizova v. National Institute of Standards and Technology, 282 F.3d 1320 (10th Cir. 2002) (ruling that the National Institute of Standards and Technology (NIST), not the University of Colorado, was the plaintiff’s employer because the plaintiff worked at the NIST site and was supervised by its employees, and thus dismissing the Title VII claim against the university).)

The major exception to the general prohibition against discrimination is the “BFOQ” exception, which permits hiring and employing based on “religion, sex, or national origin” when such a characteristic is a “bona fide occupational qual- ification necessary to the normal operation of that particular business or enter- prise” (42 U.S.C. § 2000e-2(e)(1)). Religion as a BFOQ is examined in Section 5.5 in the context of employment decisions at religious institutions of higher educa- tion. Sex could be a permissible BFOQ for a locker room attendant or, perhaps, for certain staff of a single-sex residence hall. Race and national origin are not permissible BFOQs for positions at colleges and universities.

Title VII is enforced by the Equal Employment Opportunity Commission, which has issued a series of regulations and guidelines published at 29 C.F.R.

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Parts 1600 through 1610. The EEOC may receive, investigate, and conciliate com- plaints of unlawful employment discrimination, and may initiate lawsuits against violators in court or issue right-to-sue letters to complainants (29 C.F.R. Part 1601).

Title VII was amended by the Civil Rights Act of 1991 (Pub. L. No. 102-166, 105 Stat. 1071, 1072 (1991)), in large part as a reaction by Congress to seven deci- sions of the U.S. Supreme Court in 1989 that sharply limited the procedural and substantive rights of plaintiffs under Title VII and several other nondiscrimina- tion laws. These decisions are discussed briefly in this Section and in Section 5.4. In addition, the Civil Rights Act of 1991 provides for compensatory and punitive damages,1 as well as jury trials, in cases of intentional discrimination.

Although Title VII broadly prohibits employment discrimination, it does not limit the right of postsecondary institutions to hire employees on the basis of job-related qualifications or to distinguish among employees on the basis of seniority or merit in pay, promotion, and tenure policies. Institutions retain the discretion to hire, promote, reward, and terminate employees, as long as the institutions do not make distinctions based on race, color, religion, sex, or national origin. If, however, an institution does distinguish among employees on one of these bases, courts have broad powers to remedy the Title VII viola- tion by “making persons whole for injuries suffered through past discrimi- nation” (Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)). Remedies may include back pay awards (Albemarle), awards of retroactive seniority (Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)), and various affirmative action measures to benefit the group whose members were the subject of the discrimination (see Section 5.4), as well as the right, in disparate treatment cases, to compensatory and punitive damages.

There are two basic types of Title VII claims: the “disparate treatment” claim and the “disparate impact” or “adverse impact” claim. In the former type of suit, an individual denied a job, promotion, or tenure, or subjected to a detrimental employment condition, claims to have been treated less favorably than other applicants or employees because of his or her race, sex, national origin, or reli- gion (see, for example, Lynn v. Regents of the University of California, 656 F.2d 1337 (9th Cir. 1981) (alleged sex discrimination in denial of tenure)). In the “dis- parate impact” or “adverse impact” type of suit, the claim is that some ostensi- bly neutral policy of the employer has a discriminatory impact on the claimants or the class of persons they represent (see, for example, Scott v. University of Delaware, 455 F. Supp. 1102, 1123–32 (D. Del. 1978), affirmed on other grounds, 601 F.2d 76 (3d Cir. 1979) (alleging that requirement of Ph.D. for faculty

5.2.1. Title VII 375

1Compensatory and punitive damages are capped on the basis of the size of the employer: organi- zations with 15–100 employees may be assessed up to $50,000; 101–201 employees, $100,000; 201–500 employees, $200,000; and more than 500 employees, $300,000. These damages may be assessed in addition to the “make-whole” remedies of back pay and attorney’s fees. Other nondiscrimination statutes do not have these caps. Awards of “front pay” are not considered to be compensatory damages, and thus are not subject to the statutory cap (Pollard v. E. I. duPont de Nemours & Co., 532 U.S. 843 (2001)).

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positions discriminated against racial minorities)). Of the two types of suits, disparate treatment is the more common for postsecondary education. The dis- parate treatment and disparate impact theories are also sometimes used when claims are litigated under other nondiscrimination laws, such as the Equal Pay Act and Title IX of the Education Amendments of 1972.

Although the disparate treatment claim may involve either direct or circum- stantial evidence of discrimination, most plaintiffs are unable to present direct evidence of discrimination (such as written statements that the institution will not hire or promote them because of their race, sex, and so on, or corroborated oral statements that provide direct evidence of discrimination). An example of direct evidence of discrimination occurred in Clark v. Claremont University, 6 Cal. App. 4th 639 (Ct. App. Cal. 1992), a case brought under California’s Fair Housing and Employment Act (Cal. Gov’t. Code § 12900 et seq.) but analyzed under the Title VII disparate treatment theory. The plaintiff, an assistant pro- fessor who was denied tenure, introduced evidence of numerous racist remarks made by faculty members involved in the tenure review process, and a jury found that racial discrimination had motivated the tenure denial. The appellate court upheld the jury verdict, finding that the number and the nature of the racist remarks made by the faculty members provided substantial evidence of race discrimination.

Most plaintiffs, however, must use circumstantial evidence to attempt to demonstrate that discrimination motivated some negative employment action. The U.S. Supreme Court developed a burden-shifting paradigm that allows the plaintiff to demonstrate his or her qualifications for the position, promotion, or other employment action, and then requires the employer to introduce evidence of the reason for the negative decision. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that decision:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a [category protected by Title VII]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. . . .

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection [411 U.S. at 802].

This burden-shifting approach requires the employer to provide a reasonable, job- or performance-related reason for the negative decision. It does not require the employer to prove that it did not discriminate. The McDonnell Douglas methodology has been applied to other types of discriminatory treatment pro- hibited by Title VII; likewise, though the case concerned only job applications, courts have adapted its methodology to hiring, termination, discipline, salary decisions, promotion, and tenure situations. This paradigm is used for the liti- gation of discrimination claims under other federal nondiscrimination laws as well. A subsequent Supreme Court case adds an important gloss to McDonnell

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Douglas by noting that, in a disparate treatment (as opposed to disparate impact) case, “proof of discriminatory motive is critical [to complainant’s case], although it can in some situations be inferred from the mere fact of difference in treatment” (International Brotherhood of Teamsters v. United States, 431 U.S. 324, 355 n.12 (1977)).

Courts had difficulty interpreting McDonnell Douglas’s requirements con- cerning the evidentiary burden of both the plaintiff and the defendant in Title VII cases. The Supreme Court clarified its “burden-of-proof” ruling in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The case was brought by a state agency employee whose position had been abolished in a staff reorganization. Justice Powell, writing for a unanimous Court, explained that the plaintiff’s burden in the prima facie case was to create a presumption that dis- crimination motivated the employer’s actions. The employer’s burden, said Jus- tice Powell, was to rebut that presumption, not by proving that the employer did not discriminate, but by articulating a “legitimate, nondiscriminatory reason” for its decision, which would then create an issue of fact as to the employer’s moti- vation for the decision. Once the employer’s reason is given, the burden shifts back to the plaintiff

to demonstrate that the proffered reason was not the true reason for the employ- ment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory rea- son more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence [450 U.S. at 253–56; footnotes omitted].

Burdine clarifies the distinction between the burden of production (of pro- ducing evidence about a particular fact) and the burden of persuasion (of con- vincing the trier of fact that illegal discrimination occurred). The plaintiff always carries the ultimate burden of persuasion; it is only the burden of production that shifts from plaintiff to defendant and back to plaintiff again. The require- ment that the defendant “articulate” rather than “prove” a nondiscriminatory reason does not relieve the defendant of the need to introduce probative evi- dence; it merely frees the defendant from any obligation to carry the ultimate burden of persuasion on that issue.

In St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme Court reemphasized that the plaintiff carries the ultimate burden of proving intentional discrimination (instead of merely demonstrating that the defendant’s reasons for its action were false). In Hicks, the employer had offered two reasons for the plaintiff’s discharge: a series of disciplinary violations and an incident of gross insubordination. In the “pretext” stage of the case, the plaintiff convinced the trial court that these were not the reasons for the discharge, because other employees with similar disciplinary problems had not been discharged. The trial court ruled against the plaintiff because the plaintiff was unable to show racial animus in the decision, but the U.S. Court of Appeals for the Eleventh Circuit reversed, saying that, under the Burdine language, if the plaintiff could

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demostrate that the employer’s reasons were “unworthy of belief,” the plaintiff should prevail.

The Supreme Court, in a 5-to-4 opinion written by Justice Scalia, disagreed, saying that Title VII did not afford a plaintiff a remedy simply because an employer gave untruthful reasons, but only if the employer’s decision was based on the plaintiff’s race. Justice Scalia wrote:

We have no authority to impose liability upon an employer for alleged discrimi- natory employment practices unless an appropriate factfinder determines, accord- ing to proper procedures, that the employer has unlawfully discriminated. . . . [N]othing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable [509 U.S. at 514–15; emphasis in original].

In other words, in order to prevail under Title VII, the plaintiff must show two things: that the employer’s stated reasons for the challenged decision are untrue, and that the true reason is discrimination. Few plaintiffs have direct evidence of discrimination, and many plaintiffs who have prevailed in discrimination claims have done so by indirect proof of discrimination of the type that the majority appeared to reject in Hicks.

The U.S. Supreme Court clarified its Hicks ruling in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). Although Reeves was brought under the Age Discrimination in Employment Act (discussed in Section 5.2.6), the Court reviewed the lower courts’ evaluations of the plaintiff’s evidentiary bur- dens under the teachings of Hicks. Reeves had alleged that his termination was a result of age discrimination rather than the employer’s determination that he had falsified time cards. The Court ruled that because Reeves had established a prima facie case of age discrimination and had demonstrated that the employer’s allegations regarding the falsification were untrue, he did not have to make a specific link between age-related comments by his supervisor and his termination. Said the Court:

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explana- tion is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law [530 U.S. at 148–49].

Independent evidence of discrimination was not necessary under these cir- cumstances, according to the Court.

Occasionally, a plaintiff will have direct evidence of discrimination and allege the problem of “mixed motives” in an employment decision. In such cases, the plaintiff demonstrates that one or more of the prohibited factors (sex, race, and so on) was a motivating factor in a negative employment decision. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the plaintiff had proved that a com- mittee evaluating her for partnership in an accounting firm used gender

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stereotypes to reach its decision not to award her a partnership. Both the plain- tiff’s and the defendant’s burden of proof were at issue in Hopkins: the plaintiff argued that, in order to hold the defendant liable for discrimination, she need only demonstrate that gender played a part in the decision; the defendant insisted that, before liability could be found, the plaintiff must prove that gender was the “decisive consideration” in the decision.

A plurality of the Court, in an opinion authored by Justice Brennan, ruled that the plaintiff need only show that gender was one of the considerations in the employment decision. With regard to the defendant’s burden of proof, Justice Brennan wrote:

[O]nce a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role [490 U.S. at 244].

In other words, in “mixed motive” cases, simply “articulating a legitimate nondiscriminatory reason” in the face of demonstrated bias would be insuffi- cient for a defendant to rebut the plaintiff’s evidence; instead, to be found not liable, an employer would have to demonstrate that it would have reached the same decision even if the impermissible factors were absent.

In the Civil Rights Act of 1991, Congress agreed with the plurality’s determi- nation regarding the plaintiff’s burden, but it overturned its determination that a defendant could still prevail even if an impermissible factor contributed to an employment decision. The Act amended Title VII’s Section 703 by adding sub- section (m), which states that if the plaintiff shows that a prohibited factor moti- vated an employment decision, an unlawful employment practice is established. But if the plaintiff establishes a violation under subsection (m) and the employer successfully demonstrates that the same action would have been taken in absence of the prohibited factor, then a court may not award damages or make- whole remedies (such as reinstatement or promotion). This amendment per- mits plaintiffs who do not prevail on the merits to be awarded attorney’s fees and declaratory relief.

Lower federal courts attempting to interpret the new language of Title VII in mixed motive cases differed on whether a plaintiff was required to present direct evidence of discrimination in such cases, or whether indirect evidence of dis- crimination was sufficient to obtain a mixed-motive jury instruction. The U.S. Supreme Court, in a unanimous opinion, ruled that indirect or circumstantial evidence was sufficient to entitle a plaintiff to a mixed motive jury instruction in such cases (Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)).

Disparate treatment cases may also be brought by a class of plaintiffs. In these cases, called “pattern and practice” cases, the plaintiffs must prove inten- tional discrimination by the employer in one or more employment conditions. For example, in Penk v. Oregon State Board of Higher Education, 816 F.2d 458 (9th Cir. 1987), female faculty alleged systemwide discrimination against women in salary, promotion, and tenure practices, because statistical analysis revealed that women, on the whole, were paid less than male faculty and tended to be

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at lower ranks. The appellate court affirmed the trial court’s conclusion that the postsecondary system had provided legitimate nondiscriminatory reasons for the statistical differentials, such as the fact that most women faculty were less senior and that external economic factors had depressed the salaries of junior faculty compared with those of senior faculty, most of whom were male. The court’s careful articulation of the burdens of proof in pattern and practice cases is instructive.

Although most Title VII litigation in academe involves allegations of disparate treatment, several class action complaints have been brought against colleges and universities using the disparate impact theory. For example, in Scott v. Uni- versity of Delaware, 455 F. Supp. 1102 (D. Del. 1987), affirmed on other grounds, 601 F.2d 76 (3d Cir. 1979), a black professor alleged, on behalf of himself and other black faculty, that requiring applicants for faculty positions to hold a Ph.D. had a disparate impact on blacks because blacks are underrepresented among holders of Ph.D. degrees. The court agreed with the university’s argument that training in research, symbolized by the doctoral degree, was necessary for uni- versities because of their research mission.

The paradigm for disparate impact suits is Griggs v. Duke Power Co., 401 U.S. 424 (1971). As the U.S. Supreme Court explained in that case: “Under [Title VII] practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices . . .” (401 U.S. at 429).

In its unanimous opinion in Griggs, the Court interpreted Title VII to prohibit employment practices that (1) operate to exclude or otherwise discriminate against employees or prospective employees on grounds of race, color, religion, sex, or national origin, and (2) are unrelated to job performance or not justified by business necessity. Both requirements must be met before Title VII is vio- lated. Under the first requirement, it need not be shown that the employer intended to discriminate; the effect of the employment practice, not the intent behind it, controls. Under the second requirement, the employer, not the employee, has the burden of showing the job relatedness or business necessity of the employment practice in question.

The disparate impact test developed in Griggs was applied by the Supreme Court in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). The Court added an element to the Griggs tests: where a practice with a disparate impact is justified by business necessity, the plaintiffs may still prevail if they can demonstrate that “other selection processes that have a lesser discriminatory effect could also suitably serve the employer’s business needs” (487 U.S. at 1006, Blackmun concurrence). In addition, the Court ruled that plaintiffs could attack subjective decision-making practices under the disparate impact theory—a rul- ing that is particularly important to faculty plaintiffs, who have frequently alleged that subjective performance standards are susceptible to bias.

In 1989, the U.S. Supreme Court issued a ruling in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), that changed Griggs’s requirement that the employer demonstrate the business necessity of the challenged practices and

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made the plaintiff’s burden of production much more difficult. Congress responded in the Civil Rights Act of 1991 by codifying the Griggs standard, thus nullifying that portion of Wards Cove. The Act adds subsection (k) to Sec- tion 703. The subsection requires the employer to rebut a showing of disparate impact by demonstrating that “the challenged practice is job related for the position in question and consistent with business necessity” (42 U.S.C. § 2000e-2(k)(1)(a)(i)). The subsection also permits the plaintiff to challenge the combined effects of several employment practices if the plaintiff “can demon- strate to the court that the elements of a respondent’s decision-making process are not capable of separation for analysis.” The new law also codifies the Court’s Watson holding by adding that unlawful disparate impact may also be established if the plaintiff can demonstrate that a less discriminatory and equally effective alternative practice is available to the employer but the employer refuses to use it.

Another issue litigated under Title VII has relevance for claims under other nondiscrimination laws. Under Title VII, an individual claiming discrimination must file a complaint with the EEOC within 180 days “after the alleged unlaw- ful employment practice occurred” (42 U.S.C. § 2000e-5(e)), or within 300 days if a claim has first been filed with a state or local civil rights agency. The claim lapses if the individual does not comply with this time limit. Although this pro- vision may appear straightforward, most colleges and universities use multiple decision levels on faculty status matters. In addition, many individuals may be involved in a staff employment decision. These practices make it difficult to determine exactly when an employment practice “occurred.” Did it occur with the first negative recommendation, perhaps made by a department chair, or is the action by an institution’s board of trustees the “occurrence”? And since many colleges give a faculty member a “terminal year” contract after denial of tenure, at what point has the alleged discrimination “occurred”?

In Delaware State College v. Ricks, 449 U.S. 250 (1980), the U.S. Supreme Court interpreted this time requirement as it applies to faculty members mak- ing claims against postsecondary institutions. Overruling the appellate court, the Supreme Court held that the time period commences when an institution officially announces its employment decision and not when the faculty mem- ber’s employment relationship terminates.

In a 5-to-4 decision, the Court dismissed the claim of Ricks, a black Liberian professor who had been denied tenure, because he had not filed his claim of national origin discrimination within 180 days of the date the college notified him of its decision. Ricks had claimed that his terminal year of employment, after the tenure denial, constituted a “continuing violation” of Title VII, which allowed him to file his EEOC charge within 180 days of his last day of employ- ment. The Court rejected this view, stating that the alleged discrimination occurred at a single point in time. The Court also rejected an intermediate position, adopted by three of the dissenters, that the limitations period should not have begun until after the final decision of the college grievance commit- tee, which had held hearings on Ricks’s complaint.

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In Chardon v. Fernandez, 454 U.S. 6 (1981), a per curiam opinion from which three Justices dissented, the Court extended the reasoning of Ricks to cover non- renewal or termination of term appointments (as opposed to tenure denials). Unless there are allegations that discriminatory acts continued to occur after official notice of the decision, the 180-day time period for nonrenewal or ter- mination claims also begins to run from the date the complainant is notified.

The U.S. Court of Appeals for the Seventh Circuit was asked to determine at what point the “official notice” of the decision occurs: when an administrator makes a decision to which higher-level administrators routinely defer, or when the chief academic officer confirms that decision? In Lever v. Northwestern Uni- versity, 979 F.2d 552 (7th Cir. 1992), the appellate court ruled that the point at which the discriminatory act occurs is a question of fact, which must be deter- mined by reference to the institution’s policies and practices. In this case, lan- guage in the faculty handbook indicated that a dean’s decision to deny tenure was final unless reversed by the provost on appeal, and that the provost did not review negative recommendations by deans unless asked to do so by the can- didate. Citing Ricks, the court stated that appeal of a negative decision made by the dean does not toll the limitations period.

The Civil Rights Act of 1991 addresses the issue of timely filing, although it does not overturn Ricks. In a case decided in 1989, the U.S. Supreme Court ruled that the limitations period begins to run when a practice that later has a dis- criminatory effect on an individual or group is first enacted, rather than when the individual or group is harmed. In Lorance v. AT&T Technologies, 490 U.S. 900 (1989), a group of women were not permitted to challenge an allegedly dis- criminatory seniority provision that had been adopted several years earlier, because they waited until they were harmed by the provision’s application rather than filing a claim within 180 days of the date the provision took effect. Congress reversed this ruling by adding a new paragraph (2) to Section 112 of Title VII. The law now provides that a seniority system that intentionally dis- criminates may be challenged when the system is adopted, when an individual becomes subject to it, or when an individual is actually harmed by it.

Remedies available to prevailing parties in Title VII litigation include rein- statement, back pay, compensatory and punitive damages (for disparate treat- ment discrimination), and attorney’s fees. Front pay is also available to plaintiffs who can demonstrate that the discrimination diminished their future ability to earn an income at the level they would have enjoyed absent the discrimination. For example, in Thornton v. Kaplan, 958 F. Supp. 502 (D. Colo. 1996), a jury had found that the university had discriminated against the plaintiff when it denied him tenure, and had awarded him $250,000 in compensatory damages, plus attorney’s fees and court costs. The university argued that the award was excessive and moved for remittur (a request that the judge reduce the damage award) to $50,000. The judge refused, citing evidence that the denial of tenure resulted in a “loss of enjoyment” that the plaintiff derived from teaching, a loss of income, diminished prospects for future employment, humiliation, stress, depression, and feelings of exclusion from the academic community. Calling these losses “significant,” the judge refused to reduce the damage award.

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Although punitive damage awards are unusual in employment discrimination cases (except for sexual harassment complaints, discussed in Section 5.3.3.3), plaintiffs often demand punitive as well as compensatory damages in discrimi- nation lawsuits. The U.S. Supreme Court established the standard for awarding punitive damages in Title VII cases in Kolstad v. American Dental Association, 527 U.S. 526 (1999). The plaintiff must demonstrate that the individual found to have engaged in the discrimination is an agent of the employer, employed in a managerial capacity, acting within the scope of employment, and acting with malice or reckless indifference toward the plaintiff’s federally protected rights (527 U.S. at 535–45). A finding that an employer has made a good-faith effort to comply with Title VII, despite the unlawful actions of one particular manager or supervisor, will prevent the award of punitive damages. (For a discussion of the Kolstad standard and its application to a sexual harassment lawsuit against Tulane University, see Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5th Cir. 2002).) As long as the plaintiff can establish the required “malice” or “reckless indifference” of the employer, she may receive punitive damages even if no compensatory damages are awarded (Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001)).

Institutions may be able to shield themselves from punitive damage awards, even if their conduct is found to violate the nondiscrimination laws, by imple- menting and following grievance or appeal procedures. For example, in Elghamni v. Franklin College of Indiana, 2000 U.S. Dist. LEXIS 16667 (S.D. Ind. October 2, 2000) (unpublished), a faculty member denied tenure sought both compensatory and punitive damages under Title VII. A federal trial court granted the college’s motion for summary judgment with respect to the plain- tiff’s claim for punitive damages, stating that the plaintiff had availed himself of an “extensive grievance process” that reviewed his claim of alleged discrim- ination before the decision became final, and thus punitive damages were not warranted.

Although Title VII remains an important source of protection for faculty alleg- ing discrimination, an increasing number of discrimination claims are being brought under state nondiscrimination laws. Many state laws have no caps on damages like those of Title VII, and thus allow more generous damage awards. Other states may have laws that make it easier for a plaintiff to establish a prima facie case of discrimination than is the case under Title VII. (For an example of the use of state law to challenge an allegedly discriminatory tenure decision in a case against Trinity College, see Section 6.4.)

The U.S. Supreme Court has not addressed the issue of whether states have immunity from federal court litigation under Title VII since its Kimel ruling (see Sections 13.1.5 & 13.1.6), but federal appellate courts have concluded that Con- gress expressly and validly abrogated sovereign immunity in crafting both Title VII and the Civil Rights Act of 1991. (See, for example, Okruhlik v. The University of Arkansas, 255 F.3d 615 (8th Cir. 2001).)

5.2.2. Equal Pay Act. Both the Equal Pay Act (part of the Fair Labor Stan- dards Act (FSLA), 29 U.S.C. § 206(d)) and Title VII prohibit sex discrimination

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in compensation. Because of the similarity of the issues, pay discrimination claims under both laws are discussed in this subsection.

Congress’s purpose in enacting this provision was to combat the “ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman” and to establish, in its place, the principle that “‘equal work will be rewarded by equal wages’” (quoting Corning Glass Workers v. Brennan, 417 U.S. 188 (1974)). The Equal Pay Act provides that:

no employer [subject to the Fair Labor Standards Act] shall discriminate . . . between employees on the basis of sex . . . on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex [29 U.S.C. § 206(d)(1)].

Thus, the determination of whether jobs are equal, and the judgment as to whether one of the four exceptions applies to a particular claim, is the essence of an equal pay claim under this law.

The plaintiff in an Equal Pay Act lawsuit must find an employee in the same job, of a different gender, who is paid more. Even if the titles and job descrip- tions are the same, the court examines the actual responsibilities of the plain- tiff and the comparator. For example, in Gustin v. West Virginia University, 63 Fed. Appx. 695 (4th Cir. 2003), the court ruled that the job responsibilities of a female assistant dean for student affairs were not equal to the responsibil- ities of a male assistant dean who had responsibilities for physical facilities and budget, and thus her Equal Pay Act claim failed.

Nonwage benefits may also be subject to the provisions of the Equal Pay Act. For example, in Stewart v. SUNY Maritime College, 83 Fair Empl. Prac. Cases (BNA) 1610 (S.D.N.Y. 2000), a female public safety officer at the college was denied on-campus housing, although all male public safety officers doing the same work as the plaintiff were provided free on-campus housing. The trial court denied the college’s motion for summary judgment, ruling that whether the on-campus housing provided to male public safety officers constituted “wages” for purposes of the Equal Pay Act was a question of fact that must be determined at trial.

As part of the FLSA, the Equal Pay Act provides for double back pay dam- ages in cases of willful violations of the Act. A plaintiff must demonstrate an employer’s knowing or reckless disregard for its responsibilities under this law to establish a willful violation. (For an example of a successful plaintiff in this regard, see Pollis v. The New School for Social Research, 132 F.3d 115 (2d Cir. 1997).)

Although several public colleges have attempted to argue that they are shielded from liability for Equal Pay Act violations by Eleventh Amendment immunity, the courts have disagreed. Because the Equal Pay Act prohibits discrimination on the basis of sex, courts have ruled that it was promulgated under the authority of the Fourteenth Amendment. (See, for example, Cherry v.

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University of Wisconsin System Board of Regents, 265 F.3d 541 (7th Cir. 2001); see also Varner v. Illinois State University, 226 F.3d 927 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001).)

Equal Pay Act claims may be brought by an individual or by a class of indi- viduals who allege that the college underpaid them relative to members of the opposite sex who were doing equal work. Most class action Equal Pay Act cases against colleges have been brought by women faculty, and are discussed in Sec- tion 6.4. The Equal Pay Act is enforced by the Equal Employment Opportunity Commission. The EEOC’s procedural regulations for the Act are codified in 29 C.F.R. Parts 1620–21.

Salary discrimination claims under Title VII are not subject to the “equal work” requirement of the Equal Pay Act, and thus challenges can be brought to pay discrimination between jobs that are comparable rather than strictly equal. Several “comparable worth” claims have been brought by women faculty who have asserted that Title VII prohibits colleges and universities from setting the compensation of faculty in female-dominated disciplines at a level different from that of faculty in male-dominated disciplines. In each of these cases, plaintiffs have asserted that the Supreme Court’s decision in Gunther permits a compa- rable worth claim under Title VII.

In the early 1980s, the U.S. Supreme Court appeared to open the door to comparable worth claims. In County of Washington v. Gunther, 452 U.S. 161 (1981), the Court sorted out the relationships between the Equal Pay Act and Title VII as they apply to claims of sex discrimination in pay. Although the Gun- ther decision broadened the avenues that aggrieved employees have for chal- lenging sex-based pay discrimination, the Court’s opinion did not adopt the “comparable worth” theory that some forecasters had hoped the case would establish. According to the majority:

We emphasize at the outset the narrowness of the question before us in this case. Respondents’ claim is not based on the controversial concept of “compara- ble worth,” under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community. Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of inten- tional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of the jobs warranted. The narrow question in this case is whether such a claim is precluded by [Title VII] [452 U.S. at 166].

Although the Gunther opinion neither rejected nor accepted the comparable worth theory, the Court’s application of Title VII to pay disparity claims pro- vided impetus for further attempts to establish the theory. A number of law- suits were filed in the wake of Gunther. In the first higher education case to reach the appellate courts, Spaulding v. University of Washington, 740 F.2d 686 (9th Cir. 1984), members of the university’s nursing faculty raised both disparate treatment and disparate impact claims to challenge disparities in salary levels between their department and others on campus. The court

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rejected both claims. As to the former claim, the plaintiffs had not shown that the university acted with discriminatory intent in establishing the salary lev- els. According to the court, the direct evidence did not indicate such intent, and “we will not infer intent merely from the existence of wage differences between jobs that are only similar.” As to the latter claim (which does not require a showing of intent), the court held that the law does not permit use of the disparate impact approach in cases, such as this one, that “involve wide- ranging allegations challenging general wage policies” for jobs that are “only comparable” rather than equal. In particular, said the court, an employer’s mere reliance on market forces in setting wages cannot itself constitute a dis- parate impact violation.

Subsequent comparable worth litigation against nonacademic organizations has also been unsuccessful for plaintiffs. In American Federation of State, County, and Municipal Employees v. State of Washington, 770 F.2d 1401 (9th Cir. 1985), the federal appeals court overruled the finding of a trial judge that Wash- ington’s failure to implement a statutorily required comparable worth salary sys- tem was either intentional discrimination or satisfied the disparate impact theory under Title VII (see Section 5.3.2.1). The Supreme Court has not ruled on the comparable worth theory, either directly or indirectly, since its Gunther ruling. Several states have passed laws requiring comparable worth in the public sec- tor, but there has been little activity related to college faculty, although women staff at some unionized colleges and universities have benefited from compa- rable worth adjustments in collective bargaining agreements.

A particularly troubling issue in salary discrimination claims is the determi- nation of whether pay differentials are, in fact, caused by sex or race discrimi- nation, or by legitimate factors such as performance differences, market factors, or educational background. These issues have been debated fiercely in the courts and in the literature. The use of “market factors” in salary discrimina- tion claims brought by faculty is discussed in Section 6.4.

5.2.3. Title IX. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., prohibits sex discrimination by public and private educational institutions receiving federal funds (see Section 13.5.3 of this book). The statute is administered by the Office for Civil Rights (OCR) of the Department of Edu- cation. The department’s regulations contain provisions on employment (34 C.F.R. §§ 106.51–106.61) that are similar in many respects to the EEOC’s sex dis- crimination guidelines under Title VII. The regulations may be found on the OCR Web site, available at http://www.ed.gov/offices/OCR/regs. Like Title VII, the Title IX regulations contain a provision permitting sex-based distinctions in employment where sex is a “bona fide occupational qualification” (34 C.F.R. § 106.61). Title IX also contains a provision exempting any “educational insti- tution which is controlled by a religious organization” if Title IX’s requirements “would not be consistent with the religious tenets of such organization” (20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12).

The applicability of Title IX to employment discrimination was hotly con- tested in a series of cases beginning in the mid-1970s. The U.S. Supreme Court

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resolved the dispute, holding that Title IX does apply to and prohibit sex dis- crimination in employment (see North Haven Board of Education v. Bell, 456 U.S. 512 (1982) (discussed in Section 13.5.7.1)).

The decision of the U.S. Supreme Court in Franklin v. Gwinnett County Pub- lic Schools, 503 U.S. 60 (1992) (discussed in Sections 13.5.3 & 13.5.9), that plain- tiffs alleging discrimination under Title IX may be awarded compensatory damages, has stimulated discrimination claims under Title IX that might other- wise have been brought under Title VII, given Title VII’s cap on damages (see Section 5.2.1). Title IX does not require the exhaustion of administrative reme- dies, and it borrows its statute of limitations from state law, which may be more generous than the relatively short period under Title VII. Plaintiffs with dual status as employees and students (for example, graduate teaching assistants, work-study students, and residence hall counselors) may find Title IX appeal- ing because they need not prove they are “employees” rather than students in order to seek relief.

Some courts have held, however, that plaintiffs are barred from filing employ- ment discrimination claims seeking money damages under Title IX. For exam- ple, in Cooper v. Gustavus Adolphus College, 957 F. Supp. 191 (D. Minn. 1997), a male faculty member was found guilty of sexually harassing a student and was subsequently dismissed; he claimed that the dismissal procedure was flawed and that it violated Title IX, but he did not also bring a claim under Title VII. The court noted that, although students and prospective students may bring claims for damages under Title IX, an employee who asserts a sex discrimina- tion claim must use Title VII because Title VII “provides a comprehensive and carefully balanced remedial mechanism for redressing employment discrimina- tion, and since Title IX does not clearly imply a private cause of action for dam- ages for employment discrimination, none should be created by the courts” (957 F. Supp. at 193). The court also rejected the plaintiff’s claim that Title IX cre- ated an independent right to due process in the procedure used to determine whether an employee should be disciplined or terminated. Citing Yusuf v. Vassar College (Section 9.4.4), the court stated: “[T]here is no Title IX statutory due process right separate from a right to be free from discrimination, even for a student. This must be all the more true for an employee, whose action for damages for discrimination must be found in Title VII, not Title IX” (957 F. Supp. at 194).

The federal appellate courts are split on this issue. Appellate courts in the Fourth and Sixth Circuits have ruled that Title IX does permit a private right of action in employment cases (Preston v. Virginia, 31 F.3d 203 (4th Cir. 1994); and Ivan v. Kent State Univ., 1996 U.S. App. LEXIS 22269 (6th Cir. 1996) (unpub- lished)).2 (See also Arceneaux v. Vanderbilt University, 2001 U.S. App. LEXIS 27598 (6th Cir. 2001) (unpublished).) But appellate panels in the Fifth and Eleventh Circuits disagree. These courts view Title VII’s remedial structure,

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2The precedental value of these two cases is open to question; Preston has been criticized in subsequent trial and appellate court opinions, and Ivan is unpublished.

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including its exhaustion of remedies requirement, as precluding a parallel right of action under Title IX. In Morris v. Wallace Community College-Selma, 125 F. Supp. 2d 1315 (S.D. Ala. 2001), affirmed without opinion, 34 Fed. Appx. 388 (11th Cir. 2002), the court stated that it had “discovered no appellate decision clearly and analytically holding that a plaintiff may maintain a Title IX action against her employer for a wrong prohibited, and a remedy provided, by Title VII” (125 F. Supp. 2d at 1343, n.38), citing Lakoski v. James, 66 F.3d 751 (5th Cir. 1997); and Lowery v. Texas A&M University System, 117 F.3d 242 (5th Cir. 1997). The Lowery court, however, did permit the plaintiff to state a claim under Title IX for retaliation, since the factual circumstances of her claim would not be covered by Title VII. Lowery asserted that she had been retaliated against for objecting to the university’s alleged inequitable allocation of resources between male and female athletes; this assertion “stated a claim under Title IX but not under Title VII.” The court therefore permitted her to claim retalia- tion, but not employment discrimination, under Title IX. The Lowery case is discussed in Section 5.3.3.4.

The decision of the U.S. Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), discussed in Section 13.5.9, persuaded some federal courts that even a claim of retaliation cannot be litigated in court under Title IX, since it relies upon the Title IX regulation on retaliation rather than any express retal- iation provision in the Title IX statute itself. In Atkinson v. Lafayette College, 2002 U.S. Dist. LEXIS 1432 (E.D. Pa. 2002), a female athletics director alleged that she was terminated in retaliation for her complaints about the college’s alleged infringements of Title IX. She also brought employment discrimination claims under Title VII and the state human rights law. The trial court dismissed her Title IX retaliation claim, which had been brought under Section 902 of Title IX, stating that the result in Sandoval, which involved Title VI of the Civil Rights Act of 1964, was directly applicable to Title IX because of the similari- ties in the interpretation and enforcement provisions of the two laws. A fed- eral trial court in Virginia reached a similar conclusion, finding that Title IX’s antiretaliation regulations were beyond the scope of the plain language of the statute (Litman v. George Mason University, 156 F. Supp. 2d 579 (E.D. Va. 2001)). That result, however, was vacated by the U.S. Court of Appeals for the Fourth Circuit (92 Fed. Appx. 41 (4th Cir. 2004)), based upon Fourth Circuit precedent in a case involving Title VI (Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003)). In Peters, a case involving the dismissal of an elementary school administrator, the Fourth Circuit had ruled that Title VI confers a private right of action for challenging alleged retaliation. Thus, said the appellate court in Litman, the same rationale should apply to retaliation claims brought under Title IX.

The U.S. Supreme Court resolved this issue in a case involving the male coach of a high school girls’ basketball team who claimed that he was termi- nated in retaliation for complaining about allegedly unequal facilities for boys’ and girls’ teams. In Jackson v. Birmingham Board of Education, 309 F.3d 1333 (11th Cir. 2002), reversed, 125 S. Ct. 1497 (2005), the appellate court had dis- missed the case, stating that the plaintiff was not himself a victim of sex

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discrimination and thus could not sue under Title IX. The U.S. Supreme Court reversed, stating that retaliating against an individual for complaining about unlawful sex discrimination was itself intentional sex discrimination, a viola- tion of Title IX. The Court rejected the lower courts’ reliance on Sandoval, stating that the Title IX statute, not the retaliation regulation, provided the basis for Jackson’s claim. This case is discussed in Section 13.5.7.5 of this book.

5.2.4. Section 1981. A post–Civil War civil rights statute, 42 U.S.C. § 1981, commonly known as “Section 1981,” states:

All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be par- ties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac- tions of every kind, and to no other.

Section 1981 is enforced through court litigation by persons denied the equal- ity that the statute guarantees.3 It prohibits discrimination in both public and private employment, as the U.S. Supreme Court affirmed in Johnson v. Railway Express Agency, 421 U.S. 454 (1975).

Section 1981 covers racially based employment discrimination against white persons as well as racial minorities (McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976)). Although in earlier cases Section 1981 had been held to apply to employment discrimination against aliens (Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974)), more recent federal appellate court rulings suggest that this broad reading of the law is inappropriate. In Bhandari v. First National Bank of Commerce, 829 F.2d 1343 (5th Cir. 1987), a federal appellate court overturned Guerra and, after a lengthy review of the 1866 Civil Rights Act, determined that Congress had not intended Section 1981 to cover private discrimination against aliens, although the court did not address the issue of such discrimination by a public entity. The U.S. Supreme Court vacated the Bhandari opinion because the appellate court had speculated that the Supreme Court would overturn Runyon v. McCrary, 427 U.S. 160 (1976), (which had applied Section 1981 to private discrimination) in its opinion in Patterson v. McLean Credit Union, 491 U.S. 164 (1989). On the contrary, the Supreme Court reaffirmed Runyon and, vacating Bhandari, instructed the Fifth Circuit to analyze this case in light of Patterson. On remand, the U.S. Court of Appeals,

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3Cases interpreting Section 1981 are collected in Ann K. Wooster, Annot., “Actions Brought Under 42 USCA §§ 1981–1983 for Racial Discrimination—Supreme Court Cases,” 164 A.L.R. Fed. 483; Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Dis- crimination Violative of Federal Constitution or Statutes—Public Employment Cases,” 168 A.L.R. Fed. 1; Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Discrimination Violative of Federal Constitution or Statutes—Private Employment Cases,” 150 A.L.R. Fed. 1.

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sitting en banc, reinstated its holding in Bhandari at 887 F.2d 609 (1989), asserting that Patterson did not alter the rationale for its earlier ruling. The Supreme Court denied review (494 U.S. 1061 (1990)).4

Although Section 1981 does not specifically prohibit discrimination on the basis of national origin (Ohemeng v. Delaware State College, 676 F. Supp. 65 (D. Del. 1988), affirmed, 862 F.2d 309 (3d Cir. 1988)), some courts have per- mitted plaintiffs to pursue national origin discrimination claims under Section 1981 in cases where race and national origin were intertwined.5 In two special cases, moreover, the U.S. Supreme Court has interpreted Section 1981 to apply to certain types of national origin and ethnicity discrimination. In St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987), the Court permitted a professor of Arabian descent to challenge his tenure denial under Section 1981. And in Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987), the Court extended sim- ilar protections to Jews. In both cases the Court looked to the dictionary defin- ition of “race” in the 1860s, when Section 1981 was enacted by Congress; the definition included both Arabs and Jews as examples of races.

While Section 1981 overlaps Title VII (see Section 5.2.1) in its coverage of racial discrimination in employment, a back pay award is not restricted to two years of back pay under Section 1981, as it is under Title VII (see Johnson v. Railway Express Agency, 421 U.S. 454 (1975)). Furthermore, Section 1981 does not have the short statute of limitations that Title VII imposes. In Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369 (2004), the U.S. Supreme Court ruled that a four-year statute of limitations should apply to claims brought under the Civil Rights Act of 1866, of which Section 1981 is a part. Therefore, individuals alleg- ing race discrimination in employment are likely to file claims under both Section 1981 and Title VII.

In General Building Contractors Ass’n. v. Pennsylvania, 458 U.S. 375 (1982), the U.S. Supreme Court engrafted an intent requirement onto the Section 1981 statute. To prevail in a Section 1981 claim, therefore, a plaintiff must prove that the defendant intentionally or purposefully engaged in discriminatory acts. This requirement is the same as the Court previously applied to discrimination claims brought under the equal protection clause (see Section 5.2.7).

Congress amended Section 1981 in the Civil Rights Act of 1991 by adding subsections (b) and (c), which read:

(b) 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 con- tractual relationship.

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4Cases addressing whether aliens are protected by Section 1981 are collected in Tim A. Thomas, Annot., “Application of 42 U.S.C.S. Section 1981 to Private Discrimination Against Aliens,” 99 A.L.R. Fed. 835. 5Cases related to national origin claims under Section 1981 are collected in Jean F. Rydstrom, Annot., “Applicability of 42 U.S.C.S. § 1981 to National Origin Employment Discrimination Cases,” 43 A.L.R. Fed. 103.

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(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

(For a thoughtful analysis of race discrimination and its legal remedies, see L. Alexander, “What Makes Wrongful Discrimination Wrong? Biases, Prefer- ences, Stereotypes, and Proxies,” 141 U. Pa. L. Rev. 149 (1992).)

Although Section 1981 has been found to cover employment decisions of both private and public employers, colleges that are arms of the state are immune from Section 1981 damages liability under the Eleventh Amendment of the U.S. Constitution. (For an illustrative case holding that a federal trial court lacked jurisdiction to hear an employee’s suit against the City University of New York, see Bunch v. The City University of New York Queens College, 2000 U.S. Dist. LEXIS 14227 (S.D.N.Y. 2000).)

5.2.5. Americans With Disabilities Act and Rehabilitation Act of 1973. Two federal laws forbid employment discrimination against indi- viduals with disabilities. The Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., prohibits employment discrimination by employers with fifteen or more employees, labor unions, and employment agencies. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (also discussed in Section 13.5.4), also pro- hibits discrimination against individuals with disabilities, but unlike the ADA, there is no threshold number of employees required for coverage by Section 504 (Schrader v. Fred A. Ray M.D., 296 F.3d 968 (10th Cir. 2002)). Section 504 is pat- terned after Title VI and Title IX (see Sections 13.5.2 & 13.5.3), which prohibit, respectively, race and sex discrimination in federally funded programs and activ- ities. Each federal funding agency enforces the Rehabilitation Act with respect to its own funding programs.

Title I of the Americans With Disabilities Act of 1990 prohibits employment discrimination against “qualified” individuals who are disabled. (The other titles of the ADA are discussed in Section 13.2.11.) The prohibition of discrimination in the ADA uses language very similar to that of Title VII:

(a) No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job appli- cation procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and priv- ileges of employment [42 U.S.C. §12102(a)].

The law defines “discrimination” very broadly, and prohibits the following practices: segregating or limiting the job opportunities of the individual with a disability; participating in a relationship with another entity, such as a labor union or employment agency, that engages in discrimination against an indi- vidual with a disability; using hiring or promotion standards that have a dis- criminatory effect or perpetuate the discrimination of others; denying employment or benefits to an individual who has a relationship with someone who is disabled; not making reasonable accommodation (unless an undue hardship exists); denying employment opportunities in order to avoid having to

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accommodate an individual; using selection tests or standards that screen out individuals with disabilities unless the tests or standards are job related and a business necessity; failing to use tests that identify an individual’s skills rather than his or her impairments.6

The law defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” (42 U.S.C. § 12111(8)). This definition, which would apply to an indi- vidual with a disability who could perform the job only if accommodated, rejects the U.S. Supreme Court’s interpretation of the Rehabilitation Act’s defi- nition of “otherwise qualified” in Southeastern Community College v. Davis, 442 U.S. 397 (1979). Because the ADA’s language is broader than that of the Reha- bilitation Act, it is more likely that employees claiming disability discrimination will seek redress under the ADA rather than the Rehabilitation Act.

The law requires that, if an applicant or a current employee meets the defi- nition of “qualified individual with a disability,” the employer must provide a reasonable accommodation unless the accommodation presents an “undue hardship” for the employer. The terms are defined thusly in the statute:

The term “reasonable accommodation” may include— (A) making existing facilities used by employees readily accessible to and

usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a

vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities [42 U.S.C. §12111(9)].

(10) (A) The term “undue hardship” means an action requiring significant dif- ficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include— (i) the nature and cost of the accommodation needed under this

chapter;

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6Cases and authorities related to the Americans With Disabilities Act are collected at William H. Danne, Jr., Annot., “Who Is ‘Qualified Individual’ Under Americans With Disabilities Act Provi- sions Defining, and Extending Protection Against Employment Discrimination to Qualified Indi- vidual with Disability (42 USCA §§ 12111(8), 12112(a)),” 146 A.L.R. Fed. 1; Ann K. Wooster, Annot., “What Constitutes Employment Discrimination by Public Entity in Violation of Ameri- cans With Disabilities Act (ADA), 42 USCA §§ 12132,” 164 A.L.R. Fed. 433; Laurel M. Cohn, Annot., “When Is Individual Regarded as Having, or Perceived to Have, Impairment Within Meaning of Americans With Disabilities Act (42 USCA §§ 12102(2)),” 148 A.L.R. Fed. 305; Thomas J. Kapusta, Annot., “When Does Job Restructuring Constitute Reasonable Accommoda- tion of Qualified Disabled Employee or Applicant,” 142 A.L.R. Fed. 311; John F. Wagner, Annot., “What Constitutes Substantial Limitation on Major Life Activity of Working for Purposes of Americans With Disabilities Act (42 USCA §§ 12101–12213),” 141 A.L.R. Fed. 603.

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(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, includ- ing the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity [42 U.S.C. § 12111(10)].

The ADA also contains provisions regarding the use of preemployment med- ical examinations, the confidentiality of an individual’s medical records, and the individuals who may have access to information about the individual’s disability.7

The law specifically excludes current abusers of controlled substances from coverage, but it does protect recovering abusers, individuals who are incorrectly perceived to be abusers of controlled substances, and individuals who have completed or are participating in a supervised rehabilitation program and are no longer using controlled substances. Since the law does not exclude persons with alcoholism, they are protected by the ADA, even if their abuse is current. However, the law permits employers to prohibit the use of alcohol or drugs at the workplace, to outlaw intoxication on the job, and to conform with the Drug- Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.) (discussed in this book, Section 13.4.3.1). Employers may also hold users of drugs or alcohol to the same performance standards as other employees, and the law neither requires nor prohibits drug testing.

The ADA’s employment discrimination remedies are identical to those of Title VII, and the Act is enforced by the EEOC, as is Title VII. The same limitation on damages found in Title VII applies to actions brought under the ADA, except that language applicable to the ADA provides that if an employer makes a good- faith attempt at reasonable accommodation but is still found to have violated the ADA, neither compensatory nor punitive damages will be available to the plain- tiff (42 U.S.C. § 1981A).8 This provision also applies to the Rehabilitation Act. Regulations interpreting the ADA are published at 29 C.F.R. § 1630. In addition to

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7Cases and authorities are collected in Deborah F. Buckman, Annot., “Construction and Applica- tion of § 102(d) of Americans With Disabilities Act (42 USCA § 12112(d)) Pertaining to Medical Examinations and Inquiries,” 159 A.L.R. Fed. 89. See also the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act,” July 2000, at http://www.eeoc.gov. 8Cases and authorities regarding ADA remedies are collected in Mary L. Topliff, Annot., “Remedies Available Under Americans With Disabilities Act (42 USCA § 12101 et seq.),” 136 A.L.R. Fed. 63.

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expanding on the concepts of “qualified,” “reasonable accommodation,” and “undue hardship,” they include guidelines for determining whether hiring or retaining an employee with a disability would pose a safety hazard to coworkers or to the employee (29 C.F.R. § 1630.2(r)). The EEOC has also issued several Enforcement Guidance documents that state the agency’s position on and inter- pretation of the ADA. These documents are available on the agency’s Web site at http://www.eeoc.gov.

Title II of the ADA prohibits discrimination on the basis of disability by “pub- lic entities,” which includes public colleges and universities. The language of Title II mirrors the language of Title VI and Section 504 of the Rehabilitation Act:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, pro- grams, or activities of a public entity, or be subjected to discrimination by any such entity [42 U.S.C. § 12132].

The regulations interpreting Title II prohibit employment discrimination by a public entity (28 C.F.R. § 35.140). Title II adopts the remedies, rights, and pro- cedures of Section 505 of the Rehabilitation Act, which has been interpreted to provide a private right of action for individuals alleging discrimination under the Rehabilitation Act (see Section 13.5.9 of this book). No exhaustion of admin- istrative remedies is required by either Title II or Section 505.

In 1993, a federal district court examined the relationship between Titles I and II of the ADA—the first time such an examination had been made. An employee of the University of Wisconsin whose one-year contract was not renewed filed a lawsuit in federal court under Title II of the ADA. In Petersen v. University of Wisconsin Board of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993), the university argued that the court lacked jurisdiction because Petersen did not exhaust his administrative remedies by first filing a charge with the EEOC, as required by Title I of the ADA. The court, noting the language of the statute, the regulations, and the legislative history, concluded that Title II includes employment discrimination as prohibited conduct and explicitly does not require exhaustion of administrative remedies. This ruling appears to cre- ate an exception for employees of public colleges and universities to the requirement that claims of employment discrimination under the ADA be first filed with the EEOC. (For a discussion of this issue, see Jason Powers, Note, “Employment Discrimination Claims Under ADA Title II: The Case for Uni- form Administrative Exhaustion Requirements,” 76 Texas L. Rev. 1457 (1998).)

Colleges and universities have been subject to the Rehabilitation Act since 1972, and a body of judicial precedent has developed interpreting that Act’s requirements. The law was amended by the Rehabilitation Act Amendments of 1992 (Pub. L. 102-569, 106 Stat. 4344) to replace the word “handicap” with the word “disability” and to conform the language of the Rehabilitation Act in other ways with that of the ADA (see Section 13.5.4). Regulations interpreting the Rehabilitation Act’s prohibitions against disability discrimination by federal

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contractors have been revised to conform to ADA provisions, and are found at 34 C.F.R. § 104.11 and 29 C.F.R. § 1641.9

The regulations implementing Section 504 of the Rehabilitation Act prohibit discrimination against qualified disabled persons with regard to any term or condition of employment, including selection for training or conference atten- dance and employers’ social or recreational programs. Furthermore, the regula- tions state that the employer’s obligations under the statute are not affected by any inconsistent term of any collective bargaining agreement to which the employer is a party (34 C.F.R. § 104.11).

In language similar to that of the ADA, the Section 504 regulations define a qualified person with a disability as one who “with reasonable accommodation can perform the essential functions” of the job in question (34 C.F.R. § 104.3(k)(1)). The regulations impose an affirmative obligation on the recipient to make “reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program” (34 C.F.R. § 104.12(a)). Reasonable accommo- dations can take the form of modification of the job site, of equipment, or of a position itself. What hardship would relieve a recipient of the obligation to make reasonable accommodation depends on the facts of each case. As a related affirmative requirement, the recipient must adapt its employment tests to accom- modate an applicant’s sensory, manual, or speaking disability unless the tests are intended to measure those types of skills (34 C.F.R. § 104.13(b)).

The regulations include explicit prohibitions regarding employee selection procedures and preemployment questioning. As a general rule, the fund recip- ient cannot make any preemployment inquiry or require a preemployment medical examination to determine whether an applicant is disabled or to determine the nature or severity of a disability (34 C.F.R. § 104.14(a)). Nor can a recipient use any employment criterion, such as a test, that has the effect of eliminating qualified applicants with disabilities, unless the criterion is job related and there is no alternative job-related criterion that does not have the same effect (34 C.F.R. § 104.13(a)). These prohibitions are also found in the ADA and its regulations.

In Southeastern Community College v. Davis, 442 U.S. 397 (1979), discussed in Sections 8.2.4.3 and 13.5.4, the U.S. Supreme Court addressed for the first time the extent of the obligation that Section 504 imposes on colleges and uni- versities. The case involved the admission of a disabled applicant to a clinical nursing program, but the Court’s opinion also sheds light on the Rehabilitation Act’s application to employment of disabled persons.

5.2.5. Americans With Disabilities Act and Rehabilitation Act of 1973 395

9Cases related to who is qualified under the Rehabilitation Act are collected in Colleen R. Courtade, Annot., “Who Is ‘Qualified’ Handicapped Person Protected from Employment Discrimination Under Rehabilitation Act of 1973 (29 U.S.C.S. §§ 701 et seq.) and Regulations Promulgated Thereunder,” 80 A.L.R. Fed. 830. See also Francis M. Dougherty, Annot., “Who Is ‘Individual with Handicaps’ Under Rehabilitation Act of 1973 (29 U.S.C.S. § 701 et seq.),” 97 A.L.R. Fed. 40.

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In Davis, the Court determined that an “otherwise qualified handicapped individual” protected by Section 504 is one who is qualified in spite of his or her disability, and thus ruled that the institution need not make major program modifications to accommodate the individual. Because the definition of “oth- erwise qualified” appears only in the Department of Education’s regulations implementing Section 504, not in the statute, the Court did not consider itself bound by the language of the regulations, which defined a “qualified handi- capped individual” for employment purposes as one who, “with reasonable accommodation,” can perform the job’s essential functions. However, statutory language in the ADA virtually repeats the language of Section 504’s regulations; thus, the Court’s opinion in Davis has limited relevance for employment chal- lenges under the ADA.

The Court apparently equated accommodation of an individual with a dis- ability with affirmative action rather than viewing the accommodation as the removal of barriers for an individual with a disability. The framers of the ADA have rejected the former interpretation; since the accommodation requirement is stated clearly in the ADA, and the term “affirmative action” appears nowhere in the statute, the continued vitality of Southeastern Community College in the context of employment is questionable.

The U.S. Supreme Court again interpreted the Rehabilitation Act in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), in which the Court deter- mined that persons suffering from a contagious disease (in this case, tubercu- losis) were protected by the Act. The Court listed four factors that employers must take into consideration when determining whether an employee with a potentially contagious disease poses a danger to other employees or to clients, customers, or students:

1) the nature of the risk (how the disease is transmitted);

2) the duration of the risk (how long is the carrier infectious);

3) the severity of the risk (what is the potential harm to third parties); and

4) the probabilities the disease will be transmitted and will cause varying degrees of harm [480 U.S. at 288].

Congress adopted the Court’s position in this case in an amendment to the Rehabilitation Act tacked onto the Civil Rights Restoration Act of 1987 (Pub. L. No. 100-259, 102 Stat. 28, § 9).

Section 503 of the Rehabilitation Act requires all institutions holding contracts with the federal government in excess of $10,000 to “take affirmative action to employ and advance in employment qualified handicapped individuals.” While the Court in Davis emphatically rejected an affirmative action obligation under Section 504, its decision in no way affects the express obligation imposed on federal contractors by Section 503 of the Act (see Section 5.4 of this book).

Between 1998 and 2002, the U.S. Supreme Court issued eight decisions inter- preting the employment provisions of the ADA. The first dealt with the issue of whether asymptomatic HIV qualified as a disability under the ADA’s definition.

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In Bragdon v. Abbott, 524 U.S. 624 (1998), the court ruled that HIV, whether or not the individual has symptoms of the disease, substantially limits an individ- ual’s ability to procreate (a major life function), and thus constitutes a disabil- ity for ADA purposes. Although Bragdon was brought under the public accommodation provisions of the ADA rather than the employment provisions, the definition of disability is common to all of the ADA’s provisions.

The Court issued three opinions interpreting the ADA in 1999, all of which involved employment, and all of which dealt with the issue of “mitigating mea- sures.” Both the legislative history of the ADA and the EEOC’s Interpretative Guidance state that the existence of a disability is to be determined without regard to any mitigating measures that the individual may have taken to ame- liorate the condition (for example, medication to control the effects of a disease, or devices, such as corrective lenses, to improve poor eyesight) (29 C.F.R. § 1630.2(j) (Interpretive Guidance)). Several appellate courts had refused to fol- low the EEOC’s guidance on this issue, stating that the statutory language made it clear that if the disorder did not “substantially limit” the individual in some major life activity, then the individual did not meet the statute’s definition of disability. Other appellate courts followed the EEOC’s guidance; the high court agreed to review three cases to resolve the dispute among the circuits.

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), two plaintiffs chal- lenged the airline’s refusal to hire them as commercial pilots because they were nearsighted, even though their vision with corrective lenses was within airline guidelines. They sought to establish that myopia was a disorder that met the ADA’s definition. In Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999), a truck driver with monocular vision challenged his discharge by a grocery store because he could not meet the basic vision standards of the U.S. Department of Transportation (DOT), despite the fact that he had received a waiver from the DOT and had been driving safely for many years. And in Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), a mechanic with high blood pressure challenged his termination, stating that, despite the fact that his blood pres- sure was controllable with medication, he was protected by the ADA because his disability should be assessed in its uncorrected state. In each of these cases, the Court ruled that, because the definition of “disability” states that the disor- der must “substantially limit one or more major life activities,” a corrected or correctable disorder would not necessarily limit the individual, and thus the def- inition would not be met. The Court expressly rejected the EEOC guidelines because the Court believed that the guidelines contradicted the clear wording of the statute. And because the Court determined that the ADA’s language was clear, it did not consider the law’s legislative history, which also stated that dis- orders were to be considered in their unmitigated state. The Court commented that an individual might be able to meet the definition even if the disorder were considered in its mitigated or corrected state if the disorder still limited the indi- vidual in a significant way.

The results in this trio of “mitigation” cases may reduce the number of ADA lawsuits brought by individuals whose disorders are controlled or controllable by medication or other devices. But a fifth Supreme Court opinion may have

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the opposite effect, for it may allow more individuals to maintain ADA law- suits. In Cleveland v. Policy Management Systems Corporation et al., 526 U.S. 795 (1999), the court ruled that an individual’s representation that he or she is too disabled to work for purposes of receiving Social Security Disability Insurance (SSDI) does not necessarily prevent an individual from pursuing an ADA claim. Federal appellate courts were split on this issue; several had ruled that an individual’s assertion that he or she could not work for SSDI purposes precluded an argument that the individual was a “qualified individual with a disability” who could perform the essential functions of a job if a reasonable accommodation were provided. Applying judicial estoppel to these claims, trial judges were dismissing plaintiffs’ ADA claims based on their SSDI assertions. Because the ADA requires that the court determine whether an individual is qualified to perform a job with accommodation, an inquiry that is not part of the SSDI evaluation, the Court ruled that ADA plaintiffs should be given an opportunity to explain the discrepancy between their SSDI assertions and their ADA claims.

In 2002, the U.S. Supreme Court issued three more opinions: two involving the employer’s duty to accommodate an otherwise qualified employee with a disability, and a third interpreting the Act’s “direct threat” provisions. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court examined the Act’s definition of disability, which requires that the individual demonstrate a substantial limitation of a “major life activity.” The Court ruled unanimously that a “major life activity” must be one that is of “central impor- tance to daily life.” Thus, activities that are required for an employee’s job, but which are not performed by most people as part of their daily lives, would not fit the definition of a “major life activity,” and thus the individual would not meet the Act’s definition of disability.

In U.S. Airways v. Barnett, 535 U.S. 391 (2002), the Court was asked to rule on whether altering a voluntarily adopted seniority system in order to provide an accommodation for a worker with a disability was an “undue hardship.” In Barnett, a cargo handler (Barnett) for an airline injured his back and was trans- ferred to a position in the mailroom. When a more senior employee bid on his mailroom position, Barnett was terminated. In a 5-to-4 decision written by Justice Breyer, the Court ruled that seniority systems—whether collectively negotiated or unilaterally imposed by the employer—provided “important employee benefits” in the form of job security and predictability of advance- ment. The Court refused to impose a rule that violating a seniority system in order to accommodate an otherwise qualified worker would always be an undue hardship. Instead, the Court created a rebuttable presumption in favor of senior- ity systems, stating that if a plaintiff could show “special circumstances,” such as a history of exceptions to the seniority system, the accommodation might trump the seniority rights in that case.

In a concurring opinion, Justice O’Connor would have limited the determi- nation of whether a reassignment that violated a seniority system was an undue hardship to whether the seniority system was legally enforceable. Voluntary systems, such as the system in question in Barnett, would not trump

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the accommodation requirement, in her opinion. Justice Scalia dissented because he viewed seniority systems as totally unrelated to disability, and thus never subject to violation in order to provide a reasonable accommodation for a disabled worker.

The third Supreme Court ruling on the ADA in 2002 involved the EEOC’s interpretation of the term “direct threat.” Among the reasons why employers may lawfully refuse to hire or to continue to employ a worker with a disability is the finding that the worker’s disability poses a “direct threat” to the worker’s own safety or to the safety of others (29 C.F.R. § 1630.15(b)(2)). In Chevron v. Echazabal, 536 U.S. 73 (2002), a worker with a history of hepatitis C who was denied employment by Chevron because the company feared that exposure to workplace chemicals would further damage the employee’s liver challenged the EEOC regulation’s use of “danger to self.” In a unanimous opinion written by Justice Souter, the Court ruled that the EEOC’s definition was a reasonable reading of the statute.

The U.S. Supreme Court has added Title I of the ADA to the list of federal non- discrimination laws that are unenforceable against state entities in federal court. In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), dis- cussed in Sections 13.1.5 and 13.1.6, the Court ruled that Congress had not validly abrogated the states’ Eleventh Amendment immunity when it enacted the ADA. Although the Court agreed that the statutory language makes it clear that Con- gress intended the ADA to apply to states as employers, the Court found that Congress was primarily concerned with employment discrimination against indi- viduals with disabilities by private employers, and that Congress had not identi- fied a history and pattern of disability-based discrimination by states sufficient to provide a constitutional foundation for outlawing such discrimination. Comparing the amount of state-created discrimination that engendered the Voting Rights Act to the legislative history of the ADA, the majority found insufficient justification to provide a rationale for abrogating the states’ immunity to suit in federal courts. On remand, the U.S. Court of Appeals for the Eleventh Circuit ruled that the university had waived sovereign immunity by accepting federal funds, so it could be sued in federal court under Section 504 of the Rehabilitation Act (Garrett v. University of Alabama at Birmingham Board of Trustees, 344 F.3d 1288 (11th Cir. 1288)). The U.S. Court of Appeals for the Third Circuit reached a similar conclu- sion in Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002). (For a discussion of ADA litigation by public employees post-Garrett, see Roger C. Hartley, “Enforcing Federal Civil Rights Against Public Entities After Garrett,” 28 J. Coll. & Univ. Law 41 (2001).)

5.2.6. Age Discrimination in Employment Act. The Age Discrimi- nation in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits age dis- crimination only with respect to persons who are at least forty years of age. It is contained within the Fair Labor Standards Act (29 U.S.C. §§ 201–19) and is subject to the requirements of that Act (see Section 4.6.2).

Prior to the Act’s amendment in 1978, the protection ended at age sixty-five (29 U.S.C. § 631). The 1978 amendments raised the end of protection to age

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seventy, effective January 1, 1979; and amendments added in 1986 removed the limit completely, except for persons in certain professions. Individuals in pub- lic safety positions (police officers, firefighters), “high-level policy makers,”10

and tenured college faculty could be required to retire at certain ages (seventy for tenured faculty). The amendment provided that the exemption for individuals in public safety positions and tenured faculty would expire on December 31, 1993. Thus, as of January 1, 1994, mandatory retirement for most employees, whether tenured or not, became unlawful.

The Act, which is applicable to both public and private institutions, makes it unlawful for an employer:

(1) to fail or refuse to hire or to discharge 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].11

The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC), and implementing regulations appear at 29 C.F.R. Parts 1625–27. The law, regulations, and Enforcement Guidance may be found on the EEOC Web site at http://www.eeoc.gov. Among other matters, the interpretations spec- ify the criteria an employer must meet to establish age as a bona fide job qualification.12

As under other statutes, the burden of proof has been an issue in litigation. Generally, the plaintiff must make a prima facie showing of age discrimination, at which point the burden shifts to the employer to show that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business” at issue (29 U.S.C. § 623(f)(1)); or that distinctions among employees or applicants were “based on reasonable factors other than

400 Nondiscrimination and Affirmative Action in Employment

10“High-level policy makers” are considered to be those few individuals who are senior executives of the organization. For an example of a university that applied this exemption to a wide array of administrators and ran afoul of the ADEA as a result, see Alex P. Kellogg, “Under Federal Pres- sure, Indiana U. Will Scale Back Mandatory-Retirement Policy,” Chron. Higher Educ., January 30, 2002, at http://chronicle.com/daily/2002/01/2002013004n.htm. 11Relevant authorities construing the Act are collected in Brian L. Porto, Annot., “Who Is ‘Employer’ Within Meaning of Age Discrimination in Employment Act of 1967 (29 USCA §§ 621 et seq.),” 137 A.L.R. Fed. 551; Andrew M. Campbell, Annot., “What Constitutes ‘Willful’ Viola- tion Under Age Discrimination in Employment Act, (29 USCA §§ 621 et seq.),” 165 A.L.R. Fed. 1; Elaine K. Zipp, Annot., “Proving That Discharge Was Because of Age, for Purposes of Age Discrimination in Employment Act, (29 USCA §§ 621 et seq.),” 58 A.L.R. Fed. 94. 12Cases regarding age as a BFOQ are collected in Teresa B. Jovanovic, Annot., “Age as Bona Fide Occupational Qualification ‘Reasonably Necessary’ for Normal Conduct of Business Under § 4(f)(1) of Age Discrimination in Employment Act (29 U.S.C.S. § 623 (f)(1),” 63 A.L.R. Fed. 610.

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age” (29 U.S.C. § 623(f)(1)); or that, in the case of discipline or discharge, the action was taken “for good cause” (29 U.S.C. § 623(f)(3)). (See Laugeson v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975); and Hodgson v. First Federal Savings and Loan, 455 F.2d 818 (5th Cir. 1972).) Employment decisions that appear neu- tral on their face but that use criteria that are closely linked with age (such as length of service) and that tend to disadvantage over-forty employees dispro- portionately may run afoul of the ADEA. Litigation is particularly likely when colleges are merged or when there is a reduction in force of faculty and/or staff (program closures and mergers are discussed in Section 6.8).

Federal courts have routinely dismissed ADEA claims by plaintiffs who were over forty but who were ineligible for certain employment benefits (such as early retirement plans) because they were too young, under the theory that the law was intended to protect older workers from discriminatory employer actions. Although the U.S. Court of Appeals for the Sixth Circuit ruled that work- ers who were over forty but were too young for health benefit plans provided to older workers could state a claim under the ADEA, the U.S. Supreme Court reversed that ruling. In Cline v. General Dynamics Land Systems, Inc., 296 F.3d 466 (6th Cir. 2002), reversed, 540 U.S. 581 (2004), the Court ruled that the ADEA does not prohibit favoring older workers at the expense of younger workers, and that the benefits plan in question was reasonable. The EEOC has issued final rules on retiree health benefits, which may be found at 29 C.F.R. Parts 1625 and 1627.

Federal courts were divided for many years as to whether a plaintiff may pro- ceed under a disparate impact theory (see Section 5.2.1) to challenge alleged age discrimination. In Smith v. City of Jackson, 125 S. Ct. 1536 (2005), the U.S. Supreme Court ruled 6 to 3 that plaintiffs challenging alleged discrimination under the ADEA may use the disparate impact theory.

Individuals claiming age discrimination under the ADEA must first file a claim either with the federal EEOC (within 180 days) or with the appropriate state civil rights agency. Sixty days after such a claim is filed, the individual may bring a civil action in federal court (29 U.S.C. § 626(d)). A jury trial is provided for by the statute, and remedies include two years of back pay, liquidated damages (double back pay), front pay, and other make-whole remedies.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), the U.S. Supreme Court considered whether an employee or a former employee claiming age discrimi- nation must seek relief from appropriate state agencies before bringing an ADEA suit in the federal courts. The Court held that such resort to state agencies is mandatory under Section 14(b) of the ADEA (29 U.S.C. § 633(b)) whenever there is a state agency authorized to grant relief against age discrimination in employment, but that the employee need not commence state proceedings within the time limit specified by state law. If the state agency rejects the employee’s complaint as untimely or does not resolve the complaint within sixty days, the employee can then turn to the federal courts.

The ADEA was amended in 1990 by the Older Workers Benefit Protection Act (OWBPA), 104 Stat. 981, in part as a reaction to a decision by the U.S. Supreme Court in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989).

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In that opinion, the Court had ruled that only employee benefit plans that could be shown to be a subterfuge for discrimination violated the Act, even if their terms had the effect of discriminating against older workers. OWBPA prohibited dis- criminatory employee benefit plans (29 U.S.C. § 623(k)) and codified the “equal benefits or equal cost” principle articulated in Karlen v. City Colleges of Chicago, 837 F.2d 314 (7th Cir. 1988). In Karlen, the appellate court had found discrimina- tory two provisions of a retirement plan that gave more generous benefits to faculty who were sixty-five years old and under. The court ruled that employers could provide benefits of equal cost to the employer, even if older workers received benefits of less value because of the higher cost of benefits to older workers. An employer, however, could not vary benefits (such as sick leave or severance pay) in ways that favored younger employees.

The law requires employers to give older workers benefits that are equal to or better than those given younger workers, unless the employer can demon- strate that benefits (such as term life insurance) carry a higher cost for older workers. The legislation also defines requirements for early retirement plans and regulates the conditions under which severance benefits may be offset by other benefits included in early retirement plans (29 U.S.C. § 623(1)). Further- more, the law specifies how releases or waivers of an employee’s right to sue under the ADEA must be formulated, and requires a twenty-one-day waiting period and a seven-day revocation period for releases (29 U.S.C. § 626(f)(1)). Employees who sign such waivers and then institute litigation, claiming that the waivers were not knowing or voluntary, are not required to return the additional payment they were given as an inducement to sign the waiver (29 C.F.R. § 1625.23). Institutions planning to offer early retirement incentives should confer with experienced counsel in order to comply with the numerous requirements of OWBPA.13

Congress included language in the Higher Education Amendments of 1998 (Pub. L. No. 105-244, October 7, 1998) that amends the Age Discrimination in Employment Act only for institutions of higher education. The Amendments allow colleges and universities to offer tenured faculty retirement incentive pack- ages that include supplementary benefits that are reduced or eliminated on the basis of age, as long as there is compliance with certain provisions.

The language in 29 U.S.C. § 623(m) provides a “safe harbor” for colleges that offer tenured faculty members supplemental retirement incentives that either diminish or become unavailable as the faculty member’s age increases. The law also provides that tenured faculty who would otherwise be too old for the incen- tive program at the time it is implemented must be allowed to participate.

The U.S. Supreme Court has ruled that states and their agencies cannot be sued under the ADEA in federal court by private individuals (Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)). Relying on its earlier decision in Seminole Tribe of Florida v. Florida (discussed in Section 13.1.5), the Court stated that,

402 Nondiscrimination and Affirmative Action in Employment

13For analysis of this issue, see James Lockhart, Annot., “‘Bona Fide Employee Benefit Plan’ Exception to General Prohibition of Age Discrimination in Employment Act (29 U.S.C.S. § 623(f) et seq.) as Applied to Early Retirement Incentive Plans,” 176 A.L.R. Fed. 115.

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although Congress had made its intent to abrogate states’ Eleventh Amendment immunity “unmistakeably clear,” the ADEA had been enacted under the author- ity of the commerce clause. And because age is not a suspect classification under the equal protection clause, said the Court, states could discriminate on the basis of age without violating the Fourteenth Amendment if the use of age was rationally related to a legitimate state interest.

5.2.7. Constitutional prohibitions against employment discrimi- nation. While the Fourteenth Amendment’s equal protection clause applies to employment discrimination by public institutions (see Section 1.5.2), the consti- tutional standards for justifying discrimination are usually more lenient than the various federal statutory standards. (See the discussions of constitutional equal protection standards in Section 8.2.4.) Even where constitutional standards are very strong, as for race discrimination, the courts usually strike down only dis- crimination found to be intentional; the federal statutes, on the other hand, do not always require a showing of discriminatory intent. In Washington v. Davis, 426 U.S. 229 (1976), for instance, the U.S. Supreme Court distinguished between disparate impact cases brought under Title VII (see Section 5.2.1) and those brought under the equal protection clause, noting that the equal protection cases “have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” Under Title VII, in contrast, “discriminatory purpose need not be proved.” Title VII thus “involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed.”

In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), the Court elaborated on the requirement of discriminatory intent, which must be met to establish a violation of the equal protection clause. Feeney concerned a female civil servant who challenged the constitutionality of a state law provid- ing that all veterans who qualify for civil service positions must be considered ahead of any qualified nonveteran. The statute’s language was gender neutral— its benefits extended to “any person” who had served in official U.S. military units or unofficial auxiliary units during wartime. The veterans’ preference law had a disproportionate impact on women, however, because 98 percent of the veterans in Massachusetts were men. Consequently, nonveteran women who received high scores on competitive examinations were repeatedly displaced by lower-scoring male veterans. Feeney claimed that the preference law discrimi- nated against women in violation of the Fourteenth Amendment.

The Court summarized the general approach it would take in ruling on such constitutional challenges of state statutes:

In assessing an equal protection challenge, a court is called upon only to measure the basic validity of the . . . classification. When some other independent right is not at stake . . . and when there is no “reason to infer antipathy,” it is presumed that “even improvident decisions will eventually be rectified by the demo- cratic process” (Vance v. Bradley, 440 U.S. 93) [442 U.S. at 272; citations omitted].

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The Supreme Court agreed with the district court’s finding that the law was enacted not for the purpose of preferring males but, rather, to give a com- petitive advantage to veterans. Since the classification “nonveterans” includes both men and women, both sexes could be disadvantaged by the laws. The Court concluded that too many men were disadvantaged to permit the infer- ence that the classification was a pretext for discrimination against women. Since neither the statute’s language nor the facts concerning its passage demon- strated that the preference was designed to deny women opportunity for employment or advancement in the Massachusetts civil service, the Supreme Court, with two justices dissenting, upheld the statute.

Feeney extends the reasoning in Washington v. Davis by stating unequivo- cally that a statute that has a disproportionate impact on a particular group will withstand an equal protection challenge unless the plaintiff can show that it was enacted in order to affect that group adversely. Thus, a statute neutral on its face will be upheld unless the disparate impact of the law “could not plau- sibly be explained on neutral grounds,” in which case “impact itself would sig- nal that the classification made by the law was in fact not neutral.” The effect of this reasoning—controversial especially among civil rights advocates—is to increase the difficulty of proving equal protection violations.

The Supreme Court applied its Feeney analysis in considering a challenge to an Alabama law that disenfranchised any individual who had been con- victed of a crime “involving moral turpitude.” Since these crimes included misdemeanors, two individuals who had been found guilty of passing bad checks, a misdemeanor in Alabama, were disenfranchised. The plaintiffs had demonstrated that the framers of the 1901 Alabama constitution, which contained the challenged provision, intended to discriminate against black voters, despite the fact that the law was applied to blacks and whites equally. Justice Rehnquist, writing for a unanimous court in Hunter v. Underwood, 471 U.S. 222 (1985), explained that if the intent of the law was discriminatory, then its effects are still discriminatory, and thus the Fourteenth Amendment was violated.

Besides its less vigorous standards, the equal protection clause also lacks the administrative implementation and enforcement mechanisms that exist for most federal nondiscrimination statutes. Consequently, postsecondary institu- tions will be subject to a narrower range of remedies for ensuring compli- ance under the Constitution, compared with the statutes, and also will not have the benefit of administrative agency guidance via regulations and interpretive bulletins.

In employment discrimination, the Constitution assumes its greatest impor- tance in areas not covered by any federal statute. Age discrimination against persons less than forty years old is one such area, since the Age Discrimination in Employment Act does not cover individuals under age forty (although the laws of some states do). A second example is discrimination against aliens, which is no longer covered by Section 1981. Another important uncovered area is discrimination on the basis of sexual preference (such as discrimination

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against homosexuals), which is discussed in Section 5.3.7.14 Discrimination on the basis of residence is a fourth important example.15

In Ambach v. Norwick, 441 U.S. 68 (1979), the U.S. Supreme Court consid- ered the constitutionality of a New York statute that discriminated against aliens by prohibiting their employment as public school teachers. The Court deter- mined that “the Constitution requires only that a citizenship requirement appli- cable to teaching in the public schools bear a rational relationship to a legitimate state interest.” Applying this principle, the Court held that the state’s citizen- ship requirement did not violate equal protection because it was a rational means of furthering the teaching of citizenship in public schools. The Court focused specifically on elementary and secondary education, however, and it is not clear that its reasoning would also permit states to refuse to employ aliens as teachers in postsecondary education, where the interest in citizenship education may be less.

5.2.8. Executive Orders 11246 and 11375. Executive Order 11246, 30 Fed. Reg. 12319, as amended by Executive Order 11375, 32 Fed. Reg. 14303 (adding sex to the list of prohibited discriminations), prohibits discrimination “because of race, color, religion, sex, or national origin,” thus paralleling Title VII (Section 5.2.1). Unlike Title VII, the Executive Orders apply only to contractors and subcontractors who received $10,000 or more in federal government contracts and federally assisted construction contracts (41 C.F.R. § 60-1.5).16 Agreements with each such contractor must include an equal opportunity clause (41 C.F.R. § 60-1.4), and contractors must file compliance reports after receiving the award and annual compliance reports thereafter (41 C.F.R. § 60-1.7(a)) with the federal contracting agency. In addition to their equal opportunity provisions, the Executive Orders and regulations place heavy emphasis on affirmative action by federal contractors, as discussed in Section 5.4.

The regulations implementing these Executive Orders exempt various con- tracts and contractors (41 C.F.R. § 60-1.5), including church-related educational

5.2.8. Executive Orders 11246 and 11375 405

14Such discrimination is sometimes challenged on freedom-of-speech or freedom-of-association grounds rather than equal protection. See Aumiller v. University of Delaware, 434 F. Supp. 1273 (D. Del. 1977), where the court ordered reinstatement and $15,000 damages for a lecturer whose freedom of speech was violated when the university refused to renew his contract because of statements he had made on homosexuality. 15See, for example, McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976), upholding a continuing residency requirement for city employees; and Cook County College Teachers Union v. Taylor, 432 F. Supp. 270 (N.D. Ill. 1977), upholding a similar requirement for college faculty members. Compare United Building and Construction Trades Council v. Camden, 465 U.S. 208 (1984), suggesting that discrimination in employment on the basis of state or local residency may violate the privileges and immunities clause in Article IV, Section 2, of the Constitution. Also compare the student residency cases discussed in Section 8.3.5. 16The Executive Orders’ affirmative action requirements apply to contractors who employ fifty or more employees and who receive $50,000 or more in federal contracts. These requirements are discussed in this book, Section 5.4.

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institutions defined in Title VII (41 C.F.R. § 60-1.5(a)(5)). While the regulations contain a partial exemption for state and local government contractors, “edu- cational institutions and medical facilities” are specifically excluded from this exemption (41 C.F.R. § 60-1.5(a)(4)). The enforcing agency may hold compli- ance reviews (41 C.F.R. § 60-1.20), receive and investigate complaints from employees and applicants (41 C.F.R. §§ 60-1.21 to 60-1.24), and initiate admin- istrative or judicial enforcement proceedings (41 C.F.R. § 60-1.26(a)(1)). It may seek orders enjoining violations and providing other relief, as well as orders ter- minating, canceling, or suspending contracts (41 C.F.R. § 60-1.26(b)(2)). The enforcing agency may also seek to debar contractors from further contract awards (41 C.F.R. § 60-1.27(b)).

The requirements of the Executive Orders are enforced by the Office of Fed- eral Contract Compliance Programs (OFCCP), located within the U.S. Depart- ment of Labor. The regulations require each federal contractor subject to the Executive Orders to develop a written affirmative action program (AAP) for each of its establishments. In November 2000, a provision was added at 41 C.F.R. § 60-2.1(d)(4) that permits federal contracts to develop AAPs organized by busi- ness or functional unit rather than by geographical location. A procedural direc- tive for determining whether a college or university is eligible to submit a functional AAP can be found on the OFFCP Web site at http://www.dol.gov/esa.

The regulations interpreting the Executive Orders and explaining the enforcement process were revised, and a final rule was published at 165 Fed. Reg. No. 219 (November 13, 2000). The final rule can be accessed from the OFFCP Web site.

The primary remedy for violation of the Executive Orders is cutoff of federal funds and/or debarment from future contracts. Individuals alleging employment discrimination by federal contractors have sought to file discrimination claims in court, but have been rebuffed. For example, in Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975), two women faculty members filed sex discrimina- tion claims against the university under authority of the Executive Orders. Their claims were dismissed; the court found no private right of action in the Execu- tive Orders. Similar outcomes occurred in Braden v. University of Pittsburgh, 343 F. Supp. 836 (W.D. Pa. 1972), vacated on other grounds, 477 F.2d 1 (3d Cir. 1973), and Cap v. Lehigh University, 433 F. Supp. 1275 (E.D. Pa. 1977).17

Sec. 5.3. The Protected Classes

5.3.1. Race. As noted above, race discrimination claims may be brought under Title VII (see Section 5.2.1 of this book), Section 1981 (Section 5.2.4), the U.S. Constitution (Section 5.2.7), or federal Executive Orders (Section 5.2.8). Race discrimination claims may also be brought under state nondiscrimination

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17Cases related to private rights of action under the Executive Orders are collected in Phillip E. Hassman, Annot., “Right to Maintain Private Employment Discrimination Action Under Executive Order 11246, as Amended, Prohibiting Employment Discrimination by Government Contractors and Subcontractors,” 31 A.L.R. Fed. 108.

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laws.18 In “disparate treatment” race discrimination claims (see Section 5.2.1 above), as in other employment discrimination claims, an employee must demonstrate that an adverse employment action was motivated by the individ- ual’s race rather than by some “neutral” reason unrelated to race. Because direct evidence of race discrimination (in the form of written or oral racist statements, for example) is very rare, most plaintiffs must use indirect methods of proving disparate treatment.

An individual alleging race discrimination may demonstrate that “similarly situated” employees of a different race were treated better than the plaintiff. If two employees are similar in skills, experience, job responsibilities, and job per- formance, but are of different races, race discrimination may be the reason that one employee experiences an adverse employment action while the similarly sit- uated employee does not. However, if the plaintiff cannot identify a “compara- tor,” proving race discrimination will be very difficult. For example, in Jackson v. Northeastern Illinois University, 2001 U.S. App. LEXIS 25339 (7th Cir. 2001) (unpublished), an African American building service worker fired for hitting his supervisor was unable to identify a Caucasian employee who had engaged in the same misconduct but was not terminated. In the absence of such a “similarly situated” employee, said the court, the plaintiff could not prevail.

As noted in the discussion of Title VII in Section 5.2.1, colleges typically defend against discrimination claims by asserting that there was a “legitimate nondiscriminatory reason” to support the adverse employment action. Docu- mented poor performance of the plaintiff will typically allow the college to pre- vail unless there is direct evidence of race discrimination or a similarly situated coworker of a different race who is treated more favorably. (For cases involving successful defenses against alleged race discrimination by the use of docu- mented poor performance, see Fortson v. Embry-Riddle Aeronautical University, 1998 U.S. Dist. LEXIS 20701 (N.D. Miss. 1998); and Chambers v. McClenney, 1999 U.S. App. LEXIS 329 (10th Cir. 1999) (unpublished).) Lack of funds may also provide a legitimate nondiscriminatory reason for a termination if there is no direct evidence of race discrimination (see Lewis v. Chattahoochie Valley Community College, 136 F. Supp. 2d 1232 (M.D. Ala. 2001)).

The plaintiff must identify a specific adverse employment action that has been taken, allegedly on the basis of the plaintiff’s race. Typically, termination, discipline, demotion, or reducing an individual’s pay are adverse employment actions. However, an involuntary lateral transfer that does not reduce an indi- vidual’s salary may not be viewed as an adverse employment action (see, for example, Adams and Moore v. Triton College, 2002 U.S. App. LEXIS 8622 (7th Cir. 2002) (unpublished)).

5.3.1. Race 407

18Cases involving race discrimination are collected in J. F. Ghent, Annot., “Racial Discrimination in Hiring, Retention, or Assignment of Teachers—Federal Cases,” 3 A.L.R. Fed. 325. See also Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Dis- crimination Violative of Federal Constitution or Statutes—Public Employment Cases,” 168 A.L.R. Fed. 1; and Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Discrimination Violative of Federal Constitution or Statutes—Private Employment Cases,” 150 A.L.R. Fed. 1.

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Harassment on the basis of race is a form of race discrimination, and federal courts have applied Supreme Court precedent from sexual harassment cases (see Section 5.3.3.3) to claims of racial harassment. Racial harassment claims may be brought under Title VII or Section 1981; the latter statute’s lack of a cap on damages makes it likely that plaintiffs may file under both laws, as well as state nondiscrimination laws. A dramatic example of a plaintiff’s success occurred in Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), cert. denied, 535 U.S. 1018 (2002), in which the only African American employee of a small company quit after five months because of coworkers’ daily racial jokes, which were observed and condoned by Swinton’s supervisor. The court upheld a $1 million punitive damage award; his back pay award was less than $6,000. Conflicts between a supervisor and subordinate of different races, however, will typically not support a claim of racial harassment unless actual racist language is used. For example, in Trujillo v. University of Colorado Health Sciences Cen- ter, 157 F.3d 1211 (10th Cir. 1998), a Hispanic employee’s claim of racial harass- ment by his African American supervisor was rejected by the court, which characterized the difficulties he faced as a “personality conflict” and upheld summary judgment for the college.

Tribal colleges are immune from race discrimination lawsuits, according to a federal appellate court. In Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000), the court ruled that because Indian tribes enjoy sovereign immunity, tribal colleges may not be sued in federal courts. The court reversed a jury award to two former employees of the college who alleged that their one-year employment contracts had not been renewed because of their race.

5.3.2. National origin and alienage. Claims of national origin dis- crimination may be brought under Title VII, the U.S. Constitution, or federal Executive Orders and, sometimes, under Section 1981. Title VII prohibits discrimination “because of [an] individual’s . . . national origin” (42 U.S.C. § 2000e-2(a))—that is, discrimination based on the employee’s nationality. In Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir. 1984), for example, the court held that the defendant had intentionally dis- criminated against the plaintiff, a Mexican American, because of his national origin. National origin claims are frequently combined with claims of race and/or religious discrimination (Sections 5.3.1 & 5.3.6).

The U.S. Supreme Court has ruled that the statutory term “national origin” does not cover discrimination on the basis of alienage—that is, discrimination against employees who are not citizens of the United States (Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973)). But the Court cautioned in Espinoza that a citizenship requirement may sometimes be part of a scheme of, or a pretext for, national origin discrimination and that “Title VII prohibits discrim- ination on the basis of citizenship [alienage] whenever it has the purpose or effect of discriminating on the basis of national origin.” The Court also made clear that aliens, as individuals, are covered by Title VII if they have been dis- criminated against on the basis of race, color, religion, or sex, as well as national

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origin. To implement the statute and case law, the EEOC has issued guidelines barring discrimination on the basis of national origin (29 C.F.R. Part 1606).

Claims of alleged national origin discrimination brought under Title VII are evaluated under the McDonnell Douglas test described in Section 5.2.1. An illus- trative case is Castro v. Board of Trustees of the University of Illinois, 1999 U.S. Dist. LEXIS 17303 (N.D. Ill. 1999), in which an individual of Puerto Rican descent applied for and was denied twenty-seven jobs at the University of Illi- nois at Chicago. The court ruled that Castro had established a prima facie case of national origin discrimination for three of the twenty-seven jobs because the individuals who were hired, who were not of Puerto Rican descent, had simi- lar or lesser credentials than Castro. The court granted summary judgment to the university on Castro’s discrimination claims for twenty-four of the twenty- seven positions, but denied summary judgment with respect to the three for which Castro had established a prima facie case.

Although Espinoza prevents plaintiffs from attacking citizenship (alienage) discrimination under Title VII, such plaintiffs may be more successful making constitutional claims. In Chacko v. Texas A&M University, 960 F. Supp. 1180 (S.D. Tex. 1997), affirmed without opinion, 149 F.3d 1175 (5th Cir. 1998), a Canadian citizen was terminated shortly after she was hired, allegedly because coworkers complained that the university was hiring “foreigners.” With respect to her Title VII claim of national origin discrimination, the federal court awarded the university summary judgment, characterizing it as “citizenship” discrimi- nation rather than national origin discrimination. But the court allowed the plaintiff’s constitutional claims against individuals (but not against the institu- tion) to proceed under Sections 1981 and 1983 (see Section 5.2.4 of this book). Her claims against the institution were dismissed on Eleventh Amendment immunity grounds.

Employers’ requirements that employees speak only English while at work have stimulated claims of national origin discrimination. Although the EEOC guidelines state that English-only rules are a form of prohibited discrimination under Title VII (29 C.F.R. § 1606.7), most federal courts have upheld these rules if the employer has articulated a legitimate business reason (for example, cus- tomer service, safety) for the rules. (See, for example, Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980); and Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).) A federal trial court ruled that Cornell University could impose a requirement that employees speak English on the job because the interpersonal conflicts between the plaintiff and her coworkers made the requirement a business necessity (Roman v. Cornell University, 53 F. Supp. 2d 223 (N.D.N.Y. 1999)). However, if the court finds that the rule was applied in a manner indicating national origin discrimination rather than a legitimate business concern, the court may rule for an employee terminated for violating the rule. For example, the court in Saucedo v. Brothers Wells Service, 464 F. Supp. 919 (S.D. Tex. 1979), ruled that an employee terminated for speaking two words of Spanish on the job had been a victim of national origin discrimination.

The Arizona Supreme Court invalidated a state constitutional provision requiring state employees to speak only English on the job as a violation of the

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