RACE

DISCRIMINATION

Mari Mayeda | Associate Chief Counsel Systemic LitigationState of California Department of Fair Employment and Housingwww.dfeh.ca.gov

What is Race? The FEHA and Title VII do not define

race.

“Race” is interpreted broadly to mean classes of persons identifiable because of their ancestry or ethnic characteristics.

Race v. Color Race and Color may overlap but they

are not the same. Race refers to ancestry or ethnic

characteristics. Color refers to pigmentation of the skin.

Why are we looking at United States Supreme Court cases? In the absence of statutory language, the

California courts look to “federal antidiscrimination law.”

Inform us generally of the legal climate and the tenor of the times we are in.

Race Discrimination: Basic Legal Framework

Intentional discrimination (disparate treatment). Three stage burden shifting. McDonnell Douglas Corp. v. Green (1973) 411

U.S. 792; Texas Dep’t of Community Affairs v. Burdine (1981) 450 U.S. 248.

Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354.

Disparate Treatment: Three- Stage Burden Shifting

Employee: prima facie case.

Employer: burden of production.

Employee: “pretext” meaning that the adverse employment action happened “because of” the employee’s protected status.

Non-Intentional Discrimination (Adverse Impact or Disparate Impact Theory)

Facially neutral policy.

Disparate impact on protected group.

Griggs v. Duke Power Company (1977) 401 U.S. 424.

Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354 (“prohibited discrimination may … be found on a theory of disparate impact”).

Adverse Impact theory: Employer Burden and Employee Rebuttal

Employer: job related or business necessity.

Employee: less discriminatory alternative.

Does Adverse Impact Analysis Apply to Housing?

Mt. Holly Gardens Citizens in Action v. Mt. Holly (3d Cir. 2011) 658 F.3d 375, cert. granted, ___ U.S. ___, 133 S. Ct. 2824, 81 U.S.L.W. 3689, 2013 WL 2922132 (June 17, 2013).

But see Government Code section 12955.8, subdivision(b): “Proof of a violation causing a discriminatory effect is shown if an act or failure to act…, has the effect, regardless of intent, of unlawfully discriminating on the basis of race [or other protected categories].”

Systemic Discrimination: Pattern or Practice Theory

International Brotherhood of Teamsters v. United States (1977) 431 U.S. 324.

Alch v. Superior Court (2004) 122 Cal.App. 4th 339, 380.

BOTH adverse impact and pattern and practice can be used in the same case, evidence usually overlaps.

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What is a Pattern or Practice?

Company’s “standard operating procedure – the regular rather than the unusual practice.” (Teamsters, supra, 431 U.S. 324, 336.)

Not “isolated,” “accidental,” or “sporadic.”

A pattern or practice if “repeated, routine or of a generalized nature.”

DFEH: Authority to Bring All Three Kinds of Cases DFEH is not subject to the class certification

requirements.

DFEH v. Law School Admission Council (N.D. Cal. 2013), __ F.Supp.2d __, 2013 WL 1739434.

“When a government agency pursues classwide relief through a civil enforcement action, it is not prosecuting a ‘class action’ subject to Rule 23.”

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Vance v. Ball State University (2013)133 S.Ct. 2434

Who is a “supervisor”?

Important because an employer’s liability is different depending on whether illegal conduct is that of a fellow employee or of a supervisor.

Vance: Fact Pattern Maetta Vance, African American woman worked

as catering assistant. Saundra Davis, Caucasian woman, a catering

specialist. Davis did not have power to hire, fire, demote,

promote, transfer or discipline Vance. Vance argued Davis had leadership

responsibilities and led or directed employees in the kitchen.

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Vance: Who is a Supervisor?

“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible action against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. [cit. omitted]. We reject the nebulous definition of a ‘supervisor’ adopted in the EEOC Guidance and substantially adopted by several courts of appeals.” (Vance, supra, 133 S.Ct. 2434, 2443.)

The United States Supreme Court noted “’Supervisor’ is not a term used by Congress in Title VII.” (Vance, supra, 133 S.Ct. 2434, 2446. )

“Supervisor” is defined in the Fair Employment and Housing Act.

Vance: California Law

“’Supervisor’ means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (Gov. Code, § 12926, subd. (s).)

Supervisor- Defined in Government Code:

Vance: Under California Law Vance alleged Davis had leadership responsibilities

and led or directed employees in the kitchen.

Summary judgment under federal law.

Not under California law, if evidence that Davis had “the responsibility to direct” Vance that required “the use of independent judgment.”

California employers: employee’s authority is “of a routine or clerical nature” and does not require independent judgment.

“[F]ear of retaliation is the leading reason why people stay silent” about discrimination they have encountered or observed. (Crawford v. Metropolitan Government of Nashville and Davidson Cty. (2009) 555 U.S. 271, 279.)

University of Texas, Southwestern Medical Center v. Nassar (2013) 133 S.Ct. 2517

Nassar: Fact Pattern Nassar, medical doctor of Middle Eastern descent. New supervisor, Dr. Levine, increased and

negative scrutiny. “Middle Easterners are lazy.” Nassar quits University faculty, but wants to

continue working at University Hospital. Sends letter to Dr. Fitz complaining about racial

bias of Dr. Levine. University Hospital withdraws offer of

employment.

Nassar: Burden of Proof Employees alleging “status based

discrimination…need not show that the causal link between injury and wrong is so close that the injury would have occurred but for the act….”

“It suffices instead to show that the motive to discriminate was one of the employer’s motives….”

Nassar: Burden of Proof

Different burden for retaliation claims.

Retaliation claims under federal law “require proof that the desire to retaliate was the but-for cause of the challenged action.”

Nassar – California Law?

Plaintiff in a termination case must prove “but for” causation to get damages BUT can get declaratory/ injunctive relief upon proving that illegal motive played any part in the employment decision.

Harris v. City of Santa Monica (2013) 56 Cal.4th 203

• A plaintiff “must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision.” (Harris, supra, 56 Cal.4th 203 , 232.)

Harris: Plaintiff’s Burden

• “Proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Harris, Supra, 56 Cal.4th 203 , 224.)

• Employee cannot obtain:• Reinstatement• Backpay/Frontpay• Non-economic damages (Id., at pp. 232-234).

Harris – “Same Decision” Showing

However, even if the employer makes “same decision” showing (proof that the employer, in the absence of any discrimination would have made the same decision at the time of its actual decision) the employee can still obtain:

Injunctive relief. (Harris, supra, 56 Cal.4th 203 , 234.)

Declaratory relief. (Id., at p. 233.) Attorney’s fees and costs. (Id. at p. 235.)

Harris:

1) Grant and hold on a retaliation case involving Alamo Cars.

2) Language of Harris itself: “In light of FEHA’s express purpose of not only

redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.” (Harris, supra, 56 Cal.4th 203 , 222.)

Question: Will Harris apply to retaliation cases, or will California courts follow Nassar on retaliation claims?

Fisher v. University of Texas (2013) 133 S.Ct. 2411

Use of race as a factor in University admissions.

Grutter v. Bollinger (2003) 539 U.S. 306 upheld use of race as one of many “plus factors.”

Gratz v. Bollinger (2003) 539 U.S. 244 automatically awarding points based on race not permitted.

“[A] university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a …broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’ (Bakke, supra, 438 U.S. at 315 (opinion of Powell, J.)” (Fisher v. University of Texas (2013) 133 S.Ct. 2411, 2421.).

NOTE: Endorses Justice Powell’s conclusion in Regents of The University of California v. Bakke (1078) 438 U.S. 265.

Fisher v. University of Texas (2013)133 S.Ct. 2411

“Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that they admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.” (Fisher, supra, 133 S.Ct. 2411, 2414 .)

Fisher: What must the University prove?

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” (Fisher, supra, 133 S.Ct. 2411, 2414. )

Recall that in the describing the three plans used by

the University, one involved a plan which did not use race, but which resulted in increased minority enrollment.

Fisher: On Remand?

“[W]e conclude that Title VII principles apply here. Defendant is a purely private entity that receives no federal funds. The Supreme Court has never applied strict scrutiny to the actions of a purely private entity.” (Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate (9th Cir. 2006) 470 F.3d 827, 839 [en banc].)

Ricci v. DeStefano (2009) 557 U.S. 557

Fisher Burden of Proof and Private Entities

Follow up to Fisher next term Coalition to Defend Affirmative Action v. Regents of the

University of Michigan (6th Cir. 1012) 701 F.3d 466, cert. granted sub nom. (Schuette v. Coalition to Defend Affirmative Action(March 15, 2013)133 S. Ct. 1633.)

Will likely determine whether California’s Proposition 209 is constitutional.

Proposition 209 amended California constitution to prohibit state government institutions from considering race, sex or ethnicity in public employment, public contracting or public education.

Shelby County, Alabama v. Holder (2013) 133 S.Ct. 2612

“The voting rights act of 1965 is one of the most important federal laws adopted in my lifetime.” Dean Erwin Chemerinsky, UC Irvine School of Law.

Shelby County Voting Rights Act, Section 5: “Pre-clearance”

Section 4(b): Formula

Original formula:

Jurisdictions that had maintained a test or other device as a prerequisite to voting, and to jurisdictions with less than 50% voter turnout.

Several amendments to formula, in 1970’s those swept in 3 counties in California

Shelby County Holding: “rational basis “test, section 4(b)

formula was unconstitutional and could no longer be used.

Did the Supreme Court use rational basis or require more than that?

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” (Id. , at p. 2631.)

Shelby County, Alabama v. Holder (2013) 133 S.Ct. 2612

A. Kalev (University of California, Berkeley), F. Dobbin (Harvard University) & E. Kelly (University of Minnesota), “Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Practices,” 71 American Sociological Review 589 (2006).)

“Best Practices or Best Guesses…”

“Best Practices or Best Guesses…”

“Whereas there has been a great deal of research on the sources of inequality, there has been little on the efficacy of different programs for countering it. At best, “best practices” are best guesses. We know a lot about the disease of workplace inequality, but not much about the cure.” (Best Guesses, at p. 590.)

"Structures that embed accountability, authority, and expertise … are the most effective means of increasing the proportions of white women, black women and black men in private sector management . . . Responsibility structures also catalyze . . . other diversity programs, rendering each a bit more effective . . ." (Best Guesses, at p. 611.)

“Best Practices or Best Guesses…”

While federal contractor status is not associated with improvements, discrimination lawsuits and diversity contract compliance reviews increase the likelihood of advancement of minorities and women. (Best Guesses at 607-08, 612.)

We will note that the DFEH has authority over state contractors or suppliers of goods and services to the state. (Gov. Code, § 12966. ) Under our current Director we regularly check to see if a responding party in our complaints is a government contactor.

“Best Practices or Best Guesses…”

"[W]hen it comes to addressing corporate inequality we find that the strategies designed to change individuals are less effective than the conventional management solution of setting goals and assigning responsibility for moving toward these goals." (Best Guesses, at p. 611.)

“Best Practices or Best Guesses…”

Hypothetical 1 An award winning regional sales manager for a

clothing company repeatedly refused to carry out an order from a supervisor to fire African American employees or managers, who in the supervisor’s view, did not represent the “blond and blue eyed” look of the stores.  After telling the manager she must have “lost her mind” to hire an African American sales person, the supervisor tried to get the sales managers subordinates to undermine and oppose her. The supervisor opposed the sales manager at every turn and threatened to end her 18 year career with the company.  The sales manager quits.

Prima facie Case of Retaliation?

Is there protected activity? Is there adverse job action? Is there a causal connection?

  See Cogdell v. Wet Seal, Inc. (C.D. Cal 2013) SACV 12-

01138 AG. Yanowitz v. L’Oreal, Inc. (2005) 56 Cal.4th 1006.

Hypothetical 2

An company has two lines of jobs:  unskilled “cannery jobs” on the cannery lines, which are filled predominantly by nonwhites; and “noncannery jobs,” most of which are classified as skilled positions and filled predominantly with white workers, and virtually all of which pay more than cannery positions.  Relying solely on the employer’s statistics showing a high percentage of nonwhite workers in cannery jobs and a low percentage of such workers in noncannery positions, plaintiffs proceed on a disparate impact theory.

 

Does this job segregation establish a prima facie case of racial discrimination?

Wards Cove Packing, Co., Inc. v. Atonio (1989) 490 U.S. 642.

Questions?

www.dfeh.ca.gov contact.center@dfeh.ca.gov(800) 884-1684Videophone (916) 226-5285

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