Law 284.

1: Employment Discrimination, Fall 2010

Room 244, Monday, Tuesday & Thursday, 10:00-10:50

William H.D. Fernholz

Office Hours: Tuesday, 3:00-5:00
Office Location: Boalt 375
Phone: 510-643-4447
e-mail wfernholz@law.berkeley.edu

Required Texts
Zimmer, Sullivan & White, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION , 7th ed.
(Aspen 2008)

Other cases and statutes referenced in this syllabus will be available at the class website on
bspace under “resources.”

Course Description
This course will cover federal law prohibiting discrimination in employment on the basis of race,
sex, age, disability, and other protected categories, with some coverage of state law for
comparative purposes. The primary focus will be on Title VII of the Civil Rights Act, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, and the United
States Constitution. We will study the doctrine interpreting these legal provisions, as well as
normative theories of employment discrimination generally.

The aim of this course is to learn the substantive law of employment discrimination so that you
may (1) evaluate the claims of potential clients, (2) understand of the main theories of liability
and the issues of proof those theories raise, (3) understand how the theories and issues of proof
vary by type of discrimination, and (4) evaluate potential causes of action, defenses, and
remedies.

Class preparation

I have not designated particular readings for particular days (with the exception of the first two
weeks), because I want us to have the flexibility to move slower or faster depending on the needs
of the class. Each Thursday (at the very latest) I will announce the reading for the following
week and post it on bspace. Though page ranges are indicated below, I may adjust those pages
when I issue the reading assignments.
Early in the semester, I will divide students into three panels. These panels will alternate being
on call each class period. Of course, I welcome and encourage voluntary participation, as well.
I understand that students may need to miss one or two classes for interviewing, emergencies,
and other important functions. I may reduce your grade if there are repeated, unexcused
absences from class.

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You may not use your computer during class for any purpose other than taking notes or retrieving
information related to our class discussions (e.g., looking at your outline or notes you took on the
readings). You may not surf the web or check your email or send messages or play computer games.
If you are in doubt whether a particular use is permissible, check with me.
My goal is to cover the first six chapters of the textbook and (with some luck) other important topics,
such as class action employment cases, remedies and settlements.

Grading

Your grade will be calculated based on class participation (20%) and performance on the final
exam (80%). The final exam will be a six to eight hour take home exam, with a significant word
limitation. I anticipate that the final exam will be primarily or exclusively essay questions. You
will be free to consult the textbook, readings assigned in class, and any outline that you have
prepared yourself or with the assistance of other students in the class. You may not confer with
any other person regarding the exam until all exam answers have been turned in.

Readings

I. Introduction, The Structure of Anti-Discrimination Enforcement

1. UCLA Law/Rand Center for Law & Public Policy, California

Employment Discrimination Law and Its Enforcement: The Fair Employment
and Housing Act at 50, pp.11-24. (August 16)

2. Rand Center Report, pp.24-26 (Overview of FEHA in Legal Context),

pp.41-48 (Processing and Resolution of DFEH complaints), pp.58-62 (Processing
and Resolution through Legal System) (August 17)

II. Individual Disparate Treatment

A. Elements of an Individual Disparate Treatment Case

1. Element 1: Intent to Discriminate (pp.1-15) (August 19)

Slack v. Havens, Hazen Paper Co. v. Biggins

2. Element 2: Adverse Employment Action (pp 16-23) (August 23)

Hishon v. King & Spalding, Minor v. Centocor, Inc.

3. Element 3: Causation
Linking Intent to Adverse Action (pp.23-32) (August 24)
Desert Palace, Inc v. Costa.

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 B. Proving Intent to Discriminate

1. Test for Mixed Motive Cases (pp.32-50) (August 26)

Price Waterhouse v. Hopkins

2. Test for Pretext Cases (pp. 50-61)

(McDonnell Douglas v. Greene)

3. Evidence of Pretext (pp.62-67)

(Patterson v. McLean Credit Union, Ash v. Tyson Foods, Inc.)

4. Reverse Discrimination (pp.68-78)

(McDonald v. Santa Fe Trail Transportation Co.)

5. Evidence of Pretext II (pp.78-94)

(Reeves v. Sanderson Plumbing Products, Inc.)

6. No mixed-motive cases under the ADEA (Supp. pp. 12-26.)

(Gross v. FBL Financial Services, Inc.)

C. Implementing Desert Palace and Reeves (pp.95-114.)

(Rachid v. Jack In The Box, Inc.)

III. Systemic Disparate Treatment

A. Policies of Discrimination (pp.115-122)

(Los Angeles Dept. of Water v. Manhart)

B. Patterns and Practices of Discrimination (pp.123-140)

(Teamsters v. United States, Hazelwood School District v. United States)

C. Defenses to Disparate Treatment Cases

1. Rebutting the Inference of Discriminatory Intent (pp.155-171)

(Personnel Administrator v. Feeney, EEOC v. Sears Roebuck & Co.)

2. Bona Fide Occupational Qualification (pp. 171-183)

(International Union, UAW v. Johnson Controls, Inc.)

3. Voluntary Affirmative Action (pp.184-205)

(Johnson v. Transportation Agency of Santa Clara County)

IV. Systemic Disparate Impact

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 A. The Roots of Disparate Impact (pp.207-213)
(Griggs v. Duke Power Co.)

B. Subsequent Supreme Court Limitations (pp.213-231, skip note 6)

(Wards Cove Packing Co v. Atonio, Smith v. City of Jackson)

Systemic Disparate Impact Under the ADEA (supp. 34-40)

(Meacham v. Knolls Atomic Power Laboratory)

C. Effect of the 1991 Amendments on Plaintiffs’ Proof (pp.231-253)

(Watson, Connecticut, Dothard)

D. Defendant’s Options after the 1991 Amendments

1. Contest Plaintiffs Data, Business Necessity (pp.254-267)

(El v. Southeastern Pennsylvania Transportation Authority)

2. Alternative Employment Practices (pp.267-275)

(Adams v. City of Chicago)

3. Professionally Developed Tests (pp.275-287)

(Albermarle Paper Co. v. Moody, Bryant v. City of Chicago)

4. Bona-Fide Seniority Systems, Piecework Systems (pp 288-292)

V. Reconciling the Theories

A. Individual and Systemic Disparate Treatment; Individual Disparate Treatment

and Disparate Impact (pp.293-302)

B. Systemic Disparate Treatment and Disparate Impact (Supp. pp.44-83)

(Ricci v. DeStafano)

C. Systemic Disparate Treatment and Disparate Impact II (pp.302-316)

(EEOC v. Dial Corporation)

VI. Types of Employment Discrimination

A. Sex Discrimination

1. “Because of” Sex; dress and grooming codes. (pp.331-337, 346-353.)

(Oncale v. Sundowner Offshore Services, Inc., Jesperson v. Harrah’s)

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 2. Pregnancy Discrimination (pp.353-370.)
(Maldonado v. U.S. Bank, California Federal S&L v. Guerra)

B. Sexual Harassment

1. Proving the case (pp.370-384)

(Meritor Savings Bank v. Vinson, Harris v. Forklift Systems)

2. Vicarious Liability (pp. 384-417)

(Burlington Industries, Pennsylvania State Police, Matvia)

C. Sexual Orientation Discrimination (pp.337-345)

(Vickers v. Fairfield Medical Center)

D. Religious Discrimination (pp.418-432)

(Reed v. Great Lakes Cos., Wilson v. U.S. West Communications)

E. National Origin and Alienage Discrimination (pp.442-459)

(Zamora v. Elite Logistics, Inc.)

F. Age Discrimination (pp.481-486)

G. Retaliation (pp.461-481)
(Breeden, Laughlin, Burlington Northern)

VII. Disability Discrimination

A. Meaning of Disability

1. Meaning of Disability I: Expansive Interpretation (Supp. pp.112-127.)

(Bragdon v. Abbott)

2. Meaning of Disability II: Limited Interpretation (Supp pp. 127-143)

(Toyota Motor Manufacturing , Kentucky, Inc. v. Williams)

3. Meaning of Disability III (Supp. pp 143-150)

(Sutton v. United Air Lines, Inc., EEOC v. Schneider Nat’l Inc.)

B. Qualified Individual with a Disability

1. Conflicts with seniority rules (pp.533-548)
(U.S. Airways, Inc. v. Barnett)

2. (pp.548-566)
(Huber, Vande Zande, Gambini)
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C. Discriminatory Qualification Standards (pp.566-581.)
(Chevron U.S.A., Inc v. Echazabal, Albertson’s, Inc. v. Kirkingburg)

D. Special Problems of Disability Discrimination (Addictions, Medical Exams,

Insurance, etc.) (pp.582-593)